Tony's Transport CC v MA Transport and Another (1278/2002) [2006] ZAFSHC 93 (17 August 2006)

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[2006] ZAFSHC 93
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Tony's Transport CC v MA Transport and Another (1278/2002) [2006] ZAFSHC 93 (17 August 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 1278/2002
In
the case between:
TONY’S TRANSPORT
CC
Plaintiff
and
M A TRANSPORT
1
st
Defendant
O
Y SHERIFE
2
nd
Defendant
JUDGMENT:
MILTON, AJ
_____________________________________________________
HEARD ON:
6 JUNE 2006
_____________________________________________________
DELIVERED ON:
17 AUGUST 2006
_____________________________________________________
[1]
INTRODUCTION
1.1 The plaintiff, a
registered CC in this matter, seeks payment from the 1
st
defendant and 2
nd
defendant jointly and severally in the amount of R319 380 being the
damage suffered to the plaintiff’s motor vehicle in a collision
with the defendant’s motor vehicle, both vehicles being heavy duty
trucks.
1.2
Defendant’s
defence
Defendants
deny liability, their case being that the 2
nd
defendant was obliged to take emergency evasive action to avoid a
head on collision with an unidentified motor vehicle that was
travelling
on the wrong side of the road and in the event collided
with that unidentified vehicle, thereafter colliding with the
plaintiff’s
vehicle. The defendants contended that the collision
was caused by the negligence of the unidentified third party
alternatively
a sudden emergency that the second defendant found
himself in.
1.3 Before closure of the
plaintiff’s case, Mr. Myburgh, on behalf of the plaintiff, handed
in by means of a second witness for
the plaintiff, an original
written statement by the driver of the plaintiff’s vehicle at the
time of the accident and who had since
died during 2004. Mr. Myburgh
thereafter proceeded to bring an application in terms of
Section 3(1)
of the
Law of Evidence Amendment Act no 45 of 1988
, so that the
written statement of driver, Johannes Mbatha may be admitted as
evidence thereby circumventing the hearsay rule.
On hearing the
respective arguments the court allowed the statement provisionally, a
final decision to its admissibility to be made
at the end of the
case.
[2]
COMMON
CAUSE
The parties agreed that
The quantum and the
merits of the matter were to be separated, and an order was made
accordingly.
It was common cause
further that the accident took place on the 14
th
May 1999 at ± 4h15 in the morning, 20km from Harrismith on the Van
Reenen’s pass. Weather conditions were misty, the road
wet from
the mist but not raining.
It is also common cause
that the accident took place on the plaintiff’s side of the road.
Defendant’s vehicle
was on its incorrect side of the road after the accident.
That the driver of the
plaintiff’s vehicle was unable to give evidence since he was
deceased.
3.
EVIDENCE
3.1 The plaintiff called
two witnesses, the first being Mr. David Sithole, who was a co-driver
in the Plaintiff’s vehicle at the
time of the accident and who was
lying on the bed sleeping in the cabin. He did not see the accident
happen but heard the driver
screaming, and then a bang sound after he
awoke. The truck was travelling on the slow lane, travelling
approximately at 30-40 km
an hour. After the accident, the driver
fell between the gear lever and the bed, and the truck moved
backwards towards the yellow
line. Right after the accident he saw
the other truck with which they collided facing towards Durban and
the Plaintiff’s truck
facing towards Johannesburg – facing each
other on their side of the road. The witness indicated on photo 6 of
page 24 of bundle
B where the accident took place. This witness
placed no evidence on record where the vehicles were damaged and
hardly any evidence
of how the accident happened.
3.2 The
plaintiff thereafter called a Mr. Potgieter, who handed in the
original statement of the plaintiff’s driver, Mr. Mbatha.
Mr.
Wolmarans on behalf of the defendant’s, withheld their rights in
this regard. Mr. Potgieter testified that he was employed
by the
plaintiff at the time of the accident and primarily handled all the
accidents of the plaintiff by taking statements of the
drivers and
making copies of all the necessary documents which would be necessary
to report a claim for insurance purposes. This
witness confirmed
that the contents of the statement was told to him by the deceased
driver personally. The witness, who is Afrikaans
speaking cannot
remember which language was spoken to the deceased driver, but thinks
it was Afrikaans and he then translated the
contents of this
statement into English. He conceded that the deceased driver was in
fact Zulu speaking. He cannot remember what
date the statement was
taken but said that it was taken just after the accident, maybe three
days thereafter and that the handwriting
that appears on this exhibit
is his own and that the deceased signed it in his presence.
3.3 The
contents of the statement of the plaintiff’s driver contains
briefly the following facts. He was the driver of the vehicle
BLC679GP belonging to the plaintiff and he was travelling from Durban
to Johannesburg. In the Van Reenen’s pass a truck came from
the
front over to his side of the road while travelling in the left lane.
He pulled the air horn and flashed headlights as a warning,
but the
truck kept coming. He moved into the yellow line but the truck
collided head-on with his vehicle. He was standing still
at the time
of the accident.
3.4 Defendant
thereafter called their only witness, Mr. Sheriff, who testified that
at the time of the accident he was employed as
a driver for defendant
and had 6 years prior experience. He was travelling south bound from
Harrismith to van Reenen’s pass approximately
20km from Harrismith.
There is a small curve to the left, travelling on extreme left,
heading southbound. Another truck approach
from the opposite side in
the same lane and moved over to his side of the road. Sheriff moved
over into the right lane, still on
his side of the road and
simultaneously the unidentified truck did the same moving back to the
same lane Sheriff was travelling in
causing an accident. The first
time he saw the vehicle it was about 150m away. He could not swerve
away to the left since there
were hills, trees and a dam to the left.
After the impact, his truck tilted to the right, left wheels in the
air. Before the accident
he flashed lights and hooted when moving
into the fast lane. By moving into the fast lane he attempted to
avoid the accident, but
seemingly the hooter alerted the other
vehicle and he reacted by moving back into the fast lane. As he just
passed the unidentified
vehicle, with the front of his truck he felt
a bump, it felt like the bull bar had collided with his vehicle.
After the truck hit
his truck on the side he lost control and could
not apply brakes as the truck tilted to the right end he felt he
could no longer
reach the pedals, and had no control of the vehicle
moving to the right in front of oncoming traffic in the opposite
lane. After
the accident, he fell out of the truck and while lying
outside he heard the unidentified driver start his vehicle and leave
the scene
of the accident.
3.5 Exhibit
“C” was also handed in and contains certain admissions regarding
the damage to the vehicle of the defendant as well
as photographs
that were attached thereto. Therein the following is admitted:
3.5.1 That the
plaintiff’s
locus
standi
is admitted;
3.5.2 That
the defendant’s vehicle was examined by J. Mitchell Loss Adjustors
who found damage to the vehicle as reflected on the
photographs 1, 3,
6, 11, 12 and 14. Defendant admits that the photographs represent
damage as seen by them. These admissions do
not constitute the
admission, of the presence of a third vehicle.
3.6 During the extensive
cross-examined by Mr. Myburgh of the witness the following
transpired:
that he could not move
into the yellow line since this distance was approximately 1,2m wide
which was not sufficient to allow the
truck’s width.
he could not stop in the
left lane as was suggested by Mr. Myburgh since the other truck
would have driven head on into him.
he denied that the
slowing down would have lessened the impact, it would have had the
same effect.
he denied not applying
any evasive measures. He was adamant that he evaded the accident by
moving into the fast lane but the unidentified
vehicle after hearing
the hooter, went back to his original lane which was the lane that
defendant’s driver sought to use as
an evasion.
he could not apply
brakes since the angle that the vehicle travelled after impact
prevented him from reaching the brakes.
at the stage that he
moved into the fast lane, he did not see on coming traffic.
[4]
ISSUES
TO BE DECIDED
The only dispute between
the parties is:
Was defendant’s
driver negligent, and if so did his negligence cause the accident.
Secondly, if the
written statement of the driver of the plaintiff’s vehicle,
Johannes Mbatha, may be admitted as evidence.
[5]
LEGAL
PRINCIPLES
5.1 The plaintiff has the
onus to prove that the defendant’s driver was negligent, and it
must be proven on a balance of probabilities.
See
NTSALA
v MUTUAL & FEDERAL INSURANCE CO LTD
1996 (2) SA 184
(T) on 190 E – F:
“
I
am satisfied that the
onus
rests throughout on
the plaintiff to prove negligence on the part of the defendant. Once
the plaintiff proves an occurrence giving
rise to an inference of
negligence on the part of the defendant, the latter must produce
evidence to the contrary: he must tell the
remainder of the story, or
take a risk that judgment be given against him.”
See also
KRUGER
v COETZEE
1966 (2) SA 428
E op 430 E – F where Holmes, JA said:
“
For
the purposes of liability
culpa
arises if –
(a) a
diligens
paterfamilias
in the position of the defendant –
(i) would foresee the reasonable
possibility of this conduct injuring another in his person or
property and causing him patrimonial
loss; and
(ii) would
take reasonable steps to guard against such occurrence.”
6.
IPSA
RES LOQUITUR
6.1 From the evidential
facts of this matter it is clear that this is a classical
ipsa
res loquitur
case. In
WATT
v VAN DER WALT
1947 (2) SA 1216
(W) on 1221 Millin J set out the maxim as follows:
“
....
that a thing tells its own story – not always but sometimes; (2)
but although a thing tells its own story, that is not necessarily
the
whole story. Accordingly (3) when the story would seen to be
relevant ....... to infer liability for some occurrence out of
the
usual, the remainder of the story may displace the inference but (4)
if the remainder of the story does not do so, the inference
remains –
res
ipsa loquitur
.”
There are three
requisites, namely:
6.2.1 that the thing
which does the damage be under the
management
of the defendant
;
6.2.2 that
the accident be such as
does
not ordinarily happen
without
negligence; and
6.2.3 that
the defendant gives
no
acceptable explanation.
See
ARTHUR
v BEZUIDENHOUT & MIENY
1962 (2) SA 566
(AD) at 573 to 576.
6.3 In application of
the maxim it gives rise to an inference, rather than a presumption,
for the court is not necessarily compelled
to draw an inference of
culpa
where the inference arises. The defendant must give evidence to
counter it.
In this regard see
GROENEWALD
v AUTO PROTECTION INSURANCE CO LTD
1965
(1) SA 184
(AD) at 187 F per Rumpff JA said the following:
“
Ten
slotte is dit wenslik om te beklemtoon dat die gebruik van die
uitdrukking
res
ipsa loquitur
,
strenggesproke, alleen dan van pas is wanneer dit nodig is om enkel
en alleen na die betrokke gebeurtenis te kyk sonder die hulp
van
enige ander verduidelikende getuienis. Alleen as die gebeurtenis op
sigself in sy eie lig beskou word, behoort die uitdrukking
gebesig te
word omdat anders die beperkte betekenis daarvan vertroebel mag
word.”
6.4 The inference is
displaced when:
6.4.1 Defendant produces
evidence that shows that the accident may have occurred
without
negligence on his part
.
6.4.2 His
explanation must be
reasonable
.
6.4.3 The
degree of persuasiveness required of the defendant will vary
according to the
probability
or improbability
of his explanation.
See
RANKISSON
& SON v SPRINGFIELD OMNIBUS SERVICES (PTY) LTD
1964 (1) SA 609
(D) at 616.
6.4.5 Defendant’s
evidence is not to be considered in isolation from the rest of his
evidence merely because owing to death or some
other cause, there is
no room for contradiction. See
GROOTFONTEIN
DAIRY v NEL
1945 (2) PH O.15 (AD).
[7]
SUDDEN
EMERGENCY
7.1 The defendant has in
his pleadings indicated that the cause of the accident was owing to
the negligence of another unidentified
vehicle. Alternatively sudden
emergency which would negate any negligence on his part.
7.2 Sudden emergency can
be defined as someone who finds himself in a position of imminent
danger, not of his own doing and cannot
be held guilty of negligence
merely because in that emergency he does not act in the best way to
avoid danger.
7.3 This
doctrine of sudden emergency applies where a person’s conduct is
prima
facie
negligent.
7.4 That
would apply especially in the
res
ipsa loquitur
cases.
If a defendant therefore succeeds in convincing the court that the
accident was caused by sudden emergency and not as a result
of his
negligence, the
ipsa
res loquitur
inference will be rebutted.
7.5 Sudden emergency
however does not apply where:
7.5.1 the emergency has
been created by the negligence of the person who is raising it as a
defence.
7.5.2 The defendant has
had an opportunity for the deliberation of the situation and can make
a conscious decision.
7.5.3 The
Defendant’s conduct was not reasonable.
7.5.4 The
defendant had a warning of the emergency that subsequently arose.
[8] The court must
therefore test the defendant’s evidence regarding the accident, see
NTSALA
AND OTHERS v MUTUAL AND FEDERAL INSURANCE CO LTD
1996 (2) SA 184
(TPD) at 193 J – 194 A.
“
...the
onus is on the plaintiff to show (a) that a reasonably careful and
skilful driver in the position of the driver of the insured
vehicle
would have appreciated the danger at an earlier stage than he did,
and (b) that such a reasonably careful and skilful driver
would at
such earlier stage have been able successfully to avoid the
collision. In other words, that the reality of the situation
was
apparent or reasonably discoverable at a sufficiently early stage to
enable a reasonably skilful driver to avoid the danger and
a possible
collision.”
[9]
SECTION
3(1)
, LAW OF EVIDENCE AMENDED ACT 45 OF 1988
9.1 The statement of the
plaintiff’s driver that has been handed in provisionally, must be
evaluated in the light of
section 3
of the
Law of Evidence Amendment
Act 45 of 1988
which states that any hearsay evidence is
inadmissible. Hearsay evidence is defined in
section 3(4)
of the
said act:
“
...
means evidence, whether oral or in writing, the probative value of
which depends upon the credibility of any person other than
the
person giving such evidence.”
The statement of
Johannes Mbatha is
per
se
hearsay since, Mr. Mbatha has since died and could not be called as a
witness.
9.2 In
terms of
section 3(1)(c)
the court has a discretion to allow such
evidence in the interest of justice and in doing so the court must
evaluate the evidence
in the light of the following:
“
(c) the
court, having regard to-
(i) the nature of the proceedings;
(ii) the
nature of the evidence;
(iii) the purpose for which the
evidence is tendered;
(iv) the probative value of the
evidence;
(v) the reason why the evidence is
not given by the person upon whose credibility the probative value of
such evidence depends;
(vi) any prejudice to a party which
the admission of such evidence might entail; and
(vii) any other factor which should
in the opinion of the court be taken into account,”
9.3
“Hearsay
evidence is evidence of statements made by persons not called as
witnesses which is tendered for the purpose of proving
the truth of
what is contained in the statement.”
Per Watermeyer J in
ESTATE
DE WET v DE WET
1923 CPD 341.
In
HEWAN
v KOURIE N.O. AND ANOTHER
1993
(3) SA 233
T on 239 B – C the following was said:
“
Section
3(1)(c)
requires the Court, in the exercise of its discretion, to
have regard to the
collective
and interrelated effect of all the considerations set out in paras
(i)-(vi)
(my underlining)
and also to 'any other factor which should in the opinion of the
court be taken into account' (para (c) (vii)).
When doing that, the
reliability of the evidence will no doubt play an important role:
para (iv) requires the Court to have regard
to the probative value of
the evidence. It stands to reason that the less reliable the
evidence, the less its probative value will
be.”
See also
SKILYA
PROPERTY INVESTMENTS (PTY) LTD V LLOYDS OF LONDON
2002 (3) SA 765
(TPD).
9.4 The admissibility of
documentary evidence as to the facts is also subject to
section
34(1)(b)
read with
section 35
of Civil Proceedings Evidence Act 25 of
1965. Section 35(1)(b) reads as follows:
“
(1) In
any civil proceedings where direct oral evidence of a fact would be
admissible, any statement made by a person in a document
and tending
to establish that fact shall on production of the original document
be admissible as evidence of that fact, provided-
(a) the person who made the statement
either-
(i) had personal knowledge of the
matters dealt with in the statement; or
(ii) ...
(b) the person who made the statement
is called as a witness in the proceedings unless he is dead or unfit
by reason of his bodily
or mental condition to attend as a
witness...”
In weighing up the
inadmissibility of the statement the guidelines in the section 35
should also be applied, which reads as follows:
“
(1)
In estimating the weight, if any, to be attached to a statement
admissible as evidence under this Part, regard shall be had to
all
the circumstances from which any inference can reasonably be drawn as
to the accuracy or otherwise of the statement, and in particular
to
the question whether or not the statement was made contemporaneously
with the occurrence or existence of the facts stated, and
to the
question whether or not the person who made the statement had any
incentive to conceal or misrepresent facts.”
[10]
APPLICATION
OF THE LEGAL PRINCIPLES
10.1 It would be apt
firstly to consider if the statement of the deceased, Mr. Mbatha be
allowed as evidence in terms of
section 3
of the
Law of Evidence
Amendment Act no. 45 of 1988
read with
section 34(1)(3)
and section
35 of the Civil Procedure Act 25 of 1965. Clearly from the above
legal discussion the court has discretion to allow
a written
statement of a witness that is not able to give evidence as in this
case as a result of his demise.
10.2 Mr. Wolmarans, on
behalf of the defendant contended that the two factors should be
taken into account namely, the reliability
thereof since there are a
few worrying factors, namely the fact that it was not sure what
language was spoken to the witness when
statement was taken, and
there were contradictions therein and lastly the defendant will
definitely be prejudiced thereby in that
this evidence is not being
able to be tested in cross-examination. Mr. Myburgh on the other
hand argued that the court should exercise
his discretion judicially
especially by applying all the factors set out in rule 3(1). He
contended that:
the nature of the
evidence was to record the accident for insurance purposes and could
not be tainted and must have been done in
sincerity, shortly after
the accident.
the only purpose of
tendering at the statement was that the witness was since deceased.
the probative value must
be taken into consideration. No direct inference of negligence was
mentioned in the statement.
there was no prejudice
(although he never elaborated on this).
all other factors
regarding the surrounding evidence must be take into consideration.
It is common cause that
the accident took place on the wrong side of the road giving rise
to a
res
ipsa loquitur
case. The contents of the statement to a certain extent
corroborates the co-driver’s evidence and that of the defendant.
It is my opinion that the facts therein have already been placed on
record by the defence and the plaintiff’s one witness.
Allowing
the statement would not be prejudicial to the defence’s case and
takes the plaintiff’s case no further. The defence
was one of
sudden emergency. Defendant has also admitted that his vehicle was
on the wrong side of the road, a fact that plaintiff
did not have
to prove.
I have taken all the
circumstances into account and am of opinion that the contents of
the statement for the reasons above will
not be prejudicial to the
defendant if admitted as evidence, and is therefore allowed.
The plaintiff has the
onus of proving that the defendant’s driver acted negligently and
in so doing will have to place sufficient
evidence before the court
that the defendant’s defence of sudden emergency is thereby
rebutted.
From the evidence
placed before the court, there can only be one inference and that
is that it is a classic case of
ipsa
res loquitur
.
A head on collision took place on the plaintiff’s side of the
road, and without other evidence this court could without a
doubt
infer negligence on the part of the defendant’s driver and
therefore liability for the accident, since this type of accident
does not ordinarily happen and negligence must then be inferred.
The defendant’s driver should be found negligent if he has
given
no acceptable explanation to counter the inference or if the
plaintiff has succeeded in rebutting the defendant’s explanation.
The only evidence that
the plaintiff has put forward is that the head on collision took
place on the side of the road of his driver.
It is common cause
that neither the evidence of David Sithole, nor contents of the
admitted statement of the deceased driver
of the plaintiff’s
vehicle make any mention of another unidentified vehicle that could
have been the cause of the accident.
Neither was any questions put
to the only witness, David Sithile by Mr. Myburgh if he was perhaps
aware of another vehicle at
the scene of the accident. The
plaintiff could not deny, admit or rebut the evidence lead by the
defendant, namely that its
driver was placed in a situation of a
sudden emergency which was not of his own doing.
Mr. Myburgh on behalf
of the plaintiff admitted that the photos 1,3,6,11,12 & 14
attached to annexure “C” reflected damage
to the defendant’s
vehicle without admitting that it was caused by a third vehicle.
The defendant’s
driver, Mr. Sheriff however testified that he was driving on his
correct side of the road before the accident
and that another
unidentified vehicle approached from the opposite side but in the
same lane he could not swerve out to the
left and could only in
the circumstances swerve into the right lane. Simultaneously
flashing lights and hooting. The unidentified
vehicle thereafter
also swerves back to the right lane. He had almost passed the
vehicle when he felt a bump against his truck
causing him to loose
control of the vehicle since the vehicle tilted to the right and
moved into the oncoming traffic’s lane.
At this stage he had no
control of the vehicle and applying brakes was not possible as a
result of the angle of the truck.
He never saw the unidentified
truck leave the scene of the accident but heard it start up and
depart.
On a question from the
court, the witness indicated that the damage caused by the
unidentified vehicle was reflected by the
photographs 1, 3, 6, 11,
12 & 14. This evidence could not be rebutted by the
plaintiff’s witnesses.
The witness further
testified that the unidentified vehicle was 150m away when it was
first observed, a very short space of
time in which he could act
to try and avoid the accident. The question is would or could a
reasonable man in the same position
as the defendant’s driver
have acted differently and would he have been able to avoid the
accident. In the light thereof
the plaintiff could not prove on a
balance of probabilities negligence on the part of the defendant’s
driver as set out in
his particulars of claim and accordingly in
absence of any other evidence to the contrary the defendant’s
evidence must be
accepted as reasonable and probable.
11. The plaintiff’s
claim is therefore dismissed with costs.
_____________
D. MILTON, AJ
On
behalf of the Plaintiff: Adv. P. Myburgh
Instructed by:
Webbers
BLOEMFONTEIN
On
behalf of the Defendants: Adv. J.W.P. Wolmarans
Instructed by:
E G Cooper & Sons
BLOEMFONTEIN
/em