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[2006] ZAWCHC 31
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Regent Insurance Company t/a Imperial Commercial Insurance v DMJ Transport CC (A57/06) [2006] ZAWCHC 31 (28 July 2006)
IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
Case No
A57/2006
In the
matter between:
REGENT
INSURANCE COMPANY
(TRADING
AS IMPERIAL COMMERCIAL INSURANCE)
Appellant
and
D M J
TRANSPORT CC
Respondent
JUDGMENT: 28 JULY 2006
VAN ZYL
J:
INTRODUCTION
[1] This is an appeal against part of the order granted by our
learned colleague, Moosa J, in an action brought by the respondent,
as plaintiff, against the appellant, as defendant. Moosa J dismissed
an application for leave to appeal. On petition by the appellant,
however, the Supreme Court of Appeal granted it leave to appeal to
this court. Mr T D Potgieter SC appeared for the appellant and
Mr R W
F MacWilliam SC, assisted by Mr H McLachlan, for the respondent. The
court expresses its appreciation to them for their respective
presentations.
[2] The action arose from an accident, on the N2 national highway in
the Eastern Cape, involving a bus which was insured by the appellant
in terms of a written insurance agreement. As a result of the
accident a significant number of people, including the driver and
co-driver,
were killed and a great many injured. The bus was damaged
beyond repair and was towed to East London where it was subjected to
examination
with a view to establishing the cause of the accident.
[3] The respondent subsequently claimed damages from the appellant in
the amount of R890 616,90. The appellant repudiated the claim
on a
number of bases, only two of which remain in issue. These issues
arise from exclusionary clauses in the insurance agreement.
The first
is that the number of passengers in the bus at the time of the
accident exceeded the capacity for which the bus was constructed
or
licensed to carry, alternatively exceeded the number of seats
specified in the schedule to the agreement. The second is that,
at
the time of the accident, the bus was not roadworthy in that the
brake linings of the left rear drive axle were excessively worn.
[4] Prior to the matter going on trial before the court
a quo,
the
parties agreed, in terms of the provisions of Rule 33(4), to the
separation of the merits and
quantum
on the basis that the
trial would proceed on the merits while the
quantum
would, if
required, stand over for later determination. Despite this
arrangement the recorded evidence was voluminous, running into
1949
pages. Much of it, however, has become irrelevant for present
purposes in that the remaining issues, and the evidence pertaining
thereto, are limited.
[5] In his judgment Moosa J accepted that the
onus
rested on
the appellant to prove that the exclusionary clauses were applicable
and that it was hence entitled to repudiate the respondentâs
claim.
On the basis that there was no direct evidence to substantiate the
applicability of such clauses, the appellant would have
to rely on
circumstantial or inferential evidence in seeking to discharge its
burden of proof. More particularly it would have to
rely on expert
opinion as to whether the brake linings in question were damaged
prior to the accident or as a result thereof. Such
opinions could
not, however, take the place of factual findings based on the
probabilities arising from the evidence as a whole.
In this regard
Moosa J warned that inference should be carefully distinguished from
conjecture or speculation.
BACKGROUND
[6] It is common cause that the ill fated bus, described as a Volvo
passenger coach, left Cape Town on 23 December 2000
en route
for
a destination in the Eastern Cape, where the passengers it was
carrying were to spend the festive season. As it proceeded along
the
N2 highway between East London and Umtata, after stopping briefly in
Beaufort West and King Williamâs Town, it arrived at a
steep and
winding section of the highway known as the âKei cuttingsâ, not
far from the Kei River bridge. It is not clear whether
the driver of
the bus attempted to change to a lower gear as he entered the Kei
cuttings, but it would appear that that the bus was
not in gear as it
commenced its descent through the cuttings. As might be expected, it
inevitably built up speed, causing the driver
to lose control of it.
It subsequently broke through the safety barriers before plunging
down an embankment and coming to rest on
its side in a deep ravine.
[7] According to the appellant the driver and co-driver, as also 18
passengers, were killed instantly and a large number of other
passengers were injured, some seriously. Although the exact number of
passengers on the bus was not clear from the evidence, the
appellant
submitted that, on the probabilities, there were well over 70,
perhaps as many as 77, passengers on board. The respondent
pointed
out, however, that the passenger list was incomplete and the
âOfficerâs Accident Reportâ (OAR), compiled by the police
at
the scene of the accident, inaccurate. It was in fact rejected by
Moosa J on the basis that the author or authors thereof did
not
testify. One Inspector Pape testified that the police reconstruction
indicated a total of 54 passengers, including the deceased.
On the
other hand there were 64 passenger seats on the bus and it would
appear that all were taken. There were also a number of infants
and
children who apparently sat on the laps of their parents. Moosa J,
however, held against the appellant on the basis that this
evidence
was unreliable.
[8] In regard to the issue of roadworthiness it was common cause that
the bus had passed a roadworthy test, and had been issued with
a
roadworthy certificate, on 28 October 2000, a few weeks before the
accident. The person or persons responsible for the test and
the
issue of the certificate did not, however, testify. There was hence
no evidence as to the condition of the impugned brake linings
at the
time of the test or at any time prior to the accident. Interestingly
Mr D Magerman, a person described as an examiner of vehicles
for
roadworthiness, testified that a bus with brake linings in the
post-accident condition attributed thereto would not have passed
a
roadworthy test.
[9] Of some significance in evaluating the evidence is the fact that,
during the course of the accident, the bus was involved in
a number
of violent impacts. It appears to have collided with safety barriers
on either side of the road before crashing through
a safety barrier
and plunging along uneven terrain before coming to rest on its side
in the ravine. In the process its undercarriage
was wrecked and the
bus as a whole was irreparably damaged.
[10] It is common cause that, during the salvage operation, the bus
was rolled onto its wheels and winched up the steep embankment
to the
road level, from where it was moved to an arrestor bed approximately
half a kilometre away. There certain work, concerning
which there was
no evidence, was done on it before it was towed a distance of some 71
kilometres to East London. On arrival it was
placed on stop blocks
for inspection. A few days later Mr R Supra, an insurance assessor,
who became the appellantâs primary witness,
inspected it there. It
was also inspected by Mr C R Boshoff, a mechanical engineer in the
employ of the police, with a view to determining
whether criminal
proceedings should be instituted. A noteworthy aspect of Mr Supraâs
evidence was that the overall condition of
the bus prior to the
accident was good, while five of the six braking systems of the bus
were in a good condition.
[11] It must be noted that none of the other experts physically
inspected the bus after the accident. Their evidence was, to a large
extent, theoretical, being based on photographs and other
documentation relating to the accident. Much of their testimony was
inferential,
if not hypothetical, conjectural or even speculative. In
considering this evidence Moosa J pointed out that the appellant had
sought
to establish its case on the inferential reasoning of experts
based on the post-collision condition of the impugned parts. None of
them, however, had examined the vehicle at the scene of the accident
and none could testify as to the condition of the bus, or its
impugned parts, prior thereto. There was, furthermore, an indication
that the bus had been serviced by Volvo dealers immediately
prior to
its fateful journey and that the brakes had been serviced and tested
for roadworthiness by Airtech. No person involved in
these
activities, however, had been called upon to testify.
[12] In his evaluation of the specific witnesses Moosa J pointed out
that the experts had clearly been partial to the party which
had
called them to testify. They were, generally speaking, extremely
reluctant to make concessions. With the exception of Mr Supra,
for
the appellant, and Mr Malusi, for the respondent, they had to be
âproddedâ into conceding even the obvious. This led the
learned
judge to find that the probability could not be excluded that the
damage to the break linings could have been caused during
the
collision or at the time when the bus was removed from its resting
place and towed to East London. It might even have occurred
when Mr
Malusi was prising the lining loose from the drum.
[13] Against this background I propose to deal briefly with the
relevant legal principles and then with the issues relating to the
number of passengers on the bus and whether or not the post-accident
condition of the impugned brake linings rendered the bus unroadworthy
at the time of the accident.
THE RELEVANT LEGAL PRINCIPLES
[14] An agreement of insurance is no different from any other
contract and the ordinary rules of contractual interpretation apply
to it. See
Fedgen Insurance Ltd v Leyds
1995 (3) SA 33
(A) at
38A-E (
per
Smalberger JA):
The ordinary rules relating to the interpretation of contracts must
be applied in construing a policy of insurance. A court must
therefore endeavour to ascertain the intention of the parties. Such
intention is, in the first instance, to be gathered from the
language
used which, if clear, must be given effect to. This involves giving
the words used their plain, ordinary and popular meaning
unless the
context indicates otherwise (
Scottish Union & National
Insurance Co Ltd v Native Recruiting Corporation Ltd
1934 AD 458
at 464-5). Any provision which purports to place a limitation upon a
clearly expressed obligation to indemnify must be restrictively
interpreted (
Auto Protection Insurance Co Ltd v Hammer-Strudwick
1964(1) SA 349 (A) at 354C-D); for it is the insurerâs duty to
make clear what particular risks it wishes to exclude (
French
Hairdressing Saloons Ltd v National Employers Mutual General
Insurance Association Ltd
1931 AD 60
at 65;
Auto Protection
Insurance Co Ltd v Hammer-Strudwick
(
supra
at 354D-E). A
policy normally evidences the contract and an insuredâs obligation,
and the extent to which an insurerâs liability
is limited, must be
plainly spelt out. In the event of a real ambiguity the
contra
proferentem
rule, which requires a written document to be
construed against the person who drew it up, would operate against
Fedgen as drafter
of the policy (
Kliptown Clothing Industries
(Pty) Ltd v Marine and Trade Insurance Co of SA Ltd
1961 (1) SA
103
(A) at 108C).
[15] On the application of this rule reference may be made to
Aegis
Assuransie Bpk v Van der Merwe
2001 (1) SA 1274
(T) at
1283I-1284D. There Kirk-Cohen J cited the above-quoted passage from
the
Fedgen
case with approval, adding that the relevant
exclusionary clause should be read subject to the dominant provision
contained in the
indemnity clause. This approach may, in my
respectful view, justifiably be described as âconsumer friendlyâ.
See also
Van Zyl NO v Kiln Non-Marine Syndicate No 510 of Lloyds
of London
2003 (2) SA 440
(SCA) at 445H-446E.
[16] It is generally accepted that exclusionary clauses in an
insurance policy fall to be restrictively interpreted. A court will
hence incline to upholding rather than nullifying a policy. See
Kliptown Clothing Industries (Pty) Ltd v Marine and Trade
Insurance Co of S A Ltd
1961 (1) SA 103
(A) at 106G-107D;
Pereira
v Marine and Trade Insurance Co Ltd
1975 (4) SA 745
(A) at
752G-753A. See also
LAWSA
12 (1
st
reissue 2002) par
233 at 177-178.
[17] When seeking to rely on a defence arising from provisions
contained in an exclusionary clause, as the appellant seeks to do
in
the present matter, a defendant insurance company must prove, on a
balance of probabilities, all the facts necessary to sustain
such
defence. When reliance is placed on an inference arising from
circumstantial evidence, care must be taken not to base such
inference
on conjecture or speculation, as pointed out by Moosa J in
his consideration of the evidence in the present matter (see par [5]
above).
In
S v Essack and Another
1974 (1) SA 1
(A) at 16D the
court quoted with approval the following observations of Lord Wright
in
Caswell v Powell Duffryn Associated Collieries Ltd
[1939] 3
All ER 722
at 733:
Inference must be carefully distinguished from conjecture or
speculation. There can be no inference unless there are objective
facts
from which to infer the other facts which it is sought to
establish. In some cases the other facts can be inferred with as much
practical
certainty as if they had been actually observed. In other
cases the inference does not go beyond reasonable probability. But if
there
are no positive proved facts from which the inference can be
made, the method of inference fails and what is left is mere
speculation
or conjecture.
See also
S v Mtsweni
1985 (1) SA 590
(A) at 593E-G.
[18] As was stated authoritatively in
Rex v Blom
1939 AD 188
at 202-203, the inference sought to be drawn must be consistent with
all the proved facts, failing which it cannot be made. In addition,
at least in criminal matters, the proved facts must exclude every
other reasonable inference save the one sought to be drawn. If
not,
there must be doubt whether the inference sought to be drawn is
correct. On the other hand in civil matters, such as the present,
the
court must balance the probabilities and select the most natural,
obvious or plausible conclusion, even though it may not be
the only
reasonable one. See
Govan v Skidmore
1952 (1) SA 732
(N) at
734C-G;
A A Onderlinge Assuransie-Assosiasie Bpk v De Beer
1982
(2) SA 603
(A) at 614H-615B. See also
Skilya Property Investments
(Pty) Ltd v Lloyds of London Underwriting Syndicate Nos 960, 48, 1183
and 2183
2002 (3) SA 765
(T) at 781A-D.
[19] When use is made of expert evidence, it must be remembered that
an expert, however impressive his expertise and experience may
be,
cannot, in expressing however strong an opinion, elevate conjecture
or speculation to justifiable inference, unless it is borne
out by
the objectively ascertainable facts. As Ramsbottom J said in
Rex v
Jacobs
1940 TPD 142
at 146, expert witnesses âare not the
judges of fact in relation to which they express an opinionâ. See
also
Holtzhauzen v Roodt
1997 (4) SA 766
(W) at 771H-773C;
Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another
2001 (3) SA 1188
(SCA) par [36]-[40] at 1200I-1201H.
[20] When expert eyewitnesses are available, their direct evidence
would generally be of more value than the opinions of experts
based
on circumstantial evidence. See
Abdo NO v Senator Insurance Co Ltd
and Another
1983 (4) SA 721
(E) at 725E-726F. Thus when the
roadworthiness of a vehicle prior to a collision is in issue, one
would expect a witness or witnesses
to testify as to the mechanical
condition of such vehicle in the relevant preceding period. See
Stacey v Kent
1992 (4) SA 495
(C) at 497D-F;
Van Eck v
Santam Insurance Co Ltd
1996 (4) SA 1226
(C) at 1229H-1230B.
THE NUMBER OF PASSENGERS ON THE BUS
[21] The relevant exclusionary clause appears in memorandum 3 of the
insurance agreement and reads thus:
We shall not be liable for any claim for loss, damage or liability if
the number of passengers in the insured vehicle exceeds the
capacity
for which such vehicle is constructed or licensed to carry and/or
exceeds the number of seats specified in the schedule.
[22] It is common cause that the bus was constructed with 64 seats
but was registered (hence licensed) for only 60 passengers, while
the
number of seats specified in the relevant schedule was 63. Inasmuch
as these capacities appear to be expressed as alternatives,
there
would be a breach of this clause if the bus were, at the time of the
accident, carrying more than 60 persons, including the
driver or
drivers.
[23] In his argument on behalf of the respondent Mr MacWilliam
pointed out that the cited exclusionary clause was the subject of
an
extremely late application for amendment brought by the appellant
after the close of the case and during the course of argument
before
Moosa J. The learned judge allowed the amendment on the basis that
the issue relating to the number of passengers on the bus
directly
prior to the accident had been in existence from the outset, so that
the respondent would not be prejudiced should the amendment
be
granted. Furthermore regulation 233, read with regulation 231, of the
National Road Traffic Regulations
, 2000, which prescribes a
formula for determining how many passengers may lawfully board a bus,
had been in issue during the trial.
The evidence was in fact, Mr
MacWilliam submitted, directed at establishing the number of
passengers as calculated in accordance
with the said regulation and
not at determining âthe physical number of personsâ on the bus at
the relevant time.
[24] On this basis Mr MacWilliam argued that the appellant was
entitled to refer only to the narrow issues canvassed at the trial
for purposes of establishing whether it had proved the facts required
to bring the exclusionary clause into effect. The interpretation
of
such clause and the capacity of the bus were not issues raised in the
pleadings or in the evidence presented by the appellant.
[25] The appellant expressed the view (see par [7] above) that there
were more than 70, perhaps as many as 77, passengers on the
bus at
the time of the accident. If it were accepted that all 64 seats were
occupied, the presence of any additional passengers,
be they standing
or sitting on the laps of others, would constitute a breach of the
exclusionary clause. Mr Potgieter argued that,
on the undisputed
evidence of Ms L Mahlatshana, one of the surviving passengers on the
bus, the numbers appearing on the tickets
issued to passengers, prior
to the departure of the bus from Cape Town, exceeded 70. Both she and
another passenger, Mr T Ndabisukile,
testified that there were no
empty seats, while there were a few babies and some ten children
sitting on the laps of their mothers.
[26] Mr Potgieter placed strong reliance on Inspector Pape, whom he
described as an excellent witness whose testimony was logical,
clear,
factual and reasoned. He had arrived at the scene of the accident
shortly after its occurrence and had instructed a colleague
or
colleagues to take down the names of passengers and to keep members
of the public away from the scene. This had given rise to
a total of
75 passengers (20 dead, 15 seriously injured and 40 slightly
injured), as reflected in the summary contained in the Officerâs
Accident Report (âOARâ). While conceding that this was not
conclusive proof of the exact number of passengers on the bus at the
time, Mr Potgieter submitted that it was strong support for a finding
that there were, on the probabilities, more than 60 passengers
on
board.
[27] This figure, he argued, should not be confused with the count of
54 passengers appearing in the OAR and which related to the
names of
22 identified passengers, 19 deceased and 16 persons (including 3 who
appeared in the OAR) from whom statements were obtained.
Such
information was incomplete in that the police did not obtain a
complete list of the passengers on the bus, while uninjured
passengers
would not have been counted. Inasmuch as the respondent
failed to call any witness to gainsay the appellantâs witnesses on
this
score, the court
a quo
should have held that there were
more than 60 passengers on the bus at the relevant time.
[28] In his judgment Moosa J dealt with the carrying capacity of the
bus in some detail, outlining the evidence and weighing up its
merits
and demerits. He rejected the OAR form as inadmissible in that
changes had been made to it and the person who had completed
or
amended it had not been called to testify. He also had difficulty
with the computation giving rise to a figure of 54 persons on
the bus
at the time of the accident, since no complete list of persons who
boarded in Cape Town, or who were on the bus at the time
of the
accident, was ever made available. All in all the evidence relating
to the number of adults, children and babies on the bus
when the
accident occurred was unreliable and insufficient for purposes of
discharging the relevant burden of proof resting on the
appellant.
[29] In this regard the learned judge held that the testimony of Ms
Mahlatshana and Mr Ndabisukile (par [25] above) was âvague
and
unconvincingâ, being based on a reconstruction of events dating
back to more than three years previously. Without information
as to
the number of children under 3 years of age, or between the ages of 3
and 6 and 6 and 13, the formula set forth in Regulation
231 could not
apply. This led Moosa J to hold that the appellant had failed, on a
balance of probabilities, to prove that, at the
time of the accident,
the number of passengers on the bus exceeded the capacity for which
it was constructed or licensed to carry,
or exceeded the number of
seats specified in the schedule. In the circumstances the respondent
was not required to tender evidence
in rebuttal.
[30] In regard to the numbering appearing on the tickets, as
testified by Ms Mahlatshana (par [25] above), Mr MacWilliam argued
that,
without evidence as to the purpose and effect of such
numbering, it was meaningless and irrelevant. In any event there was
no evidence
as to how many numbered tickets had been issued for that
particular bus and what such numbers indicated. One may add that
there was
no indication whether or not tickets with consecutive
numbers, beginning from one and continuing to 70 or more, were issued
for the
bus in question. And if the tickets had been issued by the
driver or co-driver, both had died in the accident and no better
evidence
could have been adduced by the respondent if it had been
called upon to rebut the appellantâs evidence. See
Galante v
Dickinson
1950 (2) SA 460
(A) at 465;
Marine & Trade
Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 39A-40C
and 49F-H;
Titus v Shield Insurance Co Ltd
1980 (3) SA 119
(A)
at 133D-134B.
[31] On consideration of the evidence, the arguments and the reasons
given by Moosa J for his findings relating to the issue in question,
I am in respectful agreement with the learned trial judge that the
evidence tendered by the appellant was quite insufficient for
purposes of discharging the
onus
resting on it. Although the
honesty and credibility of Ms Mahlatshana and Mr Ndabisukile were not
brought into question, their recollection
of events they had
experienced some three years previously was, quite understandably,
sketchy and superficial. At best for the appellant
they remembered
that, at the time the bus departed from Langa, all the seats were
taken and that there were a number of children
and babies on board.
They were clearly unable, however, to give any detail regarding
whether all the seats were physically occupied
by passengers. Nor
were they able to assess the number of adults, children and babies.
Even less could they be expected to estimate
the ages of the children
or to remember how many of the children, if any, occupied, or shared,
seats and how many were sitting on
the laps of adults. Moreover,
although they testified that no further passengers came on board
after the bus left Cape Town, they
did not testify as to whether or
not any passengers left the bus in Beaufort West or King Williamâs
Town. Their evidence was, therefore,
of little or no assistance in
establishing whether or not, at the time of the accident, every seat
on the bus was occupied by a passenger.
[32] In regard to the numbering appearing on tickets issued to
passengers, I agree with Mr MacWilliam that the absence of evidence
explaining the meaning and significance, if any, of such numbering,
rendered it meaningless and irrelevant. It could not be regarded
as
prima facie
proof that there were in excess of 70 passengers
on board at the time of the accident.
[33] As for the OAR report Moosa J, in my respectful view, quite
correctly found it to be inadmissible in the absence of any evidence
relating to its completion and the amendments contained therein. In
any event the presence of curious bystanders milling around at
the
scene of the accident at the time the police were attempting to count
the number of deceased and injured, must necessarily have
impeded any
accurate assessment. However impressive Inspector Pape might have
been as a witness, he would clearly have been unable
to assist in
determining the number of passengers on the bus with any degree of
accuracy. It may be accepted that the police were
doing all in their
power to keep members of the public away. It is highly probable,
however, that the survivors who were able to
leave the scene of the
accident would have done so post haste, particularly if they were
concerned about whether or not their babies
or children had sustained
injuries or, worse still, had died in the accident. To distinguish
survivors from bystanders under such
circumstances would probably
have been a difficult, if not an impossible, task.
[34] In view of these considerations I am in respectful agreement
with Moosa J that the appellantâs reliance on the exclusionary
clause relating to an excessive number of passengers on board the bus
at the time of the accident should be rejected.
THE CONDITION OF THE IMPUGNED BRAKE LININGS
[35] The relevant exclusionary clause relating to the roadworthiness
of the bus appears in paragraph 1(i) of the insurance agreement
and
reads thus:
The company shall not be liable for loss or liability:
where it is found that at the time of any incident giving rise to a
claim the insured vehicle was not in a roadworthy condition
or was
being used in contravention of any legislation relating to such use.
[36] The relevant legislation relates to section 42(1) of the
National Road Traffic Act
93 of 1996 (âthe Actâ), which
provides that â[n]o person shall operate a motor vehicle which is
not in a roadworthy condition
on a public roadâ. Regulation 140(1)
under the Act determines that the test for roadworthiness should be
in accordance with the
provisions of SABS 047, a document emanating
from the South African Bureau of Standards and setting down minimum
standards with which
vehicles should comply in order to qualify as
roadworthy.
[37] It is common cause that, on examination after the accident, the
brake linings in question were found to be âworn down to the
brake
shoe, with certain sections missingâ, while âthe upper lining was
worn down to the rivetâ. Had this condition been in
existence
immediately prior to the accident, it would, according to the
undisputed evidence of Mr Magerman, have rendered the bus
unroadworthy.
[38] The difficulty with this proposition is that, as mentioned
previously (par [8] above), the bus had been issued with a roadworthy
certificate shortly before the accident. It is true that Mr Magerman
criticised the certificate as lacking in relevant information,
while
the brake force reading appearing from the relevant test sheet was in
fact inadequate for the bus on the date the roadworthy
test was done.
Moosa J, however, had difficulty with this evidence in that the
person or persons who had conducted the test were
not called to
testify. Mr Magerman could not verify the correctness of the readings
and was unable to say how the reading would have
been affected by the
fact that the bus was fitted with an anti-braking system (ABS).
[39] In view of the important concessions made by Mr Supra in the
course of his evidence, Mr Potgieter, in his argument for the
appellant,
did not rely on his testimony to the same degree as he
relied on that of Mr Grobbelaar and Mr Boshoff. Their opinion was,
generally
speaking, that brake linings do not normally wear down to
the extent the impugned brake linings did as a result of an accident
such
as that in which the bus was involved. No brake marks were found
at the scene of the accident and they did not believe that the damage
could have been done in the course of the bus being towed to East
London, as confirmed by Mr Delportâs testimony.
[40] Mr Potgieter argued that the opinions of these witnesses had
been well founded, despite their having been subjected to intensive
cross-examination and despite the contradictory evidence of Mr Heese
and Mr Malusi. Mr Heese had in fact come up with a theory which
conflicted with that propounded in his summary of expert evidence,
while Mr Malusiâs evidence relating to the difficulty he had
experienced in removing the brake drum took the matter no further. Mr
Potgieter hence submitted that Moosa J had erred in rejecting
the
appellantâs aforesaid expert evidence and in holding that the
damage had probably been caused during the collision or at the
time
the bus was towed to East London. At the very least the learned judge
should have held that such evidence had placed an
onus
of
rebuttal on the respondent, which
onus
it had failed to
discharge.
[41] In considering the expert evidence relating to the worn brake
linings, Moosa J set great store by the fact that there had been
no
evidence as to their condition immediately prior to the accident. Mr
Supra had fairly conceded that the overall condition of the
bus prior
to the accident, including five of its six braking systems, had been
good. On the other hand, although the impugned brake
linings were
found to be glazed and burnt, while the brake drums were discoloured
and displayed heat cracks as a result of excessive
overheating, he
opined that the brake linings might possibly have been worn for some
time even before the accident.
[42] This opinion, Moosa J held, did not accord with what appeared
from photograph 57, one of the exhibits which featured prominently
in
the expert evidence. From this it was clear that a portion of the
steel brake shoe had broken off, leaving a âV-shapeâ and
a âshiny
edgeâ exposed. The inevitable conclusion was that there had not
only been âwearâ on the impugned linings and brake
shoe, but also
âtearâ. Significantly there was no measurement of the thickness
of any of the four linings (two on the top and
two on the bottom) of
the axle in question, and there was no indication that, apart from
the impugned lining, any of the remaining
three linings had been worn
before or after the accident. Furthermore none of the remaining brake
systems exhibited any damage similar
to that sustained by the
defective brake system.
[43] Moosa J pointed out further that, despite his reluctance to make
concessions, Mr Boshoff had been driven to concede that, at
the
highest, the braking capability of the bus was âsuspiciousâ.
Similarly Mr Grobbelaar could not avoid conceding that the damage
aforesaid could have been caused by some or other external force,
such as a hammer and lever or a crowbar, provided the slack adjuster
had been released at the time. His theory on the cause of the damage
was, Moosa J held, unacceptable in that it was based on the
colouring
of the damaged brake drum as it appeared from the photographs he had
examined. Not only did he grudgingly concede that
the photographs
could be misleading inasmuch as their colouring would depend on light
exposure and the angle from which the photograph
had been taken, but
it contradicted Mr Supraâs evidence that the brake drums had in
fact all been discoloured at the time he had
done his physical
inspection of the bus.
[44] As Moosa J observed, Mr Delport did in fact testify that, when
the bus was towed, the slack adjuster had been released. He did
not,
however, check whether or not the wheels were able to turn. In this
regard Mr Malusiâs evidence was of decisive importance.
His
undisputed testimony was that, when the brake drum was removed at the
premises of Border Towing in East London, the brake linings
in
question had been hard up against the brake drum and that he and an
assistant had to use a hammer and crowbar to prise it loose.
According to him, if the bus had been towed with the brake linings in
the position he had found them, heat would necessarily have
been
generated, causing excessive wear on the linings.
[45] By the time Mr Heese commenced his expert evidence on behalf of
the respondent, he had had the benefit of hearing, or taking
cognisance of, the evidence tendered by Messrs Supra, Boshoff and
Grobbelaar. Although Moosa J held that he could place little, if
any,
reliance on the theories advanced by any of the expert witnesses
regarding the cause of the damage to the impugned brake linings,
Mr
Heeseâs evidence, in my respectful view, provided a relatively
persuasive, though not necessarily compelling, explanation of
how
such damage might have occurred.
[46] His main theory, as I understand it, was that the primary
dynamic braking system of the bus was not functioning immediately
before the accident because the bus was not in gear. This brought the
secondary function braking system into operation. In order
to fulfil
the function of the primary braking system, it had to be utilised to
its maximum. In the process it generated excessive
heat in the brake
drums and caused the impugned brake linings to be subjected to
abnormal wear. The difficulty with this theory was
that it did not
explain why the brake linings of the remaining five braking systems
did not demonstrate similar wear.
[47] Mr Heeseâs alternative theory, which did not appear in his
expert summary, attempted to address this difficulty. It was
stimulated
by the âV-shapeâ damage and âshiny edgeâ appearing
from photograph 57 aforesaid, an aspect which was not dealt with by
any
of the respondentâs experts in their expert summaries.
According to Mr Heese this damage could be attributed to some or
other object
which had penetrated the brake drum. It could also have
been caused by the series of violent impacts to which the bus had
been subjected
at the time of the accident.
[48] However persuasive this alternative theory might be, it borders
on the conjectural or speculative and cannot be regarded as
sufficient for purposes of definitively determining the cause of the
damage to the impugned brake linings. This does not, however,
mean
that the evidence tendered by the appellantâs experts should be
accepted. In this regard I am inclined to agree with Mr MacWilliam,
in his argument on behalf of the respondent, that the paucity of
evidence, which prompted the appellant to abandon a number of its
defences, casts a pall over the substance, if not the credibility, of
its evidence relating to the remaining defences. It certainly
did not
render the evidence regarding the damage to the brake linings any
more compelling than that which had caused it to abandon
the said
defences. Accordingly I am in respectful agreement with Moosa Jâs
finding that little if any reliance could be placed
on the expert
evidence advanced by either of the parties.
[49] It follows that Mr Potgieterâs submission, that the nature of
the appellantâs evidence was sufficient for purposes of placing
an
onus
of rebuttal on the respondent, must be rejected. In view
of the lack of acceptable evidence it is, in my view, extremely
difficult,
if not impossible, to establish with any degree of
precision what the cause of the damage was. The appellant simply
failed to present
a case calling for a response from the respondent.
[50] As for the probabilities, there is merit in the proposition that
the bus was not in gear as it descended through the Kei cuttings.
In
all probability the driver attempted to change into a lower gear at
the commencement of the cuttings but was unable to do so because
the
bus gained momentum before he could do so. He inevitably lost control
and the rest is history. In the absence of acceptable evidence
to the
contrary, it cannot be discounted, as held by Moosa J, that the
damage to the impugned brake linings was attributable to one
or more
of several events, namely: (a) the violent impacts sustained by the
bus during the accident; (b) the removal and towing of
the bus from
the scene of the accident to East London; and (c) the procedure of
separating the linings from the brake drum by Mr
Malusi at the
premises in East London. The learned trial judge was not, however,
required to decide which of these events should,
on the
probabilities, be accepted as the primary, or only, cause of such
damage.
[51] It follows that I must respectfully associate myself with the
finding of Moosa J that the defence based on the exclusionary
clause
relating to the roadworthiness of the bus at the time of the accident
must be rejected. The appellant clearly failed to prove
that the
impugned brake linings were not in a roadworthy condition immediately
prior to the accident.
CONCLUSION
[52] In the event the appeal must be dismissed with costs, including
the costs of two counsel.
D H VAN ZYL
Judge of the High Court
I agree.
A M MOTALA
Judge of the High Court
I agree.
B WAGLAY
Judge of the High Court