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1990
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[1990] ZASCA 65
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Madyosi and Another v SA Eagle Insurance Co. Ltd. (604/88) [1990] ZASCA 65; 1990 (3) SA 442 (AD); [1990] 2 All SA 408 (A) (1 June 1990)
Case No 604/88 /wlb
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
LUCREZIA TANDOKAZI MADYOSI First Appellant
(1st Plaintiff)
EUNICE NOMSAKAZO BISHO Second Appellant
(2nd Plaintiff)
and
S A EAGLE INSURANCE CO LTD Respondent
CORAM: HOEXTER, E M GROSSKOPF, MILNE JJA et
NICHOLAS, NIENABER AJJA
DATE OF HEARING: 22 May 1990
DATE OF DELIVERY: 1 June 1990
JUDGMENT
MILNE JA:/...
-1-
MILNE JA:
The appellants were passengers in a motor bus when it left the road and
overturned. They suffered injuries in this accident and sued
the respondent for
damages as the insurer of the bus in terms of s 22(1)(a)(i) of the Compulsory
Motor Vehicle Insurance Act, No
56 of 1972. The trial court held that the
appellants had not established that the driver of the bus was negligent in any
of the respects
alleged and dismissed the action with costs, but granted leave
to appeal to this court. The judgment is reported as
Madyosi & Ano v S A
Eagle Insurance Co Ltd
1989(3) SA 178 (C) and it is accordingly unnecessary
to set out the facts in detail.
The evidence establishes that the bus lef t the road and overturned after the
left front tyre burst. The
-2-
main thrust of the appellant's argument was that the
bursting of the tyre
was a "neutral fact" and that the
prima
facie
case of
negligence which arose from proof of the fact
that the bus had left the road
and overturned therefore
remained undisturbed. This was the line of
reasoning
elaborated in
Star Motors v Swart
1968(3) SA 60 (T).
In
that case the cause of the accident was the sudden locking
of the brake
on the right front wheel of the defendant's
car. It was held that the
existence of a defective brake
was not by itself inconsistent with negligence
and, at
p 62C-D, that
"In order to neutralise the inference of negligence, the defendant had to go
further and prove that the defect in the brake was latent
(i.e. that it was
unknown to the defendant and that it was not discoverable by the exercise of
ordinary skill and care). Then he
would have presented a proved explanation
(inconsistent with negligence on his part) as likely as the supposition arising
from the
inference in favour of the
plaintiff."
-3-
For the respondent it was submitted, relying on
Jithoo v Booth
1971(4)
SA 560 (N), that a failure on the part of the driver to inspect and maintain the
tyres had not been pleaded and was accordingly
not an issue in the trial. This
point was never raised in the
Star Motors
case
supra
and, indeed,
it seems that it could not have been successfully argued since the whole issue
of failure to maintain the brakes had
been fully canvassed at the trial.
In our law the maxim
res ipsa loquitur
has no
bearing on the incidence of proof on the pleadings, and it
is invoked where the only known facts, relating to
negligence, are those
of the occurrence itself.
"At the end of the case the court has to decide whether, on all of the evidence
and the probabilities and the inferences the plaintiff
has discharged the
onus
of proof on the pleadings on a preponderance of probabilities, just
as the court would do in any other case concerning negligence.
In this final
analysis, the court does not
adopt
-4-
the piecemeal approach of (a), first drawing the inference of negligence from
the occurrence itself, and regarding this as a
prima facie
case; and then
(b), deciding whether this has been rebutted by the defendant's
explanation."
Sardi & Others v Standard &
General Insurance Co Ltd
1977(3)
SA 776 (A) at D-E and G-H.
See also
Arthur v Bezuidenhout & Mieny
1962(2)
SA
566 (A) at 574B where Ogilvie-Thompson JA said:
"There is, in my opinion, only one enquiry, namely: has the plaintiff having
regard to all the evidence in the case discharged the
onus
of proving, on
a balance of probabilities, the negligence he has averred against the
defendant?".
The negligence which the appellants
averréd against the respondent was only against the driver and not
against the owner of
the bus and was particularized as follows:
"5.1 He drove motor vehicle XN 1427 at an
-5-
excessive speed in the circumstances;
5.2 He failed to keep motor vehicle XN 1427
under proper control;
5.3 He failed to avoid the collision when, by
the exercise of reasonable
care, he could
and should have done so."
It was somewhat tentatively suggested that para 5.2 was
capable of
embracing an allegation that the driver had
failed to take reasonable steps
to ensure that the tyres of
the bus were in a safe condition. I do not think
this is
correct. The words in their ordinary meaning relate to the
manner
of driving the vehicle and not to its maintenance
nor, in the circumstances
of this case, was it the intention,
of the pleader to convey anything else.
The respondent's
counsel consistently adopted the attitude both at the
pleading stage and
during the trial that the issue of
failure to maintain was not part of the appellant's case as
pleaded
and the appellants' counsel did not contend to the
contrary. What he did submit at one stage was that the
-6-
question of the driver's knowledge as to the state of his tyres was relevant
to the question of whether he drove at an excessive speed.
The case must therefore be decided on the basis that the appellants did not
allege a failure to maintain the tyres of the bus either
against the driver or
the owner.
I have some doubt whether the maxim
res ipsa loquitur
does apply here.
It is not the case that the only known facts relating to negligence consist of
the occurrence itself. It is a known
fact that the bus left the road and
overturned because the tyre burst. The bursting of the tyre is not a neutral
fact in relation
to the negligence pleaded by the appellants. It explains why
the bus left the road and overturned. True, it is not by itself inconsistent
with a negligent failure to maintain the tyres but no such
-7-
negligence was pleaded. Had the only evidence relating to negligence been
that the bus left the road and overturned that would, in
the absence of anything
else, have justified an inference that the driver failed to keep the bus under
proper control. The fact that
the tyre burst however prevents that inference
being drawn from the mere fact of the occurrence. Some reliance was sought to be
placed.on
various
dicta
in
Berkway v South Wales Transport Co Ltd
[1950] 1 All E.R. 392.
One must bear in mind, however, that in English law
the maxim is regarded as "as a rule of evidence affecting
onus
." See Lord
Normand at p 399
in fin
. That is not the position in our law and one must
accordingly approach the English decisions dealing with this subject with some
caution. Quite apart from that, however, the point now under consideration
simply did not arise in the
Berkway
case because the negligence alleged
against the defendant included "want of supervision" of the tyres of the
-8-the omnibus. See p 394C.
Where the maxim does apply it alters neither the
incidence of the
onus
nor the rules of pleading. If there
is no
onus
on the defendant to show an absence of negligence
where
res ipsa loquitur
does apply I have difficulty in
seeing how it can be
contended that he must, in
circumstances like those in the present case,
plead not only
the fact of the tyre bursting but also the facts to show
that this was not due to negligence on his part. The
appellants' counsel
referred to the fact that it appears to
be a well-established practice for
the defendant to plead
expressly a mechanical failure such as failure of
brakes,
burst tyres etc. The reason for this practice is not that
the
defendant bears anything approaching an
onus
. Even if,
strictly speaking, it is not necessary for a party to
amplify a denial he
will frequently be well advised to do so
-9-
to avoid his opponent being, taken by surprise and to avoid being muleted in
orders for costs consequent upon that situation arising.
See
Mordt N O v
Union Government
1938 TPD 589
at 597. Rule 18(4) of the Uniform Rules of
Court furthermore, requires every pleading to contain a clear and concise
statement of
the material facts upon which (in the case of a defendant) he
relies for his defence. It does not follow from this that he must then
plead a
want of negligence in a particular that has not been alleged.
It follows in my view that the learned judge
a quo
correctly
approached the question of
onus
and correctly assessed the issues before
him on the pleadings.
It was submitted, in the alternative, that the driver was negligent in not
keeping the bus on the tarred surface after the tyre had
burst. He managed to do
so for a
-10-
distance of some 164m but when the bus had slowed down virtually to a
standstill it left the tar and overturned. The driver attributed
this to the
fact that the passengers rushed in a panic towards the door of the bus which was
. situated at the front of the bus at
the left hand side. The learned judge
a
quo
rejected this explanation as improbable because he f ound that the bus
was carrying a few more passengers than its certificate permitted
and thus the
aisle would have been blocked with passengers. It does not necessarily follow
from the fact that the aisle was blocked
with passengers that this explanation
must be rejected. Those passengers may themselves have formed part of the group
that rushed
in a panic towards the door of the bus. There was, in any event, no
expert evidence on the effect of the bus continuing to move forward
with the
left front wheel acting, as it were, as a brake and the trial court came to the
conclusion that the reason for the bus having
overturned
-11-
where it did "remains a puzzle". I agree. The evidence
does not justify a
finding that a reasonably skilful driver
could have prevented the bus from
overturning after the tyre
had burst. Nor does it justify the conclusion (advanced as a
last ditch stand on behalf of the appellants) that as the
bus was coming to a stop the driver deliberately
drove.it
off the tarmac.
The appeal is accordingly dismissed with costs.
A J
MILNE
Judge of Appeal
HOEXTER JA ]
NIENABER AJA ]