Arthur v Bezuidenhout and Mieny

• Jurisdiction: South Africa
• Judge: Hoexter JA, Van Blerk JA, Ogilvie Thompson JA, Van Winsen JA and Williamson JA
• Judgment Date: 29 March 1962
• Citation: 1962 (2) SA 566 (A)
• Court: Appellate Division

A Ogilvie Thompson, J.A.:

Appellant appeals against the decision of the Transvaal Provincial Division awarding respondents agreed damages in the sum of R3,604.42 plus costs. The sole issue is that of liability. For convenience, I shall refer to appellant as 'defendant' and to respondents as 'plaintiffs'.

B Plaintiffs' claim arose out of a collision which occurred at approximately 10.30 p.m. on 7th October, 1959, on the Devon-Lesley road between two motor vehicles, respectively owned by the parties, travelling in opposite directions. Plaintiffs' vehicle, a ten-ton truck C driven by one Stae (alias Phineas), was proceeding in the direction of Devon - that is to say, from east to west - while defendant's vehicle, a threeton truck driven by his servant one Manuku, was proceeding east towards Lesley. At a point in the vicinity of the 28th milestone along the said road, the two vehicles came into violent collision resulting in their both being wrecked and in the death of both the drivers.

D In their declaration, dated 25th May, 1960, plaintiffs averred that the collision was caused by the negligence of Manuku, more especially in that he had driven on to the incorrect side of the road and had failed to maintain his vehicle under proper control. In his plea, dated 25th August, 1960, defendant denied plaintiffs' allegations of Manuku's E negligence and made similar allegations of negligence against Stae as well as the allegation that Stae had driven with inadequate lights. Defendant also pleaded, in the alternative, that the Court should make an apportionment of damage in terms of Act 34 of 1956. A counterclaim in the sum of R1,500 (later increased to R1,960), based on the allegations F contained in the plea, was also filed. The pleadings were ultimately closed on 21st February, 1961.

The action came to trial in the Transvaal Provincial Division before SNYMAN, J., on 2nd June, 1961, and, after some evidence had been led, the learned Judge granted defendant leave to amend his plea by adding an G averment of inevitable accident. Consequentially, a postponement of the trial was ordered, with wasted costs to be paid by defendant. On 9th June, 1961, defendant filed an amendment to his plea averring, as an alternative to his above indicated allegations of Stae's negligence, that:

'the said collision was due to an inevitable accident in that the sector shaft at or near the junction of the sector shaft and Pitman arm severed H without warning and without negligence on the defendant's part.

The said failure was due to a defect in the metal of the said shaft of which defect defendant was not aware and of which he should not reasonably have been aware.'

In response to a request for further particulars of the defect in the metal thus alleged, defendant on 2nd September, 1961, replied that there was a crack in the metal of the sector shaft but that he was unable 'to state precisely what caused the said crack'. When the trial was resumed before SNYMAN, J., on 6th September, 1961, it soon became apparent

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that the real issue in the action revolved around the amended plea. The allegations of negligence against Stae were neither pursued nor substantiated and, during the course of the trial, defendant's counterclaim was abandoned.

A It was established at the trial that the road, whose tarmac surface is 20 feet 7 inches in width, is straight and virtually level for some 500 yards on either side of the spot where the two vehicles came into collision. To the west of this last-mentioned spot the road takes a curve which was rounded by defendant's truck prior to the collision and B to which further reference will be made below.

There were no eye-witnesses to the collision. Apart from the driver Manuku, the only occupant of defendant's truck was defendant himself. He was dozing at the time and, although called at the trial, was not able C to say how the collision happened or to throw any light whatever upon the occurrence. Sitting beside Stae, the driver of plaintiffs' truck, were two natives, Jack Duba and Simon Twala, who both gave evidence at the trial. According to these two witnesses, when defendant's truck was still some distance away Stae dipped his headlights, to which the headlights of defendant's truck soon responded by also dipping. At that D stage both vehicles were travelling on their correct side of the road. But as the vehicles were about to pass - Duba estimated the distance between the trucks as ten yards - defendant's truck suddenly swerved to its right and a head-on collision ensued with plaintiffs' truck still on its correct side of the road. As already mentioned, both drivers were E killed in the collision; and the damage to the two vehicles was so extensive that both were sold as scrap.

When inspecting the remains of defendant's truck on 13th October, 1959, after it had already been removed from the scene of the collision to a garage, Protheroe, an insurance assessor concerned with the insurance of defendant's truck, noticed that the steering sector shaft was broken. F The sector shaft is a vital part of the steering mechanism of a truck. It emerges from the steering box and joins the Pitman arm which, in turn, is connected with the front wheels of the vehicle by means of the steering tie-rod. Movement of the steering wheel is thus, via the sector shaft, transmitted to the front wheels of the vehicle. Once the sector G shaft is broken, the driver has no control whatever over the front wheels. The sector shaft of defendant's truck is a steel rod, slightly over an inch in diameter, having a splined end fitting into, and securely locking with, the Pitman arm. The distance between the edge of the steering box and the Pitman arm is approximately 1/8 of an inch, and it was within that gap that the splined portion of the sector shaft H was found by Protheroe on 13th October, 1959, to be completely severed.

At the resumed trial before SNYMAN, J., two experts gave evidence concerning this break in the sector shaft. For the defence, Mr. Mavrocordates, senior lecturer in Metallurgy at the University of the Witwatersrand, said that the break was a 'typical torsional fatigue fracture', and that it definitely could not have been wholly caused by the impact when the two vehicles collided. In rebuttal, plaintiffs called Professor van Rooyen, professor of Metallurgy at Pretoria University,

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who entirely disagreed with the view that the break in question was a torsional fatigue fracture and expressed the firm opinion that it had been caused by the impact between the two vehicles.

As was to be expected, these two experts were examined and cross-examined A at considerable length on the technical questions involved in their respective conclusions. At this point it is apposite to refer to the very unsatisfactory state of the record as placed before this Court on appeal, of which mention was made by the presiding Judge at the commencement of the hearing. The transcript of the mechanically recorded evidence is far from perfect. In a few instances what is transcribed is quite unintelligible; while in others what was said by the witness is B not reproduced at all, as appears from the following illustration: 'By the Court. What is the on the Pitman arm? (Mr. Protheroe explains to the Court.)' Paying due regard to the disadvantages inevitably attendant upon the mechanical recording of evidence, this record nevertheless C falls short of the required standard. This is not the first time that this Court has had occasion to refer to the state of records coming before it from the Transvaal Provincial and Local Divisions. An even more serious deficiency in the record is, however, attributable to the manner in which the expert evidence was, without comment by the learned D trial Judge, led by counsel on both sides. Neither counsel nor the learned Judge observed the ordinary practice - and, indeed, elementary precaution - of causing the various metal exhibits referred to by the expert witnesses in their evidence to be lettered or numbered. In consequence, the record abounds in statements - wholly unintelligible on appeal - which are the equivalent of 'this fits into that, and there is a mark here'. In addition, the frequent E demonstrations given by the expert witnesses during their evidence were not translated into words and incorporated in the record, the latter merely mentioning the fact of the demonstrations being made. Furthermore, and perhaps most important of all, portions of the expert witnesses' testimony were frequently not recorded at all - the record F merely containing entries such as the three following examples, viz: 'Witness explains and demonstrates to the Court.' - Witness shows pieces of metal to Court and explains - 'Discussions between the Judge and the witness regarding fatigue.'

As the result of all the foregoing, not only has the task of this Court been unnecessarily rendered more difficult, but the evidence of the experts is incompletely reflected in the record to the potential G detriment of the parties. All of which could have been avoided had counsel - and, indeed, the learned Judge - at the trial followed the conventional indeed, the learned Judge - at the trial followed the conventional course of ensuring that all material evidence, including demonstrations, was properly and intelligibly incorporated in the record.

H In deciding in favour of plaintiffs, the learned Judge found that the collision occurred on plaintiffs' correct side of the road and that defendant's truck had, at the last instant, swerved across to its right as described by the witnesses Duba and Twala. After mentioning that it was common cause that the sector shaft was found to be broken after the accident, the learned Judge posed the enquiry before him in these words, viz:

'I must therefore enquire whether the defendant...