Coleman v Mabuza

• Jurisdiction: South Africa
• Citation: 1963 (2) SA 498 (T)

Coleman v Mabuza
1963 (2) SA 498 (T)

1963 (2) SA p498

Citation	1963 (2) SA 498 (T)
Court	Transvaal Provincial Division
Judge	Ludorf J and Kuper J
Heard	March 7, 1963
Judgment	March 7, 1963

Flynote : Sleutelwoorde E

Negligence — Proof of — Onus on plaintiff — Collision in stream of trafflc — Plaintiff braking to avoid collision with car in front — Defendant driving car behind colliding with him — Mere F proof of collision and suggestion of speed — Insufflciency of — Onus remains on plaintiff to prove defendant negligent — Plaintiff failing to disprove defendant's evidence that brakes failed.

Headnote : Kopnota

In an action for damages sustained as a result of a collision, the onus of proving negligence rests throughout on the plaintiff.

G In an action for damages sustained as a result of a collision, the plaintiff proved that, whilst driving in a stream of traffic, the car in front of him had suddenly slowed down, obliging him to apply his brakes, and that the defendant who was driving the car behind him had collided with him. The plaintiff relied upon the fact of the collision together with a suggestion that the defendant was driving too fast. The defendant gave evidence that his brakes had suddenly failed. There was also evidence of a single brake mark indicating that the brakes might have H been operating on one wheel only. A magistrate's court having dismissed plaintiff's claim, in an appeal.

Held, as the plaintiff had failed to prove that the collision had not been due to the defendant's brakes having failed, that he had failed to discharge the onus on him of proving that the defendant was negligent. Appeal accordingly dismissed.

Case Information

Appeal from a decision in a magistrate's court. The facts appear from the reasons for judgment.

H. F. Junod, for the appellant: The cases lay down that in a line of

1963 (2) SA p499

traffic with cars following one another, there is a duty to anticipate a sudden movement by a car in front and a concomitant duty to drive at a distance and a speed sufficiently safe to be able to stop oneself, Goldstein v Jackson's Taxi Service, 1954 (4) SA 14; Carnarvan Bus A Service v Haile, 1930 (2) P.H.J. 19. This duty may not arise where the action of the car in front is so unusual that it cannot be anticipated, R v Wallach, 1934 T.P.D. 293; Maharaj v Phillips, 1955 (2) SA 658. In this case defendant pleads that although his brakes were tested that same day, he was unable to stop his car within 59 feet of the car in front. The police corroborate that a brake mark 59 feet long was made by B the left rear wheel of defendant's car. Defendant did not plead specifically that the skid occurred as a result of three of his brakes not working. If he seeks to rely on inevitable accident arising out of a mechanical failure, he must specifically plead this, Odgers on Pleading, p. 147; Martin v M'Taggart, 1906 (2) I.R. 120; Hall v Kearney, 3 Q.B. C 919; Toppin v Belfast Corporation, 1909 (2) I.R. 183. Rumbold v London County Council, 25 L.T.R. 541, lays down that a general denial of negligence includes the right to lead evidence as to inevitable accident, but this can only apply to a case where the features relied on to establish the inevitable accident are such as not to take the plaintiff by surprise. The defective working of brakes cannot be challenged by a plaintiff who does not even have the car at his disposal D for tests. It is for defendant to establish that despite the inspection that same morning his brakes failed a few hours later. The skid on one wheel is equally consistent with excessive speed and sudden braking thus throwing the car off balance and it is impossible for a plaintiff to negative a defence of mechanical failure in respect of which only the E defendant owner can speak.

Z. P. le Roux, for the respondent, was not called upon.

Judgment

Kuper, J.:

This is an appeal from a judgment of the magistrate at F Witbank dismissing the plaintiff's claim of R233.28 for damages which the plaintiff sustained as a result of a collision...