Fourie NO v Hansen and Another

• Jurisdiction: South Africa
• Judge: Blieden J
• Judgment Date: 24 January 2000
• Citation: 2001 (2) SA 823 (W)
• Docket Number: 98/6713
• Counsel: J J Wessels SC for the plaintiff. N de Vos for the first defendant. G Turner for the second defendant.
• Court: Witwatersrand Local Division

Blieden J:

On 14 March 1995 Rudolf Jacobus de Waal (De Waal) was seriously injured as a result of a motor accident. It occurred on the N1 toll road. He was a passenger in a Volkswagen Microbus which had been hired from the second defendant by his employer, Sappi Kraft of Ngodwana, Mpumalanga. It had been hired to transport him and six other employees of the company from Ngodwana to C Cape Town and back. The purpose of their trip was for the seven employees to participate in the annual Argus cycle tour held in Cape Town the previous weekend. At the time of the accident the first defendant was driving the Microbus. They were on their way home after having successfully participated in the tour. D

Approximately 100 kilometres after having passed through Kroonstad and while travelling in a northerly direction the left rear tyre of the Microbus had a blowout, the first respondent lost control over the vehicle and it overturned.

As a consequence of the accident De Waal was injured. His injuries E were of such a nature that he suffered brain damage which precluded him from personally conducting the present litigation. The plaintiff is the curator ad litem appointed by this Court to enable De Waal to proceed with his present action against the two defendants.

At the start of the trial it was agreed by the parties that the issue of fault would be separated from that of quantum in terms of F Rule 33(4) of the Supreme Court Rules. It was accordingly so ordered. The present trial is proceeding only on the negligence aspect. The question of quantum stands over to be dealt with separately if this becomes necessary.

The plaintiff's case against each of the defendants and their respective defences G

As against the first defendant the plaintiff in para 5 of her particulars of claim has alleged that the accident was caused by the negligent driving of the first defendant in one or more or all of the following respects:

'5.1

He drove the vehicle when, to his knowledge, the tyres thereon were in such a state as to constitute a danger to the H passengers in such vehicle, more particularly the plaintiff.

5.2

He drove the vehicle at an excessive speed in the circumstances.

5.3

He failed to regulate his speed in order to deal with a fracture of a tyre when such eventuality should and could have been foreseen by him. I

5.4

He failed to have regard for the safety of the passengers in the vehicle, more particularly that of the plaintiff.

5.5

He failed to display reasonable skill and care in that he failed to properly control the vehicle after the tyre had fractured when he could and should have done so. J

Blieden J

5.6

He failed to have regard for the possibility (sic) that due to the state of the tyres on the vehicle that there was a risk A of a fracture occurring to such tyres.

5.7

He failed to exercise any or any proper control over the vehicle.

5.8

He failed to avoid the collision when by the exercise of reasonable care and skill he could and should have done so.' B

In response to these allegations the first defendant has denied each and every one of them as if specifically traversed.

As against the second defendant the plaintiff in para 6 of the particulars of claim has alleged that the accident was caused due to the negligence of the second defendant through its agents or employees C (acting in the course and scope of their employment) in that they:

'6.1

Let the vehicle and permitted it to be driven when the tyres were in a defective condition, rendering them unsafe for use on the vehicle.

6.2

Failed to ensure that, before letting the vehicle, the tyres were not in such a state as to constitute a danger to the occupants of such vehicle. D

6.3

Failed to properly inspect the tyres of the vehicle and to ensure that these were in a fit and proper condition for use on the vehicle.

6.4

Allowed the motor vehicle to be used for the purposes stated above when they should have appreciated that the defective tyres would E pose a danger to the occupants of such vehicle.

6.5

Allowed the motor vehicle to be driven in an unroadworthy condition in that the tyres were defective.

6.6

Failed to heed the warning which the external appearance on the tyres clearly conveyed. F

6.7

Failed to avoid the collision when, by the exercise of reasonable care and skill, they could and should have done so.'

In answer to these allegations the second defendant has denied each and every allegation as contained in para 6 of the plaintiff's particulars of claim. In the alternative it has pleaded that the incident, ie the overturning of the Microbus, was caused by the G overloading of the vehicle and its tyres and/or by the under-inflation of the tyres and/or by a combination of these two factors. In addition and as a separate defence the second defendant has pleaded that De Waal entered into a written agreement with it to rent the Microbus concerned. Clause 10 of that agreement reads: H

'Avis shall not be liable for any damage arising out of any defect in or mechanical failure of the vehicle; nor for any loss of or damage to any property transported or left in the vehicle; nor for any indirect damages, consequential loss, loss of profits or special damages of any kind for any breach of this agreement.' I

It is pleaded that on a proper construction of this clause the second defendant is absolved of any liability for the damage caused to De Waal arising from the alleged defects in the tyres of the Microbus, if it is found that any conduct on the part of the second defendant's employees is in any way responsible for the damages sustained by him. J

Blieden J

Finally and frther alternatively the plaintiff has pleaded that the A accident arose as a result of the joint negligence of both the first and second defendants on the grounds already referred to.

The facts which are not in dispute

Prior to 9 March 1995 Mrs Bridget Gidson of Sappi Kraft arranged B with the second defendant for the hiring of a Microbus. The name of the 'renter' of the vehicle was filled in in all the documentation as De Waal. The second defendant had insisted on a living person being the 'renter' even though the corporation Sappi Kraft was responsible for the hiring fees due to it. Sappi Kraft hired the vehicle as an act of goodwill towards the seven employees who were going to participate in the tour. C

It was originally envisaged that De Waal would take delivery of the Microbus, but the arrangement was altered with the consent of the second defendant. First defendant became the party who took delivery of the Microbus in accordance with this changed arrangement. The reason for this was that the first defendant was the only one of the seven cyclists who lived in Nelspruit, where the second defendant's nearest D branch was situated. It was agreed therefore that it would be more convenient for all concerned if the second defendant delivered the Microbus to him. The Microbus was duly delivered and, despite the name of the 'renter' being De Waal according to the rental agreement which was given to the first defendant at the time, he took delivery of the E Microbus. He and not De Waal signed as renter and also initialed various parts of the document.

The first defendant did not read the document, but regarded it merely as a document which he had to sign in order to take delivery of the Microbus. The second defendant's driver who delivered the Microbus to F him presented the document to the first defendant for signature and tendered no explanation as to its purpose or content, but intimated that he had to sign it before the vehicle could be delivered to him. After signing the original document and giving it to the second defendant's driver, the first defendant kept a copy thereof. The original document is at pages 63 and 64 of the bundle of documents. The first defendant put his copy of the document into the cubbyhole of the G Microbus. He did not mention the document to De Waal or to any of the other cyclists who were embarking on the trip. De Waal did not sign the document nor did he at any stage have sight of or any knowledge of its existence.

The Microbus towed a Venter trailer, which was the property of one of H the cyclists. This trailer carried the personal luggage of each of the seven participants. The luggage consisted of clothes for five days, sporting gear for the cycle tour and the bicycles used by each cyclist. The cycles were loaded on top of the trailer. Each of the cycles weighed not more than 10 kilograms while the personal luggage of each cyclist weighed more or less the same as the cycle he brought, I ie not more than 10 kilograms. No luggage was loaded into the Microbus. The only additional load was a food hamper for the trip. The Microbus is designed to carry eight passengers and also has place for luggage.

On delivery the Microbus was cursorily inspected by all the people who were to travel in it. It looked to be in perfect condition. In particular J

Blieden J

the tyres appeared to be in good condition. No one inspected the condition of the inner part of the tyres - they all relied on the A outer appearance thereof. The tyre pressure was not tested at the start of the trip and the Microbus was driven off in the condition it had been delivered to the first defendant. At the time it was delivered the Microbus had done 43 453 kilometres, according to the odometer. At no B time during the trip was the pressure of the tyres tested.

Each of the participants took turns in driving the Microbus during the trip. No one complained about the way it handled and the two witnesses who had been on the trip and who gave evidence at the trial, namely Matthys Johannes Kruger and the first defendant, each said that it travelled perfectly. They each had had experience of...