Naude NO v Transvaal Boot and Shoe Manufacturing Co

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Stratford CJ, De Villiers JA, De Wet JA, Tindall JA and Feetham AJA
• Judgment Date: 12 April 1938
• Citation: 1938 AD 379

Tindall, J.A.:

A motor car, which the defendants' driver Mackay had left standing on an incline near the kerb on the south side of Main Street, Johannesburg, ran down the street, owing to the impetus of gravitation, slightly towards the left, mounted the pavement at the south-western corner of Main and Browning Streets and hit the plaintiff's minor daughter, who was standing outside a shop on the said pavement about 24 paces from the spot where the car had been "parked." It appears that Mackay left the car to give an invoice to Alfred van Lodewyk, the driver of a van also belonging to the defendants, which Alfred had stopped on the same side of the street but just past the intersection and near the corner where the accident took place. The evidence, which the learned Judge accepted, shows that Mackay was in a hurry to give the invoice to Alfred; in getting out of the car he slammed

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the door and ran across the intersection to Alfred and gave him the document. Immediately after Mackay handed Alfred the invoice the crash took place. As Alfred's van was standing very near the corner, the inference is that the car must have started moving very shortly after Mackay left it. Alfred and Mackay ran towards the girl, but as she was already being assisted by Europeans, Alfred went to the car where he noticed that the handbrake was not full on. It appears that the hand-brake was so adjusted that, to hold the car, the brake lever had to be pulled far enough back for the pawl (or claw) - the steel fitting at the end of the lever which engages in the ratchet forming part of the brake mechanism - to hook into the eighth notch on the ratchet. When Alfred looked at the brake lever it was not in the eighth notch but about halfway. Very shortly after the accident Detective Sergeant Moeller came on the scene. On being questioned by Moeller, Mackay stated that he had put the brake on. According to Moeller he then asked Mackay how it happened that the car moved if he had applied the brake and Mackay replied that at times the brake did not hook properly. This evidence was denied by Mackay, but the trial Judge found that Mackay was an untruthful witness and he accepted Moeller's evidence as a substantially accurate version of what Mackay said. Mr. Stratford, who argued the case for the defendants very ably, contended strongly that there are unsatisfactory features in Moeller's evidence which ought to have led the learned Judge to decline to accept Moeller's version of the conversation. After considering Moeller's evidence, the criticisms passed on it and the learned Judge's reasons, I think this Court would not be justified in differing from the finding on this question of credibility. After the conversation Moeller immediately examined the brake and found that the brake was fully on. He operated the brake, and on pulling back the brake lever found that sometimes it slipped forward and sometimes it held. He then drove Mackay in the car to the Police Station.

The evidence does not show who put the brake full on after Alfred found it half on. The car at this time had been moved back from the wall against which it had pinned the girl, the front wheels being on the pavement and the back wheels on the street. Owing to the slopes of the pavement and the street at this spot, the car would remain stationary without the application of the brake. The plaintiff alleged that Mackay was negligent in parking

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the car on an incline with inadequate brakes, or, if the car had adequate brakes, without putting on the brake or that, if he put on the brake, he did so in such a manner that the braking was ineffective and inadequate to hold the car in a stationary position. Alternatively he alleged that if the braking system was defective, the defendants through their agent Burland (an employee) knew or ought to have known of the said defect before the accident. The defendants pleaded that Mackay applied the hand-brake in a proper manner and that, if the braking mechanism had remained effective the car would have remained stationary, but that, after Mackay applied the brake, the braking mechanism ceased to be effective through no negligence on the part of the said Mackay, but as a result of a defect of which neither he nor the said Burland was aware and of which they could not by the exercise of reasonable diligence have known.

The car remained in the possession of the police from 2nd October (the date of the accident) till 7th October when it was returned to the defendants who then had the brake dismantled and examined. The examination revealed that the tip of the pawl had been broken off. The learned Judge found that the fracture occurred "a little while" before the car was parked by Mackay. The expert evidence showed that, in spite of a fracture, a broken claw may still engage in the notches in the ratchet. Whether it will still engage or not depends on how much of the tip is broken off slid the roughness of the face of the remaining portion of the claw. Three stages may be expected where the tip of the pawl has disappeared. In the first it engages consistently and remains in position. In the second it sometimes engages and sometimes slips. 'Ultimately it reaches a stage where owing to the wear of the broken surface it cannot engage at all. It was accepted in the' court below that the brake in question was tested after the accident about a dozen times by Moeller and about 30 to 60 times by the police. It had reached the third stage by 7th October, and the plaintiff's case is that it could not have gone through the second stage between the time of the accident and 7th October, and therefore that it must have been in the of frequent slipping while Mackay was driving it for a few weeks before the accident. The learned Judge, on a consideration of the expert evidence on both sides, expressed the opinion that there was some greater measure of likelihood that the plaintiff's experts were right in saying that 30 to 60 applications could not be enough

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to take the fractured pawl from the first to the third stage but he was doubtful whether, even if he had only the expert evidence before him, there would be such a balance of probability as would justify a finding to the effect that the pawl slipped before the accident and whether such a finding would necessarily mean that the defendants' agents knew or ought to have known of the defect. Moreover the learned Judge accepted the evidence of the said Burland, who had driven the car almost daily during the four or five months during which the defendants had had the car, that he never noticed any defect in the brake; and he stated that the evidence of the plaintiff's experts was not enough to prove that Burland was not telling the truth. In the result the learned Judge held that the negligence alleged had not been established and he gave absolution.

The lines on which his eminently fair reasons proceeded were substantially the following. Admittedly the case was one where res ipsa loquitur. That consideration, however, does not throw on the defendants any onus of disproving negligence but only a burden of giving a reasonable explanation of the accident. If the defendants gave an explanation which might reasonably be true and which, if true, would exculpate them from the charge of negligence, they must succeed unless the evidence as a whole showed a preponderance of probability against such explanation and in favour of the existence of the negligence alleged as would entitle the Court to hold that the plaintiff discharged the onus. Examining the evidence, the learned Judge did not accept or Mackay's testimony as proof that he applied the brake properly, at all. He held, however, that it was necessary for the plaintiff to prove that Mackay did not apply the brake properly and that the plaintiff failed to prove this. On the question raised by the defect in the brake he held, as already stated, that the plaintiff had not proved that the brake had slipped on previous occasions or that Mackay or Burland knew of a defect in the brake. In regard to Mackay's statement to Moeller that at times the brake did not hook properly, the learned Judge held that the statement was not evidence against the defendants. The judgment concluded with the statement that the defendants' explanation might reasonably be true and that there was not such a preponderance of probability against such explanation as would entitle the Court to hold that the plaintiff had discharged the onus.

It is not disputed that in this case, as in that of Scott v London

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& St. Katherine Dock Co. (169 E.R. 665), the mere happening of the accident may justify an inference of negligence. Whether the Court ought to draw such inference depends on the nature of the, explanation given by the defendant. Wigmore (sec. 2509) states that much looseness is to be found in the phrasing of the rule (so-called) embodied in the expression "res ipsa loquitur" and that it is not always made clear whether the rule creates a presumption or merely satisfies the plaintiff's duty of producing evidence. The learned author is unable to predict what the final accepted form of the rule will be, but he states that the particular force and justice of the presumption, regarded as a rule throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person. There are dicta relating to the expression res ipsa loquitur...