Rankisson & Son v Springfield Omnibus Services (Pty) Ltd

• Jurisdiction: South Africa
• Judge: Miller J
• Judgment Date: 02 August 1963
• Citation: 1964 (1) SA 609 (D)
• Court: Durban and Coast Local Division

Miller, J.:

Plaintiff, a duly registered firm which carries on business in Durban 'as a bus operator', claims payment from defendant of the sum of R900, being the agreed amount of its loss resulting from damage

Miller J

to its bus which came into collision with a bus belonging to defendant. It is common cause that the collision occurred on Jan Smuts Highway, in Durban, at about 7.30 a.m. on 28th February, 1961, and at a point opposite the Jan Smuts Supermarket. It is also common cause that A plaintiff's bus was being driven by one Pillay, a servant of plaintiff acting in the course of his employment as such, and defendant's bus by one Kanan, acting in a similar capacity for defendant; that plaintiff's bus was proceeding on its correct half of the highway in the direction of Pinetown and defendant's bus in the opposite direction; that B defendant's bus suddenly swerved to the right, away from and out of its correct half of the highway, encroaching upon the half on which plaintiff's bus was travelling, where the collision occurred.

It appears from the evidence that immediately before the collision, defendant's bus was being driven behind a motor-car driven by one Ally, who was driving behind a milk truck belonging to Durban Consolidated C Dairies. When nearing a point opposite the premises of the dairies, which adjoin the supermarket on the far side of the highway from the lane in which these vehicles were travelling, the milk truck signalled its intention to turn to the right, presumably to enter the yard of the dairy premises. In order to do so it would have to cross the portion of D the highway carrying traffic coming from the direction of Durban and it stopped close to the dividing white line on the highway preparatory to making the right-hand turn and crossing. The signal was observed by Ally who claims to have given a hand-signal of his intention to stop and who in fact brought his vehicle to a stop behind the milk truck. Very shortly after his vehicle had come to a stop, Ally felt or heard a E slight bump to the rear of his vehicle. He looked to his right and saw a bus (the defendant's) swinging out behind him, across the dividing white line and coming into collision with another bus (plaintiff's), coming from the opposite direction. Pillay, the driver of plaintiff's bus, said that he saw the stationary milk truck and that as he was about F to pass it the defendant's bus swerved out of its line of travel and came diagonally across its wrong half of the highway. Pillay tried to swerve to his left, in order to avoid the defendant's bus, and applied his foot-brake, but a collision was unavoidable at that stage.

In its declaration, plaintiff alleged that the collision was caused by the negligence of Kanan, the particulars of negligence including G allegations that he drove on his incorrect side of the road, that he failed to keep a proper look-out and that he drove at an excessive speed and too close behind the vehicle in front of him. The declaration was amended at the trial to include an allegation that the collision was caused by the negligence of defendant and/or its servants, acting in the course and scope of their employment, in that they failed to maintain H the braking system of the bus, adequately or at all. This amendment was no doubt motivated by the allegation in the plea that the collision was caused by inevitable accident in that the foot-brake of defendant's bus suddenly failed, without prior warning, thus preventing Kanan from bringing his bus to a stop when Ally's vehicle stopped in front of him. In the circumstances, it was alleged that in order to avoid running into Ally's vehicle, Kanan turned his bus to the right and thus onto his incorrect half of the highway. Although defendant alleged in the plea

Miller J

that the driver of plaintiff's bus was negligent and that, if Kanan was causally negligent. Pillay's negligence was also causally connected with the collision, this contention was not strongly persisted in at the trial. The main issue, on the pleadings and in the evidence and argument, was whether the brakes of defendant's bus failed, it being A conceded on behalf of defendant that if it were to be found that the brakes did not fail, Kanan's negligence would clearly emerge from the fact of his swerving onto his incorrect side of the road - res ipsa loquitur.

Kanan, the driver of defendant's bus, is a young man who, at the time of B the collision, had been driving a bus for about nine months. He confirmed that on the morning in question he was driving on his correct half of the highway, in the right-hand lane of traffic alongside the dividing white line, and that a small car (Ally's) was immediately in front of him and a milk truck in front of the small car. He was driving C at about 10 to 15 miles per hour, in third gear, at a distance of about 20 feet behind Ally's car, when the latter car suddenly came to a stop. He applied his foot-brake immediately, pressing the pedal down to the floor-board, but there was no response. In order to avoid colliding with the stationary car, he swerved to the right and, having swerved, applied his hand-brake. When he decided to swerve, he saw no oncoming traffic D but having entered upon his wrong side of the road he saw plaintiff's bus bearing down on him. Presumably as a result of the application of the hand-brake, his bus came to a stop before the plaintiff's bus collided with it; according to his estimate, his bus had been stationary for about ten seconds before the collision occurred. He jumped out of E the bus and spoke to a city policeman whom he told that his brakes had failed. The policeman opened the door of the cab of his bus and pressed down the brake pedal with his hand; it went down to the floor-board and the policeman agreed with him that his brakes were not operating. Thereafter, under police escort, he drove the bus in first gear to the nearby Mayville Police Station where the brakes were tested in his F presence and found to be in order. He later drove the bus away from the police station, using the foot-brake which then operated properly. Kanan explained that when his brakes failed as he was bearing down upon Ally's car, he had no alternative but to swerve to his right; he could not swerve to his left because of the traffic in the left-hand lane on his G half of the highway, nor would it have availed him, he said, to apply his hand-brake, for the distance between the front of his bus and the rear of the small car was, at that stage, too small to have enabled him to bring his bus to a stop timeously by applying the hand-brake. He admitted that he depressed the pedal of the foot-brake once only and that he did not attempt to get response from the foot-brake by pumping H the pedal; apparently he had previously resorted to the expedient of 'pumping' the brake in lorries which he had driven, but had never done so when driving a bus.

Kanan was a very poor witness; unconvincing in his general testimony and patently unreliable, uncertain and inaccurate on points of detail. Much of his unsatisfactory evidence is attributable, in my opinion, to the restricted scope of his intelligence and comprehension and the dismaying degree of his ignorance. He thought, for example,

Miller J

that there were five seconds in a minute which makes utter nonsense of his suggestion that his bus was stationary for ten seconds before the plaintiff's bus collided with it. But I do not think that all the shortcomings in his evidence can reasonably be attributed to ignorance A or lack of intelligence. In several respects he contradicted or varied the evidence which he had given in criminal proceedings arising out of the collision. (It was agreed by counsel that the extracts from the record of the criminal proceedings, as put to the witness, accurately reflected the evidence given). I take into account the fact that in the B criminal proceedings he gave evidence in English whereas at this trial, after a most inauspicious start in English, he testified in his own language, with the aid of an interpreter, but this does not satisfactorily explain such facts as, for example, that in the previous proceedings he said that plaintiff's bus could have avoided the collision by swerving to the left, where there was sufficient space to C pass, whereas in his evidence in this case he said that there was no room for plaintiff's bus to pass between the pavement and defendant's bus; and that whereas he said in this Court that before swerving to his right he could not see whether there was oncoming traffic, he said in the previous proceedings that the road was clear and that he could see D for a long way. Nor is it possible to avoid the direct conflict between his evidence and that of Pillay (whom I believed) on the question whether defendant's bus had come to a stop before the collision; Pillay had no doubt that at the moment of impact both buses were in motion. My assessment...