Sardi and Others v Standard and General Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Holmes JA, Rabie JA, De Villiers JA, Joubert AJA and Galgut AJA
• Judgment Date: 01 June 1977
• Citation: 1977 (3) SA 776 (A)
• Hearing Date: 26 May 1977
• Court: Appellate Division

Holmes, J.A.:

This is an appeal from a decision of the Orange Free State Provincial Division granting absolution from the F instance at the conclusion of the case for the defendant (now respondent).

The appellants had sued the respondent, as the insurer under Act 29 of 1942 (now Act 56 of 1972) of a motor tanker vehicle, for certain damages caused by a collision between a Ford Escort motor car and the insured vehicle in 1970. The first appellant was not a passenger in the motor car, but his minor child was. G The second and third appellants (husband and wife) were passengers. The driver of the motor car was the first appellant's wife who, regrettably, was killed.

The quantum of damages was agreed at the pre-trial conference. It was also agreed that no apportionment would be applicable against any of the appellants. The issues were whether the collision was caused by the negligence of the driver of the H insured vehicle, as averred by the appellants; or whether it was caused by the recklessness of the driver of a certain Valiant motor car (of which more anon) together with the fact that the driver of the Ford Escort lost control of her car - as pleaded by the respondent.

With that prelude I turn more fully to the facts.

In the dark early morning hours of a wintry July, the first appellant's wife was driving a Ford Escort motor car on the national road in the direction from Harrismith to Swinburne. Approaching from the opposite

Holmes JA

direction was a vehicle consisting of a mechanical hauler plus tanker. In the evidence it is sometimes referred to as a mechanical hauler plus trailer; and sometimes simply as a tanker. It was being driven by one Coxon. At a point about six miles from Harrismith (i.e., on the Swinburne side) this vehicle moved across the road on to its incorrect side. There A was evidence that it did this slowly, at an angle of about 30 degrees, creating the impression that its driver intended to bring it to a halt on the far side (i.e., incorrect) side of the road. The driver of the Ford Escort immediately swerved to her left towards the verge, as if to pass in front of the encroaching tanker; but, as the latter continued on its B threatening course, she then swerved to her right, apparently with a view to passing behind it. She did not achieve this and collided with the side of the tanker. The Ford Escort then spun round and came into contact with the front of the tanker, whence it was thrown back into a head-on collision with the side of a station wagon which had been travelling behind the Ford Escort. The foregoing account appears from the C evidence of Mrs. Mileham, who was driving the station wagon. It will be recalled that the driver of the Escort died as the result of the collision.

Coxon gave evidence and admitted that he swerved to his right, probably on to his incorrect side of the road. His explanation was as follows. As he was approaching the scene he saw the D lights of an oncoming car appearing over the rise. He was also conscious of the lights of a car travelling behind him. The driver of this latter car switched off his lights before passing Coxon on the left: apparently it could not pass him on the right because of the approaching car. Coxon knew from experience that, in these circumstances, impatient motorists E sometimes do overtake him on the left. Indeed, he said that this was a matter of daily experience in the lives of drivers of trucks. These impatient motorists switch off their lights so that the driver of the tanker will not know of their intention, because sometimes a mean driver of a tanker will deliberately move over to the left of the road in order to embarrass the passer-on-the-left. As this vehicle drew abreast of him on the F left, it switched on its lights. Coxon (whose vehicle had left-hand steering) noticed that there were children in the rear of the car. He then also noticed, as the driver of the vehicle on his left must also have done, that ahead there was a white concrete distance marker, about 2' to 3' high, set in the gravel verge, about 5' to 6' from the edge of the tarmac. The G driver of the passing vehicle (it was a Valiant car with a T.J. registration number) had to swerve somewhat to his right to avoid the marker, and Coxon accordingly swerved to his right, thereby probably encroaching on to his incorrect side, otherwise, so he says, he would have collided with the Valiant. Because of the lights of the approaching Ford Escort, he then swerved to his left, but nevertheless there was a collision H between the tanker and the Ford Escort. Coxon maintained that he did the best he could in the emergency created by the reckless driver of the Valiant, who had passed him on the left and who then swerved to the right to avoid colliding with the concrete marker.

After an interval of delay somebody reported the accident to the police at Harrismith, and Constable Els set out for the scene before dawn with a celerity worthy of young...