Umzimkulu Planters v Scrooby

• Jurisdiction: South Africa
• Judge: Vahed J, Van Zyl J and Nzimande AJ
• Judgment Date: 18 March 2014
• Docket Number: AR 219/2013
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 05 February 2014
• Citation: 2014 JDR 0522 (KZP)

Vahed J:

[1]

In Wright & anor v AIB Finance & Leasing & anor [2013] IESC 55 the Supreme Court of Ireland (Clarke J with McKechnie and MacMenamin JJ concurring) commenced a judgment with the following paragraph:

'Accidents can and do happen in unusual circumstances and in unusual ways. The evidence which a court may have to assess in attempting to work out how, as a matter of probability, a particular accident occurred can range from eyewitness accounts to scientific or forensic evidence which may cast some light on the circumstances surrounding the accident in question. Even when the court has become satisfied as to how an accident did in fact occur, there may well remain legal questions as to how the possible liability of any relevant parties

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Vahed J

for such an accident is to be assessed. This case involves an accident which, I think it is fair to say, occurred in somewhat unusual circumstances and where the trial court was faced with a difficult task not just in attempting to ascertain how the accident occurred but also in considering the legal consequences of any such findings. This appeal is concerned with an assertion that the trial Judge was in error, both in the way in which she assessed the facts and in the way in which the law was applied to those facts.'

[2]

That opening paragraph could just as well serve as an introduction to this judgment.

[3]

The present appeal, with the leave of the court a quo, is an appeal against a judgment delivered by Balton J concerning a collision where no eyewitness testimony was available and where all she had before her consisted of the evidence of two opposing accident reconstruction experts. She accepted the evidence of one, rejected the evidence of the other, and found that the appellant's driver was wholly to blame for the collision which was the subject matter of the dispute before her. But first, the facts.

[4]

The appellant was the defendant in the court a quo, the respondent the plaintiff, and I shall refer to the parties as they were referred to in the court below.

[5]

During the early hours of 20 December 2006 a collision occurred on the N2 National Road in the vicinity of Ezinqoleni, Harding, between the plaintiff's vehicle and the defendant's vehicle. The plaintiff's vehicle was a FAW truck which was referred to in the evidence as "the white truck" and the defendant's vehicle was a Mercedes Benz combination truck-tractor, it being an articulated vehicle with a truck

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Vahed J

pulling two trailers. The defendant's vehicle was referred to in the evidence as "the red truck".

[6]

At the time the road surface was wet with the white truck travelling in a southerly direction towards Port Shepstone and the red truck travelling in a northerly direction towards Harding. The drivers of both vehicles, who unfortunately died at the time of or shortly after the collision, were acting within the course and scope of their respective employments with the plaintiff and the defendant. Both vehicles sustained extensive and severe damage and were beyond economical repair. Both plaintiff and defendant pointed the finger of blame at the opposite party alleging, in their respective claims and counter-claims, various aspects of negligence on the part of each of the drivers.

[7]

As I said earlier there was no eyewitness account as to what transpired and the parties each relied on the expert testimony of their respective accident reconstruction specialists. For the plaintiff that consisted of the evidence of a Miss Badenhorst and for the defendant it was the evidence of a Mr. Gibb. Both experts referred to various plans, photographs and diagrams and from their evidence it is not in dispute that the essential point of initial contact between the two vehicles was the right front corner of the white truck and the right and mid-front of the red truck. Although that was, as I indicated, the point of initial contact between the two vehicles, the natural forces that came into play after that initial contact caused extensive damage to other portions of both vehicles.

[8]

Many photographs of the scene of the collision and of the damaged vehicles were put up and referred to at the trial. Of the scene these were taken during the daylight hours of the 20th of December 2006 and of those a composite panorama of

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Vahed J

6 photographs became Exhibit "C" in the trial. Consistent with the adage that a picture paints a thousand words, this panoramic view showed the approaches to the scene of the collision from both directions as well as certain tyre and other road markings and, bolstered by the observations made by both experts when they visited the scene reveals the following:-

1.

For the red truck approaching the scene of the collision the gradient was uphill and for the white truck the gradient was downhill.

2.

Prior to approaching the scene of the collision the red truck would have had to have negotiated an S-bend before the path of travel for the red truck entered a straighter portion of the road.

3.

Tyre marks caused by the red truck were visible on the tarred road surface and are still visible on the panorama.

4.

It is common cause that those tyre marks were caused by the two front wheels of the red truck after its brakes had locked.

5.

Except for when the red truck approached the immediate vicinity of the point of impact those tyre mark demonstrate that the red truck was wholly within its correct lane.

6.

The tyre marks are visible from the point of initial impact and going back in the direction from which the red truck approached for at least nineteen meters.

7.

At the point of initial impact the front of the red truck had marginally crossed over onto the opposite lane of travel with that point of initial impact being approximately one metre into that opposite lane.

[9]

The essence of Miss Badenhorst's opinion was that in the absence of any indicator as to why the defendant's driver braked, the fact that the red truck encroached onto the opposite lane of travel into path of travel of the white truck

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Vahed J

suggested that that is what caused the collision. Her conclusion was then that the driver of the red truck was to blame. She supported that conclusion with assessments of the post initial impact forces that came into play and inferences she drew from the damage sustained by both vehicles.

[10]

In her judgment, the learned Judge a quo, after finding that it was common cause that the tyre marks were on the red truck's side of the road, went on to find, correctly, that they "veer slightly to the centre of the road". In my view, the learned Judge a quo then correctly observed: "[t]he question arises as to why would the [red] truck have braked and moved to the centre of the lane".

[11]

The learned Judge a quo then went on to make the following observation in paragraph 20 of her judgment:-

'In Badenhorst's opinion the [red] truck was in the incorrect lane of travel. The rotation caused the [red] truck to rotate clock-wise from the area of impact, further into its incorrect lane of travel. The [white] truck moved out of the road because of the rotation and impact. She agreed that the [red] truck driver would have braked hard and thus locked his wheels and in those circumstances the driver had lost control.'

[12]

In my respectful opinion, that paragraph contains the seeds of the learned Judge a quo's misdirection. She went on to say in paragraph 21:-

'In Gibb's opinion the [red] truck was on its right path of travel because of the skid marks. The skid marks start on the correct side of the road and veers slightly to the centre lane between the markings, close to where the collision occurred'

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Vahed J

[13]

With those observations the learned Judge a quo went on to indicate that she was unable to accept Gibb's view that the [red] truck must have braked because the [white] truck was in its path of travel. In my view she correctly observed that there "are endless possibilities as to what could have caused the [red truck] to brake. And then concluded that "[t]he marks clearly indicate that the [red] truck moved towards the centre line. By the time of first impact the vehicles were in the [white] truck's path of travel as explained by Badenhorst".

[14]

With that observation the learned Judge a quo found for the plaintiff.

[15]

In my view, having found that there were endless possibilities as to what caused the driver of the red truck to have applied his brakes at a time when he was still travelling wholly on his correct side of the road, it was incumbent upon the court a quo to examine whether any of those possibilities produced a reasonable probability.

[16]

Clearly both Badenhorst and Gibb provided mutually destructive and irreconcilable versions on their respective reconstructions. The question...