X-Moor Transport CC v Richter

• Jurisdiction: South Africa
• Judge: Lopes J, K Pillay J and Poyo-Dlwati AJ
• Judgment Date: 24 March 2014
• Docket Number: AR 100/2013
• Court: KwaZulu-Natal High Court, Pietermaritzburg
• Hearing Date: 03 February 2014
• Citation: 2014 JDR 0558 (KZP)

Lopes J

[1]

This is an appeal against a decision of D Pillay AJ (as she then was), who granted judgment in favour of the respondent (the plaintiff in the court a quo) against the appellant (the defendant in the court a quo), for the agreed damages caused to the respondent's motor vehicle when the appellant's truck collided with it. The driver of the appellant's truck was originally cited as the second defendant in the action, but because of difficulty in tracing him, the action against him was eventually withdrawn. In this judgment I shall refer to the parties as they were referred to in the court a quo.

2014 JDR 0558 p2

Lopes J

[2]

On the 15th May 2006 the plaintiff drove onto the M4 southern freeway in order to meet two consulting engineers to discuss the replacement of certain expansion joints on the roadway. When he drove onto the M4 heading southwards the two consulting engineers had already arrived, and had parked their vehicles on the left hand side of the M4 within the emergency lane. Those vehicles had hazard lights on, and the consulting engineers were wearing luminous coloured safety jackets.

[3]

The plaintiff parked his Subaru motor vehicle behind the other two, and also within the emergency lane. On the roof of his car he placed a flashing yellow light and he left the Subaru hazard lights on. He then went to speak to the consulting engineers together with a member of his site team. They were all standing within the emergency lane, among the parked cars.

[4]

Some three months earlier, the defendant had tendered for a contract with the Pinetown Municipality involving the lifting of heavy steel manhole covers. In anticipation of obtaining the contract the defendant fitted a chassis mounted hydraulic lifting crane immediately behind the cab of one of its truck-tractor horses ('the truck') which was used to pull tanker trailers. The defendant, however, was unsuccessful in securing the contract and the crane was never used and remained on the rear of the truck where it had been installed.

2014 JDR 0558 p3

Lopes J

[5]

The design of the crane was based upon two stabiliser legs, one on either side of the rear of the truck. Each stabiliser leg was held in place by a covering metal sleeve and a safety catch in the design of a locating pin which was on the end of an L-shaped lever ('the lever'). The lever passed through the covering sleeve and thereafter into the stabiliser leg. The lever entered the covering sleeve through a short length of pipe attached to the outside of the covering sleeve. The lever was held in place by a spring. The end of the pipe was bevelled so that when the lever was in what was described as the 'locked position', the locating pin was in place and the switch pointed downwards. When the stabiliser legs were required to be released in order to stabilise the truck when lifting heavy objects, the lever had to be pulled outwards under the tension of the spring, and turned so that it faced upwards towards the sky. It was then in what was described as the 'unlocked position'.

[6]

When the lever was in the unlocked position the locating pin withdrew from the stabiliser leg, which would then slide out of the covering sleeve and be released onto the ground. The bevelled end of the pipe was such that when the lever was in the locked position it was closer to the stabiliser leg, enabling the locating pin to go through the covering sleeve and into the stabiliser leg. When the lever was in the unlocked position the bevel of the pipe ensured that the lever was some centimetres further away from the stabiliser leg and covering sleeve, thus withdrawing the locating pin from the stabiliser leg.

[7]

Because the defendant had failed to secure the contract which it sought and the crane was never used, the driver of the truck had no training in using it. On the

2014 JDR 0558 p4

Lopes J

morning of the 15th May 2006, the driver of the truck left the defendant's depot and travelled some 23 kilometres to the Indian Ocean terminal at Maydon Wharf, where the tanks on the two trailers being towed by it were filled with caustic soda.

[8]

Having completed loading, the driver then left the loading depot bound for Umzimkhulu and proceeded to head up the semi-circular on-ramp onto the M4 freeway. Although there was no evidence as to the exact distance which the truck travelled after loading the caustic soda, it seems clear enough that it was no more than a couple of kilometres at most.

[9]

As the truck drove up and onto the M4 freeway, the stabiliser leg on the left rear of the truck started to emerge from the covering sleeve. By the time the driver was proceeding along the slow lane of the M4 travelling southwards, the stabiliser leg had emerged by more than a metre. It was common cause at the trial that the driver of the truck would not have been aware of the stabiliser leg's emergence from its covering sleeve because the rear-view mirrors on the truck were angled in such a way that the driver could only see the axle of the second trailer. The truck then arrived at the point along the M4 where the plaintiff's Subaru was parked.

[10]

At...