Intercape Fereira Mainliner (Pty) Ltd v Huysamen Vervoer (Pty) Ltd and Others; Huysamen Vervoer (Pty) Ltd v Intercape Fereira Mainliner (Pty) Ltd (6317/2017) [2020] ZAFSHC 218 (5 October 2020)

IN THE HIGH COURT OF SOUTH AFRICA

FREE STATE PROVINCIAL DIVISION

In the consolidated actions of:

Case No: 6317/2017

INTERCAPE FEREIRA MAINLINER (PTY) LTD[1]

Plaintiff

and

HUYSAMEN VERVOER (PTY) LTD[2]

First Defendant

ARTHUR HIGH[3]

Second Defendant

PIETER REDELINGHUYS

Third Defendant

Case No. FS/WEL/RC801/2015

HUYSAMEN VERVOER (PTY) LTD

Plaintiff

INTERCAPE FEREIRA MAINLINER (PTY) LTD

Defendant

Coram: Opperman, J

Date of trial: 8 - 9 September 2020

Date of judgment: 5 October 2020. The judgment was handed down electronically by circulation to the parties’ legal representatives by email and release to SAFLII

on 5 October 2020. The date and time for hand-down is deemed to be 5 October 2020 at 15h00

Summary: Claim and counterclaim arising from a motor vehicle collision

JUDGMENT

[1] Litigation in this matter was instituted in the High Court: Free State Provincial Division and the Regional Court: Free State Division to be held in Welkom. By agreement between the parties it was ordered on the 13th of September 2018 that the actions to be consolidated and proceed as one action for determination in the High Court. (The so-called

Intercape Fereira Mainliner (Pty) Ltd-case, 6317/2017 and the Huysamen Vervoer (Pty) Ltd-case, FS/WEL/RC801/2015).

[2] A collision occurred between the Double Decker Sleepliner bus (the Bus) of Intercape, a truck and horse (the Truck) of Huysamen Vervoer driven by Mr High and a LDV (the LDV), driven by Mr Redelinghuys. The parties claimed damages against each other in main and counterclaims.

[3] Mr Redelinghuys passed away before the trial and the litigation only lies between Intercape, Huysamen Vervoer and Mr High. Huysamen

Vervoer admitted vicarious liability for its driver, Mr High. Intercape committed to the same for its driver Mr Jokwana that died

in the collision together with his co-driver.

[4] Intercape conceded and formally admitted that its driver was causally negligent in the collision.

[5] The only issue for adjudication is whether Mr High was contributory negligent.

[6] The tragedy of this case is that on 12 December 2014 at approximately 22h53 at night on the R73 between Virginia and Theunissen the collision was caused by a black rubbish bag with clothing inside, lying in the road. Was it not for the bag the events that followed would not have occurred.

[7] Mr Redelinghuys was driving the LDV from the Theunissen direction to Virginia when he noticed the bag. His words introduced via a statement handed in by agreement between the parties and in the case for Interstate, portray the events that occurred in the dark of night:[4]

“… as I travelled, I saw a hump lying in the middle of the road, it flashed through my mind, it looked like a body, my evaluation was it could possibly be a person, but because of the oncoming vehicles I was concerned that they may swerve out, causing an accident, or possibly ride over the hump.

I immediately turned onto the emergency lane and flashed the lights towards oncoming traffic and switched on the hazard lights, because the vehicles were at least 400-500 meters away from the specific place. I turned around towards the bundle lying in the road.

I stopped in the middle of the road because I had to identify the item and also block someone from driving through and over the item. I switched to bright lights and with hazard light flashing, pulled the handbrake on I climbed out, to observe the object.

I was satisfied that it was not a body, but a black rubbish bag with clothing in, it was bashed open and an object that looked like a body protruding out of it.

I picked the bag up and walked across to (sic) the road to through (sic) it off the road surface.

The heavy vehicle has stopped some distance behind me with flash lights on. At that stage the driver of the truck has (sic) also in the process of disembarking.

As I flung the bag bundle of the road surface, I heard a big bang and when I swung around, I saw the stationary truck basing (sic) into the back of my vehicle moving it some distance down the road, and I saw the driver being bashed by his vehicle as he was disembarking.

At that moment I saw the Bus, that had collided with the back of the truck and that is why the truck was bashed into my vehicle. I just saw white paint running all over the road, Bus & truck.

According to the driver of the truck, there was about 30 tons of paint[5] on the truck in plastic holder (sic) which exploded at impact.

Taking into consideration the time laps from stopping, and both, the truck driver and I, climbed out of the vehicles, and myself walking across the road, the Bus must have been some distance behind the stationary vehicles, which the Bus driver should have noticed, but there was no screeching of breaks or any down gearing action.

The Bus did not attempt to slowdown or brake, because it slammed so hard into the vehicle that it bend the interlocking structure of the truck, in turn bashing the truck, with the hand brakes on into my vehicle.”

[8] As said, it is common cause between the parties that the above witness, Mr Redelinghuys (third defendant: 6317/2017) had passed away by the time the trial commenced. It was agreed between the parties that Mr. Redelinhuys’ written statement dated 23 December 2014 could be used in the trial as an exception to the rule against the admission of hearsay evidence. No admissions were made in regard to the veracity of the allegations contained therein. The parties were agreed that the court may rely on his version where it corroborates viva voce eyewitness and other evidence. It should also accord to the probabilities.

[9] The only eyewitness to the collision that testified before court was Mr Arthur High, the driver of the Truck for Huysamen Vervoer. He had signed a statement on 19 December 2014 setting out how the collision happened. The statement was handed in by Intercape by agreement with the first and second defendants. It was compiled by a police officer that did not testify to proof the correctness of the content.[6] The authentication and explanation of said statement as by Mr High must therefore be accepted by the court.

[10] The summation of the evidence of Mr High by counsel for first and second defendants in their Heads of Argument is mainly common cause and reflects the evidence in detail and accurately. This is his testimony:

1. He drove the Truck (A Freightliner Horse and Superlink (double) trailer combination with registration numbers CW 52 655 (the “Horse”), DYN 361 FS and DYN 369 FS (the “Trailers”) in the direction of Theunissen in the single south west lane of the R73.

2. As he had come around a curve[7] in the road and upon exiting the curve he noticed a vehicle (the LDV) which was travelling in the opposite direction flash its lights and made a U-turn into his lane and path of travel. This was still some distance away. The LDV put its hazard lights on, slowed down and eventually stopped in Mr High’s lane of travel. The LDV was angled to the right-hand side and the centre dividing line.

3. Mr High started to slow his vehicle down. As he was slowing down, he switched his hazard lights on. He, as is routine in this situation,

checked his rear-view mirrors for the headlights of following traffic and could see none.

4. Imperative is the fact that the evidence of the expert witnesses confirms that the lights of the Bus would not have been visible at this specific time. The Bus would probably have been in the curve or even before it and the headlights would not have been visible to Mr High.

5. Mr High, as he neared the LDV observed what appeared to be children’s clothing scattered in the road and in particular a child’s

sandal near the dividing centre line. Beyond those, something human in shape and form lying near the centre dividing line of the road illuminated by the headlights of the LDV, was also observed by him.

6. He now had to, in a split moment decide as to where he was going to bring the Truck to a standstill. He brought the vehicle to a standstill in the lane in which he was traveling behind the LDV. These are the reasons he submitted for the decision:

6.1 There was not an option to overtake the LDV because it was not known what is happening in the front and whether there were oncoming vehicles. The oncoming lane was very busy. The road was also notorious for illegal drag racing. He had to stay behind the LDV.

6.2 Deciding not to overtake the LDV, he now had to consider the emergency lane to the left. The width of the lane was sufficient to accommodate his vehicle but Mr High had to contemplate the safety of the emergency lane itself. He, as Mr Redelinghuys, came to the conclusion that in light of the object that was lying in the road, it would be better to stop in the lane of travel to warn vehicles coming from the back. He foresaw that there might be numerous people involved in the event that caused the LDV to stop, and to stop in the travelling lane.

6.3 The LDV had proper sight of what was going on in the emergency lane, Mr High did not. In addition, if there were others involved in the incident, they might be sitting in the emergency lane to the left. To stop in the emergency lane in these conditions he might inadvertently, injure or kill other persons who were located there.

6.4 The other very real consideration is that trucks are frequently hi-jacked and because the situation looked suspicious, he was fearful of going into the emergency lane because the grass in the veld immediately to the left was very high. This could conceal potential attackers. He expressed this fear when he told his wife, who was with him in the cab, to lock the doors immediately when he disembarked from the Truck.

6.5 The undisputed reality is that there was a straight stretch of road for at least 700 meters behind the vehicle of Mr High. The Truck was visible from afar. There was not any reason for him to be concerned.

6.6 Before he disembarked, and as he reached for the door handle, he felt a tremendous impact and the rest is common cause history. Immediately prior to the impact, Mr High testified that he heard no hooting or sounds of braking and no screeching of tyres on the tarmac road surface. This was corroborated by Mr Redelinghuys and the experts that studied the scene.

6.7 The video footage that was handed in as Exhibit I confirmed that the Bus drove into the back of the truck at a speed of 92 kilometers per hour without braking.

6.8 The video footage also confirmed that the vehicle of Mr High was properly visible for the Bus to have prevented the collision.

[11] I therefore have to rule on the evidence before court that the position where Mr High parked the Truck was the best option in the circumstances. Another driver, Mr Redelinghuys, had the same options and he reacted the same. Both drivers endeavoured to protect other road users as best they could. They had their attention, rightly so, on other factors of similar importance also and could not be expected to keep an outlook for the oncoming traffic from behind at all times.

[12] The plaintiff maintained, in argument only, that Mr High should have parked in the emergency lane, in the alternative; whilst parked in the lane behind the LDV, he had to keep a lookout for vehicles from behind and removed his vehicle to prevent the collision. This argument is not realistic in any manner on the undisputed situation that existed at the scene.

[13] The question if he could have removed the Truck from harm’s way if he observed the Bus causes two issues; firstly, was it physically possible in the time available and secondly would the Bus not then just drove into the LDV? It is an indubitable fact that the Bus would have crashed into the LDV. Now, was it physically possible for Mr High to remove the Truck in seconds?

[14] This brings me to the relevant evidence of the experts. Both the expert witnesses either agreed or it was not seriously disputed

during their respective testimonies that:

1. Even if the Truck had been in the emergency lane out of the path of travel for the Bus a collision between the Bus and the LDV, which was stationary ahead of the Bus, would have been inevitable.

2. They could not say how long it would have taken the Truck in its fully laden form to have moved from a stationary position in the single lane completely out of the lane out into the emergency lane. It could not have been accomplished in the time since the Bus became visible to make the said manoeuvre.

3. Mr Grobbelaar, the expert for Huysamen Vervoer, was of the opinion that the Truck driver was correct when he stated that in order to move the Truck, he would have had to drive from a stationary position in the single lane completely out of the lane into the emergency lane. The Truck would have had to have travelled at least double its length and approximately 45 to 50 meters forward.

4. Mr Grobbelaar was of the opinion that the Bus would have taken 27 seconds to cover the distance of 700 meter from the curve leading to the point of impact.

5. The experts’ evidence proves that even if the Truck driver observed the Bus as it became visible, he would not have been able to rescue the situation.

[15] In conclusion; the facts show beyond a doubt that Mr High did all that what the reasonable driver could have done in the circumstances.

This finding is corroborated by the manner in which the collision was caused by the Bus driver. He and he alone, caused the accident. The dashcam footage demonstrates that the rear trailer of the Truck was lit by its tail lights and hazard lights. The conclusion of both experts is that it would have been easily visible to a person in the position of the Bus driver to prevent the collision. There is no explanation for the Bus driver’s failure to take any action. He had ample opportunity to do so.

[16] The words of Wessels, CJ in South African Railways v Symington 1935 AD at page 45 states the law:

“ …great care has to be observed lest we stigmatize a person as guilty of culpa when in fact he did all that could be expected of him under the particular circumstances of the case. This involves a correct appreciation not only of the surrounding circumstances but also of human nature, so as to be able to judge correctly what a particular

person ought or ought not to have done in the circumstances. One man may react very quickly to what he sees and takes in, whilst another man may be slower. We must consider what an ordinary reasonable man would have done. Culpa is not to be imputed to a man merely because another person would have realised more promptly and acted more quickly. Where men have to make up their minds how to act in a second or in a fraction of a second, one may think this course the better whilst another may prefer that. It is undoubtedly the duty of every person to avoid an accident, but if he acts reasonably, even if by a justifiable error of judgment he does not choose the very best course to avoid the accident as events afterwards show, then he is not on that account to be held liable for culpa.”

[17] Two inexplicable factors are the cause of the accident; the bag in the road and the failure of the Bus driver to take avoiding action. If only he had stopped as he had the ability and opportunity to do and if only the bag did not lie in the middle of the road.

[18] Intercape Fereira Mainliner (Pty) Ltd, having alleged and relying on the negligence for purposes of their main claim, carries the onus to prove on a balance of probabilities that Mr High was causally and contributory negligent in relation to the collision. As ruled above they did not meet the onus. On their admission and the facts found by the court, the driver of the Bus was the sole cause of the collision.

[19] The quantum of the main claim in the total amount of R4 181 488.96 (comprising of material damages in the amount of R4 155 140.00 and towing costs in the amount of R26 348.96) and the quantum of the counterclaim in the total amount of R264 230.00 (comprising of material damages in the amount of R245 000.00 and towing costs in the amount of R19 230.00) of the counterclaim were reciprocally admitted.[8]

ORDER

[20] In result the following order[9] is made:

1. The main claim against the first and second defendants (Huysamen Vervoer & Mr High) in the High Court action and the counterclaim against the plaintiff (Huysamen Vervoer) in the Regional Court action are dismissed with costs such costs to include the qualifying fees of the expert, Mr Barry Grobbelaar.

2. Judgment is granted in favour of the first defendant as prayed for in the counterclaim in the High Court action together with costs such costs to include the costs of the Regional Court action.

__________________

M OPPERMAN, J

Appearances

On behalf of Plaintiff

(Intercape Fereira Mainliner (Pty) Ltd)

Advocate L Norman

Palm & Holder Attorneys

Roodepoort

c/o Bezuidenhouts Inc.

Bloemfontein

Ref: D MILTON/nv//ID1915

Tel: 051 430 1521

On behalf of First and Second Defendants

(Huysamen Vervoer (Pty) Ltd et Arthur High)

Advocate AL Roeloffze Chambers, Sandton

Norton Lambrianos SA Inc.

c/o Horn and Van Rensburg Attorneys

Ref: SB/JG/Ref: HC0015

Email: jmverwey@hvrprok.co.za

[1] “Plaintiff”/“Intercape”

[2] “First Defendant”/“Huysamen Vervoer”

[3] “Second Defendant”/“Mr High”

[4] Exhibit A page 8 to 9.

[5] Confirmed by the Truck driver in later evidence.

[6] Exhibit A page 10 to 11.

[7] Testimony of the distance and visibility from the curve to the collision site will be dealt with later by way of expert evidence adduced by both parties.

[8] Heads of Argument for First and Second Defendants at paragraph 8 on page 4.

[9] Heads of Argument for First and Second Defendants at paragraphs 65 and 66 on page 39.