Crawleys Locksmiths v Peak Timbers Ltd (NULL) [1995] SZHC 31 (08 March 1995);

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IN THE HIGH COURT OF SWAZILAND


Civ. Case No. 773/90


In the matter between:


CRAWLEYS LOCKSMITHS Plaintiff


and


PEAK TIMBERS LIMITED Defendant


CORAM: Hull, C.J.


FOR THE PLAINTIFF Mr. Khumalo


FOR THE DEFENDANT Mr. Currie


Judgment


(8/3/95)


On 14th September 1988, at about half past four in the afternoon, a "bakkie" owned by the plaintiff collided with a truck owned by the defendant, as the bakkie was trying to overtake it on a straight stretch of road immediately following an "S" bend on the highway from Piggs Peak to Matsamo.


The pleadings in the case, on both sides, have been drawn clearly and succinctly. No facts, as pleaded, have been put unnecessarily in issue. There is also a measure of common ground on the evidence at trial. In the result, the matter comes down to a single question: has the plaintiff shown that probably (by which, if it needs be said, I


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mean on the balance of probabilities) the driver of the truck caused the collision by making without warning a sudden right turn into a side road as the driver of the bakkie was in the process of overtaking him.


The mishap occurred on a fine afternoon. No other vehicles were in the vicinity at the time. It is not in issue that along the straight in question, there is a dirt or gravel road which forms a "T" intersection with the highway on the right hand side (if one is travelling towards Matsamo).


For the plaintiff Mr. George Bosch, who was the driver of the bakkie and one of its employees, gave evidence. He said that he had been following the truck through the "S" bend, which was of some length. He was about 6 metres behind it. He estimated that the vehicles were travelling at 50 kilometres per hour. As they came out of the curve into the straight, he saw that the road was clear. He said that it was his habit, when overtaking a truck, to flash his lights to warn the driver, and that on this occasion he did so. If the driver in front sees such a signal from the one wishing to overtake, and understands what it means, it is no doubt a useful practice. It does not of course relieve the driver behind him of his duty to ensure that he can pass safely. However nothing turns on the point here. I simply mention it in passing.


Mr. Bosch said that he then began to overtake the truck, but that as he did so, it turned suddenly to the right, into the side road. He testified that it did so without any kind of prior warning at all. He was saying that the driver of the truck - Mr. Enock Mdluli, an employee of the defendant - did not indicate, by hand or by his indicating light, or otherwise, that he was going to turn. The front of the bakkie ran into the rear wheels of the truck. On the evidence, it is clear that he was saying and that it is not in dispute that he was referring to the rear right wheels.


On the sketch plan ( a copy of the original) which has been produced by consent as Exhibit A, he estimated the point of impact as being "X", which he marked encircled in red on that plan.


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He said that the truck, as it turned into the side road, dragged the bakkie with it, depositing it on the edge of a donga at the entrance to the side road in a position which he indicated on the sketch plan, in red, as "B2". What he was saying, as I understood him, was that at the point where the side road joins the main road, a donga or drain runs under a concrete bridge of sorts, and that the bakkie ended up on the Piggs Peak side of the dirt road, at the intersection, partly into the donga or at least very nearly into it.


He also testified that the truck went on a short distance into the side road, stopping in the position that he marked as "A2" in red on Exhibit A.


His passenger, a Mr. Collins, broke his leg in the accident. He himself sustained a cut on his forehead. Mr. Mdluli, who had dismounted from the truck, came up to him. Mr. Bosch asked him why he had not signalled that he was turning off the road whereupon Mr. Mdluli, without saying anything, went back to the truck and turned on the indicating light.


Mr. Bosch said that after that, people begun to gather around the scene. Within 5 to 10 minutes an ambulance arrived. Mr. Collins and he were taken away for treatment. He said that by that time, no policeman arrived while he was still at the scene and that he had not made a statement to anyone there.


He was the only witness called for the plaintiff. He said that he believed that Mr. Collins had subsequently returned to Canada.


Mr. Mdluli said that although he had been looking in his rear view mirrors, he was at no time aware that any vehicle was behind him. He said that there was no vehicle behind him. As he came out of the "S" bend, he signalled by his indicator lights, that he was turning to the right. He said that he later ascertained on an inspection of the scene that he did so some 160 paces before the intersection.


He also said that his truck had eight gears and that as he approached the side road, he changed down to second gear and reduced speed to about twenty kilometres per hour.


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As he turned into the side road, he heard a noise behind him. At that point the truck was already well into the turn, and by then what he could see in his rear vision mirrors were the trees on the other side of the main road. He was also saying, quite clearly in the context of his evidence if not explicitly, that what he heard was the sound of the collision. It was not suggested that there was any other cause for the noise. It alarmed him and he brought the truck to a stop in the side road.


He testified that as the truck made its turn, the indicating light turned off automatically. He got out and went over to the bakkie. He said that the occupants were injured and he got a bowl of water for them and also stood by the road to summon help from vehicles that might pass.


Mr. Mdluli said that he did not exchange any words with Mr. Bosch (or Mr. Collins) at all, and that he did not go back to the truck and switch on the indicating lights. He also said that while he understood a little English, he did not speak it.


The bakkie after the accident stood in the right lane (i.e. if one is travelling from Piggs Peak to Matsamo). No one moved it.


Constable Hlatshwayo also gave evidence for the defendant. He said that he had been on foot patrol in Piggs Peak when he was informed of the accident. He had gone to the hospital, and from there went in the ambulance with its crew to the scene of the accident. He had been in uniform. The crew were not wearing uniforms.


At the scene he had taken measurements and made observations, and he had also talked to both of the drivers before Mr. Bosch and Mr. Collins were taken away in the ambulance. He had introduced himself as a policeman. He did indicate in his evidence that he had no doubt in his mind that, at the time, Mr. Bosch was aware that he was a policeman. In answer to a question that I put to him, Constable Hlatshwayo recalled readily that it had been a fine day.


The Constable prepared the original sketch plan of which Exhibit A is


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an agreed copy. He explained that police dockets were only kept for five years.


He said that he found the bakkie and the truck in the positions shown at "B" and "A" in Exhibit A. At the point marked D on the plan, he had observed dried mud and glass on the road. He also observed between the point marked "B4" on the plan and the point marked "K", a skid mark which he depicted on the plan. He had measured the distance between those two points as 91 paces.


He denied that the bakkie had been in the position at "B2" on the plan.


When he had observed the vehicles at the scene, neither had had its indicating lights on.


The plan prepared by Constable Hlatshwayo depicts the bakkie as being on the highway, facing squarely along the road from the direction of Piggs Peak towards that of Matsamo but in the opposite lane (i.e. in the lane from Matsamo to Piggs Peak), and parallel to and close to the centre line. It also depicts the front of the vehicle as being forward of Constable Hlatshwayo's "point of impact", by which I mean the place at which he said he found glass and dried mud. That point is in fact about half way along the left of the bakkie, just to the right of the centre line. It depicts the truck as being in the side road, but nearer to the point at which Mr. Bosch said that it stopped. The Constable's "point of impact" is further back towards Piggs Peak than the one estimated by Mr. Bosch (which he encircled "X" in red on the plan).


The plaintiff bears the burden of proving its case. In my judgment it has failed to discharge it.


In demeanour, Mr. Bosch appeared to be a composed, sincere witness, but I did not by that criterion find either of the defendant's witnesses to be implausible either. Mr. Mdluli was more taciturn then the other two men, perhaps, but I do not consider that anything adverse to him turns on that at all.


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There is nothing in the evidence that leads me to infer that Mr. Bosch's version of events is correct and that the defence witnesses are not telling the truth. It did strike me as a little unlikely that Mr. Mdluli would not have spoken to him after the accident, especially as he said that he went to fetch water for the injured men and also said (as I understood him) that he obtained the bowl for them from the bakkie itself. But the point about the bowl was not explored or challenged in cross-examination, and Mr. Mdluli has testified that he does not speak English. I see no reason to disbelieve him. Counsel for the plaintiff sought to test his credibility by asking him whether a river ran along the side of the road. He said that one did. Constable Hlatshwayo said that there was not one. There was however a donga and a drainage ditch that ran under the entrance to the side road. I do not consider that Mr. Mdluli's credibility is shown to have been impeached.


There are, on the other hand aspects of the evidence that are difficult to reconcile with Mr. Bosch's account.


Constable Hlatshwayo is an independent witness. It was not suggested otherwise. I also found him to be a credible witness. He said that he found the bakkie in the middle of the right lane, in the position I have described. This contradicts directly the testimony of Mr. Bosch. It is apparent that the policeman could not say that it had been moved before he arrived, but it was not the evidence for the plaintiff that anyone had attempted to do so. Constable Hlatshwayo said that on his arrival neither vehicle had its indicator lights on, and he contradicts Mr. Bosch's recollection that he was not spoken to by any police officer at the scene.


The most telling point in favour of the defence however, in my view, is the evidence of the constable as to the tyre mark. By the end of the case, counsel for the plaintiff conceded that it was not in issue that it was a mark made by the bakkie. He did dispute its length. The constable said however that it was 91 paces in length. On the plan he indicated it as running from point "K", (depicted as being just inside the end of the bend) to point "B4" (which was the back right wheel of the bakkie in the position in which the constable said that he found it). There is no direct evidence refuting this evidence


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from the policeman. It was not suggested to him that he was making it up. Mr. Bosch did not say that immediately after the accident, he inspected the scene himself. Moreover the constable said that he observed dried mud and glass alongside the bakkie. I do not think that the point which counsel sought to make - that if that were the point of impact, the bakkie would not be in front of it - is in any way sustainable.


I accept the evidence of the constable that he has accurately depicted the skid mark. It is not patently inconsistent with Mr. Mdluli's evidence that he was present, recently, when a distance of 160 paces was measured out from the point at which he reckoned that he had put on his indicating lights until the turn off.


Once it is accepted that the skid mark is as Constable Hlatshwayo described it, then in my view it becomes very difficult to believe Mr. Bosch's account. He was not saying that he had to brake at the end of the bend. What he was saying was that he accelerated as he came out of the bend and went to pass the truck and that then, further down the road, it suddenly turned in front of him.


This is not a criminal trial and I am not saying at all that I find Mr. Bosch to be a dishonest witness, but these events happened over six years ago, he was one of the drivers involved in the accident, and I am not able to accept his recollections now, in the face of the evidence of Constable Hlatshwayo.


With respect, I find Mr. Currie's closing submissions very persuasive. I am satisfied that in cross-examination Mr. Bosch was given a reasonable opportunity (if not one that was completely explicit) to deny that he had come up upon the truck at speed, and had to brake sharply in an unsuccessful effort to avoid it. Mr. Currie's theory, on the whole of the evidence at the end of the case, is that the bakkie was some distance behind the truck as the first vehicle came through the "S" bend; that the truck in the straight slowed down to about 20 kilometres per hour (which of course it would have to do to turn safely); and that Mr. Bosch, coming at speed around the bend,


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suddenly found himself confronted by it at something at more then 91 paces ahead, and applied his brakes to try to avoid the collision.


I find that a much more likely reconstruction. It would explain the tyre mark. It would also explain why Mr. Mdluli was insistent that nothing was behind him when he began to turn - and it would also explain the accident.


The plaintiff's claim therefore fails. I give judgment, with costs, in favour of the defendant.


DAVID HULL


CHIEF JUSTICE