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
Zapatillas Running 