Matheus v Namwater Corporation Ltd and Another (3554 of 2009) [2012] NAHC 89 (30 March 2012);
REPORTABLE
CASE NO: I 3554/2009
IN THE HIGH COURT OF NAMIBIA
MAIN DIVISION
HELD AT WINDHOEK
In the matter between:
MR J I MATHEUS
….................................................................................................PLAINTIFF
and
NAMWATER CORPORATION LIMITED
…...................................................1ST
DEFENDANT
MR WILBARD THOMAS
…............................................................................2ND
DEFENDANT
CORAM: HOFF, J
Heard on: 14 October 2010
Delivered on: 30 March 2012
JUDGMENT
HOFF, J: [1] The
plaintiff instituted an action against the first and second
defendants for damages suffered by the plaintiff during a collision
between two motor vehicles.
[2] It is not disputed that the
plaintiff was the owner of a white 1997 Toyota Corolla motor vehicle
(the Corolla) with registration number N 31003 W. On 6 January 2009
and on the national road from Ogongo to Oshikuku a collision occurred
between plaintiff’s vehicle and a 7 ton truck with registration
number N 90512 W the property of the first defendant driven by the
second defendant.
The particulars of claim alleged that
the second defendant was acting in the course and scope of his
employment with the first defendant, alternatively within the ambit
of risk created by such employment, and that the sole cause of the
collision was the negligent driving of the second defendant.
The plaintiff alleged that as a result
of the negligence of the second defendant plaintiff’s motor
vehicle was damaged beyond economical repair and that the plaintiff
suffered damages in the amount of N$46 900.00 being the difference
between the fair and reasonable value of plaintiff’s motor
vehicle prior to the collision, less the salvage value thereof,
together with the fair and reasonable tow in costs in respect of the
plaintiff’s vehicle after the collision.
[3] The plaintiff in its particulars
of claim alleged that the sole cause of the collision was the
negligent driving of the second defendant in that he inter alia:
failed to take
cognisance of plaintiff’s vehicle which was executing a
right-hand turn;
attempted to overtake
plaintiff’s vehicle at a time when it was dangerous and
inopportune to do so;
failed to take notice of
plaintiff’s intention to execute a right hand turn;
failed to apply his
brakes timeously or at all;
drive at an excessive
speed in the circumstances;
failed to avoid a
collision when he could have and should have done so.
[4] Plaintiff claimed for judgment
against first and second defendants, jointly and severally the one
paying the other to be absolved for:
Payment in the amount of
N$46 900.00;
Interest on the
aforesaid amount at the rate of 20% per annum, calculated from date
of judgment to date of final payment;
Costs of suit.
[5] The second defendant pleaded as
follows:
“The second
defendant denies that he was negligent but should it however be found
that the second defendant was negligent (which is denied) then it is
pleaded that such negligence of the second defendant was not the
cause or a contributing factor to such collision.
The collision was caused
by the sole negligence of the plaintiff who was negligent in one or
more of the following respects:
1. he failed and/or
neglected to keep a proper look-out;
2. he failed and/or
neglected to have due regard to the presence of other motor vehicles
on the road, particularly the first defendant’s motor vehicle;
3. he failed and/or
neglected to remain in his lane, alternatively he failed and/or
neglected to indicate his intention to execute a right-hand turn;
4. he drove straight in
front of the first defendant’s motor vehicle while the second
defendant was in the process of over-taking his motor vehicle;
5. he failed and/or
neglected to avoid a collision when it was reasonably expected of him
to do so and/or when under the circumstances prevailing he could and
should have done so.
In the event of it being
held by the above Honourable Court that the second defendant was
negligent and that his negligence was a cause of the collision, all
of which is still denied, then and in that event defendants aver that
the plaintiff was also negligent and that his negligence contributed
to the collision. Particulars of plaintiff’s negligence are
set-out in the preceding sub-paragraph.”
[6] The parties had agreed that this
Court should only consider the issue of negligence and that the issue
of quantum would subsequently be considered by the parties.
[7] Julius Matheus testified that he
was the owner of the Corolla which was involved in a collision with a
truck. On 6 January 2009 he was driving from Outapi to Oshikuku. His
father was a passenger. It was about 16h30 and the visibility was
good. He indicated his intention to turn to the right since his house
was on the right side of the road. On the right hand side of the road
were cuca shops. He activated his indicator about one hundred metres
prior to his intended turn off point at a gravel road. There were no
approaching vehicles but he saw the truck in his rearview mirror. His
vehicle was then hit by the truck at the right rear side and damaged
all along the right side of the vehicle until the engine compartment
– from the right rear bumper, both doors on the right side
until the front bumper. The damage was caused by the wheels of the
truck which also went over the bonnet of the motor vehicle.
The point of impact was to the right
of the line marking the middle of the road. Prior to the collision he
had reduced his speed to 20km/h and thereafter he turned to his
right. After the collision his vehicle veered to the left, and came
to a standstill on the left hand side, off the tarred road. He
testified that he overtook the truck about 2 km prior to the turn off
where the collision occurred.
[8] During cross-examination he
testified that he overtook the truck in Oshitutuma and thereafter the
truck followed him for two to three kilometers before the accident.
According to him there is a turn off at the bridge across a canal and
the cuca shops are situated on the other side once one has crossed
the bridge. At this turn off there is no road sign indicating that
there is such a turn off. He could not tell how far the truck was
behind him when he put on his indicator but he saw the truck in his
rearview mirror. He did not see when the truck was overtaking him but
the truck was following him for about two to three kilometers prior
to the collision. The witness denied the allegation that he never put
on his indicator prior to the collision, denied that he turned in
front of the truck which was busy overtaking him, denied that the
first point of impact was on the right front door of his motor
vehicle, and denied that he neglected to see the truck overtaking
him.
[9] The plaintiff closed its case
whereafter the second defendant Mr Wilbard Thomas testified.
He testified that he worked for
Namwater since 1979 and was employed as a driver at the time of the
collision. On 6 January 2009 he was the driver of the truck and was
on his way from Ogonga to Oshakati. They left Ogonga at 15h00 and the
accident occurred about 15h30. He followed the car of the plaintiff
for about three minutes and started to overtake when he was about 20
metres behind plaintiff’s vehicle indicating that he was busy
overtaking. The vehicle of the plaintiff then started to move into
the right hand lane in which he was travelling and he then hit the
car of the plaintiff. He denied that the plaintiff had indicated that
he was turning right, and denied that he was driving with an
excessive speed in the circumstances.
He testified that he saw no roads
which turned off from the main road and neither did he see any road
signs. He confirmed that there was a canal next to the main road. He
testified that the cuca shops were on the left hand side of the main
road and that he tried to avoid the accident. He denied that the
first point of impact was on the right rear of plaintiff’s
vehicle.
[10] During cross-examination this
witness denied that the plaintiff overtook him two to three
kilometers before the point where the accident occurred but confirmed
that he had seen the plaintiff’s vehicle for about two to three
kilometers driving in front of him prior to the accident. Second
defendant testified that he did not find it normal for a motor
vehicle to proceed at a speed of 20 km/h on a national road. He
denied that he failed to keep a safe distance behind the Corolla.
[11] During cross-examination second
defendant conceded that he was catching up with plaintiff’s
vehicle. He could not dispute that there was a gravel road from the
tarred road leading towards the bridge across the canal. He testified
that he had applied brakes prior to the collision in order to see
whether there were any oncoming traffic. His evidence regarding when
he applied brakes was inconsistent. He first testified that after he
had applied brakes just before overtaking plaintiff’s vehicle
he never again applied brakes. However later during cross-examination
he testified that he had applied brakes continuously until his
vehicle had come to a standstill. During cross-examination the second
defendant testified that he tried to avoid the accident by swerving
to the right prior to the collision. However when he was asked to
demonstrate the position of the vehicles prior to impact he indicated
that the truck he was driving was travelling in a straight line on
the right hand side of the road. Second defendant later conceded that
his testimony that he took evasive action prior to the collision was
incorrect since he did not take such action but was driving in a
straight line prior to the collision. Second defendant also testified
that during the accident the left wheel of the truck went over or
crawled over the bonnet of plaintiff’s vehicle. The second
defendant agreed that point “A” on the sketch plan
correctly reflected the point of impact on the road.
[12] Mr Nico da Cunha testified that
he was employed by Namwater since 1981. He was at the time of the
collision a mechanic and was a passenger in the vehicle driven by the
second defendant. He first saw the vehicle of the second defendant
when it was about 100 – 200 metres in front of them. They were
travelling approximately 70 – 80 km/h. The second defendant
indicated that he was going to overtake. The vehicle in front of them
was driving much slower, but showed no sign that it intended to turn.
When second defendant put on his indicators they were about 20 metres
behind the Corolla motor vehicle. The vehicle in front of them
suddenly turn to the right and the truck hit that vehicle on the
driver’s door but nearer to the fender. He denied that the
truck hit the Corolla at the right rear side of the vehicle as
testified by the plaintiff. He explained that the damage to the rear
side of the Corolla was caused after the first impact when the
rear of the Corolla was thrown against the truck.
[13] He testified that he did not see
second defendant applying brakes prior to the accident – they
did not slow down. He further testified that prior to the impact the
driver of the truck increased the speed in order to overtake
from 75 km/h to 80 km/h.
[14] Mr da Cunha testified that
plaintiff’s vehicle was driving slowly. When asked whether the
second defendant tried to avoid the accident he replied that the
collision occurred so fast that second defendant could not control
the vehicle and did not even had time to think (to take evasive
action). He further testified that he did not see plaintiff’s
Corolla vehicle overtaking the truck prior to the accident.
[15] He testified that he himself
being a motor vehicle driver found it strange that a motor vehicle
would be driving at a speed of 20 km/h on that road and that he had
thought at the time that the reason for such slow speed could have
been that the vehicle had sustained some or other damage and that
there was a possibility that the vehicle would try to get off the
road.
[16] During the evidence in chief of
the second defendant a photograph of a tarred road was shown to him
and he was asked to identify the road. He stated that it depicts
where the accident occurred. He was asked whether he could see any
turn off to the right hand side to which he replied in the negative.
[17] Mr Erasmus objected on the basis
that the photograph was never presented to the plaintiff and
plaintiff was never afforded the opportunity to express his view on
the said photograph. In view of the fact that second defendant was
not in a position during cross-examination to dispute the fact that
there was indeed at the place where the accident occurred a gravel
road leading to a canal I shall disregard the testimony of second
defendant that he couldn’t see a turn off on the photograph.
[18] What is common cause is that at
that gravel road there are no road signs marking it as a turn off.
[19] Mr Erasmus submitted that this
Court should find that the probabilities are in favour of the
plaintiff’s version in respect of the events prior to the
collision and asked this Court to make negative credibility findings
in respect of the defendants’ version. He referred this Court
to the authoritative work of Cooper on Motor Law 2nd
edition p. 434 where vehicle speed is considered. The leanred
author remarked that vehicle speed is commonly indicated by the
speedometer in terms of kilometers per hour as these units are
appropriate to the distances and times which are involved in the
usual car journey. However where events take place over much shorter
distances and in much shorter terms as in traffic accidents it is
more appropriate and more convenient for calculation, to express
vehicle speed in units of metres per second in terms of the following
conversion: speed in metres per second is equal to speed in
kilometers per hour divided by 3.6.
It was submitted by Mr Erasmus that
this conversion entails a simple mathematical calculation and that
the evidence of a reconstruction expert is not necessary. In terms of
this conversion a motor vehicle which travels at 80 km/h covers a
distance of 22 metres in just one second.
[20] It was submitted on this
calculation that when the second defendant activated his indicator 20
metres behind the vehicle of the plaintiff when he started to
overtake, the plaintiff would not have been in a position to see such
an indicator since it would have taken second defendant about one
second to cover the distance of 20 metres between the truck he was
driving and plaintiff’s vehicle.
Mr Erasmus submitted that second
defendant drove with an excessive speed in the circumstances and
overtook plaintiff’s vehicle when it was dangerous or not safe
to do so.
[21] Mr Conradie submitted that had
plaintiff activated his vehicle’s indicator to turn to the
right about 100 m before the turn off as testified by plaintiff
second defendant would not have overtaken the plaintiff’s
vehicle. He submitted that since there was from the evidence of
second defendant and the testimony of his passenger no reason to
suspect that the Corolla would turn to the right, that second
defendant was perfectly entitled to overtake plaintiff’s
vehicle and would have overtaken the vehicle safely had plaintiff
remained in the left hand lane and that it was plaintiff’s
unexpected turn to the right when second defendant was busy
overtaking him, which was the sole cause of the accident.
[22] I have indicated (supra)
that the second defendant had contradicted himself on material
aspects during his testimony: he testified that he tried to avoid the
accident by swerving to his right but later testified that such
testimony was incorrect since he did not swerve to his right.
Incidentally in his plea the second defendant also alleged that he
tried to avoid the accident by swerving to the right and on to the
gravel (next to the road).
Second defendant was also inconsistent
regarding when he applied his brakes. In his evidence-in-chief he
testified that he applied brakes prior to the collision but not
thereafter but later during cross-examination he had applied brakes
continuously until his vehicle came to a standstill. The second
defendant conceded during cross-examination that his truck came to
standstill about 150 metres from the point of the collision to the
left hand side of the road. There is however no indication on the
sketch plan of any brake marks on the tarred road and off the tarred
road having regard to the fact that the police arrived on the scene
soon after the accident and whilst the second defendant was still on
the scene of the accident. Second defendant testified that
measurements were taken by the police while he and his supervisor
(who travelled in a bakkie behind his truck) were still on the scene.
[23] Mr Conradie objected to evidence
in respect of information contained in the key to the sketch plan on
the basis that such evidence is inadmissible because the author
thereof did not testify. The sketch plan and key thereto were
discovered in terms of Rule 36.10 of the Rules of the High Court and
the sketch plan was received as evidence and marked as exhibit “A”.
In Shield Insurances Co. Ltd v Hall
1976 (4) SA 431 (AD) at 438 E Galgut JA referred with approval to the
case of Mabalane v Rondalia Assurance Corporation of SA Ltd
1969 (2) SA 254 (W) where Hiemstra J with reference to Rule 36.10
said:
“I am of the
opinion that the words ‘plan, diagram, model or photograph’
only apply to representations of physical features of the relevant
place or object which can be objectively determined.”
[24] The Court in Shield Insurance
(supra) at 438 F remarked as follows:
“I found myself in
agreement with the above-mentioned learned author and with the dictum
of Hiemstra J. It
follows that I am of the view that, if the pre-requisites are
established Rule 36(10) creates an admission only (i) as to the
authenticity of the document, i.e. it dispenses with the need to call
the author of the plan or to provide other proof of its authorship,
and (ii) as to the physical features actually found by the author.”
and continues at 439 A
“It follows from
what has been said above that regard can only be had to the physical
features depicted on the plan, viz. the road, the earthbank, the gap,
the position of the vehicles and tracks as depicted by the policeman.
Physical features would, in my view, include the measurements
relating to these features.”
[25] It should be apparent that it was
not necessary to call the police officer who drafted the sketch plan
to testify regarding the sketch plan and the key thereto.
Nevertheless the second defendant did not dispute the measurements in
particular that the truck driven by him came to a standstill 150 m
from the point of collision.
[26] On the issue of braking prior to
the collision second defendant is contradicted by his passenger, Mr
da Cunha, who testified that prior to the collision the truck never
slowed down, on the contrary the speed of the truck increased from 75
km/h to 80 km/h in order to overtake plaintiff’s vehicle.
[27] If one has regard to the
testimony of Mr da Cunha regarding the increase of the speed of the
truck together with the evidence that the truck came to a standstill
about 150 metres from the point of collision the probabilities are,
and it is safe to accept, that the second defendant at no stage prior
to the collision applied the brakes in order to slow down the truck.
In fact the second defendant conceded during cross-examination that
prior to the accident he travelled at about 80km/h and continued to
travel at this speed until the point of impact.
[28] The concession made by the second
defendant during cross-examination that he never swerved to his right
in order to avoid the accident is supported by his passenger Mr da
Cunha who testified that when second defendant overtook plaintiff’s
vehicle he was driving in a straight line in the right hand lane and
that the collision occurred so suddenly and unexpectedly that there
was no time for the second defendant to react. The evidence of the
second defendant that he tried to avoid the collision is therefor
rejected.
[29] A bone of contention between the
plaintiff and the defendants was exactly where on plaintiff’s
motor vehicle the truck first struck plaintiff’s motor vehicle.
The plaintiff testified that his vehicle was first hit on the right
rear side and that in the process of overtaking, the truck damaged
the whole right side of his vehicle including the right front fender
and the bonnet when the left wheel of the truck went over the bonnet.
The second defendant and his passenger
Mr da Cunha disagreed. They testified that the first point of impact
was on the right front door or on the right front tyre and that the
damage to the rear of the car was caused after the initial impact
when the rest of the car collided with the overtaking truck. Mr
Conradie referred to it as the primary and secondary points of
damage. I agree with the submission by Mr Conradie that the primary
point of damage must have been as testified by second defendant and
Mr da Cunha. If one has regard to the damage to the Corolla as it
appears on photographs taken after the accident had the truck first
hit the car at the right rear end one would have expected far greater
damage at that section of the car. If one has regard to the fact that
the right rear lights of the vehicle on one of the photographs were
undamaged this tends to support the evidence that plaintiff’s
vehicle was not first struck as testified by plaintiff.
[30] I can understand why Mr Erasmus
strongly argued that the first point of impact on the plaintiff’s
vehicle must have been on the right rear side. It was to lay a
factual foundation for his submission (in support of plaintiff’s
evidence) that the second defendant drove with an excessive speed in
the circumstances especially if one has regard to the extensive
damage to the plaintiff’s vehicle.
[31] I have indicated earlier that it
is not in dispute that the collision occurred on the right hand lane
of the road. In view of my finding that the second defendant prior to
the accident travelled approximately 80 km/h and never reduced speed
but continued to overtake plaintiff’s vehicle, is a clear
indication of excessive speed in the circumstances. Second defendant
found the slow moving vehicle as unusual and in those circumstances
should have been alerted that plaintiff’s vehicle might be
turning off the road and should have reduced his speed to such an
extent to anticipate to any eventuality. There was a gravel road
leading from the tarred road and second defendant must have realised
that the Corolla could turn onto that road.
I say this even if it is accepted, as
testified on behalf of the defendants, that the plaintiff never
activated his right indicator prior to the collision.
[32] Defendants pleaded should this
Court find second defendant was negligent that plaintiff’s
negligent conduct contributed to the collision.
[33] The plaintiff testified that he
gave notice of his intention to execute a turn to the right by
indicating about 100 metres prior to his intended turn off and that
he reduced his speed from 120 km/h and eventually to 20 km/h.
The second defendant and his
passenger, Mr da Cunha, denied that the plaintiff had activated his
indicator at any stage. It was submitted by Mr Erasmus this Court
should reject the evidence of the defence witnesses since both of
them were not credible witnesses.
I have (supra) indicated
contradictions regarding the evidence of second defendant in his viva
voce evidence, and certain contradictions between his evidence
and the evidence of Mr da Cunha. These related to the question
whether evasive action had been taken and whether second defendant
had reduced speed prior to the collision. Does it mean that this
Court must therefore reject their version regarding the issue whether
or not the plaintiff had timeously, or at all, activated his
indicator prior to the collision ? I do not think that the plaintiff
has a greater claim to credibility than the two defence witnesses on
this point. This is so because the plaintiff during his
evidence-in-chief testified that he saw the truck overtaking his
vehicle. However during cross-examination he repeatedly denied that
he had seen the truck overtaking his vehicle. The two versions are
mutually destructive and I cannot find that the plaintiff has
succeeded in proving on a preponderance of probabilities that he has
given timeous notice of his intention to turn right.
Furthermore, what are the
probabilities that the second defendant would have overtaken the
vehicle of the plaintiff, had the plaintiff indicated a 100 metres
prior to the point of the collision of his intention to do so ? I am
of the view that it is highly unlikely that the second defendant
would have proceeded to overtake the plaintiff. It is on this basis
that I am of the view that the plaintiff’s manoeuvre to turn to
his right constituted negligence on his part in the circumstances.
[34] In Cooper Motor Law 2nd
edition Volume 2 on p. 88 the learned author remarks that
there is a “judicial conflict on the assumptions a driver who
is about to execute a right-hand turn is entitled to make vis-à-vis
following traffic. One view is that such a driver, who has given
adequate signal timeously, is, in the absence of special
circumstances, entitled to assume that his signal has been seen and
will be heeded. The other view is that such a driver may not make
that assumption, but must satisfy himself that the following traffic
has seen his signal and is reacting to it”.
[35] In S v Olivier 1969 (4) SA
78 NPD Miller J (as he then was) considered this judicial conflict in
a full bench decision and remarked as follows on 81 H:
“When considering
the validity of the proposition that a driver is entitled, in the
absence of special circumstances, to assume that his signal has been
observed and will be heeded by other users of the road likely to be
affected by the movements of his vehicle, it is necessary to bear in
mind that, as Schreinder, JA pointed out in Moore
v Minister of Posts and Telegraphs,
1949 (1) SA 815
(AD) at p. 825.
“ … every
driver whenever he drives along thoroughfares frequented by other
vehicles and pedestrians is constantly and legitimately making
assumptions as to their probable behaviour.” ”
and continues at 82 B – G as
follows:
“It seems to me
that, with reference to the assumption with which we are now
concerned, there is a vital difference, for example, between the case
where a motorist is driving, of necessity very slowly in a
traffic-laden street and the case where he is driving at speed on an
open highway. In the former case, where vehicles are proceedings
almost as in a procession, only a few feet or yards separating each
vehicle from the one behind it, a driver who wishes to turn to his
right down a street intersecting the one along which he is
travelling, may well be entitled, in regard to the vehicles coming on
slowly behind him, to do so. If he assumes that his signal will be
seen by the driver of the vehicle behind him who will accommodate his
progress to the turn of the vehicle ahead and not run into it as it
turns, such assumption may well, in the vast majority of cases, be
held to be a legitimate one. But not so, I think, in the case of a
motorist who is travelling along a national road on which it is a
common experience to be overtaken at high speed by other vehicles.
Such a motorist would, I think, if he were reasonably diligent,
before or at the time of giving a signal of his intention to turn
right, make a special point of ascertaining, with the aid of his
rear-view mirror, or otherwise, whether there were any vehicles
coming on behind him. And, a
fortiori,
he would also keep a keen look-out ahead for vehicles approaching
from the opposite direction and into whose line of travel the
proposed right-turn would necessarily take him. If the road ahead
were entirely free of danger but a vehicle were to be seen by him
approaching from behind at no great distance but at speed, he would
in my opinion be taking an unjustifiable risk if, without paying any
further attention to the movements of that vehicle, he were simply to
execute his right-hand turn on the blithe assumption that the driver
thereof had seen and understood his signal and would heed it.”
[36] The learned judge concluded at 83
H – 84 A as follows:
“The driver
intending to turn to the right, across a route which may be taken by
other traffic, must necessarily bear in mind that he will be
undertaking a potentially dangerous operation … and must
therefore be careful to “choose an opportune moment to cross …
and do so in a reasonable manner”. (Per VAN WINSEN, AJA in
Sierborger
v South African Railways and Harbours,
1961 (1) SA 498
(AD) at p. 504)
This seems to be the
ultimate test to apply in deciding whether a right-hand turn of the
kind now under consideration was legitimately or culpably undertaken;
the inquiry is: was it opportune and safe to attempt the turn at that
particular moment and in those particular circumstances ? Whether it
was opportune and safe, or not, will depend upon whether a diligens
paterfamilias in the position of the driver
at that time and in the circumstances prevailing would have regarded
it as safe.
(CF Kruger v Coetzee 1966 (2)
SA 428 (AD) at p. 430).”
[37] I have found that plaintiff did
not prove on a preponderance of probabilities that he had activated
his indicator timeously. Even if it is assumed that he did so the
test is: was it opportune and safe to make a right hand turn in those
circumstances ?
[38] What were the circumstances ? On
plaintiff’s version he overtook the truck 2 – 3 km prior
to point where the collision occurred. He was thereafter aware of the
truck behind him. He testified that before he turned he looked in his
rearview mirror and reduced speed eventually to 20 km/h. The evidence
is not clear what a distance and for how long he was driving at this
speed. It is common cause that the truck quickly closed the distance
between the two vehicles and plaintiff must have been aware of this.
The plaintiff testified that he had expected the truck to stop behind
him prior to him making the right-hand turn. This in my view would
have been a reasonable assumption had the incident occurred in an
urban area. In my view as stated in Olivier (supra), the
common experience is that a slow moving vehicle travelling along a
national road is more often than not overtaken at high speed by other
vehicles.
The plaintiff must shortly after
overtaking the truck have started to reduce speed in order to make
the intended right-hand turn. The vehicle driven by the second
defendant was a distance behind him and was closing in. The plaintiff
was unable to say how far the truck was behind him when he activated
his indicator.
There is no evidence how often the
plaintiff looked in his rearview mirror whilst driving in front of
the truck. In my view the plaintiff ought to have ascertained in
whichever manner whether the truck was still behind him prior to
executing the right-hand turn since this is what the reasonable
driver on a national road in the circumstances would have done. The
plaintiff did not pay further attention to the truck when he was
about to make the right-hand turn. This conduct in the circumstances
constitutes negligence since it was not opportune and safe to do so
in those circumstances.
[39] My finding is thus that both the
plaintiff and the second defendant were negligent in equal measure in
the circumstances and that plaintiff is only entitled to half the
damages suffered (such damages still needs to be proved).
In respect of the issue of costs since
the plaintiff was not substantially successful in his claim for
damages it is ordered that each party pays its own costs.
________
HOFF J
ON BEHALF OF THE PLAINTIFF: MR
ERASMUS
Instructed by: FRANCOIS ERASMUS &
PARTNERS
ON BEHALF OF THE 1ST
AND 2ND
DEFENDANTS MR
CONRADIE
Instructed by: CONRADIE &
DAMASEB