F and R Panel Beaters and Spray Painters (Pty) Ltd v Nokuthula Gumede (55/1999) [2000] SZSC 19 (31 May 2000);

Beck J.A.

This is an appeal against a judgment of Sapire C.J. in which he found that the driver of a bus owned by the appellant negligently caused, and was solely to blame for, a collision between that bus and a kombi owned by the respondent. It was conceded by the parties that the respective drivers were acting in the course and within the scope of their employment at the time, and it was agreed by the parties that the trial court would not be concerned with the issue of quantum but would try the issue of liability only.

Both vehicles were travelling in the same direction along a fairly narrow tarred road, on both sides of which were raised concrete kerbs. Alongside the road to the left of the direction of travel of these vehicles there were residential properties to each of which vehicular access was facilitated by a gap in the concrete kerbing through which vehicles could gain entry to the front gate of the property. Alongside the road to the right of the vehicles there were no residential properties and no gaps in the concrete kerbing. Hence there was no need, nor any opportunity, for a vehicle to turn to its right.

The kombi was ahead of the bus, and its destination was one of the properties to the left of the road. When the kombi was approaching the gap in the kerb into which the driver intended to turn he engaged his left flicker indicator and slowed down. At this moment the bus was about 150 metres behind the kombi.

The facts that I have recounted thus far were common cause. What happened thereafter was in dispute.

The driver of the kombi testified that, after engaging his left flicker and because of the somewhat narrow road and ungenerous gap in the raised kerbing through which he wished to go, he moved the kombi towards the right side of the road as he was slowing down so as to give himself a wider and more convenient turn into the property that was his destination. The bus was sufficiently far behind him not to be inconvenienced by this widening of the arc of his turn, and there was no oncoming traffic to prevent him from momentarily encroaching on the right side of the road.

In those circumstances the action of the driver of the kombi in thus creating for himself more space for the intended left turn out of the road and through the gap in the kerb was a perfectly normal and safe manoeuvre, and it should have been obvious to the bus driver that the kombi was about to turn to its left out of the road in accordance with the indication being conveyed by its left flicker.

Instead of moderating his speed, if necessary, to allow the kombi to complete the left turn that was being indicated, the bus driver, on his own admission, actually accelerated, with the result that the front of the bus collided with considerable force against the left front door of the kombi while the kombi was in the process of turning into the entrance to the property that was its destination.

In argument before us Mr Khumalo, who appeared for the respondent, very properly conceded that on the above facts the kombi driver cannot be said to have been negligent, and that the collision would have been caused entirely by the negligence of the driver of the bus. However, Mr Khumalo urged us to find that the learned Chief Justice erred in finding the evidence of the driver of the kombi to be credible, and he submitted that the trial court should have found that the collision occurred in the circumstances described by the driver of the bus.

It must be said at the outset that those circumstances grew markedly in the telling thereof. The respondent’s case initially was that after the left flicker was engaged the kombi proceeded to move entirely out of the left half of the road and went completely into the right half of the road. The bus driver, allegedly confused by this behaviour, decided to accelerate and overtake the kombi on its left, but as the bus was in the act of overtaking it the kombi turned back onto the left side of the road partially in front of the bus and the vehicles collided.

As the evidence of the bus driver progressed the assertion was added that the left flicker went off when the kombi moved onto the right side of the road. Next it was said that, having moved over to the right half of the road and having disengaged the flicker, the kombi actually came to a halt, causing the bus driver to conclude that he was being invited to overtake on the left of the kombi. Finally, and in an endeavour to suggest why the kombi driver, having thus invited the bus to overtake on his left, would suddenly decide to return suicidally to the left of the road in front of the bus that was in the very act of overtaking, it was averred that an oncoming vehicle had appeared from the opposite direction causing the kombi to move out of its way by returning to the kombi’s correct side of the road. As the learned Chief Justice said in his judgment “the existence of this third vehicle and any part it might have played in the scene was never put to the plaintiff driver and only emerged at a late stage of the evidence.”

Mr Khumalo accepted in argument that in order for some degree of negligence to be attributed to the driver of the kombi so as to call for an apportionment of blame, it is necessary that this escalated version of the facts deposed to by the respondent’s bus driver, and bus conductor, be accepted as accurate and reliable. In an attempt to find factual support for this version Mr Khumalo drew our attention to photographs of the scene of the accident that show brake marks left by the bus leading up to the point of impact. These brake marks show that the right side wheels of the bus were fairly close to the painted centre line on the road surface at the point of impact, and Mr Khumalo urges that this shows that the kombi must have been wholly on its incorrect side of the road before it turned back to its left in front of the oncoming bus.

It does not seem to me that such an inference is to be drawn from the photographs upon which Mr Khumalo relies. The driver of the kombi readily agreed that he moved sufficiently far to his right for the right side wheels of his vehicle to have crossed over the centre line, and I do not think that the photographs in question show that the move to the right must have been of a much greater extent. But even if the kombi did move largely, or even wholly, across the road to its right in order to facilitate the indicated turn to the left, that would not have been a negligent manoeuvre in the circumstances that prevailed. It is only if it thereafter came to a halt there, with its indicator light disengaged, that there might be room for a finding of contributory negligence. The trial court rejected that version of the events and nothing persuades me that the learned trial judge misdirected himself, or erred in any way, in so doing.

Accordingly I am of the view that the finding of the court a quo was correct, and that the appeal must therefore be dismissed with costs.