THE REPUBLIC OF SOUTH AFRICA
REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

CASE NO: 6771 / 2003

In the matter between:

MACDONALDS TRANSPORT UPINGTON (PTY) LTD            Plaintiff

and

J KOEGELENBERG t/a KOEGELENBERG VERVOER       Defendant

JUDGMENT  :  17 MARCH 2005

BOZALEK J:
This is an action for damages involving two transport contractors in which the plaintiff claims compensation for damages suffered when one of its vehicles left the national road between Clanwilliam and Citrusdal and landed in a ditch on 28 January 2003. 

At the commencement of the trial it was ordered by agreement that, in terms of Rule 33(4), the merits of the action would first be determined with the quantum of damages to be left for a later stage. 

Although no collision took place, three vehicles were involved in the accident. The first was the defendant’s truck, an Isuzu which was towing a trailer in the direction of Clanwilliam. A steel structure fixed to the left underside of the trailer, which was termed “a cradle” and which held the trailer’s spare wheel, broke off the trailer and fell into the road whilst it was in motion. Behind the Isuzu and the trailer was a Golf motor vehicle driven by a Mr. De Swart (“De Swart”) which was also pulling a trailer filled with furniture. De Swart braked hard to avoid colliding with the spare wheel and the steel cradle or the parts thereof and was largely successful in doing so. Travelling behind the Golf was a large Mercedes truck and two trailers driven by the plaintiff’s employee, a Mr. De Jongh (“De Jongh”). He in turn braked in order to avoid colliding with the Golf but his manoeuvre culminated in the Mercedes running off the road to the left and landing in a ditch. 

The question facing the court is who must bear responsibility for the accident, more particularly for the damages suffered by the plaintiff. 

THE ISSUES AS PLEADED
In its particulars of claim the plaintiff ascribes the damage to its vehicle inter alia to the following: 
“4.2 die Eiser se voertuig die pad verlaat het toe die bestuurder van die Eiser se vragmotor stappe moes neem ten einde ‘n botsing te verhoed met ‘n motor wat agter die Verweerder se voertuig gery het (en welke motor op sy beurt moes rem en uitswaai ten einde ‘n botsing met die gemelde noodwiel en/of strukture te vermy).”

It alleged that the accident was caused: 
“deur die uitsluitlike nalatigheid van die Verweerder en/of die bestuurder van die Verweerder se voertuig, ene Johan De Jongh wat ter alle wesenlike tye binne die bestek van sy diens by die verweerder opgetree het, deurdat hulle, of een van hulle:
5.1. versuim het om stappe te neem wat redelikerwys nodig was ten einde te verhoed dat die noodwiel en die strukture waarmee dit aan die Verweerder se voertuig geheg is loskom en/of afval en/of in die pad van agtervolgende verkeer beland;
5.2. toegelaat het dat die strukture waarmee die noodwiel aan die Verweerder se voertuig geheg word, nie in ’n behoorlike werkende toestand was nie en/of so ’n toestand van verval bereik het dat dit nie die noodwiel na behore aan die voertuig kon heg nie en/of nie kon verhoed dat die noodwiel in die weg van agtervolgende verkeer beland nie;
5.3.  versuim het om toe te sien dat die noodwiel na behore aan die Verweerder se voertuig geheg is; en/of
5.4.  versuim het om die stappe te neem wat redelikerwys nodig is ten einde die Verweerder se voertuig in ’n padvaardige toestand te hou.“

The defendant denied the allegations of negligence:
In the alternative it pleaded that the accident occurred as a result of a sudden and unforeseen mechanical failure. In the further alternative the defendant pleaded that the accident occurred as a result of the negligence of the driver of the plaintiffs motor vehicle who was negligent in one or more or all of the following respects:
5.1.	He failed to avoid a collision whilst with the exercise of reasonable care he could and should have done so;
5.2.	He drove the vehicle dangerously close to Mr. De Swart’s vehicle and trailer;
5.3.	He drove at an excessive speed under the circumstances;
5.4.	Given the circumstances he overreacted.”

At the commencement of the hearing certain admissions were made by the parties, one of the results of which was to place beyond doubt that the incident, broadly as described above, took place involving vehicles belonging to the parties and driven by their employees in the course and scope of their duties. A further effect was that the only defences left for consideration by the court were that of sudden and unforeseen mechanical failure and, in the event of such defence not being upheld, that the accident was solely the result of negligence on the part of the plaintiff’s driver. 

It became common cause during the trial that the cradle was constructed of channel iron and was a fixed structure welded to the underside of the trailer chassis. It consisted of three short arms extending down from the chassis. The two short arms nearest to the left side of the chassis were joined by a cross-arm from the middle of which another arm ran horizontally and connected to the third short arm thus forming a cradle into which the spare wheel should be inserted and held. The third short arm was welded onto the chassis at a point much closer to the right hand side thereof. 

THE EVIDENCE
Plaintiff led the evidence of its driver, Mr. Cloete (“Cloete”), as well as that of the driver of the Golf, De Swart. Cloete testified that he was driving a Mercedes Benz Actross that day from Klapmuts to Upington. The “rig” comprised a horse and two trailers some 22 metres in length and was transporting a load of compost. At a weighbridge the weight of the entire rig had been measured at approximately 55 tons. Cloete first noticed the Isuzu whilst proceeding up Piekenierskloof Pass which commences some 30 kilometres from Piketberg. The pass is a steep one of approximately 12 – 15 kilometres in length. At all times his vehicle was behind the Isuzu which was labouring slowly up the pass. After descending the pass, Cloete had driven for several kilometres and was travelling at a speed of approximately 70kph behind the Golf in front of which was a white bakkie and then the Isuzu.

As the bakkie pulled out to pass the Isuzu the cradle and spare wheel fell into the road. The wheel hit the side of the bakkie and then jumped across the road in front of the Golf. The Golf braked hard to avoid the spare wheel. He, Cloete, immediately braked as hard as possible to avoid colliding with the Golf. The Mercedes began to slide to the left despite his efforts to keep it in a straight line but eventually it ran off the tarred surface over a small earth verge and into a ditch. Cloete attributed the vehicle’s slide to the left to the road sloping left at that point. The Isuzu’s spare wheel was later discovered underneath the Mercedes. 

The only independent witness to testify was De Swart. He had worked for the air force for eighteen years as an engine airframe technician but for the last four years had built furniture. On the day in question he had been conveying a trailer load of furniture from Cape Town to Vredendal and was quite heavily laden. As a result he had to proceed up Piekenierskloof Pass slowly and found himself behind the Isuzu truck and trailer. His speed on the pass varied between five and forty kilometres per hour. 

Shortly after commencing the ascent of the pass he heard the sound of iron banging on iron constantly. Examining the vehicle in front of him more closely he noted that two arms on the wheel cradle underneath the trailer were loose so that the cradle was flapping up and down with the motion of the trailer. He tried several times to attract the driver of the Isuzu’s attention to the problem by flicking his lights and hooting. He was unsuccessful however and on the last occasion when he tried to attract the driver’s attention he was met by a rude hand gesture from the driver and an indication that he must pass the Isuzu. At one stage he rode on the left hand side of the road alongside the trailer and got a good look at the cradle. He then told his companion that they must steer clear of the trailer because the cradle was going to break off. 

Some kilometres after descending the pass he saw an opportunity to overtake the Isuzu. At this stage he was travelling at between 50 and 65 kilometres per hour and the banging noise from the trailer was much louder and more intense because the Isuzu was driving faster. As a white bakkie was overtaking the Isuzu, De Swart heard a loud bang and saw the cradle and spare wheel fall off under the trailer’s wheels. The cradle broke into pieces whilst the spare wheel moved towards the midline of the road and struck the bakkie glancingly. De Swart himself braked very hard in an effort to avoid the pieces of the cradle in the road and the spare wheel. His vehicle passed over the spare wheel causing his trailer to jump sharply. Once past the danger he looked in his mirror to see how the Mercedes truck was reacting to his having braked. He saw the Mercedes brake sharply with smoke coming out from under its wheels and in response he, De Swart, fearing a collision, steered to the right to make way for the rapidly oncoming Mercedes, but it moved towards the left, left the road and landed in a ditch. 

The Isuzu and trailer simply kept on going and thus De Swart, who never brought his vehicle to a standstill when he braked, chased after the driver and succeeded in getting him to stop after some 800 metres beyond the scene of the accident by using his hooter and flicking his lights. After pulling up behind the Isuzu he explained to the driver, De Jongh, what had happened. De Jongh appeared surprised to learn that his cradle and spare wheel had fallen off. De Swart went around to the trailer with De Jongh and examined that part of the chassis to which the cradle had been attached. He pointed out to De Jongh the three points where the short arms of the cradle had broken off. In doing so, De Swart noted that only one of the points was a fresh break whilst the other two break points were dirty and dusty.  The fresh break was at that point where the third short arm of the cradle had been attached to the chassis, according to what he had earlier observed the only arm still attached to the chassis. 

Defendant called three witnesses;  the defendant himself as owner of the business, De Jongh, the driver, and defendant’s in-house mechanic, a Mr. Eilert (“Eilert”), who was responsible for servicing defendant’s fleet of vehicles. De Jongh testified that he had been completely unaware that the cradle was loose or defective in any way or that De Swart had attempted to attract his attention on Piekenierskloof Pass. He had been transporting a load of empty grape bins from Stellenbosch to Vredendal and first became aware of something amiss when he felt his trailer jump slightly. Looking in his rear-view mirror he saw a cloud of dust and, thinking that some of his freight have fallen off and unaware that De Swart was trying to flag him down, of his own accord 
brought his vehicle to a halt. When he climbed out of his vehicle he met De Swart who explained that his cradle and spare wheel had fallen off and showed him the three break points. According to him however all three points looked equally fresh breaks. 

De Jongh testified that he had inspected the cradle as part of an inspection of his trailer at the intersection of the Porterville and N7 roads (“the Porterville intersection”) some half dozen or so  kilometres before commencing the climb up the Piekenierskloof Pass and had found nothing amiss. He testified further of a detailed system of inspection of his vehicle and trailer to which I will return in due course. After some time, on the telephonic instructions of his employer, he had continued his journey to Vredendal arriving back that evening. Early the next morning, 29 January 2003, he picked up another load of grapes and transported it to Stellenbosch and then returned to Vredendal. He did not recover the parts of the cradle nor the spare wheel, the latter having been trapped underneath the Mercedes Benz. The cradle had been replaced by his employer’s mechanic, Eilert, on 30 January. Using channel iron he had manufactured a replacement cradle of the same design as the one which had fallen off and welded it onto the chassis of the trailer in the same position. Defendant and Eilert gave evidence confirming in broad terms the evidence of De Jongh and I will deal with the salient portions thereof where necessary. 

A series of photographs were admitted into evidence. These depicted the trailer in question with close-up shots of the new cradle structure. It is made of channel iron i.e. “U”-shaped iron. Each of the three short arms is welded to the chassis and is supported at each point furthermore by one or more triangular brackets or gussets also welded to the structure. A large spare wheel, at least a metre high, is inserted into the cradle and, in the photographs, is secured to the single short or back arm by a material cord. The two front arms of the cradle i.e. those nearest the side of the trailer, are clearly visible to someone standing alongside the trailer although to gain a proper view of the third arm one would have to squat down and move further under the chassis, a more difficult but by no means impossible manoeuvre given the height of the trailer off the ground. 

Shortly after the accident Cloete took a series of photographs which depict the Mercedes Benz in the ditch, its brake marks, the section of road on which the accident happened and of the mangled remains of the cradle. 

THE DEFENCE OF “SUDDEN MECHANICAL FAILURE”
Commenting on the defence of a “sudden mechanical defect”, Cooper, Delictual Liability and Motor Law Revised Edition, Juta & Co Ltd states at page 278/9 as follows:
“There is no onus of proof on the defendant to establish that a collision was due to a sudden emergency. The onus of proving negligence remains on plaintiff and at the end of the trial (after both parties have produced evidence) the court has to decide whether the plaintiff has discharged the onus of proving on a balance of probabilities that the defendant was negligent.”

In the present case the defendant does not rely on a sudden mechanical defect or failure to justify what might otherwise be negligent driving but rather to absolve it of any liability flowing from the consequences of the cradle and spare wheel falling into the path of oncoming motorists. This difference does not alter the fact that what is brought into play by such a defence is the driver or owner’s duty to maintain his vehicle in a roadworthy condition and, if need be, to inspect the vehicle operated by him. In Ferber v Caledonian Insurance Company 1952(2)P.H.O 24(C) Watermeyer AJ stated as follow: 
“It was a well established principle of law that a motorist was under no absolute duty to insure that his vehicle was free from mechanical defects. All that he was obliged to do was to take reasonable precautions to ensure that his vehicle was not in a defective condition… It was not for a court of law to lay down a general code of precautions which a motorist should take to ensure that his vehicle was safe for use on the road. Each case would depend upon its own facts. It was self-evident that the same precautions would not be expected from the owner of a new vehicle as would be expected of the owner of an old one. It would be for the court to decide, in the light of all the circumstances of the particular case, whether the motorist concerned had taken such precautions as a reasonable man would to ensure that his vehicle was free from the particular defect with which the court was concerned.”  
See also Bredell v Commercial Union Versekeringsmaatskappy 1977(4) SA 464 (C). 

 It has been suggested that a somewhat heavier duty lies on the owner of a public vehicle in this regard. In Rankisson and Son v Springfield Omnibus Services 1964(1) SA D & C.L.D 609 Miller J stated as follow:
“There is, to my mind, a clear and onerous duty on the owner of a public vehicle to ensure the maintenance of a high standard of mechanical efficiency in such vehicle, and perhaps the braking system, more than any other calls for careful supervision and frequent checking.”
See also Star Motors v Swart 1968(3) SA (TPD) at 63H – 64A. 

There is, however, no reason in principle to expect of or ascribe to the owner of a fleet of trade vehicles a greater knowledge of the symptoms of dangerous defects or to demand of him a different degree of care in the maintenance of its vehicles than is demanded of the owner of a vehicle which is not used for commercial purposes. See Bennett v President Versekeringsmaatskappy Bpk en ‘n Ander  1973(1) SA 674 at 682D – F.

In the circumstances of the present matter the maxim res ipsa loquitur also comes into play. Those circumstances are the fact that spare wheel cradles and spare wheels are not objects which regularly fall off vehicles onto public roads. The cradle in question was an immovable load bearing structure apparently firmly fixed onto the trailer. It was furthermore easily accessible and visible for inspection purposes and contained no moving parts more prone to wear and tear. The trailer in question was in the exclusive control of the defendant and his employees and there can be no doubt that should the cradle break off and in the process deposit a spare wheel in the road this could create a considerable danger for other road users. 

The role of the res ipsa loquitur maxim in collision cases, as described in Arthur v Bezuidenhout and Mieny 1962(2) SA 566(A), manifests in the present case because the defendant does not seek to contradict the principal fact relied upon by the plaintiff to establish its prima facie case of negligence, namely that the accident was caused as a result of the cradle and wheel falling into the road. The defendant seeks instead, in the first place, to explain that fact by relying on a sudden mechanical failure. As the court stated in Arthur’s case the correct approach is as follows:
“...once the plaintiff proves the occurrence giving rise to the inference of negligence on the part of the defendant, the latter must adduce evidence to the contrary. He must tell the remainder of the story or take the risk of judgment been given against him. How far the defendant’s evidence need go to displace the inference of negligence arising from proof of the occurrence complained of by the plaintiff depends upon the facts of the particular case.” At 574H – 575A. 

This application of the res ipsa loquitur maxim in collision cases was elaborated upon by Kroon J in Stacey v Kent 1995(3) SA 344(E) where he states as follows:
“The rule gives rise to an inference, not a presumption of negligence. The court is not compelled to draw the inference. At the end of the case the inquiry is where, on all the evidence, the balance of probabilities lies. If it is substantially in favour of the party bearing the onus on the pleadings, he succeeds; if not, he fails. Once the plaintiff proves the occurrence giving rise to the inference of negligence on the part of the defendant the latter must produce evidence to the contrary; he must tell the remainder of the story or take the risk of judgment been given against him. How far the defendant’s evidence need go to displace the inference of negligence arising from proof of the occurrence depends upon the facts of the particular case. Mere theories or hypothetical suggestions will not avail the defendant; his explanation must have some substantial foundation in fact and the evidence produced must be sufficient to destroy the probability of negligence inferred to be present prior to the testimony adduced by him. There is, however, no onus on the defendant to establish the correctness of his explanation on a balance of probabilities. The enquiry at the conclusion of the case remains whether the plaintiff has, on a balance of probabilities, discharged the onus of establishing that the collision was caused by negligence attributable to the defendant. In that enquiry the explanation tendered by the defendant will be tested by considerations such as probability and credibility.”

How then does the defendant seek to displace the inference of negligence which arose when the trailer’s cradle and spare wheel landed in the road and caused two following drivers to take drastic evasive action? The pleadings cast no light on the nature of the sudden mechanical defect. The plaintiff sought particulars of the precise nature of the mechanical defect, when it arose and when it first manifested itself but was met with the reply that these were a matter of evidence and not necessary for the plaintiff to prepare for trial. 

When De Swart testified it was put to him in cross-examination that De Jongh had inspected the trailer, including the cradle, at the Porterville intersection, a few kilometres before commencing to climb the Piekenierskloof Pass and had found nothing wrong with it. It was further put, in effect, that the cradle must have broken off between that inspection point and the scene of the accident as a result of the trailer carrying a heavy load over what was a very poor section of road. The following passage from the evidence is relevant:
“Wel, die feit bly staan Mnr. De Swart, dat mnr. De Jongh het met die Porterville aftrekpunt geen fout bespeur dat daardie ’cradle’ losgebreek was nie... Ja? - Onderweg deur die Piekenierskloofpas... hy het gery, hy is deur stamperige dele met sy vrag en dit het baie gestamp met sy swaar vrag wat hy op gehad het – kon daardie hegtingspunte op daardie stadium eers losgebreek het.“
With regard to the condition of the road the following passage from De Swart’s cross-examination is also relevant:
“Sal u met my saamstem, daardie pad is in ‘n besondere swak toestand gewees daardie tyd? – Hy was redelik hobbelrig en knopperig… Sou u saam stem was daardie tyd – daardie tyd – Januarie 2003, die tyd toe die insident gebeur vol slaggate, ek sou sê ’potholes’? – Nie vol slaggate nie, maar wel redelik uitgery. Die oppervlak van die pad was nie gebreek nie, maar hy was redelik knopperig en bulterig.“

The factual claims made on behalf of the defendant in this part of the cross-examination were ultimately not borne out by De Jongh’s evidence in a number of material respects. Firstly, De Jongh offered no direct explanation for the cradle and spare wheel falling off and when questioned about this it appeared that he assumed that it must have broken as a result of the trailer travelling over bumpy sections of the road over the 30 to 50 kilometres from the Porterville intersection to the scene of the accident. Secondly, although he referred to several poor sections of the road, he never suggested that there were potholes as such in the road. Thirdly, his evidence was that on the return journey he was travelling with virtually an empty load, no more than the empty crates in which the grapes were originally transported to Stellenbosch.

Having regard to the cross-examination conducted by the defendant’s counsel and the evidence presented on its behalf, it would appear that the factual basis of the defendant’s primary defence of sudden mechanical defect rests upon two legs. In the first place the defendant’s case was that the trailer, including the cradle, was regularly inspected and, indeed, on several occasions on the day of the accident. The second leg of this defence was that the cradle was apparently in a roadworthy condition but suddenly gave way on the stretch of road between the Porterville intersection and the scene of the accident as a result of the combination of the poor road surface and the weight of the load being carried in the trailer. These two legs are, for want of a better term, interrelated, and must be examined in turn. 

In regard to inspections the defendant led evidence that the trailer was inspected and serviced by Eilert approximately every 20 000 kilometres together with the Isuzu truck. No documentary evidence was produced to support this regime of inspections since, according to the defendant, the relevant documentation was routinely discarded. It appears that the trailer underwent a roadworthy test for licensing purposes on 18 April 2002. This was approximately nine months before the accident and in my view is of no assistance in determining the condition of the trailer at the time of the accident. Between the regular services referred to above it remained the responsibility of the driver to detect and report any defect in the vehicles which he was using. When reported, such faults were noted on a form for the attention of the mechanic and were duly attended to. No documentary evidence of any defects in the trailer or indeed confirming the existence this system was placed before the court, the reason once again being that such documentation was routinely discarded. 

De Jongh testified that during the three months of his employment with the defendant prior to the accident, apart from a short period when he had been without a truck, he had been the only driver who had used the trailer in question. He testified that he had adhered to a stringent inspection system of his truck and trailer. The high water mark of the defendant’s case in this regard was that put to De Swart in cross examination, namely, that on 27 and 28 January 2003 the Isuzu and trailer had transported vegetables which it collected from various farms near Vredendal to Epping market in Cape Town and returned via Stellenbosch, Paarl, Wellington and Porterville; that on the day preceding and the day of the accident De Jongh had conducted in total eleven or twelve inspections of the trailer and during each tugged on the cradle to ensure that it was not defective. Defendant’s counsel also put to De Swart that it was second nature for De Jongh to conduct such inspections and that no defect in the cradle was revealed in any such inspection. The first inspection commenced when he left Vredendal the day before the accident and was repeated at virtually every stop thereafter. Most of these stops were named. The last such inspection was at the Porterville intersection shortly prior to the accident. 

By the time that De Jongh came to testify, however, the defendant had belatedly found and produced its documentation, in the process discovering that on 28/29 January 2003 the truck and trailer in question had not transported vegetables but had followed a quite different route transporting crates of grapes from Vredendal to KWV in Stellenbosch. De Jongh testified nonetheless that he had carried out routine inspections on this trip, the last one prior to the accident being at the Porterville intersection. 

There are two consequences of the material change in the defendant’s case between the cross examination of the plaintiff’s witnesses and when De Jongh and other witnesses come to testify for the defendant. The first is the obvious one, namely that the defendant no longer laid claim to the exhaustive series of inspections of the trailer first alleged. Secondly, and in my view more fundamentally, the change in its case cast doubt on De Jongh’s credibility. The propositions put to De Swart relating to the inspections were made at great length and were unequivocally put as matters of fact, not as reconstructions of what De Jongh’s routine would ordinarily have been. When an explanation was sought from De Jongh and the defendant in cross-examination as to the reason for these contradictory instructions the only answer forthcoming was that this had arisen from a mistake on De Jongh’s part concerning which route and what freight he had carried on the day or days in question. That answer is no doubt correct so far as it goes but, in my view, it indicates that, well into the trial, De Jongh had no independent recollection of what route he had travelled and what inspections of the trailer he had carried out.

Furthermore, De Jongh’s evidence concerning the frequency and thoroughness of the inspections of the trailer he claimed to have conducted, wavered, as did his evidence concerning the thoroughness of the inspection he allegedly carried out at the Porterville intersection. His final position in evidence was that he had no independent recollection of inspecting the cradle and spare wheel at the Porterville intersection but inferred that he must have done so because he routinely checked these items. 

Regarding the format of his inspections of the trailer it was initially put to De Swart that De Jongh tugged on the cradle during every inspection. In his evidence in chief De Jongh testified that he inspected the cradle for cracks and sometimes physically tugged on the cradle. In later references to such inspections in his evidence in chief he seemed to indicate that his inspections involved only a visual inspection of the cradle and spare wheel. In cross-examination De Jongh testified that he would tug at the cradle only at the beginning of journeys and then sometimes during inspections he conducted en route. He appeared to concede that his routine inspections varied, sometimes involving only a visual inspection of the cradle and at other times a physical testing. Later in his evidence however De Jongh appeared to return to the position adopted on his behalf during the plaintiff’s case and testified that at every stop-inspection he would tug on the cradle and added that he would also physically check the spare wheel to ensure that it was inflated. 

Taking De Jongh’s evidence as a whole, I am left completely uncertain regarding how often or indeed whether he conducted routine inspections of the trailer and, if he did perform routine inspections, what they involved insofar as they related to the cradle and spare wheel. I am also left with a strong sense that much of De Jongh’s evidence involving inspections was a rationalisation or at best a reconstruction by someone who had no independent recollection of what inspections of the trailer he conducted on the days preceding and the day of the accident.

The second and interrelated leg of the defendant’s defence of sudden mechanical failure is that the cradle fractured and broke off between an inspection at the Porterville intersection and the scene of the accident.  

As stated earlier the thrust of the cross-examination of De Swart was that shortly before climbing the Piekenierskloof Pass the cradle was in apparently sound condition and that it must have broken off over the next 30 to 50 kilometres as a result of the bad road surface and the heavy load being transported.

It is significant in my view that none of the defendant’s witnesses, namely, De Jongh, the defendant himself and the mechanic, Eilert, offered any substantive explanation for the sudden breaking off of the cradle other than the allegedly bumpy road over which the trailer had travelled. There is no explanation as why a trailer which had been used on this route for 10 years on a regular and intensive base suddenly developed, overnight, if not in a matter of an hour, such serious fractures or cracks in the two short arms where they were welded to the chassis that they broke off, thereby placing an intolerable strain upon the third and remaining arm. 

On the other hand what evidence the plaintiff was able to produce suggested that the two arms of the cradle had been broken for some period of time prior to the alleged inspection of the trailer at the Porterville intersection. De Swart inspected the chassis of the trailer where the cradle had broken off within minutes of the accident. He testified, importantly, that only the single arm of the cradle, that which broke last, looked like a fresh break whilst the other two break points, namely those nearest to the edge of the chassis, were dirty and dusty and not fresh breaks. According to De Swart the point where the single arm had broken off was shiny and the difference between the breaks would have been apparent to any observer and not only to an expert. The implications of these observations for the defendant’s case are clear. They tend to belie any suggestion that two of the arms of the cradle broke off on the stretch of road between the Porterville intersection and the scene of the accident. This evidence furthermore casts doubt on defendant’s case that the cradle was regularly inspected by De Jongh but revealed no cracks or breaks. 

The defendant’s case, at least as far as De Jongh and the defendant himself were concerned, was however that no distinction could be drawn between the freshness of the three breakpoints by virtue of their outward appearance. According to their evidence all three points had dust on them to more or less the same extent. De Jongh also testified that in driving between the Porterville intersection and the scene of the accident dust would be thrown up under the trailer when the Isuzu vehicle drove near the edge of the tar surface of the road. In my view this evidence was a strained attempt to counter De Swart’s evidence of dust and/or dirt on two of the break points. 

Notwithstanding De Jongh’s evidence, Eilert, the mechanic who replaced the cradle and who obviously would have examined the three points far more closely than De Jongh or the defendant, conceded that there was a difference between the visual appearance of the three breakpoints. According to him the single arm revealed a fresh break whilst the breaks on the other two arms appeared only “reasonably fresh”. Plaintiff’s counsel put to the witness that De Swart’s evidence that the one breakpoint was much fresher than the other two appeared to coincide with his (Eilert’s) evidence and the witness appeared to accept this proposition. 

Eilert testified that he had first inspected the trailer on the morning after the cradle had broken off. However De Jongh’s later evidence revealed that this could not have been so since upon his return to the depot after the accident he had been instructed to perform a further trip to Cape Town, commencing early the next morning, again carrying crates of grapes to Stellenbosch. Accordingly, at the earliest, Eilert had only inspected and repaired the trailer the following day i.e. on 30 January after the intervening round trip to Stellenbosch. The significance of this lies in the fact that the distinction between the freshness of the break point of the single arm and the other two arms was still apparent to Eilert notwithstanding that the trailer had travelled from the point of accident to Vredendal and then completed a further round trip to Cape Town. Over these hundreds of kilometres the break points would have been exposed to whatever further dirt would ordinarily have been thrown up onto the chassis. It must also be borne in mind that the two short arms of the cradle were, at least over the period that De Swart travelled behind the Isuzu, constantly banging against the chassis with the motion of the trailer. De Swart testified of what he described as “kapmerke” at these points. This friction, if anything, would have contributed to the two break points looking fresher yet the distinction between them and the third point was still apparent to De Swart.

The evidence of Koegelenberg, the defendant, regarding the freshness of the breakpoints was somewhat equivocal. He first said that there was no old dust on the break points when he inspected the chassis as night fell on 28 January 2003 and he was hesitant about the thoroughness of his inspection. Under cross-examination he testified of an inspection the following morning (which could only have been two days later on 30 January) and said that there was some dust present and he could see the difference between the fresh break and the reasonably fresh breaks. The result is that there is a conflict between the evidence of De Swart on the one hand, supported to some degree by that of Eilert and Koegelenberg, and that of De Jongh on the other hand. This conflict requires in my view an evaluation of the evidence of the two principal witnesses, De Swart and De Jongh, as a whole. 

De Swart was an impressive witness. He was observant and meticulous in his observations. On the face of it he had no particular bias and was readily prepared to make concessions in favour of the defendant. This is not to say that his evidence was unblemished. In at least one if not two aspects of his evidence he was clearly mistaken. He insisted that an 80kph speed limit sticker which appears on the back of the trailer on photographs was not on the trailer behind which he drove. He testified furthermore that the trailer had steel poles along the sides of the type used to restrain cattle or livestock being transported. The defendant’s evidence was that the sticker had always been on the trailer and that he had no vehicles, including the trailer, which carried livestock or had cattle bars. I have little doubt that the defendant’s evidence was correct in this latter regard and that De Swart was probably mistaken in the other aspect as well. That he was adamant that he was not mistaken in his observation suggests a certain stubbornness on the part of the witness. This shortcoming notwithstanding, I find that De Swart was an honest, accurate and generally reliable witness. As far as his evidence on the break points is concerned it must be borne in mind that De Swart was more than a casual observer. He was a qualified engine airframe technician with many years of experience of inspections of airframes at close quarters. I find his evidence that two of the breaks were not as fresh as the third but rather were dirty and dusty, to be compelling. 

By contrast, De Jongh created a much less favourable impression as a witness. As I have indicated the initial instructions which emanated from him concerning the inspections he conducted turned out to be complete and utterly erroneous reconstructions if not fabrications. His evidence regarding important elements of his duties, namely, the frequency and detail of his inspections, wavered both during his evidence in chief and his cross-examination. Whereas De Swart had a clear and detailed recollection of events on the day in question, De Jongh’s evidence was broad and vague, leaving me with the impression that he had either forgotten to a great degree what had taken place on that occasion or that the events had never had any great significance to him, or both. It was striking for example that De Jongh seemed to have been completely oblivious, both on the Piekenierskloof Pass as well as after the accident, to De Swart’s attempts to draw his attention. On his own evidence he saw in his rear view mirror the dust cloud caused by the Mercedes driving into the ditch and as a result stopped his vehicle. It is difficult to see how he could entirely have failed to see the Golf, both immediately after the accident and when it chased him flicking its lights. In the result, save in the above limited respects, I prefer and accept the evidence of De Swart where it conflicts with that of De Jongh and in particular where the former stated that the break points did not appear to be fresh but were rather dirty and dusty. 

I am prepared to accept that the trailer was probably serviced every 20 000 kilometres and that this would involve an inspection of the cradle. As to what inspections of the trailer took place in between the regular inspections there is no reliable evidence at all. As mentioned earlier, De Jongh’s evidence on when he inspected the cradle was contradictory, and in my view ultimately unreliable. He demonstrated his penchant for reconstruction through the divergence between the instructions with which he initially furnished the defendant’s legal representatives regarding his inspections of the trailer and what was ultimately the case put up by the defendant. 

One then comes back to the question of whether, in all the circumstances, the defendant took reasonable precautions to ensure that the trailer was not in a defective condition. Each case must be decided on its own facts and the relevant circumstances in the present matter include the following:
(i)	the substantial potential danger for other motorists posed by a defective spare wheel cradle;
(ii)	the fact that the defendant was a transport contractor using the trailer in question on a regular if not continuous base for the transportation of heavy cargo on long stretches of public road some of which were in sub-standard condition;
(iii)	the fact that the trailer in question was at the time of the accident more than twenty years old and had been used by the defendant in his business since 1994. According to De Swart the trailer was in a  somewhat dilapidated condition, standing in sharp contrast to the new Isuzu truck; 
(iv)	the fact that the defendant accepted responsibility for the mechanical checking and maintenance of his fleet of vehicles , including the trailer, in-house. 

Against this background one has the extraordinary occurrence of a trailer cradle, normally firmly fixed to the chassis at three points and strengthened by gussets at each point, falling off whilst travelling on a national road. No substantive explanation is provided for this defect other than that all three points must have broken between the Porterville intersection and the scene of the accident. Why these structures should have failed at that point in time in the twenty year life time of the trailer, and the nine or so years of its service to the defendant, remains quite unclear. 

The furthest that the defendant’s explanation goes is a reference to the heavy load being carried by the trailer and the poor condition of the road. As the evidence demonstrated, on its return journey to Vredendal the trailer was empty apart from wooden crates. Furthermore, whilst it was common cause that the section of road in question was bumpy and below standard, the suggestion that it was potholed was not borne out by the evidence. It forms part of the N7 national road, one of the major arteries in the country. It is also not without significance that the defendant’s evidence was not that the cradle had fractured immediately after traversing a particularly poor stretch of road or after going over a pothole. To complete the picture, there is the defendant’s unsatisfactory and in my view unreliable evidence of the inspections which were allegedly carried out by De Jongh between the regular 20 000 kilometres services. That evidence, as I have found, is contradictory and ultimately unreliable. 

Taking all these factors into account and bearing in mind that the defendant carries no onus of proof in order to succeed in his defence of sudden mechanical defect, I am satisfied on all the evidence that the plaintiff has succeeded in proving on a balance of probabilities that the defendant was negligent in failing to take the steps reasonably necessary to ensure that the cradle did not break off the trailer, thereby creating a dangerous hazard for other motorists. In my view, the plaintiff proved that defendant failed to take the necessary precautions, through conducting regular inspections of the cradle, to ensure that it was sound and roadworthy. On the probabilities, I find that the two arms of the trailer had broken off sometime prior to the accident, either much earlier in the journey or on a previous journey, but that this defect had remained undetected by the driver. On De Jongh’s own evidence, it was both important and necessary that he conduct regular inspections of the trailer which included testing the soundness of the cradle. Given the age and condition of the trailer, amongst other factors, I consider that such precautions were indeed necessary.

In reaching these conclusions I bear in mind that the coming loose of a fixed structure such as a wheel cradle which then falls onto the road is a rare occurrence as opposed, for example, to brake failure or a sudden tyre failure. In these circumstances, much more is required of the defendant by way of facts supporting the explanation of a sudden mechanical failure, facts which are absent in the present matter. To revert to the approach outlined in Stacey v Kent, supra, I find that what the defendant put before court was little more than a theory as to the circumstances which led to the cradle breaking off. I find therefore that the defendant’s defence of sudden mechanical defect must fail. 

NEGLIGENCE ON THE PART OF THE DEFENDANT
This brings me to the alternative defence raised by the defendant, namely, that the accident was caused by the negligence of the plaintiff’s driver who drove dangerously close to De Swart’s vehicle, at an excessive speed and that he overreacted.

The defendant was itself able to produce no evidence of negligence on the part of the plaintiff’s driver, the driver of the Mercedes, since De Jongh himself was virtually completely oblivious to what took place behind him when his trailer’s cradle and spare wheel fell into the path of oncoming traffic. The defendant is thus driven to rely upon the evidence of Cloete himself and that of De Swart. Cloete’s evidence was that he went into an emergency braking procedure when De Swart braked sharply in order to avoid the cradle and spare wheel. As I understood Cloete’s evidence, his wheels locked and his horse and trailers slid across the road into the ditch. The track of his vehicle is shown in photographs taken by him immediately after the accident. They indicate a lengthy skid mark which, after a certain point, begins to veer towards the left hand side of the road and into the ditch. Cloete attributed the path of his vehicle after braking to the fact that the road had a slope to left. When one examines a picture of the road however one sees a long straight single line highway with no noticeable slope. 

De Swart insisted that Cloete’s driving had been faultless and in fact went so far as to state that he deserved a medal for the manner in which he managed to avoid colliding with the Golf. There was evidence, however, suggesting that the Mercedes had driven too close to the Golf in that De Swart conceded that he may well have said to De Jongh, shortly after the accident, that the Mercedes truck had been riding on his tail shortly prior to the accident. It is necessary to consider what following distance the Mercedes truck maintained and at what speed he was travelling. Under cross-examination Cloete stated that immediately prior to the incident he had been travelling at about 70km/h and was about 40 metres behind the Golf. It must be borne in mind, however, that he was driving a massive horse and trailers some 22 metres in length and carrying a load of some 32tons of compost. Together with the vehicles themselves, the total weight of the rig was some 55 to 56 tons. Furthermore, the defendant’s driver was travelling along a narrow, single lane highway. Cloete must thus have been aware or should have been aware that he was driving a vehicle combination which could not be brought to a safe halt in the same distance as a ordinary saloon car. 

The test for negligence has been formulated by the Supreme Court of Appeal in Kruger v Coetzee 1966(2) SA 428A at 430(O) in the following terms:  
“Each case in which it is said that a motorist is negligent must be decided on its own facts. Negligence can only be attributed by examining the facts of each case. Moreover, one does not draw inferences of negligence on a piecemeal approach. One must consider the totality of the facts and then decide whether the driver has exercised a standard of conduct which the law requires. The standard of care so required is that which a reasonable man would exercise in the circumstances and the degree of care will vary according to the circumstances. In all cases the question is whether the driver would reasonably in all the circumstances have foreseen the possibility of a collision”. 

It is trite that the driver of a vehicle following another vehicle should anticipate that a driver in front of him (or her) may suddenly stop his/her vehicle or reduce speed. A driver may be confronted with a variety of situations which may require him/her to stop or suddenly reduce the speed of his/her vehicle. S v van Vuuren 1972(2) SA 515 (NC) 517. It is for this reason that the rule exists that the driver of a following vehicle has a duty to regulate his/her speed and distance from the vehicle ahead so as be able to avoid colliding with it should that vehicle make a sudden stop. See Uniswa v Bezuidenhoudt 1982(3) SA 957 (A) 965B – C. 

It has been held that proof that a following vehicle collided with the rear of the vehicle ahead is prima facie evidence of negligence, although our courts have in certain circumstances refused to hold drivers negligent in such situations, including where the following driver had been faced with a sudden emergency. See Coleman v Mabuza 1963(2) SA 498 (T). 

I take into account that Cloete found himself in a sudden and unforeseen emergency situation when De Swart braked sharply to avoid the spare wheel and cradle in the road. I am mindful furthermore that in situations such as the present it is all too easy to fulfil the comfortable role of an armchair critic and that one must guard against what has been termed the “insidious subconscious influence of ex post facto knowledge”. S v Mini 1963(3) SA 196(A) at 196E – F quoted in Sea Harvest Corporation v Duncan Dock Cold Storage Pty Ltd and another 2000(1) SA 837(A) at 841F – H. 

In the present matter no collision occurred but plaintiff’s vehicle left the road because of an emergency stop to avoid such a collision. In my view it does not assist the plaintiff’s driver that the cause of the emergency was a rare occurrence. It could equally have been something more common such as someone running across the road and causing the car ahead to brake suddenly. Nor is it conclusive that De Swart testified that the arriving of the plaintiff’s driver was exemplary. For one thing, it would be natural on the part of De Swart to feel a sense of gratitude towards the driver of the Mercedes which, had it simply continued in its path, could well have collided heavily with the Golf and the trailer which it was pulling.  

The fact remains that when the Golf braked sharply, although it did not come to a halt, Cloete had to go into an emergency braking procedure in order to avoid a collision with the Golf, in the course of which he lost control of his truck. To my mind, the only inference that can be drawn is either that Cloete overreacted in his braking manoeuvre or, more probably, that as a result of keeping too close a following distance, he needed to brake so violently that he was unable to retain control of his vehicle. The following distance which Cloete maintained, 40 metres, was less than twice the total length of his horse and double trailer and, given its weight and the narrowness of the highway, was, in my view, insufficient and unsafe at the speed at which he was travelling. 

Cloete ascribed his vehicle’s slide into the ditch not as necessary in order to avoid colliding with the Golf but to the fact that there was a slope to the right of the road. As I have indicated earlier, there is no noticeable slope visible on the road and any minor slope which may have been present should not have been such as to ineluctably lead to the Mercedes sliding off the road surface. It would appear rather that the reason for the Mercedes ultimately leaving the road was the force of the braking, with the result that the vehicle was no longer entirely in the control of the driver. 

Notwithstanding Cloete’s negligence, it is clear that the primary cause of the accident was a result of both De Swart and Cloete having to take emergency evasive action following the sudden appearance in the road of the spare wheel and cradle. In my view, this is a situation in which liability for the accident must be apportioned between the plaintiff and the defendant. Although an apportionment of liability was not pleaded by either party the plaintiff’s negligence was put in issue by the defendant. Accordingly there is no bar to this court invoking the provisions of the Apportionment of Damages Act, 34 of 1956. See Ndaba v Purchase 1991(3) SA 640. 

When regard is had to all the circumstances I consider that the primary cause of the accident was the emergency caused when the cradle and spare wheel fell into the road and that the degree of fault on the part of the plaintiff’s driver was but a fraction of the defendant’s negligence. Taking all the circumstances into account, I have come to the conclusion that liability is equitably apportioned on the basis of 25 per cent fault on the part of the plaintiff and 75 per cent on the part of the defendant. 

The plaintiff has been substantially successful in this portion of the trial and no reason was advanced by the defendant why plaintiff should not be awarded the costs thereof at this stage. Costs will then follow the event.

In the result the following order is made:
(a)	The defendant is declared to be liable for 75 per cent of whatever damages the plaintiff proves it suffered arising out of the accident which took place on the national road between Citrusdal and Clanwilliam on 28 January 2003 when plaintiff’s Mercedes Benz truck number BNF 965 NC ran off the road. 
(b)	The plaintiff is awarded the costs of the trial on the merits.

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LJ BOZALEK, J