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334/85/AV

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

PROTEA ASSURANCE COMPANY LIMITED Appellant
AND

LTA BUILDING (SWA) LIMITED 1st Respondent
GODFREY EDWARD THOMAS 2nd Respondent
CORAM: HEFER, NESTADT, JJA et NICHOLAS, AJA
HEARD: 27 August 1987

DELIVERED:

JUDGMENT

NICHOLAS, AJA

CDM (PROPRIETARY) LIMITED, which was formerly known as

CONSOLIDATED
2 CONSOLIDATED DIAMOND MINES, carries on mining operations near Oranjemund in South West Africa - Namibia. The ope-
rations include excavation of diamondiferous gravel at the mine-faces and its conveyance to crushing plants for pro-cessing.
At the end of 1980, LTA BUILDING (SWA) LTD ("LTA") was engaged in contract work on the mine. In that connec-tion, a team of its employees arrived at Oranjemund by air on 14 November 1980. They included Godfrey Thomas, the general foreman, Keith Papier and Henry Williams. The party was accommodated at a mine hostel at a place called Uubvlei. Their place of work was plant 50 G some distance to the South. CDM provided LTA with a Datsun Ekonobus for the conveyance of the men between Uubvlei and their place of

work
3 work. Thomas had the responsibility of driving the vehicle.
The mining area was traversed from North to South by two roads: the haul road and the East Cliff road.
The haul road was wide and level. Its surface was described as being of sand calcrete. As its name indicates, it was used primarily for the haulage of gravel to the crush-ing plants. . For this purpose heavy vehicles were used, in-cluding 769 rear dumpers. These were massive vehicles which were described as "giant haul trucks". They were nearly 4 metres high, 3.6 metres wide and 8 metres long. They had a capacity of 700 cubic metres or 35 tons.

Access roads from the mine-faces joined the haul road at various points. There were stop signs at most if not all of the intersections.

At

4

At some entrance to the haul road, including the entrance at Uubvlei, there were signs reading "ONLY AUTHO-RISED VEHICLES PERMITTED ON HAUL ROADS". The use of the road was, however, not limited to earthmoving vehicles. Many other types of vehicle (including buses, Ekonobuses, "bakkies" and motorcars) made regular and daily use of this road.
The speed limit laid down for the haul road was 90 km per hour for light vehicles and 70 km per hour for heavy vehicles.
The East Cliff road had a tarred surface. It lay outside the area where active mining was being carried on, and was intended to be used by all vehicles not authorised to use the haul road.

For the first few days Thomas used the East Cliff road

when . .
when driving between Uúbvlei and plant 50 G, but after learning of the haul road he used that road except when conditions were unsuitable.
The 1st December 1980 was "a very beautiful morning". Thomas and his party left Uubvlei in the Ekonobus at 06h40. They travelled along the haul road at about 60 km per hour. At 06h50 a collision occurred between the Ekonobus, which was travelling roughly from North to South, and a heavily laden 769, which had entered the haul road (which was a

through road) from an access road to the East (which was a stop road), and was engaged in turning to the South. As a result of the collision, two of the occupants of the Ekonobus were killed,

and Papier was seriously injured.

Arising
6 Arising out of the collision, Papier instituted an action for damages in the Cape Provincial Division against PROTEA ASSURANCE COMPANY LIMITED ("PROTEA"), which was the insurer in terms of the Motor Vehicle Insurance Act, No 56 of 1972, of the 769 and also of the Ekonobus. Papier alleged. that his injuries had been caused by the negligence of one A. Stephanus, the driver of the 769, or alternatively by the negligence of Thomas.
PROTEA filed a plea denying that either Stephanus or Thomas had been negligent. On the same date, and acting under Rule 13 of the Rules of Court, it served on LTA (as First Third Party) and Thomas (as Second Third Party) a third party notice. In the annexure to the notice PROTEA alleged

that

7

that, in the event of it being found that it was liable to
compensate the plaintiff for any damages by reason of the
negligence of Stephanus, the collision was partly caused by
the negligence of Thomas, acting in the course of his employ-
ment with LTA, and the negligence of LTA itself; that
Stephanus and LTA (the First Third Party) and/or Thomas (the
Second Third Party) would therefore be "joint wrongdoers"
within the meaning of Act No 34 of 1956; and that PROTEA
would in the premises be entitled to claim a contribution

from them. PROTEA accordingly claimed:

"(a) An order declaring the degree in which the First Third Party and/or the Second Third Party were at fault in relation to the damage suffered by Plaintiff. (b) An Order declaring the amount which

Defendant

8

Defendant is entitled to claim as a contribution from the First Third Party and the Second Third Party, jointly and severally, upon payment of the judgment debt in full;

(c)	Alternative relief;
(d)	Costs of suit."

LTA and Thomas pleaded to the third party notice denying the several allegations of negligence, and denying that they were joint wrongdoers or obliged to make a contribution.
The matter proceeded to trial, which was heard before LATEGAN J in September 1984. After some days, a settlement was reached between Papier and PROTEA on terms set out in a deed of settlement. The deed recited that PROTEA admitted that Stephanus and Thomas were each partly to blame for the collision. It recorded that it was agreed that Papier's

overall
9 overall damages amounted to R225 000.00, and PROTEA acknow-ledged that it was liable to Papier in an amount of Rl2 000.00, as insurer of the Ekonobus and an amount of R213 000.00, as the insurer of the 769, and for costs, and it agreed to pay these amounts to Papier.
Agreement in regard to the guantum of damages was al-so reached between PROTEA and the third parties.
In consequence of these agreements, the sole question re-maining for determination at the trial was that of the liabil-ity (if any) of the third parties to contribute towards the amount of R213 000.00 for which PROTEA was liable as insurer of the 769; and the liability for the costs.

PROTEA closed its case without leading any evidence.

LTA

10

LTA and Thomas then made applications for absolution from the instance. These were refused and the trial pro-ceeded.
On 11 Pebruary 1985 LATEGAN J gave judgment, in which he found that Thomas and LTA were not at fault in relation to the damages suffered by Papier, and that consequently PROTEA was not entitled to claim any contribution from the. third parties. PROTEA was ordered to pay the costs.
An application by PROTEA for leave to appeal was refused by the trial judge, but leave was subsequently granted in terms of s 21(3) of the Supreme Court Act, No 59 of 1959.

In the annexure to the third party notice, PROTEA al-leged that Thomas was negligent in the respects there set

out

11

out, and that Thomas and LTA (as Thomas's employer) were liable on the ground of such negligence. It also alleged
that LTA was itself negligent in that -

(1) It failed to inform its employees, more particularly Thomas, of a pro-hibition by CDM against travelling on haul roads; (ii) It failed to take any or adequate

steps to ensure that its employees, more particularly Thomas, did not travel on haul roads.
Alleged negligence of Thomas
Evidence in regard to the circumstances of the collision was given by Laubscher and Williams, who were called as witnesses on behalf of Papier, and by Thomas. Stephanus did not give evidence.

Laubscher was a mine foreman employed by CDM. Early on the morning of 1 December 1980 he was travelling on the

haul

12

haul road in a Land Rover between Uubvlei, where he had had
breakfast,and No 3 plant to the South. The sun was starting
to rise. His speed was about 60 km per hour, but it could
have been less. He was overtaken by an Ekonobus. He did
not notice anything untoward in its speed and could not
dispute that it was travelling at about 60 km per hour.
Shortly afterwards he saw the Ekonobus swerve to the right
and overturn. He did not see the collision. He had not
previously noticed a 769 which he then saw for the first time
standing on the haul road. He said that the sun did not

"affect" him or "worry" him, but he did say later in his

evidence -

"... the thing that I have realized now (that is, as a result of cross-examination),. the accident could have occurred because

the

13

the sun was to blame at some stage or other and I would just like to say that if a person is driving a vehicle and he is blinded by the sun, he is unfamiliar with the area he is in, wouldn't he then drive slower or be more observant?"

Williams, a member of the LTA team, was seated in front

of the Ekonobus next to Thomas the driver. The sun was shin-
ing into the vehicle from the left. He held his forearm in
front of his face so that the sun would not shine directly in-
to his eyes. They overtook a vehicle driven by the mine fore-
man. Shortly afterwards he heard one of the men call out
from behind him, and he looked around. As he did so, he
heard Thomas cry out "O God Boeta, kyk hier". He looked to
the front and saw a truck in a turning movement on the haul

road. He had not seen it before. The Ekonobus swerved to

the

14 the right. Everything happened very quickly and the col-lision took place.
Thomas said that he left Uubvlei at 06h40 on 1 December 1980. He used the haul road. He recalled overtaking Laubscher at a speed of 60 km per hour. The sun, which was just above the horizon, was slightly to his left. He had no problem with his view of the road ahead of him, but he was blinded when he looked directly into the sun. He saw a shadow coming onto the haul road from his left hand side. Thinking that there had to be something to cause this, he immediately swerved to the right. The next second he saw "this big 769"just about starting to turn. He said to Wil-liams, "O God, kyk hierso". There was an impact on the

side
15 side of the Ekonobus, which started rolling. Immediately after the accident he looked at his watch: the time was 06h50. Apart from the sun, there was nothing to prevent him seeing the 769. He was not conscious, after passing Laubscher, that there was an access road not far ahead.
In addition to the "eyewitness" accounts, evidence was given by Sippel, a registered professional engineer, who was in practice as a consulting civil and structural engi-neer. He visited the scene of the collision and, having made a survey and fixed the latitude of the scene, he deter-mined the position of the sun at the relevant time and date. The survey indicated that the direction of the haul road was 39° South of East and that of the access road was 42° South of

West

16

West. The two vehicles involved in the accident therefore
approached each other at an angle of approximately 99⁰, i.e.
almost at right angles to each other. On 1 December 1980
at 06h50 the azimuth of the sun was 289⁰ 30', South being
zero. In lay terms, the direction of the sun was 19,5°
South of East. He said:

"A driver travelling Southwards along the Haul Road therefore had the sun in a di-réction of 39° less 19,5⁰ to his left. He would therefore have had fairly good visibility along the Haul Road but his vision to the left would have been con-siderably impaired and it would have been very difficult for him to notice a vehicle approaching the junction along the Access Road from the East.

Furthermore the altitude of the sun was 9° 15', which means that the sun was only slightly above the horizon. A vehicle of the size of the dump truck would there-

fore

17

fore have caused a shadow of approximately 28,7 meters long, measured from the left hand side of the truck."

In support of the argument that Thomas was negligent,

PROTEA relied on the following passage in the judgment of
the trial Court.

"Mr Van Schalkwyk, for Defendant, has argued forcibly that even although Stephanus was obviously negligent, the Second Third Party was also negligent and that the real ques-tion to be decided is if and to what ex-tent his negligence contributed to the resultant damages.

Mr Van Schalkwyk argues that if Thomas was to be believed he was driving virually "blind" vis-a-vis possible traffic moving from his left into and across his line of travel. He knew there were intersecting roads ahead to his left, he knew mine traffic could enter from his left into his line of travel at points unbeknown to him and he knew some of this traffic could .

be
18

be slow moving, hence he knew that he had to take special care in being alive to the peculiar dangers of this haul road. There-fore, he argues further, Thomas was neg-ligent in that under these circumstances he failed to keep a proper lookout and/or failed to regulate his driving in accordance with the prevailing circumstances.

There is merit in this argument and I find myself in agreement with this view that a driver under these circumstances and at the speed Thomas was driving was taking a chance vis-a-vis traffic reasonably to be ex-pected entering the road he was driving on from the left. In driving thus, Thomas was therefore driving negligently."

The learned judge went on to say, however, that it had not
been proved that Thomas's negligence contributed towards the
collision.

With respect, I do not agree that it was proved that

Thomas

19

Thomas drove at a speed that was inappropriate in the pre-vailing circumstances, or that he failed to keep a proper look-out.
His speed was well within the speed limit, which had presumably been fixed with due regard to the circumstances generally to be expected on the road, and it was not shown that there existed any special circumstances on the morning in question.
I do not think that Thomas "took a chance" in not re-ducing his speed in the circumstances. In the ordinary course it was not reasonably to be expected that traffic would enter the haul road without observing stop signs.

In regard to look-out, Thomas was proceeding on a through road and was, generally, entitled to rely on the protection

of

20

of stop signs controlling entry from access roads. While it is true that a driver in a through road does not have an absolute right of precedence and is not relieved from the duty of keeping a general look-out, he is not under a duty to keep the cross road under the same careful observation which would be required if it was not a stop street. It is an overstatement to say that, "if Thomas is to be believed he was driving virtually blind vis-a-vis possible traffic mov-ing from his left into and across his line of travel." He would have been unsighted only when he looked directly into the sun; and he could see what lay to the left and to the right of that. And as he proceeded, his point of view, and hence, what was observable, were constantly changing. In

my
21 my view, the fact that Thomas did not see the 769 truck was probably due, not to a failure on his part to keep a proper look-out, but to a fortuitous conjunction of circumstances at the critical stage: namely, the course of the 769, the course of the Ekonobus, and the effect of the sun on Thomas.
Mr Van Schalkwyk, leading counsel for PROTEA, argued that Thomas had greatly exaggerated the role played by the sun. He referred to the fact that neither at the enquiry held under the Mines Act, nor in his statement to the in-surance company, did Thomas mention the sun. It was men-tioned for the first time only at the trial of criminal charges against Stephanus on 12 October 1982, and even then

Thomas

22

Thomas said only -

"The sun was to the East, but not so bad that I could not see in that direction."

While the force of this argument may be conceded, the fact remains that the sun was in the position described by Sippel. Williams said in his evidence that he was dis-turbed by the sun. And it is indubitable that if Thomas's vision had not been impaired by the sun, he must have seen the 769 at some stage, because it is clear from the photo-graphs which were put in as exhibits that it would have been impossible in ordinary circumstances for any driver who had his eyes on the road to have overlooked it.
There is another reason why it should not have been held that Thomas was negligent in failing to keep a proper look-

out

23

out.
Unless he saw or ought to have seen that the driver of the 769 did not intend to stop at the stop sign, he could not be blamed for proceeding on his course and maintaining a look-out only to his front. Cf Cramer v SAR & H 1949(2) SA 125 (T) at 128.
Thomas did not see the 769 until the moment before the collision. The question then is, what,if anything, ought he to have seen? To that question the evidence provides no answer. Stephanus did not testify, and no witness observed the approach of the 769 to the haul road. Nothing is known of the speed of the 769 at any stage, or of the manner in which it approached the intersection, or whether it stopped or not.

Consequently
24 Consequently there is no basis on which it can be said that Thomas was negligent.
Mr Van Schalkwyk sought to rely on answers given by Thomas to a number of hypothetical questions as to what he would have done if he had seen the 769 as it approached, or if he had been travelling at a lower speed. I do not think that those answers can be of any assistance to PROTEA. Alleged negligence óf LTA

The allegations in the annexure to the third party notice

on which PROTEA based its conclusion that LTA was itself

negligent, were these:

"4. (a) Defendant alleges that at the time of the said collision the Second Third

Party was driving the said motor vehicle

SC

25

SC 3474 within the scope and course of his employment as a servant of the First Third Party.

(b) The road on which the Second Third Party
was driving is a so-called "haul road"' .
and, as such, forms an integral part of

a mining operation conducted by Consoli-dated Diamond Mines (CDM).

(c) At all material times, the First Third
Party was aware, or ought to have been
aware, of the following facts:

(i) That in terms of regulations issued by CDM, only authorised vehicles engaged in the actual mining operation are permitted to travel on haul roads; (ii) That an agreement between the First Third Party (as contractor) and CDM (as employer) contains the following provision:

'The Contractor is to ensure that his personnel familiarise themselves with the Employer's relevant rules and regulations - eg. no travelling on haul road, wearing of safety belts and hard hats, etc.' (iii) That motor vehicle SC 3474 was not an

authorised

26

authorised vehicle within the meaning

of the said regulations. (d) In the premises, the First Third Party was obliged to inform its employees, including the Second Third Party, of the aforementioned regulations, more particularly the regulation prohibiting travel on haul roads, and fore-saw or ought to have foreseen that should it fail to do so, its employees, including the Second Third Party, might travel in un-authorised vehicles on haul roads where vehicles not involved in the mining operation could create an unexpected hazard for vehicles which are engaged in the mining operation, and vice versa."

In the face of questions by the Court, Mr Van Schalk-

wyk abandoned reliance on the failure by LTA to inform
its employees, including Thomas, of the regulations. He
submitted, however, that LTA was negligent on another ground,
namely that,having knowledge that the haul road was es-

specially
27 specially hazardous, it failed to inform Thomas of the danger and to prohibit him from using the haul road. I do not think that it is open to PROTEA to rely on this ground of negligence. It was neither pleaded, nor argued in the Court below, nor put forward in PROTEA's heads of argument in the appeal. And it was not fully canvassed in the trial Court. More specifically there was not a full investigation of the alleged dangers of the haul road, or of the knowledge by LTA as a corporate body of such dangers.

Nor would it avail PROTEA if this ground could be con-sidered. Mr Van Schalkwyk conceded, in answer to a question by the Court, that he could not contend that the use of the haul road was a cause of the collision. He was clearly right

in
28

in so doing. Compare the observation of
DENNING J in Minister of Pensions v Chennel (1947) 1KB 250

at 256:

"Persons may be more likely to be involved in an accident in a London street than in a country road, but the cause of an injury in any particular case is not the visit to London but the negligence of someone or other."

Here the cause of Papier's injury was not the use by Thomas
of the haul road, but the admitted negligence of Stephanus.
And if the use of the haul road was not a cause of the injury,
a failure to warn against the dangers of the road, or to
prohibit its use, has no bearing on the case.

The appeal accordingly fails. It is dismissed with

costs
29 costs, including the costs attendant on two counsel.

H C NICHOLAS, AJA

HEFER, JA ) Concur

NESTADT, JA )

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