South Africa: Western Cape High Court, Cape TownYou are here: SAFLII >> Databases >> South Africa: Western Cape High Court, Cape Town >> 2009 >>  ZAWCHC 60 | Noteup | LawCite
Neethling and Another v Oosthuizen (7060/2008)  ZAWCHC 60; 2009 (5) SA 376 (WCC) (21 April 2009)
Download original files
Bookmark/share this page
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION, GEORGE)
CASE No: 7060//2008
In the matter between:
MARI NEETHLING First Plaintiff
PETRUS OLIVIER BREYTENBACH Second Plaintiff
GEORGE P OOSTHUIZEN Defendant
JUDGMENT DELIVERED : 21 APRIL 2009
The Cause of Action
On 3 April 2003, the first and second plaintiffs, together with the defendant and his wife, were travelling in a Landrover from Clarens to the Gariep Dam in the Free State. The Landrover was pulling a heavily-laden trailer. The defendant was the driver of the Landrover. At approximately 14:30, they were driving on a gravel road between Wepener and Smithfield, when the left rear tyre punctured. The defendant lost control of the vehicle that overturned and came to rest on its wheels on the other side of the road with its nose facing in the direction that they had come from. It appears that the second plaintiff was thrown out of the vehicle and landed unconscious on the road. The others remained in the vehicle. The first plaintiff suffered certain injuries to her right foot. The second plaintiff suffered contusion of the brain and cut wounds to his face and head. They were taken to the Smithfield Provincial Hospital where they received emergency treatment. They were thereafter transferred to Rosepark Private Hospital in Bloemfontein, where they received follow-up treatment.
Before the accident, the foursome had gone on an extended holiday tour of Mozambique in the Landrover and were returning home to George. Their final stop was going to be the Gariep Dam when the accident cut short their journey. The accident gave rise to the claim of the plaintiffs against the defendant in respect of the injuries they suffered and the sequelae. The plaintiffs had instituted claims against the Road Accident Fund whose liability for the plaintiffs’ claims was limited to R25 000, 00. The Road Accident Fund paid the first plaintiff the sum of R25 000, 00 and the second plaintiff the sum of R23 426, 73. The first plaintiff claimed the balance of R239 051, 85 and the second plaintiff the balance of R105 000, 00 from the defendant on the grounds of causal negligence.
The defendant opposed the action and denied that he was negligent. He pleaded that a sudden emergency had arisen as a result of the left rear tyre of the vehicle suddenly, unexpectedly and without warning, bursting and/or deflating without any fault on his part. He pleaded further that he took all necessary steps to manoeuvre the vehicle to safety and to prevent it from overturning, but to no avail. In the alternative, if the court finds that the defendant was negligent, then he pleaded contributory negligence on the part of the plaintiffs in that they had failed to wear seat belts. In the further alternative, the defendant pleaded that plaintiffs were aware of the inherent dangers of the journey that they had agreed to undertake, of the risks involved in being passengers in the vehicle in its condition at the time of the accident and, despite such knowledge, agreed to be passengers in the vehicle and, in the circumstances, he is not liable for any loss or damage suffered by them.
Separation of Liability and Quantum
In terms of Rule 33(4) of the Uniform Rules of Court, the court ordered that the question of liability of the defendant be separated from the question of quantum and the court first determine the issue of liability and that the question of quantum be held over for later determination, if necessary.
The issues I am called upon to determine is firstly, whether the defendant was negligent and if so, in what respects was he negligent; secondly, if he is found to be negligent, did such negligence contribute to the accident and the harm or loss suffered by the plaintiffs.
The Test for Negligence
Negligence in the form of culpa has been defined as the failure to exercise a degree of care and skill that a reasonable person would have exercised in the circumstances. Holmes, JA in Kruger v Coetzee 1966 (2) SA 428 (A) at 430E-F held that negligence arises for the purpose of liability if:
“(a) diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.”
In Mukheiber v Raath & Another 1999 (3) SA 1065 (SCA) at 1077E-F the test for negligence was stated as follows:
“For the purposes of liability culpa arises if –
(a) a reasonable person in the position of the defendant –
(i) would have foreseen harm of the general kind that actually occurred;
(ii) would have foreseen the general kind of causal sequence by which the harm occurred;
(iii) would have taken steps to guard against it; and
(b) the defendant failed to take those steps.”
After examining the formulation of the test set out in the above two cases, Scott, JA in Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storages 2000 (1) SA 827 (SCA) at 839F-H) concluded:
“…it should not be overlooked that in the ultimate analysis the true criterion for determining negligence is whether in the particular circumstances the conduct complained of falls short of the standard of the reasonable person. Dividing the inquiry into various???? stages, however useful, is no more than aid or guideline for resolving the issue. It is probably so that there can be no universally applicable formula which will prove to be appropriate in every case.”
“…the attempt to state some general principle which will determine liability in an infinite variety of circumstances serves not to clarify the law but merely to bedevil its development in a way which corresponds with practicality and common sense”.
The court said in Herschel v Mrupe 1954 (3) SA 464 (A) at 490E-F:
“The concept of bonis paterfamilias is not that of a timorous faint-heart always in trepidation lest he or others suffer some injury; on the contrary, he ventures out into the world, engages in affairs and takes reasonable chances. He takes reasonable precaution to protect his person and property and expects others to do likewise.”
With that background, I turn to evaluate the evidence. Most of the facts, other than the question of negligence, are common cause and, by agreement between the parties, have been set out in exhibit “B”. It is common cause that the trip was dogged by mishap. During their travels in Mozambique the left rear tyre punctured on two occasions and had to be replaced with spare wheels. The damaged tyres were repaired when they arrived in Nelspruit. Also during their travels in Mozambique, the spring of the trailer broke. In Nelspruit they could not find a spring of a similar size and had to replace both springs of the trailer with those of a different size. While the parties continued their trip in South Africa from Nelspruit, near Standerton, the power steering of the Landrover gave in. The defendant assured the parties that it was safe to continue their journey without the power steering. The next day while driving on a gravel road between Wepener and Smithfield, the left rear tyre of the Landrover punctured, the defendant lost control of the vehicle and it capsized. It is common cause that the Landrover was not in a roadworthy condition at the time of the accident by virtue of the fact that the power steering was disabled.
Dr Neethling and Mr Breytenbach, as the plaintiffs, testified on their behalf and also called Mr Opperman as an expert witness in support of their case. Dr Neethling described how the accident happened. Mr Breytenbach was asleep at the time of the accident and was not in a position to describe how the accident occurred. Mr Opperman, in his expert report and evidence, concluded as follows: firstly, that the reasonable driver would not apply brakes after a tyre burse to control a vehicle as such action would in all probability contribute to the driver losing control over the vehicle; secondly, that he is of the opinion that it is appreciably more difficult for the driver to control the vehicle, after a tyre burst, without the assistance of the vehicle’s power steering and thirdly, he is of the opinion that it is probable that the defendant could have prevented the accident if he drove a vehicle of which the power steering was not disabled.
Mr Oosthuizen, as the defendant, testified in support of his case and, in addition, called Dr Dykman, his spouse. Besides other evidence which was essentially common cause, they described how the accident occurred. The defendant also called Mr De Witt, an attorney from George and Mr Grobbelaar, as an expert witness, in support of his case. Mr Grobbelaar in his report and evidence concluded as follows: firstly, that it is probable that the defendant would have lost control over the vehicle if the left rear tyre burst and gives various reasons for that opinion and secondly, that it is improbable that the defendant could have prevented the accident even if the power steering was in working order. He stated that the absence of power steering would have an appreciable effect on the driving input required of the defendant, where the vehicle is stationary, moving very slowly or where the vehicle moves slowly over rough terrain. The reason being that as the steering wheel would turn with greater difficulty. According to him, where the vehicle travels on a gravel road at a speed of approximately 80 kph the difference would be minimal. .
The Value of Forensic Evidence
It is a trite principle of our law that expert evidence is a post ex facto reconstruction of an accident and does not carry the same evidential weight as the direct evidence of credible eye witnesses. (See Van Eck v Santam Insurance Co Ltd 1996 (4) SA 1226 (C) at 1229H-1230A). Expert testimony can nevertheless serve as a useful tool or guide against which the reliability of the testimony of eye witnesses can be checked and tested. (See Van der Westhuizen and Another v SA Liberal Insurance Co Ltd 1949 (3) SA 160 (C) at 168 and which statement was quoted with approval in Diale v Commercial Union Assurance Co of SA Ltd 1975 (4) SA 572 (A) at 576H-577A.)
Counsel for the plaintiffs argued that the court cannot place any reliance on the expert evidence of Mr Grobbelaar in that: firstly, he drew inferences on facts which are inconsistent with the facts as testified to either by the defendant or Dr Dykman; secondly, that certain sections of his report, as to how the accident occurred, has no evidential basis and thirdly, that his opinion at best constitutes a selective reconstruction of the accident. There is merit in such argument. Mr Grobbelaar based his report on the reconstruction of the accident, on the statements made by the defendant to the police and to his insurers. In his evidence in court, the defendant distanced himself from such statements insofar as to how the accident happened. The report of Mr Grobbelaar, insofar as it is based on such information contained in the two statements, must be suspect and the court cannot place any reliance thereon. Mr Grobbelaar also deliberately ignored the evidence of both the defendant and Dr Dykman insofar as the speed of the vehicle immediately before it capsized, was concerned. On their version of the speed, it is unlikely that the vehicle could have capsized and rolled in the manner it did and come to stop where it did. I agree with counsel for the plaintiffs that Mr Grobbelaar’s reconstruction of the accident, as contained in his report, is based on selective facts.
Mr Opperman carried out certain practical tests to determine the effect of a power steering on a vehicle that is working and one that is not working. For such purpose, he made use of a Newton Meter. In an addendum to his Report, he set out the results of the tests. In court a Newton Meter was produced by counsel for the defendant and Mr Opperman was asked to manipulate the instrument with his finger to register the effect. In my view the practical tests carried out by Mr Opperman and the experiments conducted in court have very little probative value because of the circumstances under which they were carried out. I am of the opinion that the results do not lend themselves to reliability. There were also conflicting views between the two experts as to how the damage to the rim of the wheel was occasioned. The evidence was far too speculative to enable me to make a definitive finding in respect thereof.
Because of the blemishes and shortcomings of the evidence of the experts, I will only accept their evidences insofar as they are consistent with the objective facts, the inferences drawn from such facts and the probabilities.
The Credibility of Eye Witnesses
I now turn to evaluate the credibility of the eye witnesses. Dr Neethling made a good impression as a witness. She testified as she remembered and recalled the accident. She did not try to exaggerate or colour in her evidence. She could very easily have said that the defendant applied brakes, but she did not say so. She did not contradict herself nor was she discredited as a witness. Under cross-examination, she did not deviate from her evidence in chief. She readily conceded that the gravel road on which they were travelling was a good gravel road and the defendant maintained a speed on such road with which she felt comfortable. The only aspect of her evidence that can come up for criticism is her testimony that defendant had informed them that he had sought advice from Mr De Witt concerning a possible claim by the plaintiffs against his insurers and the alleged admission made by the defendant that he had applied brakes at the time of the accident. This evidence was confirmed by Mr Beytenbach, but was denied by the defendant and Dr Dykman. For reasons that will become clear later, it is not necessary for me to make a formal finding as to who is to be believed. As far as it affects the credibility of the parties, in my view, such evidence is neutral and supports neither of the two sides.
Dr Dykman was not an impressive witness. She parrot-wise repeated the evidence of the defendant. She confirmed the speed of the vehicle immediately before it capsized as that testified to by the defendant, namely between 10 to 20 kph. She repeated the evidence of the defendant that they were almost stationary when the vehicle capsized. This evidence was contradicted not only by their own expert, but also by the plaintiffs’ expert. Such evidence was also inconsistent with the objective facts.
The defendant was not a credible and reliable witness. He adapted his version from time to time as to how the accident happened. There were glaring discrepancies as to how the collision occurred. He gave at least three different versions. His estimate of the speed of the vehicle immediately before the accident is not borne out by the objective evidence. He gave contradictory versions as to where the vehicle was when it skidded. He furthermore held himself as an expert in an attempt to convince the court that the disablement of the power steering could not have contributed to the accident. He conceded, under cross-examination, that he was not an expert in that field. He did not make a good impression as a witness and his evidence, like that of Dr Dykman with regard to the accident, must be approached with caution. I will accept his evidence as well as that of Dr Dykman, pertaining to how the accident occurred, provided such evidence is consistent with the objective facts, inferences drawn from such facts and the probabilities.
Evaluation of the Evidence
In evaluating the evidence, I will concentrate on the grounds of negligence relied on by the plaintiffs to hold the defendant liable for their harm and loss. The first ground is whether the defendant applied brakes immediately after the puncture and at the time when the vehicle went into a skid. The defendant’s counsel, conceded that should I find that the defendant braked while the car was in a skid, then he would be responsible for the accident and the resultant harm. The second ground is the defendant’s failure to have the power steering repaired before continuing his journey on the gravel road.
Did the Defendant brake?
There is no direct evidence from the eye witnesses that the defendant applied brakes at the crucial time. The only evidence before the court is an alleged admission made by the defendant to the second plaintiff. Second plaintiff testified that following consultation with his attorney regarding a possible claim against the defendant and/or the Road Accident Fund, he approached the defendant and asked him whether he applied brakes when the vehicle went into a skid following the tyre burst. The defendant admitted to him that he had applied brakes. Although the defendant admitted that he was approached by second plaintiff in connection with the matter, he denied that he had made the admission as alleged by second plaintiff.
Both the first and second plaintiffs testified that while they were receiving medical treatment at the Smithfield and Bloemfontein Hospitals, the defendant, in the presence of Dr Dykman, discussed the plaintiffs instituting a claim against him as he has public liability insurance. The defendant had also informed them that he had spoken to his attorney who advised him that it should not be a problem. Both the defendant and Dr Dykman denied that such discussion ever took place. Although I am predisposed to accept the evidence of the plaintiffs on this issue, it is unnecessary for me to make a formal finding on the matter because of the conclusion that I have reached and which will become clearer later.
The plaintiffs in their pleadings, did not rely on the specific ground of negligence that defendant had applied brakes at the crucial time, which caused the accident. The plaintiffs essentially relied on the power steering disablement and the failure of the defendant to effect the necessary repairs before proceeding with their journey as the ground of negligence. I turn to discuss that ground of negligence.
Did the failure to effect the necessary repairs to the power steering contribute to the accident?
It is common cause that prior to the accident, the power steering of the Landrover was disabled, but was not repaired. It is also common cause that the power steering could have been repaired in Bethlehem, before they continued the journey. The defendant had the choice to continue the journey to Gariep Dam either by using a tarred road or a gravel road. He assured the parties that it was safe to continue the journey on the gravel road without the power steering. The accident occurred while they were travelling on the gravel road. He also conceded under cross-examination that on a gravel road greater steering input was required than on a tarred road and the driver ought to be more cautious for potential dangers on a gravel road than on a tarred road. It is common cause that without the power steering the Landrover was not in roadworthy condition. The defendant conceded that the power steering of the Landrover formed an integral part of the safety mechanism of the vehicle. This was confirmed by Mr Opperman. In my view a legal duty rested on the defendant to maintain his vehicle in a roadworthy condition. He breached such duty by failing to have the power steering repaired and such failure was actionable. (See South British Insurance Co Ltd v Mkize 1965 (1) SA 206 (A) and Bredell v Commercial Union Versekeringsmaatskappy Beperk 1977 (4) SA 464 (C).)
I accept the evidence of Dr Neethling that prior to the accident, the vehicle was travelling at approximately 80 kph. This is confirmed by the defendant. The court rejects as false the evidence of the defendant and Dr Dykman that immediately before the accident the vehicle was travelling between 10 to 20 kph and was almost stationary. Such evidence is not supported by the objective evidence and is even disputed by Mr Grobbelaar. He estimated the speed to be between 30 to 40 kph, which he based on the momentum required for the movement of the vehicle from the time it capsized to the time it came to rest. The distance between the two points was estimated to be between 50 to 100 meters. In my view it is probable that the vehicle was travelling between 30 to 40 kph when it capsized.
The defendant admitted that at the time the power steering was disabled, he noticed that it became more difficult to handle the vehicle and he had to give greater driving input, but said it was not significant. Mr Opperman testified that he personally carried out certain tests with a Landrover similar to the one that was involved in the accident and drove with it on a gravel road in more or less the same condition on which the accident occurred with and without power steering. He found that the vehicle steered with greater difficultly without power steering than with power steering and such difference became more pronounced in the low speed range.
Mr Grobbelaar agreed that at low speed a vehicle without power steering has a significant affect on the driving input of the driver because of the rigidity of the steering wheel. Mr Grobbelaar said that according to his own experience as a driver, he disagrees with the opinion of Mr Opperman that it is significantly more difficult to drive a vehicle on a gravel road without power steering than with power steering. Mr Grobbelaar bases his opinion on the fact that the loose gravel facilitates the driving process. I agree with Mr Grobbelaar that the loose gravel can facilitate the driving process. I do not think, however, that the loose gravel can sufficiently compensate for the lack of power steering on a gravel road. Power steering facilitates the driving process whether on the tarred or gravel road and in addition serves as a safety mechanism. The defendant lacked such facilities when the vehicle skidded as a result of the puncture and capsized.
Mr Opperman testified that the duty of a reasonable driver in the event of a tyre burst, is to keep the vehicle straight in the road but should the vehicle skid, then he should apply counter-steering and drive the vehicle out of the skid. Dr Neethling testified that after she heard the tyre burst, the defendant was struggling with the steering wheel in order to keep the vehicle in the middle of the road. The vehicle then skidded and capsized. She did not feel that the rear of the vehicle lifted before it capsized. I reject the defendant’s version firstly, that after the tyre burst, the trailer skidded against the camber of the road which resulted in it pulling the Landrover laterally across and in the process capsizing and secondly, that the trailer moved sharply to the left, down the decline, lifted the rear of the Landrover, resulting in the vehicle capsizing. I do so for three reasons. The first is that the defendant did not repeat these versions in his oral evidence; the second is that according to Mr Opperman, it is not in accordance with the principles of motor dynamics and the third is that it is not consistent with the objective facts. Mr Grobbelaar substantially based his opinion, as reflected in his written report, on such evidence which I have rejected.
The evidence of the defendant is that as he was approaching the curve in the road, he was driving at approximately 80 kph. He slowed down to negotiate the curve. After emerging from the curve and as he was about to increase his speed, he felt the puncture. He took his foot off the petrol pedal and, without braking, tried to keep the vehicle on the road to prevent it from moving down the shoulder of the road. He gradually reduced speed, but felt that the rear of the vehicle was moving out to the left. He applied counter- steering but felt that it was not sufficient and applied further counter-steering measures to such an extent that the steering wheel locked and could not turn further. According to his evidence it was during the second attempt to apply further counter-steering measures that the vehicle capsized. This version is substantially consistent with the version of Dr Neethling and is also corroborated by Dr Dykman. I accordingly accept such version.
I rejected the evidence of the defendant and Dr Dykman that the vehicle was travelling between 10 to 20 kph and was almost stationary when it capsized. I accepted the estimate of Mr Grobbelaar that the speed of the vehicle at the time was between 30 to 40 kph. That speed, in my view, was sufficiently low that should the power steering of the vehicle have been functional, it would have made a significant difference to the driving process and more particularly to the locking of the steering wheel and the control of the vehicle at the time it skidded following a tyre burst. I also rejected the one version of the defendant that the trailer skidded against the camber of the road, pulling the vehicle laterally and causing it to capsize and the other version that after the tyre burst, he felt how the trailer was pulling to the left and moving down the incline causing the vehicle to capsize.
In my view, power steering is an integral part of the Landrover’s safety mechanisms and the loss of power steering hampered the defendant’s steering input which he was required to make in the driving process, but more particularly in the case of the sudden emergency arising from the tyre burst. He accordingly lost control of the vehicle and it capsized. Mr Opperman said that it was unlikely that the Landrover could have capsized on the version of the defendant and Dr Dykman. He said it was more likely that the driving input of the defendant was the cause of the accident and it was likely that he could have avoided the accident if he had the use of power steering. He said that it is generally known that should a tyre burst, it does not necessarily lead to an accident. A driver in most instances should be in a position to exercise control over such vehicle. It is probable that had the defendant had the benefit of power steering, the steering wheel would not have locked as testified by him and it is also probable that he could have driven the vehicle out of its skid to avoid it capsizing.
Mr Opperman in his report, in support of his opinion, quoted from Baker and Fricke’s: The Traffic-Accident Investigation Manual (9th Edition – 1986) at page 25-3 the following passages:
“Unquestionably tire disablement can be a factor in an accident, but experience shows that it is nearly always in combination with deficiencies in other parts of the vehicle, with irregularities in the road, or probably most commonly in connection with driver ineptitude. For example, it is not uncommon for air loss in a front tire of a tractor over the road to cause a pull towards the tire. Ordinarily, a driver would have no trouble correcting for that drift. When a particular driver could not do so, a careful investigation revealed a worn out steering gear as an important contributing factor.”
He quotes further from the same page as follows:
“Other studies have shown that power or center point steering would have made the difference between an accident and no accident following a tire disablement.”
Mr Oosthuizen, as an experienced and reasonable driver, was aware of the fact that he had two punctures to the rear left wheels; that the power steering was disabled; that he had the opportunity to repair the power steering but failed to do so; that he drove a vehicle that was not in a roadworthy condition; that he had a choice of getting to his destination with a broken power steering, either by tarred road or by gravel road and chose to take the gravel road, being aware of its inherent and potential dangers.
I am of the view that the defendant should have foreseen the reasonable possibility that should a vehicle which was not in a roadworthy condition, because of disabled power steering, have a further puncture, which was not a remote possibility, he would not be able to control it and this could have serious physical and patrimonial consequences for his passengers and other road users. (See Bester v Commercial Union Versekeringsmaatskappy van Suid-Afrika Beperk 1973 (1) SA 769 (A) at 777E and Masiba and Another v Constantia Insurance Co Ltd and Another 1982 (4) SA 333 (C) at 342B.)
The defendant should have guarded against such consequences by repairing the power steering to ensure that the vehicle was in a roadworthy condition before continuing the journey. However, he decided to proceed with the journey without complying with the abovementioned condition and further compounded the consequences by venturing the gravel road with its inherent dangers and hazards.
The defendant’s own expert, Mr Grobbelaar, said that, under those circumstances, he personally would have opted for the tarred road. As a reasonable driver, the defendant should have had the foresight and judgment in the circumstances to have recognised the substantial and potential risk and guarded against it. (See Godfrey v Somerset East Divisional Council 1932 EDL 342 and Marais v Caledonian Insurance Co Ltd 1967 (4) SA 199 (E).) I am accordingly satisfied that the defendant was negligent in failing to take the necessary steps to avoid the potential harm.
The next question which the court has to determine is whether there is a causal connection between such negligence and the accident. In the law of delict, causation involves two distinct enquiries. The first leg is a the factual enquiry to determine whether the defendant’s wrongful conduct was the cause of or contributed materially to the plaintiffs’ loss. If it did not, no legal liability ensues. If it did, the second leg is a legal enquiry, namely, to determine whether the wrongful conduct is linked sufficiently closely to the harm for legal liability to ensue or whether it is too remote for legal liability not to ensue. (See: International Shipping Company (Pty) Ltd v Bentley 1990 (1) SA 680 (A) at 700E-J and the authorities cited therein.)
For the purpose of the factual enquiry, the conditio sine qua non test which is more commonly known as the “but for” test would be applied and is postulated as follows: whether the wrongful conduct of the defendant is a necessary condition if, but for such conduct the accident would not have happened. In Minister of Safety and Security v Carmichele 2004 (3) SA 305 (SCA) at para 60, the Supreme Court of Appeal said that the enquiry is subjective and a court has to determine, on the probabilities, what the relevant set of consequences would have been if the proper conduct had been followed in the first place. In Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) at para 25, it was put as follows:
“A plaintiff is not required to establish the causal link with certainty, but only to establish that the wrongful conduct was probably a cause of the loss, which calls for a sensible retrospective analysis of what would probably have occurred, based upon the evidence and what can be expected to occur in the ordinary course of human affairs rather than an exercise in metaphysics.”
The evidence is that the Landrover, immediately prior to the accident, had two punctures to the left rear wheel; the power steering, which was an integral part of the safety mechanism of the Landrover, was disabled; the Landrover was pulling a heavily-laden trailer; and the defendant chose to proceed to their destination on a gravel road with its attendant risks. The defendant should have foreseen the reasonable probability that the Landrover could have a further tyre blow out and with an integral safety mechanism of his vehicle being disabled and pulling a heavily-laden trailer, he would not be able to keep the vehicle under control should it go into a skid. According to the objective evidence this is what in fact happened. I am satisfied that if the power steering was not disabled, it was probable that the defendant could have controlled the vehicle after it went into a skid following the puncture. In that event it was probable that the vehicle would not have capsized and caused the harm suffered by the plaintiffs. I accordingly conclude that applying the conditio sine qua non test, plaintiffs, on the evidence, have established factual causation.
I now turn to discuss the second leg of the enquiry, that, is the legal causation. The question of legal causation involves a value judgment based on reasonableness, fairness and justice which is described as the flexible criterion and is aimed at limiting the boundaries of legal liability. The harm suffered by the plaintiffs arises directly from the accident which resulted from the defendant losing control of the vehicle following a tyre burst. It is common cause that the defendant decided to continue the journey on a gravel road with a vehicle of which an integral part of the safety mechanism was disabled and pulling a heavily-laden trailer. Applying the flexible criterion, I am of the view, that the wrongful conduct contributed directly or sufficiently closely to the harm or loss suffered by the plaintiffs and applying the reasonable foreseeability test, I am of the view that the wrongful conduct is not sufficiently remote to enable the defendant to escape liability for the loss suffered by the plaintiffs. (See Smit v Abrahams 1994 (4) SA 1 (A) at 17; Standard Chartered Bank of Canada v Nedperm Bank Ltd  ZASCA 146; 1994 (4) SA 747 (A) at 768.)
In the premises, I conclude that such negligence was the cause of the accident for the consequences of which the defendant is liable.
The plaintiffs have succeeded in respect of the merits and there is no reason why costs in respect thereof should not be awarded to the plaintiffs. Such costs shall include the professional fees of Mr Opperman, as well as his fees for his appearances in court both in George and Cape Town and his travel, living and accommodation expenses for his attendance at court, both in George and Cape Town.
In the premises the court makes the following order:
The defendant is liable to pay the plaintiffs such damages, arising from the accident, and which they may be able to prove; and
The defendant is liable to pay plaintiffs’ costs, including the professional fees of plaintiffs’ expert, Mr Opperman, as well as his fees for his appearance and attendance in court both in George and Cape Town as well as his travel, living and accommodation expenses for his appearance and attendance both in George and Cape Town.
M Neethling & Another v G P Oosthuizen Cont/…