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Sudden Emergency

Introduction

Under contemporary traffic conditions the reasonable driver must be prepared to be confronted with a diversity of situations (both usual and unusual) which may create actual or potential emergencies. It has been said: “It is by no means an improbability that, in an emergency calling for urgent action on the part of drivers of two or more cars in a given situation, one or more of such drivers might commit an error of judgment or miscalculate a position or even act in a negligent manner … it requires no act of inspired foresight to anticipate such possibility”. Nevertheless, the law does not make unreasonable demands of the contemporary driver and due allowance is made for human fallibility when judging a driver’s conduct at the time of an emergency.

Sudden Emergency

A driver (it is self evident) who is suddenly confronted with an unexpected danger may, and probably will, act differently from a driver who does not have to act without much time to make a decision, and on the spur of the moment he may do something which causes the very collision he is anxious to avoid.

(R v Phillips 1949 (2) SA 671 (0)

The onus of proving negligence remains on the plaintiff and at the end of the trial the Court has to decide the plaintiff has discharged the onus of proving on a balance of probabilities that the defendant was negligent, and likely to cause an accident.

The situations which can give rise to a sudden emergency are infinite. A vehicle traveling on its incorrect side of the road, the unexpected swerve of a vehicle, a motor vehicle out of control, an unexpected skid, an unexpected mechanical defect, a door of a vehicle opening unexpectedly, a child unexpectedly running across the road – all have been held to have created a sudden emergency.

The Requirements for sudden emergency to apply

Unexpectedness of the situation

For a doctrine to operate the emergency must occur suddenly; the driver must be faced with an unexpected crisis. A situation is not a sudden emergency where a driver had timeous warning
and thus a reasonable opportunity to decide on the appropriate action. 

Reasonable care

A driver who is faced with a sudden emergency is required to exercise reasonable care and use reasonable skill to avoid the imminent danger. This principle has been applied in various cases in which a motorist on his correct side of the road who, on seeing a vehicle approaching on its incorrect side of the road, crossed over on to his incorrect side of the road. In each case the Court held that the former was negligent as he had acted unreasonably in driving on to his incorrect side of the road when he did. In applying the reasonable man test the Court should not adopt the hypercritical attitude of an armchair critic.

Sudden mechanical defect

A sudden mechanical defect is not a very exceptional occurrence and should it prevent the driver of a vehicle from exercising proper control over it may create a sudden emergency. An emergency may occur through the unexpected failure of the vehicle brakes or its steering mechanism or through a burst tyre.

A driver is not required to drive on the assumption that his foot-brake might suddenly and unexpectedly fail, anymore than he is required to drive on the assumption that his steering mechanism might fail.

(Huysamen v Venter 1955 (2) PH 06 T)

At the same time, unless the defective brake was unknown to him or was not discoverable by the exercise of ordinary care, a driver can not rely on an emergency resulting from a sudden brake failure. To drive a motor vehicle knowing that it’s service brake is defective, or when the defective brake was discoverable through ordinary skill and care he is negligent.

As it is relatively easy for a defendant to attribute his errant conduct to sudden brake failure, a Court will normally expect the defendant, within reasonable limits to produce evidence which was or ought to have been available to support his explanation – particularly when the brakes which allegedly failed functioned properly at a later stage.

(Rakisson & Son v Springfield Omnibus Services 1964 (1) SA 609 (D)

The requirements of absence of prior knowledge and reasonable car should be met.

Skidding

For a motor vehicle to skid is not an uncommon occurrence, but skidding may be the cause of a sudden emergency. However the fact that a vehicle went into a skid does not meat that the driver was not negligent.

Unforeseeable

Whether a driver should have foreseen the likelihood of a skid will depend on:

  • the condition of the road.
  • the type and condition of his tyres; and 
  • the speed at which he was traveling at the relevant time.

Avoiding action

Even though a skid is not due to the driver’s negligence, once his vehicle is in a skid he must take all reasonable steps to avoid harm to others and the failure to take such steps will constitute negligence.

Tyre burst

In Brasser v Friedman 1941 WLD 21 there was a sudden deflation of a tyre and the motorcar went into a skid and overturned, it was found that the skid could not have been foreseen. The court found that the plaintiff failed to discharge the onus of providing that the driver of the car would have avoided the effects of the skid by some means reasonable in the circumstances. The doctrine of sudden emergency was applied.

In the matter of Mndinswa v MMF (unreported judgment in the TPD) it was decided that in the case of a tyre burst three factors must be proven by the defendant:

  • whether the driver / owner maintained the tyres and tyre pressure.
  • conduct of the driver immediately prior to the tyre burst.
  • his behaviour immediately after the tyre burst when faced with an emergency.

If the driver was negligent in anyone of the above circumstances then he is liable. The onus of proving negligence rests on the plaintiff.

In the Bredel case the Court considered the duty of a motor vehicle owner to inspect the tyres of his vehicle.

In the Bennett case the Court considered the duty of a motor vehicle owner to keep the vehicle in a reasonable condition and held that there is no higher duty on a fleet owner.

Volenti non fit Injuria

This rule simply implies that a person who consents to a harmful act may not recover damages from the defendant.

There are two types of Volenti non fit Injuria

  • The first is in the form of its consent with regard to a direct act; and

  • Secondly the voluntary assumption of a risk based on the fact that the plaintiff realises that there is a certain risk involved in an activity which could lead to harm.

Before such defence can succeed the following will have to be proven

  • The plaintiff must have had knowledge of the harm of the risk involved in the defendant’s conduct;
  • The plaintiff must realise the full nature and extent of the risk involved;
  • The plaintiff must voluntary accept the risk implicit in the defendant’s conduct. This consent does not have to be vocalised. The pure and simple fact that the plaintiff realises and accepts the risk and does nothing to avoid the risk and continues to participate, well aware of the first two pre-requisites, will be regarded as having consented to the risk.

 
The defendant carries the onus that the defence is a viable defence.

Joint illegal activity

A plaintiff who is injured through the negligent conduct of the defendant while the parties were engaged in a common illegal activity is not entitled to recover damages from the defendant, the reason being that the defendant was not negligent because he did not owe a duty of care to the plaintiff.

A joint illegal activity is relevant to the defendants liability only if it is causally relevant to the plaintiff’s claim, e.g. the joint use of a motor vehicle to escape arrest. If the joint illegal activity is causally relevant to the plaintiff’s claim the Court treat the plaintiff’s illegal conduct in the same manner as any other exposure to the risk of harmful conduct.

A differentiation should be made between the following two scenario’s

Where a car is hijacked and the driver in his efforts to escape causes a collision. Neither passenger nor the driver will be entitled to claim as there is a nexus between the illegal activity and the accident.

  • Where a car is hijacked and while driving another vehicle drives over a red robot there is no nexus between the hijack and the fact that the insured driver drove over the red robot. In such a cases, it is my submission that both the hijacker and his passenger will be entitle to claims.

Motorist subject to unlawful attack

In two cases the Courts have had to deal with the liability of a motorist who lost control over his vehicle because he was unlawfully attacked or threatened with an unlawful attack by one or more pedestrians.

Mfihlo v Port Elizabeth Municipal Council 1976 (3) SA 183 (SE)


Motorist was about to park his vehicle when a man who had been fighting with another picked up a brick and made as if he intended throwing it at the motorist. The latter “ducked and swerve in one action”. As he did so his foot slipped off the brake onto the accelerator, which caused the motor vehicle to shoot forward and collide with the plaintiff.

The Court found the motorist was faced with a sudden emergency and was entitled to duck as he did and that his foot slipping off the brake pedal onto the accelerator did not constitute negligent conduct.

Samson v Winn 1977 (1) SA 761 (C)

A motorist was driving along and a pedestrian lashed at him with a panga, which struck the pillar between the front and rear right hand doors of the vehicle. The driver ducked forward and struck his head against the steering wheel. He lost control of the vehicle, swerved onto the incorrect side of the road and collided with plaintiff’s approaching vehicle.

The Court found that the motorist was faced with a sudden emergency which placed his life in peril and that in acting as he did he was not negligent.

In both these cases it appears that the motorist’s acted instinctively, thus involuntary, when they were faced with a sudden emergency, and on this ground the Court could have held that they were not liable. It seems that even if the motorist was negligent in colliding with a innocent third party, he was not liable as his act was done of necessity and he was thus not acting unlawfully at the time of the collision.

Aquaplaning

”ACCIDENT RECONSTRUCTION” James C Colins: (Ph.d. Mechanical Engineer: Thomas Books), p.166

”Hydroplaning”

As an automobile rolls down a wet road, the tyres push the film of water aside and run on the asphalt. As the car’s speed increases, the natural fluid drag on the water is harder to overcome. Overcoming such drag takes time, and consequently, a fluid wedge tends to form ahead of the tyre and tries to lift the tyre off the pavement. At some critical speed, this lifting force becomes equal to the load carried by the tyre, and the tyre rides up the fluid wedge and actually runs along the top of the water, …. (and) effects only the front tyres. Since these tyres partially succeed in displacing the water over which they are running, the rear tyres still run on the asphalt, as half the work required to displace the fluid wedge under them has already been done by the front tyre…..”

Elements indentifying aquaplaning

  • severely impaired stopping ability, ±50%.
  • no steering capability, due to front tyres skimming the water surface

Conditions for aquaplaning occurring

  • Water depth: between 0.5 and 0.8 cm (5 & 8 mm).
  • Road surface texture must be smooth for water to stand easily.
  • Road must have small crown, to lead to move standing water.
  • Conditions of tread of the tyre, as grooves offer escape routes for water wedges.

    Tyre inflation pressure:


    Trucks and cars operate at vastly different speeds:
    Motor car critical speeds are between 90 and 125 km/h, while trucks are at between 160 and 215 km/h.

The formula

Vp = 10.35Vp
Vp: hydroplaning velocity in mph
P: tire pressure, inflation in psi.

Case Law: Hammer v Nunes 1972(s) SA 785 (Rhodesian Appeal Court)

Acting Judge President Lewis

  • onus of rebuttal rests on defendant.
  • condition of the tyres of utmost relevance
  • expert: “….. not a natural phenomenon, aquaplaning is brought about by some conduct on the part of the driver himself when the road surface is wet, some sudden change of direction, …. Application off brakes ….”
  • Defendant found 100% liable.