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[2021] ZAWCHC 74
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Julius v Road Accident Fund (6215/2016) [2021] ZAWCHC 74 (28 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case
No: 6215/2016
In the matter between:
THELMA JULIUS
Plaintiff
and
THE ROAD ACCIDENT FUND
Defendant
Coram:
Cloete J
Heard:
25 February
2021, written argument delivered 15 March 2021
Delivered
electronically:
28 April 2021
JUDGMENT
CLOETE J
:
Introduction
[1] This is a
delictual action for damages in which the plaintiff seeks to
hold the
defendant liable for payment of R5 million arising from injuries she
claims to have sustained when hit by an unidentified
motor vehicle on
5 October 2012. The merits and quantum were previously separated
during case management and the trial proceeded
only on the merits.
[2] The
plaintiff testified and called one witness, her husband Mr Godfrey
Julius. The defendant called one witness, Dr Andre Müller, who
is the Medical Services and Theatre Manager at Tygerberg Hospital
(“Tygerberg”). At the commencement of the trial the
parties agreed that the sole issue for determination at this stage
(apart from costs) is whether the plaintiff has proven on a balance
of probabilities that the injuries she sustained were as a
result of
a motor vehicle collision.
[3] In her
particulars of claim the plaintiff alleged that on the date in
question and while a pedestrian she was hit by a white bakkie of
which both its registration number and driver are unknown to her.
She
further alleged that the collision occurred as a result of the sole
negligence of the driver who drove at an excessive speed,
on the
pavement on which she was walking, and failed to obey the rules and
signs of the road.
[4] She also
alleged that as a result of the collision she sustained a closed
fracture of her left humerus and deep scarring to her left hand. It
is common cause that after sustaining her injuries she was
initially
examined at the Delft Day Hospital (“Day Hospital”) and
thereafter treated at Tygerberg. The plaintiff did
not disclose in
her particulars of claim where the incident is alleged to have
occurred. The summons was issued on the plaintiff’s
behalf at
the instance of her erstwhile attorney 3 ½ years later on
15 April 2016.
[5] In its plea
the defendant denied that the collision occurred as alleged
or at
all. Although it pleaded in the alternative that the collision, if
proven, was as a result of the plaintiff’s sole
negligence,
alternatively her contributory negligence, these were abandoned at
the commencement of the trial given that, if proven,
the Court would
find that the collision occurred on a pavement.
The
evidence
[6] The
plaintiff, who resides with her husband in Delft South, testified
that at around 9pm on 5 October 2012 she and her husband were
walking home after purchasing electricity at a nearby service
station
in Main Road. At a traffic circle close to a local high school, and
while walking on the pavement, she was hit from behind
by the bakkie,
causing her to fall forward with her left arm outstretched.
[7] With
reference to a set of photographs (Exhibit “B”) she
demonstrated that at the time of the alleged collision she was
walking close to the edge of the pavement and her husband a metre
or
so in front of her and slightly to her right (Exhibit “B3”).
According to her the bakkie had come around the circle
in the wrong
direction before mounting the pavement and colliding with her.
[8] Her
evidence was further that her husband flagged down a passing motorist
(whose identity is also unknown to her) and who drove her to the Day
Hospital where she was attended to by a nurse. The nurse examined
her
arm and advised that it could not be treated there. An ambulance was
arranged and she was transported later the same evening
to Tygerberg,
confirming with reference to Tygerberg’s clinical notes
(Exhibit “A” page 16) that she arrived
there at about
1.30am the following morning. She was admitted at Tygerberg to a unit
which she described as busy with many doctors
and other people.
[9] According
to the plaintiff she did not know at the time that she could
institute a claim against the defendant. This she discovered later
after encountering a lawyer advertising his services in a vehicle
marked “RAF Claims” parked at a library in the area when
she was on her way to visit her mother one day. This lawyer
was her
erstwhile attorney who also assisted her in lodging the claim
(Exhibit “A” pages 4 – 11 reflect that
it was
received by the defendant on 30 September 2014). The RAF claim
form records that the time of the incident was 9.30pm
and that it
occurred at Main Road, Delft South (Exhibit “A” page 5).
[10] During cross-examination the
plaintiff testified that she was not personally given a referral
form
or similar document by the Day Hospital to hand over upon her arrival
at Tygerberg. She conceded that Tygerberg’s clinical
notes
taken on her admission at its trauma unit (Exhibit “A”
page 16) specifically record the mechanism of injury as
slipping or
stumbling from a fall; that the section headed “Road Accidents”
is blank; and that the history under the
heading “Final
Diagnosis” reflects that she slipped and fell forward while
running and landed on her left hand.
[11] The plaintiff accepted that
all of this would have been recorded by the doctor who examined
her
on admission. She denied however that this was what she conveyed to
him, maintaining that she told him she was hit from behind
by a
bakkie. It is significant to note that there was no suggestion by the
plaintiff (and nor does this appear in any of the clinical
notes)
that she sustained any injuries other than to her left arm and hand,
despite her claim that she was hit “from behind”
by a
vehicle driving, on her version, at excessive speed.
[12] The plaintiff was also taken
to the Day Hospital referral letter (Exhibit “A”
page 20)
which records the presenting complaint as “fell while running
today and sustained left arm injury”. She similarly
denied that
the presenting complaint was accurately recorded, again maintaining
that she told the nurse concerned “what I
am telling the Court
today”.
[13] She conceded that both the
nurse at the Day Hospital and the doctor who examined her upon
admission at Tygerberg asked her to explain how she came to be
injured, but was unable to provide an explanation why both had not
only got it wrong, but also inaccurately recorded the very same
reason for her injuries, i.e. running and falling. She resorted
to the suggestion that the doctor might have misunderstood her
because she was crying since her arm was sore.
[14] The plaintiff also conceded
that the first mention made in Tygerberg’s clinical
notes of
her being hit by a bakkie was almost 3 years later on 2 October
2015. This was after her erstwhile attorney assisted
her in lodging a
claim against the defendant. Her peculiar explanation for this was
that before consulting her erstwhile attorney
she was unaware that
she could lodge a claim for compensation as a result of being hit by
a vehicle.
[15] The plaintiff’s
husband essentially confirmed her version of how the collision
allegedly occurred. He testified that he accompanied her to the Day
Hospital but returned home before she was examined there. He
was
concerned that their home had been left unlocked for their short trip
to buy electricity, and had not anticipated that he would
be away
from home for so long. Mr Julius made no mention of the identity of
the passing motorist who transported him and the plaintiff
to the Day
Hospital. He also confirmed how it came about that the plaintiff
subsequently lodged a claim against the defendant.
[16] Dr Müller testified
that in his capacity as Medical Services and Theatre Manager
at
Tygerberg he has overall responsibility to ensure that its staff
perform an efficient and effective service, including to patients
admitted to its trauma unit. He has held this position since 2007 and
is familiar inter alia with standard admissions procedure.
In
addition he still practices in the trauma unit once per week and as
such has considerable personal experience.
[17] His evidence was that
Tygerberg falls under the auspices of the Western Cape Department
of
Health. There is a standard admissions procedure “across the
board”. The first thing a medical professional is required
to
do is take a thorough history from the patient as to the cause of the
injury (or illness).
[18] As he explained it, this
involves a comprehensive verbal interrogation before making an
initial diagnosis, which is then confirmed upon physical examination
and possible further specialised investigation. In other words,
an
accurate history is an integral component of an accurate diagnosis.
Not only that, but an accurately recorded history is crucial
since it
is contained in what he described as a medico-legal document which
medical staff are trained to know may ultimately feature
in court
proceedings.
[19] He also testified that none
of the doctors who treated the plaintiff (in particular Dr Yu
who attended to her admission) are still in Tygerberg’s employ.
Accordingly his evidence was based on his knowledge and experience
of
the trauma unit over a number of years, including its admissions
procedure, with reference also to the plaintiff’s Tygerberg
clinical notes.
[20] His evidence was further
that the document at Exhibit “A” page 16 was the
standard
form used in the trauma unit at the time of the plaintiff’s
admission. The doctor concerned would have recorded
the mechanism of
injury based on what the plaintiff had told him.
[21] He was also referred to the
Triage Record (Exhibit “A” page 19) which he explained
is
the system used to determine the severity of the injuries with which
the patient presents and the consequent degree of urgency
in relation
to treatment. The plaintiff was classified as falling into the green
code, meaning that she could wait a few hours
before treatment.
[22] Dr Müller also
explained that the Triage Score is completed by the nursing staff
upon the patient’s arrival at the trauma unit before being
assessed by a doctor. He confirmed that in this instance the document
reflects that the main complaint was a left arm injury “as a
result of a fall”.
[23] He was also taken to the
clinical notes of the orthopaedic surgeon who examined the plaintiff
on 6 October 2012 (Exhibit “A” page 23) which reflect
that her injury history was recorded as “fell on outstretched
hand yesterday”. He explained that it is incumbent on the
specialist to whom a patient is referred for further investigation
(in this instance, after the plaintiff had been x-rayed to determine
whether there was a fracture which the admissions doctor appears
to
have suspected) to essentially repeat the diagnostic process afresh.
[24] In his words the specialists
are “very pedantic” when it comes to thorough
investigation, given that the ultimate responsibility lies with them.
In his opinion it was highly unlikely that all of the medical
professionals involved would have recorded the plaintiff’s
history inaccurately.
[25] During cross-examination Dr
Müller accepted that it was possible the plaintiff’s
history was incorrectly reflected due to honest mistake. He also
accepted that the Tygerberg trauma unit is a busy one. He disagreed
that a Friday night/early Saturday (the plaintiff was injured on a
Friday evening) is the busiest period in any given week, explaining
that these are Sundays and Mondays when there can easily be up to 100
patients in the unit with only 4 treating doctors (in addition
to
nursing staff) in attendance.
[26] He accepted that the note on
the Triage Score should also have reflected how the plaintiff
fell,
but pointed out that both the notes of the medical professional at
the Day Hospital and the admissions doctor at Tygerberg
specifically
recorded that the plaintiff was running when she fell.
Discussion
[27] It is against this evidence
that in closing argument
Mr Benade
who appeared for the
plaintiff unsurprisingly sought to exclude Dr Müller’s
evidence about what was contained in the
clinical notes on the basis
that these notes constitute hearsay. He submitted that had the
defendant wished to have the notes admitted
to prove the truth of
their contents, it should have brought an application in terms of
s 3(1)(c) of the Law of Evidence Amendment
Act
[1]
(“the Act”) prior to “the parties closing their
cases”.
[28] Section 3(1)(c) of the Act
provides as follows:
‘
3.
Hearsay evidence.
–(1) Subject to the provisions of any other law, hearsay
evidence shall not be admitted as evidence at criminal or civil
proceedings, unless--- …
(c)
the court, having regard to---
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of
such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account,
is of the opinion that such
evidence should be admitted in the interests of justice.’
[29]
Mr Benade
relied on
Visser v 1 Life Direct Insurance
[2]
in contending that the defendant failed to discharge the onus of
proving the truth and accuracy of the notes. In
Visser
the
respondent relied on two sources of evidence to discharge the onus
(which in that case rested upon it) that the deceased misrepresented
her pre-existing medical condition such as to entitle it to repudiate
the appellant’s claim as beneficiary under a life policy.
These
sources were the transcript of a telephone conversation and, more
pertinently for present purposes, hospital records of visits
ostensibly paid by the deceased to its emergency unit. The transcript
was not in issue.
[30] The Supreme Court of Appeal
pointed out
[3]
that the admissibility of the hospital records had to be
distinguished from the evidential status of their contents. The Court
accepted that the records were admissible without further proof. The
parties had agreed at a rule 37 conference that the records
would
serve as evidence of what they purported to be “without
admission of the truth of the contents”. In addition
the
respondent had admitted in response to a rule 35(9) notice that the
notes were properly executed and were what they purported
to be.
[31] The Court however found
[4]
that the doctor who conducted the interviews with the deceased should
have been called to prove the truth of the contents of those
records.
This was not done; there was no explanation for the failure to do so;
and no application had been made in terms of s 3
of the Act.
[32] It further found that the
evidence revealed there was no clear understanding between the
parties as to the evidential status of those records. Moreover the
respective experts called by the parties expressed their views
on the
nature and seriousness of the deceased’s medical condition
based on the contents of those records, while at the same
time their
inadequacy and lack of clarity were repeatedly referred to in
evidence. There was furthermore no agreement that the
hospital
records correctly reflected the deceased’s medical condition.
[33] In my view the approach
taken by the parties in the present matter is distinguishable
for the
following reasons. First, in the minute of a rule 37 conference dated
25 November 2019 it was expressly recorded
[5]
that “the plaintiff will provide defendant with a bundle of
documents and the parties will agree which… will,
without
further proof
, serve as evidence of what they purport to be,
which extracts may be proved without proving the whole document
or
any other agreement regarding the proof of the documents
”
(my emphasis). This is the sole recordal concerning the evidentiary
status of the documents in the (trial) bundle and at
the commencement
of the trial a joint witness bundle including these notes was handed
in without any further qualification or ado.
[34] Second, when
Mr Wynne
who appeared for the defendant was cross-examining the plaintiff on
the notes,
Mr
Benade
placed on record that while he did
not formally object, the notes would constitute hearsay unless the
authors themselves testified
as to the truth of their contents.
Mr
Wynne
responded that, given the agreement concerning the status
of documents in the bundle, he would deal if necessary with this
during
closing argument. Nothing further was said about it.
[35] To my mind, if the plaintiff
had any real difficulty with the evidential status of the
notes, it
was at that point that
Mr Benade
should have formally
objected, or at least sought clarity on the defendant’s stance,
so that the latter could consider its
position and if necessary bring
a s 3(1)(c) application. To this it should be added that prior
to the commencement of evidence
Mr Wynne
had also placed on
record that the defendant’s only witness would be Dr Müller
who would testify inter alia about the
clinical notes. This provided
the plaintiff with another opportunity to place any formal objection
on record. No such objection
was raised.
[36] Third, Dr Müller did
provide an explanation why the authors of the Tygerberg notes
(all of
whom he was able to identify) were not called to testify on behalf of
the defendant. He also explained that since it is
a teaching
hospital, in the nature of things doctors “moving on” is
not unusual. While he was challenged on why he
had not taken further
steps to try to locate the individuals concerned, his explanation
that he only checked to see whether they
were still employees was not
unreasonable and, after all, it was the plaintiff who bore the onus
on the merits (unlike the case
in
Visser
).
[37] Fourth, it was submitted by
Mr Benade
that the stage at which an application to admit
hearsay evidence should be made, and a ruling given, always depends
on the particular
circumstances. He relied on
Giesecke &
Devrient SA v Minister of Safety and Security
[6]
where it was stated that:
‘
[23]
Under this heading the first question arising results from the
appellant’s objection against the timing of the court
a quo’s
ruling on admissibility. According to this objection, the court
should have considered this ruling only at the end
of the case, after
hearing all the evidence and not as it did at the end of the
appellant’s case. I do not think the answer
to the question
thus raised would make any difference to the outcome of the appeal.
Yet, as a matter of principle, it is not entirely
insignificant. I
shall therefore venture an answer. But in the circumstances, I
propose to do so without unnecessary elaboration.
In criminal
proceedings the issue raised by the appellant’s objection had
been answered. That answer appears from the following
statement by
Cameron JA in
S
v Ndhlovu
2002
(2) SACR 325
(SCA)
para 18:
“
. . . [A]n accused cannot
be ambushed by the late or unheralded admission of hearsay evidence.
The trial court must be asked clearly
and timeously to consider and
rule on its admissibility. This cannot be done for the first time at
the end of the trial, nor in
argument, still less in the court’s
judgment, nor on appeal. The prosecution, before closing its case,
must clearly signal
its intention to invoke the provisions of [s 3
of the
Law
of Evidence
Amendment Act 45 of 1988
], and, before the State closes its case,
the trial Judge must rule on admissibility, so that the accused can
appreciate the full
evidentiary ambit he or she faces.”
(See
also
S
v Molimi
[2008]
ZACC 2
;
2008
(2) SACR 76
(CC)
para 17.)
[24] The
court a quo held that the position should be no different in civil
proceedings. The appellant’s contention was, however,
that the
court had erred. The difference between the two, so the appellant’s
argument went, is that in criminal proceedings
effect must be given
to the constitutional right of an accused person to a fair trial, in
particular, the presumption of innocence
and the right to challenge
evidence (in s 35(3)(h)
and 35(3)(i) of the Constitution of the Republic of South Africa,
1996). But as I see it, the argument loses sight of s 34 of the
Constitution which also entitles both parties to civil proceedings
to
a fair public hearing. That right is given effect to, inter alia, by
the Uniform Rules of Court. In terms of rule 39 the defendant
is
afforded the right, where the plaintiff bears the onus, to apply for
absolution from the instance at the end of the plaintiff’s
case
or to close its own case without leading any evidence if the
plaintiff has failed to establish a case which requires an answer.
As
I see it, it is essential for a proper exercise of these rights that
the defendant should know whether the court considers the
hearsay
evidence relied upon by the plaintiff, admissible or not. Stated
somewhat differently, in order to decide whether the plaintiff
has
made out a case to answer, a defendant is entitled to know the
constituent elements of that case. It follows that rulings on
the
admissibility of hearsay evidence in civil proceedings should also be
made at the end of the plaintiff’s case.’
[38] In the present matter the
plaintiff was cross-examined on the contents of the clinical
notes
before she closed her case in circumstances where the evidentiary
status of those notes had, at least ostensibly, been agreed
in the
minute of the rule 37 conference, namely that they would serve as
evidence of what they purport to be in the absence of
any other
agreement regarding their proof.
[39] As previously stated no
formal objection was raised on the plaintiff’s behalf before
she closed her case, nor during the case of the defendant. But it
went further, since the defendant’s own witness was
cross-examined
on those notes as well, which went directly to the
heart of the issue before me, namely whether or not the plaintiff’s
injuries
(the nature of which are common cause for present purposes)
were caused by a motor vehicle collision or some other event.
[40] However in argument
Mr
Wynne
took the position that the defendant accepts that portions
of Dr Müller’s evidence amount to hearsay (which would be
not only the Tygerberg clinical notes but also the Day Hospital
referral letter). He submitted that such evidence should nonetheless
be accepted in this instance in terms of s 3(1)(c) of the Act.
This change in tack raises the question whether the defendant
is
precluded from requesting its admission at this late stage.
[41]
Giesecke
made clear
that the overarching principle as far as timing is concerned is s 34
of the Constitution, namely the right of both
parties to a fair
hearing. The Supreme Court of Appeal also reiterated that s 3
‘
introduces a high degree of flexibility to the admission of
hearsay evidence with the ultimate goal of doing what the interests
of justice require’.
[7]
[42] Given the recordal in the
pre-trial minute, and the change in tack by the defendant after
the
conclusion of testimony as to the evidential status of the notes, it
falls to be criticised for failing to request the admission
of this
evidence in terms of s 3(1)(c) at an earlier stage. However in
the particular circumstances of this matter it is my
view that the
interests of justice call out for a high degree of flexibility and
that the evidence should nonetheless be admitted
in the interests of
justice. The reasons are briefly as follows.
[43] First, any amount for which
the defendant might ultimately be found liable if the evidence
is
excluded would be paid from the public coffers. Second, the purpose
for which the evidence was tendered was to rebut the plaintiff’s
version in the absence of the defendant having any witness to the
alleged incident itself. The defendant was constrained to rely
on
circumstantial evidence in the form of the notes and referral letter,
in addition to the direct evidence of Dr Müller about
standard
admissions procedure. This evidence sought to be excluded by the
plaintiff is highly relevant to determine whether the
defendant
should be held liable.
[44] Third, the defendant gave
the reason (through the testimony of Dr Müller) why the
authors
of the notes (upon whose credibility the probative value of such
evidence depends) did not testify and its explanation
was reasonable.
Fourth, the only prejudice the plaintiff could possibly suffer if the
evidence is admitted is a diametrically opposed
version to her own
about the cause of her injuries, which is an issue of credibility.
Indeed, as
Mr Benade
himself submitted, the defendant has no
version pertaining to the alleged collision itself, and it can hardly
be said that the
plaintiff has been taken by surprise.
[45] Given that there are two
mutually destructive versions the plaintiff can only succeed
if she
discharges the onus resting upon her to persuade the Court that her
version is true when weighed against the probabilities.
The plaintiff
did not strike me as a person of limited intellect. Although not a
poor witness per se, her credibility is called
into serious question
when regard is had to the testimony of Dr Müller (who had no
personal interest in the matter, was clearly
an honest and credible
witness, and whose testimony was not materially challenged) as well
as the objective evidence in the form
of the clinical notes and the
events leading to the plaintiff instituting action against the
defendant.
[46] As far as the testimony of
Mr Julius is concerned, it did not escape my notice that he
was
present during the plaintiff’s testimony, and gave evidence
immediately thereafter when what she conveyed to the court
was fresh
in his mind. This places a question mark over the weight to be
attached to his evidence, which amounted to a simple repetition
of
the plaintiff’s version as to the alleged incident itself.
Although his evidence stands uncontested since he was not
cross-examined, on the crucial aspect of what the plaintiff conveyed
to the treating professionals soon after the incident he was
unable
to confirm her version since he was not present.
[47] The plaintiff sustained no
injuries other than to her left humerus and left hand despite
allegedly being hit from the rear by a motor vehicle travelling at
high speed. It is not necessary to be an expert to consider
the
improbability of her having no other injuries at all in the
circumstances. Rather, her injuries are more likely consistent
with
what the objective evidence revealed, namely her reporting to no less
than four medical professionals within the 24-hour period
after the
incident that she had fallen, and to two of them, while running.
Logic dictates that, were her version true, she would
instead have
told these professionals that she was knocked over.
[48] The plaintiff took no steps
for almost 2 years after the incident to report to the police
what
she must surely have realised was a criminal act on the part of the
alleged driver, particularly given her testimony that
he drove
recklessly in the wrong direction around the circle before mounting
the pavement and colliding with her. This is a separate
issue from
any potential claim she might have to compensation from the
defendant. Moreover, if the vehicle was travelling as she
alleged,
the question arises why Mr Julius, about a metre in front of her and
slightly to her right, was entirely unscathed.
[49] In addition, there can be
any number of reasons for a fall, but in this particular case
the two
professionals who recorded the reason both noted down the very same
one, i.e. running. Given Dr Müller’s unchallenged
testimony about the necessity to record an accurate history (part of
medical training) I agree with him that it is highly improbable
that
all four of these individuals not only ignored the plaintiff’s
report of how she was injured, but negligently selected
their own
reason, and co-incidentally the very same one to varying degrees in
each instance.
[50] One would also reasonably
have expected the plaintiff or her husband to obtain the contact
details of the passing motorist who drove them to the Day Hospital
immediately after the alleged collision, at least for purposes
for
reporting the matter to the police or to later thank him or her for
the assistance.
[51] To my mind, upon a
conspectus of the evidence as a whole, the probabilities rather point
to an opportunistic attempt by the plaintiff to obtain compensation
from the defendant upon being told by her erstwhile attorney
that, if
injured in a motor vehicle collision, she could pursue such a claim.
I do not suggest that this was at the instance of
her erstwhile
attorney but rather that the plaintiff seized upon the opportunity
for financial gain, possibly after having also
received advice that
it was not required of her to provide information about the identity
of the insured driver or vehicle for
this purpose. I thus conclude
that the plaintiff has failed to discharge the onus and that her
claim falls to be dismissed. There
is no reason why costs should not
follow the result.
[52]
The following order is
made:
1.
The plaintiff’s claim is
dismissed with costs, including any reserved costs orders.
J I CLOETE
[1]
45 of 1988.
[2]
2015 (3) SA 69 (SCA).
[3]
At para [8].
[4]
At para [9].
[5]
At para 9.8.
[6]
2012 (2) SA 137
(SCA) at paras [23] and [24].
[7]
At para [31].