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[2011] ZAGPJHC 144
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Vermeulen v Road Accident Fund (A5002/11) [2011] ZAGPJHC 144 (18 October 2011)
NOT
REPORTABLE
SOUTH
GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO:
A5002/11
DATE:18/10/2011
In
the matter between
JUAN
PIETER
VERMEULEN
.......................................................
APPELLANT
and
ROAD
ACCIDENT FUND
…......................................................
RESPONDENT
Appeal
– against an order of absolution of the instance granted at the
end of the plaintiff’s case – principles
applicable –
no reason to interfere - appeal dismissed
J U D G M E
N T
VAN OOSTEN J:
[1] This is an appeal by the
plaintiff in the court
a
quo
, the appellant
before us, against the judgment and order of Mayat J, in this
Division, absolving the defendant in the court a quo,
the respondent
before us, from the instance with costs, at the end of the
plaintiff’s case. Leave to appeal having been refused
the
appeal is with leave of the Supreme Court of Appeal.
[2] The appellant sued the
respondent for damages in respect of personal injuries arising out of
a motor vehicle collision which
allegedly occurred on 19 November
2007, in the afternoon, along Orange River Road, in the Kempton Park
area. The appellant was
riding his motorcycle which allegedly
collided with the insured vehicle, a Volkswagen Golf, at the
T-junction of Orange River road
with Terenure road.
[3] The trial of the matter in
the court a quo proceeded on the merits of the appellant’s
claim only. Two witnesses testified
for the plaintiff: firstly, the
plaintiff, who as a result of amnesia resulting from the injuries
sustained in the collision had
no recollection thereof, and secondly,
Mr Holliday, who arrived on the scene of the collision shortly after
it had occurred. At
the close of the appellant’s case, the
respondent sought and was granted absolution of the instance.
[4] The court
a
quo
in its judgment
proceeded from the common cause premise that there was no direct
evidence to show how the collision had occurred.
There were, however,
the leaned Judge held, many inferences that could be drawn from the
evidence of the witnesses who had testified
for the plaintiff. As to
the inference sought to be drawn by the appellant, which was that the
collision had occurred while the
appellant’s motorcycle was
overtaking the insured vehicle which was in the process of executing
a right hand turn from Orange
River road into Terenure road, the
learned Judge held that this was not the most readily apparent and
acceptable inference from
a number of inferences and “that
there were no natural, plausible or reasonable inferences which could
be premised upon the
limited evidence relating to the incident”.
[5] The issue to be decided in
this appeal is whether or not the court
a
quo
erred in finding
that it was not persuaded that any reasonable inferences could be
drawn from the evidence, relating to the liability
of the driver of
the insured motor vehicle which had allegedly collided with the
plaintiff’s motorcycle, either as alleged
in the plaintiff’s
particulars of claim, or at all.
[6] There was a paucity of
evidence at the trial: the appellant’s evidence was confined to
the fact that he had, prior to
the collision, left his workplace on
his way home and therefore did not take the matter any further.
Holliday, who was likewise
employed there, at approximately the same
time, driving his motor vehicle, proceeded home. He testified that
the appellant was
riding his motorcycle ahead of him along Orange
River Road. At some stage he realised that “something”
was happening
in the road some 200 meters in front of him. When he
reached that very spot he found that the appellant had been involved
in an
accident and that he was lying on the ground in the middle of
the oncoming lane, next to where Terenure Road leads into Orange
River Road from the right. The appellant’s motorcycle was
lying in a ditch or culvert some distance away. He also observed
the
insured motor vehicle which was parked on the left in Terenure Road
which is to the right of the intersection as one travels
along Orange
River Road. He testified that he did not witness the accident itself.
He further described the damage consisting of
scrape marks that he
had observed on the insured vehicle’s front right side.
[7] Holliday evidence concerning
the debris was merely the following:
“
The
debris was on the on-coming side but not … uhm … not
right on the other side, it was more towards the middle of
the road.
”
[8] I need to deal specifically
with firstly, the photographs depicting the damage caused to the
insured vehicle, on its right front,
and secondly, an Accident Report
Form allegedly completed by a police officer who attended the scene
of the accident after the
collision. The photographs indeed depict
the damage I have referred to, on the right front of the insured
vehicle. As for the accident
report form, under the heading “
BRIEF
DESCRIPTION OF THE ACCIDENT
”,
the following is recorded as the insured driver’s version of
the collision:
‘
Put
indicator on to turn right. Took turn to the right. Noze (sic) of car
was ± 30 cm over dached (sic) line. Bike was overtaking
on
right hand side at a very fast speed. Bike crashed into car on the
right front side of car. Bike rider was catapulted onto road
±
30 m further & bike landed ± 30 m on shoulder of road.
Bike rider had serious injuries.’
[9] Much of the argument before
us turned on the admissibility of the accident report form. The
appellant premised the contention
that the accident had occurred
while the appellant was overtaking the insured vehicle which was
executing a turn to the right,
on the version of the insured driver
as recorded in the accident report. This is at odds with the opening
address of counsel for
the appellant, at the commencement of the
trial, when he informed the court that:
‘
...the
evidence will be that the plaintiff came along this road (Orange
River road) travelling in the same direction as the insured
vehicle
and the insured vehicle turned to enter a side street to the right
(Terenure road) and as the plaintiff was in the process
of passing
him he clipped the motorcycle and the plaintiff fell on the road and
sustained some devastating injuries.’
Although there was no direct
evidence as foreshadowed in counsel’s opening address, the
appellant before us, as in the court
a quo, relied on the inference I
have referred to, which, so the argument went, consequently imposed
on the insured driver, as
a matter of law, an obligation to ensure
that it was opportune and safe to execute an inherently dangerous
manoeuvre in turning
to the right which he
prima
facie
had failed to do
resulting in the collision occurring.
[10] The accident report was
neither admitted nor proved in evidence. It was handed in by counsel
for the appellant as part of a
“merits” bundle at the
commencement of the trial. It had apparently been discovered by the
respondent. It was moreover
not referred to at all in the evidence.
It only featured in argument before Mayat J. Concerning this document
the learned Judge
held, firstly, that the description of the accident
in the report did not sustain any of the grounds of negligence set
out in the
particulars of claim and secondly, that it had not been
proved by the evidence of the police officer who was the author
thereof.
It is only the finding concerning the admissibility of the
report that requires comment. In my view the finding was correctly
made.
The report did not by its mere production, as it were, as part
of the appellant’s merits bundle and in the absence of an
agreement between the parties concerning either its admissibility or
provisional evidential value, become admissible (Cf
Southern
Insurance Association v Cogill and Another
1978 (4) SA 128
(A) at 133D-E). Much the same difficulty arises
concerning the bundle of photographs depicting the scene of the
accident and the
damage caused to the insured vehicle, which counsel
for the appellant handed up at the commencement of the trial. The
admissibility
of the plaintiff’s photographs was addressed by
counsel for the appellants in his opening address, almost it seems by
way
of afterthought, when having referred the court a quo to the
index to the appellant’s bundle of photographs, he interrupted
himself in requesting “May I just enquire from my opponent if I
may hand in certain photographs?” The response by counsel
for
the respondent, if any, has not been recorded and appellant’s
counsel without more ado proceeded to hand the photographs
in. This
Court accordingly is left in the dark as to the exact status thereof
although nothing eventually turns on this. The procedural
ineptitude
again illustrate the need of this Court reaffirming the salutary
practice, as required by the Rules of Court, of addressing
the exact
status and evidential value of documents that are to be handed in at
the trial, prior to the commencement of the trial
and further to
ensure that the Court is properly informed thereof prior to handing
in. It follows that the inference contended
for by the appellant, was
correctly rejected by the court a quo.
[11] All that remains is to
consider whether on the evidence that was presented in the court a
quo, the appellant, at the close
of his case, had discharged the onus
to “convince the court that the inference he advocates is the
most readily apparent
and acceptable inference from a number of
inferences” as was held in
AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
1982 (2) SA 603
(A) at 614H-615B or, as it was stated earlier in
Marine and Trade
Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 38H:
‘
...daar
nie ‘n opweging van verskillende moontlike afleidings sou
geskied nie, maar slegs ‘n bepaling of een van die
redelike
afleidings ten gunste van die eiser is.’
The evidence placed before the
court a quo was circumstantial and crucial aspects which seem to have
been readily ascertainable
were simply overlooked. In the regard I
merely need to refer to the absence of evidence as to the direction
of travel of the vehicles
prior to the collision, the exact location
on the road surface of the debris Holliday had observed and what the
nature of the debris
was. It is for these reasons that counsel for
the respondent, not without merit I should add, challenged the
appellants contentions
based on aspects that had not been proved,
such as the direction of travel of the vehicles. In passing it need
mentioning that
maxim of
res
ipsa loquitor
does not
apply (Cf
Road Accident
Fund v Mehlomakulu
2009
(5) SA 390
(ECD)) which in any event was not contended for. The
totality of the evidence in summary shows, post accident, the
position of
the appellant, his motor cycle, the presence of debris on
the roadway, the position of the insured vehicle and the damage to
its
right front. An attempt to reconstruct the collision on those
facts will necessarily attract conjecture and speculation as opposed
to inferences that can properly be drawn from objective facts proven
by the evidence (Cf
Caswell
v Powell Duffryn Associated Collieries Ltd
1939 (3) All ER 722
at 733).
[12] For these reasons I am
satisfied that the learned Judge a quo correctly concluded that there
was simply no evidence to support
an inference of negligence
concerning the insured driver resulting in, at the close of the
plaintiff’s case, there not being
evidence upon which a court
applying its mind reasonably to such evidence, could or might find
for the plaintiff (
Gascoyne
v Paul and Hunter
1917
TPD 170).
It follows that the appeal must fail.
[13] In the result the appeal is
dismissed with costs.
_________________________
FHD VAN OOSTEN
JUDGE OF THE HIGH COURT
I agree.
________________________
NF KGOMO
JUDGE OF THE HIGH COURT
I agree.
________________________
V NOTSHE
ACTING JUDGE OF THE HIGH COURT
COUNSEL FOR THE APPELLANT
…....
ADV
JJ WESSELS SC
APPELLANT’S ATTORNEYS
…..............
MUNRO
FLOWERS & VERMAAK
COUNSEL FOR THE
RESPONDENT
.....
ADV
(Ms) A VILJOEN
RESPONDENTS’
ATTORNEYS
...............
LINDSAY
KELLER & PARTNERS
DATE OF
HEARING
...................................
19
SEPTEMBER 2011
DATE OF JUDGMENT
…..........................
18
OCTOBER 2011