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[2012] ZAGPJHC 43
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Sibeko v Road Accident Fund (43241/08) [2012] ZAGPJHC 43 (28 March 2012)
REPORTABLE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 43241/08
DATE:28/03/2012
In
the matter between:
DUDUZILE
SIBEKO
....................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
............................................................................
Defendant
JUDGMENT
MOKGOATLHENG
J
(1) The
plaintiff has instituted action against the defendant for personal
injury damages arising from a collision which occurred
at Koma Road,
Soweto on 17 November 2009. The plaintiff alleges that the sole cause
of collision was due to the negligence of the
driver of the motor
vehicle in question.
(2) Apart
from denying negligence, the defendant pleads that the collision was
unavoidable as at the time thereof and immediately
prior thereto, the
driver of the motor vehicle Elizabeth Mokgathe, experienced a sudden,
unforeseen and uncontrollable black-out
due to a health condition,
which resulted in her losing control of the motor vehicle.
(3) The
defendant by asserting that the driver suffered a sudden unexpected
black-out is in essence invoking the defence of automatism,
the
essence whereof is that at the time of the collision the driver was
not in control of her faculties and consequently, could
not exercise
her volition.
THE
FACTUAL MATRIX
(4) The
plaintiff has no recollection as to how the collision occurred, she
only remembers that she was a pedestrian on a pavement
when a motor
vehicle collided with her and rendered her unconsciousness. She
regained consciousness in hospital.
(5) Sarah
Masina the plaintiff’s mother testified that she, the plaintiff
and her grand daughter were pedestrians walking
in a easterly
direction on a pavement in Koma Road when a motor vehicle which
immediately before the collision was travelling in
an easterly
direction on the opposite lane, travelled across from its lane onto
its incorrect and opposite lane carrying traffic
travelling in a
westerly direction, traversed the said lane, travelled onto the
pavement and collided with them.
(6)
The defendant’s counsel put it to Sarah Masina that the reason
Elizabeth Mokgathe collided with the plaintiff, was because
she
suffered from a sudden unexpected black-out as a result of which, she
temporarily lost consciousness, and after such collision
with the
plaintiff, she immediately regained her consciousness.
(7) Sarah
Masina disputed that before the collision Elizabeth Mokgathe
experienced a diabetic induced black-out. Testifying from
her own
experience as a diabetic for thirty years, she stated that after the
collision she approached her, and expressed her sorrow
at what had
happened. She in turn observed her demeanour and behaviour and
noticed that she did not appear or behave like a person
who had just
suffered a diabetic induced black-out.
(8) From
her own personal experience she knows how a person who has suffered a
diabetic induced black-out behaves. It would not
have been possible
for Elizabeth Mokgathe if she had just suffered a diabetic induced a
black-out to immediately be able after
the collision to drive the
vehicle to and fro across two lanes, avoid the traffic thereon, park
the vehicle and walk 27 metres
to the collision scene.
THE
INCIDENCE OF ONUS
(9) Elizabeth
Mokgathe conceded that Sarah Masina’s description of how the
collision occurred was truthful and correct. Sarah
Masina’s
evidence and Elizabeth Mokgathe’s concession that the collision
occurred on the pavement on her incorrect
side of the road,
establishes a
prima
facie
case
of negligence against her as the driver of the motor vehicle.
(10) Although
the plaintiff’s onus to prove her case on a preponderance of
probability does not shift, the establishment of
a
prima
facie
case coupled with the invocation of the defence of automatism by the
defendant, the material essence of which reposes within the
driver’s
personal knowledge, places an evidential burden on the defendant to
adduce and tender rebuttal evidence which negatives
the
prima
facie
case of negligence. See
Arthur
v Bezuidenhout and Mieny
1962 (2) SA 566
(A) 574-6 and Sardi and
Others v Standard and General Insurance Co Ltd
1977 (3) SA 776
(A) at
780C-H).
(11) The
mere assertion that the driver experienced a black-out at the time of
the collision, that consequently, she was not in
control of her
faculties and volition, does not
per
se
suffice to rebut the
prima
facie
case of negligence. The defendant is enjoined in discharging the
evidence onus to tender evidence either through a medical or other
expert which will have sufficient cogency to raise the defence in
question as a realistic issue and from which it may be shown
or
reasonably be inferred on all the evidence and probabilities that the
driver suffered a sudden unexpected black-out which resulted
in her
temporary loss of consciousness, thus rendering her
actus
reus
involuntary. See
Molefe
v Mahaeng
[1998] ZASCA 81
;
1999 (1) SA 562
(SCA)
.
THE
EVALUATION OF EVIDENCE
(12) I
turn now to consider whether the evidence tendered by Elizabeth
Mokgathe in support of the defendant’s case has sufficient
material cogency to rebut the prima facie case of negligence. The
defence of automatism proffered by the driver, the circumstances
prior to and after the collision, have to be objectively examined
with great circumspection to determine whether the driver’s
evidence has sufficient cogent material to show that her loss of
volition was unavoidable.
(13) In
order to fully appreciated the materiality and cogency of the
driver’s conduct prior to and post facto the collision
it is
helpful to understand the concepts the driver’s defence is
predicated upon. The Concise Oxford Dictionary defines
the word
black-out also called
amaurosis
fugax
as “
a
temporary or complete loss of consciousness or failure of memory
”.
Butterworth’s Medical Dictionary defines black-out as
“
temporary
loss of consciousness due to decreased blood flow to the brain and
retina as a result of centrifugal acceleration in flying
”.
Automatism is defined in Butterworth’s Medical Dictionary as
“the
performance of simple or complex acts, without the individual being
aware of them at the time or afterwards”.
THE
DRIVER’S EVIDENCE
(14) Elizabeth
Mokgathe testified that she was familiar with Koma Road and travels
frequently thereon. On that particular day she
was mentally and
physically in a healthy state. Earlier she had attended a funeral at
Eldorado Park, thereafter she dropped a colleague
at Orlando. She was
driving to her home in Naledi, she turned at the traffic lights at
Moroka Police Station into Koma Road, and
had travelled less than a
minute thereon, when she suffered a sudden unexpected uncontrollable
black-out, as a consequence lost
control of her vehicle, and collided
with the plaintiff. She does not have any recollection as to how the
collision happened. She
recalls hearing a bang, subsequently she
regained consciousness, although still in a confused state of mind.
(15) She
categorises her loss of consciousness as a black-out because she
cannot recall how she travelled across her lane to the
opposite lane
and onto the pavement, nor can she recall how she collided with the
plaintiff and again travelled across the opposite
lane onto her
initial correct lane, parked the motor vehicle, alighted therefrom
and walked 27 metres back to the scene. After
the collision she
surmised that she had collided with something, because when she
stopped her vehicle, she noticed that the windscreen
was shattered.
(16) She
became aware that she had collided with something because she heard a
bang, subsequent to which she regained her consciousness.
She only
realised that she had collided with pedestrians when she went to
investigate. She does not know why she did not immediately
stop after
she heard the bang. It is her perception that she had a black-out,
because she does not know how she drove her motor
vehicle from her
lane to the opposite lane. She was confused at that time, but cannot
explain what the source of her confusion
was, nor why the confusion
continued after the bang.
(17) At
the scene of the collision, she was hysterical and crying whilst she
was talking to Sarah Masina and as a result thereof,
the police
accused her of being under the influence of alcohol, and took her to
Baragwanath Hospital to draw her blood sample for
forensic analysis.
The result of the test was negative. The Forensic Report is available
at Moroka Police Station.
(18) On
18 November 2009 she sought medical assistance and consulted Dr
Tlhakola who conducted blood tests to establish the cause
of her
black-out. Dr Tlhakola subsequently adviced her that the laboratory
test had established that she was suffering from a high
level of
diabetes. It was the first time she realised that she suffered from
diabetes. She has never suffered from dizzy spells
before. Before
the collision nothing had alerted her to the fact that she might be a
diabetic. Dr Tlhakola prescribed medication
for her and subsequently
referred her to a specialist Dr Charles when her condition did not
improve. On the defendant’s attorney’s
request Dr
Tlhakola furnished the medical report pertaining to the forensic
blood tests to the defendant’s attorney.
EVALUATION
OF EVIDENCE
(19) Sarah
Masina disputes that Elizabeth Mokgathe experienced a diabetic
induced black-out. Sarah Masina is not an expert on diabetes,
but her
evidence regarding Elizabeth Mokgathe’s demeanour and behaviour
and conduct after the collision cannot be ignored.
She is a thirty
year chronic diabetic, and has personally experienced black-outs. She
states that such black-outs are accompanied
by dizziness,
disorientation and dissipation of energy. Her evidence is that
Elizabeth Mokgathe’s physical state and demeanour
was actually
the antithesis of a diabetic induced black-out state, because she was
composed and in full control of her faculties
when she engaged with
her.
(20) Elizabeth
Mokgathe was pertinently asked by plaintiff’s counsel Ms
Olivier if Dr Tlhakola was going to be called as an
expert witness to
confirm her version that she was diagnosed as a diabetic, that
medication for diabetes was prescribed for her,
that when there was
no substantial improvement in her condition she was referred to the
Dr Charles a specialist physician who continued
to administer
specialist medical treatment to her. Elizabeth Mokgathe’s
response was that she did not know.
(21) Startlingly
the defendant’s counsel and attorney did nothing to counter the
plaintiff’s counsel’s argument
that despite the two
medical reports being available, and the medical experts being
available no
Rule
39 (6)(a)
notices were served, neither were the medical reports made available
to the plaintiff’s attorney.
(22) No
evidence was tendered in court that the purported diabetic induced
black-out perceived as such by Elizabeth Mokgathe, was
indeed a
black-out actually caused by diabetes. Dr Tlhakola’s forensic
laboratory blood test report was not discovered nor
handed up. Dr
Tlhakola was not called as an expert witness nor the specialist Dr
Charles. The Moroka Police Station forensic alcohol
blood test report
although available was not discovered or handed up.
(23) It
is baffling that after an educated person like Elizabeth Mokgathe,
who is a teacher by profession, had taken the trouble
of obtaining
professional medical advice for the cause of her sudden black-out
which had resulted in her losing control of her
vehicle and causing
the collision, that the defendant’s legal representatives would
not seek corroboration of her version
from the medical experts who
treated her, and irrationally not place that evidence before court.
The omission in this regard is
damning, so too is the defendant’s
failure to call such expert witnesses.
(24) As
a matter of probability, it is highly unlikely having regard to the
fact that all these coordinated, actions and movements
by the driver
happened in an instantaneous and contemporaneous sequence. If in fact
the driver genuinely suffered a diabetic induced
black-out, she would
not have been able to have driven across two lanes, collided with the
plaintiff on the opposite pavement,
and immediately after the
collision, be in a position to again traverse two lanes, park the
vehicle on the opposite pavement of
the road on which she was
originally travelling, alight therefrom, walk across the pavement,
again traverse two lanes, avoid traffic
thereon, and engage Sarah
Masina.
(25) The
failure to tender material medical expert evidence is fatal to the
defendant’s case, more especially because of the
defence that
the black-out was induced by a medical condition. Having regard to
the cogency and sufficiency of the rebuttal evidential
material the
defendant is enjoined to tender to nullify the
prima
facie
case of negligence, the court has no option but draw an adverse
inference for such failure and omission.
(26)
I accordingly find that the Elizabeth Mokgathe was the sole cause of
the collision in that the defendant, as a matter of probability
has
not shown that the driver’s conduct was not due to her
involuntary act because she had suffered a diabetic induced black-out
whose occurrence and possibility she could not foresee.
WAS
THE ROAD ACCIDENT FUND’S DEFENCE NECESSARY
(27) There
is a disquieting aspect about the manner in which the defendant’s
employees conducted the Road Accident Fund’s
defence in the
litigation of this matter which raises ethical and constitutional
issues.
(28) It
is common cause that the motor vehicle driven by Elizabeth Mokgathe
collided with the plaintiff, her minor child and her
grand mother on
Koma Road on 17 November 2009, under the same factual circumstances,
and that all three sustained serious injuries
as a consequence of
such collision.
(29) It
is common cause that all three injured parties lodged three
individual claims against the Road Accident Fund utilising services
of the same attorney SS Wangra and also instructed him to institute
three separate personal injury actions against the Road Accident
Fund
arising from the said collision on their behalf.
(30) It
is common cause that in resisting all three actions the Road Accident
Fund denied liability and pleaded that “
the
collision occurred as a result of a sudden black-out induced by a
physical health condition
”
to the driver of the motor vehicle, Elizabeth Mokgathe.
(31) In
the course of Sarah Masina’s testimony in support of the
plaintiff’s claim it was established that the Road
Accident
Fund, although having disingenuously tendered “
settlement
in full and final payment without admission of liability and without
prejudice
”
to Sarah Masina, there was no apportionment of liability attributed
to her. The Road Accident Fund conceded 100% liability
in respect of
her claim.
(32) On
26 April 2009 Sarah Masina was fully compensated for the damages she
suffered. In effect and as a matter of logic, the Road
Accident Fund
in settling Sarah Masina’s claim and paying her 100% for her
proven damages was in essence conceding that the
negligence of the
driver of the motor vehicle was the sole cause of the collision, that
there was no contributory negligence attributable
to Sarah Masina. In
any case the circumstances relating to the cause of the collision are
conclusive in this regard.
(33) I
engaged the Road Accident Fund’s counsel regarding this state
of affairs. He adviced that he was not aware of these
facts. I
requested him to take instructions in order to ascertain whether it
was true that the Road Accident Fund had fully conceded
the merits
and had conceded 100% liability in respect of Sarah Masina’s
claim. The Road Accident Fund’s attorney was
present in court.
The court adjourned to enable counsel to take instructions.
(34) Counsel
could not and did not obtain contrary instructions to the fact that
the Road Accident Fund had conceded 100% liability
in respect of
Sarah Masina’s claim. Counsel could only reiterate that the
settlement was made without admission of liability.
Ms Oliver the
plaintiff’s counsel confirmed through her instructing attorney,
that indeed the Road Accident Fund had conceded
100% liability in
respect of Sarah Masina’s claim.
(35) A
consideration of the above undisputed facts shows that it is patent
that the Road Accident Fund’s defence in the present
matter was
spurious and unsustainable in view of its concession and admission
that Elizabeth Mokgathe’s driving of the motor
vehicle was the
sole cause of the collision, consequently, that the Road Accident
Fund was 100% liable for Sarah Masina’s
proven damages, yet the
Road Accident Fund employees having regard to the concession
proffered in respect of Sarah Masina’s
claim instructed counsel
in the present matter to persist with an untenable and unsustainable
defence.
(36) The
conduct of the Road Accident Fund’s employees in accepting full
liability in respect of Sarah Masina’s claim
and by the same
token denying full liability in respect of the plaintiff’s
claim, was not inspired or motivated by the pursuit
of notions of
justice, equity, and fairness. Actually the conduct of the said Road
Accident Fund employees was legally untenable,
iniquitous, ethically
unconscionable, legally discriminatory, and an infringement of the
plaintiff’s constitutional rights
to fair administrative and
civil action, and equality before the law as well as equal protection
and benefit of the law. The Road
Accident Fund’s employees in
persisting with this unsustainable defence were not acting in good
faith nor honourably in pursuance
of the objects of the
Road
Accident Fund Act 56 of 1996
.
CONSTITUTIONAL
AND LEGAL IMPERATIVES
(37) In
enunciating the constitutional and legal obligation of the Road
Accident Fund to legitimate claimants I can do no better
but cite the
ratio in the head note from the judgment of
Plasket
J in Mlatsheni v Road Accident Fund
2009 (2) SA 401
(E)
“
The
Road Accident Fund is established by
Section
2
of the
Road Accident Fund Act 56 of 1996
.
Its object is to pay compensation ‘in accordance with this Act
for loss or damage wrongfully caused by the driving of motor
vehicles’
(s 3).
It uses public funds to achieve the purposes
assigned to it by the Act
(s 5).
Its resources and facilities are to
be ‘used exclusively to achieve, exercise and perform the
object, powers and functions
of the Fund, respectively’
(s 7).
From these provisions, and a reading of the Act as a whole, it is not
open to doubt that the defendant is an organ of State as
intended in
Section
239 of the Constitution, 1996.
That being so, it is bound by the
Bill
of Rights (s 8(1) of the Constitution)
and is under an express constitutional duty to respect, protect,
promote and fulfil the rights in the
Bill
of Rights’ (s 7(2) of the Constitution).
This means not only that it must refrain from interfering with the
fundamental rights of people but also that it is under a positive
duty to act in such a way that their fundamental rights are realised.
Furthermore,
s
237 of the Constitution requires that all of its constitutional
obligations ‘must be performed diligently and without delay’.
(Paragraphs [13]-[14] at 405F – 406A.)
Organs
of State are not free to litigate as they please. The Constitution
has subordinated them to what has been called ‘a
new regimen of
openness and fair dealing with the public’. The very purpose of
their existence is to further the public interest
and their decisions
must be aimed at doing just that. The power they exercise has been
entrusted to them and they are accountable
for how they fulfil their
trust. It is expected of organs of State that they be have honourably
– that they treat the members
of the public with whom they deal
with dignity, honesty, openly and fairly. This is particularly so in
the case of the Road Accident
Fund: It is mandated to compensate with
public funds those who have suffered violations of their fundamental
rights to dignity,
freedom and security of the person, and bodily
integrity, as a result of road accidents. (Paragraphs [16] –
[17] at 406D
–407A.)……………………………………………………………………...
The
court held that by so frustrating the legitimate claim of the
plaintiff, the employee of the fund who gave the defendant’s
legal representative instructions to raise the spurious defence had
acted in violation of the Constitution: he or she has, by
unjustifiably frustrating the claim of the plaintiff, failed to
‘protect, promote and fulfil’ his fundamental rights
to
human dignity, to freedom and security of the person and to bodily
integrity. This employee had also fallen short of what is
expected of
public administrators by s 195 of the Constitution, in that it could
not be said that the irresponsible raising of
a frivolous defence
promoted and maintained a high standard of professional ethics or
that it promoted the ‘(e)fficient,
economic and effective use
of resources”.
(38) The
Road Accident Fund is expressed prohibited from discriminating
unfairly in terms of
section
9(3),
as it is statutory body, under control of the state, which has public
powers and which performs functions in the public interest.
The
resisting of the plaintiff’s claim on the basis of a defence
which has been conceded in respect of Sarah Masina’s
claim is
unfair and unreasonable because a differentiation in the treatment of
these two legitimate claims does not bear a rational
connection to a
legitimate government purpose and is violation of
section
9(1) of the Constitution
.
See
Harksen
v Lane NO
[1997] ZACC 12
;
1998 (1) SA 300
(CC)
(39) An
organ of State is legally, ethically and constitutionally enjoined
when entertaining legitimate claims to act with the utmost
good faith
and circumspection in fulfilling its constitutional mandate. The Road
Accident Fund is obliged to equally legitimate
claimants seeking
compensation for legitimate claims arising from the same cause of
action, predicated on the same factual basis,
and attributable to the
negligent driving of the same vehicle by the same driver.
(40) Generally
courts as public institutions are under severe pressure. In this
particular court rolls are heavily congested, it
unconscionable to
further add to the congestion by initiating a profligacy of
unwarranted litigation. Where the Road Accident Fund
patently has no
sustainable defence to legitimate claims like in the present matter,
it is legally enjoined to refrain from engaging
in unsustainable and
disingenuous legal stratagems which unnecessarily prolong the
settlement of claims as a strategy to delay
the payment of legitimate
claims with the consequence of building up unnecessary costs, which
conduct amounts to fruitless expenditure
by the Road Accident Fund.
THE
ORDER
(42) In
the premises:
The
defendant is ordered to compensate 100% of the plaintiff’s
proven damages.
The
defendant is ordered to pay the costs of the suite.
The
registrar is ordered to furnish a copy of this judgment to the
Manager of the Road Accident Fund.
DATED
THE 20 DAY OF MARCH 2012 AT JOHANNESBURG.
_____________________________________________
MOKGOATLHENG J
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
DATE OF HEARING: 21 APRIL 2011
DATE OF JUDGMENT: 28 MARCH 2012
ON BEHALF OF THE PLAINTIFF: MS OLIVER
INSTRUCTED BY: S.S. WANGRA ATTORNEYS
C/O NDLOVU A.J. ATTORNEYS
TELEPHONE NUMBER: (011) 910-4143
ON BEHALF OF THE DEFENDANT: J RAMAIPADI
INSTRUCTED BY: SISHI INCORPORATED
TELEPHONE NUMBER: (011) 421-0504