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[2014] ZAGPJHC 259
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Gilpin v Road Accident Fund (26140/2012) [2014] ZAGPJHC 259 (17 October 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(JOHANNESBURG)
CASE
NO: 26140/2012
DATE:
17 OCTOBER 2014
In the matter
between:
GILPIN, TERENCE
MICHAEL
.......................................
PLAINTIFF
And
ROAD ACCIDENT
FUND
...........................................
DEFENDANT
J U
D G M E N T
KUBUSHI, J
[1] This is a claim
for damages for personal injuries sustained in a collision on 7
November 2011. The claim is brought in terms
of the Road Accident
Fund Act No. 56 of 1996 (the Act). At the time of the collision the
plaintiff was driving a motor cycle.
Both quantum and merits were at
issue. The plaintiff’s counsel applied in terms of uniform rule
33 (4) for an order that
the merits be heard separately and quantum
be postponed sine die. The defendant’s counsel did not oppose
the application.
I therefore granted an order separating the merits
from the quantum. The matter proceeded on the merits part only and
quantum
postponed sine die.
[2] Two bundles of
documents marked 1 and 2 were handed in. Bundle 1 is the pleadings
bundle and bundle 2 is the index to the merits
and quantum. The
status of the documents contained therein was agreed by the parties
at the pre-trial conference. In terms of
that agreement the
documents are what they purport to be without the truthfulness of the
contents thereof being admitted. Objection
to the use of a specific
document(s) is to be made prior to the commencement of the trial,
under which circumstances the said documents
have to be proved. No
objection was made by any of the parties to the documents used in
court and as such there was no need to
prove any document.
[3] The plaintiff’s
counsel applied for the amendment of the plaintiff’s surname in
the particulars of claim. The name
was written as “GIPLIN”
and the correct name is “GILPIN”. The defendant’s
counsel had no objection
and I granted the application.
[4] At the end of
the trial, closing arguments having also been presented but before I
could deliver judgment, the plaintiff applied
for the amendment of
his particulars of claim in terms of uniform rule 28, which
application the defendant is opposing. For a
better understanding of
this application and for convenience I opt to deal with the amendment
after I have dealt with the evidence
presented in court.
[5] Each party
tendered the evidence of only one witness in regard to their
respective cases. The plaintiff testified on his behalf.
The
defendant called Mr Qhubekani Ndebele (Ndebele), the driver of the
motor vehicle who the plaintiff alleges to have caused
the collision,
to give evidence. The evidence before me is as appears hereunder.
[6] Both parties in
their respective evidence referred to the scene of the collision as
depicted on the sketch plan on page 14 of
Bundle 2 which is common
cause between them. The collision occurred along Douglas Drive in
Douglasdale. Douglas Drive is described
by both parties as going from
South to North. At the North end Witkoppen Road intersects with
Douglas Drive in the direction of
West to East. There is a traffic
light at the corner of Witkoppen Road and Douglas Drive. Douglas
Drive has two lanes going
in both opposite directions. Along Douglas
Drive more towards the Witkoppen Road, there is the Douglasdale
Police Station and
opposite the police station is an area demarcated
as a parking lot for the police station. Between the parking lot and
the police
station is a road, Topaas Road that goes into Douglasdale
Drive. There is a stop sign at the corner of Topaas Road and
Douglasdale
Drive. A person coming from the direction of Witkoppen
turning right into Topaas Road has to stop to allow oncoming traffic
to
pass.
[7] What is also
common cause between the parties is that: on the morning in question,
the plaintiff and Ndebele were travelling
along Douglas Drive. The
plaintiff was travelling from South to North towards Witkoppen Road.
Ndebele was travelling from the
opposite direction – from North
to South away from Witkoppen Road. The plaintiff was driving a
Harley Davis 1200 CC V
ROD motor cycle with registration number L……..
GP. It is not in dispute that this is a heavy motor cycle. Ndebele
was driving a green Ford sedan motor vehicle with registration number
J………………. GP.
Immediately
before the collision, the plaintiff was travelling at a speed of 35
to 40km per hour. Ndebele was standing along Douglas
Drive opposite
the parking lot indicating to turn right into Topaas Road. The
plaintiff’s testimony is that he does not
remember whether
Ndebele’s motor vehicle was indicating.
[8] The parties are,
however, at odds as to how the incident which caused the plaintiff’s
injuries occurred. The plaintiff’s
version is that he was
travelling in the right lane of the road whereas Ndebele’s
testimony is that the plaintiff was travelling
in the left lane.
According to the plaintiff he was travelling behind other motor
vehicles which had stopped or were slowing down
to stop at the
traffic light at the corner of Douglas Drive and Witkoppen. Mr
Ndebele denied in his testimony that there were
motor vehicles
travelling in front of the plaintiff’s motor cycle. According
to his evidence the motor cycle was travelling
in front of the other
motor vehicles. There were no motor vehicles on the part of the road
next to where he had stopped.
[9] The plaintiff’s
version as to how the collision occurred is that: a sedan motor
vehicle turned too quick in front of him.
He did not have time to
stop or swerve, in fact, it happen so sudden that he did not even
have time to think of what to do. He
could not swerve the motor
cycle because it was heavy. He does not remember what happened
thereafter as he lost consciousness and
woke up in hospital. He did
not see nor talk to the police at the scene of the incident. His
further evidence is that his motor
cycle was badly damaged and had to
be repaired at the cost of R62 000. He does not know where the motor
cycle collided with the
sedan. The plaintiff’s contention as
such is that the driver of the sedan failed to observe the
plaintiff’s motor
cycle and executed a right turn into Topaas
Road, at a time when it was unsafe to do so and as a result collided
with his motor
cycle.
[10] Mr Ndebele on
the other hand testified that he was on his way to the police station
that morning. He stopped along Douglas
Drive with the intention to
turn right into Topaas Road. He had stopped there because he wanted
to allow the oncoming traffic
to pass before he can make the right
turn. As he was standing there, a white bakkie came from the
direction of Topaas Road and
turned right into Douglas Drive. That
bakkie hooted once and drove straight into the face of the oncoming
traffic. A motor cycle
coming from the South along Douglas Drive
was at the same time approaching the intersection. The driver tried
to avoid colliding
with the bakkie but lost control of the motor
cycle. The driver of the motor cycle jumped from the motor cycle and
landed underneath
Ndebele’s motor vehicle. The man was
embedded deep under Ndebele’s motor vehicle and as a result the
radiator pipe
to Ndebele’s motor vehicle was damaged –
there was no contact between his motor vehicle and the motor cycle.
According
to Ndebele the radiator pipe is the only part in his motor
vehicle that was damaged. The driver of the bakkie parked his motor
vehicle on the side of the road, along Douglas Drive and together
with the police from the police station, came to assist at the
scene
of the collision. Ndebele did not ask for his name or his contact
details nor did he take the details of the bakkie.
[11] At the
commencement of the trial the plaintiff’s counsel informed me
that the plaintiff’s claim is based on paragraph
6.10 of his
particulars of claim. The said paragraph states that –
‘6. The sole
cause of the injuries sustained by the plaintiff was the negligence
and/or wrongful act of the driver and/or
owner of the insured
vehicle, which negligence and/or wrongful act materialised on one or
more or all of the following respect:
6.10 He/she/it
failed to observe the plaintiff’s motor cycle, executed a right
turn at a time when it was unsafe to do so
and collided with the
plaintiff’s motor cycle’
[12] The plaintiff’s
notice of amendment sought to amend the plaintiff’s particulars
of claim in the following respects:
“1. By
deleting in paragraph 4 thereof the words “a motor vehicle”
and by inserting in their place the words “motor
vehicles”.
2. By inserting in
paragraph 5 thereof after the word “Ndebele” the
following words:
“and a certain
motor vehicle of which the identity of neither the owner nor the
driver can be established (hereinafter referred
to as “the
unidentified motor vehicle”) driven by a person whose name or
names is to the plaintiff unknown (hereinafter
referred to as “the
driver of the unidentified motor vehicle”)”
3. By inserting
after paragraph 6 thereof the following heading and the following
paragraph 6 bis: “In the alternative to
paragraph 6 above
6 bis The sole cause
of the injuries sustained by the plaintiff was the negligence and/or
wrongful act of the driver of the unidentified
motor vehicle and/or
the owner of the unidentified motor vehicle which negligence and/or
wrongful act materialised in one or more
or all of the following
respects:
6 bis 1 He travelled
at an excessive speed in the circumstances.
6 bis 2 He failed
to keep any or any proper lookout.
6 bis 3 He failed to
exercise any or any proper control over the unidentified motor
vehicle.
6 bis 4 He failed to
apply the brakes of the unidentified motor vehicle timeously or at
all.
6 bis 5 He failed to
stop at a stop street at a dangerous time and at a time when he was
obliged to do so.
6 bis 6 He proceeded
from a minor side road on to a main road at a dangerous and
inopportune time and without having satisfied himself
that it was
safe to do so.
6 bis 7 He proceeded
from a minor road on to a main road without stopping and in
circumstances where he was obliged to do so.
6 bis 8 He attempted
to proceed across the path of travel of the plaintiff’s
motorcycle bearing registration letters and numbers
L….. GP at
a dangerous and inopportune time and without having satisfied himself
that it was safe to do so.
6 bis 9 He failed to
avoid the plaintiff sustaining injuries when by the exercise of
reasonable care he could and should have done
so.”
4. By inserting
after the abovementioned paragraph 6 bis the following heading and
the following paragraph 6 ter: “In the
further alternative to
paragraph 6 and 6 bis above
6 ter The injuries
sustained by the plaintiff were due to the joint and simultaneous
negligence of the said Ndebele in one or more
or all of the respects
set out in paragraph 6 above and of the driver of the unidentified
motor vehicle in one or more or all of
the aspects set out in
paragraph 6 bis above.”
5. By inserting
after the abovementioned paragraph 6 ter the following paragraph 6
quat:
“6 quat the
plaintiff is uncertain whether the injuries he suffered were due to
the negligence of the said Ndebele or of the
driver of the
unidentified motor vehicle or of both the said Ndebele and the driver
of the unidentified motor vehicle in one or
more or all of the
respects set out above.”
[13] The defendant
is opposing the application for amendment on the following grounds:
1. The proposed
amendment materially and substantially amends the particulars of
claim.
2. The proposed
amendment introduces a new claim of action not included in the
particulars of claim.
3. The proposed
amendment, if granted, would adversely affect the defendant’s
defence in that both the plaintiff’s and
the defendant’s
cases had been closed in particular the manner in which the defendant
would have prepared and conducted its
defence had it been aware of
such amended particulars of claim from the outset of the proceedings.
4. The prejudice and
injustice suffered by the defendant is irreversible and cannot be
cured at this late stage of the proceedings
where judgment is
allowed.
5. The proposed
amendment will not contribute to the determination of the original
issue as pleaded by the plaintiff.
6. The proposed
amendment will not contribute to the proper ventilation of the issues
between the parties as per the pleadings.
7. The proposed
amendment is not reconcilable with the testimony of the plaintiff.
[14] In argument in
court, the plaintiff’s counsel submitted that the application
to amend the plaintiff’s particulars
of claim was brought in
consequence of a question I asked during the course of argument at
the end of the evidence. The question
asked was whether it would
make any difference if I find negligence on the part of the defendant
as a result of the negligence
of the driver of the insured motor
vehicle as alleged in paragraphs 5 and 6 of the amended particulars
of claim or as a result
of the negligence of the driver of the
unidentified motor vehicle as testified to by Ndebele. As a result
of this question, the
plaintiff found it necessary to apply for the
amendment.
[15] According to
his counsel, the plaintiff’s version as per the proposed
amendment is that the collision was caused by the
negligent driving
of Ndebele’s insured motor vehicle and in the alternative by an
unidentified motor vehicle. According
to counsel, in terms of
uniform rule 28 (10), an amendment can be brought at any time before
judgment. He contends further that,
in the circumstances of this
case, there is no prejudice or injustice to be suffered by the
defendant in that: the amendment emanates
from the defence of the
defendant during trial; and there is no way that the plaintiff would
have known about the defence because
it does not appear from the
papers before court or from the police report pertaining to the
collision in question. The defendant
knew at all times about this
defence but did not disclose it and only canvassed it at the trial.
He referred me to the judgments
in Trans-Drakensberg Bank Ltd v
Combined Engineering (Pty) Ltd
1967 (3) SA 632
(D&CLD) and Randa
v Radopile Projects CC
2012 (6) SA 128
(GSJ) and to Erasmus: Superior
Court Practice page B1 -179
[16] The further
contention by the plaintiff’s counsel is that the plaintiff
should not be criticised for bringing the amendment
at the end of the
case as there is no carelessness, mistake or omission on the part of
the plaintiff in bringing the amendment.
The plaintiff had no
knowledge of the unidentified motor vehicle. The plaintiff relied on
the police sketch plan of the collision.
Quiet clearly the
application to amend is, according to counsel, bona fide in that it
was brought as a result of the evidence
at the trial which was not
pleaded. The amendment is thus reconcilable with the testimony of
Ndebele which was tendered by the
defendant at the trial. He relied
in this regard in the judgment in Mntambo v Road Accident Fund
[2007] ZAGPHC 151
;
2008
(1) SA 313
(W) and Erasmus above pages B1 -181 to B1 - 183.
[17] The plaintiff’s
counsel also contends that the amendment does not introduce a new
cause of action. The amendment introduces
fresh and alternative
facts supporting the original cause of action. Even if it did, it
would, according to counsel, not require
the re-opening of the case
since the issue was fully canvassed at the trial. The proposed
amendment will not cause the defendant
any prejudice, as well. In
this regard he referred me to the judgments in Williams NO v Lesotho
National Insurance Co (Pty) Ltd
and Another
1997 (4) SA 722
(O),
Mokoena v SA Eagle Insurance
1982 (1) SA 780
(O) and Du Bruyn v
Joubert
1982 (4) SA 691
(W).
[18] Another
submission is that the plaintiff’s claim has also not
prescribed yet and a fresh action can be brought all over
again. The
case would prescribe on 6 November 2016. The Road Accident Fund is
liable in respect of unidentified vehicles in terms
of s 17 read with
regulation 2 of the Act. Such a claim must be lodged within two
years of the cause of action or the claim prescribes.
The cause of
action in this instance occurred on 7 November 2012. The present
claim was lodged within two years and the plaintiff
has until
November 2016 to issue summons. Counsel referred to the date stamp on
the summons of 2 March 2012 as indication that
the summons was issued
well within the two year period. The test in respect of whether the
plaintiff has lodged a proper claim
against the defendant is whether
the RAF was given enough details of the collision. The details must
be enough to enable the RAF
to conduct its own investigation, so he
argued. In this respect counsel referred me to the judgment in Pillay
v RAF
2014 (4) SA 112
(SCA).
[19] In argument
before me, the defendant’s counsel concedes that a court may at
any stage before judgment, by exercising
its judicial discretion,
grant an amendment. As the proposed amendment was not raised on the
pleadings and only came to the fore
at the conclusion of the evidence
already heard and presented regarding the issue of merits the real
issue had not been canvassed
at the trial. According to counsel, an
amendment would be granted unless such amendment would cause an
injustice which cannot
be compensated by an appropriate order as to
costs or postponement. In this regard counsel relied in Middleton v
Carr
1949 (2) SA 374
(A), Moolman v Estate Moolman
1927 CPD 27
and
Trans-Drakensberg Bank Ltd v Combined Engineering (PTY) Ltd
1967 (3)
SA 632
(D).
[20] The defendant’s
counsel, on the other hand, submitted that the purpose of pleadings
is that one should put his or her
case forward. The version put to
the defendant in the particulars of claim and as persisted with at
the pre-trial conference is
the one which the defendant replied to.
This is also the version which the plaintiff’s counsel
addressed in his summary
opening. By introducing the amendment, it
is counsel’s contention that the plaintiff wants to change his
version by introducing
the unidentified motor vehicle. Plaintiff has
to prove his case as set out in the particulars of claim. The
proposed amendment,
according to counsel, does not contribute to the
real issues between the parties. In this regard he referred me to
the judgments
in Bankorp Ltd v Anderson-Morshead
1997 (1) SA 251
(W)
contra Four Tower Investments (Pty) Ltd v Andre’s Motors
2005
(3) SA 39
(N) at 44.
[21] According to
the defendant’s counsel, the defendant reacted to the version
as put out by the plaintiff in the particulars
of claim and as
contained in the RAF 1 form lodged by the plaintiff. The defendant’s
official plea is the denial that the
motor vehicle with registration
number JTG 747 GP did not cause the collision or the injuries. From
the time, having received
the plea, the plaintiff ought to have been
aware that the defendant was denying that the collision was caused by
the motor vehicle
alleged by the plaintiff. The defendant could only
act on what was presented to it in the RAF 1 form, the particulars of
claim
and the evidence tendered orally. The application for
amendment should, according to counsel, convince the court to
exercise its
discretion in favour of the defendant as the plaintiff
cannot change its version to suit the testimony of the defendant.
[22] Proper
ventilation of issues is paramount, defendant’s counsel states.
The plaintiff’s version is cast in stone
and should be replied
to. The court having heard that version must also decide on that
version. The plaintiff’s version
is canvassed in such a way
that the court would be able to come to a decision. If the amendment
is allowed it would mean that
the court must dismiss all what was
said by plaintiff in court and take only the version of the
defendant. The onus is on the
plaintiff and not the defendant, so he
argued.
[23] Uniform rule 28
(10) reads as follows:
“(10) The
court may, notwithstanding anything to the contrary in this rule, at
any stage before judgment grant leave to amend
any pleading or
document on such other terms as to costs or other matters as it deems
fit.”
[24] It has been
held that the court will normally only allow an amendment at the late
stage of the proceedings if the issues raised
by the proposed
amendment have already been canvassed in the evidence and there is no
prejudice or injustice to the other party.
See Pennefather v Gokul
1960 (4) SA 42
(NPD) at 51B and Knightsbridge Investments (Pvt) Ltd v
Gurland
1964 (4) SA 273
(SR) at 281 A
[25] It is trite
that the decision whether to grant or refuse an application to amend
a pleading rests in the discretion of the
court. Such discretion
must be exercised judicially. An amendment would as such be granted
unless such amendment would cause
an injustice which cannot be
compensated by an appropriate order as to cost or postponement.
[26] Uniform rule 28
(10) authorises a court to grant an amendment at any stage of the
proceedings but before judgment. One of
the facts which should be
presented to a court in its exercise of its discretion is the reason
why the application to amend was
brought, as in this instance, at a
late stage. As it is said, an amendment cannot be granted for the
mere asking. The court hearing
the application should be satisfied
that the party seeking the amendment is not mala fide. In the
application before me, I find
the plaintiff’s explanation as to
why this amendment is brought at this late stage of the proceedings,
acceptable. The information
the plaintiff is using to apply for the
proposed amendment could not have come to his knowledge before the
trial. The plaintiff’s
testimony is that he only remembers a
sedan motor vehicle turning too quickly in front of him. He did not
have time to stop or
swerve, in fact, the collision happen so sudden
that he did not even have time to think of what to do. He does not
remember what
happened thereafter as he lost consciousness and woke
up in hospital. He did not see nor talk to the police at the scene
of the
incident. He does not know where the motor cycle collided
with the sedan. He could not even remember the model or colour of
the
sedan. It is thus clear that he could not have known of the
presence of the unidentified motor vehicle which according to Ndebele
caused the collision. He relied on the information from the police
report and sketch plan. On the contrary, from the evidence
tendered
by Ndebele in court, if it is to be accepted as the truth, one can
infer that the defendant was at all material times
aware that the
collision was not caused by Ndebele but by the driver of the
unidentified motor vehicle. The defendant must have
at one time or
the other consulted with Ndebele, who must have informed it of the
presence of the unidentified motor vehicle at
the scene of the
collision and that that unidentified motor vehicle caused the
collision. This information was not disclosed to
the plaintiff
either in the pleadings or at any stage of the proceedings. It was
disclosed only when Ndebele testified in court.
In fact, the
defendant, in his plea, admits the plaintiff’s allegation that
the collision was caused by the negligent driving
of Ndebele’s
motor vehicle.
[27] The defendant’s
contention that the issue which the proposed amendment seeks to
introduce was not canvassed at the trial
is misconceived. The issue
was crisply raised at the trial in the testimony of Ndebele, the
defendant’s witness. It is,
in fact, the evidence of Ndebele
that the collision and consequently the injuries sustained by the
plaintiff were caused by the
unidentified motor vehicle. According
to Ndebele, he had stopped along Douglas Drive with the intention of
turning right into
Topaas Road. He had stopped there because he
wanted to allow the oncoming traffic to pass before he can make the
right turn.
As he was standing there, he saw a white bakkie come
from the direction of Topaas Road turning right into Douglas Drive.
That
bakkie hooted once and drove straight into the face of the
oncoming traffic. He also saw a motor cycle coming from the South
along
Douglas Drive approaching the intersection where the white
bakkie was crossing and in trying to avoid colliding with the bakkie,
the plaintiff lost control of the motor cycle and fell off. Ndebele
was cross-examined by the plaintiff’s counsel at length
on this
version of his evidence. The defendant’s counsel also took up
the issue again during his re-examination of Ndebele.
The
defendant’s counsel can, therefore, not be heard to be saying
that the issue was not canvassed at trial.
[28] This issue
having been so canvassed and it emanating from the testimony of the
defendant’s witness, it is my view that
should the proposed
amendment be allowed, it will not cause prejudice or injustice to the
defendant. It is my view that, if
the plaintiff had relied on this
alternative basis before evidence was led Ndebele would still tender
the same evidence. He witnessed
the collision and his testimony as
to how the collision happen will remain the same.
[29] I also do not
agree with the contention by the defendant’s counsel that the
proposed amendment seeks to introduce a new
cause of action. It is
common cause that the proposed amendment seeks to introduce, in the
alternative, the unidentified motor
vehicle. This amendment, in my
opinion, does not materially and substantially amend the plaintiff’s
cause of action but
introduces fresh and alternative facts supporting
the original right of action as set out in the cause of action. It
is not in
dispute that the cause of action is based on damages
suffered by the plaintiff as a result of injuries sustained by the
negligent
driving of a motor vehicle. The proposed amendment brings
alternative facts as to which motor vehicle, other than the
plaintiff’s
motor cycle, caused the plaintiff to lose control
of his motor cycle. Initially the plaintiff averred that the motor
vehicle involved
was that of Ndebele and with the proposed amendment,
an alternative motor vehicle, the unidentified motor vehicle, is
introduced.
This to me is not a new cause of action. The proposed
amendment introduces an additional default. See Williams NO v
Lesotho National
Insurance Co Ltd above at 733D – F.
[30] It is thus
clear that the amendment should be allowed on the grounds of the
evidence already led by Ndebele at the trial.
And on that basis, I
am of the view that, I should exercise my discretion in favour of the
plaintiff and allow the amendment.
[31] In terms of the
amended paragraph 6 of the particulars of claim, the plaintiff
alleges that the sole cause of the injuries
he sustained was as a
result of the negligence and/or wrongful act of Ndebele or the driver
and/or owner of the unidentified motor
vehicle, which negligence
and/or wrongful act materialised in that Ndebele or the driver or the
owner of the unidentified motor
vehicle failed to observe the
plaintiff’s motor cycle and executed a right turn at a time
when it was unsafe to do so and
as a result collided with the
plaintiff’s motor cycle.
[32] The onus is on
the plaintiff to prove on a preponderance of probabilities that his
injuries are due to the negligence or wrongful
act of either Ndebele
or in the alternative, the driver of the unidentified motor vehicle.
The crisp issue, therefore, which this
court has to determine, is
whether the plaintiff has, on a balance of probabilities, succeeded
in establishing negligence or wrongful
act on the part of either
Ndebele or the driver of the unidentified motor vehicle.
[33] After
considering all the evidence presented, I was, at the end of the
trial, faced with two versions, which were mutually
destructive, of
how the collision occurred. I therefore have to evaluate that
evidence in order to determine which of the two
versions is truthful.
[35] Where there are
two mutually destructive stories, the plaintiff, can only succeed if
he or she satisfies the court on a preponderance
of probabilities
that his or her version is true and accurate and therefore
acceptable, and that the other version advanced by
the defendant is
false or mistaken and falls to be rejected. The court’s
approach in such a situation is to weigh up and
test the plaintiff’s
version against the general probabilities of the case and, if the
balance of probabilities favours the
plaintiff the court will accept
his or her version as probably true. If however the probabilities
are evenly balanced in the sense
that they do not favour the
plaintiff’s case any more than they favour the defendant’s,
the plaintiff can only succeed
if the court nevertheless believes him
or her and is satisfied that his or her evidence is true and that the
defendant’s
version is false. See National Employers’
General Insurance Co Ltd v Jagers
1984 (4) SA 437
(E) at 440E –
441A quoted with approval in Baring Eiendomme Bpk v Roux
[2001] All
SA 399
(A) para [7] at 402a- f.
[36] The evidence of
the plaintiff tendered in court does not, in my view, conclusively
establish that the injuries he sustained
were caused by the
negligence or wrongful conduct of either Ndebele or the driver of the
unidentified motor vehicle. The only
thing that the plaintiff could
remember was that a sedan motor vehicle turned right into his path of
travel and caused the collision.
He does not know or remember
whether his motor cycle collided with the motor vehicle or not as he
lost consciousness and only
came to in hospital. He could not say
which motor vehicle turned into his lane of travel. It can only be
inferred that his allegation
that his injuries were caused by the
negligence of Ndebele, as per his (the plaintiff’s) evidence in
court, is based on the
information he got from the police report.
[37] My view is that
either Ndebele or the driver of the white bakkie is responsible for
the collision. As per the police report
and sketch plan, the motor
vehicle that was involved in the incident is that of Ndebele. Yet
Ndebele denies his involvement in
the incident. According to him, a
white bakkie coming from the Toopas Road, which failed to stop at the
stop street, caused the
plaintiff to lose control of his motor cycle
and fall off and as such sustained the injuries. According to
Ndebele, he was there
and saw everything that happened. There is no
other evidence available. The plaintiff’s evidence is sketchy.
He does not
remember everything that happened. He only remembers
seeing a sedan motor vehicle moving into his line of travel –
basically
that is all he remembers. He does not remember what colour
that sedan motor vehicle was. He does not remember whether he is the
one who collided with the sedan or whether the sedan collided with
his motor cycle. Ndebele’s testimony is that the motor
cycle
did not collide with either his motor vehicle or with the white
bakkie. According to Ndebele, the plaintiff, in avoiding
to collide
with the white bakkie, lost control of the motor cycle, fell off and
landed underneath his (Ndebele) motor vehicle.
This version of
Ndebele is uncontested because the plaintiff lost consciousness and
does not know what happened thereafter. According
to the evidence
the only other persons who it can be said witnessed the incident is
the driver of the unidentified motor vehicle
and Sam, the passenger
in Ndebele’s motor vehicle. It is common cause that the driver
of the unidentified motor vehicle
remains unidentified and could not
have been expected to give evidence. Sam, on the other hand, though
it was said that he was
available was not called to testify. If it
is to be accepted that Ndebele’s version in he truth, then it
would be expected
that Sam’s evidence would not differ from
that of Ndebele. I therefore have to accept Ndebele’s version
as the truth
of what happened there on that day.
[39] Ndebele
testified that the plaintiff’s motor cycle did not come into
contact with his motor vehicle. The plaintiff is
the one who came
into contact with his motor vehicle when he jumped from his motor
cycle and landed beneath his motor vehicle.
It is also clear from
Ndebele’s testimony that the motor cycle did not come into
contact with the white bakkie as well.
The submission by the
plaintiff’s counsel, which was not gainsaid by the defendant or
its counsel, that in order for the
plaintiff to establish negligence
on the part of the insured driver, it is not necessary that the
plaintiff’s motor cycle
should have come into contact with the
insured motor vehicle, is correct. There is no requirement that
there should be contact.
The requirements in terms of s 17 (1) of
the Act, is that the bodily injury should be caused by or arise from
the driving of a
motor vehicle by any person and the injuries should
be due to the negligence or other wrongful act of the driver or of
the owner
of the motor vehicle whose identity has been or has not
been established. The wrongful conduct of the driver of the
unidentified
motor vehicle, which caused the plaintiff to take
evasive action and resulted in the plaintiff sustaining the injuries
is sufficient
to establish the required negligence.
[41] In determining
the plaintiff’s claim, I must consider all the evidence
presented in court. The application of the averments
contained in the
pleadings once the proposed amendment is allowed will be supported by
the evidence tendered by the defendant.
The amendment having been
allowed, and on the totality of the evidence presented, I find that
the plaintiff has proved his case
on a balance of probabilities and
the defendant should therefore be ordered to pay any proven or agreed
damages.
[42] The plaintiff’s
counsel argued that the plaintiff should not be settled with the
costs of the application since the application
was necessitated by
the defendant’s failure to disclose his defence in his
pleadings. In fact, according to counsel, the
defendant should not
have opposed the application since it is based on his version of the
events. I am in agreement with this argument.
Costs should therefore
be granted in favour of the plaintiff as the successful party in the
main case and in the application.
[43] In the premises
I make the following order:
49.1 The application
for amendment is granted.
49.2 The plaintiff
succeeds 100% with his claim against the defendant.
49.3 The defendant
is ordered to pay to the plaintiff any proven or agreed damages.
49.4 The defendant
is ordered to pay the costs of suit on a party and party scale
including costs occasioned by the application
to amend.
KUBUSHI J
JUDGE OF THE
JOHANNESBURG LOCAL DIVISION GAUTENG HIGH COURT
APPEARANCES
HEARD ON THE :
17 SEPTEMBER 2014
DATE OF
JUDGMENT : 17 OCTOBER 2014
PLAINTIFF’S
COUNSEL : ADV M. CHAITOWITZ, SC
PLAINTIFF’S
ATTORNEY : DE BROGLIO INC
DEFENDANT’S
COUNSEL : ADV V STRAUSS
DEFENDANT’S
ATTORNEY : SISHI INCORPORATED