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[2016] ZAGPJHC 191
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Buthelezi v Road Accident Fund (41989/ 2012) [2016] ZAGPJHC 191 (27 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
41989
/
2012
DATE:
27 MAY 2016
In
the matter between:-
MBHEKISENI
BUTHELEZI
.....................................................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
......................................................................................................
Defendant
J
U D G M E N T
Ismail
J:
[1]
The plaintiff instituted an action against the defendant for damages
for bodily injuries which he sustained in a motor vehicle
accident on
the 17 December 2013.
[2]
The accident occurred at the intersection of Wolmarans and Claim
streets in Joubert Park, Johannesburg, between a vehicle driven
by
the plaintiff and an alleged unknown vehicle driven by an unknown
person.
[3]
The plaintiff alleges that the accident was a rear end collision and
that the insured driver was the sole cause of the accident.
Issues
to be determined:
[4]
The following issues were to be determined by the court:
(1)
the question of liability, whether the insured driver was the cause
of the collision;
(2)
past loss of earnings
(3)
future loss of earnings
(4)
the issue of general damages (serious injury claim) was only
rejected on the 13 May 2016
[5]
According to the particulars of claim the plaintiff sustained a
“
fracture of the right tibial plateau”
[6]
The plaintiff testified. In brief his evidence was that he was
travelling along Claim street from Hillbrow in the direction
of the
city centre. At the intersection with Wolmarans street the traffic
light was red for him. He stopped at the intersection.
He was on the
extreme right lane as he intended to turn into Wolmarans street. As
he waited for the traffic lights to change, he
heard a bang into his
mini bus causing him to move across the intersection and collide with
a pole. He stopped near a tree.
He
was trapped in the vehicle and he was assisted and taken out of the
vehicle by onlookers. He was thereafter transported by ambulance
to
hospital. He was an in- patient at the hospital until his discharge
on the 30 December 2013, a period of seventeen days.
[7]
During cross examination he was confronted with several versions he
gave to various people. He testified in court that the vehicle
came
to a stand still without mentioning that it collided with the pole
which hoisted the traffic light. He was also confronted
with a
version which he apparently gave to the policeman who noted the
details of the accident report where he is alleged to have
said:
“
the
driver of m/vehicle A alleges that he was driving along Claim cnr
Wolmarans (sic) Whilst waiting for the robot an unknown black
male
driving a taxi bumped his car from behind and it never stops
(sic) the driver of m/vehicle A sustained injuries
on his right
leg and he was admitted to hospital from 2013-12-17 until 2013-12-30”
Counsel
for the defendant questioned him about this report and particularly
in regard to the vehicle which collided into his vehicle,
which he
described as a taxi. When he testified under oath he stated that he
could not identify the vehicle and he had no idea
whether the vehicle
was a sedan, truck, bus or taxi.
Mr
Buthelezi in response to the statement which was noted on the
accident report , responded that he did not tell the policeman
that
it was a taxi or that the driver was a black man.
[8]
He was confronted about what he allegedly said to the Occupational
Therapist, David Stone, in his report at page 6 (exhibit
D33), namely
that:
“
He
had a collision with a taxi that was driving out of its lane”
He
was asked to comment on what was noted by occupational therapist to
which he responded that it was not correct.
[9]
Regarding his earnings he stated that he earned between R800 and R900
per week prior to the accident. Since the accident he
earned between
R500 to R600 per week. He also stated that he could not drive for
lengthy period of time as he experienced pain
on his knee.
[10]
The plaintiff thereafter called Mr Freeman Ntshaba to testify. He
stated that he is the plaintiff’s current employer.
He
inherited the taxi business from his father, upon the latter’s
death. The plaintiff is in his employ and he currently
earns R500 to
R600 per week. He retained the plaintiff as a driver after the
accident, however he gave him an easier or less demanding
route, in
order for him to cope.
[11]
A joint minute by Dr Gama and Dr Sugreen was handed in as Exhibit F.
In the joint minute the industrial psychologist at para
2.6 of the
report agreed that the retirement age of drivers in the taxi
industry was 60- 65 years. Dr Gama testified to the
effect that as an
injured person, due to the sequelae, the plaintiff was disadvantaged
in the open labourmarket ,to a lesser or
greater extent in respect
of:
·
Competitiveness with uninjured
counterparts;
·
efficiency, effectiveness and productivity
due to physical constraints
·
retirement age
·
work attendance
·
long distance driving.
The
abovementioned view expressed by Dr Gama was subsequently
endorsed
by Dr Sugreen when she gave evidence.
Application
for absolution from the instance at the end of plaintiff’s case
[12]
Mr Kajee, acting for the defendant, applied at the end of the
plaintiff’s case for an order for absolution from the instance.
I gave brief reasons for refusing the application and i undertook to
provide reasonsfor so doing in the judgment. I propose to
do so
hereunder.
[13]
The application was predicated on the basis of the unreliability of
the plaintiff’s version as referred to in para’s
[7] and
[8] supra, coupled with the fact that there was no independent
evidence, of a physical or oral type, of a collision apart
from the
say so of the plaintiff. The fact that the plaintiff gave several
versions did not assist his cause or claim.
[14]
In short it was submitted that no reasonable court acting prudently
would find for the plaintiff on the evidence presented
as a prima
facie case was not made out. In this regard reliance was placed on
the locus classicus of
Gascoyne v Paul
and Hunter
1917 TPD 170
at 173 and
De
Klerk v Absa Bank Ltd
2003 (4) SA 315
(SCA) at par [10] where Brand JA stated:
“
This
implies that a plaintiff has to make out a prima facie case- in the
sense that there is evidence relating to all the elements
of the
claim......... Such formulation tends to cloud the issue. The Court
ought not to be concernedwith what someone else might
think; it
should rather be concerned with its own judgment and not that of
another ‘reasonable’ person or court...”
[15]
The reason I refused the granting of the application for absolution
was that the thrust of the application was premised on
the issue of
credibility, and I would have had to make a finding on Mr Buthelezi’s
evidence exclusively. Apart from that
the notion of a prima facie
case is a less burdensome hurdle to overcome as opposed to proof on a
balance of probabilities.
[16]
The defendant thereafter called Dr Sugreen to testify and in themain
her evidence related to the joint minute alluded to earlier
and her
report exhibit E. Her evidence essentially related to the issue of
quantum and had very little if any connotation regarding
the issue of
liability and/or negligence.
Legal
issues
[17]
For the plaintiff to succeed in obtaining damages he would have to
establish that the insured driver caused the collision or
that the
accident was attributable to the negligent driving of the insured
driver. It is trite that if the plaintiff fails to establish
negligence on the part of the
‘
offending’
driver the defendant cannot be held liable for any damages.
Res
ipsa loquitor
[18]
The gravamen of the dispute between the parties centred around what
the plaintiff considered to be the
raison
d’ etre
of its claim, namely the
maxim
res ipsa loquitor.
Counsel for the plaintiff submitted that because the allegations are
that the plaintiffs vehicle was propelled across the
intersection,
referred to above, whilst it had stopped, the only inference was that
it had been collided into from behind. This
is premised merely on the
say so of the plaintiff who under oath before me testified that he
did not see the other vehicle and
was merely told that there was
another vehicle by others.
[19]
The problem with the plaintiff’s evidence is that it is firstly
of ahearsay nature and secondly no one came to court
to testify that
another vehicle collided into the rear of the plaintiff’s
vehicle which ‘drove off’ without stopping.
[20]
To put it differently there is no factual basis for the belief that a
rear end collision took place. At the very least there
should be some
evidence thereof before the maxim comes into play or before the court
can make any inferences. To simply make inferences
without a
scintilla of any facts is to make inferences in the air.In this
regard the authors
Hoffmann and Zeffert
– The South African Law of Evidence 4 th Edition
at
p. 591 deal with the question of inferences.
Selke
J in Govan v Skidmore that the selected inference must “ by the
balancing of probabilities be the more natural, or plausible
conclusion from among several conceivable ones...” This has
been approved by the AppellateDivision in the AA Onderlinge case
and
in the Accident Gauranteed Corporation Ltd v Koch where Holmes J A
remarked that “plausible”, in this context,
means
‘acceptable, credible, suitable”
[21]
Lord Wright in
Caswell v Powell Duffryn Associated Collieries Ltd
1939
[3] All ER 722 at 733 remarked:
“
Inference
must be carefully distinguished from conjecture or speculation.
There
can be no inference unless there are objective facts from which to
infer other facts which it is sought to establish... But
if there are
no positive proved facts from which the inference can be made, the
method opf inference fails and what is left is
mere speculation or
conjecture.”
See
also:
S v Naik
1969 (2) SA 231
(N) at 242 C-D,
Joel Melamed
&
Hurwitz
v Cleveland Estates
[1984] ZASCA 4
;
1984 (3) SA 155
(A)
at 164G- 165C and
Rees
and Others v Harris and Others
2012(1)
SA 583 9GSJ) at par [32].
[22]
Had the evidence of the plaintiff been that he saw this vehicle
approaching from behind in his rear view mirror and he anticipated
the accident, that would have been evidence. To reason as follows,
allegations of rear end collision
ergo
res ipso loquitor and
hence negligence is in my view a
non sequitor
in the absence
of factual evidence supporting a rear end collision. The term res
ipsa loquitor which means “the facts speak
for themselves”
– would obviously apply if
there
was evidence that a vehicle had collided into the plaintiff’s
vehicle from behind.
[23]
All that the court has before it is inadmissible hearsay evidence of
what the plaintiff was told by others regarding what happened.
Plaintiff’s counsel did not submit that it was an exception in
terms of section 3 of
Law of Evidence Amendment Act 45 of
1988
.- See:
S v Ndhlovu and Others
2002 (2) SACR 325
at 333 i- 334d
[24]
Miss Docrat, acting for the plaintiff, relied on the judgment of
Macloed v Rens
1997
(3) SA 1039
ECD, where the defendant’s negligence was decided
upon solely by circumstantial evidence, in the absence of direct
evidence.
At 1048 C-E the court held that it could have regard only
to reasonable possibilities. Inferences had to be carefully
distinguished
from conjecture or speculation. There could be no
inference unless there were objective facts from which to infer the
other facts
which it sought to establish.
[25]
There is no objective fact in this matter apart from the
hearsayevidence of the plaintiff. There is no photograph depicting
the damage to the rear of the plaintiff’s taxi, the police were
not called to the scene shortly after the accident. Had they
been
called to testify they could have testified about the debris caused
by the collision. No witness gave evidence of the collision
or in
fact, the damage to the plaintiff’s vehicle .
[26]
Ponnan JA in
Goliath v MEC for Health, Eastern Cape
2015 (2)
SA
97
(SCA) at par [10] stated:
“
Broadly
stated, res ipsa loquitor (the thing speaks for itself) is a
convenient
Latin
phrase used to describe the proof of facts which are sufficient to
support
an
inference that the defendant was negligent and thereby to establish a
prima
facie
case against him. The maxim is no magic formula...... ‘ the
expression
need
not be magnified into a legal rule: it simply has its place in that
scheme
of
and search for causation upon which the mind sets itself working’..
“
See
also:
Goodenough N O v Road Accident
Fund
(case Number 441/2002 of the
Supreme Court of Appeal delivered on 15 September 2003- judgment of
Brand JA- Harms JA and Motata
AJA concurring, at paras [5] and [11].
[27]
On the facts as presented to me the defendant submitted that the
plaintiff had not discharged the
onus
of establishing a rear end collision and therefore its claim ought to
be dismissed with costs. The plaintiff on the other hand
argued to
the contrary.
[28]
I am of the view that the only ‘evidence’ before me is
that of the plaintiff, Mr Bulthelezi. His evidence was primarily
of a
hearsay nature regarding the collision. Coupled to that, he
recounted several versions to different people regarding
the manner
in which the accident occurred.
I
my view it cannot be said by any stretch of the imagination that
hisevidence was satisfactory. In court his evidence was that
he did
not see the vehicle. Notwithstanding that, the court is requested to
infer a rear end collision on the maxim, without any
factual evidence
in support thereof.
[29]
I have two routes available to me if I am of the view that the
plaintiff failed to discharge the onus. I could dismiss the
claim
with costs alternatively I could grant absolution from the instance
at the end of the defendants case.
[30]
The defendant’s counsel sought an order that the claim should
be dismissed. I am inclined to agree with the view expressed
by
defendant’s counsel. Accordingly I make the following order:
“
The
plaintiff’s claim is dismissed with costs. Such costs to be
taxed on a
party
and party scale..”
I
s m a i l J
APPEARANCES:
For
the plaintiff: Adv Dockrat instructed by S S Ntshangase
Attorneys
Marble Towers, Johannesburg
For
the Defendant : Adv C Kajee instructed by Mayat, Nurick Langa
Inc,
Parktown North Johannesburg.
Date
of hearing : 17- 19 May 2016
Date
of Judgment: 27 May 2016.