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[2010] ZAGPJHC 47
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York International SA Incorporated v Du Preez and Another (A5004/2009) [2010] ZAGPJHC 47 (1 June 2010)
REPUBLIC
OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
APPEAL
CASE
NO: A5004/2009
COURT
A
QUO
CASE NO: 20496/2005
In the matter between:
YORK
INTERNATIONAL
SA INCORPORATED
Appellant
(Plaintiff
in court
a
quo
)
and
N P
DU
PREEZ
First Respondent
(First
Defendant in court
a
quo
)
I VAN
ZYL
Second Respondent
(Second
Defendant in court
a
quo
)
J U D G M E N T
LAMONT, J
:
[1] This is
an appeal by the appellant against an order made by Bashall J
,
leave to appeal having been granted by the Supreme Court of Appeal.
[2] The
appellant was the plaintiff in the court
a
quo
and the respondents were the defendants. For the sake of convenience
I refer to the parties as they were cited in the court
a
quo
.
[3] On or
about 30 June 2005 and at approximately 19h50 on the extension to
Broadway Avenue in Bruma a collision occurred between
a vehicle in
respect of which the plaintiff bore the risk of loss and/or damage
(“the Land Rover”) and another vehicle.
In consequence of
the collision the Land Rover was damaged. At the hearing the issue of
liability and quantum were separated.
[4]
The
plaintiff gave evidence that the right rear of the Land Rover was
struck by another vehicle in consequence of which the Land
Rover
veered first to the right, then to the left and eventually went over
a divider onto an access road at which point it turned
onto its side.
The plaintiff could identify neither the other vehicle nor its
driver. After the collision the plaintiff was given
a registration
number, the make of the vehicle and a name by one Mr. Chetty
(“Chetty”). This data was the data given
to enable the
plaintiff to identify the vehicle which had struck the Land Rover.
Chetty gave evidence that on the day in question
he was driving
behind the Land Rover. Another vehicle, a Volvo, bumped into it.
After it had bumped into the Land Rover the Volvo
pulled to the right
and carried on travelling straight on the freeway. Chetty was driving
immediately behind the Volvo and followed
it because it had bumped
into the Land Rover and the driver was “
running
away
”.
The other vehicle was a grey Volvo station wagon. Chetty’s
wife wrote down the number which he called out to her.
He drove
behind the Volvo for some five to ten minutes. The Volvo drove past
the Linksfield off-ramp. Chetty drove off the highway
at the
Linksfield off-ramp and returned to the scene of the collision. He
gave the plaintiff the registration number of the Volvo,
some
additional data and his telephone number. It is apparent from the
evidence of Chetty that the driver of the Volvo drove negligently.
Chetty confirmed that he was good with registration numbers and had
recollected the number independently.
[5] It was
put to Chetty that he had said that the Volvo was silver coloured in
a statement which he had made. He explained that
the collision had
happened at night and that would explain the discrepancy between his
evidence (grey) and what he had stated in
the statement.
Chetty stated that his wife had written down the
registration number which he had
called out for her. He had at the
scene written down additional details on the slip of paper which was
given to the plaintiff.
He was adamant that the Volvo had struck the
Land Rover, that he had seen it continuously and that there was no
room for error
in his observation; there was no other vehicle and he
had followed the Volvo with a view to recording its identity.
[5] The first
defendant
gave evidence. He was the owner of a Volvo station wagon bearing the
registration number matching that which the witness Chetty
had seen.
His evidence was that on the day in question he was the driver of
that vehicle. He went to the Mandibel Sports Club in
Bezuibenhout
Park to attend a wheelchair ruby practice. On his way to the club and
on Jan Smuts Avenue just before Empire Road,
at approximately 17h00,
an unidentified taxi drove in front of him and a collision occurred
in consequence of which the left front
of the Volvo was damaged. The
taxi did not stop and he was unable to give its registration number.
After the collision he went
to the rugby practice. The second
defendant drove the vehicle after the rugby practice. She drove in
Tenth Street to Broadway and
drove in Broadway in the direction of
the highway. He denied that there was a collision between the Volvo
and the Land Rover. Subsequent
to the collision he described, and on
31 June 2005, he reported the collision which he claimed had taken
place in Jan Smuts avenue
to the Linden Police. He also submitted a
claim to an insurance company providing it with the same description
of how the damage
to the Volvo had occurred. The Volvo station wagon
he drove on the day is greyish in colour: it is gunmetal grey. Prior
to the
collision on 30 June his vehicle was undamaged.
[6] The first
defendant’s wife, the second defendant, testified that she had
driven the vehicle after the rugby practice.
If the Volvo had
collided with the Land Rover is she who would at the time have driven
the Volvo. She stated that there had been
no collision at the place
where the plaintiff claimed the collision had occurred and that there
had earlier that day been a collision
on Jan Smuts Avenue. She did
not see it happen but she felt the bump.
[7] A Mr
Levenson was called by the defendants who stated that on an evening
at about 17h30 or 17h45 he noticed slight damage to
the Volvo. He
was told that a taxi had hit the Volvo on the way to the practice.
[
8] The
judge
a
quo
found all the witnesses to be good witnesses. He did not find
probabilities in favour of either version and as the versions were
mutually destructive granted absolution from the instance with costs.
[
9] In
my view the judge
a
quo
had little regard to the probabilities of the matter. Oral evidence
can only be properly evaluated by testing it against the inherent
probabilities. See
Cohen
and Another v Lench and Another
2007 (6) SA 132
(SCA) para [9]. By reason of the misdirection it is
open to this Court to re-assess the evidence.
[
10]
“The
technique generally employed by courts in resolving factual disputes
of this nature may conveniently be summarised as
follows. To come to
a conclusion on the disputed issues a court must make findings on
(a) the credibility of the various factual
witnesses; (b) their
reliability; and (c) the probabilities. As to (a), the court’s
finding on the credibility of a particular
witness will depend on
its impression about the veracity of the witness. That in turn will
depend on a variety of subsidiary
factors, not necessarily in order
of importance, such as (i) the witness’’ candour and
demeanour in the witness-box,
(ii) his bias, latent and blatant,
(iii) internal contradictions in his evidence, (iv) external
contradictions with what was
pleaded or put on his behalf, or with
established fact or with his own extracurial statements or actions,
(v) the probability
or improbability of particular aspects of his
version, (vi) the calibre and cogency of his performance compared to
that of others
witnesses testifying about the same incident or
events. As to (b), a witness’ reliability will depend, apart
from the factors
mentioned under (a)(ii), (iv) and (v) above, on (i)
the opportunities he had to experience or observe the event in
question and
(ii) the quality, integrity and independence of his
recall thereof. As to (c), this necessitates an analysis and
evaluation of
the probability or improbability of each party’s
version on each of the disputed issues. In the light of its
assessment
of (a), (b) and (c) the court will then, as a final step,
determine whether the party burdened with the onus of proof has
succeeded
in discharging it. The hard case, which will doubtless be
the rare one, occurs when a court’s credibility finding compel
it in one direction and its evaluation of the general
probabilities
in another. The more convincing the former, the less convincing
will be the latter. But when all factors are equipoised
probabilities prevail.”
Per Nienaber
JA in
S
F W Group Ltd and Another v Martell et cie and Others
2003 (1) SA 11
at para [14].
[11] The court
a
quo
found all the witnesses to be good witnesses by which I understand
the finding to be that the witnesses were credible. This Court
is
however not precluded from dealing with findings of fact which do not
in essence depend upon personal impressions made by a
witness giving
evidence but which are rather based on the facts, inferences to be
drawn from the facts and upon the probabilities.
See
Union
Spinning Mills (Pty) Ltd v Paltex Dye House (Pty) Ltd and Another (2)
2002 (4) SA 408
(SCA)
para [24]. See also
Louwrens
v Oldwage
2006
(2) SA 161
at 168 and the authorities therein cited;
Santam
Beperk v Biddulph
2004 (5) SA 586
(SCA) at 590 paras [5], [6] and [10].
[1
2] There
are three primary methods used to determine probabilities.
Probability theory is a branch of mathematics concerned with
determining the likelihood a particular event will occur. The three
primary methods are: Subjective probability, classical or theoretical
probability, empirical probability.
[13] Subjective
probability is determined by an individual’s best available
knowledge and his personal judgment of how events
are likely to
incur. This probability is not based on formal calculations but
comprises the globular
knowledge of the person who makes the judgment and so reflects his
opinions and past experiences.
[1
4] Classical
or theoretical probability is a probability which can be determined
in advance of any experiment. There are two sides
to a coin and when
spun, the chance (assuming the coin to be regular) of either of the
surfaces facing up is equal. There is empirical
probability, a
probability calculated pursuant to experiments. Empirical probability
is the most accurate or scientific guess based
on the results of
experiments. Naturally the more experiments conducted the more likely
the guess is to be accurate.
[15] It is not
necessary for a judge to wander into the realm of precise calculation
and scientific correlation of events. A judge
is required to
determine a probability only. A judge’s answer to a particular
question is it is probably so based on the
totality of the evidence.
A scientist’s approach to a particular problem is different. A
scientist attempts to assess likelihood
in terms of scientific
certainty. This is not the correct approach of a judicial officer.
See
Michael
and Another v Linksfield Clinic (Pty) Ltd and
Anothe
r
2001 (3) SA 1188
(SCA) at para [40].
[16] A judge
when determining the probabilities will consider the totality of the
evidence and draw an appropriate inference from
those facts he finds
proven. A judge may not read between the lines to speculate. See
Nedbank
Ltd v
Pestana
[2008] ZASCA 140
;
2009
(2) SA 189
(SCA) para [10];
South
African Post Office v
De
Lacy and Another
2009 (5) SA 255
(SCA) at para [34 and [35].
[1
7] In
the present matter there are a variety of facts relevant to the
probabilities.
[18] In my
view the following facts are relevant to the probabilities:
Chetty saw a
vehicle
,
a grey Volvo bearing a registration number which was written down on
the slip and which he in any event remembers.
The vehicle
bearing the registration number is in fact grey, is a Volvo and is a
station wagon.
The vehicle
involved in the collision described by the plaintiff and Chetty,
suffered damage to its front left-hand side on the
day in question.
The Volvo in fact sustained damage on the day to the front left
side.
No vehicle
other than the Volvo, the Land Rover and the vehicle being driven by
Chetty were on the scene or relevant to the collision
as
none is mentioned. The enquiries by counsel during the cross
examination relating to the witness Chetty having transposed the
vehicle involved in the collision elicited strong responses
establishing the certainty of Chetty that the Volvo was the vehicle
which struck the Land Rover.
The vehicle driven by the second defendant, the Volvo was in fact in
the vicinity of the collision at the time the collision
occurred.
The vehicle took the N3 to Pretoria. The N3 is followed from the
place where the collision occurred toward Pretoria, the N3 bypasses
the Linksfield off-ramp. The vehicle seen by Chetty followed that
route.
[
19]
In considering the evidence the questions raised below must be
asked.
What are the
chances of Chetty seeing a grey Volvo station wagon bearing a
particular registration number and the car which in fact
bears that
registration number being a grey Volvo station wagon?
What are the chances of the Volvo being involved in another collision
on the same day with resultant damage similar to that which
one would
expect to find on the Volvo which struck the Land Rover?
What are the chances the witness seeing the grey Volvo at the place
where the collision occurred and the grey Volvo in fact having
been
in that area at or about that time?
What are the
chances of the witness Chetty seeing the grey Volvo follow a
particular route and the grey
Volvo
in fact having following that route?
What are the chances of all the events referred to above occurring as
one extended event?
[20] The
answers to these questions are the same; virtually nil. In my view it
is wholly improbable that what was seen and described
would have been
proven accurate on investigation unless the facts described as have
been seen were accurately described.
[21] The
evidence off Lev
enson
concerning the damage which he saw to the side of the first
defendant’s car takes the matter no further. Levenson could
not
recall when he saw the damage. There is no evidence that the damage
was seen on the day of the collision prior to the collision
with the
Volvo. The evidence of Levenson to the effect that the first
defendant had stated that a taxi or something had hit him
“on
the way to work, on the way to rugby practice” similarly taking
the matter no further as it does not identify the
day on which these
words were uttered.
[
22]
In my view the evidence given by the defendants and their witness in
the light of the probabilities is unacceptable. In my
view the
evidence is of crafty witnesses who re-created a state of affairs to
avoid the consequences of their acts. It was necessary
for the
defendants to invent a set of facts, a collision conveniently between
the Volvo and an unidentified vehicle not only so
as to avoid the
consequences of the collision in which the Volvo was involved but
also so as to set up a set of facts pursuant
to which a claim could
be made against the insurance company which insured the Volvo against
the risk of damage. Some version
had to be given to the insurance
company as to what collision had caused the damage in respect of the
claim. The defendants’
evidence is simply too convenient and
improbable when tested against the evidence of Chetty. Chetty’s
credibility was accepted
by the court
a
quo.
His evidence on the record in my view appears to have been honestly
and plausibly given. In my view there can be no criticism of
his
evidence which is supported overwhelmingly by the probabilities.
[2
3] It
is common cause that the second defendant drove the Volvo on the day
in question and the appropriate finding is that she was
the driver of
the vehicle who is liable for the damages suffered by the plaintiff.
The plaintiff failed to establish vicarious
liability.
[24] The
plaintiff was entitled to institute action against the first
defendant, the owner of the Volvo. Once the first defendant
revealed
that the second defendant had driven the Volvo it was reasonable to
join her and pursue the action against both defendants.
The plaintiff
had no independent evidence against the defendants and could not call
either of them as part of his case. The only
source of evidence was
the sworn testimony of the defendants. In the circumstances it is
proper to direct that the costs be paid
wholly by the
second
defendant
notwithstanding
that the plaintiff is unsuccessful against the first defendant.
[
25] I
accordingly make the following order:
t
he
appeal is upheld with costs;
the order
made by the
Judge
a
quo
is set aside and substituted with the following.
“
1. The
second defendant is liable to compensate the plaintiff for such
damages as it may establish it has suffered in consequence
of the
collision on 30 June 2005.
2. The
question of quantum is postponed sine die.
3. The second
defendant is ordered to pay the costs of the action to date,
including the costs of the plaintiff in prosecuting
it against the
first defendant.
4. The claim
against the first defendant is dismissed. The first defendant is to
pay his own costs.”
___________________
LAMONT
J
I agree ___________________
BORUCHOWITZ
J
I agree
______________________
KATHREE-SETILOANE
AJ