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[2010] ZAGPPHC 631
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Simpson v First Rand Limited and Another (54980/08) [2010] ZAGPPHC 631 (25 March 2010)
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Certain
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IN
THE NORTH GAUTENG HGH COURT
(HELD
AT PRETORIA)
CASE
NO: 54980/08
DATE:
25 MARCH 2010
In
the matter between:
SIMPSON,
JOHN
BERTHOLD
.......................................................................................................
PLAINITFF
And
FIRST
RAND BANK
LIMITED
......................................................................................
FIRST
DEFENDANT
VAN
DER LINDER, ANDRIES I
M
...........................................................................
SECOND
DEFENDANT
JUDGMENT
TOLMAY
J
:
This
is an action for damages emanating from a motor vehicle collision
that occurred on 22 November 2006 between a Honda CRV with
registration number V[....] driven by plaintiff and an Astra with
registration number R[...] driven by second defendant, acting
within
the course and scope of his employment with the first defendant.
The
issues of
locus
standi
and
quantum were agreed between the parties and the only issues that need
to be determined by me are the merits of the plaintiff’s
claim
and defendant’s counterclaim.
It
is common cause between the parties that on the evening of 22
November 2006 and on the N14 roadway in the vicinity of Francis
Road,
Muldersdrift, a partial head-on collision occurred between the
vehicles driven by plaintiff and second defendant respectively.
The
damage to the respective vehicles emanated from the collision between
the aforementioned motor vehicles. Prior to the collision
the
plaintiff was driving eastwards i.e. away from Magaliesburg and the
second defendant was driving westwards i.e. in the general
direction
of Magaliesburg.
The
respective versions of the plaintiff and the second defendant are
that the other party crossed the middle of the road, crossing
into
the other party’s side of the road, and that the collision
occurred as a result of such negligent cross over.
The
versions of the plaintiff and the second defendant were that each of
them, was respectively the innocent party.
It
is clear from the respective versions of the parties that their
versions are mutually destructive.
On
behalf of the plaintiff, three witnesses were called, Mr Clinton
Proctor, a tow truck operator, the plaintiff and Helen Whitecross
Simpson, the wife of the plaintiff who was a passenger in the car of
the plaintiff at the time of the accident.
Mr
Proctor, testified that he arrived on the scene shortly after the
accident. He testified that the plaintiff and his wife as well
as the
defendant were still in their respective vehicles at the time when he
arrived on the scene. His testimony was that the second
defendant got
out of his vehicle and smelled of alcohol. Due to the uncontested
evidence of constable Nawane and second defendant
I disregard Mr
Proctor’s evidence.
The
plaintiff testified that he and his wife were coming from a school
concert of their grandchildren at Magaliesburg. They were
traveling
in an eastward direction from Magaliesburg. Plaintiff was entering a
bend in the road when the lights of a vehicle blinded
him. He
testified that the vehicle was in his lane right in front of him. He
took an evasive swerve to the right in order to try
and avoid
colliding with the vehicle but could not avoid the collision.
According to him the collision occurred in the middle of
the road,
but he was not sure of the exact point of impact. His vehicle was hit
on the front left hand side i.e the passenger’s
side.
Mrs
Simpson, the wife of the plaintiff testified that they were traveling
along the road from Magaliesburg when all of a sudden
a vehicle
appeared in their lane directly in front of them. The plaintiff
swerved towards his right in order to try and avoid the
accident. She
also testified that the second defendant also swerved to the right
and that the two vehicles collided. According
to her the point of
impact was close to the middle of the road in the right hand lane.
She testified that as a result of the bend
in the road they didn’t
see the oncoming lights approaching before it appeared in front of
them.
She
testified that the bend in the road was sharp and she only became
aware of the lights when it came around the corner. There
are also
certain chevron signs at the bend which indicate a rather sharp bend
in the road.
On
behalf of the defendants constable K I Nawana of the South African
Police Services, as well as the second defendant testified.
Constable
Nawane attended the scene of the accident on the night in question.
He testified that he was called out to the scene of
the accident.
When he arrived there the second defendant was sitting in his car and
was struggling to speak. He then went to the
plaintiffs vehicle and
was with them when the ambulance arrived. He drew a plan of the
accident and indicated the point of impact
as close to the middle of
the road in the right hand lane, i.e the lane in which the second
defendant was driving.
The
second defendant testified that he was traveling westwards and
observed a vehicle approaching from the front with its headlights
on.
When the approaching vehicle was in very close proximity to his
vehicle, the approaching vehicle suddenly veered over to his
side of
the road. He had no opportunity to react in order to attempt to avoid
the collision. His vehicle had been struck (from
the driver's
perspective) from just to the left of the right headlamp across the
face of his vehicle. According to the second defendant
the plaintiff
had suddenly and negligently, crossed over into the second
defendant’s part of travel for no apparent reason.
I
have to determine, whether on a balance of probabilities, the
essential features of a witness’s evidence was true: See
Santam
BPK vs Biddulphs
2004 (5) SA 586
(SCA) at 592 B-C,
where
the following was stated:
“
the
proper test is not whether a witness is truthful or indeed reliable
in all that he says, but whether on a balance of probabilities
the
essential features of the story which he tells are true.”
In
this instance I am confronted with two mutually destructive versions.
In circumstances such as these I must decide the matter
solely on
probability. If I find that the probabilities satisfy me one way or
the other, I am justified to make a finding to that
effect. If,
however there are no probabilities one way or the other I must be
satisfied upon adequate grounds that the story of
the litigant upon
which the
onus
rests
is true and the other false. See
National
Employers Mutual General Insurance Association v Gany
1931 (1) AD 187
at 199; National Employers General Insurance v Jagers
1984 (4) SA 437
(ECD) at 440 A-B
In
Stellenbosch
Farmers Winery Group Ltd & Another v Martell et Cie and
Others
2003 (1) SA 11
(SCA) at 14 J - 15 E
the
following was stated:
“
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 other
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 findings 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.”
It
is common cause that the accident occurred near the middle of the
road in the right hand lane. The point of impact correlates
on the
probabilities with both versions. The same applies to the damage on
the vehicles. The vicinity where the collision occurred
is around a
bend in the road. The photographs indicate a rather sharp bend in the
road this is also confirmed by the chevron signs
which could explain
the plaintiff’s version. On the other hand it is also probable
that plaintiff erroneously thought that
second defendant was in his
lane and suddenly veered into the right hand lane and in so doing
collided with the second defendant.
The
plaintiff, Mrs Simpson as well as second defendant were satisfactory
witnesses and there is nothing to indicate that I should
prefer the
one version to the other. The plaintiff carries the onus on the claim
and second defendant carries the onus on the counter
claim.
Consequently
neither plaintiff nor second defendant discharged their respective
onus. In the light of the aforesaid I have no other
choice but to
grant absolution of the instance on both the claim and the counter
claim.
In
the light of my finding the only reasonable order is to order that
each party pay its own cost.
Consequently
the following order is made:
Absolution
of the instance is granted on the claim and the counterclaim. Each
party is to pay his or her own costs.
R
G TOLMAY
JUDGE
OF THE HIGH COURT
JOHN
BERTHOLD SIMPSON
Vs
FIRST
RAND BANK LIMITED
A
I M VAN DER LINDEN
CASE
NO: 54980/08
BEFORE:
THE HON MS JUSTICE TOLMAY
Attorneys
for Plaintiff:
Alex
Bosman Attorneys
105
Garsfontein Road
ALPHEN
PARK
PRETORIA
REF:
MR A BOSMAN/TL/JP/A2427
Advocate
for plaintiff:
ADV
C R VAN ONSELEN
Attorneys
for Defendants:
MOLEFE
KNIGHT ATTORNEYS
C/O
H B MOLEFE ATTRORNEYS
SUITE
403, 4™ FLOOR
RENTBEL
BUILDING
BUREAU
LANE
CHURCH
SQUARE
REF:
MR I KNIGHT/LL/MSA 115
Advocate
for defendants
ADV
A JACOBS (JHB BAR)
DATE
OF HEARING: 12 MARCH 2010
DATE
OF JUDGMENT: 25 MARCH 2010