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[2023] ZAECMKHC 2
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Ngxangexeni v Road Accident Fund (889/2013) [2023] ZAECMKHC 2 (24 January 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE DIVISION, MAKHANDA
CASE
NO: 889/2013
In
the matter between:
VUKILE
NGXANGEXENI
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
ON MERITS
LOWE
J
INTRODUCTION
1.
The plaintiff in this matter instituted
action against defendant claiming damages arising from a motor
vehicle collision which plaintiff
alleges occurred on 28 December
2011 at Mthathi Location, Peddie, plaintiff claiming to have been
knocked down, as a pedestrian,
by a motor vehicle with registration
letters and numbers unknown to plaintiff and driven by an unknown
driver.
2.
It was alleged that the collision was due
solely to the negligence of the driver of the unknown vehicle who
failed to keep a proper
look out, drove it at an excessive speed, in
the circumstances failed to keep the vehicle under proper control and
failing to avoid
the collision when by the exercise of reasonable
care and skill he (or she) could and should have done so.
3.
The plaintiff sustained severe bodily
injuries to say the least, particularly fractures of the left and
right femurs, ankle and
pelvis.
4.
It was pleaded that plaintiff was treated
at Frere Hospital where he was admitted, he claiming damages arising
from the collision
relating to future medical expenses, loss of
earnings and general damages.
5.
Effectively defendant put plaintiff to the
proof of most of the relevant issues.
6.
At a pre-trial meeting reflected in a
minute, the parties agreed that the issue of merits and quantum would
be separated, merits
to be dealt with first and that “
the
court will be requested to determine whether the injuries sustained
by the plaintiff are consistent with motor vehicle injuries.
”
7.
At the commencement of the trial I made a
formal order reflecting the separation of the merits from quantum but
at the trial requested
that the parties make it clear in a minute
exactly what issues were to be separated and determined.
8.
In due course a further minute was
presented at the trial which admitted
inter
alia
:
8.1
That plaintiff was admitted to Frere
Hospital on 30 December 2011 and discharged on 14 March 2012;
8.2
The RAF 1 form completed by Dr. Smyth.
8.3
A summary of plaintiff’s injuries;
8.4
The accident report and attached statement
of plaintiff.
9.
The parties then set out that the issues
for determination were:
“
The
court is called upon to determine whether the injuries sustained by
the plaintiff on 28 December 2011 were as a result of the
plaintiff
being injured in a motor vehicle [collision] by the defendant’s
unknown insured driver as pleaded in the particulars
of claim”.
10.
It was then stated “
Should
the court find that the injuries sustained by the plaintiff are as a
result of the motor vehicle accident as pleaded, then
the defendant
shall be liable for the plaintiff’s proven or agreed damages.”
11.
At the end of the day, accordingly, I was
to determine in the separated hearing on merits the stated issue as
to whether or not
the injuries pleaded and referred to in the
documents were incurred as a result of, or caused by, the motor
vehicle accident alleged
on 28 December 2011.
12.
At the trial, plaintiff gave evidence and
was cross-examined, thereafter plaintiff closing his case. The
defendant contented
itself with cross-examining plaintiff and led no
evidence, closing its case without having done so.
THE
EVIDENCE OF PLAINTIFF
13.
In chief, plaintiff stated that he was
“
bumped by a motor vehicle
”
on a date that he could no longer remember in December 2011. He
said that he was walking on foot along a gravel road
with no road
markings “
on the right side of the
road”
. He said “
I
was only the right side and the motor vehicle was coming on his side,
which is the left side, from the front, and when I saw the
light of
the motor vehicle I swerve
”.
(sic)
14.
He says he swerved to the right as he put
it, so that he was not hit by the motor vehicle which was “
on
the left and I am on the right side
”.
He said that he moved away from the side of the motor vehicle and
then was hit by the vehicle. He confirmed
his injuries in broad
outline stating that the vehicle hit him on the right side of his
body. When asked to create a clearer
picture in chief of what
had happened he confirmed that the vehicle was travelling on the left
hand side of the road and that he
was “
on
the right
”. He clarified
that this was when he was walking on the far right side of the road.
He said “
I think or I am assuming
…. that the driver left his side and he came to my side
”.
He said that he was left lying on the ground where other people
assisted him. In chief again, it was clarified
that when
referring to “
swerving
”
he meant he crossed the road from one side to the other moving from
the side where the vehicle was driving intending to
return to his
original path when the vehicle had passed. He said that his
movement across the road was when the vehicle was
about ten metres
from him. This occurred at approximately midnight on the day in
question, he coming from a family ceremony
on the day.
15.
In cross-examination he said he was on his
way home to go and sleep and that he had consumed some alcohol “
but
not too much”
. He was
walking alone. He confirmed having reported the accident to the
police years later on 14 March 2019 as he said
he did not know he had
to go and report it to the police prior to this. In
cross-examination he said “
I was
walking on the right side, which is the side that we are using when
we are walking on foot, and the motor vehicle is also
coming on the
right side of me.
”
Clarifying he said, “
it is on the
left, according to the driver of the motor vehicle, but to me it is
not on the left side, to me it is on the right
side.
”
16.
He said he saw the lights coming towards
him and when asked “
and you say
you tried to run to the other side of the road”
answered “
immediately when it was
not nearer me I moved to the other side of the road so that it must
not hit or bump me
”. (sic)
17.
He said that he could not move to the right
as there were cliffs on that side and streams.
18.
He was asked “
so
are you trying to say that the vehicle followed you from the right to
the left side?
” he answered
“
I want to say it followed.
”
19.
It was put to him that he did not remember
what had happened on the day and that the cross-examiner did not
think that there was
a motor vehicle that hit him as he alleged.
He said that he could not remember due to the pain but heard from the
people
who came across him what happened.
20.
This last issue was clarified on the
interpretation to reflect that he did not remember what had happened
when he was in pain at
the hospital, but as I understand it, later
remembered being “
bumped
”.
21.
It was finally put by the cross-examiner
that he did not remember what had happened on the day having quite a
lot of alcohol.
He said that he did have alcohol but was not
consuming in a manner as he put it, which would have prevented him
from moving away
from the vehicle. It was put to him finally
that there was not enough evidence to show that he was struck by a
motor vehicle
with which he disagreed.
22.
In re-examination he stated that he
sustained the injuries as a result of being hit by a motor vehicle.
He stated that he
remembered being injured and the cause of that
injury being the collision with the vehicle.
23.
In finally answering questions put by the
court he confirmed that he was walking along the right hand side of
the road in the direction
of his home and that a vehicle was coming
towards him on that driver’s left side of the road. He
clarified that he
was walking on the right hand side of the road on
the edge of the road and that the vehicle coming towards him was on
the same
side as him. He said then he moved away to the left
side of the road across the road. He said he could not go to
the
right there being no pavement and there being a drop of a
considerable distance on his right down to the water.
THE
PROPER APPROACH TO THE EVIDENCE AND THE ISSUE TO BE DECIDED
24.
As
stated in
Chuma
v Road Accident Fund
[1]
the
Court pointed out
that the resolution of civil disputes turns on the probabilities of
the competing versions.
25.
In this matter there is only one version.
That does not mean, of course, that plaintiff’s version must
inevitably be
accepted.
26.
There
is no obligation on a court to accept an improbable explanation of
events merely because no other positive explanation is
presented, or
that the alternative seems to the court to be even less probable.
[2]
27.
As pointed out in
Van
Meyeren
(
supra
)
at paragraph [13] “
the fact that
the judge did not feel able to reject their evidence did not mean
that he was obliged to accept it. The issue
was whether on a
balance of probabilities theirs was the only explanation for the dogs
escaping. Unless that conclusion could
be reached Mr. Van
Meyeren did not discharge the onus of proof and the defence should
have failed.
”
28.
In this matter, applying this reasoning
this is of course clear that there is no obligation upon me to accept
the evidence of plaintiff
if this is an improbable explanation as to
what occurred simply because it is not challenged in other evidence
by the defendant
the issue being whether plaintiff’s version is
acceptable on a balance of probabilities.
29.
In
National
Employers General Insurance Co. Ltd v Jagers
[3]
it was stated as follows:
“
It
seems to me, with respect, that in any civil case, as in any criminal
case, the onus can ordinarily only be discharged by adducing
credible
evidence to support the evidence of the party on whom the onus
rests. In a civil case the onus is obviously not
as heavy as in
a criminal case, but nevertheless where the onus rests on the
Plaintiff as in the present case, and where there
are two mutually
destructive stories, he can only succeed if he satisfies the court on
a preponderance of probabilities that his
version is true and
accurate and therefore acceptable, and that the other version
advanced by the Defendant is therefore false
or mistaken and falls to
be rejected. In deciding whether that evidence is true or not
the court will weigh up and test the
Plaintiff’s allegations
against the general probabilities. The estimate of the
credibility of a witness will therefore
be inextricably be bound up
with a consideration of the probabilities of the case and if the
balance of probabilities favour the
Plaintiff, then the court will
accept his version as being 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 do the
Defendant’s, the Plaintiff can
only succeed if the court
nevertheless believes him and is satisfied that his evidence is true
and that the Defendant’s version
is false.”
[4]
30.
In
SFW
Group (supra)
the following was
said which is relevant to this evaluation of a witness even though
here there is only one version:
“
[5]
On the central issue, as to what the parties actually decided, there
are two irreconcilable versions.
So, too, on a number of
peripheral areas of dispute which may have a bearing on the
probabilities. 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 facts 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.”
31.
One must of course have regard to a
conspectus of all the evidence. Probabilities must be
distinguished from conjecture and
speculation, within the four
corners of the proved facts.
32.
Even
in respect of a witness who has been mendacious this does not
necessarily warrant the rejection of the evidence in its entirety
as
false. It is permissible to either accept or reject the
evidence of a witness who has lied previously or in relation to
a
particular aspect of fact. As pointed out in Principles of
Evidence
[5]
, everything depends
on the particular circumstances of the case.
THIS
MATTER
33.
In assessing the probabilities of
plaintiff’s version, bearing in mind that the only issue which
arises for my determination
relates to whether plaintiff’s
injuries (which are essentially admitted) arose from a motor vehicle
collision, and not some
other cause, it is relevant to repeat that it
was common cause, having been admitted, that plaintiff indeed
sustained injuries
of the nature already set out above, and admitted,
relevant to the fractures of his right ankle and femurs amongst
others on 28
December 2011, he being admitted first to a hospital in
Peddie and thereafter to Frere hospital where he was held, being
treated
until being discharged months later on 14 March 2012.
34.
It is also apparent from the evidence, not
challenged, that the plaintiff was found by passers-by on the side of
the road where
he alleges the accident occurred.
35.
In the Rule 37 minutes defendant admitted
the accident report and witness statements in the trial bundle which
reflected an accident
having occurred at the alleged residential area
in Peddie on the date in question at 22h00. The witness
statement referred
to an accident on the day and time in question at
the place referred to in the pleadings and referring to his having
been travelling
on the road in question, as he put it, and hearing
that something hit him causing him to fall down. This refers to
people
finding him in that place and assisting him to go to hospital.
36.
Against this background there can be no
doubt at all that plaintiff was severely injured in a manner which
would amongst other possible
causes certainly be consistent with
injuries that could have been caused in a collision between a motor
vehicle and a pedestrian.
37.
It cannot, on the evidence, be rejected
that he was found at the place close to the road in question and
accordingly on the probabilities
the injuries which were severe would
have been caused at or around that location or in its immediate
vicinity.
38.
Whilst the plaintiff’s evidence was
by no means a model of clarity, on the proper approach thereto it
would seem to me to
be in accordance with the probabilities that he
having walked along the right hand side of the road saw a vehicle
approaching him
on its correct side of the road, its left hand side,
and that plaintiff being right on the edge of the road and not being
able
to move to the right out of the way, crossed the road in front
of the motor vehicle and was struck accordingly. Whilst the
plaintiff was somewhat uncertain in his evidence, which required to
be clarified, I most certainly did not gain the impression
in any way
that he was mendacious. Viewed against the probabilities the
evidence relevant to the issue that I am asked to
decide gained in
reliability.
39.
The evidence judged against the
probabilities, it would seem to me, supports plaintiff’s
version and in the absence of any
contradictory explanation for the
injuries it accords with the probabilities that his injuries were
caused in a collision with
a motor vehicle.
40.
As
was pointed out above the general rule is that he /she who asserts
must prove. In this case then plaintiff must prove the
necessary in respect of the issue that has been placed before me that
is that the injuries sustained were consistent with what
would have
occurred to a pedestrian in a motor vehicle collision. Put
differently, there is only one enquiry namely whether
the plaintiff,
having regard to all of the evidence in the case, has discharged the
onus of proving, on a balance of probabilities,
(in this matter),
that the injuries relate to a motor vehicle collision.
[6]
41.
Put
differently, at the end of the trial, after all the evidence
presented has been called and tested, the Judge has simply to decide
whether as a matter of inference or otherwise, he concludes on a
balance of probabilities that the plaintiff was, (in this matter),
injured by a motor vehicle, the injuries being consistent
therewith.
[7]
42.
In
this matter, plaintiff’s evidence must be considered, as set
out above, against the probabilities, and once there is an
inference
that the injuries were caused in a motor vehicle collision and in the
absence of controverting evidence, it not being
necessary for the
plaintiff to prove that the inference that the injuries were caused
by a motor vehicle collision was the only
reasonable inference, it
sufficing for him to convince the court that the inference for which
he advocates is the most readily
apparent and acceptable inference
from a number of reasonable inferences. That being so, the
defendant failing to adduce
any evidence whatsoever took the risk of
judgment being granted against it once the initial inference was
established.
[8]
43.
In my view, having regard to plaintiff’s
evidence, however unclear it may be said to have been, it is
established by the common
cause facts that plaintiff sustained the
injuries adverted to, these being very severe and most certainly
consistent with such
injuries as could have been caused by his having
been struck by a motor vehicle. There is no suggestion that he
was not found
in the vicinity of the road that night by others, and
that he was at that stage in an injured condition, and certainly such
a condition
that he would have been unable to move from the place
where he was found to any real extent. There is simply no other
probable
inference that could be drawn relevant to the manner in
which he was injured in the circumstances of the evidence and the
common
cause facts, and however lacking his evidence may have been in
clarity, there was more than sufficient, in my view, to establish
that the injuries sustained by plaintiff on 28 December 2011 were as
a result of plaintiff being injured in a motor vehicle accident,
he
being struck by an unknown motor vehicle with unknown driver as
pleaded in the particulars of claim. This also accords
with
plaintiff’s evidence.
44.
In the result:
44.1
The answer to the question posed for my
determination is to be adjudicated in plaintiff’s favour.
44.2
The defendant is thus held liable for
plaintiff’s proven or agreed damages as per the agreed minute.
ORDER
45.
In the circumstances the following order
issues:
1.
The merits referred to in the pleadings
between the parties are determined in plaintiff’s favour;
2.
It is declared that the injuries sustained
by plaintiff on 28 December 2011, were as a result of plaintiff
having been injured in
a motor vehicle collision, the motor vehicle
concerned being unknown and driven by an unknown insured driver.;
3.
The defendant is held liable for
plaintiff’s proved or agreed damages;
4.
The issue of the determination of those
proved or agreed damages is to stand over for determination in
further proceedings on trial.
5.
The plaintiff’s claim on the merits
thus succeeds, the defence on the merits being dismissed with costs.
M.J. LOWE
JUDGE
OF THE HIGH COURT
Appearing for Plaintiff:
Adv. D. Skoti,
instructed
by Mjamba Attorneys, c/o Yokwana Attorneys,
Grahamstown.
Appearing
for Defendant: Ms. V. Jeram
instructed
by State Attorneys,
East
London.
Date
heard: 28 November 2022.
Date
delivered: 24 January 2023.
[1]
High
Court of South Africa, Gauteng Division, Pretoria, case no
20414/2016; Crutchfield AJ
[2]
Van
Meyeren v Cloete
2021
(1) SA 59 (SCA).
[3]
1984
(1) SA 437
(ECD) 440 – 441: of course here there are not two
mutually destructive versions.
[4]
See
also:
SFW
Group (supra)
.
[5]
Schwikkard,
Juta, 4
th
Edition, § 30 4
[6]
Goliath
v MEC for Health
2015
(2) SA 97
(SCA) at [8] and [11].
[7]
Goliath
(
supra
)
[18].
[8]
Goliath
[19].