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[2022] ZAFSHC 10
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Walsh v Botha (A97/202) [2022] ZAFSHC 10 (26 January 2022)
SAFLII Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT
OF SOUTH AFRICA
FREE STATE
DIVISION, BLOEMFONTEIN
Case No: A97/2021
In
the matter between:
RICHARD
N. WALSH
APPELLANT
and
JOHANNA
A. E. BOTHA
RESPONDENT
CORAM
:
CHESIWE
J
et
MATSHAYA AJ
JUDGMENT BY
:
MATSHAYA
AJ
HEARD ON
:
17
JANUARY 2022
DELIVERED
ON
:
26 JANUARY 2022
INTRODUCTION
[1]
The Appellant was unsuccessful in his claim for damages in the
Magistrate’s
Court, sitting at Parys. He sued the Respondent
for damages arising out of a motor vehicle collision. In the court
a
quo
, the matter concerned the adjudication of the merits only. He
now appeals against that judgment.
THE PARTIES
[2]
The Appellant is Mr Richard Walsh, an adult male person residing at
397 River Bend
Road, Vaal De Grace Golf Estate, Parys. He is the
owner of a BMW 3 series with registration number [….]. He was
legally
represented by Mr Du Plessis during the trial. The Respondent
is Ms Johanna Botha, an adult female person residing at Die Plaas
Grootfontein, Potchefstroom. She is the owner of a Nissan SUV with
registration number [….]. She was legally represented
by Mr
Kritzinger during the trial and appeal hearing.
FACTUAL MATRIX
[3]
On 26 April 2016 at about 18h20 the Appellant had parked his motor
vehicle a BMW 3
series on the side of the road at Bree Street, Parys
and entered inside Steers restaurant to order take aways. Shortly as
he was
still waiting for his order, he heard a bang outside and went
out. He noticed that the Respondent’s car, the Nissan SUV
described
above, had collided with his BMW. The Respondent came out
of her car and informed the Appellant that she did not remember what
had happened and apologised to him. The Appellant subsequently sued
her for his alleged damages which claim was dismissed by the
court
a
quo
.
THE JUDGMENT OF THE
COURT
A QUO
[4]
The court
a quo
upheld the Respondent’s defence of
automatism that she had suffered a black-out during the time of the
collision. It reasoned
that the Respondent could therefore, not be
held liable for her involuntary act of colliding with the Appellant’s
motor vehicle
and consequently, held that the Appellant had failed to
prove on a balance of probabilities that the Respondent had acted
voluntarily.
THE GROUNDS FOR APPEAL
[5]
The grounds of appeal as extracted
verbatim
from the notice of
appeal are as follows:
“
5.1
The Learned Magistrate erred in finding on a balance of probabilities
that the Respondent (Defendant) acted
involuntarily and dismissed the
claim of Appellant;
5.2
The Learned Magistrate erred in making his ruling on the evidence of
the Respondent alone and not expecting
the Respondent to provide
medical evidence to prove that she acted involuntarily;
5.3
The Learned Magistrate erred in accepting the words; “...ek kan
nie onthou wat gebeur het nie”
(I cannot remember what
happened) as sufficient and enough to rule that the complainant acted
involuntarily even though she can
remember exactly what happened just
before the collision and also remember exactly what happened just
after the collision;
5.4
The learned Magistrate erred in finding that the Respondent did
discharge the evidence onus without leading medical evidence with
sufficient cogency to raise the defence in question as a realistic
issue; and
5.5
The Learned Magistrate erred in not finding that it was necessary
for the Respondent to lead expert evidence that could provide a
reason for the sudden “memory loss” by the Respondent.”
ASSESSMENT OF EVIDENCE
ON APPEAL
[6]
It is trite that when an appeal is lodged against a trial court’s
finding of
fact, the appeal court takes into account that the court
a
quo
was
in a more favourable position than itself to form a judgment because
it was able to observe witnesses during their questioning
and was
absorbed in the atmosphere of the trial from start to finish.
[1]
That notwithstanding, it thus stands to reason that the appeal court
will not always submit to the lower court’s findings,
for this
would mean that the right of appeal against such findings would be
illusory.
[2]
FACTS THAT ARE COMMON
CAUSE
[7]
The following facts are not in dispute:
7.1
That on 26 April 2016 the Respondent was the driver of the Nissan SUV
with registration number [….]
7.2
That on the said date, the Respondent drove the said vehicle at Bree
Street,
Parys and collided with the Appellant’s BMW vehicle
that was stationary; and
7.3
That shortly after the collision, the Respondent alighted from her
motor
vehicle and apologised to the Appellant and informed the
Appellant that she did not know what had happened.
ISSUES IN DISPUTE
[8]
The following aspects are in dispute:
8.1
Whether the court
a quo
erred in sustaining the Respondent’s
defence of automatism without medical or expert evidence;
8.2
Whether the court
a quo
erred by not invoking the
maxim
Res Ipsa Loquitur
and find that the Respondent was negligent;
8.3
Whether the Appellant had succeeded to discharge the onus that rested
upon him
to prove on a balance of probabilities that the Respondent
acted voluntarily and thus, negligently; and
8.4
In general, whether the defence of automatism can succeed in the
absence of
medical or expert evidence to support it.
THE DEFENCE OF
AUTOMATISM
[9]
Even though the following is a criminal case, the principle
enunciated therein pertaining
to the defence of automatism finds
relevance here. In
Humphreys
[3]
,
the court stated the following:
“
When
the defence of automatism is raised, the onus is on the State to
establish the element of voluntariness beyond reasonable
doubt...However, as was pointed out in Cunningham, the State is
assisted (in discharging this onus) by the inference dictated by
common experience that a sane person who becomes involved in conduct
which attracts the attention of the criminal law ordinarily
does so
consciously and voluntarily. In order to disturb this natural
inference, an accused person who seeks to rely on the defence
of
automatism is thus required to establish a factual foundation,
sufficient at least to raise reasonable doubt as to the voluntary
nature of the alleged criminal conduct.”
[10] Further, “…
a
defendant's involuntary act does not give rise to
delictual
liability
(see
Neethling
et
al Deliktereg
3rd
Ed at 24-26
).
Defences based on automatism have to be scrutinised with great care
but this requirement has no bearing on the question of
onus
.
However, in
The
Government v Marine and Trade Insurance Co Ltd
1973
(3) SA 797
(D)
,
James JP expressed the view (at 799 A-B) that the
onus
was
on defendant insurance company to establish that the driver of the
insured vehicle had suffered a black-out which resulted in
his being
unable to manage and control the car that he was driving. This
condition, the learned Judge went on to say; amounts to
a defence of
automatism and in my opinion it is for the defence to establish the
existence of this state of affairs on a balance
of probabilities”.
[4]
[11]
Although the plaintiff’s onus to prove her case on a
preponderance of probability does not shift, the establishment
of
a
prima
facie
case
coupled with the invoking of the defence of automatism by the
defendant, the material essence of which reposes within the driver’s
personal knowledge, places an evidential burden on the defendant to
adduce and tender rebuttal evidence which negatives the
prima
facie
case
of negligence.
[5]
[12]
Proof of a sudden blackout raises the question whether there
was conduct on the part of the defendant.
[6]
ONUS
OF PROOF
[13] In a case
like the present where the Respondent (Defendant) raised the defence
of automatism, the onus still rests on
the Appellant (Plaintiff) to
prove on a balance of probabilities the voluntariness of the
Respondent’s actions which gave
rise to a
delict,
in
order to succeed on his claim. Once the Plaintiff establishes a
prima
facie
case of negligence, the Defendant must then lead evidence
that lays a factual foundation to prove the cogency of his defence.
ANALYSIS
[14] Counsel for
the Appellant submitted that the
maxim
,
Res
Ipsa Loquitur
finds
application in this case in that the conduct of the Respondent of
colliding with a stationary vehicle that was parked on a
parking bay
prima
facie
indicates
negligence on her part. This implies that the facts of the case
indicate negligence where the proven facts are the only
available
evidence.
[7]
I find merit on
this argument. This then creates an
onus
on the part of the
Respondent to explain her alleged involuntary conduct particularly
that she is the only one who can testify about
her state of mind
during the time of the collision. On this aspect, the Respondent
merely explained that she could not remember
what had happened. She
then explained a long day that she had at work and that she did not
even have lunch thereby trying to explain
her black-out.
[15] The
Respondent testified that upon her arrival at home post the
collision, as a professional nurse herself, tested her
blood pressure
and sugar (presumably glucose) levels and found them to be normal.
Her employer who was a medical doctor also performed
the same tests
the following morning and found everything normal. As a starting
point, the court
a
quo
erred
in allowing the hearsay evidence as tendered by the Respondent during
the trial pertaining to the doctor’s findings
because the said
doctor did not testify since he had since passed away.
[8]
[16] Furthermore,
it seems from the record that the court
a quo
placed undue
weight to the Respondent’s testimony pertaining to the medical
tests she performed unto herself upon her arrival
at home. This
should not have been the case hence Mr Kritzinger who appeared for
the Respondent even conceded that the Respondent
was not an expert in
the medical sphere.
[17] This now brings us
to the acceptance of the Respondent’s defence of automatism
without supporting evidence. Counsel for
the Appellant submitted that
the court
a quo
(like this court) does not know what a
black-out is within the context of this case, what are its symptoms
and what causes it,
thereby trying to criticise the acceptance of the
Respondent’s defence without supporting medical or expert
evidence to support
it.
[18] In
Sibeko
[9]
,
the court went further and stated the following:
“
The
mere assertion that the driver experienced a black-out at the time of
the collision, that consequently, she was not in control
of her
faculties and volition, does not per se suffice to rebut
the prima facie case of negligence. The defendant
is
enjoined in discharging the evidence onus to tender evidence either
through a medical or other expert which will have sufficient
cogency
to raise the defence in question as a realistic issue and from which
it may be shown or reasonably be inferred on all the
evidence and
probabilities that the driver suffered a sudden unexpected black-out
which resulted in her temporary loss of consciousness,
thus rendering
her actus reus involuntary.”
[19]
I cannot agree more with the above sentiments especially in
view of
inter alia
, the following:
19.1
The Respondent’s state of mind is best known to her during the
time of the collision;
19.2
If such a defence were to be accepted solely on the basis of the
Defendant/Respondent’s word only without
more, it would be
subject to abuse;
19.3
The
law would fail to protect innocent victims of accidents from
negligent drivers who would find easy refuge under the guise of
‘blackout’.
[20]
It would be remiss of me not to deal with the Respondent’s
conduct shortly before and after the collision in view
of
Cunningham
[10]
where the court stated the following:
“
But ultimately
it is for the court to decide the issue of the voluntary nature or
otherwise of the alleged act and indeed the accused's
criminal
responsibility for his actions. In doing so it will have regard not
only to the expert evidence but to all the facts of
the case,
including the nature of the accused's
actions
during the relevant period
.”
[21] In
casu
, the
following observations pertaining to the Respondent’s conduct
shortly before and after the collision are very crucial:
20.1
The Respondent testified that she drove a distance of about 39
kilometres from her workplace in Sasolburg
until the point of
collision in Parys without causing an accident;
20.2
Further, it is her testimony that shortly before the scene of this
collision there is a 4 way
stop where she stopped and waited for a
car that was approaching from her right hand side to pass after which
she drove off;
20.3
She remembered engaging the second gear as she was in the process of
driving away. This was when
all of a sudden she lost her
consciousness;
20.4
Shortly after the collision the Respondent regained her consciousness
and alighted from her car,
apologised to the Appellant and gave an
explanation for the accident like any other normal person would do;
20.5
She had the consciousness to phone her husband to come and fetch her
which was another logical
thing to do in the circumstances; and
20.6
Later, when she arrived at home she checked her blood pressure and
sugar levels.
[22] In my view,
the above conduct was consistent with that of a normal person
especially in the absence of medical/expert
evidence suggesting
otherwise.
[23] In addition to the
above, the Respondent was a professional nurse with 18 years-
experience at the time. It seems from the
record that she was not
bothered by the fact that she had a black-out whose cause she did not
know and yet she never performed
any blood tests to investigate at a
professional level what was the cause of her alleged ‘black-out’
during the evening
in question. This was crucial in the sense that
had those tests detected an underlying medical condition then it
would be attended
to so as to eliminate the risk of another black-out
whilst driving. Such conduct by her is inconsistent with
probabilities.
[24] The above conduct in
my view, in the absence of medical or expert evidence to suggest
otherwise, leads me to only one reasonable
inference that the
Respondent acted voluntarily and failed to keep a proper lookout as
alleged by the Appellant in his particulars
of claim hence she caused
the collision negligently so.
CONCLUSION
[25]
In view of the above, the trial court misdirected itself when it
sustained the Respondent’s defence of automatism without
medical or expert evidence to support it. Further, it erred by
attaching undue weight to the testimony of the Respondent regarding
the medical tests that she conducted on herself post the collision.
Further, it erred by not invoking the maxim of
Res Ipsa Loquitor
and consequently, erred by finding that the Appellant had failed to
discharge the onus that rested upon him that is, to prove that
the
Respondent acted voluntarily. In my view, it follows that the appeal
should succeed with costs.
[26]
Therefore, I propose the following order:
ORDER
1.
The
appeal is upheld with costs;
2.
The
order of the Magistrate dismissing the Appellant’s claim is set
aside and replaced with the following:
“
Plaintiff’s
claim on the merits succeeds with costs and the Defendant is liable
for the damages sustained by the Plaintiff”;
3.
The
matter is remitted to the Magistrate for the adjudication of quantum.
M.M.
MATSHAYA AJ
I
concur.
C. CHESIWE J
APPEARANCES:
Counsel
for the appellant:
Adv.
R Van Wyk
Instructed
by:
SJ
Du Plessis Attorneys
c/o
Hill McHardy & Herbst Inc.
07
Collins Road
Arboretum
Bloemfontein
Counsel
for the respondent:
Adv.
AR Kritzinger
Instructed
by:
HJ
Bedenhorst Attorneys
c/o
Honey Attorneys
Northridge
Mall
Kenneth
Kaunda Road
Bloemfontein
[1]
Schmidt
& Rademeyer, Law of Evidence, Lexisnexis ed para 3.3. See also R
v Dhlumayo
1948 (2) SA 677
(A) para 3 and 4 and
S
v Monyane and Others
2008
(1) SACR 543
(SCA)
at
para 15.
[2]
Protea Assurance Co LTD v Casey
1970 (2) SA 643
(A) at 648D-E.
[3]
Humphreys v The State (424/12)
[2013] ZASCA 20
(22 March 2013), para
9.
[4]
Molefe v Mahaeng
[1998] ZASCA 81
;
1999 (1) SA 562
(SCA), para 13.
[5]
Sibeko
v Road Accident Fund (43241/08) [2012] ZAGPJHC 43 (28 March 2012),
para 10.
[6]
HB Klopper: The Law of Collisions in South Africa, 8
TH
edition, page 118.
[7]
Sardi v Standard & General Insurance Co LTD 1977 (3) SA 776 (A).
[8]
For definition of hearsay evidence, see Schwikkard & Van Der
Merwe: Principles of Evidence, 3
rd
edition, page 269, para
13.1.
[9]
Supra, para 11.
[10]
S v Cunningham
1996 (1) SACR 631
(A). My underlining.