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[2021] ZAMPMBHC 56
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Khumalo v Road Accident Fund (230/2019) [2021] ZAMPMBHC 56 (18 November 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE
NO: 230/2019
REPORTABLE: NO
OF INTEREST TO OTHER
JUDGES: YES
REVISED: YES
18/11/2021
In
the matter between:
THULANI
ALEX
KHUMALO
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MASHILE
J:
INTRODUCTION
[1]
On 1 July 2018, the Plaintiff, as a pedestrian, was allegedly
involved in a motor
vehicle collision with an unidentified vehicle
driven by an unknown driver. In consequence of the collision, the
Plaintiff claims
to have suffered injury to his right hand shoulder
and chin. He instituted this damages action against the Defendant
believing
that the collision has left the latter vulnerable to be
sued for damages arising from the manner in which it occurred and the
ensuing
injuries. The claim comprises general damages and loss of
earning capacity. The Defendant has not defended the claim and was
not
in Court on the date of hearing.
[2]
The particulars of claim describe his injuries as follows:
2.1
Head injury, with associated loss of consciousness and initial GCS of
13/15;
2.2
Deep Laceration on the Chin;
2.3
Dislocation of the Right Acromioclavicular Joint, with Crush
Syndrome;
2.4
Multiple soft tissue injuries; and
2.5
Shock and psychological trauma.
[3]
The Plaintiff did not apply for separation of issues as intended in
Rule 33(4) of
the Uniform Rules of Court. Thus, the questions of
liability and quantum were heard simultaneously. The Plaintiff was
the only
witness who testified on his own behalf on the issue of
liability while various experts gave evidence on quantum. The
evidentiary
material before Court consisted of oral and documentary
testimony. Depending on the outcome of liability, the Court may or
may
not proceed to assess quantum. If this Court is not satisfied
that on a balance of probabilities the Plaintiff has failed to
demonstrate
that the unknown driver of the unidentified vehicle was
responsible for the collision, it will dismiss the claim and that
will
be the end of the road for the Plaintiff.
EVIDENCE
ON LIABILITY
[4]
Here the evidence of the Plaintiff was key to deciding the case. He
testified that
he is a 43-year-old man who was then in the employ of
Hitec Security in Mbombela. It was at approximately 17:30 on 1 July
2018
while on his way to work when he collided with an unidentified
motor vehicle. The collision happened at a traffic lights controlled
T-junction of
Mashishing
(R37) and Madiba (R40) Roads. Madiba Roads has two lanes
flowing into a southerly direction and two into the opposite
direction.
[5]
He testified that he was crossing Madiba Road from BP Filling Station
towards Volvo, which
he said is situated on the opposite side of the
filling station. In other words, he was walking in Mashishing Road
into an easterly
direction crossing Madiba Road. He said that he
successfully crossed the two lanes of motor vehicles travelling
towards Riverside
(into a northerly direction). He again crossed the
first lane of motor vehicles travelling into a southerly direction
but when
he was a metre or so before completing crossing the second
lane of motor vehicles travelling into a southerly direction, the
unidentified
motor vehicle collided with the left-hand side of his
body specifically his lower limbs.
[6]
He confirmed that when he commenced crossing Madiba Road the traffic
lights at the
intersection were green for both motor vehicles and
pedestrians travelling into an easterly direction. As a result of the
impact
on his left-hand side of the body, he fell to the ground on
his right shoulder. The collision resulted in him sustaining injuries
to his right-hand shoulder and abrasions on his chin. He stated
further that he remembered waking up in hospital the following
day.
[7]
The Court posed questions to him to establish precisely where and how
the collision
happened. The first question that the Court asked was
why he crossed the road. His answer was that the traffic lights at
the intersection
were green for him. Asked whether or not he looked
to his left-hand and right-hand sides prior to crossing the road, he
said that
he did. When asked whether or not he saw any cars, he
stated that there were no vehicles approaching. The obvious question
was,
where then did the vehicle that collided with him come from? He
confirmed that it had come from the Riverside direction. In other
words, it was a vehicle that was travelling in Madiba Road into a
southerly direction.
[8]
The Court asked why he did not see it. His answer was that he did not
look at all
because he noticed that the traffic lights were green for
him. The next question for clarification was where precisely on his
body
was the impact with the vehicle. He stated that the impact was
on his lower limbs more particularly, his left lower leg. He claimed
that he had abrasions as proof of contact with the vehicle. The Court
told him that it could not find any proof of such from the
medical
records. He then said that his trousers were even torn at the bottom.
This concluded his evidence and it marked the end
of the Plaintiff’s
case.
ISSUES
[9]
What stands for decision from the evidence levied before Court on
liability is firstly,
whether or not there was a pedestrian motor
vehicle collision, the unknown driver of the unidentified vehicle
drove negligently
and that such negligent driving caused the
collision. If he did, the Plaintiff must succeed with his claim. On
the contrary, if
he did not, the Plaintiff must fail.
LEGAL
FRAMEWORK
[10]
It is common cause that the
Plaintiff bears the onus of establishing that the driver of the
insured driver was not only negligent
but that such negligent act
caused the harm or loss. It was in that context that
Innes
CJ
held as follows
in
Van Wyk v Lewis
1924 AD 438
at
page 444:
“
The
general rule is that he who asserts must prove. A plaintiff therefore
who relies on negligence must establish it
.”
[11]
In
Van Eden v Minister of Safety and Security (Woman’s Legal
Centre Trust, as amicus curiae)
2003 (1) SA 389
(SCA) ([2002]
4 All SA at 346)
paragraphs 9 and 10 the test for determining
wrongfulness or otherwise of an omission or failure to act within the
context of an
action for delictual damages was set out as follows:
“
[9]
… and omission is wrongful if the defendant is under a legal
duty to act positively to prevent the harm suffered by the
plaintiff.
The test is one of reasonableness. A defendant is under a legal duty
to act positively to prevent harm to the plaintiff
if it is
reasonable to expect of the defendant to have taken positive measures
to prevent the harm. The court determines whether
it is reasonable to
have expected of the defendant to have done so by making a value
judgment based, inter alia, upon its perception
of the legal
convictions of the community and on considerations of policy. The
question whether a legal duty exists in a particular
case is thus a
conclusion of law depending on a consideration of all the
circumstances of the case and on the interplay of many
factors which
have to be considered…”
[12]
Insofar as negligence is concerned, it is instructive to refer to the
case of
Kruger v Coetzee
1966 (2) SA 428
which is a
locus classicus in matters involving negligence:
“
For
the purposes of liability culpa arises if –
“
(a)
diligens paterfamilias in the
position of the defendant -:
(i) would foresee
the reasonable possibility of his conduct injuring another in his
person or property and causing him patrimonial
loss; and
(ii) would take
reasonable steps to guard against such occurrence; and
(b)
the defendant failed to take such
steps.”
[13]
The mere fact that an incident occurred should not of necessity
attract liability. The pronouncement
of the Supreme Court of Appeal
in
Minister of Safety and Security and another v Carmichele
2004
(3) SA 305
(SCA) ([2004] (2) BCLR at 133; [2003] 4 All SA
at
565)
in this regard is noteworthy:
“
The
insidious subconscious influence of ex post facto knowledge…
Negligence is not established by showing merely that the
occurrence
happened… or by showing after it happened how it could have
been prevented. The diligent pater familias does
not have prophetic
foresight [and] (a) after the event, even a fool is wise.
”
ANALYSIS
[14]
The Plaintiff was the only witness who testified on his own behalf
notwithstanding that the collision
took place during the day, when it
was peak hour and therefore both motor vehicle and pedestrian traffic
was high. Given the fact
that the insured driver is said not to have
stopped after the collision, one would have expected the police to
have tried their
best to find out whether or not there were any
people who might have witnessed the collision. Furthermore, the
ambulance records
would normally indicate who was at the scene of the
collision when they fetched the injured person. In this case, there
are no
such documents.
[15]
Am I saying that the Plaintiff is responsible for all these
omissions? Of course not, but it
remains aberrant and striking that
his attorneys failed to collate even the most basic documentary
evidence that would enable them
to prove their case. Dr Dlamini whose
name appears on the medical records was not called to shed
information where he received
the information that the Plaintiff was
involved in a pedestrian motor vehicle collision.
[16]
According to the medical records, the Plaintiff was brought into
hospital by EMS yet not even
a single witness from EMS was called to
enlighten this Court on where they fetched the Plaintiff, under what
condition he was when
they found him and who called them to the scene
of the collision, if there was such. This Court would have thought
that any attorney
who has lodged a claim where the motor vehicle and
the driver are both unknown would have ascertained that these
questions are
adequately addressed at the hearing. The Plaintiff is
even silent on what steps he took to establish the identity of the
unidentified
vehicle after his release from hospital
[17]
Apart from the above, the evidence of the Plaintiff is not
satisfactory in several respects.
Firstly, he admitted that he
crossed the street because the traffic lights were green for him and
not that it was safe to do so.
Accepting that the traffic lights were
green for him, it is noteworthy to state that he would still have
been negligent to cross
without confirmation that it was opportune to
do so. That said, I am mindful that in this situation the duty on the
insured driver
to avoid the collision would have been greater as the
traffic lights would have been against him or her.
[18]
However, the Plaintiff was not a reliable witness as he vacillated on
the question. He said that
he looked to his right-hand side and then
to his left-hand side before crossing Madiba Road, yet later he
confessed that he only
looked at the green traffic light and not
whether or not vehicles were approaching from either side. His
answers clearly took a
tall on his credibility.
[19]
Most disquieting is that he was adamant that the insured vehicle
collided with his left side
more specifically, his left lower limb.
It must be extraordinary that there is no evidence of any sign of his
left leg having been
involved in some kind of a blunt trauma. That
would certainly have been consistent with the theory of his leg
coming into contact
with a solid fast moving object such as a
vehicle.
[20]
He had no comment when told that it was strange that the medical
records have particularised
all the injuries save for those abrasions
that he claimed he had. Caught off-guard by the question, he said
that he nonetheless
had torn pair of trousers as evidence. But proof
of collision would have required more than torn pair of trousers such
as a heavy
noticeable impact or even a fracture of one or both his
lower limbs.
[21]
How the Plaintiff sustained the injuries that he claims were the
result of the collision remains
enigmatic. That said, it is not the
duty of the Court to investigate what their cause is but it should
suffice to state that his
injuries are not consistent with his
description of the collision. As such, he has failed to show that on
a balance of probabilities
his injuries are the direct result of an
impact between him and a motor vehicle.
[22]
The testimony of the Plaintiff on why he proceeded to cross Madiba
Road suggests that the traffic
lights may have been red for him. The
fact that he started by stating that there was no vehicle
approaching, he did not see any
vehicle and ultimately that he only
looked at the traffic lights that were green for him is
characteristic of a witness trying
to avoid giving what actually
transpired. Everyone else who is a witness in this matter assumes
that what the Plaintiff told them
about the cause of his injuries is
correct. That is to say that there is no independent corroborating
evidence at all. The police
and the ambulance personnel came after
the collision and would have recorded what he told them. No
independent witness from the
scene of the collision gave evidence.
CONCLUSION
[23]
Finally, it ought to be emphasised that the burden of proving that a
collision happened as a
result of the negligent driving of another in
consequence of which a claimant sustained injuries remains the duty
of a plaintiff.
It is of no moment that a claim is defended or not
the rule stands. Against that background, I am constrained to find
that the
Plaintiff has failed to establish on a balance of
probabilities that he was involved in a motor vehicle accident as a
result of
which he sustained injuries. I make the following order:
1.
The Plaintiff’s claim is dismissed with
costs.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 18 November 2021 at 10:00.
APPEARANCES:
Counsel for the
Plaintiff:
Adv I Mabaso
Instructed by:
Ndlovu Attorneys
Counsel for the
Defendant: No appearance
Instructed by:
Date of
Judgment:
18 November 2021