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[2019] ZAGPPHC 292
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Ngewu v Road Accident Fund (97911/16) [2019] ZAGPPHC 292 (2 July 2019)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE
:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES
:
YES
/NO
CASE
NO: 97911/16
2/7/2019
In
the matter between:
LUNGELO
NGEWU
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
Tuchten J
:
1
The
plaintiff claims compensation from the defendant for injuries
sustained by him. When the trial began, I directed that the questions
whether the plaintiff was injured in a collision with a motor vehicle
as alleged by him and whether, if so, the insured driver
negligently
caused the injuries suffered by the plaintiff be heard first and that
the other questions arising in the case be postponed
for later
adjudication.
2
At
some time during the period Friday 28 August 2015 to Sunday 30 August
2015, the plaintiff sustained a head injury with a brain
injury in
the right frontal lobe, left facial abrasions, a chest and abdominal
injury with a ruptured diaphragm and hernia and
bilateral lung
contusions and a small haemothorax, a left distal radial fracture and
a fracture of the pubic rami.
3
The
only witness who testified as to how the plaintiff sustained these
injuries was the plaintiff himself. He testified that he
lived with
his mother in an apartment on the corner of Paul Kruger and Jeff
Masemola Streets in central Pretoria. It emerged from
evidence of a
later witness that the apartment is in a block called Corner Flats.
The plaintiff said that he spent the evening
of Friday 28 August 2015
near the Pretoria City Hall where he was able to use the free wi-fi
provided by the City there.
4
At
about 21h30, the plaintiff said, he decided to go home. He was in the
process of crossing the intersection between Paul Kruger
and Jeff
Masemola Streets, with the traffic lights in his favour, when he saw
a taxicoming towards him. The lights were against
the taxi, he said,
and he assumed that the taxi would stop. But it did not and collided
with him in the middle of Jeff Masemola
Street.
5
The
plaintiff said he was rendered unconscious by the impact and did not
regain consciousness until he woke up in hospital. He could
not say
in which hospital he regained consciousness. The evidence showed that
the plaintiff was first admitted to the casualty
unit of the Tshwane
District Hospital (TOH) on 30 August 2015. He was transferred to the
Steve Biko Hospital on 31 August 2015
as an emergency case. Later he
was transferred to Kalafong Hospital, from which he was later
discharged.
6
I
shall deal further with the balance of the evidence presented, to the
extent that it is relevant to the issues before me but I
think it is
important to point out that there was no evidence which directly
contradicted the plaintiff's version. So the issue
ultimately
resolves to this: seen against the totality of the evidence, was the
plaintiff a reliable and credible witness?
7
I
am not compelled to accept the plaintiff's evidence merely because it
was uncontradicted. As was said in
Siffman
v Kriel:
[1]
It does not follow, because evidence
is uncontradicted, that therefore it is true ... The story told by
the person on whom the onus
rests may be so improbable as not to
discharge it. This dictum was recently approved by the SCA in
McDonald v Young,
[2]
which referred with approval in this
regard to
Kentz (Pty) Ltd v Power.
[3]
8
Nor
is there any increased burden on the plaintiff in these circumstances
to prove that his version is true. Given the nature of
the issue
between the parties, the plaintiff bears the onus but need do no more
- and, of course no less - than prove on a balance
of probabilities
that his version should be accepted.
9
The
plaintiffs mother, Mrs Ngewu, testified that she by chance left her
apartment on the Sunday morning at about 09h30 and went
down into the
street. There she saw a police van and a large crowd. She saw a
police van with its back door open, with a person
lying in the back
of the van. She looked inside and saw that the person in the back of
the police van seemed to be her son, the
plaintiff, who had not
returned to the apartment the previous night.
10
Mrs
Ngewu came closer to the van and saw that the person lying inside it
was indeed the plaintiff, who was lying on his back. She
tried to
speak to him and shook him but he did not respond. His face was
covered in dried blood.
11
Mrs
Ngewu was concerned about the cellphone which she had bought for the
plaintiff some three months earlier. This cellphone was
not in the
possession of the plaintiff when he was in the back of the police van
and thereafter. The plaintiff elicited the help
of her neighbour, Mr
Malewa, who lived in one of the apartments in her block.
12
Mrs
Ngewu concluded that the plaintiff had suffered his injuries during a
robbery. She said that the police apparently also thought
so. She and
Mr Malewa went in the police van with the plaintiff to the TOH. They
were both under the impression that the plaintiff
was unconscious.
Mrs Ngewu said that she could not remember when she spoke to the
plaintiff for the first time after she found
him in the police van
and that two or three days thereafter, he was still unable to talk.
13
Some
four weeks after the incident, Mrs Ngewu said, she asked the
plaintiff for the first time what had happened to him and he told
her
that he had been hit by a motor vehicle. Someone then advised Mrs
Ngewu that the incident should be reported to the police.
On 28
September 2015, she and the plaintiff reported the incident to the
police and completed the usual accident report form, in
which the
plaintiff reported that he had been hit by an unknown vehicle at
about 21h30 on Saturday 29 August 2015 at the intersection
of Paul
Kruger and Jeff Masemola (formerly Jacob Mare) Streets.
14
Both
the plaintiff and Mrs Ngewu testified that they asked about the
plaintiff's cellphone, which was not in the possession of the
plaintiff after he was put into the police van.
15
The
plaintiff said in evidence that he was unable to say what had
happened to him during the twelve (or 36) or so hours after he
was
allegedly hit by the unknown vehicle in the intersection of Paul
Kruger and Jeff Masemola Streets.
16
The
hospital records of the TOH relating to the treatment the plaintiff
received there, however, conflict in certain important respects
with
the plaintiff's evidence. These records were collected into a bundle
which formed exh A at the trial. It was common cause
that the entries
in exh A reflected as having been made by the nurses and doctors
concerned were indeed so made by them and that
where those records
reflect that information was given by the plaintiff to those nurses
and doctors, the information so recorded
was indeed so given by the
plaintiff. It was further common cause that certain test results
recorded in exh A were in fact determined
and that the diagnoses
recorded were in fact made. Counsel for the plaintiff however did not
admit that the test results were correct.
17
The
TOH records show that the plaintiff was first seen by a recently
qualified doctor, Dr Kruger, on 30 August 2015 at 17h15. Before
this,
at 15h30 his vital signs were determined and recorded by a nurse. At
this stage, the plaintiff scored a full 15 out of 15
on the Glasgow
Coma Scale (GCS.)
18
The
GCS measures a patient's responsiveness for eye movement, verbal
function and motor function. For eye movement, a patient is
scored
between 1 and 4: one mark for a completely unresponsive patient,
rising to 4 marks for a patient with full eye movement.
For verbal
function a patient is scored between 1 and 5 and for motor function
between 1 and 6 on the same basis.
19
At
15h45 on 30 August 2015, a nurse recorded as follows:
A male patient came to the unit wheeled in on a
chair accompanied by his friend with a history of assault and
complained of body
pains. On arrival general condition seems stable.
Vital signs stable ...
20
But
at 17h00, fifteen minutes before Dr Kruger saw the plaintiff, his GCS
score had dropped to 14 out of 15. The drop was reflected
in his
verbal function score where the plaintiff scored four out of five.
21
Dr
Kruger recorded her findings regarding the plaintiff on a standard
form used by TOH for this purpose, as follows:
30/8/2015
17h15 17 year old male gives [history] of
drinking too much alcohol on an empty stomach.
Was hit [with] a belt [which caused] laceration
on chin.
Very
drowsy, unable to give proper [history]
From parents: [no] chronic illnesses
Fam[ily history]: [hypertension]
[no]
allergies
22
The
nurse's note made at 17h00, however records:
Patient starting to hyperventilate ...
23
And
at 19h00, the nurse's note reads:
Patient found in the unit sleeping on a
stretcher. Being fully
awake
and
well orientated, able to tell his name. ,,,
24
Four
medical practitioners gave evidence, one for the plaintiff and three
for the defendant. For the most part, they were in agreement
on
relevant matters.
[4]
Of central importance to the present case, medical practitioners on
both sides agreed that the plaintiff's injuries were caused
by high
impact blunt trauma. Similarly both sides were in agreement or did
not dispute that the plaintiff's injuries could have
been caused by
collision with a motor vehicle, a fall from a height or an assault.
None of the medical practitioners testified
that the one potential
cause was more probable than the others.
25
On
the same form upon which Dr Kruger recorded the history given to her
by the plaintiff, Dr Kruger recorded that she had initiated"
Special Investigations" of the plaintiff's blood and urine to
test for "Alcohol intoxication [with query) recreational
drugs.
Samples were taken from the plaintiff at 17h40 on 30 August 2015. The
results were negative for such drugs but a small amount
of ethanol,
the active ingredient in recreational alcoholic drinks, was found in
the plaintiff's blood.
26
The
results showed that while the plaintiff had not ingested recreational
drugs during the period immediately before he sustained
his injuries
until the samples were taken, he had been drinking. One can rule out
any such drinking during the period from the
Sunday morning until the
blood was drawn. So, while it is not possible to say how much the
plaintiff had drunk, it must have been
a considerable amount for
there still to be ethanol in the plaintiff's bloodstream late on
Sunday afternoon.
27
The
care of patients in the casualty unit of the TOH is transferred from
doctor to doctor as one goes off shift and another comes
on shift. On
Monday 31 August 2015, the plaintiff was received by Dr Masemola.
While under Dr Masemola's care, the plaintiff told
her that he had
been involved in a motor vehicle accident. Dr Masemola's note reads
as follows:
[Assessment:] MVA 2 days ago [Query] head
injury +
chest/abdominal pathology
[Query] Diaphragmatic rupture [illegible] large
colon
28
The
note made by Dr Kruger on the Sunday the plaintiff was admitted to
the TOH was put to the plaintiff during cross-examination.
He said he
had no memory of having given Dr Kruger a history. The note made by
Dr Masemola was not put to the plaintiff. There
is no explanation for
the change of versions in the histories given to the two doctors from
the Sunday to the Monday.
29
Counsel
on both sides submitted that the evidence should be evaluated on the
basis that there were two stories mutually destructive.
I do so, but
I bear in mind that generally the dicta bearing upon this topic deal
with situations where there is conflicting eye
witness evidence. In
the present case, of course, there is no eye witness account which
contradicts that of the plaintiff. In the
present case, I must
evaluate the evidence of the plaintiff and the other witnesses who
gave evidence on the events preceding the
plaintiff's admission to
the TOH, together with what the plaintiff told the doctors and nurses
in the TOH and told the police for
the purpose of the accident report
on 29 September 2015 and the blood alcohol test, all in the light of
the probabilities.
30
With
this in mind, I set out the principles by which such matters must be
adjudicated as advanced by counsel. In
National
Employers' General Insurance
Co
Ltd
v Jagers,
[5]
it was held:
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 case of the party on whom the onus rests. In
a civil case the onus is obviously not as heavy as
it is 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 plaintiffs allegations
against the general
probabilities. The estimate of the credibility of a witness will
therefore be inextricably bound up with a
consideration of the
probabilities of the case and, if the balance of probabilities
favours 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.
31
This
decision has consistently been followed. In
Stellenbosch
Farmers' Winery Group Ltd and Another v Martell Et Cie and Others,
the SCA held:
[6]
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 inthe
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.
32
There are two serious improbabilities in
the plaintiffs version: firstly, that he was knocked unconscious in
the middle of a busy
road in central Pretoria and lay where he fell,
or near to where he fell, for at least twelve hours or 36 hours, on
his version,
until he was discovered there by the police.
33
The second improbability is in relation
to the plaintiffs version that he spent the Saturday (or Friday)
evening
only
using
the free wi-fi at the City Hall until he started waling home to
Corner Flats. In fact, the plaintiff had been drinking alcohol
at
some time before he was found by the police and in quantities
sufficient to leave ethanol in his bloodstream at 17h40 on the
Sunday
evening.
34
There was medical evidence, which I
accept, that a head injury can cause memory loss. So perhaps the
plaintiff was not deliberately
untruthful about whether he had been
drinking but forgot that he had been doing so. Even so, the failure
of the plaintiff to explain
how the ethanol got into his bloodstream
causes me to doubt his reliability as a witness.
35
Then there is perhaps the most important
deficiency in the plaintiff's case: his inability to explain what was
recorded in the hospital
records about what the plaintiff said and
what was found on examination of the plaintiff on the Sunday
afternoon and evening after
he was admitted to the TOH. First, there
are the clinical observations of the nurses as recorded in the Vital
Data section of the
form on which Dr Kruger recorded the history
given to her by the plaintiff. On two separate occasions that
afternoon and evening,
at 15h30 and 17h00, the plaintiff's GCS was
assessed. On both these occasions, the plaintiff was conscious.
Secondly, the history
given to Dr Kruger and the nurses conflicts
with the plaintiff's version. He said in evidence that he could not
remember having
told Dr Kruger what was recorded by her.
36
Then, as I have noted, a nurse recorded
that at 19h00 that evening, the plaintiff was well orientated and
able to supply the nurse
with his name.
37
This evidence of Mrs Ngewu and Mr
Malewa, as well as that of the plaintiff, in summary that the
plaintiff was unconscious when he
was admitted to the TOH and for
some days thereafter, is irreconcilable with the version arising from
the hospital records that
the plaintiff was from at least 15h30 on
the day of his admission, conscious and able to give a history of
what had happened to
him.
38
As to events testified to by Mrs Ngewu
and Mr Malewa: either they were deliberately untruthful about the
plaintiff's state of consciousness
or the plaintiff feigned
unconsciousness. There seem to me to be only these two logical
possibilities. Perhaps, if the plaintiff
feigned unconsciousness, he
did so because he did not want to disclose to his mother how he
became injured and how he came to lose
his cellphone. But I do not
want to speculate in that regard. It is enough for present purposes
that the plaintiff's version that
he was unconscious when he was
admitted to hospital cannot be correct at least from 15h30 onwards.
39
The change in version given to the
doctors at the TOH is significant. Of all the three possible causes
of the plaintiff's injuries,
only the possibility that he was struck
by a motor vehicle through the fault of the insured driver would
entitle the plaintiff
to compensation. In his particulars of claim
attached to his summons dated 16 December 2016, the plaintiff claimed
damages of R8
100 000. In amended particulars of claim dated 6 May
2019, the plaintiff increased his claim to R11 687 000. The change in
version
might well have arisen from the plaintiff's desire to receive
compensation for his injuries.
40
I must say something about the
plaintiffs demeanour as a witness. As Van den Heever J so memorably
observed in
R v Haefele:
[7]
... the
word demeanour does not merely signify the appearance of a witness in
the box; whether he gives his testimony with assurance,
sometimes
amounting to impudence, or whether he has the sheepish look which one
would expect from a liar; it means much more; it
signifies that which
distinguishes the living word from mere written records and it
includes such matters as a momentary hesitation
and an intonation of
the voice and a thousand
considerations which one may enumerate ...
41
I
bear in mind that the plaintiff had suffered a moderate to severe
head injury and that he was almost 18 when he was injured and
21 when
he gave evidence. He might have felt overwhelmed by the experience of
being in a court and being cross-examined.
42
But
for all that, I must say that he made a poor impression on me. My
impression of the plaintiff was that he did not appear to
be telling
the truth as he recollected it. He constantly had to be asked to
speak up or repeat what he had said and he appeared
to be embarrassed
by what he was saying. Indeed, at one stage during the plaintiffs
evidence I asked him whether he was embarrassed
by what he was
saying. His answer was that he was not embarrassed.
43
I
do not attach much weight to the fact that the plaintiff appeared to
be a poor witness. Some witnesses just are good witnesses.
That does
not always mean that they are telling the truth and are reliable.
Some are just bad witnesses, in the sense that their
delivery of
their versions does not appear to carry conviction. But demeanour is
a factor to be considered and the cases say that
a good demeanour can
carry the day in a case where the probabilities do not favour the
party bearing the onus.
44
I
am troubled too by the plaintiff's testimony that he sustained the
injuries on the Friday. I have described how the plaintiff
said that
he had been struck by a motor vehicle on the Saturday in his report
to the police. But in his statutory demand to the
Road Accident Fund
on form RAF1, signed by the plaintiff on or before 26 January 2016,
the plaintiff said that the incident happened
on the Friday. In his
particulars of claim, too, the plaintiff alleged that the incident
happened on the Friday. There is no explanation
for this conflicting
evidence.
45
In
all these circumstances, I cannot find that the plaintiff was
probably truthful in his account of how, when or where he sustained
his injuries. Even if the plaintiff sustained his injuries by being
struck by a motor vehicle, which as I have said I am unable
to find,
I am not convinced on a balance of probabilities that he sustained
them in the manner, at the time or at the place to
which he
testified.
46
The
plaintiff therefore cannot succeed. I make the following order: the
plaintiff's claim is dismissed with costs.
NB
Tuchten
Judge
of the High Court
2
July 2019
[1]
1909 TS 538
at 543
[2]
(2011) JOL 27126 (SCA)
[3]
[2002] 1 All SA 605 (W)
[4]
The disagreement related to whether it was usual for members of the
SAPS to place unconscious accident victims into the back
of police
vans for the purpose of transporting them to hospital, to unload
them there and then summarily leave. In light of this
disagreement,
I cannot make a finding in this regard.
[5]
1984 4 SA 437
E at 440D-G
[6]
2003 1 SA 11
SCA para 5
[7]
1938 SWA 21 at 22