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[2019] ZAGPPHC 339
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Selemela v Road Accident Fund (89870/2015) [2019] ZAGPPHC 339 (31 July 2019)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES/
NO
(3)
REVISED
CASE
NO: 89870/2015
31/7/2019
In
the matter between:
K
H SELEMELA
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
M.H
VAN TWISK (AJ)
1. This
matter again illustrates the difficulties that the Defendant
("the
Fund'")
encounters when faced
with a claim where neither the identity of the insured driver nor the
insured vehicle is known.
2. It
is not in dispute that the Plaintiff was involved in a motor vehicle
accident that took place on 10
th
June 2014 on the road between Brits and Lethlabile. The
accident took place at approximately 00h50 in the morning.
3. The
Plaintiff testified that he was driving on the Brits-Lethlabile road
on 1olh June 2014 in a northerly direction to collect one of his
employer's employees. He testified that he saw a motor vehicle
coming from a southerly directly and it was on his side of the road.
The road is a single carriage road. The Plaintiff, according
to him,
flashed his bright lights to alert the driver of this vehicle of
his {the Claimant's) presence on the road. He further
testified that
when this vehicle was approximately 50 metres away from him he
swerved to the right hand side to avoid a head on
collision and lost
control and the vehicle fell on its side into a ditch. The
Plaintiff exited the vehicle through the passenger
door
whereupon he telephoned his employer, who in tum arranged for the
ambulance and the breakdown vehicle to attend at the scene.
He
further testified that he cannot estimate how far the other vehicle
was away from him when he saw it for the first time.
4. The
Plaintiff continued with his evidence, but now testified that when he
saw the other motor vehicle's lights for the first time he could not
see that it was in his lane. He flashed his bright lights
when it was
50 metres away from him and turned to the right hand side to
avoid the collision. It was then that he
saw that it was
a big truck that was driving on the wrong side of the road. He
testified that a policeman came to the hospital
on 11
th
June 2014 and informed him to attend at the police station once
discharged to obtain a case number. He said that although he gave
an
oral statement to this policeman, it was not written down.
5. The
Plaintiff further testified that on 8th August 2015 he asked (I
assume
from the police) a copy of the accident report as his employer
requested it. The Plaintiff then testified further that the content
of the accident report differs from what he told the police as to how
the accident happened. He pointed out that the accident report
states
that he was driving from north to south whereas he was driving from
south to north and furthermore that the description
of the accident
as it appears at page 17 of the merits bundle is incorrect as there
is no bridge where his motor vehicle
went off the road. The
Plaintiff was then asked what steps did he take to rectify what was
contained in the accident report. He
testified that he asked the
police to give him an opportunity to provide them with a correct
statement which opportunity they provided
to him. On 18th August 2015
he gave a more detailed statement. a copy of which appears at pages
20 and 21 of the merits bundle.
Probably nothing turns on
it, but it seems as if the police stamp indicates that the affidavit
was deposed to on 8
th
October 2015 and not 18
th
August 2015. The Plaintiff then confirmed the correctness of
what is contained in the statement which appears at pages 20
and 21
of the merits bundle. The Plaintiff was then taken to pages 13
and 14 of the merits bundle which is the so-called
Section 19(f)
affidavit which he confirms is a correct reflection of the events
when the accident took place.
6. The
Plaintiff was cross-examined extensively on the content of the
medical
reports which forms part of the claim documents bundle.
Advocate Mpe, who appeared on behalf of the Plaintiff, objected when
Advocate
Roos, appearing on behalf of the Fund, proceeded to
cross-examine the Plaintiff on those records. I dismissed
the objection.
It is so that no witnesses were called to
corroborate the content of the hospital records. The following is
however of importance
in my view regarding the evidentiary value of
the medical reports and the answers solicited during
cross-examination:
6.1.
Mohala-Moifo Attorneys, acting on behalf of the Plaintiff, lodged the
RAF1 third party
claim form together with its annexures;
6.2. The
covering letter contains the following paragraph:
6.2.1.
"Please find the following claim
documents attached hereto:
1
RAF Form 1;
2
Special Power of Attorney;
3
Consent form;
4
Authorisation form;
5
Claimant's Section 19(f) affidavit;
6
Copy of Claimant's identity document;
7
Officer's accident report; and
8
Hospital records."
[1]
6.3. Dr
Pienaar who treated the patient at the Brits Medi-Clinic on the
morning of the accident
completed the medical report.
[2]
6.4. The
following medical records, submitted on behalf of the Plaintiff to
the Fund to substantiate
his claim, forms part of the lodgement
documents:
6.4.1.
Hartbeespoort Emergency Rescue Unit Handover Sheet
[3]
,
Brits Medi-Clinic Emergency Centre records completed by a nurse and
doctor Pieterse
[4]
.
6.5. The
Defendant required the Plaintiff, in terms of Rule 36(4), to make
available to the
Defendant any medical reports, hospital records,
x-ray photographs or other documentary information of alike nature
relevant to
the assessment of the Plaintiff's damages and to provide
copies thereof upon request.
[5]
6.6. The
Plaintiff responded to the Rule 36(4) Notice in annexing to his reply
a copy of the
RAF Form 1 and copies of the hospital records which
also forms part of the claim documents bundle and which have been
referred
to earlier.
[6]
6.7. The
minutes of the first pre-trial conference held on 2
nd
March 2016 records that the parties agreed that all
documents in the bundle will, without further
proof, serve as evidence of what they purport to be without admitting
the correctness or content.
[7]
7. In
my view Advocate Roos was entitled to cross-examine the Plaintiff
on
the hospital records which he i.e. the Plaintiff, himself, through
his attorneys of record, submitted to the Fund.
8. The
following was elicited during cross-examination:
8.1. That
the Plaintiff consulted his attorneys for purposes of lodging a claim
against the
Fund during August 2015;
8.2. The
policeman who came to the hospital on the morning of
11
th
June 2014 is not the same police officer who completed the accident
report form;
8.3. The
Plaintiff confirmed that he was transported from the scene of the
accident by Hartbeespoort
Emergency Rescue Unit but when referred to
the content of the handover sheet he pointed out that his first name
is spelled
incorrectly in that a "c" is missing and that
the identity number is also incorrect as the numbers "3"
and
"9" should read "96". The Plaintiff testified
that he did not speak to the ambulance man at the scene and he
does
not know where the ambulance man obtained the information that he has
written down on the handover sheet;
8.4. The
Plaintiff was asked whether he had a medical history of hypertension
and whether he
uses or knows what
"rikwat"
is. The Plaintiff answered that he
suffers from hypertension after the accident. Counsel for the Fund
did not take this questioning
any further but it is obvious that the
question was asked as the handover sheet evidences that the word
"hypertension"
is
written after
"medical history"
and
"rikwat"
is written after
"chronic
medication";
8.5. The
Plaintiff testified further that he was injured on his head which was
bleeding and
on his left leg and that he was dizzy;
8.6. The
Plaintiff testified further that he disagrees with the injuries as
listed in the medical
records which only refers to injuries to the
left ribs, left elbow and both knees. The Plaintiff reiterated that
he was only injured
on his head and the back part of his body;
8.7. The
Plaintiff testified that when he arrived at the hospital he had blood
on his face and
had bandages on his head and left leg;
8.8. The
Plaintiff was shown the pictures of the front and back of a male
person appearing at
page 30 of the claim documents bundle. It was
pointed out to him that the nurse who completed the form, save for
where it is obvious
that Dr Pieterse completed it, indicated that he
had indicated and/or that she had found injuries to his left elbow,
left ribs
and both knees. The Plaintiff denied that he provided such
information to the nurse and that he does not know where she got the
information from to make the crosses on the areas indicated on the
pictures. The Plaintiff was asked whether he spoke to the nurse
and
he replied
"no",
he
only spoke to the doctor;
8.9. The
Plaintiff was then referred to page 34 of the claim documents bundle
where it is indicated
that the patient, i.e. the Plaintiff, arrived
at the hospital at 02h00 and walked out of the hospital with a pain
indication of
5/1O at 02h55. The Plaintiff stated that all that is
written down on page 34 is incorrect and that he left the hospital at
06:00
when a friend collected him;
8.10. The Plaintiff was asked
whether he informed the doctor that a truck forced him to swerve
which caused the
accident, whereupon the Plaintiff answered
"no,
the doctor only asked me about my pain that I felt.";
8.11. The Plaintiff was again
asked whether he spoke to the ambulance man whereupon the Plaintiff
answered he
did not speak to the ambulance personnel. The Plaintiff
was asked that when the police officer came to see him at the
hospital
whether he informed the police officer exactly how
the accident happened and
the Plaintiff answered
"no,
the policeman only said that I must come to the police station to
obtain the case number";
8.12. The Plaintiff confirmed
that his employer sent someone to fetch him from the hospital and
when asked whether
he at least informed this person about how the
accident happened i.e. that a truck forced him off the road, the
Plaintiff answered
"no";
8.13. The Plaintiff was then
referred to page 33 of the claim documents bundle and specifically to
the portion
dealing with
"Patient
Outcome".
When asked about what
is written down there he stated that it is incorrect. Advocate Roos
then said to Plaintiff so everything in
the clinical notes and
ambulance report is incorrect and the Plaintiff replied
"yes".
Advocate Roos again asked the
Plaintiff whether everything that is written down in the hospital
records is wrong, whereupon the
Plaintiff replied "yes";
8.14. Advocate Roos then
asked the Plaintiff whether he informed no one on the morning of the
accident about how
he came to leave the road and ended up in a ditch,
whereupon the Plaintiff answered that he did not;
8.15. The Plaintiff was then
asked whether he was informed by the attorneys when he consulted with
them that he
cannot claim against the Fund for a single vehicle
accident whereupon the Plaintiff answered
"no";
8.16. The Plaintiff was asked
why it only bothered him during August 2015 that the content of the
accident reports
was incorrect, whereupon he answered that he saw
that the report contained the wrong direction of travel and that
there is no mention
made of a truck that he forced him off the road;
8.17. The Plaintiff was then
asked who brought it to his attention that the accident report
contained incorrect
and/or insufficient information whereupon the
Plaintiff answered that his employer knew he drove from
south to north.
9. The
next witness who testified was Dr Gerhald Lemmer who is an accident
reconstruction expert appointed by the Plaintiff. Mr Grobbelaar was
appointed by the Defendant as its reconstruction expert. Dr
Lemmer
and Mr Grobbelaar compiled a joint-minute which Mr Lemmer, under
oath, read out and the hand written minutes was handed
in as exhibit
"Y".
Paragraph
5 of their joint minute reads as follows:
"The experts agree that, if the court
were to accept the distance testified by the Plaintiff being 50
metres
is
correct, it is improbable that he would have been able to have
flicked his lights or have swerved prior to collision with the
truck
due
to
reaction
time being approximately 1.5s. The vehicles would probably reach one
another in less than this time."
10. The
intention of the Road Accident Fund Act, Act 56 of 1996, is designed
to give
the greatest possible protection to victims of the negligent
driving of motor vehicles. That said, the Plaintiff still bears the
onus of proving negligence on the part of the (unidentified) insured
driver on a balance of probabilities. Our courts on more than
one
occasion pointed to the fact that the possibility of fraud is greater
in unidentified vehicle cases since it is usually difficult
for the
Fund to find evidence to controvert the claimant's allegations.
[8]
11. An
analysis of the Plaintiff's evidence under oath and during cross
examination
shows a lack of credibility and reliability and in most
parts it is against the probabilities for the following reasons:
12.1. The Plaintiff's failure
to adequately explain why, 14 months after the accident occurred, it
came to his
attention that the accident report contained insufficient
or incorrect information; so to his failure to explain why it was
necessary
for him to obtain the accident report at the time that he
did. His only evidence was that his employer required it;
12.2. The Plaintiffs attempt
in explaining how he rectified, so to speak, the omissions in the
accident report
by attesting to an affidavit on 18th August 2015, and
as if that affidavit somehow provides corroboration for his version;
12.3. The Plaintiffs evidence
that he did not give details of the accident and in particular the
fact that he
was nearly involved in a head-on collision with a truck
had it not been that he swerved out of its way, to anyone whom he met
after
the accident, being the ambulance personnel, the nurse or
nurses at the Brits Medi-Clinic, Dr Pieterse and the friend who
collected
him from the hospital. This is against all human nature
when one is involved in a motor vehicle accident;
12.4. The Plaintiffs
testimony that he did not speak to the ambulance personnel or the
nurse at all whilst being
treated;
12.5. His testimony on more
than one occasion that everything that is contained in the hospital
records i.e. written
down by the ambulance personnel, the nurse or
nurses and Dr Pieterse is incorrect and his evidence that the content
of the accident
report is incorrect, including the date that the
Police Constable recorded when it was compiled.
12. In
all, the Plaintiff's evidence lacks credibility and is so against the
probabilities
that I reject his version of how the accident occurred
and find that he has failed to prove negligence on the part of any
insured
driver on a balance of probabilities.
13. As
an aside, having regard to the fact that the Plaintiff in effect
retracted
the content of the medical reports that he relied upon for
the damages he claims from the Fund, one wonders whether there is
still
a valid claim lodged with the Fund.
14.
I therefore make the following order:
14.1. The Plaintiff's claim
is dismissed with costs.
MH VAN TWISK
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFRICA GAUTENG
DIVISION,
PRETORIA
Heard
on: 19 July 2019
Judgement
delivered: 31 July 2019
Appearances:
For
the Plaintiff: ADV MPE
Instructed
by:
For
the Defendant: ADV ROOS
Instructed
by:
[1]
See: Page
1, claim documents bundle
[2]
See: Page
10, claim documents bundle
[3]
See: Page
35, claim documents bundle
[4]
See:
Page
29, claim documents bundle
[5]
See: Page 3, Notices Bundle
[6]
See: Pages 5 to 60, Notices Bundle
[7]
See:
Page
90, Notice Bundle.
[8]
See:
Mbatha v Multi Lateral Motor Vehicle Accidents
Fund
[1997] ZASCA 25
;
1997 (3) SA 713
(SCA) at 718 H;
Bezuldenhout
v The Road Accident Fund
2003 (6) SA 61
(SCA) para 12
and
Road Accident Fund v Thuqwana
2004 (3) SA
169
(SCA)
para
13
and 4