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[2019] ZAGPPHC 601
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M J v Road Accident Fund (10580/2015) [2019] ZAGPPHC 601 (6 August 2019)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 10580/2015
In
the matter between:
M
J
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
M.H
YAN TWISK (AJ)
1.
This is the merits part of a claim for damages suffered by the
Plaintiff as a result of a motor vehicle accident, instituted
against
the Defendant, hereinafter referred to as the Fund.
2.
It is not in dispute that a motor vehicle accident took place on 30th
June 2012 at approximately 19h30.
3.
The Plaintiff was the first witness who testified in her case. She
testified as follows:
3.1 She was driving on the road from
Marble Hall to Apel. Her late husband (he passed away months later
due to injuries sustained
in
the accident) was seated next to
her in the passenger seat and her younger brother was seated on the
back seat.
3.2 The Plaintiff testified that she
was familiar with the road, that the speed limit was 70 km per hour
and that she was travelling
at 70 km per hour and that the road was a
single carriage road.
3.3 The Plaintiff testified that she
was travelling from Marble Hall to Apel and that the Defendant was
travelling from Apel to
Marble Hall. She said that the accident
occurred when the Defendant failed to negotiate a sharp curve and
collided with the motor
vehicle she was driving, hitting it on the
driver's side of her car.
3.4 The collision occurred on her side
of the road and the car was write off.
3.5 The Plaintiff said that she spoke
to the insured driver after the accident as she walked over to him
whereupon the Defendant
apologized for causing the accident and said
that he was drunk.
3.6 The Plaintiff testified that she
fractured her right hand, her left leg (the Plaintiff was using
crutches when walking in and
out of Court) and she injured her left
ribs.
3.7 When asked that when did she
noticed the Defendant's vehicle for the first time, she answered that
she just heard a loud bang.
4.
Cross-examination elicited the following
responses:
4.1
The road on which the Plaintiff and the insured driver were
travelling on curved where the accident occurred. It was a sharp
curve.
4.2
It was put to the Plaintiff that the accident report indicates
that both vehicles had multiple damage. The Plaintiff answered that
her car had the most damage. She said the most damage was in the
middle on the driver's side of the door and not on the front of
the
vehicle.
4.3
The Plaintiff was asked whether she was travelling on the
outside or the inside of the curve. It seemed as if the Plaintiff did
not understand the question whereupon counsel for the Fund drew a
sketch of the road curving from the left side of an A4 paper to
the
right side of the paper. It was later handed in as Exhibit
"An
.
The Plaintiff marked the spot where the impact occurred with an
"X" on Exhibit "A". This indicated that impact
was in her lane of travel.
4.4
The Plaintiff testified that between the two travelling lanes
there was a solid white line which indicates that one may not
overtake
and that should one overtake it is unsafe to do so and also
unlawful.
4.5
The Plaintiff reiterated that she did not see the insured
vehicle before she heard the loud bang sound when the accident
occurred
and that there were no other cars on the road when the
collision took place.
4.6
After the accident the Plaintiff's vehicle was on the side of
the road where the insured driver travelled and the latter's vehicle
was in the lane that she travelled on.
4.7
The Plaintiff again confirmed that she stepped out of the
passenger side of her motor vehicle towards the Insured driver who
extended
his apologies and said that he was drunk. It was put to her
that the insured driver would say that the first time he saw and/or
spoke to the Plaintiff was at the first court appearance in 2018. The
Plaintiff denied this and said that she did speak to the
insured
driver at the scene of the accident.
4.8
The Plaintiff was cross-examined about what she did with the
information she received from the insured driver that he was under
the influence of alcohol. She said that she requested the first
police officer who arrived at the scene of the accident to conduct
a
breathalyzer test and he said that that will be done at the hospital.
4.9
It was put to the Plaintiff whether she agrees that the
information, i.e. that the insured driver admitted to being under the
influence
of alcohol, is important for her case, whereupon the
Plaintiff answered that she does not understand what information
counsel referred
to. It was then put to her that it is against the
law to drive under the influence of alcohol and that she could have
laid a charge
against the insured driver with the police. She said
that after her discharge from hospital she went to the attorneys to
report
the accident. It is not clear whether she also reported the
fact that the insured driver admitted to being under the influence of
alcohol to the attorneys.
4.10
It was once again put to the Plaintiff that she did not lay a
charge at the police station whereupon she confirmed this, and added
that the police officers on the scene noticed that the insured driver
was under the influence of alcohol and that they were supposed
to do
follow-up investigations and take a statement from the insured
driver. She further testified that the police smelled alcohol
on his
breath. When asked how the Plaintiff would know this, she answered
that she does not know what the police have done after
they
themselves became aware of the fact that the Insured driver was been
driving under the influence of alcohol, but that they
said that they
are going to draw blood at the hospital.
4.11
The insured driver's version was then put to the Plaintiff.
This is to the effect that a motor vehicle was driving in front of
the
Plaintiff's vehicle and that she overtook this vehicle in the
curve and then before executing the overtaking manoeuvre, she
collided
with the insured driver on the right hand side of his motor
vehicle. The Plaintiff said that she disagrees with this version and
said that if she was overtaking the vehicle in front of her, the
insured vehicle would have collided with the passenger door of
her
vehicle or it would have collided with her vehicle head-on. It was
put to the Plaintiff that the insured driver is saying that
the right
front side of the Plaintiff's vehicle collided with the right front
of the insured vehicle. Her answer was in the form
of a question,
namely which car was I overtaking and then she stated that there was
no car in front of her. That concluded the
Plaintiffs evidence.
5.
Mr Ramushu was then called by the Plaintiff. He testified that on the
day of the accident he was travelling together with the
Plaintiff and
was seated behind the Plaintiff. He was asked to provide an opinion
as to what speed the Plaintiff's vehicle was
travelling at and he
testified that it was estimated at 40 km per hour. He then testified
about his injuries and could not really
contribute to explain how the
accident took place as he said that he only noticed when the
Plaintiff's vehicle was struck by another
vehicle and he does not
know how that came about. He however confirmed that the Plaintiffs
vehicle was struck on the driver's side.
Mr Ramushu was not
cross-examined and the Plaintiff closed her case.
6.
The insured driver, Mr Talome, was called to testify on behalf of the
Fund. His evidence was the following:
6.1. He confirmed that he was the
driver of the insured vehicle and was travelling from Apel to Marble
Hall between 19h00 and 19h30.
He is not familiar with the road. A Mr
Nkomane was travelling with him. He and Mr Nkomane are not related
but he referred to him
as his
"home boy"
and asked
him to accompany him to his indented destination.
6.2. He testified that he was
travelling at 60 km per hour, that he was travelling on a single
carriage road and that the accident
occurred on a curve, as also
testified to by the Plaintiff.
6.3. The insured driver testified that
two cars were coming from the opposite direction when one vehicle
tried to overtake the other
vehicle which was travelling in front of
it. He testified that the vehicle that was travelling in front was a
bakkie. When the
vehicle, which we now know was driven by the
Plaintiff, was in the process in overtaking the bakkie, it collided
with the right
front wheel of the insured driver's vehicle causing
the wheel. as I understood his evidence, to collapse. He said that it
collided
with the car. The insured driver's leg was broken.
6.4. The insured driver was asked how
far the Plaintiff's vehicle was away from his vehicle when he saw it
for the first time, whereupon
he replied that it was a short
distance, anything from 15 to 20 metres. He testified that the
Plaintiff's vehicle was travelling
very close to the bakkie.
6.5. The insured driver testified that
he could not do anything to avoid the accident. He lodged a claim
with the Fund which claim
was settled.
6.6. He further testified that he was
sitting in his motor vehicle after the accident and that an unknown
person came and spoke
to the passenger and this person telephoned the
police. He denied that he was driving under the influence of alcohol
and said that
he was travelling from Pretoria and only stopped to
pick up his passenger and he does not know where on this route they
were supposed
to drink.
6.7. At this point of the insured
driver's evidence, the attorney for the Plaintiff drew counsel for
the Plaintiff's attention to
something and it transpired that she
informed counsel that the interpreter did not interpret correctly. I
was informed that what
the Plaintiff in fact testified is that he was
coming from a traditional celebration. The insured driver denied that
he made any
mention of a traditional celebration and said that he is
working in Pretoria and was driving from Pretoria on the day that the
accident occurred. In my view nothing turns on the alleged Incorrect
interpretation.
6.8. The insured driver testified that
he did not speak to the Plaintiff at the scene and saw her for the
first time at court when
both of them were waiting for the case to
proceed and they were in the same room.
6.9. The two vehicles collided with
their right front fenders. The impact occurred in the insured
driver's lane.
6.10. The insured driver was then
cross-examined and the cross-examination elicited the following:
6.10.1
The impact occurred in the insured driver's lane of travel and the
Plaintiff was driving bumper-to-bumper with the bakkie
and just after
the bakkie passed the insured driver's vehicle the Plaintiff appeared
from behind the bakkie in an attempt to overtake
it when her
vehicle's right front struck the insured driver's vehicle on its
right front. It was not a head-on collision.
6.10.2
He said that although he saw the vehicles approaching he could not
avoid the accident as it happened too quickly.
6.10.3
He reiterated that he was not familiar with the road and that he did
not anticipate a curve approaching. He said that when
driving on an
unfamiliar road you adjust to the road as you find it whilst driving
on it.
6.10.4
It was then put to him that the accident occurred in the Plaintiff's
lane of travel and this accident occurred because the
insured driver
was not familiar with the road and he did not realise a curve was
coming up and he lost control and collided with
the Plaintiff. The
insured driver denied that this Is so.
6.10.5
At this juncture counsel for the Plaintiff referred the insured
driver to the accident report and what is written down regarding
the
accident. I questioned both counsel whether the content of the
accident report are admitted and whether the Police Officer
who
completed it will testify. I was informed that the content is not
admitted. Counsel for the Plaintiff argued that counsel for
the
Defendant introduced the accident report when she made reference
thereto during her cross examination of the Plaintiff.
When
counsel referred to the accident report it was to note that both
vehicles had multiple damage. It does not seem to be in dispute
that
both vehicles were severely damaged.
6.10.6
The portion that counsel for the Plaintiff read and put to the
insured driver is a summary of how the accident happened.
I pointed
out to counsel that if I read what the Police Officer wrote down, I
interpret it differently from her and I then ruled
that I will not
allow cross-examination on that portion of the accident report as it
is not known which driver's version it is
that the Police Officer
wrote down.
6.10.7
The insured driver said that he made a statement to the police that
the accident occurred as a result of the Plaintiff that
was
overtaking his vehicle but he does not know where that statement is.
6.10.8
The insured driver testified that he does consume alcohol once a
month when he gets paid which is at month end and it was
then put to
him that the accident occurred on the last day of the month, which he
confirmed.
7.
There was no re-examination. Mr Mamakomane was called to testify on
behalf of the Fund. His version of how the accident occurred
corresponds with the insured driver's version. This witness was
however familiar with the road. He testified that in his opinion
the
insured driver could do nothing to avoid the collision.
8.
The two versions before me were
mutually destructive in the sense that the acceptance of one version
had to lead to the rejection
of the other. It is unfortunate that I
did not have the aid of a sketch plan and/or photographs taken at the
scene of the accident
or even thereafter to at least indicate the
damage to the motor vehicles and point of impact. It is trite that
the Plaintiff bears
the onus to prove that the Fund was liable for
the damages suffered by her as a result of the collision. She could
only succeed
if she satisfied the court on a balance of probabilities
that her version was true and therefore acceptable and the version
advanced
by the Fund was either false or mistaken and falls to be
rejected.
[1]
9.
In Jagers at 440 E- H the full court stated that:
"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 credibility of a witness will 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 Plaintiffs
case anymore 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 the Defendant's version is false. "
10.
In
National Employers Mutual General Insurance Association v
Gany
1931 (AD) 187 at 199 the following is stated:
"Where there are two stories
mutually destructive, before the onus is discharged, the court must
be satisfied that the story
of the litigant upon whom the onus rests
is true and the other false. It is not enough to say that the story
told by Clark is not
satisfactory in every respect. It must be clear
to the court of first instance that the version of the litigant upon
whom the onus
rests is the true version and that in this case
absolute reliance can be placed upon the story as told by A Gany."
11.
This dictum was applied in
Koster Ko-operatiewe Landbou
Maatskappy Bole v Suld-Afrllcaanse Spoorwee en Hawens
1974 (4) SA 420
(W) where the court stated the following:
"Waar daar immers geen
waarskynlikheid bestaan nie en die twee weergawes mekaar uitwis, word
niks tog ooit bewys (wat ookal
die bewys maatstaf mag wees) tensy
mens "absolute reliance' kan plaas op die getuienis van die
litigant wat the bewyslas dra
nie. Dit is net in ander taal gestel
wat a/reeds bevat word in die eerste sin van sy dictum (refening to
the Gani judgment) naamlik
".. .that the story of the litigant
upon whom the onus rests is true and the other is false."
12.
In analysing the evidence produced I have also applied the approach
adopted in
Stellenbosch Farmers Winery Group Ltd
&
Another v Martell Et Cie
&
Others
2003 (1) SA 11
(SCA).
13.
Regarding the probabilities, in Martell it is stated that this
necessitates an analysis and evaluation of the probability or
improbability of each party's version on each of the disputed issues.
In
casu
the disputed issue is really whether the insured
driver’s vehicle drifted in the curve into the opposite lane
and collided
with the Plaintiffs vehicle in her lane or whether the
Plaintiff attempted to
overtake
a motor vehicle in the curve
and collided with the insured driver's vehicle in its lane of travel.
One aspect of the Plaintiffs
evidence that seems highly improbable is
her evidence that she exited the motor vehicle after the accident and
walked towards the
Plaintiff. The Plaintiff's injuries as pleaded in
the particulars of claim are a fracture of the left femur, a
dislocation of her
right knee and a fracture to her right rib cage.
The Plaintiff was however not challenged during cross-examination
with these facts
and she therefore had no opportunity to explain what
might be an inconsistency between her evidence and her injuries.
14.
Due to the absence of any other proven facts which make one version
of how the accident occurred more probable than the other,
save for
the oral evidence presented by both parties, I find that the
probabilities are evenly balanced. In applying the dictum
in Gany,
quoted above, and the application thereof in Koster, as well as the
dictum in Jagers at 440 E - H, quoted above, I cannot
find that the
Plaintiff can succeed in her claim and it has to be dismissed.
15.
I therefore make the following order:
15.1 The Plaintiffs claim is dismissed
with costs.
_________________________
MH
VAN TWISK
ACTING
JUDGE OF THE HIGH COURT
OF
SOUTH AFRICA GAUTENG
DIVISION,
PRETORIA
Heard
on:
Judgement delivered:
Appearances:
For
the Plaintiff: ADV MPE
Instructed
by:
For
the Defendant: ADV ROOS
Instructed
by:
[1]
National Employers General Insurance Co Ltd v Jagers
1984 (4) SA 437
(A)