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[2019] ZAECELLC 3
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Botha v Kirk Attorneys (EL 257/2016, ECD757/2016) [2019] ZAECELLC 3 (22 January 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO. EL 257/2016
CASE
NO. ECD757/2016
In
the matter between:
LUCIAN
BOTHA
Plaintiff
and
KIRK
ATTORNEYS
Defendant
JUDGMENT
MBENENGE
JP:
Introduction
[1]
The plaintiff, who was at all times relevant hereto a building
contractor, was involved
in an accident whilst driving a motor
vehicle with registration letters and number [….] outside of
Cradock on 5 April 2013.
The motor vehicle veered off the road
and overturned. As a result of the accident, the plaintiff was
severely injured.
[1]
[2]
The defendant, from whom the plaintiff seeks to recover damages,
[2]
is a firm of attorneys conducting business in East London.
[3]
The claim is predicated on the allegation that the plaintiff had a
viable and sustainable
claim against the Road Accident Fund (the
Fund) for the recovery of all damages suffered, resulting from the
injuries he sustained.
It is further alleged that the defendant
had held a mandate on behalf of the plaintiff to institute an action
against the
Fund, which the defendant negligently allowed to
prescribe, hence the claim, at this stage, is against the
defendant, and
not the Fund.
[4]
Because the accident is said to have occurred on 05 April 2013, the
claim against the Fund
would prescribe on 04 April 2015.
[3]
[5]
The plaintiff claims that the accident resulted solely from the
negligence of the driver
of the unidentified vehicle who was
negligent by,
inter alia
, allowing the vehicle to encroach
onto the plaintiff’s correct side of the road at a time when it
was dangerous and/or inappropriate
to have done so or driving in such
a way that the plaintiff was compelled to take emergency evasive
action to avoid a head-on collision
on the plaintiff’s correct
side of the road.
[6]
The defendant disputes being liable to the plaintiff
.
More
particularly, involvement of any unidentified motor vehicle in the
accident and thus the existence of a viable or sustainable
cause of
action against the Fund are denied.
Issue
for determination
[7]
The issue which the parties have isolated from all others and which
this court has been
called upon to determine is whether, on the facts
of this case and, but for
[4]
alleged professional negligence, the plaintiff would have
successfully pursued a claim against the Fund.
[8]
For the plaintiff to be successful, he must prove, on a balance of
probabilities, that he
was injured in a motor vehicle accident that
arose as a result of negligent driving of the driver of the
unidentified motor vehicle;
conversely, if there was no other motor
vehicle and/or there was no negligence on the part of the driver of
the other vehicle
a fortiori
, there would be no claim against
the Fund.
Plaintiff’s
Case
[9]
The first of the plaintiff’s witnesses who testified was Dr Des
Stigant,
[5]
a clinical
psychologist. He is suitably qualified to express opinions on
the
sequelae
of brain injuries, treatment and prognosis. He was, in the
course of his professional work, asked to examine the plaintiff.
Based on the information gleaned from Doctor Olivier’s
medico-legal report and the consultations held with the plaintiff
shortly before the hearing, on 10 October 2018, he generated a
neuropsychological report. In his report he has recorded that
the plaintiff had suffered a small cerebral infarct and cerebral
haemorrhaging. He has also commented on the deficits that
occur
subsequent to a traumatic brain injury, these being cognitive and
personality dysfunctions. Loss of memory is one of
the
dysfunctionality areas. The plaintiff had told him, during
consultations, that after his discharge from hospital he was
confused, saw things in a hallucinatory manner and became aggressive.
These symptoms, said Dr Stigant, are consistent with
one who
has been involved in an accident and suffered brain injury.
Patients suffering from these symptoms will usually heal
over a
period of 18 months to two years.
[10]
Dr Stigant did not access the plaintiff’s hospital records. He
only took the plaintiff
at his word regarding his mental state after
the accident. He could also not comment on the reliability of
the plaintiff’s
version in comparison to any other version.
[11]
Mr Christiaan Kriel, a pharmacist, was also called to testify. He
is familiar with medicines
such as Tramaset, Lirica and Dormonot.
These drugs are supplied with package inserts which indicate
that the user may become
dizzy, lose consciousness, become confused
and suffer from mental impairment, hence patients are advised to
exercise caution when
taking these drugs. He also mentioned
certain side effects associated with use of Tramaset, namely,
psychiatric disorders,
euphoria, anxiety, insomnia and nervousness.
He has no personal knowledge of whether any of these side
effects were displayed
by the plaintiff.
[12]
The plaintiff also testified in pursuit of his claim. He does
recall having been involved in
a motor vehicle accident on Friday, 05
April 2013. Having been a building contractor at the time in
question, he worked on
various building projects around Cradock. He
stayed on the farm Spekboomberg, located approximately 23 kilometres
from Cradock.
After knocking off on the Friday in question at
about 5pm he went home, took a shower and thereafter drove to Cradock
for
dinner and to watch a televised rugby match. After he had
dined he drove back to the farm and, along the way, was involved
in
the accident that is the subject of this action.
[13]
The plaintiff’s narration of how the accident occurred is this:
“
I was
travelling and cars were coming towards me and I saw, in the far
distance, there was a bright light and then I thought well
that guy
will dim maybe when he is closer and then I kept in my lane and then
it became closer
and
I thought well this guy is not going to dim and he is moving over
towards my side
.
He
is coming more over to my lane
and I got very on my nerves and I thought what is this guy now doing.
Is he asleep or what is his plan? When is he going to now
go back to
his lane and then it happened quickly. He must have, I don’t
know, he must have travelled fast, I don’t
know, but then I
tried to avoid, I
thought
to myself this guy is coming now towards me
and the distance is closing terribly fast. I have to try and avoid
him and I thought well I’m going to try and go left and
see
maybe if I can miss him that way, but
then
in a split second I just saw here is an embankment down here and I
thought okay well let me try and go right and then I went
right and
then I just saw that my vehicle spinned out of control and I lost
control and then I couldn’t remember anything
.”
[6]
(Emphasis is mine.)
[14]
Whilst still in hospital the plaintiff would hear voices and for the
most part not conscious of where
he was. He heard that road
construction workers found him next to the road in a ditch, and that
is how he ended up being
in hospital.
[15]
He explained that he had seen “
the big truck
”
approaching all of a sudden and in the short space of time was unable
to take evasive action. The approaching truck
was so fast that
he had no time to slam on brakes and stop. He did not think
that hooting would have helped. After
the accident his next
recollection was being told that he was in hospital. He was
also told that an ambulance had taken him
to hospital. He never
had any discussion with his wife after the accident. His hip
was operated on. After the
operation he was in a coma. His
wife was told that he had suffered a stroke. All this took
place after he had been
transferred to Greenacres hospital, Port
Elizabeth. He was eventually transferred to the East London
Hospital so as to be
closer to his family.
[16]
After the plaintiff had been discharged from the East London
Hospital, he could still not walk properly
and was in a wheel chair.
He walked with the aid of a stick around his home. Due to
pain he was on medication, with
all the attendant side effects. He
recalled that Tramaset, Lirica and Dormonot were prescribed for
him.
[7]
[17]
It came to pass during July 2013 after he had been in need of legal
advice that he was approached by
an attorney, Mr van Breda. During
consultations that ensued certain disclosures were made and notes
taken in his quest for
legal advice. The plaintiff said Mr van
Breda never reverted to him despite numerous efforts he made to
contact him.
[18]
On a subsequent occasion after his health had improved, the plaintiff
visited some relatives in Cradock
and thereupon took his wife to the
scene of the accident. At that point he could clearly remember
how the accident had occurred.
He says he was clear “[t]
hat
a truck … went down the road … and this is where
[he]
went off
and [he could]
clearly remember it.
”
[19]
The plaintiff was subjected to lengthy cross-examination by Mr
Jooste
, counsel for the defendant. He was asked about
what facts came to mind when he, together with his wife, had visited
the scene,
and answered:
“
The fact that
a bright lights vehicle came on towards me and I was in a position
that I was just this thing was going to hit me
head-on if I don’t
apply to go off the road somehow to avoid him.” (Sic.)
[20]
The hospital records point to the vehicle the plaintiff had been
driving as having merely overturned
resulting in the plaintiff
sustaining the injuries he did. There is also record of the
plaintiff having successfully lodged
a claim with Alexander Forbes
for repairs to his vehicle and in relation to which his wife stated
that the plaintiff had “
lost control over his vehicle as it
seemed he burst (sic) a tyre and … rolled.
” He
said he never furnished his wife with that version as he was still in
a coma. At a later stage he did not
query his wife about it
because he was “
glad that they were paying
[his]
bakkie
”.
[21]
The plaintiff was confronted with what he had stated to Dr Stigant
namely, that he took evasive action
and “
swerved to the
left
”, and he responded:
“
I don’t
know why he used the word swerved. I didn’t write the report. I
said I tried to go to the left and I did go
a little bit to the left.
I didn’t use the word, I didn’t know why he said in the
report ‘
swerve
’.”
[22]
In a letter dated 20 March 2015 which a Mr Nick Mijnster of the
defendant penned to the Department
of Roads and Transport it was
stated that the plaintiff had been driving “
when a truck
travelling from the opposite direction, came into his lane of travel.
After swerving to avoid hitting the truck,
he ended up in a
ditch
.”
[23]
He was taxed further in relation to what manoeuvres he had made to
avoid the alleged danger.
The following excerpt from the
transcribed evidence captures the essence of that engagement:
“
Mr
Jooste
:
What I am asking you is did you lose control which caused you to go
to the right or was it a deliberate
decision to go to the right?
L Botha
:
Well I deliberate[ly] went to the right.
[24]
He was asked:
“
And there is
a material difference between the version you gave Mr Stigant and the
version you gave in court this morning. On your
version to Dr
Stigant, when your left wheels touched the gravel you lost control,
which is different from when I cross examined
you this morning where
you said I then deliberately decided to take avoiding action to the
right because there was a ditch and
a donga … on the left hand
side”.
He
responded:
“
You are
hundred percent correct … I did feel the gravel and then I
tried to go to the right and I did go to the right …”
[25]
It further emerged during the cross-examination that in his reply to
a request for further particulars
for trial purposes dated 20 July
2017 the plaintiff had described the accident as having been
attributable to him “[losing]
control
of his vehicle on an
(sic)
account
of being blinded by an oncoming vehicle with very bright lights
”.
He also stated, in response to a related question,
[8]
that “
he
was totally blinded by the bright spotlights emanating from the
oncoming vehicle
,
[that]
he
was not able to identify any specific feature of the oncoming vehicle
that would have enabled him to make further investigations
.”
Against all this, his version was that he was avoiding a
vehicle which had been encroaching onto his path of travel.
When called upon to explain this discrepancy his response was “…
I
don’t know I can’t answer that.”
(Sic.)
[26]
The plaintiff explained that with the passage of time, he regained a
more vivid picture of how the
accident had occurred, in this fashion:
“
Well in the
hospital Your Honour if I can explain, when I was waking up now and
then in hospital I could remember this bright lights
blinding me, and
I was brain damaged, as you heard yesterday so my brain started to
heal as I exercised and tried to go off the
meds and then I
remembered, so I am telling you … what happened, a truck came
over to my side, or the big vehicle, if you
want to call it a
vehicle, and the lights blinded me and I had to take evasive action
otherwise I would have been head on and dead.”
(Sic.)
[27]
Reference was also made to hospital records pointing to the plaintiff
as having been fully conscious
and stable when being admitted to and
during his stay in hospital. In response thereto, the plaintiff
simply stated that
he had suffered a stroke and had been, for the
better part, unconscious:
“
Mr
Jooste
:
But there doesn’t appear to be any recordal of a confusion or a
coma that you suffered from in any
hospital record, and you had the
opportunity Mr Botha going through with your counsel and your
attorney to find corroboration out
of these records for your evidence
that you suffered from these conditions that you are complaining of,
you agree with me?
L Botha
:
Well I suffered a massive stroke.”
Defendant’s
Case
[28]
Mr Henry van Breda of Changfoot van Breda Attorneys was the only
witness called to testify for and
on behalf of the defendant. He
has been an attorney in private practice since 1998. He met the
plaintiff at the latter’s
house on 25 July 2013. He had
received a telephone call from the plaintiff expressing a desire to
see him. During the
discussions that ensued Mr van Breda
informed the plaintiff that he did not have a viable claim against
the Fund and that they
should rather investigate the possibility of
pursuing a claim against Toyota. He said, because the plaintiff
had given him
conflicting statements
[9]
in relation to the accident, he was bound to withdraw from the case
for ethical reasons, and informed the plaintiff as much. In
the
course of time he released the plaintiff’s file to the
defendant. When parting with the plaintiff he had cautioned
him
of looming prescription, were he to pursue a claim based on the
second statement against the Fund. According to Mr van
Breda at
no stage did the plaintiff ever raise with him a complaint about his
mental condition and his inability to narrate the
facts of how the
accident had taken place.
Legal
Position
[29]
The circumstances of this case bring to focus the provisions of
section 17(1) of the Act. The
section reads:
“
The Fund or
an Agent shall:
(a)
…
.
(b)
Subject
to any regulation made under section 26, in the case of a claim for
compensation under this section arising from the driving
of a motor
vehicle where the identity of neither the owner nor the driver
thereof has been established,
be obliged to
compensate any person for any loss for damage which the third party
has suffered as a result of any bodily injury
to himself …
caused by or arising from the driving of the motor vehicle …
if the injury is due to the negligence
… of the driver of the
other vehicle …”
[30]
It is trite law that a party who asserts has a duty to discharge the
onus of proof. In deciding this
matter the court must have regard to
the probabilities and the credibility of the various witnesses and
any documents relevant
in determining the outcome.
[10]
[31]
In
Stellenbosch
Farmers’
Winery Group & Another v Martell ET CIE & Others
[11]
the court laid down the guidelines applicable to the resolution of
factual disputes and the ascertainment of where the truth lies
between conflicting factual assertions in the following terms:
“
[5]
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 in the 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 …” (My emphasis.)
[32]
The inherent contradictions in the plaintiff’s testimony
viz-a-viz
written statements made to other functionaries, including the police
and hospital staff as well as against the objective facts
must also
be considered by the court in deciding the onus of proof.
[12]
[33]
In civil cases the evidence of a single witness, who is one of the
parties, must be credible to the
extent that his uncorroborated
evidence must satisfy the court that on the probabilities it is the
truth.
[13]
Analysis
[34]
It is indeed so that only the plaintiff testified in relation to the
events which gave rise to the
accident, he having been the only
person who witnessed the same, hence the court has been invited to
choose between accepting the
plaintiff’s version or rejecting
it as being a fabrication in its entirety.
[35]
Mr
Cole
, counsel for the plaintiff, premised his argument on
the contention that the defendant bears the onus of “
proving
”
that there was no other vehicle involved in the accident and that the
plaintiff’s entire version is fabricated.
He argued that
the defendant can meet “
the onus
” by putting up a
valid alternative version through the testimony of credible witnesses
which must be accepted on a balance
of probabilities. I
disagree. In the first place, the defendant bears no onus of
proof, but an evidentiary burden.
The onus of proving the claim
remains with the plaintiff. In discharging that onus the
plaintiff must, subject to the principles
adumbrated above, tender
credible evidence.
[36]
What if the version of the plaintiff
,
even
before any testimony on behalf of the defendant is given
,
is, under cross-examination, shown to bear inherent contradictions?
Can it be said that in such an instance the defendant
bears a duty of
“
proving
”
,
as contended
,
by putting up a valid alternative version? I think not.
That is not my understanding of the legal position. As
pointed
out above, to come to a conclusion on the disputed issues a court
must make findings on the credibility of the witnesses.
Those
findings in turn depend on subsidiary factors such as,
inter
alia
,
internal contradictions in a witness’s evidence and external
contradictions with what has been pleaded.
[14]
To contend otherwise would be to suggest that in all instances, such
as the present one, where there is only one version
of the events
which gave rise to the accident with no other eye witness testifying
as to the collision and putting up the opposite
version, the
plaintiff’s mere say-so should be accepted without further ado.
[37]
The defendant has sought to rely on records compiled by ambulance and
hospital personnel regarding
objective facts which the court must
consider
,
and argues that these records set at naught the plaintiff’s
version. However, there is no evidence of the reasons for
the
conclusions contained in those reports, nor is there any source of
the information on the strength of which the documents were
tendered.
[15]
[38]
In my view, here is where the plaintiff’s case crumbles.
The plaintiff would have the court
believe that he was avoiding an
oncoming vehicle that had traversed his path of travel. This
version flies in the face of
the contrary version given when further
particulars for trial were being furnished namely, that he veered off
the road after the
unidentified vehicle brightened its lights towards
him. He could not explain this incongruity under
cross-examination. One
should not underestimate the furnishing of
further particulars for trial purposes, the object of which is to
prevent surprise,
to ensure that a party is told with great precision
what the other party is going to prove in order to prepare his
case.
[16]
The plaintiff
was further hard-put to explain whether his swerving manoeuvre had
been deliberate or resulted from him losing
control after his vehicle
had partially touched the gravel on the left side of the road.
It is also worth mentioning that
after the plaintiff had benefited
from the version allegedly made by his wife to the insurance company
he took no steps, subsequent
to regaining composure, to inform the
insurance company of the true version that resulted in the accident.
All this should
be understood in the context that the plaintiff, on
his own showing, furnished Mr van Breda with two different versions
as to the
occurrence of the accident, having not ever informed Mr van
Breda that at some stage he had been unconscious.
Conclusion
[39]
Has the plaintiff established with the requisite degree of proof that
there was another vehicle involved
in the accident? Assuming that
this has been established, did the driver of the unidentified vehicle
drive in such a way that the
plaintiff was compelled to take
emergency evasive action to avoid a head-on collision on the
plaintiff’s correct side of
the road or did the vehicle
encroach onto the plaintiff’s trafficable side when it was
dangerous or inappropriate to do so?
[40]
In light of the incongruities pointed to above, more particularly the
internal contradictions in the
plaintiff’s evidence and
external contradictions with the response given in the particulars
for trial purposes as to what
caused the accident, I find myself
being not able to find in favour of the plaintiff. If the
accident was caused by the alleged
other vehicle approaching from the
other side with exceptionally bright lights, the plaintiff could and
should have simply taken
his foot off the accelerator, slowed down
and stopped his vehicle, which is what a driver blinded by the lights
is required to
do.
[17]
The
matter of how the plaintiff ended up on the opposite side of the road
is shrouded in mystery. It is not clear what made him
lose control of
his vehicle. Little wonder that the plaintiff was hard put to
explain how the accident occurred.
[41]
In all these circumstances, the plaintiff’s version falls to be
rejected. He has not established
negligence by another driver
in order to establish a claim against the Fund.
Order
[42]
The
plaintiff’s claim is accordingly dismissed with
costs
.
S
M MBENENGE
JUDGE
PRESIDENT OF THE HIGH COURT
Counsel
for the applicant
:
Mr
S H
Cole
Instructed
by :
Stirk Yazbek Attorneys
East
London
Counsel
for the defendant
:
Mr
P E
Jooste
Instructed
by
: Joubert Galpin Searle
Port
Elizabeth
C/o
Kirk Attorneys
East
London
Date
heard
: 05, 06 and 07
November 2018
Date
judgment delivered
:
22 January 2019
[1]
It is alleged that the plaintiff
suffered a cervical 1 fracture (anterior and posterior arches);
multiple avulsion factures of
the transverse processes of the C3-C7
vertebrae; displaced flake fracture of the C6 vertebra; vertebral
artery injury, fracture
of the first rib on the right; fracture of
the left acetabulum; fracture of the right acetabulum and
dislocation of the posterior
hip with sciatic nerve injury causing
drop foot.
[2]
Past hospital expenses; past
medical expenses; estimated future medical expenses; past loss of
earnings; estimated future loss
of earnings and general damages in
respect of shock, pain and suffering, disability, disfigurement and
the loss of amenities
of life (the total amount of the claim being
R4 030 000.00).
[3]
See regulation 2(1)(b) of the
Road Accident Fund Regulations, 2008 (promulgated under section 26
of the Road Accident Fund Act
56 of 1996 (the Act) and published in
Government Notice No. R770 dated 21 July 2008, as amended by
Government Notice No. R347
dated 15 May 2013), which provides:
“
A
right to claim compensation from the Fund under section 17(1)
(b)
of
the Act in respect of loss or damage arising from the driving of a
motor vehicle in the case where the identity of neither
the owner
nor the driver thereof has been established, shall become prescribed
upon the expiry of a period of two years from
the date upon which
the cause of action arose, unless a claim has been lodged in terms
of paragraph
(a)
.”
[4]
This is the test applied in
determining whether a party has been negligent or not.
[5]
The transcript inadvertently
refers to him as “
Stekend
”,
whereas it is clear from his curriculum vitae that his correct
surname is “Stigant”.
[6]
Sic.
[7]
This has not been disputed by
any of the other parties.
[8]
The said question was put as
follows:
“
What
investigations or steps were taken by or on behalf of the plaintiff
designed to identify the “unidentified vehicle”
or the
driver thereof…?”
[9]
One in July 2013 and a different
one in March 2015.
[10]
National Employers’
General insurance v Jagers
1984 (4) SA 437
(E) 440D-G.
[11]
2003 (1) SA 11 (SCA).
[12]
City of Johannesburg
Metropolitan Council v Ngobeni
(314/11)
[2012] ZASCA 55
(30 March 2012).
[13]
Daniels v General Accident
Insurance Co. Ltd
1992 (1) SA 757 (C).
[14]
Farmer’s Winery Group
supra
at para [55].
[15]
Compare with
Jacobs
v Road Accident Fund
(3335/2009) [2012] ZAECPEHC 40 delivered on 19 June 2012 at
para
[24].
[16]
Engelbrecht N.O. and Others v
Moheidien
(2717/2015)
[2016] ZAWCHC 39
(31 March 2016) at para [21].
[17]
See
Flanders
v Trans Zambezi Express (Pty) Ltd
2009 (4) SA 192
paras [14] – [16] and the authorities cited
therein.