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[2016] ZAGPPHC 134
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Human v Road Accident Fund (62174/2013) [2016] ZAGPPHC 134 (8 March 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO: 62174/2013
DATE
OF HEARING: 13 NOVEMBER, 8 DECEMBER
Not reportable
Not of
interest to other judges
DATE: 8/3/2016
In the matter between:
W
H
HUMAN
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
OLIVIER, AJ
[1] The plaintiff and the
defendant agreed to have the merits and the quantum of the action
adjudicated separately in terms of Rule
33(4) of the Uniform Rules of
Court. The court ordered that the merits and quantum be separated. I
have to decide only the merits.
There was an attempt at settlement,
which was unsuccessful.
[2] The plaintiff, Mr
Human, was injured in a motor vehicle accident on the evening of 13
July 2012 at around 20.30 on the
Van der Hoff Road, Pretoria,
involving motor vehicle registration number B…GP of which he
was the driver. The vehicle left
the road and rolled, resulting in
injuries to the plaintiff.
[3] There were no witnesses to
the accident.
[4] The plaintiff contends that
the accident was caused by an unidentified vehicle.
[5] This court essentially has
to determine whether the unidentified vehicle was involved in the
accident, or whether this was a
sole-vehicle accident.
[6] It is trite that the
plaintiff bears the onus to prove on a balance of probabilities that
the insured driver was negligent in
causing the accident.
[7] Two witnesses testified for
the plaintiff: the plaintiff personally, and Mr S S Bezuidenhout, an
accident investigator.
[8] Mr Human testified that he
had been on route to collect a part for a cash-in-transit vehicle, as
part of this job as an operational
manager of Rens Cash-In-Transit,
when the accident occurred. He was familiar with the road
as he regularly drove it
– approximately once every two days.
The road was in good condition, it was straight with one lane in
every direction and
without potholes. He never encountered animals on
the road which could pose a risk to drivers.
[9] As he was travelling, he
noticed a vehicle approaching from the rear at a faster speed than
what he (the plaintiff) was driving.
It looked as if the vehicle
wanted to overtake him. The vehicle then collided with his vehicle at
the right rear, resulting in
the plaintiff’s vehicle skidding.
He has no further recollection of the event and woke up only a few
days later in hospital.
[10] The plaintiff was asked
during cross-examination whether he knew that he would have no claim
against the RAF in the absence
of negligence by another vehicle’s
driver. He answered in the negative, saying that he did not know how
the RAF operates.
[11]
The content of a number of the expert reports to the effect that the
plaintiff had said that he had no recollection of the
accident or the
events leading up to the accident, and that he had been told later
that he had been hit from behind by another
vehicle, were put to the
plaintiff.
[1]
He
did not deny the content of the reports but could not explain this
discrepancy.
[12] The affidavit of the
plaintiff dated 17 March 2013 was also put to him. Defendant’s
counsel argued that this contradicts
the reports, even though the
affidavit pre-dates the reports.
[13] Next to testify was Mr S S
Bezuidenhout, a forensic collision homicide reconstructionist of many
years’ standing. He
compiled a report of 37 pages based on
documents, photographs and reports made available to him. I am
satisfied that he qualifies
as an expert.
[14] In support of his testimony
Mr Bezuidenhout relied on several photographs of the accident scene
and the vehicle. As Mr Bezuidenhout
did not examine the vehicle
personally, he was dependant on photographs of the vehicle and
accident scene taken some time after
the collision to draw his
conclusions and to compile his report. Defendant’s counsel, in
closing argument, challenged the
admissibility of the photos on the
basis that they had not been properly proved as correct in terms of s
34 of the Civil Proceedings
Evidence Act 25 of 1965. There was no
oral evidence to authenticate these photographs. I shall deal with
the probative value of
the photographs later.
[15] Mr Bezuidenhout described
the accident as a ‘vehicle roll-over collision’. He
testified that damage had been caused
to the right rear and left
front of the plaintiff’s vehicle, and that this was due to an
impact with another vehicle. He
methodically dealt with each
photograph of the vehicle and pointed out how he had come to his
conclusions. During cross-examination
he conceded that other possible
causes for the accident could not be excluded.
[16] He
conceded that he did not visit the accident scene as he had been told
by the plaintiff’s attorneys that it was unnecessary
for him to
do so. In his report he stated that no evidence would be available at
the scene due to the passage of time.
[17] The
defendant called no witnesses and at the conclusion of the case
argued in favour of absolution from the instance. In order
to escape
absolution, the plaintiff must have adduced sufficient evidence to
establish a prima facie case.
[18] This
case is unusual in that there were no witnesses to the incident who
could testify to the presence of another vehicle.
There is only the
evidence of the plaintiff.
[19]
Plaintiff’s counsel contended that the court can make a finding
in favour of the plaintiff in the absence of eyewitness
testimony. In
Motor Vehicle Assurance Fund v Dubuzane
1984 (1) SA 700
(A)
there were no witnesses to an incident involving a pedestrian, and no
version of the events, and it therefore had to be reconstructed.
The
Appellate Division confirmed the finding of the court a quo that on
the probabilities a motor vehicle had caused the death
of the
pedestrian, rather than an alternative cause, eg assault.
[20] In
respect of a single witness, the fact that his evidence is not
contradicted does not mean that it is therefore true.
Siffman v
Kriel
1909 TS 1
538 at 543.
And similarly in
Daniels v
General Accident Ins Co Ltd
1992 (1) SA 757
(C)
it was said that
“the single witness, more particularly where he 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.” Related to this is the following
from
S v Sauls and
Others
1981 (3) SA 172
(A)
at 180F:
The trial judge will weigh his
evidence, will consider its merits and demerits and, having done so,
will decide whether it is trustworthy
and whether, despite the fact
that there are shortcomings or defects or contradictions in the
testimony, he is satisfied that the
truth has been told.
[21] The
plaintiff was a nervous witness and seemed to me to be slightly
overwhelmed by having to testify. Demeanour and impression
are only
two of various assessment factors to consider in determining the
credibility of a witness.
[22]
In his analysis of the plaintiff’s testimony, Plaintiff’s
counsel submitted that the plaintiff had demonstrated
no motive to
fabricate a version. He had made several concessions, which
plaintiff’s counsel says points to his truthfulness.
Also, he
was not argumentative. Plaintiff had conceded during
cross-examination that he could have informed experts that he had
had
a loss of recollection of events a day prior to the accident.
However, this admission does not mean that he suffered total
memory
loss the day before the accident and night of the accident. He
specifically remembers what happened prior to the accident,
says
counsel. None of these experts were called to testify to this. The
“versions” in reports are unreliable, says
counsel,
submitting that the information in expert reports is for purposes of
injuries and employment to determine quantum, not
merits and that
“background information contained in the medico-legal report
has very little or no probative value.”
[2]
He
submitted that the versions in the medico-legal reports were at
variance with the objective facts. There could never be merit
in the
suggestion that the plaintiff informed the doctors that he was later
told that a car had driven into him from the rear,
his vehicle was
forced off the road and it overturned. There were no witnesses to the
accident.
[23]
Defendant’s counsel, on the other hand, submitted that the
plaintiff was untruthful, either in his testimony to the court,
or in
his interviews with the medical experts, considering the
contradictions between his evidence and the medico-legal reports.
He
characterised the plaintiff as an unreliable witness.
[24]
Defendant’s counsel also pointed out the following in closing
argument. It took the plaintiff approximately eight months
to depose
an affidavit. There is no evidence of any police report or an
insurance claim referring to the unidentified vehicle.
The Employer’s
Report of an Accident describes the accident as loss of control of
the vehicle and “rolled vehicle”.
[3]
The
first medical report indicates that he “lost control of the
care + car rolled”.
[4]
The
hospital admission record simply states “MVA car rolled 5
times”. It seems to me that from these reports, however,
it
cannot necessarily be inferred that there was not another car.
[25]
Plaintiff’s counsel contended that defendant’s counsel
during cross-examination did not suggest to the plaintiff
that he was
not telling the truth or that his version was improbable, as he
should have done.
[26] I need
to consider the significance of the inconsistencies measured against
the whole of the plaintiff’s testimony in
determining his
credibility and reliability. The mere fact that there were
contradictions in parts of his evidence is not in itself
sufficient
ground for rejecting the plaintiff’s evidence in its entirety.
Despite these inconsistencies, I nevertheless believe
his version of
what happened on the night of the accident. Victims sometimes muddle
their testimony and imperfect recollection
of traumatic events is not
uncommon.
[27] I now
turn to the evidence of Mr Bezuidenhout, who used certain photographs
as one of the bases of his report. Defendant’s
counsel made
certain submissions regarding the admissibility of these photographs
as evidence at the end of the trial. A photograph
is a document and
there must be proof of its accuracy from the photographer or someone
else to show that the photo is indeed a
true likeness of the subject
of the photo.
[28]
Defendant’s counsel conceded that the vehicle shown in the
photos are indeed of the vehicle that the plaintiff was driving
on
the evening of the accident. But the photos of the accident scene,
the alleged point of impact or the final resting position
of the
vehicle were contested.
[29] I do not
attach any weight to the photographs of the general scene, the
alleged point of impact or the final resting position
of the vehicle.
Neither the plaintiff nor the expert witness could testify to the
authenticity of these photographs and related
details. However, the
photos of the vehicle are in order.
[30] Eksteen
J in
Motor Vehicle Assurance Fund v Kenny
1984 (4) SA 432
(E)
at 436/7 said the following regarding eye witness testimony and
expert opinion:
Direct or credible evidence of what
happened in the collision, must, to my mind, generally carry greater
weight than the opinion
of an expert, however experienced he may be,
seeking to reconstruct the events from his experience and scientific
training.
An expert’s view of what might
probably have occurred in a collision must, in my view, give way to
the assertions of the direct
and credible evidence of an eye witness.
It is only where such direct evidence is so improbable that its very
credibility is impugned,
that an expert’s opinion as to what
may or may not have occurred can persuade the court to his view.
[31] In the
present case there were no witnesses to the incident other than the
plaintiff, who testified that he can remember only
some of the
details of the accident. In such an instance, it is particularly
important to pay close attention to the opinion of
the expert to
determine whether his analysis and reconstruction of the accident
supports the evidence of the plaintiff as the sole
witness to the
accident. Without the acceptance of the testimony of the expert, the
plaintiff cannot succeed in his claim.
[32] The
expert witness performed well under sustained cross-examination. He
conceded several points during cross-examination, including
that the
damage to the vehicle of the plaintiff could have been caused by
something other than a collision with another vehicle.
He was
truthful. He carefully considered his answers. Considering the
totality of his evidence, I deem him to be a credible witness.
[33] I need
to determine the probative value of his evidence. He was thorough in
explaining the reasons for his conclusion. But
I cannot simply accept
his evidence that another vehicle had been the cause of the accident.
I need to satisfy myself personally
that his conclusions are correct.
Experts are there to assist the court in making its findings, but it
is the court that makes
findings of fact, not the expert.
S v
Gouws
1967 (4) SA 527
(EC)
.
[34]
Admittedly, there are concerns about the way that the expert
conducted the enquiry. He never visited the scene. His entire
report
is based on the photographs he was given. The expert witness sent his
original report of August 2015 to the plaintiff’s
attorneys for
consideration and their input, which could be a factor to consider in
the independence of the report. This first
report was never produced
despite requests from the defendant; only the final report was placed
before the court. However, these
shortcomings are not necessarily
fatal.
[35] The
expert should be independent, and uninfluenced by the party calling
him as an expert witness in support of his or her case.
In
Schneider
NO and Others v Aspeling and Another
2010 (5) SA 203
(WCC) at
211-212, Davis J provided a summary of the duty and role of the
expert:
“
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument of the
particular
party. But that does not absolve the expert from providing the court
with as objective and unbiased opinion, based on
his or her
expertise, as is possible. An expert is not a hired gun who dispenses
his or her expertise for the purposes of a particular
case. An expert
does not assume the role of an advocate, nor give evidence which goes
beyond the logic which is dictated by the
scientific knowledge which
that expert claims to possess.”
In my opinion
the expert was sufficiently independent for me not to exclude his
evidence. I accept his evidence and his conclusions.
[36]
Plaintiff’s counsel submitted that it is very difficult to
think of a situation where the plaintiff’s vehicle could
have
impact to the front as well as the back under circumstances where it
was only a single vehicle accident. The damage to the
vehicle was
consistent with the plaintiff’s version, and so the
probabilities should favour the plaintiff.
[37] The expert’s evidence
has convinced me that the probabilities favour the plaintiff’s
version. The sum of his evidence
leads me to the conclusion that the
plaintiff’s vehicle was hit from behind by another vehicle.
ORDER
[38] In the result I make the
following order:
1.
The
defendant is liable for the plaintiff’s agreed or proven
damages.
2.
The
defendant must pay the costs, including the costs of counsel.
[1]
See
Dr Birrell, the orthopaedic surgeon p 62 part C of the Bundle; Dr
Daan de Klerk neurosurgeon. P 31 part C of the Bundle.
[2]
Heads of argument.
[3]
Bundle F p 32 item 38.
[4]
Bundle
F p 27 item 2.