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[2016] ZAGPPHC 720
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Levendal v Road Accident Fund (9014/2014) [2016] ZAGPPHC 720 (1 April 2016)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF
SOUTH
AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 9014/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
DATE:1/4/2016
In
the matter
between:
NOHAM
LEVENDAL
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
SIKHWARI,
AJ
[1]
On the 29
th
day of July 2010 at about 21h15 in the evening
at or along the tarmac main road from Sabie to Lydenburg in
Mpumalanga province
a motor collision accident occurred between the
plaintiff's motor vehicle bearing register number [F....] the insured
vehicle bearing
motor register number [D....] being driven by one
Louis Pat Makwakwa (hereinafter referred to as "Makwakwa").
The insured
driver was driving from Sabie to Lydenburg direction
whereas the plaintiff was driving towards the town of Sabie.
[2]
At the beginning of the trial, the parties agreed that the issue
before court for adjudication is the contributory negligence
of the
plaintiff in the occurrence of the said motor collision. The issue of
quantum will be postponed
sine
die
pending the decision
on contributory negligence and / or apportionment of damages.
[3]
The defendant's basis for claiming contributory negligence on the
part of the plaintiff is based on the allegations that the
collision
has occurred on the side of the correct lane of the insured driver.
[4]
Professor Gerald Lammer testified as an expert witness of the
plaintiff. He has made a good impression to the court with his
evidence which was fair and objective as well as logically sound. In
Coopers
(South
Africa)
Ltd
v Deutsche
Gesellschaft fur
Schadlingsbekampfung
MBH
1976 (3)
352 SA 352
(A) at page 371G-H, the court held that "as
I see it, expert's opinion represents his reasoned conclusion based
on certain
facts or data, which are either common cause, or
established by his own evidence or that of some other competent
witness. Except
possibly where it is not controverted, an expert's
bald statement of his opinion is not of any real assistance. Proper
evaluation
of his opinion can be undertaken if the process of
reasoning which led to the conclusion, including the premises from
which the
reasoning proceeds, are disclosed by the expert. Even
bearing in mind that the addressee of the summary is probably also an
expert,
I am of the opinion that the addressee may not be able to
evaluate the opinion, so as to enable him to advise the party
consulting
him thereon, if he is not informed in "the summary of
the reasons" in for the opinion. Having regard to the above
meaning
of the word "reasons" in the context of the
sub-rule as a whole and the purpose thereof, I am of the opinion that
the
summary must at least state the sum and substance of the facts
and data which lead to the reasoned conclusion (i.e. the opinion).
Where the process of reasoning is not simply a matter of ordinary
logic, but involves, for example the application of scientific
principles, it will ordinarily be necessary to set out the reasoning
in summarised form, The addressee should then be in a position
to
advise the party consulting him whether the opinion can be
controverted, and, if so, what evidence is required to do so".
[5]
In
Michael and
Another
v
Linksfield
Park
Clinic (Pty}
Ltd and
Another
[2002] 1All SA 384
(SCA);
[2001] JOL 7984
(SCA);
2001 (3) SA 1188
(SCA) the court stated
in paragraph 36 that "what is required in the evaluation of such
evidence is to determine whether and
to what extent their opinions
advanced are founded on logical reasoning. That is the thrust of the
decision of the House of Lords
in the medical negligence case of
Balitho
v City
of Hackney
Health
Authority
[1997] UKHL 46
;
[1998] AC 232
(HL. €]. With the relevant
dicta
in the speech of Lord Browne-Wilkinson we respectfully agree.
Summarised they are to the following effect".
[6]
Professor Lammer's evidence was not contradicted in any material
respect. He compiled a summary of his opinion which was accepted
as
exhibit A. His conclusion that the collision has occurred on the
correct lane of the plaintiff's motor vehicle is supported
by many
facts, including the debris, oil and smash glasses which were found
on the correct lane of the plaintiff, the brake marks
which were on
the correct lane of the plaintiff and the position of the plaintiff's
vehicle after the collision. It is common cause
that after the
collision, the plaintiff was unconscious. The damage in his vehicle
was so severe that it caught fire which was
quickly extinguished with
the assistance of the insured driver. This excludes the possibility
of it being driven away from the
point of impact. Professor Lammer
testified that the more the plaintiff's vehicle is put in its
incorrect lane, the more unlikely
it would end where it was.
[7]
Police officers who attended to the scene are also confirming the
same facts as observed by Professor Lammer. Police officers
Clayton
Mnisi and Stanley Mathlake were objective credible witnesses who made
a good impression to the court.
[8]
The brother of the plaintiff, one Bieber Levendal, and the mother of
the plaintiff, one Gerda Levendal-Potgieter have also confirmed
the
position of the plaintiff's motor vehicle after the accident. They
denied that the plaintiff was under the influence of alcohol.
They
denied that they have threatened to assault the insured driver. They
denied having removed alcohol or liquor bottles from
the plaintiff's
vehicle on their arrival at the scene. They said that they were
concerned about saving the life of the plaintiff.
[9]
Aaron Mokoena is a security officer who works next to the scene of
the collision. He testified that he heard the bang and immediately
saw the insured vehicle reversing back. He assisted the insured
driver with water to extinguish the fire on the plaintiff's vehicle.
This was the case for the plaintiff.
[10]
The defendant called one witness, the insured driver. He testified
that he had offered a lift to some three people who were
going to
York Timber for work. Then he saw the vehicle of the plaintiff
driving its incorrect lane and coming to the lane of the
insured
vehicle. When asked as to for how long was the plaintiff's vehicle in
his (insured driver's) lane, he was evasive and answered
that he was
not sure. He testified that he could not avoid the accident because
on his left side there was an electricity transformer.
When it was
shown to him that photograph 1 in page 91 shows enough space for him
to avoid the collision by swerving to the far
left, he became evasive
and had no answer except to insist that there was a transformer.
[11]
When confronted by plaintiff's counsel in cross-examination about the
discrepancy between his evidence and the statement he
made to the
police after the accident where he made mention that he had given a
lift to one person, the insured driver was evasive
and came with no
answer except to state that he denies the police version that he gave
a lift to one person. In his statement to
the police after the
accident he did not make any mention of assisting the plaintiff by
removing him from the car, contrary to
what he testified in court. He
has no answer to the question as to what has caused the plaintiff's
vehicle to be where it was found
after the accident.
[12]
The insured driver did not make a good impression as a witness. He
was evasive and unnecessarily argumentative. He failed to
answer
simple questions even when the said questions were further clarified.
He was denying everything including facts which are
obvious or were
earlier not put ion dispute. He denied that the road is straight as
depicted in the photographs and he insisted
that there is a curve
which might have beaten the plaintiff and caused the plaintiff to
lose control of his vehicle and ended up
encroaching into the lane of
the insured driver. He claimed that the plaintiff was driving at the
speed of 80-90km/h whereas he
was not in a position at all to measure
the said speed in view of the fact that the plaintiff and the insured
driver were driving
towards the opposite directions. He testified
that the family of the plaintiff wanted to assault him whereas he has
also testified
that he never disclosed to anyone that he was the
driver of the insured vehicle until the arrival of the police.
[13]
The version of the insured driver is irreconcilable with the version
of the plaintiff. In
SFW
Group
Ltd
&
Another
v
Martell
et
Cie
&
Others
2003
(1) SA 11(SCA)
the court stated in paragraph 5 that "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 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 tum 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 facts 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),(iii) and (v) above, on (I) the opportunities he had to
experience or observe the events 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.
n 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''
[14]
The version of the defendant as presented by the insured driver is
not reasonably probably true. The insured driver has no
reasonable
explanation as to why he did not request his passenger(s) to make a
statement to the police in order to give credibility
to his (insured
driver) version of events. The insured driver has contradicted
himself in many material respects relating to the
number of the
passengers he had, the statement he made to the police under oath,
the admission to the police officers that he revered
the insured
vehicle in order to avoid catching fire from the plaintiff's vehicle
which he later denied in his evidence, the improbability
of the point
of impact which he said it was on his correct lane of the road.
[15]
In
Maritime
&
General
Insurance
Co
v
Sky
Unit
Engineering
Ltd
1989 (1) SA 867
(TPD) at page 8878-H the court stated that:
"Since
our treatment of the circumstantial evidence in this case involves
the sort of reasoning that was discussed in
R
v
Blom
1939 AD at 202 and 203, it is appropriate to say a few words on the
approach to be adopted. We need do little more than to quote
what was
said by 5elke J In
Grovan
v
Skidmore
1952 (1) SA
732
(N) AT 733H- 734B.
'I
ought perhaps to mention now a submission made by
Mr
Harcourt
in the course of his argument, to the effect that the principles,
enunciated In
R v
Blom
1939 AD 158
at 203, govern the
making of Inferences In every case, whether criminal or civil.
Mr
Harcourt
relied particularly on the second principle, namely that
"the proved facts should be such that they exclude every
reasonable
inference from them save the one sought to be drawn",
and he invited me to apply this principle generally in the making of
all inferences in the present case, and submitted that, on that
footing, the Court could not find that the plaintiff had proved
the
case of fraudulent misrepresentation which he set out to make. Now it
is trite law that, in general, in finding facts and making
inferences
in a civil case, the Court may go upon a mere preponderance of
probability, even although its so doing does not exclude
every
reasonable doubt. n a criminal case, however, as I understand It,
every fact material to establish the guilt of the accused
must,
unless it is admitted, be established by proof beyond reasonable
doubt, and inferences from facts must, in order to be permissible,
be
such as leave no reasonable doubt of their propriety and correctness.
That is a difference between the proof requisite In civil
and
criminal proceedings.
R v
Blom
(supra)
was a
criminal case, and, in my opinion, it is a fallacy to suppose that
the second principle in
Blom's
case represents the minimum
degree of proof required In a civil case, for, in finding facts or
making inferences in a civil case,
it seems to me that one may, as
Wigmore conveys in his work on
Evidence
3rd ed para 32, by
balancing probabilities select a conclusion which seems to be the
more natural, or plausible, conclusion from
amongst several
conceivable ones, even though that conclusion be not the only
reasonable one.'
This
approach was approved of by Holmes JA in
Ocean
Accident
and Guarantee Corporation Ltd v Koch
1963 (4) SA 147
(A) at
159C-D and by Viljoen JA in
AA Onderlinge
Assuransie-Assosiasie
Bpk
v
De
Beer
1982 (2) SA 603
(A) at 614G-615B.
In
the
Ocean
Accident
case
supra
Holmes JA
commented as follows on the use of the word 'plausible' by Selke J in
the
Govan
case supra:
'Ineed
hardly add that 'plausible' is not here used in its bad sense of
'specious', but in the connotation which is conveyed by
words such as
acceptable, credible, suitable.
(Oxford Dictionary and Webster's
International Dictionary.)'
"
[16]
On a balance of probabilities, this court rejects the version of the
defendant as false and improbable. There was no contributory
negligence on the part of the plaintiff.
[17]In
the closing heads of argument the defendant raised the issue of seat
belts for the first time. Defendant submitted that the
plaintiff was
not wearing the seat belt and as such that should amount to 20°/o
contributory negligence on the part of the
plaintiff. Such an issue
was firstly raised by Makwakwa in his evidence although it was not
pleaded in the defendant's plea.
[18]
The provisions of Rule 22(2) provides that ''the defendant shall in
his plea either admit or deny or confess and avoid all
the material
facts alleged in the combined summons or declaration or state which
of the said facts are not admitted and to what
extent, and shall
clearly and concisely state all material facts upon which he relies".
[19]
The authoritative writer on high court practice,
Van
Loggerenberg,
in his work entitled
"Erasmus' Superior
Court
Practice',
2
nd
Ed, 2015, at page 01-262
has stated that ''the effect of denial is to put the fact denied in
issue between the parties, and also
all the necessary implications
which flow from it, and to Advise the plaintiff that he will be
required to prove this at the trial".
[20]
The issue as to whether the plaintiff was wearing seat belts or was
never pleaded for the plaintiff to replicate, if necessary,
and was
never put to the witnesses of the plaintiff for them to comment. This
court will not consider it at this stage because
doing otherwise will
prejudice the plaintiff and compromise the interests of justice and
fair trial.
[21]
n
Trans-Drankensburg
Bank
Ltd
(Under
Judicial
Management)
v Combined Engineering
(Pty) Ltd and Another
1967 (3) SA 632
(D) at page 641A-B the
court stated that "having already made his case in his pleading,
if he wishes to change or add to this,
he must explain the reason and
show
prima
facie
that he has something deserving of a
consideration, a triable issue; he cannot be allowed to harass his
opponent by an amendment
which has no foundation. He cannot place on
the record an issue for which he has no supporting evidence, where
evidence Is required,
or, save perhaps in exceptional circumstances,
introduce an amendment which will make the pleadings expiable..."
[22]
I align myself with the above formulation. The issue of seat belts
cannot be introduced at this late in the circumstances of
this case.
The defendant has no witness who will testify on the issue except the
speculative evidence of the insured driver. No
credible basis has
been laid to sustain the test as stated above in
Trans-Drankensburg
Bank Ltd (Under Judicial Management)
v
Combined
Engineering
(Pty) Ltd and Another.
[23]
In its plea, the defendant has raised three special plea; being non
compliance with
Regulation 3((1)(a)
& (b) of the
Road Accident
Fund Amendment Act, No 19 of 2005
, premature summons and lack of
jurisdiction. The defendant has led no evidence on any of the special
plea raised in his plea. No
submissions were made regarding any of
the special plea. The onus is on the defendant to prove the special
plea raised in the plea.
The defendant has failed to discharge such
an onus in this case.
[24]In
the premises, I make the following order:
1.
That all the special pleas raised by the defendant are dismissed.
2.
That the defendant is liable for 100°/o of the plaintiff's proven
or agreed damages;
3.
That the defendant is ordered to pay the costs of the merits trial
for the following dates: 17, 22nd and 29th
days of March 2016 as well
as costs for drafting heads of argument;
4.
That the issue of quantum is postponed
sine die.
It is noted
that the defendant has no objection to plaintiff applying for a
preferential trial date.
DATED
IN PRETORIA ON THIS THE 01
st
DAY Of APRIL 2016
__________________________
SIKHWARI,
AJ
ACTING
JUDGE OF THE HIGH COURT, PRETORIA