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[2015] ZAGPPHC 322
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Smith v Road Accident Fund (A590/2014) [2015] ZAGPPHC 322 (12 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
DIVISION. PRETORIA
)
CASE NO: A590/2014
DATE: 12 MAY 2015
REPORTABLE
NOT OF INTEREST TO
OTHER JUDGES
In the matter
between:
STEFANI
SMITH
….................................................................................................................
APPELLANT
And
ROAD
ACCIDENT
FUND
....................................................................................................
RESPONDENT
JUDGMENT
STRAUSS, AJ:
1. The Appellant
appeal against the judgment of the regional court, Pretoria, granting
absolution from the instance with costs,
after close of the
appellant’s case for damages resulting from an accident that
occurred between the appellant and the respondents
insured driver.
2.
The parties in the court
a
quo
agreed
that merits and quantum be separated and after the appellant had
testified in regards to the merits of her claim her case
was closed,
the respondent applied for absolution from the instance, which was
then granted by the court a
quo.
3.
In argument on appeal before this court the respondent raised two
points
in limine
regarding
non-compliance with a power of attorney filed on behalf of the
appellant and non-compliance in filing the leave to appeal
late.
These two points however were abandoned after the respondents counsel
obtained such instructions, and the only issue left
before this court
was to decide if absolution of the instance should have been granted
by the court a
qou
after
the appellant had closed her case.
4. The appellant
testified that on the evening of 11 November 2011, at 19h30 she was
traveling in the fast lane of the N1 highway
at 120 km per hour.
There is an emergency lane on the far left side of the road, the
insured driver was stationary on the most
right side of the road and
she only noticed the insured driver shortly before the time of
impact, when she collided with the rear
end of his vehicle. The
insured driver’s vehicle was protruding significantly into her
lane of travel. She did not see any
head lights, hazard indicators
that were switched on, and or any triangles placed behind the insured
drivers vehicle.
5. In cross
examination it was put to the appellant that the insured driver had
put out a triangle to warn traffic as well as having
his hazards on,
and that he had been stationary for approximately an hour prior to
the collision. It was also put to the appellant
that many other
vehicles had passed the insured driver’s vehicle and had
therefore seen his vehicle. It was put to the appellant
that the
insured driver had moved as far to the right side of the road as
possible, and only a small part of his vehicle was protruding
into
the lane of travel of vehicles passing him from the back. It was put
to her that she did not maintain a proper look out and
her negligence
was therefore the sole cause of the collision.
6.
The court a
quo
in
dismissing the appellants claim based its judgment on the statements
put to the appellant under cross examination. The court
a
quo
also
had regards to the particulars of claim of the appellant in that in
such particulars no specific grounds of negligence of the
insured
driver, as testified by the appellant, were set out therein. The
court a
quo
however
accepted that the one ground of negligence stating that the insured
driver was negligent in that
“
he
did not have due consideration to other road users”
could
be applied to the facts of the case. The court
a
quo
however
found that the appellant had not quit her of her onus to prove that
the insured driver had been negligent in this stated
ground of
negligence.
7. I will first have
regard to the law in regards to factors to be considered by a court
when granting or not granting absolution.
The test is clear: the
plaintiff must make out a prima facie case in the sense that there is
evidence relating to all the elements
of a claim on the strength of
which the court can find in favour of the plaintiff.
8.
The test for absolution to be applied by a trial court at the end of
a plaintiff’s case was formulated in
Claude
Neon Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A) at 409G-H
in
these terms:
“
when
absolution from the instance is sought at the close of plaintiff’s
case, the test to be applied is not whether the evidence
led by the
plaintiff establishes what would finally be required to be
established but whether there is evidence upon which a court
applying
its mind reasonably to such evidence could or might (not should or
ought to) find for the plaintiff” Gascoyne v
Paul and Hunter
1917 TPD 170
at 173; Ruto Flour Mills (Pty) Ltd v Adelson (2)
1958
(4) SA 307
(T).”
9. This implies that
an appellant had to make out a prima facie case, in the sense that
there is evidence relating to all the elements
of the claim, to
survive absolution because without such evidence no court could find
for the appellant.
10.
As set out in
Marine & Trade Insurance
Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 37G-38A; Schmidt
Bewysreg 4th ed at 91-2)
.
“As far as inferences from the evidence are concerned, the
inference relied upon by the plaintiff must be a reasonable one,
not
the only reasonable one (Schmidt at 93). The test has from time to
time been formulated in different terms, especially it has
been said
that the court must consider whether there is “evidence upon
which a reasonable man might find for the plaintiff”
(Gascoyne
(loc cit)) - a test which had its origin in jury trials when the
“reasonable man” was a reasonable member
of the jury
(Ruto Flour Mills). Such a formulation tends to cloud the issue. The
court ought not to be concerned with what someone
else might think;
it should rather be concerned with its own judgment and not that of
another “reasonable” person or
court. Having said this,
absolution at the end of a plaintiff’s case, in the ordinary
course of events, will nevertheless
be granted sparingly but when the
occasion arises, a court should order it in the interests of justice.
’ See Gordon Lloyd
Page & Associates v Rivera
2001 (1)
SA 88
(SCA) at 92E-93A.
11. It has also been
stated that a party who applies for absolution from the instance at
the end of a plaintiff’s case takes
a risk, even though the
plaintiff’s case be weak. If the application succeeds the
plaintiff’s action is ended, the
plaintiff must pay the costs
and the defendant is relieved of the decision whether to lead
evidence and of having his body of evidence
scrutinized should he
choose to provide it. But time and time again plaintiffs against whom
absolution has been ordered have appealed
successfully and left the
defendant to pay the costs of both the application and the appeal and
with the need to decide what is
to be done next.
12.
In
Build-A-Brick
BK en 'n Ander v Eskom
1996 (1) SA 115
(0) at 123 A - E.
“
Hattingh
J found:
“
that
the test to be applied in determining the question whether the
defendant’s application for absolution from the instance
should
be granted is not whether the adduced evidence required an answer,
but whether such evidence held the possibility of a finding
for the
plaintiff, or put differently, whether a reasonable Court can find in
favour of the plaintiff. Consequently, at the absolution
stage the
plaintiff’s evidence should hold a reasonable possibility of
success for him and should the Court be uncertain
whether the
plaintiff’s evidence has satisfied this test, absolution ought
to be refused.”
13.
The question
in
casu
is
whether the appellant had crossed the low threshold of proof that the
law sets after her case was closed but the defendant’s
was not.
14.
The respondent argued in essence that the court a
quo
was
correct in granting absolution only based on the evidence of the
appellant in that she had not quitted herself of her burden
of proof
on a
balance
of probabilities
to
convince the court that she was not negligent in colliding with the
rear end of the respondent insured vehicle which was stationary
next
to the far right lane (fast lane) after it had broken down.
15. Their main
criticism of the appellant’s version is that she did not see
the insured driver earlier and only noticed it
shortly prior to
collision, she therefore took no evasive action. They argue that she
did not keep a proper look out and must be
criticised because she did
not see the warning signs placed by the insured driver, and she could
also not explain why other vehicles
were able to pass the insured
driver without collision.
16. The respondent
conceded that any statement in cross examination was not evidence,
and this court should not take note thereof
but simply find on the
evidence of the appellant that she had not proven any percentage of
negligence on the side of the respondent
insured driver.
17.
The above concession is rightly made but to the contrary the argument
of the respondent that the onus on the appellant was one
of a
balance
of probability
after
the close of her case, is incorrect. The principal set out in case
law mentioned
supra
clearly
indicate that at absolution stage, if the appellant’s evidence
should have held a reasonable possibility of success
for her, and if
the court a
qou
was
uncertain whether the appellant’s evidence has satisfied this
test, absolution ought to have been refused. This court
must consider
whether there was “evidence upon which a reasonable man might
have found for the appellant.
18. This court
however also took issue with the pleadings in that the specific
grounds of negligence pleaded by the appellant in
her particulars of
claim do not refer to the specific acts of negligence of the
respondent. At a mere glance of the particulars
it is the normal
“catch all” grounds pleaded in summons’s against
the respondents. Similarly the plea of the
respondent were also the
normal denial and contributory negligence grounds pleaded.
19.
On this point the following can be said. Having regard to the
pleadings the appellant failed to plead specific grounds of
negligence
of the insured driver’s part, inter alia that he was
stationary next to the road encroaching on her lane of travel,
without
any warning signs and hazard lights and or a triangle and
that he had brought his vehicle to a standstill at a place and time
when
it was inopportune to do so. That he also failed to warn traffic
of the dangerous situation created by his vehicle, and that he
did
not utilise the emergency lane. This was certainly the evidence of
the appellant in the court a
quo
but
no such grounds of negligence were contained in the particulars of
claim.
20. As I understand
the law, in issuing summons the appellant was obliged to allege
negligence on the part of the other in order
to prove liability, and
vice versa, each party must prove what it alleges. In other words,
the saying he who alleges must prove,
applies to both parties. Thus,
in the present instance the appellant had to prove that the
respondent was the cause of the collision
on specific grounds of
negligence with reference to what transpired on the day of the
collision.
21.
In regards to the specific grounds of negligence not pleaded but
testified to under oath, an objection by counsel for respondent
in
the court a
quo
was
raised. In answer to this, it was argued on behalf of the appellant
in the court a
quo
that
paragraph 4.4 and 4.6 of the particulars of claim were wide enough to
include these grounds of negligence as paragraph 4.4
stated
“
he
failed to have due consideration to other road users of the road”
Paragraph 4.6:
“
He
failed to take any or adequate steps to avoid the accident when by
the exercise of reasonable care and diligence he could and
should
have done so”
22. This was also
the argument of counsel for the appellant in this court. The rule
that parties are limited to their pleading is
apposite in these
circumstances. This rule is normally upheld due to the fact that a
party cannot be allowed in a trial to canvass
an issue not contained
in its pleadings, as this element of surprise is prejudicial to the
party being unaware what case it had
to meet.
23.
However, this court cannot find that the respondent was caught
unawares and could not prepare its case in reply to the evidence
of
the appellant in the court a
quo.
The
versions by both parties were canvassed and discussed by discovery
and pre trials held between them. Thus all the parties in
the court a
quo
knew
the case of the other but it was certainly not with any particularity
and or to specific extend, pleaded in the pleadings.
24. The issue,
should not be the tendered evidence of the appellant as to the
insured driver’s specific negligence which were
all material
facts and are all specific grounds of negligence, but could these
grounds be in general incorporated in the maxim
“not having
regards to other road users or exercising reasonable care”.
25.
The issue is, I find, that if these were material facts on which the
appellant relied to prove her case did the appellant not
have to
prove these facts in order to prove that the respondent’s
insured driver was negligent. It was conceded that these
grounds were
not included in the particulars of claim but counsel for the
appellant argued that even if they were not specifically
mentioned
the appellant in the court a
quo
did
not attempt to canvas another issue which was not pleaded.
26.
The question this Court asks itself is whether or not inferences of
negligence can be drawn from the evidence led by the appellant
which
might have obliged the court
a
quo
to
have the respondent to place evidence before it in rebuttal. Even
though the appellant did not call upon the existence of
circumstantial
evidence, justice will be seen to have been done if I
look into this aspect.
27.
Care should be taken by courts when they attempt to draw inferences
from the proven facts in a case that the exercise should
not amount
to reliance on conjecture and speculation. Reference to conjecture
and speculation is best demonstrated among others
in the case of
Casswell v Powell Duffryn Associated Collieries Ltd
1939 (3) All ER 722
at 733
as
follows:
“
Inference
must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are objective facts
from which to
infer the other facts which it is sought to establish ... But if
there are no positive approved facts from which
the inference can be
made, the method of inference fails and what is left is mere
speculation or conjecture.”
28.
It is trite that in civil cases at this stage of the proceedings when
absolution is sought, a plaintiff seeking to invoke reliance
on
inferences should merely show that the inference they seeks to rely
on and which they want the court to make is the most readily
apparent
and acceptable from a number of possible inferences. See
AA
Onderlinge Assuransie Assosiasie Bpk v De Beer
1982 (2) SA 603
(A) at
614H-615B.
The
decision follows on an earlier one of
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A)
at 38H
wherein
the learned justice expressed the following view:
“
Hierdie
skyn daarop te dui dat by ‘n aansoek om absolusie aan die einde
van ‘n eiser se saak, daar nie
'n
oomeging van
verskillende moontlike afleidings sou geskied nie, maar slegs ‘n
bepaling of een van die redeiike afleidings
ten gunste van die eiser
is."
29.
Sight should at all times not be lost that what is required is that
only one reasonable inference is sufficient for a
prima
facie
inference
of negligence to be drawn. Circumstantial evidence depends ultimately
upon facts which are proved by direct evidence.
When we deal with
circumstantial evidence we should always bear in mind that its use
involves an additional source of potential
error because the court is
not immune from being mistaken in its reasoning.
30.
As stated in
Ocean Accident & Guarantee
Corporation Ltd v Koch
1963 (4) SA 147
(A)
,
“
the inference which the
court seeks to or may draw may be a non sequitur or it may overlook
the possibility of other inferences
which are equally probable or at
least reasonably possible. It may happen that the trier of fact is so
pleased at having thought
of a theory to explain the facts that he or
she may tend to overlook inconsistent circumstances or assume the
existence of facts
which have not been proved and which thus cannot
legitimately be inferred. ”
31.
On the evidence tendered by the appellant in the court a
qou
her
evidence provided enough facts and details for a reasonable inference
that would be sufficient for a
prima
facie
inference
of negligence on the insured driver’s side, to be drawn. The
degree of negligence I will not venture to speculate
about, but
certainly in the circumstances any facts leading to such an inference
was enough to give the benefit of the doubt to
the appellant to
prevent absolution after her evidence.
32. Counsel for the
appellant in argument when faced with the lack of the particular
grounds of negligence in the particulars of
claim, changed track in
continuing to argue on the pleadings, and they then sought an
amendment thereof, and they did so also after
Tolmay J, directed
several questions in this regards.
33.
It is trite that court of appeal has the powers under provision of
section 22 of the Act to allow an amendment of pleadings
on appeal,
the amendment will only be allowed in cases in which the issues have
been thoroughly canvased at trail in the court
a
quo.
34.
The respondent conceded that the issues between the parties were
thoroughly canvassed at trail and further that the respondent
would
not object to any amendment sought. Counsel for the appellant
provided this court with a hastily drafted application for
amendment
which included the specific grounds of negligence of the insured
driver as testified to by the appellant in the court
a
quo.
35.
I find, that the amendment requested is
bona
fide
and
will not lead to any prejudice of the respondent, and the amendment
when effected by the appellant will amend the particulars
of claim to
enable ventilation of the issues between the parties, as a result the
appeal should be upheld.
36. I therefore make
the following order:
1. The appeal is
upheld.
2.
The court a
quo’s
order
is set aside and replaced with the following order.
“
absolution
of the instance is refused with costs.”
3. The trial is
referred back to the regional court Pretoria under case number
2500/2012 to continue between the parties, before
another magistrate.
4.
The appellant shall file their amended particulars of claim as set
out in the notice of amendment dated 30 April 2015, in the
court
a
quo
within 10 days from
date of this order.
5. The cost of
appeal to be paid by the respondent.
STRAUSS AJ
ACTING JUDGE OF
THE HIGH COURT
R TOLMAY J
JUDGE OF THE HIGH
COURT
I AGREE AND IT IS
SO ORDERED
COUNSEL FOR THE
APPELLANT: ADV JA DU PLESSIS
ATTORNEY FOR THE
APPELLANT: RIETTE OOSTHUIZEN
COUNSEL FOR THE
RESPONDENT: ADV L BOTHA
ATTORNEY FOR THE
RESPONDENT: MOTHLE JOOMA SABDIA INC