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[2014] ZAGPPHC 231
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C.M.J.W v Road Accident Fund (34136/13) [2014] ZAGPPHC 231 (17 April 2014)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: 34136/13
DATE: 17/4/2014
In the matter
between
C. M.
J.W. PLAINTIFF
And
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
MOLEFE J:
[1]
On 22 August 2006, at approximately 15h15, at or near Fairlands, a
collision occurred involving a Route 71 metro bus for Fairlands,
then
and there being driven by Mr Johannes Ratau (“the insured
driver”). The plaintiff was a fare-paying passenger
in
the aforementioned vehicle at the time of the accident.
[2]
As a result of the aforesaid collision, the plaintiff sustained
bodily injuries for which she had to receive medical treatment.
The plaintiff instituted an action against the defendant in terms of
the Road Accident Fund Act No 56 of 1996 (“the Act”)
for
damages suffered, as a result of the injuries so sustained. The
plaintiff’s action is based on negligence of the
insured
driver.
[3]
At the commencement of the trial, the parties agreed to separate the
issues of liability (merits) and quantum in terms of Rule
33 (4).
The trial proceeded with the issue of merits and the issue of quantum
was postponed
sine die.
[4]
Three witnesses testified on behalf of the plaintiff and the
defendant called the insured driver as the only witness.
[5]
The plaintiff’s evidence can be summarised as follows:
5.1 On 22 August 2006,
the plaintiff was […..] years old and was a student at N. High
School. At approximately 15h15,
she and a number of other
students were standing at the bus stop, waiting for a bus to go home.
The bus stop was just opposite
the school. When the bus arrived it
was fifteen (15) minutes late and the students rushed into the bus in
order to occupy the back
seats.
5.2 The plaintiff was the
last person to board the bus. Whilst in the process of boarding, with
her one foot on the first step of
the bus and her other foot on the
ground, the bus started moving. She quickly put her other foot inside
the bus and the bus door
closed on her. The bar on the door hit her
on the back of her head, causing her to fall forward and to hit her
head on the backpack
of a student in front of her.
5.3 The plaintiff started
screaming at the insured driver telling him that he hit the back of
her head with the door. The insured
driver screamed back at her and
the plaintiff swore at the insured driver who in turn swore back at
her. After the plaintiff
had paid the bus fare, the insured
driver slapped her on the side of her face and on her chest.The
plaintiff sat down and when
the bus stopped at her stop, she got off
the bus and informed the insured driver that she was going to report
him for assault.
5.4 Plaintiff’s
mother took her to the police station on the same day to lay a charge
of assault against the driver.
They were given a J88
medico-legal form to be completed by a medical practitioner.
They went to Sandton Medic-Clinic on the
same day where after
examination and X-rays, the Doctor informed her that she had
sustained a concussion on the back of her head.
Plaintiff testified
that after the accident, she now suffers from violent migraine
headaches.
5.5 The plaintiff
testified that the insured driver caused the accident because he
failed to wait for her to enter the bus she was
being conveyed and
caused the bus to move whilst she was still in the process of
mounting the bus. Under cross-examination, the
plaintiff testified
that she did not show the injuries she sustained to the insured
driver.
[6]
Ms L. A. M. W. testified that she was the plaintiff’s mother
and her evidence can be summarised as follows;
6.1 On the 22 August 2006
when she arrived home from work, she found the plaintiff crying and
very upset. The plaintiff informed
her that she had been
attacked by a Metro bus driver on her way from school. She had
a visible lump behind her head and was
in pain. Ms W. took the
plaintiff to Fairlands Police Station to lay a charge of assault
against the bus driver.
6.2 At the police station
they were given a medico-legal (J88) form and were advised to take it
to a District Surgeon to complete
it. They went to Sandton
Medi-Clinic where the plaintiff was examined and X-rays taken and the
prognosis was that she had
sustained a concussion from the bus door
which hit her at the back of her head.
6.3 Ms Williams testified
that ever since the accident the plaintiff suffers from stiffness of
the neck and migraine headaches.
She was later informed that
the criminal case against the insured driver has been thrown out of
court.
[7]
Constable Cynthia Boniswa Moilwa testified that she was employed at
the South African Police Services, Commercial Unit.
On 6
September 2006, she was a student constable at Fairlands Police
Station. Plaintiff’s Counsel referred her to the
Index to
Merits Bundle, marked Exhibit “A” and in particular to
the “statement by suspect” which was made
by Mr Johannes
Ratau. Captain Moilwa verified the statement and testified that
she wrote the statement after Mr Ratau had
told him what happened.
She then read the statement to him and Mr Ratau confirmed that he was
satisfied with the contents
of the statement and signed it.
The
plaintiff closed its case.
[8]
The insured driver, Mr Johannes Ratau testified on behalf of the
defendant and his evidence is summarised as follow:
8.1 He is a bus driver
working at Milpark Depot, Braamfontein. On 22 August 2006, he
was the driver of a Metro route 71 bus
on his way to Fairlands.
At approximately 15h15, he stopped the bus at Mountain view
bus stop in Cresta next to a
school and school children started
boarding the bus, in a queue. One of the school children, who he
identified in court as the
plaintiff stood near the driver, in the
middle of the bus thoroughfare after she had purchased her bus
ticket. She was blocking
about seven school children behind her
to board the bus and was chatting to one of the children who was
standing in the
queue outside the bus.
8.2 Mr Ratau testified
that he asked the plaintiff to move backwards into the bus, and she
did. He then closed the door and
whilst the bus was in motion,
the plaintiff approached him and swore at him. He asked the
plaintiff to go back and sit down
and she did. When she
alighted the bus at her bus stop, she was swearing at Mr Ratau
again. Mr Ratau drove off.
The plaintiff never mentioned
her injuries nor show her injuries to him. Mr Ratau denied that
he drove the bus whilst the
plaintiff was in the process of boarding
the bus and testified that the type of bus he was driving could not
be moved whilst the
door was still open. He also denied that he
assaulted the plaintiff by slapping her on the face and chest.
8.3 Under
cross-examination, Mr Ratau changed his testimony and said that the
plaintiff started swearing at him at the time when
he asked her to go
into the bus. When the bus was in motion, she again came from
her seat to swear at him and when she alighted
from the bus she again
swore at him. He further testified under cross-examination that it
would not have been possible for the
other school children to enter
the bus whilst plaintiff was standing where she was.
8.4 Plaintiff’s
counsel cross-examined Mr Ratau on the statement he made to the
police and questioned him why he never mentioned
in his statement
that the cause of the plaintiff’s swearing, was because he
asked her to move from where she was standing.
In the statement
he testified that he threatened to slap the plaintiff but denied
under cross-examination that he never told the
police that.
Defendant closed its
case.
[9]
Plaintiff’s counsel submitted that the plaintiff was a truthful
witness and that she never contradicted herself.
She also
submitted that her injuries are corroborated by the medico-legal J88
form as noted by the Doctor who examined her.
Plaintiff’s
evidence was also corroborated by her mother’s testimony.
[10]
Plaintiff’s counsel further submitted that the insured driver’s
version was full of contradictions and was fabricated.
It was
counsel’s argument that it was highly improbable that a 14 year
old child would block and prevent other school children
to board the
bus and when asked to move, to swear at the bus driver.
[11]
In a civil case, the onus is obviously not as heavy as it is in a
criminal case, but nevertheless, where the onus rests on
the
plaintiff as in the present case, and where there are two mutually
destructive versions, the plaintiff can only succeed if
he satisfies
the court on a preponderance of probabilities that his version is
true and accurate and therefore acceptable and that
the version
advanced by the defendant is therefore false and falls to be
rejected. In deciding whether that evidence is true
or not, the
court will weigh up and test the plaintiff’s allegations
against the general probabilities. (See
National
Employer’s Mutual General Insurance Association v Gany
1931 AD
187
at 199)
.
[12]
The plaintiff
in casu
appeared to be an honest credible and consistent
witness whose testimony can be relied upon. There is no reason
for preferring
the insured driver as being a better or more reliable
witness than she was. I found the plaintiff to be a more
reliable witness
than the insured driver. On the evidence
before me, the plaintiff’s version is clear; she was in the
process of entering
or boarding the bus for the purpose of being
conveyed when the insured driver moved the bus and she was hit by the
bar of the door
when the door closed on her. Her evidence when
coupled with the corroboration of the injuries she sustained, leads
me to
the inevitable conclusion that her version is true.
[13]
The insured driver’s version, is in my opinion on a balance of
probabilities not true. The insured version is flawed
in that;
(i) there are a number of material contradictions in his testimony
and the statement he gave to the police; (ii) he was
able to properly
read the first paragraph of the statement into the record without any
problem, but when asked to read the second
paragraph which
highlighted the contradictions, he conveniently could not read
without his glasses; (iii) he testified that the
type of bus he was
driving on the day of the incident could not move with the door
open. This in my view confirms the plaintiff’s
version
that the door closed on her when the driver put the bus in motion.
I
therefore find the plaintiff’s version to be more probable.
[14]
I am unable to find any negligence whatsoever that can be attributed
to the plaintiff. The negligence of the insured
driver was the
sole cause of the accident. In the circumstances I find that
the plaintiff has successfully discharged the
onus expected of her of
proving negligence on a balance of probabilities on the part of the
insured driver.
[15]
I therefore make the following order:
The defendant is
liable to pay 100% of the plaintiff’s proven or agreed damages.
The draft order marked
“X” is hereby made an order of court.
_________________________
D.S.
MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
on behalf of plaintiff :
Adv. M van Antwerpen
Instructed
by
:
Houghton Harper Inc.
Counsel
on behalf of defendant :
Mr. D Mogale
Instructed
by
: Sekati
Monyane & Partners
Date
Heard
: 14 April
2014
Date
Delivered
: 17 April
2014