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[2013] ZAGPPHC 71
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Kleynhans v Road Accident Fund (20979/12) [2013] ZAGPPHC 71 (1 March 2013)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
Number: 20979/12
Date
Heard: 31 January 2013
Date
of Judgment: 01 March 2013
In
the matter between:
KLEYNHANS
LIEZEL
..............................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
.......................................................................
DEFENDANT
JUDGEMENT
MOLEFE,
AJ
1.
The plaintiff Mrs Liezel Kleynhans, is an adult female accountant,
residing at 15 Brain Street, Randfontein, Gauteng Province.
The
defendant is the Road Accident Fund (RAF) a staturory body
established in terms of the Road Accident Fund Act 56 of 1996 (“the
Act”) at 38 Ida Street, Menlopark, Pretoria.
2.
This is an action for payment of compensation for damages suffered by
plaintiff as a result of bodily injuries caused by a collision
that
occurred on the afternoon of 23 June 2011 along the Ventersdorp Road
in Randfontein. Per agreement between the parties the
merits were
separated from the quantum which would be adjudicated upon at a later
stage. This agreement was made on order of Court.
3.
The defendant in its plea on merits denied that the collision took
place; alternatively, in the event that the court found that
the
collision took place, denied any negligence on the part of the
insured driver and that the sole cause of the collision was
the
negligent driving of the plaintiff.
4.
The plaintiff testified and called one witness, the plaintiffs
husband, Mr Johan Kleynhans.
The
plaintiff testified that on 23 June 2011, she was driving from work
in Magaliesburg to her home in Randfontein. She was travelling
with
two co- workers. When she came to a four-way intersection stop, at
Brandvlei/Randfontein, she stopped and observed ali directions.
She
did not see any vehicle approaching at the intersection, so she
proceeded to cross the intersection towards Randfontein. Whilst
she
was inside the intersection she heard a screeching sound of brakes
being applied, and was hit by the insured vehicle which
came from her
right side and failed to stop at the intersection. She was hit on the
right side, on the driver’s door.
5.
The plaintiff testified that she knew the road very well as she used
the road on a daily basis to travel to and from home to
work. The
speed limit in the area is 60 km per hour as there are two schools in
the vicinity of the intersection. The plaintiff
could do nothing the
avoid the accident as there was not time to react to the insured
driver’s vehicle.
6.
The plaintiff sustained serious injuries to her ribs and was
transported to Milpark Hospital in an aircraft Where she was
admitted.
She did not know where her vehicle landed after the
collision or the damages to her vehicle until she was shown the
photographs
depicting the scene of the accident by her husband whilst
recovering in hospital.
7.Mr
Johan Kleynhans testified on behalf of the plaintiff. He testified
that he was called to the scene of the accident to sign
a consent for
his wife to be airlifted to the hospital. The police showed him the
point of impact and where the plaintiffs vehicle
landed after the
impact of the collision. The vehicle landed approximately 30 meters
away from the point of impact, in
the
bushes on the left side of the road. The plaintiffs vehicle was
extensively damaged on the right driver’s door and was
towed
away from the scene of the accident.
8.
The defendant’s only witness was the insured driver. She
testified that on the day in question she was driving a Corsa
bakkie
bearing registration number WK 360 GP on her way from Mafikeng to
Springs. She was travelling with her child and a male
person who
asked for a lift in Lichtenburg.
She
approached the Ventersdorp/Magaliesburg/Randfontein/Brandvlei
intersection four-way stop. She stopped at the stop sign, observed
and as there were no cars, she proceeded to cross the intersection.
Whilst crossing the intersection she engaged her car into second
gear. Suddenly she saw the plaintiffs vehicle in front of her. She
applied brakes in an attempt to avoid colliding with the plaintiffs
vehicle but failed. She was familiar with the road as she used it
once a month.
She
was aware that the speed limit at the area is 60km per hour. She
testified that prior to approaching the intersection she was
travelling at 80km per hour, then 60km per hour and 40km per hour
when she stopped at the intersection. She testified that when
she
crossed the intersection she was travelling between 10-20km per hour.
After the collision she was unconscious and was taken
to hospital.
9.
It is common cause between the parties that the accident occurred on
23 June 2011 between the vehicles SYX398GJP, a white Ford
Bantam
bakkie driven by the plaintiff and WK360GP, a Corsa Utility bakkie
driven by the insured driver. The collision occurred
at the
intersection of Randfontein/Magaliesburg/Ventersdorp road. The
insured driver’s vehicle collided with the right driver’s
door of the plaintiffs vehicle.
10.
It is further an undisputed fact that the damages caused to the
vehicle driven by the plaintiff were extensive. The plaintiff
suffered injuries which were very severe; she had inter alia ten
fractured ribs.
11.
The issues which must be determined by the Court are the following:
a)
whether the insured driver was negligent;
b)
whether the plaintiff was negligent;
c)
the apportionment of negligence, if applicable.
12.
Both the plaintiff and the insured driver conceded that they did not
see any vehicle when they stopped at the intersection.
Both parties
did not call any of the passengers who were travelling with them to
corroborate their versions. No expert evidence
was led which could
have assisted in determining exactly how the collision occurred.
13.
The version of the two witnesses are irreconcilable in material
respects regarding how the collision occurred and are mutually
destructive.
14.
The success of the plaintiffs case is predicated upon a finding that
the insured driver failed to stop at the intersection in
order to
prove any negligence on the part of the insured driver.
15.
The insured driver’s testimony that she applied brakes when she
saw the plaintiffs vehicle in front of her vehicle, is
corroborated
by the plaintiffs evidence that she heard screeching of brakes before
the accident.
16.
During cross-examination, the insured driver’s credibility was
questionable when she testified that prior to her stopping
at the
stop sign at the intersection, she was traveling at 80km per hour.
With further probing she said 60km per hour and then
40 km per hour.
She
also testified that when she took off from the stop sign, proceeding
to the intersection, she was driving at a speed of about
10 to 20 km
per hour although she had already put her car gear into gear number
2.
17.
The insured driver made two statements on how the accident occurred;
one statement was made to the assessor and the other one
was made to
the South African Police Service. Both statement were admitted in
court as evidence as exhibit “A” and
“B”
respectively. When she was being cross-examined on the statement she
made to the South African Police Service (exhibit
“B”)
she advised that the statement was never read back to her and that
the police officer who was assisting her was
rushing her and was
impatient with her to sign the statement.
18.
in the exhibit “B” statement the insured driver testified
inter alia that she did not know the road well. She stopped
at the
stop sign but in the middle of the road as the road was confusing to
her. Then a motor vehicle came and collided with her
car.
19.
The plaintiffs counsel decided not to cross-examine her on the
exhibit “B” as she alleged that the statement was
not
read back to her prior to her signing it.
Regrettably
the police officer who prepared the statement (exhibit “B")
was not called as a witness. This would have
been useful in
determining the probabilities.
20.
The technique generally adopted by the courts in resolving factual
disputes when dealing with two irreconcilable versions is
set out in
SWF Group Limited and Another vs Wlartell ET CIE and Others,
1
wherein
the following relevant applicable principles are stated:
20.1
Findings must be made on:
20.1.1
the credibility of the various factual witnesses which depends on a
court’s impression about the veracity of the witnesses;
20.1.2
their reliability;
20.1.3
the probabilities.
20.2
In regarding to the credibility of a witness, a number of factor must
be
taken into consideration\;
(i)
the witness condour and demeanor in the witness box;
(ii)
his latent and blatant lies;
(Hi)
internal contradictious in his evidence;
(iv)
external contradictions with what was pleaded or put on his behalf,
or with the established facts or with his own extra curiaI
statements
or actions;
(v)
the probability or improbability of particular aspects of his
version; and
(vi)
the caliber and cogency of his performance compared to that of other
witnesses testifying about the same incident or event
20.3
A witness’ reliability will depend in addition to the aforesaid
factors
mentioned
above and on:
(i)
the opportunity he had to experience the event in question;
(ii)
the quality, integrity and independence of his recall of the event
20.4
Having regard to the probabilities, this necessitates an analysis and
evaluation on the probability or improbability of each
party’s
version on each of the disputed issues.
20.5
In light of its assessment of the factors in 20.2 and 20.4 above, a
court should then, as a final step, determine whether the
party
burdened with the onus of proof, has succeeded in discharging it.
20.6
When a court’s credibility findings compel it in one direction
and its evaluation of the general probabilities compels
it in another
direction, the more convincing the former, the less convincing will
be the latter. But when all factors are equipoised
probabilities will
prevail.
21.
The opinions tendered by both the plaintiff and the insured driver
are by and large irrelevant and do not assist in determining
the
probabilities.
22.
The test propounded by Wessels JA in National Employers’ Mutual
General Insurance Association v Gany
2
is to the effect that “where there are two stories mutually
distractive, before the onus is discharged, the court must be
satisfied upon adequate grounds that the story of the litigant upon
whom the onus rest is true and the other false”
23.
In a civil case, the onus is obviously not as heavy as it is in a
criminal case, but nevertheless, where the onus rest on the
plaintiff
as in the present case, and where there are two mutually destructive
stories, 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 other
version
advanced by the defendant is therefore false or mistaken and falis to
be rejected. In deciding whether that evidence is
true or not the
court will weigh up and test the plaintiffs allegations against the
general probabilities (See National Employers’
General
insurance vs Jagers)
3
The
plaintiff in casu appeared to be basically honest and 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 more
reliable a witness than the insured driver.
24.
On the evidence before me, the plaintiffs’ version was clear;
she came to a stop sign at the intersection, stopped, observed
and
proceeded onto the intersection as the were no vehicles, save for her
vehicle.
The
insured driver’s version is flawed in that (i) she gave three
different speeds which she alleged to be travelling at prior
to
stopping at the intersection (ii) she at first could not remember
where the collision took place (iii) she testified that although
her
vehicle was on the second gear (iv) she was travelling at a speed of
between 10 and 20 km per hour, she
applied
brakes in an attempt to avoid the plaintiffs vehicle which just
materialised before her.
She
collided with the plaintiffs vehicle on the right driver’s
door. The damages to the plaintiffs vehicle and the injuries
sustained by her are consistent with a violent impact caused by a
vehicle impacting at a high speed with another vehicle.
25.
The insured driver’s version of how the collision occurred is
in my view improbable for various reasons. It is improbable
for a
vehicle travelling on a second gear to be travelling at 10-20 km per
hour. It is highly improbable that a speed of 10-20
km per hour could
cause such extensive damages to the plaintiffs vehicle and to cause
the vehicle to land approximately 30 meters
from the point of impact.
The seriousness of the plaintiffs injuries also confirms the
improbability of the insured driver’s
alleged speed of 10-20 km
per hour. The fact that the insured vehicle collided with the
plaintiffs vehicle with its frontal part,
shows that it is probable
that the insured driver collided with the plaintiff and not the other
way round. The probability is that
the insured driver failed to stop
at the, stop sign and was driving at a high speed. She came from the
plaintiffs right hand side
and collided with her.
Therefore,
I find the plaintiffs version on how the accident occurred to be more
probable.
26.
I am unable to find any negligence whatsoever that can be attributed
to the plaintiff. The negligence of the driver of the insured
vehicle
was the sole cause of the collision. 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.
27.
I therefore make the following order:
The
defendant is liable to pay 100 percent of the plaintiffs proven or
agreed damages.
D
S MOLEFE
ACTING
JUDGE OF THE NORTH GAUTENG HIGH COURT
On
behalf of the plaintiff:Mashamba Incorporated
Rentbel
Towers 4th Floor,
office
405 Bureau Laan
Church
Square
PO
Box 9759
Pretoria
0001
Counsel
for the plaintiff: Adv. F J Kokeia
On
behalf of the Defendant:Maluleke Seriti Makume Matlala Inc
980
Park Street
Hatfield
Pretoria
0001
Counsel
for the defendant: Adv. M.N. Leballo
1
2003(1)
SA 11 SC A at paragraph (5)
2
1931
AD 187
at 199
3
1984(4)432