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[2013] ZAGPPHC 79
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Outsurance Insurance Company Ltd v Mkhize (68444/09) [2013] ZAGPPHC 79 (11 March 2013)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT. PRETORIA)
CASE
NO: 68444/09
DATE:11/03/2013
In
the matter between:
OUTSURANCE
INSURANCE COMPANY
LIMITED
................................................
PLAINTIFF
AND
SIPHO
A.
MKHIZE
.........................................................................................................
DEFENDANT
JUDGMENT
MAVUNDLA,
J.,
[1]
On the night of 18 April 2009 the insured vehicle, a 2005 Mercedes
Benz E 200K with registration number RZV478GP was damaged
in a
collision whilst being driven by the defendant. As the result of the
accident the plaintiff processed defendant’s claim
on the 14
May 2009 and paid a total amount of R227, 328. 97.
[2]
The plaintiff processed the aforesaid payment as the insurer of the
aforesaid vehicle, consequent to an oral agreement it entered
into
with the defendant on 18 November 2005. In terms of the oral
agreement the aforesaid insured motor vehicle was added to the
contract of insurance, in terms of which the plaintiff undertook to
indemnify the defendant in respect of the insured vehicle against
risks mentioned in the policy, subject to conditions and exclusions
set therein.
[3]
The oral agreement of insurance was subsequently reduced into writing
in the form of facility document and schedule of insurance.
These
documents were attached to the plaintiff’s particulars of claim
as annexure “B1” and “B2”.
One of the
exclusionary clauses excluded the plaintiff’s liability in the
event the vehicle was damaged whilst the being
driven by a person who
was under the influence of alcohol or drugs; or has a concentration
of alcohol in the blood exceeding the
legal limit or fails a
breathalyser test or refuses to give a breath or blood sample.
[4]
The plaintiff’s claim against the defendant is premised on
alleged breach of the terms of the insurance policy in that
defendant
at the time of the accident drove the vehicle whilst under the
influence of alcohol or intoxicated, or had consumed liquor,
and
failed to so disclose to the plaintiff as he was duty bound to. The
plaintiff further alleged that the defendant was not entitled
to be
indemnified for the damages arising from the collision, because of
the aforesaid breach and non-disclosure as the result
of which the
plaintiff bona fide and mistakenly believed that the defendant was
entitled to be indemnified in the sum of R227,
328. 97 which amount
it paid out. The plaintiff is now claiming this amount from the
defendant. The defendant denied that he was
intoxicated at all.
[5]
The only issue in this matter is whether the defendant was drunk or
under the influence of liquor at the time of the accident,
the rest
of the other issues being common cause.
[6]
The plaintiff called two witnesses to prove its case, namely Mr. Buti
Wilson Mntambo and his niece Ms Frencionnett Twala. The
defendant
also testified in his defence without calling any witness.
[7]
The plaintiff relies on the evidence of these two witnesses to prove
that the defendant was drunk at the time of the accident.
The reason
why Mr. Mntambo alleged in his testimony that the defendant was drunk
was because the defendant: overtook his vehicle
at high speed; almost
caused an accident with him; had red eyes; smelt of brandy; sat
slumped on his driver’s seat; admitted
and told him that he was
drunk; disappeared from the scene of the accident.
[8]
According to Ms. Twala defendant was drunk because: passed their
vehicle at high speed; collided with another vehicle; was unable
to
operate his phone; had to provide her with telephone numbers for her
to assist him in phoning; another vehicle came and took
the defendant
away.
[9]
The defendant denied that he was drunk. He said that on that day, he
had been busy since in the morning. He was politically
involved in
election campaign and attended various errands in Gauteng, resulting
in him living for home at night. He drove at high
speed because he
had earlier seen a 4x 4 vehicle following him at high speed; it was
at night and during the period of elections,
was not certain of the
intentions of the vehicle following him at high speed; after
colliding with the other vehicle his airbag
was activated and knocked
him in the face and he was dizzy as the result; he saw a 4x4 stopping
at the scene and thought it was
the same vehicle that had been
following him at high speed; the people who milled at the scene were
hostile towards him and he
ran away from the scene towards the plots.
He was taken away in a vehicle that arrived at the scene. Because his
wife was not at
home and his house keys were left at the scene, he
was then dropped off at the neighbour’s place; his wife later
gave him
tablets for his headache; he did not seek medical attention
because it was already late at night; reported at the police station
in the morning after church and informed that the Road Accident
Report forms were not available and returned later to report.
[10]
On behalf of the plaintiff it was submitted that the Court must make
a factual finding premised on the evidence of both plaintiff’s
witnesses, that the defendant was drunk. It was further submitted
that an inference of the defendant’s state of insobriety
should
be made from the fact that he had to be assisted to make a telephone
call; on coupled with his own admission and disappearance
from the
scene and that on the preponderance of probabilities he was drunk.
[11]
It was submitted on behalf of the plaintiff that the Court should
make a factual finding premised on the evidence of the two
witnesses.
It was further submitted that these two witnesses were impartial,
credible and have no interest in the outcome of the
case. It was
further submitted that the Court should have regard to the admission
of the defendant that he was drunk, also smelt
of liquor, his actions
were uncoordinated and was unable to operate his cell phone, and run
away from the scene.
[12]
On the other hand it was submitted on behalf of the defendant that
the plaintiff has not discharged the onus resting on it
to show that
the defendant was drunk. It was further submitted that the two
witnesses contradicted themselves, in particular with
regard to what
they had recorded in their statements to the police and their
testimony in Court. It was further submitted that
it is questionable
that they made statements to the police only in June when the
accident occurred in April.
[13]
It is trite that the plaintiff bears the onus of proving that the
defendant was drunk or drove the vehicle having taken liquor.
In this
regard the plaintiff relies on the evidence of Mr. Mntambo and Ms.
Twala. Mr. Mntambo said that the defendant was drunk
because he found
him slumped on his seat; admitted that he was drunk; smelt of brandy;
had red eyes; had overtaken him earlier
at high speed almost causing
a collision.
[14]
Ms. Twala’s evidence is supposed to corroborate Mr. Mntambo
that indeed the defendant was inebriated. The relevant aspects
of her
evidence are that the appellant overtook them at high speed, was
involved in an accident, and was unable to operate his
cell phone.
[15]
In my view, travelling at high speed and getting involved in a
collision is not axiomatic of a state of inebriation. Fatigue
or
momentarily loss of or slight absence of concentration or detraction
may result in an accident, the possibility of which might
be
accentuated by driving at night in a dark and unlit area.
[16]
It was submitted that Mr. Mntambo and Ms. Twala were impartial
witnesses who had nothing to gain in this matter and therefore
their
evidence should be accepted as being reliable. I do not agree. Mr.
Mntambo on arriving at the scene, con fronted the appellant
about the
manner he was driving and accused him of almost colliding with him
and or forcing him off the road in an effort to avoid
a collision. In
my view, this confrontation was purposeless, when it was obvious that
defendant was already involved in a collision.
The probabilities are,
in my view that the confrontation was as the result of anger on the
part of Mr. Mntambo. Mr. Mntambo could
therefore certainly not be
regarded as an impartial witness because of his earlier encounter
with the defendant and the fact that
he was probably angry and
therefore biased towards the defendant. His evidence cannot therefore
be accepted without scrutiny.
[17]
It is common cause that there were no lights at the scene of the
accident and therefore it must be accepted, as I do, that
it was
dark. There was no evidence that there was any illumination from the
vehicles directed towards the vehicle of the defendant.
The Court
cannot be expected to venture into speculation. I therefore accept
than none of the vehicles’ lights illuminated
around and or in
particular inside the defendant’s vehicle, otherwise both Mr.
Mntambo and Ms. Twala would have said so.
Mr. Mntambo said the eyes
of the defendant were glazed and red. Ms Twala also spoke to the
defendant but said nothing of his eyes
being red. In my view it would
have been impossible in that darkness to have seen whether the
defendant’s eyes were glazed,
or red. The difference between
the evidence of Mr. Mntambo and Ms. Twala in respect of the colour of
the eyes of the defendant
is, in my view, material and brings the
impartiality and credibility of Mr. Mntambo in doubt. Assuming for a
moment that it was
possible to see a person’s eyes in that
darkness, the fact that Ms Twala said nothing of the defendant’s
eyes being
red, it follows that, on her version the eyes were not
red. On the other hand, Ms. Twala does not seem to have embellished
her
evidence and I therefore accept her evidence and conclude on her
version that the defendant’s eyes were not red.
[18]
Mr. Mntambo has further stated that the defendant smelt of brandy. Ms
Twala who spoke to the defendant said nothing of smelling
liquor from
the defendant, let alone brandy. She must have been very close to the
defendant when she spoke to him and asked him
to give her telephone
numbers to phone on his behalf. If indeed the defendant was reeking
of brandy, surely Ms Twala would also
have smelt liquor, let alone
brandy, permeating from the defendant. On deductive reasoning, I
conclude that on Ms Twala’s
evidence, the defendant was not
reeking of any liquor smell. There is therefore once more a further
material difference between
the evidence of Ms. Twala and Mr.
Mntambo.
[19]
It was submitted on behalf of the plaintiff that it does not require
any scientific expertise to form a conclusion that the
defendant was
drunk. I disagree with this submission. Mr. Mntambo should at least
have informed the Court what his authority is
which qualified him to
conclude that whatever smell that permeated from the defendant, if
any, was that of brandy. Regard being
had to the fact that Mr.
Mntambo’s say-so statement of the smell of brandy finds no
corroboration from the evidence of Ms.
Twala, it would be dangerous
to accept his evidence on this aspect and reject that of Ms. Twala.
The plaintiff’s case stands
or falls on the totality of the
evidence of all his witnesses. This must be so because of the strict
measures the plaintiff’s
evidence must be approached with
because of the fact that he seeks to avert its liability as an
insurer, on a disclaimer clause
in the policy, as stated herein
below.
[19]
It is trite that generally, the Courts have accepted that slurred
speech, lack of coordination in walking and other physical
manifestations, such as gate are symptoms of intoxication. It is also
true that people immediately after an accident would suffer
from
shock and have all sorts of temporary abnormalities or symptoms such
as being dazed, highly dilated eyes or red eyes, be confused,
disoriented, physical incoordination. The presence of these symptoms
is, in my view, not axiomatic to intoxication. Neither is
a collision
occurred indicative of the state of inebriation on the part of the
drivers involved in that collision, especially in
the absence of
evidence excluding fatigue on their part; vide Mondi Paper Company v
Dlamini
1996 (4) ALL SA 92
(N) at 93C- F. Each case must be decided
on its own peculiar circumstances.
[20]
The version of the defendant was that the airbag hit him in the face
and he was dazed. He does not remember speaking to anyone
at the
scene of the accident. Even if it were to be accepted that his eyes
were red and blood short, the probability of this being
as the result
of being struck in the face by the airbag cannot be excluded. Any
incoordination on the part of the defendant comes
from the evidence
of Ms Twala. According to her, she had to help the defendant to phone
because he could not do so himself. It
is remarkable that she could
speak normally with the defendant, without perceiving any slurred
speech or smell of liquor on his
part. Therefore the inability to
handle the phone is not indicative of inebriation.
[21]
Where there are mutually destructive versions, the Court should
decide the case on the preponderance of probabilities, bearing
in
mind, inter alia, credibility and where the onus rest. The
defendant’s version of having been struck by the airbag and
having been dazed cannot be out ruled as a figment of his
imagination. It is in my view more probable than not that he was
dazed
shortly after the accident. The defendant’s version finds
credence in the discovered photos which showed a deflated airbag.
His
alleged admission made shortly after the accident while he was in the
post accident traumatic state, assuming that it was made,
cannot be
accepted and I reject it. The reason for this is because the
credibility and impartiality of Mr. Mntambo is, in my view,
suspect.
[22]
The plaintiff, in essence, in seeking damages against the defendant
wants to rely on a disclaimer. In my view, insurance companies
generally, just like the plaintiff, profess: “We do not hassle
we pay.” But come paying time they change the tune and
sing:
‘We don't just pay we hassle'. Rightly or wrongly so, that is
not the issue. However, the Courts have said that where
the insurer
seeks to avoid its liability to paying by resorting to a disclaimer
clause, he must then attract the onus in order
to escape his
liability and stricter approach should be adopted; vide Mondi Paper
Company v Dlamini (supra).
[23]
I deem it not necessary for purposes of this judgment to chronicle
all the contradictions in the evidence of the plaintiff’s
witnesses and in their statements made to the police almost two
months after the accident, because these are on record. I do bear
in
mind that the onus rest on the plaintiff to prove that the defendant
was drunk. On the other hand, it cannot be said that the
version of
the defendant on a balance of probabilities is improbable. I am of
the view in the totality of the all the evidence
led, I have no
reason not to accept the version of the defendant that he was neither
drunk nor having taken liquor on the day in
question and conclude as
such. I further conclude that on a balance of probabilities, the
plaintiff has failed to acquit itself
of the onus resting on it. vide
SFW Group ITD & another v Martell ET CIE & Others
2003 (1) SA
11
(SCA) at 141-15D.
[24]
It needs mention that the fact that the defendant, either on his own
version or that of the plaintiff, left the scene, does
not assist the
plaintiff in discharging its onus because an adverse inference cannot
be drawn thereon.
[25]
In the premises, I conclude that the plaintiff has failed to prove
that the defendant was drunk or drove the vehicle after
having taken
liquor and that its case therefore stands to be dismissed with costs.
[26]
In the result the plaintiff’s action is dismissed with costs.
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 08/03/2013
DATE
OF JUDGMENT : 11 /03/2013
PLAINTIFFS’
ATT : DE KLERK EN MARAIS INGELY
PLAINTIFFS’
S ADV : ADV. A. BOTHA
DEFENDANTS’
ATT : RADINGOANA ATTORNEYS
DEFENDANTS’
ATT : ADV. R. LIPHOSA