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[2012] ZAKZPHC 17
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Lazarus v Road Accident Fund (AR 566/10) [2012] ZAKZPHC 17 (23 March 2012)
IN THE KWAZULU-NATAL
HIGH COURT, PIETERMARITZBURG
REPUBLIC OF SOUTH
AFRICA
CASE NO. AR 566/10
In the matter between
:
JACOB ERIC LAZARUS
…...................................................
APPELLANT
and
ROAD ACCIDENT FUND
…...............................................
RESPONDENT
APPEAL JUDGMENT
Delivered on 23 March 2012
SWAIN J
[1] The appellant comes
before this Court, with the leave of the Court
a
quo,
(Harcourt A J) aggrieved that the
respondent was absolved from the instance, in respect of a claim for
damages, instituted by the
appellant as plaintiff, against the
respondent as defendant, arising out of motor vehicle accident which
occurred on 13 March 2004.
[2] The central issue in
the case was whether the collision between the appellant’s
vehicle (driven by the appellant) and
a tree alongside the road, was
caused by the negligent driving of an unidentified vehicle. The
appellant’s case was that
the driver of the unidentified
vehicle, negligently turned across his path of travel into a side
street, causing the appellant
to take evasive action to avoid a
collision, which resulted in the appellant’s vehicle colliding
with a tree.
[3] The appellant was
seriously injured in the collision, and although the trial court was
not concerned with the nature and extent
of his injuries, the trial
proceeding only on the issue of liability, it is common cause that as
a consequence of the injuries
the appellant sustained, he is confined
to a wheelchair.
[4] The respondent in its
plea denied the occurrence of the collision and at trial, the defence
advanced by the respondent was primarily
aimed at refuting the
appellant’s assertion that another vehicle was involved in the
collision, between the appellant’s
vehicle and the tree. It is
of course trite that in the absence of another vehicle, the
respondent would be absolved from liability
to compensate the
appellant for the injuries he sustained as a consequence of the
collision.
[5] There were no
witnesses to the collision and the respondent was consequently unable
to lead any direct evidence, to contradict
the appellant’s
assertion as to how the collision occurred.
[6] It is therefore
necessary to examine at the outset, what the
correct approach is to
assessing the reliability of evidence led by a party upon whom the
onus of proof lies, where there is no
direct countervailing evidence.
[7] It is clear that
“
It does not
follow because evidence is uncontradicted, that therefore it is true.
Otherwise the court, in cases where the defendant
is in default,
would be bound to accept any evidence the plaintiff might tender. The
story told by the person on whom the onus
rests may be so improbable
as not to discharge it”.
Siffman v Kriel
1909 TS (1) 538 at
543
Phrased differently –
can it be said that the appellant’s evidence
“……
.was
so improbable or vague and ineffectual that it could be rejected out
of hand as being untrue, thereby relieving the respondent
of any
obligation to contradict it”.
Santam Bpk v
Biddulph
2004 (5) SA 586
(SCA) at 593 F - G
[8] The test has also
been described as follows. Whether on
”a fair conspectus
of the evidence, coupled with the fact that there is no testimony
from the (respondent) to gainsay it,
impels the inference, to the
required degree of proof”
that the party upon whom
the
onus
lies has
discharged it.
South British
Insurance Co. Ltd. v Unicorn Shipping Lines Ltd.
1976 (1) SA 708
(A)
at 713 G - H
[9] Consequently, where
there is no countervailing evidence, in order to assess whether the
evidence of a party upon whom the
onus
lies, is so improbable
as not to be sufficient to discharge the
onus
, such evidence
would have to be weighed against any objective facts as to the issue
in question, as well as relevant surrounding
circumstances. In the
present case, surrounding circumstances extraneous to the manner in
which the collision occurred, but relevant
to an assessment of the
credibility of the appellant, were relied upon by the respondent,
which will be dealt with in due course.
[10] To be contrasted
with this approach, is the approach where there is countervailing
evidence on the issue on which a party bears
the
onus
of proof. In such a case, in order to
determine where the truth lies, the Court has
“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”.
Govan v Skidmore
1952 (1) SA 732
(N)
at 734 D
[11] As regards an
assessment on the evidence of the probabilities
as to how the accident
occurred, Harcourt A J postulated the following scenario as a
“plausible”
cause of the collision
“
On the other
hand, what could well have happened was that the plaintiff was
travelling much faster, crested the rise, saw a vehicle
ahead,
already committed to a non-negligent right turn into Aberfoyle Road.
The plaintiff then swerves in evasion, mounts the grass
verge and
loses control because of a high speed and a change in the surface
from tarmac to grass. That seems, to me, to be a more
plausible
explanation from the known facts, especially the statement that the
collision between the two vehicles was totally avoided,
and in
evidence, the plaintiff said by 2 metres”.
In conclusion the trial
Court weighed the appellant’s version of how the accident
occurred, against this scenario, in the
following words
“
In other
words, against the background I have described, I do not accept that
the plaintiff’s version of events is more consistent
with the
probabilities than a version where the unidentified driver was not
negligent”
.
[12] The postulated
explanation by the trial Court as to how the collision occurred, was
never raised during the trial, nor put
to the appellant, as a
plausible explanation for how the accident happened. It is also
apparent that the postulated explanation,
necessarily involves an
acceptance of the presence of the unidentified vehicle, turning
across the path of travel as described
by the appellant, but in a
“non-negligent”
manner.
[13] It is therefore
clear that in granting absolution from the
instance, Harcourt A J
concluded that the appellant had not discharged the onus of showing
on a balance of probabilities, that the
driver of the unidentified
vehicle had acted negligently in executing the right hand turn that
he did. This must be so, because
he weighed the appellant’s
version, against a version postulated by him, which accepted the
presence of the unidentified
vehicle turning across the appellant’s
line of travel in a non-negligent manner, as
“a more
plausible explanation”.
[14] In order to reach
the conclusion that he did it was necessary for Harcourt A J not
merely to find that the conclusion he had
reached, as to the cause of
the collision was
“more plausible”
than
the appellant’s version, but that the appellant’s version
was so improbable, as not to discharge the
onus
resting on the appellant. The version of the
appellant would have to be rejected, as being so improbable, or vague
and ineffectual
that it could be rejected out of hand, as being
untrue.
[15] More specifically,
it would have to be concluded that the manner in which the appellant,
described how the unidentified vehicle
turned across his path of
travel in a negligent manner, was so improbable or vague and
ineffectual, that it could be rejected as
being untrue.
[16] It must be noted
that the trial Court made no adverse
credibility findings
against the appellant, and in fact in his Judgment granting leave to
appeal, expressly stated that he had made
no adverse credibility
findings against the appellant.
[17] In my view, Harcourt
A J misdirected himself in applying the test he did, in assessing the
appellant’s evidence. The
test he applied did not give
sufficient weight to the absence of any countervailing evidence, to
refute the appellant’s version
of how the collision occurred.
[18] This Court is
accordingly at large to assess the appellant’s evidence, in
order to determine whether the appellant discharged
the onus of
proving on a balance of probabilities, that the accident occurred as
he said it did.
[19] In respect of the
evidence led by the appellant, Harcourt A J added the following after
reaching the conclusion that he did
“
That is, in
particular, against the background that more evidence of the
surrounding objective facts could have been, but was not,
led”.
His concern as to the
adequacy of the evidence placed before him, found expression earlier
in his Judgment, in the following words:
“
What I am
left with is scant evidence, speculation, reconstruction and evidence
which suggests the plaintiff understated his speed”.
[20] It is therefore
necessary in deciding whether appellant discharged the
onus
resting upon him, to determine whether the misgivings of Harcourt A J
were justified.
[21] As regards the issue
of whether the appellant could have led evidence of the surrounding
facts concerning the accident, the
concerns expressed by Harcourt A J
were as follows. No evidence was led of the damage to the vehicle,
which may have assisted in
the reconstruction of what had occurred.
It is clear, as observed by the trial Court, that the vehicle was
repaired and driven
by the appellant’s son after the accident,
before being re-possessed. Whether evidence of the nature of the
damage to the
appellant’s vehicle, would have been of
assistance in determining how the accident happened, when there was
no contact with
any other vehicle is impossible to say. In any event,
in the light of the appellant’s evidence that he only
established on
21 February 2006, that he had a claim against the
defendant (the veracity of such an assertion I will deal with in due
course)
it is not unreasonable that evidence of the damage to the
appellant’s vehicle, was not preserved.
[22] The trial Court also
expressed concern that Duran, the appellant’s son, was not
called to give evidence, which according
to a statement Duran made to
the police,
“it seems as though he went to the scene of
the collision immediately after the collision”.
An
affidavit by Duran made to the police is part of the appeal record,
but does not record any assertion by him, that he went to
the scene
on the day of the accident. From the evidence of Captain Ximba, the
investigating officer, Duran accompanied him to the
scene of the
accident on 03 July 2004. Mr. Pitman, who appeared for the defendant
in the Court
a quo
and
the respondent on appeal, when cross-examining the appellant,
referred to a statement made by Duran to the police and in which
he
said that the appellant’s vehicle
“overturned
several times”.
The statement which is part of the
appeal record, does not contain such an assertion, and consequently
it appears that the statement
referred to, does not form part of the
appeal record and there is no indication that it was handed in to the
Court
a quo.
Be that
as it may, even if he did visit the scene on the day of the
collision, it is pure speculation that his visit would have
revealed
anything of significance, such that a failure to call him, to give
evidence, should be seen in a suspicious light.
[23] Harcourt A J also
expressed concern that the appellant when giving evidence was unable
to say whether his vehicle had overturned,
when what was contained in
the statement of his son was put to him. He said he was not sure what
happened after he had hit the
tree, which is not surprising as the
appellant was rendered unconscious in the collision and only regained
consciousness the next
day in the afternoon. I do not regard it as
suspicious that he was unable to describe what happened to his
vehicle after he collided
with the tree.
[24] In my view the
misgivings of Harcourt A J, were unjustified. In
the absence of any
evidence to suggest that the nature of the damage to the vehicle, or
any evidence which may have been found at
the scene of the accident,
could have played a significant role in determining how the accident
happened, to positively find against
the appellant, that the
appellant has deliberately chosen not to lead such evidence, because
to do so would weaken the appellant’s
case, was unjustified.
That the trial Court viewed this aspect in this light is illustrated
by his remarks that
“the barest evidence was led by the
plaintiff”
and
“I have the feeling
that as little evidence as possible is being proved”
and
“other available evidence which could be relevant and
the subject matter of cross examination has not been made to the
Court”
and further
“what I am left
with is scant evidence”.
That any such evidence
could have played a significant role in determining how the collision
occurred is pure speculation.
[25] Although Harcourt A
J made no adverse credibility finding against the appellant, he
referred in his Judgment to a number of
aspects in the appellant’s
evidence, which although extraneous to how the accident happened,
formed the basis in cross-examination
for attacks upon the
credibility of the appellant. Such evidence forms part of the
surrounding circumstances which although extraneous
to the manner in
which the accident occurred, are relevant to an assessment of the
appellant’s credibility.
[26] The most significant
of these was the delay by the appellant in lodging any claim against
the respondent. The accident occurred
on 13 March 2004 and the claim
had to be lodged by 12 March 2006. The claim forms were drafted in
the attorney’s office on
21 February 2006, shortly before the
expiry of the relevant period for lodging a claim. Related to this
issue was the fact that
the appellant had lodged a claim, dated 26
August 2002 with the respondent, arising from a previous incident on
03 March 2002,
when an unidentified vehicle was driven over his foot.
In addition the appellant had only made a statement to the police
with regard
to the present accident in June 2004.
[27] From these facts Mr.
Pitman sought to argue that by virtue of the inordinate delay by the
appellant in lodging a claim against
the respondent, an inference
should be drawn that the appellant was aware that he had no claim
against the respondent because no
other vehicle was involved in the
present accident. Allied to this assertion was the fact that the
appellant had not asked his
family to investigate in the area to try
and trace the vehicle involved and ascertain whether there were any
witnesses. The appellant
had also not asked his family to report the
matter to the police.
[28] As regards the
appellant’s failure to lodge a claim, he said that the reason
he did not approach the attorneys, was because
he did not know he had
a claim because he did not
“smash into another car”.
He had heard this from friends. The attorney of the
appellant was called and he said that the appellant had come to his
office to
discuss the previous accident and while he was in the
office, the witness noticed the appellant was in a wheelchair, so he
asked
him
what had happened. The
appellant explained that he was in another collision and the witness
asked the appellant if he had lodged
a claim. The appellant had said
he had not because he wasn’t sure that he had a claim against
the respondent. The appellant
said he felt he had no claim because
there was no contact between the vehicle he avoided and his vehicle.
The witness however realised
the appellant did have a claim, and so
he went ahead and lodged the claim with the respondent.
[29] When the appellant
was interviewed by the police in hospital in July 2004, it is
recorded in his statement that a red Toyota
vehicle had swerved
across in front of him, causing him to swerve off the road and
collide with a tree.
[30] Consequently, the
appellant’s version from July 2004 until he visited his
attorney on 21 February 2006 was that another
vehicle was involved in
the accident. The only plausible explanation for such a delay in
lodging a claim against the respondent,
would be the reason given by
the appellant and his attorney, particularly so as in the appellant’s
previous claim, although
the vehicle was unidentified, there was
“contact”
between this vehicle and
appellant. In my view, it would accordingly be unfair to infer from
the delay that no other vehicle was
involved. If the appellant had
made no mention of another vehicle in his statement to the police,
that would obviously have placed
a different complexion upon events.
[31] As regards the
appellant’s failure to ask his family to investigate in the
immediate area and report the matter to the
police, when asked why he
had not done this he said that
“I wasn’t in the
right frame of mind. I was injured, my spine, and I was not too
good”.
Whether the appellant’s mental state
was such that his conduct in not asking for these investigations to
be carried out and
reports made to the police, was reasonable, is of
course impossible to determine. Why his family did not do this
themselves is
unexplained, as the natural inclination would be to
take all possible steps to apprehend the driver, who had caused the
accident.
Standing alone however it is obviously insufficient to
refute the appellant’s contention that another vehicle was
involved.
It is however a factor to be considered in weighing up the
probabilities.
[32] A further factor of
relevance to an assessment of the appellant’s credibility, was
a contradiction between how he described
the other vehicle in his
statement to the police and how he described it, when giving
evidence. In his statement he is recorded
as saying that it was a red
Toyota, but in evidence he described it as a red Toyota Corolla. The
appellant was adamant he had told
Captain Ximba it was a red Toyota
Corolla, whereas Captain Ximba was equally adamant he had recorded it
correctly as a red Toyota.
Again the possibility that the appellant
failed to tell the police that the vehicle was not simply a red
Toyota but a red Toyota
Corolla, standing alone is insufficient to
refute the appellant’s contention that another vehicle was
involved. It is however
a factor to be considered in weighing up the
probabilities.
[33] Turning now to an
assessment of the evidence and the probabilities, which arise on the
evidence, as to how the accident happened.
At the outset, it should
be remembered that the crucial issue is whether there was another
vehicle involved, or not. The issue
is whether the appellant’s
version that the accident was caused by the negligent driving of an
unidentified vehicle, when
assessed in the context of the objective
facts as to the accident, may be regarded as so improbable as to find
that the appellant
has not discharged the
onus
resting upon
him. The appellant’s version would have to be rejected as
untrue and in reaching such a conclusion the extraneous
factors,
dealt with above, which are relevant to the appellant’s
credibility, would have to be considered.
[34] It is so that the
estimations by the appellant of the speed he was travelling at, as
well as the distance between his vehicle
and the other vehicle could
not be accurate. It is not necessary and in my view, unfair, to
subject such estimations to mathematical
scrutiny and reject them on
this basis. In assessing this evidence, allowance has to be made for
the fact that the appellant was
testifying to an accident which at
the time of trial, had taken place six years ago, in which he was
seriously injured. In this
regard Harcourt A J was alive to the
danger of reconstruction, reliance on speed tables and witness
recollections of distances.
Be that as it may, the fact remains that
these estimations are inaccurate. Whether such inaccuracy is however
sufficient to adjudge
the appellant’s version that another
vehicle was involved, as so improbable that it may be rejected as
untrue, depends upon
an assessment of the appellant’s version,
in the context of the objective facts as to the accident in question.
The objective
facts are that the appellant drove his vehicle off the
right hand side of the road, whilst negotiating a right hand turn and
collided
with a tree.
[35] Considering firstly
the version advanced by the respondent that no other vehicle was
involved in the accident. On this version
the accident could only
have occurred as a consequence of the appellant losing control of his
vehicle and driving off the right
hand side of the road, where the
road curves to the right. Although reference was made in the evidence
to the camber of the road
to the right hand side as a possible cause
of such an event, the camber of the road does not appear to be
particularly pronounced
from the photographs. There is a wide grass
verge between the tree that was struck and the edge of the road. If a
loss of control
is predicated on the basis of excessive speed, the
more natural or plausible manner in which this would occur in a curve
to the
right, would be by losing control of the vehicle to the left
hand side of the road, rather than towards the inside of the corner.
That the appellant drove his vehicle to the right is more consistent
with his version that he was taking evasive action to avoid
the other
unidentified vehicle. Be that as it may, I am satisfied that it
cannot be concluded that the appellant’s evidence
of how the
accident occurred is so improbable or vague and ineffectual, that it
can be rejected as being untrue. In reaching this
conclusion I do not
overlook the reservations I have expressed in regard to the failure
to take steps to try and trace the driver
of the unidentified
vehicle, nor the conflict as to whether the appellant simply told the
police it was a red Toyota and did not
add that it was a Corolla. I
am satisfied that these issues which are relevant to the appellant’s
credibility are insufficient
to disturb the conclusion I have reached
on the probabilities of the matter.
[36] The remaining issue
to be considered, is whether the appellant was contributorily
negligent. As I have said the appellant’s
estimations of speed
and distance were inaccurate. The appellant must have been travelling
at a speed well in excess of his estimation
of fifty-five to sixty
kilometres per hour, in order to travel across the opposite lane and
the grass verge and collide with the
tree with such disastrous
consequences. In addition, if the appellant was travelling at the
speed he estimated, he should in my
view, have been able to retain
control of his vehicle on the wide grass verge, without colliding
with the tree. This is particularly
so as it was dry and visibility
was clear. Considering all of the above, I am satisfied that the
appellant was fifty percent to
blame for the accident.
The order I make is the
following:
1. The appeal succeeds
and the order of the Court
a quo,
granting absolution from the
instance in favour of the defendant, is set aside and replaced with
the following order:
the defendant is liable
to pay to the plaintiff fifty percent of any damages the plaintiff
may prove to have suffered, as a
result of the motor vehicle
accident on 13 March 2004.
The defendant is
ordered to pay the plaintiff’s costs.
2. The respondent is
ordered to pay the appellant’s costs of appeal.
_______________
K Swain J
I agree
_______________
Steyn J
I agree
_______________
Mbatha J
Appearances
/
Appearances:
For the Appellant
:
Mr
.
A. K. Kissoon Singh S C with
Mr. P. N. Schumann
Instructed by
:
Justin Reichlin Ramsamy
C/o
Cajee Setsubi Chetty Inc.
Pietermaritzburg
For the Respondent
:
Mr. M. Pitman
Instructed
by
:
Askew Grindlay & Partners Inc.
C/o
Tomlinson Mnguni James Inc
Pietermaritzburg
Date of Hearing
:
09 March 2012
Date of Filing of
Judgment
:
23 March 2012