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[2011] ZAKZDHC 4
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Naicker v Moodley (2003/2008) [2011] ZAKZDHC 4; 2011 (2) SA 502 (KZD) (14 February 2011)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN
REPUBLIC OF SOUTH
AFRICA
CASE NO.
2003/2008
In the matter between:
SAMESHEN NAICKER
…........................................................
PLAINTIFF
and
SUBRAMANIYAN MOODLEY
….........................................
DEFENDANT
JUDGMENT
Delivered
on 14 February 2011
SWAIN J
[1] The evidence before
me reveals two mutually destructive versions of how a collision
occurred, between two vehicles driven respectively
by the plaintiff
and the defendant, at the robot-controlled intersection of Higginson
Highway and the off-ramp- from the N2 Freeway,
Durban, on 27 May
2006.
[2] The claim advanced by
the plaintiff is for payment of the agreed quantum of the loss
suffered by the plaintiff, as a result
of the damage caused to the
plaintiff’s vehicle. The agreed costs of the repairs to the
plaintiff’s vehicle were R164,961.95,
as well as the agreed
towing costs incurred by the plaintiff, in the sum of R2,050.00. Mr.
Combrinck, who appeared for the plaintiff,
advised me that no
agreement had been reached with regard to a further claim of the
plaintiff for the costs of hiring another vehicle,
but no evidence
was led by the plaintiff to establish this claim and consequently
need not detain me any further.
[3] Although the
defendant’s vehicle was damaged beyond economical repair, no
counter claim was advanced by the defendant
for his loss, the reasons
for which I will deal with in due course.
[4] It is clear that
“
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 other version advanced by the
defendant
is therefore false or mistaken 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. The estimate of the credibility of a witness will
therefore be inextricably bound up with a consideration of the
probabilities of the case and, if the balance of probabilities
favours the plaintiff, then the Court will accept his version as
being probably true. If however, the probabilities are evenly
balanced in the sense that they do not favour the plaintiff’s
case any more than they do the defendant’s, the plaintiff
can
only succeed if the Court nevertheless believes him and is satisfied
that his evidence is true and that the defendant’s
version is
false”
National Employers
General Insurance v Jagers
1984 (4) SA 437
(E)
at 440 D – G
“
It is only
where a consideration of the probabilities fails to indicate where
the truth probably lies, that recourse is had to an
estimate of
relative credibility apart from the probabilities”.
Jagers
supra
at 441 A
[5] As regards the
relative credibility of the plaintiff and the defendant, Mr.
Combrinck and Mr. Naidoo, who appeared for the defendant,
agreed that
there were no grounds for impugning the credibility of either of the
parties. No glaring contradictions or inconsistencies
were revealed
by their evidence. Consequently, the issue of whether the plaintiff
has discharged the onus resting upon him of proving
that his version
is true and accurate and that of the defendant false or mistaken,
depends upon an assessment of the plaintiff’s
allegations
against the general probabilities.
[6] The version of the
plaintiff was that he drove off the N2 Freeway and stopped at the
intersection because the robot was red.
He waited in the right hand
lane to enter the intersection and turn right into Higginson Highway.
When the light turned green he
proceeded into the intersection and
saw no vehicles near the line at which vehicles approaching the
intersection from his right
hand side, would be required to stop. The
defendant’s vehicle then collided with his vehicle from the
right. The vehicles
stopped after the collision at right angles to
each. The plaintiff emerged from his vehicle and asked the defendant
how could he
“shoot”
the red robot,
to which the defendant replied that he did not have his glasses on
and said to the plaintiff that the plaintiff’s
insurance could
claim from him.
[7] The defendant’s
version was that he stopped at the first intersection, where vehicles
were able to turn left to travel
on to the N2 Freeway, in the second
lane from the left, as the robot was red. When it changed to green he
took off and travelled
towards the intersection where the collision
occurred, the lights of which were green in his favour. He explained
that he travelled
through these intersections frequently and was able
to say that the phasing of the robots was such that when the lights
of the
first intersection turned green, those of the second
intersection did likewise. As he reached the second intersection, he
saw a
black Mercedes Benz vehicle approaching from the left and he
therefore applied his brakes and swerved to the right, but the left
front of his vehicle collided with the right front of the plaintiff’s
vehicle.
[8] The first thing he
did was to look for his glasses because they had come off in the
collision and fallen into the car. He found
his glasses, got out of
his car and the plaintiff came to him and said that he had
“shot”
the red robot. The defendant denied this and said that
the robot was green in his favour. The defendant said he was unable
to drive
without his glasses, and produced his temporary driver’s
license, because his license was recently lost, which was endorsed
to
the effect that he was only licensed to drive with glasses.
[9] On considering these
conflicting versions I am unable to find that the version of the
plaintiff is more probable than that of
the defendant. Why is it
inherently more probable that the defendant drove through a red
robot, while travelling along Higginson
Highway, than that the
plaintiff drove through a red robot after travelling off the N2
Freeway, wishing to turn right into Higginson
Highway?
[10] Mr. Combrinck
however submits that there are a number of aspects of the evidence,
as to what happened after the collision,
which taken together, tip
the balance of probabilities in the plaintiff’s favour.
[11] The first of these
is the evidence of Inspector Chetty who said he
“believed”
he had gone to the scene, because his signature and
details appeared on the official accident form, which appeared at
pages 22 –
25 of Exhibit “A”. He frankly conceded
that he could not remember the collision, which is not surprising, as
it happened
almost five years ago. He said it was his normal practice
to interview both drivers, but he was unable to recollect whether he
did so in this case. If their versions were contradictory, he would
reflect both versions in the report. The significance of this
lay in
the fact that the “
brief description of the accident”
was consistent with the plaintiff’s version. The
defendant said he had given his version of events to a policeman at
the scene,
of which there were a number, but was unable to say
whether it was the witness. As regards the sketch the witness made of
the positions
of the vehicles after the collision, he said he did
this the next day, from memory. Nothing turns on this however because
both
parties said the sketch was more or less accurate. Under cross
examination the witness said he could not dispute the defendant’s
denial that the defendant had admitted travelling through a red
robot. As regards the description he gave of how the accident
occurred, which commences with the words
“its alleged”,
he was unable to explain why he had used these words, if
the description accorded the agreed view of both drivers, other than
to
say that this was how they were trained to record the description.
In my view, in light of the fact that the witness has no recollection
of the accident, no weight whatsoever can be placed upon his
contention, that the description of the accident records the view
of
both drivers.
[12] The next aspect
relied upon by Mr. Combrinck, is that it is common cause that the
plaintiff immediately after the accident
accused the defendant of
ignoring the red light. Having had the benefit of seeing both parties
in the witness box, I do not believe
any inference as to the validity
of the plaintiff’s accusation can be drawn from this conduct,
simply because the plaintiff
is quite clearly a confident assertive
individual, whose confidence at times bordered on arrogance, when
giving evidence. The defendant
is in contrast, a much older reserved
person.
[13] Mr. Combrinck also
refers to the plaintiff’s description of the accident,
contained in the claim form submitted to his
insurers, which apart
from recording that the defendant did not stop at the red robot,
contained the following statement
“
His reason
for not stopping at the red robot was that he did not have his
glasses, he apologised and said I must not worry cause
my insurance
company can claim from him”.
This evidence was clearly
inadmissible, being a previous consistent statement by the plaintiff,
which was not relevant, as no allegation
had been made by the
defendant, that the plaintiff had recently fabricated this evidence.
The mere fact that the defendant denied
making the statement, is
insufficient to render the statement admissible.
State v Burgh
1976 (4) SA 857
(A)
at 867 G
Mr. Naidoo did not
however object to the admission of this evidence. After the plaintiff
had closed his case, I asked Mr. Naidoo
whether it was correct that
he had no objection to the admission of this evidence, on the ground
that it was a previous consistent
statement. He answered that he did
not. The fact remains however that the primary reason for it not
being admissible, effects the
weight to be attached to this evidence.
The fact that a story has been repeated, and the witness has been
consistent, does not
have sufficient evidential value, to prove the
assertion made.
Burgh’s case
supra
at 865 G – H
[14] In this regard the
plaintiff was asked by Mr. Combrink in re-examination if he recalled
whether the defendant had glasses.
His reply was that
“probably”
when the defendant got out of the vehicle, he did not
have glasses. The defendant however maintained that the first thing
he did
after the collision was to find his glasses, which had come
off in the accident, and put them on. It seems to me improbable that
the defendant, who quite clearly wears glasses, and is only licensed
to drive whilst wearing them, would drive without them. In
addition,
what would his purpose be in saying that his glasses had come off in
the accident, when the plaintiff never alleged he
had seen the
defendant in the vehicle, without his glasses?
[15] Mr. Combrinck also
refers to the letter of demand sent to the defendant, which the
defendant received but never replied to.
His argument was that if the
defendant was innocent of any wrong doing, he would have replied
rejecting the false accusations made
against him. The defendant’s
response to this was that maybe it was wrong not to have replied to
the demand, but he believed
he was in the right because the robot was
green. In my view it is impermissible to draw such a conclusion, when
regard is had to
the fact that the defendant is a layman, who was
faced with a letter of demand from the legal department of the
plaintiff’s
insurers. When he was served with the summons he
then retained the services of his attorneys.
[16] A further aspect
relied upon by Mr. Combrinck was that it was common cause that the
plaintiff had asked the defendant at the
scene, to acknowledge in
writing on a piece of paper, that he had ignored the red robot. The
plaintiff said his father had told
him to do this, when he had
telephoned him from the scene. The argument was that the plaintiff
would never have asked the defendant
to do this, if he had not
already admitted his negligence. In my view, the mere fact that the
plaintiff asked the defendant to
admit in writing that he was at
fault, does not justify such an inference being drawn, because there
may be a number of equally
plausible explanations for the plaintiff’s
conduct. One which readily springs to mind is that if the plaintiff
in his telephone
call to his father maintained that the accident was
caused by the defendant, it would be a natural response of his
father, to tell
the plaintiff to obtain such an acknowledgment from
the defendant. The plaintiff would thereafter be obliged to attempt
to do so,
otherwise the credibility of the assertion he made to his
father, would be seriously undermined.
[17] A further aspect
relied upon by Mr. Combrinck, was that the defendant had failed to
counter-claim for the value of his car,
and would have done so if he
was not to blame. The defendant however explained that his vehicle
was a 1986 model, which he had
bought the year before the accident
for R4,000.00. The vehicle was sold for scrap for R1,000.00 and he
therefore did not believe
it was worth spending money on trying to
recover this small amount. When Mr. Combrinck asked him why he
nevertheless did not counter-claim
for this amount, he said his
attorneys would have to be asked about this. In my view, no adverse
inference can be drawn against
the defendant, in this regard.
[18] Considering all of
the above, I remain unable to find that the version of the plaintiff
is more probable than that of the defendant.
On all of the evidence,
I do not know whether it was the plaintiff or the defendant, who
failed to respect the red light at the
intersection, which caused the
collision.
[19] Mr. Combrinck
however submitted in the alternative, that the defendant on his own
version, was at least contributorily negligent
in relation to the
collision for the following reason. The defendant acknowledged that
he had a clear view of the vehicles travelling
on the off ramp from
the N2 Highway and approaching the intersection as the plaintiff did.
The defendant said that his attention
was however focused ahead of
him, looking at the intersection and the green light. Mr. Combrinck
submitted that if the defendant
had been keeping a proper look out,
he would have seen the defendant’s vehicle approaching the
intersection at an earlier
stage and would have been able to avoid
the collision.
[20] I however agree with
the decision in
Joseph Eva Ltd. v
Reeves
[1938] 2 All E R
115
where the following was
said
“
Nothing but
implicit obedience to the absolute prohibition of the red – and
indeed of the amber, subject only to the momentary
discretion which
it grants – can ensure safety to those who are crossing at the
invitation of the green. Nothing but absolute
confidence in the mind
of the driver invited by the green to proceed, that he can safely go
right ahead, accelerating up to the
full speed proper to a clear road
in the particular locality, without having to think of the risk of
traffic from left or right
crossing his path, will promote the free
circulation of traffic which, next to safety, is the main purpose of
traffic regulations.
Nothing again will help more to encourage
obedience to the prohibition of the lights than the knowledge that,
if there is a collision
in the cross-roads, the trespasser will have
no chance of escaping liability on a plea alleging contributory
negligence against
the car which has the right of way. Finally,
nothing will help more to encourage compliance with the summons of
the green to go
straight on than the knowledge of the driver that the
law will not blame him, if unfortunately, he does have a collision
with an
unexpected trespasser from the left or right”.
Consequently, the driver
of a vehicle entering the crossing when the traffic lights are in his
favour, owed no duty to traffic entering
the crossing in disobedience
to the lights, beyond a duty that if he saw such traffic he ought to
take all reasonable steps to
avoid a collision.
The Law of Collisions
in South Africa 6
th
Edition
Leveson pg 51
This decision was
approved and followed by Millin J in the case of
Serfontein v Smith
1941 WL 245
where he said the
following
“
The person
seeing the green light is in the same position as if there were a
policeman waving him on. Not only has he then the right
to on, but in
the interest of traffic circulation and general safety it is his duty
to go on”.
On the defendant’s
version, as soon as he saw the plaintiff’s vehicle he did take
all reasonable steps to avoid the
collision.
In the result the order I
make is the following:
(a) The defendant is
absolved from the instance.
(b) The plaintiff is
ordered to pay the defendant’s
costs.
______________
K. SWAIN J
Appearances /…
Appearances:
For the Plaintiff :
Mr. P. J Combrinck
Instructed
by :
Alex Bosman Attorneys
C/o
Livingstone Leandy Inc
Durban
For the Defendant
:
Mr. D. D. Naidoo
Instructed
by :
C K M G Attorneys
C/o
Vinay Yetwaru Attorneys Durban
Date of Hearing
:
09 February 2011
Date of Filing of
Judgment :
14 February 2011