Manqwambe v Road Accident Fund (1714/07) [2011] ZAECMHC 10 (10 June 2011)

75 Reportability

Personal Injury Law - Road Accident Fund

Brief Summary

Delict — Motor vehicle collision — Plaintiff claiming damages from Road Accident Fund for injuries sustained in collision — Separation of issues of merits and quantum — Court determining liability based on conflicting testimonies of plaintiff and defendant's witness — Plaintiff asserting negligent driving by defendant's insured driver, while defendant contending plaintiff was at fault — Court finding plaintiff's version credible and supported by evidence of police witness — Defendant's witness's contradictory statements undermining credibility — Court concluding that defendant's insured driver was negligent and vicariously liable for plaintiff's injuries — Defendant ordered to compensate plaintiff for damages.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a delictual damages action arising from a motor vehicle collision in which the plaintiff claimed compensation from the Road Accident Fund in terms of the statutory scheme governing third-party motor vehicle accident compensation.

The parties were Tobisile Manqwambe as plaintiff and the Road Accident Fund as defendant. The Fund’s liability was alleged to arise because the other vehicle involved in the collision (driven by Mr Lulama Quinton Witbooi) was insured by the defendant in terms of section 17(1) of the Road Accident Fund Act 56 of 1996.

Procedurally, the court recorded that, by consent, the issues of merits (liability) and quantum (damages) were separated, and the trial proceeded only on the question of liability. The plaintiff testified and also called Warrant Officer Ndiphiwe Gqwetha of the SAPS. The defendant did not itself testify but called Mr Witbooi. No other witnesses were called.

The general subject-matter of the dispute was the determination of which driver’s negligence caused the collision, and consequently whether the defendant was liable to compensate the plaintiff for the plaintiff’s proven damages in subsequent quantum proceedings.

2. Material Facts

It was common cause that on 18 April 2007 at about 16h30–17h00, the plaintiff was driving motor vehicle DNN 869 EC from Port St Johns to Mthatha on the R61 in Ngojini Location, Ngqeleni, when a collision occurred with the insured vehicle, registration BNN 657 B, driven by Mr Witbooi, who approached from the opposite direction. It was further common cause that the road surface was wet because it was drizzling and misty, and that a barrier line separated the lanes of travel. After the collision, both vehicles came to rest on the left-hand side of the road, being the plaintiff’s correct side of travel, and both vehicles faced in the Mthatha direction.

The court relied on the evidence of Warrant Officer Gqwetha, who attended the scene on the day of the collision and compiled a sketch plan (referred to as exhibit “A26”). On that sketch plan, he marked points “C” and “D” as the positions where the vehicles landed after the collision. He also marked two possible points of impact, namely X¹, described as the point indicated to him by Mr Witbooi, and X², described as the point indicated by the plaintiff.

Warrant Officer Gqwetha testified that when he examined the scene, he observed a concentration of debris at X², and that this concentration indicated to him that the collision occurred on the plaintiff’s correct lane of travel. He also observed collision damage to the plaintiff’s vehicle on the driver’s side. The judgment recorded that this evidence was not disputed by the defendant.

The plaintiff’s version was that he was travelling uphill at about 80 km/h when he saw the insured vehicle approaching at a high speed and showing signs of being out of control. He stated that he swerved left out of the road and continued until he stopped near a ditch on the far side of the yellow line. He said that thereafter the insured vehicle came directly towards his vehicle and collided with it. He identified X² as the impact point and confirmed that “C” and “D” represented the post-collision resting positions. He attributed the collision to Mr Witbooi’s negligent driving.

Mr Witbooi’s account differed materially. He testified that he was driving from Mthatha towards Port St Johns and that just before the collision he was travelling downhill on a curve. He said he observed the plaintiff’s vehicle approaching at an excessive speed and on the incorrect side of the road. He claimed that although he reduced speed, the plaintiff’s vehicle continued towards him and the collision occurred at X¹. He further stated that he attempted to avoid the collision by swerving to the right, but the collision nonetheless occurred. He testified that he lost consciousness after the collision and regained consciousness later during medical attention and in hospital.

3. Legal Issues

The central question for determination was whether the plaintiff had proved, on a balance of probabilities, that the collision was caused by negligent driving on the part of Mr Witbooi, thereby rendering the defendant liable under the Road Accident Fund scheme.

The dispute was primarily one of fact and the application of the civil standard of proof to mutually destructive versions. The court was required to resolve irreconcilable evidence by making findings on credibility, reliability, and probabilities, and to determine whether there was any basis for contributory negligence on the plaintiff’s part (including the defendant’s contention that the plaintiff “cut the curve”).

4. Court’s Reasoning

The court approached the matter on the basis that, where there are conflicting versions, the proper method is to decide the matter by reference to credibility, reliability, and the probabilities, within the framework of the plaintiff’s onus to prove negligence on a balance of probabilities. In doing so, the court endorsed the evaluative approach associated with Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA), and the principle that the court’s decision ultimately depends on whether the plaintiff’s version is accepted as true and the defendant’s version rejected as false, consistent with National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E).

Applying that approach, the court held that the defendant’s witness, Mr Witbooi, presented contradictory versions and that there were inherent improbabilities in his account, particularly concerning the point of impact and the circumstances of the collision. These contradictions and improbabilities were found to undermine his credibility and the reliability of his evidence. The judgment also recorded that Mr Witbooi made concessions supportive of the plaintiff’s case (including the plaintiff’s vehicle swerving left and stopping near a ditch), which further contributed to the court’s view that Mr Witbooi’s versions were implausible.

The court accepted Warrant Officer Gqwetha’s evidence as credible and grounded on reasonable observations at the scene, especially the concentration of debris at X², which supported the inference that the collision occurred on the plaintiff’s correct side of the road. The court rejected the defendant’s submission that the officer had testified that X² could not be the point of impact, finding instead that his evidence was that the debris concentration led him to believe that X² could be the point of impact.

The court also relied on the fact that the plaintiff’s version that the collision occurred on a straight portion of the road was not challenged, notwithstanding that it had been suggested to him in cross-examination that the collision occurred on a curve. On that basis, the court accepted the plaintiff’s evidence that there was no curve at the point of collision, and accordingly found that the argument that the plaintiff “cut the curve” had no factual foundation.

Finally, the court considered and rejected the defendant’s alternative submission that, if negligence were found on Mr Witbooi’s part, the blame should be apportioned equally. It found that the suggestion of contributory negligence by the plaintiff was baseless on the accepted evidence and probabilities.

5. Outcome and Relief

The court held that the plaintiff proved, on a balance of probabilities, that Mr Witbooi was the negligent party and that the defendant was therefore liable to compensate the plaintiff for the injuries sustained in the collision.

The court made an order that the defendant was liable to compensate the plaintiff for such damages as would be proved in the later proceedings on quantum, and that the defendant was to pay the costs relating to the hearing on the merits.

Cases Cited

Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA).

National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E).

Legislation Cited

Road Accident Fund Act 56 of 1996, section 17(1).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court (Eastern Cape, Mthatha) found that the plaintiff discharged the onus of proving, on a balance of probabilities, that the collision was caused by the negligence of the insured driver, Mr Witbooi. The Road Accident Fund was held liable to compensate the plaintiff for damages to be determined at the separated quantum stage, and was ordered to pay the plaintiff’s costs of the merits hearing.

LEGAL PRINCIPLES

The judgment applied the principle that where parties present mutually destructive versions, the court resolves the dispute by evaluating credibility, reliability, and the probabilities, while keeping in mind that the plaintiff bears the onus to establish negligence on a balance of probabilities.

It further applied the principle that the court does not need to achieve certainty; it must decide whether the plaintiff’s version is more probable and should be accepted as true, with the defendant’s version rejected as false, consistent with the approach articulated in National Employers’ General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) and the credibility-probabilities methodology associated with Stellenbosch Farmers Winery Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA).

On the facts, the court treated objective indicators at the collision scene (including a concentration of debris at a particular point and undisputed police observations) as materially relevant to the probability assessment, and rejected unsupported assertions of contributory negligence where the accepted evidence did not establish the factual premise for such a finding.