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[2009] ZAGPPHC 246
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Van Der Griendt v Strydom (1191/2005) [2009] ZAGPPHC 246 (26 March 2009)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
NORTH
AND SOUTH GAUTENG
Case No: 1191/2005
DATE:26/03/2009
In
the matter between:
B
R VAN DER
GRIENDT
..............................................................
Plaintiff
and
P
G
STRYDOM
.......................................................................
Respondent
JUDGEMENT
Sapire,
AJ:
This
is an action in which the plaintiff claims payment from the defendant
of an amount of R660 000, 00 The amount represents damages
allegedly
sustained by the plaintiff from personal injuries in a road accident
which took place on the 25th of August 2003.
Plaintiff
alleges that the defendant was the driver of a vehicle owned by the
plaintiff and in which the plaintiff was a passenger.
The plaintiff
had brought the vehicle to the defendant to have modifications made
to the vehicle in order to increase its efficiency
and high speed
capabilities. It is worthwhile bearing in mind that the vehicle was
manufactured as a bakkie intended for work normally
done by bakkies.
The fact that it’s design was tampered with may well have
contributed to the accident which took place that
day. There is some
dispute as to what if anything was done to the vehicle during the
morning preceding the afternoon when the accident
occurred.
The
plaintiff has testified, and this appears to be common cause, that
after lunch which they took together with others plaintiff
together
with the defendant went to drive the vehicle on the hospital road in
Brakpan. There is evidence that this particular road
is used to test
drive vehicles which the defendant had modified.
The
plaintiff says that the purpose of the drive was to test the vehicle
and admits that in order to do so the vehicle had to be
driven at a
high speed, much in excess of the speed limit prescribed for that
vicinity.
Plaintiff
has testified that the defendant was driving the vehicle in order
that he could get a feel of the engine on which he had
worked and on
which work was still to be done.
While
they were driving at an excessive speed the defendant, so the
plaintiff says, lost control of the vehicle which left the tarmac
road, careered into the veld, rolled, and finally came to rest a
considerable distance from the road at or in a ditch which carries
water through the field.
The
defendant was thrown from the vehicle some distance before the
vehicle came to rest while the plaintiff was found lying next
to the
left hand side of the vehicle, his head near the back of the rear
wheels and his feet towards the ditch.
It
seems to be an irresistible conclusion that the defendant was thrown
from the vehicle before the plaintiff as the defendant was
found
injured and lying nearer to the road than the plaintiff. How the
defendant emerged or was thrown from the vehicle is not
clear on the
available eyewitness evidence. This is the account given by the
plaintiff
The
defendant claims to be suffering from retrograde amnesia and has no
recall at all of the incidents to which the plaintiff has
testified
from about the time lunch was taken. No medical evidence
substantiates this. He cannot himself contradict the plaintiff
s
testimony but has placed before the court the opinion of one Strydom,
(unrelated to the Defendant, said to be an expert on the
reconstruction of road accidents.
The
parties fought the case on the basis that I was to determine, if
possible, only who the driver of the vehicle was and who was
the
passenger at the time of the accident. This was the sole issue for
decision.
No
serious fault can be found in the manner in which the plaintiff
testified. He related what is after all a simple story which
prima
facie has the ring of truth.
There
are circumstances which support what he told the court. The first is
the defendant’s presence in the car at all. There
seems to be
no reason for the defendant to have been in the car otherwise than to
test it and to get the feel of it. If the plaintiff
was to have done
the testing there was no need for the defendant to have been there at
The
second circumstance which seems to support the plaintiffs version is
that he was found lying next to the left hand side of the
vehicle. It
is reasonable to infer that it was on the left hand side of the
vehicle that he was sitting when the accident took
place. This would
make him the passenger. He claims to have correctly applied his
seatbelt There is evidence which suggests that
the seatbelt was
damaged by forces engendered in the movement of the vehicle after
leaving the road.
Photographs
before the court show the left hand seatbelt hanging and the damaged
mechanism was produced as an exhibit.
There
is a hospital record to which the Defendant has apparently
subscribed. In it the accident is described much as the plaintiff
has
recounted. Although the defendant while admitting his signature
claims not to have been responsible for the description of
the
accident which is neither in his handwriting nor his language,
Afrikaans. The hospital record is part of the bundle of documents
placed before the court in respect of which it is agreed that that
documents included in the bundle are what they appear to be
but are
not in themselves proof of the contents thereof. The description of
the accident is therefore not proved by the production
of this
document. Its existence however favours the probabilities of the
plaintiffs account for the information therein probably
came from the
Defendant or someone acting on his behalf Not too much reliance is
placed on this document but it is a factor taken
into account with
other evidence favouring the probabilities of the Plaintiff s
version.
The
defendant called one Strydom as an expert to infer from the available
evidence that it was the defendant who was the passenger
and that the
plaintiff must have been the driver, Strydom was only consulted some
two years after the occurrence of the accident
and clearly with a
brief to theorize and to come to the conclusion favourable to the
defendant, contradicting that of the Plaintiff..
Although Strydom
claims to have been impartial, and independent, while not
disbelieving him his theorising seems to be directed
to establishing
the defendant’s case
In
any event the evidence of an acceptable eyewitness account about what
took place is preferable to the conclusion arrived at by
the
reconstruction of anyone not present at the time.
What
was argued to be a probability favouring the defendant is the fact
that the defendant must have been thrown from the vehicle
before the
plaintiff. The defendant’s theory is that this could not have
happened if the defendant had been the driver. It
is argued that the
plaintiff must have emerged from the vehicle on the left hand side
because it is the passenger’s door
which was opened. The
driver’s door after the accident was closed and could not be
moved. The right hand door was however
damaged bowed outwards and the
frame of the window bent to leave a gap between it and the body of
the car. There is nothing to
eliminate the possibility of the
plaintiff knowing been thrown from the vehicle from that side.
Strydom the expert, dismiss this
as a possibility but his reasons for
doing so are not clear. From the pictures which are exhibits in the
case I find that this
possibility cannot be excluded nor can the
possibility be excluded that the door opened when the vehicle rolled
and later closed
again and became immovable.
As
I have no reason to disbelieve the plaintiff I find that he was a
passenger and the defendant was the driver.
Cost
will follow the event and the defendant must pay the plaintiff s
costs.
ACTING
JUDGE SAPIRE
HIGH
COURT, PRETORIA