Singh v Road Accident Fund (3853/06) [2009] ZAKZPHC 25 (9 June 2009)

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[2009] ZAKZPHC 25
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Singh v Road Accident Fund (3853/06) [2009] ZAKZPHC 25 (9 June 2009)

IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL, HIGH COURT,
PIETERMARITZBURG
CASE NO: 3853/06
In the matter between:
NISHAL SINGH PLAINTIFF
vs
ROAD ACCIDEND FUND DEFENDANT
JUDGMENT
MADONDO J
[1] On 27 May 2003 at approximately
20h00 Nishal Singh (the plaintiff) and Karishma Maharaj, his ex
girlfriend, were traveling in
an Opel Corsa bearing registration
letters and number LMS402GP on M4 from Durban to Tongaat. The
plaintiff was a driver and Karishma
a front seat passenger in the
vehicle. Shortly after driving pass the off ramp to La’ Mercy they
noticed a truck hauling a V-deck
shaped double trailer laden with
logs on the slow lane at approximately 50m ahead of their vehicle and
proceeding in the same
direction as they were. All of a sudden they
saw a log lying across their path of travel. There were no street
lights and they
solely dependent on the lights of their motor vehicle
for the visibility. The log was covering part of the slow lane and
almost
the centre of the fast lane.
[2] On seeing the log they both
screamed. The plaintiff slammed on brakes and swerved to the right in
an attempt to avoid collision
with the log. However, realizing that
the vehicle would nevertheless collide with the log he veered the
vehicle to the left. In
the process the vehicle collided with the log
and as a result the plaintiff lost control of the vehicle. It
overturned until it
came to rest in the bank on the left hand side of
the road. At the time the vehicle was overturning and rolling
downwards the plaintiff
was flung out of the vehicle and fell on the
side of the road with half of his body on the tarmac out the
carriageway.
[3] During this mishap the plaintiff
sustained a fracture to the base of his head; fracture of the left
hip; abrasions to the right
hand side of his head and contusions of
brain involving both the frontal lobes and left temporal area.
Karishma sustained minor
injuries to her face and ankles. After the
accident she stood next to the road flagging down the passing
vehicles and asking for
assistance. However, the two motorists who
came to the scene, shortly after the collision, could not render any
assistance. The
ambulance, police and the relatives of the plaintiff
later arrived on the scene. The paramedics attended to the plaintiff
and he
was subsequently conveyed to hospital at Umhlanga Rocks.
[4] The plaintiff now sues the
defendant, the Road Accident Fund, for damages arising out of a motor
vehicle collision occurred
on 27 May 2003, on the M4 highway, in the
vicinity of La’ Mercy off ramp, between the motor vehicle driven by
the plaintiff and
the log that allegedly fell off the truck/double
trailer combination bearing registration letters and numbers
NPS51863, NPS28471
and NPS26034 respectively (the insured vehicle).
[5] In his Particulars of Claim the
plaintiff has alleged that the defendant was the statutory insurer of
the truck and double trailer
bearing registration numbers NPS51863,
NPS28471 and NPS526034 “the insured vehicles”. Alternatively,
that the defendant was
the statutory insurer of an unidentified motor
vehicle or vehicles and that it was therefore obliged in terms of the
Road Accident
Fund Act, no. 56 of 1996 (the Act) to compensate the
plaintiff for the damages he suffered.
[6] In its plea, the defendant has
raised two points
in limine
.
Firstly, that the plaintiff had failed to identify the owner or the
driver of the unidentified motor vehicle and that accordingly
the
plaintiff’s claim falls to be decided in terms of section 17(1)(b)
read with the regulations issued in terms of section 26
of the Act.
[7] Secondly, that the plaintiff’s
claim has prescribed in that the plaintiff was allegedly injured in a
car collision on 27 May
2003 and he only lodged his claim with the
defendant on 1 June 2005. It has also been argued on behalf of the
defendant that the
plaintiff was required to lodge his claim within
two (2) years from the date of the collision.
[8] However, at the commencement of
the trial, the plaintiff abandoned its alternative claim that the
defendant was statutory insurer
of the unidentified motor vehicles.
This has rendered the adjudication of the two points
in
limine
unnecessary.
[9] There has been no direct evidence
or eye witness who saw the log falling off the insured vehicle:
however, a considerable amount
of circumstantial and documentary
evidence has been presented from which it could reasonably be
inferred that the log fell from
the insured vehicle on to the road
way.
[10] It is common cause that the
insured vehicle was on 27 May 2003 laden with pine logs from Ixopo to
Sappi Mandini, and that it
arrived at Sappi mill at 21h35. The issue
is whether the log that caused the collision fell off the insured
vehicle and whether
on 27 May 2003 at the time of the collision the
insured vehicle was traveling on M4 highway.
[11] At the commencement of the trial
proceedings the parties agreed to separate the issues of liability
and quantum. In consequence
thereof this Court has only to decide the
question of liability. Since the plaintiff is now suffering from
retrograde amnesia due
to the injuries he sustained during the
collision he could not testify regarding the collision. However, in
order to prove that
the defendant is liable for the injuries he
sustained during the collision, the plaintiff has called several
witnesses including
Karishma Maharaj, who could give direct evidence
as to how the collision occurred, and presented documentary evidence.
[12] The greater part of Karishma’s
testimony has been covered in the introductory part of this judgment.
She is a Johannesburg
based attorney attached to the firm of
attorneys, Babi Rikhotso. At the time of the collision she was a law
student at the University
of KwaZulu-Natal, Durban, residing at
Seatides Tongaat, and the girlfriend of the plaintiff. However, her
love relationship with
the plaintiff broke up during August 2006.
[13] Amongst the relatives of the
plaintiff that attended the scene of accident was there an uncle to
the plaintiff, Ajesh Singh.
On his arrival on the scene Ajesh
approached her and enquired what had happened. She then related to
him as to how the collision
occurred and gave him the description of
the truck from which she assumed that the log, with which the
plaintiff’s vehicle collided,
had fallen off. Ajesh left the scene
of accident in order to locate the truck in question. From the scene
the plaintiff was taken
to hospital.
[14] This finds corroboration in
Ajesh’s evidence who testified that on the night of 27 May 2003 a
certain Maharaj reported to
him that his nephew, Nishal Singh, was
involved in a car accident. Following such a report he proceeded to
the scene of accident.
On his arrival there, he found paramedics
attending to the plaintiff. He then approached Karishma and enquired
how the accident
occurred. She informed him that the plaintiff’s
vehicle collided with a log that was lying across its lane of travel.
She further
told him that there was a truck laden with logs which was
also proceeding in the northerly direction as the plaintiff’s
vehicle
at a distance of 50 metres ahead of it. She did not see the
log falling but she assumed that if fell from said truck.
[15] In search of such truck Ajesh got
onto his vehicle and drove in the direction the truck had taken until
he came to R102. He
carried driving on R102 until he reached
Mellville where he saw a truck laden with logs. On seeing the truck
Ajesh flashed his
lights indicating that the truck should stop but
all was in vain. He then drove pass the truck. He pulled off on the
side road
sign posted Cranbrook. He alighted from his vehicle and
stood on the side of the road. He once again flagged the truck down.
However,
the truck did not stop. At the time he managed to have a
glance at the number plate of the truck and took its registration
letters
and numbers (NPS51863) down on his palm. It was a Mercedes
Benz truck, cream in colour, hauling a V-deck shaped double trailer.

Thereafter he proceeded to the hospital at Umhlanga Rocks where the
plaintiff had been taken for treatment. Later on the same evening
on
his return to his home, he telephoned the weighbridge at Sappi
Mandini in order to enquire whether the truck bearing registration

letters and numbers he had jotted on his palm had arrived. It was
confirmed at the weighbridge that such a truck had arrived. On
the
following day he gave the registration numbers of the truck in
question to his cousin, plaintiff’s father and Rohan.
[16] Under re-examination Ajesh Singh
stated that he had at 16h00 on 27 May 2003 gone out to pick up his
children and he drove through
the spot which later became the scene
of collision, there was no log lying there.
[17] Ravi Rohan, a resident of La’
Mercy, was also on the night of 27 May 2003 involved in a collision
with a log on M4 highway.
The log was lying across the highway. He
swerved in order to avoid a collision with it. However, in the
process his vehicle was
hit causing a puncture to the left front tyre
and damage to the front of his car. He mended a puncture and
proceeded home. On
his way, he noticed another vehicle which was also
involved in a collision with a log. Rohan did not see the log falling
off the
truck but he assumed that it must have fallen from it. On the
following day, Ajesh Singh gave him the registration numbers of the

vehicle that had allegedly dropped the log onto M4 highway as
NPS51867. However, he conceded that he might have incorrectly
recorded
the last digit as 7 instead of 3, when Ajesh was dictating
the truck registration numbers to him. Ajesh Singh according to Rohan

had pursued the truck until Mandini weighbridge.
[18] David Johannes Marx, the chief
security officer and the administrator of the weighbridge at Sappi
Mandini, testified that the
weighbridge system is computerized and it
captures all data of the timber that comes into the saw mill and the
products that leave
the mill. His duties entail ensuring that every
truck that off loads or takes stuff out of the mill is logged onto
the weighbridge
system. There are only two kinds of timber Marx comes
into contact with on daily basis, namely; gum and pine. Gum is
debarked in
the forest whereas pine is barked. Pine comes in 2.4 or
2.8 metres. The colour code “blue” means that timber comes from
the
inland. In the present case, timber had been felled at Ixopo on
21 May 2003 and the order number was 8263600115. The registration

letters and numbers of the truck that had delivered pine logs at
21h35 on 27 May 2003 were NPS 51863. The registration numbers
of the
first trailer were NPS28471 and of the second trailer were NPS26034.
The mass of its consignment was 53850kg. It was blue
code indicating
that it was coming from the inland. The truck that delivered timber
was hauling a V-deck shaped trailer and its
driver was Elson Zungu.
It was off loaded and left the mill empty at 22h10. Under questioning
for clarity Marx stated that if one
or two logs had fallen from the
truck he would not have noticed. The first truck that had delivered
logs from Ixopo to Sappi Mandini
had arrived at 15h07 on the same
day.
[20] This finds corroboration in the
evidence of Wayne Edwin Dickens who had contracted to Sappi mill to
transport timber from Ixopo
to Sappi Mandini under the name of WD
Transport. SS Transport was sub contracted to him to deliver timber
on his behalf from Ixopo
to Sappi Mandini. According to Dickens on 27
May 2003 a Mercedes Benz truck trailer with registration letters and
numbers NPS 51863
delivered pine logs from Ixopo to Sappi Mandini.
Its docket number was 547155 and the weighbridge ticket number was
8263600115.
The pine logs were 2.4 metres in length and they were
secured with 7 ton straps and ratchets. Back boards were not used for
fear
of the logs protruding through. The truck was pulling a
superlink V-deck shaped double trailer, the property of SS Transport,
and
its driver was Elson Zungu. SS Transport had never used U-shaped
deck trailers at all.
[21] Dickens stated that SS Transport
used M4 route when transporting timber to Sappi Mandini. From Ixopo
the SS Transport driver
used to get onto N2 traveled until Verulam
and branched off to M4. They used this route in order to minimize
costs since it is
shorter and there were no toll gates and
weighbridges on the route. This concludes the evidence of the
plaintiff.
[22] At the conclusion of the
plaintiff’s case Mr Choudree for the defendant applied for the
absolution from the instance on the
grounds that the evidence of
Karishma Maharaj and Ajesh Singh could not establish the identity of
the vehicle that had caused the
accident. Nor had they seen the log
falling off. In which event, he submitted that the plaintiff’s
claim had prescribed. Choudree
argued further that the plaintiff was
required to lodge its claim within two (2) years after the accident.
In the present case,
the collision occurred on 27 May 2003 and the
plaintiff lodged its claim on 1 June 2005. Such a period was more
than two (2) years.
In this regard he referred me to the decided
cases of
Mbatha V
Multilateral Motor Vehicle Accidents Fund 1997(3) SA 713 (SCA)
and
Hlongwane V Multilaterale
Motorvoertuigongelukke Fonds 2000(1) SA 570 TPD.
In both cases the allegations in the particulars of claim that the
plaintiff had been unable to ascertain the identity of the owner
or
driver of the vehicle he or she had collided with had given rise to a
special plea that he had failed to comply with the time
limit set out
in Regulation 3(2) (a) (i) and (ii) of the regulations issued in
terms of section 6 of the Multilateral Motor Vehicle
Accidents Fund
Act 93 of 1989, which provides that where a claim arises out of the
negligence of a driver of a motor vehicle of
which the identity of
neither the owner nor the driver can be ascertained, the claim
prescribes. After two years after the date
on which the claim arose,
irrespective of whether the claimant or third party is subject to any
disability.
[23] After careful consideration of
the evidence and the argument presented before me, I refused the
application for an absolution
from the instance. The reason for
refusal has been that Karishma Maharaj and Ajesh Singh had identified
the vehicle, the identity
and the ownership of which could positively
be established from the transaction records of Dickens and of the
weighbridge, Sappi
Mandini, handed herein as documentary evidence.
With regard to the falling off of the log, ample circumstantial
evidence from which
it can reasonably be inferred that the log fell
from the insured vehicle has been adduced. In, my view, these facts
can be inferred
with as much practical certainty as if they had
actually been observed. In order to establish whether or not the log
had fallen
from the insured vehicle, direct evidence is not only a
requirement. The strong circumstantial evidence consistent with the
proved
facts will suffice. In which event, decided cases Mr Choudree
has referred me to above do not find application in the present case.
[24] The defendant then called Vinesh
Maharaj as a witness. On 27 May 2003 Maharaj was resident at 47 Beach
Road La’ Mercy village
in the evening of the day in question he was
at his home watching television. His wife and daughter had gone to
the temple at Tongaat.
At 20h30, he heard a loud bang and a crash. He
then thought that his wife was involved in an accident. When he got
outside the
house, Maharaj saw his wife’s motor vehicle parked on
the yard.
[25] When Maharaj telephoned his wife,
she told him that they were involved in the car accident. He then
rushed to the M4 highway.
On his way to the scene, he called the
paramedics and the police on his cellular phone. On his arrival he
saw a young lady who
was standing on the side of the road and crying.
A young man was lying on the tarmac. He could not see any vehicles
there. When
he enquired from the young woman as to where the vehicle
was, she pointed in the bush. Maharaj saw a tail light of one vehicle
and when he asked where the other vehicle was, the lady said that
there was no other vehicle. There were also another two gentlemen

standing on the scene.
[26] Maharaj told the young lady that
the paramedics and the police were on their way to the scene of
accident. He then proceeded
to where his wife was. He found that only
the front rim of the vehicle his wife and her relations were
traveling, had been damaged.
He went home to fetch the blanket and
the pillow. On his return he found paramedics on the scene. There he
put a blanket on the
young man where he was lying on the tarmac,
Maharaj realized that it was Nishal Singh. It then occurred to him
that he was a fast
driver who had written off many vehicles.
[27] Singh’s relatives came to the
scene, Maharaj went back with those relatives to the complex. Few
weeks later, Maharaj met
up with Ajesh Singh who was resident at the
same complex and when he enquired after plaintiff’s health (Ajesh)
told him that
the plaintiff was not the driver of the vehicle but his
girlfriend, Karishma Maharaj, was.
[28] A few days later, Dev Maharaj
telephoned Vinesh Maharaj and requested him to relate to him what
happened on the scene of the
accident. He then told him that there
was something dubious about the whole claim. Ajesh Singh had arrived
on the scene forty five
minutes or an hour later. (Some months later
Singh told him that he was looking for a truck that had dropped the
log on the M4
but he could not tell whether or not he found it.)
[29] Under cross-examination Vinesh
Maharaj could not explain why it was not put to Karishma Maharaj when
she testified that she
was the driver of the vehicle. However, when a
document indicating that Karishma had been issued with a driver’s
licence on
4 October 2001, be correct that was so. Nor could he
explain why it was not put to Ajesh Singh, when he testified, that he
did
not pursue the insured vehicle at all. Maharaj said that the
plaintiff was travelling at a great speed and that the claim is too

high. However, he admitted that he did not see the vehicle while it
was travelling on the road. Nor did he have any basis for stating

that the plaintiff’s claim is too high.
[30] En route to where his wife was,
Maharaj saw another two accidents. Asked if he stopped and enquired,
he said that the accidents
were not serious since no damage had been
caused to the vehicles. Maharaj stated that M4 is a very busy road
and hitting a log
does constitute negligence.
[31] Maharaj later conceded that
Karishma Maharaj had a driver’s licence at the time and that it was
not true that Nishal Singh
had written off many vehicles. Karishma
was a total stranger to the witness.
[32] D.J.Marx was recalled for the
purposes of cross-examination and under cross-examination he stated
that at some stage he came
to know that someone telephoned the
weighbridge and enquired about the truck that had dropped a log on
the free way. This concludes
the evidence of the plaintiff.
[33] Ram Sewnarayan testified that he
runs and manages a Hibberdene based family business, SS Transport CC.
He had been so involved
with such business for a period of more than
20 years. The business consists of trucks and trailers (transporting
timber, sugar
cane and fertilizers). All its trailers in 2003 were
U-deck shaped and they used spiller boards for both timber and sugar
cane.
Straps were also used to secure logs. The nets were also used
at the rear end to secure the loads.
[34] In 2003 SS Transport CC was
sub-contracted to WD Trans and its drivers were virtually under
control of Dickens. SS Transport
CC found it more advantageous using
Wartburg via Tongaat Mandini route then N2 and M4 route.
[35] The horse and two trailer bearing
registration letters and numbers NPS 51863, NPS 28471 and NPS 26034
respectively which delivered
timber at Sappi mill, Mandini at 22h35
on 27 May 2003, belonged to SS Transport. Sewnarayan did not receive
any report that such
trailer has ever been on M4 highway.
[36] Under cross-examination it
transpired that the route arrangements had been made between Dickens
and the witness’s deceased
brother. The witness did not have any
personal knowledge thereof. He conceded that the M4 route is shorter
than the Wartburg route.
[37] Under questioning for clarity it
became apparent that Sewnarayan had no personal knowledge of the
route the trailer used to
deliver timber to Sappi mill on 27 May
2003.
[38] On 11 and 12 June 2008 the
defendant instructed Mrs Wilna Badenhorst, a road accident
construction specialist, to reconstruct
the scene of accident, in
order to establish the distance from the area of impact to Mandini
Sappi Depot and to indicate on the
balance of probabilities the most
likely route to be taken for a truck traveling from Ixopo to Sappi
Mandini. In her report she
considered the evidence of the witnesses
that testified and the route that was suggested by them. She also
considered the route
suggested by Sewnarayan and established that
this route was in fact longer in distance then the route suggested by
Mr Dickens.
The route referred to by Sewnarayan was measured at 281km
and the route referred to by Dickens was 242km.
[39] In order to establish the
distance from the area of impact to Mandini Sappi depot Badenhorst
conducted a survey and she established
a distance of 72km. She did
this in a Volkswagen Golf at the average speed of 58kph. During such
survey it was also established
that the distance of 72km was
travelled in 1 hour 15 minutes.
[40] Badenhorst concluded that it was
highly unlikely that the MB – combination would have travelled the
distance of 72km from
the area of impact to Mandini Sappi Depot at an
average speed of 58km/h. She continued to state that when considering
a more realistic
average speed of 40 km/h for the MB- combination, it
would have taken the combination in the order of 1 hour 48 minutes to
reach
the Mandini Sappi Depot. She accordingly concluded that it was
highly unlikely that the MB-combination was in the vicinity of the

collision scene on the M4 freeway when the Opel Corsa was involved in
the collision with the log.
[41] She also concluded that it is
more probable that the collision occurred at approximately 20h30
rather then 20h00. The driver
of the Corsa swerved to the left upon
noticing the log on the road. She further stated that the tyre marks
made by the Corsa were
indication that the Corsa left the road
surface whilst still moving on its wheels, and did not “summersault”
upon hitting the
log as Karishma indicated. The route suggested by
Dickens was 40km shorter then the route suggested by Sewnarayan.
[42] Under cross- examination
Badenhorst conceded that the accident could have taken place between
20h00 and 20h15. She accepted
that during the night time the road is
quieter and one may drive at a greater speed. She also concede that
it was not known at
what speed the truck was traveling. It later
transpired that when measuring a distance she did not in fact drive
the Volkswagen
Golf as she claimed but the defendants attorney did,
nor did she keep notes of the speed the defendants attorney was
doing. Badenhorst
testified that if the accident occurred at 20h15
and the truck arrived at Sappi Mandini at 21h35, the truck would have
been travelling
at a speed of 46kph.
[43] Under questinong for clarity she
testified that it would have taken the driver one hour from the area
of impact to Mandini.
She stated that it could be possible that the
accident happened earlier than 20h30. She did not interview the
insured driver. Nor
did she know at what speed the insured driver was
travelling. Badenhorst stated that had the collision occurred at
20h00 the truck
could have arrived at Mandini by 21h30. This
concludes the evidence of the defendant.
[44] The first question for decision
is whether the insured vehicle was on 27 May 2003 in the vicinity of
the scene of the accident
at the time the plaintiff’s vehicle
collided with a log, which was strewn across its path of travel on M4
highway. Karishma testified
that immediately prior the collision the
plaintiff’s vehicle was following a truck laden with logs. After
the collision she gave
Ajesh Singh the description of the truck and
Ajesh pursued the said truck until he reached it at Melville. He
tried in vain to
stop it but he managed to jot its registration
letters and numbers onto his palm. The description of the truck and
its trailer
fit that of the insured vehicle. It bears the same
registration numbers as those Ajesh had written on his palm.
[45] Badenhorst has concluded that it
was highly improbable that MB- combination was in the vicinity of the
scene of collision,
M4 highway, when the plaintiff’s vehicle
collided with a log. It is not in dispute that the expert witness
Badenhorst, possesses
the necessary qualifications and competence to
carry out the reconstruction of the scene of accident and to
interpret the result
thereof. See
S
v Williams en Ander 1985(1)SA750 (C)
.
[46] Badenhorst based her conclusion,
that it was highly unlikely that the MB- combination was in the
vicinity of the scene of collision,
on the estimation of the distance
the MB combination travelling at an average speed of 40 kph would
have covered from the scene
of accident to Sappi Mandini within the
time frame of 1 hour 15 minutes.
[47] The calculations that it would
have taken the MB-combination 1 hour 15 minutes to travel a distance
of 72km from the scene
of collision to Sappi Mandini, were based on
an average speed of 58 kph the defendant’s attorney did in his
motor vehicle when
measuring such distance.
[48] Mr Moodley for the plaintiff has
argued, correctly so, that there was no factual basis whatsoever for
assuming that the insured
driver on the day in question drove the
insured vehicle as an ideal driver would have done. The calculation
of an average speed
of 58kpm with a Golf vehicle was based entirely
on the defendants attorney’s own driving mannerism. Nor did she
know the out
put of the engine of the insured vehicle. She did not
know whether or not the truck engine had been overhauled.
[49] It transpired under
cross-examination that in fact Badenhorst did not drive the Golf on
the route M4 from the area of impact
to Mandini at 58kph but the
defendants attorney did. Nor did she keep notes of the speed the
defendant attorney did. In which event,
the probative value of the
statement relating to the distance from the area of impact to Mandini
as 72km, was entirely dependent
on the credibility of the defendant
attorney who did not testify. It therefore follows that the evidence
relating to the distance
between the scene of accident and Sappi
Mandini and to the time frame within which the insured vehicle could
have covered such
distance constitutes as hearsay. Nor has any
application been made in terms of
section 3
of the
Law of Evidence
Amendment Act 45 of 1988
for the acceptance of such evidence. In the
premises, the certainty and the accuracy of the measurements made
cannot be guaranteed.
[50] Before coming to this conclusion
Badenhorst had not interviewed the insured driver. Nor had she seen
the insured vehicle at
all. The insured driver despite his
availability at home (according to Dickens) he was not called as a
witness. In consequence
thereof it is not known at what speed he was
driving on the day in question and what his mannerisms were.
[51] Also agree with Moodley’s
submission that Badenhorst did not lay any factual basis for her
conclusion that the insured vehicle
travelled at an average speed of
40 km from the scene of the accident to Sappi Mandini. For the expert
opinion to be accepted it
must have logical basis. However, it is the
function of the Court in the light of the evidence as a whole to
determine whether
the evidence of an expert witness itself is
acceptable or not. Unless it is linked with the facts put before the
Court, the expert
witness’s opinion is an abstract theory. See
S
V Mngomezulu
1972 (1) SA 797(A).
No logical basis of her conclusion has been found in this regard.
[52] Badenhorst has also concluded
that it was more probable that the collision occurred at 20h30 and
21h00 as opposed to between
20h00 and 20h15. She apparently based
this conclusion on the evidence of Vinesh Maharaj that he heard a
loud bang at 20h30. That
the accident occurred at 21h00 might have
sprung from the fact that in the accident report as well as in the
Particulars of Claim
the time of the collision is recorded as 21h00.
Govender, a police official, who attended the scene of accident in
his statement
states that he received a report of a motor collision
at 21h00. This evidence does not take into account the time elapsed
between
the collision and the arrival of the police and paramedics on
the scene. After the collision, Karishma stood for sometime on the

side of the road asking for assistance from the passing motor
vehicles. Vinesh Maharaj testified that police and paramedics were

summoned by him when he was on his way to the scene of accident.
[53] To say that the collision
occurred at 20h30, Badenhorst must have attempted to dove tail her
evidence with that of Vinesh
Maharaj. The evidence of Karishma has
been simple and straight forward that the collision occurred between
20h00 and 20h15 and
it was not challenged. However, under
cross-examination Badenhorst conceded that the collision could have
taken place at 20h00.
She apparently abandoned her earlier
conclusion on the issue. Under questioning for clarity she testified
that if the accident
had occurred at 20h00 and the truck could have
arrived at Sappi Mandini by 21h30. She also stated that it could take
a truck an
hour to travel from the scene of collision to Sappi
Mandini, whereas earlier she said it could take the truck 1 hour 15
minutes.
The insured vehicle arrived at Sappi Mandini at 21h35. When
this is viewed against the evidence of Karishma the probabilities are

such that the insured motor vehicle was at the time of the collision
in the vicinity of the scene of accident. The time the truck
arrived
at Sappi Mandini is more consistent with the version that the
collision occurred between 20h00 and 20h15. It is also more
probable
that the insured driver was driving at a great speed regard being had
to that he was conversant with the route and that
as it was at night
the road was quiet in terms of vehicle traffic.
[54] As the evidence of Badenhorst,
the expert witness, is based on the reconstruction, it cannot
reasonably bear the same weight
as direct, eye witness, testimony of
the event in question. See
Van
Eck V Santam Insurance Co. Ltd
1996 (4) SA 1226(C).
[55] In this regard, Eksteen J in
Motor Vehicle Assurance Fund
V Tammy 1984(1) SA 432(E) at 436H-I
had the following to say:
“
Direct or credible evidence of what
happened in a collision, must, to my mind, generally carry greater
weight than the opinion of
an expert, however experienced he may be,
seeking to reconstruct the events from his experience and scientific
training… Unless
the opinion is either uncontroverted or
incontrovertible one should look first at the evidence of the eye
witnesses, if any.”
See also
Puzier
V Union and South West Africa Insurance Co. LTD
(1973
Eastern Cape Division
,
unreported)
[56] This case was cited with approval
and applied in
Transkei Blue
Line Business Service (Pty) Ltd v Minister of Police (1982, Eastern
Cape Division,
unreported).
However, Mullins J emphasized that in the final result a decision
must be reached on the evidence as a whole. He went
on to say:
“
an expert’s view of what might
probably have occurred in a collision must in my view, give way to
the assertion of the direct
and credible evidence of an eye witness.
It is only where such direct evidence is so improbable that its
credibility, is impugned
that an expert’s opinion as to what may or
may not have occurred can persuade the court to his view.”
However, the expertise of the witness
should not be elevated to such heights that sight is lost of the
Court’s own capabilities
and responsibilities in drawing inference
from the evidence. See
Holtzhauzen
V Roodt 1997(4) SA 766 (W) 772(E).
[57] The evidence Karishma and of
Ajesh Singh that the insured vehicle was on 27 May 2003 in the
evening travelling on M4 route
is more probable and plausible when
compared to the expert evidence adduced by Badenhorst in this case.
The possibility of an error
on the part of both Karishma and Ajesh
Singh in identifying the vehicle was far too remote. The truck
fitting the description of
the vehicle spotted on the M4 laden with
logs delivered logs at Sappi Mandini, an hour after the collision. No
other truck had
been spotted on this route at this particular time in
point.
[58] Sewnarayan’s testimony that the
drivers of SS Transport from Ixopo to Mandini used Wartburg via
Tongaat route was based on
the information he had received from his
brother, who could not testify due to the fact that he was then
deceased. Sewnarayan had
no general knowledge of the route the
drivers of SS Transport used when transporting timber to Mandini. Mr
Dickens who was virtually
in control of SS Transport drivers at the
time testified that they used N2 and M4 route to Sappi Mandini
because it was advantageous
to use than the Wartburg Tongaat route.
It was shorter and there were not toll gates and weighbridges on this
route. This finds
corroboration in the evidence of Badenhorst that N2
and M4 route is 42km shorter than the Wartburg via Tongaat, Mandini
route.
In the premises, it was more probable than not that the SS
Transport drivers used N2 M4 route.
[59] It has been argued on behalf of
the defendant that Ajesh Singh did not see the insured vehicle at all
but he merely telephoned
the Mandini weighbridge and made enquires on
the following morning. If this could be accepted as true it cannot be
explained how
Karishma came to know that the insured vehicle with
V-deck shaped double trailer was on the day in question on M4 highway
laden
with pine logs, regard being had to the fact that no other
truck from Ixopo delivered logs at Sappi Mandini on the night of 27
May 2003. Secondly, she could not have sucked the presence of the
truck on M4 highway at the particular time in point and its apt

description from her thumb.
[60] She immediately after the
collision described the vehicle as a truck with V-deck shaped trailer
laden with logs. Such a description
and identity of the alleged truck
was later verified by Ajesh Singh who pursued the truck up to
Mellville where he recorded its
registration letters and number on
his palm. Such letters and number correspondent with the registration
letters and number of
the insured vehicle that delivered logs at
Sappi mill on the night in question.
[61] The second question to decide is
whether the log in question fell off the insured vehicle. The
plaintiff’s eye witness, Karishma,
did not claim to have seen the
log falling from the insured vehicle but she presented positive facts
and circumstances from which
it can reasonably be inferred that it
fell off the insured vehicle. There were no street lights on this
road and for visibility
the plaintiff and the witness’s solely
relied on the lights of their vehicle. The possibility cannot be
excluded that the log
dropped from the insured vehicle unnoticed onto
the roadway, regard being to the fact that the plaintiff’s vehicle
was following
the insured vehicle at a distance of 50m.
[62] Mr Marx recorded the consignment
of the insured vehicle delivered at 21h35 on 27 May 2003 as pine
logs, 2.4m in length, from
the inland. Mr Dickens confirmed that a
Mercedes Benz truck trailer bearing registration letters and numbers
NPS51863 with V-deck
shaped double trailer was on 27 May 2003
transporting timber (pine logs 2.4m in length) from Ixopo to Sappi
Mandini. According
to Dickens the truck took the M4 route. After the
collision a pine log 2.4 in length was found still embedded in the
undercarriage
of the plaintiff’s vehicle. It could not, in my view,
be a sheer coincidence that the log found underneath the plaintiff’s
vehicle fitted the description of the logs the insured vehicle was
carrying on the day in question in all material respect. Taking
into
account also that the SS Transport drivers found it more advantageous
to use M4 route to Mandini than Wartburg route, it is
more probable
that the insured vehicle was on the night in question travelling on
M4 highway laden with logs.
[63] It has also been suggested on
behalf of the defendant that the log in question could have fallen
off the truck that had delivered
logs at Sappi Mandini at 15h07 on 27
May 2003. The logical analysis of the facts and probabilities shows
that it was highly improbable
that the log could have been lying on
such a busy road , M4 highway, for more than four hours without
causing any damage or hinderance
to the vehicles using such road.
The other collision also with logs also occurred at night. Both Ajesh
Singh and Vinesh Maharaj
testified earlier on that in the afternoon
at approximately 16h00, they had been on this route and they saw no
logs lying on it.
[64] It also stands to reason that had
the log been lying on the road when the insured vehicle drove past
that spot, it would reasonably
be expected to have taken an evasive
action or veered from its path of travel in order to avoid a
collision with the log which
was allegedly strewn on its path of
travel, the slow lane, when driving past the spot where the log was.
[65] The evidence the plaintiff
presented as to the falling off of the log onto M4 highway is
entirely circumstantial. The determination
of the identity of the
vehicle that caused collision is a matter of inference from a number
of circumstances. In
R V
Blom
1939 AD 188
at 202 – 203, Watermeyer JA
(as he then was, said:
“
In the reasoning by inference there
are two cardinal rules of logic which cannot be ignored:
The
inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn;
The
proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they
do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.”
[66] I now turn to consider whether it
can reasonably be inferred from the evidence in this case that the
log fell off the insured
vehicle. In
AA
Ondelinge Assuransie Bpk v De Beer 1982(2) SA 603(A),
it was held that it is not necessary for a plaintiff invoking
circumstantial evidence in a civil case to prove that the inference

which he asks the Court to make is the only reasonable inference. He
will discharge the onus which rests on him if he can convince
the
Court that the inference he advocates is the most readily apparent
and acceptable inference from a number of possible inferences.
In Santam Bpk v Potgieter 1997(3) SA
415 (O) at 423 A-C, it was stated that in a civil matter, the
plaintiff will discharge the
onus which rests on him if he can
convince the Court that the inference which he contends for is the
most evident and acceptable
inference of a number of possible
inferences.
[67] In
casu
,
there are sufficient positive proved facts from which an inference
can reasonably be drawn. The fact that at the time of the collision

the plaintiff’s vehicle was following a truck laden with logs at a
distance of 50 metres away, the absence of any other truck
laden with
logs in the vicinity at the particular time in point and the absence
of the log or logs on the road in question prior
to 20h00 render a
strong support to the inference that the log fell off the insured
vehicle. These facts, in my view, can be inferred
with as much
practical certainty as if they had been actually observed. See
S
v Essack and another 1974(1) SA 1 (A) at 16D.
[68] In
Vegoedingskimmissior’s
v Multilateale Motorvoertuig Ongeluke Fonds
[1998] 3 All SA
146146(N)
,
it was held that
it was trite law that direct and credible evidence regarding what
occurred during an accident carried greater
weight then the opinion
of an expert, irrespective of his or her experience… The Court must
first look at the evidence of the
eye witnesses and make a
provisional assessment of which of the versions is acceptable on the
balance of probabilities. Having
provisionally accepted one or other
version, the Court must then consider the expert evidence and decide
whether that evidence
displaces the provisional findings made.
[69] In
casu
,
there is no direct evidence as to the identity of the truck from
which the log fell off. However, there are proved facts and
circumstances from which it can reasonably be inferred that the log
fell off the insured vehicle as out lined above. The facts that
the
insured vehicle had left the loading site at Ixopo on the same day
laden with pine logs, the drivers of SS Transport which
subcontracted
to Dickens to transport timber to Sappi Mandini found it advantageous
and cost effective to use M4 route and that
according to the
transaction record of Sappi Mills. The insured vehicle was the only
truck from Ixopo that delivered 2.4m pine
logs at 21h35 on 27 May
2003, strongly support the conclusion that the log in question fell
off the insured vehicle.
[70] The other question for decision
is whether a collision between the plaintiff’s vehicle and the log
occurred. Badenhorst’s
conclusion that the plaintiff’s vehicle
did not somersault upon hitting the log is suggestive of that the
collision did not take
place at all. Badenhorst has been adamant that
the vehicle upon hitting the log did not somersault as Kerishma
described. She based
her conclusion on the tyre marks made by the
vehicle. She concluded that the presence of such tyre marks was an
indication that
when the plaintiff’s vehicle left the road it was
still moving on its wheels. This conclusion is in sharp contrast with
the finding
of the log still embedded in the under carriage of the
plaintiff’s vehicle after collision. It is highly improbable that a
small
vehicle like that of the plaintiff with a 2.4m log embedded in
its front undercarriage would still have been on its wheels when
it
left the road surface.
[71] Mr Vinesh Maharaj also testified
that when he arrived on the scene he found the vehicle in the bank on
the left hand side of
the road. Had it not somersaulted what could
have thrown it there. Further, the plaintiff could not have been
flung out of the
vehicle onto the carriage way. Badenhorst’s
opinion in this regard does not, in my view, withstand logical
analysis and it therefore
follows that it is not reasonable. No
weight can be attached thereto. See
Michael
and Another V Links Field Park Clinic (PTY) Ltd and Another 2001(3)
SA 1188 (SCA) at 1201 A
.
[72] Vinesh Maharaj’s inferences
that when he put a blanket on a young man, who was lying on the road
outside the carriage way
he realised that it was Nishal Singh, a fast
driver who had written off many cars, betrayed him as being
malicious. It is common
cause that the plaintiff was flung out of the
vehicle and came to lie on the tarmac outside the carriageway. The
paramedics attended
to him on the scene and that he was thereafter
conveyed to hospital. There was therefore no doubt that the plaintiff
was injured.
The statement that the plaintiff’s claim for injuries
he sustained was dubious, was in my view, not founded. Maharaj seemed
to
have assumed the role of an expert. Vinesh did not see the vehicle
whilst it was still travelling and he therefore did not have
any
basis for saying that the plaintiff was driving at a great speed
prior to the accident.
[73] It also transpired that Karishma
had at the time have a driver’s licence. Maharaj claimed that the
plaintiff was not a driver
but Karishma was. The plaintiff was said
to be a driver because Karishma did not have a drivers licence.
Maharaj conceded under
cross-examination that it was not true that
the plaintiff had written off many vehicles. Maharaj’s evidence
failed to show that
the collision did not take place but the
plaintiff simply overturned the vehicle. Further, that the plaintiff
was at fault and
that he was not a driver when the accident occurred.
In my opinion such evidence did not take defendant’s case any
further. The
plaintiff has succeeded to prove the casual connection
between the fall of the log from the insured vehicle and the
subsequent
collision between his vehicle and the log in question.
[74] The inquiry at the conclusion of
the present case remains whether the plaintiff has on the balance of
probabilities discharged
the onus of establishing that the collision
was caused by negligence attributed to the defendant. In deciding
the question whether
the plaintiff has discharged the onus resting on
them, I have to consider the evidence presented before me in its
totality. See
New Zealand
Construction (Pty) Ltd v Carpet Craft 1976(1) SA 345(N).
In
Maritime and General
Insurance Co. v Sky Unit Engineering 1989(1) SA 867(T),
it was stated that in analyzing the evidence in order to determine
whether or not the party on whom the onus rests has proved his
case
on a balance of probabilities, there are no variable or specific
degrees of probability required but all that is required
is testimony
such as carrying conviction to the reasonable mind. See also
Gates
v Gates 1939AD 150 at 154-5
.
[75] On weighing the probabilities of
this case as established by the evidence presented by both parties
including documentary and
expert evidence as set out above, I find
that the balance of probabilities favour the plaintiff.
The insured driver was negligent in
the following respects:
He failed to safely and properly
secure the logs onto the insured vehicle;
He drove the insured vehicle in a
manner that caused the logs to become dislodged and fall onto the
roadway on M4 highway;
He failed to take all reasonable
steps to guard against the possibility of the logs falling off the
insured vehicle whilst travelling
along M4 highway and causing harm
to other road users.
He failed to keep a proper lookout
and as a result he failed to see the log falling off the insured
vehicle onto the road, M4
highway;
He was negligent in driving the
insured vehicle when he was aware or ought to have been aware that
the log had fallen off the
insured vehicle or that the logs were
falling onto the roadway and that they would constitute danger to
other road users. From
his conduct, ignoring Ajesh Singh when
stopping him in order to alert him to the falling of the log onto
the road, it can be
inferred that he was fully aware of the falling
off of the logs from the insured vehicle.
He failed to clear the roadway of the
log(s) that had fallen off the insured vehicle.
He failed to warn the other road
users of the presence of log(s) on the M4 highway.
[76] As the insured driver was in
control of the insured vehicle that had dislodged the log(s) on to
the road way he was therefore
to under a legal duty to remove it or
alert other road users of its presence on the M4 highway and his
failure to do so had in
the circumstances rendered the defendant
liable to the plaintiff. See
SAR&H
v Est Sanders
1931 AD 276
and
Blose v Standard General
Ins 1972(2) SA 89(O).
The
real ground for holding the defendant liable is that the insured
driver’s omission constituted a breach of a legal duty to
act.
[77] It has been argued on behalf of
the defendant that the plaintiff and the witness, Karishma Maharaj,
contributed to the cause
of the collision by failing to wear seat
belts. Ordinarily a passenger who fails to wear a safety belt is
negligent, however, before
the Court may have regard to the
passengers’ omission the defendant must prove that it contributed
causally to the damage. In
casu
,
the defendant has failed to show in which manner it is alleged that
the plaintiff and his passenger contributed to the collision.
The
failure to wear seat belts maybe relevant to the determination of the
quantum of damages.
[78] The evidence advanced by the
plaintiff has, in my view, satisfactorily established that the log in
question fell off the insured
vehicle. In the result, I find that the
plaintiff has succeeded in discharging the onus resting upon it to
prove that the collision
was caused by the negligence of the insured
driver. The defendant is therefore liable to the plaintiff for
damages he suffered
as a result of the collision between his vehicle
and the log on 27 May 2003. Accordingly, the judgment is entered in
favour of
the plaintiff on the question of liability with costs.
Date reserved on: 18 December 2008
Date delivered on: 9 June 2009
Counsel for Plaintiff: Adv Y N
Moodley SC
Instructed by: Dev Maharaj &
Associates
REF: DEV MAHARAJ
Counsel for Defendant: Adv Choudree SC
Instructed by: Sangham Incorporated
REF: MR N.I.SANGHAM