Oliphant v Road Accident Fund (2865/2006) [2006] ZAFSHC 114 (24 March 2006)

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[2006] ZAFSHC 114
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Oliphant v Road Accident Fund (2865/2006) [2006] ZAFSHC 114 (24 March 2006)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: 2865/2006
In the matter between:
SANNA SUZEN
OLIPHANT
Plaintiff
and
ROAD ACCIDENT FUND
Defendant
_____________________________________________________
JUDGMENT:
EBRAHIM, J
_____________________________________________________
HEARD ON:
14, 15 & 17 MARCH 2006
_____________________________________________________
DELIVERED ON:
24 MARCH 2006
_____________________________________________________
[1] The plaintiff sued
the Road Accident Fund (“the fund”) for damages in the sum of
R449 500,00 in respect of injuries she sustained
when she was struck
by a motor vehicle, bearing registration number CC6753 (“the
insured vehicle”). The accident occurred on
the 5
th
of December 1999 at approximately 9h00 at or near the farm
Kleinmagersfontein, in the district of Jacobsdal.
[2] Neither the
plaintiff’s capacity to institute these proceedings nor this
court’s jurisdiction to adjudicate this matter was
placed in issue.
At the start of the trial, in response to an application for a
separation of the issues, I ruled that the trial
would proceed on the
merits only. The only issue canvassed in these proceedings therefore
was the question of negligence. It was
common cause that the insured
vehicle was under the control of the plaintiff’s husband Ndeleni
Isaac Oliphant (“the insured driver”)
at the relevant time. The
manner in which the accident occurred may briefly be stated as
follows:
The insured driver
testified that he parked the insured vehicle, a 1.4ℓ Chevrolet
outside and parallel to the front door of the
house he shared with
the plaintiff.
The plaintiff was a
pedestrian. She came out of the front door of the house and walked
around the front of the vehicle, where she
saw her husband (the
insured driver) bending over and looking into the bonnet, which was
open. She said the engine could have
been idling because the very
next thing she knew was that the car reversed into her, she fell to
the ground and was pinned between
one front wheel and one rear wheel
of the insured vehicle against a tin shanty built on the same
premises.
[3] The insured driver
was called to testify in support of the plaintiff’s case.
3.1 He told the court
that he was busy trying to tighten the nut of the petrol pump of his
vehicle when the spanner he was using slipped
out of his hand and
fell between the solenoid and the starter motor, bridging the two
electrical wires, (i.e. the electrical conductors)
and resulting in a
flow of power which had the effect of kick-starting the vehicle. The
vehicle immediately moved away from him
in reverse. He said the
right drivers door was open and he attempted to get into the vehicle
through it and stop the vehicle moving,
but it ran away from him, the
door struck the tin shanty and stuck to it. He then saw his wife,
the plaintiff, lying under the vehicle
with the right front wheel
between her legs. Her back was bent.
3.2 He
said there was a problem starting his vehicle, it could not usually
start at any time because the ignition was faulty and worn
out. He
said that he did use a key to switch on the ignition, he would turn
the key, it would switch on the lights on the dashboard
but not
always start the vehicle. That is the reason he connected a push
button to the starter system so that he could use that
push button to
start the vehicle. According to him the gear lever system of the
vehicle was also defective and the vehicle would
start in any gear.
Although it was an automatic vehicle, it did not have to be put into
park to start, if it was in the neutral
gear, it would also start.
The gear lever was connected to the steering wheel. The handbrake
did not work when he applied it and
the choke also didn’t work.
The vehicle didn’t need the choke to be opened in order to start.
He told the court that on a previous
occasion he was working in the
front of the car when the car suddenly moved over his feet because
the gear lever had slipped from
neutral into drive on its own.
[4] Expert witnesses were
called by both the plaintiff and the defendant to testify. Both
experts examined the insured vehicle in
2003 and 2004 respectively
and both were at idem that the vehicle was in a very poor condition.
They both agreed that the vehicle
could have been kick-started in the
manner described by the insured driver. However, both were equally
adamant that kick-starting
the vehicle would not cause it to move and
both agreed that the vehicle would only move if the ignition had been
switched on and
the vehicle was put into gear. It was common cause
between them that the ignition must have been switched on, feeding
power to the
engine, and the vehicle must have been put in gear, in
this case in reverse gear when the vehicle moved. Although
plaintiff’s
expert Barry Grobbelaar, would not speculate on the
condition of the gearlever because he had not examined it, the
defendant’s
expert, Dan van Onselen, did examine the gearlever and
commented thereon as follows in his report, handed in as exhibit D:
¡°
(4) The
vehicle had a steering-mounted gear lever with severe play in the
various positions – the lever had to be manipulated before
positive
gear engagement could be achieved. According to Mr. Olifant this
situation manifested itself some time before the accident.
(5) The neutral position had been
electrically bridged to enable the vehicle to be started in all gears
through a starter button which
had been mounted on the dashboard.
Before this modification had been done
the vehicle could only be started in “park” or “neutral”.”
Both experts also
conceded that the damage to the door of the vehicle was consistent
with the door having struck the tin shanty in
the manner testified to
by the insured driver.
[5] On analysis of the
evidence, it appears to me to be common cause, that the insured
driver was in control of the vehicle at the
relevant time. See
FLYNN
v UNIE NASIONAAL SUID-BRITSE VERSEKERINGS-MAATSKAPPY BPK
1974
(4) SA 283
(NC).
Indeed this was never
challenged, either in the pleadings or in oral testimony. What needs
to be addressed is whether or not the
plaintiff has proved her case
on the evidence given. Certainly her evidence takes the matter
nowhere near discharging the onus she
carries because she doesn’t
know what happened. There is only the version of the insured driver
to contend with and the plaintiff’s
case must rise or fall by his
testimony. In this regard, I have no reason to fault the testimony
of the insured driver. He was
a credible witness, both as regards
the content of his testimony and as to the manner in which he gave
it. It is true that he contradicted
himself and the plaintiff in
certain respects, namely:
1. As to when last he
drove the vehicle prior to the accident, he gave conflicting answers,
first saying it was 6 days prior and then
3 days prior.
2. Plaintiff
testified that the ignition was on and the engine was running at the
time the car reversed and struck her. The insured
driver testified
similarly but according to Van Onselen at the time he examined the
vehicle the insured driver told him that he had
switched off the
ignition and pocketed the key.
3. The
plaintiff told the court the insured driver was working on the
vehicle at the left front side whereas he testified that he
was
working on the right front side of the vehicle.
[6] In my view, these are
not matters which adversely affect the credibility of plaintiff and
her husband. They can easily and reasonably
be explained on the
basis of memory lapse on their part due to the long passage of time
since the accident occurred, i.e. 7 years.
[7] The insured driver’s
version of how the accident occurred is corroborated by expert
evidence in two (2) vital respects:
1. The kick-starting of
the motor vehicle, which both experts said was possible; and
2. the
faulty gear lever, which Van Onselen said could possibly have slipped
into reverse gear at the relevant time because of it
being defective.
[8] There is only one of
two ways in which the accident could have occurred:
Either it occurred in
the manner the insured driver testified it did; or
some person physically
and manually reversed the vehicle into the plaintiff.
There is no evidence of
the second possibility before me and the insured driver being a
credible witness, I accept his version unhesitatingly
as depicting
how the accident occurred. Moreover I find his version to be
entirely in line with the probabilities given the objective
circumstances of this case. That being so, I find that the insured
driver was negligent in causing the accident for the following
reasons:
He must have foreseen
the possibility that his wife or someone else would come out of the
house and be in the vicinity where the
vehicle was parked.
He knew that if the
vehicle was kick-started, and the ignition was on there was a
possibility that the gear lever would slip into
gear because of the
defective gear lever and cause the vehicle to move, alternatively he
must have foreseen this happening as a
possibility and yet he
neglected to take any precautions to ensure that the vehicle did not
move.
He must have foreseen
the possibility that if the vehicle moved on its own his wife or
someone else in the vicinity of the car would
be struck and injured.
4. He must have foreseen
that there was a possibility that the spanner could fall out of his
hand but he failed to take the necessary
precaution to ensure that it
did not.
The insured driver thus
took no precautions whatsoever despite his knowledge of a previous
occasion when the vehicle engaged into
active gear on its own and
moved, to ensure that this did not happen again.
[9] It is a fact
substantiated in evidence by the experts that the vehicle would not
and could not have moved without the ignition
having been switched on
and I have accepted as a fact that at the material time the ignition
of the vehicle was on and the vehicle
was idling. Once the gear
lever slipped into gear the vehicle then moved and the plaintiff was
struck.
[10] Accordingly the
insured driver is found to be 100% negligent in causing the accident.
The defendant is therefore liable to plaintiff
in such amount of
damages that she may prove she suffered as a result of this
negligence. The costs thus far will be costs in the
cause.
_____________
S.
EBRAHIM, J
On
behalf of the plaintiff: Attorney I.S. Fourie
Instructed
by:
SYMINGTON
& DE KOK
BLOEMFONTEIN
On
behalf of the defendant: Attorney C.J. Potgieter
Instructed
by:
HONEY
ATTORNEYS
BLOEMFONTEIN
/em