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2024
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[2024] ZAECQBHC 34
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Namba v Road Accident Fund (2341/2021) [2024] ZAECQBHC 34 (30 April 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No: 2341/2021
In
the matter between:
MZWAMADODA
NAMBA
PLAINTIFF
and
ROAD
ACCIDENT
FUND
DEFENDANT
JUDGMENT
MBENENGE
JP
[1] This
is an action wherein the plaintiff seeks to recover damages from the
defendant, consequent upon
a motor vehicle collision in which the
plaintiff was allegedly hit by an unidentified motor vehicle (the
unidentified vehicle)
whilst a pedestrian, on 09 August 2019, between
19:30 and 20:00.
[2] It
was alleged, in the plaintiff’s particulars of claim (prior to
the amendment thereof), that
the accident took place near Njoli road,
Kwazakhele, Gqeberha and that, as a result of the injuries the
plaintiff sustained in
the collisionn,
[1]
he was transported by ambulance from the scene of the accident to the
Dora Nginza Hospital, Gqeberha for treatment and, at a later
stage,
the Livingston Hospital.
[3] The
action is founded on the alleged negligence of the driver of the
unidentified vehicle (the unidentified
driver), who is said to have
been negligent in failing to keep a proper lookout; driving the
unidentified vehicle at an excessive
speed in the circumstances;
failing to apply brakes of the unidentified vehicle timeously or at
all; failing to avoid a collision
when, by the exercise of reasonable
care and skill, he/she could and should have done so; failing to have
any or proper regard
to the road surface; approaching the path of
travel of the plaintiff who was a pedestrian at a time when it was
both dangerous
and inopportune to do so, without certifying
himself/herself that he/she could do so with safety, and without
having adequate regard
to the safety of other users of the road, in
particular, the plaintiff; failing to sound a warning of his/
her oncoming approach;
and failing to stop after colliding with the
plaintiff.
[4] The
defendant pleaded lack of knowledge of the collision and that, in the
event of it being found that
the collision did occur, then in
that instance, there was contributory negligence on the part of the
plaintiff on the grounds
that he failed to keep a proper lookout
before crossing the road; crossed the road at a time when it was
unsafe to do so; and failed
to avoid a collision when, by exercise of
reasonable care, he could and should have done so. In effect,
the defendant put
the plaintiff to the proof of his claim.
[5] The
parties reached agreement
[2]
that the issue of merits and that of quantum would be separated, with
the merits being dealt with first and quantum standing over
for
determination at a later stage.
[6] The
commencement of the trial was beset by an unfortunate skirmish.
The plaintiff was of the view
that at merits stage, negligence and
causation could further be separated, with causation standing over
for determination as part
of the quantum trial. As one would have
expected, no agreement on this was reached.
[7] The
skirmish was resolved with counsel for the plaintiff eventually
conceding, correctly so in my view,
and on the authority of
Phumzile
Mnisi v Road Collision Fund
,
and
Seven Similar Matters
,
[3]
that the enquiry into negligence and causation ought to be conducted
as part of the trial on the merits.
[8] The
following remarks by Roelofse AJ in
Mnisi
[4]
are informative:
‘
[31] Fischer
J
[5]
proposes a four-stage
enquiry at para 12 of her judgment:
“
First
: did
the negligence of the third party driver cause the collision? If both
plaintiff and the third-party
driver were negligent blame may be
apportioned on the basis of a percentage allocation in terms of the
Apportionment of Damages
Act (I shall call this first phase the
merits enquiry).
Second
: Did
the plaintiff sustain the pleaded injuries in the collision? (this is
the first causation enquiry).
Third
: How
have these proven injuries affected the plaintiff? (this is the
second causation enquiry).
Fourth
: How
should the plaintiff be remunerated for the effects of such injuries
on the plaintiff? (this is the
quantum determination first phase).”
[32] I
respectfully agree. However, when a concession on the “merits”
is made by the RAF, plaintiffs
(or their advisors) often neglect the
first and second causation enquiries by proceeding directly to the
quantum determination
phase. They neglect to prove that the
injuries were indeed sustained in the collision and merely rely on
expert reports to
show the effect of the injuries upon the
plaintiff. Often, the expert reports are founded upon what the
plaintiff tells the
expert. The expert then proceeds on the basis of
the plaintiff’s subjective information. . . All of these
subjective advices
from plaintiffs is most often difficult or
impossible to verify objectively. In such instances, the court
is at a disadvantaged
if the plaintiff is not seen and heard by the
court.
[33] In
the first and second causation enquiry, the plaintiff must prove that
the injuries she/he sustained
were as a result of the collision
(which by now has already been determined to have been as a result of
the negligent driving of
the insured driver – the merits and
quantum enquiry) and the effect of the injuries upon the plaintiff.
The causal
link between the negligent driving of the insured driver
and the effect of the insured driver’s wrongful act must be
proven
in accordance with the normal rules of evidence unless the RAF
makes concessions or admissions in this respect. Concessions and
admissions may be made at the pre-trial or case management stage or
even at the trial (that is if the RAF appears!). Therefore,
in
the absence of concessions or admission by the RAF, the injuries that
were sustained by the plaintiff and the effect thereof
upon the
plaintiff must be formally and properly proven on a balance of
probabilities.’
[9] Against
this background, I made a formal order directing a separation of the
merits and quantum, on the
understanding that the issue of causation
would be enquired into at merits stage.
[10] The
plaintiff was called to testify. On the evening of 09 August
2019, he was walking across Daku
Street, near Njoli road, in the
direction of Dr Nqini’s Surgery. At that point, the road
has two lanes of travel in
each direction. Before stepping off
the pavement so as to cross the road, he observed motor vehicles
approaching from the
right side, and waited for them to drive past so
that he could cross the road to safety. Once the motor vehicles
had driven
past, the plaintiff saw the unidentified vehicle coming a
distance away from his right, and observed that it was safe for him
to
cross the road. He had taken two steps into the road before
being hit by the unidentified vehicle on his right side.
As a
result of that, he fell down on the road and was unable to rise
because of an injury to his right knee. He said the
unidentified vehicle did not hoot to warn him prior to the
collission. He observed the unidentified vehicle’s rear
lights. As the unidentified motor vehicle left the scene
at a high speed and did not stop after the collision, it appeared
to
be a silver Citi Golf. His brother, Madoda Namba, came to his
assistance and carried him from the scene of the collision
homeward.
[11] As
the plaintiff walked into the courtroom to occupy the witness stand,
the court observed that he walked
with a limp and used one crutch to
mobilise. According to the plaintiff, the injury he sustained
has resulted in him being
unable to work, unable to walk without
assistance, and unable to run. He requires the aid of the crutch in
order to maintain balance.
Since the accident, he has
experienced pain in his right leg and relies on daily pain medication
for relief. He has difficulty
performing household chores and
is unable to lift heavy objects. He presents with a surgical
scar on his injured leg due
to an operation he underwent.
[12] The
plaintiff was cross-examined. He testified that his brother got
to know of what had befallen
him from the people who saw him on that
fateful evening. He does not drink alcohol. He was not
picked up from the scene
of the collision by an ambulance. He
could not account for the allegation made in his particulars of claim
that he was transported
by ambulance from the scene to the hospital.
Upon his arrival home, he slept. On the next day, 10 August
2019, his
brother took him to the Dora Nginza Hospital, where he was
admitted. He recalls attending Dora Nginza on a subsequent date
due to his knee injury. The affidavit deposed to in terms of
section 19
(f)
of the
Road Accident Fund Act 56 of 1996
[6]
was handed up as an exhibit. In the affidavit, the plaintiff
mentions,
inter
alia
,
that the Officer’s Accident Report
[7]
refers to ‘
25
August 2019’
as having been the date of the collision, instead of ‘
09
August 2019’
.
He was in the company of his brother when the accident was reported
to the police.
[13] In
his testimony, Madoda Namba, the plaintiff’s brother, confirmed
the date of the collision as
having been 09 August and that the
collision occurred in the vicinity of Dr Nqini’s Surgery in
Njoli road. He was told
by people in the area that his brother
had been involved in a collision. He attended to the scene and
found the plaintiff
seated near a small bus stop on the pavement.
The plaintiff informed him that he had been hit by a silver Citi Golf
motor
vehicle. He carried the plaintiff homeward on his
shoulder, as he could not walk. On the following morning, he
and
the plaintiff attended Dora Nginza Hospital. The plaintiff was
examined on Sunday, 11 August 2019. The doctor who examined
him
bandaged his leg and gave him some pain killers. They were told
to return to the hospital on Wednesday. Upon their
return, the
plaintiff was transferred to the orthopaedic section of the
Livingstone Hospital for surgery to his right leg.
The brother
visited the plaintiff at Livingstone Hospital. He observed
surgical incisions on his right knee. Since
his discharge from
hospital, the plaintiff has required the aid of a crutch in order to
walk.
[14] Under
cross-examination, Mr Namba said he accompanied the plaintiff when
the accident was reported to
the police. He, too, could not
account for the allegation made in the particulars of claim that the
plaintiff had been transported
by ambulance to the hospital,
maintaining that he carried the plaintiff on his shoulder from the
scene of the accident homeward.
[15] Doctor
P R de Bruin, an orthopaedic surgeon, prepared a medico-legal report
on the plaintiff, which
was served on the defendant under cover of a
notice in terms of
rule 36(9)(b)
on 29 September 2023. Despite such
notification, the defendant objected to the doctor being called to
testify on two bases namely,
first, that the doctor’s testimony
would be predicated on hospital records that had not been presented
by the plaintiff and,
second, that the report of the doctor is based
on an assessment that occurred in September 2023 after the plaintiff
had already
testified.
[16] The
objection was overruled, and the doctor allowed to testify. To begin
with, the service of the
rule 36(9)(b)
notice was not objected to as
constituting an irregular step. Moreover, and in any event, the
doctor did not need the impugned
hospital records to arrive at his
opinion. He testified that, by examining the radiology images he had
requested with the history
that the plaintiff gave, and the clinical
examination conducted, it was evident that the plaintiff had
sustained a supracondylar
fracture of the femur, which is not common,
as it occurs in instances where there is both an axil load and
rotational force.
Such injury, he said, is generally resulting
from a high-energy mechanism, such as a motor vehicle collision.
He opined that
the plaintiff’s injury accords with being struck
by a motor vehicle from the right side. The plaintiff’s leg is
shortened;
hence he has a permanent limping gait. During his
examination of the plaintiff, the plaintiff experienced pain
localised
to his right knee area. He suffered a major orthopaedic
injury and has long-term functional restrictions.
[17] Prior
to the hearing of argument, the plaintiff sought an amendment of the
particulars of claim so as
to –
(a)
refer
to ‘
Daku
street’
and ‘
Njoli
road’
as being the place at which the collision took place;
(b)
delete
the reference to the insured driver ‘[driving]
onto
the cement pavement colliding with
plaintiff’
;
and
(c)
mention
that the plaintiff was assisted from the scene of the collision by
his brother and taken by his brother the following day
for treatment
to the Dora Nginza Hospital, Gqeberha.
[18] These
amendments effectively brought the version testified to by the
plaintiff within the purview of
the plaintiff’s particulars of
claim, in all material respects.
[19] At
no stage was the court made to understand that the amendments were
mala
fides
or
that allowing the same would result in prejudice on the part of the
defendant.
[8]
Little wonder,
therefore, that the defendant did not object to the amendments, all
of which were allowed as germane to the principal
question for
determination, namely, whether or not any accident had occurred as a
result of the negligent driving of the insured
driver causing the
plaintiff injuries.
[20] The
enquiry at the conclusion of a civil trial remains whether the
plaintiff has, on a balance of probabilities,
discharged the onus of
establishing that the collision was caused by negligence attributable
to the defendant.
[9]
[21] The
plaintiff is not relieved of the onus resting on it merely by reason
thereof that the defendant
has proffered no version. Where, as here,
there’s only one version, it does not mean that the plaintiff’s
version must
inevitably be accepted. Indeed, there’s no
obligation on a court to accept an improbable explanation of events
merely
because no other positive explanation is presented or because
the alternative seems to the court to be even less probable.
[10]
[22] In
assessing the probabilities of the plaintiff’s version, in this
matter, it should be borne
in mind that the primary issue which
arises for determination relates to whether the plaintiff’s
injuries arose from a motor
vehicle collision, and not some other
cause.
[23] On
a proper assessment of the relevant facts, it is probable that the
plaintiff was walking from KFC
in the direction of Dr Ntini’s
surgery and was struck by a motor vehicle in the circumstances
testified to by him. That the
injuries he sustained are consistent
with being struck by a motor vehicle finds support from the evidence
of Dr de Bruin.
[24] The
discrepancy in the plaintiff’s testimony regarding how he was
assisted from the scene of the
collision and the inconsistency
embodied in the OAR insofar as it points to ‘
25 August 2019’
as being the date on which the collision occurred are, in my view,
inconsequential. They were cured by the amendments made the
to the
particulars of claim which the defendant did not object to.
[25] By
way of summation, the plaintiff checked for motor vehicles coming
from his right side. He waited
for the motor vehicles to pass
so that it would be safe for him to cross the road. He observed
the unidentified vehicle approaching
from his right side while it was
a distance away from him. From the evidence, it can be safely
inferred that the insured
driver was speeding, did not hoot to warn
the plaintiff of his presence, did not keep a proper lookout for
other road users, including
the plaintiff, and failed to adjust his
driving accordingly so as to avoid the collision when, with
reasonable skill and care,
he/she could have done so.
[26] The
court was, at the outset, advised that the defendant had no version
to put forward because, absent
the relevant ambulance records, the
defendant could not confirm that the collision did take place.
Upon being advised that
the defendant did not have the records
sought, Ms
Naidoo
contented herself with cross-examining the
plaintiff’s witnesses with the view to merely testing their
credibility.
It was, for instance, never put to the plaintiff
that the collision did not happen on 09 August 2019 or at all in the
vicinity
of where the plaintiff described it to have occurred, or
that the plaintiff was not hit on his right-hand side. Nor was the
plaintiff’s
brother challenged regarding his testimony that he
came to fetch the plaintiff and assisted him homeward because he
could not walk.
[27] It
is timely to refer to
President
of the Republic of South Africa and two others v SARFU
[11]
insofar as it deals with cross-examination and the duties and
obligations of a cross-examiner. The court remarked:
‘
That
the institution of cross-examination not only constitutes a right it
also poses certain obligations. As a general rule it is
essential
when it is intended to suggest that a witness is not speaking the
truth on a particular point to direct the witnesses
attention to the
fact by questions put in cross examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity, whilst still in the witness box of giving an explanation
open to the witness and of defending his or her
character. If a point
in dispute is left unchallenged in cross examination the party
calling the witness is entitled to assume
that the unchallenged
witnesses testimony is accepted as correct.’
[28] It
must, therefore, be concluded that the negligence of the driver of
the unidentified vehicle caused
the collision in which the plaintiff
was injured.
[29] None
of the defendant’s pleaded averments of negligence were put to
the plaintiff during cross-examination.
No testimony warranting any
apportionment of the claim was tendered. The defendant has neither
proved contributory negligence on
the part of the plaintiff nor shown
a causal connection between the collision and the conduct of the
plaintiff.
[30] In
the result, the answer to the question at hand must be adjudicated in
favour of the plaintiff, with
the result that the defendant ought to
be held liable for the plaintiff’s proven or agreed damages.
[31] There
is no reason why costs should not follow the result. The matter did
not proceed on 04 October
2023 due to my non-availability. The
parties are in agreement that the costs of that day should be in the
cause. I cannot fault
the agreement. I need to add a dimension to the
issue of costs. It had been hoped that judgment would be delivered by
12 April
2024, but that did not come to pass until rule 67A of the
Uniform Rules came into operation.
[12]
For the sake of caution, on 22 April, I invited counsel to chambers
as I was of the view that the rule applies prospectively.
[13]
Counsel shared this view.
[32] I,
therefore, grant the following order:
1.
The
defendant is held liable to pay the plaintiff 100% for such damages
as the plaintiff is able to establish, suffered in and as
a result of
the collision that occurred at or near Njoli Road and Daku Street,
KwaZakhele, Gqeberha on 09 August 2019.
2.
The
defendant shall pay the plaintiff’s costs incurred to date,
such costs to include –
2.1.1
the
costs involved in attending an inspection
in
loco
with
the plaintiff’s attorney and one counsel;
2.1.2
the
costs of the report of Dr de Bruin filed in accordance with rule
36(9) (a) and (b) of the Uniform Rules of Court;
2.1.3
the
qualifying and attendance costs of Dr de Bruin for 15 January 2024;
2.1.4
the
travelling costs incurred on behalf of the plaintiff in respect of
the attendance at trial of Dr de Bruin;
2.1.5
the
trial costs of 17 and 18 August, 04 October 2023 and 15 January 2024;
and
2.1.6
the
costs of the interpreter, where so incurred.
3.
The
defendant shall pay interests on the plaintiff’s taxed or
agreed costs at the prevailing prescribed interest rate
per
annum
,
calculated from a date 14 days after
allocatur
to date of payment.
S
M MBENENGE
Judge
President of the High Court
Appearances:
Counsel
for the plaintiff:
B Westerdale
Instructed
by:
Meyer Incorporated
Mill
Park, Gqeberha
Counsel
for the defendant:
R Naidoo
Instructed
by:
The State Attorney
Central,
Gqeberha
Dates
heard:
17 & 18 August 2023
15 January 2024
Date
delivered:
30 April 2024
[1]
The plaintiff claims to have sustained severe bodily injuries, more
particularly, a supracondylar fracture of the right knee
and
fracture of the right femur.
[2]
The Case Flow Management Checklist for Trial Readiness is signed
only by the plaintiff’s attorney and bereft of the requisite
endorsement of trial readiness by a judge.
[3]
(1823/2019, 2583/2019, 315/20, 208/20, 4082/9, 4432/19, 2382/19;
4067/19) [2022] ZAMPMBHC 23 (01 April 2022).
[4]
Supra
.
[5]
In
MS v
Road Collision Fund
[2019] 3 AllSA 626 (GJ).
[6]
The
section reads:
‘
The
Fund or an agent shall not be obliged to compensate any person in
terms of section 17 for
any loss or damage—
if the third party
refuses or fails—
(i) to submit to the
Fund or such agent, together with his or her claim form as
prescribed or within a reasonable period thereafter
and if he or she
is in a position to do so, an affidavit in which particulars of the
accident that gave rise to the claim concerned
are fully set out; or
(ii) to furnish the Fund
or such agent with copies of all statements and documents relating
to the accident that gave rise to
the claim concerned, within a
reasonable period after having come into possession thereof;’
[7]
The OAR.
[8]
Compare
Moolman
v Estate Moolman
1927 CPD 27
, at 29; also
see
Embling v Two Oceans Aquarium (CC)
2000 (3) (SA) 691 (C) at 694G-H.
[9]
Stacey
v Kent
1995(3) SA 344 (ECD) at 352H – I.
[10]
Van
Meyeren v Cloete
2021 (1) SA 59
(SCA), where it was held, at para 13, that:
‘
The fact that the
judge did not feel able to reject their evidence did not mean that
he was obliged to accept it. The issue
was whether on a
balance of probabilities theirs was the only explanation for the
dogs escaping. Unless that conclusion be reached
Mr Van Meyeren did
not discharge the onus of proof and the defence should have failed.’
[11]
2000
(1) SA 1
(CC) at para 61
[12]
The
primary purpose of Rule 67A is to allow the court to exercise
control over the maximum rate at which counsel’s fees
can be
recovered under a party and party costs order.
[13]
Mashavha
v Enaex and Others (Pty) Ltd
(2022/18404)
[2024] ZAGPJHC 387 (22 April 2024).