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1989
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[1989] ZASCA 73
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AA Mutual Insurance Association Ltd. v Rington (591/87) [1989] ZASCA 73 (30 May 1989)
Case no 591/87
/MC
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE
DIVISION)
In the matter between
A.A. MUTUAL INSURANCE ASSOCIATION
LIMITED
Appellant
- and-
MICHAEL RIVINGTON
Respondent
Coram:
VAN HEERDEN, VIVIER et MILNE JJA.
Heard
: 16 May 1989
Delivered
: 30 May 1989
JUDGMENT
VIVIER JA.
1.
VIVIER JA:
At about 9.30 on the evening of 25 March
1981 a
collision occurred on what is known as the old Transkei Road near East London
between a Fiat 128 motor vehicle driven by the
respondent ("the plaintiff") and
a Chevrolet truck driven by one Vosloo. The truck was towing a Toyota ambulance
van. At the time
the Fiat was proceeding uphill in an easterly direction towards
Gonubie while the truck was travelling in the opposite direction
i e going west
towards Beacpn Bay. The truck was insured by the appellant ("the defendant") in
terms of the Compulsory Motor Vehicle
Insurance Act 56 of 1972. The plaintiff
sustained serious head and back injuries in the collision and in due course he
instituted
an action for damages for personal injuries in the Eastern Cape
Division against
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2.
the defendant, alleging that the collision was due
to the negligence of
the driver of the insured vehicle.
In its plea the defendant denied such
negligence and
countered that the collision had been caused by
the
negligence of the plaintiff himself. The defendant
further disputed
the quantum of the plaintiff's damages.
By agreement between the parties the
trial Court (SMALBERGER
J) was asked to decide only the question of the
causation
of the collision, leaving the issue of the quantum
of damages to
stand over for later determination, if
necessary. After hearing evidence on
the merits of
the plaintiff's action SMALBERGER J found that the
collision
had been caused by the negligence of both
the plaintiff and Vosloo and
apportioned fault
equally between them. Following an agreement reached
between the parties that the total damages suffered
3 / ......
3.
by the plaintiff was the sum of R75 000, an order was made by MULLINS and
KROON JJ (SMALBERGER J no longer being available) awarding
compensation to the
plaintiff in an amount of R37 500 with interest thereon and costs of suit. With
the leave of the Court
a quo
the defendant appeals to this Court against
the finding by SMALBERGER J that the collision had been caused partly by the
negligence.
of Vosloo and against the order granted by MULLINS and KROON
JJ.
No direct evidence was led at the trial as to how the collision occurred
or where on the surface of the road the collision took place.
The plaintiff and
his passenger both testified that due to the injuries sustained by them in the
collision they had no recollection
of the collision itself nor of the events
which immediately preceded it. The driver of the insured
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4.
vehicle, although available, was not called as a witness nor was his wife who
was a passenger in his vehicle.
From the presence of broken glass on the
road, the positions in which the vehicles landed up after the collision and the
damage to
the vehicles, the trial Judge found, as a reasonable and possible
inference, that the collision had occurred somewhere between the
centre of the
road and the plaintiff's correct side thereof. As a result of Vosloo's failure
to give evidence this
prima facie
inference became the most likely
inference. The learned Judge accordingly found that the plaintiff had
established that the collision
took place somewhere between the centre of the
road and approximately one metre onto his correct side of the road. As he could
not
find that it was more likely that the collision occurred on the plaintiff's
correct
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5.
side of the road than in the centre thereof, the learned Judge concluded that
the plaintiff had established no more than that the
collision had taken place in
the centre of the road. It was common cause on appeal that this finding was
correct if the inference
was justified that the collision had occurred somewhere
between the centre of the road and the plaintiff's correct side thereof.
On
appeal the essential issue was whether the objective facts of this case are such
as to justify the inference drawn by the trial
Judge. The fundamental problem in
cases of this nature is succinctly stated in the well-known passage from the
speech of Lord Wright
in
Caswell v Powell Duffryn Associated Collieries Ltd
(1939) 3 All ER 722
at 733 E :
"Inference must be carefully distinguished from conjecture or speculation. There
can be no inference unless there are
objective
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facts from which to infer the other facts which it is sought to establish ....
But if there are no positive proyed facts from which
the inference can be made,
the method of inference fails and what is left is mere speculation or
conjecture."
The inference sought to be drawn from
the objective facts need not be the only reasonable inference which can be drawn
from those
facts. An inference may be selected as being
"the more natural, or plausible, conclusion from amongst several conceivable
ones".
See Wigmore,
Evidence
, 3rd ed para 32
and
Ocean Accident and Guarantee Corporation Ltd v Koch
1963(4) SA 147
(A) where HOLMES JA, referred with approval to this passage from Wigmore and
added the following with regard to the
meaning of "plausible", at p 159 C-D:
"I need hardly add that 'plausible' is not
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7.
here used in its bad sense of 'specious',
but in the connotation which is covered by
words such as acceptable, credible, suitable."
See
also
A A Onderlinge Assuransie Assosiasie Bpk v De Beer
1982(2) SA 603
(A) where VILJOEN JA said
at p 614 H that a plaintiff will succeed if the
inference contended for by him is -
"die mees voor-die-hand-liggende en aanvaarbare afleiding van 'n aantal
moontlike afleidings".
This passage was referred to
with apparent approval in
Motor Vehicle Assurance Fund v Dubuzanë
1984(1) SA 700 (A) at 707 A-B.
In the present case the plaintiff, as I
have mentioned, was proceeding in an easterly direction from Beacon Bay to
Gonubie while Vosloo
was travelling in the opposite direction. It is apparent
from the
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8.
photographs which were handed in at the trial that the Fiat, driven by the
plaintiff, is a very much smaller vehicle than Vosloo's
truck, and it can safely
be accepted that the combined weight of the truck and the vehicle it was towing
far exceeded that of the
Fiat. The collision occurred about 6 km from Beacon Bay
in an area where the road rises fairly steeply in the direction in which
the
plaintiff was travelling. The road is unlit. It was raining at the time and the
road was wet. The tarred surface of the road
in the vicinity where the collision
occurred is approximately 7 metres wide, divided into two sections for traffic
proceeding in
opposite directions by a centre double barrier white line. The
tarred surface has a gravel verge. Vosloo's truck was 2 metres wide
which means
that, if he kept to the tarred surface, he could hardly have travelled
9 /...
9.
more than a metre from the centre of the road.
Evidence was given at the
trial by Mr Barry William Louw that on the evening in question he heard the
sound of the impact from his
house, which is only a short distance away. He was
the first person to arrive on the scene. He found all three vehicles on the
northern,
i e the plaintiff's correct side of the road. The Fiat was standing
right off the tarred surface on the northern side of the road,
facing roughly in
the opposite direction to that in which it had been travelling at the time of
the collision. The truck and the
Toyota were standing diagonally across the
northern half of the road, about 6 metres west of the Fiat. Louw initially said
that the
truck was facing north-west, i e towards the gravel verge on the
northern side of the road, but he conceded in cross-examination
10/...
10.
that it may have faced south-west, i e towards the centre of the road. His
evidence that all three vehicles landed up on the plaintiff's
correct side of
the road was not challenged. Louw took Vosloo's wife and child to his home,
notified the police and ambulance, and
returned to the scene. Louw said that he
saw broken glass generally scattered all over the road, but that there was a
concentration
of broken glass covering an area of approximately one square metre
which commenced at the centre line and extended on to the northern
half of the
road. At this point the road curves slightly to the south. The trial Judge was
clearly impressed with the quality of
Louw's evidence. He described Louw as a
careful and reliable witness and accepted his evidence concerning the
concentration of broken
glass which he saw in the middle of the road.
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11.
On appeal Mr Leach, who appeared on behalf of the appellant, critisised
Louw's evidence in two respects: firstly that he changed his
evidence with
regard to whether the truck was facing north-west instead of south-west and
secondly that he said that the truck ended
up about 6 metres away from the Fiat,
whereas Sergeant Horman,whose evidence will be referred to later, measured the
distance to
be 38,5 metres. Horman took his measurements and prepared his rough
sketch some time after Louw had made his observations. However,
I do not regard
these aspects as detracting from the reliability of Louw's evidence relating to
the concentration of glass, on which
he was never challenged in the trial
Court.
Evidence for the plaintiff was also given
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12.
by Sergeant Horman who arrived on the scene in response
to Louw's call.
Horman could not say exactly what
time he arrived there. He almost
immediately left
again to notify the plaintiff's family in Beacon Bay.
He
later returned to the scene and then took measurements
and prepared a rough
sketch showing the positions of
the vehicles after the collision. Horman's
sketch
supports Louw's evidence regarding the positions of
the vehicles after the
collision, save that it shows
the truck facing south-west, i e towards the
middle
of the road, 38,5 metres away from the Fiat. Horman's
plan
indicates a point of impact right in the middle
of the road, which he
testified was pointed out to
him by the insured driver, apparently only after
Horman's
return to the scene. On the authority of the decisions
of this Court in
Union and South West Africa Insurance
13/...
13.
Co Ltd v Quntana NO
1977(4) SA 410 (A) and
Titus v
Shield
Insurance Company Limited
1980(3) SA 119 (A)
the trial Judge ruled that
this evidence was inadmissible
against the defendant for the purpose of
establishing
the point of impact. Horman could not recall noticing
any
broken glass on the road nor any other sign of
the point of impact.
From
the photographs it appears that the right side of the Fiat, from the front to
behind the right front door, was smashed in and
there are clear signs of direct
contact with the truck on the right front as well as the right front door of the
Fiat. The right
front headlight, the windscreen and the window of the right
front door were broken. As against that only the right front of the truck
would
appear to have come into contact with the Fiat. The right front headlight
14/...
14.
of the truck was broken which seems to be the only part of the truck from
which the glass found on the road could have come.
I regard it as unlikely
that the force of the impact would have pushed the truck from its correct side
of the road to the position
where it ended up after the collision. The truck was
a far bigger and heavier vehicle than the Fiat and the impact occurred on the
truck's right front which would have tended to move the truck to its left rather
than to its incorrect side of the road. This is
exactly what happened to the
Fiat. There was, furthermore, no suggestion that the steering mechanism of the
truck was damaged thereby
forcing the truck over to its incorrect side of the
road. As has been mentioned, the road in the vicinity where Louw observed the
concentration of broken glass,
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15.
curves slightly to Vosloo's left as he was travelling
immediately prior to the collision. Had he been driving normally he would have
been steering to his left i e the southern side of the road at the point of
impact.
Under the circumstances the positions in which the vehicles ended up after
the collision, particularly the position in which the truck
ended up, justify
the reasonable inference that the collision occurred either in the centre of the
road or on the plaintiff's correct
side thereof. The concentration of broken
glass seen
by Louw in the middle of the road which extended to
the plaintiff's
correct side of the road, is consistent with the positions in which the vehicles
ended up after the collision and
strengthens the inference that the - collision
occurred either in the middle of the road
or on the plaintiff's corrsct side thereof. The facts
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of this case are thus clearly distinguishable from the facts in
McCabe v
Santam Insurance Company Limited
1971(1) PH J2, which was relied upon by Mr
Leach. In that case the defendant unsuccessfully sought to contradict direct
evidence given
by two eye-witnesses for the plaintiff that the collision had
occurred on the insured driver's incorrect side of the road, by relying
solely
on an inference, based on the presence of dried mud and broken glass found on
the road, that the collision had occurred on
the other side of the road. This
Court held that under the circumstances no reliable inference could be drawn
from the evidence relating
to the mud and glass.
Vosloo was available to give
evidence and it is quite clear from evidence given by Louw, Horman and the
plaintiff's brother that he
was able to give
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17.
an explanation of what had happened. In the particular circumstances of this
case I consider that an adverse inference is justified
from the appellant's
failure to call Vosloo as a witness (of
Titus v Shield Insurance Co Ltd
,
supra
, at 133 C-H). When that is done the probable inference is the one
drawn by the trial Judge i e that the collision occurred either
in the centre of
the road or on the plaintiff's correct side thereof. It follows that the trial
Judge correctly found that the plaintiff
had established that the coilision had
occurred in the centre of the road.
The appeal is accordingly dismissed with
costs.
W. VIVIER JA.
VAN HEERDEN JA)
Concur.
MILNE JA)