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[2024] ZAECMKHC 120
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Jackson v Road Accident Fund (1266/2021) [2024] ZAECMKHC 120 (15 October 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
NOT
REPORTABLE
CASE
NO. 1266/2021
In
the matter between:
ROJEAN
VINCENCIO JACKSON
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
NONCEMBU
J
[1]
The
plaintiff has instituted a claim for damages arising from a motor
vehicle accident which occurred on 16 July 2016 at or near
Milner
Street, Queenstown. In his particulars of claim, he alleges that he
was driving a red Toyota Conquest with registration
letters and
numbers B[...] 7[...] E[...], when a white van came towards his
vehicle on the left-hand side of the road as he was
approaching a
T-junction. In trying to avoid colliding with the said vehicle, he
swerved his vehicle to the right-hand side out
of its lane of travel
and in the process his vehicle collided with the fence of a Girls
High School nearby.
[1]
[2]
He lost
consciousness and only regained it at Queenstown Private Hospital
from where he was later transferred to Frontier Hospital.
He was
unable to establish the identity (or description) of the said vehicle
as it had apparently fled the scene (as he was informed).
[2]
[3]
He alleges that the insured vehicle was the sole cause
of the
collision in that the insured driver was negligent in one or more or
all of the following ways:
(a)
He failed to keep a proper lookout;
(b)
He drove at a speed that was too high under the prevailing
circumstances;
(c) He
failed to apply his vehicle’s brakes, alternatively to apply
the breaks properly, further alternatively,
to apply the brakes
timeously;
(d)
He
failed to drive on his correct side of the road in that he drove
straight at the plaintiff, causing the plaintiff
to veer off
the road and into the boundary fence of the Girls High School.
[3]
[4]
As a result of the accident the plaintiff suffered various
bodily
injuries as listed at paragraphs 8 and 9 of his particulars of claim.
[5]
The
defendant denied any knowledge of the allegations. At paragraph 3 of
its plea, which pertains to paragraphs 5, 6 and 7 of the
plaintiff’s
particulars of claim,
[4]
the
following is pleaded:
‘
The
defendant admits jurisdiction and has no knowledge of the rest of the
allegations contained in these paragraphs, does not admit
same and
puts the plaintiff to the proof thereof.’
Issues
to be decided
[6]
The matter proceeded on liability only as the parties
applied for a
separation of issues before the commencement of trial, which order
was duly granted. The only issue for determination
before this Court
is the negligence of the insured driver (the unknown driver) at time
of the accident and the liability of the
defendant.
[7]
If the Court finds that the insured driver was negligent
and that the
defendant is liable, it must also determine if such liability can be
reduced by the extent to which the plaintiff
may have contributed to
the negligence causing the accident.
[8]
The legal framework governing the claim is set out below.
[9]
Section
17(1) of the Road Accident Fund Act 56 of 1996 (‘RAF Act’)
stipulates that the defendant is obliged to compensate
a person
(third party) for loss or damage suffered because of a bodily injury
caused by or arising from the driving of a motor
vehicle. The
defendant’s liability is conditional upon the injury having
resulted from the negligence or wrongful act of
the driver.
[5]
An evidentiary onus rests on the plaintiff to prove such negligence
on a balance of probabilities.
[10]
Contributory negligence on the part of the plaintiff can reduce such
loss or
damage in accordance with the provisions of section 1 of the
Apportionment of Damages Act 34 of 1956 (‘the Apportionment
Act’), which states as follows:
‘
(1)
(a) Where any person suffers damage
which is caused partly by his own
fault and partly by the fault of
any other person, a claim in respect of that damage shall not be
defeated by reason of the fault
of the claimant but the damages
recoverable in respect thereof shall be reduced by the court to such
extent as the court may deem
just and equitable having regard to the
degree in which the claimant was at fault in relation to the damage.
(b)
Damage shall for the purpose of paragraph (a) be regarded as having
been caused by a person’s
fault notwithstanding the fact that
another person had an opportunity of avoiding the consequences
thereof and negligently failed
to do so.’
[11]
The above principles constitute a basic framework for the
determination of
the issue that lies at the heart of the present
matter. The following paragraphs deal with the synopsis of the
evidence presented
at the trial.
Evidence
at the trial
[12]
The plaintiff testified in support of his claim and called two
witnesses, a
security guard who witnessed the accident and a police
officer who attended to the scene of accident and compiled an
accident report
(AR report). A sketch plan contained in the AR report
compiled by the police officer also formed part of the evidence. The
defendant
did not tender any evidence.
[13]
The plaintiff’s evidence was that on the day in question,
around 9 o’clock
in the evening, he was driving his vehicle
entering Milner Street in Queenstown. He drove into Milner Street and
proceeded down
the road. On approaching a 4-way stop, a bakkie came
onto his lane of travel speeding from his right-hand side. It had
bright lights
on, which were shinning onto his eyes.
[14]
He swerved to the right and lost control of his vehicle. As he lost
control,
the vehicle swerved onto the pavement on the left and went
into a ditch. The school fence was on top of the ditch. He lost
consciousness
after hitting the ditch.
[15]
He regained consciousness after a few minutes when he got help from a
police
officer who came and took him out of the vehicle. He went to
the police at the scene and gave a statement of what happened, after
that, he collapsed and only regained consciousness in hospital. He
told the police that he was approaching a stop street when a
bakkie
came onto his lane, speeding and flashing bright lights into his
eyes. He swerved his vehicle, and the vehicle went straight
into a
ditch. As a result of the accident, he sustained the injuries listed
in his particulars of claim.
[16]
Under cross examination, he stated that he was about 100 meters from
the stop
street when the bakkie came. When asked to clarify what he
did when he saw the bakkie coming, he stated that he swerved to the
right and applied brakes, but his brakes failed. His vehicle fell
into the ditch. He was travelling at 60km per hour before the
accident.
[17]
The second witness for the plaintiff was Marius Lowe who was working
for Red
Guard Security as an Armed Response Officer at the time. The
upshot of his evidence was that he was attending to an alarm that had
gone off at a house on Milner Street when he witnessed the accident
on the night in question. He was getting out of his vehicle
at about
100 to 150 meters from the T-junction, when he saw a white bakkie
entering the T-junction. He then heard a crash at the
end of the
T-junction. He called his control room to call an ambulance and the
police. Thereafter, he went about his duties.
[18]
When
questioned on how it came about that he came to testify in the
matter, he told the Court that he knew the plaintiff and his
parents,
who had told him about the accident,
[6]
hence he came forward as a witness.
[19]
The third and final witness for the plaintiff was Sonwabo Xinindlu, a
Sergeant
in the South African Police Service (SAPS) (Sgt Xinindlu)
who had attended the scene on the day of the incident and compiled an
Accident Report (AR report).
[20]
He testified that he is a member of the SAPS with nineteen (19) years
in the
service, currently stationed at the Queenstown Flying Squad
Unit. At the time of the accident, he had been working with
collisions
for a period of four (4) years.
[21]
On the night of the incident, he was on duty when he received a
complaint of
an accident on Milner Road via radio control. He
proceeded to the scene with a colleague who has since passed on. At
the scene
he saw a red Toyota Conquest which was on the field with
one occupant inside. The ambulance was also at the scene.
[22]
He rushed to the car where he established that the occupant was
injured. He
tried to ask the occupant what had happened. The occupant
just told him that his car brakes failed, thereafter he collapsed.
The
paramedics took him to hospital.
[23]
He completed the AR report and took it to the police station.
Subsequently,
he felt some discomfort, which was coupled with
curiosity about how the accident had happened. He was of the view
that something
did not add up about what he was told regarding the
accident. After two weeks, he went to visit the plaintiff, who
informed him
that he was trying to avoid colliding with a white
bakkie that had veered onto his side of the road when the accident
happened.
He also went back to the scene where he observed skid marks
on the road, which to him indicated the involvement of a second
vehicle
in the accident.
[24]
The plaintiff’s case was thereafter closed. By agreement, the
parties
filed written submissions for their closing arguments.
The
legal principles applicable
[25]
It
is a trite principle of evidence that in civil matters a plaintiff
bears the onus of proving his or her case on a balance of
probabilities. In Principles of Evidence,
[7]
this is formulated as follows:
‘
In
civil cases the burden of proof is discharged as a matter of
probability. The standard is often expressed as requiring proof
on a
“balance of probabilities” but that should not be
understood as requiring that the probabilities should do no
more than
favour one party in preference to the other. What is required is that
the probabilities in the case be such that, on
a preponderance, it is
probable that the particular state of affairs existed.’
[26]
In
Miller
v Minister of Pension (Miller)s
[8]
Lord Denning expressed the civil standard of proof as follows:
‘
It
must carry a reasonable degree of probability but not so high as is
required in a criminal case. If the evidence is such that
the
tribunal can say “we think it more probable than not”,
the burden is discharged, but if the probabilities are equal
it is
not.’
[27]
Miller
was
referred to with approval by the Supreme Court of Appeal in
Ocean
Accident and Guarantee Corporation Ltd v Koch.
[9]
[28]
In
Ninteretse
v Road Accident Fund
[10]
,
an unreported judgment of the Gauteng Division, Raulinga J stated the
following:
[11]
‘…
the
plaintiff bears the onus to prove on a
balance of probabilities that the insured driver was negligent and
that the negligence was
the cause of the collision from which he
sustained the bodily injuries. There is no onus on the defendant to
prove anything. Even
in the instance where the defendant has not
tendered evidence to rebut the evidentiary burden of the prima facie
case presented
by the plaintiff in this case, the plaintiff may not
succeed with his claim depending on the nature and weight of the
evidence
so tendered.’
[29]
As can be discernible from the authorities
referred to above, even in the absence of evidence from the
defendant, the plaintiff
in the present matter bears the onus of
proving on a balance of probabilities; that there was an accident on
the day in question,
which was caused by the sole negligence of the
unknown insured driver, as a result of which he sustained bodily
injuries.
[30]
What remains to be answered therefore, is
whether it can be said that the plaintiff’s version in this
regard, is more probable
than not. Whether it can be said that
such a state of affairs existed.
Evaluation
of evidence
[31]
The substratum of the plaintiff’s
evidence is that he was faced with a sudden emergency when an unknown
white bakkie which
was flashing bright lights, drove towards his
vehicle onto his lane of travel. He swerved his vehicle to avoid a
collision, applied
breaks which unfortunately failed, resulting in
him losing control of his vehicle and landing into a ditch and
colliding with a
school fence nearby.
[32]
As a point of departure, it must be
recorded that the plaintiff did not present as a very impressive
witness in court. As will become
apparent below, following his
evidence, including the chronology thereof, was a bit of a challenge.
It also does not help matters
that his version is fraught with
challenges, some of which cannot be said to be of an insignificant
nature. I deal with these below.
[33]
A
first hurdle which I find to be insurmountable, is that his
particulars of claim pertaining to how the accident happened differ
materially to his testimony in court. At paragraphs 5.1 and 5.2
[12]
of the particulars of claim the following is stated:
‘
5.1
The Plaintiff was driving on his side of
the road and approaching a T- junction stop sign, he observed a motor
vehicle driven by
the insured driver coming towards his motor vehicle
at speed
from the left-hand side
.
(own emphasis)
5.2. As
a result, the Plaintiff, in order to avoid a collision therewith,
swerved his motor vehicle to the right-hand
side
out of the line
of travel of the white bakkie
and collided with the fence of the
Girl's High School nearby.’ (emphasis intended)
[34]
In his testimony in court his version was
that the insured vehicle was approaching from his
right-hand
side
, and he swerved to the right to
avoid the collision. (emphasis intended) He even illustrated the
direction of the insured vehicle
(from his right-hand side) on the
sketch plan that was shown to court. Under cross examination he was
taken to task on how he could
swerve to the right, towards the
danger, in trying to avoid a collision, if he was not himself
negligent. He could not give a satisfactory
answer.
[35]
A second challenge is that the plaintiff
testified that he told the police at the scene about how the accident
happened; that he
was approaching a stop street when a bakkie came
onto his lane speeding and flashing bright lights into his eyes. He
swerved and
went straight into a ditch. He then collapsed afterwards
and regained consciousness in hospital. Interestingly, this is not
what
is reflected on the AR report under the description of how the
accident happened, which report according to Sgt Xinindlu’s
evidence, was completed at the scene based on what he was told by the
plaintiff before he collapsed.
[36]
In the AR report
under the heading
‘BRIEF DESCRIPTION OF THE ACCIDENT’ the following is
recorded: ‘It is alleged that mv/A was
travelling straight when
it loose brake systems and bump the pavement and fence of Queens.’
[37]
This is significant because earlier on
during the plaintiff’s examination in chief, an impression was
created that he had
actually gone to the police station to report the
accident. It was only when he was asked to clarify this, that it
became clear
that he had told the police who were at the scene what
had happened.
[38]
This aspect also raises another dynamic to
the plaintiff’s version, in that according to Sgt Xinindlu, he
got two reports
from the plaintiff (on how the accident happened),
the first one being the one he completed on the AR report at the
scene of the
accident, and the second one being the one he got when
he interviewed the plaintiff again after two weeks. A factor which
the plaintiff
makes no mention of in his evidence. I now turn to deal
with the evidence of Sgt Xinindlu’s.
[39]
His evidence is even more of a conundrum
than that of the plaintiff. Firstly, his evidence in court on what he
was told by the plaintiff
at the scene regarding how the accident
happened differs to what he recorded on the AR report. Contrary to
the full statement recorded
in the AR report (see para 36 above), his
evidence in court was that the plaintiff only told him that the
vehicle’s brakes
failed, after which he collapsed.
[40]
His explanation for these two different statements was that he felt
discomfort
after submitting the report at the police station as he
had an inkling that something did not add up. This, coupled with an
element
of curiosity, led to him visiting the complainant and the
scene again after two weeks, when he got the second statement and
observed
skid marks on the road. He could not alter the AR report as
it had been taken by the traffic department.
[41]
This explanation, however, does not resolve the problems in his
evidence. If
anything, it leaves one with even more questions than
answers.
[42]
By way of an example, it is not in dispute that the accident happened
on 16
July 2016 around 9 pm, the same day that he attended the scene.
His testimony in court was that he completed the AR report at the
scene, from information he received from the plaintiff, who collapsed
without giving him full details of the accident. However,
the AR
report is dated 17 July 2016 and reflects that it was signed on the
same day (17 July) at 22h00 by Sgt Xinindlu. This then
begs the
question of when the aforementioned discomfort and curiosity arose,
because evidently, on the document itself a whole
day lapsed before
he could complete/sign and submit the report. Which shows that if he
wasn’t happy with the information
he had received he could have
held it back until the information was verified.
[43]
Furthermore, the AR report contains other information which in my
view, could
have only been obtained from the plaintiff. No evidence
or clarification was tendered by Sgt Xinindlu, the compiler of the
report,
in this regard, notwhistanding that according to his
evidence, the plaintiff collapsed without providing full details of
the incident.
[44]
As to how
the personal details of the plaintiff (recorded as driver A) which
include his names, ID number, home and work addresses
ended up being
on the report he compiled remains a mystery. The AR report also
indicate that only one (1) vehicle was involved
in the accident
[13]
.
As to why he would record such information when he never received
same from the plaintiff, or from anyone else at the scene is
another
mystery.
[45]
Mr Rusi for the plaintiff, sought to argue in his submissions, that
the ‘incomplete’
AR report does contain an indication of
the presence of a second vehicle in the form of skid marks which are
shown on the sketch
the witness was caused to narrate to the Court.
[46]
There are two problems with this argument. Firstly, as I have aptly
demonstrated
above,
prima facie
the document itself, the AR
report is quite complete with far more information than the witness
testified about in court (as having
obtained from the scene).
Secondly, the evidence of this witness was that he only saw the skid
marks on his second time of visiting
the accident scene, which was
more than two weeks after the accident.
[47]
Therefore, without more nothing links the skid marks to the accident
in casu
. For all we know, they could have happened at any
other time after the accident had long happened. Furthermore, he
visited the
scene on the night of the accident, and yet he gave no
evidence that he saw skid marks on the day.
[48]
Lastly on this witness, one other aspect which raises one’s
eyebrows
regarding his version is the peculiar interest he seemed to
have developed over this particular accident. On his own version,
this
was a single vehicle accident with no fatalities, which meant
that no docket was opened and by extension no investigation was to
follow.
[49]
He also
confirmed that the AR report was generally completed for the vehicle
owner’s insurance purposes. And yet, his curiosity
[14]
and interest in the matter drove him to the extent of going to
interview the plaintiff and visiting the scene a second time weeks
after the incident, all for information he did not know what he was
going to do with, because he could not correct the AR report,
and he
had no docket to put it in.
[50]
His duties at the time of the accident entailed attending to minor
complaints
and accidents. Which meant that even if there were
investigations to follow in the matter, that would not have been his
function
but that of an investigating officer.
[51]
But for having attended the scene of the accident on the day in
question, the
totality of the evidence of Sgt Xinindlu is somewhat of
an enigma. It seems to have been carefully crafted and altered for
the
purpose of fitting in with the current proceedings. Overall and
considered in the totality of the evidence in this matter, his
evidence seems highly improbable and demonstrates all the hallmarks
of a recently fabricated story. I reject it as false.
[52]
In conclusion, I now deal with the evidence of the second witness for
the plaintiff,
Marious Lowe. In my view this witness’s evidence
did not add much value to the plaintiff’s case. Other than
seeing
a white bakkie entering the T-junction, he did not see how the
accident happened except for hearing a crash at the end of the
T-junction.
Therefore, the inference that his evidence was merely
crafted to corroborate the plaintiff’s version of the existence
of
a second vehicle at the accident scene becomes irresistible. This
Court is also not lost to his inherent bias in the matter, given
his
knowledge of the plaintiff’s family and how he came to be
involved in this trial.
[53]
Nevertheless, given the nature and the poor quality of the
plaintiff’s
evidence in this matter as demonstrated above, the
evidence of this witness does nothing to assist the Court otherwise.
[54]
Under these circumstances, even absent any evidence from the
defendant in the
matter, I cannot find that the plaintiff’s
version is more probable than not. Currently there are three versions
of how the
accident happened before this Court. All these being from
the plaintiff. On the particulars of claim the insured vehicle
approached
from his left-hand side, and to avoid a collision he
veered to the right and out of its way, and in the process lost
control of
the vehicle as his brakes failed.
[55]
In his evidence in court the insured vehicle approached from
his right-hand
side. He veered his vehicle to the right (towards the
danger), lost control of his vehicle as his brakes failed and landed
in a
ditch.
[56]
According to the AR report he was proceeding straight (towards the
T-junction)
when his brakes failed, he bumped the pavement and the
fence of Queens (a school nearby).
[57]
These contradictions are very material and go to the very core of his
case.
The situation is compounded by the two witnesses he called to
corroborate his version, especially Sgt Xinindlu with his thwarted
half-attempt at resiling from what he recorded in the AR report at
the scene.
[58]
Considered in totality, the plaintiff’s different versions and
the evidence
presented on how the accident happened, render it highly
unlikely that the state of affairs sought to be proved existed.
[59]
Under these circumstances, I cannot find that the plaintiff has
discharged
the onus resting upon him of establishing on a balance of
probabilities, that there was an accident which was caused by the
sole
negligence of the insured driver. He has failed to prove his
claim on a balance of probabilities; accordingly, his action cannot
succeed.
Order
[60]
In the result, the following order is made:
The
plaintiff’s claim is dismissed with costs.
V
P NONCEMBU
JUDGE
OF THE HIGH COURT
Appearances:
Counsel For the
plaintiff:
L Rusi
Instructed by:
Magqabi Seth Zitha
Attorneys
East London
C/O Mabentsela
Attorneys
Makhanda
For the defendant:
Ms V Futshane
Instructed
by:
Office
of the State Attorney
Gqeberha
Dates
of hearing:
18
April 2024 and 13 May 2024
Date
of judgment:
15
October 2024
[1]
Para
5, 5.1 - 5.2; Index p 7.
[2]
Para
5.3 – 5.4; Index p 7.
[3]
Para
7; Index p 8.
[4]
Dealing
with
inter
alia
,
the collision and the alleged negligence of the unknown insured
driver.
[5]
MP
Olivier, ‘
Social
Security: Core Elements’, LAWSA (LexisNexis, Vol 13(3), 2ed,
July 2013),
para 163.
[6]
That
the plaintiff was the person involved in the accident he had
witnessed.
[7]
PJ Schwikkard (et al),
Principles
of Evidence
(Jutastat e-publications,
5
th
Ed, 2023), at ch32-p 666.
[8]
[1947]
2 All E.R. 372
(25 July 1947) at 374.
[9]
1963
(4) SA 147
(A) p 157
[10]
(29586/13)
[2018] ZAGPPHC 493 (2 February 2018).
[11]
At
para 28.
[12]
Index
p7.
[13]
Page
1 of the AR report.
[14]
He
was quite emphatic about his curiosity driving him to follow up on
the matter.