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[2003] ZASCA 81
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Goodenough NO v Road Accident Fund (441/2002) [2003] ZASCA 81 (15 September 2003)
THE SUPREME COURT OF
APPEAL
OF SOUTH AFRICA
Case number : 441/2002
In the matter between :
DORIS GOODENOUGH NO APPELLANT
and
ROAD ACCIDENT FUND RESPONDENT
CORAM : HARMS, BRAND JJA and MOTATA AJA
HEARD : 15 SEPTEMBER 2003
DELIVERED : 15 SEPTEMBER 2003
____________________________________________________________
EX TEMPORE JUDGMENT
BRAND JA
/
BRAND JA
:
[1] The appellant was appointed
as
curatrix ad litem
for Mr Norman Modise because he was
unable to manage his own affairs. His incapacity resulted from brain
injuries which he was caused
to sustain in an incident that occurred
on 3 December 2000.
[2] The appellantâs contention
is that this incident was a hit and run accident in which Modise who
was a pedestrian at the time,
was struck from behind by an
unidentified motor vehicle while crossing the street. On this basis
she instituted action against the
respondent in the Witwatersrand
Local Division in terms of the
Road Accident Fund Act 56 of 1996
.
[3] In the Court
a quo
the issues were separated and the issue of liability determined
first. On this issue the Court (Malan J) found in favour of
respondent.
The present appeal is against this finding.
[4] On the pleadings respondent
denied that Modise was struck by a motor vehicle. Consequently two
questions arose for determination.
(a) Was Modise struck by an
unidentified motor vehicle, as alleged?
(b) Was the accident caused by
the negligence of the driver of this unidentified vehicle?
[5] Quite understandably in the
circumstances, respondent did not call any witnesses. The only direct
evidence regarding an alleged
collision was adduced by Modise
himself. On his version he was indeed struck by a motor vehicle while
crossing a street on his way
home. That, however, was also the sum
total of his contribution. A reading of the record of his testimony
reveals that, as a result
of his brain injuries, this unfortunate man
was left severely confused and with a memory that is fatally flawed.
It is also apparent
that his mental condition rendered any
cross-examination on vital aspects meaningless. In these
circumstances, I find myself in agreement
with the finding by the
Court
a quo
that very little, if any, reliance can be placed
on Modiseâs own evidence.
[6] For the most part, the
appellantâs case was based, firstly, on circumstantial evidence
and, secondly, on hearsay evidence of
statements allegedly made by
Modise shortly after the accident. The circumstantial evidence was
presented by a friend of Mr Modise,
Mr Zwandele Dube. He testified
that on the day that Modise was injured, the two of them visited a
shebeen. At about 17:30 Modise
left the shebeen on his way home. Dube
accompanied him to where he had to cross a street, Lali Street. It is
a busy street used
inter alia
by taxis. Shortly after Dube
turned around he heard a screeching of brakes. He did not, however,
think at the time that this had
anything to do with Modise.
[7] Dube also provided the first
hearsay statement relied upon by the appellant. In this regard his
testimony was that a few days
after the accident he saw Modise again.
On this occasion Modise told him that he had been admitted to
hospital for injuries he sustained
when he was struck from behind by
a motor vehicle. He also showed Dube where in the street the accident
occurred but Dube did not
convey to the Court where in the street the
point of impact was indicated.
[8] The further hearsay
statement was testified to by Modise's sister, Ntede Modise.
According to her testimony Modise told her, when
he returned home
after being discharged from hospital, that he was struck from behind
by a motor vehicle while he was 'inside the
street'. Finally,
appellant seeks to rely on Modiseâs hospital records from which it
transpires that Modise must have told the
hospital personnel that he
was 'a pedestrian hit from behind'.
[9] The Court
a quo
found
the hearsay statements relied upon by appellant admissible, under
s
3(1)(b)
of the
Law of Evidence Amendment Act 45 of 1988
, on the basis
that Modise himself was called as a witness, although he could not
confirm these statements in evidence. This construction
of
s 3(1)(b)
is in conflict with the subsequent judgment of this Court in
S v
Ndlovu and Others
2002 (2) SACR 325
(SCA) 342c-e. However, be
that as it may, I am prepared to accept for the sake of argument that
the Court
a quo
could and should have admitted the hearsay
statements in the exercise of its discretion under
ss 3(1)(c)
of the
Act.
[10] On that basis it must be
accepted that Modise was struck by a motor vehicle. The first of the
two questions to be determined
must therefore be answered in
appellant's favour. That leaves the second question, namely whether
it can be found that the collision
was caused by the negligence of
the driver of that vehicle.
[11] In support of the argument
that such an inference is justified, the appellant resorted to the
maxim with the somewhat high sounding
name of
res ipsa loquitur
.
It means no more than that the proven facts must speak for
themselves. The underlying reasoning does not depend on any rule of
law.
It is merely a method of logical deduction. Otherwise stated, it
is simply an exercise of common sense. The question is one of fact
â
can it be said that in view of all the proven facts, the inference
sought to be drawn is as a matter of common sense the most
probable
one? The appellant's contention is that the following facts had been
established from which the driver's negligence can
be inferred:
(a) Modise was struck from
behind whilst crossing Lali Street;
(b) the collision occurred in
daylight while the visibility was good; and
(c) the driver of the vehicle
failed to stop and fled the scene.
[12] With regard to the facts
recited in (a) and (b) I will assume that these facts have been
established, albeit that this is an
assumption of doubtful validity.
But even on the basis of that assumption, I do not believe that it
can be inferred as a matter of
probability, that the driver of the
vehicle involved must have been negligent. In my view there are too
many other possible inferences
that cannot fairly be eliminated in
determining the dictates of human experience. One such possible
inference that immediately comes
to mind is that Modise stepped from
the pavement or from between parked vehicles into the path of the
oncoming vehicle immediately
before the collision. The possibility of
this inference is strengthened if it borne in mind that, on the facts
relied upon by the
appellant, Modise was struck from behind, which
justifies the inference that Modise was not keeping a proper lookout
for oncoming
traffic immediately before the collision.
[13] This brings me to the
further âfactâ contended for by the appellant, namely that the
driver who had collided with Modise
failed to stop after the
collision and drove away after rendering assistance. On a proper
analysis of the evidence it is apparent
however that a positive
finding of this 'fact' cannot be based on direct evidence, but is in
turn also dependant on an inference
from other facts. This latter
inference is in itself not justified on the available evidence. One
simply does not know what happened
after the collision. It is just as
possible that the driver did take Modise to the hospital. It is true
that the driver did not report
the matter to the police, as he should
have done. Whether such failure gives rise to an inference of
negligence on the part of a
driver involved in a collision is, of
course, dependant on all the circumstances of the particular case.
Numerous other possible
explanations spring to mind. The driver could
have been driving without a licence or the vehicle could have been
unlicensed or the
driver could have been at a place where he should
not have been. Or, as suggested by Botha JA in his minority judgment
in
Motor Vehicle Assurance Fund v Dubuzane
1984 (1) SA 700
(A)
706G-H:
'A feeling of guilt coupled with a desire to escape the
consequences of self-perceived culpability, is but one possible
explanation
of the driver's conduct amongst a host of possible
explanations which are consistent with an absence of negligence on
the driver's
part.'
[14] In the circumstances the
appeal is dismissed with costs.
â¦â¦â¦â¦â¦â¦â¦
..
F D J BRAND
JUDGE OF APPEAL
Concur
:
Harms JA
Motata AJA