IN THE HIGH COURT OF SOUTH AFRICA DURBAN AND COAST LOCAL DIVISION CASE NO. 3305/2003. In the matter between: and JUDGMENT LUTHULI AJ

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1 IN THE HIGH COURT OF SOUTH AFRICA DURBAN AND COAST LOCAL DIVISION CASE NO. 3305/2003 In the matter between: FAISAL CASSIM AMEER PLAINTIFF and ROAD ACCIDENT FUND DEFENDANT JUDGMENT LUTHULI AJ [1] The plaintiff s claim is for damages arising out of a motor vehicle collision. At the commencement of the trial the issues of liability and quantum of damages were separated and it was ordered that the only issue to be decided for now is that of liability and that the issue of quantum of damages is to stand over for determination at a later stage. [2] The plaintiff alleges that on 10 April 1998 on the eastbound lane of the M13 road, at or near 45 th Cutting, a collision occurred between an unidentified motor vehicle which was then driven by a person whose identity could not be established and another motor vehicle with registration number ND (the plaintiff s vehicle) which was driven by the plaintiff. The plaintiff further alleges that the collision was caused by the negligence of the driver of the unidentified motor vehicle. The defendant denies the abovementioned allegations and avers that an incident occurred involving the plaintiff and that the sole cause of

2 2 that incident was the negligence of the plaintiff. The defendant denies that a collision took place between the plaintiff s vehicle and an unidentified motor vehicle. [3] The evidence of the plaintiff can be summarised as follows. On 10 April 1998 he was driving a loaned Fiat Uno panel van on the M13 road in an easterly direction. He drove along a bend on the right lane and there was no other traffic. He proceeded towards 45 th Cutting. Suddenly, a motor vehicle (the Toyota Cressida) approached from the left hand side, overtook his vehicle and immediately moved into his path of travel. He heard a thud. Thereafter his vehicle hit the barrier on the right and then hit the barrier on the left hand side of the road where his vehicle came to rest. He saw firemen on the left side of the road. At that stage he did not feel anything but he later realised that he was seriously injured. He became unconscious and did not speak to any police officer on the scene. He regained consciousness at Shifa Hospital. Photographs 1 4 in the report of Wilna Badenhorst do not correctly depict the scene of the collision. He did not give any information to the defendant or the defendant s expert relating to what is shown on those photographs. [4] Inspector Subreen, a member of the South African Police Service, stationed at Sydenham, testified for the defendant. His evidence relates to the Road Traffic Collision Report, which is in his handwriting. The Road Traffic Collision Report was completed contemporaneously with the accident at 10h00 on 10 April 1998 and he signed it. He obtained the information which he recorded in the report from the plaintiff. On the description of the collision he recorded: DRIVER OF M/V A ALLEGES THAT WHILST TRAVELLING FAST UPON M13 HE LOST CONTROL OF HIS M/V AND COLLIDED WITH THE BARRIER EXTENSIVE DAMAGES TO M/V SLIGHT INJURIES TO THE DRIVER

3 3 [5] Wilna Badenhorst is a road accident reconstruction specialist. She has a BSc degree in Mathematics and Applied Mathematics. She has been compiling accident investigation and reconstruction reports and have given evidence in court as an expert since She gave evidence for the defendant. Her evidence can be summarised as follows. The following documents were made available to her: 5.1 A copy of the Ambulance Return; 5.2 A copy of the New National Assurance Co. Limited Motor Claim Form; 5.3 A copy of a letter from AIB Insurance Brokers addressed to New National Assurance Co., dated 10/11/1998; 5.4 Photographs depicting the damaged Fiat Espresso panel van; 5.5 A copy of a letter from Sterling Loss Adjusters cc addressed to New National Assurance Co., dated 25/11/1998; 5.6 A copy of a statement of Mr. Faisal C. Ameer, dated 01/11/2000; 5.7 Copies of black and white photographs taken of the accident site; 5.8 A copy of an affidavit of Mr. Faisal C. Ameer; 5.9 A copy of the SAPS Docket; 5.10 A copy of an affidavit of Ms. Monica Rathan, dated 18/05/1998; 5.11 A copy of the Road Collision Report; 5.12 A copy of the Warning Statement of Mr. Faisal C. Ameer; 5.13 A copy of an affidavit of police officer Clarivette, dated 15/10/1998; and 5.14 A copy of a rough sketch plan. She conducted an inspection in loco in the company of the defendant s attorney. She made a number of observations and photographs were taken.

4 4 [6] In so far as the damage to the plaintiff s vehicle as depicted in the photographs is concerned, she noted the following: 6.1 Contact damage was visible on the right front corner and front right hand side. The damage started in the vicinity of the right front corner and extended to the driver s door. There were two horizontal imprints with scratches clearly visible on the driver s door area. This was consistent with that part of the plaintiff s vehicle coming into contact with the barrier. 6.2The right front wheel showed extensive damage and outwards displacement. This was probably caused by the plaintiff s vehicle colliding into the support pillars of the barrier. 6.3The roof portion, in the vicinity of the right hand B-pillar showed induced damage as a result of impact. 6.4The right A-pillar suffered rearwards displacement as a result of impact. 6.5The rear of the vehicle did not show any damage. 6.6The bonnet was in its original shape and position, indicating that the bonnet did not come into contact with another object or vehicle. This is also consistent with the vehicle having collided into a low object such as a barrier. 6.7 The left-front portion did not show any displacement or crumpling. [7] She further testified that if a collision occurred according to the plaintiff s version there should have been rearwards displacement or rearwards crumpling of the front structure of the plaintiff s vehicle, which would be consistent with impact which caused the plaintiff s vehicle to go out of control. Furthermore such impact would have resulted in the plaintiff s vehicle experiencing a counter-clockwise rotation. For the Toyota Cressida to have overtaken or passed the plaintiff s vehicle suddenly, the Toyota Cressida must have been travelling significantly faster that the plaintiff s vehicle. Once the Toyota Cressida had completely passed the plaintiff s vehicle and moved in front of it and into the path of travel of the plaintiff s vehicle,

5 5 the plaintiff s vehicle could not have collided into the rear of the Toyota Cressida unless the plaintiff s vehicle accelerated. There was no suggestion by the plaintiff that the Toyota Cressida suddenly braked in front of him. The plaintiff s vehicle must have collided into the barrier on the right hand side of the eastbound lane at a substantial angle in order to cause the rearwards displacement of the A-pillar and the induced damage to the roof of the plaintiff s vehicle. Since the alleged impact would have resulted in the plaintiff s vehicle rotating in a counter-clockwise direction, it is highly unlikely that such impact would have resulted in such an angle. The conclusion is that the damaged area on the plaintiff s vehicle and the nature of that damage are not consistent with the plaintiff s version of how the accident happened and the expected rotation of the plaintiff s vehicle after contact with the Toyota Cressida. [8] Mr Seedat, for the Plaintiff, submitted that the res ipsa loquitur rule applies in this case. I do not agree. This is not a case where there are no eyewitnesses. The plaintiff witnessed the accident. Mr Seedat also submitted that the plaintiff found himself in a sudden emergency and he made an error of judgment by swerving to the right hand side. Sudden emergency is not alleged in the plaintiff s particulars of claim. There is no merit in this submission. Mr Seedat also submitted that there need not to be physical contact between the plaintiff s vehicle and the Toyota Cressida. He referred to the case of Bezuidenhout v. Road Accident Fund 2003 (6) SA 61 (SCA). In that case the court dealt with Regulation 2(1)(d) of the regulations promulgated in terms of section 26 of the Road Accident Fund Act 56 of 1996 and referred to the requirement of physical contact in that context. [9] Another submission that was made by Mr Seedat is that direct evidence of an eyewitness should be preferred to that of an expert who relies on photographs rather than observations of the plaintiff s motor vehicle itself. He also submitted that the plaintiff s version is probable. It is true that direct and credible evidence of what happened in a

6 6 collision must generally carry greater weight than the opinion of an expert, however experienced she may be, seeking to reconstruct the event from her experience and scientific training (see Motor Vehicle Assurance Fund v. Kenny 1984(4) SA 432 (ECD). The direct evidence must be credible. [10] The plaintiff was a bad witness. When he was cross-examined he was very evasive in answering questions. When he was asked whether he swerved to the right he answered by saying he did not know. He was asked what caused his vehicle to hit the barrier. He said he did not know. When asked as to what part of the Toyota Cressida he hit with his vehicle, he said he did not know. He also said that he did not know if the Toyota Cressida was damaged. When he was asked what the purpose was of going back to the scene with Advocate Khan and his attorney he said he does not know. When asked if the late Mr Zondi (an assessor) who also went to the scene with him took notes and photographs there, he replied by saying that he did not know. The plaintiff was also very argumentative. For instance he was asked as to whether the driver of the Toyota Cressida put his indicators on when he cut in in front of him, he replied by saying Why put indicators when doing something like that? On many occasions when he answered questions he said it was obvious that there was contact between his vehicle and the Toyota Cressida. The plaintiff had a selective memory. He would remember some of the things that happened and then say that he became unconscious soon after his vehicle hit the barrier on the left. However when it was put to him that his Glasgow Coma Scale was recorded on the Ambulance Return at the scene as 15/15, which is normal, he simply dismissed that as the paramedic s own version. He could not estimate the distance between his vehicle and the Toyota Cressida in front of him and what the Toyota Cressida did. He did not even know which part of his vehicle hit the Toyota Cressida. The plaintiff was a most unimpressive witness. He said he was confused when he made a statement to Monica Rathan at Sydenham wherein he stated that he was forced off the road by an unknown motor vehicle

7 7 and was caused to collide into the barrier. When confronted by what is recorded in the Road Traffic Collision Report he said that Inspector Subreen must be brought to court and he denied having given the information in that report. He also denied supplying the information relating to his condition as diabetic and hypertensive and suggested that the paramedics got it from an alien or some family member. But there is no evidence of the presence of an alien or a member of his family at the scene. He admitted that he was present when an inspection was made at the scene. He did not object that photographs of wrong points were being taken there. What was recorded in the Road Traffic Collision Report, the Ambulance Return and statements by Monica Rathan and P.G. Clarivette could only have come from him. There was no ring of truth in the plaintiff s evidence. In my view the plaintiff was not a credible witness. [11] Mrs Badenhorst was a very good witness in my view. She made concessions where it was necessary. She conceded that the photographs of the plaintiff s car did not show the entire left hand side but said that this did not limit her report. Although Mr Seedat conceded that her report was good, he said that something was missing from it concerning the bumper of the plaintiff s vehicle. She conceded that the bumper showed a crack on it. Nothing really turns on the bumper which is depicted on the photograph protruding from inside the plaintiff s vehicle. Mrs Badenhorst was criticised for having speculated in order to come to her conclusions. She denied having done any speculation or having made assumptions although she conceded that experts may in appropriate cases, make assumptions. She was adamant that in this case it was not necessary to make any assumptions. She had two very good quality colour photographs and the plaintiff s affidavits and statements as well as other documents and was able to come to her conclusion. She also heard the plaintiff s version in court.

8 8 [12] Inspector Subreen was a good witness. There is no evidence to suggest that he got the details which he recorded in the Road Traffic Collision Report from someone other than the plaintiff and the paramedics at the scene. [13] In my view the plaintiff has failed to prove on a balance of probabilities that a collision took place as alleged in the particulars of claim and that the said collision was caused by the sole negligence of the driver of an unidentified motor vehicle. [14] The order that I make is that judgment on liability is granted in favour of the defendant with costs. SS LUTHULI AJ Attorney for the Plaintiff: Mr SA Seedat Shaheen Seedat & Company Counsel for the Defendant: Instructed by: Adv M Maharaj Zubeda K Seedat & Company Judgment handed down on: