UNION NATIONAL SOUTH BRITISH INSURANCE COMPANY LIMITED AND GLEN ROBIN HAINES

Transcription

1 UNION NATIONAL SOUTH BRITISH INSURANCE COMPANY LIMITED AND GLEN ROBIN HAINES

2 493/82/AV IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION) In the matter between: UNION NATIONAL SOUTH BRITISH INSURANCE COMPANY LIMITED Appellant AND GLEN ROBIN HAINES Respondent CORAM: Miller, Viljoen and Nicholas, JJA HEARD: 24 May 1984 DELIVERED: 26 June 1984 J U D G M E N T NICHOLAS, JA This is an appeal against the judgment of THIRION J sitting in the Durban and Coast Local Division of the Supreme Court

3 were in the back. The 2. Court in an action between GLEN ROBIN HAINES and UNION NATIONAL SOUTH BRITISH INSURANCE COMPANY LIMITED ("the insurance company"). The action arose out of a collision between two motor vehicles which took place at about 4 o'clock in the morning of 27 April 1079, at a place about 13 km from Estcourt on the single highway which ran from north to south between Ladysmith and Estcourt. One of the vehicles was a Ford Ranchero light delivery van which was towing a caravan: it was being driven by Mr N J JONKER in the direction of Ladysmith. His wife was sitting next to him, and their two young sons

4 3 The other vehicle, a Volkswagen Beetle, was travelling in the opposite direction, towards Estcourt. It had four occupants: DAVID BEAN, the owner; GLEN HAINES; CHESNEY EHMKE; and one MURGATROYD. They were all national sevicemen, and were en route to Durban on a week-end pass from LOHATLA ARMY BATTLE SCHOOL, which is located between Sishen and Kimberley in the Northern Cape. The Volkswagen attempted to overtake a vehicle travelling ahead of it in the same direction. The moment was inopportune because JONKER's Ford was on the point of passing. The Volkswagen and the Ford collided on JONKER's correct side of the road. After the collision the Ford was standing on the western half of the road with the caravan behind it. The Volkswagen

5 4 wagen was standing off the road to the west, about 4 meters away from the Ford. As a result of the accident, HAINES sustained serious physical injuries, as did BEAN and EHMKE. HAINES instituted the present action against the insurance company, which was the statutory insurer of the Volkswagen, alleging that he was a passenger in the vehicle and that the collision was caused by the negligent driving of the driver. In its plea the insurance company admitted that the driver was negligent, but alleged that it was HAINES who was the driver. The only issue on the merits was accordingly the identity of the driver of the Volkswagen. If it was HAINES, he could not recover damages. If it was one of the other

6 5 other. Occupants of the car, he was entitled to succeed. THIRION J found that the driver of the Volkswagen was probably BEAN and granted judgment for R15 000,00 in HAINES's favour. The insurance company now appeals, and HAINES cross-appeals on the quantum of damages. There was no direct evidence as to who was driving the Volkswagen at the time of the collision. HAINES said that he had no recollection of anything that occurred from the time they left LOHATLA until he found himself in the recovery room at Wentworth Hospital, Durban, about 5 weeks later. He had a post-traumatic retrograde amnesia covering the whole of the period. Both BEAN and EHMKE, who gave evidence on behalf of the insurance company, said that they were

7 6 were asleep at the time of the accident. BEAN's first post-accident recollection was waking up in a very confused state in the back of a Mercedes Benz motor car. EHMKE regained consciousness in Wentworth Hospital. MURGATROYD had died before the trial. JONKER went to the Volkswagen immediately after the collision. He saw the four occupants, each in his own seat and slumped forward, but he did not describe any of them. In these circumstances, the identity of the driver could only be ascertained by inference. Relevant evidence was given by Mrs JONKER, who was called as a witness on behalf of HAINES, and by BEAN. Mrs

8 7 Mrs JONKER said that after the collision, the,car which had been travelling ahead of the Volkswagen (a Mercedes Benz) came back to the scene. It made a U-turn and stopped on the western side of the road with its headlights illuminating the Ford and the Volkswagen. Its occupants were two Indian men. One of them assisted JONKER to move Mrs JONKER, whose foot had been fractured, from the Ford to the Mercedes. She was placed on the back seat. Mrs JONKER then heard one of the Indians say to the other (and this was corroborated by JONKER) that they must go and fetch the driver of the Volkswagen. She saw them walk to the Volkswagen and pull out

9 8 out a man through the door on the driver's side. This man they brought to the Mercedes and placed on the left back seat. It was common cause that he was BEAN. Mrs JONKER's evidence was the subject of criticism by defence counsel, but the learned trial judge said in this regard: "I have given due consideration to the criticism of Mrs Jonker's evidence but I am satisfied that I can accept as reliable the following salient facts testified to by her: (a) (b) That one of the Indians said that they should go and fetch the driver of the Volkswagen and that the two indians immediately thereafter went to the Volkswagen and took Bean from it; that she saw the two indians at the right hand door of the Volkswagen and that they took Bean out through the right hand door; (c)

10 9 (c) that Bean was the first person to be removed and the only person whom she saw being removed from the Volkswagen." BEAN said that he, EHMKE and HAINES set out from LOHATLA at about 4.30 p.m. on 26 April 1979 at the end of a normal working day. MURGATROYD was picked up along the road. Before they left they made a loose arrangement to share the driving: EHMKE would drive the first section to Bloemfontein; BEAN himself would drive the middle part; and HAINES would drive the last section into Durban. EHMKE drove to somewhere in the vicinity of Bloemfontein. BEAN then took over and drove as far as Montrose, which is near Van Reenen's Pass. They arrived there at about 2 a.m. and took in petrol, consumed refreshments and relieved

11 10 relieved themselves. BEAN told the others that he was tired; he had driven his share and was going to sleep. He got into the front passanger's seat. EHMKE sat behind him, and put his feet over BEAN's shoulders. BEAN protested, saying, "Hell, I'm trying to go to sleep, I don't need your smelly feet." EHMKE then removed his feet. MURGATROYD also sat at the back behind the driver's seat. HAINES got into the driver's seat, which he adjusted, and put on his seat belt. HAINES drove off. This was about 20 minutes after their arrival at Montrose. Shortly after they turned onto the main road, BEAN fell asleep. (EHMKE confirmed the greater part of BEAN's evidence. The learned trial judge, however, considered him to be a poor

12 11 poor witness, and said that in the light of what EHMKE said in his statement to the police, he was unable to place any reliance on his evidence as to who was driving the Volkswagen. I shall, therefore, not refer to EHMKE's account). BEAN said that his kit-bag, which was full of clothes, was in front of him 'in the Volkswagen and his right leg was over the top of it. In the accident he sustained a fracture of the right patella. At the Estcourt hospital he saw that his leg was huge, "like the size of a rugby ball". At a later stage he observed a dent in the middle of the dashboard to the left of the gear lever, which he associated with his knee injury. It

13 12 It is apparent that the evidence of Mrs JONKER and BEAN covered different ground, and leads to divergent inferences. THIRION J came to the conclusion, however, that - "In all the circumstances and not withstanding the evidence of Bean that plaintiff was the driver when they left Montrose, I am satisfied that there is a substantial balance of probability favouring the inference that Bean was behind the steering at the time of the collision." That conclusion was a legitimate one only if Mrs JONKER's evidence was to be preferred to that of Bean on some adequate ground, or if the two sets of evidence were reasonably capable, on the evidence, of reconciliation. It is clear that THIRION J considered that Mrs JONKER was a reliable witness in regard to the salient facts set

14 13 set out in the passage in the judgment which is quoted above. In regard to BEAN, the learned judge said that his evidence was of a better quality than that of EHMKE and added - "Viewed by itself I cannot say that his evidence is untruthful although he is by no means a disinterested witness as he has a claim pending in respect of his injuries". (It may be observed that the fact that he was not a disinterested witness cannot per se affect BEAN's credibility. It means no more than that his evidence should be scrutinized with care.) Clearly then THIRION J did not reject BEAN's evidence that HAINES was the driver when they left Montrose. It would seem, however, that the learned judge considered that BEAN's evidence was reconcilable with that of

15 14 of Mrs JONKER, for he said: "The evidence of Bean that the plaintiff was the driver when they left Montrose is relevant to the issue of who the driver was two hours later and 100 km further when the collision occured. There is however the possibility to be taken into account that they might have stopped along the way from Montrose and might for some reason again have changed drivers. Later in his judgment he said: "The case really resolves itself into an enquiry whether it has been proved that Bean was removed from the driver's seat of the Volkswagen." I do not think that the possibility of a change of drivers after leaving Montrose was more than a speculative one, without any support in the evidence. It was suggested in argument that the fact that it took

16 15 took them two hours to cover the distance of approximately 70 miles (or 110 km) to the place of collision, points to their having stopped along the way. The period of two hours was,however,only a very rough approximation, for none of the witnesses who gave evidence as to times appears to have looked at a watch. In my view it was improbable that BEAN would have relieved HAINES at the wheel between Montrose and the place of the collision. BEAN had done his stint from Bloemfontein to Montrose, and must have been very tired - he said that he had not slept at all since leaving LOHATLA. HAINES, on the other hand,was probably comparatively fresh when they left Montrose

17 16 rose. He had done no driving thus far. He said in his evidence that it was his invariable practice to sleep when given a lift in a car, and even though this was a straight lift all the way through - "...I still used to sleep, because you never know what might happen along the way and we might have to get out and hike the rest of the way." So far aa appears from the evidence, there was no occasion for them to stop between Montrose and the place of the collision. They had sufficient petrol to get the car to its destination. They had taken refreshment and relieved the call of nature. If they had stopped and BEAN had again taken over the driving, he surely must have remembered it. He said in

18 17 in his evidence that he did not wake up after leaving Montrose. It was suggested in argument that he too might have had a retrograde amnesia. It is true that he was concussed, but there was no evidence that post-traumatic amnesia is a necessary or probable consequence of concussion, and the question was not raised at the trial. Finally there is the coincidence of BEAN's fracture patella and the dent in the dash board. The evidence in regard to this was not disputed - although this was not BEAN's evidence, HAINES said that he remembered BEAN showing him a photograph of the dash board with a dent in the middle. There was, therefore, no sound basis for eliminating BEAN's evidence from consideration and treating the case, as the

19 18 the only issue was whether it was proved that BEAN was removed from the driver's seat of the Volkswagen. In the absence of an adverse finding on BEAN's credibility, or a probability that there was a change of drivers after leaving Montrose, BEAN's evidence could not be ignored. In the light of the evidence as a whole, it cannot be said that it is more probable or natural or plausible that BEAN rather than HAINES was the driver of the Volkswagen at the time of the collision. In my opinion the appeal should be upheld. This makes it unnecessary to consider the cross-appeal. I would make an order upholding, the appeal with costs and dismissing the cross-appeal with costs, and alter the

20 19 the judgment of the Court a quo to one of absolution from the instance with costs. H C NICHOLAS, JA

21 493/82/AV IN THE SUPREME COURT OF SOUTH AFRICA In the matter between : (APPELLATE DIVISION) UNION NATIONAL SOUTH BRITISH INSURANCE COMPANY LIMITED Appellant AND GLEN ROBIN HAINES Respondent CORAM : Miller, Viljoen and Nicholas, JJA HEARD : 24 May 1984 DELIVERED : 2.6 June 1984 JUDGMENT MILLER, JA I have had the advantage of reading the judgment of my brother NICHOLAS, which fully sets out the essential facts and issues. I find myself, however, in respectful disagreement with his conclusion. In my view, interference with the finding of the trial Judge (THIRION., J.) that the respondent discharged the onus of establishing on the balance of probabilities that he was not the driver of the Volkswagen

22 Page 2. motor car at the time of the collision, is not justified. The evidence of Mrs, Jonker, as my brother has pointed out, stops short of an unequivocal statement that the witness, Bean, was shortly after the collision removed from the driver's seat of the Volkswagen. What she said she saw (and her evidence to that effect was clearly accepted by the Court a quo) was that the first person removed from the Volkswagen was taken out through the front right hand door of the car, i.e. the door alongside the driver's seat, and that the person thus removed was then brought to the Mercedes Benz car in which she was seated. It is common cause that the person was not the respondent but the witness Bean. THIRION, J. was very much alive to the fact that this evidence did not constitute direct proof that Bean was driving the Volkswagen at the time of the collision and that such a finding could not be made except by a process of inferential reasoning. After consideration of "all the circumstances", including the evidence of Bean that respondent was driving the Volkswagen

23 Page 3. when they left Montrose, the learned Judge was satisfied that there was "a substantial balance of probability favouring the inference that Bean was behind the steering wheel at the time of the collision". The question is whether he erred in drawing that inference. Before considering the validity of the inference drawn, I wish to touch upon two features of the evidence. The first is that Mrs. Jonker said that after she had been placed in the Mercedes Benz, one of the two unknown Indian gentlemen who were of great help to the unfortunate victims of the accident, said that they were now going to fetch the driver of the Volkswagen. Soon thereafter they returned to the Mercedes Benz carrying the witness Bean, whom Mrs. Jonker had seen them take out through the right front door of the Volkswagen. Mr. Jonker confirmed that one of the Indian men had said that they were going to fetch the driver of the car. When the evidence of this statement by the Indian gentleman

24 Page 4. was led, counsel for the appellant rather tentatively contended that it was inadmissible. After some discussion the objection was withdrawn. In these circumstances I do hot find it necessary to express any opinion on the admissibility of the evidence, which was, in effect, led by consent. The learned Judge regarded the Indian's statement of intent as "relevant (though of little weight) to the question whether the person they did fetch... was in fact the driver." In the circumstances I have described I have no doubt that the trial Court was entitled to include amongst the factors to be considered when deciding where the balance of probabilities lay, the circumstance that Bean was removed from the Volkswagen by way of the right front door and taken to the Mercedes by the Indian gentlemen very shortly after their announcement that they were proceeding to fetch the driver of the Volkswagen. The second of the two features is Bean's evidence to the effect that prior to their embarking on the journey to Durban, there was an understanding between the then three

25 Page 5. driving and that in accordance with such understanding or agreement, the respondent took over the driving when they started on the last lap to Durban from Montrose, where they had arrived at about 2 a.m. What the learned Judge said about Bean's evidence was this : "Viewed by itself I cannot say that his evidence is untruthful although he is by no means a disinterested witness as he has a claim pending in respect of his injuries." But nowhere in the judgment was there any express acceptance of Bean's evidence. Indeed, the passage I have just quoted from the judgment was preceded by a passage distinctly critical of Bean's evidence, part of which (the alleged allocation of driving periods prior to the start of the journey) was regarded by the Judge as improbable. It appears to me (and the opening words, "(V)iewed by itself...", lend some support thereto) that in effect the trial Court, although unable to find that Bean's demerits as a witness were such as to justify rejection of his evidence as clearly false, was equally unable to find as a fact that

26 Page 6. the alleged arrangement regarding the sharing of the driving was made or that the respondent was the driver of the Volkswagen when the travellers left Montrose. It is not without significance that the witness Ehmke, who said that he remembered their stopping at and departing from Montrose and who was, presumably,called by the defence to support Bean's evidence that respondent drove the car from Montrose onwards, could in the end provide no effective support whatever for Bean's evidence, which stands alone and which, moreover, because of Bean's pending claim against the appellant in respect of which the identity of the driver of the Volkswagen would be vital, needs to be considered with caution. By contrast, the evidence of Mrs. Jonker and her husband, two disinterested and impartial witnesses, was accepted in substance and more particularly it was clearly (and properly) accepted that immediately after the collision each of the four occupants of the Volkswagen (two of whom were seated in front and the other two at the back) was

27 Page 7. slumped forward in his seat, motionlessly and apparently in a state of unconsciousness, and that Bean was the first of the four to be removed and that he, as I have mentioned, was removed via the front right hand door by the two gentlemen who prior to removing him from the Volkswagen had announced their intention of fetching the driver from the Volkswagen. In the absence of any other reliable evidence pointing to a different conclusion, I have no doubt that the obvious inference to be drawn from these established facts would be that the person taken out of the Volkswagen through the door alongside the driver's seat was indeed taken from the driver's seat and was therefore the driver at the time of the collision, as there is nothing whatever to suggest that there was any opportunity, or that it was at all possible, for the occupants to change seats between the time of the collision and the removal of Bean from the Volkswagen. The main argument against the drawing of that inference is that the respondent took over the driving at Montrose and that there is nothing

28 Page 8. to show that he relinquished the driving seat during the relatively short journey (approximately 100 kilometers) from Montrose to the place of the collision; the inference, it is said, should, or could reasonably, be drawn that he continued driving right up to the moment of impact. But, of course, no such inference can possibly be drawn in the absence of a factual finding that the respondent was the driver at the time of leaving Montrose, and, as I have earlier mentioned, the trial Court (as I read its judgment) refrained from making such a finding. Nor is it clear to me that such a finding should be made on the unsupported evidence of Bean. But even if the result of the non-rejection of Bean's evidence is that, because the onus rests on the respondent, the case falls to be considered on the footing that the respondent was the driver when the party left Montrose, I find myself in agreement with the reasoning of THIRION, J., that the appreciably more probable inference from all the facts and circumstances is that Bean was the driver at the time of the collision. The evidence of Mrs. Jonker raises a very

29 Page 9. strong presumption that it was the driver of the Volkswagen who was removed via the front right hand door. If Bean was sitting alongside the left front door, as he said he was, he would normally be removed through that door. It is said that that door was jammed by some material, which made it difficult to open. Even if that be so, why would Bean be the first to be removed and that across and over the limp body of the person sitting in the driver's seat? Surely, it would be more intelligent and natural, if the left front door was jammed, first to remove the driver, as the Indian gentlemen said they were going to do. Once the driver had been removed, the remaining passengers could, obviously, more easily be taken out through the no longer obstructed front right hand door. There is nothing to show that there was any reason for departure from what would by any reasonable person have been regarded as the obvious, most expedient and safest way of getting the injured passengers out of the Volkswagen. Of course, if Bean was removed from the driver's seat it would mean (on the assumption that it was established

30 Page 10. somewhere between Montrose and the place of the collision Bean took over from the respondent as driver. But on the other hand, if Bean was removed not from the driver's seat but from elsewhere there would have to be attributed to the persons who removed him from the Volkswagen extremely unlikely, if not wholly inexplicable conduct. There would to my mind be a greater degree of likelihood that during the two hours' (approximately) journey from Montrose to the scene of the accident there might have been a change of drivers than that the helpful gentlemen who came to the relief of the accident victims would have first removed from the Volkswagen not the driver seated alongside the available right hand door, but a passenger seated elsewhere. The force of the inference which flows from the facts established by Mrs. Jonker's evidence was in my view rightly held by the trial Court to prevail over other possible inferences, notwithstanding Bean's further evidence relating to the injury to his knee and the damage to the dashboard of the Volkswagen. The appeal therefore fails

31 Page 11. As for the cross-appeal, no argument was advanced in support thereof for valid reasons which it is unnecessary to go into. The respondent will be liable for such costs as may have been incurred by the noting of the cross appeal. The appeal is dismissed with costs, as is the cross-appeal. S. MILLER, JA VILJOEN, JA - concurs