Blaauw v Veenman (17170/2008) [2012] ZAWCHC 124 (28 June 2012) (2024)

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[10] The matter was postponedas the plaintiff's expert witness, Mr Viljoen was not available totestify. The Court was informedthat he was sick. It is common causethat Mr Viljoen, who would have testified regarding the quantum ofthe plaintiff's claim,and in respect of which the plaintiff hadserved a notice in terms of Rule 36 (9) (a) and (b) of the UniformRules, subsequentlypassed away and in his place the plaintiffcalled Mr Kobus Laubscher also employed by Santam as a seniorassessor to give expertevidence.

[11] Mr Laubscher confirmedthat in formulating his opinion he had had regard to the assessmentreport together with accompanyingdocumentation prepared by MrViljoen with whose opinion he was in agreement. He said theassessment report was in Mr Viljoen'shandwriting and bore hissignature with which he was familiar. Mr Laubscher had worked withMr Viljoen for over 15 years. Hestated that Mr Viljoen had used acorrect methodology in assessing and quantifying damage to theplaintiff's motor vehicle. Inhis opinion the plaintiff's motorvehicle was written off in accordance with standard insurancepractice. He pointed out thatit was clear from the photographsdepicting the plaintiff's motor vehicle after the collision that itwas damaged beyond economicalrepair. He testified that theplaintiff's motor vehicle was a 2007 model and that its market valuewas correctly assessed byMr Viljoen as being R140 000.00 which isconsistent with the value placed on the vehicle by the Auto Dealer'sGuide. He explainedthat, in terms of the insurance policy which theplaintiff had with Santam, the plaintiff was liable for the excessof R7 000.00which was deducted from R140 000.00. The salvage valuewas R25 670.87 which is 18% of the market value of the motorvehicle.Mr Laubscher's evidence also covered the amount of R2622.00 which Santam paid to Hoeks Bakwerke for towing and storagechargesin respect of the plaintiff's motor vehicle and which, inhis opinion was reasonable.

[12] Much of thecross-examination was directed at challenging the contention thatthe plaintiff's motor vehicle was damaged beyondeconomic repair. Itwas suggested that the motor vehicle was not damaged to the extentthat it had to be written off. The suggestionis, however, rejectedon the basis that it is highly improbable that an experiencedassessor such as Mr Viljoen would exaggeratethe damage to theplaintiff's motor vehicle in a manner that would result in Santambeing held liable for its replacement value.There would be nomotive for him to act against the interest of Santam and none wassuggested by the defendant.

[13] Mr Laubscher's evidenceregarding the nature and extent of damage to the plaintiff's motorvehicle as well as its value beforeand after the collision waschallenged by the defendant on the ground that it was hearsay andtherefore inadmissible. The defendant'sobjection also extended tothe photographs allegedly depicting the plaintiff's motor vehicleafter the collision. These photographsare annexed to theplaintiff's notice in terms of Rule 36 (10) and were allegedly takenby Mr Viljoen.

[14] MrJoubertinvokedthe provisions of section 3 of the Law of Evidence Amendment Act, 45of 1988 ("the Act") in seeking to havethe evidence of MrLaubscher and the disputed photographs admitted. I admitted theevidence of Mr Laubscher and the photographsannexed to Mr Viljoen'sreport and to a Rule 36 (10) notice for the following reasons.

[15] Section3 (4) of the Act defines hearsay evidence as evidence "whetheroral or in writing, the probative value of which depends upon thecredibility of any person other than the persongiving suchevidence". Itwill not be entirely correct in the present matter to treat thewhole of the evidence of Mr Laubscher as constituting hearsayevidence within the meaning of section 3 (4) of the Act. To acertain extent, the probative value of his evidence depends uponhisown credibility, for an example the evidence about the exercise heundertook in determining the market value of the plaintiffsmotorvehicle before the collision. The probative value of this aspect ofhis evidence does not depend on the credibility ofMr Viljoen.(Mdaniv Allianz Insurance Ltd [1990] ZASCA 119; 1991(1) SA 184 (A) at 181 I - J; Hewanv Kourie No And Another 1993(3) SA 233 (T) at 236 E). Apart from this to a greater extent theprobative value of this evidence depends upon whether Mr Viljoen inhisassessment report correctly reflected the value of theplaintiff's motor vehicle after the collision. In other words, thataspectof the evidence depends upon the credibility of Mr Viljoen(the deceased).

[16] The Actis one of the statutory exceptions to the hearsay rule. Section 3 ofthe Act provides that, subject to certain exceptions,hearsayevidence is inadmissible. The relevant provisions for the purposesof this judgment are contained in section 3 (1) (c)which providesas follows: "3Hearsayevidence

(1) Subject to theprovisions of any other law, hearsay evidence shall not be admittedas evidence at criminal or civil proceedings,unless-

(a) …

(b) ….-

(c) the court, having regardto-

(i)thenature of the proceedings;

(ii)thenature of the evidence;

(iii) the purpose for whichthe evidence is tendered;

(iv)theprobative value of the evidence;

(v)thereason why the evidence is not given by the person uponwhose
credibility the probative value of such evidence depends;

(vi)anyprejudice to a party which the admission of such evidencemight
entail; and

(vii)any otherfactor which should in the opinion of the court be taken
intoaccount, is of the opinion that such evidence should be admitted
inthe interests of justice."

[17] Thecorrect approach to section 3 (1) (c) was considered by the Court inHewanv Kourie No and Another, supra. Itheld at 239 C - D that section 3 (1) (c) requires the Court, in theexercise of its discretion, to have regard to the collectiveandinterrelated effect of all the considerations set out in para (i) -(vi) and also to "anyother factor which should in the opinion of the Court be taken intoaccount'. TheCourt went on to point out that when doing that, the reliability ofthe evidence will no doubt play an important role andthat the lessreliable the evidence, the less its probative value will be.

[18] In accepting the evidenceof Mr Laubscher, I had regard to various factors as set out in paras(i) - (vi) of section 3 (1)(c), namely that the evidence is soughtto be admitted in the civil proceedings, where the standard of proofis a balance ofprobabilities. Secondly, the purpose of the evidencewhich is sought to be admitted is to establish that the plaintiff'smotorvehicle was so extensively damaged that it was uneconomical torepair same. In this regard there is objective evidence by theplaintiff himself, confirming that his motor vehicle was damaged inthe collision and that the nature of the damage as depictedon thedisputed photographs is in accordance with his observation of hismotor vehicle at the scene immediately after the collision.Theplaintiff was cross-examined extensively on this aspect but nothingcame out of it.

[19] The suggestion was made bythe defendant that the possibility existed that Mr Viljoen mighthave exaggerated the extent ofthe damage to the plaintiff's motorvehicle which if established would render his report less reliable.Mr Laubsher was cross-examinedon this aspect and it emerged fromhis evidence that there would be no motive for Mr Viljoen to havedone so.

[20] I also considered theprejudice which the defendant could suffer by reason of reception ofMr Viljoen's assessor's reportwithout the defendant having had anopportunity to cross-examine him to test its reliability. Theassessor's report setting outwhat the value of the plaintiff'smotor vehicle was before the collision and the document indicatingwhat its salvage value was,were annexed to the particulars of claimand formed part of the plaintiff's claim. The defendant thereforehad ample opportunityto find evidence in rebuttal. The prejudicewhich the plaintiff would suffer, having regard to the fact that theperson who compiledthe report is now deceased, if Mr Laubscher'sevidence were to be rejected is more than that which the defendantwould sufferif it were to be admitted. For these reasons I allowedthe evidence of Mr Laubscher and accompanying photographs as in myopinionits reception was in the interest of justice.

[21] The issues fordetermination are, whether the plaintiff has established negligenceon the part of the defendant and the damageswhich he alleges he hassuffered, as a result of the defendant's negligence.

[22] Theplaintiff's claim against the defendant is based on delict and inorder to succeed in his claim the plaintiff will haveto prove thatthe defendant was guilty of conduct which is both wrongful andculpable; and which caused the plaintiff patrimonialloss; (NatalFresh Produce Growers' Association and Others v Agroserve (Pty) Ltdand Others 1990(4) SA 749 (N) at 756 I - 757 A.

[23] As tothe negligence, the question is whether a reasonable driver in theposition of the defendant would foresee the reasonablepossibilityof her conduct colliding with the plaintiff's motor vehicle andcausing him patrimonial loss; and would take reasonablesteps toguard against such occurrence; and whether the defendant failed totake such steps (Krugerv Coetzee 1966(2) SA 428 (A) at 430 E to F). For a delictual liability to arisethere must be a causal nexus between the defendant's negligentconductand the plaintiff's damages.

[24] Inorder to succeed in its claim for damages, the plaintiff mustestablish both the factual causation and legal causation.Thequestion in relation to the former is whether the defendant'snegligent act or omission caused or materially contributedto theharm giving rise to the claim. If it did, the second question iswhether the negligent act or omission is linked to theharmsufficiently closely or directly for legal liability to ensue, orwhether the harm is too remote (Gibsonv Berkowitz and Another 1996(4) SA 1029 (W) at 1039 F - G) See also Ministerof Police v Skosana 1977(1) SA 31 (A) at 34 E - F; InternationalShipping Co (Pty) Ltd v Bentley 1990(1) SA 680 (A) at 700 E.

[25] In the present case, I amsatisfied that the collision occurred in the matter as testified toby the plaintiff. He gave hisevidence in a clear and satisfactorymanner and did not try to exaggerate the defendant's negligentdriving. He was preparedto make concessions which appeared tofavour the defendant. The impression I gained was that he was atruthful witness and thatbeing so there is no reason to reject hisversion regarding the occurrence of the collision.

[26] MrJoubertsubmittedthat once it was found that at the time of the collision thedefendant, was driving too closely to the plaintiff's motorvehicle,it must be inferred, on the basis of the principle of resipsa loquitur, inthe absence of an explanation from the defendant that the defendantwas negligent. For this proposition he referred to Cooper,MotorLaw, vol 2 at 101 in which the following is said:

"Proof that a motorvehicle in a stream of traffic collided with the vehicle is primafacie proof of negligence. A drivermust anticipate the possibilityof a vehicle travelling ahead in a stream of traffic stoppingsuddenly. A following driver isthus under a duty to regulate hisspeed and his distance from the vehicle ahead as to be able to avoida collision should thevehicle ahead stop suddenly. If the driver ofthe following vehicle is unable to do so and a collision results theinferenceis that he was either travelling too closely to thevehicle ahead or too fast or that he was not keeping a properlook-out. Hence,proof of negligence: in fact, res ipsa loquitur".

[27] I am infull agreement with the views expressed by the author. In thepresent case there is an undisputed evidence by theplaintiff thatthe defendant was travelling at a high speed and too close behindhim, the defendant had been "tailgating"himfor a while before the accident and was in fact using the defendantas a pace setter. According to the plaintiff's versionwhen heapplied brakes suddenly to avoid colliding with a patrol vehiclewhich was about 20 metres in front of him, the defendant,who hadbeen following him, suddenly moved to the left of the plaintiff'smotor vehicle and in an attempt to avoid collidingwith a barrierrail on the left shoulder of the road, swiftly moved to the rightand collided with the plaintiff's motor vehicle.In fact, it was theplaintiff's evidence that at that stage his motor vehicle and thedefendant's motor vehicle were moving almostside by side. There isno evidence by the defendant to rebut the inference of negligence.Her inability to do so because of heramnesia cannot operate in herfavour. There is, in my view, overwhelming evidence that thecollision was caused by the defendant'snegligent driving. Areasonable driver in the position of the defendant would foresee thereasonable possibility that if shedrove too closely to theplaintiff's motor vehicle she would be unable to avoid a collisionshould the plaintiff's motor vehiclestop suddenly; and would takereasonable steps to guard against such occurrence. The defendantfailed to take such steps.

[28] Duringcross-examination of the plaintiff, it was suggested by thedefendant that the damages to be awarded to the plaintiffshould bereduced as the plaintiff was contributorily negligent in relation tothe occurrence of the collision. There were twobases for thissuggestion. Firstly, it was the concession by the plaintiff thatimmediately prior to the collision he had beendriving at a speed of130 - 140 km/hr which was in excess of a speed limit of 120km/hr.The second was the assertion by the plaintiffthat after a violentimpact to his motor vehicle emanating from the defendant's motorvehicle "heclosed his eyes and covered his head with his arms". Relyingon the authority of the dictum in AAMutual Insurance Association Ltd v Nomeka 1976(3) SA 45 (A) at 55D, Mr Webstersubmittedthat although the plaintiff's contributory negligence was notspecifically pleaded that did not preclude the defendantfromraising apportionment because the defendant had placed theplaintiff's fault in issue.

[29] The defendant's contentionmust be considered in light of the case that was pleaded by theparties. Very little in this matterwas common cause. But for thereasons that will follow I shall proceed on the assumption that itis common cause that the collisionoccurred. The plaintiff in hisparticulars of claim alleges that on or about 7 September 2007 onthe N2 between Swellendam andHeidelberg on route to Cape Town acollision occurred between the plaintiff's motor vehicle and thedefendant's motor vehicle.In her amended plea the defendant pleadedthat she had no knowledge of the collision and challenged theplaintiff to prove it.This averment by the defendant can, however,not be correct for three reasons.

[30] First, in para 3 of heramended plea the defendant admits that the collision as alleged bythe plaintiff took place withinthe jurisdiction of this Court whichadmission belies the defendant's earlier denial of the accident.Secondly, the defendant'sdenial of the accident contradicts thecontent of the statement she made to the police in which she set outhow the collisionhad occurred. The correctness of the content ofthis statement was admitted by her in her reply to furtherparticulars whichwas in response to the plaintiffs Rule 37 (4)notice. Thirdly, it is common cause that the defendant instituted athird partyclaim against the Road Accident Fund arising out of thisaccident. This claim was instituted on the basis that the plaintiffwas at fault and therefore liable to her for her damages.

[31] Thedefendant in her amended plea denied further that she was negligent;that she was liable in law to pay the plaintiffdamages and that sheis responsible for the damages. It is clear, upon a proper analysisof the defendant's amended plea, thatshe makes no allegation thatthe collision was caused by any negligence on the part of theplaintiff. If that is the case, thenthere is no factual basis forthe contention that the plaintiff contributorily contributed to theoccurrence of the collision.The plaintiff's fault was not put inissue. {AAMutual Insurance Association Ltd v Nomeka supra, at 55 D-56 C)\Ndaba v Purchase 1991(3) SA 640 (N) at 641 H - 642B). The present matter is on the factsdistinguishable from the case of AAMutual Insurance Association v Nomeka supra,as in that case although contributory negligence had not beenpleaded, the negligence of the plaintiff had been placedin issue.In the present case neither the apportionment has been pleaded northe plaintiff's fault placed in issue. The defendant'sdefence is abare denial.

[32] Thereis another reason why the defendant's contention should fail andthat is, the fact that the plaintiff admitted thathe was driving ata speed in excess of a speed limit is not of itself negligence. Itis merely a factor to be taken into accountin determining whetheror not it was negligent to drive at the speed driven (DeJong v Industrial Merchandising Co (Pty) Ltd 1972(4) SA 441 (R) at 445 B).

[33] MrWebsterfurthersubmitted that the plaintiff's conduct in closing his eyes andcovering his head with his arms immediately after collidingwith thedefendant's motor vehicle constituted an actusnovus interveniens whichbroke the chain of causality sufficiently to absolve the defendantfrom liability for the plaintiff's damages. He arguedthat had theplaintiff not behaved in the manner he had, he would have avoidedthe second collision which aggravated the damageto his motorvehicle.

[34] Theeffect of the plaintiff's post- delictual negligence on theplaintiff's damages was considered by the Court in Gibsonv Berkowitz, supra. TheCourt at 1052 C - F held that a distinction had to be drawn betweenthe parties' negligence prior to the harmful event andany relevantnegligence after the harmful event. It pointed out that

"inthe case of a plaintiff, his pre-delictual negligence will triggerthe application of contributory negligence to reducehis damages.The plaintiff's post delictual negligence will, however, affect theprinciples of legal causation (or remoteness)which may reduce hisdamages". Postdeiictor, the Court held, the plaintiff's negligent conduct may beregarded as an actusnovus interveniens whichbreaks the chain of causality sufficiently to absolve the defendantform liability for the plaintiff's damages.

[35] In myview Mr Webster'ssubmissionmust fail. It was the plaintiff's evidence that at the point ofimpact his motor vehicle and that of the defendantwere travellingside by side and that in an attempt to avoid colliding with either apatrol vehicle which was driving in frontof the plaintiff or abarrier rail on the left shoulder of the road, the defendant cut infront of the plaintiff's motor vehicleand forced the plaintiff'smotor vehicle to veer across the road. The plaintiff testified thatafter the impact his vehicle lostcontrol and he covered his headwith his arms in order to preserve himself at that moment. In myview this was an involuntaryact on the part of the plaintiff.

[36] Withregard to the quantum of the plaintiff's claim it is common causethat the plaintiff has been indemnified by his insurer(Santam) interms of a policy of insurance for damage caused to his vehicle. Butthis payment by Santam of the plaintiff's damagesis resinter alios acta andmay not in any way affect the question of the defendant's liabilityfor the wrong done. (DuRandt v Eriksen Motors (Welkom) Ltd 1953(3) SA 570 (O) at 572.

[37] Theplaintiff relied on the assessor's report of Mr Viljoen, who passedaway before he could give evidence and on the evidenceof MrLaubscher who testified in Mr Viljoen's stead. Mr Laubscherconfirmed that the methodology followed by Mr Viljoen in assessingthe damage to the plaintiff's vehicle was correct and in accordancewith standard loss assessment practice. In his opinion theplaintiff's vehicle was correctly "writtenoff' andthe sum of R140 000.00 represents the market value of theplaintiff's vehicle as at the time of the collision. From thisfigure Santam deducted an excess amount of R7 000.00 for which theplaintiff was liable in terms of his policy and a sum of R25670.87for salvage. He also confirmed that the towing costs in the sum ofR2 622.00 and Avis charges in the amount of R3 697.60for analternative motor vehicle were reasonable and necessary.

[38] Mr Laubscher was an honestand credible witness and his evidence regarding the loss suffered bythe plaintiff is accepted.In my view the plaintiff has placedsufficient evidence regarding the loss he had suffered and in theresult judgment shouldbe entered in his favour for the amountclaimed in the summons.

[39] Thelast issue to consider is the question of costs. Mr Jouberturgedthe Court to award costs against the defendant on a scale as betweenattorney and client because of the vexatious mannerin which thedefendant conducted the proceedings. He argued that throughout theduration of the trial the defendant was obstructiveand raisedunmerited objections which led to unnecessary delays. While it istrue that the defendant appeared to be very unco-operativeduringthe trial and placed virtually all aspects of the claim in dispute,I am, however, not of the view that the defendant'sconduct can becharactised as vexatious to warrant a punitive costs order beingmade against her. In the circ*mstances costswill be awarded on anormal scale.

[40] In the result judgment isgranted in favour of the plaintiff for the payment of:

1. the amount of R120 648.73

2. interest thereon a temporaeat the rate of 15.5% per annum.

3. costs of suit.

D H ZONDI