Menday v Protea Assurance Co Ltd

• Jurisdiction: South Africa
• Judge: Addleson J
• Judgment Date: 23 October 1975
• Citation: 1976 (1) SA 565 (E)
• Court: Eastern Cape Division

Addleson, J.:

The plaintiff claims damages for personal injuries sustained by him in a motor collision. The defendant is the third party insurer of the other vehicle involved in the collision which occurred at about 0630 hours on Sunday, 2 February 1969. The trial commenced in December 1974 but, due mainly to the other commitments of counsel, could not be concluded until July 1975.

The hearing lasted 16 days, a considerable part of which was taken up with 'expert' evidence. I am informed that the costs of the action are likely

Addleson J

to be very high and it seems to me a matter for comment that the parties did not make better use of the provisions of the Rules of Court so as to present the issues more crisply and in a more circumscribed form and to restrict the dispute to issues appropriate to litigation. It is my view that some of the debates recorded in the evidence go well beyond the type of A enquiry which a Court of law can, or should be, asked to decide.

The plaintiff's claim, as amended during the trial, is for damages in the sum of R83 108,79. There was a sharp conflict on some items of damages, including a dispute between the medical B witnesses as to the effect of certain of the plaintiff's injuries. I shall return to these matters after dealing with the merits, except that one aspect of the merits involved medical and other evidence as to the effect on the plaintiff's vision of a pre-existing injury to his left eye.

A large number of photographs and plans were produced in evidence. Most of the plans were not in dispute and are of C minimal value in deciding the disputed issues. The interpretation of the photographs and the findings to be made from them was a matter in dispute and occasions considerably difficulty. I shall refer to these exhibits as they become relevant to the analysis of the evidence.

[The learned Judge then dealt with matters which were common D cause and with the evidence of the witnesses, and that of an eye-witness, Mrs. Brewis and her husband, who was not present at the accident. He then continued].

While there was nothing specific for adverse comment in Mr. Brewis' demeanour, beyond an apparent hostility to the plaintiff as the author of the accident, he was not an E impressive witness who tended to be slightly hesitant and surly; nor did he strike me as the dominant character who would, as he claims, have silenced his wife if she had attempted to discuss the accident. Where his evidence conflicts with that for the plaintiff, there is little difficulty in accepting the latter.

Mrs. Brewis' alleged statement to her husband would in my view be admissible. It is alleged that some hours after the F accident, at Aliwal North, he asked her what had happened and that she said: 'Dat die motor van Menday oor die witstreep gekom het en teenaan die motor van my skoonmoeder gebots het aan die kant van my skoonmoeder.'

The only basis upon which such a statement to Mr. Brewis would be admissible and of evidential value is to rebut a suggestion G that Mrs. Brewis' evidence in Court was a 'recent fabrication' - in effect, to show that her version of the accident was not concocted at a later date. See Hoffmann, Evidence, 2nd ed., pp. 22 - 26. The word 'recent' in the term 'recent fabrication' appears to be inappropriate since in those cases in which such evidence has been admitted, it appears that the comparative 'recentness' of the fabrication has not been the deciding issue H but rather the question whether, between the event under investigation and the trial of the matter, the witness invented a false version of what occurred; and the statement has been admitted to show that, far from fabricating his evidence, the witness is saying what he has always said. Much depends on the form of the challenge of the disputed evidence and much must depend on the ultimate cogency of the evidence of the previous consistent statement. See, e.g., Phipson, Evidence, 11th ed., paras. 1576 - 1586; May, Evidence, 4th ed., para. 579; R. v. Erasmus, 1958 (2) SA 685 (O); S. v. Sitwayi and Others, 1961 (4) SA 538 (E); Fox v. General Medical Council, (1960) 3 All E. R. 225 (P.C.)

Addleson J

at pp. 230 - 231; R. v. Rose, 1937 AD 467 at p. 473. Since it is alleged in this case that Mrs. Brewis has now falsely concocted a version of the accident inconsistent with her previous description of it at the hospital, it is my view that a statement to her husband, consistent with her present A evidence, would be admissible on technical grounds.

I consider however that that evidence is of no probative value or cogency because I do not believe that Mrs. Brewis made such a statement to her husband.

[The learned Judge then dealt further with the evidence and proceeded].

It is now necessary to consider the 'real' evidence and the B opinions of the 'expert witnesses'. Before I do so I must deal with two matters which in my view have an important bearing on the evaluation of that evidence. These matters are, firstly, the formulation of the defendant's case; and secondly the qualifications of the experts and the reliability of the data on which their opinions wore based. Normally such matters would not require to be analysed at any length, if at all, in a case C of this type but the necessity arises because of the way in which the defendant's case was presented and because issue was joined on the type of evidence which the experts on both sides were qualified to give.

As to the first matter, it is my view that the final decision D on the persuasiveness of the defendant's case and on the validity of its attack on the plaintiff's experts is materially affected by the way in which the defendant changed ground and developed varying and amplified theories as the case progressed from adjournment to adjournment.

I have mentioned the defendant's plea and the fact that it foreshadowed its case only by the general allegation that the E plaintiff travelled on his incorrect side of the road. A request by the plaintiff for particulars for trial as to where on the road the collision was alleged to have occurred was refused by the defendant, but at the pretrial conference the defendant stated that the collision occurred three feet from the centre of the road on the plaintiff's incorrect side. No evidence was ever tendered to support this specific contention. F When the trial commenced the plaintiff had furnished a summary of the evidence of its experts D'Abouville and Bowen that, inter alia, D - E was caused by the right front wheel of the Alfa. At that stage no notice of intention to call any experts on the merits had been given by the...