Menday v Protea Assurance Co Ltd

JurisdictionSouth Africa
Citation1976 (1) SA 565 (E)

Menday v Protea Assurance Co Ltd
1976 (1) SA 565 (E)

1976 (1) SA p565


Citation

1976 (1) SA 565 (E)

Court

Eastern Cape Division

Judge

Addleson J

Heard

December 2, 1974; December 3, 1974; December 4, 1974; March 19, 1975; March 20, 1975; March 21, 1975; March 22, 1975; March 23, 1975; March 24, 1975; March 25, 1975; June 9, 1975; June 10, 1975; June 11, 1975; June 12, 1975; June 13, 1975; July 14, 1975; July 15, 1975

Judgment

October 23, 1975

Flynote : Sleutelwoorde

Evidence — Witness — Expert — Function of — Expert in a particular field — Who is — Qualifications B required — Expert relying on passages in a text-book — What must be shown.

Headnote : Kopnota

In essence the function of an expert witness is to assist the Court to reach a conclusion on matters on which the Court itself does not have the necessary knowledge to decide. It is not the mere opinion of the witness which is decisive but his ability to satisfy the Court that, because of his special skill, training or experience, the reasons for the opinion which he expresses are acceptable.

There are dangers inherent in expert testimony. Nonetheless the C Court, while exercising due caution, must be guided by the views of an expert when it is satisfied of his qualification to speak with authority and with the reasons given for his opinion.

However eminent an expert may be in a general field, he does not constitute an expert in a particular sphere unless by special study or experience he is qualified to express an opinion on that topic. The dangers of holding otherwise - of being overawed by a recital of degrees and diplomas - are D obvious; the Court has then no way of being satisfied that it is not being blinded by pure 'theory' untested by knowledge or practice. The expert must either himself have knowledge or experience in the special field on which he testifies (whatever general knowledge he may also have in pure theory) or he must rely on the knowledge or experience of others who themselves E are shown to be acceptable experts in that field.

Where, therefore, an expert relies on passages in a text-book, it must be shown, firstly, that he can, by reason of his own training, affirm (at least in principle) the correctness of the statements in that book; and, secondly, that the work to which he refers is reliable in the sense that it has been written by a person of established repute or proved experience in that field. In other words, an expert with purely theoretical F knowledge cannot support his opinion in a special field (of which he has no personal experience or knowledge) by referring to passages in a work which has itself not been shown to be authoritative. Again the dangers of holding otherwise are obvious.

Case Information

Action for damages. Facts not material to this report have been omitted.

T. M. Mullens, S.C. (with him J. J. Nepgen ), for the plaintiff.

Theal Stewart, S.C. (with him Frank Krooll ), for the defendant. G

Cur adv vult.

Postea (October 23). H

Judgment

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

1976 (1) SA p566

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.)

1976 (1) SA p567

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...

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22 practice notes
  • Compagnie Interafricaine De Travaux v South African Transport Services and Others
    • South Africa
    • Invalid date
    ...South Africa (1981) at 176-80, 466-7; Dettmann v Goldfain and Another 1975 (3) SA 385 (A) at 399B-E; Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E) at 569E-G; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 615A-G, 617B-C, 617F-618G; Selero (Pty) Ltd and Another v Chauvie......
  • JA obo Da v MEC for Health, Eastern Cape
    • South Africa
    • Invalid date
    ...ZASCA 160: referred to Medi-Clinic v Vermeulen 2015 (1) SA 241 (SCA) ([2014] ZASCA 150): applied Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E): dictum at 569 Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) ([2002] 1 All SA 384; [2001] ZASCA 1......
  • Tieber v Commissioner for Customs and Excise
    • South Africa
    • Invalid date
    ...509-511; The Encyclopaedia of the United Nations and International Relations (1990) at I 309, 914-15; Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E); William Grant & Sons Ltd v Cape Wines & Distillers Ltd 1990 (3) SA 897 (C); Coopers (SA) (Pty) Ltd v Deutsch Gesellschaft für Schädling......
  • Singh v Ebrahim
    • South Africa
    • Durban and Coast Local Division
    • Invalid date
    ...161 (SCA) at 175 paragraph [27]. [35] In particular in the context of expert evidence, Addelson, J. in Meday v Protea Assurance Co Ltd 1976 1 SA 565 E at 569 E – H commented "However eminent an expert may be in a general field, he does not constitute a expert in a particular sphere unless b......
  • Request a trial to view additional results
21 cases
  • Compagnie Interafricaine De Travaux v South African Transport Services and Others
    • South Africa
    • Invalid date
    ...South Africa (1981) at 176-80, 466-7; Dettmann v Goldfain and Another 1975 (3) SA 385 (A) at 399B-E; Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E) at 569E-G; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A) at 615A-G, 617B-C, 617F-618G; Selero (Pty) Ltd and Another v Chauvie......
  • JA obo Da v MEC for Health, Eastern Cape
    • South Africa
    • Invalid date
    ...ZASCA 160: referred to Medi-Clinic v Vermeulen 2015 (1) SA 241 (SCA) ([2014] ZASCA 150): applied Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E): dictum at 569 Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another 2001 (3) SA 1188 (SCA) ([2002] 1 All SA 384; [2001] ZASCA 1......
  • Tieber v Commissioner for Customs and Excise
    • South Africa
    • Invalid date
    ...509-511; The Encyclopaedia of the United Nations and International Relations (1990) at I 309, 914-15; Menday v Protea Assurance Co Ltd 1976 (1) SA 565 (E); William Grant & Sons Ltd v Cape Wines & Distillers Ltd 1990 (3) SA 897 (C); Coopers (SA) (Pty) Ltd v Deutsch Gesellschaft für Schädling......
  • Singh v Ebrahim
    • South Africa
    • Durban and Coast Local Division
    • Invalid date
    ...161 (SCA) at 175 paragraph [27]. [35] In particular in the context of expert evidence, Addelson, J. in Meday v Protea Assurance Co Ltd 1976 1 SA 565 E at 569 E – H commented "However eminent an expert may be in a general field, he does not constitute a expert in a particular sphere unless b......
  • Request a trial to view additional results
1 books & journal articles
  • Bokolo v S 2014 (1) SACR 66 (SCA) - the practicality of challenging DNA evidence in court
    • South Africa
    • Sabinet SA Crime Quarterly No. 2015-52, June 2015
    • 1 June 2015
    ...(ed.), Psycho-legal assessment in South Africa, Cape Town: Oxford University Press, 2006, 343.34 Menday v Protea Assurance Co (Pty) Ltd 1976 (1) SA 565 (E). 35 S v Huma 1995 1 SACR 409 (W). 36 These words were uttered by Wigmore in 1940. See JH Wigmore, A treatise on the Anglo-American syst......

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