Motor Vehicle Assurance Fund v Dubuzane

• Jurisdiction: South Africa
• Judge: Kotzé JA, Botha JA, Van Heerden JA, Nicholas JA and Grosskopf AJA
• Judgment Date: 29 November 1983
• Citation: 1984 (1) SA 700 (A)
• Hearing Date: 15 November 1983
• Court: Appellate Division

Kotzé JA:

On Sunday, 20 March 1977, Stanley Makalima, whilst proceeding along the old but busy road between Johannesburg and Potchefstroom ("the old road") in the course of his duty as an ambulance attendant came across a male person, Angel Dubuzane, aged 57 (the deceased). He lay at the side of the road near a pedestrian crossing. He was injured. It is not suggested that D any vehicle which could have caused the injuries was then at or near the scene. It was between 6 and 7 pm. It was "dusk" but not yet dark. He was placed in the ambulance attended by Makalima and taken to the Baragwanath Hospital. The above facts emerge from the undisputed evidence given by Makalima in the action to which I shall refer in the ensuing paragraph. It is also undisputed that the deceased died later on 20 March 1977 E and that

"there was no novus actus interveniens which caused or contributed towards the death of the deceased during the time period from which the deceased's body was fetched by the ambulance service until such time that the post-mortem examination was carried out on the deceased".

F As a result of the death of the deceased, the breadwinner of the respondent (plaintiff) and of her three minor children, the plaintiff instituted action in the Witwatersrand Local Division against the appellant (defendant) for the payment of damages to her in her personal capacity and in her capacity as mother and G natural guardian of the said minor children. The parties agreed at a pre-trial conference that, in the event of the defendant's liability being established, judgment would be entered in the sum of R11 500. The action was tried by DE VILLIERS J, who found for the plaintiff on the merits and awarded damages in the abovementioned sum of R11 500. The defendant now appeals to this Court.

H The action was instituted against the defendant, a body corporate by virtue of the provisions of s 5 of the Compulsory Motor Vehicle Insurance Act 56 of 1972, on the strength of an allegation that the death of the deceased was caused by a motor vehicle of which the identity of the driver or owner or authorized insurer could not be established. (See s 7 (2) of Act 56 of 1972.)

The Court a quo was, and this Court is, called upon to adjudicate upon the undermentioned two issues:

Kotzé JA

(a)

whether an unidentified motor vehicle (including anything on, in or attached to it) came into physical contact with the deceased or with another person, vehicle, conveyance or any other object which directly or indirectly caused or contributed to the death of the deceased - see reg 6 (1) A (a) (iv) of the regulations published in Government Notice R 1710 of 29 September 1972 as amended; and

(b)

whether the death of the deceased was due to the negligence of the driver of the unidentified motor vehicle.

As the death of the deceased was allegedly caused by an unknown B hit-and-run driver the defendant understandably adduced no evidence. It is necessary, therefore, to refer to the evidence adduced by the plaintiff, the honesty of which is not called in question, and to consider whether on weighing the probabilities of the case as disclosed by that evidence the balance of probabilities favour the plaintiff. (Ex parte Minister of C Justice: In re R v Bolon 1941 AD 345 at 352.)

In regard to issue (a) Prof Taljaard, a professor of forensic medicine and pathologist, conducted a post-mortem examination on the deceased. He established multiple injuries to be the cause of death. He detailed the injuries and expressed the following opinion in regard to the cause of the injuries:

"The large lacerations of the left frontal and parietal D regions, the compound fracture of the left tibia and fibula and the fracture of the left pubic ramus make it very likely that the deceased was struck from the left by a motor-car. The magnitude of the injuries are such that a motor vehicle accident is the most likely cause of the injuries."

In regard to the question whether he thought there was physical contact between the motor vehicle and the deceased, Prof E Taljaard's answer was "absolutely, I think so yes". Cross-examined, the witness negatived the suggestion that the injuries were consistent with an assault saying

"if you take all the injuries together, then I would say they are not consistent with an assault, I think they are more more F consistent with a motor vehicle accident".

In regard to the supposition that the injuries were consistent with the deceased having jumped or fallen from a truck into a tree, the answer was that, in that event, the injuries would have been different: burn marks and abrasions but not localised as revealed at the post-mortem. Asked if the deceased could G have been struck from behind, the witness stated that he considered that unlikely since a compound fracture over the middle third of the leg and a fracture of the left side of the pelvis "ties in with the bumper part of the car and... bonnet" having struck the deceased from the left and not from the rear. The cross-examiner further elicited from Prof H Taljaard that the deceased was struck by a "large force".

The evidence outlined above stands uncontradicted and clearly establishes upon a preponderance of probability that the bumper and bonnet of a motor...