Motor Vehicle Assurance Fund v Kenny

• Jurisdiction: South Africa
• Judge: Eksteen J, Kannemeyer J and Mullins J
• Judgment Date: 19 June 1984
• Citation: 1984 (4) SA 432 (E)
• Hearing Date: 11 June 1984
• Court: Eastern Cape Division

Eksteen J:

This is an appeal against the judgment of SMALBERGER J in which he found for the respondent and awarded him damages in respect of personal injury. The respondent, who was the B plaintiff in the Court a quo, alleged in his particulars of claim that on 3 January 1978, while travelling on his motor cycle along a gravel road between Mooiplaas and Haga-Haga, he was involved in a collision with an unidentified motor car as a result of which he sustained serious personal injuries. In fact C he suffered a compression fracture of the sixth dorsal vertebra with complete transection of the spinal cord at that level resulting in a complete paraplegia.

The appellant admitted in its plea that the respondent had been involved in an accident on the Mooiplaas - Haga-Haga road on 3 January 1978, but denied that any motor vehicle had come into physical contact with the respondent or with the motor cycle D driven by him at the time of the accident.

In terms of reg 6 (1) (a) (iv) of the regulations framed in terms of Act 56 of 1972 it was incumbent upon the respondent to show that the unidentified motor vehicle, or something on or attached to it, had come into physical contact with him at the E time of the accident before he could recover any damages from the appellant. At a pre-trial conference held on 10 June 1983 the parties agreed that the sole issue for determination at the trial would be whether or not there had been such physical contact on the day in question as to fix liability on the appellant in terms of the regulation I have referred to.

F In the nature of things the respondent was the only witness who could depose to the circumstances in which the accident had taken place. He told the Court that on the evening of 3 January 1978 he left his home in East London on his motor cycle at about 6 pm. He intended visiting friends of his at Kei Mouth. On his way there he had to traverse a gravel road between G Mooiplaas and Haga-Haga. He had travelled the road often before and knew it well. At the spot where the accident occurred the road goes down the side of a hill through a series of bends which follow the contours of the hill itself. He told the Court that as he came round one of these bends he saw a light coloured motor car coming in the opposite direction H entirely on its wrong side of the road. It was immediately clear to him that he could not possibly pass the car if he kept to his left side of the road, and so he swung out to the right in an attempt to pass the car on the other side. At first he thought he had succeeded in avoiding a collision but at the last moment he realized that this was not to be. He instinctively put out his hand and touched the cold metal of I the car. At more or less the same time he felt the car colliding with the motor cycle itself. He lost control of the cycle and remembers nothing after that. The first memory of anything after the accident was in the Conradie Hospital in Cape Town some days later.

Support for the respondent's allegations that the motor car had in

Eksteen J

A fact collided with his motor cycle was sought from a dent in the red oil tank of the motor cycle with white paint having apparently been rubbed off from some other object in the dent itself. Both the respondent and his brother, J J Kenny, deny that this dent or the paint mark were on the motor cycle prior to the respondent setting off from East London on the evening in question.

B After the collision, and after the respondent had been removed to hospital, the motor cycle was taken to the Mooiplaas Hotel on the back of a yellow coloured light delivery van. A...