Titus v Shield Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Wessels JA, Corbett JA, Kotzé JA, Miller JA and Viljoen JA
• Judgment Date: 28 March 1980
• Citation: 1980 (3) SA 119 (A)
• Hearing Date: 07 March 1980
• Court: Appellate Division

Miller JA:

The appellant sued the respondent in the Cape Provincial Division for payment of a substantial sum of money as compensation in respect of injuries he suffered when the bicycle he was riding came into C collision with a motor car driven by one Theunissen. The respondent was the insurer of the motor car in terms of the Compulsory Motor Vehicle Insurance Act 56 of 1972. The action was unsuccessful, the Court a quo decreeing absolution from the instance after the respondent had closed its case without leading any evidence. The finding of the Court a quo was that D appellant failed to discharge the onus of proving that the collision was caused by any negligence on the part of the driver of the insured motor car. Whether that finding was correct is the fundamental issue on appeal but, as will later appear, in the final result the correctness or otherwise of the finding might depend upon whether the trial Judge (FRIEDMAN J) correctly ruled that evidence of an admission said to have E been made by Theunissen after the collision, concerning the place on the road where the collision occurred, was inadmissible against the respondent for the purpose of establishing the point of impact.

There was regrettable paucity of direct evidence concerning the occurrence in question. Although the appellant, who was rendered unconscious by the F impact, was able to, and did, give an account at the trial of his movements until shortly before the accident occurred, he had no recollection whatever of the accident itself. The driver of the insured motor car, although available, was not called as a witness. One Wehmeyer, who was the driver of a motor car which at the time of the accident was G stationary at a stop street giving access, at right angles, to the road on which the collision occurred, said that he did not see the collision but gave not always consistent accounts of what he saw very shortly before the collision. The trial Judge considered that his evidence was in certain material respects unreliable. The only other direct evidence relevant to the question of the point of impact was that of Constable Koen, who H arrived on the scene shortly after the accident and who later prepared a rough sketch on which he indicated the point of impact as having been markedly on Theunissen's wrong side of the road. What caused him thus to fix the point of impact was the presence of glass on the road. The trial Judge observed in his judgment that Koen was unable to say precisely where the pieces of glass lay on the road or to what extent they were scattered, nor able to justify the inference he drew from the distribution of the pieces of glass that the collision took place at the point marked by him on the sketch.

Miller JA

On behalf of the appellant it was contended before us that, even without recourse to the admission said to have been made by Theunissen after the A accident, there was sufficient material before the Court to justify a finding that Theunissen drove on the wrong side of the road and was therefore causally negligent in relation to the collision; and a fortiori, if the evidence of Theunissen's statement that the collision occurred on his wrong side of the road was wrongly excluded by the learned Judge a quo B (as appellant's counsel contended it was), Theunissen's negligence and the respondent's liability were clearly established. It will be convenient to consider first the admissibility of the controversial evidence.

The question arose at the trial while Koen was giving evidence. Appellant's counsel (not Mr Farlam, who appeared for appellant on appeal) sought to elicit from Koen what Theunissen had told him or pointed out at C the scene of the accident, concerning the point of impact. Respondent's counsel objected to such evidence, which he contended was inadmissible against the respondent, although it would no doubt have been admissible in any action against Theunissen. After hearing argument the learned Judge, on the authority of a recent decision of this Court (Union and South West D Africa Insurance Co Ltd v Quntana NO 1977 (4) SA 410), ruled that evidence of the admission made by the driver of the insured vehicle was not admissible to prove against the insurer of such vehicle (respondent) the point of impact. However, he held that it was admissible for the limited purpose for which it was tendered, which purpose he described, in his brief judgment on the question of admissibility, in these terms:

E 'It is tendered in order to prove the reason why the constable who drew the plan placed the point of impact where he did. For this purpose the evidence is admissible...'

Following upon such ruling Koen testified that, not long after his arrival at the scene of the accident and after the unconscious appellant had been F removed by ambulance, he (Koen) asked Theunissen where the point of impact was. Theunissen answered the question by pointing out a place and saying 'daar'. The place pointed out, said Koen, corresponded with the point which he had himself already determined according to the situation of the glass on the road and which point was reflected on his sketch. (I have G already mentioned that the point of impact reflected on the sketch was very much on Theunissen's wrong side of the road; to be more precise, it was about two metres from the northern kerb of the road on which Theunissen was travelling from east to west. The total width of the road was 10 metres.) When giving judgment at the conclusion of the trial the H learned Judge, referring to Koen's evidence of what Theunissen had said or pointed out concerning the point of impact, said:

'... as this evidence is inadmissible in a case of this kind against the defendant, I propose to ignore that evidence entirely.'

On appeal it was contended that the evidence in question was wrongly ignored by the trial Judge who ought to have received it 'as forming part of the res gestae' and the following passage from the judgment in Quntana's case, referred to above, was relied upon.

'For these reasons, therefore, I am of the view that, in general, and certainly in this particular case, the admission of the driver of the insured vehicle is not admissible against the registered insurer, in an action under Act 29 of 1942, on the

Miller JA

ground of privity or identity of interest or obligation, and that in the absence of some other ground of admissibility, such as the admission forming part of the res gestae or having been authorised by pre-appointment or reference or by subsequent adoption, the admisssion is not receivable in evidence at all.'

A (At 426.) Although he submitted full argument in this Court on the merits of the appellant's contention that Theunissen's statement was admissible 'as part of the res gestae', counsel for the respondent, Mr Hodes, raised the question (not mentioned in his written heads of argument) whether it was at this stage open to appellant to contend for admissibility on that B ground at all, in view of what happened in the Court a quo. He contended that in the Court below appellant's counsel, for a limited purpose only, tendered the evidence of the statement said to have been made by Theunissen to Koen and thereby disavowed any intention of relying on such C evidence to prove the truth of such statement; appellant, therefore, could not now ask the Court to receive and consider the evidence for a purpose which had been disavowed at the trial. (I might explain that I use the word 'statement' to embrace the act of pointing out and the word uttered at the time of the pointing out - see S v Tuge 1966 (4) SA 565 (A) at 574A).

Prima facie, there might appear to be some substance in the respondent's D complaint. The judgment delivered in the Court a quo on the question of admissibility of the evidence certainly reveals that the Court understood appellant's counsel to have tendered the evidence for a limited purpose only - see the extract from that judgment, quoted above. But, although the E opening part of the argument advanced in this connection by appellant's counsel in the Court a quo is on record, the whole of the argument was not recorded; nor was the argument of respondent's counsel recorded. Moreover, there is ambivalence in the trial Judge's successive rulings (i) that evidence of Theunissen's alleged statement was tendered and receivable

F 'in order to prove the reason why the constable... placed the point of impact where he did'

and later, (ii) that evidence of the alleged statement, although received for the above purpose, was not receivable to prove the point of impact and should be ignored. If the evidence was tendered and received for the purpose indicated in (i) above, its purpose and effect in the context of G Koen's evidence would be to provide direct corroboration of Koen's own, independent placing of the point of impact. Whether such a purpose is practically distinguishable from a purpose to prove the truth of what was asserted (ie to prove the point of impact) is, at the very least, questionable. If the purpose of the evidence was not that it should serve to corroborate Koen's own placing, it is difficult to conceive of any other useful purpose that it could serve. There would be no utility or H probative value in establishing merely the fact that Theunissen made a report or pointed something out to Koen unless the content of such report or pointing out were disclosed. And if that content was not receivable as evidence of the truth thereof, it could be admitted in evidence only if it had

'circumstantial value to prove something other than the truth of what (was) asserted... if what (it was) tendered to prove (was) relevant to the inquiry'.

(See R v Miller and Another 1939 AD 106 at 119.) Proof of the mere

Miller JA

fact that...