CASE NO.: [P] I 2048/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

SUSANNA E BOCK PLAINTIFF

and

MOTOR VEHICLE ACCIDENT FUND OF NAMIBIA DEFENDANT

CORAM: MULLER, J

Heard on: 23 September 2008

Delivered on: 30 September 2008

JUDGMENT ON APPLICATION FOR ABSOLUTION FROM THE INSTANCE

MULLER, J.:

[1] The plaintiff claimed in her personal capacity and in her capacity as mother and natural guardian of two minor children certain damages allegedly caused by the driver and insured of the Motor Vehicle Accident Fund of Namibia in terms of the Motor Vehicle Accident Fund Act, No 4 of 2001, in respect of a collision between him as the driver of a motor vehicle, with registration number N38118W, in which the plaintiff’s husband was a passenger at the time. It is common cause that the collision occurred between the particular motor vehicle and a kudu. It is alleged that the collision was caused by the negligence of the driver of the motor vehicle of the particular motor vehicle in that he was negligent in the following respects:

1. he failed to keep a proper lookout;

2. he failed to exercise proper control of the vehicle he was driving;

3. he failed to apply, adequately, timeously or at all the brakes of the vehicle he was driving;

4. he drove at an excessive speed in the circumstances;

5. he failed to avoid the collision when by the exercise of reasonable care and skill he could or should reasonably have done so.

It is common cause that the plaintiff’s husband died as a result of injuries sustained in the collision.

[2] In its plea the defendant denied negligence, but admitted that the plaintiff’s husband was a passenger in the particular motor vehicle which collided with a kudu “that jumped to the path of the vehicle…” The defendant also avers that the driver of the particular motor vehicle had no opportunity to avoid the collision because “the kudu jumped to its path.”

[3] By agreement between the parties during the Rule 37 conference, the Court is not called upon to decide the quantum of the matter, but only the merits. This judgment, consequently only concerns the negligence issue.

[4] At the trial Mr Pfeiffer of the Behrens & Pfeiffer appeared on behalf of the plaintiff and Mr Ueitele of Ueitele & Hans Legal Practitioners represented the defendant.

[5] The plaintiff presented the evidence of two police officers. Sergeant Jan Beukes was the author and photographer of a photo plan containing photos of the scene. This photo plan was handed in as exhibit “A”. The other witness called by the plaintiff was Constable Lamech Jackson. Thereafter the plaintiff closed its case and the defendant applied for absolution from the instance. Both parties made submissions in respect of the defendant’s prayer for absolution from the instance of plaintiff’s claims. This judgment deals with that issue.

[6] Mr Ueitele submitted on behalf of the defendant that no negligence was proved in terms of which the defendant can be held liable in respect of the Motor Vehicle Fund Act. He submitted that the onus rests on plaintiff to prove such negligence and that there is no evidence on which the reasonable court can find at this stage in that any negligence was proved by the plaintiff. He relied on certain decisions by South Africa Courts and on what the author in Coopers - Law of Collisions, 6^th edition, states in respect from absolution from the instance in civil matters.

[7] Mr Pfeffier submitted that a prima facie case was made out and that there was evidence before the Court on which a reasonable Court could or might find that the driver of the vehicle was negligent. He referred to the admissions in the plea of the defendant in respect of the kudu that jumped into the path of the vehicle in addition to the evidence of the two police officers and the photo plan handed in. He submitted that in respect of the plaintiff’s claim only 1% negligence has to be proved.

[8] Mr Pfeiffer relied on the principle of res ipsa loquitur as described in Coopers supra, at page 175. He submitted that an inference of negligence has necessarily to be made, wherefafter the defendant has to show why the inference should not become conclusive proof of negligence. He also referred to South African decisions, such as Madyosi & Another v Eagle Ins Co Limited 1990 (3) SA 442 (A) and Arthur Bezuidenhout and Mieny 1962 (2) SA 566 (A) in which the issue of ipsa loquitur has been analysed. Mr Pfeifer further referred to the what is depicted on the photos contained in the photo plan and the unchallenged evidence of the police officers.

[9] In reply, Mr Ueitele submitted that plaintiff misconstrues what the pre-requirements for res ipsa loquitur mean. He submitted that there are two requisites described in Coopers supra, namely that there must be prima facie proof of negligence and that the defendant must have control or management of the thing that caused the negligence. In this regard it is submitted that the driver of the motor vehicle did not have control of the kudu. He also submitted that there no evidence whether the kudu jumped, was standing still, or was running. According to Mr Ueitele there was no further evidence in respect of the distance that the kudu could be seen or whether it was seen by the driver. He concluded by submitting that because the two requirements were not proved, the Court cannot find that the maxim of res ipsa loquitur is applicable.

The law in respect of res ipsa loquitur

[10] In the Law of Collisions the authors Isaacs and Leveson, 5^th edition, defines the principles of res ipsa loquitur as follows on page 161:

“The principle of res ipsa loquitur, ie, the matter speaks for itself, is sometimes applied in cases of negligence. When this principle is applied it means that from the mere occurrence, without any direct evidence of conduct, the court has drawn the inference of negligence.

It is further stated :

“where the thing involved in the accident is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from the defendant’s want of care.

Thus before the principle res ipsa loquitur is applied, two essential elements regarding the accident must be present. There must be complete control of the thing causing the damage by defendant or his servants, and the accident must be such as to create the interference of want of care.”

In the 7^th edition of the Law of Collisions in South African, HB Kloppers deals with the maxim res ipsa loquitur under the heading: Proof of Negligence, in the following words on pages 78-79:

“9.4.3 Proof on a balance of probabilities: Res ipsa loquitur

a) Meaning and application

Res ipsa loquitur implies that the facts of the case indicate negligence where proven facts are the only available evidence.

Res ipsa loquitur does not create any presumption of negligence and does not transfer the burden of proof. It is only an indication, through the proven facts, of the probabilities, which may justify or support a finding of negligence on a balance of probabilities. In order for a party to rely on res ipsa loquitur sufficient proof of the facts to justify the inference of negligence from the proven facts has to be adduced. Where a reliance is placed on res ipsa loquitur the plaintiff is bound to the facts alleged to have been the cause of the accident. The rule does not apply where a defendant leads sufficient exonerating evidence, which makes the inference of negligence against the defendant improbable. Res ipsa loquitur can only operate where the only reasonable interference that can be made from the directly proven facts is one of negligence.”

(See also Neethling, Potgieter and Visser - Law of Delict, 5^th edition, page 139 - 140.)

[11] There are many decisions of South African Courts in respect of the principles of res ipsa loquitur. Reference has often been made to Boberg- The Law of Delict, Volume 1 . Boberg, supra, deals with the issue of the maxim res ipsa loquitur under the heading of Proof of Negligence at page 377-378 and refers to several South African decisions in this regard. In respect of proof of negligence Boberg describes it as follows:

“The onus is on the plaintiff to prove−in a civil case upon a preponderance of probabilities−that the defendant was negligent. In certain circumstances the facts on the case itself give rise to an inference of negligence on the part of the defendant. The maxim res ipsa loquitur is then said to apply: the plaintiff establishes a prima facie case of negligence merely by proving the facts of the occurrence. After much controversy it was settled in Arthur v Bezuidenhout and Mieny 1962 (2) SA 566 (A) that the maxim does not shift the onus of proof to the defendant. It is simply an argument available to a plaintiff, who has little evidence at his disposal, to avoid judgment of absolution from the instance being given against him at the close of his case. But the application of the maxim does, however, indicate a probability in the plaintiff’s favour, and to escape liability the defendant must displace that probability, offering an explanation of the occurrence that neutralizes the inference of negligence originally drawn. Then the plaintiff, who has not discharged the onus, fails.”

In Hamilton v MacKinnon 1935 AD 114 at 125, Beyers JA dealt with the maxim res ipsa loquitur. At page 1-5 Beyers JA stated that res ipsa loquitor is not a principle, it is not even a rule.

[12] It is now clear in our law that the onus remains on the plaintiff throughout and does not shift. Ogilvie Thompson JA, (as he then was) decided in the Arthur v Bezuidenhout and Miney case that a previous decision by the Appeal Court in the case of Naude NO v Transvaal Boot and Shoe Manufacturing Co 1938 AD 379, to the effect that the onus shifts to the defendant when the court finds that there is inference of negligence on the grounds of res ipsa loquitur, is wrong. The onus remains throughout on the plaintiff. (Arthur v Bezuidenhout and Miney, supra, 576 F-G).

[13] In respect of res ipsa loquitur Ogilvie Thompson, JA had the following to say in the Arthur case at 573 C-H:

“It is equally trite to say that the onus thus resting upon a plaintiff never shifts. While the maxim res ipsa loquitur has no general application to highway collisions, no sufficient reason appears to me to exist why the maxim should not, in a restricted class of case, sometimes apply. Without in any way attempting to define such a application−and see on the question generally, Hamilton v Mackinnon 1935 AD 144 at pp 125 et seq; and pp-360 et seq; −I am of the opinion that on the facts of the present case the maxim may rightly be applied. For, when plaintiffs proved that defendant’s truck for no apparent reason suddenly swerved on to its incorrect side there to collide with their truck, plaintiffs proved facts from which an inference of negligence against defendant may, in the absence of any explanation, be drawn−res ipsa loquitur. In the present case, as in other similar cases, however, the issue of liability only falls to be determined at the end of the case, after all the evidence has been led. The maxim res ipsa loquitur is no magic formula. In the words of Lord Shaw in Ballard v Northern British Railway Co, Sc L.R.448 and 457, cited with approval by Stratford CJ, in Naude’s case, supra p 396,

‘the expression need not to be magnified into a legal rule; it simply has its place in that scheme of and search for causation upon which the mind sets itself working.’

Proof by plaintiff of an event properly falling within the maxim−that is to say, proof of an event which, in the absence of anything to the contrary, tells its own story−may justify an inference of negligence against the defendant. But, that inference may, again to employ the words of Lord Shaw in Ballard’s case , be displaced by the remainder of the story: if the remainder of the story does not do so, then the inference remains−res ipsa loquitur. But, questions of absolution at the end of the plaintiffs’ case apart, the Court is not called upon to decide the issue of negligence until all the evidence is concluded, until it has heard all the story which it is to hear.”

On page 574 E-F the learned Judge in the Arthur case said the following in respect of this maxim:

“The maxim res ipsa loquitur, where applicable, gives rise to an inference rather than to a presumption. Nor is the court, or jury, necessarily compelled to draw the inference.”

At page 574 H the learned judge said:

“As appears from the above general statement from Wigmore, and as reflected in any specific statement of the res ipsa loquitur maxim, once the plaintiff proves the occurrence giving rise to the inference of negligence on the part of the defendant, the latter must adduce evidence to the contrary. He must tell the remainder of the story, or take the risk of judgment being given against him. How far does the defendant’s evidence need to go to displace the inference of negligence arising from proof of the occurrence complained of by the plaintiff depends on the particular case.”

See also Groenewald v Conradie; Groenewald en Andere v Auto Protection Limited 1965 (1) SA 184 (A) at 187B-F.

The evidence

[14] As mentioned before, the plaintiff only presented the evidence of two police officers and further relied on the admission in the plea. The only person who can contribute to what occurred on the specific night of 23 April 2005 is the driver of the vehicle, which is the insured of the defendant. The plaintiff apparently has no any other witnesses to call.

[15] The evidence of Sergeant Beukes is that he arrived at the scene around 20h20 and that most of the points depicted on the photos which he took, were pointed out to him by Constable Jackson, who was already there. He did not see the driver of the vehicle. A photo plan containing 14 photos was handed in. During cross-examination the points depicted on the photo plan were not disputed. Constable Jackson confirmed that the photos were taken by Sergeant Beukes. He also confirmed that he indicated most of the points to Sgt Beukes and that he saw the driver at the scene before he was taken away in an ambulance. He also observed other indications, e.g the brake marks, blood on road and the front part of the kudu, as well as the car of the driver. There were other people at the scene. Const Jackson testified that he spoke to the driver of the particular vehicle, who said that he suddenly just hit the kudu which was on the road and at pointed out the point of impact. The driver did not tell him anything else.

[16] Most of the evidence of Sgt Beukes, in certain aspects supported by that of Const Jackson, are unchallenged. The Court has to consider the evidence before it can consider whether the maxim res ipsa loqutor is applicable and if so, whether an inference of negligence can be drawn from what occurred that evening. The undisputed evidence are:

a) it was dark;

b) the weather was good;

c) visibility was good and there were no obstruction on the sides of the road;

d) it is a straight road in a rural area between Rehoboth and Windhoek with a game protecting fence on the left side and the ordinary fence on the right side;

e) on the road are warning signs for kudus, in particular one which the driver must have passed approximately 10km from the scene of the accident;

f) except for where the rear part of the kudu was found the other points indicated on the photos, namely where the brake marks of the vehicle started, the point of impact, where the front part of the kudu was found, where the vehicle came to a standstill and the distances provided on the photo plan between the different points, measured by Sgt Beukes, were undisputed.

[17] Mr Ueitele submitted that the two requisites for the applicability of res ipsa loquitor are not present; consequently, the maxim res ipsa loqutor cannot be applied to the circumstances of this matter. I disagree that these requisites had not been proved by the plaintiff. The driver of the vehicle had control of the vehicle. The question is not, as submitted by Mr Ueitele, that he did not have control of the kudu. He had control of his vehicle and that requisite has been proved and not denied.

[18] It is my view that the maxim res ipsa loquitor applies in this case and an inference of negligence can be drawn from the evidence. The defendant has to provide an explanation why the driver was not negligent. Its insured, the driver of the motor vehicle, can all probability be called to provide an explanation. In any event, it is up to the defendant to decide what should be done in this regard. Liability will only be determined at the end of the case.

[19] In the result, the application by the defendant for absolution from the instance is dismissed.

___________

MULLER, J

ON BEHALF OF THE PLINATIFF: MR W. H. PFFEIFER

INSTRUCTED BY: BEHRENS & PFEIFER

ON BEHALF OF THE DEFENDANT: MR S. F. I. UEITELE

INSTRUCTED BY: UEITELE & HANS LEGAL PRACTITIONERS