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Union National South British Insurance Company Ltd. v Haines (493/82) [1984] ZASCA 76 (26 June 1984)

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In the matter between:




CORAM: Miller, Viljoen and Nicholas, JJA
HEARD: 24 May 1984

DELIVERED: 26 June 1984

This is an appeal against the judgment of THIRION J sitting in the Durban and Coast Local Division of the Supreme



Court in an action between GLEN ROBIN HAINES and UNION NATIONAL SOUTH BRITISH INSURANCE COMPANY LIMITED ("the insurance company").
The action arose out of a collision between two motor vehicles which took place at about 4 o'clock in the morning of 27 April 1079, at a place about 13 km from Estcourt on the single highway which ran from north to south
between Ladysmith and Estcourt.
One of the vehicles was a Ford Ranchero light delivery van which was towing a caravan: it was being driven by Mr N J JONKER in the direction of Ladysmith. His wife was sitting next to him, and their two young sons were in the back.



The other vehicle, a Volkswagen Beetle, was travelling in the opposite direction, towards Estcourt. It had four occupants: DAVID BEAN, the owner; GLEN HAINES; CHESNEY EHMKE; and one MURGATROYD. They were all national sevicemen, and were en route to Durban on a week-end pass from LOHATLA ARMY BATTLE SCHOOL, which is located between Sishen and Kimberley in the Northern Cape.
The Volkswagen attempted to overtake a vehicle
travelling ahead of it in the same direction. The moment was
inopportune because JONKER's Ford was on the point of passing.
The Volkswagen and the Ford collided on JONKER's correct side
of the road. After the collision the Ford was standing on the
western half of the road with the caravan behind it. The Volks

4 wagen was standing off the road to the west, about 4 meters away from the Ford.
As a result of the accident, HAINES sustained serious physical injuries, as did BEAN and EHMKE. HAINES instituted the present action against the insurance company, which was the statutory insurer of the Volkswagen, alleging that he was a passenger in the vehicle and that the collision was caused by the negligent driving of the driver. In its plea the insurance company admitted that the driver was negligent, but alleged that it was HAINES who was the driver.
The only issue on the merits was accordingly the identity of the driver of the Volkswagen. If it was HAINES, he could not recover damages. If it was one of the


5 other. Occupants of the car, he was entitled to succeed.

THIRION J found that the driver of the Volkswagen was probably BEAN and granted judgment for R15 000,00 in HAINES's favour. The insurance company now appeals, and HAINES cross-appeals on the quantum of damages.
There was no direct evidence as to who was driving the Volkswagen at the time of the collision. HAINES said that he had no recollection of anything that occurred from the time they left LOHATLA until he found himself in the recovery room at Wentworth Hospital, Durban, about 5 weeks later. He had a post-traumatic retrograde amnesia covering the whole of the period. Both BEAN and EHMKE, who gave evidence on behalf of the insurance company, said that they



were asleep at the time of the accident. BEAN's first post-accident recollection was waking up in a very confused state in the back of a Mercedes Benz motor car. EHMKE regained consciousness in Wentworth Hospital. MURGATROYD had died before the trial.

JONKER went to the Volkswagen immediately after the collision. He saw the four occupants, each in his own seat and slumped forward, but he did not describe any of them.
In these circumstances, the identity of the driver could only be ascertained by inference. Relevant evidence was given by Mrs JONKER, who was called as a witness on be-half of HAINES, and by BEAN.



Mrs JONKER said that after the collision, the,car which had been travelling ahead of the Volkswagen (a Mercedes Benz) came back to the scene. It made a U-turn and stopped on the western side of the road with its headlights illuminating the Ford and the Volkswagen. Its occupants were two Indian men.

One of them assisted JONKER to move Mrs JONKER,
whose foot had been fractured, from the Ford to the Mercedes.

She was placed on the back seat. Mrs JONKER then heard one

of the Indians say to the other (and this was corroborated

by JONKER) that they must go and fetch the driver of the

Volkswagen. She saw them walk to the Volkswagen and pull



out a man through the door on the driver's side . This
man they brought to the Mercedes and placed on the left back
seat. It was common cause that he was BEAN.

Mrs JONKER's evidence was the subject of criticism

by defence counsel, but the learned trial judge said in this


"I have given due consideration to the criticism of Mrs Jonker's evidence but I am satisfied that I can accept as reliable the following salient facts testified to by her:

(a) That one of the Indians said that
they should go and fetch the driver
of the Volkswagen and that the two
indians immediately thereafter went to
the Volkswagen and took Bean from it;

(b) that she saw the two indians at the
right hand door of the Volkswagen

and that they took Bean out through

the right hand door;



(c) that Bean was the first person to

be removed and the only person whom she saw being removed from the Volkswagen."

BEAN said that he, EHMKE and HAINES set out from

LOHATLA at about 4.30 p.m. on 26 April 1979 at the end of a

normal working day. MURGATROYD was picked up along the road.

Before they left they made a loose arrangement to share the

driving: EHMKE would drive the first section to Bloemfontein; BEAN himself would drive the middle part; and HAINES would drive the last section into Durban.
EHMKE drove to somewhere in the vicinity of Bloemfontein. BEAN then took over and drove as far as Montrose, which is near Van Reenen's Pass. They arrived there at about 2 a.m. and took in petrol, consumed refreshments and



relieved themselves. BEAN told the others that he was tired; he had driven his share and was going to sleep. He got into the front passanger's seat. EHMKE sat behind him, and put his feet over BEAN's shoulders. BEAN protested, saying, "Hell, I'm trying to go to sleep, I don't need your smelly feet." EHMKE then removed his feet. MURGATROYD also sat at the back behind the driver's seat. HAINES got into the driver's seat, which he adjusted, and put on his seat belt. HAINES drove off. This was about 20 minutes after their arrival at Montrose. Shortly after they turned onto the main road, BEAN fell asleep.
(EHMKE confirmed the greater part of BEAN's evidence. The learned trial judge, however, considered him to be a



poor witness, and said that in the light of what EHMKE said in his statement to the police, he was unable to place any reliance on his evidence as to who was driving the Volkswagen. I shall , therefore, not refer to EHMKE's account).

BEAN said that his kit-bag, which was full of clothes, was in front of him 'in the Volkswagen and his right leg was over the top of it.
In the accident he sustained a fracture of the right patella. At the Estcourt hospital he saw that his leg was huge, "like the size of a rugby ball". At a later stage he observed a dent in the middle of the dashboard to the left of the gear lever, which he associated with his knee injury.



It is apparent that the evidence of Mrs JONKER

and BEAN covered different ground, and leads to divergent

inferences. THIRION J came to the conclusion, however, that -

"In all the circumstances and not withstanding the evidence of Bean that plaintiff was the driver when they left Montrose, I am satisfied that there is a substantial balance of probability favouring the inference that Bean was behind the steering at the time of the collision."

That conclusion was a legitimate one only if Mrs JONKER's evidence was to be preferred to that of Bean on some adequate ground, or if the two sets of evidence were reasonably capable, on the evidence, of reconciliation.
It is clear that THIRION J considered that Mrs JONKER was a reliable witness in regard to the salient facts



set out in the passage in the judgment which is quoted above.

In regard to BEAN, the learned judge said that his evidence

was of a better quality than that of EHMKE and added -

"Viewed by itself I cannot say that his evidence is untruthful although he is by no means a disinterested witness as he has a claim pending in respect of his injuries".

(It may be observed that the fact that he was not a disinterested witness cannot per se affect BEAN's credibility. It means no more than that his evidence should be scrutinized with care.) Clearly then THIRION J did not reject BEAN's evidence that HAINES was the driver when they left Montrose.

It would seem, however, that the learned judge considered that BEAN's evidence was reconcilable with that



of Mrs JONKER, for he said:

"The evidence of Bean that the plaintiff was the driver when they left Montrose is relevant to the issue of who the driver was two hours later and 100 km further when the collision occured. There is however the possibility to be taken into account that they might have stopped along the way from Montrose and might for some reason again have changed drivers.

Later in his judgment he said:

"The case really resolves itself into an enquiry whether it has been proved that Bean was removed from the driver's seat of the Volkswagen."

I do not think that the possibility of a change of drivers after leaving Montrose was more than a speculative one, without any support in the evidence.

It was suggested in argument that the fact that it

15 took them two hours to cover the distance of approximately 70 miles (or 110 km) to the place of collision, points to their having stopped along the way. The period of two hours was,however,only a very rough approximation, for none of the witnesses who gave evidence as to times appears to have looked at a watch.
In my view it was improbable that BEAN would have relieved HAINES at the wheel between Montrose and the place of the collision.
BEAN had done his stint from Bloemfontein to Montrose,
and must have been very tired - he said that he had not
slept at all since leaving LOHATLA. HAINES, on the other
hand,was probably comparatively fresh when they left Mont


rose. He had done no driving thus far. He said in his

evidence that it was his invariable practice to sleep when

given a lift in a car, and even though this was a straight

lift all the way through -

"...I still used to sleep, because you never know what might happen along the way and we might have to get out and hike the rest of the way."

So far aa appears from the evidence, there was no occasion for them to stop between Montrose and the place of the collision. They had sufficient petrol to get the car to its destination. They had taken refreshment and relieved the call of nature.
If they had stopped and BEAN had again taken over the driving, he surely must have remembered it. He said


17 in his evidence that he did not wake up after leaving Montrose. It was suggested in argument that he too might have had a retrograde amnesia. It is true that he was concussed, but there was no evidence that post-traumatic amnesia is a necessary or probable consequence of concussion, and the question was not raised at the trial.
Finally there is the coincidence of BEAN's fracture patella and the dent in the dash board. The evidence in regard to this was not disputed - although this was not BEAN's evidence, HAINES said that he remembered BEAN showing him a photograph of the dash board with a dent in the middle.
There was, therefore, no sound basis for eliminating BEAN's evidence from consideration and treating the case, as

18 the learned trial judge appears to have treated it, as if the only issue was whether it was proved that BEAN was removed from the driver's seat of the Volkswagen. In the absence of an adverse finding on BEAN's credibility, or a probability that there was a change of drivers after leaving Montrose, BEAN's evidence could not be ignored. In the light of the evidence as a whole, it cannot be said that it is more probable or natural or plausible that BEAN rather than HAINES was the driver of the Volkswagen at the time of the collision.
In my opinion the appeal should be upheld. This makes it unnecessary to consider the cross-appeal.
I would make an order upholding, the appeal with costs and dismissing the cross-appeal with costs, and alter

19 the judgment of the Court a quo to one of absolution from the instance with costs.