Elvis v Road Accident Fund (HCAA07/2018) [2019] ZALMPPHC 4 (6 February 2019)

Elvis v Road Accident Fund (HCAA07/2018) [2019] ZALMPPHC 4 (6 February 2019)

The appeal succeeded because the court a quo erred in its approach to the evidence. The appellant's version was corroborated by an independent witness, whose credibility was unimpeached. The insured driver's prior consistent statement was inadmissible as corroboration, and the accident report was not properly proved. The probabilities and reliability of the witnesses favoured the appellant's version, establishing that the insured driver acted recklessly by making a U-turn in the face of the motorcycle. The appellant did not contribute to the occurrence of the collision, and the respondent is liable for 100% of the proven damages.

Citation
[2019] ZALMPPHC 4
Parties
Appellant: Tshivhase Nkhanyeleni Elvis; Respondent: Road Accident Fund
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
6 February 2019
Case Number
HCAA07/2018
Procedural Posture
Civil Appeal / Appeal From Single Judge Decision; Leave Granted
Outcome
Appeal upheld; order of court a quo set aside and substituted.
Judges
E M Makgoba, M G Phatudi, G C Muller
Legal Topics
Motor Vehicle Collision, Apportionment of Liability, Negligence, Evidence Corroboration
Delict Civil Procedure Motor Vehicle Collision Apportionment of Liability Negligence Evidence Corroboration

Case Brief

Summary, issues, holding and outcome

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Parties

Tshivhase Nkhanyeleni Elvis

Appellant

Road Accident Fund

Respondent

Procedural Posture

Civil Appeal / Appeal From Single Judge Decision; Leave Granted

Legal Issues

  1. 1 Whether the court a quo erred in apportioning 90% of liability to the appellant and only 10% to the respondent.
  2. 2 Whether the evidence of the appellant and his witness was properly considered.
  3. 3 Whether the prior consistent statement of the insured driver could be used as corroboration.

Ratio Decidendi

The appeal succeeded because the court a quo erred in its approach to the evidence. The appellant's version was corroborated by an independent witness, whose credibility was unimpeached. The insured driver's prior consistent statement was inadmissible as corroboration, and the accident report was not properly proved. The probabilities and reliability of the witnesses favoured the appellant's version, establishing that the insured driver acted recklessly by making a U-turn in the face of the motorcycle. The appellant did not contribute to the occurrence of the collision, and the respondent is liable for 100% of the proven damages.

Court Disposition

Appeal upheld; order of court a quo set aside and substituted.

Orders

  • The appeal is upheld with costs.
  • The order of the court a quo is set aside and substituted with: Judgment is granted in favour of the plaintiff and the defendant is liable to compensate the plaintiff 100% of his proven or agreed damages arising from the motor collision that occurred on 14 September 2013 at Louis Trichardt / Thohoyandou road.