- June 5, 2023
- |Concise Law Reports (CLR), Delict
A collision occurred between the plaintiff and the defendant’s motor vehicles. Both the plaintiff and the defendant were driving in the same direction when the plaintiff decided to overtake the defendant and in the process, their vehicles collided. Each party claimed that the other was at fault, but there was no counterclaim.
The plaintiff alleged that the collision was caused solely by the defendant’s negligent driving and sought payment in the amount of N$ 60 034.89 (consisting of N$ 1 900 for towing fees; N$ 59 034.89 for damages occasioned to the vehicle). In claim 2, the plaintiff sought payment of an amount of N$ 18 500.00 for the mahangu crusher that was allegedly being conveyed in her vehicle and was allegedly damaged beyond economic repair as a result of the collision.
In his plea, the defendant denied liability for the collision and maintained that he was driving on the correct side of the road and kept a proper lookout for other vehicles on the road. He pleaded that he did not indicate because he did not have the intention of doing anything that required indicating, such as changing lanes, pulling over, overtaking, or stopping. In addition, the defendant pled that he was driving straight until the plaintiff lost control of her vehicle and collided with the defendant’s vehicle. Furthermore, he pleaded that he never veered into the opposite lane.
MUNSU J set out to determine which of the parties was negligent and therefore responsible for the collision, and to determine if both the plaintiff and the defendant were contributory negligent, and if so, what percentage of their negligence contributed to the collision.’
‘[7] …The parties agreed that there was no need to prove the damages sustained by the plaintiff. The defendant did not file a counterclaim. The effect of the parties’ agreement on damages was that the court would grant damages as claimed if the court finds that the defendant was at fault. If, on the other hand, the court determines that the plaintiff was at fault for the collision, then it will be the end of the matter.’
In assessing this issue, Munsu J stated that:
‘[20] The plaintiff bears the onus of proving that the defendant was negligent, that is, a reasonable person in the position of the defendant could have reasonably foreseen the ensuing harm and the reasonable person would have taken reasonable steps to prevent harm from occurring. In Motor Vehicle Accident Fund of Namibia v Lukatezi Kulubone Case No SA 13/2008 (at para16 – 17) delivered on 09 February 2009, the Supreme Court found that even where there is no counterclaim, but each party alleges negligence on the part of the other, each party must prove what it alleges.
Disparate versions
[21] It is common cause that there are different and mutually destructive versions before the court. In Von Wielligh v Shaumbwako ( I 2499/2014) [2015] NAHCMD 168 (22 July 2015) at 16, Ueitele J outlined the approach to be adopted by the courts, when faced with two different versions, as follows:
‘The plaintiff can only succeed if he satisfies the court on a preponderance of probabilities that his version is true and accurate and therefore acceptable and that the other version advanced by the defendant is therefore false or mistaken and falls to be rejected. In deciding whether that evidence is true or not the Court will weigh up and test the plaintiff’s allegations against the general probabilities. The estimate of the credibility of a witness will therefore be inextricably bound up with the consideration of the probabilities of the case and, if the balance of probabilities favours the plaintiff then the Court will accept his version as being probably true.’
[22] Thus, the plaintiff can only succeed if she satisfies the court that her version is probable, accurate, and hence acceptable and that the defendant’s version is therefore false and fails to be rejected.
MUNSU J then proceeded to analyse the evidence and findings of facts and concluded that:
‘[44] The question that now needs to be answered is whether the plaintiff proved her case on a balance of probabilities. From the plaintiff’s case, it was not clear how the collision took place. The plaintiff’s case first appeared to be a simple one in which the defendant veered into her vehicle as she was overtaking, but as the trial went on, the plaintiff’s case grew murkier. Under the circumstances, there is no basis on the facts, for the court to reject the defendant’s version as false.
On the issue of costs, that:
[45] At all material times relevant to the claim, the defendant was not a holder of a driver’s licence. According to him, it is the reason he did not file a counterclaim. He had passengers in the vehicle as he drove down the highway. For starters, the defendant should not have been on the road. He acknowledged breaking the law on that fateful day. Although he was successful in defending the plaintiff’s claim, the court is not inclined to grant him his costs.
It was thus held that:
a) The plaintiff bears the onus of proving that the defendant was negligent.
b) The plaintiff could only succeed if she satisfied the court on a preponderance of probabilities that her version was true and accurate and therefore acceptable, and that the version advanced by the defendant was false or mistaken and fell to be rejected.
c) Held further that, the plaintiff’s claim that the defendant intended to turn right but failed to indicate his intention to do so could not be sustained in light of the objective facts, firstly, there was no turn to the right, and secondly, he had no intention to turn to the right. In any event, the plaintiff did not adequately plead her assertion.
d) The plaintiff’s case changed as the matter progressed. It started with a claim that the defendant veered into the overtaking lane as the plaintiff was overtaking, colliding with the plaintiff’s vehicle and that the collision is what made the plaintiff’s vehicle swerve to the right shoulder of the road. The version then changed, and it was now claimed that when the defendant veered into the plaintiff’s lane, the latter tried to avoid a collision and steered her vehicle to the right.
e) Held further, that despite the plaintiff initially claiming that the defendant’s vehicle bumped into her vehicle, she later on changed to say that she could not tell whether it is her vehicle that bumped the defendant’s vehicle or the other way round. The testimony of the plaintiff’s witness was more of speculation and did not further the plaintiff’s case.
f) Held further that, none of the parties presented any expert evidence that could assist the court in determining which of the parties bumped the other.
g) the defendant, on the other hand, presented a consistent case from the stage of pleadings until the evidence at trial. His case was straightforward in that he drove in the correct lane when the plaintiff attempted to overtake him but failed because she veered into his lane, colliding with his vehicle.
h) Held further that, the defendant was steadfast in his version of events and did not contradict himself even under cross-examination. The defendant’s witness also corroborated the defendant’s version that the plaintiff had not cleared the defendant’s vehicle when she steered towards the left lane thereby colliding with the defendant’s vehicle.
i) From the plaintiff’s case, it was not clear how the collision occurred.
j) Held further, that under the circumstances, there was no basis on the facts, for the court to reject the defendant’s version as false.
As a result, the plaintiff’s claim was dismissed with no costs.