Larina Venter obo Arnold Klaasen v Road Accident Fund

On 3 June 1995, Arnold Klaasen, a deaf and mute man, was injured in a hit-and-run motor vehicle accident on Steenbras Road, Pineview, Grabouw. After watching a rugby match with friends, he stepped out of a gate and stood on the pavement at approximately 22:45 when a bakkie struck him. The sole eyewitness, Nigel Bosman, testified that the bakkie mounted the kerb onto the pavement at high speed, struck Klaasen, and drove away without stopping. Klaasen sustained severe head injuries including a left frontal contusion and scalp degloving injury, resulting in epilepsy, diminished mental capacity, and unemployability. He had previously been in good health and able to work. The appellant, appointed as curator ad litem, instituted a claim for damages of R1,479,570.26 against the Road Accident Fund. The trial proceeded on the merits only, with quantum to be determined later. The Road Accident Fund disputed both that a collision occurred and, alternatively, that the driver was negligent.

• Whether the plaintiff was injured in a motor vehicle collision or by some other means (assault)
• Whether the driver of the hit-and-run vehicle was negligent
• The standard of proof required to establish negligence in hit-and-run cases
• The credibility and reliability of the single eyewitness account
• Whether negligence could be inferred from the circumstances of the accident

The appeal was allowed with costs, including costs of two counsel. The order of the Full Bench was set aside and replaced with an order that: (a) The appeal is upheld with costs; (b) The defendant (Road Accident Fund) is liable for such damages as the plaintiff is able to prove arising out of the collision with a hit-and-run motor vehicle on 3 June 1995.

In hit-and-run motor vehicle accident cases, negligence on the part of the unknown driver may be inferred from the circumstances of the accident, including the location where the victim was found, the condition of the road, and visibility conditions. Where a pedestrian is struck on or near the pavement on a straight, level road with unimpeded visibility and is found lying at the edge of the road, an inference of negligence (failure to keep proper lookout or maintain proper control) can be drawn even in the absence of perfect eyewitness testimony. When evaluating eyewitness evidence given many years after an unexpected event occurring in poor conditions, courts should be cautious about expecting precision regarding estimates of speed, distance and exact positions. Material discrepancies must be distinguished from understandable variations given the passage of time and difficult observation conditions. The credibility and reliability of witnesses must be assessed in conjunction with the probabilities arising from the physical evidence and circumstances.

Mthiyane JA observed that evidence of witnesses estimating vehicle speed should be approached with caution and that courts should guard against relying on what may be mere guesswork. The court noted that it would be surprising, if not suspicious, if a witness remembered every detail of an incident that occurred ten years previously. Van Heerden JA made observations about the importance of considering all statements made by a witness at different times, particularly those made closer to the events in question, when assessing reliability. The court also commented on the unfairness of basing rejection of evidence on answers extracted through persistent cross-examination where the witness was clearly unable or unwilling to give precise estimates. Heher JA in dissent expressed the view that any court would want to assist a plaintiff who suffered such terrible injuries if it could, but emphasized that sympathy cannot override the requirement of proof on a balance of probabilities.

This case is significant in South African law for establishing principles regarding: (1) The drawing of inferences of negligence in hit-and-run motor vehicle accident cases where direct evidence is limited; (2) The approach courts should take to evaluating eyewitness testimony given many years after the event, particularly regarding estimates of speed, distance and position; (3) The application of the balance of probabilities standard in Road Accident Fund claims where the driver cannot be identified; (4) The weight to be given to circumstantial evidence (such as where the victim was found) in establishing negligence; (5) The court's willingness to assist vulnerable claimants (in this case a deaf and mute victim rendered unemployable) where the probabilities support their claim despite imperfect evidence. The case reinforces and applies the principles from Motor Vehicle Assurance Fund v Dubazane regarding inference of negligence in hit-and-run cases.