The High Court in Pretoria has ordered MiWay Insurance to pay for the repairs to a vehicle after finding that the evidence provided by the insured’s expert witness was more credible than the evidence tendered by the insurer’s expert.
Acting Judge Johanna Leso was particularly critical of the insurer’s expert for not consulting the driver of the vehicle, but relying solely on the objective, physical evidence available.
Both MiWay and the plaintiff, Khayelihle Mthethwa, called on accident reconstruction experts to testify on their behalf. Both experts visited the scene long after the accident.
Mthethwa’s Mercedes-Benz A-Class A45 AMG 4Matic was damaged in an accident that occurred at about 5.30am on 26 December 2016 in Virginia, Durban North.
MiWay rejected Mthethwa’s claim, alleging he provided dishonest information about his speed at the time of the accident and the circumstances surrounding it. It argued that Mthethwa did not exercise reasonable care or precaution to prevent the accident, claiming he was driving at excessive speed.
Mthethwa denied exceeding the speed limit and contended that he braked when he swerved in an attempt to avoid hitting a dog.
Mthethwa said he was driving at between 45km/h and 50km/h in a traffic circle when he saw the dog entering his path of travel from the right. He swerved the vehicle to the left to avoid hitting the dog, then swerved to the right to try to correct his steering. He avoided hitting the dog, but the front left tyre impacted the curb, the airbags deployed, and he lost control of his vehicle, which collided with a wall.
It was common cause that the damage to Mthethwa’s vehicle was consistent with the vehicle hitting the wall at between 50km/h and 60km/h.
There was no evidence to confirm or disprove the dog’s presence at the scene.
The method of calculating Mthethwa’s initial speed was not disputed, but the variables used in the calculations were a key issue of dispute between the parties. These variables were the speed at which the vehicle impacted the wall, the amount of deceleration (braking), and the distance over which the deceleration was applied.
The evidence of Craig Proctor-Parker, the accident reconstruction expert who testified for Mthethwa, indicated that the accident was caused by a sudden distraction rather than excessive speed or negligence.
But the evidence of MiWay’s expert, Walter Pretorius, suggested otherwise. His analysis of the trajectory and final resting position of the vehicle indicated that the patterns of movement and the collision impact were consistent with high-speed driving rather than controlled steering.
Incorrect assumptions
Acting Judge Leso found Mthethwa’s version to be probable even though the expert witnesses could not confirm the existence of the dog on the day in question.
She accepted that the accident was not caused by the speed at which Mthethwa had been driving but by a distraction that caused him to oversteer and hit the wall.
The court found that Pretorius’s report was based on incorrect speculations or assumptions, while accepting Proctor-Parker’s evidence as a more credible reconstruction of the accident.
Leso AJ said Pretorius’s report and evidence was based on “contradicting assumptions”. Although he denied Mthethwa’s version of the dog, he commented that if there had been a dog, no swerving occurred and 100% braking was applied, and the dead dog would have been a further piece of objective physical evidence. It was “absurd if not improbable” for Pretorius to assert that he expected to have found a dead dog several months after the accident, the judge said.
She said Pretorius should have explored various scenarios, such as how the presence of a dog could alter the timeline, affect witness accounts, or influence the behaviour of the driver. “By accounting for these possibilities, the report would provide a more comprehensive analysis and avoid relying on assumptions that may not reflect reality.”
According to the judgment, several concessions made by Pretorius – such as agreeing with certain aspects of Proctor-Parker’s findings on speed and trajectory – undermined his findings.
Plaintiff’s version not considered
Leso AJ also criticised Pretorius for not considering Mthethwa’s version of events.
The process of reconstructing the accident in the most likely manner in which it occurred cannot be complete without the plaintiff’s version of how the accident occurred, particularly where the process of reconstruction is done after a considerable period has lapsed.
Leso AJ said there was no explanation for why the defence did not obtain information from Mthethwa and the pedestrian who was at the scene on the day of the accident.
“The insurer’s expert should have made efforts to gather as much evidence as possible to establish the factual evidence even though his analysis is based on assumption. It was necessary to consult with the plaintiff, as the expert who testified on behalf of Mthethwa did. This exercise was necessary because [the] very nature of what the experts do requires them to make certain assumptions, and wherever possible those assumptions should be tied to the factual and physical evidence provided.
“It is nonsensical that the defence expert will totally reject the plaintiff’s version and insist that his assumptions are correct, while it is common there was no evidence to confirm or disprove the existence of a dog at the scene of the crime. There was no basis for his rejection of the driver’s version that the driver did not apply brakes,” Leso AJ said.
She said Proctor-Parker also made certain concessions under cross-examination; however, the concessions were consistent with the conclusions in his report.
He correctly considered the physical evidence and consulted with Mthethwa to determine the factual evidence because no further physical evidence was available. He did not make assumptions that lacked foundation, Leso AJ said.
The court found MiWay to be liable for Mthethwa’s proven or agreed damages, including the retail value of the vehicle, less the excess, plus the interest on the aforesaid from 26 December 2016; the credit shortfall, storage, and towing charges per the policy, plus interest on the aforesaid and finance charges on the loan to the date of the payment; and the additional interest Mthethwa incurred as a result of MiWay repudiation of the claim. The amount to be paid on the aforesaid and the interest and additional interest will be determined at the quantum stage of the trial.
