Court name
High Court Main Division
Case name
Kambwale v PG Glass Namibia (Pty) Ltd and Another
Media neutral citation
[2013] NAHCMD 161
Judge
Smuts J





IN THE HIGH COURT OF NAMIBIA







NOT REPORTABLE








REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA MAIN
DIVISION, WINDHOEK








JUDGEMENT



Case no: I 1185/2011



In the matter between:








LEONARD KAMBWALE
...........................................................................PLAINTIFF








and








PG GLASS NAMIBIA (PTY) LTD
....................................................1st
DEFENDANT



DELBERT WESLEY GROBLER
....................................................2nd
DEFENDANT








Neutral citation: Kambwale v
PG Glass Namibia (Pty) Ltd & Another (I 1185/2011) [2013] NAHCMD
161 (12 June 2013)








Coram: SMUTS, J



Heard: 3 June 2013



Delivered: 12 June 2013








Flynote:










ORDER





That the plaintiff’s claim is
dismissed with costs.










JUDGMENT










SMUTS, J [1] In this motor
vehicle collision damages action, the defendants conceded the merits
at the outset of the trial. Mr Erasmus, who appeared for them, stated
that the defendants only placed in issue the plaintiff’s
quantum of damages.








[2] The plaintiff claimed damages in
the sum of N$65 000 in respect of the damage he had sustained as a
result of his Mazda pick-up having been in a collision with the first
defendant’s motor vehicle driven by the second defendant,
acting within the course and scope of his employment with the first
defendant.








[3] The plaintiff, represented by Mr
Elago, only called an expert witness, Mr T. Amwaama, to prove the
extent of the plaintiff’s damages. Mr Amwaama testified that he
is an estimator in the services of Salina Panel Beating and Body
Repairs situated on the Ondangwa/Ogwediva road in northern Namibia.
He further testified that he has more than seven years of experience
in assessing damages to motor vehicles involved in collisions,
including extensive experience in assessing and inspecting motor
vehicle damage and also in assessing whether it would be economical
to repair vehicles and assessing the extent of damage to vehicles and
quantifying it. He also testified that he well acquainted with and
experienced in assessing the value of second hand motor vehicles and
their replacement value.








[4] Mr Amwaama gave evidence that he
had inspected the plaintiff’s motor vehicle and handed in
photographs taken which depicted the damage to it. He said that it
was a 1989 Mazda pick-up model. Due to the extensive damage to the
chassis, he had concluded it would not be economically feasible or
viable to repair the vehicle. He then determined the book value of
the motor vehicle with reference to the accepted and established
method of doing so within motor industry by making use of a book used
within the trade which sets out the values of motor vehicles with
reference to their model and year of registration. The book also sets
out in tabular form the new list price for each vehicle and then
provides a trade and retail value for each vehicle.








[5] Mr Amwaama testified that the
retail value of the plaintiff’s motor vehicle was N$12 900 with
reference to the tables set out in the book containing such values.
He however indicated in his assessment that the actual value of the
motor vehicle was N$95 000 because the motor vehicle had a number of
extras which had been fitted onto it. These included a front bull bar
which he said would cost N$5 500 to manufacture and fit. He further
stated that this were running boards fitted to the vehicle which
would cost N$8 000 to manufacture and fit. He also stated that there
was a roll bar in the loading box which had a cost of N$4 500 to fit.
He also stated that the plaintiff’s pick-up had a full tow bar
fitted on to it which would cost N$6 000 to manufacture and fit on to
the vehicle. He also stated that the tyres on the vehicle were not
the standard tyres and rims provided on the vehicle at its purchase.
He estimated that the cost of the tyres was N$6 000 and that the rims
would cost N$5 000. He also stated that all of the amounts which he
provided in respect of the extras excluded value-added tax. He then
arrived at the value of the motor vehicle of N$95 000 by adding the
extras to the book value. He further gave evidence as the value of
the wreck, stating that it was approximately N$30 000 in value and
that the plaintiff’s total damages amounted to N$65 000.








[6] In cross-examination, Mr Erasmus
put it to him that the generally accepted value of a used motor
vehicle is determined by taking the average of the trade and retail
values set out in the publication he relied upon. Mr Amwaama
initially accepted this. He further accepted that he had initially
stated that the vehicle was a 1990 model but subsequently referred to
it as 1989 model because, according to the book he relied upon, the
vehicle had not been brought out in 1990. He also testified that he
had not taken the odometer reading even though this should have been
done to assess the quantum of damages respect of the vehicle. He also
accepted that the new list price of the plaintiff’s motor
vehicle in 1989 was N$29 570. He also accepted that the value he had
stated in respect of the extras reflected the current purchase price
for such items even though the items on the plaintiff’s pick-up
truck had been of a second hand or used nature as they had been
utilised on the vehicle for some time. He also accepted that the bull
bar would be capable of being repaired as would certain of the other
extras. He was not sure whether the plaintiff had kept the wreck as
he had made his assessment at the police station sometime after the
motor vehicle collision. Although he said that the tyres on the
vehicle were not standard for the make in question, he was not able
to say what type of tyres were originally fitted to the vehicle. He
denied that the roll bar in the loading box was standard with the
vehicle. He also stated that it had been affected by the collision
but that it could be repaired.








[7] In an answer to a question put by
the court, Mr Amwaama stated that he was not in a position to state
that, if the vehicle had been auctioned shortly before the collision,
it would fetch a sum in the vicinity of N$95 000. He was unable to
state that that would reasonably occur.








[8] After Mr Amwaama had testified, Mr
Elago closed the case for the plaintiff. Mr Erasmus closed the
defendants’ case without calling any witness. Mr Elago
submitted that the plaintiff had established a damage as claimed in
the sum of N$65 000 as representing the fair and reasonable value of
the vehicle less the value of the wreck. He submitted that this
figure was justified by virtue of the number of extras which had been
fitted to the vehicle.








[9] Mr Erasmus on the other hand
submitted that the plaintiff had not discharged the onus upon him to
establish the damages in the amount in question. He further submitted
that the summary provided by the plaintiff did not meet the standard
required by rule 36 (9)(b). This was because there were no reasons
contained in the opinion and no breakdown in respect of the amounts
arrived at. In this regard he referred to Coopers (South Africa)
(Pty) Ltd v Deutsche Gesellschaft Fur Schadlingsbekampfumg MBH.
1
This leading authority on expert summaries makes it plain that the
main purpose of a summary in terms of rule 30(9)(b) is to “require
the party intending to call a witness to give expert evidence to give
the other party such information about his evidence as will remove
the element of surprise”. . . 2
The summary should not merely be “a bald statement of (the
experts’) opinion” but rather “a reasoned
conclusion based upon certain facts or data. . .” and a “proper
evaluation of the opinion can only be undertaken if the process of
reasoning which led to the conclusion, including the premises from
which the reasoning proceeds, are disclosed by the expert”.3
I asked Mr Erasmus why there had not been an objection raised to the
summary in case management and only on the morning of the trial. I
did not understand him to object to the calling of the witness but
rather to point out a lack of compliance with rule 36(a)(b). As there
was not an objection to calling the witness, I permitted his evidence
to proceed even though the summary fell short of what I would
consider should be contained in an expert summary based upon the
above sound authority. In view of the conclusion I reach on the
evidence of Mr Amwaama, nothing further turns on this issue, save to
point out that objections to expert summaries – and to the
calling of the identified witness – should preferably be raised
in the course of case management.








[10] Mr Erasmus further stated that
the defendant accepted that the evidence established a value of the
motor vehicle in the sum of N$11 175 in accordance with the manner in
which values are determined in the motor vehicle industry, by taking
the average between the wholesale and retail values. He submitted
that the value of N$95 000 was entirely untenable and had not been
established by the plaintiff. He argued that it did not have any
regard to the market place which is the benchmark for determining
values of a vehicle written off. He further submitted that the value
of the wreck, estimated by Mr Amwaama to be in the sum of N$30 000
exceeded the book value accepted within the industry by a
considerable margin.








[11] Mr Erasmus submitted that the
plaintiff had not established his damages and that the dismissal of
his claim should result. He conceded that this outcome would be
unfair to the plaintiff in view of the fact that he had sustained
damage but, so he submitted, it was incumbent upon a plaintiff to
establish his damages with reference to admissible evidence and that
the plaintiff had not succeeded in doing so.








[12] In reply, Mr Elago submitted that
the book value accepted within the motor vehicle industry did not
include extras fitted to motor vehicles and that this should be taken
into account in assessing the overall value of a vehicle.








[13] If is of course incumbent upon
plaintiffs in delictual claims for damages to establish the extent of
their damages. The onus is upon them to do so on a balance of
probabilities.








[14] It would appear to me that the
plaintiff has in this matter been unable to establish his damages in
the sum of N$65 000 as claimed and has failed to establish that this
sum reflected the fair and reasonable value of the vehicle at the
time less the value for the wreck. This sum was arrived at by taking
the value of N$95 000 and subtracting the assessed value of the
wreck. But the evidence of Mr Amwaama did not support either
component of this calculation. In respect of the figure of N$95 000,
he referred to a book value of N$12 900 to which the value of extras
was to be added. Quite apart from the issue that the value was for
the extras was in my view incorrectly assessed upon the current cost
as new items and not with reference to their value as second hand
items and not taking into account the wear and tear (and the value of
the fitted tyres), the total amount of the extras he provided for
came to N$35 000 excluding VAT. When added to N$12 900, this fell
dismally short of the value of N$95 000. Mr Amwaama’s evidence
that the value of the wreck was in the sum of N$30 000. This exceeded
the accepted book value of the vehicle of N$11 175 by almost three
times. This was also not properly explained. It would seem to me that
the plaintiff has not even established damages in the sum of the book
value, given the evidence that the value of the wreck may exceeded
it. Nor has the plaintiff established damages in any other sum.








[15] Whilst it is clear that the
plaintiff has suffered damage as a consequence of the motor vehicle
collision by reason of the fact that his vehicle had been damaged
beyond economical repair, the plaintiff has however not discharged
the onus of establishing the extent of his damages upon the evidence
before me. The plaintiff must accordingly fail in his action. The
order I therefore make is: The plaintiff’s claim is dismissed
with costs.























______________



SMUTS, J



Judge













APPEARANCES








PLAINTIFF: S. Elago



Tjombe-Elago Law Firm








DEFENDANTS: F. Erasmus



Francois Erasmus & Partners



















11976(3)
SA 352 (A).





2Supra
at 371D.





3Supra
at 371 G-H.