Khutlang v Lesotho National Insurance Company (Pty) Ltd (CIV/T 577 of 84) [1988] LSCA 161 (28 October 1988)

CIV/T/577/84 IN THE HIGH COURT OF LESOTHO In the matter of : APHOKA KHUTLANG Plaintiff V LESOTHO NATIONAL INSURANCE COMPANY (Pty) Ltd, Defendant J U D G M E NT Delivered by the Hon. Mr. Justice B. K. Molai on the 28th day of October, 1988. This is an action in which plaintiff herein, duly assisted by her husband Benedict Khutlang, claims against the defendant, payment of M16,132.50 as damages, interest at the rate of 11% per annum a tempore morae, costs of suit, further and/or alternative relief. The action is opposed by the defendant company which has duly filed its plea to plaintiff's declaration to the summons. It emerges from both the pleadings and the evidence that plaintiff is an employee of Mohlomi hospital on the outskirts of Maseru Township. The defendant is an authorised insurer in terms of the motor vehicle Insurance Order 1972. On 19th January, 1984 plaintiff and her married daughter, Cecilia, proceeded from their home village at Lithabaneng for Maseru Township where they were to consult a medical doctor. At about 9.15 a.m. on the same day they and other people were waiting at a bus stop next to Thoahlane's shop along the Maseru/Mafeteng public road where they intended embarking taxis going /down -2- down town. According to their evidence Plaintiff and Cecilia were standing off the tarred surface, on the left side, of the road as one travels in the direction towards the Maseru Township when they noticed a van with regis- tration Number A.0649 travelling towards the town, As it approached them the van was travelling in a high speed and zig-zag fashion. Although she was surprised at the hazardous manner in which it was being driven Plaintiff waived for the van to stop so that she and Cecilia could travel in it to Town. Motseko Mokheseng testified on behalf of the defendant company and told the court that he was the owner of the van A.0649 which was duly insured with the defendant company. On the day in question he was tra- velling in the van along the Maseru/Mafeteng public road. He was in the company of one Phillimon Lebenya who was sitting on the passenger's seat. As they approached the bus stop next to Thoahlane's shop at Lithabaneng the van was travelling at the speed of about 50 km an hour and straight on its correct lane of the road i.e. the left side lane of the road as one goes towards the Maseru Township. Motseko and Phillimon denied, therefore, the testimony of both Plaintiff and Cecilia that as it approached the bus stop next to Thoahlane's shop the van was travelling in a high speed and zig-zag fashion. If it were true that the van was being driven in as hazardous a manner as Plaintiff and Cecilia want this Court to believe, I must say I find it difficult to apprehend how Plaintiff would have waived for it to stop so that she and Cecilia could travel in it to town. Moreover, in her own words, Plaintiff and Cecilia were waiting for taxis at the bus stop. It seems to me unlikely therefore, that Plaintiff would have waived for vehicle , A.0649 to stop for this was clearly a van and not a taxi. In my view, a natural reaction for Plaintiff if the van were travelling in the manner she wants this court to believe would have been to move away from the road and /let - 3- let the van pass without her, I am inclined, therefore, to accept as the truth the story of Mokheseng that as it approached the bus stop next to Thoahlane's shop his van was travelling at the speed of about 50 km an hour and straight on the left lane of the road as one goes in the direction towards Maseru and reject as false plaintiff's version that it was travelling in a high speed and zig-zag fashion. Be that as it may, it is common cause that on that morning of 19th January, 1984 plaintiff was knocked down by the van A, 0649 next to the bus stop at Lithabaneng. It is also common cause that although the Maseru/Mafeteng road is ordinarily a very busy road it was not busy on that morning. In fact as the van A. 0649 approached the bus stop only one vehicle passed in the opposite direction. According to Mokheseng as he approached Thoahlane's shop he noticed that there were a group of women waiting at the bus stop. A number of people was also walking on the right side of the road. After passing that other vehicle which was going in the opposite direction he noticed a little child of about 2 years old suddenly running across the road. It was running from amongst the people who were walking on the right side of the road and going towards the group of women waiting at the bus stop on the left side of the road. He immediately applied the brakes and his van came to a halt. However, realising that the little child was going to. bump against the body of the van, Mokheseng released the brakes and moved the vehicle forward so as to avoid the child. As he successfully did so, he heard a sound of something hitting his van and noticed a woman lying on the bonnet of the van. He applied the brakes at once and as he did so, the woman dropped down in front of the van. He could not have swerved more to the left for fear of killing the women he had seen waiting at the bus stop and so the collision occurred on the tarred surface of the road. /In as - 4- In as far as it is material, the evidence of Mokheseng is corroborated by that of Phillimon who told the court that whilst Mokheseng was busy struggling with the van so that the child might not bump against its body he noticed the plaintiff suddenly running into the road. As he drew the attention of Mokheseng to what she was doing plaintiff was hit by the van. Mokheseng further told the court that after she had dropped in front of the van, he went to speak to plaintiff who explained that she thought he was going to kill a, child of her daughter. He did not remove his van from the road and it remained in the same position until the traffic police had arrived. Plaintiff had to be rushed to the hospital in another vehicle. He also held the little child until the arrival of the police. He. was the one who showed the point of impact to the traffic police. The evidence of Tpr Khutlang who testified as P. W.6 in this case was to the effect that he was plaintiff's son. He joined the police force in 1985 so that in 1984 he was not yet a police officer, On the day in question he was in a cafe next to the bus stop at Lithabaneng when he heard the sound of a collision. He went out of the cafe and notice that a van had knocked down a person on the road. When he went to the scene of accident Tpr Khutlang found that the person who had been knocked down by the van with registration number A, 0649 was the plaintiff, his own mother. She was lying on the tarred surface of the road in front of that van. He noticed that plaintiff was bleeding from the head and the windscreen of the van was broken. He assisted in conveying plaintiff to the hospital from where he went to report at the police station. He was, however, not present when the traffic police officers came to the 3cene of accident and the point of impact shown to them. According to him at the time he was at the spot where plaintiff had been knocked down by the vehicle Tpr. Khutlang noticed his little nephew, who was /the child -5- the child of Cecilia, next to the cafe about 50 yards away from the scene of accident. He did not, however, know when and how the child had come there. Sergeant Mathaba testified as P. W.5 and told the court that on the day in question he received a report following which he proceeded to a place next to Thoahlane's shop at Lithabaneng. He found the van with registration numbers A. 0649 which had allegedly collided with a pedestrian. The pedestrian was no longer there but the van was still standing on the road. The driver of the van was one Mokheseng who showed him the point of impact and explained that the accident had occurred as he was trying to avoid a little child who was running across the road and the pedestrian ran into the road. On inspecting the scene of accident he found that the road was tarred and fairly straight. There was nothing to obstruct one's, view for a distance of about 150 yards. No skidmarks could be detected either on the tarred surface of the road or on the gravel portion of the road. The weather was very clear on that day. The van itself had a broken windscreen, a dented bonnet and grill. It was standing on the tarred surface, on the left lane, of the road as one travelled in the direction towards Maseru, There was blood and broken pieces of glass on the tarred surface of the road and in front of the van which was facing straight. He accepted, therefore, the point of impact as shown by the driver, Mokheseng,. He proceeded to take measurements of the scene of accident. He made notes at the time he was taking the measurements. On the basis of those notes he compiled the accident report as per completed form L. M. P. 29 which he handed in as exhibit "A" and part of his evidence. The evidence of both plaintiff and her daughter, Cecilia, as to how this accident had occurred was slightly different. Although she initially denied that at any time, the child of her daughter, Cecilia, was in the vicinity of the scene of accident plaintiff later conceded that as she waited at the bus stop she did see /the child - 6- the child on the other side of the road. Indeed, Cecilia confirmed that before the accident occurred she had seen her 2½ years old child on the other side of the road coming towards the place where she and plaintiff were waiting. She and plaintiff denied, however, that at any time the child ran across the road as described by Mokheseng and Phillioon, According to plaintiff and Cecilia in its zig-zag movement the van was going out of, and back into, the tarred surface of the road. The last time it went out of the tarred surface of the road the van knocked down the plaintiff who was just standing on the gravel portion off the tarred surface of the road. I have already found that it is not correct that the van was travelling in a zig-zag fashion on the road. After all if it were true that the van had careered out of the tarred surface of the road and, as it did so, knocked down the plaintiff who was standing on the gravel, it seems to me, she would have fallen outside and not inside the tarred surface of the road. Again, if the van first went out of the road and on its return into the road hit the plaintiff who dropped in front of it the van would have stopped facing more or less across and not straight in the road. The fact that after knocking down the plaintiff who dropped in front of it the van was found facing straight ahead on the road leaves no doubt in my mind that at the time of the collision the van was travelling straight on the road. That being so, the question that immediately arises is how did it come about that plaintiff was knocked down by the van on the tarred surface of the road. In my view the evidence of both Mokheseng and Phillimon that at the time this accident happened plaintiff suddently ran into the road to rescue the little child who was running across the road is a sensible explanation. Although plaintiff and Cecilia denied that the little child was any where in the road and plaintiff did not suddenly run into the road to rescue it., I am not /convinced - 7- convinced that they are being honest with this court. I am prepared, therefore, to accept as the truth the story of Mokheseng and Phillimon that as the former was struggling to avoid the little child who was running across the road plaintiff suddently ran into the tarred surface of the road to rescue it and reject as false, therefore, the version of both plaintiff and Cecilia that this did not happen. Plaintiff further told the court that although she fainted a little when she was knocked down by the van she could feel it when she was being carried into the vehicle which transported her to Queen Elizabeth 11 hospital where she was admitted from 19th January, 1984 to 25th January, 1984. As a result of the accident she sustained injuries. She was unable to go to cinema and football matches. She could neither walk for long distances nor stand for a long time. She incurred medical expenses in the amount of M68.50. It is significant to note, however, that apart from annexure "B" to the reply to further particulars, a note certifying that plaintiff had paid M8.50 for her hospitalization and that the original receipt thereof was lost - no receipts of any sort were produced in support of the amount of M68.50, Indeed, it is worth mentioning that although annexure "B" purports to have been issued on 7th August, 1984 by someone in the Accounts office of the Principal Secretary for the Ministry of Health, it is not written on a paper bearing the letter heads of the Ministry of Health. It is written on a leaflet from "Dreyer Printers and Publishers" of Bloemfontein. I am not convinced that satisfactory evidence has been adduced as proof that plaintiff had incurred medical expenses to the tune of M68.50 in this case. In any event, Dr. Siddique testified, as P. W.2, that he was the Specialist who attended to plaintiff at Queen Elizabeth 11 hospital. His finding were that /apart - 8- apart from the fracture of her (R) humerus plaintiff had sustained only minor injuries viz. laceration on the forehead and an abrasion on the left leg. In the opinion of Dr. Siddique the injuries would neither disable plaintiff in any way nor prevent her from attending football matches and cinema. I can think of no good reason why Dr. Siddique's evidence in this regard should be doubted. Considering the evidence as a whole, I am satisfied that on the morning of 19th January, 1984 the van A.0649 which was, at the time, admittedly insured with the defe- ndant company and driven collided with the plaintiff. As I see it, the salient question for the decision in this case is whether or not the accident occurred as a result of the negligent driving of Mokheseng. Plaintiff contends that it did whilst the defendant says it did not. by its owner, Tseko Mokheseng, As indicated earlier in this judgment, I have found as the truth the evidence that at the time he was approaching the bus stop next to Thoahlane's shop at Lithabaneng Mokheseng noticed a group of women standing at the bus stop which was to his left. He then saw a little child of about 2½ years old running across the road from the right to the left. He could not swerve more to the left without the risk of injuring the women at the bus stop. He, therefore, applied the brakes and brought his van to a halt. Realising that the little child was going to bump against the body of the van and injure itself he took the avoiding steps by releasing the brakes and moving the van a little forward. But as he did so plaintiff also suddenly ran into the road and was, in the process, hit by the van. Assuming the correctness of my finding in the pre- ceeding paragraph, there can be no doubt, therefore, that Mokheseng, the driver of the van A. 0.649, found himself placed between two horns. On one hand if he did not release the brakes and move the van a little forward he was bound to injure the little child who was running /across - 9- across the road. On the other hand if he released the brakes and moved the van forward to avoid injuring the child he was bound to injure the plaintiff who had suddenly run into the road. In the circumstances of this case, I am of the opinion that Mokheseng the driver of the van A. 0649 was entitled to consentrate his attention, as he did, on the little child to avoid injuring it and anticipate that plaintiff and the other women who were standing off the shoulder of the tarred surface of the road would behave reasonably like grown ups. However, by suddenly running into the road as she did, plaintiff did not behave reasonably like a grown up and she was, in my opinion, the sole cause of that accident. It has been suggested that Mokheseng did not blow the hooter of his van and failure to do so rendered him negligent in his driving. I am not pursuaded. On her own mouth plaintiff was aware of the approach of the van. There was no need, therefore, to draw her attention to its approach by hooting. By and large, I am satisfied that the question I have earlier posted viz. whether or not this accident occurred as a result of the negligent driving of Mokheseng must be answered in the negative. In my view, that alone is sufficient to dispose of this case. It would be purely academic to proceed to deal with, other issues. I would accordingly dismiss, this case with costs. B. K. MOLAI J U D GE 28th October, 1988. For Plaintiff For Defendant : Mr. Monaphathi : Mr. Molyneanx.