Lesotho National General Insurance Co. Ltd v Noko Tsolo (C of A (CIV) 38 of 2013) [2014] LSCA 16 (17 April 2014)

IN THE COURT OF APPEAL OF LESOTHO Held at Maseru C of A (CIV) NO. 38/2013 In the matter between: LESOTHO NATIONAL GENERAL INSURANCE CO. LTD. APPELLANT and: NOKO TSOLO RESPONDENT CORAM : Howie, J. A. Thring, J. A. Cleaver, A. J. A. Heard : 31 March, 2014 Delivered : 17 April, 2014 SUMMARY Collision of motor vehicle with pedestrian crossing the road – Negligence of driver – Excessive speed in the circumstances - Contributory negligence of pedestrian – Failure to keep a proper look-out – Running across road into path of approaching vehicle – Apportionment - Interest : failure to claim – Costs. JUDGMENT THRING, J. A. [1] For the sake of convenience I shall refer to the parties as they were in the court below, viz to the appellant as the defendant and to the respondent as the plaintiff. During the afternoon of 11 May 2000, in daylight and good weather, the plaintiff, then a young girl, 17 years of age, was crossing the South 1 Road at Borogwane on foot in a direction from approximately north-east to south-west when a motor vehicle, being a Toyota Hi-lux 4x4 which was travelling approximately north-west to south-east on the said road, collided with her. She sustained serious injuries as a result, which led to the amputation of her left leg. The vehicle was driven by a certain P. Ramohomana, to whom I shall refer as “the driver”. It was insured by the defendant under the Motor Vehicle Insurance Order, No. 26 of 1989, as amended. The plaintiff issued summons out of the Court a quo in 2002 against the defendant, in which she claimed damages in the sum of M150,000.00 and costs. After long and unexplained delays, the matter eventually came to trial in November, 2011. At a pre- trial conference held in terms of High Court Rule 36(3) it was agreed between the parties that the quantum of the plaintiff’s damages was the amount claimed, M150,000.00. [2] In her declaration the plaintiff alleged that the driver had been causally negligent in that he had failed to stop to avoid a collision and had failed to keep a proper look-out. The defendant denied this in its plea, and pleaded in the alternative that the plaintiff had been guilty of contributory negligence, and that her damages ought to be reduced in accordance with the provisions of the Apportionment of Damages Order, No. 53 of 1970. The defendant pleaded that the plaintiff, who had been obscured by stationary vehicles had run into the road in front of the insured vehicle. [3] At the trial before Chaka-Makhooane, J. the plaintiff was called as a witness, as was a certain detective T. Sehau, who attended at the scene after the accident and drew a rough sketch plan, which he handed in as an exhibit. The driver was called as a witness by the defendant. In its judgment the Court a quo came to the conclusion that both the plaintiff and the driver had been contributorily negligent : the plaintiff in that she had walked or run into the road at a busy taxi stop without taking sufficient care to see whether there was oncoming traffic, and the driver in that, in a situation which required him to exercise a great deal of care, he had driven at a speed which was excessive in the circumstances. She apportioned the blame as to 40% to the plaintiff and 60% to the driver, and accordingly reduced the plaintiff’s damages by 40% to M90,000.00 “with interest as prayed in the summons”, and she ordered the defendant to pay “costs in relation to the merits”. [4] The defendant appeals to this Court against the whole of the order of the Court a quo; the plaintiff also cross- appeals against the whole of the order. [5] Before the Court a quo were two versions of how the collision had occurred. The plaintiff says that, together with some other passengers, she alighted from the right-hand rear door of a stationary motor vehicle which had pulled up, presumably on its left-hand side of South 1 Road, that is to say, on the north-eastern side. It was late afternoon. The sun was shining. Other people were also alighting there from various taxis at the time. She says she looked to her right, then to her left, then to her right again, but saw no vehicles approaching. She then started to walk across the road. Other people who had alighted from the taxis also started across road. She has no memory of what happened after that. She regained consciousness in hospital. She says that she was walking across the road. According to her, she had almost reached the far side of the road when she lost consciousness. That, in essence, is all she was able to say about how the collision occurred. [6] The driver says that he was employed at the time as a driver by the Government of Lesotho, in the office of the Prime Minister. He was alone in the Toyota Hi-Lux. He was driving along South 1 Road at a speed which he estimates at between 50 and 60 k.p.h. It was late afternoon. It was not raining. The visibility was presumably fairly good. Where the collision occurred there is an area on the left-hand side of the road where buses and taxis stop to load and off-load passengers. This is a busy place. At the time, there were many pedestrians who had alighted from or were about to board such taxis. There were two taxis standing there. Suddenly, he says, the plaintiff emerged from between the taxis : she was running across the road from his left to his right. When he saw her she was already in the middle of the road. He tried to avoid her by swerving to his right, but the left front corner of his vehicle struck her. The vehicle left no brake marks on the tarred road surface because there was insufficient time for the driver to apply his brakes before the impact, he says. [7] Sehau, the policeman who gave evidence, confirmed that there was a bus stop at the scene; it is a built-up area with a speed limit of 50 k.p.h. on South 1 Road; taxis also stop there, and many taxis and perhaps also buses can be expected to be found there. In fact, there is a sign indicating that there is a taxi-rank there. The road is straight, and approaching vehicles are visible from a long way off. The witness was the author of the police plan, Exhibit “C”. It reveals a road running from the north-west to the south-east, nine paces in width. The point of impact is indicated with an “X”. Sehau says this point was pointed out to him on the day of the collision by the driver. Later, after she had been discharged from hospital, the plaintiff pointed out the same point to him. This point is four paces from the kerb on the north-eastern side of the road, and five paces from the south-western side of the road. In other words, when the plaintiff was struck, she was four paces into the road, and still had five paces to go to the far side of the road. The vehicle came to rest ten paces beyond the point of impact. The witness confirmed that there were no brake or skid marks. [8] The two versions of the collision are not reconcilable with each other. The Court a quo preferred the driver’s version. In her judgment the learned trial Judge said: “On a balance of probabilities the driver’s version is more acceptable. According to him the plaintiff was obscured from his view by taxis that were stationary at the taxi stop and as he approached the area, the plaintiff suddenly appeared from between the taxis running into the road. It happened so suddenly that he was unable to stop or avoid knocking her off. Since he did not dispute the point of impact, according to him, he knocked off the plaintiff four (4) paces into the road. This was confirmed by the accident map, exhibit “C””. Against this version must be weighed that of the plaintiff. Particularly improbable is her evidence that she had already almost reached the far (south-western) side of the road when she was struck. If that was so, why did she point out a point of impact only four paces into the road from its north-eastern side, and five paces from the far side? And how did it come about that she was struck at all, since on her version there must have been ample room for the vehicle to have passed safely behind her? On her version, the vehicle must, for no apparent reason, have left its correct (left- hand) side of the road and crossed onto its incorrect side to collide with her. Moreover, if, as she says, the plaintiff had almost reached the far side of the road when the collision occurred, it is difficult to understand why the driver, who presumably was travelling on his correct side of the road, would have swerved to his right to avoid her, and how it came about that the left front corner of the vehicle came to collide with her : on her version, one would expect the swerve to have been to the driver’s left, and the front right-hand side of the vehicle to have struck the plaintiff. For these reasons, I agree with the trial Court that the driver’s version is more probably correct than the plaintiff’s. His evidence also reads better, and more convincingly, than the plaintiff’s. I shall return presently to the matter of his credibility. [9] As for the alleged negligence of the driver, having accepted his version as more probably the correct one, the learned trial Judge found as follows; “The driver wants us to believe that he was confronted by sudden emergency to the extent that he could not have avoided the collision. It may be so, given the fact that the plaintiff appeared running suddenly between the taxis. However, this does not absolve the driver, in that he was approaching a built-up area, a taxi stop, which was busy at that time according to him. He ought to have reduced his speed even lower in anticipation of any sudden situation. There is no doubt in my mind that the defendant [sic : driver?] was in a position which required him to exercise a great deal of care. I am satisfied from the evidence that he drove at a speed higher than that required by law at a build-up area, and consequently was negligent.” I can find no fault with this conclusion. In passing, it is true that it was not alleged in the plaintiff’s declaration that the driver drove at an excessive speed in the circumstances, but the topic of his speed was thoroughly canvassed without objection in his evidence, both in chief and in cross- examination, and neither the plaintiff nor the defendant appears to have been prejudiced in any unfair manner by this evidence. [10] On his own version, which was accepted by the Court a quo, the driver was in a built-up area, driving along what, on the evidence, was a busy stretch of road where there was a bus stop and a taxi rank on his left; there were two taxis standing at the taxi-rank, which at least partially obscured his view; there were many pedestrians milling about, boarding or alighting from vehicles; the possibility that one or more of these pedestrians might suddenly emerge from an obscured position between or beyond the vehicles into the path of the driver’s approaching vehicle must or ought to have been present to his mind, and he ought to have regulated his driving accordingly, in particular, by reducing his speed. He does not appear to have done so : he continued to approach at what he estimates as 50-60 k.p.h. 50 k.p.h. is just under 13.9 metres per second; 60 k.p.h. is 16.7 metres per second. [11] Much was made of the fact that the speed limit at that point was 50 k.p.h. It was suggested that this meant that a driver was entitled to drive there at 50 k.p.h., and that he would not be guilty of negligence if he did so. That is not necessarily so. A statutory speed limit is the maximum speed at which a motor vehicle may be driven along the stretch of road concerned : it does not relieve the driver of the obligation to reduce his speed below the speed limit if the prevailing circumstances should call for such a reduction. Such circumstances might, as here, consist of impaired visibility and the presence of pedestrians in or near the road. [12] For the plaintiff to cover the four paces from the left- hand side of the road to the point of impact at a fairly fast running pace of, say 15 k.p.h. (4.17 metres per second) would have taken only about a second; less if, as she alleges, she had alighted from the right-hand side of a vehicle. It follows that the collision must have taken place only about a second or less after the plaintiff had first become visible to the driver. He still had time to swerve to his right, but not to apply his brakes. Had he been driving at a lower speed, the probabilities are that he would have been able to avoid the collision either by swerving to his right when he was further away from the plaintiff or by applying his brakes, or both. See Hockly v A. A. Mutual Insurance Association Ltd, 1980(1) S. A. 784 (AD). [13] The driver was refreshingly candid in his evidence. He seemed to some extent at least to accept responsibility for the collision. In his evidence–in–chief the following passage appears: “If anybody would say that this accident was due to your negligence would you agree with such a person or not?....... Technically yes sir. Why do you say so?.... Because I do understand that accidents happens (sic) on the road and I was the one who was in charge of the vehicle the time it happened. So I could say maybe I tried my very best but I coundn’t.” And in cross-examination: “You said that if anyone were to say that you were negligent, you would agree, because you were in control of the car?.... Yes. Do you confirm that?........ Yes I did confirm that.” These frank concessions by the driver enhance his credibility; they also add weight to the finding of the Court a quo that he was negligent. [14] On the version of the collision correctly accepted by the Court a quo the plaintiff was undoubtedly partly at fault in relation to the collision: she ran into and across the road at an inopportune moment, into the path of the approaching vehicle, and apparently without seeing it at all; she did so from a concealed position behind or between stationary taxis. [15] The Court a quo apportioned liability as to 60% to 40% in favour of the plaintiff. In this regard the learned trial Judge simply said: “….[T]he degree in which the plaintiff has been at fault in relation to the damage sustained by her is assessed at forty percent (40%) and that her damages should be reduced to that extent.” No effort was made by the learned trial Judge to explain how she arrived at this assessment of the parties’ respective degrees of fault : it appears almost as if it was done arbitrarily. She does not even say why she considered the driver’s blameworthiness to be greater than the plaintiff’s. In the circumstances, it seems to me that this Court is at large to interfere with the assessment of the Court a quo if it differs from this Court’s assessment. [16] In my view the plaintiff’s degree of fault was substantially higher than the driver’s. She emerged suddenly into the road from an obscured position and ran into and across the road at an inopportune moment into the path of the driver’s approaching vehicle, which she did not even see because her look-out was inadequate. The driver’s negligence, on the other hand, consisted only of driving at a speed which was somewhat excessive in the prevailing conditions and circumstances. I would assess the respective degrees of blameworthiness of the plaintiff and the driver at 40% to 60% in favour of the driver. [17] The Court a quo erred in two other, ancillary respects, to my mind. The first was in awarding “interest as prayed in the summons”. If by this order is meant interest from the date of the summons, it cannot be supported. In the first place, no interest was claimed in the plaintiff’s summons or declaration. Secondly, the plaintiff’s claim is clearly for unliquidated damages on which no interest will run until the amount thereof shall have been determined by the Court, or, at the very least, until it shall have become readily ascertainable. The earliest date on which the amount became liquidated was the date on which the trial Court gave its judgment, in which the apportionment was determined, but, as I have said, no interest was claimed from that or any other date. On behalf of the plaintiff it was argued that interest had been mentioned by counsel during argument in the Court a quo without objection from the defendant, but that does not suffice, in my view : no amendment of the summons or declaration was sought so as formally to claim interest. Nor could it properly have been awarded as “further or alternative relief.” [18] The second error made by the trial Court was in restricting its costs order to “costs in relation to the merits”. Until agreement was reached as to quantum at the pre-trial conference, it was not only the question of the defendant’s liability to the plaintiff which was in issue, but also the quantum of her damages. The plaintiff ought to have been awarded the costs incurred by her in relation to the quantum up to that point in addition to her costs relating to liability. The proper order for the trial Court to have made was therefore simply “costs of suit”. [19] In the result, the appeal will be upheld, with costs. The order of the Court a quo is set aside, and in its place is substituted the following order: “Judgment is granted for the plaintiff in the sum of M60,000.00, with costs of suit.” The cross-appeal is dismissed, with costs. I agree: I agree: __________________ W. G. THRING Justice of Appeal ________________ C. T. HOWIE Justice of Appeal ________________ R. B. CLEAVER Acting Justice of Appeal For appellant : P. J. Loubser For respondent : N. Senekane