Maputsoane Mokoma V Lesotho National General Insurance CO. LTD (CIV/T/239/2017) [2024] LSHC 254 (11 November 2024)

 

 

 

 

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU                                                    CIV/T/239/2017                               

In the matter between

 

MAPUTSOANE MOKOMA                                        PLAINTIFF

                                                           

AND

 

LESOTHO NATIONAL GENERAL                           DEFENDANT

INSURANCE CO. LTD 

 

Neutral Citation: Maputsoane Mokoma v Lesotho National Insurance Co. Ltd [2024] LSHC Civ 35 (11 November 2024)

 

 

CORAM             :        BANYANE J

HEARD              :        23/03/2024

DELIVERED      :        11 NOVEMBER 2024

 

 

 

 

Summary

Delict- claim for damages for loss of support- arising out of fatal car accident along Mpilo road-onus rests on plaintiff to prove negligence on the part of the driver- in the event of the Court finding the driver negligent, whether the plaintiff’s claim must be reduced in accordance with the provisions of Apportionment of Damages Order 1970 considering the degree of negligence of the deceased. Held that the Act does not apply and the plaintiff is entitled to 100 percent of the agreed damages.

 

ANNOTATIONS

Legislation

1. Apportionment of Damages Order 53 of 1970
2. Motor Vehicle Insurance Order 26 of 1989

Cited Cases:

Lesotho

Lesotho National General Insurance v Bushman [2015] LSHC 109

Molupe v National General Insurance Co Ltd [2021] LSHC 27

Mamotumi Sauli v Lesotho National General Insurance Company (Ltd) CIV/T/167/08

 

South Africa

1. Odendaal v Road Accident Fund 2002 (3) SA 70
2. Stacey v Kent 1995(3) SA 344
3. Minister of Defence v African Guarantee and indemnity Co. Ltd 1943 AD 15
4. Frodsham v Aetna Insurance Co 1959 (2) SA  271
5.  Dhliwayo Shadrack Mazangwa v Road Accident Fund(A598/17) [2020] ZAGPPHC 435(7 August 2020)
6. Santam v Nkosi 1978 (2) SA 748
7. Diale v Commercial Union Assurance Co. of SA LTD 1975 (4) SA 572
8.  Nogude v Mniswa 1975(3) SA 685(A)

 

Books

 

WE Cooper; Delictual liability in Motor Law (1996)

 

 

 

JUDGMENT

BANYANE J

Introduction

[1]     This is an action for damages broken into three main heads; namely, funeral expenses, medical expenses and loss of support. The claim arises from a road traffic accident wherein the plaintiff’s husband was fatally knocked down by a vehicle insured by the defendant.

[2]     It is common cause that on 07 March 2015, the plaintiff’s husband Mr. Lesitsi Mokoma was knocked down by a government vehicle, a Toyota corolla registration No. Y 4178 when he was crossing Mpilo Boulevard Road near the Maseru Magistrate Court. The deceased sustained injuries during the collision. He later died in hospital.

The declaration

[3]     The declaration alleges that the accident and the resultant death were caused solely by the negligent driving of the insured vehicle in one or more of the following respects:

1. driving at an excessive speed
2. failing to apply his brakes;
3. losing control of his vehicle;
4. failing to exercise the necessary care and skill to avoid the accident;
5. failing to keep a proper lookout;
6. driving without due care to other road users.

[3.1]  As a result of the death of the plaintiff’s husband, the plaintiff and her children suffered damages broken down as follows:

1. Medical expenses in the amount M717.00
2. Funeral expenses M 7 412.00
3. Loss of support for herself and minor children M 83 776.00.

[3.2]   The plaintiff holds the defendant liable for these damages in terms of the Motor Vehicle Insurance Order No. 26 of 1989 (as amended).

The defence

[4]     The defendant disputed both liability and quantum. In its plea, it disputed that the accident was attributable to the negligence of the insured driver. However, in the event of the court finding that the driver of Y 4178 was negligent, the defendant pleaded that the negligence was not the cause of the accident. In the further alternative, the deceased’s negligence also contributed to the collision, so the plaintiff’s claim must be reduced in accordance with the provisions of Apportionment of Damages Order 1970 taking into account the degree of negligence on the part of the plaintiff’s husband.

[5]     Prior to commencement of trial, parties agreed on the quantum of damages in an amount of M76 272.06. On 11 November 2024, I granted judgment in this amount based on the following reasons.

The trial

[6]     Two witnesses testified for the plaintiff.  PW 1 Mr. Marife Calvin Selili testified that on 07 March 2015 around 2:30 pm, he was walking in a group of men proceeding to Lesotho Correctional Services football grounds. Some were ahead of him and he remained behind with the deceased. To reach their destination, they had to cross Mpilo Boulevard Road. When they reached the northern sidewalk/pavement, they waited on the sidewalk with the deceased to give way to traffic in the two-laned road from Pioneer Mall to Magistrate Court direction. When the vehicles had passed, he crossed the road but saw a Toyota Corolla in the inner lane from Pioneer Mall. It was the only car he saw. He managed to cross through to the center pavement. While on the pavement he heard crushing sound. He looked back but did not see the deceased on the road. He had been knocked down by the Toyota corolla and lay on the pavement. He was immediately rushed to hospital.

[7]     Police constable Mohloai, a police officer who investigated the accident testified as PW 2.  He told the Court that upon arrival at the accident scene, neither the driver nor the pedestrian involved in the collision were at the scene, reportedly because the pedestrian had been rushed to hospital. On his return, the insured driver gave his version, based on which the accident scene was reconstructed.

[8]     The version of the insured driver, Mr. Putsoa is that he joined Mpilo road from the Standard Lesotho Bank junction. According to his version, there was a heavy flow of traffic from pioneer mall to Magistrate Court direction. There was a slow moving combi on the left/outer lane on which he was also driving. It was ahead of other vehicles in front of him. The vehicles ahead of him passed this taxi by swerving to the inner lane. When it was opportune for him to pass, he swerved to the inner lane. He was driving at around 30 – 50 km per hour when he moved to the inner lane.

[9]     Just as he was about to pass the taxi, a pedestrian emerged running from the corner of the taxi and sprang into his path. He braked and swerved to the right to avoid a collision, but because of the pavement on his right, he struck the pedestrian. Before he struck him, the pedestrian attempted to jump over his vehicle but fell on the windscreen and then down on the road surface between the center pavement and the driver’s door.

[10]   He testified that he was assisted by two men in the vicinity to lift the pedestrian from the ground into his car to rush him to hospital. As they loaded him, a brown bottle of beer fell from his hand.

 

Submissions

[11]   Advocate Mahanya for plaintiff argued that the insured driver’s negligence was the cause of the accident. She cited the following factors as indicative of the insured driver’s negligence.

1. According to his evidence, he was driving at about 40 k/h or 50 km before the collision. Moreover, although he claims that he applied hard brakes when he saw the pedestrian emerge from in front of the slow-moving minibus, his vehicle could not immediately come to a halt when he saw the pedestrian, or after he knocked him down. He was only able to bring it to a stop at 6 paces from the point of collision.
2. The inability to immediately bring the vehicle to a halt is indicative that he failed to apply his brakes timeously or at all.
3. Considering that the vehicle is a manual transmission, driving up an incline road, it is improbable that he was driving at the speed of 40 – 50 km/h.
4. Driving up an incline road necessitates acceleration to increase momentum for a smooth incline. Consequently, it is improbable that applying hard brakes while driving at the alleged speed would not make the vehicle to come to an immediate halt.
5. In addition, because the insured driver was overtaking the slow-moving mini-bus, the move necessitated an increase in speed. So even if he applied his brakes as alleged, the vehicle could not come to an immediate halt because it was driven at an excessive speed.
6. The insured driver failed to keep a proper look-out and drove without due care to other road users. This is because according to insured driver, there were no pedestrians nearby yet PW1’s evidence revealed presence of pedestrians on the road.
7. If we are to go by the insured driver’s story that his vision was obscured by the slow-moving minibus, it means he just overtook the minibus, with no clear vision of what was ahead of him. So, in the circumstances he did not keep a proper lookout as to whether his path was clear and thus opportune for him to overtake.

[11.1]      She cited on Lesotho National General Insurance v Bushman[1] where the Court said:

“It is a matter of common sense and requirement of the law that a prudent driver driving on a public road should foresee the possibility of encountering obstructions in their infinite and varied form and be prepared to be confronted with diverse situations which may create actual or potential emergencies.”

[11.2]      Based on this authority she submitted that that the insured driver has 25 years driving experience and familiar with Mpilo Road. He ought reasonably to have anticipated that a pedestrian would cross at any time from either left to right or vice versa. If he had kept a proper lookout, he would have seen people near the road, the very same people he says assisted him to get the deceased into his car after the collision, which he admitted came from both sides of the road.

[11.3]     Ms. Mahanya finally submitted that the insured driver failed to take reasonable steps to avoid the accident, such as driving at a low speed allowing him to stop his car when necessary.

[12]   The essence of the insurer’s argument on the other hand is that the insured  driver was confronted with a sudden emergency because the deceased suddenly ran into his path.  According to Ms. Moerane, the insured driver proffered a reasonable explanation of what happened before the collision, namely, that he kept his eyes on the road, observing the movement of the vehicles in front of him, and sought to pass the slow-moving minibus when it was safe to do so. Unfortunately, his view was obstructed by the slow-moving taxi such that he could not see the pedestrian on the left side of his lane.

[12.1]    Because he encountered an unexpected sudden emergency, he cannot be found to be negligent and escapes liability. Ms. Moerane cited several authorities on applicable principles on sudden emergency and what is expected of a driver in those circumstances.

[12.2]     She further submitted that PW1 and his companion, the deceased, recklessly and negligently crossed the road in the face of oncoming traffic. Accordingly the collision would not have occurred if the deceased had not run across the insured driver’s lane at an inopportune time. The conduct of the insured driver is therefore not the proximate cause of the accident but that of PW1 and the deceased.  

[12.3]    In addition, when the insured driver was confronted with the emergency, he swerved to the right to avoid the collision, but he was hindered by the pavement to swerve further right. In the circumstances, the insured driver took the best possible course of action to avoid the collision.

Issues for determination

[13]   The main issues arising for determination are whether the collision was caused by the negligent driving of the insured driver.  If so, whether contributory negligence, if any, of the deceased matters in cases of this nature.

The law

[14]   It is well established that in cases of this nature, the plaintiff bears the onus to prove, on a balance of probabilities that the collision was caused by negligence attributable to the defendant.[2]

[15]   The test applied in determining negligence is an objective one i.e. how would a reasonable person have acted under the conditions prevailing at the time of the accident, as experienced by the driver whose conduct is being scrutinized.[3]

 

Reciprocal duties of all road users

[16]   Before assessment of the evidence, it is helpful to highlight the main duties of all road users. Duties of all road users, be it drivers and pedestrians, are well established. In general, all road users are under a duty to keep a proper look-out on the road. This duty has been stated and restated as follows in several authorities.

1. Whenever a pedestrian is using a roadway which is also used by vehicles, whether the roadway is private or public, is in a building or in the open, is sloping or level, they must keep a proper lookout.[4]
2. A pedestrian who intends crossing the road must do at an opportune moment, acquaint himself/ herself with the vicinity and scan the road to ascertain whether any motor vehicle on the road may be an actual or potential danger to his/her safety.[5]
3. A driver is expected to exercise reasonable care and vigilance not only towards a pedestrian he sees or ought reasonably to have foreseen on or near the road; he is equally obliged to exercise the same reasonable care towards an unseen pedestrian whose presence he should reasonably foresee or anticipate.[6]
4. A driver that intends to overtake another vehicle must satisfy himself that it is safe to do so in order to prevent an accident. He must observe, among other things whether there are pedestrians crossing the road ahead. This includes unseen pedestrians whose presence he reasonably should have foreseen or anticipated. [7]
5. The duty to keep proper lookout means more than looking straight ahead. It includes awareness of what is happening in one’s immediate vicinity. The driver should have the view of the whole road from side to side and in the case of a road passing through a build up area, as well as the pavements on the sides of the road.”[8]

Evaluation of evidence

[17]   With these principles in mind, I turn to examine the evidence adduced. Mpilo Boulevard Road is a double-carriageway with two lanes on each direction. It is separated by a center pavement. There are sidewalks on the sides of the road.

[18]   On the Sunday in question around 2;30 pm, the insured driver was travelling from pioneer mall direction towards Magistrates’ Court direction. The deceased was a pedestrian proceeding to Lesotho Correctional Services football grounds crossing the road horizontally from North to South. To get to his destination, he had to first cross the two lanes from pioneer Mall-Magistrate Court direction to reach the center pavement. This road is 9 paces wide.  From the pavement, he would then have to cross the other two lanes from Magistrate Court to Pioneer Mall direction. It was while he was crossing the Pioneer Mall- Magistrate Court direction but before reaching the center pavement that he was knocked down by the insured car.

[19]   There is a dispute as to precisely where the collision occurred, where the deceased lay after the collision and where the insured motor vehicle came to the halt after the collision. Based on the view I take on the matter, the disputed estimations would not affect the outcome of these proceedings. In addition, Pw1 and the insured driver gave conflicting version on the amount of traffic from pioneer mall to Maseru Magistrate Court direction.

[20]   The evidence of PW 1 shows that they were walking in a group. Some of his companions were ahead and the deceased was with him. According to pw1 when they reached the edge of the road, they waited for traffic from pioneer Mall to pass, after which he considered it was safe for him to cross, so, he stepped off the pavement and began to cross the road.

[21]   According to this witness, the insured driver’s vehicle was the only vehicle on the road, driving at a high speed in the inner lane although he nevertheless considered it safe to cross the road.  He successfully did. He was on the center pavement waiting to cross the two lanes from the Magistrate Court-pioneer mall direction when the collision occurred. He did not see the exact point of collision.

[22]   According to the insured driver, he was driving in the outer lane behind a line of vehicles, following a slow-moving minibus. He veered to the inner lane on his right-hand side when it was opportune to drive past the slow-moving vehicle.  When he was in the process and driving past the minibus, the deceased pedestrian suddenly emerged from in front of the minibus crossing the road towards the center pavement.  When the pedestrian ran into his path, he was so close to him. He slammed on his brakes, swerved to the right but was unable to avoid the collision. He struck him.

[23]   The determination of the alleged negligence of the insured driver depends in my view on factors such as how far the deceased had proceeded across the carriageway when the collision occurred, how visible he would have been to the driver, and how visible the insured motor vehicle would have been to him.

The point of collision

[24]   I start with the question; where was the deceased when the collision occurred? The evidence shows that the deceased and the insured vehicle were removed from the scene before the police arrived. The evidence is not seriously disputed that the deceased was close to the dividing pavement when he was struck.  On the sketch plan, the point of impact is fixed at 2 paces to the center pavement. In addition, there are no brake marks on the road.  

[25]   Bearing in mind the distance between the center pavement and the point of collision, as well as the fact that PW 1 was on the center pavement when the collision occurred, it is probable that the deceased commenced to cross shortly after PW 1. It is also probable that the insured driver must have been a substantial distance away when pw1 and his companion (the deceased) started crossing the road because according to his version, he was following a line of traffic. So, when the insured driver changed lanes, according to his version, the deceased had long commenced crossing hence he was struck near the dividing pavement in the inner lane.

Sudden emergency or failure to keep a proper?

[26]   The authorities show that a pedestrian crossing a busy road has to duty to ensure that he does so at an opportune moment. They also show that a driver should continuously scan the road ahead, including the sidewalks and pavements for obstructions or potential obstructions.

[27]   Although the defendant contends that the insured driver was confronted with a sudden emergency as he did not see the deceased until he was in his path, the insured driver did not contradict PW1’s evidence that there were pedestrians along the roadway/sidewalk on both sides of the road. The insured driver makes no mention of pedestrians on the side pavement or even the center pavement where PW 1 was at the time of the collision. According to the insured driver’s evidence he kept his eyes fixed on the line of vehicles ahead of him.

[28]   If one considers the evidence of the insured driver that he fixed his eyes on  the traffic ahead of him and that he saw the deceased for the first time when he walked in his path, it seems to me that he did not scan the whole road from side to side or in other words failed to devote his attention to the vicinity before changing lanes. He thus failed to keep a proper lookout for pedestrians which he ought reasonably to have seen or anticipated. He proceeded to change lanes without keeping a proper lookout.

[29]   Considering the distance from the junction where he joined Mpilo road to the point of collision, (at least 30 meters) and the straightness of the road in question, it seems clear to my mind that the sidewalks were visible to the insured driver as he went up the incline. It follows that PW 1 and his companions would have been visible to the insured driver from at least 30 meters away. Had he kept a proper lookout, continuously so, he could have seen the pedestrians who were walking in numbers (deceased and his companions) on the sidewalks awaiting to cross his path or seen PW 1 crossing the road in front of him and kept them under observation before swerving to the inner lane.  

[30]   In other words, had he been watchful, not only on the traffic ahead of him, but also scanned both pavements and road ahead of him, he could have seen these pedestrians.  A reasonable, prudent, and careful driver in insured driver’s position would have seen pw1 and his companions on the pavement and kept them under close observation from when they stepped off the pavement to cross.

[31]   Moreover, it is more probable that the deceased judged by the speed of the slow-moving vehicle that it was safe for him to cross because there were no cars on the inner lane. It therefore seems to me that when the insured driver switched lanes from behind the slow-moving vehicle to the inner lane, the deceased was already in the road having judged that it was safe to cross because the minibus was slow-moving. Because of the sudden swerve of the insured driver, he could not complete the crossing. To show that he properly judged the distance of the vehicle, the deceased was hit while he was two paces away from the dividing pavement as stated earlier. Had the insured driver scanned the road ahead of him and seen the pedestrians enter the road, the probabilities are that he would not have swerved to the inner lane before the pedestrians safely crossed.

Conclusion

[32]   The totality of evidence and probabilities indicate strongly that the driver ought to have seen that there were pedestrians on both sites of the road. A  reasonable driver in the position of the insured driver should have kept a proper lookout, exercised reasonable care or caution and taken reasonable steps mentioned above to avoid the collision, which the insured driver failed to do.

[33]   The insured driver by failing to keep a proper look out, precluded himself of becoming aware of the presence of pedestrians, and from taking evasive action timeously before it was too late. The insured driver’s conduct fell short of reasonably prudent and careful driver.

[34]   I am thus satisfied that the plaintiff discharged the onus by establishing on a balance of probabilities that the collusion was caused by the negligent driving of the insured driver, and thus the defendant is liable for the harm she suffered.

 Contributory negligence?

[35]   The next question to address is whether apportionment of fault arises in this case and whether the plaintiff’s claim stands to be reduced in terms of the Apportionment of Damages Order of 1970.

[36]   Ms. Moerane for the defendant argued that the deceased had also been negligent and thus a joint wrong doer contemplated in the Apportionment of Damages Order, 53 of 1970. As a result, the insurer is entitled to recover a proportionate share from the plaintiff as an innocent third party.

[37]   To her written submission she attached a certain notice, apparently issued in terms of section 3(2) of the Apportionment of Damages Order, to the plaintiff as executrix and heiress of her husband’s estate.

[38]   Ms. Mahanya for the plaintiff submitted that section 3 (1) (a) of the Apportionment of Damages Order finds no application in a claim of this nature. She cited the case of Odendaal v Road Accident Fund 2002 (3) SA 70[9] to submit that in a claim arising out of death resulting from a motor vehicle accident, all that is required of the plaintiff is to prove negligence on the part of the driver and that no question of apportionment of fault arises. Once negligence of the defendant is established, then the defendant is liable for the full amount of damages suffered regardless of whether the deceased had the last opportunity of avoiding the collision.

[39]   This case was cited with approval in Molupe v National General Insurance Co Ltd[10] wherein the pedestrian was fatally knocked down by a motor vehicle. My brother Mokhesi J, after reviewing several authorities on the subject concluded that:

“This is essentially a claim by the deceased’s estate. The inevitable result is that the plaintiff is not suing as a co–wrongdoer, he is simply an innocent third party/plaintiff and therefore, the principles of apportionment of damages do not find application in this case. Put differently, the deceased’s contributory negligence does not play any role at all in the final analysis. The plaintiff merely has to prove some negligence on the part of the defendant, what is commonly known as 1% degree of negligence”[11](cited authorities omitted)

[40]   Ms. Moerane submitted that the Court in Molupe v NGIC did not consider the provisions of Section 3(1), hence I should not follow the decision.

[41]   In order to appreciate Ms. Moerane’s argument, it is necessary to look at the provisions of section 3 of the Order and consider whether they apply to the circumstances of the present matter.

[42]   Section 3(1) of the Act reads as follows;

Where it is alleged that two or more persons are jointly or severally liable in a delict to a third person (hereinafter referred to as the plaintiff) for the same damage, such persons (hereinafter referred to as joint wrongdoers) may be sued in the same action.

3(2) notice of any action may at any time before the close of pleadings in that action be given-

a) by the plaintiff

b) by any joint wrongdoer who is sued in that action, and such joint wrongdoer may thereupon intervene as a defendant in that action.

[43]   In the present case, it is not seriously disputed that the defendant served upon the plaintiff as heir or executrix of the deceased estate although the notice is belatedly revealed at the closing submissions stage. The question is whether an executor or heir is the joint wrongdoer contemplated in section 3 of Act, to which the notice under this section is intended.

[44]   Interpreting the South African section 2(1) of the Apportionment of Damages Act 34 of 1956 (similarly worded as our section 3) the Court in Shield insurance co. Ltd v Zervoudakis[12] said;

 

The language is clear, and unambiguously define joint wrongdoers for the purposes of the Act as persons who are alleged to be jointly and severally liable  to a third person. That this is so follows also from sub-sections (2) and (3) of sec.2 of the Act, in which provision is made for the notice to be given by one ‘joint wrongdoer’ to another, and for the application by a joint ‘wrongdoer’ for a separation of trials.

[45]   Reverting to the present matter, the question is  whether the deceased estate or the plaintiff as heir can be classified as a joint wrongdoer. I do not think so. To interpret section 3 in the manner suggested by Ms. Moerane would lead to absurdity because one cannot be liable in delict to herself. Section 3(1) describes a joint wrongdoer as being two or more persons jointly or severally liable in delict to the plaintiff. The section is designed to apply to persons who in fact are liable in delict to the injured party, in this the plaintiff.  Resultantly, I am agreement with my brother Mokhesi in Molupe v LNIG that in a situation such as here, the claim is essentially by the deceased’s estate and the plaintiff is not suing as a co–wrongdoer but simply as an innocent third party/plaintiff. Resultantly, the principles of apportionment of damages do not find application in this case and the defendant is therefore liable to the plaintiff for the full amount of damages suffered; in this case, the defendant must pay 100 percent of the agreed damages.

Order  

[46]   Accordingly; a) judgment is entered for the plaintiff in the sum agreed of M76 272.06 together with costs of suit.

b) Interest on this amount to be calculated at the current Central Bank prime lending rates, from the date of Judgment until the date of final payment.

 

_____________

P. BANYANE

JUDGE

 

For Plaintiff                    :         Advocate Mahanya

For Defendant                 :         Ms. Moerane