IN THE HIGH COURT
OF LESOTHO In the matter of:
JOSHUA N. MAHAO Plaintiff
LITTLE FLOWER CATHOLIC CHURCH Defendant JUDGMENT
Delivered by the Hon. Sir Peter Allen on the 16th day
of June, 1987
The plaintiff brought this action for damages in
negligence as a result of a traffic accident in which motor vehicles
the parties collided on, Sunday, 28 April 1985. The
accident occurred just outside Maseru, near. Stirling
on the road to TY, in the early evening when it
was still dusk. The road was straight, sloping downwards with a dry .
There was a continuous white line along the middle
of the road. Both vehicles had their headlights on in the dipped
The vehicles involved were both Toyotas. That of the.
plaintiff was a Hi -Ace Combi registered number A3890 which was being
as a taxi. It was driven by Rapoli Nchona, who was employed by
the plaintiff. The defendant's vehicle was a van registered number
C4246 which was driven at the time by a soldier., Private Tjamela.
Unfortunately both drivers died in the accident.
Each party called two eye-witnesses all four of whom
were travel ling in the plaintiff's taxi at the time.
Consequently there were two quite different versions of
how the accident occurred, which is not at all unusual in these
The plaintiff alleged that the accident was caused by
the negligent driving of the driver of the defendant's van. The
defence was a mere denial. I find this rather strange because,
usually in this type of claim, there is in the defence an allegation
that it was the fault or negligence of the plaintiff's driver, often
followed by a counter-claim when both vehicles were badly damaged,
in fact was the case in this instance. Similarly, where the
defendant alleges that there was contributory negligence, this too
must be pleaded.
According to the plaintiff's two eye-witnesses, Thokoa
(PW3), who was then working as the conductor, and Mohlakore (PW2),
himself a taxi-driver and a friend of the deceased driver, it
was the fault of the driver of the defendant's van. They both
that the van approached them from Maseru travelling at
high speed and attempting to overtake a vehicle in front of it. Thus
van crossed the white line and came into their side of the road.
Since there was a culvert alongside the road the plaintiff's taxi
driver could not swerve off the road in order to avoid a collision.
The two vehicles did not collide head-on but front right side
front right side.
The defendant's two eye-witnesses were both passengers
in the taxi. They were Mrs Hlalele (DW3) and Mokhoele Hali (DW4).
a different tale. According
/to them ...
to them the taxi-driver was drinking from beer cans and
a bottle during the journey and driving erratically and at
both said that some passengers complained about this
and some even got out at earlier stops saying that they were not
continue in such a recklessly driven vehicle. They said
that the defendant's van was being driven properly on its correct
the road and that it was their taxi which was on the wrong
side and so caused the collision.
Mrs Hlalele (DW3) went further and added that their taxi
was so far over on the wrong side of the road that the first vehicle
to pass them on the wrong side so as to avoid a collision. The
defendant's van was following that vehicle but was not so skilfully
controlled and they collided. She was sitting at the back of the
taxi and it is possible that she was mistaken and that what she
was, in fact, the van trying to overtake the. vehicle in front.
The defence allegation that the taxi driver was drinking
during the journey-was hotly denied by the conductor (P.W.3) and the
driver/passenger (PW2). They insisted that the taxi driver not
only was not drinking at that particular time, but also that he did
not drink alcohol at all at any time.
Clearly some of these witnesses were either lying or
mistaken in what they saw, yet there was no apparently good reason
for any of
them to be lying. But eyewitnesses of traffic,
accidents are, in my experience, notorious for each giving different
of the same
accident. People do not observe or register or remember
the same details of such violent incidents which often occur
or without warning, or in darkness.
Bearing this in mind, I am of the opinion that the
witnesses on both sides were partially truthful and partially
untruthful or mistaken.
After considering their various versions and
the damage to the vehicles, and the fact that the police sketch plan
shows the probable point of impact near to the centre
of the road, I believe that what most probably happened was as
plaintiff's taxi driver was driving at speed in the
centre or very close to the centre of the road in a reckless manner,
partly caused by drinking during the journey. The
driver of the defendant's van was also driving at speed, possibly
because he wanted
to get back to Kolonyama before it was realised
that he had travelled much further than he ought to have done.
Either because he
was in such a hurry, or because he was not a good
driver, he tried to overtake when the taxi was approaching. May be
in the semi-darkness
he overestimated the closing distance between
the two vehicles and their combined speeds. The result was the
collision and the deaths
of both drivers.
Thus I find that both drivers were about equally .
responsible for the accident because there was a substantial
degree of fault
on both sides. This situation often arises where
damage results from a collision between fast moving vehicles on the
in this type of case, it is difficult to apportion more
blame to the one party rather than the other. The usual
method in cases where there has been a counter-claim by the defendant
to assess the damages on both sides and then award one half of the
respective assessments to each' party. They may or may not cancel
out. In cases like the present one, where only the plaintiff has
claimed damages, he only receives a half of the assessment (see
Ruiters v African Guarantee & Indemnity
Co. Ltd, 1958(1) S.A. 97).
However, that also depends upon whether the defendant is
to be held liable for the damage caused by the driver of the van.
An employer is liable for the torts or delicts committed
by his employee provided it is proved that the employee was at the
within the scope of his duties or employment. A master
is not responsible for the negligence of his servant while engaged in
something which he is permitted to do for his own purposes, but
is not employed to do for his master. Moreover, if the servant is
"on a frolic of his own" without being at all on his
master's business, the master is not liable.
So the first question is whether or not the driver of
the van was employed by the defendant. This would seem to be
the driver was a soldier and the defendant is a
church. That would be carrying "militant Christianity" too
Sister Marie Cleofa (DW1), who was in charge of the
defendant Church community at Kolonyama, testified that the van
belonged to them
and that it was usually
driven by a Sister who was absent at that time. Private
Tjamela was an army driver who was stationed nearby for duty
guarding a place belonging to the late Chief Leabua.
Apparently he had driven the van for them on previous occasions when
own driver was not available and Sister Marie said she trusted
him because she had found him satisfactory when he had assisted them
before. The van was due to go in for servicing on Tuesday and so she
wanted to get petrol for it on that Sunday. She therefore
Tjamela to assist them and he agreed to do so. Sister Marie's
testimony was supported by that of Sister Louisa (DW2). There
mention of any payment and therefore no question of Tjamela being
employed by the Sisters.
In any case he was already employed by the army. It is
posible for a servant to have two masters in instances where the
his servant to another to do a particular job. In
such cases it has to be decided which master had control at the time
way in which the servant was carrying out his duties. But
here there was no evidence that the main employer, the army, had lent
for any duty with the,Sisters, or that they knew what was
The situation is clearly different where it is the
servant who decides to work for two masters (i.e., to have two jobs)
and, in such
cases, the two employers may well not know about the
arrangement at all. Then the liability would probably depend upon
duties were being performed by the servant at the
time of his doing the wrongful act.
/I am ...
I am satisfied that in this instance there was no
question of Tjamela being employed by the Sisters and so the normal
law of master
and servant does not apply. However, there is a class
of case in which the principles of this law may be applied even in
of the relationship of master and servant. This is when
a person lends his chattel to another who, by his negligent use of
injury or damage to a third person. This often happens in
the case of a motor vehicle which is lent to another person by
the owner. It is often referred to as "casual delegation."
If the owner retains both a right to control the use of
the vehicle (or other chattel) and he has an interest in the
purpose for which it is being used at that time, then he will be
liable for the injury caused by the driver
to another person.
In Ormrod v Crosville Motor Services
Ltd (1953) 1 WLR 1120, the owner of a car in England asked a
friend to drive it to the South of France where it was intended they
meet and go on holiay in the car together. While the friend was
driving the car in England on the way he caused an accident and the
owner was held liable because he clearly, had an interest in the
In Hewitt v Bonvin (1940)1 KB 188, the
defendant lent his car to his son for the son' s personal use and it
was held that., because, the defendant had
no interest in the
purposes for which the journey in question was undertaken, he was not
liable for the son's negligent driving of
In Klein v Caluori (1971) 1
WLR 619, where the defendant's
car had been taken without his consent and he demanded
that it be brought back, it was held that his interest
in the safe return of his car was insufficient to render
him liable for the borrower's negligent driving.
In Launchbury v Morgans (1973) AC 127, the House
of Lords reaffirmed that if the owner of a vehicle is to be liable
for the negligence of a borrower of
it, it is necessary that he has
some interest in the purposes for which the vehicle is being used.
In the present case the testimony of Sister Marie
indicates that the driver was given twenty Rand and asked to get
petrol for their
car, and so they had a definite interest in his use
of their vehicle. However, Sister Marie added that she told Tjamele
was unlikely that he would be able to get petrol in Kolonyama
and so he would probably have to go into TY for it ( a distance of
about 9 to 10 Kms). Maseru is about 45 to 50 kms further on from TY
and Sister Marie said that, although she did not mention Maseru
Tjamela, it was not within her contemplation that he should go
so far and there was no reason for him to go there. She fully
expected him to obtain petrol at TY.
She had not authorised him to
go further than that. I accept that that was the true position in
It is not known whether Tjamela obtained petrol in
Kolonyama or in TY, or whether he bothered to get petrol at all,
although he probably
did otherwise he might not have reached Maseru.
Nor is it known why he decided to come to Maseru. He certainly was
not sent to
Maseru by Sister Marie. The only reasonable conclusion
that I can come to, on the evidence before the Court,
is that Tjamela went to Maseru for his own unknown
and that, therefore, he was there on a frolic of his
own at the time of the accident. Consequently I find
that the defendant is not liable.
With regard to the damages claimed of M18,000, this
amounted to the whole value the plaintiff put on the taxi at the time
of the accident
because it was wrecked and so a write-off. It was
therefore special damages since it was a specific sum, and so it was
for the total amount to be proved with some precision. In
cases of this sort the proper way to go about proving the value of a
vehicle that is damaged is to call a qualified valuer to
testify as to its value and to put in his valuation report as well as
photographs showing the damage to the vehicle. There is no
other acceptable way and it is certainly insufficient and
for the plaintiff to make his own estimate of its value,
as was done in this case. With a professional valuation before it the
can then make its own assessment. Then, if the defendant's
liability had been proved, the plaintiff would have been awarded one
half of the assessment as a result of my earlier finding of the
driver's 50% blameworthiness for the accident. However, in this
instance the defendant is not liable.
Accordingly the plaintiff's claim is dismissed with
P. A. P. J. ALLLN JUDGE
Mr. Monyako for the Plaintiff 16th June 1987
Mofolo for the defendant
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