CIV\T\795\87 IN THE HIGH COURT OF LESOTHO
In the matter of :
TAOA LEPELESANA Plaintiff
LESOTHO NATIONAL INSURANCE
(PTY) LTD Defendant
REASONS FOR JUDGMENT
Filed by the Hon. Mr. Justice M.L. Lehohla on the 7th
day of February, 1992
On 26 March 1991 this Court dismissed the plaintiff's
claim with costs.
Here are the reasons for that dismissal :
In terms of his summons and declaration the plaintiff
sues the defendant for M22,050-00 consisting of M20,000 damages in
pain and suffering; M2,000 in respect of loss of earnings
and M50-00 being medical expenses incurred; plus costs.
Paragraph 3 of the plaintiff's declaration sets out that
the defendant is an insurer of a certain vehicle described as a light
van bearing registration letter and numbers G 0304 per
token of 3rd party insurance No 0811\86 in which vehicle
the plaintiff was travelling in the business of the owner thereof on
3rd October, 1986.
The plaintiff who was 61 years old at the time of the
accident in 1987 testified that he was a passenger in a light
delivery van driven
by PW2 Jeremiah Mosena.
The van was running from Maseru to Quthing. The
accident occurred at Ha Mahase. The trip started from Maseru at
about 6 p.m. The
accident occurred some two or three hours later.
There was a heavy drizzle that day and the spot where the accident
a tarred downward curve.
The driver PW2 testified that he was driving at 90 km
per hour. He said the road was slippery. When he realised this and
to the downward slope and curve mentioned above he reduced
speed to about 60 km per hour. He testified that he felt that his
was inclining to get out of control. He applied the brakes
but the vehicle swerved to the right. He tried to make it swerve to
the left because there was a furrow on the right which he wanted to
avoid. The vehicle failed to go straight. As if propelled by
so he said, the vehicle rose and fell.
PW2 testified that he saw as if PW1 went out through the
window while the other passenger might have gone out
through the door.
The driver went on to say that because of the mixture of
rain and mist he could see only a distance of 20 metres ahead of him.
asked to give to the Court his idea of that distance he pointed
to an object estimated by both Counsel and the Court at 60 paces.
This was not unusual. A big majority of witnesses who time and again
come to testify before this Court get roundly beaten when
it comes to
estimating distances and time.
PW2 testified that this vehicle driven by him an Isusu
van with registration letter and numbers G 0304 belonged to one
who had died. The vehicle had set out for Maseru to
convey grocery and items which would be used for Lepelesana's
PW2 said he believed this vehicle had been ensured
because he saw a token of Insurance disc on which was written
The deceased Lepelesana who was the owner of
this vehicle was the younger brother of PW1.
PW2 said that he believed the portion of the road where
the accident occurred was slippery because the tar is very fine at
PW2 said he had previously used this vehicle for a
month, doing odd errands in preparation for the owner's funeral.
There was a long
delay before the deceased could be buried because of
a dispute over his body. The burial occurred at least a month
the Court awarded the body to the successful parties
who included PW1.
PW2 said he didn't consider himself to blame for the
accident. PW1 also said PW2 was driving properly when the unexpected
in which the accident occurred, happened. But in pleadings
the plaintiff indicated that the accident occurred because the driver
"was driving at an excessive speed considering the
load carried on the vehicle and as a result failed to negotiate the
at which the accident occurred." See para 3(f) of the
In paragraph 3(h) he actually states that "the
driver drove negligently".
In paragraph 4(d) of the "Further Particulars"
the plaintiff states the amount of M50-00 in respect of medical
was thus inflated by error and explains that the actual
amount was M6-00.
He said he was not sure if the vehicle was insured.
Indeed papers before roe bear nothing to indicate that
this vehicle was insured with the defendant against accidents
suffered by or
risks undertaken in respect of 3rd parties.
The plaintiff said he paid M80 multiplied by three for
hospitalisation and medical expenses but was not given any receipts.
is difficult to accept. this witness was even very shifty on
this point. The text should help bring that to the fore. For
"How much was paid to the hospital as medical
expenses...? Three times R80 is the amount in respect of the last
doctor I saw.
Did he give you the receipts....? Yes. You have
them....? It does not show money.
Which doctor didn't give you the receipt....? Dr. Rust
in Berkly East, Even in Lesotho they don't show money.
You knew you were going to claim basing youself on
moneys expended....? Yes.
You had to prove the amounts....? Yes.
Why didn't you claim the receipts for subsequent
use at trial then ? My mistakes caused by
When you go to a doctor you claim receipt. How
would you prove your claim then ? I will not
argue. That will be it.
Did you tell your lawyer M240 was paid to Dr.Rust ?
Nothing of the sort is shown in the pleadings....? If he
is careless I won't argue.
He says you paid M6-00 ? Yes in Lesotho.
At Mohale's Hoek hospital you mean ? Yes.
Where is the receipt ? I said they don't give
Mohale's Hoek Government hospital does not
issuereceipts ? I don't know.
They should have given you a receipt for money
spent ? because I am disabled it may have
Meaning you might have been given a receipt....?
This should suffice in disposing of the claim under the
heading medical expenses. The plaintiff has clearly failed to proof
damages in this respect.
The plaintiff complained that after the accident his
neck had tilted to one side and that he had to undergo medical
treatment to put
it right. He also complained that the neck gave him
a lot of pain. He attached to his papers a medical report to support
It is important to observe what answers the
cross-examination elicited in this instance. This is what was said:-
"You signed your statement when you made yourclaim
with the Insurance ? Yes
Did you see there was a medical reportincorporated
with the claim ? Yes
Did you read it....? I can't read the doctor's
writing. I read it but did not understand.
I'll read it to you: Patient had osteoarthritis of the
spine before the accident....? I didn't read that.
I put it to you you had osteoarthritis of the
spine.....? I deny.
You deny your doctor's finding....? No.
He says you had a condition of the spine before the
accident....? What he says is not what I say.
I put it to you as you get old your bones thicken due to
accretion... .? You know. I don't.
Yours have done so....? No
The doctor makes no mention of a cut you say you had in
the head nor. any loss of blood....? It is in my Book of health.
But your doctor whose report is attached to
claim form does not mention that ?
I can't argue with the doctor's failure to write.
Court: But your claim form is based on your
doctor'sfindings ? Yes
Counsel wants to know why then the doctor doesnot
mention that ? That's strange
Defence Counsel: You know your attorneys were
asked to say every injury you suffered ?
I don't know. That's their business.
Did you tell them about cut on the head....? I did.
They did not refer to any laceration on thehead ?
That's my lawyer's mistake.
Your lawyers attached the report to your, claim
form ? I don't argue.
When asked what injuries there were, theyreferred to
the medical report attached to theclaim ? My attorneys were
They would have mentioned it if it was there
? I can't argue about a mistake made by
my lawyer. The mistake is by them not me".
Again the above text shows that the plaintiff's claim
about pain and suffering due to the tilted neck and a laceration on
all caused by the accident is not supportable by any
evidence he has adduced before Court. His doctor's report
He attributes his failure to put useful material in
support of his claim to his lawyer's remissness. All these defects
in his case cannot surely be placed at the defendant's
door. It is the plaintiff's business to establish his case. I feel
Therefore the claim under the heading pain and suffering
is also dismissed.
Now turning to the question whether the vehicle was
insured with the defendant, evidence in that respect is very scanty
It goes under cross-examination of PW2 as
"How many discs or token of insurance markshad
this vehicle ? Two.
Did you see anything on these discs besides
the word "Insurance" ? Only insurance
What did you see on them.....? Year the licences and
Insurance were issued.
Nothing else ? Insurance documents.
Where were they ? In the cubby hole.
We are talking about tokens on the windscreen ?
Then those are the only ones.
You are not sure what year that was....? No
Nor the Insurance Company....? I didn't ask the owners
But you could see it on the disc if it was there......?
I didn't get to see".
Nothing then in the above text nor in the
evidence-in-chief has come out to enable the Court to come to the
conclusion that the vehicle
in question was insured with the
defendant against injuries to third parties.
At the end of the case for the plaintiff Mr.Molyneaux
for the defendant applied for the defendant's discharge from
liability to the plaintiff.
He relied on Order 18 of 1972 section 13(1) relating to
Motor Vehicle Insurance.
With regard to liability arising from insurance under
the above Order section 13(1) read with 13(1) (iii) says -
" A registered company which has insured or is
deemed to have insured a motor vehicle in terms of section 4 or 6
shall be obliged
to compensate any person whatsoever (in this section
called the third party) for any loss or damage
which the third party has suffered as a result of -
any bodily injury to himself
the death of or any bodily injuryof any person;
Provided that (iii) the registered company shall not be
obliged to compensate as aforesaid any person who has suffered any
damage as a result of bodily injury to or the death of any
person who, at the time of the occurrence which caused that injury or
death was being conveyed otherwise than for reward and otherwise
than in the course of the business of the driver or owner of
motor vehicle in question and otherwise than in the course of his
employment as the servant of the driver or owner, in or upon
motor vehicle or was in the act of entering or mounting that vehicle
for the purpose of being so conveyed, or was in the act
from that vehicle after having been so conveyed".
The facts reveal that the plaintiff had not mounted this
vehicle for purposes of being conveyed for reward. The driver
not the servant of the owner of the vehicle. The driver
then cannot have had any business in respect of which it could be
plaintiff had mounted that vehicle as envisaged in the above
The vehicle itself belongs to the deceased Lepelesana in
respect of whose funeral preparations the vehicle was being used. In
Lepelesana's business had come to a stop when he died.
Thus it cannot be said the vehicle was being used for
his business or even his interest, as he had neither because he had
paragraph 3 of the plaintiff's declaration to the extent
that it attributes use of the vehicle to business of the owner, would
to be out of place.
In A.A Mutual Insurance Assoc. Ltd. vs Biddulph and
Another 1976(1) 725 at 738 Trollip J A has this to say :
"On these facts, did the survey constitute a
'business' within the meaning of proviso(lll) of sec.11(1) of that
Act? Now 'business'
is a vague, elastic concept capable of
sustaining a great variety of connotations, some wide,
the word 'business' has two distinct meanings:
a wide one - 'any particular matter oraffair of
serious importance', and
the narrow one (i.e. meaning'an activeoccupation or
profession continuouslycarried on')
In Maharaj's and Singh's cases the
narrower meaning was also chosen. One of the reasons was (seeMaharaj's case at pp 708 F to 709 D) -
'because the Act interfered with the prior activities of
insurance companies, the tendency would be to adopt that
narrows rather than widens the scope of the
liabilities of a registered insurance company under the Act'.
However, this Court has now firmly pronounced . that,
as the Legislature intended by the Act to give the greatest possible
to third parties, words or phrases in proviso (iii) of
uncertain meaning should be construed in their favour and against
In Maharaj vs New India Insurance Co, Ltd 1965
(3) SA 704 it is said -
".... The purpose of the proviso is to
exclude passengers in general who enter a vehicle of
their own free will. This does not include servants or passengers
who pay for
conveyance or who travel in the course of the driver's or
owner's occupation. These have a common denominator or continuous
activities and not casual, isolated, social or domestic
activities, however important to the passenger, driver or owner".
I have no doubt that the trip was very important to the
plaintiff and not less so to the driver. But by its very nature and
it was an isolated domestic activity carried on to prepare
for the owner's funeral. If in this sense the business carried on is
in contrast to an occupation that is distinguished from pleasure it
nonetheless falters when put to bench-mark whether this trip
constituted the deceased owner's business, or "matters to be
attended to on his behalf". To my mind matters are attended
on a person's behalf provided that he has ordained what has been done
for him or he has ratified or approved what has been done
for him if
he had not ordained it in the first place. But he can do neither if
he is dead. Thus neither of those, if done, can
properly be regarded
then as his business.
In Dlamini vs Southern Insurance Association Ltd
1980 *3) (TKSC) 533.at 535 where Munnik C.J. (as he then was) said
"None of the cases quoted by Counsel nor any case
that I was able to find covers the point in issue here. Dicta
to the effect that the business may relate to a single transaction
and that a business does not necessarily have to be one involving
financial reward or profit motive(Biddulph's case) do not
assist in the present case. It seems to me, if one looks at the
general intention of the Legislature in enacting the
question, as I have endeavoured to sketch it above, then to include
any form of activity which is essentially of a
domestic nature would
so enlarge the field of the insurer's liability as to render the
provisions of S. 23(b)(ii) nugatory. To hold
that a driver taking
his child to hospital is acting in the course of his business would
mean that every time a housewife takes a
domestic servant with her in
the car to carry her purchases of the week's groceries from the
supermarket to the car or that when
she takes her children to school
by car she is doing so in the course of her business as a housewife.
These propositions have only
to be stated to be rejected. In my
view, applying the dictum of Trollip J A in Biddulph's case
that every case has to be decided on its own merits, I am satisfied
that in the present case the taking of a child to hospital
is not an
action in the course of the business of the father\driver of the
vehicle within the meaning of that phrase as used in the
Likewise I don't think the meaning of that phrase as
used in section 3 (1)(iii) for our Motor Vehicle Insurance Order 18
of 1972 qualifies
the plaintiff to be compensated by the defendant
Insurance Company even if the vehicle he was travelling in when the
had been shown to be insured by the defendant in
this case. In this case it has not even been
shown to be so insured. The protection for 3rd parties
travelling in such vehicles lies in Criminal Courts. Not this Court
For these reasons the plaintiff's case was dismissed
J U D G E 7th February, 1992
For Plaintiff : Mr. Putsoane For Defendant : Mr.
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