IN THE HIGH COURT OF LESOTHO
In the matter between:
THABANG MALELU Plaintiff
LESOTHO NATIONAL GENERAL
INSURANCE COMPANY Defendant
Delivered by the Hon. Mrs
Justice A. M. Hlajoane on 15th
The plaintiff in this case has
instituted action against theDefendant for bodily injuries
sustained by his wife MankemelengMalelu. The accident occurred
along the Main North One road atthe Oxford robots on the 8th
April, 2000, when Mankemeleng wasknocked down by a motor
vehicle bearing registration No.AN 131.
What this Court has to determine
is the question as to who wasnegligent between the driver of the
motor vehicle AN 131 andMankemeleng in relation to that
collision. The Plaintiff in support
his case called in evidence of three witnesses.
The first witness was the
Plaintiff himself who did not havemuch to say except telling the
Court that he was informed by thedriver of vehicle AN 131 of the
accident. He was forced to bringthis claim because the Insurance
Company, the Defendant, hadrepudiated liability.
The second witness was
Mankemeleng herself, the person whowas involved in the
accident. According to her, they had waitedoutside the road
together with others including the woman in hercompany. They had
waited for the robots to allow pedestrians tocross by showing a
green man. Mankemeleng crossed as thegreen man appeared. She
had seen the vehicle coming at a highspeed but she crossed as the
robots were in her favour. The vehicledid not stop but knocked
showed that when the accidentoccurred the time could have been
between 5 and 5.30 p.m. Beingon a Saturday afternoon the road was
not very busy according tothis witness, but she had looked to
check for traffic on both sidesbefore she crossed. The road had
double lanes both sides. Thewitness was the first to cross.
it was suggested to this witness that her vision wasobscured by
taxis that had parked outside to pick up passengers, she
responded by saying there were no taxis there as there was noparking
for taxis. She went further to say that there was only apavement
where street vendors were selling fruits. The vehiclesthat were
there were those that had stopped in the road waiting forthe
robots to turn green. The vehicle that knocked her down was a4 x
4 travelling in the inner lane.
The last witness was the woman
who was in Mankemelengscompany. Her evidence was similar to
that of Mankemeleng asregards the time of the accident and
when they had crossed theroad. She was coming behind
Mankemeleng. She said as she sawthe vehicle coming to pass
against the robots, she shouted toMankemeleng but she could
not hear her. The vehicles on thefirst lane had stopped but
vehicle AN 131 on the inner lane justpassed and collided with
According to this witness there
was a lot of traffic that day andthere was a good number of
people who had waited outside for therobots to show a green man
for them. She was on the first lanewhen Mankemeleng was struck
down on the second lane.
driver of vehicle AN 131 gave evidence for the defendant.
According to him, the accident took place at around 7.15 p.m. andhad
already put on the lights. He drove on because the robots werein
his favour, but Mankemeleng just rushed into the road. He saida
number of taxis were touting on the outer lane and he was on
theinner lane. According to him the taxis had blocked traffic.
Thewitness saw two pedestrians crossing following each other. As
thefirst one was hit the one behind retreated.
In his evidence, he had seen the
pedestrians as he neared therobots. He later qualified his
statement by saying he never saw thepedestrian before she crossed
the road. He had applied the brakesbut the pedestrian was already
infront of the vehicle. He deniedthat he was travelling at a high
speed but said there was nothing hecould have done in order to
avoid the accident.
It was this witness who reported
the matter to the police andinformed them what time it was when
the accident occurred. Thepolice found him at Queen II hospital
as he had rushed thepedestrian to hospital. The police report
showed that the accidenttook place at 17.20 hrs which is 5.20
p.m., being the timementioned by two witnesses for plaintiff. The
Defendant had also
the police that it was 5.20 p.m. but before Court he had turned
to say that the time was 7.15 p.m.
The Defendant was asked to give
a reason why police couldhave written something different from
what he had told them, butcould not come up with any reason at
all. The Defendant evenconfirmed that the police were taking
notes on their notebooks ashe was giving them information about
the accident. The Defendantwas travelling along a tarred straight
road, and the weather wasclear.
What one may say in relation to
the time of the accident is that,the Defendant wanted to change
from what he told the police to7.15 p.m. so that maybe it could
be said that it was already dark.The cross examination revealed
that the speed limit allowed at thatarea was 50 k.p.h as the
place is a build up area.
Even assuming that it was true
his view was obstructed by taxistouting in the road, that would
be the more reason why he had toapproach the area with more care
and caution and reducing speedeven more than was allowed.
Defendant said he had reduced hisspeed even lower than the legal
speed. The Defendant could noteven remember if the other vehicles
from his direction stopped at
robots for the lights to turn green.
The Defendant had seen the
Pedestrian some 4 paces awaybefore the accident, and according to
him he had lowered his speedto 30 k.p.h. Defendant admitted that
there was a pedestriancrossing there. So that for a careful
driver once approaching apedestrian crossing where there is an
obstruction much care andcaution had to be exercised.
The driver of motor vehicle AN
131 told the Court in evidencethat he reduced speed when he saw
the pedestrian in the road buthas given us no reason why he
failed to stop at an emergency atonce. He never said that his
vehicle had a mechanical problem,what he said was that taxis had
stopped on the outer lane toutingfor passengers. He also said
that the weather condition was clearand the road good. In fact
there were no contributing factors thatcould have prevented him
to stop immediately, if that was theposition the driver ought to
have approached the robots with muchcare and caution.
The Defendant cited the case of
Beech and another v Setzkornand another 1928 CPD 500 at 504,
where the learned Judge hadthis to say that, A pedestrian
who wishes to cross a street which
being used by motor cars must in my opinion use his senses
toascertain whether a motor car is approaching. If he steps into
a street without looking, he is in my opinion negligent, because
it isas much his duty to take care to avoid being injured as it
is that ofthe driver of the car to avoid running over him.
and his companion had said when they got to therobots
they waited until the traffic lights turned red to the motorvehicles
and green for them and then crossed. They did what inthe opinion
of the Judge in Beechs case above was necessary.They did not
enter the road against the robots. These twowitnesses
corroborated each other on that important aspect and alsothat it
was not true that there were taxis touting on the outer lane.They
said the outer lane had vehicles which had stopped becausethe
robots had closed for them. These witnesses also satisfied thetest
in Swanepoel v Parity Insurance Co. Ltd 1963 (3) S.A. 819where
it was held that a pedestrian intending to cross the road hasthe
primary duty to make sure that he chooses an opportunemoment.
In our case Mankemeleng
waited with others outside the roadfor the robots to turn green
in her favour, and that was when shecrossed together with others.
The above case also shows that
need not be ready for any emergency created by people or vehicles
who enter the road unexpectedly from the sides. Butthere is
still a qualification that, where drivers under suchcircumstances
have ample opportunity to see a pedestrian soentering the road
and is unskilful in not swerving, he must bear theshare of the
The driver of the vehicle has
said he had seen the Pedestrianwhen he was 4 paces away, but he
failed to stop in order to avoidthe accident. That alone goes to
show that the driver was going ata high speed not at 30 k.p.h as
he said. I will come to the questionof sharing the blame or the
taking of full responsibility by thedriver.
According to Edwards v
African Guarantee and IndemnityCo Ltd, 1952 (4) S.A 335 at 342,
negligence is the absence of thestandard of care which a
reasonable and prudent person wouldexercise in the same
circumstances as those in which the Defendantthrough that driver
was situated. Assuming we were to believe thestory of the driver,
where there were taxis touting, then there wasbound to be
pedestrians either crossing to the taxis or alightingfrom same
taxis and crossing immediately. A careful driver at suchpoints
ought to have not just relied on the traffic lights but kept a
look out. But in casu, two witnesses have already shownthat
they crossed after the vehicles had stopped at the robots andthe
lights turned in their favour.
There could therefore be one
conclusion, that the driver came atsuch a high speed when he
realized the robots were about to close,resulting in the
collision with the pedestrian in the inner lane.
I am not going to rely on the
minutes of the police officer whovisited the scene as he was not
called to give his side of the story.But what the driver told
this Court was that he was the only one atthe scene when the
police visited the place. Two of the Plaintiffswitnesses gave
the time for the collision as around 5.00 p.m. andwere never
discredited under cross examination. The driver onlymentioned the
time as 7.15 p.m. when he gave evidence. It wasnever put to the
Plaintiffs witnesses that it was not around 5.00p.m. as they
alleged but was 7.15 p.m. and had already put on thelights.
Even assuming it was at 7.15
p.m. as he alleged, considering hisstory at 7.15 with taxis
touting in the road, that alone called forexercise of care and
caution at the robots where there was apedestrian crossing.
v Shield Insurance Co Ltd 1980 (4) S.A at 625 stillshow that
though drivers are expected to be constantly on the lookout; it
would be too high a duty on them to require them regulatetheir
driving to avoid even unseen Pedestrians who just emerge andrush
into the road. Each case has to depend upon its own
facts.Mankemeleng was seen by the driver some paces away
The Defendant has also pleaded
contributory negligence on thepart of Plaintiffs wife. He said
the pedestrian just rushed into theroad without keeping a proper
look out. But two witnesses for thePlaintiff have explained that
they had waited for the opportunemoment to cross, and only
crossed when the lights were in theirfavour and vehicles had
stopped. The driver himself said he sawthe pedestrian some 4
paces away before knocking her down. Thatdistance showed that if
the driver had been careful, he could haveavoided the accident.
Plaintiffs wife said in her
evidence that she crossed when shesaw the robots turn green in
her favour. She had seen the vehiclecoming at a very high speed
but she nonetheless crossed as thelights allowed her to cross.
decision in Swanepoel v Parity Insurance Co Ltd 1963(3) S.A
819 shows that where a driver has ample opportunity tosee
a pedestrian so entering the road and is unskilful in notswerving,
he must bear the share of the blame, albeit a lesser share,if he
collides with such pedestrian.
In casu, the driver saw
the pedestrian some paces away butbecause he was coming at a high
speed he failed to stop at anemergency. I have already shown that
two of Plaintiffs witnesseshad said they had crossed because
the lights were green for them,and I had no reason not to believe
their stories as they crossedfollowing each other. The driver had
given no reason which couldhave prevented him from stopping at
once to avoid the accidentwhen he had noticed the pedestrian from
Much as the driver of vehicle
AN 131 was negligent at drivingat a high speed and against
traffic lights, and according to hisversion being obstructed by
taxis touting in the road, Plaintiffswife also had some
contribution in ignoring the speed at which thevehicle was
approaching the robots though the lights were in herfavour. She
could have waited to see if the van was going to stopbefore
passing over from the outer lane to the inner lane.
the circumstances of this case therefore, I am going toapportioned
the damages appropriately. Plaintiff had asked forjudgment
against the defendant in the sum of M162,648.00, butbecause both
sides have contributed to the accident, Plaintiffs damages
require to be reduced in proportion to her degree of faultby 50%.
I therefore allow judgment for
the Plaintiff in the sum ofM81,324.00 (eighty one thousand maluti
three hundred and twentyfour) with interest as prayed plus costs.
A. M. HLAJOANEJUDGE
For Plaintiff: Ms Tau
For Defendants: Mr Grundligh
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