CIV/T/161/04

IN THE
HIGH COURT OF LESOTHO

HELD AT
MASERU

In the
matter between

TELANG
KOFO Plaintiff

And

LESOTHO
NATIONAL INSURANCE CO. LTD Defendant

JUDGMENT
ON APPLICATION FOR ABSOLUTION FROM THE INSTANCE

Delivered
by the Honourable Mr Justice T.E. Monapathi On day of 16th May, 2007

This is
an application for absolution from the instance. The claim is for
damages arising from a motor vehicle accident. The Plaintiff
was
knocked down by a truck and was seriously injured. It was pathetic in
that the Plaintiff lost both his legs.

The
Plaintiff was represented by Adv. Moruthane. She closed Plaintiff's
case in the following circumstances. Only the evidence of
the
Plaintiff was led. The Plaintiff then closed his case. There were

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no
documents or exhibits. This is the situation that led to this
application for absolution by Mr. Laubscher for Defendant.

The claim
was made under Motor Vehicle Insurance Act 1989 (the Act). Mr
Laubscher for the Defendant submitted as follows. Section
6(1) (b) of
the Act provides that the insurer shall be obliged to compensate if
the injury or death is due to the negligence or
other unlawful act of
the person who drove the vehicle.

The Court
of Appeal's decision of Lesotho General Insurance Company V Lerata
Tsiu (C of A 29 of 2004) was said to have reference.
It was a similar
situation in that the plaintiff failed to establish negligence on the
part of the Defendant driver. In the circumstances
the court
confirmed the legal position by saying that at the end of all the
evidence the court must decide on a balance of probabilities
whether
the plaintiff has established negligence on the part of the defendant
(the driver of the vehicle).

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The only
question this court has to answer or to decide is whether there is
any evidence before this court upon which a reasonable
court can find
in favour of the Plaintiff on the balance of probabilities, this
being the proper standard.

There was
no single fact or any evidence from the Plaintiff's side to the
effect that the Defendants' driver was negligent as submitted

further. The only link that could be /or may be interpreted as
negligence is that one little sentence that the Plaintiff repeated
in
evidence-in-chief namely that the driver of the truck was driving at
a high speed. But there was no evidence before this court
whether
that specific place is built up area or an open place or main road
going through the fields? Whether there is a speed limit
of 50km or
120km. This was not stated. In other words the allegation that the
truck was coming at a high speed meant nothing. Indeed
as I observed
there was no approach of this kind or to lead evidence of those vital
details.

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On that
evidence led by the Plaintiff, as submitted by Defendant, no
reasonable court could make any order in favour of the Plaintiff

having regard to the aspect of negligence. There was no indication
that the truck driver was negligent. I observed as follows.

Looking
at the evidence of the plaintiff himself he emerged from behind a
taxi he was alighting from and hurriedly moved and walked
a few paces
into the road and when he saw the truck which was on top of him
already. It would appear then that on his own version
he walked right
in front of the truck in a quick and sudden manner without having
sufficiently looked out for movement of other
vehicles. I agreed with
respect this this appeared so.

Miss
Morurhane replied. She accepted that the motor insurance law rightly
prescribes that there is need to prove negligence of a
driver in a
motor vehicle claim. And then she added that however every road user
had a duty to the other road users.

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Here was
the truck driver in the road and then there was the Plaintiff. Each
had a duty to each other. The driver failed in observing
a duty on
his part This could not be said for the Plaintiff who received an
almost fatal injury which resulted in the loss of both
his feet as a
consequence of failure by the truck driver to observe his part of the
duty.

When
questioned as to how the truck driver was negligent counsel replied
most glibly: "He did not observe other road users
in his path.
He did not. A reasonable driver would have slowed down to allow the
other road users to pass. He did not do that"
In my opinion this
could not have been helpful having regard to the kind of evidence led
by Plaintiff and other deficiencies I
have earlier pointed out.

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In reply
as to the impression that was given by the Plaintiff himself, that he
was going fast into the road and when he looked at
the truck he
jumped when he saw the truck, which was suddenly upon him, Counsel
was only able to reply that when Plaintiff jumped
the truck was
already upon him. Perhaps with corroboration this aspect of the
evidence could not have appeared so shallow of substance.

The duty
of the truck driver comes in as, Plaintiffs Counsel added, because
here was a pedestrian trying to jump out and the truck
was coming at
on an extremely high speed. Counsel was however prepared to concede
that there was no mention by Plaintiff in his
evidence as to the
speed with which the truck was travelling nor was the extent of such
speed estimated nor was there evidence
of an onlooker or a second
person to estimate such speed in support of the Plaintiff.

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The
evidence of lookers or fellow passengers in my view was vital.
Counsel could only seek to explain that whoever were onlookers
or
travellers in the taxi did not live in the same area with Plaintiff
hence the difficulty is tracing any of them in to order
testify. I
thought this is an area of the evidence in which, with diligence, the
Plaintiff could have been assisted by police.
Surprising enough
Counsel was having difficulties in explaining why if the matter was
investigated by police there was no police
accident report nor a
police witness about the scene of the accident and so forth. This was
regrettable.

Plaintiff's
Counsel in answer to the question as to why supporting documents
could not have been discovered or put in evidence replied
that those
were attached to the further particulars to the claim. The court did
not accept that a document filed in reply to request
for further
particulars or some such pleading was sufficient evidence or proof if
it was not exhibited even if by consent or discovered.
There was no
such exhibit or a document from

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which the
court could be made to make certain evidential inferences. This added
to the dire condition of the Plaintiffs case.

It is
worth repeating that it was also difficult for Plaintiff counsel's to
explain why if the matter was investigated by police
there was no
police witness about the scene of the accident, an accident report
and so forth. And why she was not able to trace
people who could have
witnessed the accident. This is said on the presumption that once the
police go about their investigations
they collect statements of
witnesses at the scene or elsewhere as a routine procedure to build a
docket. This makes it, consequently,
easy to identify witnesses to
the event at the scene.

As to why
counsel would have found it difficult to get the information referred
to is baffling. It is even more surprising that
counsel conceded that
she did not make any attempt in that direction. In the end Counsel
would only say she tried but it was difficult
This is demonstrated by
Counsel's admission that none of

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the
police investigators of the accident were known to her. What more
need be said if police were not approached? They could have
been
subpoenaed if they were known. The unfortunate result was that this
court had only the unsupported evidence of the Plaintiff,
who did not
try to avoid the truck as counsel admitted.

When Miss
Moruthane rose to reply to Mr Laubscher's application it became very
clear that she had no basic understanding of what
an application for
absolution was in practice. Nor the concept which is analogous to
application for discharge of an accused at
the end of the Crown case
where it is contended that a prima facie case has not been made. See
also South African Law of Evidence,
LH Hoffman and DT Zeffert, 4th
Edition at pages 507-508. Or as it has been expressed by the
Appellate Division, the only question
is "whether at the closure
of the plaintiff's case, there was such evidence before it upon which
a reasonable court might,
nor should give judgment against the
defendant"

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That
there was such a basic lack of appreciation is illustrated by the
following speech from Counsel's argument

PC: "We
feel strongly that the defence should allow their witness to come
before the court"

HL: Their
witnesses? That their witness be made to come may be they do not like
that.

PC: If
they don't like the Honourable court is still left with no clarity
about whether their driver can put up a defence and convincing
the
court on what he could have done. The way we look at the case it that
he was definitely negligent.

HL: May
be they will be obliged to do that if there is a ruling that there is
a prima facie case.............................................

HL:
Besides to question of speed what else do we have?

PC: It is
whether the driver saw my client he did to try to avoid.

HL: May
be he did but the question is where is the evidence as Defendant's
Counsel argued or sought persuade the court.

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PC: That
he tried to avoid?

HL: That
he saw? Where is the evidence of gentleman (Plaintiff)?

He hasn't
said anything.

PC: If
you put that witness here and I cross him you will find that actually
what he alleges about seeing the man that driver..........

HL: You
are looking for the truth or while the court is looking for the
evidence. What requires is evidence. PC: How am I going
to find
evidence if the driver is not called here so that his evidence can be
examined? HL: Who should call him? PC: Can we call
their witnesses my
Lord?

It became
clear where approaches differed. It became as clear as sunshine that
the court was not going to be fully assisted by the
Plaintiffs
counsel.

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My
attention was brought to two leading South African cases by Mr
Laubscher. The first was authority on the alleged rule of the
road
that should have necessitated Defendant driver to take the witness
stand. It is firstly the case Barnoo V Shield Insurance
Company 1982
(1) SA 673(AD). In that case a pedestrian stepped into the road in
front of an oncoming vehicle. According to the
evidence the insured
vehicle, as in this case, was instantly on top of the pedestrian. The
court held that to expect someone in
this position of the ensured
driver to give a warning or a signal or take avoiding action would be
placing a too heavy burden on
such a driver. That is why it was held
that the driver was not negligent in that case.

The
second case is New Zealand Insurance VKarim 1963 (4) SA 872 (AD). In
that case a child crossed a street in exactly the same
way as the
present case being from a parked vehicle. The court held that the
driver could not be held to have anticipated the

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emergence
of the child there around and gave a holding that the driver was not
negligent.

In other
words, learning from the above cases, it is not only an original rule
of the road, it is a question of evidence that has
to be filed before
the court, that a driver committed a wrong in the form of negligence.
Similarly there is no such evidence before
this court. It could not
be said that the driver had been speeding when it has not been
testified as to the speed limit in that
area nor that in fact there
was such speeding.

The
problem of alleged speeding would even be put most awkwardly by
asking whether even if there was speeding it was irregular or
wrong,
in the circumstances of the case. That is the problem with this speed
aspect. Sudden behaviour of a pedestrian where the
driver is entitled
to drive at the speed he was driving at can also provide an excuse
for the driver. So that the aspect of speed
nowhere benefits the case
of the Plaintiff in objecting against

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absolution
from the instance. Hence my finding is that this application is well
placed.

Consequently
it is clear that in above circumstances the application for
absolution from the instance succeeds with costs.

T.
Monapathi

Judge