CIV/T/577/84

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

APHOKA
KHUTLANG Plaintiff

V

LESOTHO
NATIONAL INSURANCE

COMPANY
(Pty) Ltd, Defendant

JUDGMENT

Delivered
by the Hon. Mr. Justice B.K. Molai on the 28th day of October, 1988.

This is
an action in which plaintiff herein, duly assisted by her husband
Benedict Khutlang, claims against the defendant, payment
of
M16,132.50 as damages, interest at the rate of 11% per annum a
tempore morae, costs of suit, further and/or alternative relief.
The
action is opposed by the defendant company which has duly filed its
plea to plaintiff's declaration to the summons.

It
emerges from both the pleadings and the evidence that plaintiff is an
employee of Mohlomi hospital on the outskirts of Maseru
Township. The
defendant is an authorised insurer in terms of the motor vehicle
Insurance Order 1972.

On 19th
January, 1984 plaintiff and her married daughter, Cecilia, proceeded
from their home village at Lithabaneng for Maseru Township
where they
were to consult a medical doctor. At about 9.15 a.m. on the same day
they and other people were waiting at a bus stop
next to Thoahlane's
shop along the Maseru/Mafeteng public road where they intended
embarking taxis going

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down
town.

According
to their evidence Plaintiff and Cecilia were standing off the tarred
surface, on the left side, of the road as one travels
in the
direction towards the Maseru Township when they noticed a van with
regis­tration Number A.0649 travelling towards the
town, As it
approached them the van was travelling in a high speed and zig-zag
fashion. Although she was surprised at the hazardous
manner in which
it was being driven Plaintiff waived for the van to stop so that she
and Cecilia could travel in it to Town.

Motseko
Mokheseng testified on behalf of the defendant company and told the
court that he was the owner of the van A.0649 which
was duly insured
with the defendant company. On the day in question he was tra­velling
in the van along the Maseru/Mafeteng
public road. He was in the
company of one Phillimon Lebenya who was sitting on the passenger's
seat. As they approached the bus
stop next to Thoahlane's shop at
Lithabaneng the van was travelling at the speed of about 50 km an
hour and straight on its correct
lane of the road i.e. the left side
lane of the road as one goes towards the Maseru Township. Motseko and
Phillimon denied, therefore,
the testimony of both Plaintiff and
Cecilia that as it approached the bus stop next to Thoahlane's shop
the van was travelling
in a high speed and zig-zag fashion.

If it
were true that the van was being driven in as hazardous a manner as
Plaintiff and Cecilia want this Court to believe, I must
say I find
it difficult to apprehend how Plaintiff would have waived for it to
stop so that she and Cecilia could travel in it
to town. Moreover, in
her own words, Plaintiff and Cecilia were waiting for taxis at the
bus stop. It seems to me unlikely therefore,
that Plaintiff would
have waived for vehicle , A.0649 to stop for this was clearly a van
and not a taxi. In my view, a natural
reaction for Plaintiff if the
van were travelling in the manner she wants this court to believe
would have been to move away from
the road and

3

let the
van pass without her, I am inclined, therefore, to accept as the
truth the story of Mokheseng that as it approached the
bus stop next
to Thoahlane's shop his van was travelling at the speed of about 50
km an hour and straight on the left lane of the
road as one goes in
the direction towards Maseru and reject as false plaintiff's version
that it was travelling in a high speed
and zig-zag fashion.

Be that
as it may, it is common cause that on that morning of 19th January,
1984 plaintiff was knocked down by the van A, 0649 next
to the bus
stop at Lithabaneng. It is also common cause that although the
Maseru/Mafeteng road is ordinarily a very busy road it
was not busy
on that morning. In fact as the van A. 0649 approached the bus stop
only one vehicle passed in the opposite direction.

According
to Mokheseng as he approached Thoahlane's shop he noticed that there
were a group of women waiting at the bus stop. A
number of people was
also walking on the right side of the road. After passing that other
vehicle which was going in the opposite
direction he noticed a little
child of about 2 years old suddenly running across the road. It was
running from amongst the people
who were walking on the right side of
the road and going towards the group of women waiting at the bus stop
on the left side of
the road. He immediately applied the brakes and
his van came to a halt. However, realising that the little child was
going to.
bump against the body of the van, Mokheseng released the
brakes and moved the vehicle forward so as to avoid the child. As he
successfully
did so, he heard a sound of something hitting his van
and noticed a woman lying on the bonnet of the van. He applied the
brakes
at once and as he did so, the woman dropped down in front of
the van. He could not have swerved more to the left for fear of
killing
the women he had seen waiting at the bus stop and so the
collision occurred on the tarred surface of the road.

4

In as far
as it is material, the evidence of Mokheseng is corroborated by that
of Phillimon who told the court that whilst Mokheseng
was busy
struggling with the van so that the child might not bump against its
body he noticed the plaintiff suddenly running into
the road. As he
drew the attention of Mokheseng to what she was doing plaintiff was
hit by the van.

Mokheseng
further told the court that after she had dropped in front of the
van, he went to speak to plaintiff who explained that
she thought he
was going to kill a, child of her daughter. He did not remove his van
from the road and it remained in the same
position until the traffic
police had arrived. Plaintiff had to be rushed to the hospital in
another vehicle. He also held the
little child until the arrival of
the police. He. was the one who showed the point of impact to the
traffic police.

The
evidence of Tpr Khutlang who testified as P.W.6 in this case was to
the effect that he was plaintiff's son. He joined the police
force in
1985 so that in 1984 he was not yet a police officer, On the day in
question he was in a cafe next to the bus stop at
Lithabaneng when he
heard the sound of a collision. He went out of the cafe and notice
that a van had knocked down a person on
the road. When he went to the
scene of accident Tpr Khutlang found that the person who had been
knocked down by the van with registration
number A, 0649 was the
plaintiff, his own mother. She was lying on the tarred surface of the
road in front of that van. He noticed
that plaintiff was bleeding
from the head and the windscreen of the van was broken. He assisted
in conveying plaintiff to the hospital
from where he went to report
at the police station. He was, however, not present when the traffic
police officers came to the 3cene
of accident and the point of impact
shown to them. According to him at the time he was at the spot where
plaintiff had been knocked
down by the vehicle Tpr. Khutlang noticed
his little nephew, who was

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the child
of Cecilia, next to the cafe about 50 yards away from the scene of
accident. He did not, however, know when and how the
child had come
there.

Sergeant
Mathaba testified as P.W.5 and told the court that on the day in
question he received a report following which he proceeded
to a place
next to Thoahlane's shop at Lithabaneng. He found the van with
registration numbers A. 0649 which had allegedly collided
with a
pedestrian. The pedestrian was no longer there but the van was still
standing on the road. The driver of the van was one
Mokheseng who
showed him the point of impact and explained that the accident had
occurred as he was trying to avoid a little child
who was running
across the road and the pedestrian ran into the road. On inspecting
the scene of accident he found that the road
was tarred and fairly
straight. There was nothing to obstruct one's, view for a distance of
about 150 yards. No skidmarks could
be detected either on the tarred
surface of the road or on the gravel portion of the road. The weather
was very clear on that day.
The van itself had a broken windscreen, a
dented bonnet and grill. It was standing on the tarred surface, on
the left lane, of
the road as one travelled in the direction towards
Maseru, There was blood and broken pieces of glass on the tarred
surface of
the road and in front of the van which was facing
straight. He accepted, therefore, the point of impact as shown by the
driver,
Mokheseng,. He proceeded to take measurements of the scene of
accident. He made notes at the time he was taking the measurements.

On the basis of those notes he compiled the accident report as per
completed form L.M.P. 29 which he handed in as exhibit "A"

and part of his evidence.

The
evidence of both plaintiff and her daughter, Cecilia, as to how this
accident had occurred was slightly different. Although
she initially
denied that at any time, the child of her daughter, Cecilia, was in
the vicinity of the scene of accident plaintiff
later conceded that
as she waited at the bus stop she did see

6

the child
on the other side of the road. Indeed, Cecilia confirmed that before
the accident occurred she had seen her 2½
years old child on
the other side of the road coming towards the place where she and
plaintiff were waiting. She and plaintiff
denied, however, that at
any time the child ran across the road as described by Mokheseng and
Phillioon, According to plaintiff
and Cecilia in its zig-zag movement
the van was going out of, and back into, the tarred surface of the
road. The last time it went
out of the tarred surface of the road the
van knocked down the plaintiff who was just standing on the gravel
portion off the tarred
surface of the road.

I have
already found that it is not correct that the van was travelling in a
zig-zag fashion on the road. After all if it were true
that the van
had careered out of the tarred surface of the road and, as it did so,
knocked down the plaintiff who was standing
on the gravel, it seems
to me, she would have fallen outside and not inside the tarred
surface of the road. Again, if the van first
went out of the road and
on its return into the road hit the plaintiff who dropped in front of
it the van would have stopped facing
more or less across and not
straight in the road. The fact that after knocking down the plaintiff
who dropped in front of it the
van was found facing straight ahead on
the road leaves no doubt in my mind that at the time of the collision
the van was travelling
straight on the road.

That
being so, the question that immediately arises is how did it come
about that plaintiff was knocked down by the van on the tarred

surface of the road. In my view the evidence of both Mokheseng and
Phillimon that at the time this accident happened plaintiff
suddently
ran into the road to rescue the little child who was running across
the road is a sensible explanation. Although plaintiff
and Cecilia
denied that the little child was any where in the road and plaintiff
did not suddenly run into the road to rescue it.,
I am not

7

convinced
that they are being honest with this court. I am prepared, therefore,
to accept as the truth the story of Mokheseng and
Phillimon that as
the former was struggling to avoid the little child who was running
across the road plaintiff suddently ran into
the tarred surface of
the road to rescue it and reject as false, therefore, the version of
both plaintiff and Cecilia that this
did not happen.

Plaintiff
further told the court that although she fainted a little when she
was knocked down by the van she could feel it when
she was being
carried into the vehicle which transported her to Queen Elizabeth 11
hospital where she was admitted from 19th January,
1984 to 25th
January, 1984. As a result of the accident she sustained injuries.
She was unable to go to cinema and football matches.
She could
neither walk for long distances nor stand for a long time. She
incurred medical expenses in the amount of M68.50.

It is
significant to note, however, that apart from annexure "B"
to the reply to further particulars, a note certifying
that plaintiff
had paid M8.50 for her hospitalization and that the original receipt
thereof was lost - no receipts of any sort
were produced in support
of the amount of M68.50, Indeed, it is worth mentioning that although
annexure "B" purports
to have been issued on 7th August,
1984 by someone in the Accounts office of the Principal Secretary for
the Ministry of Health,
it is not written on a paper bearing the
letter heads of the Ministry of Health. It is written on a leaflet
from "Dreyer Printers
and Publishers" of Bloemfontein. I am
not convinced that satisfactory evidence has been adduced as proof
that plaintiff had
incurred medical expenses to the tune of M68.50 in
this case.

In any
event, Dr. Siddique testified, as P.W.2, that he was the Specialist
who attended to plaintiff at Queen Elizabeth 11 hospital.
His finding
were that

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apart
from the fracture of her (R) humerus plaintiff had sustained only
minor injuries viz. laceration on the forehead and an abrasion
on the
left leg. In the opinion of Dr. Siddique the injuries would neither
disable plaintiff in any way nor prevent her from attending
football
matches and cinema. I can think of no good reason why Dr. Siddique's
evidence in this regard should be doubted.

Considering
the evidence as a whole, I am satisfied that on the morning of 19th
January, 1984 the van A.0649 which was, at the time,
admittedly
insured with the defe­ndant company and driven by its owner,
Tseko Mokheseng, collided with the plaintiff. As I
see it, the
salient question for the decision in this case is whether or not the
accident occurred as a result of the negligent
driving of Mokheseng.
Plaintiff contends that it did whilst the defendant says it did not.

As
indicated earlier in this judgment, I have found as the truth the
evidence that at the time he was approaching the bus stop next
to
Thoahlane's shop at Lithabaneng Mokheseng noticed a group of women
standing at the bus stop which was to his left. He then saw
a little
child of about 2½ years old running across the road from the
right to the left. He could not swerve more to the
left without the
risk of injuring the women at the bus stop. He, therefore, applied
the brakes and brought his van to a halt. Realising
that the little
child was going to bump against the body of the van and injure itself
he took the avoiding steps by releasing the
brakes and moving the van
a little forward. But as he did so plaintiff also suddenly ran into
the road and was, in the process,
hit by the van.

Assuming
the correctness of my finding in the pre-ceeding paragraph, there can
be no doubt, therefore, that Mokheseng, the driver
of the van A.
0.649, found himself placed between two horns. On one hand if he did
not release the brakes and move the van a little
forward he was bound
to injure the little child who was running

9

across
the road. On the other hand if he released the brakes and moved the
van forward to avoid injuring the child he was bound
to injure the
plaintiff who had suddenly run into the road.

In the
circumstances of this case, I am of the opinion that Mokheseng the
driver of the van A. 0649 was entitled to consentrate
his attention,
as he did, on the little child to avoid injuring it and anticipate
that plaintiff and the other women who were standing
off the shoulder
of the tarred surface of the road would behave reasonably like grown
ups. However, by suddenly running into the
road as she did, plaintiff
did not behave reasonably like a grown up and she was, in my opinion,
the sole cause of that accident.

It has
been suggested that Mokheseng did not blow the hooter of his van and
failure to do so rendered him negligent in his driving.
I am not
pursuaded. On her own mouth plaintiff was aware of the approach of
the van. There was no need, therefore, to draw her
attention to its
approach by hooting.

By and
large, I am satisfied that the question I have earlier posted viz.
whether or not this accident occurred as a result of the
negligent
driving of Mokheseng must be answered in the negative. In my view,
that alone is sufficient to dispose of this case.
It would be purely
academic to proceed to deal with, other issues.

I would
accordingly dismiss, this case with costs.

B.K.MOLAI

JUDGE

28th
October, 1988.

For
Plaintiff : Mr. Monaphathi

For
Defendant : Mr. Molyneanx.