C. of A.
(CIV) No. 3 of 1981

IN THE
LESOTHO COURT OF APPEAL

In the
Appeal of ;

NOEL
THATHIWE SEKHONDE Appellant

v

LESOTHO
NATIONAL INSURANCE CO. Respondent

HELD AT
MASERU

Coram:

MAISELS,
P.

SCHUTZ,
J. A.

GOLDIN,
J.A.

JUDGMENT

Maisels,
P.

The
appellant was a fare paying passenger in a taxicab which was involved
in a collision with two other motor vehicles. All three
vehicles were
insured by the respondent, a registered insurer within the meaning of
the Motor Vehicle Insurance Order 18 ox' 1972
hereinafter referred to
as the Order. As a result of the collision which the appellant
alleges was caused by the negligence of
one or more or all the
drivers of the vehicles in question, the appellant in her declaration
claims to have suffered damages in
the sum of R7821-28 as a result of
injuries to her person sustained in the accident. These damages are
computed as follows:

1. "Medical
   and hospital expenses R150,00

   
   

2. Estimated
   future medical expenses 200,00 ;
   

   
   

3. Loss
   of earnings(from date of accident to date hereof) 353,04

   
   

4. Estimated
   future loss of earnings 2118,24
   

   
   

5. General
   damages for pain and suffering and loss of amenities of life 5000,00
   R7821,28 "

   
   

By virtue
of the provisions of section 13 and alleging compliance with section
14 of the Order the appellant claims

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that the
respondent is liable to compensate her for the damages set out above.
The respondent raised as one of Its defences that
is never received a
duly completed form MVI13 within the prescribed period of two years
laid down in the Order. The accident occurred
on the 22nd April 1978
but there is no doubt from documents which form part of the stated
case that a form MVI13 was received by
the respondent well within the
two year period, the real complaint being that the form delivered was
not in compliance or substantial
compliance with the Order. The
pleadings in the action have been closed but pursuant to Rule 32(1)
of the High Court Rules 1980
the parties submitted to the High Court
a special case ,for adjudication.

The
statement of agreed facts in terms of Rule 32(6) reads as follows :

1. "The
   motor accident giving rise to the claim In this matter occurred on
   the 22nd April, 1978.

   
   

2. As a
   result of the said accident the Plaintiff claims from the Defendant
   compensation for personal injuries in terms of Section
   13 of the
   Motor Vehicle Insurance Order No.18 of 1972 ("the Order").

   
   

3. In
   terms of Section 14(2) the Plaintiff was obliged to send or deliver
   to the Defendant a "claim for compensation" as

   contemplated by Section 14(1) of the Order within a period of two
   years from the 22nd April, 1978, as provided by Section 13(2)
   of the
   Order.

   
   

4. The
   "form prescribed by Regulation" to which Section 14(1) of
   the Order refers is the form MVI13 prescribed by Regulation
   6(1) of
   the said Regulations.

   
   

5. By
   letter dated the 15th January, 1980(Annexure"A" hereto)
   the Plaintiff's Attorneys sent a form MVI13 to the Defendant,
   and
   such form was received by the Defendant within the prescribed period
   of two years.

   
   

6. By
   letter dated 28th January, 1980(Annexure "B" hereto) the
   Defendant returned the said form to the Plaintiff's Attorneys

   requiring

   
   

1. "that
   correct answers are given to questions 3(a) and 5(b)(i) and
   5(b)(ii)" thereof, and

   
   

2. "that
   the medical report at the back of the form be completed in detail
   by the doctor attending (the Plaintiff) immediately
   after the
   accident, as required by Order 18 of 1972".

   
   



1. A
   copy of the Form MVI13 as submitted to the Defendant by the
   Plaintiff is annexed hereto marked "C".

   
   

2. The
   form of medical report referred to in Section 14 of the Order and
   in" the said Form MVI13, a copy of which is annexed
   hereto
   marked "D" was not

   
   

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completed in any respect nor signed by any doctor.

9. Instead
   a certificate by doctor P.C.F.M.Gondrie, of which a copy is annexed
   hereto marked "E", accompanied Annexure
   "C", and
   no further medical report or certificate was or has been submitted
   by the Plaintiff or her Attorneys to the
   Defendant or any
   representative of the Defendant.

   
   

10. The
    particulars contained in paragraph 3 and 5 of the Form MVI13
    (Annexure "C") are accepted by the Defendant as
    constituting
    substantial compliance with Section 14 of the Order in
    so far as it relates to the said paragraphs.

    
    

The only
issue submitted for adjudication is :

'Whether the plaintiff's failure to deliver a completed medical
report in the prescribed form (Annexure D) and delivery, in its

stead, of Annexure E hereto, constitutes compliance, or substantial
compliance, with s.14 of the Order'".

The form
MVI13 referred to in para 7 supra as well as the certificate by Dr.
Gondrie referred to in para 8 supra are hereto annexed
marked C and E
respectively.

Section
14 of the Order reads :

1. "A
   claim for compensation under section 13 shall be set out on the form
   prescribed by regulation in such manner as may be
   so prescribed and
   shall, accompanied by such medical report or reports as may be so
   prescribed, be sent by registered post or
   delivered by hand to the
   registered company at its registered office or local branch office,
   and the registered company shall,
   in the case of delivery by hand,
   at the time of the delivery acknowledge receipt thereof and of the
   date of such receipt in writing.

   
   

2. No
   such claim shall be enforceable by legal proceedings commenced by a
   summons served on the registered company before the. expiration
   of a
   period of sixty days from the date on which the claim was sent or
   delivered, as the case may be, to the registered company
   as provided
   in sub­section (1)."

   
   

The
prescribed form is to be found in. Legal Notice No.34 of 1972 (Vol.
XVII Laws of Lesotho p. 384 at p. 402 et seq) and is the
form
Annexure C hereto.

It should
here be stated that the Lesotho Order and particularly section 14
thereof is to all intents and purposes as are the prescribed

forms,the same as section 25 of the South African Legislation dealing
with Compulsory Motor Vehicle Insurance and the forms prescribed
by
regulation thereunder. As stated by the learned Chief
Justice,decisions of South

4

African
courts on the matter with which this case is concerned are of great
persuasive authority. The learned Chief Justice after
considering
certain of these authorities came to the conclusion that there had
not been substatial compliance with the requirements
of section 14 of
the Order and he consequently-answered the question put to him in
favour of the respondents.

It will
be observed that I have referred to the finding that there had not
been substantial compliance with the requirements of
section 14. It
was common cause both in the Court a quo and before us that all that
was required was substantial compliance with
the requirements of the
section in question. That this is undoubtedly so appears from
numerous authorities of the highest court
in South Africa e.g.
Rondalia Versekeringskoroorasie Bpk v Lemmer 1966(2) SA 245(A) at 257
H -258 H; Nkisimane and others v Santam
Insurance Co. Ltd 1978(2) SA
430(A) at 435. AA Mutual Insurance Association Ltd v Gcanqa 1980(1)
SA 858(A) at 865.

Before
considering whether there has been substantial compliance in this
case,it is, I consider, desirable to set out two principles
which
should govern one's approach to this question. The purpose of having
MVI13 completed and submitted to the insurer before
litigation is
commenced is as stated in Nkisimane's case supra at 434 F-G and the
authorities there cited –

"to ensure that, before being sued for compensation, an
authorized insurer will be informed of sufficient particulars about

the claim and will be given sufficient time so as to be able to
consider and decide whether to resist the claim or to settle or

compromise it before any costs of litigation are incurred".

As is
pointed out in Gcanoa's case supra at 865 D, "obviously in order
to consider the claim properly the insurer may also
have to
investigate it. MVI13 is also designed to invite,guide and facilitate
such investigation" Several authorities are
referred to in
support of this statement. On the other hand as is pointed out in
Gcanoq's case at 865 E the general object of the
Act is to afford to
third parties the widest possible protection by way of compensation
for any loss sustained by them for bodily
injuries or. to death of
others resulting from the negligent or unlawful driving of motor
vehicles of Nkisimane's case at 434 E-F.
Indeed this aspect of the
matter is emphasized by the Appellate Division of South Africa in the
recent case of Union and South-West
Africa Insurance Co, Ltd v.
Fantiso 1981(3) SA 294(A) at 300 A-C. It is also

5

well in
my opinion to bear in mind what was said by Innes JA(as he then was)
in Benning v Union Government (Minister of Finance)
1914 A.D. 180 at
185 (a case drawn to my attention by my brother Schutz) "
Conditions which clog the ordinary right of an
aggrieved person to
seek the assistance of a court of law should be strictly construed
and not extended beyond the cases to which
they expressly apply".

In
Nkisimane's case at p 433 Trollip JA deals with the procedural
requirements under section 25 of the South African Act, and mutatis

mutandis they would seem to apply to section 14 of our Act. He states
them as follows :

1. The
   submission of the claim: the claim for compensation must be
   submitted to the authorised insurer.

   
   

2. The
   form of the claim: "the prescribed form" is to be used -
   i.e. in this case Form MVI13.

   
   

3. The
   contents of the claim are to be set out in the manner prescribed by
   the regulations.

   
   

4. The
   manner of submitting the claim is as set out in the subsection.
   

   
   

Trollip
JA held that requirement (a) was peremptory and (c) was directory.
(see page 435A). However although (c),which is the one
with which the
Court is concerned in the present case, was held not to be peremptory
but directory, it could not be ignored;but
substantial compliance
therewith was sufficient.

As stated
above both counsel were in agreement that compliance of this kind was
"sufficient. I turn therefore to the argument
of the respondent
on this point and his contentions that there had not been substantial
compliance, I do so not because I consider
there is an onus on the
respondent to prove non compliance but because I consider this the
most convenient way of tackling the
problem in this case.

Mr.
Newdigate who appeared for the respondent quite properly drew
attention to the statement in Nkisimane's case at page 434 G that
the
object of Form MVI13 is not only to enable the insurer "to
consider and decide whether to resist the claim or to settle
or
compromise it before any costs of litigation are incurred" but
it is also aimed at enabling the insurer to give realistic

consideration to the computation of the amount of compensation.
(Nkisimane's case 435 H to 436A)

Mr.
Newdigate however did not suggest that the medical information
required was intended to enable the insurer to make an accurate

assessment of the question of damages. Indeed I

6

venture
to suggest that it would be quite impossible in the vast majority of
cases to attempt to make an accurate assessment when
it is borne in
mind that there is almost invariably in any claim of substance a.
figure claimed for general damages. Any practitioner
with experience
of running clown cases and certainly every insurer knows that it is
almost an impossible task to forecast with
any degree of certainty
what amount a Court is likely to award for pain and suffering and
loss of amenities of life. What seems
to me to be important in this
connection is to recognize what was said by Trollip JA in Gcanqa's
case supra that MVI13 was designed
not only to enable the insurer to
investigate the claim, but also to invite,guide and facilitate such
investigations. I entertain
no doubt that minimal investigation: by
the insurer in this case, possibly after obtaining the consent of the
appellant, would
have enable it by enquiring from the medical
practitioners whose names and addresses are stated in the answer to
paragraph 6 (1
and m) to obtain any further information required as
to the injuries sustained and the medical prognosis of the appellant
in addition
to that given in Dr. Gondrie's medical certificate
annexed. I am unable on a consideration of Form MVI13 supplied in
this case
to say that any lack of information that there was, or may
have been, really frustrated or materially impaired the ability of
the
insurer either to assess quantum or to determine the extent of
any future investigations it may require Cf. Davids v Protea
Assurance
Company Ltd 1980(4) SA(C) 340 at 344A. I quite agree as Mr.
Newdigate suggests that the insurer should at least have sufficient

information to enable it to draw reasonable conclusions and that it
is not required to guess. I am bound to say however that as

demonstrated above further information and sources of information
were disclosed and were readily at hand.

Mr.
Newdigate agrees that the insurer in reading a form MVI13 must use
its intelligence; this is stating the obvious and I shall
consider
Mr. Newdigate's complaints if they may properly be so called
seriatim.

Mr.
Newdigate says that on the body of the Form the appellant states she
was attended by Dr. Gondrie (Leribe) Dr. Israel (Ficksburg)
Dr. King
(Delmas Transvaal). I should have thought this was most valuable and
important information of which intelligent use could
have been made
by the insurer had it really bona fide wanted to investigate the
claim, ana to endeavour to compromise it before
action was
instituted. It is not irrelevant that the sixty day period during
which

7

prescription
is suspended(section 14(2)(b ) is obviously inserted in the Order to
give the insurer time to investigate.

Then
there is a complaint that although the appellant states she was
treated after the accident in the Hlotse and Maluti hospitals,
she
does not state the period for which she received treatment in either.
I find it difficult to attach the slightest importance
to
this,particularly having regard to the almost derisory claim of R150
for medical and hospital expenses and the fact that a simple
enquiry
at the hospitals in question would undoubtedly have elicited this
information if it was really required. Then there is
the valuable
information given that the appellant was not suffering from any
physical defects or infirmities prior to the accident.

Mr.
Newdlgate then correctly summarised the information given on the
medical certificate given by Dr Gondrie. I should have thought
as a
layman that this gives the essential facts of the injury sustained by
the appelland and the period during which she was not
able to work as
a result of the injuries she sustained. It is true that there is no
medical report that the appellant would not
be able to work for a
period in the future, but the claim made in this respect clearly
shows that this is alleged to be the case,
although the period of
such inability to work is not stated. This is a matter which
experience shows is frequently in dispute in
matters of this nature.

Turning
now to the Medical Report which, as will be seen, is blank Mr.
Newdigate fairly concedes that the insurer was reasonably
able to
derive the answers to questions 1 and 2. He also concedes that the
failure to answer question 3 is not really material,
and further
concedes with regard to question 4 that from the information supplied
that the injuries were not minor. Question 5
he admits was answered.
Question 6 requires full details of the injuries to be given. This
was supplied in Dr. Gondrie's certificate.
There is however no
information given as to any complications, a matter raised in
question 6. The submission made in this regard
is that the respondent
was not reasonably able to assume that there were no complications
particularly since subsequently the appellant
was attended by Dr.
Israel of Ficksburg and Dr. King of Delmas. Quite apart from the
point I have already endeavoured to make that
there is no reason to
suppose that if asked the appellant would have refused permission to
the

8

insurer
to make enquiries of these doctors, one should, I suggest, look at
the figure claimed for medical and hospital expenses
and estimated
future medical and hospital expenses. I find it difficult to take
this point seriously. The remarks made by Trollip
JA in Nkisimane's
case at p. 438 E to F seem to me to be to a certain extent apposite
to this .complaint as well as to the real
one that no information was
given as to treatment to date. It is stated that it must be assumed
that the dislocation was reduced
but whether this was done simply or
by surgery is not described. The point made is that this would have a
material influence on
damages for pain and suffering as would
information as to immobilisation in plaster or traction. Surely a
simple enquiry from any
of the doctors would have solved the
difficulty.

Then it
is said that question 7 requires information as to whether permanent
disability is anticipated and this is not answered.
The point is made
that the question of permanent disability is most material to the
assessment of quantum as also the nature and
extent of the permanent
disability. There is also it is stated an enquiry as to whether the
appellant's condition has become stabilised;
this it is said is
relevant to a consideration by the insurer as to whether the
appellant has reached the stage of recovery at
which she may
fruitfully be examined by a practitioner of the Insurer's choice.

I
consider that during the investigating period of which I have spoken
above, an enquiry to Dr. Israel or Dr. King should well have
resulted
in the requisite information being made available.

The fact
that question 8 was not answered is rightly not relied upon by the
insurer.

Question
9 which required full details of the nature and anticipated duration
of any future treatment was unanswered. If one looks
at the answer to
9(a)(ii) in the body of the form I find it difficult to treat
seriously the point made under this head of argument.

It is
admitted by the respondent that the answers to questions 10 to 16 are
reasonably derivable from the other information supplied.

It is
true that a comparatively large amount is claimed

9

for
general damages for pain and suffering and loss of amenities of life
and no particulars are given under this heading. I have
to some
extent dealt with this question. I cannot believe that any insurer is
in any way prejudiced by a failure to split up the
amounts so as to
show how much is claimed for pain and suffering and how much for loss
of amenities of life. More often than not
in my experience these
claims are lumped together by the Court when it awards general
damages.

The
remainder of the points raised by the respondent seem to me to be
largely repetitive of matters previously raised and I do not
propose
to deal with them again.

Looking
at the case as a whole I am satisfied, although it is a border line
one, that there has been substantial compliance with
the respondents
of the Order. I am and I trust the respondent is mindful of the dicta
referred to above that the prime object of
the Act is to afford
protection to persons who are injured as a result of negligence of
drivers of motor vehicles.

It
follows that, in my judgment, the question submitted to the Court a
quo should have been answered in favour of the appellant
and it is so
ordered. The respondent is further ordered to pay the costs of the
appellant in this Court and in the High Court.

I.A. MAISELS

President

I agree

B. GOLDIN

Judge of Appeal

Delivered
this 11 day of October 1982 at MASERU

For
Appellant : Adv. Kuny

For
Respondent: Mr. Newdigate