CIV\T\795\87

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

TAOA
LEPELESANA Plaintiff

v

LESOTHO
NATIONAL INSURANCE

CO. (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 respect
of 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 delivery
van
bearing registration letter and numbers G 0304 per

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token of
3rd party insurance No 0811\86 in which vehicle the plaintiff was
travelling in the business of the owner thereof on the
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 occurred was
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 on coming
to the
downward slope and curve mentioned above he reduced speed to about 60
km per hour. He testified that he felt that his vehicle
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
storm, so he said, the
vehicle rose and fell.

PW2
testified that he saw as if PW1 went out through the

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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. When
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 Lepelesana
who
had died. The vehicle had set out for Maseru to convey grocery and
items which would be used for Lepelesana's funeral.

PW2 said
he believed this vehicle had been ensured because he saw a token of
Insurance disc on which was written "Insurance".
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 that
spot.

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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 afterwards
when 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 manner
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 curve
at which
the accident occurred." See para 3(f) of the "Further
Particulars".

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 expenses
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.

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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. This
is
difficult to accept. this witness was even very shifty on this point.
The text should help bring that to the fore. For instance

"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 my weakness.

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.....? Yes. Nothing
of the sort is shown in the pleadings....? If he is careless
I won't
argue.

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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 us receipts.

Mohale's Hoek Government hospital does not issue receipts......? I
don't know.

They should have given you a receipt for money spent.....? because I
am disabled it may have got lost.

Meaning you might have been given a receipt....? possibly".

This
should suffice in disposing of the claim under the heading medical
expenses. The plaintiff has clearly failed to proof his
liquidated
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 his
claim.

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 your claim with the
Insurance.....? Yes Did you see there was a medical report
incorporated
with the claim .....? Yes Did you read it....? I can't
read the doctor's

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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 your 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's findings......?
Yes Counsel wants to know why then the doctor does not 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 the head......? 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, they referred
to
the medical report attached to the claim.....? My attorneys were
remiss.

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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 the head
all caused by the
accident is not supportable by any evidence he has adduced before
Court. His doctor's report contradicts him.
He attributes his failure
to put useful material in support of his claim to his lawyer's
remissness. All these defects and failures
in his case cannot surely
be placed at the defendant's door. It is the plaintiff's business to
establish his case. I feel he hasn't.
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 and
unsatisfactory.
It goes under cross-examination of PW2 as follows :-

"How many discs or token of insurance marks had this
vehicle.....? Two. Did you see anything on these discs besides the
word
"Insurance".....? Only insurance and licence. What did
you see on them.....? Year the licences and Insurance were issued.

Nothing else......? Insurance documents. Where were they......? In
the cubby hole.

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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 about that 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

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which the
third party has suffered as a result of -

1. any
   bodily injury to himself

   
   

2. the
   death of or any bodily injury of any person;..................

   
   

Provided that (iii) the registered company shall not be obliged to
compensate as aforesaid any person who has suffered any loss
or
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 the motor
vehicle in question and otherwise than in the course of his
employment as the servant of the driver or owner, in or
upon that
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 of alighting
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 himself was
not the servant
of the owner of the vehicle. The driver then cannot have had any
business in respect of which it could be said
the plaintiff had
mounted that vehicle as envisaged in the above proviso.

The
vehicle itself belongs to the deceased Lepelesana in respect of whose
funeral preparations the vehicle was being used. In fact
Lepelesana's
business had come to a stop when he died.

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Thus it
cannot be said the vehicle was being used for his business or even
his interest, as he had neither because he had died.
Thus paragraph 3
of the plaintiff's declaration to the extent that it attributes use
of the vehicle to business of the owner, would
seem 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, others narrow............................

the word 'business' has two distinct meanings:

1. a
   wide one - 'any particular matter or affair of serious importance',
   and

   
   

2. the
   narrow one (i.e. meaning'an active occupation or profession
   continuously carried on').......................... In Maharaj's
   and
   Singh's cases the narrower meaning was also chosen. One of the
   reasons was (see Maharaj'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 interpretation
which
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
protection
to third parties, words or phrases in proviso (iii) of
uncertain meaning should be construed in their favour and against
insurers."

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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
business
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 purpose
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
to 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

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"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 legislation in 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 section in question".

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
accident occurred
had been shown to be insured by the defendant in this case. In this
case it has not even been

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shown to
be so insured. The protection for 3rd parties travelling in such
vehicles lies in Criminal Courts. Not this Court presently

constituted.

For these
reasons the plaintiff's case was dismissed with costs.

JUDGE

7th
February, 1992

For
Plaintiff : Mr. Putsoane

For
Defendant : Mr. Molyneaux