CIV/T/18/80

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

BLUE
MOUNTAIN INN(PTY)LTD Plaintiff

(Defendant
in reconvention)

v

H. M.
ABDULLA Defendant

(Plaintiff
in reconvention)

JUDGMENT

Delivered
by the Hon. Chief Justice, Mr. Justice T.S. Cotran on the 23rd day of
March 1982

The
plaintiff has been described in the pleadings respectively as Blue
Mountain Inn(Pty)Ltd and as Blue Mountain Inn. For reasons
which will
appear later it matters not whether the plaintiff is a limited
company or a firm.

On the
8th of February 1977 the plaintiff's vehicle, a V.W. Reg. No. A 24,
was driven by Mrs. P. Chaplin an employee of the plaintiff.
It was
involved in a collision with a Datsun delivery van Reg LD 175 owned
and driven by the defendant. Both vehicles were severally
damaged and
were "write offs". It has been agreed that the plaintiff
suffered loss in the sum of M2190 and the defendant
suffered loss in
the sum of M1550. The plaintiff claimed the collision occurred solely
through defendant's negligence. The defendant
denied negligence and
counterclaimed that the collision occurred solely through the
plaintiff's negligence. In reconvention this
was denied by the
plaintiff, alternatively, that there was contributory negligence.

Mrs.
Chaplin testified that she was driving alone along the main tarmac
highway between Bethlehem and Ficksburg. It was during the
day. She
was going to Ficksburg and travelling

2

at 90 km
an hour the maximum speed limit in Republic of South Africa at the
time. She was approaching the Fouriesburg intersection
which was on
her left. There was no traffic behind her. There was no evidence of
traffic lights or robots at this intersection.
Motorists travelling
from Bethlehem and intending to go to Fouriesburg would use a slip
away some 50 meters before the actual cross
roads to get ultimately
into the main Fouriesburg Road whilst motorists travelling in the
opposite direction, and intending to
go to Fouriesburg, would have to
turn right at the cross roads into the Fouriesbrug road proper. No
plans were produced by either
party but by agreement a rough

sketch
would look like this :

Learned
attorneys for the parties have referred me to the following cases
Noguda v. Union and South West Africa Ins. Co. Ltd, 1975
(3) S.A.
685(A.D.) at 688A; Neuhaus No v. Bastion Ins. Co. Ltd 1968(1) S.A.
398(A.D.) at 405H - 406; AA Mutual Insurance Association
Ltd. v.
Nokema 1976(3) S.A. 45 at 52E; Sierborger v. South African Railways
and Harbours 1961(1) S.A. 498(A.D.) at 505-508; Snyman
v. Van den
Berg 1978(2) S.A. 850 (A.D.) - (Headnotes) at 850 and 851; Pullen v.
Pieterse 1954(2) S.A. 195(T); Bata Shoe Co. Ltd(SA)
v. Moss 1977(4)
S.A. 16 (W.L.D.) and to a textbook on the Law of Collisions in South
Africa 41-47. Quite frankly apart from general
principles I do net
find much comfort in traffic accidents precedents since no set of
facts are similar to another set of facts,
and in any

3

event
similarity, per se, is not the be all and the end all since peculiar
factors relevant to the circumstances leading to the
accident have to
be taken into account. All what can be said in this connection is
that it is clear as anything can be that Mrs.
Chaplin had the right
of way on this main road, i.e. that a motorist coming from the
opposite direction and intending to turn right
to Fouriesburg had a
duty to be extremely careful. He owed this duty to traffic behind him
and to traffic approaching from Bethlehem,
and to traffic (if any) on
the other roads including the existence or otherwise of slip aways.
Mrs. Chaplin, as I had intimated,
was not going to Fouriesburg. She
was going straight to Ficksburg. As a matter of precaution she says
on approaching the intersection
she slowed down but only slightly.
She saw defendant's vehicle approaching from the opposite direction
and saw that it halted at
the cross roads for a couple of minutes or
so. The defendant says he too saw Mrs. Chaplin's vehicle approaching
from the distance
and confirms he halted before turning right. There
was no traffic behind him. The defendant says he did not have
constant vision
of the vehicle driven by Mrs. Chaplin when it was far
away as the road dipped, but when she came within sight again, he saw
her
indicator light flashing to the left and he assumed she too was
going into the Fouriesburg road using the slip away. He says she
was
too much to the left of her side of the road. That of course is no
sign that she was turning left though it so seemed to him
after
seeing her left indicator light. He admitted however that he did not
wait long enough to see that she did actually enter
the slip away but
began to turn to his right. Mrs. Chaplin says she only had about 50
meters separating her and the defendant's
vehicle. She applied her
brakes but could not avoid colliding with the defendant's vehicle in
the middle of the cross roads. The
defendant says she collided inside
the Fouriesburg road next to a stop sign erected to warn motorists
coming from Fouriesburg to
join the main road. On this point I tend
to believe that the collision occurred on the left of the actual
cross roads Although
when the vehicles finally came to rest they did
so inside the Fouriesburg Road by the stop sign perhaps by the force
of impact.

Mrs.
Chaplin testifies that her left indicator light was not on, that she
did not inadvertently move it, that she could not have
forgotten
about it after a previous left turn, and that

4

after the
accident she heard the defendant admit to the police when they
arrived that he was at fault. This last assertion the defendant

denies. It was common cause that Mrs. Chaplin and the defendant were
shocked and injured. So was the defendant's cousin (more seriously)

who was seated next to him. The latter bore the brunt of the impact.
They were all laid on grass waiting for help to arrive and
probably
grateful to be alive. Two hitchhikers picked up by the defendant at
the rear of the van were uninjured. The traffic police
eventually
arrived and took measurements. They took the injured people to
hospital. At a later date the defendant was sent "admission
of
guilt" form charging him with negligence. The defendant, an
Indian gentleman trader in Lesotho,says he consulted a lawyer
in
Fouriesburg and described that he saw Mrs. Chaplin's left indicator
on and told him that he did not feel he was negligent. The
lawyer
told him that he (the lawyer) thought that he(the defendant) was only
10% negligent but advised him to plead guilty nevertheless.
The
defendant explained that he did a lot of business in Fouriesburg,
that he did not want to have a long drawn legal battle with
the South
African traffic police, and did not want to waste time. I am unable
to find that this is an unreasonable attitude to
take in motor
traffic prosecutions whore a fine of M50 or so is involved. If the
defendant was believed to have been so grossly
negligent by suddenly
crossing Mrs. Chaplin's way an "admission of guilt" form
would not have been the appropriate procedure
for his manoeuvre would
have savoured of extreme recklessness. The Fouriesburg Traffic Police
were asked to provide the sketch
or plan which was allegedly drawn by
them at the time by attorneys of both parties but this could not be
found and was either lost
or mislaid.

There is
thus Mrs, Chaplin's oath against that of the defendant. Both Mrs.
Chaplin and the defendant struck me as honest witnesses.
I am unable
to subscribe to the proposition that because Mrs. Chaplin spoke
faultless English and the defendant in an accentuated
one that one is
more superior to the other nor do I accept that a traffic policeman's
opinion,(extra judicial and not subjected
to cross-examination) on
negligence as sacrosanct. Mrs. Chaplin was adamant that her left
indicator lights were not on as she would
have noticed this on the
dashbeard and heard the ticking sound. Forgetting to switch indicator
lights to neutral position, if they
do not do so automatically,

5

is I
think a common occurrence, and when one is travelling alone at high
speed, there is no one to bring this to the notice of the
driver. The
lone driver is more apt to day dream or have his mind wonder for a
longer period before it dawns upon him or her that
he or she has in
fact forgotten to turn the switch to the level position. Now Mrs,
Chaplin says the defendant halted for a couple
of minutes or so. The
defendant too says he halted for a couple of minutes or so to see her
intentions before he turned right.
At this moment in time Mrs.
Chaplin must have been, I would think, two or three hundred meters
away from the slip away and defendant
would most probably have had a
good chance to safely clear the intersection. That he attempted to do
so when she was some 50 meters
away was courting disaster. I am not
saying that a motorist's mind may not suddenly go blank or suffer a
sudden abberation but
such a possibility is less likely, everything
considered, than the possibility of Mrs. Chaplin's indicators
flashing to the left.
A witness can be honest but mistaken, I think
she was one of these* What must have happened is that the defendant
having waited
a couple of minutes or so failed to wait another second
or so to see Mrs, Chaplin actually entering the slip away. I think
forgetting
to turn indicator lights into neutral position is such a
common occurrence that a careful motorist should not take it for
granted
that this is universally the intention of the driver. I think
Mrs. Chaplin's inadvertence was the major cause of the collision but

it was contributed to, to some but much lesster extent, by the
defendant's own impatience in not making certain of her intentions

before he turned right (his duty of care was high) and therefore his
own negligence contributed to the accident, I would apportion
this as
65% and 35% respectively.

Finally
Mr. Molyneaux submitted, if I understand his argument correctly, that
the plaintiff(the company or the firm) is somehow
exempted from any
liability for the acts of its servants unless the defendant proves
that the servant when driving the vehicle
was the agent of, or acting
in the course of, his or her employment Mrs. Chaplin had testified
that though she was the manageress
of the plaintiff, she was
returning home after some private business, putting some children
into school or something like that.
The argument proceeds that unless
some nexus is proved by the defendant the Apportionment of Damages
Order 1970 does not apply.
I regret I am unable to see any force in
this argument. Blue

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Mountain
Inn is a well known Hotel in Lesotho and it matters not whether it
was run by a limited company or by a firm. The fact
of the matter is
that the plaintiff's vehicle was used with the plaintiff's authority
and its consent and a relationship of agency
must be presumed. The
situation cannot be equated to that of a thief stealing a vehicle and
then smashing it causing damage to
another vehicle or injury to a
person whilst using it. Many limited companies and firms, large and
small, allow their managers(or
other staff) to use company registered
vehicles on both official and private business. In a two or three man
private limited company
or firm this is far from abnormal. The
employee does not cease to be the company's servant and agent if
redress is sought for damage
cause through his negligence. The
plaintiff company (or firm) gave no evidence except through Mrs.
Chaplin.

My
Judgment is as follows :-

1. The
   plaintiff (and defendant in reconvention) will pay the defendant
   (and plaintiff in reconvention) 65% of the damage to his
   vehicle.

   
   

2. The
   defendant(and plaintiff in reconvention) will pay the plaintiff(and
   defendant in reconvention) 35% of the damage to its vehicle.

   
   

3. The
   plaintiff will pay defendant 65% of his costs.

   
   

4. The
   defendant will pay plaintiff 35% of its costs.

   
   

No doubt
the attorneys will work out the arithmetic.

CHIEF
JUSTICE

23rd
March, 1982

For
Plaintiff: Mr. Molyneaux

For
Defendant: Mr. Kolisang