CIV/T/136/86

IN THE
HIGH COURT OF LESOTHO

In the
matter of:

JOSHUA N.
MAHAO Plaintiff

v

LITTLE
FLOWER CATHOLIC CHURCH Defendant

JUDGMENT

Delivered
by the Hon. Sir Peter Allen on the 16th day of June, 1987

The
plaintiff brought this action for damages in negligence as a result
of a traffic accident in which motor vehicles belonging
to the
parties collided on, Sunday, 28 April 1985. The accident occurred
just out­side Maseru, near. Stirling International
Camp on the
road to TY, in the early evening when it was still dusk. The road was
straight, sloping downwards with a dry . tarmac
surface. There was a
continuous white line along the middle of the road. Both vehicles had
their headlights on in the dipped position.

The
vehicles involved were both Toyotas. That of the. plaintiff was a Hi
-Ace Combi registered number A3890 which was being used
as a taxi. It
was driven by Rapoli Nchona, who was employed by the plaintiff. The
defendant's vehicle was a van registered number
C4246 which was
driven at the time by a soldier., Private Tjamela. Un­fortunately
both drivers died in the accident.

Each
party called two eye-witnesses all four of whom were travel ling in
the plaintiff's taxi at the time.

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Consequently
there were two quite different versions of how the accident occurred,
which is not at all unusual in these traffic
cases.

The
plaintiff alleged that the accident was caused by the negligent
driving of the driver of the defendant's van. The defence was
a mere
denial. I find this rather strange because, usually in this type of
claim, there is in the defence an allegation that it
was the fault or
negligence of the plaintiff's driver, often followed by a
counter-claim when both vehicles were badly damaged,
as in fact was
the case in this instance. Similarly, where the defendant alleges
that there was contributory negligence, this too
must be pleaded.

According
to the plaintiff's two eye-witnesses, Thokoa (PW3), who was then
working as the conductor, and Mohlakore (PW2), who was
himself a
taxi-driver and a friend of the deceased driver, it was the fault of
the driver of the defendant's van. They both testified
that the van
approached them from Maseru travelling at high speed and attempting
to overtake a vehicle in front of it. Thus the
van crossed the white
line and came into their side of the road. Since there was a culvert
alongside the road the plaintiff's taxi
driver could not swerve off
the road in order to avoid a collision. The two vehicles did not
collide head-on but front right side
to front right side.

The
defendant's two eye-witnesses were both passengers in the taxi. They
were Mrs Hlalele (DW3) and Mokhoele Hali (DW4). They told
a different
tale. According

3

to them
the taxi-driver was drinking from beer cans and a bottle during the
journey and driving erratically and at high-speed. They
both said
that some passengers complained about this and some even got out at
earlier stops saying that they were not prepared
to continue in such
a recklessly driven vehicle. They said that the defendant's van was
being driven properly on its correct side
of the road and that it was
their taxi which was on the wrong side and so caused the collision.

Mrs
Hlalele (DW3) went further and added that their taxi was so far over
on the wrong side of the road that the first vehicle had
to pass them
on the wrong side so as to avoid a collision. The defendant's van was
following that vehicle but was not so skilfully
controlled and they
collided. She was sitting at the back of the taxi and it is possible
that she was mistaken and that what she
saw was, in fact, the van
trying to overtake the. vehicle in front.

The
defence allegation that the taxi driver was drinking during the
journey-was hotly denied by the conductor (P.W.3) and the other

driver/passenger (PW2). They insisted that the taxi driver not only
was not drinking at that particular time, but also that he
did not
drink alcohol at all at any time.

Clearly
some of these witnesses were either lying or mistaken in what they
saw, yet there was no apparently good reason for any
of them to be
lying. But eye­witnesses of traffic, accidents are, in my
experience, notorious for each giving different versions
of the same

4

accident.
People do not observe or register or remember the same details of
such violent incidents which often occur instantaneously,
or without
warning, or in darkness.

Bearing
this in mind, I am of the opinion that the witnesses on both sides
were partially truthful and partially untruthful or mistaken.
After
considering their various versions and the damage to the vehicles,
and the fact that the police sketch plan (exhibit 'B')
shows the
probable point of impact near to the centre of the road, I believe
that what most probably happened was as follows. The
plaintiff's taxi
driver was driving at speed in the centre or very close to the centre
of the road in a reckless manner, quite
possibly partly caused by
drinking during the journey. The driver of the defendant's van was
also driving at speed, possibly because
he wanted to get back to
Kolonyama before it was realised that he had travelled much further
than he ought to have done. Either
because he was in such a hurry, or
because he was not a good driver, he tried to overtake when the taxi
was approaching. May be
in the semi-darkness he overestimated the
closing distance between the two vehicles and their combined speeds.
The result was the
collision and the deaths of both drivers.

Thus I
find that both drivers were about equally . responsible for the
accident because there was a sub­stantial degree of fault
on both
sides. This situation often arises where damage results from a
collision between fast moving vehicles on the highway and,
in this
type of case, it is difficult to apportion more

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blame to
the one party rather than the other. The usual method in cases where
there has been a counter-claim by the defendant is
to assess the
damages on both sides and then award one half of the respective
assessments to each' party. They may or may not cancel
out. In cases
like the present one, where only the plaintiff has claimed damages,
he only receives a half of the assessment (see
Ruiters v African
Guarantee & Indemnity Co. Ltd, 1958(1) S.A. 97).

However,
that also depends upon whether the defendant is to be held liable for
the damage caused by the driver of the van.

An
employer is liable for the torts or delicts committed by his employee
provided it is proved that the employee was at the time
acting within
the scope of his duties or employment. A master is not responsible
for the negligence of his servant while engaged
in doing something
which he is permitted to do for his own purposes, but is not employed
to do for his master. Moreover, if the
servant is off "on a
frolic of his own" without being at all on his master's
business, the master is not liable.

So the
first question is whether or not the driver of the van was employed
by the defendant. This would seem to be unlikely since
the driver was
a soldier and the defendant is a church. That would be carrying
"militant Christianity" too far.

Sister
Marie Cleofa (DW1), who was in charge of the defendant Church
community at Kolonyama, testified that the van belonged to
them and
that it was usually

6

driven by
a Sister who was absent at that time. Private Tjamela was an army
driver who was stationed nearby for duty connected with
guarding a
place belonging to the late Chief Leabua. Apparently he had driven
the van for them on previous occasions when their
own driver was not
available and Sister Marie said she trusted him because she had found
him satisfactory when he had assisted
them before. The van was due to
go in for servicing on Tuesday and so she wanted to get petrol for it
on that Sunday. She therefore
asked Tjamela to assist them and he
agreed to do so. Sister Marie's testimony was supported by that of
Sister Louisa (DW2). There
was no mention of any payment and
therefore no question of Tjamela being employed by the Sisters.

In any
case he was already employed by the army. It is posible for a servant
to have two masters in instances where the employer
lends his servant
to another to do a particular job. In such cases it has to be decided
which master had control at the time over
the way in which the
servant was carrying out his duties. But here there was no evidence
that the main employer, the army, had
lent Tjamela for any duty with
the,Sisters, or that they knew what was going on.

The
situation is clearly different where it is the servant who decides to
work for two masters (i.e., to have two jobs) and, in
such cases, the
two employers may well not know about the arrangement at all. Then
the liability would probably depend upon which
employer's duties were
being performed by the servant at the time of his doing the wrongful
act.

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I am
satisfied that in this instance there was no question of Tjamela
being employed by the Sisters and so the normal law of master
and
servant does not apply. However, there is a class of case in which
the principles of this law may be applied even in the absence
of the
relationship of master and servant. This is when a person lends his
chattel to another who, by his negligent use of it,
causes injury or
damage to a third person. This often happens in the case of a motor
vehicle which is lent to another person by
the owner. It is often
referred to as "casual delegation."

If the
owner retains both a right to control the use of the vehicle (or
other chattel) and he has an interest in the purpose for
which it is
being used at that time, then he will be liable for the injury caused
by the driver to another person.

In Ormrod
v Crosville Motor Services Ltd (1953) 1 WLR 1120, the owner of a car
in England asked a friend to drive it to the South
of France where it
was intended they would meet and go on holiay in the car together.
While the friend was driving the car in England
on the way he caused
an accident and the owner was held liable because he clearly, had an
interest in the journey.

In Hewitt
v Bonvin (1940)1 KB 188, the defendant lent his car to his son for
the son' s personal use and it was held that., because,
the defendant
had no interest in the purposes for which the journey in question was
undertaken, he was not liable for the son's
negligent driving of the.
car.

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In Klein
v Caluori (1971) 1 WLR 619, where the defendant's car had been taken
without his consent and he demanded that it be brought
back, it was
held that his interest in the safe return of his car was insufficient
to render him liable for the borrower's negligent
driving.

In
Launchbury v Morgans (1973) AC 127, the House of Lords reaffirmed
that if the owner of a vehicle is to be liable for the negligence
of
a borrower of it, it is necessary that he has some interest in the
purposes for which the vehicle is being used.

In the
present case the testimony of Sister Marie indicates that the driver
was given twenty Rand and asked to get petrol for their
car, and so
they had a definite interest in his use of their vehicle. However,
Sister Marie added that she told Tjamele that it
was unlikely that he
would be able to get petrol in Kolonyama and so he would probably
have to go into TY for it ( a distance of
about 9 to 10 Kms). Maseru
is about 45 to 50 kms further on from TY and Sister Marie said that,
although she did not mention Maseru
to Tjamela, it was not within her
contemplation that he should go so far and there was no reason for
him to go there. She fully
expected him to obtain petrol at TY. She
had not authorised him to go further than that. I accept that that
was the true position
in this respect.

It is not
known whether Tjamela obtained petrol in Kolonyama or in TY, or
whether he bothered to get petrol at all, although he
probably did
otherwise he might not have reached Maseru. Nor is it known why he
decided to come to Maseru. He certainly was not
sent to Maseru by
Sister Marie. The only reasonable conclusion

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that I
can come to, on the evidence before the Court, is that Tjamela went
to Maseru for his own unknown purposes and that, therefore,
he was
there on a frolic of his own at the time of the accident.
Consequently I find that the defendant is not liable.

With
regard to the damages claimed of M18,000, this amounted to the whole
value the plaintiff put on the taxi at the time of the
accident
because it was wrecked and so a write-off. It was therefore special
damages since it was a specific sum, and so it was
necessary for the
total amount to be proved with some precision. In cases of this sort
the proper way to go about proving the value
of a motor vehicle that
is damaged is to call a qualified valuer to testify as to its value
and to put in his valuation report
as well as supporting photographs
showing the damage to the vehicle. There is no other acceptable way
and it is certainly insufficient
and unacceptable for the plaintiff
to make his own estimate of its value, as was done in this case. With
a professional valuation
before it the Court can then make its own
assessment. Then, if the defendant's liability had been proved, the
plaintiff would have
been awarded one half of the assessment as a
result of my earlier finding of the driver's 50% blameworthiness for
the accident.
However, in this instance the defendant is not liable.

Accordingly
the plaintiff's claim is dismissed with costs.

P. A. P.
J. ALLLN

JUDGE

16th June
1987

Mr.
Monyako for the Plaintiff

Miss
Mofolo for the defendant