Mpho Masoka V Lesotho National General Insurance Co. Ltd (CIV/T/516/2019) [2023] LSHC 157 (23 September 2023)

# Mpho Masoka V Lesotho National General Insurance Co. Ltd (CIV/T/516/2019) [2023] LSHC 157 (23 September 2023) [ __](https://api.whatsapp.com/send?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/157/eng@2023-09-23) [ __](https://twitter.com/intent/tweet?text=https://lesotholii.org/akn/ls/judgment/lshc/2023/157/eng@2023-09-23) [ __](https://www.facebook.com/sharer/sharer.php?u=https://lesotholii.org/akn/ls/judgment/lshc/2023/157/eng@2023-09-23) [ __](https://www.linkedin.com/sharing/share-offsite/?url=https://lesotholii.org/akn/ls/judgment/lshc/2023/157/eng@2023-09-23) [ __](mailto:?subject=Take a look at this document from LesLII: Mpho Masoka V Lesotho National General Insurance …&body=https://lesotholii.org/akn/ls/judgment/lshc/2023/157/eng@2023-09-23) [ Download PDF (228.9 KB) ](/akn/ls/judgment/lshc/2023/157/eng@2023-09-23/source) Report a problem __ * Share * [ Download PDF (228.9 KB) ](/akn/ls/judgment/lshc/2023/157/eng@2023-09-23/source) * * * * * Report a problem __ ##### Mpho Masoka V Lesotho National General Insurance Co. Ltd (CIV/T/516/2019) [2023] LSHC 157 (23 September 2023) Copy citation * __Document detail * __Related documents Citation Mpho Masoka V Lesotho National General Insurance Co. Ltd (CIV/T/516/2019) [2023] LSHC 157 (23 September 2023) Copy Media Neutral Citation [2023] LSHC 157 Copy Court [High Court](/judgments/LSHC/) Case number CIV/T/516/2019 Judges [Banyane J](/judgments/all/?judges=Banyane%20J) Judgment date 23 September 2023 Language English ##### __Collections * [Case indexes](/taxonomy/case-indexes) * [Commercial](/taxonomy/case-indexes/case-indexes-commercial) * [Civil Remedies](/taxonomy/case-indexes/case-indexes-commercial-civil-remedies) * [Damages](/taxonomy/case-indexes/case-indexes-commercial-civil-remedies-damages) Summary Read full summary * * * Skip to document content **_IN THE HIGH COURT OF LESOTHO_** **HELD AT MASERU CIV/T/516/2019** In the matter between **MPHO MASOKA PLAINTIFF** And **LESOTHO NATIONAL GENERAL DEFENDANT** **INSURANCE CO. LTD** **_Neutral Citation_** : Mpho Masoka v Lesotho National General Insurance Co. Ltd LSHC [2023] 157 Civ (02 September 2023) **JUDGMENT** **CORAM : BANYANE J** **HEARD : VARIOUS DATES** **DELIVERED : 23 SEPTEMBER 2023** **_Summary_** Action for damages-negligence- collision between cars approaching each other from opposite directions- neither having kept a look-out or reduced speed-negligence of each driver contributed to the accident-plaintiff entitled to recover half of the proved damages. **_ANNOTATIONS_** **_Cases cited_** **_South Africa_** 1. Solomon and another v Musset and Bright Ltd 1926 AD 427 2. Pillay v Khrishna and another 1946 AD 946 3. National General Employers Insurance Co Ltd v Jagers 1984 (4) SA 437 4. Stellenbosch Farmers’ Winery Group and another v Martel et Cie and others 2003 (1) SA 11 5. Kruger v Coetzee**** 1966 (2) SA 428 (A) 6. National Employer v Gany 1931 AD 187 7. African Eagle Life Assurance Co. Ltd v Cainer 1980(2) SA at 237 8. Khupa v South African Transport Services 1990(2) SA 627 9. Assurance BPK v De Beer 10\. Guadian Royal Exchange Assurance Rhodesia v Jeti 1981 (2) SA 102 (CA) 11. Authur v Bezvidenhoit and Mieny 1962 (2) SA 566 (AD) 12. Sardi and others v Standard and General Insurance Co Ltd 1977 (3) SA 766 (AD at 780 C-D. 13. Motor Vehicle Assurance Fund v Kenny 1984 (4) SA 432 14. Griffifths v Netherlands Insurance Co. of SA LTD 1976(40SA 691 (AD). 15. Moore v Minister of posts and telegraphs 1949(1) SA 815 at 826. 16. Bester v silva Fishing Corporation (PTY)LTD 1952(1) SA 589 at 596 17. South British Insurance Co. Ltd v Smit 1962(3) SA 826(A) 18. Botha v Minister of Transport 1956(4) SA 375(W) 19. Hoffa v SA Mutual Fire and General insurance 1965(2) SA 944 (c) 20. Scheepers v African Guarantee and Indemnity Co Ltd 1962(3) SA 657 **_Lesotho_** 1. LNGI (Ltd)v Lesaoana LAC (2015-2016)583 2. Serutla and another v Lesotho National Insurance Company CIV/T/233/90 **BANYANE J** **Introduction** ******[1]** On 11 January 2018, a collision occurred near Lesotho Stone, Lekokoaneng along the main North 1 public road between a Ford Focus motor vehicle driven by the plaintiff and a Mercedes Benz driven by Mrs. Seutloali. At the time of the accident, the Benz was proceeding toward Berea direction while the plaintiff was traveling in the opposite direction to Maseru. The Mercedes Benz was insured by the defendant. The plaintiff sustained serious injuries because of the collision. The plaintiff alleges that the collision was caused by the negligence of the driver of the insured vehicle. **[2]** The plaintiff claims damages in the amount 2 692 812.95 broken down under various heads namely, past and future medical expenses, future loss of earnings, and general damages. He claimed the following amounts under these heads: 1. Medical and hospital expenses M 4 886.85 2. Estimated future medical and hospital expenses M 100 000.00 3. Estimated future loss of earnings M 2 037 926.10 4. General damages for pain and suffering and loss of amenities of life M 500.000.00 **[3]** In its plea, the defendant denies that the insured driver was negligent and counters that the plaintiff himself had caused the collision. In the alternative, the defendant pleaded contributory negligence on the part of the plaintiff and requested the court to apportion the plaintiff’s damages in terms of the **Apportionment of Damages Order, 1989** as amended. **[4]** After hearing evidence from both parties, I found that the collision had been caused by negligence on the part of both the plaintiff and Mrs. Seutloali, and the fault was apportioned equally between them. Resultantly I gave judgment representing 50 percent of the plaintiff’s loss**** on 23 September 2023**.** The following are the**** reasons for the order. **Issue for determination** **[5]** The primary issue for determination was whether the collision was caused by the negligence of the insured driver, if so, to what extent? **[6]** Both parties filed comprehensive written submissions setting out the guiding legal principles relevant to determining the issue identified above. These principles cover the rules of evidence, the onus of proof, the evaluation of evidence, what amounts to negligence, the apportionment of fault, and the assessment of damages. These Principles are summarized below. **The Law** **[7]** Section 6 (1) of the **Motor Vehicle Insurance Order No.26 of 1989** obligates an insurer to compensate any person(third party) for any loss or damage suffered by that person as a result of any bodily injury to himself or death arising out of the driving of a registered motor vehicle, if the injury or the death is due to the negligence or other unlawful act of the person who drove the registered motor vehicle or of the owner or his servant in the execution of his duty. **Burden of proof** **[8]** To succeed in his claim, the plaintiff bears the onus to prove on a balance of probabilities that the insured driver’s negligence caused the damage. To avoid liability the defendant must produce evidence to disprove the inference of negligence on his part, failing which he/she risks the possibility of being found to be liable for damages suffered by the plaintiff. Where the defendant has in the alternative pleaded contributory negligence and apportionment, the defendant must establish negligence on the part of the plaintiff on a balance of probabilities. see **Solomon and another v Musset and Bright** Ltd 1926 AD 427 **[9]** In the case of **Pillay v Krishna** 1946 AD 946 at 951-2, an approach on the burden of proof was stated as follows: “The first rule is that the party who claims something from another in a Court of law has the duty to satisfy the Court that he is entitled to the relief sought. Secondly, where the party against whom the claim is made sets up a special defense as being the claimant; for the special defence, it is regarded in respect of that defense as being the claimant; for the special defense to be upheld the defendant must satisfy the Court that it is entitled to succeed on it. As the learned authors Zeffert et of South African Law of evidence (2nd edition) at 57 argue, the first two rules have been read to mean that the plaintiff must first prove his or her claim unless it be admitted by the defendant in his plea. The third rule is that he who asserts proves and not he who denies. A mere denial of facts which is absolute does not place the burden of proof on he who denies but rather on the one who alleges.” **Test for negligence** **[10]** The test for negligence is stated succinctly in the case of **Kruger v Coetzee**1966 (2) SA 428 (A) at 430E-G as follows: “for the purpose of liability culpa or negligence arises if 1. A diligens paterfamilias in the position of the defendant – 1. Would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and 2. Would take reasonable steps to guard against such occurrence; and 1. The defendant failed to take such steps. …whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case. No hard and fast basis can be laid.” **[11]** Put another way, the basic test for negligence is failure to take precautions which a reasonable man would take in the particular situation in question. To establish negligence, it is not sufficient to prove that the harm to others was reasonably foreseeable and that a reasonable man would probably have taken measures to prevent the risk of harm. The onus of proving negligence also requires evidence regarding reasonable measures available to the particular actor in the particular circumstances.**Khupa v South African Transport Services 1990(2) SA 627** at 633-634. **Evaluation of evidence** **[12]** I proceed to examine the facts, evaluate the evidence, and apply the aforesaid principles of law to answer the essential question of whether the plaintiff has discharged the onus, which rests upon him to prove on the balance of probabilities that the insured driver was negligent and whether the defendant proved contributory negligence. **[13]** The Plaintiff testified that on 11 January 2018, he was driving his Ford Focus from Berea direction to Maseru around 16:00 hrs. While he was 30 meters away, he saw a Mercedes Benz from the opposite direction moving at a high speed in the middle of the two-lane road. He flicked his lights to warn the Mercedes Benz of his presence on the road. As the Mercedes Benz approached, he could not swerve to his left-hand side due to a ditch and trees on this side. The Mercedes Benz collided with the vehicle in his lane. Due to the impact, the vehicle skidded out of control and tilted towards the Berea direction. His attempts to swerve it back in the direction of Maseru failed. The vehicle instead skidded through the opposite lane, and ultimately overturned. It rested at some 54 paces from the road. **[14]** He was badly injured because of the collision and underwent several medical procedures. He further narrated how the injuries negatively affected his life from the date of the accident until now (more about this later). **[15]** Mr. Teboho Rakhomo testified as Pw 3. According to his evidence, he was driving behind the Mercedes Benz although another car (WASCO branded) was in front of him. He testified that when the cars approached a curve near Lesotho Sandstone at Lekokoaneng, he observed the Mercedes Benz curve-cutting while the plaintiff’s vehicle was going down the road's gradient from the Berea direction. He suddenly heard a loud crash. He then observed that the two cars collided and that the plaintiff’s vehicle overturned. In the company of the WASCO vehicle driver, they rushed to the overturned vehicle to check its occupants. They were a man and a woman. The lady had no visible serious injuries while the plaintiff’s leg, which was rescued with difficulty, seemed seriously injured. They sought assistance from other vehicles to rush both to the hospital. **[16]** The plaintiff called two more witnesses, namely, the Police Officer who attended the scene of the accident and prepared a sketch plan as well as a doctor who testified about the effect of the injuries on his life. More about the doctor’s evidence later. **[17]** The investigating officer Police Constable Sebochoa testified that on the day in question, he attended the scene of the accident 30 minutes or so after its occurrence. Upon arrival, he found the Mercedes Benz in the middle of the road, its body cutting horizontally across both lanes. The frontal part occupied the lane from Berea -Maseru and the rear part, the Maseru-Berea direction. Upon arrival, the driver of the overturned vehicle was not on the scene. He had reportedly been rushed to hospital. The officer told the court that he did not mark the spot on which the Mercedes Benz was rested after the accident, but they agreed on its position with the insured driver. The officer then asked the insured driver to remove the vehicle to make way for traffic flow. He told the court that there was nothing on the road surface to indicate the point of collision. **[18]** He later returned to the scene after the plaintiff’s recovery to reconstruct the scene. This was after three or four months. He asked both drivers to identify the collision point on the road surface. Plaintiff did but the insured driver did not. The insured driver did not challenge the point identified by the plaintiff. **The defendant’s case** **[19]** The defense case stands on the testimony of the insured driver and a police officer sergeant Mabusela. The insured driver is a Mosotho woman aged fifty-nine (59). She gave a version of how the events unfolded on the day. She testified that when she approached the left bending curve, she was driving at 50 km/h in her correct lane. She saw the plaintiff’s vehicle going down the decline of Lesotho Stone at a High speed. The plaintiff was still in his correct lane so she assumed that they would pass one another without trouble. The next thing, she heard a loud bang and thereafter realized that the plaintiff collided with her car. According to her version, the collision occurred in her correct lane. After the collision, she observed the plaintiff’s overturned vehicle beside the road. As she approached the car, she saw a man with liquor cans in his pocket reportedly having been requested by the plaintiff to hide those from the police. According to her, alcohol fumes were coming from the plaintiff’s car. She confronted the plaintiff about the beer and told him the police would find out. **[20]** Seargent Mabusela testified that on the day in question, he was on his way to Maseru to visit his family. While at Lishopong at Lekokoaneng, he observed there was a traffic jam. He alighted his vehicle to check on the cause of the congestion. He found a Mercedes Benz blocking two lanes. After establishing that the owner of the vehicle was Mrs. Seutloali, he requested her to remove the vehicle from the middle of the road to allow traffic flow. He also observed another vehicle resting about 50 meters away from the Mercedes Benz. He also testified that he observed broken glass on the lane to Berea direction. Under cross-examination, he testified that the pieces of glass were concentrated in the Maseru-Berea direction and an insignificant amount spread over the lane from Berea to Maseru. **[21]** From the totality of evidence, it appears to be common cause that, a) both vehicles were traveling in opposite directions on a two-lane road; b) the collision occurred at the curve down the gradient of Lesotho Stone. c) The weather was cloudy and rainy on the day in question. **[22]** The parties’ dispute is on the point of impact. The primary question to be answered in determining the issue of negligence relates to the exact position of the point of impact. If the point of impact is in the correct lane of the plaintiff, it will be concluded that the insured vehicle's driver was negligent and _vice versa._ **[23]** Each driver vows that they are driving in their correct lane. According to the plaintiff, the collision occurred in his correct lane while the defendant disputes this and states that it was in her lane. **[24]** The proper approach where the Court is faced with mutually destructive stories is that the plaintiff must satisfy the Court that his version is true, and the version of the defendant is false. The Court in **National Employer v Gany** 1931 AD 187 said: “Where there are two stories mutually destructive before the onus is discharged, the Court must be satisfied upon adequate grounds that the story of the litigant upon whom the onus rests, is true and the other false”. **[25]** This approach, however, applies where there are no probabilities one way or another. In **African Eagle Life Assurance Co. Ltd v Cainer** 1980(2) SA at 237 F- the Court said where there are probabilities, inherent or otherwise, there is no room for this approach. The court stated the position as follows: “On the other hand, where there are no probabilities-for instance, the factum _probandu_ m was whether a particular thing was white or black, with not the slightest evidence as to the preponderance of white or black things in that particular community, there are no probabilities of any sort. And when the testimony of witnesses is in conflict, the one merely saying the thing was white and the other black, it does not matter logically what measure of proof is, whether it is on a balance of probabilities or beyond a reasonable doubt. The position is simply that there is no proof, by any criteria, unless one is satisfied that one witness's evidence is true and the other is false…where there is no probability there is simply no proof of anything (regardless of the measure by which you measure it) unless you believe one person and disbelieve the other. Until then the chances of it being black or white remain exactly evenly balanced. This is simply logic.” **[26]** I do not think that the present matter falls into the category of the mutually destructive version type of cases because the surrounding circumstances create strong probabilities. I elaborate below. **[27]** I begin to analyze the accident report prepared by Pw 1, police officer Sebochoa, the police officer who attended the scene of the accident and drew a sketch plan of the accident. The officer fixed the point of impact at 3 paces away from southern edge of the road, within the Ty-Maseru Lane. This point is about 2 paces from the center of the two-laned road. **[28]** It has been held that in collision cases, the bare opinion of an experienced policeman as to the point of collision is usually allowed as _prima facie_ proof which naturally becomes conclusive proof if it is not challenged. **Assurance BPK v De Beer** 1982(2) SA 603(A) at 604. According to this authority, if a point of collision is in issue, the police officer is obliged to explain to the best of his ability, why he fixed the point of collision there. It was further stated in the case that considering that it is difficult to determine which part of the one vehicle first made contact with which part of the other vehicle and the marks on which the inference is based are spread over an area and not found at one point, it is more correct to refer to an area of collision and not a point of collision. **[29]** Police officer Sebochoa testified that he attended the scene 30 minutes to an hour after the accident. At this time, the plaintiff was not at the scene because he had been rushed to the hospital. According to his evidence, he merely agreed with the insured driver about the position where her vehicle rested after the collision. Regrettably he did not thoroughly examine the scene to obtain all the relevant information about the accident. **[30]** Born JA in **Guadian Royal Exchange Assurance Rhodesia v Jeti 1981**(2) SA 102 (CA) said**** the following about the importance of examination of the scene of the accident. “This has said repeatedly that it is of the utmost importance for investigating officers to examine the scene of accident with meticulous care and to place before the Court, the fullest possible factual information including accurate measurements.” **[31]** In this matter, the accident report sheds no light on important aspects such as the presence of glass on the road, skid marks, and other material information relating to the accident. Moreover, the officer’s evidence reveals that the point of impact depicted on the accident report was pointed by the plaintiff and the insured vehicle's driver did not dispute it. **[32]** For these reasons, minimal value should be attached to the officer’s testimony because he fixed the point based solely on what the plaintiff told him. His evidence also reveals that the identification was made four months after the accident when he visited the scene with both drivers involved in the crash. **[33]** In**LNGI Co, Ltd v Lesaoana LAC (2015-2016) 583 **the policeman who compiled the report identified the point of impact relying solely on the plaintiff’s aid. Because of the time-lapse after the accident, the court found that his evidence was not conclusive in confirming the point of impact as pointed out by the plaintiff. **[34]** Another factor that was not canvassed in the report but cannot be ignored is the presence of glass on the surface of the road, which according to Sergeant Mabusela was concentrated in the insured driver’s lane. Police Officer Sebochoa did not testify about his observations of the accident scene to clarify where the broken glasses were. However, Mabusela did not specify the exact area where these broken glasses were. Were they behind or in front of the insured driver’s car? we do not know. **[35]** The identification of the area where the broken glass was scattered is important because according to the evidence, the plaintiff lost control of his vehicle after the collision, it skidded off through the Maseru-Berea Lane until it rested at 54 paces. It follows in my view that it is probable that the concentrated glass could have come from the skidding and overturning and not from the point of collision. The evidence of Mabusela does not singly advance the defendant’s case about the point of impact. **[36]** The evidence of both police officers must therefore be analyzed in the light of undisputed evidence adduced by persons who were at the scene of accident before the collision, namely, the two drivers involved and eyewitnesses. **[37]** I turn now to the evidence of the two drivers. The credibility of each driver’s testimony must also be measured by comparing their testimony against undisputed facts and examination of the accident scene. **[38]** The plaintiff insisted that he was driving in the correct lane and that the accident occurred on this side. According to the plaintiff, he saw a vehicle approaching him traveling at a high speed with no headlights on. It was about 30 meters away when he first saw it. He says he was driving at about fifty kilometers per hour when he approached the slope. The insured driver’s vehicle slightly nosed onto his lane. He flickered his light to warn the insured driver of his presence on the road. Because of the ditch/culvert on the southern side of the road, he could not swerve to the left. The insured vehicle hit his vehicle on the right side. As a result of the impact, he lost control of the vehicle. It skidded and ultimately overturned. Pw 3 also corroborated the plaintiff’s story that the insured driver rode two lanes. **[39]** It is often impossible to explain what happens in a collision on rational logical grounds. **Motor Vehicle Assurance Fund v Kenny 1984**(4) SA 432 E at 436-7. However, it is worth noting that the evidence adduced by the insured driver does not suggest that the plaintiff’s motor vehicle suddenly deviated from its correct path of travel, moved across the middle line of the road, and nosed or encroached onto the wrong side where it collided with her motor vehicle, because on the authority of **Authur v Bezvidenhoit** and **Mieny** 1962 (2) SA 566 (AD) at 573 C-H if these facts be proved, then an inference of negligence against the plaintiff may be deduced in the absence of an explanation. See also **Sardi and others v Standard and General Insurance Co Ltd** 1977 (3) SA 766 (AD at 780 C-D. **[40]** The concept of negligence in traffic cases takes account of the codes and conventions that normally govern the movement of vehicular traffic on public roads. **Griffiths v Netherlands Insurance** Co. of SA LTD 1976(40SA 691 at 695(AD). Road users, be it vehicle drivers or pedestrians normally regulate their conduct on the assumption that other road users will observe these codes and conventions. Consequently, a departure from these codes and conventions will often bring about unexpected and dangerous situations that in certain circumstances amount to negligence. (see Griffiths (supra). **[41]** The evidence showed that the vehicles were visible to each other from a distance of at least 30 meters. In**Moore v Minister of Posts and Telegraphs** 1949(1) SA 815 at 826, it was held that a driver must watch a vehicle he had seen, not only after it has begun to show signs of dangerous driving but, _‘in case the owner of the other car should be careless or reckless’._ **[42]** Because the vehicles were visible to each other, it was impossible for the driver in either direction not to see the approach of the other if both were keeping a proper lookout. **[43]** It is also undisputed that the plaintiff did not deviate from his lane. A reasonable inference to be drawn from this piece of evidence is that the insured driver did not keep her eyes fixed on the road. A reasonable driver who kept her eyes on the road could have realized if the plaintiff, at any point deviated from his course and made a sudden swerve into her correct lane. **[44]** In my view, the evidence established that the insured driver’s conduct falls short of what is expected of the _bonus paterfamilias_ under the prevailing circumstances. The plaintiff’s story that the insured driver was riding two lanes was sufficiently corroborated by PW 3 as stated earlier. It is probable that the insured driver honestly, but mistakenly thought that she was driving in her lane, or she is not prepared to admit liability for the accident. **[45]** All things considered; I conclude that the plaintiff has proved that the insured driver was negligent. It also seems to be a reasonable inference from the evidence that the impact of the collision caused the plaintiff’s car to spin out of control and eventually overturn. The insured driver’s failure to confine herself to her lane is therefore causally linked with the damages suffered by the plaintiff. **Contributory negligence** **[46]** I turn to deal with the plaintiff’s alleged negligence. The insured driver alleges firstly that the plaintiff was intoxicated, secondly, that his attention was not fixated on the road but on the lady he was with. Thirdly the plaintiff was driving at a high speed. I deal with these allegations in turn. **[47]** Regarding the first aspect, she testified that there were beer cans in the plaintiff's vehicle and alcohol fumes coming from the car. The plaintiff confirmed that he had three cans of beer in his car on the day in question, but they have been there for some time. **[48]** In the case of **Serutla and another v Lesotho National Insurance Company** CIV/T/233/90, it was stated that the mere presence of empty tins of beer cans in one’s vehicle is not conclusive of drunkenness. Drunkenness must be proved more convincingly, perhaps using a breathalyzer or other old methods. **[49]** Besides the presence of the beer cans, neither police officer testified about the state of intoxication of both occupants of the plaintiff’s car. The allegations of intoxication thus remain unconfirmed. I cannot therefore hold that the plaintiff was drunk on the day in question. **[50]** The second aspect relates to the alleged lack of concentration on the road. The insured driver’s evidence suggests that the plaintiff was distracted or fixated attention on the lady passenger in his car and was not concentrating on the road ahead of him, therefore, he did not keep a proper lookout. While it is undisputed that the plaintiff was with a woman in the car on the day in question, there is no evidence that he veered off his lane and nosed into the insured driver’s lane.**** In other words,**** the undisputed evidence shows that he was traveling in his correct lane. **[51]** The third but crucial aspect relates to the plaintiff’s driving, which according to the insured driver was excessive. According to the plaintiff’s evidence, he was driving at 50 km/h. On this road, the posted speed limit is 80 km/h. The plaintiff’s speed, in itself, is not negligent. His negligence however arises from his omission to exercise care as he drove down the decline. According to his evidence, he only flickered his headlights to warn the insured driver of his presence on the road so that she could accordingly return to her lane. On the evidence adduced, he did not ascertain whether the insured driver observed the lights. The question is whether he should have proceeded without ensuring that the insured took heed of the lights and returned to her correct side of the road. **[52]** Although the plaintiff was in his correct lane when the approaching insured vehicle was on the incorrect side of the road, the plaintiff was not entitled to remain passive yet faced with the eventuality of a collision. Although he was entitled to assume that the insured would act reasonably by returning to her lane, if the insured driver did not react to the flickering lights, nor corrected her course, the plaintiff should have proceeded with caution by substantially slowing down. In other words, he was under a duty to take reasonable steps to avert the collision especially because it would have been dangerous for him to swerve to his left because of the ditch on that side of the road. **** **[53]** As stated earlier, the evidence showed that the insured driver was visible at 30 meters. The plaintiff was under the duty to keep the insured driver’s vehicle under observation.****In**Bester v silva Fishing Corporation (PTY)LTD** 1952(1) SA 589 at 596 it was held that if a driver on the main road, after seeing the approaching car proceeded to ignore it by maintaining his existing speed in circumstances where he could not avoid the consequences of the other driver’s negligence, he could hardly escape the conclusion that he, too, was acting negligently. **[54]** The plaintiff’s evidence showed that he observed the insured driver’s vehicle from a 30-meter distance, curve-cutting into his lane. Although he alleged that he reduced his speed when he commenced the decline, the evidence revealed his vehicle somersaulted or overturned after the collision and rested at 54 feet from the collision area. If at the moment of impact, it was going at a reduced speed as the plaintiff alleges, it is improbable that he could have failed to lose control as he did, resulting in the vehicle overturning as it did. The plaintiff failed to reduce his speed as he drove down the decline because if he did, the collision could have been avoided.**** **[55]** By proceeding without reducing his speed as he came down, the plaintiff failed to take the proper precautions**.** A reasonable man would, in my opinion, take precautions by slowing down. This failure amounts to negligence on his part. **[56]** All things considered, I am not convinced that the fault was solely that of the insured driver, instead both the plaintiff and the insured driver were negligent. The damages suffered by plaintiff are partly caused by his own fault and partly of the insured driver. I therefore conclude that the defendant duly discharged the onus of establishing contributory negligence and resultantly the **Apportionment of Damages Order** applies. **[57]** The next question is the extent of negligence by both drivers. In**South British Insurance Co. Ltd v smit 1962(3) SA 826(A.A) **at**836 C-D,****** Thomson AR (as he then was)**** Said: “…what the court is required to do is to determine, having regard to the circumstances of the particular case, the respective degrees of negligence of the parties. In assessing the ‘the degree in which the claimant was at fault in relation to the damage’ the court must determine in how far the claimant’s acts or omissions, causally linked with the damage in issue, deviated from the norm of the _bonus paterfamilias_. in thus assessing the position, the court will, as explained above, determine the respective degrees of negligence, as reflected by the acts and omissions of the parties, which have together combined to bring about the damage in issue.” **[58]** Having regard to all the circumstances of the case, I apportion the blame of 50/50 on both sides. Based on the degree to which the plaintiff was at fault, the damages he sustained must be reduced to that extent. I would resultantly allow the plaintiff to recover 50 percent of the proven damages, to which I now turn. **Quantum of damages** **[59]** It is common cause that the plaintiff suffered serious injuries in the accident. He was hospitalized for about 13 days. According to undisputed oral and documentary evidence by the medical experts, the plaintiff had deep lacerations on his right arm. His right tibia and femur had comminuted fractures so he underwent some medical procedures. The fractures were treated with an intramedullary nails and plates. The plaintiff claims special and general damages. I deal with them below. **Past and future medical expenses** **[60]** The plaintiff claims compensation for past and future medical expenses. It is undisputed that the operation on the plaintiff was necessitated by the accident. He handed in the receipts of his medical expenses (treatment received in various health centres and medication). He also told the court that due to his difficulty in walking, he had to hire a taxi to attend check-ups and treatment (including wound dressing). The plaintiff is therefore entitled to compensation for all medical and reasonably incurred expenses incurred by him in the treatment of his bodily injuries and their consequences. In **Scheepers v African Guarantee and Indemnity Co Ltd 1962(3) SA 657** it was held that in addition to compensation for medical expenses, the plaintiff is entitled to recover reasonable damages for the cost of transport to and from the hospital or to a doctor. **[61]** For a claim of future medical expenses, the plaintiff adduced documentary evidence of medical experts to prove the nature, extent, and effects of his bodily injuries. They include among others that he can no longer do jobs he used to do before the accident such as gardening and other chores in his home (e.g fixing a globe). The injuries also resulted in certain limitations in engaging in sex. In other words, he now has difficulty in engaging in sexual intercourse because his waist is stiff and cannot move properly. He has severe pain in the right lower limb, and his upper limbs are itchy in cold temperatures. He had to use two crutches since the accident. This use of crutches presents severe pain when going up the incline or stairs. He cannot jump or run. He must go to bed early due to pain in cold weather, and cannot carry heavy objects such as 5 liters of water. **[62]** The medical records adduced by the plaintiff include his health booklet, and reports by medical practitioners. One such report was prepared by Dr. Mokobocho dated 16 July 2019. It is there stated that the plaintiff cannot walk properly without crutches, cannot flex his right knee, and there is a mal-union of the right tibia-fibuna which necessitates a further operation. This was confirmed by Dr. Mojela during his testimony that the faulty insertion of the nails/rods during the first operation could be the cause of this malunion. **[63]** Dr. Mojela, the orthopedic surgeon, assessed the plaintiff disability at 8 percent in July 2019. Dr. Mojela has vast knowledge of orthopedics and traumatology. The surgeon in his report confirmed the effects of the injuries as stated by the plaintiff. He testified that the way in which the operation was made indeed affect functionality and mobility hence continuing to cause pain to the plaintiff. This evidence was not challenged. **[64]** Dr Mojela also testified that the plaintiff is bound to incur such future expenses because he must undergo further operative procedures to remove the screws to relieve him of the pain and discomfort caused by the incorrect insertion. According to the surgeon, the plaintiff also needs other medical treatment in the future including physiotherapy. **[65]** The plaintiff claimed M100 000.00 under this head. Although the medical expert did not estimate the cost of the procedure and further treatment, I do not think that the difficulty of quantifying the compensation due is reason enough to reject his claim under this head because it has been proved that the plaintiff needs further treatment. To my mind, if the operation is not fixed, the plaintiff will continue to suffer damages because of the accident. In other words, another operation and treatment are necessitated by the injuries that he sustained. The Court must endeavour as it best can to determine the amount due based on the evidence available. **[66]** The evidence revealed that the treatment was incorrectly done in a government hospital. It therefore seems reasonable for the plaintiff to undergo further treatment in a private hospital, which might be costly for him. A deduction of 50 percent from the amount claimed seems to be a fair and reasonable amount necessary for further operations and treatment. **Pain and suffering and loss of amenities of life** **[67]** I turn now to general damages for pain and suffering and loss of amenities of life. It is trite that patrimonial damages are not capable of exact mathematical calculation. **[68]** In **Botha v Minister of Transport 1956(4) SA 375(W)****at 380** it was stated that loss of amenities of life refers to the loss of ability or will of someone to participate in the general or specific activities of life as he did previously. **[69]** Pain and suffering include all pain, discomfort, physical and mental suffering on account of the physical impairment of the body. see **Hoffa v SA Mutual Fire and General Insurance 1965(2) SA 944****(c).** **[70]** In determining the plaintiff’s general damages,**** an array of considerations come into play. These include the nature, duration, and intensity of the pain and suffering, the activities he was able to engage in with ease before the accident, etc. (the effect of the injuries is covered in para 61 of the Judgment). Moreover when the plaintiff appeared before the court for his testimony in 2023, he was still in crutches. This means he has been using crutches for 5 years since the accident until now (2023). The effect of restricted mobility, the discomfort and pain caused by the protruding nail has not been challenged. He also testified about the pain he endured during some of the medical procedures (e.g cleaning and dressing of wounds) and how he thereafter relied on pain killers for a long period etc. I therefore conclude that he is entitled to the amount claimed, less 50 percent based on the finding of equal fault by both drivers. **Loss of income** **[71]** For loss of past income, the plaintiff has in my view presented insufficient evidence to assess damages representing the income he would have earned but for his incapacity. Although there is no doubt that the bodily injuries may have affected the plaintiff’s ability to earn income, he failed to prove what his actual earnings were before the accident and for the duration of his injuries, nor what income he would have had he not been injured. An award under this head is therefore not justified. **Order** **[72]** For reasons stated above, the plaintiff is awarded damages as follows: a) M 4886.85 for medical and hospital expenses b) Estimated future medical and hospital expenses (less 50%) equals M 50, 000.00 c) General damages for Pain and suffering and loss of amenities of life M250,000.00 d) Interest on these amounts at the bank ruling rates, to be calculated from the date of judgment until the date of final payment e) no award for loss of income **_________________** **P. BANYANE** **JUDGE** For applicant : Adv. Motsohi with him Advocate Mahanya. For respondent : Adv Cronje #### __Related documents ▲ To the top >