Lesotho National General Insurance Co Ltd v Tsiu (CASE NO. C OF A (CIV) 29/2004 )

Media Neutral Citation: 
[2004] LSHC 64
Judgment Date: 
20 April, 2004

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CASE NO. C OF A (CIV) 29/2004

IN THE LESOTHO COURT OF APPEAL


In the matter between:-


LESOTHO NATIONAL GENERAL

INSURANCE CO LTD APPELLANT

and

LERATA TSIU RESPONDENT


14 AND 20 APRIL 2004


CORAM: STEYN P

GROSSKOPF JA

MELUNSKY JA


SUMMARY


Motor collision - no evidence as to how collision occurred ~ no inference of negligence - res ipsa loquitur does not apply - no duty on appellant to explain circumstances of collision - appeal allowed


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JUDGMENT


MELUNSKY JA:


[1] The respondent in the appeal was the plaintiff in the court a quo in his capacity as "father-in-law and guardian" of Mapelaelo Tsiu (his daughter-in-law) and Pelaelo Tsiu (his minor grandchild), who will, purely for the sake of convenience, be referred to as Mapelaelo and Pelaelo respectively. He sued the appellant as a result of a collision which occurred on 1 June 1994 between a motor vehicle driven by AJ Crous and a pedestrian, Liteboho Tsiu ("the deceased") along the Seretse Khama Road in the district of Leribe.


[2] In the declaration the respondent alleged that the collision was due to the sole negligence of Crous; that the deceased died as a result of injuries sustained in the collision; that during his lifetime the deceased was the husband of Mapelaelo and the father of Pelaelo; and that as a result of the death of the deceased his dependents had lost the support to which they were entitled and had thereby suffered damages in the sum of M73000. This amount was claimed from the appellant as the insurer of the motor vehicle in terms of the Motor Vehicle Insurance Order, 26 of 1989. Apart from admitting that the collision occurred on the date and at the place alleged by the respondent, the appellant in its plea, either denied the other allegations made by the respondent or pleaded that it had no knowledge of them. In particular it denied that the collision was due to the negligence of Crous or, if he was negligent, that such negligence caused or contributed towards the deceased's death.


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[3] Before the matter went to trial Mapelaelo was joined in the proceedings as a co-plaintiff by order of the High Court on the respondent's application. It was also ordered that all acts and procedural steps taken by the respondent on behalf of Pelaelo be ratified. The matter eventually went to trial before Mofolo J. Only two witnesses testified - Mapelaelo and the respondent. Neither was present when the collision occurred and no evidence was put before the trial court dealing with the circumstances of the collision. Consequently there was no evidence to establish that Crous was negligent or that any alleged negligence on his part caused or contributed towards the death of the deceased. Despite this the learned judge reached the improbable conclusion that an inference of negligence had arisen and that this had to be negatived by evidence from the appellant. As the appellant called no evidence the judge a quo granted judgment in favour of the respondents with costs.


[4] The only matter that needs to be dealt with in this appeal is whether the learned judge was correct in holding that an inference of negligence could be drawn against the driver of the insured vehicle and that, in the absence of evidence from the appellant, there was sufficient proof that Crous was negligent. In my view the learned judge a quo was clearly wrong in this respect. He applied the maxim of res ipsa loquitur by relying solely on the fact that a collision had taken place. The maxim is applied where the occurrence proclaims negligence by its very nature, as Stratford CJ put it in Naude v Transvaal Boot and Shoe Manufacturing Co 1938 AD 379 at 395.


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In those circumstances the defendant may produce evidence with a view to explaining that the occurrence was unrelated to negligence on his part. There is, however, no onus on the defendant, and even if he fails to give an explanation the court is obliged, at the end of all the evidence, to decide on a balance of probabilities whether the plaintiff has established negligence on his part.


[5] Where, as in this matter, there is no evidence at all about the collision or the circumstances under which it occurred, an inference of negligence on the part of the driver of the vehicle cannot be drawn, nor does the maxim res ipsa loquitur have any application. For all we know the collision might have been due to the sole negligence of the deceased. What the learned judge ought to have held was that the onus was on the respondents to establish negligence on the part of Crous and that their failure to adduce any evidence about the collision had the inevitable result that the onus had not been discharged.


[6] In argument on appeal, counsel for the respondent attempted to persuade us that an inference of negligence could be drawn from the plan of the scene of the collision prepared by a member of the police. As the plan was not produced in evidence in the court a quo we cannot have regard to it and there is no need to decide whether counsel's submission is correct.


[7] It is not necessary to refer to the other matters dealt with in the judgment of the learned trial Judge. It suffices to say that, for the


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reasons stated above, the appeal should succeed. It is therefore ordered-


  1. The appeal succeeds with costs.


  1. The order of the court a quo is set aside and is replaced with the following:-


"the plaintiffs' claims are dismissed with costs".


L.S. MELUNSKY JA


I agree


J.H. STEYN P


I agree


F.H. GROSSKOPF JA


For Appellant : PJ Loubser

For Respondent : M Ntlhoki