Pheko v Makhene (CIV/T 256 of 91) [1995] LSCA 181 (16 November 1995)

IN THE HIGH COURT OF LESOTHO In the matter between: LEHLOHONOLO PHEKO and MRS. MARIAN MAKHENE (duly assisted by her husband) J U D G M E NT CIV/T/256/91 PLAINTIFF DEFENDANT Delivered by the Honourable Mr. Justice G. N. Mofolo on the 16th day of November. 1995. In this matter the plaintiff issued summons claiming from the defendant:- (a) J u d g m e nt in t he s um of M11,611-32: (b) Interest t h e r e on at t he rate of 18% w i th effect f r om J u n e. 1991 to-date: (c) Sales t ax t h e r e on at 13%: (d) Costs of suit; (e) F u r t h er a n d / or alternative relief. T he d e f e n d a nt d e f e n d ed t he m a t t er a nd d i s c l a i m ed liability. A c c o r d i ng to plaintiff's s u m m o ns t he plaintiff w as c l a i m i ng d a m a g es as a result of defendant's n e g l i g e n ce o c c a s i o n ed by collision b e t w e en defendant's v e h i c le a nd plaintiff's as a result of w h i ch plaintiff's m o t or v e h i c le h ad b e en d a m a g e d. In his evidence Mr. Pheko the plaintiff testified that on the day of the accident he was driving his car A2211 along the Main North public road in the direction of Teyateyaneng. As he went down the road he noticed a vehicle going down the slope behind him. When he reached the junction at Lakeside Hotel he stopped in the middle lane going eastward. When he stopped there was no vehicle either on his left or right hand. He was then hit from behind while his vehicle was stationary. His vehicle was hit at the back and on the right hand side. The impact was so strong that doors on the right hand side could not open and he had to use the passenger door on the left to go out. The rear bumper was dislodged and the vehicle could not move unless the bumper was straightened; the boot was also damaged and could not open. When he got out of his damaged vehicle plaintiff, according to him. spoke to the driver the defendant who had been driving YBK 2356; according to plaintiff's summons, the vehicle defendant had been driving was YBK 4466. Much issue was made of these discrepancies but I do not consider them serious as evidence has corrected, in this regard, any inaccuracies in the summons. The plaintiff then went on to testify that he had known Mrs. Makhene before though slightly and she had admitted her fault. It was decided as the defendant was in any event going to repair the vehicle it was not necessary to report the matter to the - 3 - police though shortly afterwards the traffic police arrived and took measurements. In the presence of police the defendant had said she would pay the damage. He had then driven his vehicle home slowly. After two days he had towed the vehicle to Ladybrand for repairs. In the meantime defendant's husband had been to plaintiff offering to pay repair costs. He went on to say after the car was repaired he had informed defendant's husband of the repair costs and he had offered to effect a stop order of M1,000-00 per month towards the costs. Although it would take a long time to settle the bill, the plaintiff had accepted the offer as defendant's husband was a colleague and plaintiff believed he would honour the undertaking. When defendant's husband had not responded plaintiff had communicated with defendant's husband verbally but when he had not responded plaintiff wrote a letter exhibit "A" in these proceedings. The letter was, of course, a letter of demand. Plaintiff then said he hired breakdown for M117-50 and this plus sales tax had amounted in all to M132-48 and that repairs and incidental expenses including costs of towing had amounted to Mll,611-32. Plaintiff then handed in a cheque representing the amount paid for repairs, costs of towing and incidental expenses in the amount of M11,478-54. The cheque was marked Exhibit "B". He had met defendant, asked her to pay but she had renewed her offer to pay but in the sum of M500-00 per month but she had never paid and this is why a summons was issued. When defendant had not paid as promised plaintiff had pressed a criminal charge against the defendant, had given evidence but did not know what the result of the trial had been. The plaintiff went on to testify that in the criminal charge against the defendant the defence of sudden emergency had not been raised and he is surprised it is raised in these proceedings. In cross-examination the plaintiff said the cheque exhibit "B" represented the actual costs of repair, an amount the defendant had undertaken to pay and that the cheque was supported by a quotation which, though it showed the total amount of repairs and the cost of the rear bumper, it did not show and he can't say which part cost how much nor could he say how the amount was arrived at save for the fact that this is what he paid for repairs to his vehicle. Significantly, though plaintiff had a quotation he did not acquaint the defendant of the contents thereof the reason being, according to the plaintiff, that the defendant merely offered to pay without asking for a quotation. After the plaintiff closed his case the defendant gave evidence mentioning, amongst other things, that the accident was caused by brake failure and that when she hit plaintiff's vehicle the latter was stationary. She had endeavoured to avoid plaintiff's vehicle but in doing so had hit plaintiff's vehicle on the extreme right side and her vehicle had been stopped by the impact. She testified that when plaintiff got out of his car he was furious and when she explained her brakes had failed plaintiff off-handedly asked why she had not hooted and she repeated her brakes had failed and that in any event once the vehicle was repaired she would pay but plaintiff said the car was expensive and could not be repaired locally. She denied the boot was damaged but that the rear bumper was damaged and had moved inwards. She said the collision was bumper to bumper though at the time of the accident her vehicle had moved to the right: she denied doors were damaged as on the scene of the accident plaintiff's doors were intact though the rear right door could not open possibly because of the bumper and the position between this door and the rear balance towards the tail of the car was not damaged. She testified although she undertook to pay it was on condition she was presented with quotations in which case she would opt for the cheapest. She went on to say that when the plaintiff's vehicle was sent for repairs she had no quotations. Her husband had later provided her with a quotation from Ladybrand but it had not reflected damaged parts nor was it accompanied by a job card. She said she was shown an invoice but - 6 - this was not itemised as was "LP1" forming part of these proceedings which, save showing repairs to the bumper does not show which part of the car cost how much. She thought the amount shown as repairs to the car was quite ridiculous and she was not prepared to pay the amount unless there was proof. She was not prepared to pay for hire of a taxi and petrol unless there were supporting receipts. She said even the cheque exhibit "8" it could not be said ex facie what for it was drawn. The defence had called a witness one Nkhasi Matete to show that defendant's car had defective brakes and that with its brake condition it could not stop if brakes were applied. I was not satisfied with the evidence of this witness nor did I find his evidence in any way assisting the defendant as at the seen of the accident defendant did not raise the defence of the brake failure. In argument it was plaintiff's case that the defendant and her husband having admitted their fault and hence to repair or pay damage they could not go back on their word and accordingly that no party can be called upon to prove what is admitted and consequently that damages had been proved. On the other hand, it was defendant's attorney's contention that even if defendant had admitted fault and undertaken payment these damages being special damages had nevertheless to be proved. As to the collision, I don't see how I can believe the defendant's story. While she has admitted that plaintiff's rear bumper was damaged by the collision and that the collision was bumper to bumper, she has denied that the boot was damaged. She also testified that in trying to avoid the collision she swerved to the right side of plaintiff's vehicle and in doing so the rear door but not the rest of the body of the car was damaged. In her evidence, she did not testify that she surveyed damage to plaintiff's car -: not without cause for the plaintiff was furious and it is understandable why he would have been. Defendant testified she admitted liability on the scene of the accident. If her brakes had failed I don't see how she could have admitted liability nor am I amused by her admission of liability and defence in court that the accident was as a result of brake failure and hence sudden emergency. I am satisfied that she admitted liability because she knew, at the time, that she was negligent but became clever after the event. Accordingly, I reach the conclusion that when defendant collided with plaintiff's vehicle she was negligent. I also find that defendant did, in fact give plaintiff an undertaking to pay costs of repair to the damaged vehicle. I am fortified in this finding by defendant's husband stance by which though there was evidence that he gave an undertaking to pay plaintiff's repair costs he did not give evidence to deny this evidence. On damages, the question is whether the plaintiff notwithstanding these undertakings, can be said to have proved cost of repair to his vehicle or put in another way. whether because defendant gave an undertaking to pay repair costs there was no need for the plaintiff to prove costs incurred. In criminal cases where an accused person has pleaded guilty to the charge it is incumbent on the crown to prove the commission of the crime if the accused, notwithstanding his plea, must be convicted. The standard in criminal cases is proof beyond reasonable doubt. I am wondering whether, in civil cases, even where a party has admitted liability it is not necessary for the liability to be proved on a balance of probabilities and whether, without such proof, a plaintiff may not be opening the door for a defendant to be absolved from the instance. In HAYES v. VAN RENSBURG, 1964(2) S. A. 64(C. P. D.) Held: regard being had to Rule 22(4) and (9) of Act 52 of 1944, that the effect of appellant's pleading was not to put the quantum of damages in issue and that he had admitted the amount of the damages alleged; so that proof thereof was unnecessary. Sub rule 4 above reads: - 9 - "The defendant in his plea shall either admit or deny or confess and avoid all the material facts alleged in the particulars of the summons and shall clearly and concisely state the nature of his defence and all the material facts on which it is based." Sub-section (9) "every allegation of fact by the plaintiff which is inconsistent with the plea shall be presumed to be denied and every other allegation shall be taken to be admitted." The above rule is substantially the same as our own Rule 22(3) and (4) of the High Court Rules. 1980. In this matter the defendant in her plea denied vehemently all allegations as to plaintiff's damages and plaintiff's case was that defendant had both at the time of the accident and after admitted liability. This is what I have also found save for the fact that the admission does not arise from the defendant's plea. Even before me. the tenor of the defence and especially the defendant herself, was that she was prepared to pay if she was satisfied with quotations and an itemised schedule of how plaintiff's repair costs were arrived at. In SCROOBY v. ENGELBRECHT, 1940 T. P. D. 100 at p.102 Ramsbottom. J. was reported as follows; "The wrongdoer is required to pay for the repairs which are rendered necessary in consequence of the damage, and it follows. I think, that the plaintiff must prove not only what repairs are necessary in consequence of the damage, but what the reasonable cost of effecting them would be: he must snow what amount it would be necessary to spend in order to give him reparation." The learned Judge went on to say that the passage from Pactolus (Sw. 172; 166 E. R. 1079) to which they were referred are in point namely: that what was in dispute was what repairs to a ship damaged in collision were necessary and what the proper cost was to the repairs. In the course of quoting the passage it was said Dr. Lushington had said: the best evidence is that of persons who actually inspected the vessel after the damage - of persons competent to say what repairs were necessary in consequence of the damage. With regard to the bills incurred for such expenses and that they must necessarily, for the purpose of justice, be submitted to examination and extravagant charges lowered by the opinion of persons conversant with the trade." Proof of damage to vehicle cannot be over-emphasised for otherwise there is always the fear that unproven repairs could entail pre-existing defects in plaintiff's car for. as was said in COETZEE v. JANSEN, 1954(3) 173(T.) cases seem to refer to the necessity of proving that not only were the repairs necessary, but that the actual damage was attributable to the collision and more, that the repairs were not rendered necessary by pre- existing defects in plaintiff's car. BOSHOFF v. ERASMUS. 1953(1) S. A. 103 (T. P. D.) was another case where the plaintiff adduced evidence by production of a tender on which the car was repaired. Had handed in his account showing items of repair and amounts charged. There had been additional evidence describing damage to the car and 2 tenders had been submitted for large sums from other firms. A magistrate's court had granted absolution on the ground that no evidence was adduced to the effect that the cost of the repairs was reasonable. Held: as a reasonable person would find that the quotations were evidence of reasonableness, that the appeal succeed. The Court of Appeal in this matter upheld the appeal because not only had there been a tender, accounts were also handed in showing items of repair and accounts charged (I have underlined). There had also been additional evidence describing the damage and 2 other tenders had been submitted. This is in contradistinction to the present case where Mr. Pheko the plaintiff has been the only witness to accounts showing partial items of repair. The case of VAN DYK v. CORDIER. 1965(3) S. A. 723 (O. P. D.) barring important exceptions is not very different from the present case. There was evidence by the defendant that after the accident the plaintiff was very upset, he went out of his car. surveyed it and furiously told defendant how expensive his car was and that it could not be repaired locally. This was the sentiment expressed in CORDIER"S case where after the collision the owner got out of his car and surveyed the damage. There was also evidence that the plaintiff was upset by the accident because he took particular care of his car. But in this case there had been a quotation and an employee of the garage which repaired the car had given "evidence as to the particulars of the car's damage". In addition, a perusal of the quotation had shown that nearly all. if not all the items mentioned therein were in respect of damage to the front and back of the car. Held: prima facie, either directly or by inference, the evidence established that the repairs which were effected had been necessary as the result of the collision with respondent's car. In the instant case it was claimed by the plaintiff both in his affidavit of 29 August. 1991 and before me that as a result of the collision there had been extensive damage to the boot and bumper and that as he was hit towards the rear both doors on the right handside could not open. In answer to paragraph 4(a) of defendant's further particulars reading: "Precisely how is the sum of M11,611-32 arrived at? Full particulars thereof are required." Plaintiff in his further particulars paragraph 4(a) had replied: "For repairs see Annexure "LP1" attached hereto plus M132-78 towing fees." Now. inter alia "LP1" reads: QUOTATION B. M. W. 3251 Reg. A2211 Repairs to damaged vehicle 1 x Rear Bumper TAXI PETROL Sub-Total G. S. T. TOTAL R9397-91 722-09 10.120-00 18-00 20-00 10.158-00 1,320-54 R11,478-54 We hope you find this quotation in order. Thanking you. SGN. C. SOLOMON Parts Manager Of course this quotation is not in order for while the cost of the bumper has been identified the quotation has not shown how the very huge amount of R9.397-91 was arrived at or rather what parts of the damaged car were repaired. One would have expected not only the quotation to say the amount of M9,397-91 comprises damage to the boot and jammed doors, but for the mechanic in charge of the repairs to have testified as to what parts and at what cost they were used to repair plaintiff's car. Thus in AMOS v. BARNETT. 1972(1) S. A. 334 (T. P. D.) though the respondent had successfully sued in the magistrate's court for payment of repairs to his vehicle damaged in a collision, in an appeal against the order that the respondent had failed to prove his damages, and it appeared that the respondent had stated in his evidence that he had obtained various quotes and that the quote which was handed in gave full details of repairs required and was fair and reasonable. Held: as nobody had been called to support the reasonableness of the charges, or the necessity of the repairs reflected in the quote, and as the respondent was not qualified to do so, that absolution from the instance should have been granted. While I sympathise with the plaintiff in this matter. I do not understand why he did not call necessary and available evidence to prove repairs to his car. He could have called C. Solomon of Greenspan Holdings (Pty) Ltd to show how the amount of M9,397-91 was arrived at. He could have called the garage or repair yard which was responsible for repairing his car instead of relving on defendant's admissions which, in my view, did not take this case any stage further as defendant is not the proper person to support the reasonableness of the charges or the necessity of the repairs reflected in the quote to which I have referred. In not proving repairs, plaintiff could have been relving on the finding in HERSMAN v. SHAPIRO and Co. 1926 T. P. D. 367 at p.369 where, amongst other things it was said: "There are cases where the assessment by the Court is very little more than an estimate, but even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages. On the same page and in the same breath the Court went further: "It is not so bound in the case where evidence is available to the plaintiff which he has not produced: in those circumstances the court is justified in giving, and does give, absolution from the instance.' The difficulty, though, is that the plaintiff kept on saying he wanted defendant to pay the sum of M11,478-54 being what he (plaintiff) paid for repairs while in terms of his summons he wanted the sum of M11,611-32 paid. Indeed the latter was also contained in plaintiff's letter of demand. And while the principle of one lump sum and once and for al payment was manifest in this action, plaintiff nevertheless lumped sums for different transactions into one instead of separating them for purposes of the claim. For reasons already stated defendant is absolved from the instance. There will be no order as to costs. G. N. MOFOLO JUDGE 16th November, 1995. For the Plaintiff: Mr. Nathane For the Defendant: Mr. Mosito