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[2017] ZAWCHC 62
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Groenewald v Irvin & Johnson Limited and Others (3595/08) [2017] ZAWCHC 62 (17 May 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 3595/08
In
the matter between:
HAINRO
GROENEWALD
Plaintiff
and
IRVIN
& JOHNSON
LIMITED
First
Defendant
MILLENIUM
SECURITY
Second
Defendant
NICHOLAS
JOHANNES EHLERS
Third
Defendant
and
MILLENIUM
SECURITY
Third
Party
JUDGMENT
DELIVERED ON 17 MAY 2017
GAMBLE
J:
INTRODUCTION
[1]
In this opposed application the plaintiff seeks leave to amend his
particulars of claim in a trial which is pending before this
court.
The first defendant (“I & J”) is a listed company
which, inter alia, owns a mariculture facility at Danger
Point Bay
near Gansbaai in the Western Cape at which it cultivates abalone for
commercial purposes. During 2005 it concluded a
written contract with
the second defendant (“Millennium”) to supply security
services to it at that facility.
[2]
In his particulars of claim the plaintiff alleges that on 1 March
2005, while innocently swimming in the sea in the immediate
vicinity
of I & J’s abalone facility, he was wrongfully and
unlawfully assaulted by the third defendant (“Ehlers”)
who fired a number of live rounds at him with a firearm. The
plaintiff claims that one such bullet struck him and that as a
consequence
thereof he suffered severe injuries to the head, and in
particular the brain, which have left him permanently disabled with a
number
of serious
sequelae.
[3]
On 27 February 2008 the plaintiff issued summons out of this court
claiming damages in the amount of R4, 18m for the injuries
sustained
in the shooting incident. The claim was brought against the three
defendants jointly and severally on the basis of the
following
allegations in the particulars of claim:
“
13.1 the
Second Defendant is vicariously liable for the said delicts of the
Third Defendant; and
13.2 the First
Defendant is vicariously liable for the delicts of Second and/or
Third Defendants.”
[4]
The defendants have resisted the claim with I & J represented by
one set of attorneys and Millennium and Ehlers by a different
firm.
Both groups of defendants and the third party have filed their
respective pleas to which brief reference will be made later.
THE
PLEADINGS
[5]
On 11 June 2015 I & J filed a request for trial particulars from
the plaintiff to which the latter replied on 19 August
2015. Certain
portions of paragraph 7 of that request and the answers thereto
(which are reproduced immediately below in response
to each
individual question) are relevant to these proceedings and are
therefore set out in detail.
Question:
“
7.1 Does
the plaintiff contend that the second defendant itself committed a
delict (i.e. a delict for which it is directly as opposed
to
vicariously liable)?”
Answer:
“
7.1 Yes.”
Question:
“
7.2 If
the answer to 7.1 is in the affirmative, the plaintiff is required to
identify the act or omission of the second defendant
underlying that
delict.”
Answer:
“
7.2 The
Thirid Defendant who was a member of the Second Defendant unlawfully
shot at the Plaintiff and in so doing injured him in
the manner
described in the Particulars of Claim.”
Question:
“
7.3 Does
the plaintiff rely on the alleged employment relationship(s) between
the first defendant and the second and/or third defendants
to support
its allegation regarding the vicarious liability of the first
defendant for the delicts of the third defendant?”
Answer:
“
7.3 Yes.”
Question:
“
7.4 If
the answer to 7.3 is in the affirmative, the plaintiff is required to
state whether the allegation concerning the plaintiff’s
(sic)
vicarious liability in respect of the delicts of the third defendant
arises exclusively from:
7.4.1 the
alleged employment relationship between the first and third
defendants; and/or
7.4.2 the
alleged employment relationship between the first and second
defendants, as well as the alleged employment relationship
between
the second and third defendants.”
Answer:
“
7.4 It is
assumed that
plaintiff’s
delictual liability
should read
First Defendant’s delictual
liability.
7.4.1 The First
Defendant is vicariously liable for the defects of the Second and/or
Third Defendants by virtue of the facts and
circumstances set out in
paragraph 1.1.1 above, which is repeated. The First Defendant is
furthermore liable in its own right in
that it breached its duty to
ensure that care was taken when the security services were provided.
The Particulars of Claim will
be amended accordingly.
7.4.2
Paragraphs
1.1.1
[1]
and 7.4.1 above are repeated.”
APPLICATION
TO AMEND
[6]
On 12 April 2016 the plaintiff gave notice in terms of Rule 28 of his
intention to amend his particulars of claim (as contemplated
in
paragraph 7.4.1 of his trial particulars) by the amendment of sub
para 13.2 through the addition of the following :
“
13.2 The
First Defendant is vicariously liable for the delicts of Second
and/or Third Defendants. In amplification thereof the Plaintiff
pleads that:
13.2.1
The First Defendant employed the Second Defendant for the purposes of
providing security services and knew alternatively
should reasonably
have known that the employees of the Second Defendant including the
Third Defendant were armed with firearms;
13.2.2 The First
Defendant knew alternatively should reasonably have known that anyone
who was struck by a projectile discharged
from a firearm would suffer
serious injuries which could result in death;
13.2.3
There was accordingly a duty on the First Defendant to ensure that
the firearms which were brought on to the Project Area
were not
discharged in circumstances in which this was unsafe as this had the
potential to seriously injure any person who might
be struck by a
projectile discharged from the said weapon;
13.2.4
The steps which the First Defendant could and should reasonably have
taken included:
13.2.4.1
Insisting that the employees of the Second Defendant were properly
trained in:
13.2.4.1.1
the use of a firearm; and
13.2.4.1.2
the circumstances in which a firearm may lawfully be discharged;
13.2.4.1.3
imposing regulations pertaining to the use of a firearm, and the
circumstances in which this could be done.
13.2.4.2
refusing to allow any person to have access to the Project Area who:
13.2.4.2.1
had not been properly trained; and/or
13.2.4.2.2
was not prepared to adhere to the regulations referred to in
paragraph 13.2.4.1.3 above.
13.2.5 The First Defendant failed
to take the aforesaid steps or any other steps to ensure that the
Second Defendant and/or employees
did not discharged a firearm in
circumstances in which it was unlawful and/or unsafe to do so, and in
so doing acted unlawfully
and negligently;
13.2.6 As is pleaded in paragraph 6
above, the Third Defendant discharged the firearm [in] circumstances
in which:
13.2.6.1 it was
unsafe for him to discharge the firearm;
13.2.6.2 the
firearm could not lawfully be fired; and
13.2.6.3 the
Third Defendant acted wrongfully and unlawfully in so doing.
13.2.6.4 The
Second Defendant and/or the Third Defendant were acting in the
interests of the First Defendant and for the purposes
of rendering
security services to the First Defendant;
13.2.7 The Plaintiff was injured as
a direct consequence of the facts and circumstances pleaded in
paragraph 13.2.1 to 13.2.6 above.”
[7]
On 25 April 2016 I & J’s attorneys filed a notice of
objection to the intended amendment in which,
inter alia,
the
following allegations were made:
“
1. The
Plaintiff’s particulars of claim dated 7 February 2008 advance
a cause of action against the First Defendant based
on its alleged
vicarious liability for the delicts of the Second and/or Third
Defendant, on the basis that the First Defendant
employed the Second
and/or Third Defendants as security service providers.
2. The effect of
the Plaintiff’s proposed amendment, as foreshadowed in
paragraph 7.4.1 of the Plaintiff’s Amended Response
to the
First Defendant’s Request for Trial Particulars, is to allege a
new cause of action against the First Defendant, same
being based not
on its vicarious liability for the delicts of the Second and/or Third
Defendants but on its own, independent delictual
liability to the
Plaintiff (a wrongful and negligent failure to take certain steps).
3. The defendant
wishes to defend the new cause of action against it on the basis that
it has prescribed.…..”
[8]
In response to the notice of objection filed by I & J, the
plaintiff filed a notice of motion of the intended amendment
supported by an affidavit deposed to by his attorney, Ms. Spiers, in
which she stated, inter alia, the following:
“
29. As is
clear from the aforegoing, the averment that the First Defendant was
vicariously liable was always part of the pleadings.
The Amendment
nearly (sic) seeks to clarify the basis upon (sic) the First
Defendant’s vicarious liability is founded.
30……
31……
32. The
Plaintiff’s primary response is that he is not seeking to
introduce a further claim, but is merely elucidating and/or
expanding
upon an existing claim; and his secondary response is that even if a
further claim would be introduced (which is denied),
such claim has
not become prescribed. These aspects are dealt with in more detail
below.”
That
application was opposed only by I & J.
[9]
The application for amendment was heard by this court on Monday, 24
April 2017. The plaintiff was represented by Adv. P.Tredoux
and I &
J by Adv. A Morrissey. The court is indebted to counsel for their
helpful heads of argument. At the conclusion of his
argument Mr.
Tredoux indicated that, in the event that the court found that the
proposed amendment introduced a new cause of action
which had become
prescribed, his client accepted that the court should not exercise
its general discretion to grant the amendment.
Accordingly, the
alternative allegation in para 32 of Ms. Spiers’ affidavit is
no longer persisted with. Counsel were agreed
as to the applicable
principles and the relevant case law and, in the circumstances, the
issues have become crisply defined.
[10]
The principal issue for determination can, I think, be formulated as
follows. Does the proposed amendment –
·
purport only to amplify the existing
allegation of vicarious liability already made by the plaintiff in
terms of which he seeks
to hold I & J liable for the delict said
to have been committed by Ehlers while acting in the course and scope
of his employment
with Millenium, or
·
introduce a new ground of liability on the
part of I & J which relies on a delict allegedly committed by I &
J itself?
PRINCIPLES
RELATING TO VICARIOUS LIABILITY
[11]
Neethling
et al
[2]
provide the following introduction to the concept of vicarious
liability (in a section of their book which deals with “
Forms
of
liability
without fault”
)
–
“
Vicarious
liability may in general terms be described as the strict liability
of one person for the delict of another. The former
is thus
indirectly
or vicariously liable for the damage caused by the latter. This
liability applies where there is
a
particular relationship
between
two persons. Three such relationships are important, namely that of
employer-employee, principal-agent and motor car owner-motor
car
driver.”
[12]
Jonathan
Burchell
[3]
says
that –
“
In terms
of the principles of vicarious liability, an employer is made liable
for the wrongs (delicts) committed by his or her servant
in the
course and scope of the servant’s employment. The employer need
not be personally at fault in any way but the wrong
of the servant
(for which the servant remains personally liable) is imputed or
transferred to the employer who often has the ‘deeper
pocket’
or ‘broader financial shoulders’ to compensate the person
injured by the servant’s negligence.”
[13]
In
Hirsch
[4]
Booysen J conducted a thorough study of the common law approach to
vicarious liability and went on to deal with the current state
of the
law as it then was. As a point of departure the learned judge
observed that-
“
In
general the law does not hold one liable for the wrongs of another
but sometimes it does. So, for example, it holds one vicariously
liable when one’s servant commits a wrong in the course and
scope of his employment. That this is so today is well settled…
By vicarious liability, I mean a
person’s liability for the wrong of another although he is
himself free from fault or blameworthiness…”
[14]
At 650D Booysen J referred, inter alia, to
Fleming
[5]
,
the leading English writer in the field of delict, who stated that –
“
The
hallmark of vicarious liability, then, is that it is based neither on
any conduct by the defendant himself nor even on a breach
of his own
duty.
Personal
liability, in contrast, is always linked to breach of one’s own
duty. Certain forms of it, however, bear a marked
resemblance to
vicarious liability: viz, where the breach is committed, not by what
the defendant, but by what somebody else, has
done. There are several
such situations; firstly, whenever one person orders another to
commit a tort, say an assault, he is liable
just as if he had
committed it himself and it matters nothing whether it is committed
through the instrumentality of a servant,
an agent, or a fierce dog.
Here, truly,
qui
facit per alium facit per se.
[6]
Secondly,
someone tort duties are formulated so as to encompass responsibility
for the conduct not only of oneself, but also of
certain people
varying in range. A common carrier, for example, is liable for loss
of goods (saving certain exceptions) even if
caused by strangers; a
shipowner for unseaworthiness even if the defect was due to faulty
workmanship by an independent supplier
or repairer. Most of these are
duties of absolute obligation, but some are mere duties of reasonable
care. For example, the responsibility
of schools to their pupils and
of hospitals to their patients is no longer limited to vicarious
liability for servants, but is
complemented by a ‘non-delegable
personal’ duty to assure that reasonable care is taken for
their safety.”
[15]
In the plea filed on behalf of the second and third defendants,
Millennium admits that Ehlers was its employee at the time
in
question. In those circumstances, provided it is established that
Ehlers negligently (or intentionally) caused the plaintiff’s
injuries, Millennium will be vicariously liable to the plaintiff in
damages in the event that it is established that Ehlers was
acting in
the course and scope of his employment with Millennium. So far so
good.
[16]
However, the plaintiff’s allegation that I & J employed
Millennium to provide security services at the mariculture
facility
is denied by both first and second defendants who say that Millennium
was an independent contractor in relation to I &
J. While the
particular circumstances of the alleged contractual relationship
between those parties might be sufficient to establish
vicarious
liability in this case
[7]
that is not an issue which falls for determination now. Rather, the
question is whether, in the event that the plaintiff establishes
such
an employment relationship between those defendants, he will be
entitled to rely upon the principle of vicarious liability
to hold I
& J (as opposed to Millenium) responsible for his damages. That
too is not an issue which falls for determination
now: it is
something which I must assume for the purposes of considering whether
the amendment seeks to introduce a new cause of
action.
[17]
On the basis of the case as pleaded, I & J’s liability
towards the plaintiff is predicated, not its own negligence
in
relation to the plaintiff but, in terms of the principles of
vicarious liability, that it is liable for the delicts of its
employee’s employee. The approach was dealt with as follows by
Scott JA in
Messina
Carriers
[8]
-
“
[10] It
is trite law that an employer is liable for the delicts of an
employee committed in the course and scope of the latter’s
employment. The rule is based on ‘considerations of social
policy’ (per Corbett CJ in
Mhlongo
and Another NO v Minister of Police
1978(2)
SA 551 (A) at 567H). Its origin lies no doubt in the need to provide
the victim of a delict with a defendant of substance
able to pay
damages. But even in the absence of an actual employer-employee
relationship the law of the recovery of damages from
one person for a
defect committed by another where the relationship between them and
the interest of the one in the conduct of
the other is such as to
render the situation analogous to that of an employee acting in the
course and scope of his or her employment
or, as Watermeyer J put it
in
Van Blommenstein v Reynolds
1934 CPD 265
at 269, where ‘in
the eye of the law’ the one was in the position of the other’s
servant. In such a situation
one is really dealing with an analogous
extension based on policy considerations of the employer’s
liability for the wrongful
conduct of an employee. (See
Boucher
v Du Toit
1978(3) SA 965 (O) at
972D-E). Over the years the elements of the legal relationship
between employer and employee and the interest
of the one in the
conduct of the other have been isolated in order to determine
whether, in the absence of such a relationship,
one person should,
nonetheless, be held liable for a delict of another…..”
In
whatever manner the case is approached, the plaintiff relies upon the
negligence of Ehlers and not of I & J, as the proximate
cause of
his injuries.
A
LEGAL DUTY TO ACT ?
[18]
The allegations introduced through the amendment (as foreshadowed in
the averments made in para’s1.1.1(b)(ii) and 13.2.1
of the
plaintiff’s trial particulars) seek, in broad terms, to place a
duty on I & J to ensure that -
·
all of the employees of Millennium were
properly trained in the use of firearms;
·
such employees were trained in recognising
the circumstances under which such firearms could lawfully be
discharged;
·
there were regulations in place pertaining
to the use of firearms at its mariculture facility; and
·
any person who had not been so trained
and/or refused to adhere to such regulations was not permitted access
to the facility.
[19]
The jurisprudential eloquence of Holmes JA in
Munarin
[9]
describes
the circumstances under which a party attracts a legal duty to
conduct itself with care towards another:
“
Negligence
is the breach of a duty of care. In general, the law allows me to
mind my own business. Thus if I happened to see someone
else’s
child about to drown in a pool, ordinarily I do not owe a legal duty
to anyone to try to save it. But sometimes the
law requires me to be
my brother’s keeper. This happens, for example, when the
circumstances are such that I owe him a duty
of care; and I am
negligent if I breach it. I owe him such a duty if a
diligens
paterfamilias,
that notional
epitome of
reasonable
prudence, in the position in which I am in, would –
(a)
foresee the possibility of harm
occurring to him; and
(b)
take steps to guard against its
occurrence.”
[20]
The case which the plaintiff now wishes to advance at trial is that
there was a legal duty on I & J generally in the terms
set out in
para 18 above and a failure to comply with that duty, as the
plaintiff seeks to conclude in para 13.2.5 of the particulars
of
claim, if amended :
“
13.2.5 [I
& J] failed to take the aforesaid steps or any other steps to
ensure that [Millennium]
and/or
(sic) employees did not discharge a firearm in circumstances in which
it was unlawful and/or unsafe to do so, and in so doing
acted
unlawfully and negligently
;”
(Emphasis added)
[21]
The language employed by the plaintiff in this sub-paragraph could
not be clearer: he seeks to hold I & J negligent on
the basis of
a breach of its own duty of care owed towards him. That is manifestly
the language of personal negligence on the part
of I & J and not
the language of vicarious liability. The suggestion that the
amendment is only intended to amplify the case
for vicarious
liability demonstrates a failure to distinguish personal liability
grounded in negligence for breach of a duty of
care from liability
based on the delict of a third party standing in a particular
relationship to the party sought to be held liable
CONCLUSION
[22]
In the circumstances I am driven to conclude that the proposed
amendment is not just an amplification of the case already pleaded
but constitutes the introduction of an entirely new ground of
liability on the part of I & J, and hence a new cause of action.
It is common cause that that cause of action has prescribed and that
there is no basis upon which the court can exercise any discretion
in
favour of the plaintiff to permit the introduction of such a
prescribed cause of action.
[23]
Accordingly, the application for amendment falls to be dismissed with
costs.
__________________
GAMBLE
J
JUDGE
:
Gamble J
JUGDMENT
DELIVERED BY
: Gamble J
FOR
PLAINTIFF :
Adv. P Tredoux
FOR
FIRST DEFENDANT :
Adv. A Morrissey
DATE
OF HEARING :
24 April 2017
DATE
OF JUDGMENT (Reasons) :
17 MAY 2017
[1]
Para 1.1.1, which amounts to a general refusal to furnish
particulars to I & J on the basis of relevancy, nevertheless
contains the following allegation by the plaintiff –
“
1.1.1(b)(ii)
The provision of the armed security services was an activity which
was inherently dangerous, and the First Defendant
was therefore
under a duty not only to take care but to ensure that care was taken
so as to prevent harm befalling (sic) members
of the public;”
[2]
Neethling,Potgieter and
Visser
, The Law of Delict
, 5
th
ed
[3]
Jonathan Burchell
,
Principles of Delict at 215
[4]
Hirsch Appliance
Specialists v Shield Security Natal (Pty) Ltd
1992(3)
SA 643 (D&CLD) at 647G
et
seq
[5]
Fleming
,
The Law of Torts (7
th
ed) at 341
[6]
“
He
who does anything by another does it by himself”
(
Latin
for Lawyers
,
Sweet and Maxwell,1915 ed. at 227)
[7]
Langley Fox Building
Partnership (Pty) Ltd v De Valence
1991
(1) SA 1 (A)
[8]
Messina Assoc Carriers v
Kleinhaus
2001 (3) SA 868
(SCA) at 872
[9]
Peri-Urban Areas Health
Board v Munarin
1965(3) SA
367 (A) 373E.