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2014
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[2014] ZAGPJHC 415
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Slater v SA Racing Promotions (Pty) Ltd and Another (2013/18886) [2014] ZAGPJHC 415 (5 February 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 2013/18886
DATE: 05 FEBRUARY 2014
In the matter between:
SLATER, RUSSELL
CHARLES
........................................................................................
PLAINTIFF
And
S A RACING PROMOTIONS (PTY)
LTD
.............................................................
1ST
DEFENDANT
VAN RENSBERG,
MICHAEL
...............................................................................
2ND
DEFENDANT
J U D G M E N T
WRIGHT J
1. The plaintiff, Mr Slater is a
dragster racing car enthusiast who was nearly 20 years old on 14 June
2010. On that day he was
working on a dragster racing car at the
Tarlton International Raceway near Krugersdorp. The second defendant,
a mechanic working
in the course and scope of his employment with the
first defendant which operates the Raceway, started the engine of the
dragster.
The plaintiff’s right hand was injured to the extent
that he lost the baby finger and part of each of his remaining
fingers
on that hand leaving only three stumps and a thumb.
2. The plaintiff sues both defendants
for damages. By agreement, the matter proceeds before me only on the
question of whether or
not the second defendant was negligent and if
so whether or not the plaintiff was negligent, calling for a
reduction of his damages.
3. I admitted exhibit A1-19 by
agreement. A1-8 are photos of the plaintiff’s right hand. A9-19
are photos of the vehicle,
and in particular the relevant part of its
engine taken by the defendant’s attorney in January 2015. It is
common cause that
although the vehicle was used between 14 June 2010
and the day on which the photos were taken there is no material
difference between
the way the vehicle appeared on 14 June 2010 and
the way it appeared when the photos were taken.
4. The plaintiff testified.
4.1 His father had introduced him to
the sport of dragster car racing. The plaintiff had driven two other
dragsters in earlier years.
In one year he won the National
Championship in a particular class.
4.2 Starting a dragster requires three
people. The plaintiff’s 15 or 16 year old cousin, Mr JC Slater
sat in the cockpit.
He was a novice at the sport. JC Slater was to
perform certain limited functions like holding the clutch and
watching the oil pressure
gauge. His main function was, at the
appropriate moment, to indicate to the plaintiff that the plaintiff
could begin adding fuel
to a certain part of the engine. The
plaintiff’s function was to add fuel at the appropriate time
and to activate the ignition
switch which was on a console between JC
Slater’s legs. Normally, an experienced driver would himself or
herself activate
the ignition switch. On the day in question it was
felt that JC Slater was too inexperienced for that task. The third
person was
the second defendant, Mr Michael Van Rensberg.
4.3 Mr Michael Van Rensberg lived in a
flat a few hundred meters from the where the incident took place. He
was an experienced dragster
mechanic. He was described by the
plaintiff as the person in charge of the start-up operation. He was
considerably older than the
plaintiff, perhaps 40 years of age. The
plaintiff viewed Mr Van Rensberg as a mentor who knew far more about
dragsters than the
plaintiff did.
4.4 The vehicle had its large back
wheels raised off the ground and resting on trestles. The vehicle was
outside its garage and
in the open.
4.5 Mr Van Rensberg’s task was to
operate the starter. The starter is a handheld machine weighing about
8 – 10 kilograms.
It is a machine separate to the dragster. To
begin the start-up procedure the starter is locked onto part of the
engine of the
dragster.
4.6 Once the starter person, in this
case Mr Van Rensberg triggers the starter an electrical current is
sent to the engine of the
dragster. This causes the oil in the engine
to start circulating. This leads to an increase in oil pressure. Once
the person in
the cockpit, in this case JC Slater is satisfied that
the oil pressure is sufficiently high he gives the signal to the
person who
has to add the fuel, in this case the plaintiff. The fuel
is added manually by the fuel operator who squeezes the fuel out of a
container, an old Domestos bottle. Domestos is a common household
disinfectant.
4.7 On the day in question the first
two attempts to start the motor failed. The first attempt failed as
the engine backfired. Mr
Van Rensberg immediately switched off the
starter motor and said that the problem was that some wires had been
wrongly connected.
He reconnected them correctly. After the second
attempt failed Mr Van Rensberg said that the super-charger belt was
loose. The
plaintiff replied that he had checked the belt shortly
before. Mr Van Rensberg insisted that the belt was loose and that the
plaintiff
should check it.
4.8 The belt in question runs around
two pulleys. One pulley has teeth. The dragster’s motor turns
very quickly.
4.9 The plaintiff, because Mr Van
Rensberg was his senior in years and in experience was loathe to
argue with Mr van Rensberg. Despite
the fact that it was all systems
go for the start he obeyed Mr Van Rensberg’s instruction to
check the belt. Had the person
in Mr Van Rensberg’s position
been a person of less experience or not a mentor of the plaintiff the
plaintiff would have
insisted that Mr Van Rensberg disconnect the
starter at least partially so that the belt would not start turning
simply by one
easy activation by Mr Van Rensberg of the switch on the
starter mechanism. The plaintiff reached for the belt with his right
hand.
As soon as he held the belt with his thumb above the belt and
his fingers below it Mr Van Rensberg activated the starter. The
plaintiff’s
fingers were caught between the belt and the teeth
of the pulley below the belt.
4.10 The plaintiff said that Mr Van
Rensberg must have seen the plaintiff reaching for the belt as Mr Van
Rensberg was standing
at most a meter away from the plaintiff next to
the cockpit and on the other side of the vehicle to which the
plaintiff was standing
and had just told the plaintiff to check the
belt. The plaintiff said that he had put the Domestos bottle next to
him on the ground
prior to reaching for the belt. The plaintiff felt
that even if Mr Van Rensberg did not see the bottle on the ground he
should
have seen that the plaintiff did not have the bottle in his
hand and therefore that the plaintiff was not ready to commence with
the start-up operation.
5. The plaintiff struck me as an honest
person giving straight forward evidence.
6. JC Slater testified.
6.1 The discussion between the
plaintiff and Mr Van Rensberg ended with the plaintiff saying that
he, the plaintiff would check
the belt. The plaintiff, in his
testimony did not refer to his having said this. In my view nothing
turns on this because Mr Van
Rensberg, when he testified conceded
having told the plaintiff to check the belt.
6.2 JC Slater got out of the vehicle
after the accident and asked Mr Van Rensberg what he had done. Mr Van
Rensberg said that he
was sorry and that he had not seen the
plaintiff’s fingers.
7. Mr Van Rensberg testified. He was
most unsure of what had happened. He conceded that he had looked away
at the crucial moment
for about two seconds and that he had made a
mistake. He admitted telling the plaintiff, just before the plaintiff
reached for
the belt, to check the belt. In testimony Mr Van Rensberg
said that he had not meant that the plaintiff check the belt there
and
then.
8. Mr Van Rensberg’s negligence
was not seriously disputed by Mr JD Maritz SC who appeared for the
defendants. Mr Maritz argued
that the plaintiff’s damages
should be reduced by 50%. Mr Maritz based his argument on the
supposed negligence of the plaintiff
in feeling the belt when it was
unsafe to do so.
9. Mr Maritz argued that the
instruction by Mr Van Rensberg to the plaintiff was ambiguous and
therefore the plaintiff should not
have reached for the belt. In my
view the plaintiff was not negligent. Even though he knew the
situation was dangerous it was reasonable
for him to rely on Mr Van
Rensberg to act properly. The circumstances making it reasonable for
the plaintiff to have relied on
Mr Van Rensberg not to activate the
starter when he did are the following:
9.1 The plaintiff was 19 years old at
the time and Mr Van Rensberg was about 40 years old.
9.2 Mr Van Rensberg was an experienced
dragster mechanic who knew the particular vehicle better than any
other person. Mr Van Rensberg
had driven the vehicle in question for
a number of years prior to the plaintiff becoming its driver.
9.3 The plaintiff reasonably viewed Mr
Van Rensberg as a mentor.
9.4 The plaintiff was not unreasonable
in assuming that Mr Van Rensberg would keep his eye on what the
plaintiff was doing.
9.5 It was reasonable of the plaintiff
not to engage Mr Van Rensberg in a debate about the tension of the
belt.
9.6 It was reasonable of the plaintiff
to assume that Mr Van Rensberg would not activate the starter until
after the plaintiff had
checked the belt.
10. The plaintiff’s claim is for
R476 046,70. His testimony of the injury to his hand was not
challenged. In my view High
Court costs should be awarded at this
stage. These costs are to be for all aspects of the case except those
relating only to quantum.
Mr JF Grobler, for the plaintiff sought
such an order.
Order:
1. The defendants are jointly and
severally liable to the plaintiff for the damages he proves arising
out of the accident on 14
June 2010.
2. The defendants are jointly and
severally liable to pay all the plaintiff’s party and party
costs in the action to date
except those costs which relate to the
quantum of damages.
GC WRIGHT J
JUDGE OF THE HIGH COURT,
GAUTENG LOCAL DIVISION,
JOHANNESBURG
On behalf of the Applicant:Adv JF
Grobler
082 776 3213
Instructed by: Levin Van Zyl Inc.
011 886 0915
On behalf of the Respondent: Adv JD
Maritz SC
083 227 9301
Instructed by: Roderick and Lowe
Attorneys
011 782 2271
Dates of Hearing: 4 and 5 February
2015
Date of Judgment: 5 February 2015