Summary of Judgment

Introduction

This matter concerned an appeal in the High Court of South Africa, Free State Division, Bloemfontein, against findings made by a trial court on the issues of negligence and contributory negligence arising from a workplace/farmyard accident involving heavy machinery and a hay bale.

The appellants were Zentner Boerdery CC (the employer and first defendant in the trial court) and Gareth Hambly (the forklift operator and second defendant in the trial court). The respondent, WJ van der Mescht, was the plaintiff in the trial court and had sued for delictual damages arising from personal injuries.

In the trial court, the issues were separated, so that only the questions of (i) the negligence of the second appellant and (ii) the respondent’s contributory negligence were determined. After hearing evidence, the trial court held the appellants liable for 100% of the respondent’s damages and found that no apportionment of blame was justified.

The appellants appealed those findings. The appeal was heard by a full court (Van Zyl J, Jordaan J, and Ramlal AJ), and leave to appeal had been obtained (as recorded in the judgment) from the Supreme Court of Appeal.

The dispute, in general terms, concerned whether the forklift operator acted negligently in tipping a large hay bale without ensuring the area was clear, and whether the respondent contributed to his own injuries by positioning himself in a place where he was not readily visible and by not alerting anyone that he had returned to the work area.

Material Facts

The appeal court recorded that there were no material disputes about the events leading to the accident and that, for purposes of the appeal, the appellants accepted the trial court’s credibility findings. The case therefore turned on the proper evaluation of the established facts against the legal standards for negligence and contributory negligence.

On 25 January 2016, the respondent, a technician, arrived at the first appellant’s farm with an assistant technician to attend to a reported problem with a bale fork attached to a John Deere tractor. The issue was that the bale fork was allegedly unable to lift a large hay bale (a “big pack”) weighing approximately 900 kg.

A bale was needed to test the tractor’s bale fork. The respondent and his assistant saw a bale lying on its side near the shed wall and attempted, unsuccessfully, to tip it onto its flat side. They then obtained assistance from a labourer and the second appellant. The bale was tipped onto its flat side, lifted by a forklift operated by the second appellant, and transported to the tractor.

The bale (rectangular in shape) was then positioned in front of the tractor’s bale fork, with the forklift on the opposite side facing the tractor. The bale was again placed onto its side so that the tractor’s bale fork could be pushed into it. The forklift was used to support the bale to prevent shifting or tipping while the fork was inserted. The attempt to lift the bale with the tractor was unsuccessful; the tractor was reversed to withdraw the bale fork. The forklift remained in position and was left idling while the technicians worked further.

At approximately 1 pm, the respondent told the second appellant and the farmer’s son that the technicians would return to town to check the forklift’s capacity and specifications. The respondent and his assistant collected their tools, greeted the second appellant and the farmer’s son, left the shed, and returned to their vehicle, which remained parked in front of the open shed door.

Because it was lunchtime, the labourers also left the shed. The second appellant and the farmer’s son had a short conversation in the shed; thereafter the farmer’s son left, apparently leaving the second appellant alone. During this time, with the second appellant’s back turned toward the shed door, the respondent returned to the tractor to obtain and note the serial number of the bale fork. The respondent knelt in front of the bale fork, cleaned the serial number plate, and began writing down the number.

Without noticing the respondent on the opposite side of the bale, the second appellant decided to return the bale to its original position. To load it, he needed to tip it onto its flat side. He approached the bale with the forklift and tipped it. The bale fell onto the respondent’s leg, causing serious injury.

The trial record included photographs and a reconstruction. Evidence was led about the relative heights involved, including that the respondent’s kneeling height (upright body) was measured at 1.3 m, which was the same as the estimated height of the bale when lying on its side.

While the underlying events were treated as materially common cause, the appeal court differed from the trial court regarding whether it was properly established that the respondent was clearly visible to the second appellant at the relevant time, and whether the second appellant’s conduct should be assessed as requiring a “specific lookout” for a person behind the bale.

Legal Issues

The central issues were the following questions of application of law to essentially common-cause facts, coupled with evaluative findings concerning foreseeability, reasonable conduct, and comparative blameworthiness.

The first question was whether the second appellant, as forklift operator, was negligent in tipping a large bale in circumstances where the respondent was on the other side of the bale and was struck when it fell.

The second question was whether the respondent was contributorily negligent by returning to the shed and kneeling in front of the tractor’s bale fork without alerting anyone, despite the presence of an idling forklift and the known possibility that the bale could be moved.

The third question, arising if both parties were negligent, was the proper apportionment of responsibility between them and whether the trial court erred in refusing any apportionment.

A consequential issue concerned costs, particularly whether the appellants, if substantially successful on appeal, should receive their costs of appeal.

Court’s Reasoning

Negligence of the second appellant

The appeal court examined the basis on which the trial court had found the second appellant negligent. The trial court’s reasoning (as summarised in the appeal judgment) depended materially on the proposition that the second appellant did not look around, had multiple opportunities to see the respondent, and that, given accepted measurements, the respondent should have been clearly visible.

The appeal court stated that it could not find evidential support in the record for aspects of the trial court’s account, particularly the assertion that the second appellant looked only at the forklift’s dashboard and nothing else. The appeal court accepted that the second appellant would have had to look at the bale and the forklift’s front to position the blades for tipping.

The appeal court then addressed whether, in the circumstances, the second appellant should have taken steps to ensure that nobody was behind the bale. It characterised this as imposing a requirement of a specific lookout rather than a general appraisal of the surroundings. The appeal court accepted that the second appellant was under the bona fide impression that everyone had left the shed and that he was alone. Although the respondent’s vehicle remained parked in front of the open shed door (and should have been visible to the second appellant), the appeal court reasoned that this fact did not necessarily mean that the second appellant should have foreseen, as a reasonable possibility, that the respondent had re-entered the shed and positioned himself behind the bale.

The appeal court further criticised the trial court’s conclusion that the respondent “should have been clearly visible” as an “armchair approach based on hindsight,” particularly in light of the respondent’s own concessions. The respondent had testified that he was unsure whether he would have been visible to someone seated on the forklift and repeatedly conceded that a person kneeling between the bale and the tractor would not be visible; he also agreed that, during the reconstruction, the second appellant could not see whether someone was kneeling there.

Despite rejecting the trial court’s specific reasoning, the appeal court nevertheless upheld a finding of negligence against the second appellant on a different evidential basis drawn from the second appellant’s own concessions. During cross-examination, the second appellant conceded that, from his seated position on the forklift, his eye level exceeded the height of the bale and that the head of a kneeling person near the bale on the other side would have been approximately level with the top of the bale and visible. His explanation for not seeing the respondent was that structural components (pillars and iron bars) on the forklift obscured the view.

Given that tipping a bale of the size and weight involved was accepted as an inherently dangerous exercise, the appeal court held that the second appellant should not have proceeded without ensuring a clear and unobstructed view of what was in front of him. The second appellant had conceded that, in the circumstances described, he did not keep a proper lookout. On this basis, the appeal court concluded that negligence on the part of the second appellant was established.

Contributory negligence of the respondent

The appeal court next considered the trial court’s conclusion that no apportionment was warranted. It regarded the evaluation of negligence as requiring a holistic assessment of the circumstances and then set out a series of factors, largely from the respondent’s own evidence, which it considered decisive.

The appeal court emphasised that the respondent knew the bale was extremely heavy and that it could only be loaded by the forklift once tipped onto its flat side. The respondent noticed that the forklift was idling when he returned to the tractor to obtain the serial number, and he conceded that the hydraulics of a forklift engaging can be heard. The respondent had told the second appellant he was leaving, he did in fact leave the shed, and he did not tell anyone that he was returning. He also conceded that it was reasonable for the second appellant to assume that nobody remained in the shed. He knew that the bale posed a risk if it were tipped over and that the bale had been moved into its position solely to test the tractor’s bale fork and would be moved back thereafter. The fact that the forklift remained idling indicated, on the appeal court’s assessment, that it was intended to be used again within a short period.

Against that factual background, the appeal court held that the respondent nonetheless chose to kneel in front of the bale fork, in a position where he was largely hidden from the view of someone operating the forklift. The appeal court reasoned that he could easily have avoided the risk by simply announcing his return. It also considered that, even if the final tipping happened within seconds, the respondent’s presence at the tractor would have taken longer because he had to kneel, clean the plate, and begin noting the serial number. On the probabilities, the appeal court considered he would have heard the forklift being engaged and the hydraulics activated (including revving and blade adjustment, which it regarded as probable) and could have reacted by standing up.

On these considerations, the appeal court concluded that the respondent acted negligently and that the trial court’s rejection of contributory negligence could not be sustained.

Apportionment

Having found negligence on both sides, the appeal court weighed the extent to which each party’s negligence contributed to the harm.

In relation to the second appellant, the appeal court considered that the possibility of someone being behind the bale was “slight” and, in the circumstances, not reasonably foreseeable. His negligence was framed as proceeding when he knew his view could be obscured by the forklift’s pillars and bars, and as failing to keep a proper lookout when at least part of the respondent would have been visible had he done so. However, the appeal court characterised the risk of harm, in the circumstances as known to the second appellant, as “remote.”

In relation to the respondent, the appeal court considered the risk as “real and imminent,” because the respondent knew the second appellant could reasonably believe he had left, knew the bale would likely be moved back at any moment, and chose to position himself where he was not readily visible without alerting anyone. It emphasised that the respondent could have avoided the harm either by informing others that he was returning or by reacting to the sounds of the forklift being engaged.

On this comparative assessment, the appeal court held that the respondent’s contributory negligence substantially exceeded that of the second appellant and fixed the respondent’s contribution to his injuries at 70%, leaving the appellants liable for 30% of the proven or agreed damages.

Costs

Because the appellants succeeded in materially reducing their liability from 100% to 30%, the appeal court held that they were substantially successful in the appeal and that there was no reason they should not receive the costs of appeal.

Outcome and Relief

The appeal court upheld the appeal to the extent of substituting the trial court’s order with an order apportioning damages. The order of the court a quo was set aside and replaced with an order that the defendants (the appellants) are jointly and severally liable, one paying the other to be absolved, to compensate the plaintiff (the respondent) for 30% of his proven or agreed damages, together with costs in the court a quo.

The respondent was ordered to pay the costs of the appeal.

Cases Cited

No case authorities were cited in the judgment.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the second appellant was negligent in proceeding to tip a large hay bale with a forklift in circumstances where his view was obstructed and without ensuring a clear and unobstructed view, particularly given the inherent danger of the activity and his concession that he did not keep a proper lookout.

The court held further that the respondent was contributorily negligent because, despite knowing the bale was heavy, that the forklift was idling and likely to be used, and that the second appellant could reasonably assume everyone had left, the respondent returned without alerting anyone and placed himself in a position where he was not readily visible, thereby exposing himself to a real and imminent risk.

The court held that apportionment was warranted and determined that the respondent’s contributory negligence accounted for 70% of the causally relevant blame, with the appellants responsible for 30%. It accordingly reduced the appellants’ liability to 30% of the respondent’s proven or agreed damages, and ordered the respondent to pay the costs of appeal.

LEGAL PRINCIPLES

Negligence is assessed with reference to the specific circumstances of the incident, viewed holistically, rather than by isolated factual assumptions or hindsight-based reasoning.

Where an activity is inherently dangerous (such as tipping a large and heavy hay bale with a forklift), a reasonable operator is required to take appropriate precautions, including ensuring that there is a clear and unobstructed view and maintaining a proper lookout, especially where the operator’s view may be obstructed by the structure of the machinery.

Foreseeability and the required scope of precautionary conduct depend on context; a court must consider whether the risk that materialised was a reasonable possibility in the circumstances known to the actor at the time, rather than imposing a duty amounting to an absolute requirement to check for hidden persons in every conceivable position.

Contributory negligence may be found where an injured party knowingly places themselves in a position of risk, fails to communicate their presence or intentions when it would be reasonable and easy to do so, and fails to react to warning signs (such as audible indications that machinery is being operated), thereby materially contributing to the occurrence of the harm.

Where both parties are negligent, a court may apportion responsibility by a comparative evaluation of the extent to which each party’s negligence contributed to the harm, including an assessment of the relative immediacy and magnitude of the risk created or accepted by each.