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[2007] ZASCA 108
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Wessels v Pretorius (418/06) [2007] ZASCA 108; [2007] SCA 108 (RSA); [2008] 1 All SA 131 (SCA) (20 September 2007)
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case no: 418/06
In the matter
between
STEPHANUS
WESSELS
.......................
APPELLANT
and
BENJAMIN
CHRISTOFFEL PRETORIUS
.......................
RESPONDENT
Coram:
SCOTT, HEHER and VAN HEERDEN JJA
Heard:
28 AUGUST 2007
Delivered: 20 SEPTEMBER 2007
Summary: Negligence – father permitting sixteen year old son
to drive motor vehicle without supervision – reasonably
foreseeable
that peer pressure would lead to son overstepping bounds
of reasonable behaviour – father’s conduct negligent –
resultant injury to passenger foreseeable – father personally
liable.
Neutral citation: This judgment may be referred to as
Wessels v
Pretorius
[2007] SCA 108 (RSA).
_____________________________________________________________________
JUDGMENT
__________________________________________________________________
HEHER JA
HEHER JA:
[1] On Saturday, 2
March 2002 Benjamin Pretorius was a matric student just short of his
seventeenth birthday. On the afternoon of
that day he was one of four
teenage passengers on the open back of a truck (a ‘bakkie’)
belonging to the appellant and
driven by his son Albert (then aged 16
years and 10 months), an unlicensed driver. The vehicle had just left
the appellant’s
farm and entered the Mareetsane road in the
Lichtenburg area. It was travelling at about forty kilometres per
hour when Albert performed
a manoeuvre known as a ‘handbrake
turn’. That apparently requires a sudden application of the
handbrake with a simultaneous
drag on the steering wheel. If
skillfully executed on a loose surface – the Mareetsane road
was sand or gravel – the
vehicle will slew to a stop in its
original direction of travel after having turned a full circle. Such
a stunt excites the youth,
no doubt because of the inherent hazard
that it involves. The trial judge (Landman J) seems to have accepted
that immediately before
the incident Albert warned Benjamin and the
other passengers of his intentions. Benjamin, unfortunately, either
did not hear or did
not respond appropriately because he was not
holding on to the roll bars (or any other part of the bakkie) at the
critical moment.
He was thrown off and suffered grievous injuries. By
the time of the appeal all the aforegoing facts were common cause.
[2] Stephanus
Wessels (the appellant), the father of Benjamin, caused two actions
to be instituted in the Bophuthatswana Provincial
Division of the
High Court. In the first, Benjamin, duly assisted by his father, sued
the appellant in his representative capacity
for damages caused by
Albert in the course of his alleged negligent driving of the vehicle.
In the second, Benjamin, again duly assisted,
claimed damages from
the appellant in his personal capacity, seeking to hold him liable on
various grounds. The only ground of importance
for the purposes of
the appeal was that the appellant negligently allowed Albert to drive
the vehicle without supervision, and when
it was reasonably
foreseeable that he would drive without reasonable care. All these
allegations were denied by the appellant in
his pleadings.
[3] The actions were
consolidated. At the trial an order was made for a separation of the
issues with the quantum of damages to stand
over until questions of
negligence and liability had been decided.
[4]
After hearing evidence for all parties – but not the version of
Benjamin who was unable to testify by reason of his injuries
–
Landman J found that Albert had been negligent and that his
negligence had been a contributing factor to the damages suffered
by
Benjamin. He apportioned fault between Albert and Benjamin at 65 :
35. He further held that the appellant exercised a power and
duty to
oversee the conduct of Albert and his friends on the day in question,
that he allowed and perhaps encouraged Albert to use
the vehicle when
it was reasonably foreseeable that Albert would not exercise proper
care in driving it and that injury to the passengers
was a
foreseeable consequence. He ordered the appellant to pay
pro
tanto
to
the apportionment the costs of the proceedings including the costs of
two counsel.
[5] The learned
judge granted the appellant leave to appeal against the orders made
against him in his personal capacity. There was
no cross-appeal.
[6] Before
proceeding to a consideration of the merits of the appeal it is
necessary to set out in greater detail the factual findings
made by
Landman J:
‘
[5] Albert
woon by sy ouers en suster op die plaas Wienan in die distrik van
Mareetsane, Noordwes Provinsie. Hy het sy maats Gerhardt,
Wouter en
Bennie uitgenooi om die naweek op die plaas vanaf 1 tot 2 Maart 2002
deur te bring. Die seuns het Vrydagmiddag by die Wesselse
se plaas
aangekom. Bennie het ‘n bottel brandewyn saamgebring.
[6] Die aand wou die
seuns vir Bernice Bloem gaan kuier omdat Magriet ook daar oornag het.
Ongeveer 19:00, met mnr Wessels se toestemming,
het Albert en die
seuns met sy pa se bakkie tot by die Bloems se plaas gery. Die Bloems
se plaas is sowat 15 km ver van Wienan. Albert
was te jonk om’n
bestuurderlisensie te bekom. Twee seuns het agterop die bakkie gery.
Toe die seuns daar aangekom het, het
mnr Wessels hulle deur middel
van radio gekontak om seker te maak dat hulle veilig aangekom het.
Die seuns het by die meisies tot
ongeveer 21:00 gekuier en hulle is
toe weer terug na die Wesselse se plaas saam met Marnus, wie hulle by
die Bloems gekry het.
[7] Albert het huis
toe bestuur. Die volgende oggend, Saterdag 2 Maart, het die seuns aan
tafel vir mev Wessels genoem dat hulle springhase
op ‘n ander
maat, Marnus Bothma, se plaas wil gaan jag. Mev Wessels het hulle
goed laat verstaan dat mnr Wessels nie Albert
sal toelaat om sy
bakkie te gebruik nie. Albert het slegs eenkeer in die verlede sy pa
se bakkie sonder toestemming geneem en raas
gekry.
[8] Albert het
Saterdagoggend in Lichtenburg rugby gaan oefen. Die ander seuns is
opgelaai en het die oggend op Bothma se plaas deurgebring.
Mnr en mev
Wessels het vertrek om’n huweliksplegtigheid op Ottosdal te
gaan bywoon. Albert en sy suster het tuisgebly. Albert
sê dat
hy het sonder toestemming die bakkie se sleutels van die rak geneem
en die seuns by Marnus gaan haal het.
[9] Op pad terug het
hulle by ‘n winkel stilgehou en ‘n pak van ses biere
gekoop. By die huis gekom, het hulle telefonies
met die meisies
kontak gemaak. Hulle is daarheen met mnr Wessels se bakkie. Albert
het bestuur. Bernice het die bakkie na die Wesselse
se plaas
terugbestuur. Die meisies het ‘n bottel rosé wyn
saamgebring.
[10] Die seuns het
geswem en daarna vleis gebraai. Toe Albert ‘n bier drink, het
sy suster gedreig om haar ouers daarvan te
vertel. Wouter het twee
biere gedrink. Bennie en Gerhardt het brandewyn gedrink. Die meisies
het wyn, met Schweppes gemeng, gedrink.
Niemand was besope nie.
Volgens die getuies was hulle daaraan gewoond om te drink. Bennie se
toestand is as “vrolik”
beskryf.
[11] Die meisies
moes terugkeer na die Bloems se plaas. Albert het bestuur. Bennie en
Gerhardt het vir die passasier se sitplek binne
die kajuit gewedywer.
Die eer het Gerhardt te beurt geval. Magriet het agter op die bakkie
aan die agterkant van die passasiers se
plek gestaan en aan die
rolstaaf vasgehou. Wouter het agter haar gestaan en met sy arms om
haar ook vas gehou.
[12] Bernice het
langs Magriet op die regterkant van die bakkie gestaan dws agter
Albert, die bestuurder. Bennie het agter Bernice
gestaan en ook aan
die rolstaaf vasgehou. By die T-aansluiting van die plaaspad en die
openbare pad (‘n grondpad) het Albert
stilgehou en Bennie
beveel om vas te hou.
[13] Albert het regs
uit die plaaspad gedraai en ongeveer 130 meter verder is die
“handbrake turn”, met tragiese gevolge,
uitgevoer.’
[7] The learned
judge went on to consider the various accounts concerning the
circumstances under which Benjamin was flung off the
bakkie. Having
assessed the evidence he continued:
‘
[23] Bennie
het nie getuig nie. Ek bevind dat hy genoeg alkohol ingeneem het in
so ‘n mate dat hy “vrolik” voorgekom
het. Dit was
vir Albert nodig om by die T-aansluiting stil te hou om hom [te] maan
om te sit en vas te hou. Bennie moes daarvan bewus
gewees het dat
passasiers agterop ‘n bakkie aan meer gevaar blootgestel word
as passasiers wat binne die kajuit sit. Hy wou
voor sit. Hy het
geweet dat Albert nie ‘n voertuig op ‘n openbare pad mag
bestuur nie.
[24] Albert het die
bakkie bestuur. Hy beskik nie oor ‘n bestuurderslisensie nie
omdat hy te jonk is om een te bekom. Hy het
betreklik min
ondervinding om op openbare paaie te bestuur. Hy het meer gedrink as
wat hy bereid was om te erken. Tog was hy in ‘n
nugterder
toestand as Bennie. Hy het immers Bennie se optrede dopgehou en die
bakkie tot stilstand gebring om hom aan te sê
om te sit en vas
te hou. Die bespreking onder die seuns (Bennie inkluis) ten opsigte
van die uitvoering van ’n “handbrake
turn” sou
sekerlik groepsdruk op hom uitgeoefen het.
[25] ’n
“Handbrake turn” is ’n gevaarlike beweging. Dog een
wat wel nut het in sekere omstandighede. Maar
dit is nie ‘n
beweging wat die gewone alledaagse bestuurder moet uitvoer nie. Die
uitvoering daarvan met ‘n klomp passasiers
op ‘n oop
bakkie was ‘n onbesonne daad. Albert het in ieder geval te min
waarskuwing van sy voornemens gegee. Hy het
ook nie seker gemaak dat
sy passasiers sy bevele gehoorsaam het voordat hy die beweging
uitgevoer het nie. Alles in ag genome skat
ek Bennie se nalatigheid
op 35% en die van Albert op 65%.’
[8]
The court
a
quo
analysed
the case against the appellant and concluded that he had granted
permission to Albert to drive the vehicle on the day in
question. The
correctness of this finding was debated at length before us on
appeal. It was common cause that the appellant had submitted
a claim
to the insurer of the vehicle under the public liability section of
the policy in his favour. For the purpose of completing
the claim
form the insurer’s representative, one Rossouw, had visited the
appellant at his farm. There he filled in the required
details in
accordance with information imparted to him by the appellant. The
appellant signed the completed form. In addition, at
the request of
Rossouw, he signed those divisions of the form which contained
answers ostensibly furnished by him relating to the
driver of the
vehicle and the description of the accident respectively. (It was not
in dispute that that description was false due
to no fault of the
appellant but because the five young people in and on the vehicle,
excluding Benjamin, had concocted a version
designed to protect
Albert which they only recanted shortly before the trial started.)
According to the details on the form the name
of the driver was
Albertus Johannes Wessels, scholar, born on 7 May 1985. This, the
appellant admitted, was information that Rossouw
derived from him and
was correct. So also the replies in relation to the driver’s
telephone number, purpose for use of the
vehicle (‘privaat’),
whether the driver was in his employ (‘nee – seun’),
previous motor vehicle offences
(‘geen’), physical
infirmities (‘geen’) and details of previous accidents
(‘geen’).
[9] However, between
the questions about the use and the employment the following question
appeared on the form: ‘Het hy/sy
met u toestemming bestuur?’
against which Rossouw wrote ‘Ja’. He testified that he
did so in accordance with an
answer furnished by the appellant to a
direct question put to him in conformity with that on the form.
Cross-examination by counsel
for the appellant did not succeed in
changing or materially weakening his testimony.
[10] The appellant,
by contrast, testified that Albert not only drove the vehicle on the
Saturday without his permission but also
in despite of a standing
instruction that he was not to use the vehicle without the
appellant’s permission, and in the face
of an express
prohibition against such use communicated by him to Albert on the
Saturday morning. Therefore, the appellant surmised,
he must have
misunderstood Rossouw’s question ‘Did the driver have
your permission to drive the vehicle?’ as ‘Did
Albert in
fact drive the vehicle?’ or a question to that effect.
[11] But, as the
court found, such a misunderstanding was incomprehensible since, as
the appellant well knew, the earlier question
and answer had
unequivocally identified Albert as the driver and his reply left no
sensible room for a repetition shortly thereafter.
The finding that
the appellant’s explanation was unsatisfactory cannot be
faulted. But counsel on appeal attempted to persuade
us that the
totality of the evidence given by the appellant, his wife, and Albert
about the standing instruction, the evidence of
the appellant and
Albert concerning the former’s express ban and that given by
Albert and his mother (and supported by Albert’s
friend Philip
de Vos) concerning the express prohibition laid down by her, jointly
or severally outweighed or at least balanced the
existence of the
‘admission’ in the claim form. Therefore, counsel
submitted, the overall probabilities negated both
the likelihood and
the accuracy of such an admission. This proposition requires a
reconsideration of the evidence and probabilities.
[12] I consider
first the value of the evidence of the appellant and his wife
relating to the imposition of their respective express
prohibitions.
It seems to me that the objective probabilities against both are
strong.
1. No express
prohibition was pleaded. This silence is significant in context. The
plaintiff had alleged in his particulars of claim
that before and at
the time of the accident the defendant had the duty and right to
control and limit the manner in which Albert
drove the vehicle in
various ways, inter alia
‘
8.4.1 Hy het
die voertuig tot Albert Wessels se beskikking gestel terwyl hy bewus
was van die feit dat Albert Wessels nie oor ’n
geldige rybewys
beskik het nie, en passasiers op gemelde voertuig sou vervoer;
. . . .
8.4.3 Verweerder in
bovermelde omstandighede Albert Wessels se beheer en toegang tot die
voertuig moes beperk deur hom te verbied
om die voertuig te bestuur
en sy toegang tot die voertuigsleutels te ontneem of te beperk.’
The appellant’s
plea to these averments was as follows:
‘
6.3 Behalwe
om te erken dat Verweerder die reg gehad het om Albert die gebruik
van die voertuig te verbied, word iedere en elk van
die bewerings in
paragraaf 8.4 nadruklik ontken en word Eiser tot bewys van sodanige
bewerings geplaas.’
2. In
cross-examination of Rossouw counsel put it to him that
‘
indien dit
nodig is sal hy sê dat sy begrip was nooit . . dat sy seun
toestemming gehad het om te bestuur nie. Hy het geweet
sy seun het
bestuur maar hy sê hy was nie eers daardie dag daar op die
plaas gewees nie. Hy het eers daarna uitgevind van die
voorval. So hy
het dit nooit in sy kop verstaan dat die seun toestemming het nie.’
This suggests that
counsel had not been apprised of any express prohibition by the time
he faced up to Rossouw.
3. The appellant did
not mention to Rossouw during the completion of the claim form that
he had forbidden Albert to drive the vehicle
or that he required
consent which had not been given.
4. The evidence of
the appellant and his wife was that Albert was an honest, reliable
and obedient son. There is no reason to doubt
their veracity in this
regard. It seems highly unlikely that he would deliberately have
flouted express instructions which either
or both parents had only
hours before impressed on him. While one may readily understand the
bravado which led him to perform the
unfortunate stunt under the eyes
of his peers, cynical disregard of respected authority is much less
explicable.
5. The appellant
allowed Bernice Bloem to drive the vehicle from her home to the
appellant’s farm, a distance of about fifteen
kilometers, over
public roads, although it must have been obvious to him that she did
not possess a licence (she was under age).
He meanwhile travelled on
the back of the truck with the boys. In this instance also, so
egregious a flouting of his parents’
authority is inconsistent
with his known character.
6. Albert could
never seriously have believed that his use of the vehicle would not
be revealed to his parents as his teenage sister
was left behind at
home and was well aware of his comings and goings. (As may be seen
from para [6] above she had that same afternoon
threatened to report
Albert for drinking beer.) According to his evidence and that of his
mother he had expressly been ordered to
remain at home in order to
look after his sister in the absence of his parents and to study for
examinations. If that was the case
his dereliction of duty would have
invited prompt exposure.
7. The appellant
gave various reasons for his express prohibition. Neither singly nor
cumulatively are they persuasive given that
he had allowed Albert to
drive in the dark carrying passengers over the same roads on the
preceding evening and that his only means
of ‘control’
had been contact over a mobile radio. According to the uncritical
testimony of his mother Albert had long
been accustomed to driving on
the roads in the area.
8. If there existed
a firm, clear and immutable standing rule governing the use of the
vehicle then an express prohibition served
no purpose, given that
neither parent had reason to think Albert would disobey the rule. The
evidence of his mother was
‘
En
so is dit aan hom seker honderd maal gesê die middag voor ons
gery het, julle bly in die huis. Jy gaan nêrens.’
That too does not
accord with long and materially unbroken observance of a standing
instruction which neither parent believed he would
breach again.
[13] The
probabilities to which I have referred point towards consent. They
strengthen the likelihood that the appellant’s reply
to Rossouw
was correctly recorded. Seen as a whole the evidence provided a
strong case in favour of actual consent. Albert, as a
witness, was
less than convincing. He showed a marked propensity to fabricate
where that suited his defence on the aspect of the
circumstances
which gave rise to the incident and a willingness to cover up
afterwards. All of this led the trial court to be understandably
disinclined to accept his say-so at face value. Mrs Wessels possessed
a very material interest in the outcome of the case and, for
the
reasons already traversed, her account of the instructions given to
her son must be taken with more than a pinch of salt. The
trial judge
did not attach much, if any, weight to the evidence of Philip de Vos
and counsel did not submit that we should do so.
The appellant’s
credibility, as I have pointed out, is open to serious question.
[14] Weighing all
these considerations I am satisfied that the respondent succeeded in
establishing on a balance of probability that
Albert in fact
possessed the appellant’s permission to use the vehicle on the
afternoon of 2 March 2002. Whether that consent
was granted expressly
one does not know; it was certainly the subject of an unspoken
understanding between father and son which was
sufficient to overcome
whatever limitation generally prevailed on such use.
[15]
That of course is not an end of the matter. The respondent had to
prove that the appellant was negligent in allowing Albert to
drive
the vehicle and such negligence was causally connected to the
injuries suffered by Benjamin (see, eg,
De
Beer v Sergeant
1976
(1) SA 246
(T) at 251D-G;
Godfrey
and Others v Campbell
1997
(1) SA 570
(C) at 577E-580I). Counsel for the appellant argued that
both parents knew Albert to be a competent driver and that the
conduct which
gave rise to the claim was not reasonably foreseeable
by them in the circumstances. But the conclusion does not follow from
the premise.
The performing of the stunt did not detract from
Albert’s skill as a driver. Nor did it
per
se
matter
that he was, to the knowledge of the appellant, not in possession of
a licence to drive on public roads. The appellant’s
negligence
lay rather in giving unrestricted access to the vehicle to a boy who
lacked both maturity and judgment in circumstances
where it should
have been obvious that peer pressure might adversely influence his
decisions in driving that vehicle. The conduct
of the appellant was,
it seems to me, no different in principle from the case of a person
who has control of a dangerous object (eg
a firearm, a motor vehicle
or a bottle of poison) and gives such control into the hands of
another whom he ought to know is ill-equipped,
by reason of physical
or mental infirmity, lack of insight or self-control, to exercise
proper or sufficient supervision over that
object to prevent harm
being caused to himself or others. Such abandonment of control is
culpable and the person who allows it is
liable for damage which
results (within the confines of legal remoteness).
[16] In the present
instance the appellant admitted in cross-examination that he was
aware that teenagers are not always obedient,
sometimes behave badly
and take chances. Although he did not believe that his son would
behave irresponsibly, he conceded that he
would not go so far as to
say he thought that would never happen. It is notorious that when
groups of teenage boys (with or without
girls) come together in
circumstances where there is opportunity to show off or assert
themselves, the potential for overstepping
the bounds of reasonable
behaviour is present. Misuse of a motor vehicle by speeding or acting
the daredevil is an easily foreseeable
hazard in such an environment.
A prudent father would have taken the steps reasonably necessary to
prevent his son from falling into
either the temptation or the
danger, either by withholding consent or by securing the keys. The
appellant did neither.
[17] I conclude
therefore that the respondent succeeded in proving that the appellant
negligently made his vehicle available to his
son in circumstances in
which he ought reasonably to have foreseen that the boy might use it
so as to cause harm to himself or others.
The damage which resulted
was causally connected to his negligence. That was sufficient to
impose personal liability on the appellant.
[18] The issue in
the appeal was a matter of the most serious concern for the future
welfare of the victim. The employment of senior
counsel was prudent
in the circumstances.
[19] The appeal is
dismissed with costs including the costs of two counsel.
__________________
J A HEHER
JUDGE OF APPEAL
SCOTT JA )Concur
VAN HEERDEN JA )