About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2006
>>
[2006] ZASCA 168
|
|
Crown Chickens (Pty) Ltd t/a Rockland Poultry v Rieck (483/05) [2006] ZASCA 168; 2007 (2) SA 118 (SCA); [2007] 1 BLLR 1 (SCA); (2007) 28 ILJ 307 (SCA) (28 September 2006)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO
: 483/05
In the matter between :
CROWN CHICKENS (PTY) LTD t/a
ROCKLANDS POULTRY
Appellant
and
RENETTE RIECK
Respondent
___________________________________________________________________________
Before: FARLAM, MTHIYANE, NUGENT, MLAMBO JJA & COMBRINCK AJA
Heard: 5 SEPTEMBER 2006
Delivered:
28 SEPTEMBER 2006
Summary: Delictual liability – shooting at speeding vehicle
to prevent escape – whether reasonable – Compensation
for
Occupational Injuries and Diseases Act – employer –
whether includes client of a labour broker.
Neutral citation: This judgment may be referred to as Crown
Chickens (Pty) Ltd v Rieck [2006] SCA 127 (RSA)
____________________________________________________________________________
J U D G M E N T
____________________________________________________________________________
NUGENT JA
NUGENT JA
:
[1] The appellant is a poultry farmer in the Uitenhage
district. Attached to its poultry farm is a retail shop. On the
afternoon of
13 June 2003 a group of armed men entered the shop and
robbed the staff and customers. Before the robbers left the shop they
became
aware that security personnel had been alerted to the robbery.
They seized the cashier, Ms Rieck, and, holding a gun to her head,
forced her to accompany them as they fled. Outside the shop they
called upon the security personnel to ‘back off’
otherwise
they would shoot Rieck. Then they bundled Rieck into the
rear seat of a vehicle belonging to a customer that was parked
outside the
shop and, with some of the robbers on either side of
Rieck in the rear seat, the vehicle sped away, swaying from side to
side as
the wheels spun on the gravel.
[2] The appellant’s loss control officer was in
his office at the time the robbery occurred. He was alerted to the
fact that
a robbery was taking place and rushed to investigate. He
saw three men leave the shop with Rieck and force her into the
vehicle.
He ran to the main access gate. As the vehicle sped past him
he fired two shots from his handgun at the departing vehicle,
intending
to strike one of the wheels and prevent its escape. He also
heard two shots being fired by one of his colleagues. The vehicle
continued
on its way and security personnel clambered into vehicles
and gave chase.
[3] Meanwhile, one of the shots had struck the rear of
the departing vehicle, penetrated the rear seat, and had hit Rieck on
the arm.
She said that when the robbers became aware that she had
been shot they appeared to panic. They sped into a nearby township,
stopped
the vehicle, and fled, leaving her behind. Residents of the
nearby houses came to Rieck’s assistance and soon the police
arrived
and she was taken to hospital.
[4] Rieck sued the appellant in the South-Eastern Cape
High Court for damages arising from her injury. She alleged that the
person
who shot her acted wrongfully and negligently and that the
appellant was vicariously liable for the consequences of his conduct.
The action was tried by Plasket J. With the agreement of the parties
the learned judge tried only the question whether appellant
was
liable for the harm that was caused, leaving the quantification of
damages for later adjudication. He held that the appellant
was liable
to Rieck for the damages that she suffered in consequence of being
shot.
[5] After the conclusion of the trial, but before
judgment was delivered, the appellant applied to amend its plea so as
to introduce
a special defence that the claim against the appellant
was precluded by s 35(1) of the Compensation for Occupational
Injuries
and Diseases Act 130 of 1993. The application to amend the
plea was considered by the court below, but refused, on the grounds
that
the evidence that was sought to be relied upon by the appellant
did not disclose a defence.
[6] This appeal is against both those orders, and it is
before us with the leave of this court.
[7] It is not disputed that the bullet that struck Rieck
was fired by either of two employees in the appellant’s loss
control
division. Although the appellant denied throughout the trial
that the employee concerned was acting within the course and scope of
his employment when he fired the shot, that denial has since been
abandoned. What remained in issue before us – apart from
the
special defence that was sought to be introduced into the plea –
was only whether the employee (and hence the appellant)
incurred
liability for the harm that he caused.
[8] The evidence does not establish which of the two
employees fired the material shot and only one of them gave evidence.
He said
that he fired at the vehicle in order to stop it because he
feared that Rieck might be killed by the robbers if they managed to
escape.
I have assumed, in favour of the appellant, that the other
employee shot at the vehicle for the same reason. All the submissions
that were advanced on behalf of the appellant really came down to
this: It was submitted that it was reasonable to shoot at the vehicle
to avoid the risk that Rieck might be killed and accordingly, so it
was submitted, the conduct of the employee concerned was neither
wrongful nor negligent.
[9] To cause bodily injury to another by a positive act
is generally wrongful and will be visited with delictual liability if
the
actor was negligent. The positive invasion of bodily integrity
falls within what in comparative English law has been described as
‘the range of interests which the law sees fit to protect
against negligent violation’,
1
and which our law classifies as wrongful conduct. Expressed in the
idiom of one variation of the general test for wrongfulness in
our
law, it is conduct in relation to which ‘public policy
considerations demand that…the plaintiff has to be compensated
for the loss caused by [a] negligent act…of the defendant’.
2
[10] But our law also recognises that there are
circumstances in which even positive conduct that causes bodily harm
will not attract
liability. That is so where the harm is caused in
circumstances of necessity, which have been described as occurring
when the conduct
is ‘directed against an innocent person for
the purpose of protecting an interest of the actor or a third party
(including
the innocent person) against a dangerous situation.’
3
It is well-established that whether particular conduct falls within
that category is to be determined objectively.
4
That the actor believed that he was justified in acting as he did is
not sufficient. The question in each case is whether the conduct
that
caused the harm was a reasonable response to the situation that
presented itself.
5
[11] But while it is clear that there is no liability
for harmful conduct that occurs in circumstances of necessity, and
that the
standard for assessing the conduct is objective, it has yet
to be authoritatively determined where necessity fits in the
jurisprudential
scheme of delictual liability. The weight of academic
opinion is that necessity operates to justify conduct that would
otherwise
be wrongful, thus taking it outside the class of conduct
that is susceptible to an action for damages,
6
a view that seems largely to draw upon analogous principles that have
been developed in criminal law. On the other hand it also seems
at
times to have been suggested that it might operate instead to avoid a
finding of negligence.
7
[12] It is not necessary in the present case to question
the correct jurisprudential niche that is occupied by necessity in
the scheme
of delictual liability. Whether it operates to justify
conduct that would otherwise be wrongful, or to avoid a finding of
negligence,
the test for whether it operates at all calls for an
objective evaluation. For the classic test for negligence, as it was
articulated
by Holmes JA in
Kruger v Coetzee
,
8
itself requires not only that the harm was foreseeable, but also that
a reasonable person would have guarded against it occurring.
9
[13] Thus whatever the correct jurisprudential approach,
a person who causes bodily injury by a positive act will avoid
liability
for the harm that he caused, on either approach, only if a
reasonable person in the position in which he found himself would
have
acted in the same way. Considerations that are to be brought to
account in determining whether the conduct was reasonable are
described
by Van der Walt and Midgley as follows:
10
‘A person may inflict harm in a situation of necessity only if
the danger existed, or was imminent…. The means used
and
measures taken to avert the danger of harm must not have been
excessive, having regard to all the circumstances of the case.
The
nature of the threat, the extent of harm, the likelihood of serious
injury to persons, and the value of the interest threatened
must, for
example, be taken into consideration. It must have been the only
reasonably possible means of averting the danger. Similarly,
although
any interest may be protected, the interest infringed or the harm
inflicted should not be greater than the interest protected
or the
harm prevented.’
[14] Essentially, what is called for is a weighing
against one another of the gravity of the risk that was created by
the defendant,
and the utility of his conduct.
11
As it is expressed by Boberg:
12
‘Proportionality, in the sense of a preponderance of avoided
over inflicted harm, is a traditional postulate of necessity…’
In short, the greater the harm that was threatened, and
the fewer options available to prevent it, the greater the risk that
a reasonable
person would be justified in taking, and vice versa.
[15] In the present case there was no outward indication
that Rieck would be killed once the robbers had made their escape.
What presented
itself to the employees who fired the shots was that
Rieck had been taken hostage by the robbers as a means of enabling
them to make
their escape without interference. It is true, as
pointed out by counsel for the appellant, that we live in times in
which robbers
at times kill their victims for no apparent purpose,
and that there was the potential that they would do so in this case,
particularly
if they feared that Rieck might be able to identify
them. But as the court below observed, the wanton killing of a
hostage who has
served her purpose has not become the norm. While the
possibility that that might have occurred is not to be discounted, it
was a
possibility that was founded only upon what sometimes occurs,
and not on any indication that this would be such a case.
[16] What falls to be weighed against that risk is the
more immediate risk of the harm that was brought about by firing
shots at the
departing vehicle. And in my view that immediate risk
was great indeed. Quite apart from the risk that Rieck might be
struck by a
wayward bullet, or that she might be injured if the shots
caused the driver to lose control of the car, there was the even
greater
risk of what might occur if the shots achieved their purpose.
For if the flight of the vehicle had indeed been arrested, without
harm being caused to Rieck in the process, she would have been
exposed to the risk of again being held with a gun to her head, while
the robbers persisted in attempting to escape, and on this occasion
the risk of her being killed or injured would have been a grave
one.
What was to happen once the flight of the vehicle was arrested (which
was the purpose for which the shots were fired) seems
not to have
been considered at all. In my view it was no less than foolhardy to
attempt to prevent the escape of armed robbers who
were holding Rieck
hostage. It exposed her to very real and immediate danger, from any
of a number of causes, which far outweighed
the possible risk to her
safety if the robbers escaped.
[17] I agree with the finding of the court below that a
reasonable person would not have fired at the vehicle. In the
circumstances
the causing of bodily harm to Rieck was wrongful (on
any jurisprudential approach) in accordance with ordinary principles.
The harm
was clearly foreseeable, and ought reasonably to have been
avoided by refraining from shooting at the vehicle, and in the
circumstances
it was negligent to have caused it. It follows that the
court below was correct in finding that the appellant is vicariously
liable
for the damage that was caused.
[18] There remains the question whether the claim
against the appellant is excluded by s 35(1) of the Compensation
for Occupational
Injuries and Diseases Act 130 of 1993, the material
provisions of which are as follows:
‘No action shall lie by an employee … for the recovery
of damages in respect of any occupational injury … resulting
in the disablement … of such employee against such employee’s
employer …’
[19] It is not disputed that Rieck was an ‘employee’,
and that she sustained an ‘occupational injury’, as
those
terms are defined in the Act. What is in issue is only whether the
appellant was her ‘employer’. The material facts
in that
regard are not in dispute. What is in dispute is only what is meant
by that term as it is used in the Act.
[20] The Act has a history that stretches back over more
than a century. The pre-Union statutes were consolidated in the
Workmen’s
Compensation Act 1914, which entitled a workman or
his dependants to receive compensation from his employer, in
accordance with a
tariff, in the event that the workman was
accidentally incapacitated or killed in the course of his work. A
person was a ‘workman
in relation to work if he has entered
into, or works under, a contract of employment…’
(subject to exceptions that are
not material).
13
On the other hand a person ‘having a contract of employment
with a workman to perform work’ was to be ‘regarded
for
purposes of this Act as the employer of that workman’.
14
[21] Those definitions make it clear that a workman
could have only one ‘employer’ at any time, which was the
person with
whom he was in a contractual relationship of employment,
whether he performed his duties for that person or for someone else.
Any
doubt in that regard was removed by the following additional
provision:
‘If the services of a workman be temporarily lent or let on
hire to another person by the person with whom such contract of
employment is made, the latter shall…be deemed to continue to
be the employer of the workman, while he is working for that
other
person.’
15
[22] Those provisions (with the addition of others that
are not material) were retained in the Workmen’s Compensation
Act 1934,
which replaced the 1914 Act. The 1934 Act was, in turn,
replaced by the Workmen’s Compensation Act 1941. The 1941 Act
transferred
the obligation to compensate workmen for workplace
injuries from the employer (who until then had effectively been an
insurer against
workplace injuries) to a compensation fund to which
employers were required to contribute. The material part of the
definition of
a ‘workman’ remained substantially
unchanged.
16
An ‘employer’ was re-defined (in form but not in
substance) to mean ‘a person who employs a workman’
(subject
to certain provisos and extensions that are not material).
In ordinary language that means the person with whom he has a
contract
of employment. Any doubt in that regard is once more removed
by the express provision that if the services of the workman were
temporarily
lent or let on hire to another person then the employer
would ‘be deemed to continue to be the employer of such workman
whilst
[the workman] is working for that other person.’ That
was still the position at the time the 1941 Act was replaced by the
Compensation
for Occupational Injuries and Diseases Act 130 of 1993.
[23] The long legislative history of workmen’s
compensation in this country (at least until 1993) has thus
consistently recognised
that a workman has only one employer at any
time (there are exceptions that are not material), which is the
person with whom the
workman is in a contractual relationship of
employment, and that that person remains his employer even if the
workman performs his
services for another.
[24] The 1993 Act defines an employee to mean (insofar
as it is now material)
‘a person who has entered into or works under a contract of
service … with an employer … and includes…a
person provided by a labour broker against payment to a client for
the rendering of a service or the performance of work, and for
which
service or work such person is paid by the labour broker.’
An ‘employer’, in turn, is defined to mean
‘any person…who employs an employee, and includes
(a) …
(b) if the services of an employee are lent or let or temporarily
made available to some other person by his employer, such employer
for such period as the employee works for that other person;
(c) a labour broker who against payment provides a person to a client
for the rendering of a service or the performance of work,
and for
which service or work such person is paid by the labour broker.’
[25] Rieck was a party to an employment contract with a
labour broker, TMS-Shezi Industrial Services (Pty). TMS-Shezi paid
her salary,
deducted and remitted her income tax, and made the
required contributions in relation to her employment to the
unemployment insurance
fund and the workmen’s compensation
fund. TMS-Shezi, in turn, supplied her services to the appellant in
return for a fee, and
Rieck performed her employment duties for, and
under the direction and control of, the appellant.
[26] The first submission on behalf of the appellant was
that the relationship that existed between Rieck, TMS-Shezi and the
appellant
was one that is contemplated by subsection (b) of the
definition of an ‘employer’ (a relationship that involves
three
people: an employer, and employee, and ‘some other
person’). It was submitted that in such a relationship, the
client
(the appellant) of the labour broker (TMS-Shezi) becomes the
‘employer’ for so long as the employee’s services
are made available to the client by the broker. Support for that
submission was sought in Clive Thompson and Paul Benjamin:
South
African Labour Law,
17
in which the following assertion is made in
relation to the meaning of subsection (b):
‘Where an employee’s services are lent or let or
temporarily made available by the employer to some other person, that
person becomes the employer for the period that the employee works
for them.’
As the court below correctly pointed out, that assertion
as to the meaning of subsection (b) is not correct. The words ‘such
employer’ in subsection (b) refer back to the word ‘employer’
that immediately precedes it, and not to the phrase
‘some other
person.’ Apart from its inconsistency with the plain language
of the subsection, the construction that was
advanced on behalf of
the appellant would reverse the position that had prevailed for over
a century, for which there is no apparent
reason, and would also be
inconsistent with the scheme of the Act as a whole.
[27] It was also submitted, as I understood it, that the
rationale for extending the definition of ‘employer’ to
include
labour brokers was that labour brokers are not employers as
that word is used in the opening phrase of the definition. It
follows,
so went the submission, that where such a relationship
exists, as in the present case, the person referred to as the
employer in
the opening phrase of the definition must be the client
of the labour broker. That is a most dubious construction of the
definition,
which falters in logic in at least two places. But that
apart, the effect of such a construction would be that, for the first
time
in the long history of workmen’s compensation, a concept
of two simultaneous employers was introduced, for no apparent reason,
and then only in relation to labour brokers. It would also have the
effect that a person receives the benefit of being an ‘employer’
(the benefit of an exemption from liability for workplace injuries)
but no obligation to contribute to the fund that compensates
for such
injuries
18
(merely because he secures the services of the employee from a labour
broker). Had it been intended to introduce these startling
consequences into the Act it is most unlikely that they would have
been introduced merely through a process of dubious inferential
reasoning. It is far more likely that the definitions were extended
to include labour brokers not because they would otherwise not
be
‘employers’ but rather to avoid any misunderstanding in
that regard.
[28] In my view the proper meaning of the definitions in
the 1993 Act (leaving aside the various extensions and qualifications
that
are not material to the appeal that is before us) is one that is
consistent with the pattern of the earlier legislation: The Act
contemplates that an employee generally has only one employer at any
time, which is the person with whom he is in a contractual
relationship
of employment, even when he performs his contractual
obligations for some other person. The appellant was admittedly not
such a person
and is not immunised against actions for damages by s
35. In the circumstances the evidence relied upon by the appellant
did not
support the proposed special defence and the application to
introduce it into the plea was correctly refused.
[29] The appeal is dismissed with costs, including the
costs of two counsel.
___________________
R.W.
NUGENT
JUDGE
OF APPEAL
FARLAM
JA )
MTHIYANE
JA ) CONCUR
MLAMBO
JA )
COMBRINCK
JA )
1
M A Millner
Negligence in Modern Law
(1967) 27, referring to
the ‘duty element’ of the English tort of negligence.
2
Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA
2006 (1) SA 461
(SCA) para 13.
3
JC van der Walt and JR Midgley
Principles of Delict
3 ed para
87. See similar formulations in J Neethling, JM Potgieter and PJ
Visser
Law of Delict
(translated and edited by JC Knobel) 4
ed 86-87; NJ van der Merwe and PJJ Olivier
Die Onregmatige Daad
in die Suid-Afrikaanse Reg
6
ed 81; PQR Boberg
The
Law of Delict
Vol I 787-788.
4
See the writers referred to in fn 3 above.
5
Boberg, above, 788.
6
All the writers referred to in fn 3 above subscribe to that view.
7
See the commentary by Boberg, above, at 795ff.
8
1966 (2) SA 428
(A) 430E-H.
9
It seems to be suggested by Neethling
et al
, above, 88 fn
269, that the belief in which the defendant acted might be relevant
to whether he acted negligently, but not relevant
to whether his
conduct was wrongful. In my view that cannot be correct. The law
judges what is reasonable according to a single
standard, that is
applied in the context within which the conduct occurred.
10
Para 87.
11
Cf John G Fleming
The Law of Torts
9 ed 129;
Clerk and
Lindsell on Torts
19 ed esp paras 8-121 and 8-126
12
Above, 788.
13
Section 2(1).
14
Section 2(2).
15
Section 2(2).
16
Section 3(1): ‘…any person who has entered into or
works under a contract of service…’.
17
Vol 2 H1-15 para 12.
18
Contributions to the fund are assessed on the basis of earnings that
are paid by an employer to the employee: See sections 82 and
83.