About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2011
>>
[2011] ZAFSHC 61
|
|
Strauss v Hilfort Plastics (Pty) Ltd and Another (4767/2007) [2011] ZAFSHC 61 (17 March 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4767/2007
In
the matter of:-
O.
STRAUSS
…............................................................................
Plaintiff
and
HILFORT PLASTICS
(PTY) LTD
…....................................
1
st
Defendant
M.A. MOKHETHI
…............................................................
2
nd
Defendant
_____________________________________________________
HEARD
ON:
5 MAY 2009, 6 MAY 2009, 8 MAY 2009, 20 JULY 2009, 15
FEBRUARY 2011, 16 FEBRUARY 2011
_____________________________________________________
JUDGMENT BY:
NXUSANI, AJ
DELIVERED
ON:
17 MARCH 2011
_____________________________________________________
[1] The facts which
brought the Plaintiff to Court occurred on the evening of 27 October
2004. It rained incessantly. The wind whirled
around. The sky
darkened. On the Fochville/Parys road stood a lonely figure, the
Plaintiff, hoping to catch a lift from one of
the many vehicles
passing by a mine in the Carletonville area. The Plaintiff was there
because he knocked off later than he usually
did. He had completed
some private electrical work in the area.
[2] The Plaintiff usually
travelled from his home, in Parys, to the mine, in Carletonville, in
a lift club with others. On the day
in question the members of his
lift club had already departed.
[3] Just after 19h00 a
white unmarked truck pulled up next to the Plaintiff. The driver, the
Second Defendant, opened his window
and asked the Plaintiff where he
was going. The Plaintiff told him that he was on his way to Parys.
The Second Defendant enquired
whether he had any money. The Plaintiff
replied that he had. He was then invited into the truck.
[4] The Second Defendant
demanded R20,00. The Plaintiff paid the amount.
[5] The Second Defendant
drove for a very short distance. He was speeding. The Plaintiff told
him to reduce speed, but the Second
Defendant replied that he had
been a driver of many years and did not need to be taught how to do
his job. The Plaintiff asked
to disembark because he was scared. The
Second Defendant told him that he should wait until he reached the
Parys/Fochville/Potchefstroom/
Vanderbijlpark intersection, some ten
kilometres away, before he could disembark.
[6] The Plaintiff knew
the road fairly well. He had been travelling on this road for a
considerable period of time. The condition
of the road was not very
good. There were many potholes and there was considerable traffic on
the single carriage way. In addition,
it was not a straight road and
the shoulders were not in a good condition.
[7] The Plaintiff
described how he noticed the speedometer. The Second Defendant drove
between 110 and 120 km/h. He considered that
this was too fast for
the condition of the road. He said that the weather was wreaking
havoc at the time. The Plaintiff asked the
Second Defendant to drive
more carefully, on more than one occasion but he was met with the
same initial response.
[8] The vehicle was
travelling down a steep bend (and shortly after the Plaintiff had
asked the Second Defendant to drive carefully),
the Second Defendant
lost control of the vehicle. The truck landed on its left-hand-side.
Just before this, the Second Defendant
sprang from his seat and
jumped onto the sleeping cabin behind the seating compartment.
[9] The Plaintiff’s
arm became lodged between the road surface and the truck.
[10] The Second Defendant
ran away whilst he lay in the darkness of night.
[11] An ambulance was
dispatched and rescued the Plaintiff. He was taken to the Fochville
Hospital where the medical staff considered
amputating his arm.
Naturally, the Plaintiff refused to consent to such a procedure. He
now has no function in the arm.
[12] The Plaintiff issued
a summons where he cited the First Defendant in its capacity as the
employer of the Second Defendant,
who he alleged, was the sole cause
of the collision resulting in bodily injuries and consequent damages.
[13] The Plaintiff also
issued proceedings against the Road Accident Fund. Since the Second
Defendant was the sole cause of the
collision, the Plaintiff only
recovered R25 000,00 in respect of special damages.
[14] The Plaintiff seeks
the balance of his damages from the First and Second Defendants.
[15] The Second Defendant
died before these proceedings were instituted, but unbeknown to the
Plaintiff. The Plaintiff has not been
able to establish whether an
executor was appointed to deal with the Second Defendant’s
estate. The proceedings in regard
to the Second Defendant were simply
adjourned
sine die
.
[16] The First Defendant
defended the action. The First Defendant initially admitted the
allegation, in the Plaintiff’s Particulars
of Claim, that the
Second Defendant, its erstwhile employee, acted within the scope and
duties of his employment. This plea was
filed on 27 November 2007.
[17] In July 2009 the
First Defendant brought an application to amend its plea so as to
plead that the Second Defendant acted in
contravention of an express
instruction not to pick up and transport passengers; that he was
engaged in a frolic of his own for
his private benefit and that he
had acted without the First Defendant’s permission or
knowledge. This was naturally opposed
by the Plaintiff.
[18] The First Defendant
explained in its application that when it purported to admit that the
Second Defendant was its employee
and had acted within the cause
scope of his employment with the First Defendant, it did not intend
to thereby concede vicarious
liability. First Defendant explained in
its application, that, in the telephonic pre-trial conference, the
Plaintiff’s attorney
contended that the question of vicarious
responsibility had been conceded. It then realised the erroneous
admission.
[19] It then consulted
counsel to advise it. In consequence, it prepared a notice of
amendment.
[20] The matter came
before me during May 2009. I was advised by counsel that the First
Defendant did not intend to prosecute the
amendment at the
commencement of the trial but reserved the right to do so later.
[21] The Plaintiff gave
evidence. During cross-examination, counsel for the First Defendant,
purported to attack the Plaintiff’s
evidence arising out of a
report drawn by, one Dr. Oelofse, an orthopaedic surgeon, consulted
by the Plaintiff. Dr Oelofse recorded
that the truck in which the
Plaintiff sat, “fell off the road because of the windy
conditions”.
[22] This aspect was
hotly disputed between the parties. Mr. Van Niekerk, who appeared for
the First Defendant, then sought an adjournment
to consult Dr.
Oelofse and to consider whether it was prudent to call him as a
witness to prove the veracity of the allegation
in this report.
[23] The matter came
before me again in July 2009. On this occasion the First Defendant
indicated to the Court that it wanted to
prosecute the amendment. I
heard argument and, disinclined to shut the doors of the Court, I
granted the First Defendant leave
to amend its plea.
[24] When the matter
resumed on 15 February 2011, the Court was told that the First
Defendant would concede negligence and seek
to lead evidence on the
issue relating to the Second Defendant’s duties as its
employee.
[25] The First Defendant
called the evidence of Mr. James Balkwill, a director and manager of
the First Defendant’s Bloemfontein
operations.
[26] Mr. James Balkwill
(“Balkwill”) testified that the First Defendant had been
established by his family in Cape Town.
In 1998 the First Defendant
established operations in Kimberley. His family asked him to join the
business and to run the Kimberley
factory. He was in charge of the
technical side to the business. The business’s administration
was controlled and managed
out of Cape Town.
[27] Balkwill remained in
Kimberley for some two and a half years before it was decided to move
the operations to Bloemfontein.
The business, manufactures plastic
bottles. The Bloemfontein operations have some 25 to 30 employees. Of
this number there were
two drivers, the Second Defendant and another.
[28]
The First Defendant began transporting its
finished products to its customers because it wanted to retain its
competitive edge.
Its competitors were offering such a service to
their clients and the First Defendant did not want to loose its
market share.
[29] Balkwill was
effectively in charge of the day to day operations of the
Bloemfontein operations. The First Defendant had a factory
manager.
Balkwill described himself as a hands on type person.
[30] The drivers at the
Bloemfontein operations perform more long haul transport duties than
the drivers of the Cape Town operations.
Whereas the Cape Town
factory, required drivers to travel between 30 and 60 kilometers to
customers, the Bloemfontein drivers travelled
as far afield as Port
Elizabeth, East London, Johannesburg, Durban and De Aar.
[31] From time to time
the Second Defendant would travel overnight to a customer where he
delivered empty plastic bottles. He returned
with empty plastic
bottles.
[32] Balkwill testified
that he had a good relationship with the drivers. He stayed in touch
with them through their cellular telephones.
[33] When the drivers
were required to leave in the early hours of the morning he would
make arrangements for their vehicles to
be packed; the necessary
funds to be made available to them, and, the drivers, who had a
duplicate key to the vehicles, would depart
to their respective
destinations.
[34] The operations ran
on a 24-hour basis save that over the weekend the factory shut down.
[35] There were instances
when drivers did not return on time. In these situations he would put
pressure on them to maintain their
schedules so as to minimise the
knock on effect on all the office and factory staff.
[36]
The Second Defendant was employed on 6
th
September 2004 as a temporary worker until 15
December 2004 when he became a permanent employee.
[37] Balkwill testified
that he introduced the Tracker Satellite System to track the
movements of the trucks. He did so because
the company had
experienced theft of diesel and had to dismiss two drivers. The
Second Defendant and the other driver in the First
Defendant’s
employ were new drivers.
[38] The Tracker System
afforded the First Defendant an hourly report which displayed the
speed and distance travelled by the truck.
This was a good tool to
monitor the driver’s hours of work. He noticed that on trips to
Cape Town, where drivers were scheduled
to leave on Sunday, they
would arrive more than 24 hours after their scheduled time. The
company, he believed was being abused.
[39] From time to time he
downloaded the information from the Tracking System and discovered
that it was possible that the drivers
were picking up female
paramours. He felt that this was detrimental to the company. He
“banned” the drivers from picking
up any passenger and
from making any detours of whatever kind.
[40] Asked what the
consequences were for breaching this instruction, Balkwill testified
that at the very least he would have been
entitled to issue, for a
first offence, a final written warning. He testified that in the
beginning he drew reports and questioned
the drivers on why they had
stopped at a particular juncture. He testified that it was difficult
to show if the drivers were collecting
passengers. If he did find out
he would have instituted disciplinary proceedings.
[41] He was away in Cape
Town when the accident occurred on 27 October 2004. He received a
telephone call from the factory manager.
He returned to Bloemfontein
after a day or two. The Second Defendant was on sick leave. A claim
for workmen’s compensation
had been lodged on his behalf.
[42] He confronted the
Second Defendant because he had heard from the factory manager that a
passenger was in the vehicle at the
time of the collision. Balkwill
asked the Second Defendant to give a full explanation.
[43] He remembers
completing an insurance claim. He believed that there was provision
in the insurance claim form for details of
and about any passengers
upon the vehicle. Before completing the form, he asked the Second
Defendant why he had a passenger in
the vehicle. The Second Defendant
told him that “it was a dreadful day”. The wind was
“howling and it was wet”.
He had “noticed a
passenger who was soaked and had no protection”. He “took
pity” on the pedestrian and
gave him a lift. Balkwill said he
was not entirely happy about what the Second Defendant had done but
felt that he had acted as
“a good Samaritan”.
[44]
He decided not to institute any disciplinary proceedings. He did not
realise
the “full
effects of the accident”, because the Second Defendant only
sustained “a few minor cuts”. He only
learnt much later
that the passenger had sustained severe injuries and was seeking to
recover damages from the First Defendant.
[45] Balkwill testified
that he asked the Second Defendant whether he had received payment
from the Plaintiff and was told that
he had not been paid. He
believed that if money had exchanged, the driver would nonetheless
have been disciplined because he considered
this to be an aggravating
feature in the matter.
[46] He has since
resigned from the family business. It has been sold to a larger
group. He believed that a breach of the rule could
be ratified but
that a driver would not know if such a ratification was going to be
granted beforehand. Asked if a driver had telephoned
him to tell him
that a passenger needed a ride Balkwill said he was unlikely to have
granted permission but that if he was present
when such a request was
made he was more likely to acquiesce to such a request. He recalls an
occasion when one of the drivers
wanted to transport his son. On that
occasion the driver was required to sign an indemnity form.
[47] He confirmed that
there was no signage on the vehicle. There was no indication on the
vehicle that the driver was not permitted
to pick up any passengers
or to transport them in the vehicle.
[48] The details of and
about the payment for the Tracker System are generated out of the
Cape Town offices. They ought to have
the documentation for each of
the vehicles. Although he could not recall when the satellite was
installed he was certain that this
occurred before the collision. He
could not explain why the details relating to the Tracker operations
were not discovered.
[49] Santam repudiated
the claim. Balkwill could not explain the reason for the repudiation.
[50] Balkwill testified
under cross-examination, that after the collision and the
repudiation, he continued to employ the Second
Defendant as a driver.
He did not take any disciplinary action. He assumed that the
passenger was not injured. He ratified the
conduct of the Second
Defendant because he acted out of compassion for the Plaintiff.
[51] He accepted that it
might have been sensible to have put up signage on the vehicle and
issued written instructions to the drivers
but that this was not
done.
[52] There were empty
cardboard boxes stacked 1½ meters on the trailer but they were
covered with a white tarpaulin. A person
would not have been able to
establish what was being conveyed.
[53] After the
repudiation of the claim the company required drivers to sign an
indemnity form on each trip accepting liability
for any damage caused
to a passenger. The business was not a substantial one. He did not
believe that it was economically sensible
to have written
instructions in a disciplinary code or reminders in their letters of
appointment.
[54] The Constitutional
Court has, in
K v MINISTER OF SAFETY AND SECURITY
[2005] ZACC 8
;
2005
(6) SA 419
, clarified that the test which our Courts are required to
apply in relation to the determination of vicarious liability, is
that:-
“…
there
are two questions to be asked. The first is whether the wrongful act
was done solely for the purposes of the employee. This
question
requires a subjective consideration of the employee's state of mind
and is a purely factual question. Even if it is answered
in the
affirmative, however, the employer may nevertheless be liable
vicariously if the second question, an objective one, is answered
affirmatively. That question is whether, even though the acts done
have been done solely for the purpose of the employee, there
is
nevertheless a sufficiently close link between the employee's acts
for his own interests and purposes and the business of the
employer.
This question does not raise purely factual questions, but mixed
questions of fact and law. The questions of law it raises
relate to
what is 'sufficiently close' to give rise to vicarious liability. It
is in answering this question that a court should
consider the need
to give effect to the spirit, purport and objects of the Bill of
Rights.”
The Supreme Court of
Appeal had in
BEZUIDENHOUT NO v ESKOM
2003 (3) SA 83
,
concluded, that in determining whether an act fell within the scope
of employment, it was dealing with a question of fact. The
Court was
effectively seeking to strike a balance and had to have regard to all
relevant matter. A relevant consideration would
have been that the
driver was aware of the prohibition and nonetheless invited a
passenger thereunto. An innocent passenger who
could not demonstrate
a reason for believing that he was in a vehicle with the consent of
the owner could consequently not expect
the owner to owe him any
duties. The Supreme Court of Appeal held that it was necessary for
the Court to draw a line around an
employer’s liability in
favour of an employer because it would be unfair to hold the employer
liable to a passenger who had
associated himself perhaps even
innocently with the forbidden conduct and who in effect assumed the
risk of the association.
See
BEZUIDENHOUT
,
supra
, at 94, para [23].
[55] The Constitutional
Court jettisoned the reasoning of the Supreme Court of Appeal in
BEZUIDENHOUT
. It held in
K
’s case [page
432, para 22] that the fact-based nature of the Supreme Court’s
determination of the issue in
BEZUIDENHOUT
amounted to an
attempt “to sterilise the common-law test for vicarious
liability and purge it of any normative or social or
economic
considerations”.
See
K
v MINISTER OF SAFETY AND SECURITY
,
supra
, 432
at para [22]
.
“
[22] Despite
the policy-laden character of vicarious liability, our Courts have
often asserted, though not without exception, that
the common-law
principles of vicarious liability are not to be confused with the
reasons for them,
See
for example 1955 (1) SA 202 (A) at 211H.
and
that their application remains a matter of fact.
If one looks at the
principle of vicarious liability through the prism of s 39(2) of the
Constitution, one realises that characterising
the application of the
common-law principles of vicarious liability as a matter of fact
untrammelled by any considerations of law
or normative principle
cannot be correct. Such an approach appears to be seeking to
sterilise the common-law test for vicarious
liability and purge it of
any normative or social or economic considerations. Given the clear
policy basis of the rule as well
as the fact that it is a rule
developed and applied by the courts themselves, such an approach
cannot be sustained under our new
constitutional order. This is not
to say that there are no circumstances where rules may be applied
without consideration of their
normative content or social impact.
Such circumstances may exist. What is clear, however, is that as a
matter of law and social
regulation, the principles of vicarious
liability are principles which are imbued with social policy and
normative content.
See
the South African authorities above n 23; 21st ed (Sweet &
Maxwell, London, 1996) at 431.
Their
application will always be difficult and will require what may be
troublesome lines to be drawn by courts applying them.”
[56] The Constitutional
Court held that the rules developed by the Supreme Court of Appeal in
BEZUIDENHOUT
, to draw a line around the employer’s
liability, was not sustainable under the new Constitutional Order.
The Constitutional
Court held that the principles relating to
vicarious liability were imbued with social policy and normative
content.
See
K
v MINISTER OF SAFETY AND SECURITY
,
supra
, at
page 432 at para [22] and the authority’s cited at footnote 26.
[57] The Constitutional
Court recognized [see
K v MINISTER OF SAFETY AND SECURITY
supra
at 434 at para [25]], that it was difficult to always
establish whether an employee who had deviated from his chores was
there and
then still acting within the course and scope of his duties
with his employer. The more problematic instances related to those
where the employee perpetrated an intentional wrong or where his
deviation was substantial.
K v MINISTER OF
SAFETY AND SECURITY
supra
434, para[25].
[58] The fact however
that an employee had intentionally deviated did not necessarily
afford an employer a shield of defence.
[59] In
VILJOEN v
SMITH
[1996] ZASCA 105
;
1997 (1) SA 309
(A) an employee trespassed onto his
employer’s neighbour’s farm to relieve himself. There
were clear instructions issued
to the employee that the entrance onto
neighbour’s property was strictly prohibited and punishable by
the issuance of fines.
The employee travelled some 300 meters from
where he had worked. He relieved himself and thereat lit a match, the
head whereof,
broke off and caused a fire resulting in considerable
damage to the neighbour’s property. The Appellate Division, as
it then
was, held that:
“
Die vraag of ‘n werknemer
sy diens inderdaad laat vaar het, ‘n feite vraag was wat in
enige bepaalde geval op die waarskynlikhede
beslis moes word
hoofsaaklik, indien nie uitsluitlik nie, aan die hand van die graad
van afwyking.”
See:
VILJOEN
(supra)
at 316 J – 317 A/B
After evaluating the
employees subjective state of mind the, Appellate Division held that
on an objective evaluation of the employee’s
conduct, his
digression was only a few minutes and he had done nothing additional
on the neighbouring farm that he was not allowed
to do on his
employer’s farm and that the digression was immaterial in the
circumstances. It found that the employee had
been acting within the
course of his employment.
[60] A
similar approach was adopted in
GENERAL TYRE &
RUBBER CO (SA) LTD v KLEYNHANS AND ANOTHER
1963 (1) SA 533
(N). A tractor driver had been contracted to perform work for a
neighbour and the First Defendant in a hay making field for the
former’s mutual benefit. The tractor driver was not licensed to
drive on a road. He had been driven to the hay making field
and was
required to leave the tractor on the field and return to the
homestead in due course. He received a message to return to
the
homestead and decided to drive the tractor on the main road where he
collided with another vehicle.
[61] The Court held,
relying on
FELDMAN (PTY) LTD v MALL
1945 AD 733
, that
the employee was the servant of the First Defendant and had been
acting within the course and scope of his employment when
he deviated
from his instructions.
[62] The Court held that
the means of the tractor driver employee from getting from the hay
making field to the First Defendant’s
homestead was merely the
manner in which the servant was going about his work and pursuing the
ends of his master’s in regard
to the hay making and the other
work to be done at the homestead.
GENERAL TYRE &
RUBBER CO
,
supra
, at 536 A.
[63] It will be
remembered that where a driver was instructed to deliver parcels and
to return and who deviated, went on a drinking
spree and caused a
collision killing the father of two minor children was held to be
acting within the course and scope of his
employment and his employer
was held liable.
[64] It was held in
FELDMAN
’s case that where an employee:-
“
does not
abandon his master’s work entirely but continues partially to
do it and at the same time to devote his attention
to his own
affairs, then the master is legally responsible for harm caused to a
third party which may fairly, in a substantial
degree, be attributed
to an improper execution by the servant of his master’s work
and not entirely to an improper management
by the servant of his own
affairs.”
FELDMAN
,
supra
, at 742.
See also
MINISTER
OF POLICE v RABIE
1986 (1) SA 117
(A).
[65] In
RABIE
a policeman mechanic deviated from his work to wrongfully assault,
arrest and detain the Plaintiff. He did so while pursuing his
own
interests and went on to wrongly charge the Plaintiff with attempted
housebreaking. The Court formulated the subjective and
objective test
which has been approved by the Constitutional Court in
K v
MINISTER OF SAFETY AND SECURITY
.
See:
K v MINISTER
OF SAFETY AND SECURITY
supra
, at 435 para [31] to 436
paras [32] to [33].
[66] In 2007 the
Constitutional Court was asked in
MINISTER OF SAFETY AND
SECURITY v LUITERS
[2006] ZACC 21
;
[2007 (2) SA 106]
to vary the test that it
had formulated in
K
,’s case so as to regulate the
situation of an off-duty policeman placing himself on duty so as to
add an additional component
to render the Minister only liable if
objectively the police officer’s conduct pursued or promoted
the interests of the Minister.
[67] The Constitutional
court decided that such an approach would:-
“
have the
effect of lessening the emphasis on the responsibility of the
Minister to ensure that
police
officers are properly trained and carefully screened to avoid the
risk that they will behave in a completely improper manner.
What it
would mean, is that the more improper the conduct of the police
officer, the less likely the Minister will be held liable.
This
result is not one that accords with a constitution that seeks to
render the exercise of public power accountable.”
MINISTER
OF SAFETY AND SECURITY v
LUITERS
,
supra
, at
116 par. [34].
[68] It is trite that:
“
a servant’s
indulgence in a frolic may in itself constitute a neglect to perform
his master’s work properly and may
be the cause of the damage”.
See
FELDMAN
,
supra
.
[69] The Second Defendant
was, in my respectful opinion, akin to the servant postulated by
Watermeyer CJ in
VELDMAN
’s case. He
simultaneously committed a delict while on his own purpose and
neglected to perform those required of him as an
employee. Moreover,
he did so even after he was repeatedly asked to allow the Plaintiff
to disembark.
[70] Mr. Van Niekerk
asked me to consider as part of the subjective enquiry the fact that
Second Defendant requested money from
the Plaintiff. This, he argued,
was clear evidence that the Second Defendant knew that he was engaged
in a frolic of his own. I
do not agree.
[71] A conspectus of many
of the judgments to which I have referred herein and dealt with in
our Courts show that there was some
additional eyewitness evidence
which our Courts have used to identify the subjective state of mind
of the employee. In this case
the employee has died.
[72] We know that the
Second Defendant appears to have acted with some impunity when he
told the factory manager of the collision
and that he was in the
company of a passenger. No action was taken against him. On the
contrary, the First Defendant conceded that
it ratified his conduct.
[73] But even if I am
inclined to find in favour of the First Defendant on whether the
Second Defendant was on a frolic of his own,
I am not so inclined to
hold in its favour insofar as the second leg of the test is
concerned.
[74] The Second Defendant
was employed to drive. Secondly, he did not in time deviate from the
course required of him by his employer.
Thirdly, he was performing
the very type of work required by him of his employer. He used the
vehicle allocated to him by his employer
to perpetrate the delict.
Fourthly, there was no way for the Plaintiff to know that the vehicle
in question belonged to a corporate
entity, amongst other things,
because there was no signage on the vehicle and importantly no
indication that the driver of the
vehicle was not permitted to load
and transport passengers.
[75] In my view, the fact
that the First Respondent may or may not have issued an instruction
to the Second Defendant not to transport
a passenger, may have
constituted a breach of his employment. The employer however did not
consider visiting the breach with any
consequences whatsoever. Indeed
the employer accepted that [like the 20 year old woman, in K’s
case] the Plaintiff was stranded
in the middle of nowhere during a
torrential storm and was at risk.
K
,
supra
,
at 444 para [54].
[76] I am convinced that
the Second Defendant would not have had the opportunity to commit the
wrongful act but for the fact that
he was issued with the motor
vehicle when he met the Plaintiff under the extraordinary conditions.
The Second Defendant was in
my view still closely connected to the
purposes of his employer, namely to deliver the truck to his
employer’s premises.
[77] In my view, this is
the type of case where this Court ought to hold the First Defendant
vicariously liable for the conduct
of the Second Defendant.
[78] If I am wrong, then
I find that there is another basis upon which to hold the First
Defendant liable. Its conduct in the matter
leaves much to be
desired. Its explanation for having initially admitted that the
Second Defendant was acting within the course
and scope of his
employment and its subsequent change in stance coupled with its
failure to discover information relating to its
satellite tracking
programme, should in my view draw an adverse inference.
[79] In addition to the
aforegoing, the company ratified the conduct of the Second Defendant.
It failed to take any disciplinary
action when, on its own version,
it was obliged to do so. It failed to reprimand or admonish the
Second Defendant. It retained
the Second Defendant’s services
until he died. It made him a permanent employee in December 2004.
Even after Santam repudiated
the claim, Second Defendant continued
with the services of the First Defendant. A reasonable employer
would, in my respectful opinion,
have made all the necessary
enquiries to establish what happened to the passenger before acting
as the First Defendant did.
[80] It knew or ought
reasonably to have been expected to know that the collision caused or
could have caused severe injury to the
passenger. After all the
Second Defendant received medical treatment and was constrained to
make a claim against the Workmen’s
Compensation Commissioner.
There was, in my view, no basis to simply assume that the passenger
had not been injured and that there
would be no repercussions arising
from the conduct of the Second Defendant.
[81] In all of the
circumstances I rule that this is an appropriate case where the court
should visit the employer with liability
for the wrongful act of its
employee.
[82] I was asked to make
an order for costs at this stage. The First Defendant conceded that
the facts and circumstances in this
case were of such a nature that I
should make an order for costs. The Plaintiff has been successful and
is entitled to recover
his costs.
[83] I was initially of
the opinion that First Defendant unnecessarily prolonged the
proceedings in the matter. It should have raised
the question of the
Second Defendant’s lack of authority of
ab initio
but
failed to do so. It delayed the completion of the matter at the first
hearing by cross-examining the Plaintiff to establish
a precarious
basis to avoid liability arising out of the report of Dr. Oelofse. It
failed to prosecute the application for an amendment
at the
commencement of the hearing.
[84] Mr. Pohl, who
appears for the Plaintiff, did not however press the issue. There are
already two costs orders granted against
the First Defendant, one of
them on an attorney and client scale.
[85] Having adopted the
initial stance relating to the scale of costs to be awarded, I have
since reconsidered the matter. I believe
that the Plaintiff should
only be granted costs on a party and party scale applicable in the
High Court.
[86] I therefore make the
following order:
1. The First Defendant is
vicariously liable for the negligence of the Second Defendant, whose
conduct was the sole cause of the
collision in which the Plaintiff
was injured on 27 October 2004.
2. The First Defendant is
liable to pay 100% of the Plaintiff’s proven or agreed damages
arising from the collision on 27
October 2004.
3. The First Defendant is
directed to pay the costs of the action.
4. The action is
adjourned to proceed in due course on the issue of quantum on a date
to be determined by this Court.
_____________
J. NXUSANI, AJ
On
behalf of plaintiff: Adv. L. le R. Pohl
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of first defendant: Adv. J.D. van Niekerk
Instructed
by:
Vermaak
& Dennis Inc.
BLOEMFONTEIN