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[2003] ZASCA 7
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Costa Da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v Reddy (486/01) [2003] ZASCA 7; [2003] 2 All SA 201 (C); 2003 (4) SA 34 (SCA); (2003) 24 ILJ 1337 (SCA) (7 March 2003)
REPUBLIC OF SOUTH AFRICA
IN THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
REPORTABLE
Case Number : 486 / 01
In the matter between
COSTA DA OURA RESTAURANT (PROPRIETARY)
LIMITED t/a UMDLOTI BUSH TAVERN
Appellant
and
ANTHONY REDDY
Respondent
Composition of the Court
: OLIVIER, SCOTT,
ZULMAN, CAMERON and NAVSA JJA
Date of hearing
: 21 FEBRUARY 2003
Date of delivery
: 7 MARCH 2003
SUMMARY
Delict - vicarious liability of employer for assault
perpetrated by employee barman on customer. Usefulness of agreed
statement
of facts after trial for purposes of appeal highlighted.
________________________________________________________________
J U D G M E N T
________________________________________________________________
P J J OLIVIER JA
[1]
During November 1999 the respondent
instituted action in the Durban and Coast Local Division of the High
Court against the Appellant
for payment of the amount of R122 536,00.
The respondent alleged that he, accompanied by his girlfriend, were
patrons at the defendant's
tavern, comprising a restaurant and bar,
during the early evening of 31 October 1997. He further alleged
that he was then unlawfully
assaulted by one Goldie, who was employed
by the appellant as a part time barman. He suffered injuries and
alleged that the appellant,
is vicariously liable for the latter's
conduct.
[2]
A trial on the merits took place before
Pillay J. On 20 July 2001 the learned judge ruled in favour of the
respondent, declaring
that the appellant was liable to the respondent
for payment of such damages as may be proved or agreed upon. It was
also ordered
that the appellant was liable for the respondent's
costs. Pillay J later granted leave to the appellant to appeal to
this Court.
[3]
Pending the appeal, the parties had agreed on
a statement of facts which would replace the record of the trial
proceedings and serve
as the exclusive basis on which the appeal
should be adjudicated. This was a commendable course of action
agreed upon by the legal
representatives of both parties. It made
the task of this Court much easier, and also contributed to the
hearing of this matter
in this Court taking place a mere seven months
after the lodging of the appeal record. It is a course of action
that should be
followed in more cases.
[4]
The agreed facts are the following:
'
THE FACTS
:
12
(a) The Respondent is a 38 year old computer network technician.
(b) The Appellant is a duly registered company with limited
liability, which conducts business as the Umdloti Bush Tavern.
13
The Umdloti Bush Tavern is a family restaurant and bar. It is
situated on the first floor of a building situated in Umdloti.
Entrance to the building is gained on the ground floor, as
demonstrated by photo 1 of the photographs annexed hereto. Steps
lead
from the ground floor entrance into a corridor shown in photo 3.
The first floor entrance to the Umdloti Beach Tavern is shown
in
photographs 5 and 6.
14
The Umdloti Bush Tavern consists of a restaurant area and a bar area
shaped in a horseshoe with seating available around the bar.
15
Seating for about 200 people is available.
16
The Umdloti Bush Tavern employed five managers, twelve kitchen staff
members and about twenty waiters and barmen.
17
It is frequented by people of all races, ages and gender. It stays
open until late at night.
18
Periodically people abuse alcohol in circumstances which could lead
to confrontation. When that happens, the management members
endeavour to identify potential problems in advance and try to
resolve them.
19
The Umdloti Bush Tavern does not employ bouncers. In terms of its
policy, staff members involved in situations of potential conflict
are required to obtain the assistance of management, on the basis
that a manager will attend to the problem.
20
At all times material the Umdloti Bush Tavern had a training
programme in place, in terms of which it informally trained its
employees
inter alia
on how to treat customers.
21
At the time of the incident Goldie had been employed at the Umdloti
Bush Tavern for about a year. He was employed as a casual hourly
paid barman. (No written contract was concluded.)
22
Goldie's duties in terms of his employment, included the following:
(a) he was specifically required to treat customers with courtesy;
(b) he had to serve drinks or food (from behind the bar), as the case
may be, stock the bar (when required) and offer help where
required;
(c) he was instructed not to get involved in any incidents and, in
the event of a potential situation developing, required to report
the
matter to management;
(d) where possible, he had to serve customers without keeping them
waiting;
(e) he had to refrain from engaging in any situation that could
result in an altercation.
23
On the evening of 31
st
October 1997 the Respondent and his
girlfriend went to the Umdloti Bush Tavern and seated themselves at
the horseshoe shaped bar.
24
Goldie was on duty from 18h00 until 03h00 the following morning.
25
Upon the arrival of the Respondent and his girlfriend, Goldie was
stationed behind the bar.
26
The Respondent and his girlfriend waited at the bar for service. It
appeared to them that Goldie was serving everyone else besides
the
Respondent and his girlfriend.
27
After some time the Respondent was served by another barman. While
he was being served, the Respondent mentioned to the other barman
that Goldie could take a few lessons from him on how to serve
customers.
28
This was stated within earshot of Goldie, who, in response, glared at
the Respondent.
29
Thereafter Goldie came over to the Respondent and, from behind the
bar, beckoned him to come closer with his right forefinger.
30
The Respondent responded by saying words to the effect that he "
did
not come for people like that
".
31
This agitated Goldie who, thereafter, occasionally glared at the
Respondent and appeared to be aggressive. He was visibly upset
and,
whilst glaring at the Respondent, nodded his head as if to convey
something.
32
Goldie resented being criticised for lack of service in circumstances
where, in his view, he tried to serve everyone as quickly as
possible. He agreed that he was upset but denied that he intended
to intimidate the Respondent.
33
At some stage Goldie reported the incident to a member of management,
who told him not to get involved with the Respondent and to
allow
another barman to served the Respondent.
34
When the Respondent and his girlfriend decided to leave, the
Respondent generously tipped the other barman.
35
Goldie noticed this.
36
As they were about to leave, Goldie left the bar area and quickly
exited through the main entrance to the premises.
37
The Respondent and his girlfriend met up with Goldie in the corridor
immediately outside of the glass door on the premises, as shown
on
photographs 2, 5, 6, 7 and 8.
38
There Goldie immediately commenced punching the Respondent and, when
he fell to the ground, repeatedly kicked him with booted feet,
in
particular, on his right leg. As a result of the attack the
Respondent sustained injuries including the fractures referred to
supra
.
39
During the attack Goldie did not say anything. Goldie then left the
area.
40
The attack took place in the immediate vicinity of the bar and within
a minute of the Respondent and his girlfriend leaving the bar.
41
Immediately after the incident the manager of the Umdloti Bush Tavern
found Goldie downstairs, summarily dismissed Goldie because
he had
broken the rules that regulated how he should perform his basic
duties. Under cross-examination the manager made the following
concession:
'
I think it must follow, Mr Connor, that that is why you fired
him, because in the course of his work he didn't comply with the
basic
duties that you expected him to comply with, hence you were
well within your rights to terminate his employment. Doesn't that
follow?
It would appear so.
'
42
The diagram and photographs incorporated in the appeal record
correctly reflect the layout of the premises and the corridor
immediately
outside of the door giving entrance to the Umdloti Bush
Tavern.
THE LEGAL ISSUE
:
43
It is agreed, against this background, that the only issue for
determination by the above Honourable Court is whether the Appellant
is vicariously liable for the actions of Goldie.
THE CONTENTIONS OF THE PARTIES
:
44
The Respondent contends that, for the reasons which follow, the
actions of Goldie were sufficiently closely connected with his duties
to render the Appellant liable:
(a) the incident occurred whilst:
(i) Goldie was employed by the Appellant;
(ii) Goldie was on duty;
(ii) Goldie was required to serve the Respondent;
(iv) Goldie was obliged to comply with his duties and the
abovementioned instructions regulating the treatment of customers;
(v) the Respondent and Goldie were upon or within the immediate
vicinity of the premises of the Appellant;
(b) The attack followed within a short space of time after the
incident in the bar;
(c) the attack arose because Goldie felt provoked by the Respondent
whilst he was in the process of exercising his functions;
(d) Goldie failed to comply with the instructions of his employer;
(e) in time, space and nexus, Goldie's actions were sufficiently
closely connected with his duties, to render the Appellant liable;
(f) it would be artificial to break the events into separate
compartments in terms of cause and effect, in circumstances where the
incident commenced at the bar, whilst Goldie was in the process of
serving customers, and culminated shortly thereafter, and as a
direct
result thereof, immediately outside the premises.
45
The Appellant contends that it is not vicariously liable for the
actions of Goldie, on the basis that:
(a) the incident occurred after the Respondent and his girlfriend had
left the restaurant, after consuming two or three drinks;
(b) Goldie's actions arose from an act of personal vengeance;
(c) instead of devoting his time to the Appellant's business, Goldie,
acting in pursuit of his own, abandoned the Appellant's premises
in
order to pursue his act of assault.
(d) the act was a deliberate one put into operation by Goldie after
he had abandoned his duties with the Appellant;
(e) it cannot be said that, at the time of the assault, Goldie was
still exercising any function to which he was appointed, nor can
it
be suggested that Goldie was acting in the furtherance of the
interests of the Appellant.
CONCLUSION
:
46
In the event of the above honourable court finding in favour of the
Appellant, the appeal should be upheld, with costs and the finding
of
the Court
a quo
should be set aside and replaced with a
finding dismissing the Respondent's action, with costs.
47
In the event of the above Honourable Court finding in favour of the
Respondent, the appeal should be dismissed, with costs, and the
matter referred tot he Court
a quo
for the determination of
quantum.'
[5]
As was to be expected, appellant's counsel
described the assaults perpetrated by Goldie on the respondent as
occurring during a frolic
of his own, for which the appellant is not
liable. It is perhaps necessary to repeat what Watermeyer CJ said
in
Feldman (Pty) Ltd v Mall
1945 AD 731
at 743 - 744:
'Another form in which the law is sometimes stated is that a master
is liable for those wrongful acts of a servant which are done
while
he is on his master's business but not for those which are done while
he is on a frolic of his own. This statement of the
principle is
misleading. The question is not whether the servant was on a frolic
of his own at the time when the wrongful act was
done but whether the
act causing damage was an act done by the servant in his capacity as
servant and not as an independent individual.
The phrase "frolic
of his own" comes from the judgment of Baron Parke in
Joel v
Morrison
(6 C. & P., at p. 503), but Baron Parke carefully
qualified the phrase. He said: "If he be going on a frolic of
his own
without being at all on his master's business
the
master will not be liable." This qualification is necessary
because the servant, while on his frolic may at the same time
be
doing his master's work and also because 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.'
This qualification was repeated,
inter alia
, in
Minister of Law and Order v Ngobo
[1992] ZASCA 172
;
1992 (4) SA 822
(A) at 827
B, where Kumleben JA stated:
'The critical consideration is therefore whether the wrongdoer was
engaged in the affairs of business of his employer. (I shall
refer
to it as the 'standard test' or 'general principle?) It has been
consistently recognised and applied, though - since it lacks
exactitude -
with difficulty when the facts are close to the
borderline.
'
(My emphasis)
In the court
a quo
Pillay J referred to a number
of reported cases, in particular to the judgment by Schreiner J of
Moosa v Duma and the Vereeniging Municipality
1944 TPD 30
, and
quoted from p 39 of the report as follows:
'I have had considerable difficulty in deciding whether in the
circumstances of this case the incidents were part of the performance
by the first respondent of his function of explanation, or whether,
though the quarrel arose out of the work he was employed to do,
his
tortious acts were merely personal and capricious, so as not to fix
the municipality with liability. Where a servant having
had a
quarrel with a member of the public as a result of an interview
arising out of the servant's work assaults or defames the other
party
as a distinct act - doing it perhaps, elsewhere than at his place
of employment or after a considerable interval, one would
not be
disposed to hold the employer liable simply because the quarrel arose
out of a matter falling within the servant's functions.
But
where the quarrel arises at once out of the servant's performance of
his work and is followed there and then by the tortious act
it seems
to me that the proper interpretation of the servant's behaviour is
that he is improperly carrying out what he was employed
to do and not
that he was acting out of personal malice or caprice
.'
(My
emphasis)
Pillay J continued:
'
In casu
, it was not a grudge which Goldie harboured against
the Plaintiff independently of his work situation. It was a grudge
which arose
directly out of Goldie's performance of his duties as a
barman. The digression or deviation, if any, from what Goldie was
employed
to do, and what he in fact did was so close in terms of
space and time that it can reasonably be held that he was still
acting within
the course and scope of his employment.'
[6]
I disagree with the conclusion reached by
PillayJ. There are many cases illustrating the application of the
principle of vicarious
liability, here and overseas. The case that
I find particularly instructive is
Deatons (Pty) Ltd v Flew
which was heard by the High Court of Australia. The judgment is
reported in (1949) 79 Commonwealth Law Reports 370. The facts
were
that the plaintiff went into a public bar. He was under the
influence of liquor. While making his way through the customers
at
the bar, he upset a number of glasses of beer. The barmaid then
asked him to leave. He then used bad language and struck her
on the
side of her face. She responded by throwing the glass of beer that
she was holding into his face, but the glass slipped
out of her hand
and struck his face, as a result of which he lost an eye. The High
Court held that on these findings the defendant,
the owner of the
bar, could not be held vicariously liable for the delict committed by
the barmaid. Dixon J encapsulated his conclusion
as follows at 381
- 382 of the report:
'The truth is that it was an act of passion and resentment done
neither in furtherance of the master's interests nor under his
express
or implied authority nor as an incident to or in consequence
of anything the barmaid was employed to do. It was a spontaneous
act
of retributive justice. The occasion for administering it and
the form it took may have arisen from the fact that she was a barmaid
but retribution was not within the course of her employment as a
barmaid.'
[7]
If one applies the basic principles of our
law relating to the vicarious liability of an employer for the wrongs
committed by an
employee (see
Minister van Veiligheid en
Sekuriteit v Phoebus Apollo Aviation Bpk
2002 (5) SA 475
(SCA)
for an overview of the latest decisions), the conclusion so elegantly
worded by Dixon J in
Deaton
's case, is also particularly
applicable to the appeal now under consideration. The assault by
Goldie on the respondent outside
the tavern occurred after he had
abandoned his duties. It was a personal act of aggression done
neither in furtherance of his employer's
interests, nor under his
express or implied authority, nor as an incident to or in consequence
of anything Goldie was employed to
do. The reasons for and the
circumstances leading up to the assault may have arisen from the fact
that Goldie was employed by the
appellant as a barman, but personal
vindictiveness leading to the assaults on patrons does not render the
employer liable.
[8]
In the result the appeal succeeds with costs.
The order of the court
a quo
is set aside and replaced by
the following order:
'The plaintiff's claim is dismissed with costs.'
P J J OLIVIER JA
CONCURRING:
SCOTT JA
ZULMAN JA
CAMERON JA
NAVSA JA