Van Drimmelen & Partners v Gowar and Others (519/2002) [2003] ZASCA 121; [2004] 1 All SA 175 (SCA) (24 November 2003)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2003
>>
[2003] ZASCA 121
|

|

Van Drimmelen & Partners v Gowar and Others (519/2002) [2003] ZASCA 121; [2004] 1 All SA 175 (SCA) (24 November 2003)

THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO. 519/2002
In the matter between
DRS
PIERRE VAN DRIMMELEN & PARTNERS Appellant
and
HAYLEY GOWAR First
Respondent
BEVERLEY ANNE AUCAMP
Second Respondent
THE ROAD ACCIDENT FUND
Third Respondent
____________________________________________________________
CORAM: ZULMAN, FARLAM and HEHER JJA
HEARD: 11
NOVEMBER 2003
DELIVERED: 24 NOVEMBER 2003
____________________________________________________________
Vicarious liability – employee intending
to perform an act for his own personal convenience which might
ultimately have a bearing
on his employer’s business does not
per
se
render his employer liable for a delict committed by the
employee before and even after performing the act.
JUDGMENT
ZULMAN
JA
[1]
The
sole issue in this appeal, which is brought with the leave of the
court
a quo,
is whether the appellant is vicariously liable
for the negligence of a Mr Du Randt.
[2] On
29 December 1994 at approximately 18h30 two collisions occurred on
the south north section of the N1 Highway between Johannesburg
and
Pretoria at or near the Buccleuch interchange. In the first
collision a motor vehicle driven by Du Randt in which the first
respondent was a passenger collided with a bridge and/or concrete
barrier. Shortly thereafter another vehicle driven by Mr P D Kumpf
collided with the vehicle driven by Du Randt.
[3] The
first respondent was a minor at the time of the collisions. The
second respondent is the first respondent’s mother. The
second
respondent, in a first action sued the appellant for damages arising
from bodily injuries sustained by the first respondent
in the
collisions, alleging that the collisions were caused by the
negligence of Du Randt. Du Randt was cited as the first defendant
and appeared in person at the trial but is not a party in the appeal.
It was also alleged that the appellant was liable to the first
and
second respondents on the basis that Du Randt was at all material
times an employee of the appellant and acted within the course
and
scope of his employment with the appellant at the relevant time. In
a second action against the third respondent the first and
second
respondents alleged that the second collision was caused by the joint
negligence of Du Randt and Kumpf, alternatively the
sole negligence
of Kumpf. Damages were claimed from the third respondent as a result
of the bodily injuries sustained by the first
respondent in the
second collision. By agreement the two actions were consolidated.
By consent of the parties the court
a quo
was only required to
decide whether the appellant was vicariously liable for the damages
sustained in the aforementioned collisions.
The court
a quo
found that the appellant was indeed so liable.
[4] The
principles applicable to vicarious liability have been debated and
elaborated upon in numerous decisions of this court.
1
Although the principles are by now, in a large measure, plain, the
difficulty often lies in their application to the particular facts
of
a case.
2
The basic formulation of the principle underlying vicarious
responsibility was laid down as long ago as 1914 by Innes CJ in
Mkize
v Martens
3
in these terms:
‘
…
a master is answerable for the torts of his servant committed in the
course of his employment, bearing in mind that an act done
by a
servant solely
for his own interests and purposes
, and outside
his authority, is not in the course of his employment, even though it
may have been done during his employment.’
(The emphasis is mine)
[5] Vicarious
liability is imposed on innocent employers by a rule of law and what
is required to be emphasised is that the rule and
the reason for its
existence must not be confused
4
.
[6] In
order to render a master liable the servant must have committed the
delict ‘
while engaged upon the master’s business’
5
.
Ownership by the master, for example of a vehicle, through which the
harm was done, may provide material for inference, but by itself
is
irrelevant. Accordingly the master will not be liable merely because
he is the owner of the vehicle used by the servant with
his
permission and entrusted by him to the servant.
6
[7] The
answer to the question as to whether an employer is vicariously
liable for the particular acts of an employee which are complained
of
will depend on a careful analysis of the facts of each case and also
considerations of policy.
7
As recently stated by Heher JA in
Bezuidenhout NO v Eskom,
8
‘
the determination of whether an act falls within or
without the scope of employment is a question of fact and often one
of degree’
and
‘in determining the scope of
employment one should not look narrowly at the particular act which
causes the delict, but rather at
the broader scope of which the
particular act may represent only a part.’
.
[8] If
the act relied upon is one which is personal to the employee
dependent upon the exercise of his own discretion and for his
own
convenience, even if the exercise of that personal act was
subsequently to further the business or affairs of his employer, this
would not
per se
mean that the servant was performing the act
in the course and scope of his employment.
9
Indeed, and in any event, the act may, in certain circumstances, be
merely ‘
peripheral’
to the master’s
business.
10
If for example, as was the situation in
Carter’s
case
11
,
a servant hurries from his own personal business in order that he may
return with the least delay to perform his master’s work,
he is
still about his own business alone.
[9] The
facts in this matter which are either common cause, or not in
dispute, or which, even if disputed, may for the purposes of
deciding
the issue be resolved in favour of the respondents,
12
and having due regard to the factual findings of the court
a quo,
are as follows:
9.1 At all material
times the first respondent was employed by the appellant as a
switchboard operator at its laboratory at the Bosman
Building in
Johannesburg. The second respondent was also employed there by the
appellant.
9.2 At the time of the
collisions Du Randt, a Mr Pretorius and a Mr Snyman were employed as
machine technicians by the appellant.
Pretorius was the senior
technician.
9.3 The appellant was
the owner of the motor vehicle then being driven by Du Randt. Du
Randt had the use of the vehicle for both
business and private
purposes. Du Randt was entitled to transport passengers in the
vehicle. During working hours he was only entitled
to transport
business passengers, but after business hours he was entitled to
transport social passengers.
9.4 On the day of the
collisions Du Randt worked from approximately 08h00 in the morning
until 17h00 in the afternoon.
9.5 After returning to
the appellant’s laboratory in Johannesburg from Pietersburg on the
afternoon of the day in question, he
was asked by Pretorius whether
he was prepared to work in Snyman’s place in Johannesburg to enable
Snyman to accompany Pretorius
to Cape Town over the forthcoming New
Year’s weekend. If he agreed to this Du Randt would get a week of
his choice off from work.
Du Randt told Pretorius that he would look
at his
‘skietprogram’
in order to decide and
that he would let Pretorius know of his decision
‘daardie
aand of vroeg die volgende oggend’
.
9.6 The court
a
quo
found that after leaving the appellants laboratory that afternoon Du
Randt was either
‘on call’
or
‘not
on call’
. Whether Du Randt was on call or not he was
nevertheless entitled to go about his own private business in
whatever manner he chose.
9.7 He chose to go to
the first respondent’s sister’s residence to fetch the first
respondent, who was his girlfriend. He intended
thereafter to
proceed with her to his home in Pretoria and having washed and
changed he and the first respondent proposed to go dancing
at a club
in Pretoria (Club Topaz). After reaching his home in Pretoria and
checking his
‘skietprogram’
or
‘skietprogram’
he also intended to
communicate with Snyman and Pretorius to advise them of his decision.
(Pretorius’s home is opposite Du Randt’s
home and Snyman lived
very nearby).
9.8 After fetching the
first respondent at her sister’s home, Du Randt, as a result of a
request conveyed by the second respondent
travelled with the first
respondent to the Marymount Hospital to attend to a problem with a
machine.
9.9 Thereafter Du Randt
proceeded with the first respondent towards his home in Pretoria.
Before reaching his home the collisions
occurred.
9.10 According to the
second respondent’s evidence in chief, upon hearing of the
collisions and the injury to the first respondent
she telephoned
Snyman
‘om vir Mnr Snyman te sê dat Mnr du Randt en
Hayley [first respondent] in ‘n ongeluk is, hulle sou nie by die
vergadering
wees nie.’
[10] In
my view upon a proper analysis of this evidence and the
probabilities, at the time the collisions occurred Du Randt was about
his own private business and personal interests, namely getting to
his home.
13
What he intended to do at his home, is not directly relevant to the
enquiry as to whether at the time that the collisions occurred
he was
acting in the course and scope of his employment which it is
stressed, took place, before he got there. The decision that
he
proposed to make and convey to Pretorius after consulting his
‘skietprogram’
had a bearing on the
appellant’s business. Nevertheless, on a broad and realistic view
of the matter, that was something which
depended on his own personal
convenience. Put differently consulting his
‘skietprogram’
and thereafter conveying his decision was merely
‘peripheral’
to his employer’s business. Upon getting to his home Du Randt
might have decided simply to telephone his co-employees, or to walk
to Pretorius’s home and give the simple answer to the question of
whether or not he would be prepared to work on the weekend in
question. Du Randt’s dominant purpose at the time that the
collisions occurred was to get to his home to wash and change and
consult
his
‘skietprogram’
and thereafter to
convey the first respondent and himself in the appellant’s vehicle
to Club Topaz.
[11] In
all of the circumstances the evidence did not reveal that at the
relevant time Du Randt was acting in the course and scope
of his
employment with the appellant. I would accordingly allow the appeal
with costs.
[12]. The
following order is made:
12.1 The orders made by
the court
a quo
are set aside and replaced by the following:
12.1.1 It is declared
that the first defendant was not acting within the course and scope
of his employment with the second defendant
at the time when the two
collisions referred to in the actions occurred.
12.1.2 The first and
second plaintiffs and the first and third defendants are ordered to
pay the second defendant’s costs jointly
and severally the one
paying the other to be absolved.
12.2 The
first, second and third respondents are ordered to pay the
appellant’s costs of appeal jointly and severally the one paying
the other to be absolved.
---------------------------------------
R H
ZULMAN
JUDGE
OF APPEAL
FARLAM
JA )
HEHER
JA )CONCUR
1
See for example
Mkize v Martens
1914 AD 382
,
Estate Van der Byl v Swanepoel
1927 AD 141
,
Feldman (Pty)
Ltd v Mall
1945 AD 733
,
Minister of Police v Rabie
1986
(1) SA 117
(AD) and more recently
Absa Bank Ltd v Bond Equipment
(Pretoria)(Pty) Ltd
[2000] ZASCA 136
;
2001 (1) SA 372
(SCA),
Ess Kay
Electronics Pte Ltd and Another v First National Bank of Southern
Africa Ltd
2001 (1) SA 1214
(SCA),
Messina Associated
Carriers v Kleinhaus
2001 (3) SA 868
(SCA),
Bezuidenhout NO v
Eskom
2003(3) SA 83 (SCA),
Minister van Veiligheid en
Sekuriteit v Phoebus Apollo Aviation BK
2002 (5) SA 475
(SCA)
and
Costa da Oura Restaurant (Pty) Ltd t/a Umdloti Bush Tavern v
Reddy
2003 (4) SA 34
(SCA).
2
C
f
Mkize v Martens
(
supra
) at 391
and
Ilkiw and Others v Samuels and Others
[1963] 2 All ER
879
(CA) at 889 A-B.
3
Supra at 390.
4
See the remarks of Howie JA in
Ess Kay Electronics Pte Ltd v
First National Bank of Southern Africa Limited
(
supra
) at
1218 F para [7] to 1219 E para [10].
5
Carter & Co (Pty) Ltd v McDonald
1955
(1) SA 202
(AD) at 207B – C.
6
Carter & Co (Pty) Ltd v McDonald
(
supra
) at 207 E –
F.
7
Cf
Messina Associated Carriers v Kleinhaus
(supra) at 875[
para] 15 H – I.
8
Supra
at 94 C para
[
23
]
and 93 C para
[
21
]
.
9
Cf
Union Government (Minister of Justice) v Thorne
1930 AD 47
at 51 and
Mhlongo and Another NO v Minister of Police
1978
(2) SA 551
(AD) at 567 E-H.
10
Messina Associated Carriers v Kleinhaus
(supra) at 875 F-G para
[
14].
11
Carter & Co (Pty) Ltd v McDonald
(
supra
) at 209 F.
12
Cf
the approach to disputes of fact in motion
proceedings for example in
Stellenbosch Farmers’ Winery Ltd
v
Stellenvale Winery (Pty) Ltd
1957 (4) SA 234
at 235 E –
G.
13
C
f
Mkize v Martens
(supra) at 390,
Estate van der Byl v Swanepoel
(supra) at 150,
Minister of
Police v Rabie
(supra) at 134 C – F and
Ess Kay
Electronics Pte Ltd v First National Bank of Southern Africa Ltd
(supra) at 1218 F – H (para [7]).