Brief Summary

Delict — Negligence — Motor vehicle accident — Child pedestrian struck by moving vehicle — Appellant driver claimed not to have seen child due to "blind spot" — Trial court found no negligence on part of driver, but appellate court reversed this finding — Legal duty of care owed by drivers to children — Standard of care requires heightened vigilance in the presence of children — Driver's failure to observe surroundings and potential presence of child constituted negligence.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned a delictual claim for motor vehicle accident damages instituted under the statutory regime applicable at the time, with the Guardian National Insurance Company Limited cited as defendant in its capacity as the appointed agent in terms of the Motorvoertuigongelukkewet 84 van 1986 (Motor Vehicle Accidents Act 84 of 1986). The plaintiff was Tobias Christiaan Lochner Du Plessis, acting both as the father and natural guardian of his minor son (Lochner), and in his personal capacity.

The proceedings originated as an action in the Cape Provincial Division, where the plaintiff alleged that a collision in Ceres between the minor child and a truck driven by Mr Hendrik Same was caused by Same’s negligent driving. At the commencement of the trial before Cooper J, the parties agreed to a separation of issues so that liability (negligence) would be determined first, with quantum standing over for later adjudication if necessary.

After hearing evidence on the merits, the trial court held that the plaintiff had not discharged the onus of proving negligence and granted absolution from the instance with costs. The plaintiff appealed (with leave) to the Full Court of the Cape Provincial Division, which by majority (King J, Ackermann J concurring) upheld the appeal and substituted an order finding that Same had been negligent and that his negligence caused the collision. Williamson J dissented.

The insurer then obtained special leave to appeal to the Appellate Division (now the Supreme Court of Appeal). The central subject matter on appeal was whether the driver’s conduct fell short of the standard of care expected of a motorist aware, or who ought to be aware, of the presence of children near the roadway, and whether any such shortfall was causally linked to the accident.

2. Material Facts

The accident occurred on 6 October 1988 at approximately 16h00 in Cilliers Street, Ceres, a tarred residential street running south to north, approximately 8.4 metres wide, with kerbs and sidewalks on both sides and trees with overhanging branches.

A municipal street-cleaning vehicle referred to in evidence as the “suiglorrie” (a suction truck) was moving slowly northward close to the western kerb at a walking pace. It was equipped with a suction pipe extending behind and to the left, operated by a worker (“the pypman”), while another worker (Pedro) moved ahead of the vehicle sweeping leaves and debris from the sidewalk into the roadway.

Two young children, Lochner (6 years old) and his friend Francois (5 years old), came out of a house on the western side of the street after their attention was drawn to the suction truck’s noise. Francois moved behind the suction truck in the roadway on his bicycle, keeping pace by pushing with his feet on the ground. Lochner walked along the western sidewalk near the suction pipe and, for a period, engaged in play by picking up leaves and placing them into the suction pipe.

At a later stage Lochner moved forward along the sidewalk towards the front of the suction truck, where Pedro was sweeping. Lochner bent to pick up a piece of paper, but a gust of wind blew the paper across the street towards the eastern side. Lochner then ran after the paper, leaving the sidewalk and running eastward across the roadway.

At that moment, Same was driving a large truck (“die plaaslorrie”), a Nissan 6-ton diesel truck with a closed body, northwards on the eastern side of the road. Lochner ran into the left side of the moving truck near the left rear wheel, was dragged for a short distance, fell, and the left rear wheel drove over him, causing severe injuries. The truck stopped further ahead on the eastern side.

Certain factual uncertainties existed concerning precise distances and exactly how far ahead of the suction truck Lochner was when he started crossing, including inconsistencies in Pedro’s estimates and pointers at the inspection in loco. However, by the time of the appeal to the Appellate Division, it was accepted that no material factual dispute remained as to the essential manner in which the collision occurred. The record nonetheless reflected that Lochner could have crossed as close as 2 to 4 metres ahead of the suction truck.

Same’s evidence included that he had observed the suction truck and the pipe operator, and had seen Lochner at least once on the western sidewalk with his back turned to the approaching truck. He did not see Francois on the bicycle behind the suction truck. Same remained behind the suction truck while an oncoming car passed, then moved right to overtake at about 35 km/h. While drawing level, he focused attention on potential overhanging branches. After passing, he checked a left-side mirror and then became aware of the collision.

At an inspection in loco it was demonstrated that the truck had a blind spot at the left front, within which a child of Lochner’s height would not be visible at distances varying approximately between 2.9 metres and 3.65 metres, depending on position.

3. Legal Issues

The appeal turned on the determination of negligence in the delictual sense, which required a value judgment involving the application of established legal principles to largely common-cause facts. The central questions were whether, in the circumstances, Same:

Viewed objectively, ought reasonably to have foreseen the risk that Lochner would run across the road in front of or near the front of the suction truck and into the path of his overtaking vehicle; and, if so, whether Same failed to take reasonable steps (such as hooting, reducing speed, or keeping a more effective lookout) to avoid that risk.

A related issue, treated as consequential, was causation, namely whether the accident would probably have been avoided (or the injuries reduced) had such precautions been taken. The majority in the Appellate Division ultimately regarded causation as unnecessary to decide in light of its conclusion on negligence, but it expressed reservations regarding the Full Court’s causal findings.

4. Court’s Reasoning

The Appellate Division approached the matter through the prism of the established principle that a driver who is aware, or should be aware, of the presence of young children in or near a roadway must exercise a heightened degree of caution, because children are known to act unpredictably and may dart into the road. The judgment acknowledged that South African case law contains numerous formulations and applications of this standard, and it referred to several Appellate Division decisions illustrating the principle.

The Court accepted that Same’s lookout while approaching the suction truck from behind was not ideal, but emphasised that the decisive enquiry was not merely whether Same could have been more vigilant in the abstract. The enquiry was framed as what a reasonable driver, keeping a proper lookout in the same situation, would have observed, what risks such a driver would have identified as reasonably foreseeable, and what preventative measures would then have been indicated.

On the Court’s analysis of the scenario as it would have presented to a reasonable driver, the visible “scene” was that two very young boys were engaged by and preoccupied with the suction truck’s operations: one behind the suction truck on a bicycle and the other alongside it on the sidewalk, playing by feeding leaves into the suction pipe. In that setting, the Court considered that there was nothing suggesting a real possibility that either child would suddenly run across the road ahead of the suction truck. Rather, the reasonable inference for a driver would have been that the children’s attention remained captured by the suction truck and that, absent a change, it would be safe to overtake when oncoming traffic allowed.

The Court then dealt with the fact that Lochner ran forward along the sidewalk and disappeared from Same’s immediate line of sight. It held that this forward movement, in itself, did not reasonably suggest an intention to cross the road in front of the suction truck. The Court reasoned that, if a child wished to cross to the opposite sidewalk as a “destination”, it would be more natural and sensible to do so behind the slowly moving suction truck rather than to run alongside it and then cross close to its front. On that footing, the Court characterised the possibility that Lochner would cross near the front of the suction truck as too far-fetched to constitute a reasonably foreseeable risk requiring special precautions.

A further element in the Court’s reasoning was its treatment of the immediate trigger for the crossing: the paper being blown across the street by the wind, which Lochner pursued. The Court regarded this as an unexpected and extraordinary occurrence that a reasonable driver would not have anticipated, and it treated the accident as the product of that unforeseen combination of circumstances rather than of any culpable driving omission.

In rejecting the Full Court majority’s contrary conclusions, the Appellate Division criticised as unsupported by the evidence the suggestion that, had Same kept a proper lookout from behind, he would likely have seen Lochner in front of the suction truck chasing the paper. Given the size and solidity of the suction truck and the way it obscured the view ahead (as illustrated by photographs), the Court considered it implausible that Same could have observed the paper-chasing episode from a position behind the suction truck in time to react before the collision sequence unfolded.

From these considerations the Court concluded that Same’s failure to hoot or reduce speed when overtaking was not negligent, because the foundational requirement—reasonable foreseeability of this particular danger arising in these circumstances—was not satisfied. On that basis, the plaintiff had not proved negligence on a balance of probabilities.

Although the Court stated that this conclusion made it unnecessary to address causation, it noted doubts about whether hooting would have been effective given the noise of the suction truck and Lochner’s intense focus, and it suggested that slowing might not necessarily have prevented injury, and could even have altered the point of impact in an unpredictable manner. These comments were expressed as reservations rather than definitive findings.

It should be noted that a dissenting judgment (Smalberger JA, with Grosskopf JA concurring) accepted the general approach to the standard of care but differed materially on the evaluation of foreseeability and reasonable precautions. The dissent reasoned that once Lochner ran forward and disappeared from view, an uncertainty arose about his location and potential movements, which should have placed a reasonable driver on heightened alert in a residential street environment. On that approach, it was reasonably foreseeable that the child might be somewhere ahead and might attempt to cross the road, and reasonable measures would at least have included braking to reduce speed (and hooting). The dissent further held that these precautions would probably have avoided the collision or reduced the severity of injury, and that causation was established.

5. Outcome and Relief

The Appellate Division upheld the insurer’s appeal with costs. It set aside the Full Court order and replaced it with an order dismissing the plaintiff’s appeal to the Full Court, with costs.

The practical consequence was that the trial court’s order of absolution from the instance with costs remained operative, meaning that the plaintiff’s claim failed at the merits stage for want of proof of negligence, and the separated issue of quantum did not arise for determination on these proceedings.

Cases Cited

Levy NO v Rondalia Assurance Corporation of S A Ltd 1971 (2) SA 598 (A)

Santam Insurance Co Ltd v Nkosi 1978 (2) SA 784 (A)

Jenneker NO v Marine and Trade Insurance Co Ltd 1979 (2) SA 885 (A)

Keown v Ned-Equity Versekeringsmaatskappy Bpk 1984 (1) SA 656 (A)

Da Silva and Another v Coutinho 1971 (3) SA 123 (A)

Neuhaus NO v Bastion Insurance Co Ltd 1968 (1) SA 398 (A)

Minister of Police v Skosana 1977 (1) SA 31 (A)

Legislation Cited

Motorvoertuigongelukkewet 84 van 1986 (Motor Vehicle Accidents Act 84 of 1986)

Rules of Court Cited

No rules of court were cited in the judgment text provided.

Held

The Appellate Division held that, although the driver (Same) may not have maintained an optimal lookout while approaching the suction truck, the plaintiff failed to prove that a reasonable driver in Same’s position would have foreseen as a reasonable possibility that the six-year-old child would run across the road near the front of the suction truck in the manner that occurred.

Because that risk was not reasonably foreseeable on the Court’s assessment of the unusual factual matrix (including the child’s apparent preoccupation with the suction truck and the extraordinary trigger of wind-blown paper), the Court held that Same’s failure to hoot, reduce speed, or take other special precautions when overtaking did not amount to negligence. The Full Court majority’s contrary conclusion was therefore set aside, and the trial court’s absolution from the instance was effectively restored.

LEGAL PRINCIPLES

The judgment applied the principle that motorists who know or ought to know that young children are present near a road are generally required to exercise particular vigilance, given the recognised propensity of children to act impulsively and to enter the roadway without proper regard to traffic.

The judgment also emphasised that this heightened duty does not operate in the abstract. Negligence still depends on whether the specific harmful occurrence was reasonably foreseeable in the circumstances as they would present to a reasonable driver, and whether reasonable preventative steps were indicated in response to that foreseeable risk.

Finally, the judgment reinforced that the standard-of-care enquiry is fact-sensitive and that general propositions drawn from prior child-pedestrian cases should not be applied mechanically where the inherent probabilities of the particular scenario render the relevant risk too remote or far-fetched to demand special precautions.

Guardian National Insurance Company Ltd. v Du Plessis (417/94) [1996] ZASCA 34 (27 March 1996)