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[2002] ZASCA 152
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Bezuidenhout NO v Eskom (379/2001) [2002] ZASCA 152; [2003] 1 All SA 411 (SCA); 2003 (3) SA 83 (SCA); (2003) 24 ILJ 1084 (SCA) (29 November 2002)
REPORTABLE
CASE NO:
379/2001
THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
In the matter
between:
L F BEZUIDENHOUT
NO APPELLANT
and
ESKOM RESPONDENT
CORAM: HOWIE,
STREICHER, MPATI JJA, HEHER and LEWIS AJJA
DATE OF
HEARING: 7 NOVEMBER 2002
DELIVERY DATE: 29
NOVEMBER 2002
Summary: Delict
- vicarious liability - liability of employer for damages suffered by
unauthorised passenger.
_________________________________________________________________
JUDGMENT
_________________________________________________________________
HEHER AJA
HEHER AJA:
[1]
Louis
Louis Roux, aged 19 years, worked as a learner mine official at
Thabazimbi. Wishing to spend the weekend at home in Tshipise,
some
520 kilometres to the north-east, on 11 April 1997 at about 16h00 he
hitched a ride from Thabazimbi in a white bakkie driven
by a person
unknown to him, which was travelling in the direction of Messina. At
about 07h00 the following day Roux was discovered
unconscious in the
veld 15 metres off the road between Tom Burke and Swartwater four
kilometres beyond the first-named hamlet.
His body lay 30 metres
past the shattered remains of a light truck owned by the respondent.
Wedged in the cab of the vehicle
was the driver, Oelofse, a
distribution official employed by the respondent. Both men were
removed to hospital. Roux suffered
severe head injuries.
[2]
In May 1998 Roux's father instituted an action against the
respondent in which he claimed R2 483 307,30 as damages on behalf of
his minor son. He alleged that Roux was a passenger in or on the
vehicle at the time of the incident and relied upon the negligence
of
Oelofse as its cause.
[3]
The case came to trial before Van der Merwe J in the Pretoria High
Court. The respondent conceded the negligence of the driver.
The
first problem for the plaintiff was that Oelofse denied having ever
seen or met Roux, and he, although able to testify, had
suffered a
total loss of recall of the events between leaving Thabazimbi and
recovering consciousness in hospital. The second
difficulty was that
the respondent pleaded that Oelofse was not, at the time of the
incident, driving within the course and scope
of his employment with
it.
[4]
The initial stage of the trial was by agreement in terms of rule
33(4) limited to two issues-
1. Whether at the
time of the collision Oelofse was driving the vehicle within the
scope of his employment with the respondent and
whether the
respondent was vicariously liable to the plaintiff.
2. Whether the
injuries and damages which Roux suffered in the accident were
foreseeable by Oelofse and/or the respondent in so
far as Roux was or
was not a foreseeable plaintiff.
[5]
After hearing evidence from both parties the trial judge found that
Roux was travelling in the respondent's vehicle at Oelofse's
invitation at the relevant time. However, because Oelofse had been
conveying him in the face of express instructions against offering
lifts to members of the public and as the conveyance had nothing to
do with the carrying on of Oelofse's employment the learned
judge
concluded that Oelofse had not been acting within the scope of his
employment at the time of committing the delict. He relied
on the
precedent of
South
African Railways and Harbours v Marais
1950 (4) SA 610
(A), a case in which the judgments of Watermeyer CJ
(Centlivres JA concurring) (at 620 H) and Greenberg JA (at 623 E - G)
bear
out the reliance which he placed on them. He accordingly held
that the respondent was not vicariously liable to the plaintiff.
[6]
The learned judge answered the second question in favour of the
plaintiff in accordance with his finding that Roux had been invited
to travel in the vehicle.
[7]
Subsequently the Court
a
quo
granted the present appellant (Roux's curator
ad
litem
)
leave to appeal to this Court against his finding that the respondent
was not vicariously liable. He also granted the respondent
leave to
cross-appeal against his finding that Roux was a foreseeable
plaintiff.
Vicarious
liability
[8]
The facts relevant to a determination of this issue are the
following-
1. Oelofse was
employed by the respondent to attend to repairs to electrical
equipment. He was supplied with transport which he
was required to
use in the carrying out of his duties, a truck with a canopy under
which the tools of his trade and replacement
parts were kept. He was
expressly
prohibited
from giving lifts to any person without the permission of his
superiors.
2. During the night
of 11 - 12 April Oelofse was driving home in his employer's vehicle
after performing a duty call-out (albeit
after a delay of several
hours caused by a deviation to enable him to enjoy the delights of
the annual Marula Festival at Tom Burke);
he had returned to the
route which his work required; while driving he was in fact on duty
in the sense that he was subject to
call-out at any time during the
weekend and could be contacted in his vehicle for that purpose.
3. Oelofse offered a
lift to Roux which was accepted (This 'fact' is contested and depends
on the finding in the cross-appeal which
is answered below in the
appellant's favour.) This could have occurred on his way to the
festival, at the grounds, or by stopping
on the main road after he
had started home.
4. The truck was
clearly identified as the respondent's property by the name and
markings painted on it. Roux could not have been
under any illusion
that Oelofse was driving his own vehicle.
5. Oelofse
negligently fell asleep and lost control of the vehicle which left
the road and somersaulted.
[9]
Counsel for the appellant accepted that the facts in this appeal
rendered his case analogous to that which confronted this Court
in
SAR&H
v Marais
(
supra
).
If the appeal is to succeed, therefore, we must be satisfied that
the majority judgment was clearly wrong. The judgments delivered
in
SAR&H
v Marais
have been criticized by text-book writers in this country. See W E
Scott
Middellike
Aanspreeklikheid in die Suid-Afrikaanse Reg
170 - 6; W E Cooper
Delictual
Liability in Motor Law
394 - 8. The principles on which the judgments are based, although
in conformity with English and American cases, have not found
favour
either. See particularly Professor F H Newark '
Twine
v Bean's Express Ltd'
(1954) 17
Modern
Law Review
102
; Glanville Williams
Vicarious
Liability: Tort of the Master or the Servant?
(1956) 72
Law
Quarterly Review
542
- 3; P S Atiyah
Vicarious
Liability in the Law of Torts
(1967) 246 - 51, and the South African authors cited earlier. The
submissions put forward by appellant's counsel adopted these
criticisms. It is, in consequence, necessary to record what that
case decided and why.
[10]
Marais was a passenger travelling in the guard's van of a mixed
passenger and goods train. During a stop he was invited by the
engine driver to join him on the footplate, in contravention of
standing orders. There the two of them and the fireman drank brandy
supplied by Marais.
En
route
the engine left the rails due to the negligence of the driver and all
three died of burns sustained in the accident. Marais' wife
applied
for leave to sue the administration
in
forma
pauperis
for
damages
.
She
was successful at first instance but lost in this Court. In giving
the judgment of the majority the Chief Justice referred
to
authorities in American, English and Scots law and to
Middleton
v Automobile Association of South Africa
1932 NPD 451
and
Rossouw
v Central News Agency
1948(2) SA 267 (W). He concluded
'These decisions
seem to me to be in agreement with the result at which I have arrived
and it is satisfactory to find that so many
other Courts, when
dealing with the difficult subject of a master's liability for the
acts of his servant, should have come to
the conclusion that, when a
driver of a vehicle gives a lift to a friend, such act being outside
the scope of his employment, the
master is not responsible if the
friend is thereafter injured through the negligent driving of the
vehicle while being carried
on the vehicle.'
[11]
The judgment of the Court of first instance had turned, as I read
it, on the application of a passage in
Feldman
Ltd v Mall
1945 AD 733
at 736-
'Provided the
servant is doing his master's work or pursuing his master's ends he
is acting within the scope of his employment even
if he disobeys his
master's instructions as to the manner of doing the work or as to the
means by which the end is to be attained.'
That Court held that
the engine driver had not abandoned entirely his master's work to
attend to his own affairs when he invited
Marais on to the footplate.
Of this Watermeyer CJ said (at 619)
'I cannot agree with
that reasoning. The work entrusted to the driver was to drive the
engine and he had to do it in such a manner
as not to injure anyone
by negligence in driving it. It was not the work of the
administration to transport passengers on the
engine and if the
driver chose to do so he was acting outside the scope of his
employment. It cannot be said that transporting
a passenger on the
engine was a negligent manner of driving the engine: it had nothing
to do with engine driving . . . The transportation
of Marais upon
the engine was in my opinion entirely the driver's own act. It was
not done for the purpose of furthering his master's
interests and was
wholly outside the scope of his employment.'
[12]
It is clear from this passage that the Chief Justice was conscious
of the fact that the act which gave rise to the delict,
viz
the driving of the engine, was the essence of the work entrusted to
the driver but considered that a determination of whether he
actually
acted within the scope of his employment in so far as Marais was
concerned at the time of committing the delict required
a broader
perspective which took account of other facts that cast light on the
relationship between the employee and the employer
at the time of the
delict. (I shall return to this aspect.) It was in support of this
approach that he invoked (at 620 B- G)
the authority of the
American
Restatement of the Law of Agency
,
s 242, Lord Greene's reasoning in
Twine
v Bean's Express Ltd
175 LT 131
at 132 and
Docherty
v Glasgow Tramway & Omnibus Co.
32 Sc LR 353
at 354 - 5. The passage in
Twine
has proved particularly contentious:
'He (the driver) was
employed to drive the van. That does not mean . . . that because the
deceased man was in the van it was within
the scope of the driver's
employment to be driving the deceased man. He was in fact doing two
things at once. He was driving
his van from one place to another by
a route which he was properly taking when he ran into the omnibus,
and in driving the van
he was acting within the scope of his
employment. The other thing which he was doing simultaneously was
something totally outside
the scope of his employment─namely
giving a lift to a person who had no right whatsoever to be there.'
[13]
Greenberg JA adopted the view of Watermeyer CJ
'that the
transportation of Marais upon the engine was entirely the driver's
own act and was wholly outside the scope of his employment'
(at 622 H). The
learned judge however justified his own reliance on that view on the
basis that
'it was not
competent to the driver, by an act beyond the scope of his
employment, to enlarge the category of persons to whom the
appellant
would be liable as a result of his negligent driving of the train (cf
Twine
v Bean's Express Ltd
(1946(1), A.E.R. 202, at p. 204 D.)); the deceased was not one of the
persons who fall within the category of those to whom a duty
of care
was owed by the appellant...'
(at
623 B - C)
[14]
The criticisms by the writers to whom I have referred earlier have
their genesis in Newark's article
op
cit
where, among many criticisms of the judgments in
Twine's
case, the author says (at 114) the following concerning the judgment
of Lord Greene MR in the Court of Appeal:
'It may be conceded
at once that the driver was not acting within the scope of his
employment in giving Twine a lift yet it can
be objected that it was
not the giving of the lift but the subsequent dangerous driving which
brought about the death. The argument
that if the servant had not
gone outside the scope of his employment and given the deceased a
lift the latter would not have been
present and that therefore the
lift was the cause of the injury has been criticized as "another
application of the fallacious
'but for' doctrine". (See
21
Columbia
Law Review
79
, where there is an acute criticism of the
Twine
v Bean's
type of case.)
It was, perhaps, to
meet this unexpressed objection that Greene MR suggested the notional
splitting of the servant's activities:
the servant driving his
master's van along the road is
qua
most people acting within the scope of his employment, but
qua
Twine he is on a frolic of his own. Ordinarily one would say that
the proposition "He is a servant acting within the scope
of his
employment yet his act is outside the scope of his employment"
would be appropriately placed among the more inscrutable
assertions
of the Athanasian creed, and this novel approach sends one running to
the reports to see if there are other cases of
servants with a dual
personality who have managed to act within and without the scope of
their employment at one and the same moment.'
Finding none
directly in point, the author continues (at 115
in
fine
)-
'In Salmond on
Torts
,
10
th
ed. 97, it is stated that "if the servant is really engaged on
his master's business, the fact that he is at the same time
engaged
on his own is no defence to the master, even though it was the
competing claims of the servant's business which caused
him to
perform his master's negligently." Even stronger must be the
case, as in
Twine
's
case, where the servant's negligence was quite severable from the
private venture.'
[15]
Also of significance in the article of Newark (because of its
bearing on what I shall say later about the effect of policy) is
the
author's conclusion (at 116):
'However much the
above remarks may have convinced that
Twine'
s
case was wrongly decided there must still remain a feeling that
neither Twine nor his widow should in point of justice have recovered
against the employers. How, then, are we to base this intuitive
feeling on sound legal grounds?'
(The author disposed
of
volenti
non fit iniuria
and settled for a contractual exemption which fell outside the
pleaded case.) In summarising his conclusions the author says:
'In so far as the
plaintiff in
Twine's
case failed because the servant acted outside the scope of his
employment in giving
Twine
a lift, the decision is wrong because
Twine
was not injured by this act but by the subsequent negligent driving
of the servant.'
[16]
Atiyah
op cit
deals with the same subject under the heading '
Unauthorised
Invitation Cases
'.
He
too reasons that in circumstances of such cases
'the negligence is
not committed in the course of an unauthorised act. The tort is the
negligent driving of the vehicle, and it
is this act of negligence
which is the cause of the plaintiff's injuries.
Prima
facie
it seems clear that the servant will have been acting within the
scope of his authority in driving the vehicle, and if he commits
a
tort in the course of that act the master should be liable. So it is
plain that if in this sort of case a pedestrian were injured
in the
accident at the same time as the unlawful passenger, there could be
no defence to an action against the master by the pedestrian.'
The author notes
that the passage from
Twine
v Bean's Express Ltd
in which Lord Greene puts forward his 'dual capacity' rationalisation
has been criticised by a Canadian Court (
Hamilton
v Farmers Ltd
[1953] 3 DLR 382
, SCNS at 389, 390, 398) as 'difficult to understand'
and as doing violence to the basic concepts of vicarious liability.
He also
notes, however, that 'many courts have reached the same
conclusion' (as that in
Twine
)
citing Canadian and Scots authority. Once again the author's
concluding remarks (at 249 - 50) are telling:
'Although there is
therefore reason to be dissatisfied with the reasoning which has so
far led English Courts to deny liability
to the unauthorised
passenger in these cases, it does not follow that they could not be
justified on other grounds. It has been
said that:
"The
widespread refusal to allow recovery in these cases seems to respond
to a fairly prevalent belief that the passenger
has so far identified
himself with the servant's disobedience that it would be unfair to
subject the master to liability."
(Fleming,
Law
of Torts
,
3
rd
ed. p. 351) It is thought that this deep-seated belief can be
legally justified on grounds which are not, perhaps, so dissimilar
from those used in
Twine's
case as to preclude their adoption on the grounds of precedent. This
is that the tort of negligence does not consist solely of
an act of
negligence, but depends on the existence of a duty of care and a
breach of that duty . . . The duty of care which is
owed by the
driver to the passenger is a duty which the servant has imposed on
himself outside the scope of his authority. This
being so, the
tort
of negligence which the driver commits against the passenger does not
arise out of the performance of an authorised act. Although
the
breach of duty does so, the duty itself does not.'
[17]
Cooper
op
cit
takes the criticisms which I have referred to above and applies them
to an analysis of the South African cases, particularly
Middleton
v Automobile Association, Rossouw v Central News Agency
and
SAR&H v Marais
,
(
supra
).
There is no need to repeat the arguments.
[18]
Scott
op
cit
voices criticisms similar to those raised by Cooper. The author
suggests that the meaningful answer to the 'vagueness and
inconsistency'
of the rules relating to the unauthorised conveyance
of passengers is to place the emphasis on whether the presence of the
passenger
in the vehicle is reasonably foreseeable (presumably, by
the employer). It follows, he suggests, that the nature of the
employee's
work (the driving of a vehicle) increases the potential
for committing the delict (negligent driving) and renders the course
of
events, causally, reasonably foreseeable. The difficulty I have
with this line of reasoning is that the delict is that of the
employee not the employer. Whether the foresight of the employer is
relevant must be doubted.
[19]
Although many of the criticisms to which I have referred appear
logical in relation to the application of the standard test for
vicarious liability, that however does not mean that they are right
or that the approach adopted by the majority in
SAR&H
v Marais
is wrong. Drawing the lines is a matter of social policy ('reasons
which commend themselves to the people at large' per Lord Denning
MR
in
Launchbury
v Morgans
[1971] 2 QB 245
(CA) at 253 G - 255 G);
Imperial
Chemical Industries Ltd v Shatwell
[1964] UKHL 2
;
[1965] AC 656
at 685;
Mhlongo
& Another NO v Minister of Police
1978(2) SA 551 (A) at 567 H;
Midway
Two Engineering & Construction Services v Transnet Bpk
1998(3) SA 17 (SCA) at 22 B - F) and
ABSA
Bank Ltd v Bond Equipment (Pretoria) (Pty) Ltd
2001(1) SA 372 (SCA) at 379 F. The standard test
'adequately serves
the interests of society by maintaining a balance between imputing
liability without fault, which runs counter
to general legal
principle, and the need to make amends to an injured person who might
otherwise not be recompensed. While one
cannot gainsay the
difficulty of applying the standard test in certain cases, the
indeterminacy of the elements of the proposed
alternatives suggests
that their adoption would not make the task of determining liability
any easier.'
Kumleben JA in
Minister
of Law and Order v Ngobo
1992(4) SA 822 (A) at 833 H.
[20]
Since the negligent act is the driving of the vehicle and driving is
the very activity for which the employee is employed, how
can the
passenger's claim be successfully resisted by a denial that the
driver drove in the course and scope of the employer's
business? It
seems to me that there are several acceptable reasons why such a
defence is viable.
[21]
First there is what I believe to be the true ratio for the judgment
of Watermeyer CJ
viz
that 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 only represent a
part. This, I think, was also the view of Diplock LJ in
Ilkiw
v Samuels
[1963] 2 All ER 879
(CA) at 889:
'As each of these
nouns implies [those used as analogous to the "course" of
employment such as "scope" or "sphere"]
the
matter must be looked at broadly, not dissecting the servant's task
into its component activities-such as driving, loading,
sheeting and
the like─by asking: What was the job on which he was engaged
for his employer? and answering that question
as a jury would.'
(I am aware that
this dictum was uttered in the interest of a more liberal approach
toward the protection of third parties. Nevertheless
the employer
must necessarily enjoy the benefit in cases where the approach works
to his advantage.)
See also
Lister v Hesley Hall Ltd
[2001] UKHL 22
;
[2001] 2 All ER 769
(HL) at
[42]
- [43] per Lord Clyde and at [60]
per Lord Hobhouse.
In
Twine
v Bean's Express Ltd
,
SAR&H
v Marais
,
and in the case under appeal, the employment as it related to the
operation of the vehicles required (a) that the employee did
not
operate his vehicle while carrying unauthorised passengers and (b)
that he drove his vehicle without negligence. Inasmuch
as none of
the drivers complied with the first requirement and because that
requirement placed a limitation on the scope of employment
and was
not merely an instruction as to the manner of performing the master's
business, the conclusion that the negligent driving
of a vehicle
carrying a passenger exceeded the bounds of the driver's employment
was and is unavoidable. In this regard I respectfully
agree with
Clerk & Lindsell on
Torts
18 ed para 5 - 27 in regard to the analogous facts of
Twine
v Bean's Express
,
supra
,
that
'The better reason
for this decision must be that giving the lift was "an act of a
class which [the driver] was not employed
to perform at all".'
[22]
The dual capacity postulated by Lord Greene is, notwithstanding the
scorn heaped on the idea by fine intellects, a true description
of
the employee's position in the circumstances. Take the following
example raised in the course of argument in this Court: The
driver
of a tanker is prohibited by his conditions of employment from
carrying passengers. He nevertheless stops his vehicle when
he sees
a friend hitchhiking. He says to the friend, 'Despite my employer's
ban on passengers I successfully operate this vehicle
as a taxi when
the opportunity arises. I am on my way to discharge my load at X. I
will take you there for R10.' The friend
accepts the invitation.
The driver's negligence causes an accident in which the friend and a
pedestrian are injured. Can the
passenger possibly be heard to say
that he was injured by the conduct of the employee driving in the
course and scope of the employer's
business? The pedestrian, of
course, has no such problem. Yet there was one act of negligent
driving. That the same conduct may
be lawful towards one person but
unlawful towards another is accepted in our law:
Government
of the Republic of South Africa v Basdeo and Another
1996(1) SA 355 (A) at 367.
[23]
The determination of whether an act falls within or without the
scope of employment is a question of fact and often one of degree.
The court, which is seeking to achieve the balance to which the
remedy is directed, must have regard to all matters relevant to
the
question. These would include the proven fact that the driver, aware
of the prohibition, invited the passenger into the vehicle
and the
passenger, even if unaware of the prohibition, had no reason to
believe that he was in the vehicle with the consent of
the owner or
to expect that the owner owed him any duty in the circumstances. In
so far therefore as a line must be drawn by the
court around the
employer's liability, the circumstances of
Marais'
case and of the present case favour the employer. On this basis also
it is easy to understand why the passenger and the pedestrian
should
be treated differently. In the specific circumstances of
SAR&H
v Marais
(and those of the present case) it would be unfair to hold the
employer liable to a passenger who has associated himself, albeit
innocently, with the forbidden conduct of the employee, and who, in
effect, assumes the risk of the association.
[24]
Moreover, application of the elements of the standard test which are
perhaps more prominently applied today than in 1950, namely
the
subjective state of mind of the employee, and the objective test of a
sufficiently close link between the servant's acts in
his own
interest and for his own purposes and the business of the master,
Minister
of Police v Rabie
1986(1) SA 117 (A) at 134 D - E;
Minister
van Veiligheid en Sekuriteit v Japmoco BK
2002(5) SA 649 (SCA) at 659 B - F, would both point to conduct on the
driver's part which fell beyond the scope of his employment:
the
driver knew perfectly well that he was prohibited from allowing
Marais on to the engine and had no intention of furthering
his
master's affairs by doing so, and the reality was that Marais'
presence added nothing to the interest of the administration
in the
proper operation of its service - the 'close connection' was
demonstrably absent. (The same is true of the roles played
by
Oelofse and Roux in the present case.)
[25]
Some further comments are warranted regarding the policy of
exonerating the employer in the given circumstances or, put
differently,
of not categorizing the conduct of Oelofse as having
been performed within the course and scope of his employment as far
as Roux
was concerned. As Watermeyer CJ pointed out (and as Newark
readily conceded four years later) there was, by 1950, a substantial
body of case law which supported the conclusion reached in
SAR&H
v Marais
.
Since that time the number of such cases has increased in America
(see the cases on s 242 of the Restatement of the Law, Agency
2d,
Appendix Vol 5 p 527;
ibid
Vol 8 p 400; and particularly the cases of
Klatt
v Commonwealth Edison Company
211 NE 2d 720
(1965),
Hottovy
v United States
250 F Supp 315 (1966),
Hall
v Atchison, Topeka & Santa Fe Railway Company
349 F Supp 326 (1972) and
Reisch
v M & D Terminals Inc
180
Ariz
356
(1994).
Sed
contra Meyer v Blackman
59 Cal 2d 668
(1963) which rejects s 242 as contrary to
long-established Californian law. The conclusion in
Twine
v Bean's Express
,
supra
,
was implicitly approved by both Lord Denning MR and Scarman LJ in
Rose
v Plenty
[1976] 1 All ER 97
(at 101 b and 105 a - c respectively).
Interestingly, para 831 of the German Civil Code has been interpreted
so as to exclude
vicarious liability in circumstances analogous to
those presently being considered.
1
See NJW 1965, 391 a decision of the Bundesgerichtshof (Sixth Civil
Division); a translation of the reasons for the decision appears
in
Markesinis,
The
German Law of Torts
,
3 ed 744. While it is the coincidence in policy to which I wish to
draw attention, the reasons are not without interest:
'In the present
case, the first defendant had ordered the second defendant to
transport
goods
and has expressly forbidden him to carry persons other than those
connected with the business in his lorry. Having regard to the
circumstances of the journey it was not reasonable either for O to
assume, without making further enquiries, that the first defendant
would agree to it that O would be carried in his lorry over a
considerable distance at night. O entrusted himself exclusively
to
the second defendant, who was an acquaintance of his. In these
circumstances the employer of the driver, and owner of the lorry,
cannot be held liable for the personal safety of O. If the functions
of the driver have been restricted by his employer, these
restrictions are also effective in relation to such a user.
Consequently a direct connection between the activity entrusted to
the driver and the damage cannot be said to exist, even if the
journey itself was not undertaken outside the scope of employment.
Even if in the absence of exoneration (para 831 I first sentence BGB)
the first defendant would be liable to a person in the street
who had
been injured owing to the negligence of the second defendant,
irrespective of the fact that the latter had deviated from
the
timetable fixed by the office, it does not follow that the first
defendant is similarly liable to an unwanted passenger. His
position
is different; in so far as he is concerned the employee entrusted
with the execution of tasks allotted to him has exceeded
his
function, a fact which is relevant in excluding liability, seeing
that the passenger's damage falls outside the operational
risk
attracting liability under § 831 BGB.'
The authorities
accordingly show the wisdom of the result in
Marais v SAR&H
.
[26]
It follows that the appeal must fail.
The foreseeable
plaintiff
[27]
The cross-appeal attacks the finding of the court
a
quo
that Roux was a passenger in the cab of the vehicle. The evidence
relied on by the respondent was that of one Pretorius, a friend
of
Roux. He testified that at a party during August 1998 he had asked
Roux what had happened at the time of the accident. Roux
told him
that he was tired that evening and had climbed on to a vehicle and
that was the last he could remember. The court
a
quo
did not reject this evidence but it found cogent reasons for
seriously doubting the reliability of Roux in relation to the
admission.
It also adjudged Oelofse's denial that he had offered
Roux a lift to be untrue. There were serious grounds for mistrusting
his
credibility and the court
a
quo
having observed him at length in the witness-box was unimpressed.
Despite counsel's submissions to the contrary I can find no
good
reason to differ from the trial judge's assessment in either respect.
As to the probabilities, the only one which transcended
speculation
was the strong unlikelihood that Roux would, without the driver's
permission, have climbed into the back of an Eskom
truck (under the
canopy among the tools and equipment) and fallen asleep without
knowing where it was bound and when. This probability
decisively
affected the finding of the court
a
quo
and, I think, rightly so. Counsel for the respondent submitted that
the fact that a young man was prepared to hitchhike on a long
journey
over country roads starting late in the afternoon was indicative of a
recklessness which was consistent with the sort of
risk involved in
entering an unknown vehicle to rest. I do not necessarily agree that
preparedness to hazard the first presupposes
a readiness to expose
oneself to the second. Even if it does, it is insufficient to
elevate the possibility to a probability.
I am not persuaded that
the trial judge erred in his finding that Roux was a passenger in the
cab of the vehicle.
[28]
The appeal is dismissed with costs. The cross-appeal suffers the
same fate
except that the
costs are to include those attendant upon the employment of two
counsel.
___________________________
J A HEHER
ACTING JUDGE OF
APPEAL
STREICHER
JA )Concur
MPATI JA )
LEWIS AJA )
HOWIE JA
HOWIE JA:
[29]
I have had the benefit
of reading in draft the judgment of my learned Colleague, Heher AJA.
As far as the appeal is concerned
I agree with his conclusion that
the overwhelming weight of the relevant case law, particularly the
Marais
case, warrants
a finding adverse to the appellant.
[30]
However, the answer to
the appeal lies to my mind in what is stated by PS Atiyah,
Vicarious
Liability in the Law of Torts
(1967) in the
second of the two passages from his work which are quoted in para
[17] of my learned Colleague's judgment. The
vital part of that
passage - and I repeat it here for convenience - reads as follows:
"... the tort of negligence does not consist solely of an act of
negligence, but depends on the existence of a duty of care
and a
breach of that duty ... . The duty of care which is owed by the
driver to the passenger is a duty which the servant has
imposed on
himself outside the scope of his authority. That being so, the
tort
of negligence which the driver commits against the passenger does not
arise out of the performance of an authorised act. Although
the
breach of duty does so, the duty itself does not."
[31]
Cast in the language of
South African law, the delict alleged here consisted of fault coupled
with a legal duty to act without
causing harm to another. Obviously
a delict was committed against Roux by Oelofse and the driving
per
se
was within the scope of Oelofse's
employment. Equally obviously, it was the negligent driving which
caused Roux's injuries.
But those considerations do not by
themselves in the present case establish vicarious liability on the
part of the respondent.
What the appellant also had to show in
order to succeed was that the legal duty which Oelofse's negligent
driving served to breach,
was a duty which arose within the scope of
his employment. This is where the prohibition against passengers
makes its impact.
Their conveyance was forbidden. Accordingly,
although Oelofse owed a legal duty to Roux to drive without harming
him, that
duty only arose because he was accepted as a passenger
outside the scope of Oelofse's employment. For the appellant's
success,
as I have said, that duty had to have arisen within the
scope of Oelofse's employment. A crucial element of the cause of
action
was absent.
[32]
In my view this is the
legal
ratio
of the
reasoning in the majority judgment in
Marais'
case and the answer to critics such as Cooper,
Delictual
Liability in Motor Law
394 - 8 who contend
that where, as in a case like this, it is the negligent driving that
causes the injury, vicarious liability
must follow once that driving
occurs within the scope of the driver's employment.
[33]
It follows that I agree
that the appeal must fail. I also agree with my learned Colleague's
reasons for dismissing the cross-appeal,
and with the orders he
proposes.
_____________________
CT HOWIE
JUDGE OF APPEAL
1
BGB § 831 reads
(1) A person who employs another
for work is obliged to make compensation for the harm which the
other inflicts unlawfully on
a third party in the carrying out of
the work. The duty to compensate does not arise if the employer
observes the care necessary
in the affairs of life in the choice of
the person employed and, insofar as he has to provide apparatus or
implements or to supervise
the carrying out of the work, in such
provision or supervision; or if the harm would still have arisen
despite application of
this care." (Translation from Raymond
Youngs,
Sourcebook on
German Law
, 489)