Bezuidenhout NO v Eskom

• Jurisdiction: South Africa
• Judge: Howie JA, Streicher JA, Mpati JA, Heher AJA and Lewis AJA
• Judgment Date: 29 November 2002
• Citation: 2003 (3) SA 83 (SCA)
• Docket Number: 379/2001
• Hearing Date: 07 November 2002
• Counsel: J H Ströh SC (with him J S M Güdenpfennig) for the appellant. M Patel for the respondent.
• Court: Supreme Court of Appeal

Heher AJA: C

[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 16:00 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 07:00 the following day Roux was D discovered unconscious in the veld 15 metres off the road between Tom Burke and Swartwater four kilometres beyond the first-named hamlet. He 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. E

[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. F

[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 G 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. H

[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. I

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 J

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the relevant time. However, because Oelofse had been conveying him in the face of express instructions against A 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 B 1950 (4) SA 610 (A), a case in which the judgments of Watermeyer CJ (Centlivres JA concurring) (at 620H) and Greenberg JA (at 623E - 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 C 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 D liable. He also granted the respondent leave to cross-appeal against his finding that Roux was a foreseeable plaintiff.

Vicarious liability E

[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 F 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 G 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 H 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. I

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 S A J

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R & H v Marais (supra). If the appeal is to succeed, therefore, we must be satisfied that the majority judgment A was clearly wrong. The judgments delivered in SAR & H v Marais have been criticised by textbook writers in this country. See W E Scott Middellike Aanspreeklikheid in die Suid-Afrikaanse Reg at 170 - 6; W E Cooper Delictual Liability in Motor Law at 394 - 8. The principles on which the judgments are based, although in conformity with English and American cases, have not found B 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 at 542 - 3; P S Atiyah Vicarious Liability in the Law of Torts (1967) at 246 - 51, and the South African authors cited earlier. The submissions C 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 D 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 E 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 F 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.' G

[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 H 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

'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 J

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with engine driving. . . . The transportation of Marais upon the engine was in my opinion entirely the driver's own act. It was not A 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 B driver but considered that a determination of whether he actually acted within the scope of his employment...