Durban City Council v SA Board Mills Ltd

• Jurisdiction: South Africa
• Judge: Beyers JA, van Blerk JA, Jennett AJA, van Winsen AJA and Dowling AJA
• Judgment Date: 22 May 1961
• Citation: 1961 (3) SA 397 (A)
• Hearing Date: 09 May 1961
• Court: Appellate Division

D van Blerk, J.A.:

This is an appeal against a decision of the Natal Provincial Division, BROOME, J.P., awarding the respondent £27,500 damages sustained as a result of the appellant's negligence. The quantum of damages having been agreed to, only appellant's liability for negligence is disputed.

E The appellant is the Corporation of Durban. The respondent is a company, which carries on business as manufacturer of fibre boards. It operates a factory for the manufacture of such boards out of waste paper and bagasse on land which it owns near the Umgeni River within the municipal area of Durban. Adjoining this factory site there is a piece F of land owned by the appellant 30,000 square feet in extent, which respondent occupied by virtue of a lease entered into between the parties in 1952. On this latter piece of ground and land adjoining which for the sake of convenience, will be referred to as 'the storage site', respondent stacked in the open some of its material consisting of bales of salvaged waste paper and bagasse. The land adjoining the storage site G is also owned by the appellant and is used by it as a rubbish dump site. The land comprising these sites is situate in a valley between two hills approximately 300 and 400 feet high, as will appear from the plan exh. C. The factory, including the storage site, is roughly bounded on the north-west by Seacow Lake Road, on the north-east by a railway line H and on the south-east by the Umgeni River. All the land to the south-west is owned by the appellant. The storage site extends from the factory buildings towards the river. The rubbish dump site is on the land south-west of the storage site. According to the surveyor's plan, exh. H, the borders of the storage site and the rubbish dump site are 100 feet apart. It is common cause that on the 7th April, 1959, soon after dark, all the stacks on the storage site were on fire. The fire spread into the factory itself. It is the

van Blerk JA

damage suffered as a result of this fire which the respondent claims from the appellant. Respondent's case is that shortly before 7.40 p.m. that evening quantities of rubbish were burning at the rubbish dump site, and from there burning rubbish or flames were carried by high wind A onto the storage site setting the stacks of paper and bagasse on fire. From the burning stacks again the fire spread to the factory. The spreading of the fire from the rubbish dump is attributed to the negligence of appellant. In its declaration the respondent alleges that the appellant or its servants were negligent in one or more or all of the following respects:

'(a)

B They kept the ground at the rubbish dump in such a condition as to constitute a danger and a fire hazard to the plaintiff which was an adjoining occupier and owner.

(Particulars)

(i)

The aforesaid rubbish was liable to catch fire and to burn and this fact was known or ought reasonably to have been known to the defendant or its servants;

(ii)

C The aforesaid rubbish was highly inflammable and could easily be set on fire;

(iii)

Should the aforesaid rubbish catch fire or be set on fire and burn the said burning rubbish could easily be blown out by wind of even moderate strength;

(iv)

Burning of the rubbish was a danger to the nearby stacks of waste paper and bagasse in that without proper care or control burning rubbish or flames therefrom could and could be D reasonably expected to spread to the stacks;

(v)

The presence of burning or smouldering rubbish or rubbish dumps close to stacks of waste paper and bagasse was or would be dangerous in that if not properly controlled fire could and could reasonably be expected to spread at any time to the plaintiff's storage and factory sites.

(b)

Knowing of the facts alleged in (a) hereof they failed to prohibit the burning of the said rubbish and/or failed to take any or any E adequate steps to ensure that the said rubbish was not burned.

(c)

They caused or permitted the said rubbish to be set on fire or to be on fire and to burn when it was dangerous to do so.

(d)

They caused or permitted the said rubbish when on fire to continue to burn and took no adequate steps to extinguish the said fire.

(e)

They took no or no adequate steps or precautions against

(i)

a fire occurring on or spreading from the rubbish dump site;

(ii)

F a fire going or spreading beyond the boundary of the rubbish dump site;

(iii)

the danger of wind arising or blowing at a time when there was a fire or fires on the said rubbish dump site.

(f)

They failed to provide any or any adequate control or care of fire at the rubbish dump site.

(g)

Although they knew or ought reasonably to have known that a fire or fires was or were burning on the said rubbish dump site on the 7th G April, 1959, and that the wind then blowing would or would probably cause the fire to spread to the storage site, they took no or no adequate steps or precautions to put the fire or fires out or otherwise to control such fire or fires.

(h)

They failed to provide any or any adequate number of persons or equipment to control the fire or fires at the rubbish dump site.'

H Appellant's main plea to the declaration is a denial that the fire originated on, and spread from, the rubbish dump to the stacks on the storage sites. In...