King v Dykes
Jurisdiction | South Africa |
Judge | MacDonald ACJ, Lewis AJP and Jarvis AJA |
Judgment Date | 17 May 1971 |
Citation | 1971 (3) SA 540 (RA) |
Hearing Date | 01 April 1971 |
Court | Appellate Division |
MacDonald, A.C.J.:
The appellant, relying on negligence, sued E the respondent for damages which were admittedly suffered when a veld fire spread from the respondent's farm to the appellant's. The action was unsuccessful and the appellant now appeals against its dismissal. I will refer to the appellant as the plaintiff, and to the respondent as the defendant.
The facts are set out in the judgment of the Court a quo. The F case has been reported in 1970 (4) SA 369, and since no misdirection on fact is alleged, it will serve no useful purpose to repeat the facts in extenso.
The fire which eventually caused damage to the plaintiff's farm was first observed on a farm adjacent to the defendant's. G During the night it crossed the river on to the defendant's farm and, after burning out a small patch of veld covered sparsely by grass, died down of its own accord. Early the following morning defendant visited the scene to inspect the fire, and found that apart from smouldering debris it was no longer burning. He believed there was no further danger from it and returned to the headquarters on the farm. While loading H tobacco for conveyance to Salisbury, a thin spiral of smoke was observed in the general direction of the fire. It was important for the defendant to complete the loading of his tobacco, and in result it was only some 20 to 30 minutes after the smoke had been first observed that the defendant, with a gang of labourers, returned to the scene to extinguish the rekindled fire. Due to a strong wind, his efforts to do so were unavailing, and it spread to the plaintiff's land.
MacDonald ACJ
Three main submissions were made on behalf of the plaintiff by Mr. Pringle. First, that the learned trial Judge correctly held that in the circumstances it was the defendant's legal duty to take steps to extinguish the fire. Secondly, that this duty was A breached by the defendant's failure to take reasonable steps to prevent the fire re-igniting. And, thirdly, that it was breached by his failure to attend to the fire immediately he became aware it had re-ignited.
Mr. Squires submitted that the learned trial Judge had erred in finding that a legal duty existed, and, in the alternative, B that the defendant had failed in any event to establish a breach of that duty.
In submitting that no legal duty rested on the defendant to attempt to extinguish the fire for which he was in no way responsible, Mr. Squires placed particular reliance on the dicta in Halliwell v Johannesburg Municipal Council, 1912 AD 659 at p. 689, regarding liability for omission, as well as on C a subsequent municipal case dealing with the same question.
It has long been recognised in Roman-Dutch law that the fundamental principle governing the existence of liability on the grounds of culpa is quite simply the conduct to be expected of the reasonable man - the diligens paterfamilias of Roman D law - in the particular circumstances. This basic concept has been stressed repeatedly and it would serve no useful purpose to refer to the many decided cases; I need do no more than cite with approval the following statement by HOLMES, J.A., in Peri-Urban Areas Health Board v Munarin, 1965 (3) SA 367 (AD) at p. 373E - H:
"Negligence is the breach of a duty of care. In general, the E law allows me to mind my own business. Thus if I happen to see someone else's child about to drown in a pool, ordinarily I do not owe a legal duty to anyone to try to save it. But sometimes the law requires me to be my brother's keeper. This happens, for example, when the circumstances are such that I owe him a duty of care; and I am negligent if I breach it. I owe him such a duty if a diligens paterfamilias, that notional epitome of reasonable prudence, in the position in which I am in, would -
F foresee the possibility of harm occurring to him; and
take steps to guard against its occurrence.
Foreseeability of harm to a person, whether he be a specific individual or one of a category, is usually not a difficult question, but when ought I to guard against it? It depends upon the circumstances in each particular case, and it is neither necessary nor desirable to attempt a formulation which would cover all cases."
G The essential attribute of the law of negligence is that it should be flexible so as to be capable of providing an answer to the infinite variety of situations in which negligence is alleged. Once inflexible rules are adopted as the test of the existence of negligence, either generally or in a special type of case, a quite unwarranted inroad is made into the basic concept underlying the law. Whenever, departing from principle, H an attempt has been made to formulate rules of thumb governing particular types of cases, the result has predictably been disastrous for the law. It is sometimes said, for example, that the law of negligence governing omission differs from the law governing commission. Somewhat cryptically it is stated that "mere omission" affords no basis for liability. Close examination of this proposition reveals, however, that all that is meant is that there can never be negligence in vacuo or, as it is sometimes said, negligence in the air. But this is no less true of commission.
MacDonald ACJ
The difference is not in the law but only in the greater difficulty experienced in applying the law to omission. As CENTLIVRES, J.A., remarked in Joffe & Co. Ltd. v Hoskins and Another, 1941 AD 431 at p. 452:
"There is therefore no difficulty about the law: the difficulty A lies in applying the law to the facts."
In deciding whether a duty of care exists the same universal and fundamental principle is applied in both commission and omission. Where an act of commission is involved the existence of a legal duty of care arising out of...
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...1998 (2) SA 1106 (SCA): considered B International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A): compared King v Dykes 1971 (3) SA 540 (RA): dictum at 542G - H Knop v Johannesburg City Council 1995 (2) SA 1 (A): referred to Kruger v Coetzee 1966 (2) SA 428 (A): dictum at 430E - F dis......
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...Concerning the Construction of the Gabÿikovo-Nagymaros Project (Hungary/Slovakia 37 ILM 162 (1998): dictum at 204 applied King v Dykes 1971 (3) SA 540 (RA): dictum at 545G - H Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental ......
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Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another
...1998 (2) SA 1106 (SCA): considered B International Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A): compared King v Dykes 1971 (3) SA 540 (RA): dictum at 542G - H Knop v Johannesburg City Council 1995 (2) SA 1 (A): referred to Kruger v Coetzee 1966 (2) SA 428 (A): dictum at 430E - F dis......
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Mukheiber v Raath and Another
...Shipping Co (Pty) Ltd v Bentley 1990 (1) SA 680 (A): referred to Jones v Malinowski 473 A 2d 429 (1984): referred to King v Dykes 1971 (3) SA 540 (RA): dictum at 546A-E Kruger v Coetzee 1966 (2) SA 428 (A): referred to Lillicrap, Wassenaar and Partners v Pilkington H Brothers (SA) (Pty) Ltd......
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Gouda Boerdery BK v Transnet
...(Pty) Ltd (in Liquidation) v Van Deventer 1997 (1) SA 710 (A) at 732B - D Herschelle v Mrupe 1954 (3) SA 464 (A) King v Dykes 1971 (3) SA 540 (RA) at 542C - G, 545D - E and 546E - 547B McMurray v H L & H (Pty) Ltd 2000 (4) SA 887 (N) C Minister of Forestry v Quathlamba (Pty) Ltd 1973 (3) SA......
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BP Southern Africa (Pty) Ltd v MEC for Agriculture, Conservation, Environment and Land Affairs
...Concerning the Construction of the Gabÿikovo-Nagymaros Project (Hungary/Slovakia 37 ILM 162 (1998): dictum at 204 applied King v Dykes 1971 (3) SA 540 (RA): dictum at 545G - H Minister of Environmental Affairs and Tourism and Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental ......