Minister of Safety and Security and Another v Rudman and Another
Jurisdiction | South Africa |
Judge | Mpati DP, Farlam JA, Van Heerden AJA |
Judgment Date | 18 August 2004 |
Citation | 2005 (2) SA 16 (SCA) |
Docket Number | 218/02 |
Hearing Date | 23 March 2004 |
Counsel | P Kemp SC (with S Joubert) for the appellant. W P de Waal (with J R Minnaar) for the respondent. |
Court | Supreme Court of Appeal |
Van Heerden AJA:
Introduction D
[1] On 6 October 1997, Roald John Rudman, then a toddler of two years and eight months ('Roald'), fell into the swimming pool at the Pretoria home of his father, the first respondent, Pieter Nicolaas Rudman. The South African Police Service ('SAPS') were summoned to the scene of the accident and the second appellant, Johan Jacobus Becker ('Becker'), then a sergeant with the SAPS, acting within the E course and scope of his employment with the first appellant, the Minister of Safety and Security ('the Minister'), attended to the scene together with his colleague, Sergeant Daniel Pienaar. Roald survived this incident (hereinafter referred to as 'the near-drowning incident'), but sustained severe hypoxic brain damage as a result of which he is now a spastic tetraplegic with an epileptic tendency. F
[2] This appeal primarily concerns the issues of whether Becker's actions and/or omissions at the scene of the near-drowning incident, in his capacity as a servant of the Minister, were wrongful and negligent. There are also further issues of whether Becker's negligence, if it is held to exist, is causally connected G with the brain damage suffered by Roald and, if so, the extent to which the Minister is vicariously liable for such damage.
[3] In September 1998, Mr Rudman instituted an action for delictual damages against the Minister and Becker in the Pretoria High Court, acting in his personal capacity as well as in his capacity as H Roald's father and natural guardian. In his particulars of claim he alleged that Becker, in his capacity as an official of the SAPS, who attended to the scene where Roald had fallen into the swimming pool, owed Roald 'a duty of care' and that Becker
'. . . breached this duty of care and acted in a negligent manner in one or more or all of the following respects: I
he prevented, alternatively prohibited, further alternatively, hindered, the continued administration of cardio-pulmonary resuscitation [CPR] which had been commenced and continued throughout prior to his arrival at the scene; J
Van Heerden AJA
he failed to continue with, alternatively assist with, the administration of cardio-pulmonary resuscitation upon his A arrival at the scene and thereafter in circumstances where he could and should have done so;
he declared baby Rudman [Roald] dead, without examining baby Rudman, alternatively, whilst he examined baby Rudman insufficiently, further alternatively, whilst he examined baby Rudman inappropriately, whereas in truth and fact, baby Rudman was B still alive;
he allowed baby Rudman to remain without essential cardio-pulmonary resuscitation for approximately ten minutes in circumstances where he could and should not have done so.' C
[4] The Minister and Becker denied liability. Furthermore, they issued a third party notice, joining the second respondent, Petrus Botha Schabort ('Bo'), Mr Rudman's stepson and the son of Roald's mother, Mrs Elna Rudman, born from a previous marriage, as a third party. They claimed a contribution from him in the event of the trial Court holding that Becker acted negligently and that such negligence D contributed to the damages suffered by Mr Rudman and Roald. This joinder was based on the allegation that Bo acted negligently in that, although he was aware of the fact that his toddler step-brother, Roald, was on the premises and that there was a danger of his falling into the swimming pool, he (Bo) removed the safety net from the pool, opened the E door and security gate leading to the pool, failed to inform the domestic worker looking after Roald of the fact that the pool was unprotected and unattended, and then left the premises, only instructing his seven-year-old sister, Chantal, to look after Roald.
[5] The trial was run during May 2001. At the pre-trial conference held in late April 2001, the parties agreed that F
'subject to the honourable Court's approval . . . a separation of issues is indicated and [that] at commencement of the trial [they would] apply for an order that the issue of liability be decided first and separately from the issue of quantum. The issue of liability will include the issue of the negligence of the employee of the first defendant as well as the third party, as well as the G defendants' special plea and the question of causality.'
At the commencement of the trial, the trial Judge, Motata J, made an order, in terms of Rule 33(4), to the effect that 'the issue of liability will be decided first, separate from the issue of quantum'. H
[6] The trial on the separated issue was concluded during May 2001 and judgment was delivered on 7 June 2002. The trial Court declared, inter alia, that the Minister and Becker were jointly and severally liable to Mr Rudman for the full extent of such damages as Mr Rudman might prove in his personal and/or his representative capacity. The extent of the third party's contribution I to the damages to be paid by the Minister and Becker was declared to be 20.
[7] The appellants now appeal against these orders of the trial Court, leave to appeal having been granted by this Court, on petition to it, during April 2003. Although leave to appeal was also granted in respect J
Van Heerden AJA
of the trial Judge's dismissal of the appellants' special plea (non-compliance with s 57(2) of the South African Police Service A Act 68 of 1995), the appellants are not proceeding with their grounds of appeal relating to such special plea. They are also not proceeding with their additional grounds of appeal, being those relating to Mr Rudman's alleged vicarious liability based on the alleged negligence of Mrs Siena Baloi, the domestic worker who was looking after Roald at B the time of the near-drowning incident.
Factual evidence
[8] As indicated above, Roald fell into the swimming pool at the Rudman residence in Pretoria whilst he was in the care of Mrs Baloi on C 6 October 1997. Roald's half-brother, Bo, had on that day arranged with his friend, Kobus Pienaar ('Kobus'), the manager of the video shop just up the street from the Rudman residence, at which Bo worked part-time, to relieve Kobus for a short while so that Kobus could visit the Rudman residence for a swim. Before leaving for the video shop, Bo took the safety net off the swimming pool and opened D both the sliding door of the sitting room leading out to the swimming pool area, as well as the expanding security gate on the sliding door. He did not tell Mrs Baloi that he had done so, nor did he tell her that he would be leaving the premises, but simply asked Chantal to 'watch' Roald. E
[9] Mr Rudman testified that, on the afternoon in question, he came home to collect a suit that needed adjustment. On his arrival, he met his step-daughter, Chantal, at the front gate of the property, wearing a swimming costume. Chantal told him that 'they' were waiting to swim with Bo. Having collected his suit from his bedroom, Mr Rudman F departed, leaving Roald in the kitchen where Mrs Baloi was preparing the evening meal. He did not see Bo, nor did he know that the safety net had been removed from the swimming pool and that the sliding door and security gate leading to the swimming pool area were open. He left the premises in his car at 16:02 and went to the Menlyn Shopping Centre. A while later, he received a call on his cellular telephone G from his wife, telling him that Roald had fallen into the swimming pool and was dead. According to the telephone records handed in as an exhibit by the respondents' counsel during the trial, this call was made from Mrs Rudman's cellular telephone at 16:36. Mr Rudman asked his wife if somebody was 'doing CPR' and she replied in the affirmative. He sped home, arriving at approximately 16:45, by which H time the qualified paramedics were already on the scene, working to revive Roald who was lying on the carpet in the dining room. His wife and one of her colleagues, Mr Cornel Windell, were standing outside the house, together with two policemen, while Bo and Kobus were in the dining room and Mrs Baloi was in, or in the vicinity of, the kitchen. I Mr Rudman testified that neither Roald nor Chantal was allowed to be in the swimming pool area without supervision, even when the safety net was fixed on the pool, and that every member of the Rudman household, including Bo and Mrs Baloi, knew that the security gate and door leading J
Van Heerden AJA
to the swimming pool area had to be closed and the swimming pool safety net fixed in place at all times when the pool was not in A use.
[10] Mr Rudman further testified that, very early on the morning after the near-drowning incident, Becker came to the Unitas Hospital, where Roald had been admitted the previous day, to enquire about the little boy's condition. He conceded that Becker had no duty to be there and that he was not 'completely insensitive' to what had B happened.
[11] Mrs Baloi testified that she had seen the safety net in place on the swimming pool earlier on the day in question. At the time that Mr Rudman left the Rudman residence, she was in the kitchen, cooking. Immediately thereafter, she had, at Roald's request, switched on the television in the sitting room so that he could watch KTV. She C had not checked whether or not the sliding door and security gate were open, because she knew that they were always kept closed. She had then telephoned her husband and was again cooking in the kitchen after this telephone call when Kobus arrived to have a swim. (Chantal had told her D earlier that Kobus was 'coming to swim with them'.) She had opened the main gate for Kobus by activating the switch next to the front door. Shortly thereafter, as Mrs Baloi was walking from the kitchen to the sitting...
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