Minister of Safety and Security and Another v Rudman and Another

• Jurisdiction: South Africa

Minister of Safety and Security and Another v Rudman and Another
2005 (2) SA 16 (SCA)

2005 (2) SA p16

Citation	2005 (2) SA 16 (SCA)
Case No	218/02
Court	Supreme Court of Appeal
Judge	Mpati DP, Farlam JA, Van Heerden AJA
Heard	March 23, 2004
Judgment	August 18, 2004
Counsel	P Kemp SC (with S Joubert) for the appellant.; W P de Waal (with J R Minnaar) for the respondent.

Flynote : Sleutelwoorde G

Negligence — What constitutes — Policeman acting in course and scope of H duties instructing person to stop performing CPR on child who had been immersed in swimming pool — Child suffering brain damage as a result of immersion and cessation of CPR — Reasonable person would not have undertaken the responsibility, in circumstances then prevailing, to cause CPR to be discontinued because he or she would have appreciated extent of his or her I ignorance — Policeman having acted negligently.

Negligence — Action for damages — Damages — Apportionment of — Apportionment of Damages Act 34 of 1956, s 2(1) — Joint wrongdoers — 'The same damage' in s 2 referring to all damage suffered by plaintiff in case falling under ch 2 of the Act and party not a joint wrongdoer in terms of Act if only liable for some of the damage. J

2005 (2) SA p17

Negligence — Action for damages — Damages — Assessment of — Joint wrongdoers — Assessment of damages A where impossible to establish individual responsibility with exactitude — Once all available evidence led on point, duty of court to do best it can in circumstances.

Headnote : Kopnota

The first respondent was the plaintiff in an action instituted in a High Court for damages against the appellants arising B from an incident in which the first respondent's son, a toddler, fell into a swimming pool. The second appellant (one B), acting in the course and scope of his employment arrived at the house where a young man (one K) who had come across the child in the pool, was attempting to resuscitate the child by means of CPR. He had been attempting to do so for some time but was apparently unsuccessful. B told K to stand aside and he examined the child and pronounced him dead. A short while C later a paramedic arrived. He immediately resumed CPR and managed to revive the child who, it was subsequently discovered, had sustained severe brain damage during the incident. It appeared that the child had managed to enter the pool because his step-brother (Bo, the second respondent) had taken the safety net off the pool, and opened the sliding door of the lounge adjoining the pool area as well as the D expanding security gate covering the sliding door without telling the child minder that he had done so. The second respondent was joined as a third party by the appellants. From the expert evidence led at the trial it was clear that at least part of the irreversible brain damage sustained by the child was caused by the initial submersion in the swimming pool. The experts were agreed that it was not medically possible to tell to what extent the interruption of the CPR at B's E instructions exacerbated the brain damage. At the trial the issues of liability and quantum were separated and the trial proceeded in respect of the first issue only. The trial Court held that the first appellant and B were jointly and severally liable to the first respondent for the full extent of such damages he might prove in his personal and/or his representative capacity. The extent of the third party's contribution to the damages to be paid by the Minister and B was declared to be 20%. F

Held (per Farlam JA, Mpati DP concurring; Van Heerden AJA dissenting), that by taking charge of the situation and giving what amounted to an instruction to K to discontinue CPR in circumstances where, because of his ignorance, he did not appreciate that it was inappropriate to do so, that there was a possibility that the child was still alive and that the latter's chances of making as full a recovery as was possible were being reduced, B had acted G negligently. He knew that his own knowledge of CPR was limited and he also knew that members of the police service whose knowledge in this regard was more extensive than his were on their way to the scene and there was no necessity for him to interfere. If he had allowed K to continue with the CPR at least some of the brain damage ultimately sustained by the child would not have been caused. (Paragraph [73] at 42E/F - G/H.) H

Held, further, that a reasonable person would not have undertaken the responsibility, in the circumstances then prevailing, to cause CPR to be discontinued because he or she would have appreciated the extent of his or her ignorance on the point. (Paragraph [75] at 42I - 43A.)

Held, further, that B and Bo could not be regarded as joint wrongdoers for the purposes of apportionment of damages as in terms of s 2(1) of the Apportionment of Damages Act 34 of 1956, to fall within the Act the two defendants must have caused 'the same damage' and I where two separate acts of negligence had caused different damage and resultant loss to a plaintiff, each defendant was liable only for such damage as he or she had personally caused. (Paragraph [79] at 43E - H.)

Held, further, that there was no basis for holding the Minister and B liable, as the trial Court did, for all the damage the child suffered from the time of his J

2005 (2) SA p18

immersion in the swimming pool: B did not cause his immersion and he could not be held liable for damage A suffered prior to his intervention when he caused the CPR being administered to the child to be stopped. (Paragraph [80] at 43I - 44A.)

Held, further, it was simply not possible to make an allocation as to how much of the damage sustained was caused by the actions of B as opposed to Bo and it was clear that once all the available evidence had been led on the point the court's duty was to B do the best it could in such circumstances. (Paragraph [81] at 44A/B - B/C.)

Held, further, as to Bo's liability for that portion of the total damage suffered by the plaintiff in his personal and his representative capacities for which the first and second defendants were liable, that he was also liable for the damage sustained thereafter because the discontinuance of the CPR could not be regarded as a novus actus interveniens. (Paragraph [84] at 44H - I.) C

Held, however, as to whether s 2 of Act 34 of 1956 applied to Bo and B in respect of that portion of the damage for which B and the Minister were liable, that whilst it was true that Bo was also liable for the damage to the infliction of which B contributed, that did not make B and Bo 'joint wrongdoers' for the purposes of the Act: The expression 'the same damage' in s 2 referred to all the damage suffered by the plaintiff in a case falling under ch 2 of the Act. D Where the judgment to be given against B and the Minister was not for the full amount of the damage suffered by the plaintiff but only for that part of the damage for which B was to be regarded as being responsible, then the subsection did not apply and any right of recourse available to B and the Minister would have to be sought in the common law. (Paragraphs [85] and [86] at 44J - 45D.) E

Held, accordingly, that the appeal had to be upheld and the first and second defendants were jointly and severally liable to the plaintiff for half the damages the plaintiff might prove to have suffered in his personal and representative capacities as a result of the brain damage sustained by his son, and that the third party was jointly and severally liable with the first and second defendants for the damages payable by them. (Paragraph [90] at 45H - 46A.) F

Cases Considered

Annotations

Reported cases

Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A): referred to G

Carmichele v Minister of Safety and Security and Another 2001 (1) SA 489 (SCA): referred to

Caxton Ltd and Others v Reeva Forman (Pty) Ltd and Another 1990 (3) SA 547 (A): dictum at 573I - J applied

Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (A): dictum at 969H - 970G applied H

Knop v Johannesburg City Council 1995 (2) SA 1 (A): referred to

Kruger v Coetzee 1966 (2) SA 428 (A): referred to

Kruger v Van der Merwe and Another 1966 (2) SA 266 (A): dictum at 273F - G applied

Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A): referred to I

Minister of Communications and Public Works v Renown Food Products 1988 (4) SA 151 (C): applied

Minister of Justice v Hofmeyr 1993 (3) SA 131 (A): referred to

Minister of Law and Order v Kadir 1995 (1) SA 303 (A): referred to

Minister of Safety and Security v Hamilton 2004 (2) SA 216 (SCA): distinguished J

2005 (2) SA p19

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA): referred to A

Minister of Safety and Security and Another v Carmichele 2004 (3) SA 305 (SCA) (2004 (2) BCLR 133): referred to

Minister van Veiligheid en Sekuriteit v Geldenhuys 2004 (1) SA 515 (SCA): referred to

Mkwanazi v Van der Merwe and Another 1970 (1) SA 609 (A): dictum at 622B - D appl B

Rahman v Arearose Ltd and Another [2001] QB 351 (CA): considered

S v Bochris Investments (Pty) Ltd and Another 1988 (1) SA 861 (A): referred to

Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage (Pty) Ltd and Another 2000 (1) SA 827 (SCA): referred to C

Van Eeden v Minister of Safety and Security (Women's Legal Centre Trust, as Amicus Curiae) 2003 (1) SA 389 (SCA): referred to

Windrum v Neunborn 1968 (4) SA 286 (T): dictum at 289H - 290G applied.

Statutes Considered

Statutes

The Apportionment of Damages Act 34 of 1956, s 2(1): see Juta's Statutes of South Africa 2003 vol 1 at D 1-649.

Case Information

Appeal from a decision in the Transvaal Provincial Division (Motata J). The facts appear...