Protea Assurance Co Ltd v Lta Building (SWA) Ltd and Another

• Jurisdiction: South Africa
• Citation: 1988 (1) SA 303 (A)

Protea Assurance Co Ltd v Lta Building (SWA) Ltd and Another
1988 (1) SA 303 (A)

1988 (1) SA p303

Citation	1988 (1) SA 303 (A)
Court	Appellate Division
Judge	Hefer JA, Nestadt JA and Nicholas AJA
Heard	August 27, 1987
Judgment	September 18, 1987

Flynote : Sleutelwoorde F

Negligence — What constitutes — Collision at junction of through road and access road — Stop sign on access road at junction — Although driver on through road does not have an absolute right of precedence and G is not relieved from duty of keeping a general look-out, he is not under a duty to keep cross road under same careful observation as would be required if there was no stop sign — Driver on through road not seeing massive truck entering through road from access road as he had been partially blinded by rising sun slightly to left — Truck not having H stopped at stop sign — Not proved that driver on through road negligent.

Headnote : Kopnota

A motorist proceeding on a through road is generally entitled to rely on the protection of stop signs controlling entry from access roads. While it is true that a driver in a through road does not have an absolute right of precedence and is not relieved from the duty of keeping a I general look-out, he is not under a duty to keep the cross road under the same careful observation which would be required if it was not a stop street.

In an appeal from a decision in a Provincial Division holding that the driver on a through road had been negligent in not seeing a massive truck entering the through road from a stop-sign-controlled access road to the left because he, the driver on the through road, had been partially blinded by the brightness of the rising sun slightly to his left but that his negligence had not contributed to the ensuing J collision, the

1988 (1) SA p304

A Court held that the failure of the driver on the through road to see the truck was not due to a failure on his part to keep a proper look-out, but to a fortuitous conjunction of circumstances at the critical stage, namely the course of the truck, the course of the vehicle on the through road and the effect of the sun on the driver of the latter vehicle. The Court accordingly held that it had not been proved that the driver on the through road had been negligent.

The decision in the Cape Provincial Division in Papier v Protea B Assurance Co Ltd and Others confirmed.

Case Information

Appeal from a decision in the Cape Provincial Division (Lategan J). The facts appear from the judgment of Nicholas AJA.

G D van Schalkwyk SC (with him F D J Brand) for the appellant: As to the direct liability of the first respondent, it is common cause that C (a) the first respondent did not inform the second respondent of the CDM regulations pertaining to haul roads; and (b) the first respondent did not take steps to prevent the second respondent from travelling on haul roads. Two fundamental questions fall to be determined for the purposes of this aspect of the case, namely whether a reasonable man, in the D position of the first respondent, would: (i) have foreseen the reasonable possibility of injury to his employees should he not inform them (including the second respondent) of the CDM regulations pertaining to haul roads and/or should he take no steps to prevent his employees (including second respondent) from travelling on haul roads; and (ii) have informed his employees of the regulations and/or have taken E reasonable steps to prevent them from using haul roads. See Cape Town Municipality v Paine 1923 AD 207 at 217; Joffe & Co Ltd v Hoskins 1941 AD 431 at 451; Peri-Urban Areas Health Board v Munarin 1965 (3) SA 367 (A) at 373; and Kruger v Coetzee 1966 (2) SA 428 (A) at 430E. The Court a quo found that the first respondent did not foresee, and could not F reasonably have been expected to foresee, the conduct of Stephanus in driving the dump truck as he did, and that the first respondent was accordingly not negligent in failing to warn and instruct the second respondent not to use the haul road. As long as the general nature of the harm which might be caused was foreseeable by the first respondent, the fact that its exact degree or extent or the precise manner in which G the harm might occur might not have been foreseeable will not exculpate the first respondent. See Botes v Van Deventer 1966 (3) SA 182 (A) at 191A; Kruger v Van der Merwe 1966 (2) SA 266 (A) at 272F - G; and Minister van Polisie en Binnelandse Sake v Van Aswegen 1974 (2) SA 101

(A) at 108. The very reason why the first respondent was negligent in H failing to warn the second respondent was that, thereby, the first respondent created the foreseeable risk that he or his passengers might be injured as a result of a collision with earthmoving machinery on the haul road. This was the general nature of the harm which, especially in the light of Campbell's specific complaint and warning to Myburgh, was foreseeable to the first respondent. The first respondent was, by its failure, instrumental in creating the risk of that harm. The very harm I which befell the plaintiff was at all times an inherently possible consequence of the first respondent's conduct. In these circumstances, no question of remoteness of damage can arise. See Kruger v Van der Merwe (supra at 273D - E); Boberg The Law of Delict vol I at 288. It lies strangely in the first respondent's mouth to say that the injury to plaintiff was unforeseeable when, through its employee, Myburgh, it had J specific and recent

1988 (1) SA p305

A knowledge of the dangerous situation which was being created by the Econobus using the haul road. See Peri-Urban Areas Health Board v Munarin (supra at 373, 375). There can be no doubt, on the second respondent's evidence, that, had he been instructed by the first respondent not to use the haul road, he would not have done so, and the collision would not have occurred. The totality of the evidence B indicates strongly that, contrary to the learned trial Judge's findings, the first respondent did foresee or ought to have foreseen that the general manner in which heavy mine vehicles are driven on the haul roads might expose the occupants of the Econobus to greater dangers that would have been encountered on the east cliff road. This is all that was required to be foreseen by the first respondent for it to be liable to C the plaintiff and to the appellant. It did not have to foresee what the learned trial Judge called the 'peculiar conduct of Stephanus' in driving the '769' exactly as he did: as long as the first respondent could foresee the general nature of the harm which might be caused by its failure, the fact that it could not foresee the precise manner in which the harm might occur does not relieve it of liability. D Accordingly, the learned trial Judge erred in applying too narrow a test of foreseeability to the appellant's claim against the first respondent. Cf S v Motau 1968 (4) SA 670 (A) at 677C - H; Griffiths v Netherlands Insurance Co of SA Ltd 1976 (4) SA 691 (A) at 696G - 697D, 702B - 703C; and Marine & Trade Insurance Co Ltd v Singh 1980 (1) SA 5 (A) at 9C - H. The learned trial Judge erred in finding, as he did, that the first E respondent was not negligent in relation to the collision because it did not foresee the conduct of Stephanus, and was under no duty to foresee it. If a reasonable man in first respondent's position would have foreseen the possibility of injury to his employees should he fail to warn them of the dangers of using the haul road, and should he fail to F take steps to prevent them from using it, there can be no doubt that he would have warned them, and would have taken such steps, since (a) the harm which could arise from such failure was potentially very great, and could easily have led to fatalities; (b) the risk of such harm occurring was real; and (c) it would have been very easy for first respondent to have warned second respondent of the dangers of using the haul road, and G to instruct him not to do so, in which case the accident would not have happened. See Herschel v Mrupe 1954 (3) SA 464 (A) at 477A - C.

As to the vicarious liability of the first respondent and the direct liability of the second respondent: The Court a quo found correctly that the second respondent was guilty of negligence in that (a) he drove at a H speed which was excessive in the prevailing conditions of poor visibility caused by the rising sun; and (b) whilst driving at such excessive speed he failed to keep a proper look-out. The Court went on to find, however, that neither the second nor the first respondent was liable to the appellant because it had not been established that second I respondent's negligence contributed causally to the collision. The correctness of the latter finding depends on the answer to the question: what would probably have happened if the second respondent had not been negligent, ie if he (a) had been driving at an appropriately lower speed; and (b) had been keeping a proper look-out? It is only if the answer to this question is that the collision would probably have J happened anyway that it can be said that there was no causal

1988 (1) SA p306

A connection between the second respondent's negligence and the collision. In finding against the appellant on this issue, the learned trial Judge lost sight of, or failed to attach sufficient weight to, the following: (a) the evidence of the second respondent that, had the dump truck been visible to him as he approached, he would have kept it under close B observation until he had safely gone past it in case it failed to stop at the stop sign; had it become apparent to him that it was not going to stop, he would immediately have taken appropriate avoiding action by braking to reduce his speed and/or swerving to his right; (b) the evidence given by the second...