Romansrivier KoöPeratiewe Wynkelder Bpk v Chemserve Manufacturing (Pty) Ltd

• Jurisdiction: South Africa

Romansrivier Koöperatiewe Wynkelder Bpk v Chemserve Manufacturing (Pty) Ltd
1993 (2) SA 358 (C)

1993 (2) SA p358

Citation	1993 (2) SA 358 (C)
Court	Cape Provincial Division
Judge	van Deventer J
Heard	February 13, 1992; February 17, 1992; February 18, 1992
Judgment	March 10, 1992

Flynote : Sleutelwoorde

Delict — Liability for — Vicarious liability — Vicarious liability of employer for delictual acts of employee — Test for — Question to be considered is whether wrong was committed in course of employee's employment, not whether employee engaged in employer's affairs — Course I of employment an expansive concept encompassing unauthorised acts which are wrongful and unauthorised modes of performing an authorised task — Matter of degree whether employee's departure from path of duty constitutes such a deviation from prescribed task as to disassociate his wrong from risk created by his employment, thus exonerating employer from liability — The less precisely scope of employee's duties defined, the J more likely it

1993 (2) SA p359

A is that deviation from prescribed duties will be regarded as merely unauthorised mode of performing authorised tasks — Employee a truck guard employed for loading and off-loading operations, but not to drive truck — After parking truck at plaintiff's premises in order to deliver filter powder, driver absenting himself — Truck guard releasing brakes to allow B truck to run backwards towards place where filter powder to be off-loaded — Truck guard negligently allowing truck to collide with filter plant causing severe damage thereto — Truck guard's actions not an abandonment of his prescribed task or such a deviation therefrom as to exonerate employer (defendant) from liability — His conduct part of risk created by C his employment.

Headnote : Kopnota

The test of an employer's liability for a wrong committed by his employee in the course of unauthorised activity is not whether it occurred while the employee was engaged in his employer's affairs. The question to be considered in the light of the facts in each case is whether the wrong was D committed in the course of the employee's employment. The course or scope of an employee's employment is an expansive concept that encompasses such unauthorised acts as can be regarded as wrongful or unauthorised modes of performing an authorised task. In this respect, a subjective test may be appropriate, though not necessarily conclusive, for if there is, objectively tested, a sufficiently close link between the employee's act for his own interests and purposes and his employer's business, the latter may nevertheless be liable. The question ultimately resolves itself into E one of degree. What has to be considered in the final analysis is whether the employee's departure from the path of duty constituted such an abandonment of or deviation from his prescribed task as to disassociate his wrong from the risk created by his employment and exonerate his employer from liability. In each case a matter of degree will determine whether the employee can be said to have ceased to perform the functions to which he was appointed or whether his unauthorised acts can be regarded F as wrongful or unauthorised modes of performing his prescribed task. It stands to reason that the less precisely the scope of the servant's duties is defined, the more likely it becomes that a deviation from his prescribed duties will be regarded as merely an unauthorised mode of performing his authorised tasks.

The plaintiff had claimed damages from the defendant in a Provincial Division arising out of the damage caused to a filter plant in its wine cellar when a truck belonging to the defendant was reversed into the G cellar, in order to deliver filter powder for use in the filter plant, and collided with the filter plant. It appeared that the driver of the truck had reversed the truck into the driveway leading to the cellar door and parked it near the entrance to the cellar with the rear wheels of the truck on a decline. The truck driver then absented himself. At the time when the truck was to be unloaded, only the truck guard, who had accompanied the driver, was present. The truck had to be brought nearer to the filter plant for the purpose of unloading the filter powder and the truck guard, instead of going to look for the driver, climbed into the H truck behind the steering wheel and, without starting the engine, released the brake and the truck started to run backwards towards the cellar entrance. The truck guard failed to stop the truck in time and it collided with the filter plant causing severe damage to it. The truck guard was not employed to drive the truck and he did not have a heavy vehicle driver's licence. His duties comprised mainly loading and off-loading of trucks. At the trial of the action the issue was whether the defendant was liable for I the damage caused by the truck guard's actions.

Held, that the truck guard's intention, in the absence of the driver, was clearly to facilitate the off-loading process by moving the truck into the cellar and parking it near the filter as had been done on previous occasions.

Held, further, that the truck guard's attempt to facilitate the off-loading by letting the truck run backwards into the cellar without starting the engine could not be regarded as an abandonment of his J prescribed task or such a deviation therefrom as to exonerate

1993 (2) SA p360

A the defendant from liability: his conduct was part of the risk created by his employment.

Held, accordingly, that the defendant had to be held liable for the damages suffered by the plaintiff.

Case Information

Civil trial in an action for damages. The facts appear from the reasons B for judgment.

R S van Riet SC for the plaintiff.

J C Marais for the defendant.

Cur adv vult.

C Postea (10 March 1992).

Judgment

Van Deventer, J.:

The plaintiff claims damages from the defendant in an amount of R122 041,02, alternatively R120 758,62. The claim arises from the damage caused to a Velo filter plant, an installation in the D plaintiff's wine cellar at Wolseley, on 30 March 1988 when a lorry belonging to the defendant was reversed into the cellar and collided with the filter plant.

Particulars of the claim and its compilation will be set out later in the judgment.

Although a number of alternative averments were contained in the E plaintiff's pleadings, the claim was eventually at argument stage founded solely on the averment that the damage to the filter plant was caused by the negligence of an employee of the defendant, one Joseph Mvimbi, acting within the course or scope of his employment when he attempted to facilitate or expedite the off-loading of a lorry load of filter powder in plaintiff's cellar.

F In particular it was contended on behalf of the plaintiff that Mvimbi was negligent in that he allowed the defendant's lorry, with its load of drums with filter powder, to run backwards into the cellar and failed to stop it in time or to take other appropriate action to avoid a collision.

There was no factual dispute between the parties in regard to the G merits. The defendant conceded that the filter was damaged in the manner set out above, that Mvimbi was in its employ and that the damage was due to his negligence.

Defendant pleaded however that Mvimbi at the time of the collision acted outside the authority and scope of his employment and that he 'did not H possess the special skill, knowledge and qualifications necessary to drive the truck'.

The defendant's case was that the scope of Mvimbi's employment was limited to that of a 'truck guard', ie an assistant to the truck driver in loading and off-loading operations.

The undisputed facts were as follows according to the evidence:

I The defendant manufactures filter powder which is packed in drums and sold to customers like the plaintiff who make use of mechanical filters (of which there are various types and makes on the market) in wine-making and fruit juice extraction processes.

The consignment of filter powder on the lorry, as ordered by plaintiff, had to be off-loaded and placed just behind the filter installation, which J was bolted to the concrete floor of the cellar.

1993 (2) SA p361

Van Deventer J

A Photographs of the filter and the damage thereto were handed in. The Velo filter consisted of a square open container, roughly the size of the body of a one ton bakkie, with a large rotating cylinder above it. The rotating drum, which is covered with filter cloth or gauze, is driven by an electric motor in combination with a speed reducing gearbox and other accessories.

B Mr Joseph Mvimbi had been in the defendant's employ at its Cape Town branch for quite a few years before the accident as a 'truck guard' and he is still so employed. This is the description of his post in a document headed 'Job description' and handed in from defendant's records as exh J.

C According to the 'Job description', his post falls within the defendant's transport department and his duties as a 'truck guard' comprise mainly the loading and off-loading of orders. Specifically in regard to off-loading, the following directions appear in the 'Job description':

D 'Off-loading of orders

'4.1

Ensure that courtesy is shown to customers at all times.

4.2

Off-load orders in area specified by customer.

4.3

Off-load goods as stated by driver.'

Under the heading 'Person specification' the following details appear:

'1.

E Education

Essential: Read, write and count.

Preferred: Std 8.

2.

Experience

Preferred: Be able to drive a fork lift.

3.

Other requirements

Be physically fit and strong, neat appearance and well-spoken.' F

Mvimbi fitted these requirements and also worked as a fork-lift truck driver on defendant's premises. He did not have a heavy...