Stride v Reddin

• Jurisdiction: South Africa
• Judge: Watermeyer CJ, Tindall JA, Centlivres JA, Feetham JA and Greenberg JA
• Judgment Date: 01 December 1943
• Court: Appellate Division

Stride Appellant v Reddin Respondent
1944 AD 162

1944 AD p162

Citation	1944 AD 162
Court	Appellate Division
Judge	Watermeyer CJ, Tindall JA, Centlivres JA, Feetham JA and Greenberg JA
Heard	October 12, 1943; October 13, 1943
Judgment	December 1, 1943

Flynote : Sleutelwoorde

Negligence — Motor car — Driver crossing swollen stream at night — Engine stalling on causeway in stream — Death of passenger by drowning.

Headnote : Kopnota

In an action for damages for negligence it appeared that the defendant, an experienced driver, had whilst driving at night decided to cross a stream which was swollen owing to recent rains and which was flowing to a depth of some 14 inches over the causeway across the stream. The car stalled on the causeway and it was found that the battery had failed. The defendant and his three passengers who were already out of the car on the causeway then decided to walk back to dry land and to wait for the water to subside. Immediately thereafter it was discovered that the deceased, one of the passengers, had disappeared, and his dead body was recovered next day down the stream. The probabilities were that he had stumbled or stepped over the edge of the causeway into deep water. It was contended that the defendant by driving into the water took the risk of the engine stalling in the middle of the stream, and if that occurred his passengers would be placed in a perilous position exposed to the danger of a rising flood or to the dangers attendant upon having to walk to land in the dark through the running water. A trial Court having held that the death of the deceased was due to the negligence of the defendant,

Held, allowing an appeal, that under the circumstances of the case the defendant had not been guilty of negligence in making up his mind to attempt to cross the stream.

The decision of the Eastern Districts Local Division in Reddin v Stride reversed.

Case Information

Appeal from a decision of the Eastern Districts Local Division (GUTSCHE J.) in an action in which the respondent, in her capacity as natural guardian of her two minor daughters, claimed damages successfully from the appellant on the ground that he had caused the death of their father by negligence.

The facts appear from the judgment of WATERMEYER, C.J.

1944 AD p163

H. J. Hanson, for the appellant: The onus is on plaintiff to establish that defendant, by his negligence, caused the death of the deceased. It is not sufficient for the plaintiff to prove negligence in the abstract since carelessness is only actionable when it is a breach of a duty to take care. See Thomas v Quartermaine (1887, 18 Q.B.D. 685); M'Alister (or Donaghue v Stevenson (1932, A.C. 562 and 618).

For the plaintiff to succeed she must establish two factors in relation to the facts of the present case: (a) that the defendant was under a legal duty not to transport her husband on to the causeway; (b) that the fact that he did so was the legal or proximate cause of the death of her husband. By legal cause is meant a cause which is a substantial factor.

A legal duty to exercise care only arises when a reasonably prudent man would foresee the likelihood that his act would cause harm to another. See Heaven v Pender (1883, 11 Q.B.D. 503); Le Lievre v Gould (1893, 1 Q.B.D. 491); Transvaal Rhodesian Estate Ltd. v Golding (1917 AD 18); Salmond on Torts (7th ed. 3 p. 25); McKerron on Delicts (p. 41)

Plaintiff in her declaration alleges that the defendant was under a duty not to proceed on to the causeway in the circumstances that the river had overflowed its banks, completely hiding the said causeway and flowing strongly across it, making it extremely dangerous, if not impossible, to drive a motor car across it. That the death of the deceased was caused by defendant's breach of duty in proceeding on to the said causeway in the said circumstances.

The only risk foreseeable by a reasonably prudent man in the circumstances of the case was that the engine might stall while the car was in the water. The assumption of this risk did not constitute negligence. See Du Plessis v SA Railways and Harbours (1930 T.P.D. 50). Not every act which involves some risk constitutes negligence. It is only negligence when it involves the undertaking of an unreasonable risk. See Restatement of the Law (paras. 284, 291, 294).

The prospect of physical injury to any of the passengers was not a foreseeable likelihood, but was at most such a remote possibility that it did not in law found a duty to refrain from entering the water. See Farmer v The Robinson G.M. Co. (1917 AD 501 at p. 522); Transvaal & Rhodesian Estates Ltd. v Goldin (1917 AD 18 at pp. 28-30).; Hay or Bourhill v Young (1942, 2 A.E.R. 396); Glasgow Corporation v Muir (43 T.L.R. 244).

1944 AD p164

On the assumption that a reasonably careful man would anticipate the car would stall, he would be entitled, in determining his conduct to assume that, if passengers alighted, they would proceed to the bank with caution. See Rex v Ross-Barrance (1942 CPD 85 at p. 90); Martindale v Woolfaardt (1940 AD 235 at p.244); Fismer v Thornton (1929 AD 17); and Grant v Australian Knitting Mills Ltd. (1936, A.C. 85 at p. 104).

Liability for the consequences of a negligent act only arises in one of the following three circumstances according to Charlesworth's Law of Negligence (p. 531): (a) Where the consequence is intended; (b) where the consequence is the direct result of the negligent act (see In re Polemis v Furness, Withy & Co. Ltd. (1921, 2 K.B. 560) ); and (c) where the consequence, though not the direct result of a negligent act, is one which ought reasonably to have been foreseen as likely to follow the negligent act.

Direct causation ceases where a force intervenes which was not stimulated immediately by the defendant's act or immediately by. a continuous disturbance or a continuous series of such disturbances which the defendant started. See article in Harvard Law Review by J.A.KcLoughlin, vol. 39, pp. 157 and 169. Smith v London & S.W. Railway Co. (1870, L.R. 6 C.P. 14) was dissented from in Hay or Bourhill v Young (supra).

A. G. Jennett, for the respondent: The appellant's wrongful act or conduct continued in operation and force throughout. See Davis v Garrett (6 Bing 716 and 130 E.R. 1456); Sneesby v Lancashire and Yorkshire Railway Co. (1 Q.B.D. 42); Hill v New River Co. (9 B. & S. 303); Harris and Another v Mobbs (1878, 3 Exch. D. 268); Romney Marsh Bailiffs v Trinity House Corporation (L.R. 7 Exch. 247); M'Kenna v Stephens & Hull (Beven on Negligence, 4th ed., p. 87); S.S. City of Lincoln (15 P.D. 16); S.S. Singleton Abbey v S.S. Paludina (1927, A.C. 16 at p. 27).

The attempt by deceased to push the car to safety was not a novus actus interveniens. See S.S. Singleton Abbey v S.S. Paludina (supra at pp. 26, 27); Macintosh on Negligence in Delict (pp. 73-4); Haynes v Harwood (1935, 1 K.B. 146 at pp. 153, 156, 159, 164, 166). It was part of the attempt to reach safety. See Adams v Lancashire & Yorkshire Railway Co. (4 C.P. 739 at pp. 742-3); Pollock on Tort (12th ed., pp. 483-4).

As to the inference as to cause see Jones v Great Western Railway Co. (144 L.T.R. 194 at pp. 196, 200). Responsibility should be the test. See Smith v Harris (1939, 3 A.E.R pp. 960, 962,

1944 AD p165

964); South African Law Journal for 1943 (May) (p. 207); Jackson v Morris Taxi Service (1943, P.H. 0. 18).

The onus is on appellant to prove negligence on the part of the deceased. See Wakelin v London & S.W. Railway Co. (12 A.C. 41); Dublin, Wicklow & Wexford Railway Co. v Slattery (3 A.C. 1155 at p. 1180); Solomon and Another v Mussett & Bright Ltd. (1926 AD 427 at p. 435). A preponderation of probabilities is sufficient. See Kerr v Ayr Steam Shipping Co. Ltd. (1915, A.C. 217 at p. 224).

Hanson, in reply: As to cases of emergency see Halsbury's Laws of England (Hailsham ed., vol. 23, para. 826).

All the authorities cited for respondent are based on the assumption that the original act was wrongful. See McKerron on Delicts (pp. 31, 39-40);, Wasserman v Union Government (1934 AD 2.28) and Moubray v Syfret (1935 AD 199).

Cur. adv. vult.

Postea (December 1st).

Judgment

Watermeyer, C.J.:

In this action the minor daughters of the late Lorimer Everitt Reddin claimed damages from the defendant Stride on the ground that he had caused the death of Reddin by negligently driving a motor car into a flooded river. The action was heard in the Eastern Districts Local Division before GUTSCHE, J., and the plaintiffs...