Road Accident Fund v Mtati. SCA 2005.

The Supreme Court of Appeal today dismissed an appeal brought by the Road Accident Fund against an order granted by Mr Justice JC Froneman in the East London Circuit Local Division of the High Court dismissing a special plea raised by the Fund against an action brought by Mr Mxolisi Mtati of Mdantsane in the Eastern Cape. The action was a sequel to a motor collision which took place in East London in December 1989 when a motor vehicle collided with Mr Mtati’s wife Cynthia, who was pregnant at the time. Five and a half months later Mrs Mtati gave birth to a baby girl, Zukhanye Mtati, who was born, said Mr Mtati, with brain damage resulting from the injuries sustained by her mother in the collision. The Fund raised a special plea to Mr Mtati’s action, alleging that as Zukhanye was not born when the collision took place and therefore not yet a person, she could not claim for her injuries. After Mr Justice Froneman dismissed this defence the fund appealed to the Supreme Court of Appeal. In the judgment delivered today Judge of Appeal IG Farlam, with whom Deputy President L Mpati and Judges of Appeal RH Zulman, B van Heerden and CN Jafta concurred, dismissed the appeal, saying that it would be intolerable if our law did not grant an action in a case such as this.

‘I hold that a child does have an action to recover damages for pre-natal injuries. This rule is based on the rule of the Roman law, received into our law, that an unborn child, if subsequently born alive, is deemed to have all the rights of a born child, whenever this is to its advantage. There is apparently no reason to limit this rule to the law of property and to exclude it from the law of delict.’ Justice Hiemstra.

This means that the COID Act will have to compensate a pregnant woman if she is injured at work and her child is subsequently born brain damaged.

Media 24 and Another v Grobler. SCA. (Supreme Court of Appeals)  2005.

This case pertains to the liability of employer for sexual harassment of female employee by trainee manager – negligent breach by employer of legal duty to maintain working environment in which employees not subject to sexual harassment. Psychological injury in fact resulting from conduct of trainee manager away from workplace after series of acts of harassment in workplace does not prevent a law suit by an employee against an employer as is normally the case in terms of section 35(1) of Compensation for Occupational Injuries and Diseases Act 130 of 1993. The employer has duties  regarding the prevention of harm tot he respondent flowing from sexual harassment arose from the contract of employment between it and her, supplemented in some respects by applicable legislation, such as the Labour Relations Act 66 of 1995, the Occupational Health and Safety Act 85 of1993, the Compensation for Occupational Injuries and Diseases Act 130 of 1993, the Basic Conditions of Employment Act 75 of1997 and the Employment Equity Act 55 of 1998. There respondent’s (Ms. Grobler's)  delictual claim against the first appellant is not excluded by s 157of Act 66 of 1995 and s 35 of Act 130 of 1993 because she was employed not by the first appellant but by the employer. More

Click here for full judgment.

Lift safety incidents have trebled over 30 years in SA. More

Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en ’n Ander 2002 (2) SA 447 (SCA). In this case the court listed the requirements for a manufacturer of goods to be held liable towards a consumer where the latter had used the former’s product in the recommended manner. The appellant was the manufacturer of a wide range of chemical substances, including weed killers. The second respondent was the seller of the appellant’s products while the first respondent did business as a fruit farm near Prince Alfred Hamlet in the Western Cape. The first respondent bought one of the appellant’s products from the second respondent. The first respondent used the product in the recommended manner but it nevertheless suffered damages when the weed killer caused damage to a substantial number of the pear trees on its farm. The first respondent claimed damages in the court a quo in the amount of R932 054 from the second respondent (the seller of the weed killer), based on an alleged breach of the common-law guarantee against latent defects. It also claimed damages from the appellant (the manufacturer of the product). Its claim against the appellant was based on delict. The court confirmed that a merchant-dealer who publicly professed to have expert knowledge in respect of the type of product that he sold was liable to a purchaser under the actio empti if the latter suffered consequential damage as a result of a latent defect in the product. In this regard the court relied on the definition of an expert seller as formulated in Kroonstad Westelike Boere Ko-operatiewe Vereniging Bpk v Botha and Another 1964 (3) SA 561 (A). The court further referred with approval to the much-cited case of Holmdene Brickworks (Pty) Ltd v Roberts Construction Co Ltd 1977 (3) SA 670 (A) at 683H in defining a latent defect as ‘an abnormal quality or attribute which destroys or substantially impairs the utility or effectiveness of the res vendita for the purpose for which it has been sold or for which it is commonly used’. As far as the liability of the appellant as manufacturer was concerned the court held that if a manufacturer produces and markets a product without conclusive prior tests as to the consequences flowing from the use of the product, and when the utilisation of the product in the recommended manner is potentially hazardous to the consumer, the manufacturer’s negligence may expose it to delictual liability to the consumer. Where the consumer did not acquire the product directly from the manufacturer, as was the case in the Lushof Farms case, the liability of the manufacturer (being a third party) is sometimes referred to as ‘product liability’. The court held that a contractual link between the manufacturer and the consumer was not necessary for the former to be held liable for damage suffered by the latter. It concluded that a manufacturer who distributed a product commercially, which, in the course of its intended use, and as the result of a defect, caused damage to the consumer of the product, acted wrongfully and was in principle liable for damages to the consumer. The court concluded that the appellant acted negligently because it failed to realise (and consequently to inform prospective consumers of its product) that the weed killer that the respondent used on its farm could cause damage to pear trees.

Would Section 10 or Section 22 of the OHS Act apply if the substance that was supplied created a health risk? (Section 21) of the Mine Health & Safety Act).

Johannesburg Country Club v Stott And Another SCA. March 2004.

"A final consideration is the radical nature of the exclusion of liability for damages for negligently causing the death of another. It is arguable that to permit such exclusion would be against public policy because it runs counter to the high value the common law and, now, the Constitution place on the sanctity of life. This court in Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) left scope for such a conclusion. In England, Wales and Northern Ireland, for instance, the legislature has intervened by declaring such exemptions unlawful though the legislation goes further and encompasses also the exemption found to be in order under our law in Afrox. The conduct sought to be exempted from liability may involve criminal liability, however, and the question is whether a contractual regime that permits such exemption is compatible with constitutional values, and whether growth of the common law consistently with the spirit, purport and objects of the Bill of Rights requires its adaptation'.  Click here for summary.

Bottom-line. Indemnities against one's own negligence may be ruled to be invalid soon.

Click here for Chat & Skinner Newsletter of December 2004.

Subscribers click here for Stott v Johannesburg Country Club & another
[2004] JOL 13368 (T). 

In Johannesburg Country Club v Stott and Another 2004 (5) SA 511 (SCA) the late Mr. Stott and his wife were members of the Johannesburg Country Club. While playing golf at the club Mr. Stott sought shelter under a cover of some sorts during a rainstorm. Lightning struck and he was severely injured and subsequently died. The respondent sought to hold the club liable for loss of support, funeral and burial costs, alleging that her husband had been killed as a result of the negligence of the club. The club had rules to which both Mr. Stott and his widow bound themselves when they joined it. The rules contained an exemption (indemnity) clause which read: ‘The Club shall in no circumstances whatsoever be liable for any loss of or damage to the property of any member or guests brought onto the premises of the Club whether occasioned by theft or otherwise, nor shall the Club be held responsible or in any way liable for personal injury or harm however caused to members or their children or their guests on the Club premises and/or grounds.’ Confirming the decision of the High Court and dismissing the appeal by the club with costs, the Supreme Court of Appeal said that the exemption clause did not absolve the club from the respondent’s claim as it was not possible for Mr. Stott to exempt the club from such liability since one could not forgo the autonomous claims of dependants. The court was of the view that irrespective of the many meanings that could be attached to the word ‘harm’, one would not ordinarily refer to a dependant’s claim as one for ‘personal harm’; it would rather be called a claim for financial loss. Likewise, the the widow's claim for funeral and burial expenses could hardly be classified under ‘personal harm’ and was not covered by the exclusionary words. The court pointed out that had Mr. Stott survived the lightning strike, his claim for personal injuries would have been affected by the exemption clause with the result that the respondent would also not have had a claim because a dependant’s claim arose only on the death of the breadwinner.

Click here for original report in The Star of 19 March 2004.

See also Durban's Water Wonderland (Pty) Ltd v Botha and another [1998](A)

'The contract provided further that the customer (defendant) would not instruct or permit the operator to use the crane beyond its rated capacity. In terms of my factual findings the crane was in fact used beyond its rated capacity. Two problems arise here. The crane should, in terms of the regulations promulgated under the Occupational Health and Safety Act 85 of 1993, have been fitted with certain safety equipment which would have indicated to the operator of the crane the radius of the crane and the weight he was intending to lift with the crane. He would then have seen immediately that the crane was being operated beyond its rated capacity. There should also have been a bell or buzzer system that would have issued the same warning to the operator. The crane was not fitted with this safety equipment and the question is whose fault was it that the crane was being used without the necessary equipment. Mr Goosen for the plaintiff has submitted that it was the defendant's obligation to see to it that the crane had the necessary safety equipment. His submission is based upon the fact that the regulations require the "user" of the crane to ensure that the crane has the necessary safety equipment and in terms of section 1 of the Act "user" does not include a lessor of the equipment. The definition of "user" is the following:

" 'User', in relation to plant or machinery, means the person who uses plant or machinery for his own benefit or who has the right of control over the use of plant or machinery, but does not include a lessor of, or any person employed in connection with, that plant or machinery."

"User" does include the person who has the right of control over the use of the machinery, and where a lessor of the machinery provides his operator to operate his machinery he, in my opinion, is a "user" of the machinery. It is clear from the evidence that lay people with no knowledge of the machinery sometimes hire cranes with operators to perform tasks on their property for them. It would be startling if it was the intention of the legislator to make them, as mere hirers, liable for the fact that the machinery used for their benefit was not equipped with the required safety equipment.

If it was not the defendant's fault that the crane did not have the equipment which would have warned the operator, and presumably also the defendant's rigger, that the crane was being used beyond its rated capacity, can it be the defendant's fault that the crane was so used?'

UK tourist awarded damages in riding incident. IOL. 'The owner of a guest lodge near Dullstroom in Mpumalanga is responsible for the damages suffered by a British tourist who fell from a horse belonging to the lodge, the Pretoria High Court ruled on Wednesday. Sandra Redhouse visited Walkersons Estate on January 6, 2001 when she was invited to go on a horse ride with the other guests. She earlier testified that she regarded herself as a novice rider as she had not been on horseback for about 15 years. Redhouse said she mounted a horse called Maverick and had no problems for the first 20 minutes of the ride. The riders then stopped to have a chat. This was when things started going wrong. She testified that Maverick suddenly bolted and took off at a fast canter. She tried to stay in the saddle, but lost her balance when the saddle slipped from under her. Redhouse fell, but one foot got caught in the stirrup and she was dragged along. Her foot finally came loose and she fell into soft mud near a lake. Fishermen rescued her and took her to hospital, where she stayed overnight. Redhouse is claiming R150 000 in damages for the trauma she suffered as well as for her broken ribs and torn ligaments. She told Judge Ronnie Bosielo that she had to cut her stay short and return to the United Kingdom due to her injuries. Redhouse said she later heard from the lodge owner, Howard Walker, that Maverick was a new horse who was nervous due to a history of being beaten. Karlien Malan, who was in charge of the stables, testified that Redhouse had "spooked" the horse by grabbing him around the neck and shouting. The judge found that the most probable version was that Maverick, due to his history of being beaten, panicked and bolted and that Redhouse fell as a result. "There is no acceptable evidence that the plaintiff did anything to frighten Maverick. No fault can be attributed to the plaintiff in the circumstances," Bosielo said. He ordered that Walker was liable for any damages which Redhouse could prove pertained to the horse-riding accident'.

Another veld fire case! And another example of a presumption-in-law. This time contained in the National Veld and Forest Fire Act No. 101 of 1998. In Gouda Boedery BPK v Transnet Ltd 2004 SCA   it was claimed by the appellant that Transnet has negligently started a feld fire which caused damage to Gouda Boerdery. Like the Electricity Act, when a civil suit is lodged is lodged in terms of the National Veld and Forest Fire Act, the respondent is presumed to be negligent until the contrary is proved. (Normally the opposite in a civil suit).

Beks Properties (Pty) Ltd & another v White River Housing Estates (Pty) Ltd & another [2004] JOL 13107 (T) First plaintiff owned property on which second plaintiff conducted a timber business. The plaintiffs sued defendants for damages after a fire which started on defendants' property spread and engulfed plaintiffs' timber plantations. It was alleged that the fire was caused by the first defendant's negligence.

In Jansen van Vuuren v Transnet Limited t/a Spoornet[2004] JOL 13089 (W)   an appeal was noted against the dismissal of appellant's claim for damages arising from personal injury. The injuries in question were sustained after the appellant had attempted to board first respondent's train, which had departed without announcing its departure. The appellant was therefore forced to attempt a running leap onto the moving train. The court found that appellant's claim being delictual in nature, the requirement of a causal connection between the alleged wrongful conduct and the appellant's harm was decisive. Case law establishes that such cases have to be judged in the context of foreseeable harm to a foreseeable claimant. It could not reasonably have been expected from the employees of the respondent to foresee that a person such as the appellant would, after the train had commenced moving, suddenly emerge from the environs of the kiosk, proceed to run down the platform and attempt to jump into the train. The respondent's servants were entitled to expect that a passenger who was left behind when the train departed would act reasonably. To try to jump onto the departing train whilst it was moving and picking up speed was not reasonable behaviour. The appellant's damages was therefore due to his own irresponsible behaviour. The appeal was dismissed.

The Constitutional Court refused to confirm the decision of the Eastern Cape high court in Jooste v Score Supermarket Trading (Pty) Ltd 1998 (9) BCLR 1106 (E) which declared section 35(1) of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COID Act) unconstitutional and therefore invalid. The provision prevents employees from claiming damages from their employers, except where provided for in the Act. The Constitutional Court in Jooste v Score Supermarket Trading (Pty) Ltd and Another (CC) said that it was clear that section 35(1) differentiated between employers and employees. Consistent with the equality jurisprudence developed by the court since 1996, the court's approach to the issues raised in the court a quo, per Yacoob J, was that there was an identifiable legitimate purpose (and hence a rational connection) for which the Act was passed, namely provide a system of compensation for disability or death caused by injuries or diseases in the workplace. This was irrespective of whether or not the employer was negligent. Since there was no evidence in support of the proposition that the differentiation between employers and employees amounted to unfair discrimination, Yacoob J found that the context in which section 35(1) deprived employees of the common-law right to claim for damages had a logical and rational connection to the Act's legitimate purpose. The rationale underpinning the unanimous decision of the Constitutional Court was that the Act was an important piece of social legislation which had a significant impact on the 'sensitive and intricate relationship among employers, employees and society at large'. The relationship which the state chose to effect through the Act was to strike a balance which it considered appropriate and - given the foregoing, especially the speedy procedure for adjudication and payment due to employees out of a fund - it was an open question whether this was to the advantage of employees.

In the case of Oosthuizen v Homegas (Pty) Ltd 1992 (3) SA 466 (O) the employer was held to be negligent because it did not give proper training and it did not provide a proper and safe system of working. In this situation there was an explosion when LPG was decanted manually into smaller containers in an unventilated room.  The manager of that specific branch was also found to negligent because he did not familiarise himself with all the hazards associated with his trade.  The court actually said that the manager would have been charged with culpable homicide if another employee or customer was killed in the explosion.

Van Zyl NO v. Kiln Non-Marine Syndicate No 510 of Lloyds of London 2002 SCA. 'The deceased went to the party knowing that he was going to drive back for 110 km alone and in the dark at the end of a long day and after drinking alcohol. I find it impossible to believe that he did not have these facts in mind as he took successive drinks. When one reaches the point in the record where are included photographs of a wreck and a body in the veld one’s reaction is one almost of inevitability. Nor do I find it possible to believe that the deceased was not consciously aware that driving after taking many drinks poses real dangers. No doubt he was not. The issue is whether in terms of an accidental death and disability policy the deceased died in an ‘accident’ and whether, if so, the insurer is nevertheless exempted from liability because the deceased was guilty of' ‘wilful exposure to danger’.