South Africa: Western Cape High Court, Cape Town

Kasper v Andre Kemp Boerdery (10879/2006) [2011] ZAWCHC 556 (22 November 2011)

“but perhaps the most satisfactory statement... is that given by Pollock, Torts, (8th ed. p 78), founded upon a pronouncement of Chief Justice Shaw of Massachusetts: 7 am answerable for the wrongs of my servant or agent not because he is authorised by me or personally represents me, but because he is about my affairs, and I am bound to see that my affairs are conducted with due regard to the safety of others. ’ However that may be, we may, for practical purposes, adopt the principle that a master is answerable for the torts of his servant committed in the course of his employment, bearing in mind that an act done by a servant solely for his own interests and purposes, and outside his authority, is not done in the course of his employment, even though it may have been done during his employment. Such an act cannot be said to have taken place in the exercise of the functions to which he (the servant) is appointed.”

19. The court found that in cooking their meal in the prevailing circumstances, the employees were “engaged about their master’s affairs and were acting in the course of their employment’ .³

20. In the subsequent decision of Estate van der Bvl v Swanepoel⁴ Wessels JA noted with reference to Mkize’s case {supra), that:

“This Court in applying the general principle that a master is liable for the torts of his servants acting with the scope of their employment has taken an extended view of the master’s liability to third parties rather than the narrow one which would confine his liability strictly to acts done within the instructions or necessarily incidental thereto."

21. The “extended view” was revisited by the Appellate Division in Feldman (Ptv) Ltd v Mall⁵ in which a thorough review of the principles and approach to vicarious liability was undertaken. The decision gave rise to the so-called “deviation principle” in which the employee who disobeyed an employer’s instructions could still attract vicarious liability for the employer. Watermeyer CJ outlined the approach in such circumstances as follows (at p 736):

“Instructions vary in character, some may define the work to be done by the servant, others may prescribe the manner in which it is to be accomplished; some may indicate the end to be attained and others the means by which it is to be attained. Provided the servant is doing his master’s work or pursuing his master’s ends he is acting within the scope of his employment even if he disobeys his master’s instructions as to the manner of doing the work or as to the ‘means’ - by which the end is to be attained. A servant may even omit to do his master’s work, and if such omission constitutes a negligent or improper performance of his master’s work and causes damage, the master will be legally responsible for such damage. Consequently, a servant can act in disobedience of his master’s instructions and yet render his master liable for his acts"

22. The rather paternalistic language used by the courts in the earlier cases is no doubt somewhat jarring to the ears of contemporary employment law practitioners, but the principles expounded therein are as applicable today as they were all those decades ago.

23. Over the years, deviation cases have resulted in much deliberation by our courts, the problem being how to assess, firstly, whether a particular factual matrix constitutes a deviation at all and then, if so, whether the deviation is of such a nature as to include or exclude vicarious liability. The nub of the problem was explained by Watermeyer CJ in SAR & H v Marais.⁶ In that case, one Marais (the late husband of the respondent on appeal) had been travelling lawfully on a train. He was invited by the engine-driver to join him on the footplate of the engine where the two men drank brandy supplied by Marais. Marais’ presence on the footplate was expressly prohibited by the railways authorities. While Marais was travelling on the footplate, the engine left the rails due to the negligence of the driver and Marais was killed. Mrs Marais sued the railways for damages for loss of support due to the death of her husband, alleging that the invitation by the engine-driver to Marais to join him on the footplate was within the course and scope of his employment.

24. The Chief Justice conducted a detailed study of various foreign jurisdictions and then commented as follows (at p 620G):

“ These decisions seem to me to be in agreement with the result at which I have arrived and it is satisfactory to find that so many other courts, when dealing with the difficult subject of a master’s liability for the acts of his servant, should have come to the conclusion that, when a driver of a vehicle gives a lift to a friend, such act being outside the scope of his employment, the master is not responsible if the friend is thereafter injured through the negligent driving of the vehicle while being carried on the vehicle."

“It seems clear that an act done by a servant solely for his own interests and purposes, although occasioned by his employment, may fall outside the course or scope of his employment, and that in deciding whether an act by the servant does so fall, some reference is to be made to the servant’s intention. . . The test is in this regard subjective. On the other hand, if there is nevertheless a sufficiently close link between the servant’s acts for his own interests and purposes and the business of his master, the master may yet be liable. This is an objective test. And it may be useful to add that according to the Salmond test (cited by Greenberg JA in Feldman (Ptv) v Mall [supra at 774]:

‘a master ... is liable even for acts which he has not authorized provided that they are so connected with acts which he has authorized that they may rightly be regarded as modes - although improper modes - of doing them. .

30. As Griesel J correctly observed:¹¹

“[22] there are many instances in our law reports where employers were held liable, even though the employee in question disobeyed instructions and performed forbidden acts. It is no answer, therefore, simply to say - as the defendant seeks to do - that. . . [the security guard] was forbidden to use a firearm on duty and therefore the defendant is not liable. The standard question remains: was the employee engaged in the affairs of the employer at the time the delict was committed?

(23] In answering this question in the context of forbidden acts, an important distinction is drawn between a prohibition which limits the sphere of employment, on the one hand, and one which only deals with conduct within the sphere of employment, on the other. The general rule is that an employee who disregards a prohibition which limits the sphere of his employment is not acting in the course of his employment, but an employee who disregards a prohibition which only deals with his conduct within the sphere of his employment is not acting outside the course of his employment.

[24] To conclude as far as this aspect is concerned, the position is neatly summarised by Neethling et al [Law of Delict (4th ed)] as follows:

‘The employer may only escape vicarious liability if the employee, viewed subjectively, has not only promoted his own interests, but, viewed objectively, has also completely disengaged himself from the duties of his contract of employment. ”

31.The court was satisfied, on the facts before it, that the security guard was indeed acting in the scope of his employment when he injured the plaintiff.

32. In supplementary heads of argument filed subsequent to the hearing at the request of the Court, counsel dealt with the import of the decision of the Constitutional Court in K v Minister of Safety and Security¹² in the context of the present case. We are indebted to counsel for their assistance in this regard.

33. The facts in K’s case, supra, are wholly different to the instant case and, importantly, incorporate public policy considerations given that the errant employees in that case were police officers in the employ of the State.

34. Nevertheless, in a wide-ranging judgment which considered the common law both locally and abroad O’Reqan J confirmed that the common law approach in South Africa passed constitutional muster. After considering, inter alia, Feldman v Mall, supra and Minister of Police v Rabie, supra the learned judge said the following:

“[32] The approach makes it clear that there are two questions to be asked. The first is whether the wrongful acts were done solely for the purposes of the employee. This question requires a subjective consideration of the employee’s state of mind and is a purely factual question. Even if it is answered in the affirmative, however, the employer may nevertheless be liable vicariously if the second question, an objective one, is answered affirmatively. That question is whether, even though the acts done have been done solely for the purpose of the employee, there is nevertheless a sufficiently close link between the employee’s acts for his own interests and the purposes and the business of the employer. This question does not raise purely factual questions, but mixed questions of fact and law. The questions of law it raises relate to what is “sufficiently close” to give rise to vicarious liability. It is in answering this question that a court should consider the need to give effect to the spirit, purport and objects of the Bill of Rights...

[44]...The objective element of the test which relates to the connection between the deviant conduct and the employment, approached with the spirit, purport and objects of the Constitution in mind, is sufficiently flexible to incorporate not only constitutional norms, but other norms as well. It requires a court when applying it to articulate its reasoning for its conclusions as to whether there is a sufficient connection between the wrongful conduct and the employment or not. Thus developed, by the explicit recognition of the normative content of the objective stage of the test, its application should not offend the Bill of Rights or be at odds with our constitutional order. ”

35. I turn then to the relevant facts before the court a quo on this point. In evidence, Huma claimed that he had acted contrary to the instructions of the defendant when he set fire to the first heap and said that he did so to lessen his own burden on a hot day. As I have said, this issue was disputed by the plaintiff, which attempted to demonstrate, through the evidence of bystanders who claimed to have been in conversation with Huma, that the defendant had indeed so instructed Huma.

36. The court a quo did not entirely resolve this factual issue although it did seem to prefer the plaintiff’s version which was based on the evidence of a certain Isaac Thyssen, who impressed the court as an honest witness. Thyssen was a farm-hand, who had grown up on a neighbouring farm, and in a conversation with Huma a day or two after the event, it was alleged that Huma had told him that he was acting on instructions. If that allegation was true, then, of course, the liability of the defendant was established without more.

37. The court a quo approached the evidence more cautiously and found that it mattered not (for purposes of vicarious liability) whether Huma was acting on direction instructions or not. Relying on cases such as Bezuidenhout NO v Eskom {supra), and Moqamat v Centre Guards (supra), the trial judge found that:

“The burning of plant material on a farm in such circumstances when viewed objectively cannot be regarded as a deviation of his employment to such an extent and degree (albeit to ease his own burden) that his employer is not to be held responsible for such actions. I am of the view that Huma’s actions in setting the plant material alight was clearly carried out within the cause (sic) and scope of his employment with the defendant.”

38. In my view, this finding by the court a quo, considered in the light of the approach in K’s case, supra, cannot be faulted. Assuming of course that Huma acted contrary to instructions, it cannot be said that, in burning the weeds rather than removing them to the donga, the employee had “completely disengaged himself from the duties of his contract of employment'. His conduct fell within the “important distinction" which Griesel J speaks of in Mogamat’s case, supra, between “a prohibition which limits the sphere of employment’ and “one which only deals with conduct within the sphere of employment’. The facts of this case clearly fall within the latter category. Or, to use the words of Greenberg JA in Feldman’s case (supra), one is dealing here with an “improper mode” of the discharge of one’s contract of employment.

39. In conclusion on this point, one may, in the current circumstances, rightfully pose the rhetorical question - if Huma was not acting within the course and scope of his employment with the defendant, in whose business was he engaged?

ACKNOWLEDGEMENT OF LIABILITY

40. The plaintiff claimed that at the meeting of affected parties on Saturday, 17 September 2005 on the defendant’s farm (at which two of the neighbours, Bateman and Strydom were present) the parties discussed what was to be done to address the calamity. At that stage, the fire which was spotted the following day burning deep in the mountains, had not been seen by anyone.

41.The defendant informed those present that he had insurance cover with Santam and that he would submit a claim in respect of the fire damage. The parties discussed, too, the manner in which a claim would be brought against the defendant and the plaintiff indicated that it would act on behalf of the affected neighbours in bringing such a claim.

42.The plaintiff pleaded in its particulars of claim, in the alternative to its delictual action, that the parties to this gathering had concluded an implied, alternatively tacit, agreement that in the event of Santam repudiating the defendant’s claim, the defendant would personally make good any of the parties’ damages.

43.The court a quo found, correctly in my view, that it was not necessary to deal with this issue in light of its finding on the main claim in delict. In the circumstances of the finding above on the delictual claim, it is similarly not necessary to deal with the alternative claim on appeal.

APPLICABILITY OF THE NATIONAL VELD AND FOREST FIRE ACT. 101 OF 1998

44.Section 34 of this Act contains a presumption of negligence against the owner of the land on which a veldfire starts and then spreads to adjacent properties. It is a piece of legislation (like its predecessor) which has enjoyed much attention in the courts.

45.The court a quo held that it was not necessary to determine the applicability of the presumption in the present matter given its finding in respect of the delictual claim. Nevertheless, the court a quo dealt with the meaning of the word ‘Ve/d” quite extensively in an obiter dictum and found that the ground upon which the fire had started was indeed veld.

46.Given the finding above on the delictual claim, I do not consider it necessary to go into this aspect on appeal either.

THE ORIGIN AND EXTENT OF THE FIRE WHICH BURNED ON SUNDAY 18 SEPTEMBER 2005

47. In his amended plea, the defendant admitted the plaintiff’s allegation that a fire started on the defendant’s farm on 14 September 2005 and that it spread to a farm known as “Elandsdriff’. This name, said the plaintiff, was the name which collectively referred to all of the agricultural land which it farmed as a unit in the area. The defendant also admitted that the fire spread to neighbouring farms but said that he had no knowledge of the names, owners or boundaries of such farms.

48. The defendant went on to allege that not all of the damage caused to “Elandsdriff’ and the neighbouring farms was occasioned by the fire which broke out on his land on 14 September 2005. In amplification of this allegation, the defendant asserted that a second fire broke out on “Elandsdriff’ (or in its vicinity) about 3 days after the fire had started on his farm and at a time when that fire was under control.¹³ The defendant said, further, that he had no knowledge of the extent of the damage on “Elandsdriff’ (or on any other farm) caused by the fire which started on his farm on the 14^th and the fire which started on or in the vicinity of “Elandsdriff’ and put the plaintiff to the proof thereof. This issue was not clarified in the request for trial particulars nor at the Rule 37 conference.

49. At the trial, considerable evidence was led on the issue of the so-called “second fire". This included both lay and expert witnesses. In addition, the court a quo enjoyed the benefit of an inspection in loco in evaluating this fiercely contested aspect of the case.

50. The court a quo carefully analysed the evidence relating to this point. In so doing, the learned judge had regard to questions of demeanour and credibility as well as the expertise of the witnesses and the general probabilities. The court a quo came to the conclusion “that on a balance of probability the fire of the Sunday was a re-ignition of the fire that had been started by Huma on the 14th September 2005".

51. If this finding is correct, it is not necessary to determine what areas were burnt initially and what areas were burnt later: all the damage ultimately flowed from the conflagration started by Huma’s negligence on the 14^th.

52. Having considered the evidence carefully, the court a quo was satisfied with the plaintiff’s version of events. In argument before this court, counsel for the defendant argued that the trial court should have found the other way. This argument was not based on any suggestions of misdirection by the court a quo. Rather, it was contended that the court a quo should have accepted the evidence of the defendant’s expert witness and rejected that of the plaintiff’s expert.

53. In Michael and another v Linksfield Park Clinic (Ptv) Ltd and another¹⁴, the court was called upon to determine the delictual liability of a medical practitioner and a private hospital for damages arising from the treatment of a patient during a surgical procedure. All the parties to the litigation relied on the opinions of experts to sustain their cases. In considering the matter on appeal, the court made certain observations regarding the role of expert witnesses in general and medical malpractice suits in particular. I shall refer only to the former.

54. Firstly, the Court said:

“[36] . . . [WJhat is required in the evaluation of such evidence is to determine whether and to what extent their opinions advanced are founded on logical reasoning. That is the thrust of the decision of the House of Lords in the medical negligence case of Bolitho v City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232 (HL(E)). With the relevant dicta in the speech of Lord Browne- Wilkinson we respectfully agree.”¹⁵

55. After summarizing that dictum on the issue of medical negligence, the Court concluded thus:

“[40] Finally, it must be borne in mind that expert scientific witnesses do tend to assess likelihood in terms of scientific certainty. Some of the witnesses in this case had to be diverted from doing so and were invited to express the prospects of an event’s occurrence, as far as they possibly could, in terms of more practical assistance to the forensic assessment of probability, for example, as a greater or lesser than fifty percent chance and so on. This essential difference between the scientific and the judicial measure of proof was aptly highlighted by the House of Lords in the Scottish case of Dingley v The Chief Constable, Strathclyde Police 200 SC (HL) 11 and the warning given at 89D- Ethat

‘(o)ne cannot entirely discount the risk that by immersing himself in every detail and by looking deeply into the minds of the experts, a judge may be seduced into a position where he applies to the expert evidence the standards which the expert himself will apply to the question whether a particular thesis has been proved or disproved - instead of assessing, as a judge must do, where the balance of probabilities lies on a review of the whole of the evidenceV’^.16

56. In the instant case, the court a quo preferred the plaintiff’s fire expert, Mr Botha, over that of Mr van Wyk, the local fire chief who testified on behalf of the defendant. That preference took cognizance of Botha’s level of expertise and Van Wyk’s near absence thereof. The court a quo also had regard to the fact that Van Wyk testified both as an expert and as a lay witness who had been involved in fighting the fire and who seemed to have assumed a measure of personal responsibility in ensuring that the fire was properly extinguished. The trial court was not convinced of Van Wyk’s reliability or impartiality either.

57. But, most importantly, the court a quo applied common sense and logic to the contested evidence before it. In the absence of any other explanation¹⁷ as to the origin of the fire high in the mountains at a spot inaccessible to humans, the court found Botha’s theory that there was a slow and protracted smouldering of combustible material like thick, dry vegetation in inaccessible ravines in the intervening period between the Wednesday and the Sunday, as the more probable source of the fire which broke out on that Sunday.

58. I can find nothing wrong or objectionable in the reasoning of the court a quo on this aspect of the case and I am satisfied that the trial court got it right: there was one fire started by Huma on Wednesday the 14^th which to the naked eye appeared to have burnt itself out but which flared up again on the Sunday when combustible plant material high in the mountains ignited. The consequence of that finding is that all of the fire damage on the plaintiff’s farm and that of the neighbours was correctly found to have been causally linked to Huma’s negligence.

THE CESSION OF THE NEIGHBOURS’ CLAIMS

59. Following on from the meeting of the affected parties at the defendant’s farm on the Saturday, the plaintiff formally took cession of the claims of Ms Schutte and Messrs Strydom and Bateman in written documents signed in January and February 2008. The cession signed by Schutte reflects that she had already initiated proceedings against the defendant for damages arising out of a fire which started on his farm on 14 September 2005, while the documents signed by Messrs Strydom and Bateman reflect that they each had a claim for similar damages.

60. In its amended particulars of claim, the plaintiff made the following allegation in paragraph 10.5 in relation to these cessions:

“10.5 Plaintiff refers to the dates and places mentioned in the written cessions of claims, attached hereto, namely a cession by Schutte of the farm Narouga, Strydom of the farm Frisgewag and Bateman of the farm Bergpost. These three cessions are attached hereto marked annexure “C”, “D” and “E” respectively, at which time and place the neighbours in writing, ceded their right to their claim against the Defendant to the Plaintiff.”

61. To this allegation the defendant pleaded as follows:

“10.13. Wat die inhoud van paragraaf 10.5 betref, pleit die verweerder soos volg:

10.13.1. dit word erken dat aanhangsels gemerk “C”, “D” en “E” by die Besonderhede van Vordering aangeheg is maar dit word ontken dat die dokumente geldige en afdwingbare sessies daarstel;

10.13.2. dit word spesifiek ontken dat die eiser oor die nodige locus standi beskik om enige van die eise waarna verwys word in aanhangsels “C”, ”D” en “E” tot die Besonderhede van Vordering, af te dwing; en

10.13.3. die verweerder herhaal sy pleit uiteengesit in paragraaf 8.15.4 hierbo.”

62. The allegations made by the defendant in paragraph 8.15.4 of the plea included a denial that Schutte, Strydom and Bateman were the owners of their respective farms.

63. At the conclusion of the trial, the defendant argued that the plaintiff had failed to establish that the neighbours were owners of the farms referred to in the cessions, said that there was no proof of ownership by reference to any title deeds, and claimed that he was entitled to absolution in respect of those parts of the plaintiff’s claims.

64. The court a quo made short shrift of these submissions - in my view correctly so. During his evidence-in-chief, the plaintiff’s principal witness, Dr Kemp, referred to the ownership of the farms of Schutte, Strydom and Bateman. No objection was made to the evidence when given in chief nor was there any cross examination on the point. That, with respect, is the end of the matter in my view.

65. The plaintiff has adduced evidence on which it bears the onus and in the absence of any challenge thereto, the evidence becomes conclusive. Further, there was no attack upon the actual wording of the cession documents themselves - the only point raised by the defendant was in relation to the ownership issue set out above.

LATE AMENDEMENT OF PARTICULARS OF CLAIM

66. The plaintiff’s original particulars of claim did not contain allegations in each relevant paragraph that the defendant was liable on the basis of vicarious liability for Huma’s negligence. There was, however, an introductory paragraph early in the pleading which made it clear that this was the plaintiff’s case:

“4. On or about 14 September 2005 an employee of Defendant, known as Steven, whose further particulars are unknown to Plaintiff, while acting at all relevant times hereto within the course and scope of his employment by [sic] Defendant and in furthering Defendant’s business, started a fire on Elandsfontein ...”

67. However, later in the pleading the plaintiff alone was mentioned. For example:

1This, the court a quo was told, is the most serious level of warning and indicates that fire activity is extremely dangerous. Fire teams and equipment should be placed of full standby and at the first sign of smoke every possible measure should be taken to bring a fire under control.

2 1914 AD 382

3p 393

4 1927 AD 141 at p 147.

5 1945 AD 733

6 1950 (4) SA 610(A).

7Bezuidenhout NO v Eskom 2003 (3) SA 83 (SCA).

8p 90B

9 [2004] 1 All SA 221 (C)

10 1986 (1) SA 117 (A) at p 134D-E.

11At p 227, footnotes omitted.

122005(6) SA 419 (C C)

13“reeds onder beheer was”.

14 2001 (3) SA 1188 (SCA).

15p 12001-J.

16p 1201E-H.

17There was no suggestion of a lightning strike or spontaneous combustion.

18Commercial Union Assurance Co. Ltd v Wavmark N.0. 1995 (2) SA 73 (TkGD) at 76-77.