KRUGER V COETZEE
APPELLATE DIVISION
1966
This case provides the test for negligence which has been repeated in countless subsequent cases, including Sea Harvest
and Ngubane.
FACTS
In the early hours before dawn in the month of August the plaintiff’s husband was driving her car along a dark and
lonesome road. As he came over a rise he saw a horse emerging from the darkness on to the road. He braked hard and
managed to avoid the animal. Then a second horse appeared, dark of colour, walking across the road. There was a
collision and the car was damaged. This was in the year 1964. The plaintiff sued the owner of the horse for the damages,
alleging negligence on the grounds that he had left the gate of his farm open had allowed the horse to get out onto the
road. The magistrate dismissed the action, but on appeal the plaintiff was awarded compensation. Now the defendant
appeals.
REASONING OF HOLMES JA
‘For the purposes of liability culpa arises if—
(a) a diligens paterfamilias in the position of the defendant—
(i) would foresee the reasonable possibility of his conduct injuring another in his person or
property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.’
This has been constantly stated by this Court for some 50 years. Requirement (a)(ii) is sometimes overlooked. [It] always
depends on the particular circumstances of each case. No hard and fast basis can be laid down. Hence the futility, in
general, of seeking guidance from the facts and results of other cases.’ 1
[Condition (a)(i):] It is common cause that a reasonable person in the position of the defendant would have foreseen the
possibility of his horses straying through the open gate onto the road and causing damage to cars which might collide
into them. Indeed, the defendant admitted he was conscious of the possibility.
[Condition (a)(ii):] The defendant himself did not leave the gate open; it was the council’s employees, over whom he had
no control. Nevertheless, he let his horses graze on the field. A reasonable man would not do this without taking
precautionary steps, but the defendant did take steps, namely to repeatedly tell the authorities that their employees
were leaving the gate open. It is for the plaintiff to show that there were additional steps a reasonable man would’ve
taken. As to that, there is no evidence the defendant could’ve fenced off a different area, or grazed his horses elsewhere.
Nor was there evidence as to the costs of other possible measures. Therefore there was no negligence on the part of the
defendant.
OUTCOME
The appeal is allowed.
1
If an exam problem question requiring you to apply the test ever came up, you should probably say this. It is an important point
about the nature of the test (that it is applied de novo each time, unmediated by precedent) and one which Fagan gets a raging
boner for. (I have inside info.)
APPELLATE DIVISION
1966
This case provides the test for negligence which has been repeated in countless subsequent cases, including Sea Harvest
and Ngubane.
FACTS
In the early hours before dawn in the month of August the plaintiff’s husband was driving her car along a dark and
lonesome road. As he came over a rise he saw a horse emerging from the darkness on to the road. He braked hard and
managed to avoid the animal. Then a second horse appeared, dark of colour, walking across the road. There was a
collision and the car was damaged. This was in the year 1964. The plaintiff sued the owner of the horse for the damages,
alleging negligence on the grounds that he had left the gate of his farm open had allowed the horse to get out onto the
road. The magistrate dismissed the action, but on appeal the plaintiff was awarded compensation. Now the defendant
appeals.
REASONING OF HOLMES JA
‘For the purposes of liability culpa arises if—
(a) a diligens paterfamilias in the position of the defendant—
(i) would foresee the reasonable possibility of his conduct injuring another in his person or
property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.’
This has been constantly stated by this Court for some 50 years. Requirement (a)(ii) is sometimes overlooked. [It] always
depends on the particular circumstances of each case. No hard and fast basis can be laid down. Hence the futility, in
general, of seeking guidance from the facts and results of other cases.’ 1
[Condition (a)(i):] It is common cause that a reasonable person in the position of the defendant would have foreseen the
possibility of his horses straying through the open gate onto the road and causing damage to cars which might collide
into them. Indeed, the defendant admitted he was conscious of the possibility.
[Condition (a)(ii):] The defendant himself did not leave the gate open; it was the council’s employees, over whom he had
no control. Nevertheless, he let his horses graze on the field. A reasonable man would not do this without taking
precautionary steps, but the defendant did take steps, namely to repeatedly tell the authorities that their employees
were leaving the gate open. It is for the plaintiff to show that there were additional steps a reasonable man would’ve
taken. As to that, there is no evidence the defendant could’ve fenced off a different area, or grazed his horses elsewhere.
Nor was there evidence as to the costs of other possible measures. Therefore there was no negligence on the part of the
defendant.
OUTCOME
The appeal is allowed.
1
If an exam problem question requiring you to apply the test ever came up, you should probably say this. It is an important point
about the nature of the test (that it is applied de novo each time, unmediated by precedent) and one which Fagan gets a raging
boner for. (I have inside info.)
