Kruger v Coetzee 1966 (2) SA 428 (A) [3]
Facts
The plaintiff’s husband was driving a car. As he came over a rise her saw a horse emerge
from the darkness on to the road. He braked hard and managed to avoid the horse. However,
a second dark horse appeared, walking across the road. There was a collision and the car was
damaged. The plaintiff proceeded to sue the owner of the horse for damages.
Legal issue
Did the owner of the horses negligently cause harm to the plaintiff’s car?
Legal reasoning
The plaintiffs believes that the collision was caused as a result of the negligence of the horse
owner (by allowing his horse to be on a large public road, unattended or not under proper
control). She also averred as a ground of negligence that he allowed the gate that led to the
main road to be open and therefore could not exercise proper control over his animals.
On appeal, the court ruled that a reasonable man in the position of the defendant would have
realised that his horses might stray through the gate on to the main road and would have
taken steps to prevent this. However, the court did not indicate what steps would have been
reasonable.
The court set out the test for liability for culpa as - (a) a dilegens 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 guards against such occurrence and (b) the defendant failed to take such steps.
Whether a diligens paterfamilias in the position of the person concerned would take any
guarding steps at all and if so, what would be reasonable, always depend upon the particular
circumstances of each case. No hard and fast basis can be laid down - therefore it is futille to
seek guidance from the facts and results of other cases.
In the current case, it is common cause that a diligens paterfanmilias in the position of the
defendant would have foreseen the possibility of his horses straying through the open gate on
the main road and causing damage to motor cars which might collide with them. With regards
,to the duty to take reasonable steps to guard against such occurrence, these were the
defendant’s horses and it was he who was grazing them in the camp and although the gate
was being left open by persons over whom he had no control, he was aware of this fact and
continued to graze his horses there, conscious of the potential danger to motorists. A diligens
paterfamilias, if there were reasonable precautionary steps which could have been taken,
would have taken them. The defendant did take some steps (went twice to the council to
complain about their employees leaving the gate open and he went to those in authority at the
tunnel and made the same complaint). Hence, the question is whether the plaintiff (on whom
the onus rested) proved that there were further steps which he could and should reasonably
have taken. The plaintiff would have to prove that he failed in his duty of care and was
thereby negligent.
One is left in doubt as to whether there were other reasonable steps apart from him
complaining to the council and to the authority at tunnel (There is no evidence that an
alternative grazing camp was available to the defendant. One does not know what the
position was in regard to the remainder of the farm, or how many animals grazed in the camp,
There is no evidence as to the possibility or feasibility of the defendant fencing off a new
camp or a portion of the existing one, through which the road would not run, There was no
investigation of the possibility or cost of the defendant maintaining a team of herds or of
gatekeepers day and night, to prevent his animals going through this gate which other persons
carelessly and continually left open, As to the possibility of constructing a motor bypass with
a cattle grid at the scene of the gate, assuming that the A defendant, as distinct from the
Council, could have done this, there was no investigation as to the likely cost; and one is
unable to say whether it would have been reasonable to expect the defendant to undertake it).
Conclusion
Negligence was not proved and the magistrate rightly ordered absolution. The appeal
succeeded.
Remoteness -no negligence so that’s why they didn’t look at remoteness. Can prove one factor not
there for no negligence.
, Ngubane v SATS 1991 (1) SA 756 (A) [16]
Facts
The appellant made daily use of the passenger rail service, owned and administered by the
respondent to travel from home to his place of employment and back. However, one morning
he sustained a spinal fracture resulting in permanent partial paralysis. This was as a result of
him boarding a coach which was crowded (particularly in the vicinity of the doorway through
which he and others entered). The coach was so crowded that he was obliged to be close to
the doorway. On entering he stood with his back to the opposite doorway which he noticed
was open although it was not on the platform side. As he was securing himself people were
pushing their way to get out and others were pushing in. At this point the train started with a
jerk and continued moving forwards. Those passengers near the doorway who still wished to
disembark or were in the act of doing so started screaming and pushing past and against him.
The passengers pushing as they alighted caused him to lose his overhead hold. He fell
backwards out of the open doorway of the coach and rolled onto his side. As a result, he
sought to claim damages, alleging that negligence on the part of the respondent or its servants
or both caused his injuries. The court a quo dismissed the claim on the ground that the
appellant failed to prove that the respondent or its servants had acted negligently (no fault).
Leave to appeal was granted
Legal issue
Is the respondent liable to the plaintiff for the injuries suffered (did the respondent act
negligently in causing the plaintiff’s injuries)?
Legal reasoning
The court expressly refers to the test established in Kruger v Coetzee namely that 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. The court is of the opinion that reasonable steps are not necessarily those
which would ensure that foreseeable harm of any kind does not in any circumstances
Facts
The plaintiff’s husband was driving a car. As he came over a rise her saw a horse emerge
from the darkness on to the road. He braked hard and managed to avoid the horse. However,
a second dark horse appeared, walking across the road. There was a collision and the car was
damaged. The plaintiff proceeded to sue the owner of the horse for damages.
Legal issue
Did the owner of the horses negligently cause harm to the plaintiff’s car?
Legal reasoning
The plaintiffs believes that the collision was caused as a result of the negligence of the horse
owner (by allowing his horse to be on a large public road, unattended or not under proper
control). She also averred as a ground of negligence that he allowed the gate that led to the
main road to be open and therefore could not exercise proper control over his animals.
On appeal, the court ruled that a reasonable man in the position of the defendant would have
realised that his horses might stray through the gate on to the main road and would have
taken steps to prevent this. However, the court did not indicate what steps would have been
reasonable.
The court set out the test for liability for culpa as - (a) a dilegens 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 guards against such occurrence and (b) the defendant failed to take such steps.
Whether a diligens paterfamilias in the position of the person concerned would take any
guarding steps at all and if so, what would be reasonable, always depend upon the particular
circumstances of each case. No hard and fast basis can be laid down - therefore it is futille to
seek guidance from the facts and results of other cases.
In the current case, it is common cause that a diligens paterfanmilias in the position of the
defendant would have foreseen the possibility of his horses straying through the open gate on
the main road and causing damage to motor cars which might collide with them. With regards
,to the duty to take reasonable steps to guard against such occurrence, these were the
defendant’s horses and it was he who was grazing them in the camp and although the gate
was being left open by persons over whom he had no control, he was aware of this fact and
continued to graze his horses there, conscious of the potential danger to motorists. A diligens
paterfamilias, if there were reasonable precautionary steps which could have been taken,
would have taken them. The defendant did take some steps (went twice to the council to
complain about their employees leaving the gate open and he went to those in authority at the
tunnel and made the same complaint). Hence, the question is whether the plaintiff (on whom
the onus rested) proved that there were further steps which he could and should reasonably
have taken. The plaintiff would have to prove that he failed in his duty of care and was
thereby negligent.
One is left in doubt as to whether there were other reasonable steps apart from him
complaining to the council and to the authority at tunnel (There is no evidence that an
alternative grazing camp was available to the defendant. One does not know what the
position was in regard to the remainder of the farm, or how many animals grazed in the camp,
There is no evidence as to the possibility or feasibility of the defendant fencing off a new
camp or a portion of the existing one, through which the road would not run, There was no
investigation of the possibility or cost of the defendant maintaining a team of herds or of
gatekeepers day and night, to prevent his animals going through this gate which other persons
carelessly and continually left open, As to the possibility of constructing a motor bypass with
a cattle grid at the scene of the gate, assuming that the A defendant, as distinct from the
Council, could have done this, there was no investigation as to the likely cost; and one is
unable to say whether it would have been reasonable to expect the defendant to undertake it).
Conclusion
Negligence was not proved and the magistrate rightly ordered absolution. The appeal
succeeded.
Remoteness -no negligence so that’s why they didn’t look at remoteness. Can prove one factor not
there for no negligence.
, Ngubane v SATS 1991 (1) SA 756 (A) [16]
Facts
The appellant made daily use of the passenger rail service, owned and administered by the
respondent to travel from home to his place of employment and back. However, one morning
he sustained a spinal fracture resulting in permanent partial paralysis. This was as a result of
him boarding a coach which was crowded (particularly in the vicinity of the doorway through
which he and others entered). The coach was so crowded that he was obliged to be close to
the doorway. On entering he stood with his back to the opposite doorway which he noticed
was open although it was not on the platform side. As he was securing himself people were
pushing their way to get out and others were pushing in. At this point the train started with a
jerk and continued moving forwards. Those passengers near the doorway who still wished to
disembark or were in the act of doing so started screaming and pushing past and against him.
The passengers pushing as they alighted caused him to lose his overhead hold. He fell
backwards out of the open doorway of the coach and rolled onto his side. As a result, he
sought to claim damages, alleging that negligence on the part of the respondent or its servants
or both caused his injuries. The court a quo dismissed the claim on the ground that the
appellant failed to prove that the respondent or its servants had acted negligently (no fault).
Leave to appeal was granted
Legal issue
Is the respondent liable to the plaintiff for the injuries suffered (did the respondent act
negligently in causing the plaintiff’s injuries)?
Legal reasoning
The court expressly refers to the test established in Kruger v Coetzee namely that 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. The court is of the opinion that reasonable steps are not necessarily those
which would ensure that foreseeable harm of any kind does not in any circumstances
