ROOS v AA MUTUAL INSURANCE ASSOCIATION LTD 1974 (4) SA 295 (C)

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1 ROOS v AA MUTUAL INSURANCE ASSOCIATION LTD 1974 (4) SA 295 (C) 1974 (4) SA p295 Citation 1974 (4) SA 295 (C) Court Cape Provincial Division Judge van Winsen J Heard May 29, 1974; May 30, 1974 Judgment July 30, 1974 Annotations Link to Case Annotations Flynote : Sleutelwoorde Insurance - Motor Vehicle Insurance Act, 29 of Secs. 1, 11 (1) - Liability arising out of driving of insured motor vehicle - "Driving." - Meaning of - "Motor vehicle." - What included - Insured tractor towing a grass-cutter ejecting stones and injuring a passer by - Such injury arising out of driving of tractor - Negligence - What constitutes - Driver of tractor towing a grass-cutter which ejected stones - Duty to warn passers by - Duty to clear plot of hard objects before commencing to cut the grass. Headnote : Kopnota Plaintiff, as the guardian of his wife, claimed damages from the defendant, the insurer of a tractor, for injuries sustained by his wife to her hand when it was struck by a stone ejected from a grass-cutter being operated by the driver of the tractor as she was passing by in the street outside. The tractor was geared to the cutter and its cutting flails were operated via the gears by the engine of the tractor. The speed of the engine determined the speed of the flails, and the plaintiff contended that while the tractor and cutter were in operation they constituted a single integrated motor vehicle, whereas the defendant contended that the cutter and the tractor were separate entities and that the driver of the tractor, whilst the cutter was being worked off it, was notionally acting in two separate capacities, i.e. as driver of the tractor and as driver of the cutter, which latter was not insured with the defendant. Plaintiff led evidence as to negligence but no evidence was submitted on behalf of the defendant. Held, since the cutter was not a motor vehicle as defined in Act 29 of 1942, and, having regard to the fact that this cutter was both drawn by and worked off the insured vehicle, that an injury caused by any object ejected by the cutter arose out of the driving of the insured vehicle. Held, further, applying the doctrine of res ipsa loquitur, that the driver of the tractor had been negligent in not warning the public to keep away from the vicinity, and in not, or not adequately, clearing the plot being cut of hard objects. Case Information Action for damages. Facts not material to this report have been omitted. J. R. D. Young, for the plaintiff. E. L. King, for the defendant.

2 Cur. adv. vult. Postea (July 30). Judgment VAN WINSEN, J.: Plaintiff sues in his capacity as the guardian of his wife and in his capacity as the administrator of their joint estate. He claims in his former capacity the sum of R4 000, being for pain, suffering and shock, disability, disfigurement and loss of amenities suffered by his wife resulting from an injury inflicted upon her by reason of the alleged negligent operation of a grass-cutter while attached to a tractor insured by defendant in terms of Act 29 of In his latter capacity he claims R120,20 for medical and hospital expenses to which the joint estate was put as a result of the aforesaid injury to his wife. The particulars 1974 (4) SA p296 of claim aver that while plaintiff's wife was on 31 October 1969 walking on the pavement in Ryan Street, Parow, a grass-cutter was being operated on a plot of land abutting on Ryan Street and the cutter forcibly ejected a stone or like object which struck her on the left hand causing serious injury to one of her fingers. Plaintiff attributes this happening to the fact that this cutter was being negligently operated. The negligence is alleged to lie therein that no adequate measures to protect passers-by were taken by the operator of the cutter or its owner, that stones had not been removed from the land before the cutter was put into operation, and that no adequate safety device had been fitted to the cutter to prevent the ejection of stones or similar objects. On defendant's behalf the allegations of negligence on the part of the operator or owner of the cutter are denied. Defendant denied that any injury resulting from the operation of the grass-cutter while being pulled by the tractor - which it is admitted was insured by defendant - was either caused by or arose out of the driving of the tractor. The parties agreed that the damages suffered by plaintiff in both capacities amounted in all to R The issues left for decision were accordingly whether there was any causal connection between the operation of the cutter being pulled by the tractor and the injury to plaintiff's wife; if so, whether the liability to compensate plaintiff for damage resulting from such injury lay upon defendant. The evidence disclosed the following position. [The learned Judge then analysed Mrs. Roos's evidence and continued.] Plaintiff called a Mr. Dereck Opperman, a qualified mechanic, who is employed by the Parow Municipality in charge of the maintenance work of the Municipality's mowing machinery such as handmowers, cutters and bush cutters. He stated that he had viewed the tractor and cutter used on the occasion in question. It was intended for heavy work, bush cutting, not grass cutting. He produced photographs of another tractor-cutter combination which he stated worked on the same principle as the one in question. [The learned Judge further analysed his evidence and continued with it.] In view of the fact that the flaps were not 100 per cent effective in preventing the ejectment of stones or other objects he stated that further precautions had to be taken in connection with the operation of these machines. These were that before the cutter was put into operation all rubble in the form of stones, bottles and other hard objects

3 should be cleared from the site on which the cutter is to operate and in addition the public should be kept away from the vicinity in which the machine was operated. He illustrated the danger which could result even from the use of a properly maintained and operated cutter with reference to an incident he had seen in Parow where one of the Municipality's cutters had ejected a stone for a distance of 150 ft., the stone hitting the bumper of a car standing in the street causing damage to the bumper as well as to that part of the body of the car on to which the stone had been diverted by the bumper (4) SA p297 I turn then to consider the first of the issues referred to above, viz., whether there is any causal connection between the operation of the cutter and the injury to plaintiff's wife. [The learned Judge dealt with the evidence on this aspect and concluded.] Having regard to all these factors I have little doubt that on a balance of probability Mrs. Roos's hand was in fact damaged by a hard object, probably a stone, thrown out from the back of the cutter. The next question concerns defendant's liability for plaintiff's claim to be compensated for the injury suffered by his wife. Defendant's liability, if any, stems from the terms of Act 29 of Sec. 11 (1) of that Act as far as it is relevant provides: "11. Liability arising from insurance under this Act. (1) A registered company which has insured or is deemed to have insured a motor vehicle in terms of sec. 3 or 5 shall be obliged to compensate any person whatsoever (in this section called the third party) for any loss or dama e which the third party has suffered as a result of - (a) (b) any bodily injury to himself; the death of or any bodily injury to any person, in either case caused by or arising out of the driving of the insured motor vehicle by any person whatsoever at any place in the Republic during the period over which the insurance extends, if the injury or death is due to the negligence or other unlawful act of the person who drove the motor vehicle (hereinafter in this section called the driver) or of the owner of the motor vehicle or his servant in the execution of his duty." Sec. 1 defines a "motor vehicle" in the following terms: "'motor vehicle' means any vehicle designed or adapted for propulsion or haulage on a road by means of any power (not being exclusively human or animal power) without the aid of rails, and includes any trailer of such a vehicle, but does not include...". Sec. 1 also provides that a "trailer" does not include an agricultural implement not designed or adapted for the conveyance of persons or goods. Defendant's liability for the damage suffered by plaintiff as a result of bodily injury to his wife depends upon proof: (a) that the bodily injury was caused by or arose out of the driving of the insured vehicle, the tractor, and (b) that the injury was due to the negligence or other unlawful act of the driver of

4 the insured vehicle or the owner thereof or his servant (see, e.g., Wells and Another v Shield Insurance Co. Ltd. and Others, 1965 (2) SA 865 (C) at pp It is common cause that while the tractor was insured by defendant at the relevant time, the cutter was not. The defendant avers in its plea that the cutter is not a motor vehicle or a trailer and is not insurable under the Act. This was not controverted by plaintiff and it would seem that the averment is well founded. In the light of the judgment in Mathie v Yorkshire Insurance Co. Ltd., 1954 (4) SA 731 (AD), the cutter, not having its own motor power, could not be said to be designed for propulsion on a road. Moreover it cannot in the light of the amended definition of "motor vehicle" introduced by sec. 1 of Act 31 of 1959 be said to be a trailer. It is not designed or adapted for haulage on a road, nor is it designed or adapted for the conveyance of persons or goods. In view of the remarks of POTGIETER, J.A., in Santam Versekeringsmaatskappy Bpk. v Kemp, 1971 (3) SA 305 (AD) at pp and more particularly at p. 322G - H, the absence of this latter quality alone would exclude a cutter from falling under the definition of a "motor vehicle" (4) SA p298 The problem posed during the argument of the case was whether the cutter, while it is being worked off the tractor, is to be treated as an integral part thereof. I use the phrase "worked off the tractor" advisedly since the cutter is not merely towed by the tractor. The latter is geared to the cutter and its cutting flails are operated via the gears by the engine of the tractor. The speed of the tractor engine determines the speed of the flails. Mr. Young, for the plaintiff, relying upon such cases as Hunt, Leuchars & Hepburn Ltd. v S.A. Fire & Accident Insurance Co. Ltd., 1966 (3) SA 773 (W), Appel v Sun Insurance Office Ltd and Another, 1967 (1) SA 96 (E), and Kemp v Santam Versekeringsmaatskappy Bpk., 1970 (3) SA 332 (C), contended for the view that while the tractor and cutter were in operation they constituted a single integrated motor vehicle. Mr. King advanced the view that the cutter and the tractor were separate entities and that the driver of the tractor, driving it while the cutter was being worked off the tractor, was notionally acting in two separate capacities, i.e. as driver of the tractor and as driver of the cutter. For this proposition he sought support in the majority judgment in the Appeal Court in Kemp's case, supra. If of course the cutter could rightly be treated as a separate entity being driven by the driver of the tractor, then, in view of the fact that it was the cutter and not the tractor which ejected the object occasioning injury to plaintiff's wife, it may well be that plaintiff could not recover from defendant, who had not insured the cutter. It must be accepted in the light of the majority opinion in the Appeal Court in Kemp's case, supra, that, had the cutter conformed to the definition of "motor vehicle" it would have had to be treated as a separate entity. The cutter, however, does not fall under the definition of a "motor vehicle", and the question is whether, as Mr. King urged me to do, this Court should nevertheless apply the line of reasoning in Kemp's case to the tractor and cutter in question and hold that the cutter must be treated as a separate entity from the tractor. It is to be noted that in all the cases quoted above, Hunt's, Appel's and Kemp's cases, the Courts were dealing with a non-self-propelled vehicle in the nature of a trailer which, on its own, was comprehended within the definition of a "motor vehicle". The problem facing the Courts was to decide where liability lay when this vehicle, while coupled to and drawn by another vehicle (also falling under the definition of a "motor vehicle")

5 occasioned bodily injury to a third party. In each case this liability was determined with reference to what each Court considered to be the correct interpretation of the terms of the definition of "motor vehicle" in Act 29 of This was also the case in both the majority, and the minority judgments in the Appeal Court in Kemp's case. The concept that a non-self-propelled vehicle can be regarded as having a driver when it is being drawn by another vehicle stems directly from the fact that the former vehicle falls under the definition of a "motor vehicle". POTGIETER, J.A., says at p. 324: "Die oorwegings waarop die geleerde Regter in Mathie se saak gesteun het, was gegrond in die lig van die Wet soos dit destyds gestaan het. Die prent is 1974 (4) SA p299 egter verander deur die wysiging wat in 1959 aangebring is. As gevolg van daardie wysiging is 'n voertuig wat getrek word, en dus ook 'n sleepwa, 'n motorvoertuig; dit is ook afsonderlik versekerbaar. Daaruit moet volg, juis vanweë bepalings soos arts. 11 en 19, dat dit bestuur moet kan word en dus geag word 'n bestuurder te hê wanneer dit getrek word." I am of opinion, therefore, that, when seeking an answer to what is, on this branch of the case, the real enquiry, viz., has plaintiff proved that the injury to his wife was caused by or arose out of the driving of the tractor, the Court is not bound to proceed on the basis that the driver of the tractor was, at the time the injury was inflicted, driving the cutter. Mr. King argues that by analogy of reasoning to that adopted by the majority of the Appeal Court in Kemp's case I should none the less hold that the tractor-driver was at that time driving the cutter and that accordingly defendant, not having insured the latter vehicle, is not liable. He points out that a failure to do so would mean that the insurer of the tractor would be liable for the condition of a cutter which he neither insures nor can insure. He argues that if the cutter is not to be treated as a separate entity any injury, however caused, while the cutter is in motion coupled to the tractor, would involve the company that insures the tractor in liability. Finally he pointed out that the connection between the driving of the tractor and the throwing out of the object that hit Mrs. Roos is too remote to fall within the meaning of the words of the Act, i.e. "caused by" or "arising out of". He referred the Court to the case of Petersen v Santam Insurance Co. Ltd., 1961 (1) SA 205 (C), in support of this latter contention. In that case the plaintiff was seated on a vehicle similar to a tractor to which was attached a mechanical shovel or tip-back bucket. The tractor both hauled and operated the shovel and was described by the Court as a compound one. The shovel could be operated while the tractor was stationary or in motion. While the vehicle was moved from place to place the tip-bucket is raised by the operation of the engine of the tractor. While the tip-bucket was being raised the plaintiff's leg was caught by the arm of the lifting mechanism and severely injured. VAN HEERDEN, A.J., held that the driver of the tractor in operating the mechanism for raising the tip-bucket was not driving the vehicle and the injury to plaintiff was not caused by nor did it arise out of the driving of the vehicle and that consequently the insurer of the vehicle was not liable to compensate the plaintiff. It needs to be emphasised that this branch of the enquiry is concerned with the physical causal relationship between the driving of the insured motor vehicle and the injury sustained by Mrs. Roos. The responsibility of defendant for such injury on the other hand turns upon the culpability of the driver or owner or his servant. It is quite clearly incorrect to say that if the cutter is not treated as a separate entity any injury occasioned by the cutter while being drawn by the tractor would involve defendant in liability. Liability for injury found to be caused by or arising out of the driving of the tractor must depend upon proof of negligence upon the part of the driver or owner of the

6 tractor. Similarly I find Mr. King's argument, viz. that the connection between the driving of the tractor and the ejection of the object occasioning the injury by the cutter is too remote to bring the occurrence within the meaning of the words "arising out of", to be an unconvincing one. This is more 1974 (4) SA p300 especially so in the light of the fact that the evidence discloses that the tractor not only draws the cutter but that the engine of the tractor is responsible for the operation of the cutter and that the speed of the tractor's engine is in direct ratio to the speed with which the flails revolve. It is not unwarranted to assume that the greater the speed at which the flails revolve the greater will be the velocity imparted to such objects as may be ejected from the back of the cutter. It is only necessary to state these facts for it to become apparent that the circumstances of this case are, on the facts, clearly distinguishable from those in Petersen's case, supra. It is true, as contended by Mr. King, that an insurance company could be held liable for an injury which is caused by a defect in a cutter which it did not and could not insure. As I have already said this consideration is not germane to an enquiry directed to causality but, in any event, an insurance company must be taken to be aware of the fact that a tractor, constructed as is the one in question, is adapted to operating a cutter and indeed to hauling other vehicles which may or may not fall under the definition of a "motor vehicle". That being so, it is not unreasonable to assume that a company accepts a calculable risk that the insured tractor may be used to haul or operate another vehicle under circumstances where the company could not avail itself of the defence founded on the Appeal Court judgments in Kemp's case to the effect that the drawn vehicle is a separate motor vehicle notionally separately driven by the driver of the vehicle towing it. Concluding, as I do, that, since the cutter is not a motor vehicle as defined in Act 29 of 1942, the reasoning in Kemp's case is not applicable to the branch of the enquiry presently under discussion and, having regard to the fact that this cutter is both drawn by and worked off the insured vehicle, I find that an injury caused by an object ejected by the cutter while in operation as aforesaid can be said to arise out of the driving of the insured vehicle. I might add that this conclusion finds support in the observations of JANSEN, J.A., in the course of his judgment in the Kemp case at p. 332 (last sentence to p. 333 (top) and at p. 334A - B). I proceed then to consider whether the injury to Mrs. Roos has been proved to be due to the negligence of the driver of the tractor in question or the owner thereof or his servant. There is no evidence as to who the owner of the tractor is, nor does the evidence indicate whether its driver was a servant of the owner. Accordingly the only person whose negligence, if any, is in issue is that of the driver. Mr. King submits that plaintiff failed to produce any evidence to show that the driver of the tractor was negligent in his operation of the tractor and cutter or that the cutter was deficient either as to the setting of its flails or in respect to the protective device fitted to it, viz. the flap at the back of the cutter. He also contended that there was no evidence that the plot on which the cutting was taking place had not been cleared of stones. In regard to the question of whether adequate warning to the public had been given he claimed that this was not a ground of negligence relied upon in the pleadings. The grounds of negligence relied upon in the pleadings are set out in para. 6 of the particulars of claim as follows:

7 1974 (4) SA p301 "(a) Cutting or authorising the cutting of grass in the vicinity of a public thoroughfare without taking any or adequate precaution against injury to passers-by from stones or other objects thrown up by the tractor and/or the grass cutter; (b) (c) (d) Neglecting to remove or cause to be removed stones and other objects from the ground before commencing operations; Driving the said motor vehicle at an excessive speed and/or in a dangerous manner having regard to the nature of the ground and the proximity of the street; Using a grass cutter without an adequate safety device for the protection of those in the vicinity of the machine when being operated." I am of opinion that ground (a) is sufficiently wide to comprehend the issue as to whether or not the public should have been and was warned of the danger of the ejection of stones or other objects in the vicinity of where the cutter was operated. From Mrs. Roos's evidence it would appear that her decision to cross to the other side of the street was taken on her own initiative and not as a result of any warning she received. Apart from workmen on the plot she saw only some children watching the operation of the cutter in the vicinity of the plot where it was working. The inference from her evidence is clearly to the effect that no one had been assigned to warn the public to keep away from the vicinity where the cutter was working. As to ground (b) it would appear that the plot had not been, or not been adequately, cleared of hard objects since she heard such objects striking the sides of the cutter as it was operating. As to ground (c) there is no evidence that the tractor and cutter were proceeding at a dangerous speed or being driven in a dangerous manner. As to ground (d) there was evidence that the cutter was fitted at the rear with a flap but the evidence of Opperman was to the effect that it was of light construction which makes it less effective as a protective device than would have been the case had it been constructed of heavier material. In any event it is clear from his evidence that any device in the nature of flaps could not be relied upon in the circumstances described by him to produce 100 per cent protection against the ejectment of stones or hard objects. It is to be noted that defendant submitted no evidence at all as to how the accident happened or as to the circumstances under which the tractor and cutter were operated. Clearly there is no obligation upon a defendant to do so unless an inference of negligence arises either from the evidence adduced by the plaintiff or from the fact that the mere occurrence of the event giving rise to the injury speaks for itself or from a combination of both these factors. In this latter event an explanation would be called for from the defendant in the absence of which a Court may conclude that plaintiff had discharged the onus of proving negligence on the part of the tractor driver. In my view the evidence of Mrs. Roos and Opperman alluded to above, as well as the happening of the event itself, i.e. the ejection of the stone or hard object by the cutter, raise a prima facie case of negligence on the part of the driver who drove the insured vehicle (4) SA p302 The occurrence is one which in the ordinary course of events does not happen if the

8 person or persons responsible for the operation of the cutter exercise proper care. This seems pre-eminently to be a case where the occurrence tells its own story. It may very well be an imperfect story in the sense that it is incomplete and that, if completed, the Court would conclude that the inference of negligence cannot justifiably be drawn. In the present instance the story has not been completed but plaintiff has in my view placed sufficient evidence on record to call for an explanation on the part of the defendant. See Arthur v Bezuidenhout & Mieny, 1962 (2) SA 566 (AD) at pp The present case is an example of the application of the doctrine of res ipsa loquitur in the sense described in the Appellate Division judgment in the case of Groenewald v Conradie. Groenewald en Andere v Auto Protection Insurance Co. Ltd., 1965 (1) SA 184 at p. 187, as being its true sense, i.e. dummodo una solaque sit. Here there was no evidence at all submitted by defendant as to how the cutter was used and what precautions, if any, were adopted in order to avoid the ejection by the cutter of stones or hard objects. The question is whether, taking into consideration the absence of any explanation on the part of defendant, the Court in the circumstances of this case can rightly conclude that a prima facie inference of negligence has ripened into proof on a balance of probabilities of negligence on the part of the tractor driver. In the light of the evidence that the provision of a flap or flaps at the rear of the cutter do not in all circumstances prevent the ejection by the cutter of stones or similar objects it seems to me that for the driver of the tractor to operate the cutter over ground which had not been cleared of such objects would constitute negligence on his part. Assuming an attempt had been made to clear the plot preparatory to operating the cutter it would appear from Mrs. Roos's evidence that the clearing was not properly done. Again, assuming in defendant's favour that the clearing had been undertaken with the degree of thoroughness required of a reasonable man but that some hard objects nevertheless could reasonably be expected not to be found, then it is all the more incumbent upon the driver to take adequate steps to warn the public of the danger of being in the vicinity of the cutter while in operation. A failure to do so would in my view constitute negligence. It can be inferred from Mrs. Roos's evidence that this precaution was not taken. I conclude therefore in the light of the aforegoing that plaintiff has discharged the onus of proving that his wife's injury was due to the negligence of the driver of the tractor. There will accordingly be judgment for plaintiff in the agreed sum of R1 750 with costs, these costs to include the qualifying expenses of Dr. Butler. Plaintiff's Attorneys: Israel, Hotz & Weinstein. Defendant's Attorneys: Findlay & Tait.