[8]
The court a quo analysed the case against the appellant and concluded that he had granted permission to Albert to drive the vehicle on the day in
question. The correctness of this finding was debated at length before us on appeal. It was common cause that the appellant had submitted
a claim to the insurer of the vehicle under the public liability section of the policy in his favour. For the purpose of completing
the claim form the insurer’s representative, one Rossouw, had visited the appellant at his farm. There he filled in the required
details in accordance with information imparted to him by the appellant. The appellant signed the completed form. In addition, at
the request of Rossouw, he signed those divisions of the form which contained answers ostensibly furnished by him relating to the
driver of the vehicle and the description of the accident respectively. (It was not in dispute that that description was false due
to no fault of the appellant but because the five young people in and on the vehicle, excluding Benjamin, had concocted a version
designed to protect Albert which they only recanted shortly before the trial started.) According to the details on the form the name
of the driver was Albertus Johannes Wessels, scholar, born on 7 May 1985. This, the appellant admitted, was information that Rossouw
derived from him and was correct. So also the replies in relation to the driver’s telephone number, purpose for use of the
vehicle (‘privaat’), whether the driver was in his employ (‘nee – seun’), previous motor vehicle offences
(‘geen’), physical infirmities (‘geen’) and details of previous accidents (‘geen’).
[9]
However, between the questions about the use and the employment the following question appeared
on the form: ‘Het hy/sy met u toestemming bestuur?’ against which Rossouw wrote ‘Ja’. He testified that he
did so in accordance with an answer furnished by the appellant to a direct question put to him in conformity with that on the form.
Cross-examination by counsel for the appellant did not succeed in changing or materially weakening his testimony.
[10]
The appellant, by contrast, testified that Albert not only drove the vehicle on the Saturday without
his permission but also in despite of a standing instruction that he was not to use the vehicle without the appellant’s permission,
and in the face of an express prohibition against such use communicated by him to Albert on the Saturday morning. Therefore, the
appellant surmised, he must have misunderstood Rossouw’s question ‘Did the driver have your permission to drive the vehicle?’
as ‘Did Albert in fact drive the vehicle?’ or a question to that effect.
[11]
But, as the court found, such a misunderstanding was incomprehensible since, as the appellant well knew,
the earlier question and answer had unequivocally identified Albert as the driver and his reply left no sensible room for a repetition
shortly thereafter. The finding that the appellant’s explanation was unsatisfactory cannot be faulted. But counsel on appeal
attempted to persuade us that the totality of the evidence given by the appellant, his wife, and Albert about the standing instruction,
the evidence of the appellant and Albert concerning the former’s express ban and that given by Albert and his mother (and supported
by Albert’s friend Philip de Vos) concerning the express prohibition laid down by her, jointly or severally outweighed or at
least balanced the existence of the ‘admission’ in the claim form. Therefore, counsel submitted, the overall probabilities
negated both the likelihood and the accuracy of such an admission. This proposition requires a reconsideration of the evidence and
probabilities.
[12]
I consider first the value of the evidence of the appellant and his wife relating to the imposition of
their respective express prohibitions. It seems to me that the objective probabilities against both are strong.
1.
No express prohibition was pleaded. This silence is significant in context. The plaintiff had
alleged in his particulars of claim that before and at the time of the accident the defendant had the duty and right to control and
limit the manner in which Albert drove the vehicle in various ways, inter alia
‘8.4.1
Hy het die voertuig tot Albert Wessels se beskikking gestel terwyl hy bewus was van die feit dat Albert Wessels
nie oor ’n geldige rybewys beskik het nie, en passasiers op gemelde voertuig sou vervoer;
. . . .
8.4.3
Verweerder in bovermelde omstandighede Albert Wessels se beheer en toegang tot die voertuig moes beperk deur
hom te verbied om die voertuig te bestuur en sy toegang tot die voertuigsleutels te ontneem of te beperk.’
The appellant’s plea to these averments was as follows:
‘6.3
Behalwe om te erken dat Verweerder die reg gehad het om Albert die gebruik van die voertuig te verbied,
word iedere en elk van die bewerings in paragraaf 8.4 nadruklik ontken en word Eiser tot bewys van sodanige bewerings geplaas.’
2.
In cross-examination of Rossouw counsel put it to him that
‘indien dit nodig is sal hy sê dat sy begrip was nooit . . dat sy seun toestemming gehad het om te bestuur nie. Hy het geweet
sy seun het bestuur maar hy sê hy was nie eers daardie dag daar op die plaas gewees nie. Hy het eers daarna uitgevind van die
voorval. So hy het dit nooit in sy kop verstaan dat die seun toestemming het nie.’
This suggests that counsel had not been apprised of any express prohibition by the time he faced up to Rossouw.
3.
The appellant did not mention to Rossouw during the completion of the claim form that he had
forbidden Albert to drive the vehicle or that he required consent which had not been given.
4.
The evidence of the appellant and his wife was that Albert was an honest, reliable and obedient
son. There is no reason to doubt their veracity in this regard. It seems highly unlikely that he would deliberately have flouted
express instructions which either or both parents had only hours before impressed on him. While one may readily understand the bravado
which led him to perform the unfortunate stunt under the eyes of his peers, cynical disregard of respected authority is much less
explicable.
5.
The appellant allowed Bernice Bloem to drive the vehicle from her home to the appellant’s
farm, a distance of about fifteen kilometers, over public roads, although it must have been obvious to him that she did not possess
a licence (she was under age). He meanwhile travelled on the back of the truck with the boys. In this instance also, so egregious
a flouting of his parents’ authority is inconsistent with his known character.
6.
Albert could never seriously have believed that his use of the vehicle would not be revealed
to his parents as his teenage sister was left behind at home and was well aware of his comings and goings. (As may be seen from para
[6] above she had that same afternoon threatened to report Albert for drinking beer.) According to his evidence and that of his mother
he had expressly been ordered to remain at home in order to look after his sister in the absence of his parents and to study for
examinations. If that was the case his dereliction of duty would have invited prompt exposure.
7.
The appellant gave various reasons for his express prohibition. Neither singly nor cumulatively
are they persuasive given that he had allowed Albert to drive in the dark carrying passengers over the same roads on the preceding
evening and that his only means of ‘control’ had been contact over a mobile radio. According to the uncritical testimony
of his mother Albert had long been accustomed to driving on the roads in the area.
8.
If there existed a firm, clear and immutable standing rule governing the use of the vehicle
then an express prohibition served no purpose, given that neither parent had reason to think Albert would disobey the rule. The evidence
of his mother was
‘En so is dit aan hom seker honderd maal gesê die middag voor ons gery het, julle bly in die huis. Jy gaan nêrens.’
That too does not accord with long and materially unbroken observance of a standing instruction which neither parent believed he would
breach again.
[13]
The probabilities to which I have referred point towards consent. They strengthen the likelihood that
the appellant’s reply to Rossouw was correctly recorded. Seen as a whole the evidence provided a strong case in favour of actual
consent. Albert, as a witness, was less than convincing. He showed a marked propensity to fabricate where that suited his defence
on the aspect of the circumstances which gave rise to the incident and a willingness to cover up afterwards. All of this led the
trial court to be understandably disinclined to accept his say-so at face value. Mrs Wessels possessed a very material interest in
the outcome of the case and, for the reasons already traversed, her account of the instructions given to her son must be taken with
more than a pinch of salt. The trial judge did not attach much, if any, weight to the evidence of Philip de Vos and counsel did not
submit that we should do so. The appellant’s credibility, as I have pointed out, is open to serious question.
[14]
Weighing all these considerations I am satisfied that the respondent succeeded in establishing on a balance
of probability that Albert in fact possessed the appellant’s permission to use the vehicle on the afternoon of 2 March 2002.
Whether that consent was granted expressly one does not know; it was certainly the subject of an unspoken understanding between father
and son which was sufficient to overcome whatever limitation generally prevailed on such use.
[15]
That of course is not an end of the matter. The respondent had to prove that the appellant was negligent
in allowing Albert to drive the vehicle and such negligence was causally connected to the injuries suffered by Benjamin (see, eg,
De Beer v Sergeant 1976 (1) SA 246 (T) at 251D-G; Godfrey and Others v Campbell 1997 (1) SA 570 (C) at 577E-580I). Counsel for the appellant argued that both parents knew Albert to be a competent driver and that
the conduct which gave rise to the claim was not reasonably foreseeable by them in the circumstances. But the conclusion does not
follow from the premise. The performing of the stunt did not detract from Albert’s skill as a driver. Nor did it per se matter that he was, to the knowledge of the appellant, not in possession of a licence to drive on public roads. The appellant’s
negligence lay rather in giving unrestricted access to the vehicle to a boy who lacked both maturity and judgment in circumstances
where it should have been obvious that peer pressure might adversely influence his decisions in driving that vehicle. The conduct
of the appellant was, it seems to me, no different in principle from the case of a person who has control of a dangerous object (eg
a firearm, a motor vehicle or a bottle of poison) and gives such control into the hands of another whom he ought to know is ill-equipped,
by reason of physical or mental infirmity, lack of insight or self-control, to exercise proper or sufficient supervision over that
object to prevent harm being caused to himself or others. Such abandonment of control is culpable and the person who allows it is
liable for damage which results (within the confines of legal remoteness).
[16]
In the present instance the appellant admitted in cross-examination that he was aware that teenagers
are not always obedient, sometimes behave badly and take chances. Although he did not believe that his son would behave irresponsibly,
he conceded that he would not go so far as to say he thought that would never happen. It is notorious that when groups of teenage
boys (with or without girls) come together in circumstances where there is opportunity to show off or assert themselves, the potential
for overstepping the bounds of reasonable behaviour is present. Misuse of a motor vehicle by speeding or acting the daredevil is
an easily foreseeable hazard in such an environment. A prudent father would have taken the steps reasonably necessary to prevent
his son from falling into either the temptation or the danger, either by withholding consent or by securing the keys. The appellant
did neither.
[17]
I conclude therefore that the respondent succeeded in proving that the appellant negligently made his
vehicle available to his son in circumstances in which he ought reasonably to have foreseen that the boy might use it so as to cause
harm to himself or others. The damage which resulted was causally connected to his negligence. That was sufficient to impose personal
liability on the appellant.
[18]
The issue in the appeal was a matter of the most serious concern for the future welfare of the victim.
The employment of senior counsel was prudent in the circumstances.
[19]
The appeal is dismissed with costs including the costs of two counsel.
__________________
J A HEHER
JUDGE OF APPEAL
SCOTT JA
)Concur
VAN HEERDEN JA
)
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/cases/ZASCA/2007/108.html
.RTF of original document