Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No: A605/09 (CPD Case No: 630/07)

In the matter between:

and

JUDGMENT: FRIDAY, 04 NOVEMBER 2011

DESAI J

[1] This matter comes before us with the leave of the Supreme Court of Appeal. It is, in effect, an appeal against the finding by Maqubela AJ that the motor accident which underpins this action was caused solely by the negligence of second appellant and that the first appellant was vicariously liable for the delict of the second appellant.

[3] At some stage the respondent entered the vehicle. On her version she got into the vehicle and sat down on one of the seats at the rear end of the vehicle. The vehicle started moving backwards, first slowly and then more rapidly. The appellants' version is that the respondent was inside the vehicle for about fifteen minutes moving around and looking for something when the vehicle started moving backwards. In any event it is common cause that the vehicle rolled backwards with the respondent still inside and eventually landed on the roof of a house.
[4] The respondent was injured in the said accident. As a consequence thereof she sued the appellants for damages in an amount in excess of R8 million. The parties agreed to separate the merits and quantum of respondent's claim and the matter proceeded before the trial court only with regard to its merits.

[5] The respondent sought to hold the first appellant vicariously liable for the damages on the basis that at the time of the accident the second appellant was acting within the course and scope of his duties with the first appellant. This was denied by the appellants who contended that the first appellant could not be liable as alleged as the second appellant had been employed as an independent contractor. I shall revert to this aspect in due course.

[6] The respondent, the owner of first appellant, one Robert McClelland, the second appellant and the expert witnesses called by the respective parties, all testified at the trial.

[8] The respondent's evidence is susceptible to some criticism as Mr Potgieter has correctly pointed out but it appears that there are only two material aspects upon which the respondent and the appellants differ. Both Mr McClelland and second appellant contended that the respondent was in the parked vehicle for about fifteen minutes before it started moving backwards. This was denied by the respondent. Secondly, they differ as to precisely where the vehicle was parked before it started rolling. These differences are not of any real significance in the resolution of this matter.

[9] It is apparent from the photographs handed up in evidence that the driveway is on a steep incline. On second appellant's version the precise spot where the vehicle was parked is on an incline of at least six degrees. The respondent contended that the vehicle was parked at a spot further down where the incline was greater. The difference, if such, was not material in that second appellant parked the vehicle on a steep incline which led to a steep and possibly dangerous driveway.

[10] The trial court concluded that in the aforementioned circumstances it was incumbent upon the second appellant to secure the vehicle by way of applying the handbrake and engaging the gear lever. This finding cannot be faulted.

[11] The vehicle was parked at a place which respondent's expert conceded was a safe parking area. It had been safely parked at or near the same spot on several earlier occasions. If second appellant had engaged the handbrake, it would have been sufficient to secure a fully loaded combi - this one only had some cooler boxes in it and, of course, at a later stage the respondent - parked at an incline twice as steep (twelve degrees) provided that the handbrake was fully functional.

[12] Mr Potgieter argued that the combi's handbrake, although properly engaged, may not have been functioning properly. This was pure conjecture on his part. There was no evidence whatsoever to that effect. Moreover, it was apparent that the vehicle had been serviced some weeks before the accident and there was nothing to suggest that there was anything wrong with the brakes of the vehicle when it was serviced.

[13] Second appellant's testimony with regard to whether he engaged the vehicle's handbrake that day is not entirely satisfactory. He does not recall specifically pulling up the handbrake or putting the combi in gear. All he can say is that he always engaged the handbrake and put the combi in gear when he parked at that spot and that he had done so many times before. The effect of what he says is that he recognises the need to put the vehicle into gear under such circumstances but in this instance he cannot remember doing so.

[14] Mr Potgieter submitted that "some combination of factors" set in motion by the respondent's entry into the combi, and moving around in it, caused the combi to roll down the incline after it had been safely parked by the second appellant. This submission does not explain why a properly secured combi would have started rolling backwards.
[15] Mr Potgieter also suggested that it was possible that the respondent could have pushed against and engaged the gear lever causing it to disengage. As Mr N van der Walt SC, who appeared before us on behalf of the respondent, has pointed out, it was not put to the respondent that she had interfered with the gear lever or the handbrake. She did not have the opportunity to deal with this proposition. In any event, the evidence of the experts was to the effect that the handbrake could not be released accidentally. It must be mechanically lifted for the button to be disengaged. Accidentally disengaging the handbrake was accordingly not a real possibility.

[16] At best for the appellants there is no explanation for the vehicle running or rolling down the incline. However, it is more likely that the handbrake was not properly secured and the vehicle was not placed in gear. The respondent's expert witness, Mr Barry Grobbelaar, expressed the view that on the second appellant's version the handbrake could not have been properly secured. The appellants' expert, Professor Tom Dreyer, did not express any contrary view in this regard. He simply did not deal with this aspect of Grobbelaar's testimony.

[19] In the circumstances, the probabilities are overwhelming that second appellant did not put the vehicle into gear and that the handbrake started slipping. This is the most probable inference and there was no evidential basis upon which the trial court could come to any different conclusion.

[26] The trial court's finding in this regard should accordingly be upheld.

[28] The test traditionally used by our courts to identify a contract of employment was the so-called "control test" according to which the employee worked under the control of another who told him or her what to do and "how" and "when" to do so. This is no longer an indispensable requirement for the existence of a contract of service. It remains, however, an important indicator of the nature of the contract between the parties.

[29] In this instance it is apparent from the evidence that the second appellant considered McClelland to be his boss. In the accident report form he indicated that "the vehicle fell on his boss's house". He in fact considered McClelland to be his boss for most of the summer season. If he needed anything, he would phone McClelland and McClelland would phone him from time to time to find out how the shoot was progressing. The second appellant would also phone McClelland for instructions and if there were differences he would accept McClelland's point of view. This was hardly the conduct of a sub-contractor.

[30] The claim form indicates that he was employed by the first appellant and was driving the vehicle with the owner's permission. That is how they understood their relationship to be prior to the issue of summons in these proceedings.

[31] It is correct that the second appellant was not in the permanent employ of first appellant. He was employed by the first appellant as a production manager for this particular "photo shoot" which was to last about two weeks and he was to be paid a fixed amount. Although there was an agreed schedule, second appellant could deviate from it if instructed to do so by the client.

[32] Whatever the latitude given to the second appellant to adjust the schedule of work, the nature of the contract concluded by them is of greater importance. It was a service contract with second appellant at all times operating according to McClelland's instructions and McClelland in turn acting on behalf of the first appellant. The second appellant's discretion was no different from that of any other employee. McClelland was in contact with second appellant on a daily basis during shoots and would occasionally go to the shoots. Quite patently second appellant acted on the instructions of McClelland and discussed problems with him.

[33] There are several indications that second appellant was an employee rather than an entrepreneur. This is an aspect of "the dominant impression test" which Mr Potgieter referred to.

[33.1] Second appellant did not use his own vehicle to transport the Germans. First appellant hired the vehicle from a third party and paid for such hire. It is also apparent from the accounts that the petrol for the vehicle was paid for by the first appellant.

[33.2] Second appellant totally identified himself with first appellant he even wore a t-shirt identifying him with the company. He saw himself as part and parcel of 2 Productions and wore his t-shirt at all times during the two weeks.
[33.3] The Germans had a contract with the first appellant and none with the second appellant.

[33.4] Besides the company paying for the petrol, the invoices also show that first appellant paid for the cool drinks.

[33.5] The second appellant was in fact given a float by the first appellant to pay for incidental expenses.

[33.6] Second appellant did not go around to any other production company for a period of three months. Though he was not employed on a full-time basis, he worked for first appellant on a continuous basis throughout the summer.

[34] It was apparent from second appellant's cross-examination that he did not fully appreciate the notion of an independent subcontractor. He identified himself as a non-permanent employee and, as I have already stated, he regarded McClelland as his boss.

[35] The fact that second appellant was not permanently employed by the first appellant makes no difference to the nature of the contract concluded by the parties. The second appellant was given a service contract for the duration of the shoot. He identified himself with first appellant. He was not an independent sub-contractor working independent from the contractor.

[36] It was also apparent from McClelland's testimony, despite him protesting the contrary, that his contract with second appellant was not a sub-contract but a contract of service.

[37] There was also no real explanation as to why second appellant is cited in first appellant's documents under "staff loans". This is how they perceived their relationship to be, namely a service relationship.

[39] The trial court's finding that first appellant is vicariously liable for second appellant's negligence is in my view correct.

[40]  In the result the appeal is dismissed with costs.

DESAI, J
I agree.

ZONDI, J

I agree.

STEYN, J