This is an action for damages brought by the plaintiff against the defendant to recover compensation for injury caused through negligence. The amount claimed is E131 715-00.
The claim arises out of a fire which took place and which had its origin on premises belonging to the defendant. The fire was then gusted by prevailing winds onto the property of the plaintiff where it engulfed a certain of the premises on which a stock of scrap cars were kept. It is claimed that the fire destroyed a considerable number of the vehicles, parts and spares and effects.
At this stage the parties have agreed that the question of liability be first determined and have in a minute of a pre-trial conference confirmed that the only issue would be the question of negligence.
The particulars of claim are in some respects ineloquent and confused. It is alleged that on or about 24th
September 1998 a deliberate fire emanating from the defendant’s premises spilled over onto the plaintiff’s premises causing damaging amount to E131 715.00. The next paragraph, which is paragraph 4 of the particulars of claim, informs the court that the aforesaid damage was occasioned as a result of the negligent and/or reckless conduct of the defendant in that the defendant deliberately started a fire within its premises whereas it had failed to clear the undergrowth and bush in between the scrap metal stacks and fence whereas the plaintiff regularly cleared the undergrowth and grass where its scrapped motor vehicles, body parts and tyres were stored. Defendant owed plaintiff that duty of care which defendant neglected with reckless disregard and then the claim for damages is made.
It will be readily seen that the cause of action is confusingly stated. At at least two points the word “deliberately” is used. Yet it is quite clear that what is relied on is negligence. The position may have been different but for the pre-trial conference at which it was confirmed that the issue was whether the defendant had caused or allowed the fire to spill negligently and whether the defendant was in any way contributory negligent.
The onus of establishing negligence is on the plaintiff. The plaintiff must establish that the fire was caused or spread through fault on the part of the defendant. The evidence disclosed that the fire was caused by sparks from cutting scrap metal with a torch. The procedure as described is in itself a dangerous one, especially in the circumstances prevailing on the day in question. The defendant’s own witness described the precautions which the operators of the cutting torch were to take to avoid the start or spread of fires. The only measure which apparently was taken was to have a bucket of water handy to douse any flames which may be caused by the operation of cutting the metal. The metal was to be cut in the open, in an area in which there was dry grass. It is also clear that on the day in question, which was in September at the end of winter, it was wind. Witnesses have all made mention of a prevailing wind, which obviously took the fire that started on the defendant’s premises on to that of the plaintiff. The operator himself was not called. I was told that efforts to trace him were unsuccessful. That does not assist in assessing how the fire came to start and in the absence of his evidence an inference can be drawn against the defendant. But it is in fact not necessary to draw any inference. One Dlamini who was the defendant’s witness describes the operation which was taking place and it is quite clear from his evidence that it was to be expected that sparks from the torch cutting the scrap metal could be expected to be dispersed over a fairly wide area especially in the gusting wind and that these sparks could set the grass alight. This is the only inference that can be drawn from the fact that a bucket of water had to be kept nearby.
There is however no explanation as to why the fire was not doused and the evidence of Mr. Dlamini on this point is so far as it is irrelevant clearly indicates that the operator on some admission he made to Mr. Dlamini had overlooked or did not see that the grass around him had caught alight. Mr. Dlamini’s evidence is of course hearsay but introduced by the defendant and if anything an admission of guilt as to negligence.
The question of negligence has been dealt with frequently and a foreseeability test has been applied in many cases especially City Council of Pretoria vs. De Jager 1997 1 All SA 635
which is an Appellate Division case which is also reported at 1997 (2) SA 46(A).
It has been held that in regard to a veld fire occurring outside a fire control area, the defendant has to prove on a balance of probabilities with regard to the guarding against foreseeable harm, that it is not negligent in any of the respects alleged by the respondent or if its conduct does fall short of the standards required of it, that such failings would have had no effect on and hence would not have been relevant in relation to the harm caused.
In this case common sense must prevail At the end of the day the defendant who was undertaking an operation which was likely to cause a fire and on a windy day it is well known that the fire would spread quickly. What precautions if any were taken seems to have been no more than to have a bucket of water to hand. That bucket of water was not even used apparently before the flames had taken hold of the dry grass and spread to the plaintiff’s premises.
In these circumstances the only conclusion to which I can come is that the defendant was negligent in causing a fire and allowing it to spread to the plaintiff’s premises. The question then arises, is there any contributing negligence? The only suggestion of contributory negligence was that the plaintiff had allowed the grass on its plot to remain uncut and susceptible to quick burn. This is not contributory negligence in my view because the defendant did not have to anticipate that the fire would be started on the adjoining premises the way it was in this case and there were no steps which it had to take to guard against something which should not reasonably have been anticipated. It is not necessarily their fault for the plaintiff to have kept its plot free of dry grass and in the absence of duty to have cared certainly in relation to the plaintiff it cannot be said that the plaintiff was contributory negligent. I find that the negligence in this case was wholly on the part of the defendant.