SWAZILAND
HIGH COURT
BLANSAK
MOTORS (PTY) LTD
Plaintiff
Vs
ENVIRO
SWAZI SCRAP METAL (PTY) LTD
Defendant
Civ.
case no. 2339/2001
Coram Sapire,
CJ
For
Plaintiff Mr. G. Masuku
For
Defendant Mr. J. Henwood
JUDGMENT
(11/03/2003)
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.
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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 El31 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
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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
4
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.
Sapire,
C
