Zentner Boerdery CC and Another v Mescht (A35/2019) [2019] ZAFSHC 187 (24 October 2019)

Zentner Boerdery CC and Another v Mescht (A35/2019) [2019] ZAFSHC 187 (24 October 2019)

The court found that the second appellant was negligent in failing to ensure a clear and unobstructed view before tipping the bale, given the inherent danger of the operation and his own concession that part of the respondent would have been visible had he kept a proper lookout. However, the respondent was also found to have acted negligently by returning to the shed without alerting anyone, kneeling in a position largely hidden from view, and failing to react to the sound of the forklift being engaged. The respondent's negligence was deemed to substantially exceed that of the second appellant. The court apportioned liability, holding the appellants liable for 30% of the respondent's...

Citation
[2019] ZAFSHC 187
Parties
Appellant: Zentner Boerdery CC; Appellant: Gareth Hambly; Respondent: WJ van der Mescht
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
24 October 2019
Case Number
A35/2019
Procedural Posture
Civil Appeal / Appeal From Trial Court Judgment on Liability and Apportionment of Damages
Outcome
Appeal upheld in part; trial court order set aside and replaced with apportionment of liability.
Judges
A.F. Jordaan, C. van Zyl, A.K. Ramlal
Legal Topics
Negligence, Contributory Negligence, Apportionment of Damages, Personal Injury
Delict Negligence Contributory Negligence Apportionment of Damages Personal Injury

Case Brief

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Parties

Zentner Boerdery CC

Appellant

Gareth Hambly

Appellant

WJ van der Mescht

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Judgment on Liability and Apportionment of Damages

Legal Issues

  1. 1 Whether the second appellant was negligent in operating the forklift resulting in injury to the respondent.
  2. 2 Whether the respondent was contributorily negligent in returning to the shed without alerting others to his presence.
  3. 3 What is the proper apportionment of liability for damages between the parties.

Ratio Decidendi

The court found that the second appellant was negligent in failing to ensure a clear and unobstructed view before tipping the bale, given the inherent danger of the operation and his own concession that part of the respondent would have been visible had he kept a proper lookout. However, the respondent was also found to have acted negligently by returning to the shed without alerting anyone, kneeling in a position largely hidden from view, and failing to react to the sound of the forklift being engaged. The respondent's negligence was deemed to substantially exceed that of the second appellant. The court apportioned liability, holding the appellants liable for 30% of the respondent's...

Court Disposition

Appeal upheld in part; trial court order set aside and replaced with apportionment of liability.

Orders

  • The order of the court a quo is set aside and replaced with an order that the defendants are ordered, jointly and severally, one paying the other to be absolved, to compensate the plaintiff for 30% of his proven or agreed damages, with costs.
  • The respondent is ordered to pay the costs of the appeal.