NAME: BOTHO BAME MASWABI.

STUDENT I.D: 200903653

COURSE: LAW 232 ASSIGNMENT 1

LECTURER: J.PFUMURODZE

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SAR V ESTATE SAUNDERS 1931 AD 276

FACTS:

This was a case about negligence or more to say, an omission. In an action for
damages arising out of a collision between a motor bus (the property of the
plaintiff), and a trailer(the property of the defendant), it appeared the
defendant had delivered goods to a certain place and left the trailer there to
be unloaded and called for later during the same day. The trailer was unloaded
and then placed on a road outside the premises where the goods had been
delivered and this fact was communicated to the defendant via telephone. This
was usual practice between the defendant and the cosignees but in this
particular instance, the trailer was not collected as per the agreement and was
instead let to remain on the road after dark with no lights on.

Now the driver of the bus was towing another bus belonging to the plaintiff
and did not see the trailer until he was upon it. He managed to swerve and
avoid it but unfortunately the bus that was being towed struck the trailer and
was wrecked in the process.

The defendant argued that the driver was going too fast on the road and that
he should have been on the lookout for such type of obstacle, especially when
driving at night. Defendant also argued that he had not any such phone call
informing him about the location of the trailer and that he should come and
collect it. It was hence found out that the phone call had actually been made to
the defendant’s office and was taken by the secretary, just that the secretary
did not deliver the message to him.

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A trial court awarded damages against the defendant.

Appeal also dismissed the action with costs on the basis that:

 The trailer was unlawfully placed on the road

 The bus driver was under no duty whatsoever to take precautions in
anticipation of meeting a partially concealed object of this description.

LEGAL ISSUE:

A case of negligence: mere omission. That prior conduct gave rise to legal duty.
The issue of allowing an unlighted obstruction to be left on the road at night.

Also looked at in this case was the issue of contributory negligence, the duty of
the motorist not to speed at night.

LEGAL PRINCIPLE:

The legal principle used in the judgement of this case was that of culpa. It was
said in judgement that mere omission does not constitute culpa, but where
their e is prior conduct of such kind, as gives rise to the duty to do an act, then
the omission to do an ant may amount to culpa.

CASE IN RELATION TO THE TOPIPIC AT HAND(PRIOR CONUCT):

First and foremost, let it be said that conduct on the part of the defendant
must be voluntary. If the defendant did not do an act at his own free will, then
he will not be held liable for his actions. An omission is failure of e person to
act in a way that was expected of him. The question in delictual actions is
whether the defendant was under the legal duty to act.

The general rule is that a person is not under the legal duty to protect another
from harm even though he can easily and is morally right to do so. Traditionally

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a legal duty to act may arise when there has been some prior conduct other
part of a person, that has created a potentially dangerous situation for others,
where a person has a potentially dangerous object or animal, where a
protective or special relationship exists between the parties, where a person
occupies a public office or calling which imposes a duty to act and where
statute or contract imposes a legal duty.

The fault element under the Aquilian action is either intention (dolus-the
subjective test) or negligence (culpa-the objective test). In the subjective test,
the ‘reasonable foreseebility rule’ is applied where two things are looked at.
First, could the defendant have reasonably foreseen the possibility of his action
causing harm to another or his property, causing patrimonial loss? And second,
could the defendant have taken measures to prevent such sort of harm from
occurring?

In this case of SAR v ESTATE SAUNDERS, we see the defendant conducting

himself in a way that is not unusual to him. He leaves a trailer behind but does
not come back to fetch it, as per his custom. The trailer is left on the roadside
in the dark and he knew about this. This is where his legal duty arises. This duty
to act is brought about by the fact that even though the defendant knew about
the potentially dangerous positioning of the trailer, he still did not come back
to collect it. This failure to fetch the trailer created the dangerous situation in
question and hence caused an accident and damage to another person’s
property. We see in this case that all the elements of prior conduct are
present, which duly gave rise to the application of the reasonable foreseebility
rule. In applying it, this is how it could be answered.

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  Could the defendant have reasonably foreseen that his failure to collect
the trailer could create a potentially dangerous situation for other
people and their property? YES.
 Could he have taken measures to avoid or prevent any sort of accident
from occurring due to his actions or lack of, thereof? YES, he could have
easily done so by simply collecting the trailer as he was supposed to in
the first place.

The reasonable foreseebility rule could not have applied to the plaintiff in this
case as he was just a passer by and had no wrongful or unlawful conduct on his
part.

PERSONAL VIEW OF THE JUDGEMENT OF THE CASE:

In personal view and opinion, without meaning to impose it on any other

person who shall read this, judgement was granted fairly. The defendant’s
failure to fetch the trailer as per his job description showed a certain level of
carelessness and negligence towards his job, which at the end of the day is the
cause of this whole case. I must admit however, that I feel tat the defendant,
even though under the duty to act, should not be let to feel the heat on his
ace. It is my belief that the defendant and his cosignee were under contract.
The fact that the goods were delivered to the cosignee and that he placed the
trailer by the roadside should also give rise to some duty to act. They put the
trailer in that dangerous position by the roadside and therefore should have
taken it upon themselves to check and see if the trailer had been collected and
if not so, placed it a safer position.

The court was right not to award a judgement of contributory negligence on

the part of the plaintiff. As stated earlier, he was a mere road user. He could

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not have guessed or reasonably foreseen the possibility of having that
particular mishap. No one could honestly expect to run over an unlighted
trailer at night. An animal yes, but just not a trailer. That is simply out of the
ordinary.

In conclusion, judgement was fair but the cosignees should also have been
held partially responsible on the basis of contributory negligence.

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