BICKLE v MINISTERS OF LAW AND ORDER 1980 ZLR 36 (G)

1980 ZLR p36

Citation 1980 ZLR 36 (G)

Case No Details not supplied

Court General Division, Bulawayo

Judge Beadle, AJ

Heard 4th February, 1980? 5th February, 1980? 8th February, 1980

Judgment 8th February, 1980

Counsel C W Jordaan, for the plaintiff.

I A Donovan, for the defendants.

Case

Type

Civil

Action

Annotations Link to case

annotations

Flynote

Negligence — meaning of gross negligence — relationship between negligence and damage — importance of in

assessment of whether or not negligence was gross. G

Headnote

The Commissioner of Police had contracted to indemnify the plaintiff against damage caused to his

aircraft while it was being used on Police duties provided that the damage was not due to “gross

negligence or a wilful and malicious act on the part of the pilot”. Before taking off one day on

Police duty the plaintiff started to do a compression test of the aircraft’s engine by turning the

propeller backwards. He knew the keys of the aircraft were in H the ignition but had not noticed

the ignition was switched on. By a very remote chance amounting to a freak accident his turning

of the propeller started the engine, and the aircraft careered out of control across the airport and

was destroyed. The Commissioner of Police refused to indemnify him on the ground that the loss

was due to his gross negligence.

1980 ZLR p37

Beadle AJ

Held that in the context of the agreement “gross negligence” meant ordinary negligence of an

aggravated form which fell short of wilfulness? the degree of aggravation was incapable of precise

definition but the test was objective A (Rosenthal v Marks, 1944 TPD 172 at 180, distinguished).

Held, further, that the plaintiff as a reasonably prudent pilot ought to have known that the ignition

was switched on, and his actions had to be judged on the basis of his so knowing? on this basis,

by pulling the propeller without first satisfying himself that the ignition was switched off, he was

guilty of B negligence,

Held, further, that although the accident could be called a freak accident, the plaintiff’s negligence

was sufficiently related to the damage to make it causally responsible for it, on the basis that

because of the high risk involved if the accident did happen and the case of avoiding its

happening, the ordinary C prudent pilot would guard against its happening by ensuring that the

ignition was switched off before commencing a compression test (Lomagundi Sheetmetal and

Engineering (Pvt) Ltd v Basson l 973 (1) RLR 356 (AD) at 363? 1973 (4) SA 523 (RAD) at 5245,

applied).

Held, further, that the Plaintiff’s negligence could not be categorized as gross because D

(a) so to categorize it would lead to the illogical result that because his ordinary negligencewas

followed by a freak accident, the freak accident converted his ordinary negligence to gross

negligence?

(b) the causa causans of the damage, the firing of the engine, was very close to being a novas

actus interveniens, and had it been so the plaintiff could E not have been found guilty of any

negligence? the degree of the plaintiff’s negligence therefore in relation to the damage

proximated more closely to no negligence at all than to gross negligence.

Cases cited

Rosenthal v Marks 1944 TPD 172? F

R v Ncetendaba and Anor., 1952 SR 45? 1952 (2) SA 647 (SR)?

Lomagundi Sheetmetal and Engineering (Pvt) Ltd v Basson 1973 (4) SA 523 (RAD).

Case information

C W Jordaan, for the plaintiff.

I A Donovan, for the defendants. G

Judgment

Beadle AJ: In this matter the plaintiff is a pilot in the Police Reserve Air Wing and he owns a Cessna

light aircraft. The defendants are the joint Ministers of Law and Order, sued in their official

capacities. H

In January, 1972, the plaintiff leased his aircraft to the Commissioner of Police. The terms were that

normally the plaintiff would fly the aircraft himself, and the lessee indemnified him against damage

to the aircraft whilst it was engaged on Police Reserve duties, provided, and I quote from clause 6

(ii) (b) of the agreement:

1980 ZLR p38

Beadle AJ

(b) “The damage or loss is not due to gross negligence or a wilful and malicious act on the part of the

pilot nominated or agreed to by the Lessor, or the Lessor, nor to a breach of the Air Navigation

Regulations.”

In A September, 1978, the plaintiff had an accident with this aircraft, in which the aircraft sustained

damage in the sum of $32 000, which sum has been agreed to by the parties. The plaintiff now

claims this sum from the defendants, but the defendants have repudiated liability on the ground

that the accident was due to the plaintiffs gross negligence. B

The plaintiff submitted an accident report, which he was obliged to do in terms of the lease

agreement. Apart from a short paragraph which deals with the engineer of RUAC leaving the electric

starter switch in the “both magnetos on” position, all the facts stated in this report are C common

cause. The report reads:

The Provincial Inspector,

Police Reserve,

P.O. Box 2085,

BULAWAYO.

Dear Sir, D

ACCIDENT REPORT VPYYB

Following my letter of the 3rd October 1978 concerning the above and your subsequent request for a

more detailed account of the events which led to the destruction of my aircraft, I now advise as follows: E

On Saturday 30th September at 0700 hours P R./Obs. Taylor and myself proceeded to the main airport in

order to fly to Salisbury in accordance with the instruction contained in Flight Authorisation No. 282/78.

On arrival at No. 2 hangar, we found the aircraft had been parked about 30m. from the hangar entrance

facing the main runway. F

I proceeded to open the cabin door and place my flightbag in the aircraft, while P R Taylor proceeded to the

Fire Hangar in order to telephone the flight plan to the briefing officer, using the call sign Copper 71.

Having set the parking brake in the aircraft, I proceeded to reset the function of the electric booster

pump which I suspected of being sluggish. This possible defect had been reported to the RUAC engineer

who had carried out the G 100hour check the previous day.

I noticed that the fuel selector had been left on, contrary to my normal practice, and that the keys were

in the ignition switch, although I did not see that they were in the ‘both magnetos on’ position.

In order to test the electric boost pump I turned on the master switch and the pump switch and placed

the throttle and mixture levers fully forward.

When the fuel pressure gauge needle gave a steady reading, I switched off the electric pump and the

master switch and H went forward to see whether excess fuel was running from the manifold, intending to

return to the cabin and reset the engine controls before continuing with the preflight check.

1980 ZLR p39

Beadle AJ

During this time, the RUAC attendant, Mpala, was standing by under the starboard wing with the fire

extinguisher. A

Having checked the overflow of fuel, I proceeded to check the starboard wing, undercarriage and brake

assembly before walking back past the nose of the aircraft to get to the cabin.

At this point, my attention was distracted by PR Taylor, who shouted to me from the direction of the Fire

Hangar. Having replied to him, I turned back to the aircraft and as I was standing immediately in front of

the propeller, I B gripped it with one hand on either side of the spinner, and pulled the nose of the aircraft

down to test the inflation of the nose oleo.

Then through sheer force of habit, I stood back from the propeller and started to pull it through to check

compressions. I had moved it through only a short arc when I realised that the engine controls were still

set forward, and C that the ignition keys were not in the customary place on top of the instrument panel,

so as to be visible from outside the aircraft, but were in the ignition switch. Unfortunately, although I

immediately released the propeller the momentum of the swing carried it through one revolution of the

engine. As it was primed with fuel, and had only recently been completely overhauled, the cylinder

immediately fired. D

This could not have happened had the key not been left by the engineer in the “both magnetos on”

position and in fact was found in this position subsequently.

I charged back to the cabin door and shouted to Mpala to hold on to the starboard strut, whilst I held the

port strut, and tried at the same time to get E the door open which had been blown shut by the force of

the propeller wash.

Unfortunately, he did not react in time and the engine quickly developed full power. The handbrake did

not hold and the aircraft started to move forward. F

I got the door open at this stage and let go of the strut to try and reach the engine controls, but the blast

of the slipstream combined with the violent surge forward of the aircraft knocked me off balance and I

was unable to do so.

The aircraft gathered speed and finally hit the fence on the south side of the G field, broke through and

crashed into the trees, when it was totally destroyed.

Yours faithfully, H

C L PICKLE.”

1980 ZLR p40

Beadle AJ

In evidence the plaintiff explained that he used the word “revolution” in the report inadvertently, the

word should have been “compression”.

The defendants allege the plaintiff’s gross negligence consisted of the A following acts

(a) he failed to check that the ignition was in the off position before leaving the aircraft?

(b) he failed to reduce the fuel mixture to the idle cut off position and to B close the throttle before

leaving the aircraft?

physicalchecks of the propeller and engine compression and, in particular, turning the propeller by

hand.”

The C issue before the Court, therefore, is whether or not the plaintiff’s actions as resected in his

report could correctly be classed as gross negligence, as opposed to ordinary negligence.

[The learned Judge then analysed the facts and continued:] D

The majority of the salient facts in this case were common cause and did not require much

elaboration by oral evidence. The important question of how likely it was for the aircraft to have

started in these circumstances is, however, an issue which has to be determined. Palmer seemed E to

me to be a little equivocal on this point, but the plaintiff and his two witnesses were not and I rely

on their evidence. They were emphatic that the likelihood of the aircraft engine starting in these

circumstances was very remote indeed, especially as the propeller was being pulled back in the

opposite direction to that in which it usually revolves. Michael Garde, F for example, said that when

he first heard how the accident happened he “could not believe it”. He was not crossexamined on

this evidence. I accept that evidence. On the evidence of the plaintiff and his witnesses, therefore, I

am satisfied that the risk of the engine starting in these circumstances was a very remote one

indeed, so remote that the accident G may very well be described as a “freak accident”.

So much for the facts of the case. I now turn to apply the law to those facts. H

I start by examining the meaning to be given to the words “gross negligence” in the agreement. The

words must be construed in the context in which they are used because the words may have

different meanings in different contexts. It is to be noted that clause 6 (ii) (b) of the agreement

1980 ZLR p41

Beadle AJ uses the words “a wilful and malicious act” as well as the words “gross negligence”. In

their context, therefore, the words “gross negligence” A must be construed as something different

from wilful. They must mean precisely what they say, ordinary negligence of an aggravated form

which falls short of wilfulness. How aggravated must negligence be before it can be characterized as

“gross”? All the books are agreed that the words “gross negligence” are incapable of precise

definition, but a generally B accepted broad definition is the definition given in the oftquoted case of

Rosenthal v Marks 1944 TPD 172 at 180, where MURRAY J is quoted as saying:

“Gross negligence (culpa lata, crassa) connotes recklessness, an entire failure to give consideration to the

consequences of his actions, a total disregard of duty (see per WESSELS J in Adlington’s case (supra) at

page 973, and C Cordey v Cardiff Ice Co (88 LT 192)).”

This broad definition does, however, have an element of mens rea in it, and, as I have already

pointed out, in their context in this case the words have no such element. As there is no element of

mens rea, it seems to me D clear that the test to be applied must be an objective and not a

subjective one. See R v Ncetendaba and Another 1952 (2) SA 647 (SR) at 649, * and the cases

there cited. This, however, helps the plaintiff not at all. It is not a question of what the plaintiff knew

when he pulled the propeller? it is a question of what he ought to have known. The plaintiff E cannot

shelter behind his own negligence. As a reasonably prudent aircraft pilot he ought to have known

when he pulled the propeller that the ignition switch was in the switched “on” position, and therefore

it must now be assumed against him that he did know this fact and his actions must be judged on

the basis of his so knowing. F

I reject Mr Jordaan’s argument that the plaintiff is not guilty of negligence at all because when he

pulled the propeller he did not consciously realize that the ignition switch was in the “on,” position

and that in the circumstances he could be forgiven for not knowing it. I am satisfied from G all the

evidence (and this includes the plaintiffs own reactions when he first realised that the key was in the

ignition switch) that no reasonably prudent aircraft pilot would do a compression test without first

satisfying himself that the ignition was switched off. To switch off the engine before doing this test is

a standard practice. I am satisfied, therefore, that H the plaintiff was guilty of an act of negligence

here, this negligence being that he pulled the propeller without first satisfying himself that the

ignition was switched off. I will canvass the relationship of this negligence to the cause of the

damage later.

1980 ZLR p42

Beadle AJ

This is only the start of the inquiry. What must next be considered is the causal connection between

this negligent act and the damage, and I stress here the use of the word “damage”. What must first

be considered A is whether the negligent act is causally sufficiently closely related to the damage to

attract liability. If it is decided that it is, the next step is to determine whether it was gross or not. I

propose to start this inquiry by adopting the approach that I took in the case of Lomagundi

Sheetmetal and Engineering (Pvt) Ltd v Basson, 1973 (4) SA 523 (RAD) B at 524525, * where I said:

“What a prudent man would or would not do, or would or would not fore see in any particular case, must

depend on a very wide variety of circumstances and few cases are ever identical in the relevant

circumstances. The sort of circumstances, however, which the Courts often look to in cases such C as this

in deciding what degree of foreseeability must be proved by the plaintiff before a defendant can be held

responsible for the resultant damage are these: (1) how real is the risk of the harm eventuating? (2) if

the harm does eventuate, what is the extent of the damage likely to be? and (3) what are the costs or

difficulties involved in guarding against the risk?”

I D examine each of these three factors together in relation to the facts of this case, and in the end I

must make a value judgment.

(1) How real was the risk of the harm eventuating? The answer here to this question is minimal.As

I have said, this accident could be called a “freak accident”. E

(2) If the harm did eventuate, what was the extent of the damage likely to be? The answer hereis

very considerable indeed. In addition to the damage actually suffered, which is not

inconsiderable, the plaintiff F himself might well have been seriously injured, and the possibility

of the aircraft, when it careered across the airport out of control, colliding with another aircraft

could not be excluded.

(3) What was the difficulty involved in guarding against this risk? G The answer here is nil. The

plaintiff would simply have had to switch off the ignition key.

The answer to the first question is so overwhelmingly in the plaintiff’s favour that it could be argued

that the accident was not foreseeable at all by a reasonable pilot and that the plaintiff was not even

guilty of H ordinary negligence. But the answers to questions (2) and (3) are so overwhelmingly

against the plaintiff that, though this is a borderline case, I

1980 ZLR p43

Beadle AJ think the negligence is sufficiently related to the damage to make it causally

responsible for it, on the basis that because of the high risk A involved and the case of avoiding

that risk, the ordinary prudent pilot, remote though the risk might be, would guard against it

happening by ensuring that the ignition was switched off before commencing the compression

test. The fact that it is the standard practice of a prudent pilot to switch off underscores this

argument. B

I find, therefore, that the plaintiff was guilty of negligence in relation to the damage suffered. But

was his negligence gross or ordinary? That is the next question. Here again, of necessity, the Court

must make a value judgment. It has no guidelines to follow other than the dicta of C MURRAY, J, in

Rosenthal’s case (supra) and many other similar dicta, none of which are really helpful. I propose

first to analyse the causation of the damage. It will be seen that the damage was really caused by a

combination of two factors(1) the negligence of the plaintiff coupled with (2) the happening of a

freak accident. Each of these two factors D played a fundamental part in the causation link between

the negligence and the damage. To say that this constitutes gross negligence would be tantamount

to saying that because the plaintiff’s ordinary negligence was followed by a freak accident, that freak

accident converted the ordinary negligence into gross negligence. This, to my mind, is quite illogical.

E Another approach produces the same answer. If the engine had not fired, no damage would have

resulted at all. The causa causans of the damage was the engine firing, and the firing of the engine

was such an unlikely event that it comes close to a novas actus interveniens in the causal tieup

between the plaintiff’s negligence and the damage. If the firing of the F engine was considered a

novus actus interveniens, then the plaintiff could not even be found guilty of ordinary negligence in

relation to the damage suffered, because the cause of the damage would have been the freak

accident and not the plaintiff’s ordinary negligence. It is a forgone conclusion that if he could not

have been found guilty of ordinary G negligence, he could not have been found guilty of gross

negligence. The firing of the engine, though not actually a novus actus interveniens, was very close

to being one. The degree of the plaintiff’s negligence, therefore, in relation to the damage suffered,

proximates more closely to no negligence at all than to gross negligence. In their degree of

negligence I H would regard the plaintiff’s acts as culpa levissima rather than culpa lata, that is,

“minor” rather than “gross”.

The onus was on the defendants to prove that the plaintiff’s negligence was gross. They certainly

have not succeeded in discharging that onus.

1980 ZLR p44

Beadle AJ

On the contrary, the plaintiff has succeeded in establishing that his negligence was not gross. The

Court order, therefore, is judgment for the plaintiff in the sum of $32 000 and costs of suit. The

plaintiff and the two A witnesses called by him are declared necessary witnesses. B

* Also reported in 1952 SR 45? the page reference cited is page 47. Editor.

* Also reported in 1973 (1) RL. 356, the passage cited is at page 363. Editor.