Legal office

Mr Faltein sustained life-changing injuries in a bus accident which took place whilst he was en route to a funeral. The bus had been made available to Mr Faltein and fellow employees by the department (the defendant) as a gesture of goodwill, as the funeral in question was also that of a fellow employee; it was involved in an accident caused by the negligent driving of the bus driver, who was also an employee of the defendant. The driver had taken over the driving of the bus on the return journey, as the passengers had not been satisfied with the designated driver’s driving.

The department disputed its liability on the basis that at the time of the collision, the bus was being operated by the passengers in the course of a private contract of loan concluded between them and the department, and consequently denied that the bus driver was acting in the course and scope of his employment with the department. The department also raised the provisions of Section 40 of the Public Service Act as exempting it from liability. Section 40 provides that the State will be exempted from liability for, inter alia, damages arising out of conveyance of any person in a vehicle owned by the State, unless the claimant was being conveyed “in the interest of the performance of the functions of the State”.

The plaintiff succeeded in the trial court and with the leave of that court, the department appealed to the Supreme Court of Appeal. The Full Bench of the SCA unanimously dismissed the department’s appeal, holding that the department would have had no objection to the driver taking over the driving duties, as he had done, and that the driver was not a servant of the passengers at the time of the accident, as they had no right to control how he drove the bus, and that it followed that he was driving the bus in the course and scope of his employment. As far as the reliance on the Public Service Act was concerned, the court held that inasmuch as the bus had been made available to the employees as a gesture of goodwill, this fell within the ambit of being “in the interest of the performance of the functions of the State”, as the promotion of good relations between management and employees was important.

For a copy of the full judgment click here.

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