Two recent decisions of the Supreme Court of
Appeal of South Africa dealing with the delictual elements of
wrongfulness and negligence will be of interest to liability
In Pro Tempo v Van der Merwe, the Supreme Court of
Appeal considered an appeal by the owner and operator of a school
for children with learning disabilities, which had been found 80%
liable for the injuries of Jaco van der Merwe, a 13 year old boy
who had become impaled on a steel rod placed alongside a sapling in
the school's playground.
It was unclear exactly how the boy had impaled himself but he
had either leaned against or sat on the rod. On appeal, the school
argued that public policy demanded that because of the boy's
most extra-ordinary and peculiar act, it should not be found
liable. Put differently, the school argued that wrongfulness, one
of the elements of a delict, was absent.
The court considered previous court decisions dealing with
wrongfulness and the well-established principle that, in the case
of a positive act causing physical harm, wrongfulness is presumed
to be present, whereas a negligent omission causing injury is only
wrongful if public and legal policy consistent with Constitutional
norms depict a legal duty. This involves an enquiry into whether it
would be reasonable to impose liability under the circumstances, as
opposed to whether the defendant's conduct was reasonable.
On the facts of this case, the court found that the prior act of
the school in placing the rod in the playground created a dangerous
situation. It also took into account section 28(1)(b) of the
Constitution which provides that every child has the right to
appropriate alternative care when removed from the family
environment. Having regard to this, that the school specifically
catered for children with learning disabilities and that the boy
was known to be hyperactive, the school's attempt to escape
liability on the basis of public policy was unfounded.
The case highlights that the public policy microscope through
which the reasonableness of imposing liability is viewed can be
affected by the type of plaintiff concerned, Constitutional values
as well as the type of place where the loss occurs. The operators
of places catering for more vulnerable members of society, such as
schools, old age homes and even hospitals, may find that courts
more readily impose liability on them, which such operators, and
their insurers, should take into account.
In MEC for the Department of Public Works, Roads and
Transport v Botha, the Supreme Court of Appeal considered a
loss of support claim by a widow whose husband died after driving
into a tree which had fallen across the road during storm. The High
Court found the MEC vicariously liable for its employees'
failure to, firstly, maintain the road by removing trees causing a
danger to road users and, secondly, close the road in time before
the collision. The MEC challenged these grounds of negligence in
It transpired that the employees previously tried to remove the
tree from the road, but failed and abandoned their attempt. On
appeal, the court was satisfied that negligence was established on
this basis, and dismissed the MEC's appeal.
Although the SCA did not depart from the High Court's
ultimate decision, it deemed it necessary to say something about
the earlier finding that a general duty rested on the MEC to
maintain the road by removing growing trees causing a potential
danger to road users. The negligence test set out in the landmark
judgment in Kruger v Coetzee requires that, in order for a
defendant to be found negligent, it needs to be shown that a
reasonable person would have foreseen the probability of harm and
taken steps to avoid it, whereas the defendant in question failed
to do so. Given that the MEC had not led any evidence on the cost
of and difficulty in taking measures to avoid the risk of trees
falling across public roads and posing a danger to passing
motorists, the High Court had been incorrect to impose liability on
the MEC on this ground.
The case highlights the often forgotten element of negligence
which requires proof that a reasonable person would have taken
steps to prevent foreseeable harm. What steps a reasonable person
would take depends on the circumstances, which would include
factors such as cost and difficulty, which the SCA mentioned. The
MEC did not lead such evidence relating to its own negligence,
although they remained vicariously liable on the first ground. If
Mrs Botha had led this evidence, the MEC could have faced an
additional ground for liability. Public bodies must be aware that a
plaintiff could lead evidence which would require counter evidence
in order to avoid liability based on their own negligence.
In this publication, we address how Dubai is leading the way in the application of technology to its healthcare insurance system and how the health insurance law is developing around these initiatives.
On 17 April, the National Treasury and the Financial Services Board ("FSB") published for comment the draft Insurance Laws Bill, 2015 ("the Bill").
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