South Africa: South African Court Extinguishes The Foreseeability Factor In Considering Wrongfulness

A recent decision of the Supreme Court of Appeal of South Africa will be of particular interest to liability insurers who insure spread of fire risks. The SCA confirmed that foreseeability of harm must only be taken into account when evaluating negligence and not wrongfulness. The decision also serves as a useful practical example of what may constitute negligent conduct in these types of matters and what evidence will need to be led to establish it. Just because one could have taken additional steps to prevent a fire does not mean that liability will ensue, if the preventative steps already taken were sufficient, albeit ineffective.

In MTO Forestry (Pty) Ltd v A H Swart NO [2017] ZASCA 57,the Supreme Court of Appeal considered an appeal by MTO in relation to a veld fire that broke out on a neighbouring property and spread onto MTO's land, destroying 1300 hectares of forest and resulting in losses exceeding R23 million.

The appeal followed an unsuccessful action in the High Court, in which MTO sued its neighbour in delict alleging that the latter was negligent with respect to:  

  1. A delay on its part to take steps to ensure that the fire was promptly extinguished;
  2. Not having adequate fire-fighting facilities in place; and
  3. Failing to clear 'warbos' vegetation from the area where the fire ignited (contending that, if it had been cleared, the fire would have been contained and not become uncontrollable).

On appeal, the court carefully analysed the five elements of delictual liability with particular emphasis on the requirements of wrongfulness and negligence. Insofar as wrongfulness is concerned, this is ordinarily a determination on whether, in light of public policy considerations, a person should be held liable for harm suffered due to his blameworthy conduct. In these circumstances, wrongfulness functions as a limitation to ensure that liability is not imposed in cases where it would be unreasonable or overly burdensome. As for the determination of negligence, this focusses on the reasonable foreseeability and preventability of the harm. If a reasonable person would have foreseen the harm and would have taken steps to prevent it, whereas the person in question did not, negligence is established. See Kruger v Coetzee 1966 (2) SA 428 (A).

The court in the MTO case observed that wrongfulness and negligence are often incorrectly conflated because foreseeability of harm, which forms part of the test for negligence, has in the past also been used as a factor in determining whether blameworthy conduct is wrongful.  To avoid any ongoing confusion, the court ruled that foreseeability of harm should not be taken into account when considering wrongfulness. 

The court then turned to evaluate the negligence element. Section 34(1) of the National Veld and Forest Fire Act 101 of 1998 ("the Act") includes a presumption of negligence to the effect that if a person bringing civil proceedings is able to prove that he suffered loss from a veld fire caused by the defendant (who is not a member of a fire protection association in the area) or which started on or spread from the land owned by such defendant, the defendant is presumed to have been negligent in relation to the fire unless the contrary is proved. Section 34(2) of the Act adds that this presumption does not however exempt the plaintiff from having to prove that the defendant's conduct was wrongful.

The court observed that the Act correctly makes a distinction between the elements of wrongfulness and fault (negligence) and supports evaluating each of these elements independently – a landowner may therefore be negligent under section 34(1), but may nevertheless escape liability because of the absence of wrongfulness.

The court also noted that where evidence is available and presented to the court on negligence, the role of the presumption in the Act is largely curtailed.

In respect of the neighbour's alleged negligent omissions, the court found that:

  1. MTO had failed to show that the neighbour delayed in taking steps to ensure that the fire was extinguished after being informed of it, and that this caused MTO's losses. In the first instance, MTO had not established that the person who arrived on scene on behalf of the neighbour, with an incorrect set of keys for gates leading to the property, was someone for whose actions the neighbour was vicariously liable. In addition, there was no evidence that any attempts to extinguish the fire were delayed as a result of the locked gates and by the time the fire-fighting teams arrived on the scene, the fire was already out of control;
  2. The neighbour had ensured that there were adequate fire-fighting measures in place. In this regard, it had delegated its responsibilities under section 17(2) of the Act to an agent, which MTO itself accepted as being an effective and well-equipped fire-fighting unit; and
  3. While 'warbos' is typically more flammable than other indigenous vegetation, the fact that it occurred naturally and the adequacy of fire-fighting measures that were in place, meant that it was not reasonably expected of the neighbour to clear the 'warbos' from its property.

In the circumstances, the court concluded that a reasonable landowner in the neighbour's position was not obliged to ensure that in all circumstances a fire would not spread beyond the boundaries of its property. It merely had to take the steps that were considered reasonable in the circumstances, to guard against such an eventuality.  On the facts, the court found that the neighbour had taken these steps. In so doing, the court accepted that although there may have been additional steps which could have prevented the loss if they were taken, the neighbour's failure to take these steps was not unreasonable and did not amount to negligence. MTO's appeal accordingly failed.

South African Court Extinguishes The Foreseeability Factor In Considering Wrongfulness

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Ina Iyer
 
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