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 insurers.

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.

To access the full judgment, click here.

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 its appeal.

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.

To access the full judgment, click here.