On 1 December 2017, the Supreme Court of Appeal ("SCA") upheld an appeal against the decision of the court a quo of Donen AJ in the Western Cape Division in the matter of Stedall v Aspeling (1326/2016)  SCA 172.
In the context of this delictual claim the element of wrongfulness and its application came under a great deal of scrutiny by the SCA, who warned against its conflation with the element of negligence and clarified its importance as a safety net in determining when liability should ensue. More about this later.
The facts which gave rise to the action are summarised below:
- On 27 July 2004, and whilst visiting at the Stedalls' home, the Aspelings' 30 month old daughter ("C") fell into a gated swimming pool, the gate to which had been accepted to have been open or unlatched. By the time C was discovered she had suffered severe brain damage ("the accident").
- The Aspelings sued the Stedalls for damages they alleged both themselves and their daughter suffered due to the Stedalls' negligence.
- The court a quo held that the accident had been due to the joint negligence of both the Stedalls and Mrs Aspeling, apportioning blame on the basis that the Stedalls were twice as culpable as Mrs Aspeling.
- In this regard the Court found that the negligence of the Stedalls consisted of their failure to secure the swimming pool gate so that it could not be opened by a young child and the negligence of Mrs Aspeling consisted of her failure to keep C under constant supervision.
- The Stedalls appealed on the basis that they ought not to have been held liable for damages in delict.
On appeal to the SCA, Leach JA, writing for the full court, concluded that:
- the court a quo overlooked the requirement that wrongfulness is an essential and discrete element which has to be established first for delictual liability to ensue;
- in conflating this element with negligence, the court a quo had erred in holding the Stedalls liable;
- the foreseeability of harm, whilst a critical requirement for negligence, plays no role in the inquiry into wrongfulness;
- the fact that an act is negligent does not make it wrongful is well established in our law;
- a negligent omission is regarded as wrongful only "if it occurs in circumstances that the law regards as sufficient to give rise to a legal duty to avoid negligently causing harm";
- the phrase "legal duty" must not be confused with the English law concept of "a duty of care". A legal duty exists when public and legal policy dictates that an omission is wrongful. The English law concept of a duty of care encompasses both wrongfulness and negligence;
- in the context of an alleged negligent omission, plaintiffs must plead and prove the facts on which they rely for holding the omission to be wrongful, an element in respect of which they bear the burden of proof; and
- the fact that an accident happens does not mean that someone must be held liable.
The court explained the distinction between a negligent act and an omission that causes harm. The distinction being that a negligent omission is not necessarily regarded as prima facie wrongful unless it can be shown that it gives rise to a legal duty to avoid negligently causing harm (as held in the matter of Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)).
Equally importantly, the SCA reminded parties that, as found in the case of Country Cloud Trading CC v MEC, Department of Infrastructure Development 2015 (1) SA 1 (CC), the element of wrongfulness functions ‘as a brake on liability’ and that conduct is not to be regarded as wrongful if public or legal policy considerations determine that it would be ‘undesirable and overly burdensome to impose liability’.
The issue before the court was therefore whether the failure by the Stedalls to secure the swimming pool gate should be regarded as wrongful. The Aspelings' counsel argued that it was reasonably foreseeable that an unattended child might gain access to the swimming pool and be injured. However, the court held that this contention has the effect of conflating the two elements, as foreseeability should not be taken into account when considering the issue of wrongfulness.
In considering whether the homeowners (the Stedalls) had acted wrongfully, the Court held that one must have regard to constitutional norms (i.e. protecting the best interests of a child), whether the failure to ensure that the gate was secure evokes moral indignation and whether the legal convictions of the community demand that it be regarded as wrongful, alternatively whether it would be overly burdensome to impose such liability.
The cases relied on by the Aspelings to support their case that the legal convictions of the community would hold the homeowners' conduct to be wrongful, concerned situations in which there was public access to potentially dangerous places by children who might not be in the custody and care of a supervising adult. The facts of those cases differed substantially from the present where the child's doting mother was in attendance and therefore did not set a precedent for the homeowners being held liable.
Having considered a number of persuasive decisions, both local and foreign, Leach concluded that the public and legal policy of this country reflected that it would be unreasonable to impose liability in the circumstances of this case and that to hold otherwise would be to expect a host to provide greater supervision than a parent in attendance.
Leach therefore concluded that the Aspelings had failed to establish the element of wrongfulness on the part of the Stedalls. This conclusion has practical application in all matters involving delictual liability and serves as a reminder that even though we all may make mistakes from time to time, it does not necessarily follow that retribution is to be exacted from the wrongdoer.
Equally, we must not lose sight of the fact that at the heart of this judgment lies a young life tragically altered, thus creating a great need for assistance on the part of the young child and her parents. However, the empathy which one has for the young victim and her family must not cloud that which is clear in law and to the extent that it can, society must by other means render assistance to this family.