Published Works | Insurance Gateway | 11 December 2017

Harm v wrongfulness or negligence: Parents beware

Just in time before the holidays, the Supreme Court of Appeal (SCA) again highlighted the dangers of conflating or confusing the elements of delict with each other. At the same time, it reminded us about the fundamental and cardinal principle of parenting; that the ultimate responsibility for the safety, care and well-being of children remains paramount and lies with the parents. This noteworthy judgment was handed down by Leach J, in Stedall v Aspelling [2017] ZASCA 172 (1 December 2017).

The facts were as follows. On 27 July 2004, the Aspelling's minor daughter, a 30-month old toddler, fell into a swimming pool at the home of Stedall. Although she did not drown, she sustained severe brain damage as a result of this accident. On the fateful day of the accident, Aspelling and her child were given a lift to the Stedall's home by another member of her prayer group. This was not the first time that Aspelling and her child visited the home of Stedall. As usual, on this day the child spent most of the time of the prayer group meeting playing with her toys on the floor of the lounge but, at a later stage, she went outside onto the patio. While in Aspelling's sight, the child was in no danger. 

Aspelling was offered a lift back home from another member of the prayer group. She then left the child to her own devices and went to the parking lot behind the house to transfer the baby-seat from the car in which they had arrived to the motor vehicle that was to take them home. The transfer of the baby-seat did not go smoothly and took a considerable time. Aspelling being a devoted and careful mother, as established by evidence, became nervous and went back to see what her child was up to. She went through the lounge onto the patio calling the child by name. When she received no answer and she could not see the child, she panicked and shouted to the other members of the prayer group, who were then in the kitchen with Stedall. After looking for the child, she was found lying face down in the swimming pool.

As a result of the accident, Aspelling sued Stedall for damages, alleging that the accident had been due to negligence on the part of Stedall. At court a quo, Aspelling gave evidence in that, on several occasions prior to the accident, she had noticed that the gate to the swimming pool was not closed and remonstrated with Stedall and asked her to ensure that it was kept closed. Unfortunately, Stedall did not testify at trial court due to a head injury sustained by her prior to the accident. The court a quo found that the accident had been due to negligence both on the part of Stedall as well as Aspelling, the child's mother. It held that Stedall had been twice as culpable as the child's mother.

On appeal and at the outset, Leach J identified the fundamental flaw in the court a quo judgment, in that the lower court confined itself to the issue of negligence without first establishing wrongfulness. Leach J quoted with approval Country Cloud Trading CC v MEC, Department of Infrastructure and Development 2015 (1) SA 1 (CC), paras 20-21, that it is important "to ensure that wrongfulness and negligence are recognised as separate and discrete elements as, if they are not and negligence is elevated to the determining factor, they would be conflated. Should that occur, the safeguard of regarding wrongfulness as a separate requirement would be lost". Therein lies the danger of conflating or confusing the two elements as they serve a different purpose or inquiry in establishing liability of the wrongdoer. Leach J rebuked such conflation and cites numerous cases highlighting the dangers of this.

After all being said and done, the court noted that the issue that needed to be determined by the appeal court was whether, when a toddler is brought to the private premises of a homeowner in the custody and supervision of her parent, the homeowner should be liable if the custodian parent, momentarily distracted, allows the child out of her sight and the child is injured when falling into a swimming pool of which her mother was aware. The test for this is whether in these circumstances and, in light of constitutional norms, including in particular the necessity to protect the best interests of a child, the failure to ensure that the swimming pool gate was secured so it could not be opened by a toddler not only evokes moral indignation, but also that the legal convictions of the community demand that it be regarded as wrongful and that the loss be compensated by the person who failed to act positively or whether it would be over-burdensome to impose liability. In essence, the latter is the test or criterion of wrongfulness.

In determining the omission (pool gate left opened by Stedall with full knowledge of Aspelling), the court examined and discussed similar cases of this nature, both locally and in foreign jurisdictions and comparing these with public facilities cases were children were injured. Then the court remarked, "suffice it to say that common to all is the sentiment that where small children are in the care and under the supervision of their parents whilst visiting the home of another, the duty to keep the child safe lies upon the latter and the homeowner should not be held liable in the event of the child falling into a swimming pool when the parent is distracted".

In applying the test or criterion of wrongfulness to the facts at hand, Leach J held as follows:

"I am acutely aware of the pitfalls of relying too heavily upon decisions in foreign jurisdictions for the reasons already mentioned. But all of these cases are of persuasive value and seem to me to reflect public and legal policy of this country as well, namely, that it would be unreasonable - in the sense of reasonableness as explained by the Constitutional Court in Country Cloud - to impose liability upon the owner of a residence should a small child in the care of her mother wander off when the mother is briefly distracted and accidentally fall into a swimming pool of which the mother is aware. To hold otherwise would be to expect the host to provide greater supervision that the parent itself."

On this score, the court concluded that the elements of wrongfulness had not been established and, on this basis alone, the appeal succeeded. Strictly speaking, that should have been the end of the matter. But, I suspect Leach J appreciating the sensitivity of the matter due to the prior relationship of the parties then went on to deal with negligence and found that Aspelling failed to establish negligence on the part of Stadell.

In closing, Leach J wisely remarked "as stressed in a number of the authorities already mentioned in similar circumstances, accidents unfortunately do happen. But the fact that an accident happened does not mean that someone must be held liable". The upshot of this judgment is two-fold, namely, (i) the tendency of our courts not to strictly interpret and apply the elements of delict for the purpose for which they serve or are intended does not assist litigants in the long run and (ii) harm does not necessarily translate to negligence or wrongfulness. As such, parents bear the ultimate responsibility for their children’s safety and well-being and this duty cannot be abdicated and therefore remains paramount.

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