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You have been warned

3 June 2015

Having regard to the rise in litigation in terms of delict, it is imperative that attorneys have a grasp of the elements of delict and how they apply. Furthermore, when our courts adjudicate these matters, it is of greater importance for our judges to make a clear distinction between the elements of delict in order to guard against incorrect decisions. This was clearly evident in the recent Supreme Court of Appeal decision of Za v Smith [2015] ZASCA 75.

In the Za case, the matter was taken on appeal by Mrs Za (the appellant) from the Western Cape High Court. The facts that were common cause in both courts were that on 27 June 2009, Mr Za and his friend, Mr Moggee went to see the snow that had fallen on Conical Peak, one of the highest mountains in the Western Cape. They decided to go on the four-wheel drive route situated in the Matroosberg Reserve. The Matroosberg Reservaat CC (the second respondent) conducted the business of a private nature reserve on the property of Mr Andre Smith (the first respondent).

Za and Moggee travelled to the park and took their vehicles on the four-wheel drive route. The route situated in the reserve comes to an end at the foot of Conical Peak. In the vicinity of the parking area there is a sharp precipice that falls approximately 150m into a gorge known as the Groothoekkloof. Judge Brand described that while it is clear from the surroundings that there is a very deep gorge between the parking area and the sheer cliff faces, it is not apparent (especially when covered in snow) where the edge of the parking area is. There were no warning signs or indications of the position of the precipice erected by the first and second respondents.

After alighting from their vehicles, Za and Moggee intended to go over to an area where Moggee had previously taken his family, to enjoy the view of the mountains. While walking to the spot, Moggee was carrying two fold up chairs and drinks. Without warning, Moggee slipped on frozen ground covered by a layer of unfrozen snow and landed on his hands and knees. When testifying, he advised that the surface was hard and slippery. Moggee started sliding uncontrollably towards the precipice on his hands and knees. He saw a patch of what appeared to be grass and managed to stop sliding by placing his hand on it. Moggee testified that once he stopped, he saw Mr Za sliding past him towards the precipice with his hands in the brace position. Mr Za slid over the edge of the precipice and fell to his death. The appellant brought the initial action for loss of support in the Western Cape High Court on her own behalf and on behalf of the couple’s three minor children.

In the court a quo, as their first line of defence the respondents raised the point that no wrongfulness on the part of the respondents existed. They cited old authorities and alleged that owners of property have a duty to warn visitors of hidden dangers that exist on the property. The respondents alleged that the danger on the property, based on the fact that there was a deep gorge that could clearly be seen, implied that the danger on the property was clear and that the respondents need not warn visitors of this.

Although the court a quo found merit in this argument, they proceeded with the test for causation, being the well-known “but-for” test. The court relied on the fact that Moggee had previously visited the park and had an understanding of the layout of the park. Furthermore, Za, an Italian man who had grown up in the Alps, would have had an understanding of mountainous terrain. The fact that on the day in question, Moggee himself slipped and almost fell to his death demonstrated that preventative steps as proposed by the appellant’s witness, would not have prevented the death of the deceased. Therefore, the appellant’s initial claim was dismissed on the grounds that she had failed to establish causal link between the omission of the part of the respondents and the death of the deceased.

The SCA found that the court a quo had erred in its finding. When adjudicating the matter, the SCA correctly broke the matter down into the elements of delict. There are five elements of delict that one must prove in order to be successful with one’s claim, and these are:

  • Conduct – Positive conduct or an omission
  • Wrongfulness
  • Fault – Intent or negligence
  • Causation
  • Damages

Each of these elements operates as a safety valve on a delictual claim – if the claim does not fulfil one of the elements, then there is no need to evaluate the remainder of the elements and the claim can therefore not succeed.

The court, when adjudicating a delictual claim, first has to determine whether there has been conduct on the part of the defendant, either by way of an act or an omission. Wrongfulness is the element that deals specifically with public policy. Public policy is enshrined in our Constitution. When evaluating the element of wrongfulness the court must ask whether it is reasonable to impose liability on the defendant.

As in the case of Loureiro v Imvula Quality Protection (Pty) Ltd 2014 SA 394 (CC), the Constitutional Court stated that “The wrongfulness enquiry focuses on the conduct and goes to whether the policy and legal convictions of the community, constitutionally understood, regard it as acceptable. It is based on the duty not to cause harm – indeed to respect rights – and questions the reasonableness of imposing liability”. In this test of reasonableness the court must have regard to considerations of public policy. Should it be found that it is reasonable to impose liability on the part of the defendant, the court then turns to the element of fault or negligence.

The test for negligence was firmly established by the case of Kruger v Coetzee 1966 (2) SA 428 (A) where the court asked whether a reasonable person in the position of the defendant would have reasonably foreseen that harm could occur and if he could have, would the reasonable person have taken steps to prevent the harm from occurring. If this query is answered in the affirmative then the court moves on the element of causation using the “but-for” test, which asks the question “but for the defendant’s negligence, would the defendant have suffered harm”. Once this is established the court questions the damages as suffered by the plaintiff. These individual elements should be evaluated on their own merit and it is important that they not be confused.

It was common cause that there had been an omission on the part of the respondents in that they did not have any warning signs or preventative measures in place to prevent occurrences of this nature. When moving on to the element of wrongfulness, the SCA made an important comment, that the judiciary all too often confuses the elements of wrongfulness and fault, which can lead to a decision by the court being incorrect, as they had seen in the court a quo. The SCA found that the respondents’ defence of the absence of wrongfulness was incorrect. The fact that the respondents had alleged that, in terms of case law, they were not required to warn visitors to the park of danger that was apparent, fell into the element of negligence rather than to wrongfulness.

The SCA cited various cases showing the true meaning of wrongfulness and how it should be applied. Furthermore, it cited cases in which the elements of wrongfulness and negligence had previously been confused. The SCA found that if the test for wrongfulness is whether it would be reasonable to expect the defendant to take positive measures to prevent harm, and the test for negligence is whether the reasonable person should have taken steps to prevent harm. This then results in negligent conduct being wrongful and wrongful conduct being negligent. Therefore, the confusion between the two elements leads to the test for wrongfulness being ignored. The court then evaluated the element of wrongfulness appropriately and it found that based on certain stereotypes of persons in control of dangerous property and based on considerations of public policy, the appellant had established the element of wrongfulness.

Having regard to negligence, the respondents persisted with their reliance on the defence that the danger that materialised when Za slipped to his death, was absolutely clear and apparent. Therefore the respondents were not duty bound to take steps to warn and protect visitors of the park from this danger. The appellant called two expert witnesses to testify, Mr Rik de Decker, a mountaineer with years of experience, and Mr Dion Tromp, an expert in height safety equipment and in working at heights.

De Decker testified that the conditions on the day at Conical Peak were objectively dangerous, by which he meant that the real and imminent danger of the conditions was unlikely to be recognisable to amateurs with little to no experience. He advised the court that on the day, the conditions were dangerous as there was a soft layer of snow concealing a hard layer of frozen ice. This ice was extremely slippery and dangerous and could cause a person to slide for hundreds of meters before coming to a stop. Tromp also testified to the fact that the danger would not have been evident to the uninitiated. In the report he prepared for the court, he proposed certain measures that could be put in place to alert visitors to the park of the risk that they could encounter. He submitted that a line of poles connected by markers should be placed along the line, indicating where visitors are not allowed to go any closer to the precipice. He submitted further that graphic warning signs be erected to keep visitors away from the precipice and that there be a  briefing before visitors go on the four-wheel drive trail to alert them to the dangers that they might encounter. Tromp testified that these preventative measures could be put in place at a minimal cost to the respondents. The SCA employed the test as found in Kruger v Coetzee. The respondents argued that it should be clear to visitors of the park that there was a deep gorge between the parking area and the cliffs. Based on evidence of testimony and photographs presented to the court, the SCA found that while it was obvious that there was a deep gorge, the distance between the parking area and the precipice was not clear, and even less so with the snow fall. The edge of the parking area was invisible. Having regard to the testimony before it, the court rejected the respondents’ argument against the preventative measures, the court found the respondents to have been negligent.

The court thereafter evaluated causation by utilising the “but-for” test. The SCA held a different view to the court a quo. The respondents argued that, even if the danger was not apparent to a first time visitor to the park like Za, Moggee was aware of the danger that one could slip and slide to their death as he had been there before. Therefore, measures alerting him to the danger would have been of no consequence. Not only did Moggee testify that he was not aware of the danger, but the court also found difficulty in transposing Moggee’s knowledge on to Mr Za. The court also found that Moggee had visited the park on different occasions when then conditions were far less dangerous. Lastly, the court found that since they were dealing with the claim of the dependants of Za, Moggee’s knowledge of the danger was of no consequence and it was whether Za had been aware of the danger. Therefore the court found that the proposed preventative measures could not be found to be of no consequence. The court found that the element of causation had been proven. The appeal was upheld.

Having regard to this matter, it is important to take note of the importance the SCA places on distinguishing the elements of delict. The court makes it clear that each element needs to be evaluated based on the facts surrounding the matter and that failing to adjudicate one element correctly may lead to an incorrect decision. Furthermore, the SCA demonstrates the importance of putting warning signs in place when there is a possibility of danger and for a person to suffer harm to their person or property. If a store cleaner is expected to put up a warning sign to indicate that a floor is wet and that a person may slip should they walk through it, this shows that the slightest possibility of a harmful event occurring against which a member of the public is not warned, could lead to business incurring liability. Businesses need to take cognizance of this decision and ensure that members of the public are made sufficiently aware of any danger that may ensue on their premises.

The team

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