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[2022] ZANCHC 49
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Sampson v Legal Aid South Africa (2201/2021) [2022] ZANCHC 49; (2023) 44 ILJ 422 (NCK) (2 September 2022)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No: 2201 /2021
Heard
on: 03/06/2022
Delivered
on: 02/09/2022
Reportable:
YES / NO
Circulate
to Judges: YES / NO
Circulate
to Magistrates: YES / NO
Circulate
to Regional Magistrates: YES / NO
In
the matter between:
INGRID
SAMPSON
PLAINTIFF
and
LEGAL
AID SOUTH AFRICA
DEFENDANT/EXCIPIENT
JUDGMENT
MAMOSEBO
J
[1]
The excipient, Legal Aid South Africa, excepts to the plaintiff’s
particulars
of claim in terms of Rule 23 of the Uniform Rules of
Court on the grounds that the claim lacks the allegations necessary
to sustain
a cause of action against it. For convenience, I
shall refer to the parties as plaintiff and the excipient/defendant.
[2]
A synopsis of the facts as pleaded in the particulars of claim is as
follows: The
plaintiff is married to Mr Brett Sampson, formerly
employed by the excipient as its Civil Principal Attorney. Mr
Sampson’s
office is situated at P[....] Building, [….]
S[....] Street, Kimberley. The defendant had a legal duty (duty of
care) towards
its employees, which duty includes:
(a)
providing a safe employment environment;
(b)
preventing harm befalling them at their workplace;
(c)
preventing them from being exposed to dangerous employment situations
and/or to a dangerous work environment;
(d)
ensuring safe working conditions;
(e)
putting reasonable measures and/or security measures and/or safety
precautions in place in order to
establish secure; protected and/or
guarded work premises;
(f)
preventing unauthorised access to the defendant’s place of
employment; and
(g)
doing all things necessary to protect its employees, including Mr
Sampson, against assaults and other
unlawful acts by third parties.
[3]
It is alleged that on 24 October 2018 Mr Sampson was assaulted or
attacked at work
by three unknown people at the lifts and/or elevator
in the lobby at P[....] Building as a result of which he sustained
serious
injuries. The plaintiff pleads that the attack resulted
from the wrongful negligence and negligent breach of the defendant’s
legal duty by:
(a)
not providing the presence of security guards or personnel at the
elevator and/or entrance to the offices
in the building;
(b)
not preventing the attackers from entering the building;
(c)
not preventing the attackers from entering the elevators and/or
aisles of the P[....] Building;
(d)
not ensuring that entry into the P[....] Building and/or entry to the
offices in the P[....] Building
is security controlled; and
(e)
failing to take reasonable measures to safeguard the employees of the
defendant.
[4]
Mr Sampson sustained the following injuries: severe concussion
and head trauma;
fracture of his right arm causing a previous open
reduction and fixation to dislodge; multiple areas of tenderness and
bruising
over his back and rib area; damage to his inner left ear
causing a hearing impediment; and cataracts on both eyes.
Resultantly,
he was hospitalised and received extensive medical
treatment. He has not returned to work and has not received his
employment
benefits and/or salary from the defendant. He is
unable to practice as an attorney in the employment of the defendant
or
at all.
[5]
The plaintiff now claims damages against the excipient in the amount
of R2 Million.
Her cause of action is outlined in paras 9 and
10 of the particulars of claim as follows:
“
9.
As employer, the defendant owed a duty of care (legal duty) to avoid
the infliction of psychiatric illness
on relatives of its employees,
and in particular plaintiff, through nervous shock sustained by
reason of physical injury or peril
to its employees and in particular
to Brett.
10.
Defendant has breached its duty towards plaintiff as it
has breached its duty of care towards Brett as set out
in paragraph 4
above.”
[6]
The excipient contends that the plaintiff’s claim lacks the
allegations necessary
to sustain a cause of action based on the
following two grounds that even if the factual allegations in the
particulars of claim
made against the excipient are assumed to be
true:
6.1
they do not establish wrongfulness and are not susceptible in law of
sustaining a finding that the excipient
had a duty of care to avoid
loss being caused to the plaintiff, failing which, she would have a
damages’ claim against the
excipient ; and
6.2
the pleaded causal nexus between the excipient’s conduct and
the plaintiff’s losses are too remote
to give rise to a
delictual claim.
[7]
In
Hlumisa
Investment Holdings RF LTD and Another v Kirkinis and Others
[1]
Navsa
JA made these instructive remarks:
“
[22]
In deciding an exception a court must take the facts alleged in the
pleading as being correct. It is for the excipient to satisfy
the
court that the conclusion of law set out in the particulars of claim
is unsustainable. The court may uphold the exception only
if it is
satisfied that the cause of action or conclusion of law cannot be
sustained on every interpretation that can be put on
those facts. As
Harms JA noted in Telematrix, exceptions
are
a useful
tool to ‘weed out’ bad claims at an early stage and an
unnecessarilytechnical approach is to be avoided. The
facts are
what must be accepted as correct; not the conclusions of law.”
[8]
In an exception the excipients have, in the first place, to show that
the pleading
is excipiable on every interpretation that can
reasonably be attached to it and; secondly, the plaintiff is confined
to the facts
alleged in the Particulars of Claim, apart from any
further facts which the parties may have agreed might be taken into
account.
See
First
National Bank of Southern Africa Ltd v Perry NO and Others
[2]
.
[9]
Adv Hefer SC, for the plaintiff, expressed surprise that the
defendant took exception
to the plaintiff’s particulars of
claim and the demand for the plaintiff to establish wrongfulness.
According to counsel
the plaintiff’s legal team were
served by the Legal Aid South Africa with a special plea of injury on
duty which resorts
under s 35 of the Compensation for Occupational
Injuries and Diseases Act
[3]
as
amended (COIDA) in the matter of
Brett
Sampson v Legal Aid South Africa
under case number 2200/2021. Counsel submitted that it is for
this reason that evidence is necessary to show that the incident
was
indeed an occupational injury and the
onus
lies with the plaintiff. Counsel went on to explain that the
plaintiff’s incident flows from Mr Sampson’s and
the
possibility exists that the matters may be consolidated and heard
together. Counsel further intimated that Mr Sampson’s
claim amounts to R76 million.
[10]
I am mindful of the fact that the aforementioned exposition does not
form part of the pleadings
in the current matter and the
determination as informed by the authorities cited herein that when
an exception is taken against
a pleading the Court looks at the
pleading as it stands. However, Harms JA in
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
[4]
commented
on the objection by counsel to the Court having regard to the
totality of the pleadings counsel had contended that the
Court
confine itself to the consideration of facts alleged in the body of
the particulars of claim in isolation. The Court found
the objection
to be unmeritorious.
[11]
The issue is whether, in the circumstances pleaded, the plaintiff’s
particulars of claim
disclose a cause of action against the
excipient.
The
First Ground of Exception
[12]
The excipient’s first ground of exception is that the facts as
pleaded by the plaintiff,
even if they can be taken as true, do not
establish wrongfulness and are not susceptible in law to sustain a
finding that the
excipient had a duty of care to avoid loss
being caused to the plaintiff, failing which, she would have a
damages claim against
the excipient.
[13]
The question that arises on the issue of wrongfulness is whether
public- or legal-policy considerations
dictate that the excipient be
held liable to the plaintiff for the injuries sustained as a result
of her husband’s injuries.
[14]
Mr Hefer contended that whereas the first ground is based on the fact
that wrongfulness is excluded
by the provisions of s 35(1) of COIDA,
the court cannot, on exception, find that the incident during which
Mr Sampson was injured
can be found to be an occupational injury
without evidence being led in that regard.
[15]
Adv Scott, for the excipient, contended that wrongfulness is a
necessary element in assessing
a claim for delictual liability. In
order to substantiate the question whether the excipient’s
conduct, which is claimed
to be responsible for the plaintiff’s
loss should be classified as wrongful, counsel relied on
Home
Talk Developments v Ekurhuleni Metropolitan Municipality
[5]
where
Ponnan JA, writing for a unanimous court, pronounced:
“
[20]
Conduct is wrongful in the delictual sense if public policy
considerations demand that in the circumstances the plaintiff
has to
be compensated for the loss caused by the negligent act or omission
of the defendant. It is then that it can be said
that the legal
convictions of society regard the conduct as wrongful.
‘Wrongfulness’, the Constitutional Court
held, ‘typically
acts as a brake on liability, particularly in areas of the law of
delict where it is undesirable or overly
burdensome to impose
liability’. It elaborated: ‘[wrongfulness] functions to
determine whether the infliction of culpably
caused harm demands the
imposition of liability or, conversely, whether “the social,
economic and other costs are just too
high to justify the use of the
law of delict for the resolution of the particular issue”.’
What is called for
is ‘not an intuitive reaction to a
collection of arbitrary factors but rather a balancing against one
another of identifiable
norms.’”
[16]
The Supreme Court of Appeal (SCA) in
Hlumisa
[6]
made
the following pronouncements:
“
[64]
The appellants submitted that it would not be appropriate to decide
wrongfulness on exception. In this case, as in all cases
in which a
plaintiff claims damages for pure economic loss, it is incumbent that
the facts upon which such a plaintiff relies for
its contention that
the loss was wrongfully caused be pleaded. The pleadings are thus the
high-water mark of its case on wrongfulness.
In Telematrix supra [22]
para 2 this court noted that it has often determined wrongfulness on
exception.
[65]
In Telematrix para 3 Harms JA said that ‘(s)ome public policy
considerations can be decided without a detailed
factual matrix,
which by contrast is essential for deciding negligence and causation.
In AB Ventures Ltd v Siemens Ltd
2011 (4) SA 614
(SCA) ([2011] ZASCA
58) para 5
Nugent JA noted that in a case
such as this, the issue of
wrongfulness is ‘quintessentially a matter that is capable of
being decided on exception’.”
[17]
In the plaintiff’s particulars of claim referred to at para 5
(above) she is claiming for
psychiatric illness. Mr Scott
conceded that the claim falls under the ambit of a recognised
delictual claim at common law.
See
Komape
and Others v Minister of Basic Education and Others
[7]
.
[18]
From the factual matrix in the plaintiff’s particulars of
claim, it is pleaded that the
excipient owed but has breached a duty
to provide a safe working environment to its employees, including her
husband and that it
is breach of that duty that gave rise to her
claim. Negligent causation of pure economic loss is not
regarded as
prima
facie
wrongful. Its wrongfulness depends on the existence of a legal
duty. The imposition of this legal duty is a matter
for
judicial determination involving criteria of public- or legal-policy
consistent with constitutional norms.
[8]
[19]
Nugent JA restated the principle that assists the courts against
uncertainty and unpredictability
in
Minister
of Safety and Security v Van Duivenboden
[9]
and
held:
“
When
determining whether the law should recognise the existence of a legal
duty in any particular circumstances what is called for
is not an
intuitive reaction to a collection of arbitrary factors but rather a
balancing against one another of identifiable norms.”
[20]
It is necessary to identify the considerations of policy that are of
relevance in the light of
these insightful remarks by Brand JA
in
Fourway
[10]
:
“
[17]
We therefore strive for certainty. The question is, how can
that be achieved in an area directed by considerations
of public or
legal policy? I believe we must accept at the outset that
absolute certainty is unattainable. The moment
this court took
the first tier policy decision – in Administrateur, Natal v
Trust Bank van Afrika Bpk
1979 (3) SA 824
(A) – to abolish the
absolute exclusion of liability for pure economic loss, it abandoned
the bright line of absolute certainty.
The second tier policy
decision as to when liability should be imposed must of necessity be
accompanied by some degree of
uncertainty, at least at the early
stages of development in this area of the law. That much was
recognised and predicted
by Rumpff CJ in Administrateur, Natal itself
(see 831B). This measure of resulting uncertainty also seems to
be an experience
shared by those jurisdictions where the same first
tier policy decision has been taken. Thus it was stated, for
example,
by Gaudron J in the Australian High Court, in Perre v Apand
(Pty) Ltd
[1999] HCA 36
;
1999 198 CLR 180
(HC of A) para 25:
'The
law as to liability for economic loss is a "comparatively new
and developing area of the law of negligence". It
has not
yet developed to a stage where there has been enunciated a governing
principle applicable in all cases. Perhaps it never
will.'
And
by McLachlin J in the Canadian Supreme Court in Canadian National
Railway Co v Norsk Pacific Steamship Co Ltd (1992) 91 DLR
(4th) 289
at 366:
'Judges
seem able to pick out deserving cases when they see them. The
difficulty lies in formulating a rule which explains
why judges allow
recovery of economic loss in some cases and not in others.'
(Compare
also K Zweigert & H Kötz An Introduction to Comparative Law
3 ed 625 et seq; B S Markesinis The German Law of
Torts, A
Comparative Introduction 3 ed 42 et seq; Daniel Visser & Niall
Whitty The Structure of the Law of Delict in Kenneth
Reid and
Reinhard Zimmermann A History of Private Law in Scotland Vol II
Obligations 461 et seq.)”
The
SCA continued:
“
[19]
Another attempt at a bright line rule is often referred to as 'the
three-stage test' which is attributed to a passage
in the speech of
Lord Bridge of Harwich in Caparo Industries PLC v Dickman
[1990] UKHL 2
;
[1990] 2 AC
605
(HL) at 617-618. (See eg D v East Berkshire Community Health NHS
Trust
[2005] UKHL 23
;
[2005] 2 AC 373
(HL) para 2 where reference is made to 'the
familiar test laid down in Caparo'. See also Sutradhar v Natural
Environment Research
Council
[2006] UKHL 33
;
[2006] 4 All ER 490
(HL) para 32.)
According to this test a plaintiff can establish wrongfulness
(in the South African sense) only when it can
prove three things:
first, that the causing of damage was reasonably foreseeable;
secondly, that a relationship of 'proximity'
or 'neighbourhood'
existed between the parties; thirdly, that in all the circumstances
of the case, it is fair, just and reasonable
to impose liability on
the defendant. Somewhat ironically, however, Lord Bridge never
claimed to create a bright line rule. He
did not even profess to
formulate a 'test'. That, I think, is apparent from the very
passage in his speech usually relied
upon in support of the
'three-stage test'. After Lord Bridge referred to the ingredients of
foreseeability, proximity and the situation
in which the court
considers it fair, just and reasonable to impose liability, he
continued (at 618A-B):
'[T]he
concepts of proximity and fairness . . . are not susceptible of any
precise definition as would be necessary to give them
utility as
practical tests, but amount in effect to little more than convenient
labels to attach to features of different specific
situations which .
. . the law recognises pragmatically as giving rise to a duty of care
. . ..'
And
in the same case Lord Oliver of Aylmerton said (at 633F):
'I
think that it has to be recognised that to search for any single
formula which will serve as a general test of liability is to
pursue
a will-o'-the-wisp.'”
[21]
The plaintiff found herself in a precarious situation following her
husband’s attack. The
incident made her vulnerable.
There is nothing that she could have done to protect herself or
her husband against that risk.
The plaintiff’s pleadings
encapsulate all the policy considerations that must be taken into
account.
[22]
While on the one hand Mr Scott conceded to the common law claim of
psychiatric illness he, on
the other hand, relied on s 35(1) of COIDA
when making the submission that such a claim is statutorily excluded
against employers
brought by an employee or their dependants.
[23]
Section 35(1) provides:
“
No
action shall lie by an employee or any dependant of an employee for
the recovery of damages in respect of any occupational injury
or
disease resulting in the disablement or death of such employee
against such employee’s employer, and no liability for
compensation on the part of such employer shall arise save under the
provisions of this Act in respect of such disablement or death.”
[24]
It was argued on behalf of the excipient that the plaintiff is a
dependant of an employee as
defined in COIDA. Since her claim
is predicated on the allegation of a breach of a duty of care by the
excipient, owed to
Mr Sampson as its employee, it therefore means
that the damages Mrs Sampson is claiming are in respect of any
occupational injury
resulting in the disablement of Mr Sampson.
Consequently, the argument went, the statutory bar is
applicable in the pleaded
circumstances.
[25]
In countering this submission Mr Hefer contended that evidence is
necessary to show that the
incident was an occupational injury and
that the
onus
is
on the plaintiff to do so. Invoking
MEC
for Health, Free State v DN
[11]
the
question that stood to be answered by the appeal court was whether
the Department of Health, Free State Province, was
notionally liable
to the female doctor for damages sustained as a result of her being
raped by an intruder who had gained access
to the hospital premises.
The SCA confirmed the findings of the trial court holding that
the question to be answered was
whether the act causing the injury
was a risk incidental to the employment. The Court accepted,
however, that there was no
bright-line test and each case has to be
dealt with on its own merits. The Court reasoned that it was
difficult to see how
a rape perpetrated by an outsider on a doctor on
duty at a hospital, could have arisen out of her employment. This
then brings
into the picture the need for evidence to substantiate
the applicability of s 35(1) under these circumstances.
I
am constrained to agree with Mr Hefer that evidence is necessary to
establish whether the injury was an occupational injury.
The
second ground of Exception
[26]
Even if the facts in the particulars can be assumed to be true the
pleaded causal
nexus
between the excipient’s conduct and
the plaintiff’s loss is too remote to give rise to a delictual
claim.
[27]
Pertaining to the second ground of remoteness of damages it was
submitted on behalf of the plaintiff
that the court hearing the
exception is not in a position to find that these damages are too
remote before evidence had been led
on the facts. It is for
this reason that the plaintiff maintains that the matter must go to
trial.
[28]
The aspect of the remoteness of damages brings me to the issue of
causation. As explained
by Corbett CJ crisply in
International
Shipping
Co (Pty) Ltd v Bentley
[12]
causation
involves two distinct enquiries. The first enquiry, the factual
causation, is commonly known as the ‘but-for’
test. The
facts are as outlined in the particulars of claim. The
excipient has not seriously contested the correctness
of the facts.
I say so because when taking the exception it said ‘
even
if the facts may be assumed to be true…’.
One
can still move from the premise that had the unknown men not attacked
Mr Sampson Mrs Sampson would not have found a need to
bring a
delictual claim against her husband’s employer. She would
not have suffered any loss.
It
can accepted that the factual causation is not in issue
.
[29]
In as far as the second enquiry is concerned, that is where the
dispute lies. The question
is whether the conduct of the
excipient is linked sufficiently closely or directly to the loss
suffered by the plaintiff for it
to attract legal liability or
whether the loss is too remote. This is sometimes called ‘legal
causation’. When
one determines whether legal causation
exists or not considerations of policy come into play. There
must be a reasonable
connection between the harm threatened and the
harm done. In
International
Shipping
[13]
the court held that the test in our law for determining remoteness is
a flexible one. The SCA has cautioned that the courts
should,
in applying these tests, not use them dogmatically or exclusively,
but rather with some measure of flexibility to avoid
an unfair or
unjust result
[14]
.
I
am of the view that the pleaded causal
nexus
between the
excipient’s wrongful conduct and the plaintiff’s losses
are not too remote. It therefore follows
that the exception
stands to fail.
[30]
The excipient had the duty to persuade the Court that upon every
interpretation which the particulars
of claim can reasonably bear, no
cause of action is disclosed. I am not satisfied that the
excipient has discharged this
duty. In my view, the particulars
of claim cannot be said to be so wanting that the excipient finds
difficulty in pleading
thereto. In any event, a dismissal of
the exception does not finally dispose of the issue raised by the
exception. The
point can still be argued at the trial.
[31]
Counsel for the excipient submitted that should the excipient not
succeed in its application
and the matter is sent for trial the court
should reserve the costs for later determination. There is no
reason in my view
why costs should not follow the result.
[32]
In the result, the following order is made:
The
exception is dismissed with costs.
MAMOSEBO
J
NORTHERN
CAPE HIGH COURT
For
the plaintiff/ respondent:
Adv JJF Hefer SC
Instructed
by:
David
Magoma Attorneys
For
the defendant/excipient:
Adv T Scott
Instructed
by:
Mr
AL Nobetsu
Legal
Aid South Africa
[1]
2020 (5) SA 419
(SCA) at 432 para 22
[2]
2001
(3) SA 960
(SCA) at 965 C – D.
[3]
130 of 1993
[4]
2006 (1) SA 461
(SCA) at 467 para 10
[5]
2018 (1) SA 391
(SCA) at para 20
[6]
Ibid at paras 64 and 65
[7]
2020 (2) SA 347
(SCA) at 357 para 26 -358 para 27
[8]
Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd
[2008] ZASCA 134
;
2009 (2)
SA 150
(SCA) at 156 para 12
[9]
2002 (6) SA 431
(SCA) para 21
[10]
Ibid para 17
[11]
2015 (1) SA 182
(SCA) at 196 para 31
[12]
1990 (1) SA 680
(A) at 700E – G
[13]
Ibid 701A - F
[14]
Fourway Haulage SA (Pty) ltd ibid at 165 para 34