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[2008] ZASCA 170
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Chartaprops 16 (Pty) Ltd and Another v Silberman (2009 (1) SA 265 (SCA) ; [2009] 1 All SA 197 (SCA); (2009) 30 ILJ 497 (SCA)) [2008] ZASCA 170; [2008] ZASCA 115 (25 September 2008)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
CASE
NO: 300/07
CHARTAPROPS
16 (PTY) LTD First
Appellant
ADVANCED
CLEANING SERVICES CC Second Appellant
and
MICHELLE
SILBERMAN Respondent
Neutral citation:
Chartaprops
16 v Silberman
(300/07)
[2008] ZASCA 115
(25 September 2008)
Coram: SCOTT, NUGENT, PONNAN and
MAYA JJA and LEACH AJA
Heard: 14 MAY 2008
Delivered:
25 SEPTEMBER 2008
Summary: Delict – hazard in
shopping mall – liability for acts of independent contractor.
________________________________________________________________
ORDER
________________________________________________________________
On
appeal from: High Court, Johannesburg (Boruchowitz J sitting as court
of first instance)
In the result:
1 The appeal of the first appellant
is upheld with costs.
2 The appeal of the second appellant
is dismissed with costs.
3 The order of the court below is set
aside and the following is substituted in its stead:
‘
(a) The claim against
the first defendant is dismissed with costs.
(b) It is declared that the second
defendant is liable to the plaintiff for such damages as might be
agreed upon or proved in
consequence of the event that is the subject
of this claim.
(c) The
second defendant is ordered to pay the plaintiff’s costs.’
________________________________________________________________
J
U D G M E N T
________________________________________________________________
NUGENT JA
[1] The respondent in this appeal –
Mrs Silberman – visited a shopping mall in Johannesburg. In one
of the passageways
of the mall was a pool of slippery substance –
what the substance was has not been established – that had been
spilt
on the floor. Oblivious to its presence Mrs Silberman slipped
on the substance and was injured. The shopping mall was owned by and
under the control of the first appellant – Chartaprops –
which had contracted with the second appellant – Advanced
Cleaning – to keep the floors of the shopping mall clean. Mrs
Silberman sued both appellants in the High Court at Johannesburg
for
the recovery of her damages. The action was tried by Boruchuwitz J
who held both appellants jointly and severally liable (the
amount of
the damages has yet to be determined) but granted them leave to
appeal to this court.
[2] Precisely how the substance came
to be on the floor has not been established. It is possible that it
was spilt by one of the
cleaners but it might just as well have been
spilt by a member of the public. The complaint against the appellants
is not that
they – or those for whose conduct they are legally
responsible – created the hazard. The complaint is that they or
their employees negligently omitted to detect and remove the hazard
and that the respondents are liable for the consequences of
the
omission.
[3] Advanced Cleaning had a system in
place for cleaning the floors the details of which are not important.
It is sufficient to
say that every part of the floor should
ordinarily have been passed over by one or other of the cleaners in
the employ of Advanced
Cleaning at intervals of no more than five
minutes. I think it is clear that the system, if it was adhered to,
was adequate to
keep the floors in a reasonably safe condition. It is
also not disputed that Chartaprops itself kept a regular check on the
contractor’s
performance. Its centre manager consulted each
morning with the cleaning supervisor and personally inspected the
floors of the
shopping mall daily to ensure that they had been
properly cleaned. If he encountered litter or a spillage he would
arrange for
its immediate removal.
[4] But even the best systems
sometimes fail. The learned judge in the court below found that the
spillage had been on the floor
for thirty minutes or more at the time
it was encountered by Mrs Silberman. He said that that was ‘a
sufficiently lengthy
period so as to constitute a hazard to members
of the public and to the plaintiff in particular’, that ‘the
employees
of [Advanced Cleaning] failed to take reasonable steps to
detect and remove [the hazard]’, and that the cleaning system
was
accordingly ‘not sufficiently adequate to detect and remove
spillages with reasonable promptitude.’ On that basis he
concluded that Advanced Cleaning was negligent and was liable to Mrs
Silberman for her damages and that Chartaprops was vicariously
liable
for the negligence of Advanced Cleaning.
[5] The factual finding by the court
below that the substance had been on the floor for thirty minutes or
more at the time the incident
occurred – a finding upon which
the further conclusions was built – was placed in issue before
us but I see no proper
grounds to disturb that factual finding. The
real questions that arise in this appeal relate rather to the
consequences of that
finding.
[6] The liability of Chartaprops was
held to have arisen vicariously for what was said to be negligence on
the part of Advanced
Cleaning and in that respect I think the court
below was incorrect. Where liability arises vicariously it is because
the defendant
and the wrongdoer stand in a particular relationship to
one another. Various explanations have been offered for the existence
of
the rule that creates liability merely on account of the existence
of that relationship – usefully collected by Hartmut Wicke
in
his thesis entitled
Vicarious
Liability in Modern South African Law
.
1
While none provides a
completely satisfactory explanation for the existence of the rule it
is nonetheless firmly embedded in our
law. It is also well
established that the relationships to which the rule applies do not
include the relationship with an independent
contractor. That appears
from the decision of this court in
Colonial
Mutual Life Assurance Society Ltd v MacDonald
,
2
which has been consistently followed, accurately reflected in the
headnote as follows:
‘
A
principal is liable for the acts of his agent where the agent is a
servant but not where the agent is a contractor, sub-contractor
or
the servant of a contractor or sub-contractor.’
[7] A defendant might nonetheless be
liable for harm that arises from negligent conduct on the part of an
independent contractor
but where that occurs the liability does not
arise vicariously. It arises instead from the breach of the
defendant’s own
duty (I use that term to mean the obligation
that arises when the reasonable possibility of injury ought to be
foreseen in accordance
with the classic test for negligence
articulated in
Kruger v
Coetzee
3
).
It will arise where that duty that is cast upon the defendant to take
steps to guard against harm is one that is capable of being
discharged only if the steps that are required to guard against the
harm are actually taken. The duty that is cast upon a defendant
in
those circumstances has been described (in the context of English
law) as a duty that is not capable of being delegated: ‘the
performance of the duties, but not the responsibility for that
performance, can be delegated to another’.
4
Or as it has been expressed on another occasion it is “a duty
not merely to take care, but a duty to provide that care is
taken”
so that if care is not taken the duty is breached’.
5
[8] One such case was
Tarry
v Ashton
,
6
in which a lamp that the defendant had employed an independent
contractor to repair was not securely fastened to the wall of the
defendant’s house and fell on a passer-by. Finding the
defendant to be liable Lord Blackman said the following:
‘
But
it was the defendant’s duty to make the lamp reasonably safe,
the contractor failed to do that; and the defendant, having
the duty,
has trusted fulfillment of that duty to another who has not done it.
Therefore the defendant has not done his duty, and
he is liable to
the plaintiff for the consequences.’
Another was
Hardaker
v Idle District Council
,
7
in which Lindley LJ described the nature of the duty that was cast
upon the council as follows:
‘
But
the council cannot, by employing a contractor, get rid of their own
duty to other people, whatever that duty may be. If their
contractor
performs their duty for them, it is performed by them through him,
and they are not responsible for anything more. They
are not
responsible for his negligence in other respects, as they would be if
he were their servant. Such negligence is sometimes
called casual or
collateral negligence. If, on the other hand, their contractor fails
to do what it is their duty to do or get
done, their duty is not
performed, and they are responsible accordingly.’
[9] That a duty that is cast upon a
defendant might be such that it is discharged only if reasonable
precautions to avoid the harm
are actually taken – and that the
defendant who appoints another to take those steps fails to do will
be liable for the failure
– was held by this court in
Dukes
v Marthinusen
8
to be consistent with
principles of our law of delictual liability. In that case the
defendant employed an independent contractor
to demolish certain
buildings. In a claim for damages arising from the negligent
performance of the work Stratford ACJ said the
following after
considering various cases in this country and in England including
the statements of Lord Blackman and Lindley
LJ that I have referred
to:
‘
The
English law on the subject as I have stated it to be is in complete
accord with our own, both systems rest the rule as to the
liability
of an employer for any damage caused by work he authorises another to
do upon the law of negligence. … It follows
from the law as I
have stated it to be that the first and crucial question in this case
is to ascertain on the facts of the case
whether there was a duty on
the employer who authorised the demolition of these buildings to take
precautions to protect the public
using the highway from possible
injury. If there was such duty it could not be delegated and the
employment of an independent contractor
is an irrelevant
consideration.’
9
[10] In
Langley
Fox Building Partnership (Pty) Ltd v De Valence
10
this court once more
affirmed that the employer of an independent contractor might become
liable in that way, though it was careful
to emphasise that Stratford
ACJ did not purport to say that ‘there might be liability
as
an invariable rule
whenever
the work entails danger to the public’. Goldstone AJA said in
that case that ‘the correct approach to the liability
of an
employer for the negligence of an independent contractor is to apply
the fundamental rule that obliges a person to exercise
that degree of
care which the circumstances demand’.
[11]
Langley
Fox
was another case in
which the defendant employed an independent contractor to do work on
its behalf. The majority held that the
defendant should have realized
that the work was inherently dangerous and was under a duty to take
reasonable steps to guard against
the danger. I think it is clear
from the following passage that the majority considered that duty to
require the defendant to ensure
that adequate precautions were taken
(and it held the defendant liable because they were not taken):
‘
Whether
such precautions were to be taken by the [defendant] or the
contractor, as between them, is a matter depending on their
contract.
As far as the duty to the public in general and the [plaintiff] in
particular is concerned it matters not. That duty
rested upon the
{defendant}.’
11
[12] What emerges from those cases is
that the basis upon which liability arises for the conduct of an
independent contractor is
no more than an application of ordinary
principles of delictual liability. The liability of the employer
rests upon his or her
own failure to take reasonable steps to guard
against the harm. And as Holmes JA emphasized in
Kruger
v Coetzee
,
12
when articulating the classic test for negligence: ‘what steps
would be reasonable must always depend upon the circumstances
of the
particular case’. In some cases it will be reasonable to expect
the defendant only to take reasonable precautions
to prevent the
harm. But in other cases it will be reasonable to expect the
defendant to ensure that those precautions are taken
(whether by
himself or herself or by someone else). It is where that higher
standard is called for that the duty of the defendant
is said to be
‘non-delegable’ and is discharged only if the precautions
are indeed taken.
[13] The following passage from the
decision of the High Court of Australia in
Burnie
Port Authority v General
Jones (Pty) Ltd
13
seems to me to reflect the
approach that our law also takes to the matter:
‘
It
has long been recognized that there are certain categories of case in
which a duty to take reasonable care to avoid a foreseeable
risk of
injury to another will not be discharged merely by the employment of
a qualified and ostensibly competent independent contractor.
In those
categories of case, the nature of the relationship of proximity gives
rise to a duty of care of a special and "more
stringent"
kind, namely a "duty to ensure that reasonable care is taken"
(See
Kondis
v State Transport Authority
[1984] HCA 61
;
(1984)
154 CLR 672
at 686.). Put differently, the requirement of reasonable
care in those categories of case extends to seeing that care is
taken.
One of the classic statements of the scope of such a duty of
care remains that of Lord Blackburn in
Hughes
v Percival
(1883)
8 App Case 443 at 446.):
"that
duty went as far as to require (the defendant) to see that reasonable
skill and care were exercised in those operations
… If such a
duty was cast upon the defendant he could not get rid of
responsibility by delegating the performance of it
to a third person.
He was at liberty to employ such a third person to fulfil the duty
which the law cast on himself ... but the
defendant still remained
subject to that duty, and liable for the consequences if it was not
fulfilled."’
After referring to various categories
of case in which a duty of that kind was said to have arisen in cases
before the courts in
that country the court went on to say the
following:
‘
In
most, though conceivably not all, of such categories of case, the
common "element in the relationship between the parties
which
generates (the) special responsibility or duty to see that care is
taken" is that "the person on whom (the duty)
is imposed
has undertaken the care, supervision or control of the person or
property of another or is so placed in relation to
that person or his
property as to assume a particular responsibility for his or its
safety, in circumstances where the person affected
might reasonably
expect that due care will be exercised" (
Kondis
v State Transport Authority
(1984)
154 CLR at 687; see, also,
Stevens
v Brodribb Sawmilling Co. Pty. Ltd
(1986)
160 CLR at 31, 44-46.) … Viewed from the perspective of the
person to whom the duty is owed, the relationship of proximity
giving
rise to the non-delegable duty of care in such cases is marked by
special dependence or vulnerability on the part of that
person (
The
Commonwealth b. Introvigne
[1982] HCA 40
;
(1982)
150 CLR 258
at 271 per Mason J).’
[14] There will no doubt be cases –
particularly where special skill is required for precautions to be
taken – where
no more is required of a reasonable person but to
appoint a competent person to guard against the harm. As Van Wyk J
said in
Rhodes Fruit Farms
Ltd v Cape Town City Council
,
14
in a passage that was cited with approval in
Langley
Fox:
‘
It
is the duty of the employer to take such precautions as a reasonable
person would take in the circumstances. I do not, however,
consider
Dukes’
case as an authority for the proposition that the employment of a
skilled independent contractor, where the extent of the danger
and
the reasonably practical measures to minimise it can only be
determined by such skilled person, cannot in any circumstances
constitute a discharge of the employer’s aforesaid duty. …
There may well be situations in which a reasonable person
would rely
solely on an independent skilled contractor to take all reasonable
precautions to eliminate or minimize damage to another,
and in such
circumstances it could not be said that he was negligent if such
contractor fails to act reasonably. In my opinion,
therefore, the
duty to take care where the work undertaken is
per
se
dangerous could in some cases be discharged by delegating its
performance to an expert.’
But there are other cases, as I hope
that I have made clear, in which a reasonable person in the position
of the defendant is expected
to ensure that reasonable precautions
are taken to avoid harm. The defendant is free in those cases to
appoint someone else to
take those precautions but that by itself
will not discharge the defendant’s duty. As pointed out in the
passages from
Langley Fox
and
Kruger v Coetzee
to which I referred earlier that the standard of care that is
required of the defendant will be determined by the circumstances
of
the particular case.
[15] But negligence alone is not
sufficient to give rise to liability for an omission: the omission
must be wrongful as well. In
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
15
Brand JA pointed out that
‘
[w]hen
we say that a particular omission…is “wrongful”,
we mean that public or legal policy considerations require
that such
conduct, if negligent, is actionable; that legal liability for the
resulting damages should follow. Conversely, when
we say that
negligent conduct…consisting of an omission is not wrongful,
we intend to convey that public or legal policy
considerations
determine that there should be no liability; that the potential
defendant should not be subjected to a claim for
damages, his or her
negligence notwithstanding. In such event, the question of fault does
not even arise. The defendant enjoys
immunity against liability for
such conduct, whether negligent or not.’
[16] It
can be taken to be settled that an action lies against a shopkeeper
for negligently omitting to clear hazards from the shop
floor
16
and I think that applies as much to a person in control of a shopping
mall in respect of the floors that are under its control.
Indeed,
that was admitted by Chartaprops in its plea. Moreover a reasonable
person in control of a shopping mall would clearly
foresee that
spillages might occur in the passages and cause harm if they are
permitted to remain, and would take reasonable steps
to guard against
harm occurring (
Kruger
v Coetzee
).
17
While acknowledging its duty to take reasonable steps to avoid the
harm it was argued on behalf of Chartaprops that it was a sufficient
discharge of that duty that it appointed an apparently competent
cleaning service to keep the floors of the mall clean and checked
on
its performance from time to time. I do not think that is correct.
[17] There
can be no exhaustive test for determining when a person is expected
not merely to take reasonable precautions against
harm but instead to
ensure that such precautions are taken for as Goldstone AJA
emphasised in
Langley
Fox
that is necessarily bound up with the particular facts. But the High
Court of Australia in
Burnie
Port Authority
identified
one feature that was common to the cases in which that higher duty
has been held to exist, which is that the relationship
between the
plaintiff and the defendant was ‘marked by special dependence
or vulnerability on the part of [the defendant]’.
The court
went on to say that a person is in such a relationship of ‘special
dependence or vulnerability’ when he
or she
‘
is
specially vulnerable to danger if reasonable precautions are not
taken in relation to what is done on the premises. He or she
is
specially dependent upon the person in control of the premises to
ensure that such reasonable precautions are in fact taken.
Commonly,
he or she will have neither the right nor the opportunity to exercise
control over, or even to have foreknowledge of,
what is done or
allowed by the other party within the premises.’
18
[18] In
a case like this one the parties stand in such relationship to one
another and in my view it indeed calls for the higher
standard of
care that I have referred to. A person who invites the public to
frequent a shopping mall will be expected by members
of the public to
have ensured that the floors of the premises are reasonably safe and
will expect to look to that person if they
are not. They are not
ordinarily able to make their own assessment of the performance of
the cleaners who might have been appointed
to the task and, unlike
the person in control of the premises they are also not ordinarily
able to determine where the fault for
any failure of the cleaning
system lies and who is responsible for that occurring. In short, they
are entirely reliant upon the
person in control of the premises to
ensure that reasonable precautions are taken to keep the floor safe.
It seems to me in the
circumstances that it is reasonable to expect
that a person in control of a shopping mall to ensure that reasonable
precautions
are taken to keep the floors safe and is liable if those
precautions are not taken by a person who he or she has appointed to
do
so. That is how the duty was described in comparable circumstances
in
Probst
v Pick ‘n Pay Retailers (Pty) Ltd
,
19
consistent
with other decisions,
20
and I respectfully agree. The precautions that should reasonably be
taken were described by Stegman J in
Probst
v Pick ‘n Pay Retailers (Pty) Ltd
(in
relation to a shop floor but I think it applies as much in this case)
to be
‘
not
so onerous as to require that every spillage must be discovered and
cleaned up as soon as it occurs. Nevertheless, it does require
a
system which will ensure that spillages are not allowed to create
potential hazards for any material length of time, and that
they will
be discovered, and the floor made safe, with reasonable
promptitude.’
21
The
learned judge should not be thought to have said that it is enough to
have an adequate system in place: I think it is implicit
in what he
said that the system must be adhered to.
[19] The
evidence establishes in this case that the spillage was on the floor
for thirty minutes or more at a time that pedestrians
could be
expected in the mall and I agree with the learned judge in the court
below that that was excessive. Whether the fault
lay in the system
itself (as found by the court below) or whether it lay instead in the
failure of employees to adhere to the system,
is not material. In
either event Chartaprops failed to ensure that reasonable precautions
were taken and is liable for the consequent
damages. Although the
court below found Chartaprops to be liable on other grounds the
finding that it is liable must nevertheless
stand. The appeal against
that order must accordingly be dismissed.
[20] The question that remains is
whether Advanced Cleaning is also liable. The learned judge in the
court below found that the
negligence of Advanced Cleaning lay in the
inadequacy of its cleaning system. The only basis upon which the
system was said to
be inadequate was that the spillage remained on
the floor for an excessive time but that reasoning seems to me to be
faulty. I
do not think criticism can be directed at the system. It
seems to me that what occurred in this case is that the system was
not
adhered to by its employees. But once more I do not think that it
is material whether the omission that caused the harm is attributed
to Advanced Cleaning or to its employees. If the omission was that of
its employees Advanced Cleaning cannot be held vicariously
liable
unless the employee is himself or herself liable. And in my view
liability does not arise from the omission, whether the
omission was
that of Advanced Cleaning or its employees.
[21] For in our law a person is
generally not obliged to act so as to prevent harm to others even
though it might be reasonable
for him or her to have done so. In
order for liability to arise the omission must be not only negligent
but also wrongful. And
as pointed out in the passage from
Two
Oceans Aquarium
that I
referred to earlier an omission is wrongful only where the law
recognises that an action should lie (that the person concerned
had a
legal duty not to be negligent).
[22] A person who contracts to clean a
floor that is used by members of the public – whether under a
contract of employment
or some other form of contract – is no
doubt bound to his or her employer to fulfill those contractual
obligations. But it
does not follow that he or she is liable to third
parties if he or she omits to do so, even if the omission meets the
ordinary
test for negligence as it was articulated in
Kruger
v Coetzee
. There are indeed
cases in which it has been held that the assumption of contractual
obligations gives rise to a legal duty to
third parties to perform
those obligations without negligence. In
Blore
v Standard General Insurance Co Ltd,
22
for example, it was held on
exception that a garage that failed to detect a defect in a motor
vehicle, in breach of its contractual
undertaking to the owner, was
liable for damage caused to a third party by the defect.
23
In
Compass Motors Industries
(Pty) Ltd v Callguard (Pty) Ltd
24
Van Zyl J expressed the
opinion – his opinion was obiter and I express no view on its
correctness – that a security
firm that had contracted to guard
premises had a legal duty to third parties to guard vehicles lawfully
parked on the premises.
But those cases and others like them do no
more than demonstrate that the assumption of contractual obligations
is capable of giving
rise to delictual liability. Whether it does so
in a particular case is a matter that will be determined by legal and
public policy.
For as Brand JA said in
Two
Oceans
,
25
when a court is asked to accept that an omission is wrongful in the
absence of precedent it is being asked to extend delictual
liability
to a situation where none existed before and in that event
‘
[t]he
crucial question…is whether there are any considerations of
public or legal policy which require that extension’
.
26
[23] The learned judge in the court
below did not pertinently consider whether Advanced Cleaning (or its
employees) were under a
legal duty towards members of the public not
to be negligent and appears to have assumed that their conduct was
actionable. In
that respect I think it erred.
[24] I am not aware of any precedent
that that has pertinently considered and settled that question in the
present context. And
in
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
27
Grosskopf AJA pointed out
that our law adopts a conservative approach to the extension of
Aquilian liability. I do not think there
are any considerations of
legal or public policy that call for an extension of liability to a
cleaner who is contracted to keep
the floors of a shopping mall
clean. The same considerations that cast upon the person in control
of the shopping mall a duty to
ensure that precautions are taken to
keep the floors safe seem to me to militate against an action lying
against the cleaner. For
it is to that person rather than the cleaner
that the public rely upon to keep the floor safe. They are protected
by the liability
of the person in control of the premises if the
cleaner who has been deputed to perform that function negligently
fails to do so
and I see nothing that calls for an action to lie
against the cleaner as well. As to the incidence of liability between
that person
and the cleaner that is capable of being regulated by the
terms of their contract, whether the cleaner be an employee or an
independent
contractor, and requires no intervention by the law.
Indeed, I think it would be most unjust if the law were to require as
a condition
for taking up a mop and a bucket in return for a wage
that the cleaner should assume legal responsibility for the safety of
the
floors. I see no distinction when the person who wields the mop
is not an employee but an independent contractor. That the
independent
contractor is a commercial concern seems to me a
distinction only of degree. No doubt an action lies against the
cleaner for damages
caused by positive conduct but that is another
matter.
[25] In my view no legal duty was owed
towards the public by Advanced Cleaning or its employees to take
reasonable steps to keep
the floors safe and any omission to do so on
their part is not actionable. In those circumstances Advanced
Cleaning should not
have been held liable for the damages, whether
directly for any omission on its part, or vicariously for any
omission of its employees.
I think the appeal by Advanced Cleaning
should accordingly succeed.
[26] I would dismiss the appeal by
Chartaprops, allow the appeal by Advanced Cleaning, and alter the
order of the court below accordingly.
__________________
R.W. NUGENT
JUDGE OF APPEAL
PONNAN
JA (SCOTT and MAYA JJA and LEACH AJA concurring):
PONNAN JA
[27] I have read the judgment of
Nugent JA with which I respectfully am unable to agree. The salient
facts, which for the most part
are either common cause or undisputed,
are set out in the judgment of my learned Colleague.
[28] The general rule in our law is
that a principal is not liable for the wrongs committed by an
independent contractor or its
employees. But, as Glanville Williams
put it:
‘
One
of the most disturbing features of the law of tort in recent years is
the way in which the courts have extended, seemingly without
any
reference to considerations of policy, the liability for independent
contractors’
.
28
Prominent among the
cases that sowed the seeds of the large extension that has since
taken place was
Dalton
v Angus
29
and the oft-quoted remark that ‘a person causing something to
be done, the doing of which casts on him a duty, cannot escape
from
the responsibility attaching on him of seeing that duty performed by
delegating it to a contractor’.
As has been
correctly observed, this dictum if literally applied, would create
vicarious responsibility for any and every act of
negligence
performed by an independent contractor in the course of doing the
work and would efface the whole distinction between
employee and
independent contractor.
30
[29] When a
principal will indeed be liable for the negligence of an independent
contractor has been the subject of continuing debate
in foreign
jurisdictions. A legacy of that debate in the terminology of English
Law is the concept of non-delegable duty. A more
accurate description
of what is at play is captured by the alternative name for a
non-delegable duty, namely, a ‘personal
duty’.
31
A duty of this nature involves what has been described as ‘a
special responsibility or duty to see that care is taken’.
32
Such a duty enables a plaintiff to outflank the general principle
that a defendant is not vicariously responsible for the negligence
of
an independent contractor where the causative agent of the negligence
relied on was not an employee of the defendant but an
independent
contractor.
[30] From a
practical standpoint, according to Fleming ‘its most perplexing
feature is the apparent absence of any coherent
theory to explain
when, and why, a particular duty should be so classified’ and
‘whether the resulting uncertainty
and complexity of the law is
matched by any corresponding advantages’.
33
That complexity and uncertainty may well be compounded in our law,
for, as Scott JA observed in
McIntosh
v Premier, KwaZulu-Natal
:
34
‘
But
the word “duty”, and sometimes e
ven
the expression “legal duty” [in the context of the second
leg of the test for negligence as formulated by Holmes
JA in
Kruger
v Coetzee
],
35
must
not be confused with the concept of ”legal duty” in the
context of wrongfulness which, . . . is distinct from
the issue of
negligence. . . . The use of the expression “duty of care”
is similarly a source of confusion. In English
law “duty of
care” is used to denote both what in South African law would be
the second leg of the inquiry into negligence
and legal duty in the
context of wrongfulness. As Brand JA observed in the
Trustees,
Two Oceans Aquarium Trust
case,
at 144F, “duty of care” in English law “straddles
both elements of wrongfulness and negligence” ’.
(See
also
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
.
36
)
[31] Indeed it has
been said that the classification of a duty as non-delegable in the
circumstances of particular cases rests on
little more than
assertion.
37
According to Kirby J,
‘
The
law governing non-delegable duties of care has been described as a
"mess", comprising "a random group of cases"
giving rise to a basis of liability that is "remarkably
under-theorised". The instances in which a non-delegable duty
has been upheld have been variously labelled "an inexplicable
rag-bag of cases" comprising an erroneous feature of the
"über-tort of negligence" and an "embarrassing
coda" to judicial and scholarly writings on the scope of
vicarious liability for wrongs done by others. Judges have been taken
to task for their reluctance, or incapacity, to express a
clear
theory to account for the nature and ambit of non-delegable duties of
care. The whole field has been assailed as one involving
serious
defects, containing numerous "aberrations" that have
plunged this area of the law of tort into "juridical
darkness"
and "conceptual uncertainty". Courts of high authority have
been accused of coming to the right result
for the wrong reasons; or
the wrong result despite adopting the right reasons’
.
38
[32]
Kondis
v State Transport Authority
[1984] HCA 61
;
(1984) 154 CLR 672
, identified some of the principal categories of
case in which the duty to take reasonable care under the ordinary law
of negligence
is non-delegable: namely - adjoining owners of land in
relation to work threatening support or common walls; master and
servant
in relation to a safe system of work; hospital and patient;
school authority and pupil.
39
(See also
Saayman
v Visser
.
40
)
[3
3] One
further category of case to which
Kondis
alluded
was that of invitor and invitee. However, certainly in Australia, it
must now be taken as settled that in relation to a
person in the
position of an invitee, the duty of an invitor is no more and no less
than the ordinary duty to take reasonable care.
For, as it was put in
Voli
v Inglewood Shire Council and Another
,
41
‘
But,
even without the aid of a statue such as now exists in England, the
trend of judicial authority has been to treat the liability
of an
occupier for mishaps upon his premises as governed by a duty of care
arising from the general principles of the law of negligence.
The
special rules concerning invitees, licensees and others are
ultimately subservient to those general principles. Instead of
first
looking at the capacity in which the plaintiff comes upon the
premises, and putting him into a category by which his rights
are
measured, the tendency now is to look at all the circumstances of the
case, including the activities of the occupier upon,
or in respect
of, the premises, and to measure his liability against the conduct
that would be expected of a reasonably careful
man in such
circumstances. . . . . It seems better to appreciate that the
ultimate question is one of fact and governed by general
rules, than
to create new categories and distinctions.’
[34] According to
John Murphy,
'[i]f
we consider various classic examples of a non-delegable duty –
such as the duty owed by an employer to his employees…,
by a
health authority to hospital patients… or by an education
authority to school children… – we can see in
each case
the presence of especial vulnerability. Employees in the workplace,
patients in hospital beds and children at single-teacher
schools all
have in common the fact that they find themselves in an environment
the safety of which is controlled by some other
person in whom they
are required to place some measure of trust and reliance. Even if we
turn to the various non-classic, but
equally well established,
categories of non-delegable duty – that is, where the defendant
was in control of an abnormally
dangerous person, or an abnormally
dangerous thing… – we can again see the presence of
either abnormal risk or heightened
vulnerability’.
But as Murphy is
himself quick to point out ‘it must be conceded at the outset
that any explanatory account of the kind or
kinds of liability
attached to non-delegable duties based on the existing case law
requires an exercise in selectivity. This is
because the judges are
as divided in their views as academics’.
42
[35] Some cases
have been explained as turning on strict liability whilst others, as
a form of vicarious liability. As to the former,
Kirby J noted,
‘
It
is sufficient to notice that decisions of this Court after
Kondis
,
… point out the many difficulties that lie behind adopting
principles cast in terms of non-delegable duties. Not least
of these
difficulties is that a non-delegable duty is a form of strict
liability and
Burnie
Port Authority
43
…
shows
the disfavour with which strict liability is now viewed.'
44
Strict liability, I
may add, is viewed with similar disfavour by our courts (see
Wagener
v Pharmacare Ltd; Cuttings v Pharmacare Ltd
2003
(4) SA 285
(SCA)). Vicarious liability as a postulate is equally
untenable for it flies in the face of the general principle that a
person
is not liable for an accident occurring without his own fault
or that of his servants in the course of their employment. Little
wonder then that Fleming would describe those cases as a disguised
form of vicarious liability under the fictitious guise of
non-delegable
duties.
45
To once again borrow from Glanville Williams,
‘
[w]e
need some sensible reason why, in any particular case, he should be
liable where the injury occurs without his fault but through
the
fault of an independent contractor employed by him. No reason is
furnished in the judgments under discussion. Instead, we are
merely
treated to the logical fraud of the “nondelegable duty”
’
.
46
[36] Many of the
statements explaining the nature and consequences of a non-delegable
duty, have been criticized on the ground that
they offer no criteria
distinguishing those duties which are non-delegable from those which
are not.
47
But apart from true instances of strict liability particularly where
the duty is a statutory one, the distinction between delegable
and
non-delegable duties does not, it seems, really amount to more than
the adoption of convenient headings for those cases in
which
defendants have been held not liable for the negligence of
independent contractors and cases in which they have. However,
the
explanation given for the non-delegable relationship has been very
general – no more than the existence of 'some element'
that
'makes it appropriate' to impose on the defendant a duty to ensure
that the safety of the person and property of others is
observed –
a duty not discharged merely by securing a competent contractor.
48
The truth, according to Glanville Williams, ‘seems to be that
the cases are decided on no rational grounds, but depend merely
on
whether a judge is attracted by the language of nondelegable duty’.
49
[37] It would be
fair to say that there has been great expansion in recent years of
the use of independent contractors, and out-sourcing
in the place of
employees. It is unlikely that vicarious liability for servants would
ever have developed if servants as a class
had been capable of paying
damages and costs. The historical rationale for imputing liability to
a master, namely that they had
deeper pockets hardly applies, I
daresay, to most modern contractors, who may in fact be wealthier
than their principals. Where
both principal and independent
contractor are large firms or covered by insurance the incidence of
liability may not matter much.
But where the principal is an
individual without insurance, the imposition of liability upon him
may cause grave hardship. From
the point of view of a plaintiff, the
only case in which the liability of a principal is advantageous is
where the independent
contractor is unable to pay damages. Whether
indeed this situation is sufficiently frequent to warrant provision
being made for
it must be open to doubt, particularly when it adds so
greatly to the difficulty of the law.
50
Courts have to be pragmatic and realistic, and have to take into
account the wider implications of their findings on matters such
as
these (
Tsogo
Sun Holdings (Pty) Ltd v Qing-He Shan
2006
(6) SA 537
(SCA) para 10).
[38] It must be
accepted that the content of the ordinary common law duty is to
exercise reasonable care (and skill) or to take
reasonable steps to
avoid risk of harm to a person to whom the duty is owed. The degree
or standard of care required varies with
the risk involved. It
follows that those who engage in inherently dangerous operations must
take precautions not required of persons
engaged in routine
activities. This involves no departure from the standard of
reasonable care for it predicates that the reasonable
person will
take more stringent precautions to avoid the risk of injury arising
from dangerous operations.
51
The concept of personal duty departs from the basic principles of
liability in negligence by substituting for the duty to take
reasonable care a more stringent duty - a duty to ensure that
reasonable care is taken.
[39] Traditionally,
non-delegable duties have been held to apply in instances where;
first, the defendant's enterprise carries with
it a substantial risk
and secondly, the defendant assumed a particular responsibility
towards the claimant. Neither of which in
my view is present in this
case. As already stated, our ‘ordinary’ law of
negligence does take proper account of the
presence of abnormally
high risks and especial vulnerabilities. Thus where those features
are found to be present our law expects
greater vigilance from a
defendant to prevent the risk of harm from materialising, for that
according to our law is what a reasonable
person in the position of
the defendant would do. In the nature of a coherent legal doctrine,
the response of our law in those
circumstances should not be to
impose strict liability or to resort to a disguised form of vicarious
liability but rather to insist
on a higher standard of care. It
follows that the correct approach to the liability of a principal for
the negligence of an independent
contractor is to apply the
fundamental rule of our law that obliges a person to exercise that
degree of care that the circumstances
demand. In
Cape
Town Municipality v Paine
,
52
Innes CJ said:
‘
The
question whether, in any given situation, a reasonable man would have
foreseen the likelihood of harm and governed his conduct
accordingly,
is one to be decided in each case upon a consideration of all the
circumstances. Once it is clear that the danger
would have been
foreseen and guarded against by the
diligens
paterfamilias
,
the duty to take care is established, and it only remains to
ascertain whether it has been discharged. Now, the English Courts
have adopted certain hard and fast rules governing enquiries into the
existence of the duty and the standard of care required in
particular
cases. Speaking generally, these rules are based upon considerations
which, under our practice, also would be properly
taken into account
as affecting the judgment of a reasonable man; and the cases which
embody them are of great assistance and instruction.
But, as pointed
out in
Transvaal
and Rhodesian Estates Ltd v Golding
1917 AD 18
and
Farmer
v Robinson Gold Mining Co
1917
AD 501
, there is an advantage in adhering to the general principle of
the Aquilian law and in determining the existence or non-existence
of
culpa
by applying the test of a reasonable man’s judgment to the
facts of each case. The larger latitude allowed in such an enquiry
is
to be preferred to restriction within the more rigid limits of the
English rules. It must be noted, however, ─ and the
above
remarks are subject to that proviso – that mere omission did
not under the
lex
aquilia
constitute
culpa
;
it only did so when connected with prior conduct.
’
[40] There is an
obvious difference between committing work to a contractor to be
executed from which, if properly done, no injurious
consequences can
arise, as happened in this case (the first category), and handing
over to him work to be done from which mischievous
consequences will
arise unless preventive measures are adopted (the second category).
In this regard Colman AJ stated in
Crawhall
v Minister of Transport
:
53
‘
Nor,
in my judgment, is the occupier of premises liable for the
consequences of the negligent conduct on those premises of an
independent
contractor whom he has engaged to do work thereon, if the
negligent act or omission was not one which was authorised by or
known
to the occupier or one which could reasonably have been
foreseen, provided that the work which the independent contractor was
engaged
to do was not pregnant with danger to persons expected to be
on the property. But if work has to be done on premises to which the
public have access, and that work can reasonably be expected to cause
damage unless proper precautions are taken, the duty of the
occupier
to see that those precautions are taken and that the premises are
safe persists, whether he does the work himself or through
his own
servants or delegates it to an
independent
contractor. That seems to me to be the effect of the judgment of
Stratford, ACJ, in
Dukes
v Marthinusen
,
1937 AD 12
, and ...’.
[41] That
distinction emerges as well from the decision of
Minister
of
Posts and Telegraphs v Jo’burg Consolidated Investment Co., Ltd
1918
TPD 253
, which held (at p 260): ‘where an act which is carried
out with proper precautions will ordinarily speaking not cause
danger,
the doctrine of the independent contractor applies’.
Whilst it may be just to hold the party authorising the work in the
first category of case exempt from liability for injury resulting
from negligence which he had no reason to anticipate, there may
well
be, on the other hand, good ground for holding him liable for injury
caused by an act certain to be attended with injurious
consequences
if such consequences are not in fact prevented. That it seems to me,
as I have attempted to demonstrate, is consistent
with our ‘ordinary’
law of negligence. In the second category, if liability is to attach
to the principal it would
be in consequence of his/her negligence in
failing to take preventative measures to prevent the risk of harm
from materialising
that a reasonable person in those circumstances
would have taken, rather than in accordance with a proposition framed
in terms
of a non-delegable duty. That proposition according to Hayne
J, on examination, not only has ‘no sound doctrinal foundation’
but ‘cannot stand with the restatement of the [Australian]
common law of negligence …’.
54
[42] More recently
Langley
Fox Building Partnership (Pty) Ltd v De Valence
55
acknowledged
the general rule of no liability of a principal for the civil wrongs
of an independent contractor except where the
principal was
personally at fault. The test for negligence in a case such as this,
consonant with the classic test for
culpa
laid down in
Kruger
v Coetzee
,
56
was set out by Goldstone AJA as follows:
‘
(a) would
a reasonable man have foreseen the risk of danger in consequence of
the work he employed the contractor to perform? If
so,
(b) would
a reasonable man have taken steps to guard against the danger? If so,
(c) were
such steps duly taken in the case in question?’
[43] In determining
the answer to the second enquiry into negligence, Goldstone AJA
emphasized the following, albeit by no means
exhaustive list of
factors:
‘
[t]he nature of
the danger; the context in which the danger may arise; the degree of
expertise available to the employer and the
independent contractor
respectively; and the means available to the employer to avert the
danger.’
Applying this test
of negligence to the facts, Goldstone AJA held that it was
foreseeable to a reasonable person in the position
of Langley Fox
that the workmen erecting the ceiling would require some form of
construction to raise it above the level of the
sidewalk, as an
obstruction of such a nature would necessarily constitute a source of
serious potential danger to pedestrians using
the sidewalk.
Accordingly, ‘[T]o place it there, and no more, was an
inherently dangerous act.’
57
[44] It is not easy
to see why an exception should be specifically carved out allowing a
person injured to recover from a principal
in addition to the normal
rights that the person enjoys against the independent contractor
posited as the effective cause of the
wrong. In particular, it is
difficult to see why the general policy of the law that the economic
cost of the wrong should be borne
by the legal entity immediately
responsible for it, should not be enforced in this case. Furthermore,
to shift the economic cost
of negligent acts and omissions from
Advanced Cleaning, the independent contractor with primary
responsibility, to Chartaprops,
because of the legal fiction of
non-delegability, appears to me to be undesirable.
[45] There are few
operations entrusted to an independent contractor by a principal that
are not capable, if due precautions are
not observed, of being
sources of danger to others. If a principal were to be held liable
for that reason alone the distinction
between ‘employee’
and ‘independent contractor’ will all but disappear from
our law. This plainly is not
the type of case where it can be said
that Chartaprops negligently selected an independent contractor or
that it so interfered
with the work that damage results or that it
authorised or ratified the wrongful act. The matter thus falls to be
decided on the
basis that the damage complained of was caused solely
by the wrongful act or omission of the independent contractor,
Advanced Cleaning
or its employee.
[46] Chartaprops
did not merely content itself with contracting Advanced Cleaning to
perform the cleaning services in the shopping
mall. It did more. Its
centre manager consulted with the cleaning supervisor each morning
and personally inspected the floors of
the shopping mall on a regular
basis to ensure that it had been properly cleaned. If any spillage or
litter was observed, he ensured
its immediate removal. That being so
it seems to me that Chartaprops did all that a reasonable person
could do towards seeing that
the floors of the shopping mall were
safe. Where, as here, the duty is to take care that the premises are
safe I cannot see how
it can be discharged better than by the
employment of a competent contractor. That was done by Chartaprops in
this case, who had
no means of knowing that the work of Advanced
Cleaning was defective. Chartaprops, as a matter of fact, had taken
the care which
was incumbent on it to make the premises reasonably
safe.
[47] Neither the
terms of Advanced Cleaning’s engagement, nor the terms of its
contract with Chartaprops, can operate to discharge
it from a legal
duty to persons who are strangers to those contracts. Nor can they
directly determine what it must do to satisfy
its duty to such
persons. That duty is cast upon it by law, not because it made a
contract, but because it entered upon the work.
Nevertheless its
contract with the building owner is not an irrelevant circumstance,
for it determines the task entered upon.
[48] Chartaprops
was obliged to take no more than reasonable steps to guard against
foreseeable harm to the public. In this regard,
it is well to recall
the words of Scott JA in
Pretoria
City Council v
De
Jager
:
58
‘
Whether
in any particular case the steps actually taken are to be regarded as
reasonable or not depends upon a consideration of
all the facts and
circumstances of the case. It follows that merely because the harm
which was foreseeable did eventuate does not
mean that the steps
taken were necessarily unreasonable. Ultimately the inquiry involves
a value judgement.’
Applying that test
I am satisfied that the High Court erred
in
holding Chartaprops liable. Its finding in relation to Advanced
Cleaning, however, cannot be faulted.
[49] As to costs.
In my view no warrant exists for a departure from the general rule
that costs should follow the result in this
case.
[50] In the result:
1
The
appeal of the first appellant is upheld with costs.
2
The
appeal of the second appellant is dismissed with costs.
3
The order of the court below is set aside and the following is
substituted in its stead:
‘
(a) The claim against
the first defendant is dismissed with costs.
(b) It is declared that the second
defendant is liable to the plaintiff for such damages as might be
agreed upon or proved in
consequence of the event that is the subject
of this claim.
(c) The second defendant is ordered
to pay the plaintiff’s costs.’
_________________
V
M PONNAN
JUDGE
OF APPEAL
APPEARANCES:
COUNSEL
FOR 1
st
APPELLANT
E
J FERREIRA
COUNSEL
FOR 2
ND
APPELLANT
C
ACKER
INSTRUCTED
BY (1
st
Appellant)
LINDSAY,
KELLER & PARTNERS
ROSEBANK
(2
nd
Appellant)
EVERINGHAM,
ROGERS & PARTNERS JOHANNESBURG
CORRESPONDENTS
(Both Appellants)
WEBBERS
BLOEMFONTEIN
COUNSEL
FOR RESPONDENT
G
NEL
INSTRUCTED
BY
TAITZ
& SKIKNE
JOHANNESBURG
CORRESPONDENTS
LOVIUS
BLOCK
BLOEMFONTEIN
1
Thesis presented in partial fulfillment of the requirements for a
Master of Law degree at the University of Stellenbosch under
the
supervision of Professor M M Loubser in February 1997.
2
1931 AD 412.
3
1966 (2) SA 428
(A) 430E-H.
4
Salmond and Heuston
on
the
Law of Torts
19
th
ed at 544-5, cited with approval by this court in
Langley
Fox Building Partnership (Pty) Ltd v De Valence
1991
(1) SA 1
(A) 8F-H.
5
Clerk and Lindsell on Torts
19 ed para 6-53, citing Langton J in
The
Pass of Ballater
[1942]
p 112 at 117.
6
1876 1 QBD 314
at 319.
7
1896 1 QBD 335
at 340.
8
1937 AD 12
at 18.
9
At p 23.
10
1991 (1) SA 1
(A).
11
At p 14.
12
1966 (2) SA 428
(A) 430E-H.
13
[1994] HCA 13
;
(1994)
179 CLR 520
at 550.
14
1968 (3) SA 514
(C) at 519.
15
2006 (3) SA 138
(SCA) para 12.
16
Alberts v Engelbrecht
1961 (2) SA 644
(T);
Probst
v Pick ‘n Pay Retailers (Pty) Ltd
[1998]
2 All SA 186
(W);
Monteoli
v Woolworths (Pty) Ltd
2000 (4) SA 735
(W);
Brauns
v Shoprite Checkers (Pty) Ltd
2004 (6) SA 211
(E).
17
Cited above.
18
At p 551.
19
[1998] 2 All SA 186
(W) at 200g.
20
Turner v Arding &
Hobbs, Ltd
[1949] All ER
911
(KB) at 912E;
Alberts v
Engelbrecht
(1961) 2 SA
644
(T) at 646D;
City of
Salisbury v King
1970 (2)
528 (RAD);
Jones v Maceys
of Salisbury (Pvt) Ltd
1982 (2) 139 (ZHC) at 141H.
21
Stegmann J in
Probst v Pick
‘n Pay Retailers (Pty) Ltd
[1998]
2 All SA 186
(W) at p 200, in which the leading cases in this
country and abroad are considered.
22
1972 (2) SA 89
(O).
23
In a commentary on that decision Professor Boberg takes issue with
its reasoning but he adds that a proper rationale for imposing
liability in that case was that the garage would have known that the
vehicle would be introduced onto the road in reliance upon
proper
performance of the contract: P.Q.R. Boberg ‘Liability for
Omissions – The Case of the Defective Motor-Car’
(1972)
89
SALJ
207.
24
1990 (2) SA 520
(W).
25
Cited above.
26
There are numerous other cases in this court to the same effect. For
example,
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
1985
(1) SA 475
(A) 498G-499A;
Knop
v Johannesburg City Council
1995
(2) SA 1
(A) 26I-27I;
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 13;
Gouda
Boerdery BK v Transnet
2005
(5) SA 490
(SCA) para 12;
Local
Transitional Council of Delmas v Boshoff
2005
(5) SA 514
(SCA) para 19;
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006 (1) SA
461
(SCA) paras 14, 15, 16 and 28.
27
1985 (1) SA 475
(A) 500D.
28
Glanville
Williams ‘Liability for Independent Contractors’ (1956)
Cambridge
Law Journal
p
180.
29
(1881) 6
App. Cas. 740 at 829.
30
Williams p
181.
31
John Murphy ‘The Liability Bases of Common Law Non-Delegable
Duties – A Reply to Christian Witting’ (2007)
30(1)
UNSW
Law Journal
86
p 98.
32
Kondis v
State Transport Authority
[1984] HCA 61
;
(1984) 154 CLR 672
at 687.
33
John G
Fleming
The
Law of Torts
9 ed (1998) p 434.
34
(632/2007)
[2008]
ZASCA 62
(29 May 2008) para 12.
35
1966 (2) SA 428
(A) at 430 E-F.
36
2006 (1) SA 461
(SCA) para 14.
37
Kondis
p
684.
38
Leichhardt
Municipal Council v Montgomery
[2007] HCA 6
;
(2007) 230 CLR 22
at 37.
39
See also
Australian Safeway
Stores Proprietary Limited v Zaluzna
(1987) 61 ALJR 180
p 184
,
Clerk & Lindsell on Torts 19 ed (2006) 6-57 – 6-67.
40
4
11/2007)
[2008] ZASCA 71
(30 May 2008)
para
19.
41
[1963] HCA 15
;
(1962-1963)
110 CLR 74
at 89.
42
Murphy
p
94.
43
Burnie
Port Authority v General Jones Pty. Limited
[1994] HCA 13
;
(1992-1994) 179 CLR 520.
44
Leichhardt
Municipal Council
p 75.
45
Christian
Witting ‘Breach of the Non-Delegable Duty: Defending Limited
Strict Liability in Tort’ (2006) 29(3)
UNSW
Law Journal
p
33 at 42 and 47,
Williams
p 185,
Fleming
p 434,
Burnie
Port
p 75.
46
Williams p
198.
47
Williams p
183-4.
48
Leichhardt
Municipal Council
p 63.
49
Williams p
186.
50
Williams p
195.
51
Kondis
p
679.
52
1923 AD 207
at
217.
53
1963 (3) SA 614
(T) at 617 F-H.
54
Leichhardt
p
70.
55
1991 (1) SA 1
(A).
56
Above n 34.
57
At 12I.
58
1997 (2) SA 46
(A)
at 55H-56C.