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[2017] ZASCA 172
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Stedall and Another v Aspeling and Another (1326/2016) [2017] ZASCA 172; 2018 (2) SA 75 (SCA) (1 December 2017)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1326/2016
In
the matter between:
GEOFFREY
STEDALL
FIRST APPELLANT
LINDA
STEDALL SECOND
APPELLANT
and
CLINT
PATRICK ASPELING
FIRST
RESPONDENT
MANUELA
WALTRAUT URSULA
SECOND RESPONDENT
ASPELING
NO
Neutral
citation:
Stedall
v Aspeling
(1326/2016)
[2017] ZASCA 172
(1December 2017)
Coram:
Cachalia,
Leach, Petse and Mocumie JJA and Ploos van Amstel AJA
Heard:
15
November 2017
Delivered:
1
December 2017
Summary:
Delict:
claim based on negligent omission: young child falling into swimming
pool: necessity to show landowner’s omission
to secure gate in
pool fence wrongful: child under parental supervision: wrongfulness
and negligence of landowner not established.
ORDER
On
appeal from:
Western
Cape Division of the High Court, Cape Town (Donen AJ sitting as court
of first instance):
1
The appeal is upheld, with costs, such costs to include the costs of
two counsel.
2
The order of the court a quo is set aside and replaced with the
following:
‘
The
plaintiffs’ claim is dismissed with costs, including the costs
of two counsel.’
JUDGMENT
Leach
JA (Cachalia, Petse and Mocumie JJA and Ploos van Amstel AJA
concurring)
[1]
This appeal has its origin in a tragic accident that occurred on 27
July 2004 at the appellants’ home in Constantia, Cape
Town when
the respondents’ 30 month old daughter, C, fell into a swimming
pool. Although she did not drown, by the time she
was discovered
floating face down in the pool she had suffered severe brain damage.
In due course, the respondents sued the appellants
in the Western
Cape Division of the High Court, claiming damages they alleged both
they and C had suffered due to negligence on
the appellants’
part.
[2]
The minutes of a pre-trial conference held in April 2015 record that
the parties agreed ‘to separate the merits and quantum’.
Presumably their reference to ‘the merits’ meant that the
court would be called upon to determine issues relevant to
liability.
Despite this Court having regularly warned of the necessity to
clearly identify what issues are to be separately decided
under
Uniform Rule 33(4), and to obtain a formal separation order, there is
nothing in the record to indicate that this was done.
Nor was any
mention made in opening of the separation of issues. None of this is
acceptable for the reasons set out, inter alia,
in
Adlem
v Arlow
2013 (3) SA 1
(SCA) para 5 and the authorities there cited.
[3]
In any event, the court a quo recorded in its judgment that ‘only
the merits are in issue at this stage’, before
proceeding to
hold that the accident had been due to the joint negligence of the
appellants and the second respondent. It apportioned
blame on the
basis that the appellants were twice as culpable as the second
respondent, so that any of the damages capable of being
apportioned
fell to be reduced by a third. The order it made attempting to
reflect this is not unattended by procedural difficulties,
but those
need not be discussed for purposes of this judgment. With leave of
the court a quo, the appellants appeal to this Court
against this
order. The essence of their appeal is that they ought not to have
been held liable for any of the claims made against
them.
[4]
I turn to the facts. It is common cause on the pleadings that the
appellants are either ‘individually or jointly’
the
owners or the persons in control of their home in Constantia where
the accident occurred. It consists of a large double- storied
house
set in a two acre property to the south of a public road. The house
faces north. Access is gained by way of a driveway that
extends from
a gate in the northwest corner of the property in a southerly
direction down the western border before swinging around
to form a
parking area to the south of the house. To the southwest of the house
is a large swimming pool, fully enclosed by a fence.
Within this
enclosure is a tool-shed, presumably used for the storing of garden
tools. There are two gates, one to the north and
the other to the
eastern side of the pool enclosure, which allow access to the pool.
In a wing on the western side of the house
is a lounge that opens
through a glass sliding door onto a patio to the north of the house.
Persons seated in the lounge can see
through this door onto the
patio.
[5]
The second appellant and the second respondent were members of a
prayer group which met weekly at the appellants’ home
on
Tuesday mornings. The second respondent was often accompanied by C
who, during the course of the meeting, would generally play
with her
toys and puzzles seated on the floor of the lounge while the adults
prayed, sang and discussed matters of religion. Sometimes
C, bored
with her play-things, would toddle out onto the patio and play, but
within sight of the adults in the lounge.
[6]
According to the second respondent, on several occasions during
earlier visits she had not only observed that the swimming pool
gate
had been left open but that she had remonstrated with the second
appellant and asked her to ensure that it was kept closed.
On one
previous occasion, the first respondent had accompanied the second
respondent, and he and C had gone into the pool enclosure
where there
was a slide next to the pool. He testified that C had enjoyed playing
on the slides in a public park, and so he allowed
her to go down the
appellants’ slide although he warned her she must not go
anywhere near it without adult supervision.
He also testified
that on that occasion the gate leading to the pool was open.
[7]
On the fateful day of the accident, the second respondent and C were
given a lift to the appellants’ home by another member
of the
prayer group. On that day as well, C spent most of the prayer group
meeting playing with her toys on the floor of the lounge
but, at a
late stage she went outside onto the patio. Whilst in the second
respondent’s sight, C was in no danger. Unfortunately,
however,
the woman who had brought them to the house wished to leave early,
and another member of the prayer group offered to give
the second
respondent and C a lift home. The second respondent took her up on
her offer and, leaving C to her own devices, went
to the parking lot
behind the house in order to transfer a baby-seat from the car in
which they had arrived to the motor vehicle
that was to take them
home.
[8]
The exercise did not go as smoothly as had been anticipated as the
seat did not fit easily into the second vehicle. After a
while, the
second respondent, whom the evidence establishes was a devoted and
careful mother, became nervous and went back to see
what C was up to.
She went through the lounge onto the patio calling for C by name.
When she received no answer and she could not
see the child, she
panicked and shouted to the other members of the prayer group, who
were then in the kitchen with the second
appellant who was making
pancakes. They scattered to help look for the child.
[9]
The second appellant immediately dropped the pan she was using and
ran out onto the patio and, then, around the house to the
swimming
pool. The second respondent followed her. At the pool they found C
lying face down in the water. Whether she had gone
there to play on
the slide one does not know, and it is idle to speculate on what had
motivated her to going off on her own, something
she had not done
before. In any event, the second respondent leaped into the pool and
lifted C out of the water. She was rushed
to a nearby hospital for
treatment but, as I have mentioned, had by then suffered severe and
permanent brain damage.
[10]
The above description of these tragic events was that of the second
respondent. Sadly, before the trial, the second appellant
fell down
the stairs at her home and suffered a major head injury. As a result,
she was confined to a wheelchair and unable to
testify. Whether she
would have been able to elucidate any of the issues, one does not
know. The court a quo, however, found that
C would not have been able
to unlatch the gate on her own and that the gate must either have
been open or at least unlatched for
her to have gained access to the
pool. I did not understand the appellants to challenge this
conclusion. What they did challenge
was the trial court’s
further conclusion that, in all these circumstances, they should be
held liable for damages in delict.
[11]
As is apparent from its judgment, the court a quo regarded negligence
as the essential issue that fell to be decided. Consequently
it
confined itself to the inquiry whether the appellants’ failure
to secure the swimming pool gates so they could not be
opened by a
young child, and the second respondent’s failure to keep C
under constant observation, constituted negligence
as determined by
the well-known test in that regard – namely, whether a
reasonable person would in the circumstances have
foreseen that C
might be injured by falling into the pool, and taken reasonable steps
to avert such harm. However, in doing so,
it appears to have
overlooked the requirement often stressed by both this Court and the
Constitutional Court, particularly in recent
years, that wrongfulness
is also an essential and discrete element which has to be established
for delictual liability to ensue
– see eg
Telematrix (Pty)
Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority
SA
2006 (1) SA 461
(SCA) para 12;
Minister of Safety and Security
v Van Duivenboden
2002 (6) SA 431
(SCA) para 12;
ZA v Smith &
another
2015 (4) SA 574
(SCA) para 15;
Country Cloud Trading
CC v MEC, Department of Infrastructure Development
2015 (1) SA 1
(CC) paras 20-21 and
MTO Forestry (Pty) Ltd v Swart NO
2017
(5) SA 76
(SCA) paras 12 and 17 – this list is not meant to be
exclusive.
[12]
In so far as the element of wrongfulness is concerned, Khampepe J
said in
Country
Cloud
[1]
that it functions ‘as a brake on liability’ and that
conduct is not to be regarded as wrongful if public or legal policy
considerations determine it would be ‘undesirable and overly
burdensome to impose liability’. In similar vein, in
Le
Roux & others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as Amici Curiae)
2011
(3) SA 274
(CC)
para
122 the Constitutional Court said:
‘
(I)n
the context of the law of delict:
(a)
the criterion of wrongfulness ultimately depends on a judicial
determination of whether — assuming all the other elements
of
delictual liability to be present — it would be reasonable
to impose liability on a defendant for the damages flowing
from
specific conduct; and
(b)
that the judicial determination of that reasonableness would in turn
depend on considerations of public and legal policy in accordance
with constitutional norms. Incidentally, to avoid confusion it should
be borne in mind that, what is meant
by
reasonableness in the context of wrongfulness has nothing to do with
the reasonableness of the defendant's conduct, but it concerns
the reasonableness of imposing liability on the defendant for
the harm resulting from that conduct.
’
[Footnotes omitted; emphasis provided].
[13]
As our courts have regularly stressed, the fact that an act is
negligent does not make it wrongful. Thus in
Minister
of Law and Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A) at 320B-C, Hefer JA said ‘I think it may be
stated with equal certainty that society's legal convictions do not
demand
every [negligent]
[2]
omission to be branded as wrongful and in effect that retribution be
exacted from the wrongdoer by holding him personally liable
for loss
suffered’. The words emphasized in the passage in
Country
Cloud
just quoted thus stress the need to ensure that wrongfulness and
negligence are recognised as separate and discrete elements as,
if
they are not and negligence is elevated to the determining factor,
they would be conflated. Should that occur, the safeguard
of
regarding wrongfulness as a separate requirement would be lost. In
explaining the danger of confusing the two elements, Brand
JA stated
the following in
Za
v Smith
:
[3]
‘
It
should be readily apparent that if the test for wrongfulness is
whether it would be reasonable to have expected the defendant
to take
positive measures, while the test for negligence is whether the
reasonable person would have taken such positive measures,
confusion
between the two elements is almost inevitable. It would
obviously be reasonable to expect of the defendant to do
what the
reasonable person would have done. The result is that conduct which
is found to be negligent would inevitably also be
wrongful and vice
versa . . . But where the confusion will indeed make a difference is
where negligence — properly understood
or under the guise
of wrongfulness — is found to have been established. In that
event it will lead to the imposition of liability
without the
requirement of wrongfulness — properly understood — being
considered at all. The safety valve imposed by
the requirement of
wrongfulness — as described by the Constitutional Court in
Country
Cloud Trading CC
— will simply be discarded. If that were to have happened, for
instance in [
Telematrix
and
Kadir
[4]
]
the defendants in those cases would have been held liable, despite
the ultimate conclusion arrived at by this court in those cases that,
for reasons of public and legal policy, it would not be reasonable to
impose delictual liability on them.’
[14]
In order to avoid such confusion and the conflation of the two
elements, this Court has now determined that foreseeability
of harm,
a critical requirement of negligence, should find no place in the
inquiry into wrongfulness – see
Country Cloud Trading CC v
MEC, Department of Infrastructure Development
2014 (2) SA 214
(SCA) para 27, as read with
MTO Forestry
para 18 where this
Court said:
‘
It
is potentially confusing to take foreseeability into account as a
factor common to the inquiry in regard to the presence of both
wrongfulness and negligence. Such confusion will have the effect of
the two being conflated and lead to wrongfulness losing its
important
attribute as a measure of control over liability.’
[15]
Moving to a different issue, in contrast to a positive act which
causes physical harm to a person or property, a negligent
omission,
as relied on by the respondents, is not necessarily regarded as prima
facie wrongful. Consequently in
Van
Duivenboden
,
Nugent JA stressed that a negligent omission should only be regarded
as being wrongful ‘if it occurs in circumstances that
the law
regards as sufficient to give rise to a legal duty to avoid
negligently causing harm’.
[5]
[16]
The use of the phrase ‘legal duty’ in these circumstances
means no more than that the omission must not be wrongful
as
judicially determined in the manner referred to above ie involving
criteria of public and legal policy consistent with constitutional
norms – see
Hawekwa
Youth Camp v Byrne
2010 (6) SA 83
(SCA) para 22. Importantly, the concept is not be
confused with the English law concept of ‘a duty of care’
which encompasses
both wrongfulness and negligence. Indeed, F D J
Brand, the author of the judgment in
Hawekwa
,
has stated extra-curially
[6]
that reference to a
‘legal duty’ has been no more than an attempt to
formulate a practical yardstick as to when policy
considerations will
require legal liability to be imposed – a sentiment approved by
this court in
MTO
Forestry
.
[7]
This is particularly important to bear in mind in the present case
where, as appears below, the parties have referred to various
older
South African authorities as well as decisions in foreign
jurisdictions.
[17]
There is another matter relevant to the dispute before this Court. As
an omission is not prima facie unlawful the respondents,
on
particularising their claim, should not only have alleged that the
negligent omissions upon which they relied had been wrongful,
but
pleaded the facts upon which reliance was placed in support of that
contention. Indeed in
Kadir
this Court stated that the facts pleaded ‘in support of the
alleged legal duty represent the high-water mark of the factual
basis
on which the Court will be required to decide the question’.
[8]
Conspicuous by its absence in the particulars of claim, however, was
even a bare allegation of wrongfulness on the part of the
appellants.
All that was alleged was the alleged negligent failure to take
reasonable steps to ensure that the swimming pool gate
was closed or
properly secured.
[18]
Counsel for the respondents attempted to persuade us that it was
implicit in the pleading that the alleged negligence of the
appellants had been wrongful. But not even on a generous
interpretation of what was pleaded, can this be found. This is an
issue
that should have been raised before the court a quo; but it was
not, and both sides proceeded to litigate seemingly oblivious to
the
fact that a necessary element of liability had not been mentioned in
the pleadings.
[19]
In his heads of argument before this Court, counsel for the
respondents objected to the appellants, in their notice of appeal,
having raised the fact that the court a quo had ‘overlooked’
the fact that as C had been accompanied by her mother
they were
entitled to rely on the latter to look after her. This, he
complained, had never been pleaded by the appellants, and
if it had
been evidence could have been led ‘to show why appellants could
not in the circumstances have relied on second
respondent’s
presence at the house to negative their defence’. All of this
overlooks that it was in fact the respondents
who bore the onus to
allege and prove wrongfulness, and that the appellants were not
called on to establish a ‘defence’
to a claim based on
wrongfulness that had not been levied against them.
[20]
In any event, during the course of cross-examination it was put to
the second respondent that the appellants had been entitled
to assume
that she, devoted as she was to C, would not leave her child
unattended. Moreover, it is hard to imagine what further
evidence
could have been led relevant to how the accident had occurred on the
day in question. In these circumstances, the only
way in which
justice can be done to the parties is to determine the issue of
wrongfulness without reference to the allegations
made in the court a
quo and in the light of the facts placed on record.
[21]
Turning to that issue, when asked why the failure to secure the
swimming pool gate should be regarded as wrongful, counsel
for the
appellant argued that it was reasonably foreseeable that an
unattended child might gain access to the swimming pool and
be
injured. But as I have already attempted to point out, that puts the
cart before the horse as foreseeability should not be taken
into
account in considering the question of wrongfulness. Moreover, on the
respondents’ own case, C was not an unattended
child. She was
brought onto the premises, to the knowledge of all, in the care of
her doting and careful mother. It is on this
basis that the issue of
wrongfulness must be considered, rather than on the premise that she
was an unattended child who had free
rein to roam wherever she wanted
on the property.
[22]
The issue then becomes whether, when a toddler is brought to the
private premises of a homeowner in the custody and supervision
of her
parent, the homeowner should be held liable if the custodian parent,
momentarily distracted, allows the child out of her
sight – and
the child is then injured when falling into a swimming pool of which
her mother was aware. The test for this
is whether in these
circumstances, and in the light of constitutional norms, including in
particular the necessity to protect the
best interests of a child,
the failure to ensure that the swimming pool gate was secured so it
could not be opened by a toddler
not only ‘evokes moral
indignation, but also that the legal convictions of the community
demand that it be regarded as wrongful
and that the loss be
compensated by the person who failed to act positively’
[9]
– or whether it would be over-burdensome to impose liability.
[23]
In seeking to persuade us that the issue ought to be decided against
the appellants, counsel for the respondents hung his argument
largely
upon the judgment in
Hirschman
NO & Hirschman v Kroonstad Municipality
1914 OPD 37.
In that case it was shown that the municipality used to
dump coals from its power station on a piece of immovable property.
Although
those coals were supposed to have been slaked, this was not
always effective and live coals that could not be detected during the
day often ended up on the ash heap. The claim arose from a child
traversing the property having burnt his foot when he stood on
a live
coal. The court found the live ashes on the ash heap constituted a
concealed source of danger to anyone who happened to
be there. The
evidence also established that the land in question was not fenced
off and the general public especially children,
often went onto it.
This was known to municipal officials. The court concluded that in
these circumstances, placing ashes on an
open, unfenced and
unprotected piece of ground close to a public street, without taking
any precautions to avoid accidents, amounted
to an act of
negligence. The municipality was therefore held liable for
damages suffered by the child in consequence of his
burns.
[24]
I must immediately comment that, as appears from what to set out in
Za
v Smith
[10]
(a case in which a person had been injured by slipping on ice
concealed under snow) the judgment in
Hirschmann
was given at a time where liability for omissions was confined to
certain defined categories, one of which was that those in control
of
dangerous property had a duty to render it reasonably safe for those
who could be expected to visit it – and that although
things
have changed, those categories have not become entirely irrelevant.
However, in
Za
v Smith,
Brand JA went on to find that wrongfulness had been established as,
apart from the fact that the defendants were in control of
the
property, which held a risk of dangers for visitors, they had made
the property available to members of the public for a fee
in order to
allow them to use four wheel drive motor vehicles to drive a route
designed to lead directly to the dangerous area.
[25]
The respondents also relied upon the recent decision of this Court in
Van
Vuuren v eThekwini Municipality
(1308/2016)
[2017] ZASCA 124
(27 September 2017). In that matter a
young child came to be injured when pushed by a child behind him
whilst using a municipal
beachside pool slide. It was accepted that
the slide itself was safely constructed but that it could lead to a
dangerous situation
if a child was pushed and came down the slide in
an awkward position. In these circumstances, this Court was called on
to deal
with the question of wrongfulness and whether there was a
legal duty to supervise and control access to the slide. Bearing in
mind
that a child’s best interest is of paramount importance,
as enshrined in s 28(2) of the Constitution, that the parents of
children using the slide were not allowed entry to the facility
itself and were therefore unable to control the actions of their
children, and that children were allowed to use the slide in a
chaotic manner, this Court concluded that the municipality owed
a
legal duty to avoid negligently causing harm to persons in the
position of the injured child.
[26]
Hirschman
and
Van Vuuren
both concerned situations in
which there was public access to potentially dangerous places by
children who might not be in the
custody and care of a supervising
adult. And in
Hirschman
and
Za
, the injury suffered was
due to a concealed danger of which the victim was unaware. The facts
of those cases differ substantially
from the present. They are a far
cry from the scenario of a toddler being taken to a private home as a
guest in the care and under
supervision of her mother who knew of a
potentially unguarded swimming pool on the premises. They are thus
wholly distinguishable
from the present facts and of limited
assistance in the task at hand, and certainly do not set a precedent
for the appellants being
held liable.
[27]
In seeking to persuade us that there was no wrongful omission by the
appellants, their counsel relied heavily upon the decision
in
BS
v MS & another
2015 (6) SA 356
(GP). In that matter the father of a child who had
sustained brain damage after falling into a fishpond on the
defendants’
property, instituted a claim for damages on behalf
of his injured child founded on an alleged omission to render the
fishpond safe.
The claim was dismissed, with the court concluding
that the defendant’s warning in regard to the danger of the
fishpond,
taken together with the reasonable expectation that the
child’s parents would supervise her, were sufficient to
discharge
the legal duty resting on them not to expose persons on
their property to harm or injury.
[28]
Unfortunately, the reasoning of the court in reaching its decision is
somewhat confused. It fell into the trap of failing to
separate the
issue of wrongfulness from that of negligence, and seems not to have
appreciated the distinction between a duty of
care as envisaged in
England and echoed in older cases in this country – such as
Cape
Town Municipality v Paine
1923 AD 207
to which it referred – and the modern concept of a
legal duty associated with wrongfulness. Consequently, although the
result
may have been correct, the reasoning by which it was reached
is of little help. Nevertheless it is of assistance to the extent
that in circumstances not dissimilar to the present, a court held a
defendant not liable.
[29]
Significantly, similar claims have also failed in other
jurisdictions.
For
example, the English decision in
Phipps
v Rochester Corporation
[1955]
1 All ER 129
(QB) is instructive. The facts differed from the present
in that it involved a claim on behalf of a child of tender years who
fell
into a trench on a building site, and the matter was further
complicated by the requirements English law doctrine of licence.
However,
after dealing with a number of cases in which it had been
held that if a child of tender years is not capable of appreciating
danger
it ought not to be allowed to be unattended, Devlin J
stated:
[11]
‘
But
the responsibility for the safety of little children must rest
primarily on the parents; it is their duty to see that such children
are not allowed to wander about by themselves, or, at the least, to
satisfy themselves that the places to which they do allow their
children to go unaccompanied are safe for them to go to.
It
would not be socially desirable if parents were, as a matter of
course, able to shift the burden of looking after their children
from
their own shoulders to those of persons who happen to have accessible
bits of land.
Different considerations may well apply to public parks or to
recognised playing grounds where parents allow the children to go
and
accompanied in the reasonable belief that they are safe.’ (My
emphasis.)
[30]
This decision was referred to and relied upon in the England and
Wales Court of Appeal in
Bourne
Leisure Ltd t/a British Holidays v Marsden
[2009]
EWCA Civ 671.
In that case a small child fell into a pond at a
camping site operated by the appellant after wandering away from his
parents who
were momentarily distracted in conversation. A statutory
provision obliged the appellant to take such care is in all the
circumstances
was reasonable to see that a visitor would be
reasonably safe and, in regard to children, to expect they would be
less careful
than adults. Despite this, the appellants were held not
to be liable.
[31]
We were also referred to a number of American decisions in which
claims brought as a result of small children falling into
swimming
pools were dismissed: in particular,
Workman
v Dinkins
442F. Supp. 2d 543;
Horace
Ex Rel, Horace v Braggs
726
So 2d 635
(1998);
Englund
v Englund
615
N.E. 2d 861 (III. App. Ct. 1993);
O’Clair
v Dumelle
,
735 F. Supp. 1344 (N.D. III. 1990) and
Wilford
v Little
144 Cal. App. 2d 477
(1956). No point would be served in setting out
a detailed analysis of the facts, circumstances and reasoning in each
of these
decisions. Suffice it to say that common to all is the
sentiment that where small children are in the care and under the
supervision
of their parents whilst visiting the home of another, the
duty to keep the child safe lies upon the latter and the homeowner
should
not be held liable in the event of the child falling into a
swimming pool when the parent is distracted.
[32]
I am acutely aware of the pitfalls of relying too heavily upon
decisions in foreign jurisdictions for the reasons already mentioned.
But all of these cases are of persuasive value and seem to me to
reflect public and legal policy of this country as well, namely,
that
it would be unreasonable – in the sense of reasonableness as
explained by the Constitutional Court in
Country
Cloud
– to impose liability upon the owner of a residence should a
small child in the care of her mother wander off when the mother
is
briefly distracted and accidentally fall into a swimming pool of
which the mother is aware. To hold otherwise would be to expect
the
host to provide greater supervision than the parent itself.
[33]
In all the circumstances, I am of the view that the respondents
failed to establish the element of wrongfulness on the part
of the
appellants. That being so, their claim must fail on this basis alone,
and the appeal must succeed.
[34]
Strictly speaking, this renders it unnecessary to consider the
question of the alleged negligence on the part of the appellants.
I
therefore do not intend to discuss this topic in any detail, but for
completeness I feel I should mention that on this leg as
well the
respondents failed to establish their claim.
[35]
In considering the question of reasonableness and foreseeability of
harm, a reasonable person in the position of the second
appellant
would have realised that the child was in the custody of the second
respondent, that the latter was a doting parent and
had always kept
the child under close observation, and that she was aware of the
potentially open or unlatched gate at the swimming
pool on the
property. The child was the primary responsibility of the second
respondent, and it would have been reasonable to assume
that she
would have continue to keep the child under observation and not to
allow her to roam free. There is no absolute duty upon
a landowner to
ensure that any person upon his property will not be injured in some
way. The sources of potential danger to a toddler
in a normal
domestic household and garden are numerous, and no homeowner can be
expected to guard against all the harm that might
befall a young
child. On the other hand, a homeowner can reasonably expect that a
child will be supervised and guarded from harm
by its supervising
parent, and would not foresee that the parent would be distracted
whilst caring for its child. Moreover, it
must also be remembered
that a reasonable person is neither a timorous faint-heart always in
trepidation of harm occurring but,
rather, ventures out into the
world, takes reasonable chances, takes reasonable precautions to
protect his or her property and
person and expects others will do the
same – see
Herschel
v Mrupe
1954 (3) SA 464
(A) at 490E-F.
[36]
In the context of the facts of this case, a reasonable person in the
position of the appellants was entitled to expect that
C would be
looked after by her mother whilst at their home that day. There was
nothing to alert either of the appellants to the
fact that she had
been left unattended on the patio. It seems from the evidence that at
the brief time the second respondent became
distracted by the matter
of the baby-seat, the second appellant was busy making pancakes in
the kitchen and was in no position
to observe C’s movements.
The suggestion in the respondents’ heads of argument that the
second appellant’s action
in immediately running to the
swimming pool justified the probable inference that she had seen C
heading that way and that she
knew the gate at the pool was not
secured, is not sustainable and, wisely, I did not understand counsel
for the respondents to
persist in this allegation.
[37]
In the light of these circumstances, and although it is not necessary
to discuss the question of negligence in any greater
detail, in my
view, the respondents failed to establish that negligence on the part
of the appellants led to C being injured. This
does not imply that
the second respondent was negligent in this tragic affair. As
stressed in a number of the authorities already
mentioned in similar
circumstances, accidents unfortunately do happen. But the fact that
an accident happens does not mean that
someone must be held liable.
[38]
In all the circumstances, the court quo erred in holding the
appellants liable in damages arising out of C having fallen into
their swimming pool. The appeal must therefore be upheld.
[39]
In the result it is ordered:
1
The appeal is upheld, with costs, such costs to include the costs of
two counsel.
2
The order of the court a quo is set aside and replaced with the
following:
‘
The
plaintiffs’ claim is dismissed with costs, including the costs
of two counsel.’
______________
L
E Leach
Judge
of Appeal
Appearances:
For
the Appellant:
C W Jordaan SC (with him M J M Bridgman)
Instructed
by:
Cliffe Decker Hofmeyr Inc, Cape Town
Pieter Skein
Attorneys, Bloemfontein
For
the Respondent:
R A Brusser
SC
Instructed
by:
John O’Leary Attorneys, Cape Town
Webbers Attorneys,
Bloemfontein
[1]
Para 20-21.
[2]
My insertion.
[3]
Para 19.
[4]
Full citations quoted in the
judgment are omitted for present purposes.
[5]
Para 12.
[6]
F D J Brand ‘Aspects of
wrongfulness: A series of lectures’ (2014) 25
Stellenbosch
LR
451 at 455.
[7]
Para 14.
[8]
At 318I-J.
[9]
Kadir
at 320A-C.
[10]
At para 20.
[11]
At 143G–I.