Brief Summary

Negligence — Duty of care — Appellant's liability for injuries sustained by minor during farm tour — Respondents' daughter injured by bear while posing for photograph — Appellant contended he was not negligent as he had left group in care of experienced professional hunter — Trial court found appellant liable for damages, citing failure to ensure safety measures and proper supervision — On appeal, court held that appellant did not breach duty of care as he reasonably relied on the group leaders to supervise and ensure safety, and that the injured girl’s actions contributed to the incident — Appeal upheld, trial court's judgment set aside.

Comprehensive Summary

Summary of Judgment

1. Introduction

This judgment concerns an appeal to the High Court (Free State Division, Bloemfontein) against a magistrates’ court decision on the merits in a delictual damages claim arising from an injury caused by a caged bear on a private game farm.

The appellant was S D R, the owner/custodian of a wild (game) farm in the Hoopstad district. The respondents were Christiaan Daniel Van der Watt (first respondent, suing in his personal capacity for special damages incurred as the injured minor’s father and natural guardian) and Christiaan Daniel Van der Watt N.O. (second respondent, suing in a representative capacity for general damages on behalf of the minor child, K).

The respondents instituted action in the High Court, but the matter was transferred and ultimately heard in the regional court sitting at Bloemfontein. By agreement between the parties, issues were separated, and the trial proceeded on merits only. On 2 February 2016, the regional court found the appellant liable for the respondents’ proven damages in their entirety and ordered him to pay costs, including increased advocate’s fees. The appellant appealed against that judgment and order in full, primarily challenging the finding of negligence.

The general subject-matter of the dispute was whether the appellant, as the person in control of dangerous wild animals kept in captivity, was delictually liable for injury to a visitor (a minor) who was hurt when a bear’s paw closed around her arm while she was near the cage.

2. Material Facts

It was common cause that on 15 April 2012, the second respondent’s 16-year-old daughter (K) was part of a church excursion to the appellant’s wild farm. The farm was not accessible to the general public; access was by appointment only. The appointment for this visit was arranged by Mr Van der Berg, described as a professional hunter who was familiar with the farm and had brought visitors there since about 2000.

It was also not in dispute that the visiting group paid no fee for the visit. Upon the group’s arrival, the appellant made it clear that he would not be available to take them around the farm and he left the group in the care of Van der Berg (who was one of their leaders) and Pastor Erasmus. The evidence accepted on appeal included that Van der Berg accepted responsibility for the welfare of the group and regarded himself as competent to guide it, and that he admitted being responsible for and in charge of the group at all times material to the incident.

The incident itself was largely uncontested in its essentials. The bear did not escape from the cage. The bear did not attack in the sense of breaking out or lunging from outside the enclosure; rather, it smelt K’s left arm, extended its paw, and when K attempted to move away in fear, the bear closed its paw around her left upper arm, causing injury.

The facts relevant to safety communication were that the appellant gave an orientation talk in which he at least mentioned the need to keep safe distances from the cages. Pastor Erasmus at one point touched a bear after the safe-distance rule was communicated, and the appellant reprimanded him; after this, Erasmus repeated the safety message to the children. The appeal court noted evidence suggesting that Erasmus was probably not present when the safe-distance rule was initially communicated, which bore on whether he knowingly disregarded the instruction.

The respondents’ case at trial (as reflected in the appeal judgment’s account of the trial court’s reasoning) emphasised that the appellant left the group in the hands of persons allegedly not shown to have adequate knowledge of bears, did not draw the group’s attention to warning notices/disclaimers, and failed to install barriers/markers to prevent visitors coming too close to the cages. The appellant’s case, in turn, relied on the private nature of the premises, the existence of warning signs, asserted compliance with official requirements, the absence of similar incidents over many years, the presence of responsible adults including an experienced professional hunter, and the safety briefing given at the start.

3. Legal Issues

The central question on appeal was whether the regional court had correctly found the appellant negligent in relation to the harm suffered by K, and thus delictually liable. Although the appellant also referred to wrongfulness as a component of delictual liability, the appeal court recorded that, on the manner in which the case was conducted, wrongfulness was effectively not in issue before the trial court, with the dispute having been limited to fault in the form of negligence.

The dispute primarily concerned the application of law to fact: whether, on the facts accepted (including the nature of the premises, the delegation of supervision, and the manner in which the injury occurred), a reasonable person in the appellant’s position would have foreseen the reasonable possibility of harm and would have taken steps to prevent it, and whether the appellant failed to take such steps.

A further issue concerned the appeal standard applicable to factual findings and whether the trial court had committed a misdirection such that the appeal court was entitled to reconsider the matter on the record.

4. Court’s Reasoning

The appeal court approached negligence by reference to the settled test in Kruger v Coetzee 1966 (2) SA 428 (A), namely foreseeability of harm, reasonable preventative steps, and failure to take such steps. It also reiterated that conduct must be wrongful before it can be assessed as faulty (intentional or negligent), and it referred to authority explaining wrongfulness in terms of infringement of rights or breach of a legal duty in circumstances recognised by law, including Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) and Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA).

In addition, the court recognised that the custodian of dangerous animals bears a duty to avert the possibility of such animals causing harm to others, and that failure to observe such a duty is wrongful as a matter of public and/or legal policy. In this connection the court referred, among other authorities, to Hawekwa Youth Camp v Byrne [2010] 2 All SA 312 (SCA). However, the appeal court’s evaluation focused on whether, in the particular circumstances, the appellant’s conduct amounted to a negligent breach of the duty contended for by the respondents and accepted by the trial court.

On the appellate approach to findings of fact, the court referred to the principle that, absent misdirection, a trial court’s factual findings and credibility-based conclusions are presumed correct (citing S v Francis 1991 (1) SACR 198 (A)). The appeal court nevertheless found that the trial magistrate had misdirected herself on a key aspect of the negligence enquiry, namely the conclusion that a reasonable person in the appellant’s position would not have left the group in Van der Berg’s charge.

The appeal court considered that Van der Berg was a professional hunter who had arranged the appointment, was familiar with the farm, and had experience bringing groups there. The group did not pay for the appellant’s services and the appellant explicitly indicated he would not be available to guide them. Against that background, the court held that it was possible that, once supervision was handed to Van der Berg and Erasmus, the appellant no longer owed the group a duty regarding their general conduct during the tour (including ensuring the group remained together and kept safe distances), because the appellant was no longer the supervisor. The court emphasised that Van der Berg accepted responsibility and therefore assumed a duty to ensure the group’s safety during the tour, including adherence to safe-distance measures.

Applying the negligence test to the facts, the court concluded that a reasonable person in the appellant’s position would not have foreseen that K would remain behind and breach safety measures by standing in close proximity to the cage with her back turned while posing for a photograph. The court also concluded that a reasonable person would not have foreseen, as a reasonable possibility, that Van der Berg—given his experience—would fail to keep a vigilant eye on the group so that it remained together and maintained safe distances from bear cages. On this reasoning, the foreseeability leg of the Kruger v Coetzee enquiry was not satisfied in relation to the appellant’s conduct in the particular context where supervision had been assumed by the group’s leaders.

The appeal court also rejected the contention that negligence was established through the structuring of the cages or the absence of distance markers/barriers, because the accident was not caused by defects in the cages’ construction. It was not persuaded that reasonable care required the appellant to add barriers or to mark safe distances, particularly in circumstances where Van der Berg was familiar with safe distances and the appellant could reasonably trust him and Erasmus to supervise the group. The court treated the appellant’s orientation talk, his mention of safe distances, and his reprimand of Erasmus (followed by Erasmus repeating the safety measures) as contextual factors supporting the view that the appellant acted reasonably in relying on the leaders’ supervision.

The appeal court further disagreed with the trial court’s view that Erasmus’s earlier touching of a bear demonstrated that he could not be trusted with the group’s safety. On the evidence, Erasmus was probably not present when the safe-distance rule was initially communicated, and the appeal court did not accept that he deliberately disregarded a rule with full knowledge of it.

In its concluding remarks, the appeal court stated that the appellant’s duty was to provide access to a safe game farm, which it considered he had done, because the incident did not stem from defective structures or a lapse in existing safety measures. The court rejected the proposition that the appellant owed a duty to provide guiding services and to ensure the group kept safe distances, given his express unavailability and the fact that he was not retained for that purpose. The court attributed responsibility for the tour’s supervision to Van der Berg (who organised the visit and assumed that role) and Erasmus, and held that any shortcomings on their part could not, fairly and legally, be visited on the appellant because they were not in his service.

The court also noted, without deciding, that it was possible on the evidence that K may have been negligent, referring to evidence that she was in the vicinity during the orientation warning and that her own evidence suggested she was not alive to the distance between her and the cage. This observation was expressly made en passant and did not form the basis of the dispositive reasoning.

5. Outcome and Relief

The appeal was upheld with costs.

The order of the regional court was set aside and replaced with an order that the plaintiffs’ claims on the merits fail, and that the plaintiffs (respondents) must pay the defendant’s (appellant’s) costs, including increased advocate’s fees, jointly and severally, the one paying the other to be absolved.

Cases Cited

Kruger v Coetzee 1966 (2) SA 428 (A)

Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA)

Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA)

Hawekwa Youth Camp v Byrne [2010] 2 All SA 312 (SCA)

S v Francis 1991 (1) SACR 198 (A)

Legislation Cited

No specific legislation was cited by name in the judgment.

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The High Court held that the trial court materially misdirected itself in finding the appellant negligent for leaving the visiting group in the charge of Van der Berg and Pastor Erasmus. On the facts accepted, and applying the general negligence test, the High Court held that a reasonable person in the appellant’s position would not have foreseen the reasonable possibility that the minor would approach the bear cage in the manner that occurred, nor that the experienced group leader would fail to supervise adherence to safe-distance measures.

The High Court further held that the injury was not caused by defective cages or inadequate structural safety measures attributable to the appellant, and that shortcomings in supervision by the group’s leaders could not, in law and fairness, be attributed to the appellant in the circumstances described. The respondents’ claims on the merits therefore failed, and costs were awarded against them.

LEGAL PRINCIPLES

The judgment applied the standard South African delictual test for negligence as stated in Kruger v Coetzee 1966 (2) SA 428 (A), requiring (i) reasonable foreseeability of harm, (ii) reasonable steps to guard against such harm, and (iii) failure to take those steps.

The judgment reaffirmed that wrongfulness is conceptually distinct from fault and concerns whether conduct occurs in circumstances recognised by law as rendering it unlawful, including by infringing rights or breaching a legal duty, with reference to Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) and Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA).

The judgment accepted that custody and control of dangerous animals generally entails a duty of care to avert harm to others, and that a failure to observe such a duty may be wrongful as a matter of legal/public policy (with reference, among others, to Hawekwa Youth Camp v Byrne [2010] 2 All SA 312 (SCA)). In applying that general principle, the court emphasised that the content and reach of any duty, and the negligence enquiry, remain dependent on the particular facts, including the allocation of supervision and the foreseeability of the specific mechanism of harm.

The judgment applied the principle that appellate courts generally defer to trial courts’ factual findings absent misdirection (citing S v Francis 1991 (1) SACR 198 (A)), but held that a misdirection on a material component of the negligence analysis entitled the appellate court to reconsider the matter on the full record.

D v Van der Walt and Another (A84/2016) [2016] ZAFSHC 187 (27 October 2016)