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[2016] ZAKZDHC 8
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Van Vuuren v Ethekwini Municipality (7099/2012) [2016] ZAKZDHC 8 (19 February 2016)
IN THE KWAZULU-NATAL HIGH COURT,
DURBAN
REPUBLIC OF SOUTH AFRICA
CASE NO. 7099/2012
DATE: 19 FEBRUARY 2016
In the matter between:
KARLIEN VAN
VUUREN
..................................................................................................
PLAINTIFF
And
ETHEKWINI
MUNICIPALITY
......................................................................................
DEFENDANT
J U D G M E N T
STEYN J
[1]
This case focuses on a very sensitive issue albeit interesting of
whether a parent
exercising parental control over a child can legally
expect of a local authority to either share in the duty of parental
control
or usurp the duty and responsibility. The matter has
its genesis in an incident that occurred at the Durban beachfront on
a balmy day in May 2011 when a young boy used one of the water slides
on the beachfront.
[2]
The plaintiff, the mother of a boy of 13 years old, instituted a
claim for damages
in both her personal and representative capacity,
for injuries suffered by her son on 21 May 2011. The incident
occurred
when the boy used a slide in one of the pools made available
for children under 12 years old at the Durban beachfront. The
issues of liability and quantum were separated at the commencement of
the trial and it was ordered that the issue of liability
be
determined. The defendant is the eThekwini Municipality, the
local authority responsible for the construction and maintenance
of
the greater Durban beachfront area, which includes the water slides
and paddling pool where the incident occurred.
[3]
It is alleged in the amended particulars of claim that the defendant
owed a legal
duty to the plaintiff since:
‘
At
all material times hereto the defendant:
5.1 was the authority responsible
for the construction and maintenance of the said beachfront
area;
5.2 was obliged to ensure that
all facilities, including the slide and swimming pool situated
on the
beachfront area was properly controlled and safely used;
5.3 the defendant was obliged to
ensure that access to the swimming pool and the slide was
controlled
and the number of children allowed to use the slide at one time was
restricted;
5.4 the
defendant owed a duty of care to ensure that the facilities on the
beachfront area under
its control were safe.’
[1]
[4]
The legal duty was defined very differently in the original
particulars of claim issued
on 2 November 2012. Since counsel
for the defendant relied on the original particulars during the
cross-examination of the
plaintiff, I consider it necessary to quote
from the particulars as stated in exhibit ‘E’ of the
bundle:
‘
7.
The Defendant, alternatively the Defendants employees, alternatively
their agents were
negligent in one or more of the following ways:
(a)
in failing to ensure that
the
construction
of the slide was of such a
nature that it was safe for all those who made use of it;
(b)
in failing to ensure that
the
materials used for the construction
of
the slide made it safe for members of the public to use;
(c)
in failing to ensure that
appropriate
materials
were used so that users of
the slide would be protected at all times;
(d)
in
erecting a structure which the Defendant, its employees alternatively
agents knew would be predominately used by children knowing
that such
structure was inherently unsafe
.’
[2]
(My emphasis.)
[5]
The defendant denied liability and pleaded:
‘
5.1
The plaintiff knew that unsupervised children using the pool and
slide facilities would be dangerous
and may result in injury;
5.2 The plaintiff was fully aware
of the risks involved in allowing her child to utilise the
pool and
slide facilities’
5.3 Despite this knowledge, and
whilst appreciating the risk, the plaintiff nevertheless allowed
her
child to use the pool and slide facilities;
5.4 Accordingly, the plaintiff
consented to be subject to the risk of injury to her child and,
in
the premises, the defendant is not liable for any loss or damage
suffered.’
[6]
At para 13 of the plea the defendant added to the defence of
volenti
non fit iniuria
, contributory
negligence in that the plaintiff should have taken reasonable steps
to supervise the child whilst using the slides
and had failed to do
so.
[7] What
needs to be decided is whether the defendant was under a legal
obligation to
control or supervise children who are using its
slides. Put differently whether the Municipality had failed to
take the necessary
preventative action in circumstances where the law
requires it to do so. Since the action is based on delict the
following
elements needed to be proved by the plaintiff: (a) an act;
(b) which is wrongful; (c) fault, i.e. negligence in this case; (d)
harm suffered by the plaintiff; and (e) a causal nexus between (a)
and (d).
[3]
It is trite that wrongfulness must be determined before the question
of fault.
Applicable
Law
[8]
Brand JA in
Trustees, Two Oceans
Aquarium Trust v Kantey and Templer (Pty) Ltd
[4]
defined the criterion of wrongfulness as follows:
‘
It is sometimes said that the criterion for
the determination of wrongfulness is ‘a general criterion of
reasonableness’,
i.e. whether it
would
be reasonable to impose a legal duty on the defendant
(see e.g.
Government of the Republic of
South Africa v Basdeo and Another
1996
(1) SA 355
(A) at 367E-G;
Gouda Boerdery
BK (supra)
in para [12]). Where
that terminology is employed, however, it is to be borne in mind that
what is meant by reasonableness
in the context of wrongfulness is
something different from the reasonableness of the conduct itself
which is an element of negligence.
It concerns the
reasonableness of imposing liability on the defendant (see e.g. Anton
Fagan ‘
Rethinking wrongfulness in
the law of delict’
(2005) 122
SALJ
90
at
109)
.
Likewise,
the ‘legal duty’ referred to in this context must not be
confused with the ‘duty of care’ in English
law which
straddles both elements of wrongfulness and negligence (see e.g.
Knop
v Johannesburg City Council
1995 (2) SA
1
(A) at 27B-G;
Local Transitional
Council of Delmas v Boshoff
2005 (5) SA
514
(SCA) in para [20]). In fact, with hindsight, even the
reference to ‘a legal duty’ in the context of
wrongfulness
was somewhat unfortunate. As was pointed out by Harms JA
in
Telematrix (Pty) Ltd t/a Matrix
Vehicle Tracking v Advertising Standards Authority SA
2006 (1) SA 461
(SCA) in para [14], reference to a ‘legal duty’
as a criterion for wrongfulness can lead the unwary astray. To
illustrate,
he gives the following example:
‘
(T)here is obviously a duty – even a
legal duty – on a judicial officer to adjudicate cases
correctly and not negligently.
That does not mean that the
judicial officer who fails in the duty, because of negligence, acted
wrongfully.’ (My emphasis.)
(See also
Knop v
Johannesburg City Council (supra)
at
33D-E.)’
[9]
Brand JA dealt with the confusion between the delictual elements of
wrongfulness and
negligence in
Hawekwa
Youth Camp & another v Byrne:
[5]
‘
As I see it, the quoted contentions are
indicative of confusion between the delictual elements of
wrongfulness and negligence.
This confusion in turn, so it
seems, originated from a further confusion between the concept of ‘
a
legal duty’, which is associated in our law with the element of
wrongfulness
, and the concept of ‘
a
duty of care’ in English law, which is usually associated in
that legal system with the element of negligence
(see eg
Knop v Johannesburg City Council
1995 (2) SA 1
(A) at 27B-G;
Local
Transitional Council of Delmas and Another v Boshoff
2005 (5) SA 514
(SCA) ([2005]
4 All SA 175)
para 20). Warnings
against this confusion and the fact that it may lead the unwary
astray had been sounded by this court
on more than one occasion (see
eg
Telematrix (Pty) Ltd t/a Matrix
Vehicle Tracking v Advertising Standards Authority SA
2006
(1) SA 461
(SCA) ([2006]
1 All SA 6)
para 14;
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
2006 (3) SA 138
(SCA) ([2007]
1 All SA 240)
para 11).
Nonetheless, it again occurred in this case.’
[6]
(My emphasis.)
[10] The test for
negligence has been formulated in the well-known case of
Kruger
v Coetzee
[7]
as follows:
‘
For
the purposes of liability
culpa
arises if –
(a)
a
diligens
paterfamilias
in the position of the
defendant –
(i)
would foresee the reasonable possibility of
his conduct injuring another in his person or property and causing
him patrimonial loss;
and
(ii)
would take reasonable steps to guard
against such occurrence; and
(b)
the defendant failed to take such
steps.
This has been constantly stated by this Court for
some 50 years. Requirement (
a
)(ii)
is sometimes overlooked. Whether a
diligens
paterfamilias
in the position of the
person concerned would take any guarding steps at all and, if so,
what steps would be reasonable, must always
depend upon the
particular circumstances of each case.’
[8]
[9]
[11]
In
Minister of Safety and Security v Van
Duivenboden
[10]
Nugent JA said:
‘
When determining whether the law should
recognise the existence of a legal duty in any particular
circumstances what is called for
is not an intuitive reaction to a
collection of arbitrary factors but rather a balancing against one
another of identifiable norms.
Where the conduct of the State,
as represented by the persons who perform functions on its behalf, is
in conflict with its constitutional
duty to protect rights in the
Bill of Rights, in my view, the norm of accountability must
necessarily assume an important role
in determining whether a legal
duty ought to be recognised in any particular case.’
[11]
[12] The question
whether there is a legal duty to avoid the risk or harm eventuating
in our law was
answered in
Halliwell v
Johannesburg Municipality Council:
[12]
‘
For the decision of the present dispute it
is sufficient to say that where in consequence of some positive act,
a duty is created
to do some other act or exercise some special care
so as to avoid injury to others, then the person concerned is under
Roman Dutch
law liable for damage caused to those to whom he owes
such duty by an omission to discharge it.’
[13]
The Evidence
[13]
Mr Theo Gregersen was called by the plaintiff as an expert in
Occupational Health and Safety.
He is a qualified mechanical
engineer. After he obtained his degree, he practiced as an
engineer from 1962 to 1985.
He thereafter joined the Department
of Labour and worked in the occupational health and safety division
until his retirement in
2000. Mr Gregersen stated that he is
the author of three books and had investigated many incidents and
compiled many reports.
He confirmed his report consisting of
six pages as per exhibit ‘C’. He was instructed to
evaluate the slide facility
where the plaintiff’s son had
sustained injuries. He reached the following conclusions in his
report:
‘
1.
Public swimming pools are known to pose a danger to children when
they are not controlled. The very nature
of wet surfaces, high
places such as access steps to slides, are dangerous and need
constant adult supervision by qualified and
competent persons.
Numerous accidents have occurred at swimming pools. These range
from slipping when running on wet
surfaces to diving into shallow
water and hitting the bottom of the pool.
2. During the inspection conducted on the 14
th
November 2013, no supervision of the swimming pool was noticed.
This was especially obvious by the number of children who
were
running around uncontrolled on the wet surfaces, bunching up at the
top of the slide and pushing each other forcefully and
dangerously
down the slide.
3. Access to the Durban South Beach swimming pool
is unrestricted. There are no fences to control access
or limit
the number of children using the swimming pool at the same time and
there was no supervisor controlling the access to
the swimming pool.
The swimming pool is situated in the middle of an open public area
where children and adults have free
unrestricted access.
4. The apparent absence of
supervision at the swimming pool was a direct contravention by the
Ethekwini Municipality
of Section 9 of the Occupational Health &
Safety Act and also Regulation D4 of the National Building
Regulations in that there
was no access control at the swimming pool
and the children were not being controlled. If there was a
supervisor in the immediate
vicinity he/she was not obvious and was
certainly not controlling the activities of the unruly children
running around dangerously
and pushing each other on the slide at the
time of the inspection on the 14
th
November 2013.’
[14]
[14]
The methodology employed by Mr Gregersen was to contact the plaintiff
and collect information
about the incident, as well as to inspect the
scene of the incident and the facility. According to his
observations a supervisor’s
tower, approximately 60 metres from
the slide, was found as can be seen in picture 13 of exhibit ‘C’.
When he
inspected the area there were a large number of children on
the slide and no control or supervision was exercised. The
slide
was very slippery and very quick. In his view it would
have been safer if someone was in control of the children. On
the date of the incident there was no such supervision or control.
In his opinion, one supervisor in the tower was not sufficient
since
it is too far away from the slides. Mr Gregersen did not
elaborate or explain why the tower should be nearer to the
slides,
nor did he investigate the qualification or duties of the supervisors
manning this tower. He confirmed that the supervisor
had a
whistle to use to alert the people using the pool. He did not
notice any first aid sign displayed near the slides.
[15] Under
cross-examination Mr Gregersen confirmed that the structure was sound
and safe and that
the sides were high. He conceded that if the
slide was used properly then it was a safe structure. There
were two signs
in place reading ‘No rough play’ and ‘Kids
under parental supervision’ near the slides. He noticed
these signs but claimed that it was not displayed at the time of the
incident in question, his opinion in this regard was based
on what he
had heard. Mr Gregersen was questioned on the application of s
1 of the National Building Regulations and Building
Standards Act 103
of 1977, especially since s 2 of the Act is not binding on the
State. He conceded that this is correct.
He also became
less certain of his initial opinion that the
Occupational Health and
Safety Act 85 of 1993
places a duty on the defendant to have acted in
a different manner.
[15]
[16]
Mr Gregersen further conceded that the structure was safe but
contended that the use of it was
not necessarily safe in the absence
of control. He insisted that the apparent absence of control is
in contravention of the
Municipality’s legal duty. In his
view the Municipality should have controlled the use of the
facility. He contended
that the defendant ought to have made a
risk assessment and based on that had a responsibility to see to it
that the slides are
safely used. He conceded that children take
chances and are exuberant, nonetheless, he claimed that the
Municipality should
have monitored the slides. He reluctantly
agreed that parents likewise needed to control their children.
[17]
The plaintiff, Karlien van Vuuren, confirmed that she lived and
worked in Pretoria and has one
son, John Ray Jaques van Vuuren,
nicknamed JJ, who is 13 years old. At the time of the incident
he was eight years old.
She confirmed that the incident
occurred on a day when they were at the paddling pool at/or about
midday. She was waiting
on someone and JJ had asked if he could
swim and use the slides. According to her JJ used the slides
twice without any incident,
but when he came down the third time
there were about 10 or 15 children behind him on the stairs.
When he came down the slide
there were other children who must have
bumped him, because he lost control and bumped his face on the side
of the slide and at
the bottom of the slide. Mrs van Vuuren saw
he was bleeding profusely and ran into the pool and picked him up.
She
noticed that he was injured and that his teeth were pushed up to
his nose. She carried him to the tower for assistance but
no-one helped her. The person manning the tower merely took
photographs of JJ and told her to take her child to the hospital.
She took JJ to the car and drove him to Addington Hospital where she
received no assistance, whereafter she took him to Kingsway
Hospital
where he was treated. His injuries are reflected in the
pictures as per exhibit ‘B’.
[18]
Mrs van Vuuren went back to the scene the day after the incident and
took photographs of the
area. She found no board displayed that
indemnifies the Municipality. One sign at the scene stated that
only children
under 12 were allowed on the slides. On that day
there was no supervision and no-one was manning the tower. She
confirmed
that she took the photographs in exhibit ‘A’.
She claimed that if she had known how dangerous the slides were
she
would not have allowed her son to use them.
[19]
Under cross-examination she agreed that many play areas could be
regarded as dangerous.
She agreed that some areas have the
potential to cause injuries. She reiterated that it was hot on
the day in question and
that JJ had asked her permission to swim and
use the slides. She saw the children coming down the slide,
making a noise and
playing. She did however not see anyone
controlling the access to the slides. She further agreed that
there was the
possibility that her son could get hurt using the
slide, but insisted that it ought not to have been to the extent that
he was
injured. It was put to her that her initial complaint
was that the facility was unsafe and not that the usage of the slide
had to be supervised. Counsel for the defendant read to her the
original particulars of claim (see exhibit ‘E’)
and
proposed to her that it was only after Gregersen’s report was
released, stating that the structure was safe that the
complaint of
no control arose as per the amended particulars of claim. Mrs
van Vuuren faintly tried to explain that the particulars
are similar
in that it related to ‘safety’.
[20]
The plaintiff closed its case and thereafter, the defendant closed
its case without calling any
witnesses.
[21]
I shall be brief in the evaluation of the evidence tendered. Mr
Gregersen, although called
as an expert in the field of occupational
health and safety, ventured on numerous occasions into the field of
legal experts.
In cross-examination he became uncertain and
less persuasive in any opinion proffered. His reliance on the
Occupational Health and Safety Act was
, given the facts of this case,
misplaced. His opinion is not supported by the legislation nor
by the facts. At most
reliance can be placed on his examination
of the structure. He appears to be duly qualified to offer an
opinion on this aspect.
His finding was that the slides were
structurally safe.
[22]
Mr Gregersen desperately tried to explain that any child’s
parent was prohibited from controlling
the usage of the slide since
there was a sign that said persons under 12 were not allowed to use
the paddling pool. Once
more this view is based on his
interpretation of what is meant by the said sign. Counsel for
the plaintiff, Mr Pillemer,
during re-examination, tried to make
reference to the Municipality’s pool by-laws but failed, since
the witness lacked any
knowledge of
s 9
of the Pool By-law. I
am not persuaded that the Pool By-law prohibits a parent from using
the stairs going to the slides.
In fact what is provided for in
terms of
section 9
of the By-law as promulgated by 85 of 1989,
pg
4683, 16 March 1989 is: ‘A person commits an offence if
at any pool he – (xx) being a person above the age of
twelve
years enters upon, is on or uses a slide’. Mr Gregersen
is factually and legally mistaken.
[23]
He conceded that children should be supervised by their parents
and/or custodians when on a playground
but claimed that such duty is
co-shared by the Municipality. The witness failed to
substantiate this extra-ordinary opinion.
The conclusions
reached by Mr Gregersen cannot be reconciled with the evidence or the
facts before me.
[24]
Mrs van Vuuren was the only other witness called by the plaintiff.
She impressed in the
witness stand as an honest witness, this much
was also conceded by counsel for the defendant, Mr Shapiro. She
acknowledged
that as a parent she had a duty to safeguard her child
on the day. She never assessed the usage of the slide as a
dangerous
practice until her child was injured on the third time
going down the slide. She also conceded that she most certainly
did
not require a sign to warn her or guide her to supervise her
child. When confronted with the earlier particulars which dealt
with the structure not being safe, she could at best explain that the
particulars originally and amended dealt with the safety
of the
slides.
[25]
In the light of all the evidence, I find that the plaintiff’s
son, John Ray Jaques van
Vuuren was injured coming down a slide in
one of the pools at the Durban beachfront. The slide is a
structure provided for
by the defendant for the use of children under
the age of 12 years old. On the day in question there was a
person manning
the observation tower as reflected in photograph 13,
page 7. This tower is 60 metres away from the slides. The
overwhelming
evidence shows that the structure was and is safe.
What is in issue is whether the Municipality ought to have done more
in
instances where the slides were used and, if so, whether it was
negligent in not safeguarding the use of the slides.
[26] The plaintiff
relies on harm that was caused as a result of an omission. It
ought to be
borne in mind that such harm is not
prima
facie
wrongful in our law. The
plaintiff had a duty to show that there are policy considerations
present which support a finding
of wrongfulness. In
Van
Eeden v Minister of Safety and Security
[16]
Vivier ADP emphasised the test for wrongfulness, in the instance of
an omission, as follows:
‘
Our common law employs the element of
wrongfulness (in addition to the requirements of fault, causation and
harm) to determine liability
for delictual damages caused by an
omission. The appropriate test for determining wrongfulness has
been settled in a long
line of decisions of this Court. An
omission is wrongful if the defendant is under a legal duty to act
positively to prevent
the harm suffered by the plaintiff. The
test is one of reasonableness. A defendant is under a legal
duty to act positively
to prevent harm to the plaintiff if it is
reasonable to expect of the defendant to have taken positive measures
to prevent the
harm. The Court determines whether it is
reasonable to have expected of the defendant to have done so by
making a value judgment
based,
inter
alia,
upon its perception of the legal
convictions of the community and on considerations of policy.
The question whether a legal
duty exists in a particular case is thus
a conclusion of law depending on a consideration of all the
circumstances of the case
and on the interplay of the many factors
which have to be considered. See the judgment of this Court in
Carmichael
at para [7] and recent decisions of this Court in
Cape
Town Municipality v Bakkerud
2000 (3)
SA 1049
(SCA) at paras [14] – [17];
Cape
Metropolitan Council v Graham
2001 (1)
SA 1197
(SCA) para [6];
Olitzki Property
Holdings v State Tender Board and Another
2001
(3) SA 1247
(SCA) paras [11] and [31];
BOE
Bank Ltd v Ries
2002 (2) SA 39
(SCA)
para [13] and the unreported judgment of this Court in
Minister
of Safety and Security v Van Duivenboden
,
case No. 209/2001 delivered on 22 August 2002, para [16].’
[17]
[27] It is assumed,
without deciding, for the sake of determining wrongfulness
in
casu
that the defendant was negligent.
The enquiry based on the abovementioned
dicta
is whether it is reasonable to have expected the Municipality to have
acted to prevent any harm to JJ and thus, should it have
been done as
a matter of public and legal policy.
[28] There is no evidence before this Court
that supports the contention that the harm that JJ had suffered
would
not have occurred had the defendant secured the services of a
supervisor who would have controlled access to the slides and
the
number of children going down. There was nothing in the usage
either by the plaintiff’s own child or the other
children that
followed him that alerted his mother to any danger. She did not
consider it necessary to prevent any harm in
the circumstances.
If the failure of the plaintiff is not regarded as blameworthy, on
what basis should there be a more onerous
burden on the defendant to
protect and control the use of the slides? In my view it is
reasonable for the Municipality to
expect that the parents of young
children would supervise and control them. Parents are best
equipped to know their children
and their children’s behaviour,
also their strengths and weaknesses which includes their ability to
use a water slide.
Members of the public have every right to
reasonably expect parents to guard their children against harm.
JJ was not an unattended
minor on this day, he was duly supervised by
his mother who was satisfied that the slide was safe and that
her
child was in no danger.
[29] In my view to place a
duty on the local authority to act under circumstances where it is
not expected
of the parent to act would impose an unsustainable, if
not intolerable burden on local authorities to supervise other
people’s
children in instances where the parents are present
but fail to do so. It is not reasonable to saddle the local
authority
with a greater duty of care than what is imposed on
parents.
[18]
[30]
To expect the defendant to employ gatekeepers at the slides to
control the number of children
using it at a specific time is
unreasonable given the circumstances and the facts before me. I
am not persuaded on the facts
of this case that such a finding would
merely result in the defendant employing ‘playground police’
at this one pool.
In fact, such a finding would lead to a duty
to secure supervisors or playground police at all playgrounds under
the control of
the defendant. If such a duty is imposed on the
defendant in circumstances where the parent is sufficiently able and
capable
of exercising parental control, then parents would always be
exonerated from exercising parental supervision and care at any
playground
used by their children. In my view public policy
dictates that parents should fulfil the duty of parental care and
supervision.
They are obligated to do that and act in the
interest of their own children.
[31] Can it be said that
the defendant ought to have provided a supervisor at the slide just
as a matter
of caution? In my view it would be unreasonable to
expect the local authority to provide such supervision at an enormous
cost just in case of an eventuality. To make such a finding
would lead to limitless liability.
[32]
Whilst it is sad that the plaintiff’s young child suffered harm
on this day, there is no
reason to find that the plaintiff should be
compensated for any loss suffered. The fact that he suffered
harm does not translate
into a finding that the defendant should be
held accountable in circumstances where there is no legal duty.
To impose a legal
duty on the defendant where no need for such duty
has been proved, would not be in accordance with public policy, nor
with one’s
sense of justice. The plaintiff’s
interest to be compensated is, in my view, outweighed by the greater
societal interest.
[33] Finally, it has become trite that the
enquiry into wrongfulness focuses on:
‘
[T]he [harm-causing] conduct and goes to
whether the policy and legal convictions of the community,
constitutionally understood,
regard it as acceptable. It is
based on the duty not to cause harm – indeed to respect rights
– and questions
the reasonableness of imposing liability.’
[19]
[34] The claim fails on
the basis that the conduct of the defendant, in this case not to act,
is not a wrongful
act and accordingly it cannot be held delictually
liable.
[20]
For this reason, I do not consider it necessary to deal with other
elements, nor with the defences raised by the defendant.
[35] The plaintiff has
failed to succeed in the burden of proof.
[36] In the result, the
action is dismissed, with costs.
STEYN J
Trial heard on : 25 & 26 January 2016
Counsel for the plaintiff : Mr R Pillemer
Instructed by : AC de Sousa Attorneys
Counsel for the defendant : Mr WN Shapiro
Instructed by : Ngidi & Company
Judgment handed down on : 19 February 2016
[1]
See para 5
of the particulars of claim as amended
.
[2]
See exhibit
‘E’.
[3]
See
HL
& H Timber Products (Pty) Ltd v SAPPI Manufacturing (Pty) Ltd
2001 (4) SA 814
(SCA).
[4]
2006 (3) SA
138
(SCA) para 11.
[5]
2010 (6) SA
83 (SCA).
[6]
Supra
at 90F-H.
[7]
1966 (2) SA
428
(A).
[8]
Ibid
at 430E-H.
[9]
In
Peri-Urban
Areas Health Board v Munarin
1965
(3) SA 367
(A) the Court formulated the traditional test as follows:
‘I owe him such a duty if a
diligens
paterfamilias
,
that notional epitome of reasonable prudence, in the position in
which I am in, would - (a) foresee the possibility of harm
occurring
to him, and (b) take steps to guard against its occurrence.’
(At 373F-G.)
[10]
2002 (6) SA
431 (SCA).
[11]
Supra
at 446G.
[12]
1912 AD 659
.
[13]
Supra
at 672.
[14]
See para 6
of exhibit ‘C’.
[15]
In his
report he relied on
s 9
of the
Occupational Health and Safety Act 85
of 1993
, which defines the general duties of an employer to his/her
employees.
[16]
2003 (1) SA
389 (SCA).
[17]
Supra
at
395H-396C.
[18]
See
Pieterse
v Big Sky Trading
489
CC
2015 JDR 1187 GP paras 31-42.
[19]
Loureiro
& others v Imvula Quality Protection (Pty) Ltd
2014
(3) SA 394
CC para 53; also see
Za
v Smith & another
2015 (4) SA 574
(SCA) para 15.
[20]
Cf.
Minister
of Law and Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A) and
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006 (1) SA 461
(SCA) where it was held that the defendants are not
delictually liable for reasons of public and legal policy.