Lernmaterialien für Law of Delict an der University of Cape Town

False

Its prima facie wrongful to cause physical harm to another’s person or property by a positive act that was intended to do so

False 

Could be declared wrongful by a court, even though none of the further facts previously identified by law obtained, if ‘the legal convictions of the community’ requires this.

TOPIC 

Negligence

FACTS 

• Recently built cold store (owned by first respondent, on land of second respondent) set alight and destroyed by a flare fired to celebrate the New Year. 
• Contents included goods owned by first and second appellants → stored in terms of oral contracts of deposit.
• Appellants alleged that the respondents had been negligent in failing to install a sprinkler system
• Provincial Division dismissed appellants’ claims

ISSUE 

• Whether the project engineer was negligent in failing to install a sprinkler system 
• Whether the port engineer’s failure to insist upon its installation had been both wrongful and negligent

REASONING

Relative vs Abstract Theory of Negligence

• Relative Theory of Negligence: Whether the relative theory of negligence (are the general nature and general manner of occurrence of the consequences reasonably foreseeable?) (Mukheiber v Raath 1999). 
• Abstract Theory of Negligence: Is any harmful consequence foreseeable? (Kruger v Coetzee 1966) 

The Test for Negligence 

The majority considered the test for negligence as developed in Kruger and redeveloped in Mukheiber: 

1. A reasonable person in the position of the defendant 
   1. Would foresee the harm of the general type that actually occurred 
   2. Would foresee the general type of causal consequence by which that har occurred 
   3. Would have taken steps to guard against it 
2. The defendant failed to take those steps

The court found that whichever theory was adopted, ULTIMATELY negligence is determined by whether the conduct complained of fell short of the standard of the reasonable person → there should always be a measure of flexibility to accommodate ‘grey area’ cases: 

• Acknowledges the need for various limitations to the broadness of the enquiry where circumstances require
• While the precise or exact manner in which the harm had occurred need not have been foreseeable, the general manner of its occurrence had to have been reasonably foreseeable

Foreseeability of the Fire 

No doubt that, as a general possibility, a fire in the cold store had reasonably been foreseeable: 

• Fire extinguishers and hose reels were installed to guard against this 
• What would, typically, have been reasonably foreseeable would have been the possibility of a fire starting somewhere in the building itself BUT what actually occurred was something entirely different. 
• To equate it in the determination of culpability with just any fire could attribute culpability for damage resulting from a danger which actually had not been foreseeable as a reasonable possibility. 

Determining Culpability 

• Culpability had to be determined not simply by asking whether any fire had been foreseeable BUT whether a reasonable person in the position of the project engineer/port engineer would have foreseen the danger of fire emanating from an external source on the roof of the building with sufficient intensity to ignite the gutter.

Given that –

• The building was relatively isolated 
• There was nothing about its locality rendering it more vulnerable to fire 
• The region was not prone to lightning of the kind which would set fire to buildings save for a burning flare, 

it was difficult to conceive of any other source of fire which could have set the roof alight from above. 

Even if the project engineer and port engineer had known of the practice of firing flares to celebrate the New Year, the possibility of a flare landing while still burning and setting fire to the gutter of a building constructed with an otherwise non-combustible shell was so remote as not to have been reasonably foreseeable. 

The evidence had established that 

• The danger of fire emanating from an external source on the roof of the building with sufficient intensity to ignite the gutter had not been reasonably foreseeable 
• A reasonable person in the position of the project engineer and port engineer would not have foreseen the danger as real enough to warrant precautionary measures

CONCLUSION 

The appeal was accordingly dismissed. The decision in the Cape Provincial Division is confirmed. 

NOTE 

The SCA reiterated that the benchmark for negligence is what a reasonable person would have done in the same circumstances as the defendant.