The test for foreseeability of harm

Editor’s note: the Plaintiff in this matter chose to sue in terms of common law (also termed as product liability ex delicto). The injured plaintiff could have brought a product liability claim under section 61 of the Consumer Protection Act, possibly with a better outcome. See this article in that regard.

 The true criterion for determining negligence is whether, in the particular circumstances of each specific case, the conduct complained of fell short of the standard of the reasonable person. A court can’t seek guidance from the facts and results of other cases.

In Pick ‘n Pay Retailers (Pty) Ltd v Pillay (900/2020) [2021] ZASCA 125 (29 September 2021) the Supreme Court of Appeal had to decide whether the appellant, Pick ’n Pay Retailers (Pty) Ltd (PnP), was negligent in the operation of an automated Centurion Sector boom gate (the boom) controlling the exit of vehicles from a parking area for persons with special needs and parents with small children at Pick ’n Pay Hypermarket in Durban North. The plaintiff was injured when the boom struck her on her head as it descended from a vertical position.

Ms Pillay instituted an action in the Durban magistrate’s court against PnP, alleging that her injuries were caused due to the negligence of PnP in terms of common law (also termed as product liability ex delicto). She alleged that the defendant should reasonably have foreseen the possibility that the boom could cause injury to persons frequenting the shopping centre and failed to take steps to guard against such an occurrence.

The magistrate dismissed her claim as she did not prove that her injuries resulted from the negligence of PnP. She took the matter on appeal to the high court, where the lower court outcome was overturned, and negligence was established against PnP. However, the high court held that PnP was liable for only 60% of the damage due to her contributory negligence as she should have been more aware of her surroundings. The matter was then taken on appeal by PnP to the Supreme Court of Appeal (“SCA”), where the court extensively considered the negligence element. It confirmed the decision of the high court and dismissed the application with costs.

Although the risk of the boom descending and striking a person was reasonably foreseeable, counsel for the defendant submitted that the plaintiff had not proved that the defendant was negligent. 

The court cited various authorities and authors:

 In Kruger v Coetzee, Holmes JA formulated the test for negligence 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.’

In Sea Harvest Corporation, Scott JA stated that dividing the issue of negligence into various stages, however useful, was no more than an aid or guideline in resolving the issue: in the final analysis, the true criterion for determining negligence was whether in the particular circumstances, the conduct complained of fell short of the standard of the reasonable person. There is no universally applicable formula which would prove to be appropriate in every case.

In the light of recent authorities, J R Midgley and J C van der Walt in Lawsa have made the following observation:

‘When assessing negligence, the focus appears to have shifted from the foreseeability and preventability formulation of the test to the actual standard: conduct associated with a reasonable person. The Kruger v Coetzee test, or any modification thereof, has been relegated to a formula or guide that does not require strict adherence. It is merely a method for determining the reasonable person standard, which is why courts are free to assume foreseeability and focus on whether the defendant took the appropriate steps that were expected of him or her.’

Applied to the present case, the question is thus whether in the particular circumstances, the defendant took appropriate steps to avoid injury to pedestrians.

‘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. No hard and fast basis can be laid down. Hence the futility, in general, of seeking guidance from the facts and results of other cases.’

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