New Supreme Court Of Appeal Judgment On Wrongfulness In South Africa

On 1 December 2017, the Supreme Court of Appeal ("SCA") upheld an appeal against the decision of the court a quo of Donen AJ in the Western Cape Division in the matter of Stedall v Aspeling (1326/2016) [2017] SCA 172.

In the context of this delictual claim the element of wrongfulness and its application came under a great deal of scrutiny by the SCA, who warned against its conflation with the element of negligence and clarified its importance as a safety net in determining when liability should ensue. More about this later.

The facts which gave rise to the action are summarised below:

On 27 July 2004, and whilst visiting at the Stedalls' home, the Aspelings' 30 month old daughter ("C") fell into a gated swimming pool, the gate to which had been accepted to have been open or unlatched. By the time C was discovered she had suffered severe brain damage ("the accident"). The Aspelings sued the Stedalls for damages they alleged both themselves and their daughter suffered due to the Stedalls' negligence. The court a quo held that the accident had been due to the joint negligence of both the Stedalls and Mrs Aspeling, apportioning blame on the basis that the Stedalls were twice as culpable as Mrs Aspeling. In this regard the Court found that the negligence of the Stedalls consisted of their failure to secure the swimming pool gate so that it could not be opened by a young child and the negligence of Mrs Aspeling consisted of her failure to keep C under constant supervision. The Stedalls appealed on the basis that they ought not to have been held liable for damages in delict. On appeal to the SCA, Leach JA, writing for the full court, concluded that:

the court a quo overlooked the requirement that wrongfulness is an essential and discrete element which has to be established first for delictual liability to ensue; in conflating this element with negligence, the court a quo had erred in holding the Stedalls liable; the foreseeability of harm, whilst a critical requirement for negligence, plays no role in the inquiry into wrongfulness; the fact that an act is negligent does not make it wrongful is well established in our law; a negligent omission is regarded as wrongful only "if it occurs in circumstances that the law regards as sufficient to give rise to a legal duty to avoid negligently causing harm"[1]; the phrase "legal duty" must not be confused with the English law concept of "a duty of care". A legal duty exists when public and legal policy...