CHAPTER 2 - AQUILIAN ACTION

This action is the cornerstone of our law of delict. Most of the delictual actions that are brought are Aquilian actions.

Requirements for liability

The requirements for this action are:

 

  • There must be patrimonial loss to P, a person’s patrimony being his or her property and finances. There must be some quantifiable financial loss stemming from D’s conduct. This financial loss usually arises out of damage or destruction of property or physical injury to a person or the causing of the death of a breadwinner. Sometimes, however, the loss is purely financial not flowing from harm to person or property. Loss includes prospective loss, e.g. loss of profits. Frequently, in an Aquilian action for personal injury, damages are also claimed for pain and suffering.
  • D must have inflicted the patrimonial loss intentionally or negligently (the fault requirement); and
  • There must have been some conduct on D’s part (i.e. an act or omission) which the law of delict recognises as being wrongful or unlawful (the wrongfulness requirement);
  • There must be a causal link between D’s conduct and the loss (the causation requirement).

 

Fault requirement

It must be proved that D caused the harm either intentionally or negligently.The fault element must be specifically pleaded.

 

In Nyaguse v Skinners Auto Body Specialists & Anor 2007 (1) ZLR 296 (H) the court pointed out that fault is requirement for the Aquilian action. The fault element must be specifically pleaded and proved in all Aquilian actions. This must be so even where P is able to establish wrongful conduct and consequential harm and then relies on the principle of res ipsa loquitur to prove fault on the part of D. Here, although fault might be inferable from the nature and circumstances of the harm occasioned, it would still be necessary for P to plead some form of fault, viz. actual intention or negligence, in order to enable a reasonable inference of liability to be drawn from the proven facts. Even if fault can be implied from the peculiar circumstances of the case as a matter of prima facie evidence, D’s reprehensible intention or negligence must be explicitly articulated as a matter of pleading.

 

In Ndlovu v Debshan (Pvt) Ltd & Anor HH-362-12 the court observed that in an Aquilian action, P must establish a wrongful act or omission as well as fault, in the form of intention or negligence, in addition to causation and patrimonial loss. Failure to specifically plead fault renders a declaration fatally defective as not disclosing a valid cause of action. In the present case, Ds pleaded to the claim as couched. They saw it fit not to raise any complaint pursuant to rule 140(1) of the High Court Rules to have the defect rectified. The matter proceeded through a pre-trial conference, where the parties agreed that what was being pleaded was the lex Aquilia and that the real issue for determination was whether D1 was vicariously liable for D2’s wrongful and unlawful act of discharging a firearm at P. Where a trial is held, the defendants having pleaded without complaint and having agreed to the issues at the pre-trial stage, fault can be implied from the evidence led or to be adduced despite P not having specifically pleaded it in the declaration.

 

In Rinenote Printers (Pvt) Ltd v A Adam & Co (Pvt) Ltd 2014 (2) ZLR 314 (H) the court stressed the need for proof of both wrongfulness and fault. D had wrongfully caused the eviction of P from premises it was leasing from. D but the court was not satisfied that there had been proof of fault on the part of D because he was under a misapprehension about the law having relied upon the wrong advice of its legal practitioner

Intention

Only rarely is the basis of the delictual action an allegation of deliberate and intentional infliction of harm, although, of course, crimes such as assault and malicious harm to property are delictual wrongs as well as criminal wrongs. Intention includes both knowing and deliberate infliction of harm as well as cases where the main object is not the infliction of the harm but D recklessly engages in some enterprise with realisation that the harm will probably or possibly occur.

 

Fraud is a delictual wrong that is based upon intentional action, namely, the intention to defraud. This delict is committed when D, with intent to defraud, makes a statement to P knowing or suspecting that the statement is false and intending that P will act upon the statement to his or her prejudice.If P suffers financial loss as a result of such fraudulent deception, he is entitled to claim damages.

 

In Coomer’s Motor Spares v Albanis 1979 ZLR 96 (GS) a car seller had fraudulently lied about the car for sale. He lied about the model and its average price on the market. The buyer would have paid less for the vehicle if he had known the true facts. The seller was liable to pay damages for fraudulent misrepresentation and the amount of damages was the difference between what P paid for the car and a reasonable price for a vehicle in that condition.See also Colt Motors v Kenny 1987 (4) SA 378 (T) (D misrepresented year of a car being sold.)

 

In Industrial Equity v Walker 1996 (1) ZLR 269 (H) D was guilty of fraud when he had sold shares sent to him in error. D knew he had no right to the shares and had sold the shares knowing that he had no right to do so. He was held liable on the basis of unjust enrichment.

 

See Smith & Youngson (Pvt) Ltd v Dubie Bros 1959 (1) R&N 351 (FS) (This case involved a company director) and Best v Wonder Motors (Pvt) Ltd 1975 (1) RLR 124 (GS) (On damages.)

 

Where a person has sustained loss due to the dishonesty of a registered legal practitioner in the course of his work as a legal practitioner, the injured party may be able to claim compensation out of the Compensation Fund in terms of s 54 of the Legal Practitioners Act of 1981.

 

Rape is also a delictual wrong based upon intentional wrongdoing. In Nkosi NO v Moyo HB-43-91 a fifteen-year-old girl was awarded damages for rape and in N v T 1994 (1) SA 862 (C) the court awarded substantial damages for the horrifying crime of rape of an 8-year-old child. See also M v N 1981 (1) SA 136 (Tk).

Negligence

Almost all Aquilian actions are based upon allegations of negligence. Negligence is a societal norm (interpreted by judges) of socially desirable and acceptable behaviour. It is a community standard to measure conduct. Negligence is a dynamic concept which can be adapted to social, economic, scientific and technological changes in society.

Determining whether there has been negligence

Negligence is concerned with the protection of society against the dangers posed by a conduct that falls below the standard of the average prudent person. The test applied for negligence is the objective standard of the reasonable person.

 

In Munorwei v Muza HH-804-15 the judge said that when deciding upon whether there has been negligence “a  judicial officer called upon to give a value judgment is guided by his own notions of justice and fair play. He is guided by the general norms and sense of values generally prevailing in society. He makes an objective assessment.”

 

The first stage in any case of alleged negligence is for the court to decide the facts. The facts will frequently be in dispute. P will be trying to establish facts that point clearly in the direction of clear-cut negligence, whereas D will be seeking to show a version of the facts that point to a complete lack of negligence. More rarely, the facts may not be in dispute but the parties will be in dispute as to whether or not, on the agreed facts, there was negligence. The facts are vitally important in a case of alleged negligence as whether or not there was negligence may turn on a number of particular facts. Where the facts are disputed the court must carefully decide which version of the facts to accept.

 

After the facts have been decided, the court has to determine how an ordinary, average, reasonably careful Zimbabwean would have behaved in the circumstances. Often, the situation may be one that has arisen in the past and there will be previous court rulings setting out what constitutes negligence in a particular situation. This is particularly the case in motoring situations. To take one example, there are numerous cases laying down that it is negligent for a driver to attempt to overtake on a blind rise when there may be oncoming traffic. But if the situation has not arisen in the past and the courts have thus not ruled on what constitutes negligence in that situation, the court must decide what standard of care a reasonable person would have exercised in that situation. Once it has determined this standard, the court will then decide whether D’s conduct measured up to this standard. If it did not, he or she will be adjudged to have been negligent. Negligence is thus the failure to display the same degree of care in avoiding the infliction of harm which the reasonable person would have displayed in the circumstances. The decisions in criminal cases which revolve around principles of negligence, e.g. culpable homicide and negligent driving, can be cited as authority in civil cases because the same tests for negligence which are applied in civil cases are also applied in criminal cases.

 

More specifically, the issue of negligence is examined by asking two main questions, namely, whether the harm was reasonably foreseeable and, if it was, what steps would a reasonable person have taken to guard against the harm ensuing.

Reasonable foreseeability

The first question to decide is whether in the particular circumstances of the case, the harm was reasonably foreseeable.Below are some illustrative cases:

 

In Witham v Minister of Home Affairs 1987 (2) ZLR 143 (H) a mentally unstable policeman was given a weapon and assigned to guard a house. He wandered off and shot some civilians. The Ministry was held to have been negligent in arming him knowing of his mental state. It was reasonably foreseeable that he might end up harming members and the Ministry owed a duty of care to members of the public.

 

The case of Sea Harvest (Pty) Ltd v Duncan Cold Storage (Pty) Ltd 2000 (1) SA 827 involved a situation in which someone fired a distress flare that landed on a store roof and set fire to the roof guttering, leading to the destruction of the store. The building was made of non-combustible material and the guttering could only ignite from a very high intensity heat source. There was no sprinkler system inside the building, although there was fire fighting equipment. The court held that although the possibility of fire was foreseeable and indeed foreseen, the maner in which the fire started was not foreseeable and therefore the action against the engineer and the authority that owned the building must fail.

 

In Minister of Safety and Security v De Lima 2005 (5) SA 575 (SCA) when interviewing an applicant for a firearm licence the police officer was required to enquire into the suitability of the applicant to have such licence. The police negligently failed to make proper enquiries and to detect that the person concerned had a tendency to lose control of himself. The licence was granted and later the licence holder shot and seriously injured P. The police were held liable to the person shot as the act of the licence holder was reasonably foreseeable.

 

In Workmen’s Compensation Commissioner v De Villiers 1949 (1) SA 474 (C) a lorry nudged a door as it entered into a municipal market. A workman was on a ladder resting against the door unbeknown to the lorry driver. The impact with the door caused the workman to fall off the ladder and he suffered injuries. The court found D not liable to the injured workman because the presence of the workman was not foreseeable.

 

In Clarke v Welsh 1976 (2) SA 484 (A) when D, a beginner in golf, struck the ball, it travelled almost at a right angle and had hit P in the eye. This occurrence was extremely rare even for a beginner. The court found that this freak accident was not reasonably foreseeable and D was not therefore liable for the injury sustained by P.

 

In Gordon v Da Mata 1969 (3) SA 285 (A) the trial court found D not liable as it was not reasonably foreseeable that during the cutting of cabbage leaves a small piece of cabbage leaf would fly that distance and land under P’s foot causing her to slip and fall and be injured in the shop. The Appeal Court reversed this decision, deciding that the harm was reasonably foreseeable in the circumstances.

 

In Stratton v Spoornet 1994 (1) SA 803 (T) P’s son aged 8½ climbed a pylon abutting a railway line close to his home. He was badly injured when he was shocked by live cable suspended across lattice-rack over railway line from a pylon on one side of the line to a pylon onother side. There was no proper fence preventing access to railway line or pylon. P had repeatedly warned his son not to venture onto the railway line but had not warned his son against climbing pylon since it never crossed his mind that his son might do so.The court decided that D was not liable. It accepted that it was reasonably foreseeable that a child might stray onto the railway line and might be injured by being run down by a train. But it was not reasonably foreseeable that a child would climb to the top of the pylon, climb along the latticework and suffer an electric shock or fall from latticework. The records over 30 years disclosed that no such accident had ever occurred.

 

In Palsgraf v Long Island Railway Co (1928) 284 NY 339 a passenger boarding a train dropped a package due to negligence of two railway guards. The package contained fireworks and there was an explosion. The force of the explosion caused some scales at the other end of the platform to be knocked over. The railway company was not liable as it was not foreseeable that the negligence in causing the package to be dropped would result in injury to P.

Foreseeability of general nature of harm and general manner of it occurring

Various cases have laiddown that it is neither necessary for the exact nature,nor exact extent, of the loss to be reasonably foreseeable, nor for the precise manner of the harm occurring to be reasonably foreseeable for liability to result. All that is necessary is that the general nature of harm and general manner of the harm be reasonably foreseeable.

 

For example, in Minister of Police v Van Aswegen 1974 (2) SA 101 (A) a prisoner was being conveyed in an ordinary vehicle by two police officer. The prisoner, who was in the back seat, leant over, grabbed and sharply turned the steering wheel. The car swerved and collided with an oncoming vehicle. The other vehicle happened to be carrying P’s valuable stud cattle. The accident resulted in bad injury to some of the cattle which had to be destroyed. The court found that the police officers ought to have foreseen and guarded against the prisoner’s attempt to escape which might endanger other road users. The general manner of the harm occurring was reasonably foreseeable as was the general nature of the harm and thus there was delictual liability.

 

See also Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) at 768G.

 

This approach accommodates the thin skull rule where if harm is foreseeable D is liable for the greater harm that arises from the victim having a special susceptibility or vulnerability like a weak heart. See later under Causation.

 

But what if what is reasonably foreseeable was harm of a particular type (for instance, trivial harm) but not harm of the character which actually occurred (such as serious harm)?

 

In Murray v Union Insurance 1979 (2) SA 825 (D) the kind or type of harm (grave injury to the eyes of a motor cyclist who was not wearing gogglesfrom the exhaust fumes emitted from a bus) was not reasonably foreseeable in the circumstances. What was foreseeable was minor irritation and not serious permanent damage to the eyes from carbon and soot particles contained in the exhaust fumes.

 

See also R v John 1969 (2) RLR 23; BAT Ltd v Fawcett Security Ltd GS-22-72; Kruger v van der Merwe 1966 (2) SA 266 (A); Botes v van Deventer 1966 (3) SA 182 (A) and Doughty v Turner Manufacturing Co (Ltd) [1964] 1 All ER 98.

Must harm to P be reasonably foreseeable?

The question also arises as to whether harm to the particular plaintiff must be reasonably foreseeable or whether it is enough if the plaintiff formed part of a class of persons who might be injured by the conduct in question.

 

In our law, negligence is a relative or directional concept. Thus, it is said that ‘negligence in the air’ will not be sufficient to found delictual liability. Before P can succeed in a delictual claim, he or she has to establish that D was negligent in relation to him. In other words, there may be situations where D was negligent in his or her conduct, but yet he or she was not negligent as regards the particular harm that P suffered. It may have been reasonably foreseeable that harm to some other person might result but not reasonably foreseeable that in particular P would be adversely affected.

Negligence in the air not enough

In Local Authorities Pension Fund v Nyakwawa & Ors 2015 (1) ZLR 103 (H) for several years two of P’s employees stole from P. They conniving with two employees from bank to store the stolen funds in fictitious bank accounts opened by them with the bank. P’s employees identified pensioners to whom lump sum benefit payments were due. They would forward the details to the bank employees who would open fraudulent bank accounts in the names of the pensioners, at one of the bank’s branches. The bank employees would then illicitly facilitate the storage of the stolen monies in those accounts. Afterwards P’s employees, with the assistance of the bank employees, would then withdraw the loot and share it amongst the four of them.

 

P brought an action against the bank claiming that it was negligent in the conduct of its operations. P averred that the bank was under a statutory duty to take measures to prevent the bank from being used to commit or facilitate financial crime; that the bank had poor internal standards, inadequate policies and procedures and internal controls that promote high ethical and professional standards and poor to non-existent “know your customer” procedures, all of which amounted to negligence on the part of the bank; and that there was a causal link between the bank’s negligence and the defrauding of P. The bank excepted to the claim, on the basis that there was no duty of care to the plaintiff; that the creation of the irregular accounts did not amount to a delict on the bank’s part.

 

The court decided that negligence is the failure, judged objectively, to exercise that degree of care expected in any given circumstances. It involves a duty of care and a breach of that duty. To found a cause of action there must have been a duty of care owed to P that D ought reasonable to have guarded against. Negligence in the air does not suffice. P was not a customer of the bank. If the bank was negligent in the manner that it ran its operations, then such negligence was classically negligence in the air. There was simply no nexus between such negligence and the misfortunes of P at the hands of its own employees.

 

The fund has also argued that the bank was in breach of its obligations in terms of statutory provisions, but it did not specify the statutory provisions. The court decided that even if P had specified such statutory provisions, the breach of such provisions by the bank would have been liable to suffer criminal sanction, that breach would still not transform into civil liability to the plaintiff. As with negligence in the air, this would be “criminality in the air” in relation to the fund.

 

This concept of relative negligence must not, however, be taken to mean that it is invariably required that harm to a specific pre-identified plaintiff must have been prospectively reasonably foreseeable. In many situations it is quite sufficient that it was reasonably foreseeable that harm would result to persons within the field of danger created by D’s negligent conduct. For example, if due to carelessness at a chemical factory there is an explosion and numerous people some distance away in a public street are injured, the question is not whether those victims were pre-identified but simply whether it was reasonably foreseeable that the explosion would result in injury to any persons who happened to be in the street. This is sometimes expressed by saying that injury to the class of persons of whom P was a member must be reasonably foreseeable.

 

Clearly, if D drives carelessly and loses control over his vehicle, D is liable to anyone who is within the ambit of the danger created. If the vehicle veers to the wrong side to the road, and collides with another vehicle causing injury to the other driver and passengers, D is delictually liable for the injuries to all the injured persons including, for instance, a child asleep on the back seat of the vehicle. If the car careers some distance off the road and hits a person, D is liable to the injured person even if he or she did not see that person before he or she left the road.

 

However, in some cases in South Africa the court has declined to impose liability if harm to the particular plaintiff was not foreseeable. In Prince v Minister of Law and Order1987 (4) SA 231 (E) D’s police officers fired shots at a fleeing vehicle in attempting to get the driver to stop. One shot struck and severely injured P who was lying asleep on the back seat of the car. The court held that P’s presence was not reasonably foreseeable to the police officers and the Ministry was not liable to P.

Would reasonable person guard against harm?

The second question is whether the reasonable person would have guarded against that harm. This enquiry is necessary because there are some situations where, despite the fact that harm was reasonably foreseeable, the reasonable person might not necessarily have taken any steps at all to prevent that particular harm or he or she might only have taken certain limited precautions. Therefore, in addition to reasonable foreseeability, the question of what steps, if any, the reasonable person would have taken has to be investigated. The way in which the enquiry is customarily broken down into its component parts is as follows:

 

  • If the reasonable person would have foreseen harm, would the reasonable person have taken steps to prevent that harm from eventuating?
  • If the reasonable person would have taken steps, what steps would the reasonable person have taken?
  • When deciding whether the reasonable person would have guarded against harm that was reasonably foreseeable the courts will take into account the following factors:
  • The degree of risk that the harm would occur (was it probable or unlikely that the harm would occur?)
  • The nature of the harm that would occur (if the harm occurred would it be serious harm or only trivial harm?)
  • The nature of the precautions required to prevent the harm (were these elaborate and expensive or easy and inexpensive?)
  • The objective that D was seeking to attain (was this legitimate or illegitimate?) or the

     utility of his or her conduct.

 

See Mills v Farmery 1989 (2) ZLR 336 (H).

 

These factors are weighed against one another and the court then decides whether, on balance, the reasonable person would have taken certain precautions. For instance, if D was pursuing a legitimate objective, the risk of harm was very slight, the harm that might occur was likely to be very slight, and the precautions necessary to prevent the harm were complicated and costly, the court may well find that the reasonable person would not have guarded. On the other hand, if the harm would be great and it was very probable that it would occur and the precautions to guard against it are straightforward and not costly, the court will be likely to find that the reasonable person would guard.

 

Below are some illustrative cases of how these four factors have been applied.

 

In City of Salisbury v King 1970 (1) RLR 141; 1970 (2) SA 528 (RA) the court decided that the municipality was not liable. P had slipped on vegetable material at a vegetable market and had been injured. The court found that it had not been established that the municipality had a reasonable opportunity to remove the vegetable material before P slipped on it. The court found that there were practical difficulties in keeping the floor free of vegetable matter at all times. The size of the market and practical circumstances indicated that no reasonable precautions could have ensured that there would ne no vegetable material on the floor.

 

In Lomagundi Sheetmetal v Basson 1973 (1) RLR 356 (A) dry maize stalks had been stacked against the side of silo. A company engaged to erect a roof on the silo had been doing some welding and the molten metal had landed on the dry material and the resulting fire had damaged the silo and a nearby field. The court found that there had been negligence. Although the risk of the fire starting was remote the damage would be extensive if it did start and the precautions necessary to avoid the harm were straightforward.

 

In Mills v Farmery 1989 (2) ZLR 336 (H) a fire had started on D’s vacant piece of land and had spread in a residential area causing damage to P’s property. D had allowed his land to become overgrown with grass and this constituted a fire hazard. D was held liable as it was reasonably foreseeable that a fire might start and spread to adjoining properties. A reasonable person would have taken the relatively simple and inexpensive precaution of slashing or cutting the grass to a point where it would be harmless. It did not matter that the fire may have been started by an unauthorized person who had come onto D’s land as unauthorised persons had easy access to D’s land.

 

In Peattie & Ors NNO v Clan Syndicate 1984 (4) SA 829 (W) a fire had started on D’s estate and spread to P’s farm. The fire had started as a result of the use of a chainsaw. The court found that there was negligence. Although the risk of a fire starting was slight, the damage would be extensive and the precautions required would not be excessive in relation to the magnitude of the risk.

 

In Young v Nortje 1979 (4) SA 97 (C) an old shotgun which was loaded but uncocked was left on the floor of a truck. Either P or D had bumped it and it had gone off hitting P on the leg and causing severe injuries. Although the chances of the shotgun being discharged were not great, if it did go off there was a potentiality of severe injury and it was easy to take precautions against this happening. D was held liable.

 

In Ngubane v SA Transport Services 1991 (1) SA 756 (A) P had suffered serious injury when he fell off a train shortly after it had started moving to leave a station. It was the duty of the ticket examiner to make sure that all intending passengers had embarked on the train and that all disembarking passengers had in fact done so. The trial court found that it had not been proved railway company had been negligent and had failed to prove that other reasonably effective precautions could in the circumstances have been taken to prevent the appellant's fall from the train in the circumstances and the company had proved that the risks to which P had been exposed could not have been eliminated or minimised without substantial difficulties, disadvantages and exorbitant costs, such factors outweighing the magnitude of the risk so that the reasonable person would not in the circumstances have taken steps to prevent the risk of harm. P appealed against the dismissal of his claim, contending that it had been proved that the respondent had been negligent in failing to ensure that it was safe for the train to commence moving.  The Appeal Court held that whether the reasonable person would take measures to prevent the occurrence of foreseeable harm depended on the circumstances of the case and that there were 'four basic considerations in each case which influence the reaction of the  reasonable man in a situation posing a foreseeable risk of harm to others: (a) the degree or extent of the risk created by the actor's conduct; (b) the gravity of the possible consequences if the risk of harm materialises; (c) the utility of the actor’s conduct; and (d) the burden of eliminating the risk of harm' that, on the evidence, it could hardly be contended that considerations (a) and (b) would not have prompted a reasonable man to take steps to prevent the occurrence: the risk - in fact the near certainty - of serious, if not fatal, injury resulting from starting a train when persons were in the act of leaving or boarding a coach was as obvious as could be.  On the facts of the case factors (c) and (d) were not material: the evidence amply demonstrated that the act complained of created a high risk of serious injury and to have prevented its occurrence, by carrying out the procedures prescribed, would have involved no extra cost to the respondent; nor could the delay involved therein, if it was at all significant, possibly weigh against the other considerations requiring the necessary safety precautions to be taken. The court a quo’s reasoning missed the point: the ‘effective precautions’ which would have prevented the occurrence were really unrelated to difficulties of costs and requirements of public utility; the overcrowded coach in the vicinity of the doorway may have played some part in P being thrust from it, but the real cause thereof was the conduct of the railway officials in ordering or allowing the train at that stage to proceed. Accordingly, that it had been proved that the negligence of the company’s employee had caused P’s injuries.

 

In Wagon Mound (No) 2 1967 AC 617 the court decided that although the risk of a fire starting was very slight, the precautions to prevent the possibility of a fire breaking out were very easy. D was therefore held liable.

 

In Paris v Stepney Borough Council 1951 AC 367 the court found that although it was not usual in the trade to supply goggles to workmen, the worker in question had only one eye and therefore the injury that would occur if his remaining eye were harmed would be particularly serious. The employer therefore had a duty to take special precautions to prevent injury to the worker’s eye by supplying him with goggles. The failure to do this was negligent in the circumstances.

 

In Bolton v Stone 1951 AC 850 the court found that the precautions taken by the cricket ground to prevent a cricket ball being hit out of the ground and injuring a passer-by were reasonably adequate.

 

On injuries caused to passengers by trains moving off when passengers trying to alight from them (which would also apply to buses moving off when passengers are still disembarking) see Khupa v SA Transport Services 1990 (2) SA 627 (W) and Ngubane v SA Transport Services 1991 (1) SA 756 (A).

 

See also Straw v Porter & Anor GB-1-81 and Bickle v Minister of Law and Order 1980 ZLR 36 (G).

 

If the court decides that harm was reasonably foreseeable and that the reasonable person, having foreseen this harm, would have taken certain precautions to prevent the harm from occurring, it will find D guilty of negligence if, either, he or she failed to advert to the risk of that harm and, because of this failure to appreciate the risk, he or she failed to take reasonable precautions to prevent it, or if, although he was aware of some risk of harm, he or she failed to take reasonable steps to prevent it.

Some specific situations of negligence

In actions based on negligence the courts have to deal with a wide range of situations. For example, injury, death, property damage or harm to economic interests caused by:

  • careless driving;
  • dangerous conditions on land and in buildings;
  • defects in manufactured products;
  • faulty design or construction of buildings and bridges;
  • careless handling of dangerous substances and firearms;
  • improper medical treatment;
  • inadequate control over dangerous animals;
  • negligent advice by a lawyer or accountant to his client;
  • failure to allow rape victim a timeous termination of pregnancy.

 

Some specific situations:

Dangerous conditions on land and in buildings

 

Note:

In English Law according to the doctrine in the 1867 case of Rylands v Fletcher, an occupier of land is strictly liable if he or she brings onto his land an object or gathers on his land matter which creates more than an ordinary risk of causing harm if it escapes from his land, e.g. water in a dam or reservoir or explosives. The Rylands v Fletcher doctrine is not part of our law (See Boberg p 17). In our law, ordinary principles of negligence would be applied to decide liability in this situation.

 

In Spencer v Barclays Bank 1942 (2) SA 230D was liable to P who had slipped on highly polished stairs at his block of flats.

 

In Burton v Cotton Research Board 1950 (4) SA 34 a factory was liable for injuries caused from a hidden hazard (sunken alleyway) alongside the factory.

 

In City of Salisbury v King 1970 (1) RLR 141 (A) P was injured by slipping on some vegetable matter on the floor of a vegetable market. The municipality was held not liable as it had taken reasonable precautions to remove vegetable deposits from the floor by regular sweeping.

 

In Gent v Taylor 1972 (2) RLR 336 (A) P suffered injury as a result of a floorboard in a hotel collapsing when he walked on it. The floorboard had probably been weakened by employees of the hotel moving furniture over the floorboards. The hotel was held liable.

 

In Norman v Highway Construction 1975 (2) RLR 108 (G) a motorist hit a gravel dumps left on the road. The company was held liable as it had taken totally inadequate steps to warn motorists of the hazard.

 

In Jones v Maceys 1982 (1) ZLR 1 (H) an elderly customer, P, slipped on small piece of icecream that had dropped onto shop floor. The supermarket was held not liable as had taken reasonable precautions to keep walkways clean.

 

In Mungate v City of Harare & Ors HH-328-16 P suffered a broken leg after falling into a catch-pit, part of a storm water drainage system maintained by the respondent council. The catch-pit, located on a traffic island, was surrounded by uncut grass and was not covered by a lid and there were no warning signs near it. There were no street lights illuminating the area.

The court held that the council was liable for P’s injuries. The state of the area, the lack of a cover, and the lack of signage and lighting were clear signs of dereliction of duty by the council. Whilst it was true that the catch pit lids were often stolen by thieves and destroyed by vandals, there was no reason why the council failed to mow the grass, to provide street lighting and to put warning signs of hazardous places like uncovered catch pits. The excuse that the council was facing financial challenges was a lame one. A person is liable if, in terms of the law, he has a legal obligation to take preventive action or positive action to prevent harm from occurring. Uncovered catch pits were deadly hazards to people and the council had a legal duty to ensure that they were regularly inspected to ensure that they were properly covered and that they did not pose a danger to the public. The council was negligent and was not quick to take reasonable steps to prevent occurrences such as happened to the plaintiff. It was the council’s duty to do maintenance work on the catch pits. If the lids of the pits were stolen, the council had a duty to replace them in order to prevent harm to the public. In light of frequent reports of uncovered catch pits and being aware of the rampant thefts of catch pit lids, the council should have been doing regular inspections of the catch pits, replacing the missing lids, mowing the grass around the catch pits to ensure visibility, maintaining adequate street lighting to ensure visibility at night, erecting danger warning signs to warn members of the public of the existence of open catch pits and erecting barriers to block public access to the catch pits. The council failed to take any of these steps in spite of its duty to maintain its infrastructure and preserve it in a manner that does not pose danger to members of the public. Any failure in this duty which leads to injury attracts liability.

 

In Cape Town Municipality v April 1982 (1) SA 259 (C) the municipality operated a number of playgrounds in parks. At one of the playgrounds vandals had ripped out a plank from a revolving platform upon which children played. A little girl jumped onto the platform when it was in motion and her leg went through the gap created by the removal of the plank. She suffered injuries. The court held that the municipality was not liable as it had taken reasonable steps to ensure that the playground equipment in its parks was maintained.

 

In Van der Merwe v Zak River Estates 1913 CPD 1053 P’s property was damaged by a bursting dam. D was held liable because he had failed to inspect and detect the fault in the dam and to take steps to prevent the dam from collapsing.

 

In King v Dykes 1971 (2) RLR 151; 1971 (3) SA 540 (RA) the court decided that if a fire spreads onto a farmer’s land he has a legal duty to take reasonable precautions to stop the fire from spreading further, although he did not start the fire.

 

In De Villiers v Godley & Anor 1975 (1) RLR 108 (G) the court again dealt with a situation where a fire had spread in a farming area.

 

In Cape Town Municipality v Paine 1923 AD 207 the municipality was negligent as it had failed to take reasonable precautions to ensure that a wooden stand used by spectators was not unsafe. A spectator was injured when he put his foot through a wooden plank on the stand.

 

In Kruger v Coetzee 1966 (2) SA 428 (A) P’s husband collided with a horse belonging to D. P alleged that D had been negligent in failing to provide a guard at the gate to the field where the horses were kept to ensure that the horses did not escape through this gate. The Appeal Court decided that D was not liable as he had taken sufficient precautions to guard against the horses going onto the road.

 

In Gordon v Da Mata 1969 (3) SA 285 (A) the trial court found that D was not liable as it was not reasonably foreseeable that during the cutting of cabbage leaves a small piece of cabbage leaf would fly that distance and land under P’s foot causing her to slip and fall and be injured. The Appeal Court disagreed with the trial court decision found that the harm was reasonably foreseeable and D was liable.

 

In Monderwa Farm v BJB Kirstein Ltd 1993 (2) ZLR 82 (S) a farmer built a dip tank. The chemicals in the tank overflowed and contaminated a public stream during a storm. This resulted in the poisoning of fish in the downstream fishery belonging to P. The chemical was harmless on land, but it was dangerous if it polluted a stream. The pollution of a public stream is an offence under the Water Act. D had a duty to take reasonable precautions to prevent the pollution of the nearby river. He was liable as he had failed to take such steps and the harm was reasonably foreseeable.

 

In Van Buuren v Minister of Transport 2000 (1) ZLR 292 (H) P’s aeroplane had been badly damaged when it fell into a hole when taxiing across a grass patch at an aerodrome. Pilots had been warned not to use this grass patch whilst taxiing but the air traffic controllers had not enforced this prohibition. There was evidence that the grass patch was inspected daily because pilots were using it. P claimed damages for negligence. The court held that before D could be held liable, it would have to be shown that his servants were aware of the existence of the hole or that their failure to notice it was due to negligence. The duty to guard against the likelihood of harm presupposes that D is aware of the existence of a source of danger. In this case, the employees did what was reasonably prudent to ensure the safety of the aerodrome. They had not been shown to have been negligent.

Interfering with rights of landowners and occupiers

There is no separate delictual action for trespass in our law. If the owner of land can establish that patrimonial loss was suffered through physical damage or through deprivation of occupation, the action which should be brought is the Aquilian action. (See Boberg p170. McKerron The Law of Delict at p 212 who say that the actio injuriarum could also be brought in certain circumstances.)

Defective products

In order to recover damages from the manufacturer in Zimbabwe for harm, P must prove on a balance of probabilities that the manufacturer was negligent in allowing the defect which caused the harm to be present in the product when it left the factory. The manufacturer is only liable if the defect was not caused as a result of mishandling of the item after it left the factory, for instance, by a retailer and was not caused by failure by P to follow clear instructions by the manufacturer on how to handle the product safely.

 

This used to be the position in South Africa but in 2008 legislation was passed the effect of which is to make producers of defective products strictly liable for harm caused by their products. Strict liability is also imposed upon those who distribute manufactured products.

 

The law in Zimbabwe follows the approach enunciated in the much referred to case of Donoghue v Stevenson 1932 AC 562. In that case,P found a decomposed snail in a ginger beer bottle after she had consumed half of its contents. She suffered shock and impairment of health. The court held that in this sort of case the manufacturer could be liable if it was negligent in allowing its products to be dangerously defective as it was reasonably foreseeable that the ultimate consumer would suffer harm if the bottle of ginger beer contained such foreign objects. The bottle was opaque and there was no possibility of any intermediate inspection before the consumer consumed the contents.

 

In the case of Grant v Australian Knitting Mills 1936 AC 85 a doctor, P, suffered severe dermatitis after wearing underpants which contained excess sulphites from the location where the underpants were manufactured. The factory was held liable as the contamination of the underpants caused the harm and it was foreseeable that they would be worn by the buyer without being washed first.

 

In Zimbabwe there have been two cases involving substances found in a soft drink bottle and a beer bottle respectively. Both cases primarily revolved around issues other than the negligence of the bottling company but the court in both cases made some comments about the issue of negligence.

 

In Delta Operations (Pvt) Ltd v Maraura S-106-99 P had drunk the remainder of the contents of a bottle of beer left by his friend. It tasted flat and unpleasant. He abandoned it and started drinking another beer. It was then discovered that there was a foreign object stuck at the bottom of the beer bottle. P started vomiting and was taken to hospital. It was then discovered that the foreign object was a used female contraceptive known as a diaphragm.The Appeal Court found that the evidence was more consistent with the insertion of the foreign object by a third party after it has left the brewery, and therefore D was not responsible for it being in the bottle. It was thus unnecessary for the court to deal with what would have been the position if the object had been in the bottle when it left the production line. But, even if the object had been in the bottle before it left the bottling company, the Appeal Court said the nature of the object at the bottom of the bottle would have made it difficult to detect and the cleaning and inspection processes in place were reasonably adequate.

 

In Delta Beverages v Rusito 2013 (2) ZLR 298 (S) P claimed damages arising out of finding a rusty nail and a blackish foreign substance in the Coca Cola that he was drinking. His action was unsuccessful, firstly, because it had not been proven that he had suffered nervous shock and secondly, because it had not been proven that the bottling company had been negligent.

 

There are a number of relevant South African cases decided before the imposition of strict liability by statute.

 

In Ciba-Geigy (Pty) Ltd v Lushof Farms (Pty) Ltd en 'n Ander 2002 (2) SA 447 (SCA),the court decided that where a manufacturer produces and markets a product without conclusive prior tests and when utilisation of the product in the recommended manner is potentially hazardous to consumer, such negligence exposes the manufacturer to delictual liability to the consumer. It is not required that there is a contractual nexus between the manufacturer and the consumer.Liability arises from the manufacture and distribution of the product, and extends via the distributor in favour of the consumer who suffers damage upon utilisingthe product in prescribed manner. The conduct of the manufacturer in distributing a product commercially, which causes damage to a consumer as result of a latent defect, is wrongful according to legal convictions of community.

 

In Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd 2003 (4) SA 285 (SCA) the court decided that there were no convincing grounds for the imposition of strict product liability. The incremental development of existing Aquilian (fault-based) liability is preferable. Possible developments included extension of the ambit of res ipsa loquitur doctrine and shifting the onus to the manufacturer to prove absence of negligence. If strict liability is to be imposed it will have to be done by the Legislature.

 

In Amalgamated Beveridge Industries Natal Pvt Ltd v Durban City Council 1992 (3) SA 562 (N) the company was charged with an offence under a by-law for supplying a cold drink in which there was a bee. The court decided that this offence was a strict liability offence.

 

In A Gibb & Son Ltd v Taylor & Mitchell Timber Supply Co 1975 (2) SA 457 (W) D, a timber dealer, supplied timber to P who used it in scaffolding. One of the planks supplied broke and a workman was injured. Because the plank contained a large knot which was plainly visible, the dealer was held not liable as the use of the plank for this purpose without prior inspection was not reasonably foreseeable. However, the court stated that a dealer may be delictually liable for harm caused by defects in the items he supplies without inspecting them first. Liability would depend on factors such as the methods employed in that trade and the expectations of those customarily engaged in the trade.

 

See also Junior Books v Veitchi Co Ltd [1983] 1 AC 520 which involved the negligent laying of a floor by a contractor.

 

There are compelling arguments in favour of imposing strict liability upon manufacturers for harm caused by defects in their products.

 

It is argued firstly that it is that it often very difficult for the injured party to prove negligence on the part of the manufacturer even with the aid of doctrine of res ipsa loquitur. Theproducer is likely to claim that it had taken all reasonable measures to avoid products being hazardous and the claimant is faced with the daunting task of trying to prove otherwise.P is not knowledgeable about a complex production system.

 

Secondly, it is argued that it is fair to make the producer liable for harm. The producer makes profit out of its enterprise and creates the risk that its products may cause harm. It is best able to control the danger or is able to spread the losses when they occur through insurance or increased prices.

 

However, there is a possible counter argument that strict liability may be unduly burdensome upon manufacturers especially when in Zimbabwe many manufacturers are struggling to survive. It is argued that strict liability could end up stifling economic growth.

 

The South Africans, however, have now opted for strict liability in this area. South African legislation is imposing strict liability for defective or unsafe products. The South African Consumer Protection Act, 2008 provides in section 61 that a producer, as well as an importer, a distributor or a retailer of goods, is liable irrespective of whether any negligence, if it supplies unsafe or defective goods or provides inadequate instructions or warnings to consumers about any hazard associated with the use of the goods. However, the producer is not liable:

  • if the defect developed after leaving producer, for example, as a result of improper handling of goods by the distributor;
  • if the product is safe and reliable if used properly and clear instructions have been given about how to use the product safely and the customer fails to follow these instructions.

 

It is also provided that the distributor or retailer of the product is not liable if it is unreasonable to expect them to have discovered a defect in product, having regard to their role in marketing goods to consumer.

Defective services by garage and inadequate maintenance of vehicles

A garage may be liable in delict for harm caused as a result of negligent failure to carry out properly repairs to a vehicle. For example, a garage undertakes to repair the brakes of a vehicle. It fails to do this job properly but it assures the owner of the vehicle the brakes had been repaired. The owner is unable to stop at an intersection outside the garage because the brakes do not work and he collides with another vehicle. The garage could be sued in delict by the injured parties.

 

In Transport and Crane Hire (Pty) Ltd v Hubert Davis 1991 (1) ZLR 190 (ZS) D company negligently assembled a lorry, so that the steering wheel was incorrectly assembled. After some distance the steering failed, there was an accident and the lorry was a total write-off. The court decided that the harm was reasonably foreseeable and it rejected the argument that P’s failure to detect and repair the defect in the steering column was the proximate cause of the accident.

 

See also Bulford v Bob White’s Service Station (Pvt) Ltd 1973 (1) SA 188 (RA); Blore v Standard Insurance 1972 (2) SA 89 (O);Dube v Super Godlwayo (Pvt) Ltd HB-129-84.

Carriers of goods by land

Carriers are strictly liable for loss caused by them whilst transporting goods. In Cotton Marketing Board of Zimbabwe v National Railways of Zimbabwe 1988 (1) ZLR 304 (S) the court said it is good law and good common sense that the strict liability imposed by the Edict on public carriers by water should be extended to public carriers by land, particularly in Zimbabwe, where the Edict forms part of the common law and the main mode of transportation is by land. In any action against a carrier for the loss of or damage to goods the owner of the goods need not prove how the goods were damaged, lost or destroyed. The onus is on the carrier to prove that the loss was due to vis major or to damnum fatale, to inherent vice in the goods or to the negligence of the owner of the goods. All that he or she requires to shake-off liability is to prove that the occurrence resulting in the event was unforeseen, unexpected and irresistible and that human foresight could not have guarded against it. The use of the word “sole” in the phrase “at the sole risk of the sender or consignee” merely emphasized that the risk is the sender’s or consignee’s, but added nothing that helped in the interpretation of the clause, nor did it help to explain whether the head of damage arising from negligence is included or excluded. While carriers may contract out of the strict liability imposed on them by the common law or by contract limit their liability, the clause exempting the carrier from liability must do so in clear terms, with an express reference to negligence. In the absence of such clear terms, the clause is to be construed as relating to a different kind of liability and not to liability based on negligence.

Liquidators of companies

In Kerbels Flooring & Carpeting (Pty) Ltd v Shrosbree & Anor 1994 (1) SA 655 (SE) it was stated that a liquidator of a company can be held liable for causing of loss to others arising out of the negligent performance of his duties.

Children

            Negligence in allowing children access to firearms

If a parent negligently allows a young child to have access to his or her firearm and the child takes the weapon and whilst playing with it fires the weapon by mistake and injures another child, the parent can be held liable for the damages for the harm caused by his or her child.

 

See Flowers v Towers 1962 R & N 221 (FS) and Maylett v Du Toit 1989 (1) SA 90 (T)

.

            Supervision of young children

See Rusere v Jesuit Fathers 1970 (4) SA 537 (R) which deals with the extent to which school authorities had a duty to supervise children during breaks.

 

In S v Chipinge Rural Council 1988 (2) ZLR 275 (S); 1989 (2) SA 342 (ZS) the Council negligently failed to employ a lifeguard at a swimming pool used by children, but Council nonetheless was not held liable as it had not been established that if a guard had been employed the death of child would have been avoided.

            Running down children

Drivers must exercise extra care when there are children in the vicinity of the roads on which they are driving because children are prone to be incautious about their own safety and may run out onto the road. The driver who is driving in an area where children are in the vicinity such as a school must moderate his or her speed and be on his or her guard against children running out onto the road.

 

See Tena v UANC & Anor HS-367-81; Levy NO v Rondalia Assurance 1971 (2) SA 598 (A); Santam Insurance v Nkosi 1978 (2) SA 784 (A); S v Chimimba S-62-86; S v Ferreira 1992 (1) ZLR 93 (S); S v Notje HB-23-03.

Handling of heavy equipment

In Roeloffze v M Ranchod & Sons (Pvt) Ltd 1972 (1) RLR 353 (A) P was injured by a reversing front end loader in a loading zone. P, who was involved in conversation, did not keep a proper look out for the loader. The court found that the loader operator was not negligent as he could not reasonably be expected to have anticipated such a likelihood. The company was thus not held liable for the injuries to P.

Security guard from security firm failing to guard premises

Where a security firm undertakes to provide security at D’s premises and assigns one of its guards to perform this duty.

 

In J Paar & Co (Pvt) Ltd v Fawcett Security 1987 (2) SA 140 (ZS) a security company contracted with an oil company to guard its premises. A transport company had certain vehicles on the premises as part of its contract with the oil company. One of these vehicles was stolen by an employee of the oil company and destroyed. The transport company instituted action in delict against the security company claiming damages in delict for the loss of the vehicle alleging the negligent breach by the security company of a duty of care owed by it to the transport company to prevent the theft of its vehicle. The court held that the security guard was not negligent in failing to prevent the theft of the vehicle.

 

In Modcraft Transport (Pvt) Ltd v Vultures Security (Pvt) Ltd HH-81-03 a security guard who was guarding premises saw intruders on the premises but did not try to apprehend them or disturb them: he simply went and informed the company’s security officer, who took a long time to respond. By the time he had responded the intruders had already stolen property and got away. The guard’s employer was liable in negligence for the theft.

Sudden emergency

In Chaguma v Kondani 2001 (2) ZLR 216 (H) P, a passenger in a commuter bus, was seriously injured when a car coming from the other direction, and driven by D, struck the bus. The evidence showed that a tread had unexpectedly stripped off a rear tyre of the car, causing the car to swerve to one side then the other. D tried to bring the car under control, but was unable to do so before it hit the bus. He had travelled for a mere 50 metres, and for only a few seconds, after the tread stripped. The court held that D could not be held to be negligent, and his failure to bring the car under control before it struck the bus was in the circumstances not unreasonable.

 

On the other hand, in Flanders & Anor v Trans Zambezi Express (Pty) Ltd 2009 (4) SA 192 (SCA) a bus driver had been blinded by the bright lights of an oncoming vehicle and had collided with stationary vehicle protruding onto road and this had resulted in injuries to two passengers. He was negligent as he had failed to apply his brakes or reduce his speed. He ought to have foreseen the possibility of some obstruction being in his path, and he should have applied his brakes immediately on being blinded by lights of oncoming vehicle. The bus company was held liable.

Learner drivers

Learner drivers need to acquire skills by practice on the roads but if the law were to apply the standard of the “reasonable learner driver” injured plaintiffs would often end up going without compensation. Additionally, the standard of the reasonable learner driver would be difficult if not impossible to apply. Thus, in the interests of ensuring proper compensation of injured parties, the standard of the reasonable driver who is not a learner is applied in such cases. But where the supervisor/instructor of the learner is primarily to blame, the supervisor/instructor is also delictually liable for the resulting harm to P; e.g. an instructor taking a brand new driver into busy traffic conditions, or he falls asleep in the passenger seat leaving the learner driver to fend for himself.

 

See Rv Msongelwa 1960 (4) SA 699 (SR) D was not guilty of negligent driving. It was not proved that the bad driving was due to anything beyond want of skill. A non-skilled learner driver with a learner’s licence is permitted to drive on the roads. (This case is criticised in Cooper Motor Law Vol 2 pp 51-2.)

 

See also S v Mtizwa 1984 (1) ZLR 23; S v van der Merwe S-211-88; S v Claasen 1979 RLR 323 (A); McCrone v Riding [1938] 1 All ER 157 (KB); Nettleship v Weston [1971] 3 All ER 581 (CA) The test to be applied is that of the ordinary driver and no allowance is made for the inexperienced driver. See (1961) 78 SALJ 140 and Macintosh & Scroble Negligence in Delict p 294.

Driving without licence

In Ndava v Takaruwa & Anor 2013 (2) ZLR 692 (S) the court pointed out that whilst driving without the requisite driving licence is not on its own sufficient evidence of negligence when considered in light of all the circumstances of the case, driving requires a special skill and experience commensurate with the standard of due care which a driver owes to his passengers as well as other road users. Wen a person has no driver’s licence for the vehicle in question, there is a presumption that his manner of driving which forms part of the particulars of negligence was as a result of lack of requisite skill and experience expected of a reasonable driver in possession of an appropriate driver’s licence.

 

Persons with physical disabilities

Allowances are expected to be made for people with disabilities e.g. a blind man crossing the street with a white stick. The same sort of approach would be adopted here as in relation to cases where young children are on or in the vicinity of the road. In such cases,drivers are expected to exercise special care and caution because children are prone to run out into the road. So too, a motorist seeing a person with a white stick should exercise special caution. But obviously it is negligent for a blind person to attempt to perform a task that his disability prevents him from performing, such as driving a car.

Capacity to be negligent

D must have the capacity to commit a delict. A child under the age of 7 does not have the capacity to be negligent. See Tena v UANC HS-367-81. However, the parent of a child under the age of 7 or the person responsible for the supervision of a mentally incompetent person could be guilty of negligence if that person fails to take reasonable steps to ensure that the person lacking capacity does not commit a delict. So too, on the basis of the qui facit per alium facit per se doctrine, if a person uses a person who lacks capacity to commit a delict, the person who does this can be guilty himself or herself of the delict even though the “instrument” was a person lacking capacity.

 

Children between ages of seven and fourteen are presumed to be culpae incapax until the contrary is proved by the party alleging negligence. See Eskom Holdings Ltd v Hendricks 2005 (5) SA 503 (SCA). If the child between 7 and 14 is found to be culpae capax the question then arises as to whether the standard to be applied is that of the reasonable child of that age or that of the reasonable adult. This issue has arisen in the context of cases of contributory negligence and will be dealt with in detail under the topic of contributory negligence but basically the test that the South African courts have applied to contributory negligence of children who are culpae capax is that of the reasonable adult. This approach has been subjected to criticism.

 

So, too, a mentally incompetent person would not have the capacity to be negligent.On the other hand, in America it would seem that the mentally deranged can be held liable for causing accidents. See Prosser and Keaton on Torts 5 Ed pp 177-178.

Voluntary conduct

The conduct of D must be voluntary. Thus, if X had a sudden and unforeseeable blackout or epileptic fit whilst driving his vehicle, he would not be liable. On the other hand, if he continued to drive a motor vehicle after he knew he was prone to blackouts or epileptic fits he would be liable for the harm caused on the basis of his negligence.

 

In the criminal case of S v van Rensburg 1987 (3) SA 35 (T) X had undergone blood tests which had led to a fall in his blood sugar level. His doctor did not warn him that this might happen and it was not reasonably foreseeable. X was thus not responsible for the accident and he was found not guilty of negligence.

 

On the other hand, in Wessels & Anor v Pickles 1985 (4) SA 153 (C) D was found guilty of negligence. While driving he had suffered a diabetic coma due to low blood sugar. He had suffered a previous attack, resulting in an accident. He knew of his condition and how to control even if not told this by his doctor.

Res ipsa loquitur

Sometimes a person seeking to recover damages for harm done to him does not know how the occurrence that caused the harm came about and he cannot produce any evidence to establish this. In these circumstances, he may seek to invoke the concept of res ipsa loquitur. This expression means that the occurrence speaks for itself. If the occurrence in question would not normally occur without negligence this may lead to an inference of negligence. This doctrine can only be invoked where the cause of the occurrence is unknown and thus there is no direct evidence that can be led to establish negligence. In order for the inference to arise:

 

  • the injury must have been caused by a thing which was under the control of D; and
  • that sort of occurrence would not have taken place if reasonable care had been exercised.

 

Res ipsa loquitur cannot be relied upon where it is possible for the claimant to call evidence of how the occurrence came about.

 

In Pine v Boka Enterprises (Pvt) Ltd 1990 (2) ZLR 292 (H) a truck belonging to D was being driven in the course of the employment of the driver. The truck was towing another vehicle when the tow hitch broke and the vehicle being towed veered across to the wrong side of the road and collided with an oncoming vehicle being driven by P. P alleged that the accident was caused due to negligence as the tow hitch was unsafe and the truck was being driven at an excessive speed.

 

The court found that the doctrine of res ipsa loquitur applied and it was incumbent on D to adduce evidence that the breaking away from the tow hitch of the vehicle being towed was not due to any negligence on the part of the driver of the truck. On the evidence D had failed to do this and the court decided that P had established on a balance of probabilities that the collision was a result of negligence attributable to D.

 

In Mafusire v Greyling & Anor HH-173-10 the court pointed out that there is no obligation on a person who is driving along a road to ride through all the ruts and other rough patches on the left of the road. He is at liberty to avoid such obstacles. If he can find a better part of the road, he is entitled to ride on that part of the road, especially when driving in the country, but then he must use more care than when he is on his own side of the road. If there is a vehicle in the way, and he wishes to pass it, then whether the road on his left is rough or not he must keep to his left. If he does drive on the incorrect side of the road, he must exercise greater care and take every precaution to avoid colliding with vehicles approaching him: persons travelling on the correct side of the road have a paramount right and are entitled to preference in the use of the road. If any danger of collision arises, it is his duty first to give way. He must swing to his left as far, and as quickly, as possible in the face of approaching vehicles. Failure to do may be negligence. If a collision occurs between two vehicles travelling in opposite directions along the same road when D’s vehicle is on the incorrect side of the road, the fact that it is on the incorrect side of the road is, as a general rule, prima facie evidence of negligence.

 

When P proves that D’s vehicle for no apparent reason suddenly swerved on to its incorrect side of the road, an inference of negligence could, in the absence of an explanation, be drawn against D: res ipsa loquitur. D is then required to produce evidence sufficient to displace the inference of negligence which arises from the fact that he was on the wrong side of the road. If he fails to do so, the prima facie evidence becomes sufficient to discharge the onus which rests on P. But if D gives an explanation, P can succeed only if, at the conclusion of the case and on the evidence as a whole, there is a balance of probabilities in his favour that the defendant was negligent.

 

See also Dunlop v West 1974 (1) RLR 89 (G) a car leaving road and colliding with tree; Hammar & Anor v Nunes 1976 (1) RLR 202 (G) a car moving to incorrect side of road; Freelance Contracting v de Clerk 1982 (1) ZLR 193 (S) D, refrigeration mechanics brought in to fix a defective fridge. Thereafter the fridge continually broke down. Ds were not liable as they gave explanation for breakdowns that were inconsistent with negligence on its part. In this case the court gave the example of a bus leaving road and careering down embankment) and Wallace v Goncalves S-35-93.

 

See further Hamilton v Mackinnon 1935 AD 114 (in which the court gives an example of D driving his car into P’s parked car); Naude NO v Transvaal Boot and Shoe Manufacturing Co 1938 AD 114 (a car parked on an incline ran down a hill and injured P. But there was not sufficient explanation by D that the brakes were defective); Arthur v Bezuidenhout & Anor 1962 (2) SA 566 (A) (a car suddenly swerving onto the wrong side of road); Marais Caledonian Insurance Co Ltd 1967 (4) SA 199 (E) (a vehicle on the wrong side of the road); Star Motors v Swart 1968 (3) SA 60 (T) (An explanation that the car brakes were defective does not exonerate D unless it is proved that the defect was unknown to D and not discoverable by the exercise of ordinary skill and care); Jadezweni v Santam Insurance Co (Ltd) & Anor 1980 (4) SA 310 (C); Keown v Ned-Equity Insurance Co Ltd 1982 (2) SA 391 (C); Smit v SA Vervoerdienste 1984 (1) SA 246 (C); Leon Bekaert SA (Pty) Ltd v Rauties Transport 1984 (1) SA 814 (W).

Professionals

Where an allegation of negligence is made against a professional or skilled person, such as a doctor, an engineer or a lawyer, it would obviously be inappropriate for the court to use the standard of the ordinary reasonable person who has no expertise in that professional field. Thus, the test that will be applied in this situation is how the ordinary, reasonable skilful professional person operating within that field would have dealt with the situation. For example, the test that will be used to decide whether a doctor has been negligent is how a reasonable doctor would have dealt with that situation. Naturally, it is negligent for a person without any training within a skilled field to attempt any procedure requiring proper training and expertise for that procedure to be carried out safely.

Medical practitioners

Doctors receive lengthy and intensive training to equip them with the necessary skills to practise their profession proficiently. After qualification, doctors acquire practical experience under supervision and if they wish to become specialists, they have to sit further examinations after acquiring specialist skills under supervision. Doctors therefore have skills that others do not have and they are required to make good use of these skills.

 

The law requires doctors to behave as ordinary, reasonably skilful doctors would have behaved in the circumstances. They are not obliged to exercise the highest possible skill. If a patient suffers harm as a result of the negligence of a doctor, he/she is entitled to sue the doctor for compensation. If a patient dies as a result of the doctor’s negligence, the doctor may be prosecuted for culpable homicide. In a legal action, the doctor’s degree of negligence does not have to be gross before the doctor is liable. Any degree of negligence suffices. This standard is used in respect of cases involving allegations of negligence in relation to diagnosis, treatment and post-operative care.

 

The test for establishing the negligence of a professional requires that the allegedly negligent professional be judged by the standards set by his peers.

 

Patients who allege that they have been harmed by medical negligence face a daunting battle to obtain compensation. The onus is on the injured party to prove on a balance of probabilities that he or she has suffered harm as a result of medical negligence. The injured party will need the assistance of a lawyer to litigate the matter and the lawyer will need to call medical testimony to try to prove that there has been negligence on the party of the medical practitioner who is being sued. Many patients will not be able to afford to engage a lawyer and the expense of calling an expert witness. Even if the patient can afford the fees for the matter to be brought to court, there is the added difficulty in the context of Zimbabwe and that is to find a medical expert who is prepared to testify against a medical colleague. This is because in Zimbabwe the medical profession is small and closely knit and members of the profession know each other on personal levels. To some extent testifying against a fellow professional is still frowned upon as being in itself unprofessional and thus evidence of negligence may be difficult to come by. In her article entitled “Towards Defining and Reforming the Current Law of Medical Malpractice” 1999 Vol 1 No 1 Legal Forum 36. Ms Pepetua Dube points out some of the other evidentiary problems faced by litigants. She points out that medical records may not have been kept properly or may be lost or even deliberately altered or destroyed. She also points out the difficulties in pinpointing the medical professional who was the person who was at fault as different nurses and different doctors may have been caring for the patient at different stages. In the light of these difficulties, Ms Dube suggests a series of measures to try to make it easier for victims of medical negligence to sue, such as by reversing the onus of proof and requiring the medical practitioner to prove that he or she was not at fault.

 

Doctors are not expected to be miracle workers who will undertake always to cure their patients. Nor are they expected to be infallible. Certain mistakes are excusable. In S v McGown 1995 (1) ZLR 4 (H) at 30D the court quoted with approval this statement of the law from an English case: “it is not every slip or mistake which imports negligence.”

 

In Castell v de Greef 1993 (3) SA 501 (C) the court said that both in performing surgery and in his post-operative treatment, a surgeon is obliged to exercise only reasonable diligence, skill and care; no more than the general level of skill and diligence possessed and exercised by members of the branch of the profession to which he belongs. The mere fact that an operation was not successful, or that the treatment he administered did not have the desired effect, does not necessarily justify the inference of lack of diligence, skill or lack of care on the surgeon’s part.The test remains always whether the practitioner exercised reasonable skill and care or, in other words, whether or not his conduct fell below the standard of a reasonably competent practioner in his field. If the ‘error’ is one which a reasonably competent practitioner might have made, it will not amount to negligence. If it is one which a reasonablycompetent practitioner would not have made, it will amount to negligence.

 

In Hucks v Cole [1968] 118 New LJ 469 ([1993] 4 Med LR 393 it was stated:

 

“With the best will in the world things sometimes goes amiss in surgical operations or medical treatment. A doctor was not to be held negligent simply because something went wrong.”

 

In Buls v Tsatsarolakis 1976 (2) SA 891 the doctor treating a person for a wrist injury failed to detect that there was a fracture of the wrist. It was only detected later by an orthopedic surgeon. The court found that the original doctor’s failure to detect the fracture was not negligent. The mistake was honest and reasonable in the light of the expert evidence that such fracture was  often missed and would normally only be detected by a specialist.

 

In Ruth Sai v Avenues Clinic HH-26-17 the plaintiff failed to prove that her miscarriage was due to medical negligence.

 

What are not excusable are blatant, indefensible mistakes that would not be made by reasonably competent doctors. It is these sorts of errors that rightly attract sanctions. See Thebe v Mbewe t/a Checkpoint Laboratory Services 2000 (1) ZLR 578 (S) at 585-586.

 

In a South African case, the test for medical negligence was stated in these terms:

 

Both in performing surgery and in his post-operative treatment, a surgeon is obliged to exercise only reasonable diligence, skill and care, no more than the general level of skill and diligence possessed and exercised at the time by members of that branch of the profession to which he belongs. The mere fact that an operation was not successful or that the treatment he administered did not have the desired effect does not necessarily justify an inference of lack of diligence, skill or care on the surgeon’s part.

 

As regards doctors who are specialists, the court will apply the test of how would a reasonably skilful doctor specialising in that particular branch of medical practice have dealt with the situation.

 

When applying the test for negligence, a court of law will take into account the circumstances in which the doctor was working. A doctor dealing with an emergency, with inadequate facilities, and under great pressure, is not judged by the standard of the doctor working in more ideal circumstances. It must be noted that, not infrequently, medical accidents are not so much the result of poor professional behaviour, but rather of intolerable pressure on doctors due to under-staffing. Indeed, it must be said that drastically overworked doctors working under great pressure will eventually end up making mistakes. The situation is compounded where a shortage of specialist skills leads to junior doctors being given only minimal supervision.

 

One of the ways to seek to prove negligence is to allege that the doctor who caused harm deviated from a usual and normal practice. If there is a widely recognised way of dealing with a particular condition or there is a generally accepted precaution that needs to be taken, departure from the normal practice will point to negligence and the doctor will have to justify this departure. But this will only apply where there is a commonly accepted approach. Where there are differing medical opinions as to the best way to proceed, the doctor is entitled to adopt the approach that he believes is the most appropriate.

 

Resort to innovative techniques may be appropriate in certain circumstances but doctors should be cautious in employing such techniques, especially where they carry greater risks than more conventional forms of treatment. In deciding whether resort to a novel technique is justified the court takes into account such facts as the seriousness of the patient’s condition, his previous response to more conventional treatment, and his attitude to the use of the new procedure upon him. In S v McGown 1995 (1) ZLR 4 (H) the court stated that if a doctor departs from a general and approved practice for no good cause and damage results he is likely to be found to have been negligent. But such deviation is not necessarily evidence of negligence. It is in the public interest that new forms of treatment should be developed and the law should not stifle such development. The procedure adopted would have to be shown to be one which no reasonable skilled medical practitioner would not have adopted. In Turner v Health Professions Council 2000 (1) ZLR 722 (H) medical practitioner was found not guilty of improper professional conduct where he had injected a number of patients intravenously with a drug which was licensed only for external application because terminally ill patients consented to this procedure and medical literature showed that the drug could have a beneficial effect on patients if applied internally and the drug in most instances had such a beneficial effect on the patients.

 

In Magwara v Minister of Health NO 1981 ZLR 315 (H) casualty medical staff was negligent in applying and failing thereafter to check a plaster cast for a fracture of the ankle.

In Correira v Berwind 1986 (1) ZLR 192 (H) the court found that surgery had been performed negligently. It ruled that medical staff owe a duty of care to their patients, whether or not a contract exists between them.

 

In S v McGown 1995 (1) ZLR 4 (H) an anaesthetist was held criminally liable for causing the deaths of two patients. He had used an anaesthetic technique which required careful monitoring of the patient’s condition after the operation and had failed to take reasonable steps to ensure that the facilities were available for the post-operative monitoring.In this case the court quoted a dictum from an English case as follows: “It is not every slip or mistake which imports negligence and, in applying the duty of care to the case of the surgeon, it is peculiarly necessaryto have regard to the kinds of circumstance.”

 

In Chibage v Ndawana 2009 (2) ZLR 387 (H) it was pointed out that the issue of whether to bring claims of professional negligence against medical practitioners, in delict or in contract, is not new. The line of division where negligence is alleged is not always easy to draw; for negligence underlies the field both of contract and of delict. It is not necessary for a plaintiff to plead a contractual relationship between the parties to enable him to bring an action in delict against a defendant medical practitioner. Our law acknowledges a concurrence of actions where the same set of facts can give rise to a claim for damages in delict and in contract, and permits the plaintiff in such a case to choose which he wishes to pursue. Where the conduct of a defendant medical practitioner towards a plaintiff, who may not be his patient, is unlawful and causes injury to the plaintiff, the medical practitioner is liable if his conduct was negligent. The particulars of negligence alleged against a medical practitioner can only be validated by reference to the standard operating procedures of other medical practitioners in that field. This is so because, to test the negligence of a professional, one has to first establish what an average reasonable professional in the shoes of the defendant would have done. An average professional is not one who is so careful that he will weigh each and every risk attendant upon the task at hand and advise the client of all such risks before proceeding. He will weigh the obvious risks and advise the client of same. The reasonable professional is one who will bring his training to bear on the task at hand to assess the attendant risks and proceed with alertness. He has a certain degree of confidence in his capacity and skill that allows him to proceed without undue timidity and is, to a large extent, a practical person who wishes to achieve a specified result.

 

In Van Wyk v Lewis1924 AD 438 at 456 the judge said the following on the standard of competence of a surgeon “…the surgeon will perform the operation with such technical skill as the average medical practitioner in South Africa possesses and that he will apply that skill with reasonable care and judgment…(he) is not expected to bring to bear on a case entrusted to him the highest possible professional skill but is bound to employ reasonable skill and care and is liable for the consequences if he does not.”

 

In Thebe v Mbewe t/a Checkpoint Laboratory Services 2000 (1) ZLR 578 (S) P had a routine blood test for insurance purposes. The test, carried out in D’s laboratory, showed positive for AIDS. P immediately went for further tests, both with her own doctor and at the instance of the insurer. The results of both these further tests were negative for AIDS. P claimed damages for shock and suffering caused by D’s alleged negligence. The court held that D’s laboratory as a professional institution was obliged to exercise reasonable skill and care. The laboratory had been guilty of professional negligence. It had made an error in the collecting and labelling of the blood sample in question. This error was in relation to the most fundamental aspect of blood testing. The laboratory was thus liable to P. This negligence was not an “inherent risk” of the kind that is attendant on surgical procedures, nor was it an excusable error of judgment of the kind a professional person might make.

 

In Maksimovich v Dominguez & Mater Dei Hospital and Mater Dei Hospital v Domiguez & Maksimovich HB-94-15 it was alleged that the doctor, an ear and nose specialist, had negligently carried out an incorrect and inappropriate reduction of the double-fractured mandible leaving the plaintiff with a variety of facial injuries problems including paralysis of the left eye. He also failed to discover pieces of glass in the plaintiff’s ear.

 

See also Chimusoro & Anor v Minister of Health HH-254-89; Dale v Hamilton 1924 WLD 184 a radiologist negligently performed a diagnostic X-ray and the patient had been badly burned); Blyth v van der Merwe 1980 (1) SA 191 (A) a doctor put fractured arm in a plaster cast and then negligently failed to detect sepsis and take appropriate action; Edouard v Administrator, Natal 1989 (2) SA 368 (D) a doctor negligently failed to perform a sterilization operation which he had undertaken to carry out on a woman; Mtetwa v Minister of Health 1989 (3) SA 600 (D) deals with whether the Ministry was vicariously liable for negligence by professional doctors under its command but not subject to the dictation of others; S v Kramer 1987 (1) SA 887 (W) an anaesthetist negligently placed the oxygen tube in the oesophagus instead of in the trachea and the patient died; Roe v Minister of Health & Ors [1954] 2 All ER 131 (CA) contaminated anaesthetic was injected into patients who then were paralysed from the waist down. The Ministry of Health was held not liable as the contamination of the anaesthetic was not reasonably foreseeable. Friedman v Glicksman 1996 (1) SA 1134 (W) a doctor wrongly advised pregnant woman that she was not at greater risk than normal of having abnormal or disabled child. After she gave birth to a disabled child, the woman was entitled in her personal capacity to sue doctor for damages under the lex Aquilia for expenses of maintaining and rearing her disabled child and future medical and hospital expenses. But she was not entitled to sue as mother and natural guardian for child's general damages and loss of earnings either in contract or delict.

 

Some English cases:

Clarke v McLennan & Anor [1983] 1 All ER 416 (QB) the gynaecologist failed to comply with a recognised medical precaution; Ashcroft v Mersey Regional Health Authority [1983] 2 All ER 245 (QB); Whitehouse v Jordan & Anor [1981] 1 All ER 267 (HL); Pringle v Administrator of Transvaal 1990 (2) SA 379 (W) doctor using excessive force to remove small growth on chest caused massive bleeding and brain damage – doctor liable; Wilsher v Essex Area Health Board [1986] 3 All ER 801.

 

See also Chapter 1 of Feltoe & Nyapadi Law & Medicine in Zimbabwe.

 

Junior doctors are expected to exercise reasonable care consistent with their training. Thus, in S v Mkwetshana 1965 (2) SA 493 (N) a junior doctor negligently administered the wrong dosage of a drug, thereby causing the death of the patient. The doctor was found guilty of culpable homicide. Even though the doctor was inexperienced and was dealing with an emergency, the doctor had insufficient knowledge of drug to administer it as he did and should have checked first about correct dosage of drug or called in more experienced doctor.

 

Other medical practitioners such as physiologists and nurses are expected to behave in a manner which is reasonably competent.

 

Legal practitioners

General

In South Africa, over the last few years there have been an increasing number of claims against lawyers for negligence. As Zimbabweans become more litigious it is likely that a similar pattern could emerge in Zimbabwe.

 

Lawyers are trained professionals. In performing their professional legal work, they are expected to exercise reasonable skill and competence. If they fail to measure up to this standard they can be sued for damages by their clients.

 

A legal practitioner dealing directly with a client is in a contractual relationship with his or her client. An implied term of the contract is that the legal practitioner will perform the contract with reasonable skill and competence. Where the legal practitioner fails in this duty and the client suffers financial loss, the client can sue either in contract or in delict.

 

An error of judgment will not attract liability unless the error of judgment would not have been made by a reasonably competent legal practitioner. This was stated in Honey & Blanckenberg v Law Society 1966 (2) SA 43 (R). In this case the lawyer misinterpreted words in a statute and this led to a failure to commence proceedings in time. The court held that the lawyer had not been negligent in the circumstances.

 

A legal practitioner will be negligent if he or she undertakes a case where he or she should have realized that he or she did not have the required expertise to handle the matter properly.

 

A common situation where lawyers have been sued successfully for damages is where they have negligently allowed claims to prescribe. As regards damages, if the negligence deprives P of the chance of bringing proceedings, the damages would be the value of the opportunity that has been lost. If there was a good chance of the claim succeeding, an award can/will be made of most of what would have been recovered if the claim had not been allowed to prescribe.

 

In a case where there was a good defence to the claim, but due to the lawyer’s negligence it was not raised and P had to pay out on the claim, the measure of damages would be the amount P had to pay out. If the lawyer has settled P’s claim for a paltry amount without authorisation, the amount claimable would be the difference between the settlement amount and the amount originally claimed.

 

A person who is not party to the contract may also sometimes sue a negligent legal practitioner. For example, a legal practitioner negligently draws up a will which is invalid as a result of which a beneficiary does not receive his or her inheritance. Here the disappointed beneficiary can sue the legal practioner for the loss of his or her inheritance. 

      Allowing claim to prescribe

In Erasmus Ferreira & Ackermann & Ors v Francis 2010 (2) SA 228 (SCA) attorneys failed to institute proceedings for loss of support and the claim prescribed. The client's claim against attorneys was based on professional negligence, not loss of support. The attorneys were held liable.The damages were assessed as the damages suffered by the plaintiff as a result of the negligence of the defendants in having allowed her claim for loss of support to prescribe. 

 

In Manase v Minister of Safety and Security & Anor 2003 (1) SA 567 (Ck) an attorney had not issued summons and the claim was time barred.

 

In Ritenote Printers (Pvt) Ltd & Anor v A Adam & Co (Pvt) Ltd S-26-16 a legal practitioner had executed against the property of another on behalf of his client without following the proper procedure.

 

In Moatshe v Commercial Union 1991 (4) SA 372 (W) D failed to issue summons in time to prevent a claim from prescribing. The lawyer was held liable.

 

In Slomowitz v Kok 1983 (1) SA 130 (A) a lawyer was negligent in allowing a claim to prescribe. He left it to the last minute and was not able to effect service.

 

In Manyeka v Marine & Trade Insurance Co Ltd 1979 (1) SA 844 (SE) a summons was not issued in time and the claim prescribed.

 

See also Kitchin v Royal Air Force [1958] 1 WLR 563.

      Security for loans

In Mouton v Mine Workers Union 1977 (1) SA 119 (A) D failed to ascertain that a person was competent to stand surety for loans and D’s client lost the money that he had loaned. D was held liable. (At p 143 of this judgment there is a comment on the Honey & Blanckenberg case.)

 

In Rampal Ltd v Brett, Wills & Partners 1981 (4) SA 360 (D) a lawyer, D, was negligent in failing to ensure that the security was adequate to cover the loans that his client was to advance. D was liable for the portion of loans P was unable to recover.

      Negligent handling of trust funds

In Hirschowitz Flionis v Bartlett & Anor 2006 (3) SA 575 (SCA)and Du Preez & Others v Zwiegers 2008 (4) SA 627 (SCA) attorneys were held liable for negligent handling of trust fund deposits.

 

      Other cases

In Eyeluth Properties (Pvt) Ltd v Harvey HH-408-15 a legal practitioner failed to invest money being held by him in an interest bearing account. However, P’s claim for the loss sustained failed because P failed to establish the extent of the loss that he had suffered.

 

In Washaya v Washaya 1989 (2) ZLR 195 (H) a legal practitioner erroneously consented to judgment on behalf of his client. The lawyer made to bear the costs of his negligence.

 

In Doelcam (Pvt) Ltd v Pichanick & Ors 1999 (1) ZLR 390 (H) a judgment creditor had certain of its property attached in execution of a judgment debt. The judgment was actually given against another company. The attorney for the judgment creditor had gone to the Registrar of Companies to find the address for the judgment debtor. A company with a similar name was found, with an address in an office building in Harare. The office was in fact occupied by the plaintiff company. The Deputy Sheriff removed items of property which were sold in execution of the debt, and the proceeds paid to the judgment creditor. The plaintiff company sued the attorneys for the judgment creditor.

 

In Khan v Mzovuyo Investments 1991 (3) SA 47 (Tk) D prematurely enrolled a case before it was ripe for hearing. The case had to be postponed on a number of occasions. D was found liable as he was negligent.

 

In Immelman v Loubser & Anor 1974 (3) SA 816 (A) various mistakes were made in connection with bringing an appeal. The lawyer was held liable.

 

In Masama v Borehole Drillers 1993 (1) ZLR 116 (S) a negligent lawyer was ordered to bear the costs himself and the matter was reported to the Law Society.

 

See also Samakange & Anor v The Master S-174-93.

Liability of lawyers to third parties

In Tinarwo v Hove & Ors 2003 (2) ZLR 148 (H) P’s property was sold in execution when he failed to service a mortgage bond. The building society had instructed a firm of legal practitioners to sue P. Default judgment was taken against P and the messenger of court removed P’s goods for sale. P instructed his own legal practitioners to apply for rescission and for the sale in execution to be stayed. By consent, rescission was granted but the messenger of court was not informed; he proceeded with the sale. P claimed for the loss from the building society and its legal practitioners, claiming that they should have advised the messenger of court. Their failure to do so constituted a breach of a duty of care they owed him.

 

The court held that the legal practitioners were agents of the building society. A legal practitioner who is instructed by his client to carry out a transaction that will affect an identified third party owes a duty of care towards that third party in carrying out the transaction, since such a third party is a person within the legal practitioner’s direct contemplation as someone who is likely to be so closely and directly hurt by his acts or omissions. The legal practitioner can reasonably foresee that the third party is likely to be injured by those acts or omissions.

 

However, P’s own legal practitioners brought the application for rescission against the messenger of court. It was for them to do their duty towards P and to protect his interests by having the papers served on the messenger. They failed to do so.

 

In Pretorius en Andere v McCallum 2002 (2) SA 423 (C)an attorney drew up a will that failed to comply with formal requirements of Wills Act, thus rendering will invalid. The court decided that there was no reason in principle why a claim by 'disappointed beneficiary' based on attorney's duty of care to ensure that the expectation of an intended beneficiary realised should not be upheld.

 

In Ross v Caunters [1979] 3 All ER 580 D negligently drew a will which was invalidated. D was liable to the beneficiary who would have benefited had the will not been invalidated.

 

In White v Jones [1993] 3 All ER 481 a lawyer failed to draw a will for his client prior to his death. The court decided his liability to disappointed beneficiaries under the will.

Compensation for persons suffering loss from dishonesty by lawyers

Section 54 of Legal Practitioners Act provides for compensation for person suffering loss due to dishonesty of client. The claimant must prove to the satisfaction of the Law Society that he has sustained loss through the dishonesty of a legal practitioner. The policy is applied whereunder the aggrieved party must first claim against the other partners where the responsible legal practitioner practiced in a firm of lawyers.

Court work

In respect of court work, it seems that under the common law lawyers have immunity from delictual liability. This is the position in England. See Rondelv Worsley [1969] 1 AC 191 (HL) and Sarif Ali v Sydney Mitchell & Co & Ors [1978] 3 All ER 1033 (HL).

 

The main rationale for this immunity is that lawyers owe an overriding duty to the court when appearing in court and if they were liable to be sued by their clients, they might find it very difficult to discharge their duty to the court. Another reason advanced for the immunity is that if clients could sue for negligent performance of court work, this would result in having to retry cases.

 

The immunity, however, does not cover pre-trial work that is not so intimately connected with the conduct of the case in court that it constitutes a preliminary decision on the way the case is to be conducted when the case is tried.

 

For criticism of the blanket immunity of lawyers in respect of court work see (1977) 94 SALJ 184. The author argues that, in certain cases, lawyers could be held liable without any adverse effect on their duty to the court e.g. a lawyer uses an entirely wrong procedure, or the lawyer arrives drunk in court and is incapable of presenting the case, or he fails to come to court at all when he was fully aware of the court date. The author of this article argues that lawyers should not be allowed to get away with such blatant blunders.

 

Loubser and Midgley at p 269 has this to say:

There is no authorative South African case that deals generally with the liability of advocates for negligence. However, courts are likely to impose the same standard of knowledge, competence, skill and care that is expected of other legal professionals, rather than maintain a historical immunity based on a questionable distinction between handling a case in court and other professional work.

Accountants and auditors

General

Accountants are responsible for keeping accurate books of account and they also give financial advice on matters such as investment and taxation. If they perform their work carelessly, this can result in financial loss. For example, his client, P, asks D, an accountant, whether he should invest money in a certain corporation. D says the investment would be a good investment. Acting on D’s advice, P invests in the company. The company goes insolvent soon after P had invested in it and P loses the money he has invested. In these circumstances, D would be liable to P if a reasonable accountant would not have given the advice to P that D gave, as the reasonable accountant would have known of the bad financial position of the company or would have found it out had he taken reasonable care.

 

Auditors carry out audits of various institutions such as commercial companies in order to provide independent and reliable information of the true financial position of the institution in question at the time the audit is carried out.

Liability to client

One of the main reasons for carrying out audits is to uncover errors and fraud in commercial and other institutions that are handling money. The auditor is expected to perform these tasks with due care, diligence and competence. It is not always negligent for an auditor to fail to detect a fraudulent practice within the company he is auditing. The fraud may be so ingenious and difficult to uncover that no reasonable auditor performing his work diligently would have uncovered the fraud in question; if this is the case the auditor who failed to detect the fraud will be found not to have been negligent. If, on the other hand, the reasonable auditor would have uncovered the fraud, the commercial corporation that employed him to carry out the audit could sue the auditor.

 

In the case of Thoroughbred Breeders’ Association v Price Waterhouse 2000 (4) SA 551 (SCA) the South African Supreme Court set out in detail the duties of auditors towards their clients. The decision is based on the South African Auditing Profession Act 26 of 2005.In this casean auditor negligently failed to appreciate and pursue discrepancies in the accounts. Had the auditor done so, he would have discovered that the company’s financial manager was involved in large-scale thefts from company. The loss suffered was not too remote from the negligence and the auditor was liable for the loss. However, the company was somewhat to blame for its own loss. It had appointed financial manager knowing he had a previous conviction for theft and carelessly failed to supervise him properly, despite its awareness of his criminal record. The company did not inform the auditor of this fact. Both sets of carelessness contributing to loss. But the claim allowed in full because the apportionment legislation in South Africa did not apply to this situation.

Liability to third parties

Auditors have sometimes been held liable when a third party relies on an audit report. In International Shipping v Bentley 1990 (1) SA 680 (A) an auditor was sued by a financing company for loss caused by negligent misstatements contained in report of an auditor of a group of companies. The report misleading in that it did not give accurate picture of bleak financial situation of the group of companies for which appellant was providing financial facilities - Court finding that the auditor had acted negligently andunlawfully. However, the loss suffered was found to be too remote because, for instance, P had continued to provide money to the companies when it already knew that the financial position of the companies was fairly bleak. D was therefore found not liable for the loss suffered.

Liability to share investors

If the audit creates a completely false picture of the company as being financially sound when it is in deep financial trouble, can current shareholders or new shareholders who invest money on the strength of the audit report sue the auditors for the losses they have suffered? Does it make any difference that the audit report was included in a prospectus soliciting share investment and the auditors knew that the audit report was going to be put in the prospectus? The courts in England and South Africa have generally been unwilling to make auditors liable to persons other than those who engaged them to carry out the work. The reason for this reticence has been the fear of opening the floodgates to a huge scale of liability.

 

In Axiam Holdings Ltd v Deloitte & Touche 2006 (1) SA 237 (SCA) an auditor misstated the company's financial position leading to loss by claimants after they purchased shares in audited company. The auditing firm excepted to the claim on the grounds that it did not owe duty of care to companies purchasing shares. The exception was dismissed.

 

The South African Public Accountants and Auditors Act provides in section 26(9) that an auditor is liable to a third party if he knew or should have known that his client would use the statement to induce a third party to act in prejudicial way in which he did. He is also liable to  third party where the auditor represented to a third party that the statement was correct and the auditor knew or should have known he would rely on the statement for the purpose of acting in the prejudicial way in which he did.

 

South African Auditing Profession Act 26 of 2005. This Act governs the delictual liability of accountants and auditors to third parties who are not their clients who rely on negligently formulated opinions, reports or statements. (There is no similar provision in the Zimbabwean Chartered Accountants Act [Chapter 27:02])

 

See also Al Saudi Banque v Clarke Pixley [1989] 3 All ER 361 (Ch D); Caparo Industries v Dickman [1990] 1 All ER 568 (HL).

 

For further discussion on these issues, see under “Negligent misstatementscausing purely pecuniary loss” below.)

Engineers, architects and constructors

Professionals in the construction industry are expected to exercise the general level of skill and diligence possessed and exercised at the same time by the members of the branch of the profession to which they belong. In the South African case of Randeree & Ors v WH Dixon & Associates & Anor 1983 (2) SA 1 (A), the court cited with approval this passage from a book on engineering contracts:

 

The architect or engineer is under a special duty to take the best advice available upon the use of such new techniques and to advise his employer of any potential risks; and where the selection of the technique is the architect’s, the onus of justifying his action will be correspondingly heavier, since nearly all building and civil engineering techniques are empirical in origin and have evolved gradually by experience and trial and error, and non-traditional methods are notoriously susceptible to unexpected difficulties and failure.

 

If there is proof that a precaution is usually observed by other persons, a reasonable and prudent man will follow the usual practice in the like circumstances.

 

See Municipality of Kwekwe v Imprecon (Pvt) Ltd 1984 (1) SA 38 (ZS) (liability of contractors.)

Failure to allow rape victim a timeous termination of pregnancy resulting from rape

See Mapingure v Minister of Home Affairs, Minister of Health and Child Welfare and Minister of Justice, Legal and Parliamentary Affairs 2014 (1) ZLR 369 (S).

Trainees and newly qualified professionals

As regards newly qualified professionals, these persons will be negligent if they attempt to do something which they do not have the competence to do, for example, a newly qualified doctor, engineer or lawyer must not try to perform a complex and difficult procedure beyond their capabilities. A newly qualified doctor, however, may be able to rely on the defence of necessity if he attempts to perform a medical procedure when the patient is in a critical condition and there isn’t a qualified doctor available, or by the time a more qualified doctor is summoned the patient would have died. Conversely, if a senior doctor instructs a newly qualified doctor to carry out a difficult or complex procedure, the major responsibility for any harm that eventuates may lie with the senior doctor.

Apportionment of damages (contributory negligence)

General

This matter is relevant in regard to cases under the Aquilian action based upon negligence. The type of situation with which we are dealing here is, for example, where a vehicle being driven by D collides with P, a pedestrian. It turns out that both parties were negligent in causing the accident because P tried to cross the road without ensuring that it was safe to do so and because D was driving at an excessive speed and was not keeping a proper look out. In the event of P suing D for damages, how does our law deal with the claim?

 

Since 1971 we have had apportionment legislation, namely, the Damages (Apportionment and Assessment) Act [Chapter 8:06]. Under this legislation, if P and D were involved in an accident and both were at fault, and P sues D for damages, P’s claim will be reduced to such an extent as the court deems ‘just and equitable having regard to the respective degrees of fault of the claimant’ and of D ‘insofar as the fault of either of them contributed to the damage’. Apportionment is thus based on ‘the equitable precept that a person should not recover in full for damage caused partly by his own fault.

 

For instance, if P was 20% at fault, and D was 80% at fault, P will be able to recover 80% of his damages from D and D in turn will be able to recover 20% of his damages from P. This methodology of examining the respective degrees of fault of the two parties in relation to one another is the one that is usually employed in these sorts of cases. (In a motor accident situation, where the events happened over a very brief space of time, it is, however, by no means easy to apportion blame.) Sometimes our courts have used a more complicated methodology to deal with apportionment. This entails measuring individually the percentage deviation of the two parties from the norm of the reasonable person and then reducing these figures to proportions. To give an example of this manner of computation:

If P deviates from the norm by 20% and D by 40%

Reduced to proportions this is 1:2

Therefore, P is liable to pay one third of D’s loss and D is liable to pay two thirds of P’s loss.

 

See. for instance, Munorwei v Muza HH-804-15

 

For cases on apportionment see the Appendix.

Intentional wrongdoing

Fault does not include intentional wrongdoing and the intentional wrongdoer will have to pay the full damages incurred by the person he or she has injured. See Minister of Law and Order & Anorv Ntsane 1993 (1) SA 560 (A).

Failure to wear seat belts or crash helmets

Following English and South African cases to similar effect, the Zimbabwean High Court in Koenv Keates1989 (3) ZLR 9 (H) ruled that the failure by a front seat passenger to wear a seat belt fitted in the car can amount to contributory negligence under s 4(1) of the Damages (Apportionment and Assessment) Act [Chapter 8:06]. This provision reads as follows:

 

4 Apportionment of liability in case of contributory negligence

(1) Where any person suffers damage which was caused partly by his own fault and partly by the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the claimant, but the damages awarded in respect thereof shall be reduced by the court to such extent as the court may deem just and equitable having regard to the respective degrees of fault of the claimant and of such other person in so far as the fault of either of them contributed to the damage.

 

Although the failure to wear a seat belt did not contribute to the accident, s 4(1) requires that damages are to be reduced to an extent deemed just and equitable if the fault of the claimant contributed to his or her damage. The failure to wear a seat belt amounted to fault on the part of the claimant as not only was it a negligent failure to take reasonable safety precautions, but it also amounted to a breach of a statutory duty under s 4(1) of the Road Traffic (Safety-Belt) Regulations SI 288 of 1983 and as such constituted fault as defined in s 4(6) of the apportionment legislation. Such fault would have contributed to the damage suffered (unless exactly the same injuries would have been suffered even if the seat belt had been worn) and thus the court would be obliged to reduce P’s damages. However, in this type of situation the negligent driver must bear the greater share of responsibility. (In the Koen case, P’s damages were reduced by 15%.)

 

In General Accident v Uijs NO 1993 (4) SA 228 (A) the Appeal Court pointed out that allowance was made for the fact that P had in no way contributed to the accident, and that his fault in failing to wear his seat belt was of a different kind to that of the driver. His damages were reduced by one third.

The same approach would have to be applied in cases involving failure by motor cyclists and pillion riders to wear crash helmets, it being compulsory under Zimbabwean legislation that crash helmets be worn. See s 60A of the Roads and Road Traffic (Construction, Equipment and Use) Regulations RGN 412 of 1972 as amended by RGN 223 of 1975.

 

Boberg argues that the reduction should only apply to the extra damage which would not have been suffered had safety precautions been taken. But in practice it will usually be very difficult to separate out which harm would have occurred in any event and which harm is the extra harm which would not have occurred had the safety precautions been taken.

Contributory negligence of children

If a child runs across a road and is hit by a car and the driver is sued for damages for the injuries that the child has sustained, the issue of contributory negligence on the part of the child may arise. Where the child is under 7, the child is irrebuttably presumed to lack capacity (to be culpae incapax) and thus the child cannot be found to have been guilty of any contributory negligence such as to reduce the damages payable to that child. See Muchechetere v Boka HH-148-89. On the other hand, with children between 7 and 14 the presumption that they are culpae incapax is a rebuttable one. If the presumption is rebutted, and the child in question is found to be culpae capax, the issue that arises is whether the degree of contributory negligence of the child is to be assessed according to the standard of the reasonable adult or the reasonable child of that age? In South Africa, the standard of the reasonable adult is applied (to assess the degree of contributory negligence on the part of the child) whereas in the United Kingdom the courts ask what reasonably could be expected of a child of that age and development. (In the UK, capacity and negligence issues are merged and the question is whether an ordinary child of that age could be expected to have done any more than P or was he simply following instincts natural to a child of that age. The Pearson Commission recommended that in car accident cases contributory negligence should not be a defence where a child is under 12 (Vol 1 para 1077).

 

The reasonable adult test has been severely criticised as being harsh, unrealistic and unfair in its consequences. (See 1973 Annual Survey of SA Law 160-162, Boberg pp 674-682.) Although the South African courts still apply the reasonable adult test, the stringency of this approach has been somewhat alleviated as a result of the SA Appellate Division case of Weber v Santam Insurance 1983 (1) SA 381 (A).

 

First, the court in the Weber case stated that in deciding whether or not the child is culpae capax courts must be careful not to place ‘an old head on young shoulders’. Not only must facts like age, knowledge and experience be taken into account to decide this, but also it must be remembered that knowledge is not the same as experience and therefore it must also be decided whether the particular child was mature enough to control the impulses which children often have to act heedlessly. Under this approach, many children under 14 may be adjudged to be culpae incapax.

 

Second, even if the child in question is found to be culpae capax, the negligence of the motorist knocking down the child would always be adjudged to be greater than that of the child in circumstances where the driver knew or should have known that children might be in the vicinity and he failed to take extra care to guard against childish folly. Special care and vigilance must guard against the propensity of children to dash across the road, etc. In other words, in apportioning in circumstances where both the driver and the child who is culpae capax are guilty of contributory negligence, the driver will be held to be guilty of greater negligence than the child even testing the child against the austere standard of the reasonable adult.

 

In Haffejee v South African Railways and Haulage 1981 (3) SA 1062 (W) a ten year old boy ran through a level crossing for trains and was hit by a train. He was chasing his friend. Although he sometimes acted like a child of seven, the court found that he had the capacity to appreciate the dangers from railway lines and trains. The court found him accountable and found he was guilty of negligence. The court, however, also found that the railways were also at fault by allowing thick vegetation to grow in the vicinity which made it difficult to see when a train was approaching. It also found that the train driver had failed to take into account that the line passed through a densely populated area and there were likely to be children in the vicinity of the railway line. It decided that the child and the railways were equally to blame for the accident and therefore reduced the award of damages in respect of the father’s claim on behalf of the child by 50%.

See also Eskom Holdings v Hendricks 2005 (5) SA 503 (SCA)

 

There is no Zimbabwean case dealing with this situation. However, in the criminal case of S v Ferreira 1992 (1) ZLR 93 (S) the court stressed that motorists must exercise special care and vigilance when they know that there are children in the vicinity of the road, as it is known that children have a propensity for impulsive and irrational behaviour. It would be open to our courts to adopt the less harsh standard of a reasonable child of comparable age and experience instead of the full-blown reasonable adult standard if the child is found to beculpae capax. The standard of the reasonable child, however, would be difficult to apply in practice. As the Weber case goes so far in the direction of not placing an old head on young shoulders at the stage that the child’s capacity is considered, it could be maintained that our law should go one stage further and adopt the position that the childish heedlessness of children under 14 should not be held against them at all in these sorts of cases. It could simply say that as the adult driver has been negligent in not guarding against harm to the child, he should be made solely liable and apportionment should not apply in respect of a child under 14. In other words, the law could excuse the foolhardiness of young children by laying down that below the age of 14 all children are irrebuttably presumed to be culpae incapax thereby casting the responsibility solely on the driver to guard against harm to these young children. Against this it could be said that this approach does not encourage children to display greater caution on the roads and it would be unduly harsh upon the negligent motorist.

Concurrent and joint wrongdoers

Concurrent wrongdoers are persons who acting independently both cause harm to P whereas joint wrongdoers act in concert in causing harm to P.

When two or more persons have contributed either equally or in varying proportions to the commission of a delict then all are liable jointly and severally. The injured party can sue them all together in one action or any one of them.

 

The one sued and who has paid reparation can recover a contribution from the others. This can be by third party proceedings or after the case is concluded. He recovers the amount that the court considers just depending on their respective contribution to the delict.

 

Previously, there was no provision for apportionment between concurrent wrongdoers. Thus, if A and B, acting independently of one another, were both at fault in causing harm to P, even if A was 80% at fault in causing P his injuries and B was only 20% at fault, P could still nonetheless claim 100% of his damages from either A or B. The concurrent wrongdoer who has paid the damages, was, however, entitled to claim a contribution of 50% from the other concurrent wrongdoer (or if there were two other concurrent wrongdoers he can claim a third from each or if there were three others a quarter from each and so on). In other words, the proportion of contribution which concurrent wrongdoers were obliged to pay was not dependent upon their respective degrees of fault.

 

However, an amendment was made to our apportionment legislation in 1985 allowing our courts to apportion damages as between concurrent wrongdoers or between joint wrongdoers. Under this amendment, (Act 28 of 1985) a court may either make a single award or may apportion liability as between concurrent or joint wrongdoers in the light of the respective degrees of fault of the wrongdoers. Thus, if A and B are concurrent wrongdoers who cause harm to P who is blameless and the court decides that A is 90% at fault and B is 10% at fault in the causing of P’s harm, the court can now order A to pay P 90% of his damages and B to pay P 10% of his damages. If A pays the entire amount of damages to the injured party he can claim a contribution from B based upon his respective degree of fault.

Joining of wrongdoers

The plaintiff should join all wrongdoers in the action otherwise he will be barred from claiming damages from the other wrongdoers unless they can obtain leave of the court on good cause shown: See (s 6(1)(a)).

 

A defendant should join all wrongdoers in the action otherwise he will be barred from claiming a contribution from other wrongdoers not joined in the action unless they can obtain leave of the court on good cause shown: See (s 6(1)(b)).

 

For a commentary on these provisions, see 1988 Legal Forum Volume 1 Number 2 p 34.

Apportionment in respect of dependant’s claim

A is dependent upon B for support. B is killed or is seriously injured. B’s death or injuries were caused partly as a result of C’s negligence and partly as a result of B’s own negligence. What happens if A sues for loss of support?

 

The section of the Damages (Apportionment and Assessment) Act, [Chapter 8:06] that used to cover this situation before it was repealed in 1985, s 4(4), simply stated that:

 

Damages recoverable by any person in consequence of the death or injury to another person shall be reduced to such an extent as the court may deem just and equitable having regard to the respective degrees of fault of the person killed or injured and of the other party in relation to the occurrence which resulted in such death or injury.

 

Under this provision, the court would simply reduce the damages payable to A based upon the proportionate degree of fault of B.

 

In 1985, s 4(4) was repealed and s 8 was inserted. Under s 8, A’s claim is no longer subject to reduction on the basis of the negligence of B. What now will happen is that if A sues C, B (if he is alive) or his estate (if he is dead) will be treated as a joint wrongdoer with C in relation to the dependant. If the court apportions liability in terms of s 5 between C and B, it could hold C and B, or B’s estate, liable to pay damages to A in amounts proportional to their degrees of fault. If C pays the dependant’s damages, he can then claim a contribution from B (if B is injured but does not die) or from B’s estate if B had died in the accident.

 

In South Africa the legislation also provides for the breadwinner or his estate to be treated as a joint wrongdoer. However, the South Africans have added this proviso (which we do not have in Zimbabwe):

 

Provided that if the court in determining the full amount of the damage suffered by P deducts from the estimated value of the support of which P has been deprived by reason of the death of any person, the value of the benefit which P has acquired from the estate of such deceased person, no contribution which the joint wrongdoer may so recover from the estate of the deceased person shall deprive P of the benefit or any portion thereof.

 

Commenting upon this proviso Burchell states at p 244 of his Principles of Delict that:

 

The effect of this proviso is unsatisfactory in the amount of protection it gives to dependants. In many cases, the bulk of a deceased breadwinner’s estate consists of insurance monies or pension benefits. Since, in terms of the Assessment of Damages Act 9 of 1969 these insurance or pension benefits are not taken into account in reduction of the dependant’s damage, they are available for the satisfaction of the joint wrongdoer’s action for a contribution against the breadwinner’s estate. The only possible limit to such claim is in terms of s 40 of the Insurance Act 27 of 1943 which protects on death the proceeds of life policies against creditors up to a certain amount. Perhaps a practical way of avoiding the unsatisfactory result of s 1 of the Assessment of Damages Act read with s 2(6)(a) of the Apportionment of Damages Act is for the breadwinner to stipulate in the insurance policy that the benefit is to be paid to the dependants i.e. they become the beneficiaries not the estate.

 

         Defence of voluntary assumption of risk in respect of dependant’s claim

It would seem that the defence of volenti should not be able to be successfully raised by D as a full defence in respect of an action by a dependant for loss of support due to the death of a breadwinner, as the duty of support of the breadwinner is independent of the duty of care owed to the deceased.See Jameson’s Minors v CSAR 1908 TS 575. The position appears to be different in English law. See Salmond & Heuston The Law of Torts 19 Ed p 650.

             No deduction of certain benefits

In Zimbabwe section 9 of Damages (Apportionment and Assessment) Act [Chapter 8:06] provides for certain benefits to be excluded in assessment of damages in a claim for loss of support. It reads as follows:

9 (1) In this section—

“benefit” means any payment by a friendly society or trade union for the relief or maintenance of a dependant of a member;

“insurance money” includes a refund of premiums and any payments of interest on such premiums;

“pension” includes a refund of contributions and any payment of interest on such contributions and also any payment of a gratuity or other lump sum by a person or provident fund or by an employer in respect of the employment of any person.

(2) In assessing damages for loss of support as a result of the death of a person, no insurance money, pension or benefit which has been or will or may be paid as a result of the death shall be taken into account.

Wrongfulness (unlawfulness)

This requirement operates as a device for controlling the scope of actionable negligence.

 

It has these main roles, namely–

  • to decide whether there is any liability at all for a particular type of conduct;
  • to restrict the ambit of liability where liability is recognized;
  • in certain situations like liability for omissions to expand the range of situations in which there is liability.

 

In Musadzikwa v Minister of Home Affairs & Anor 2000 (1) ZLR 405 (H) the court stated that in order to determine the wrongfulness or reasonableness of any given conduct the court is enjoined to make a value judgment based on, among other things, contemporary boni mores, in the sense of the convictions of the community as to what is fair, just and equitable. In this case the police had used automatic weapons to quell a riot, injuring an innocent passer-by. The court found that it is not conducive to harmonious community relations for the police force to unleash its members onto an urban shopping centre located in the centre of a densely populated suburban residential area armed with FN rifles. While they were entitled to use firearms to disperse the rioters, it was unreasonable to use FN rifles and so they were liable to P. (This case seems to mix up the concepts of wrongfulness and negligence. On the facts of the case, the issue of wrongfulness did not pose a problem as the law of delict recognizes that it is always wrongful to cause by a positive act physical injury by negligence.)

 

In Nyaguse v Skinners Auto Body Specialists & Anor 2007 (1) ZLR 296 (H) the court pointed out that wrongfulness and fault are separate and distinct requirements. Wrongfulness is determined by reference to public policy or the legal convictions of the community. Both fault and wrongfulness must be pleaded and proved.

 

In Country Cloud Trading CC v MEC, Department of Infrastructure Development, Gauteng 2015 (1) SA 1 (CC) the court said:

“Wrongfulness is an element of delictual liability. It functions to determine whether the infliction of culpably caused harm demands the imposition of liability or, conversely, whether “the social, economic and others costs are just too high to justify the use of the law of delict for the resolution of the particular issue”. Wrongfulness typically acts as a brake on liability, particularly in areas of the law of delict where it is undesirable or overly burdensome to impose liability.”

In Border Timbers Limited v ZIMRA 2009 (1) ZLR 131 (H) the court stressed that in an Aquilian action it is necessary to plead and proved both negligence and wrongfulness.

 

In most cases the wrongfulness requirement poses no problem. The law of delict lays down that it is always wrongful or unlawful intentionally or negligently to cause by a positive act physical harm to person or property resulting in financial loss.

 

Where, however, there was not a positive act but instead an omission (i.e. a failure to act positively), or the positive act did not result in physical harm to person or property but only purely financial loss, or the harm caused was psychological harm, the courts have used the wrongfulness criterion to limit the range of liability in these cases further than would be the case if the fault criterion was the sole determinant of liability.

Range of Liability

           Negligence

 

           Wrongfulness

Areas where wrongfulness issue arises

The law of delict provides that it is always wrongful for D intentionally or negligently to cause by a positive act physical harm to the person or property of P resulting in financial loss to P.

 

There are only a limited number of particular types of harm that result from negligent conduct where the issue of wrongfulness is a live one.

The situations are:

  • Liability for omissions;
  • Liability for causing purely economic loss by negligent misstatements;
  • Liability for causing purely economic loss other than by negligent misstatements; and
  • Liability for causing nervous shock.

 

As regards liability for omission, the law has mapped out when it is appropriate to impose liability for an omission and in recent years has expanded the scope of liability for omissions using the policy based criterion of wrongfulness.

 

In regard to situations where purely economic loss is involved the courts have been concerned that if liability were to be based simply upon negligence, the scope of liability would be far too extensive and far too onerous. As a matter of legal policy, the courts have sought to impose further legal requirements based upon policy so as to limit the extent of liability for the negligent causing of financial loss to avoid imposing liability “in an indeterminate amount to an indeterminate number of plaintiffs over an indeterminate period”.

 

Finally in respect of infliction of nervous shock, the courts have imposed certain requirements to ensure that the extent of liability is not too wide.

Omissions

Where patrimonial loss accrues as a result of harm caused by an omission as opposed to positive physical conduct there are special rules which apply. In general terms, there is no delictual liability for an omission unless, in the circumstances, the law recognises that there is a legal duty to take positive action to prevent the harm from occurring. Thus, even though harm may have been clearly foreseen or was foreseeable and the good citizen would have felt himself morally obliged to take action and the harm could have been easily prevented by D, D will still not be liable for the harm unless the situation was one recognised by the law as one in which there was a legal obligation to take preventive action.

 

The situations recognised as leading to such a legal duty are:

  • Creation of a dangerous situation by prior conduct;
  • Control over a potentially dangerous situation which D did not create;
  • Protective relationship (which includes both blood relationships, such as a mother and her own child, and other relationships, such as baby-sitter who is looking after a child);
  • Public office or calling (e.g. a policeman or prison officer);
  • Statutory duty; and
  • Contract or undertaking.

Creation of a dangerous situation by prior conduct

An easy example is where you light a fire and fail to ensure that it does not spread and cause harm to a neighbour’s property.

 

In Mapuranga v Mungate 1997 (1) ZLR 64 (H) P was assaulted at D’s house by D’s brother and by D. D was liable for the assault by his brother because D had invited P to his house knowing that he was going to confront him with an allegation that he had committed adultery with D’s wife. The court held that although the doctrine of common purpose, applicable in criminal cases, has not been accepted in civil actions, D will be liable for a delict committed by another where he has by his acts created the situation leading to the delict or has failed to act to prevent its commission when he was under a legal duty to act. P had been invited to D’s house and D had thereby assumed a legal duty to protect him from foreseeable harm. D’s brother had been invited to confront P on an emotional subject which a reasonable person would have foreseen would be likely to provoke an assault. D, observing the assault by his brother, did nothing to prevent it and even joined in.

 

Control over a potentially dangerous situation which D did not create

 

In Mills v Farmery 1989 (2) ZLR 336 (H) a fire had started on D’s vacant piece of land and had spread in residential area causing damage to P’s property. D had allowed his land to become overgrown with grass and this constituted a fire hazard. D was held liable as it was reasonably foreseeable that a fire might start and spread to adjoining properties. A reasonable person would have taken the relatively simple and inexpensive precaution of slashing or cutting the grass to a point where it would be harmless. It did not matter that the fire may have been started by an unauthorized person who had come onto D’s land as unauthorised persons had easy access to D’s land.

 

In Blore v Standard General Insurance 1972 (2) SA 89 (O) a garage negligently failed to notify the owner of a defect in his vehicle; Rabie v Kimberley Municipality 1991 (4) SA 243 (NC).

Public office or calling and special or protective relationship

 

In Minister of Police v Ewels 1975 (3) SA 590 (A) the police failed to stop an assault upon P at the police station by an off-duty police officer. The Ministry was held liable to the injured person.

 

In Minister of Police v Skosana 1977 (1) SA 31 (A) a sick prisoner in police custody was not taken timeously for medical treatment. The Ministry was held liable for his death.The police officers had been negligent in failing to obtain prompt medical treatment for the prisoner. This failure was the cause of the death because, according to the expert testimony, if the prisoner had been given treatment earlier in all probability he would have survived.

 

In Geldenhuys v Minister of Safety and Security 2002 (4) SA 719 (C) a man was found lying on the ground unconscious. He was drunk and had been involved in a fight with another drunken man. He was arrested by the police for being drunk in a public place. He was not physically examined before he was placed in a cell. The police also negligently failed to realize he was badly injured. When finally they did and rushed him to hospital he had already suffered brain damage. He successfully sued the police for damages.

 

In Minister of Safety and Security v De Lima 2005 (5) SA 575 (SCA) the police failed to take reasonable steps taken to determine the suitability of an applicant for a firearms permit.The person shot and injured a person with the weapon. The police were held liable as it was reasonably foreseeable that if an unsuitable person was granted a firearms permit he might end up harming a third party with the weapon.

 

Minister of Safety and Security v Van Duivenboden 2002 6 SA 431 (SCA) Under statute the police had power to take measures to deprive an unfit person of a firearm. The police that it were in possession of information that a person was unfit to be granted the permit but did not take action and the person used the weapon to kill his wife and daughter and to injure a third party. It was held the police owed a legal duty to members of the public to take reasonable steps to act on information in order to prevent harm to members of the public.

 

In Dorset Yacht Club v Home Office [1970] AC 1004 (HL) the detaining authorities negligently allowed youths in custody to escape. The youths took out a boat belonging to the club and caused damage to the boat. The Home Office was held liable to pay damages.

Municipality cases

In Halliwell v Johannesburg Municipal Council 1912 AD 659 the situation involved thenon-repair of dangerous road and an accident occurred. The court held that the municipality was not liable unless it had introduced new source of danger. On the other hand, in the case of van der Merwe Burger v Warenton Municipality 1987 (1) SA 899 (NC) the court held that a municipality is not in a specially privileged position regarding negligent omissions. It is not required that the municipality introduces a new source of danger before there can be liability.

New legal duties

In addition to these recognised categories, in the leading case of Kingv Dykes 1971 (2) RLR 151 (A) the appeal court reserved to itself the power to create additional legal duties to act positively in cases falling outside the scope of these specific categories. It would recognise such further legal duties only in borderline cases where, on a value judgment, the court decides that it is appropriate that an undoubted moral duty should be translated into a legal duty. The fact situation in King v Dykes which led to the court exercising this power to create a new legal duty was one of fire spreading in a farming area. The appeal court laid down that there was a legal duty on a farmer who had not started the fire but onto whose land a fire had spread from an adjoining property, to take reasonable steps to fight the fire and to try to prevent it from spreading further.

 

Since the decision in King v Dykes, the power to translate moral duties into legal ones has not been used by the Zimbabwean courts to impose new legal duties in any other situations than fire spreading. It seems that most situations that arise can be fitted into the traditional categories of liability for omission thus avoiding the need to create new legal duties outside these categories.

 

In Mapingure v Minister of Home Affairs & Ors 2014 (1) ZLR 369 (S) the appellant was raped by robbers at her home. She immediately lodged a report with the police and requested that she be taken to a doctor to be given medication to prevent pregnancy and any sexually transmitted infection. Later that day, she was taken to hospital and attended to by a doctor. She repeated her request, but the doctor only treated her for an injured knee. He said that he could only attend to her request for preventive medication in the presence of a police officer and that the medication had to be administered within 72 hours of the sexual intercourse having occurred. She went to the police station the following day and was advised that the officer who dealt with her case was not available. She then returned to the hospital, but the doctor insisted that he could only treat her if a police report was made available. Three days after the rape, she attended the hospital with another police officer. At that stage, the doctor informed her that he could not treat her as the prescribed 72 hours had already elapsed.  Eventually, a month after the rape, the appellant’s pregnancy was formally confirmed.Thereafter, the appellant went to see the investigating police officer who referred her to a public prosecutor. She told the prosecutor that she wanted her pregnancy terminated, but was told that she had to wait until the rape trial had been completed. Four months after the rape, acting on the direction of the police, she returned to the prosecutor’s office and was advised that she required a pregnancy termination order. The prosecutor then consulted a magistrate who stated that he could not assist because the rape trial had not been completed. She finally obtained the necessary magisterial certificate nearly six months after the rape, but the hospital matron who was assigned to carry out the termination felt that it was no longer safe to carry out the procedure and declined to do so. Eventually, after the full term of her pregnancy, the appellant gave birth to her child.The applicant brought an action against the Ministers of Home Affairs, Health and Justice for damages for physical and mental pain, anguish and stress suffered and for maintenance for the child until the child turned 18. The basis of the claim was that the employees of the three Ministries concerned were negligent in their failure to prevent the pregnancy or to expedite its termination. The particulars of negligence were itemised. Her claim was dismissed.The questions for determination on appeal were whether or not the respondents’ employees were negligent in the manner in which they dealt with the appellant’s predicament; and if they were, whether the appellant suffered any actionable harm as a result of such negligence and, if so, whether the respondents were liable to the appellant in damages for pain and suffering and for the maintenance of her child.

 

There was a professional relationship between the appellant and the doctor. His duties required him to attend to all the physical injuries arising from the sexual assault inflicted upon her. Consequently, he was under a special duty to be careful and accurate in everything that he did and said pertaining to his relationship with her. He should have exercised that level of skill and diligence possessed and exercised at the time by the members of his profession. A reasonable person in his position would have foreseen that his failure to administer the contraceptive drug, or his failure to advise the appellant on the alternative means of accessing that drug, would probably result in her falling pregnant. He should have taken reasonable steps to guard against that probability. However, despite the appellant’s quandary and persistent pleas for treatment, he stubbornly failed to take any steps to mitigate her condition.

 

The situation before the police was that of a victim of sexual violence requiring their urgent assistance. They were called upon either to compile a report on the assault or to accompany the appellant to the doctor within a specified period. The circumstances were such as to create a legal duty on the part of the police to assist the appellant in her efforts to prevent her pregnancy. They failed to comply with that duty, which they could have done with relative ease. Their inaction amounted to unlawful conduct by reason of their omission to act positively in the circumstances before them. They were under a legal duty to act reasonably and they dismally failed to do so.

 

The Ministry of Health and the Ministry of Home Affairs were held delictually liable for the negligent failure by the doctor and the police officer respectively in respect of the failure to avoid the pregnancy. Although the originating cause of the appellant’s pregnancy was the rape, its proximate cause was the negligent failure to administer the necessary preventive medication timeously. But for that failure, the appellant would not have fallen pregnant. The police and the doctor failed in their duties. These unlawful omissions took place within the course and scope of their employment with the first and second respondents respectively, who must be held vicariously liable to compensate the appellant in respect of the harm occasioned through the failure to prevent her pregnancy. The appellant’s claim for damages must be limited to the period between the date of her rape and the date of confirmation of her pregnancy. The matter would be remitted to the trial court for assessment of the damages to which the appellant was entitled. After it was remitted, the High Court awarded an amount of $6 500 being general damages for pain and suffering that was incurred by Mapingure for wrongful pregnancy.

 

The court held, however, that there was no delictual responsibility arising out of the conduct of the prosecutor and the magistrate in respect of the matter of the obtaining of a termination of pregnancy. In terms of ss 4 and 5 of the Termination of Pregnancy Act [Chapter 15:10] permission for the termination of pregnancy pursuant to unlawful intercourse may only be granted by the superintendent of a designated institution. The precondition for that permission is the production of a certificate from a magistrate within the same jurisdiction. The issuance of a magisterial certificate is preceded by a complaint having been lodged with the authorities and the submission of relevant documents by those authorities. The term “authorities” is not defined in the Act but, in the context of unlawful intercourse, i.e. rape or incest, it would ordinarily apply to mean the police authorities. The critical question was whether the responsibility for instituting proceedings in the magistrates court lies with the relevant authorities or the victim of the alleged unlawful intercourse. On a correct reading of the Act and the case law, the victim of the alleged rape must depose to an affidavit or make a statement under oath in addition to being present for possible interrogation by the magistrate. Given the ex parte nature of the procedure, an affidavit on its own may not always suffice to enable the magistrate to make the necessary determination, on a balance of probabilities, that the applicant was raped and that her pregnancy resulted therefrom. However, the applicant’s affidavit or statement under oath is essential and required in every case, whether or not the magistrate decides to examine the applicant or any other person as he may deem necessary. It is the responsibility of the victim of the alleged rape to institute proceedings for the issuance of a magisterial certificate allowing the termination of her pregnancy. The role of the police and the prosecutor, upon request by the victim or in response to a directive by the magistrate, is to compile the relevant reports and documentation pertaining to the rape for submission to the magistrate. The role of the magistrate is to issue the requisite certificate upon being duly satisfied in terms of s 5(4), while that of the superintendent of the designated institution is to authorise its medical practitioner, upon production of the certificate, to terminate the unwanted pregnancy. Even on the broadest interpretation of the Act, taken as a whole, it is not within the scope of prosecutorial or magisterial functions to give legal advice on the procedural steps required to terminate a pregnancy. It was for the appellant to have sought that advice aliunde, as soon as possible after she became aware of her pregnancy. The prosecutors and magistrate could not be held liable for failing to take such reasonable steps as may have been necessary for the issuance of the requisite certificate.In coming to this conclusion the court adopted the approach in the South African case of Minister of Law and Order v Kadir 1995 (1) SA 303 (A)

 

The Appeal Court was clearly correct about the prescribed roles of the prosecutor and magistrate under the Termination of Pregnancy Act and that the Act did not impose upon them a duty to provide legal advice to a victim. But the facts show that advice was indeed offered to the victim by both the prosecutor and through the magistrate and the advice offered was erroneous. She was told by the prosecutor that she would have to wait until the rape trial had been completed for her pregnancy to be terminated. When she returned to the prosecutor to the direction of the police, she was advised that she required a pregnancy termination order. The prosecutor in question then consulted a magistrate who stated that he could not assist because the rape trial had not been completed. By the time the victim obtained the termination certificate, it was too late to carry out a safe termination. Reliance on this erroneous advice could well have caused the victim to delay initiating the proceedings for the issuance of the magisterial certificate for authorising the termination of the pregnancy, leading to the issuing of the certificate when it was too late to have a safe termination. If it had been established that this is what had in fact happened, the appellant would have had a basis for her claim based upon reliance upon completely misleading advice which led to her not being able to have a termination of pregnancy in time. Although the prosecutor and magistrate had no legal obligation to offer advice, once they decided to do so, they had a duty to give proper advice and not to give advice that may have led to the denial of a termination of pregnancy in time. If this was the situation there would have been no danger of opening up the floodgates to a deluge of claims.It is regrettable that this issue was not properly investigated leading the Appeal Court to state that there was insufficient evidence on record to show what had occurred between the appellant and these functionaries.

 

For a critical appraisal of the this judgment see “The challenge of constitutional transformation of society through judicial adjudication Mildred Mapingure v Minister of Home Affairs & Ors S-22-14 by J. Tsabora Midlands State University Law Journal Vol 1 2014 and “Reflections on the tortuous tale of Mildred Mapingure” by Sarudzayi Njerere, 10/07/14 ZWLA.

 

J.Tsabora cogently argues in a detailed critique of this judgement that the Supreme Court was wrong in denying the appellant’s delictual damages for lying in expenses and maintenance of the child born after she failed to obtain a lawful termination of her pregnancy. Essentially he argues that the court should have taken the opportunity to develop the common law in line with constitutional values and this should have led it to conclude that the authorities involved in this matter should be held responsible for the failure of the victim of the rape to obtain a lawful termination. The failure by the victim to follow the procedures for obtaining the magistrate’s authorization for a lawful termination should not have been treated as breaking the causal link between the original negligent failure of the doctor and police to perform their legal duties in respect of the victim obtaining emergency contraception to prevent pregnancy and the eventual giving birth to an unwanted child. The police, the doctor, the prosecutor and the magistrate should have been held responsible and they, and their Ministries, should have been held liable to pay damages to Ms Mapingure for her lying in expenses and maintenance of the child.

 

           South African test

 

In South Africa, the courts have laid down that in a situation where there is no precedent for making D liable in this type of case, the courts will only recognise a legal duty so as to impose liability if in that situation, not only does the omission evoke moral indignation but also the legal convictions of the community demand that the omission be regarded as wrongful and that the loss should be compensated by the person who failed to act positively. See the cases of Minister of Police v Ewels 1975 (3) SA 590 (A) and Minister of Law and Order v Kadir 1995 (1) SA 303 (A). There appears to be little difference between the test applied in South Africa and that applied in Zimbabwe to decide whether a new legal duty should be recognised because the final decision will obviously revolve around policy considerations such as social utility, practicality of enforcing a new duty, and the likely impact upon the D’s activities of such a duty. There have been a series of cases in South Africa in which the courts have addressed the issue of legal duty.

 

In Minister of Police v Ewels 1975 (3) SA 590 (A) a civilian was assaulted at a police station by a police sergeant who was not on duty at the time. The assault took place in the presence of several members of the police (including a sergeant) who could easily have put an end to the assault. The court held that the police officers on duty had a legal duty to intervene and assist the person being assaulted. The Ministry was vicariously liable. The court said the time had come where an omission should be actionable where it occasions not only moral indignation but where the legal convictions of the community require that the omission be regarded as unlawful.

 

In Minister of Police v Skosana 1977 (1) SA 31 (A) a prisoner died due to the failure timeously to procure medical attention for him. The prisoner probably would have survived had he been taken for treatment timeously. The police had failed in their duty towards the prisoner and they were liable for the death of the prisoner.

 

In Moses v Minister of Safety and Security 2000 (3) SA 106 (C) a person detained in a police cell died after being assaulted by fellow inmates. The assault took place between cell inspections which were 25 minutes apart. The police were unaware of the propensity of assailants towards violence and the assailants had not exhibited signs of aggressiveness. The police had limited manpower available and had other duties. In the circumstances the reasonable person would not have done more than the police had done.

 

In Shabalala v Metrorail  2008 (3) SA 142 (SCA) a commuter was accosted by robbers on train who demanded money from him. When he said he had none, one robber produced a firearm and shot him twice in the leg and once in the arm.The commuter sued the railway company alleging that it had been negligent in failing to provide a security guard in each carriage to prevent such occurrences. The court decided that it was not reasonable to expect the railway company to provide such guards in the circumstances. Only if such violent robberies were particularly prevalent would such precaution be called for.

 

In Mashongwa v Passenger Rail Agency of South Africa 2016 (3) SA 528 (CC) P, a sole passenger on a train operated by D, was attacked by armed men and thrown out of the train through doors which were left open whilst the train was in motion. P argued that the operator was negligent in not have security guards on the train and in not keeping the train doors closed whilst the train was in motion. The High Court found for P and awarded damages. The Supreme Court found for the D. The Constitutional Court found for P. The Court held that safeguarding the physical well-being of passengers was a central obligation of public carriers, including PRASA.  This duty is further reinforced by the specific constitutional obligation to protect passengers’ bodily integrity that rests on PRASA as an organ of state. Taking these factors into account, this Court found that PRASA had breached its public law obligations. It also found that the norms and values derived from the Constitution demand that a negligent breach of those duties, even by way of omission, should, absent a suitable non-judicial remedy, attract liability to compensate injured persons in damages. The Court also held that the harm caused was reasonably foreseeable and that PRASA had a legal duty to ensure that the doors were closed while the train was in motion.  It further held that P would probably not have sustained his injuries had PRASA done so. It concluded that it was wrongful and negligent of PRASA not to observe the important practice of keeping the train doors closed while the train was in motion. 

 

In Minister of Safety and Security v Hamilton 2004 (2) SA 216 (SCA) the police were held liable when a person injured another with a firearm. The police had failed to inquire into the psychological fitness of the person who had applied to the police for a firearms licence.

 

Carmichele v Minister of Safety and Security

One of the cases which best illustrates the way in which constitutional provisions help to shape the law of delict in South Africa is the Carmichele case. The summary of the judgments in this case draws from the summary by Loubser and Midgley. In the case, X was charged with attempted rape and attempted murder. The investigating officer was aware of X’s previous convictions for sexual offences. Despite this, he told the prosecutor there was no reason to oppose bail and the prosecutor did not oppose bail. X was released on bail and a few months later he broke into C’s house and attempted to murder her. He was convicted for these offences. C claimed damages against the police and the prosecution for the harm she had suffered.

The Supreme Court of Appeal originally dismissed the claim for damages finding that neither the police not the prosecutor had acted wrongfully as there was no legal duty to act positively to oppose bail. The matter was then taken to the Constitutional Court. [Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC)]

 

The issue there was whether the court should develop the law of delict in this regard in the light of the contention by C that her rights to life, human dignity, equality and security as well as the constitutional provisions on the duties of the police had been violated. In particular, she alleged that the State had a duty to protect women against violent crime and sexual abuse. The Constitutional Court reiterated that Constitution is the supreme law and the Bill of Rights applies to all law and that under section 39(2) of the Constitution provides that when developing the common law, every court must promote the spirit, purports and objects of the Bill of Rights and remove deviations in the common law where these are found to exist. The Court said that it was implicit in C’s case that the common law had to be developed in this case beyond existing precedent. The court would consider whether the common law is in need of development and, if it is, what way it should be developed. It pointed out that the State has positive duties to promote and uphold the spirit, purport and objectives of the Bill of Right and is obliged not to perform any act that infringes the rights to life, human dignity and the freedom and security of the person.

 

The Constitutional Court then referred the matter back to the Court of first instance to reconsider the matter in the light of the principles raised by the Constitutional Court. The court of first instance, having heard further evidence, found in C’s favour. Carmichele v Minister of Safety and Security 2004 (3) SA 431 (SCA) paras 21-22 There was then an appeal to the Supreme Court of Appeal. This court dismissed the appeal and found in C’s favour. It accepted that both the police and the prosecutors have a public duty either to oppose bail or to place all relevant and readily available facts before the Court. It found that they had failed in this duty. It referred to the principles it has set out in the earlier decision of Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) and found that someone in the position of C had no other effective remedy against the State except an action for damages in delict. This remedy would therefore be available unless there were public policy considerations that required that the remedy should not be granted, such as whether in the present case that granting of the remedy would inhibit the police or the prosecution in the performance of their duties. The Court found that in the present case there was no reason to depart from the general principle that the State will be liable for its failure to comply with its constitutional duty to protect C who pre-eminently was a person requiring the State’s protection.

 

In granting the damages, the Supreme Court of Appeal found that the police and prosecution had acted negligently and the harm to C was foreseeable in the circumstances given the proximity of the parties.

 

In Van Eeden v Minister of Safety and Security 2003 (1) SA 389 (SCA) the State was held liable for a rape committed by a known dangerous criminal and serial rapist who had escaped through an unlocked gate from police cells where he was being held for an identification parade. The court noted that an omission is wrongful under the common law if D is under a duty to act positively to prevent harm to P. D is under a legal duty if it is reasonable for him to have taken positive measures to prevent the harm, reasonableness being assessed according to the court’s conception of the legal convictions of the community (i.e. the convictions of legal policy-makers such as judges and the legislature). The court noted, with apparent approval, a minority judgment in the case of Minister of Safety & Security v Van Duivenboden 2002 (6) SA 431 (SCA), which held that the police were under a positive duty to act to protect citizens from assault, even on an application of the traditional test for delictual wrongfulness.

 

In Minister of Safety and Security & Ors v W H 2009 (4) SA 213 (E) P was raped. A warrant for the arrest of the rapist had been issued previously but the police had failed to arrest the rapist within a reasonable period of time and during this time the rapist had raped P. P sued the police for damages. The court held the police liable, finding that the police inaction was both the factual and legal cause of the rape.

 

In McCarthy Ltd t/a Budget Rent A Car v Sunset Beach Trading 300 CC t/a Harvey World Travel & Anor 2012 (6) SA 551 (GNP) D, a travel agent, issued car rental vouchers to 'customers' who then stole rental cars from P, rental company. P company sought to sue D agency for the loss of their vehicles alleging failure (omission) by the travel agent to take reasonable steps to ensure that the customers were genuine. The legal convictions of the community would assume that adequate security checks would be made by P company before it released cars, rather than trying to hold D agency liable. D agency was held not liable.

 

In Administrator, Natal v Edouard 1990 (3) SA 581(A) the court considered whether there were policy reasons for denying the claim. It decided that there were no such policy reasons and allowed the claim. In this case there had been a negligent failure to perform an agreed sterilization operation. The result of this failure was the birth of a healthy unplanned child. The parents were awarded compensation for the financial burden of having to raise an unwanted child.

 

In Minister of Law and Order v Kadir 1995 (1) SA 303 (A) the police attending to a traffic accident failed to record the particulars of the driver who caused the accident. The result of this failure was that a person who had been injured in the accident was unable to locate the driver and sue him. He then sought to sue the police. The appeal court held that the police did not owe the injured party a legal duty to record information relating to the identity of the driver or his vehicle and thus the injured party was not entitled to sue the police.The court decided that this case was completely different from that of Ewels. At 321H-322B the court said:

 

Viewing the matter objectively society will take account of the fact that the functions of the police relate in terms of the Act to criminal matters and were not designed for the purpose of assisting civil litigants. Members of the community will realise that services are rendered by the police in connection with road accidents in the course of what was described in Dease v Minister of Justice 1962 (3) SA 215 (T) at 218B-C as “exceptional duties falling outside the meaning of the term ‘police duties’ as ordinarily understood,” and that these duties, largely self-imposed, may well be terminated or curtailed if the Courts penalise less than perfect performance. Bearing this in mind society will baulk at the idea of holding policemen personally liable for damages arising from what was a relatively insignificant dereliction of duty.

 

Negligent misstatement inducing contract

Under this heading, the special situation of negligent misrepresentation inducing contract needs to be considered. The situation under consideration here is as follows: P and D are negotiating a contract. During the course of the negotiations, D makes certain material representations to P that induce P to enter into the contract. The representations made by D at the pre-contractual stage are not made terms of the contract. They are, however, erroneous and the effect of these erroneous statements is that P suffers financial loss at the post-contractual stage because the contractual deal is inferior to that which P was led by D’s representations to believe it would be. P seeks to sue D in delict for negligent misrepresentation.

 

Until the 1980s, the approach in South Africa was that the courts adopted the position that it was unnecessary to allow recovery in delict in this type of case, the main reason being that any reasonable business-person would extract guarantees as to the accuracy of any such material representations, have them included as contractual terms, and would thereby be able to sue in contract if the representations proved to be erroneous. Under this approach, it was argued that to allow an additional delictual right of action would lead to unnecessary proliferation of actions.

 

Later, however, in the Cape Provincial Division decision in Kern Trust v Hurter 1981 (3) SA 607 (C) (which decision was approved in the Zimbabwean case of Autorama (Pvt) Ltd v Farm Equipment Auctions 1984 (1) ZLR 162 (H)), the court held that there was no compelling reason for denying a delictual right of action in this type of case, it being unreasonable to expect P to have included as contractual terms every single representation which has been made to him at the pre-contractual stage. He should rather be able to expect reasonable care from D in making statements that would induce P to conclude the deal.

 

In the Autorama case D, an auctioneer, sold a motor vehicle to P after representing to P that the owner of the vehicle was a finance company whereas it was in fact selling it on behalf of the person who was buying the vehicle under a hire purchase agreement with the finance company. Before P could obtain the vehicle he had to pay the balance owing under the hire-purchase to the finance company. P claimed damages from D for the amount he had to pay to the finance company. P argued that the representation by D about the ownership of the vehicle was  material representation in inducing P to enter into the contract. P alleged that D was negligent in failing to ascertain the true owner as it was known to D that persons regularly attempted to fraudulently selling motor vehicles subject to hire-purchase agreements before leaving Zimbabwe with the money. D excepted to the claim on the basis that it disclosed no actionable claim. The court dismissed the exception.

 

The South African Appellate Division has ruled emphatically that there can be liability in this situation. See also Bayers SA Ltd v Frost 1991 (4) SA 559 (A).

Negligent misstatements causing purely pecuniary loss

Where D makes a negligent misstatement that ends up causing purely economic loss to P, the question is whether D will be held liable for the loss.To allay fears of limitless liability (the spectre of exposing D to “liability in an indeterminate amount to an indeterminate time to an indeterminate class”)the question that will be asked is whether there is a legal relationship between the parties which create a legal obligation on the part of D not to give misleading information or advice.

 

Where a person suffers physical harm to his person or property and resultant patrimonial loss by acting upon a negligent misstatement, no issue of wrongfulness arises. In such a case, provided there was a cause and effect relationship between the negligence and the physical harm, D’s conduct will automatically be deemed to be wrongful and the loss will be recoverable.

 

Where there is an issue of wrongfulness is in cases where there is no physical harm or damage but only pecuniary loss.

 

Because of fears of liability in this context in an indeterminate amount to an indeterminate number of persons over an indeterminate period arising out of the volatile character of words and statements and their potentiality for reaching many people, our courts have adopted a test for causing purely pecuniary loss by negligent misstatements which imposes further restrictions on top of the negligence criterion. This requires reference to legal policy considerations.

 

In Taunton Enterprises (Pvt) Ltd & Anor v Marais 1996 (1) LRZ 527 (H) Ps bought a second-hand motor car from D, who made it clear that he was selling the car on behalf of someone else. Before buying the car P2 asked D to check the car’s provenance to ensure that it was not stolen. D agreed to do so and subsequently assured Ps that he had checked with the Police in South Africa, Botswana and Zimbabwe and was satisfied that the car was not stolen. His checks were not thorough enough, however. Ten months after the sale, evidence came to light that the car had been stolen in South Africa. To avoid losing it, Ps agreed to buy it from the true owner for R70 000. Ps sued D for damages in the sum of R70 000, alleging that he had caused Ps loss by a negligent misstatement that the car was not stolen.

The court held that in determining whether or not a person was under a duty of care not to make an incorrect statement, the following essential elements should be looked for:

  • P should have made a serious inquiry of D, or sought important information from him, on a matter relating to a business or professional transaction whose nature he revealed to D.
  • D should have voluntarily assumed the responsibility of providing P with correct information on the subject-matter of his inquiry.
  • D should have known, from the nature of the transaction, that the inquiry was serious, that the information was wanted for a serious purpose, and that P intended to rely and act on the answer.
  • D need not have been in the business of giving advice on the matters sought, nor need he have held himself out to possess special skill or competence in those matters.
  • D should have made the misstatement to P without a disclaimer of responsibility for or qualification of its accuracy.
  • P should have relied and acted on the misstatement, and should have suffered loss as a result.
  • It should have been reasonable in the circumstances of the case for P to rely and act on the D’s misstatement.

 

In Masiya & Anor v Sadomba & Anor HH-28-12 the court held that the question of whether a legal duty of care arises in a particular situation of negligent misrepresentation has to be approached in two stages: (a) as between the alleged wrongdoer and the person who has suffered damages, whether there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises; and (b) if there is, are there any policy considerations which ought to negative or reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.

 

In Murimba & Anor v Law Organization (Pvt) Ltd & Ors HH-265-10 the court held that for an action based on negligence to succeed it is necessary for P to prove patrimonial loss, provided the damages are not too remote. P must therefore allege and prove the causal connection between the negligent act and the damages suffered. An action will lie for damages based on negligent misstatements only if D owed a duty of care in making the statement – for example, by reason of a contractual relationship between the parties. P must allege facts upon which wrongfulness can be inferred. Wrongfulness on the part of D may then constitute a breach of a duty of care. P must, however, allege the particular duty of care owed and the act or omission which is the basis of his cause of action. Where P relies on the breach of a duty of care, P must set out the facts that could or should have been foreseen by D. When P is seeking relief based on the basis of negligence P has an onus to establish that a reasonable person in the position of D would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss and would take reasonable steps so as to guard against such an occurrence and that the defendant failed to take such steps.

 

In such cases the following factors are taken into account:

 

  • the information was desired for a serious purpose;
  • the recipient intended to rely on the information;
  • if the information was erroneous the recipient would suffer loss; and
  • the relationship of the parties, arising out of contract or otherwise, must be such that in morals and good conscience the recipient had the right to rely upon the other for information and the giver of the information owed a duty to give it with care.

 

There are two main types of cases of negligent misrepresentation that can arise:

 

  • Where the misrepresentation is made to the person who suffers the loss;
  • Where persons suffer loss as a result of relying on a misrepresentation made to anotherperson

 

Where the misrepresentation is made to the person who suffers the loss

An example of this situation is where P is considering extending credit facilities to X and approaches D an accountant and requests D to ascertain the creditworthiness of X. D informs P that he has carried out a check and has ascertained that X’s financial position is sound. P extends credit facilities but soon thereafter X goes insolvent and P loses the money he gave to X on credit. A similar example would be P, asks D, his accountant, whether he should invest money in a certain corporation. D says the investment would be a good investment. Acting on D’s advice, P invests in the company. The company goes insolvent soon after P had invested in it and P loses the money he has invested. In these circumstances, D would be liable to P if a reasonable accountant would not have given the advice to P that D gave, as the reasonable accountant would have known of the bad financial position of the company or would have found it out had he taken reasonable care.

 

Here the loss is specific to P and to make D liable would not open up the floodgates to a multiplicity of actions. Still nonetheless, the question will be asked if the nature of the relationship between the parties was such that there was a legal duty on D not to cause P financial loss by negligently misinforming P by making a misstatement to him.

 

In Wood v Northwood Service Station 1974 (1) RLR 49 (G) P, a customer at a garage, asked the garage to value his car. The garage negligently told him that the engine was a write off and it would be uneconomic to repair it. Acting on this erroneous advice, P sold the vehicle for a small price but the buyer, after carrying out minor repairs, was able to sell it for a much bigger price than what he paid. The court held the garage liable for the loss suffered. The advice had been required for a serious purpose and the relationship between the parties was such that the garage had a legal duty to avoid giving erroneous advice.

 

In Autorama (Pvt) Ltd v Farm Equipment Auctions 1984 (1) ZLR 162 (H) an auctioneer made a negligent representation that a car which was being sold was not subject to a hire purchase agreement.This resulted in the purchaser of the car suffering financial loss.

 

In Stanbic Bank Zimbabwe Ltd 2007 (1) ZLR 398 (H) the bank had opened the account for the customer on the basis of a recommendation by D. The customer then defrauded the bank. The bank then sued D for the financial loss it has sustained.  The court decided that a legal duty of care would arise in this situation where there is a legal relationship between the parties which would create an obligation on the part of D to exercise such duty in relation to P. In the present case there was no such relationship and in any event the bank itself was at fault in sustaining the loss.

In Masiya & Anor v Sadomba & Anor HH-28-12 was a property consultant who was employed by a firm of estate agents. The property consultant had introduced a purported seller of a piece of land to the estate agent. P then sought to buy the piece of land through the estate agent. P paid the money for the sale to the estate agent which then released it to the purported sellers. It then turned out that the sellers were not the owners of the land. P then sued the estate agent and the property consultant for the financial loss he had suffered.

 

The estate agent had assured Ps that he was a professional who would protect their interests and not allow them to be defrauded meant that he therefore owed them a duty of care. Accordingly, as between the Ds and the Ps, there was created a sufficient relationship of proximity such that in the reasonable contemplation of the former, negligence or carelessness on their part might be likely to cause damage to the latter. Every person has a right not to be injured in their property by the negligence of another. The transaction in the instant case took place at a time when the real estate industry was awash with prospective innocent purchasers being conned of their hard earned money by fraudsters who thrived on the innocence or gullibility of the former. Where, therefore, a purchaser entrusts his money to a professional estate agency or property consultant who assures him that the money will be safe, a duty of care is thereby established. If the estate agency negligently breaches the duty of care so created, it must be held liable in damages for the ensuing harm where a reasonable person would have foreseen the danger and guarded against it. The standard practice, in conformity with the actions of a reasonable person in the field of real estate, is releasing the cash against transfer, not against mere signing of the necessary transfer papers. When the fly by night sellers in this case proposed to the estate agent to insert the release clause, without having even produced the original title deeds, D1 should have been put on his guard and should have reasonably foreseen the likelihood of loss being occasioned to the plaintiffs if the purchase price were released before the actual transfer of the stand had gone through.

It was thus not only equitable but good law that in the real estate industry, an estate agent or property negotiator/consultant can be held liable for negligently breaching a duty of care which occasions financial loss to a client and an estate agency is vicariously liable for the negligence of its property negotiator.

 

In Murimba & Anor v Law Organization (Pvt) Ltd & Ors HH-265-10 an estate agent was engaged by a person to sell a certain stand in Harare.The purported seller in fact did not own the stand and acted fraudulently in claiming to be the owner, having obtained documents in the name of another person. The estate agent then advertised the sale of the stand, giving details of its location.Ps visited the stand and went to the estate agent and entered into an agreement to buy the stand. Having paid transfer fees, Ps then learned that the stand belonged to another person.The fraudster could not be located, so Ps sued the estate agent for the financial loss sustained.

 

The court decided that the estate agent was not liable. There was no suggestion that the estate agent was a party to the fraud. Whilst a principal is liable for the fraudulent misrepresentations of his agent, an agent is not liable for the fraudulent misrepresentations of his principal.

 

Where persons suffer loss as a result of relying on a misrepresentation made to another person

 

For example, if the audit creates a completely false picture of the company as being financially sound when it is in deep financial trouble, can current shareholders or new shareholders who invest money on the strength of the audit report sue the auditors for the losses they have suffered? Does it make any difference that the audit report was included in a prospectus soliciting share investment and the auditors knew that the audit report was going to be put in the prospectus?

 

The courts in England and South Africa have been somewhat reluctant to make auditors liable to persons other than those who engaged them to carry out the work. The reason for this reticence has been the fear of opening the floodgates to a huge scale of liability.

 

In Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A) the bank had made a misleading report upon the financial position of a company.P had relied on the report and had lost money by giving credit to the company. The bank was held liable for the loss sustained by P.

 

See also Al Saudi Banque v Clarke Pixley [1989] 3 All ER 361 (Ch D); Caparo Industries v Dickman [1990] 1 All ER 568 (HL).

Purely financial loss caused other than by negligent misstatements

 

In this category D has not caused economic loss by a negligent misstatement, but instead he or she has negligently taken certain action that has resulted in purely financial harm to P.

 

One example of a situation that can arise is the following: D is digging a ditch near a factory belonging to P. Whilst digging this ditch D negligently severs the power cable supplying P’s factory with electricity and the factory cannot resume operations until the cable is repaired. During this time, P suffers financial loss due to lack of production. The question here is whether D is liable for the financial loss that has been suffered by the factory. What if the power cable which is severed supplies power to an entire factory area and numerous factories in that area suffer loss of production because they have no electricity?

 

In respect of cases falling into this category, the courts have again adopted the approachthat there must be some further limiting criteria additional to the criterion of negligence because in some cases liability could be almost limitless if such further restrictions are not imposed. The courts have stressed that liability for purely economic loss must be confined within reasonable and manageable bounds and the court must decide in each case on the basis of policy considerations whether there should be liability or not. The courts have stressed that there must be finality in litigation against the defendant and that the defendant must not be exposed to a potentially endless succession of further claims which will result in crushing damages being imposed upon him or her.

 

The main policy considerations that are to be taken into account in such cases were set out in the case of Music Room (Pvt) Ltd v ANZ Grindlays Bank Zimbabwe Ltd 1995 (2) ZLR 167 (H) at 168. These include:

 

  • whether the loss is finite;
  • whether the number of potential claimants is limited and identifiable;
  • whether the success of the action will result in a multitudinous train of claims for incalculable loss;
  • whether D is to be regarded as possessing skills and special responsibility in the particular commercial activity in which he is engaged;
  • the desirability of maintaining long-established principles of law which are currently being acted upon;
  • whether there is need to place the ground of action within the extended scope of the lex Aquilia; and
  • the conduct of P.

 

In Tobacco Finance v Zimnat Insurance 1982 (1) ZLR 47 (H) the court stated only where the loss is specific and will not expose D to a multiplicity of claims is the loss recoverable. P must not simply be part of an indeterminate or unascertained class of potential claimants.

 

Cases where no potentiality for multiplicity of claims

 

In Tobacco Finance v Zimnat Insurance 1982 (1) ZLR 47 (H) a farmer’s wheat crop was insured by D against loss or damage. The crop was damaged by hail.A company had advanced loans to the farmer and had registered a stop order under legislation. It had then ceded its claims against the farmer to P.D negligently paid the insurance directly to the farmer instead of to Registrar of Stop Orders as required under legislation. It failed to check whether a stop order had been so registered.The farmer disappeared with the money. P, whose loan to the farmer was secured by the insured property, suffered economic loss as it could not recover the loan.D was held liable to P. The loss was finite and specific and there was no public policy reason for denying P damages.

 

In Zimbabwe Banking Corp v Pyramid Motor Corp 1985 (1) ZLR 358 (S) a cheque drawn by Pyramid that was endorsed ‘account payee only’ and ‘not negotiable’ was stolen. A person other the payee presented the cheque to the collecting bank for payment and the bank paid out to this person despite the restrictive endorsement. P suffered purely economic loss as a result. The court held that the bank was liable to P. There was no danger of opening Pandora’s Box. The parties were limited by the endorsement and there would not be a multiplicity of claims. The recognition of this duty would not wreak havoc in the commercial world.(In Rhostar (Pvt) Ltd v Netherlands Bank of Rhodesia 1972 (1) RLR 56 (G) the bank again negligently paid out on a restrictively endorsed cheque and P suffered economic loss. The bank was held liable. The court, however, failed to address the issue of wrongfulness in this case. (See 1972 Annual Survey of SA Law pp 134-136).)

 

In Coronation Brick v Strachan Construction 1982 (4) SA 371 (D) D negligently severed as power cable to P’s brickworks. D knew that this cable supplied P’s brickworks. P suffered loss of profits as he was unable to make bricks whilst the power was off. D was held liable. The loss was specific and finite. D was liable.

 

Cases where exist no potentiality for multiplicity of claims but legal policy reasons for denying liability

 

In Border Timbers Ltd v Zimbabwe Revenue Authority 2009 (1) ZLR 131 (H) P claimed that he had suffered economic loss as a result of incorrect calculation of duty by the Zimbabwe Revenue Authority. The court ruled that inquiry as to wrongfulness in situations where P has suffered pure economic loss as occurred in this matter involved a determination of the existence or otherwise of a legal duty owed by D to P to act without culpa. The inquiry into whether or not D owed P a legal duty would be a matter for judicial judgment, involving criteria of reasonableness, policy and, where appropriate, constitutional norms. Having approached the court for an order redressing pure economic losses, P had to persuade the court to make a value judgment to the effect that D owed P a duty not to cause it loss through the incorrect calculation of duty. No evidence was led as to what a reasonable collector of revenue would have done in the circumstances and whether to hold D liable in the circumstances of the matter would promote any social or economic norm that is consistent with current policies on revenue collection.

 

Cases with potentiality of multiplicity of claims

In Music Room (Pvt) Ltdv ANZ Grindlays Bank Zimbabwe Ltd 1995 (2) ZLR 167 (H) the court decided that the bank should not be held liable as this would open the floodgates to such a multiplicity of actions. This case involved a situation where an employee of the bank negligently handed over a chequebook belonging to one of its customers, the plaintiff company, to a person falsely claiming to be a messenger of the customer and one of these cheques was then used to defraud the plaintiff company. The court decided that the bank was not liable as it would not be in the interests of society to impose a legal duty of care on the Bank in respect of economic loss suffered by P. The legal convictions of the community did not demand that this negligent act be regarded as unlawful. A reasonable person is likely to say that both parties were victims of fraud and the loss should lie where it falls. P’s employee should have acted with very much circumspection in the circumstances. No compelling reasons existed in this case for extending the scope of the lex Aquilia so as to impose a legal duty of care on a drawee bank towards a third party who suffers economic loss as a result of its negligent act of giving its customer’s cheque book to a wrong person who uses a cheque therefrom to defraud the third party, thereby causing him economic loss.

 

In Shell & BP (Pvt) Ltd v Osborne Panama 1980 (3) SA 653 (D) D negligently damaged a buoy that was used by ships transporting oil to offload the oil. This led to a number of ships being delayed in the offloading of oil. P was one of the parties who suffered such loss because he was liable to the charterer for damages for any delay in delivering the oil. The court held that D should not be held liable as P was merely one of an unascertained class of potential sufferers and if he was held liable to P there could be a possible multiplicity of claims.

 

In Weller & Co v Foot & Mouth Disease Institute [1965] 3 All ER 560 D negligently allowed a virus to escape from its Institute and this led to the imposition of a quarantine of cattle in the surrounding area. Ps, who were cattle auctioneers, suffered economic loss as they were unable to conduct any cattle auctions. The court decided that the Institute was not liable because if liability were to be imposed it would open the floodgates to a multiplicity of actions from such persons as butchers, dealers in dairy products, suppliers of cattle feeds, etc.

 

In Franschoekse Wynkelder (Ko-operatief) Bpk v SAR& H 1981 (3) SA 36 (C) D had sprayed vegetation along railway line with poisonous weedkiller. The soil adjacent to farms growing vines was contaminated and these farms were not able to supply grapes to P’s wine making co-operative. The court held that even though D was negligent it was not liable to P as there was no special relationship between D and P and to impose liability would open up floodgates to indeterminate liability in this case.

 

In Bank of Credit and Commerce Zimbabwe Ltd v UDC Ltd 1990 (2) ZLR 397 (S) a finance house had negligently agreed to finance the sale of a non-existent farm and had issued a cheque in the name of the alleged seller, Mixed Tums (Pvt) Ltd. No such company existed. The person who received the cheque paid it into a bank account which he operated in the name of his company, Mixed Tans (Pvt) Ltd, the bank having failed to notice the discrepancy in the names even though the cheque was crossed and endorsed “not negotiable account payee only”. The finance house then sued the bank for the amount of the cheque. The court held that the finance house was negligent to greater degree than the bank.

 

The court held that the collecting banker for the cheque was negligent and could have prevented the loss through fraud if he had properly examined the cheque and detecting the discrepancy in the names even though the cheque was crossed and endorsed “not negotiable account payee only”. The collecting bank was held partially liable for the financial loss that occurred.

 

In Biddulphs Removals & Storage (1981) Pvt Ltd v Standard Chartered Bank Ltd & Anor 1996 (2) ZLR 206 (H) P issued a cheque to a fuel company to pay for petrol products it had bought. The cheque was stolen before it reached the fuel company and an endorsement was forged on the back of the cheque to make it look as if the fuel company had endorsed the cheque to the person named in the endorsement. The cheque was deposited into a building society account. The building society cleared the cheque and banked it with Standard Bank, who was their own bankers as well as P’s bankers. The bank then cleared the cheque, as a consequence of which P’s account with the bank was debited. The person who had stolen the cheque was then able to withdraw money from the building society account. P sued the building society and bank to recover the amount it had had to pay the fuel company to make up for the lost cheque.

 

The court held that in terms of s 59 of the Bills of Exchange Act [Chapter 14:05] a banker is protected in all cases where in good faith and in the ordinary course of business, he pays out to a person whose title to payment purports to be derived from an endorsement, whether or not the endorsement is genuine. If he pays out in good faith he will not be liable even if he has been negligent. However, the effect of the proviso to this section is that only the banker on whom the cheque is drawn is protected; the collecting bank is not protected. A collecting bank is liable for purely economic loss that is caused as a result of the bank failing to exercise reasonable care to avoid causing loss to the owner of a stolen cheque.As banks and building societies are aware of the incidence of fraud involving forged cheques, they are obliged to adopt reasonable measures to guard against such fraud. There is an even greater need for care in respect of third party cheques. Where there are facts or circumstances which would lead a reasonable banker to inquire further, it would be negligent to fail to make such further inquiries. Taking into account the duties of the building society and the bank when dealing with a cheque of this nature and taking into account the information the respective tellers had before them when handling the cheque, the building society had been negligent. It is a moot-point whether the bank in these circumstances should have exercised more care than it did. In this sort of situation, the building society will usually have considerably more information than the bank and must therefore appreciate that the bank will rely to a large extent on the fact that the building society would have made preliminary investigations and satisfied itself of the entitlement of the account holder to the proceeds of the cheque. The building society had failed to exercise reasonable care in the handling of the cheque to ensure that the account holder was entitled to the proceeds before the cheque was referred to the bank and had negligently allowed the forged cheque to be deposited with it. The building society had been the proximate cause of the loss and was therefore liable under the Aquilian action for the economic loss sustained by P. The bank was not liable.

 

Other South African cases

The Oil Rig South Seas Driller: Sheriff of Cape Town v Pride Foramer SA & Ors 2001 (3) SA 841 (C); Pinshaw v Nexus Securities (Pty) Ltd & Anor 2002 (2) SA 510 (C); Hirschowitz Flionis v Bartlett & Anor 2006 (3) SA 575 (SCA); Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA); Thatcher & Anor v Katz & Anor 2006 (6) SA 407 (C); Steenkamp NO v Provincial Tender Board, Eastern Cape 2006 (3) SA 151 (SCA); Kantey & Templer (Pty) Ltd & Anor v Van Zyl NO 2007 (1) SA 610 (C); Minister of Finance & Ors v Gore NO 2007 (1) SA 111 (SCA); Holtzhausen v Absa Bank Ltd 2008 (5) SA 630 (SCA); Page v First National Bank & Anor 2009 (4) SA 484 (E); mCubed International (Pty) Ltd & Anor v Singer & Ors NNO 2009 (4) SA 471 (SCA); South African Post Office v De Lacy & Anor 2009 (5) SA 255 (SCA); Fourway Haulage SA (Pty) Ltd v SA National Roads Agency Ltd 2009 (2) SA 150 (SCA); Delphisure Group Insurance Brokers Cape (Pty) Ltd v Dippenaar & Ors 2010 (5) SA 499 (SCA); AB Ventures Ltd v Siemens Ltd 2011 (1) SA 586 (GNP).

 

English cases:

SCM Ltd v W J Whittal  [1970] 3 All ER 245 cutting of power supply to factory; Dutton v Bognor Regis Building Co & Anor [1972] 1 All ER 462 (CA) builder negligently laying foundations - liability to subsequent purchaser; Spartan Steel Ltd v Martin & Co Ltd [1972] 3 All ER 557 (CA); [1973] QB 27; [1972] 3 WLR 502 cutting of power supply to factory; Caltex Oil (Australia) v The Dredge “Willesmstadö” [1976] 136 CLR 429; Junior Books Ltd v Veitchi Co Ltd [1982] 3 All ER 201 (HL) sub-contractor (D) for builders constructing a factory for P negligently laid a factory floor. The entire floor had to be re-laid and P claimed from D the cost of replacement and consequential economic loss such as the cost of moving machinery and loss of profits. The court held that the relationship between D and P was a proximate one and that P could claim in delict against P.

 

Third parties injured

Sometimes third parties who are in contractual relationships with injured parties suffer purely economic loss. For example, if D carelessly burns down A’s factory, can A’s workers sue D for damages for loss of wages if they are put out of work as a result of the destruction of the factory? Or if P, who owns the factory, is killed in a motor accident due to the carelessness of D and P’s factory closes as a result, can P’s workers sue for damages for their lost wages? Or if P’s employee A is negligently injured by D, and P has to pay A whilst he is off work and has to pay someone else to do A’s work whilst he is away, can P sue D for his economic loss? It would seem that in all these cases the indirect economic loss to the third parties is not recoverable.

 

See Union Government v Ocean Accident & Guarantee Corp 1956 (1) SA 577 (A).When his employee was injured, the employer claimed damages for the loss of services of employee. This action failed. Cottle v Stockton Waterworks Co (1875) LR 10 QB 453; Spartan Steel Ltd v Martin & Co Ltd [1973] 1 QB 27 (CA) at 36; Pickard v Bindura Haulage HH-318-84; Windmill v Minister of Justice & Anor HH-635-87 The Registrar of Stop Orders failed to register a stop orders submitted for registration; Combrinck Kliniek v Datsun (Pty) Ltd 1972 (4) SA 185 (T) Defects in a vehicle. The cost of repairs was claimed from the manufacturer. The action was unsuccessful. It is arguable that this case is wrongly decided:see the contrary decision in Colgate 1990 (2) SA 520; Greenfield Engineering v NKR Construction 1978 (4) SA 901 (N) payment was made by cheque as requested but the cheque, which was inaccurately made out, was stolen and payee suffered loss. P’s action was successful; E G Electrical v Franklin 1979 (2) SA 702 (EC) D negligently certified that electrical wiring in a building was in sound condition. The purchaser of the home suffered loss. His action was successful.

 

Illegitimate trading practices

           Introduction

The right to trade is a fundamental right in terms of the Constitution. Section 64 provides that every person has the right to carry on trade, but the practice of trade may be regulated by law.

 

The law relating to trade competition was developed within a capitalist economic system and very much reflects the ideology of that system. Thus, for instance, as robust trade competition is an integral part of the whole capitalist economy, the law adopts the stance that it should not normally interfere when such trade competition occurs even if there is fierce trade rivalry resulting in financial loss. Competition in the market place is supposed to produce beneficial results; those who produce the best quality products at the most reasonable products will attract customers. Monopolistic tendencies are thus discouraged. The Competition Act [Chapter 14:28] establishes an Industry and Trade Competition Commission whose functions include the control and prevention of monopolies and restrictive trade practices.

 

However, certainglaring excesses within the field of trading are categorised as being ‘unfair’ and illegal and the law will provide remedies when such practices are utilised. Section 64 of the Constitution guarantees the right to trade but it also provides that this right may be regulated by law.

 

As these actions are brought under the Aquilian action the fault element can be either intention or negligence. Thus in the case of Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W) the court stated that dolus is not an essential element of wrongfulness in a claim for unlawful competition.

 

The loss caused by unfair trade competition is economic loss arising from loss of goodwill. With the situations under trade competition there is no prospect of indeterminate liability; the loss will be specific to P. Wrongfulness here is used to define the types of trade competition that will be considered to be illegitimate.

 

This actions in this area “fall within the extended field of the application of the lex Aquilia.” Neethling et al The Law of Delict (6th Ed) p 310.In Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn-Ghwano (Pty) Ltd & Ors 1981 (2) SA 173 (T) the court said that the law of South Africa recognises and grants a general action in the case of unlawful competition based on the principles of thelex Aquilia.

 

           Is there a closed list of unlawful trade practices?

Trade competitiors are continually devising new ways of unfairly competing with their rivals. Thus in South Africa, the approach of the courts has been to provide that it is not necessary to pigeon hole the remedy in one of the previously recognised categories. A general remedy for unlawful competition is available based upon public policy.In Bress Designs (Pty) Ltd v C Y Lounge Suite Manufacturers (Pty) Ltd & Another 1991 (2) SA 455 (W) at 473F the judge said this-

As a general rule every person is entitled freely to carry on his trade or business in competition with his rivals. The competition must, however, remain within lawful bounds. If it is carried on unlawfully in the sense that it involves a wrongful interference with another's rights as a trader that constitutes an injuria for which the Aquilian action lies if it has directly resulted in loss. In order to succeed in an action based on unfair competition the plaintiff must establish all the requisites of Aquilian liability, including proof that the defendant has committed a wrongful act. In such a case the unlawfulness which is a requisite of Aquilian liability may fall into a category of clearly recognised illegality or may consist of unfairness and dishonesty. The latter are to be determined with due regard to the boni moresand the general sense of justice of the community. Questions of public policy, like the importance of a free market and of competition in our economic system, may be relevant in a particular case. In short, the delict of unfair competition occurs where the competition is contra bonos mores.

 

In Sage Holdings Ltd & Anor v Financial Mail (Pty) Ltd & Ors 1991 (2) SA 117 (W) the court decided that the test for unlawful interference with business is the objective one of public policy. See also Schulz v Butt 1986 (3) SA 667 (A).

 

Factors that are taken into account by the South African courts when deciding whether a trade practice will be deemed to be unlawful-

  • whether the practice is unfair and dishonest;
  • the motive of the actor;
  • the morals and ethics of the business sector in question;
  • whether parties are competitors;
  • the importance of a free market and strong competition in the economic system,

 

In Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn-Ghwano (Pty) Ltd & Ors 1981 (2) SA 173 (T) the court said that the norm to be applied in such a case is the objective one of public policy. This is the general sense of justice in the community, theboni mores, manifested in public opinion. In determining and applying this norm in a particular case, the interests of the competing parties have to be weighed, bearing in mind also the interests of society, the public weal. As this norm cannot existin vacuo, the morals of the market place, the business ethics of that section of the community where the norm is to be applied, are of major importance in its determination.

 

           Fraudulent and negligent advertising

If a customer sustains financial loss by relying on fraudulent advertisement or an advertisement which is negligently misleading, the customer will have an action for damages.In the first schedule of the Competition Act there is this list of misleading advertisement which constitute unlawful trade practices:

 

2. Misleading advertising

(1) For the purposes or in the course of any trade or business, publishing an advertisement—

(a) containing a representation which the publisher knows or ought to knows false or misleading in a

material respect; or

(b) containing a statement, warranty or guarantee as to the performance, efficacy or length of life of anycommodity, which statement, warranty or guarantee the publisher knows or ought to know is not basedon an adequate or proper test thereof; or

(c) containing a statement, warranty or guarantee that any service is or will be of a particular kind, standard,quality or quantity, or that it is supplied by any particular person or by a person of a particular trade,qualification or skill, which statement, warranty or guarantee the publisher knows or ought to know isuntrue.

(2) For the purposes of subparagraph (1), a representation, statement, warranty or guarantee expressed on orattached to an article offered or displayed for sale, or expressed on the wrapper or container of such an article,shall be deemed to have been made an advertisement.

 

In Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd (1) 1988 (2) SA 350 (W) P and D,both toothpaste manufacturers, started advertising campaigns. P alleged that certain of the claims made by D for its product were false and misleading, and that D's conduct had been wrongful.The court held that, while commercial warfare was not proscribed by our law, there were certain forms of conduct, whether or not the conduct complained of was deliberate, which, when tested against the boni mores of the market place, remained unacceptable, especially where the remedy sought by P was only an interdict.Dolus is not an essential element ofwrongfulness in an action where P relied upon unlawful competition and P is still entitled to a remedy where the deception was innocent.

 

In Post Newspapers (Pty) Ltd v World Printing and Publishing Co Ltd 1970 (1) SA 454 (W) the proprietor and publisher of a newspaperapplied for an interim interdict restraining the proprietor and publisher of another newspaper, The World, which competed with it for advertising, from continuing to circulate certain documents. A report was put out designed to persuade the recipients to place advertising with the respondent's newspaper instead of that of the applicant, on the grounds that:(a)the documents misrepresented the relative merits of the rival newspapers; these misrepresentations were false to the knowledge of the respondent and were made maliciously; they were calculated to cause the applicant patrimonial loss; and consequently they constituted an injurious falsehood;(b)the respondents had published material based ondatawhich they knew to be unreliable; that this would have the effect of filching advertising from the applicant; and that this conduct amounted to unfair competition.

The court held that as the applicant had failed to show that any statement in the reports was false, that it had failed to make out a case on the first ground. It also held that as it did not constitute 'unlawful competition' merely for a seller to express opinions in advertising material which he did not honestly hold, that applicant had also failed to make out a case on the second ground.

 

Injurious falsehood (disparagement of P’s business or P’s goods)

Whereas with fraud the false statement is made to P who acts upon it to his detriment, with this delict the false statement about P is made to a third party or parties and the third party or parties act upon the statement thereby causing financial loss to P.

 

This delict is committed when D intentionally published to a third party a statement concerning P or P’s business which D knows or suspects is false intending that the third party will act upon the statement and that P will be caused financial loss. Thus, if a trade competitor of P deliberately spreads false stories about the nature of P’s products (e.g. that his aspirins will cause cancer or are poisonous) and P suffers loss as a result of his customers buying D’s products instead of his own, P will be able to claim damages or obtain an interdict against D.

 

Injurious falsehood can be committed in the context of comparative advertising. D is entitled to give a fair comparison of his or her product in comparison with those of his or her trade competitors, but if D deliberately lies about the characteristics of his or her competitors’ products, P can bring an action for unlawful trade competition.

 

In Standard Chartered Finance Ltd v Georgias & Anor 1998 (2) ZLR 488 (S) an employee of D finance company had told another company that P company was in financial trouble as a result of which company had withdrawn from a contract with P causing P financial loss. However, there was no evidence that the employee was acting in the course of his employment in making this statement and D company was not vicariously liable).

 

In International Tobacco v United Tobacco 1955 (2) SA 1 (W) agents of a tobacco manufacturer mounted a deliberate and malicious propaganda campaign to stop customers buying the cigarettes of a rival tobacco company. The prejudiced tobacco company was entitled to damages.

 

Passing off

This delict is committed when D, by means of a misleading name, mark or description or otherwise, represents that his business or merchandise is that of another, so that members of the public are misled. In other words, if D uses a business name which he is not entitled to use so that his business is mistaken for that of P’s and, in this way, he unfairly procures P’s customers, or D packages his goods in such a way that they are likely to be mistaken for P’s goods, P can obtain an interdict to prevent D continuing this practice and can claim damages for any loss which he has suffered as a result of the public being misled.

 

Passing off involves deception in the form of taking unfair advantage of a trade reputation that P has built up. In F W Woolworth & Co (Zim) (Pvt) Ltd v The Store & Anor 1998 (2) ZLR 402 (S)  the court said that the purpose of the action for passing off is to protect a business against misrepresentation by D that his business, goods or services is that of P or associated therewith.P must thus prove that D has misrepresented his business, goods or services as being those of P or associated therewith.

 

This action is a species of the Aquilian action. Although D may often have intended to deceive, negligence will suffice for liability. See Loubser and Midgley The Law of Delict in South Africa (2009) p 240;  Neethling et al in the Law of Delict p 310 footnote 292.

 

The test applied by the courts when deciding upon whether the similarity in trade name or packaging was likely to mislead is: is there a reasonable likelihood that members of the public would be deceived or confused into believing that D’s business or goods was that of P. In this regard, factors such as the nature of the businesses, how they operate and the localities in which they operate will be taken into account.

 

In National Food Ltd v Midlands Milling Co (Pvt) Ltd 1996 (1) ZLR 159 (H) the parties were both millers of grain products, including mealie meal. For over 25 years, the applicant had sold "super-refined" mealie meal in a light blue package which bore the brand name of "Pearlenta" and a logo consisting of a device of a red seal with the words "Red Seal" superimposed on it. Some years later, the respondent started to produce super-refined mealie meal. Initially this was marketed in a white pack. The respondent believed that this confused customers, as one of its other products was also marketed in a white pack, so the colour of the package was changed to blue. The super-refined meal was described on the package as "Pearl White". On the pack appeared a logo, consisting of the initials of the respondent (MMC), drawn in such a way as to resemble a coronet. The logo was dark blue in colour. The respondent argued that there was no difficulty in distinguishing the two brands. The court held that in order to establish a claim of passing-off, it was necessary to show that the defendant's get-up wascalculated to deceive, that is, that there was a reasonable likelihood that members of the public might be confused. The likelihood is a matter for the court to decide. The decision must not be surrendered to any witnesses. In considering whether the respondent's product was calculated to deceive or cause confusion, the court had to look not only at the distinctive features, but also at what the purchaser would be likely to be guided by, that is, the general appearanceand the whole get-up of the article. Where, as here, the colours of the containers were similar, but the prominent design marks were distinctively different, not only in shape but also in colour, there was no reasonable likelihood of confusion.

 

In Kellogg v Cairns Food Ltd 1997 (2) ZLR 230 (S) P was selling a breakfast cereal unde the name Froot Loops. The cereal was made of small rings of different colours. This product has sold well. D, a known competitor of P made a similar cereal, which consisted of circular individual cereals and marketed under the name Fruit Hoops. The court held that there was a reasonable likelihood that D’s product would confuse consumers and result in loss of the goodwill of P.

 

In F W Woolworth & Co (Zim) (Pvt) Ltd v The Store & Anor 1998 (2) ZLR 402 (S) the court stressed that this delict is only committed in relation to a business that has acquired goodwill. Goodwill is the totality of attributes that lure or entice clients or potential clients to support a particular business. As passing off harms the reputational element of goodwill, P must prove that he has acquired a business reputation associated with his business name. In the present case, P had failed to prove that it had acquired a trading reputation in its name or that there was a reasonable probability that members of the public would confuse the two businesses given the radically different character of their businesses.P must prove that D has misrepresented his business, goods or services as being those of P or associated therewith. In order to do this, he must establish that there was a reasonable probability that members of the public would be deceived or confused into believing that D’s business was that of P. In this regard, the court will take into account factors such as the nature of the businesses, how they operate and the localities in which they operate will be taken into account.

 

In Zimbabwe Gelatine (Pvt) Ltd v Cairns Foods (Pvt) Ltd 2003 (1) ZLR 352 (S) the court held that once a trade mark is registered it gives the registered owner of the trade mark an exclusive right to use it concerning the goods for which it is registered. Persons who purchase goods with the registered trade mark associate those goods with the owner of the trade mark. Use of the trade mark on goods other than those of the owner of the trade mark is an infringement generally referred to as “passing off”. It amounts to a misrepresentation. A person who believes his rights have been infringed can either proceed in terms of the Trade Marks Act if he has a registered trade mark, or at common law in an action for passing off. In this case, the respondent produced dog food in pellet form. The food was marketed under the name “kibbles”, which name had been registered as a trade mark. The appellant subsequently started to produce similar, but cheaper, dog food, which it also described as “kibbles”. The respondent complained of both passing off and infringement of a registered trade mark, and obtained an interdict preventing the appellant from using that name. The court held that the appellant was not entitled to manufacture a similar product and then give it the same name as that of the respondent’s product. There was no reason for the appellant to use the name “kibbles”; it could have used a different name for its product, the word not being descriptive of the dog food manufactured by the parties.

 

In Zapchem Detergent Manufacturers CC v Polaris Zimbabwe (Pvt) Ltd 2003 (1) ZLR 481 (H) the court held that the question was who has the right to the goodwill of a product manufactured by one person in one country and sold or marketed almost exclusively by another person in another country. Goodwill, the attracting force of an undertaking, is determined by a multiplicity of factors – the reputation of the undertaking, the fact that it is well-known, its creditworthiness but, more particularly, the undertaking’s locality, the personality of the entrepreneur or another person such as an employee who is connected with the business. However goodwill is created or however it comes into existence, it cannot be created or come into existence independently of or outside the context of an undertaking. The only situation in which a trader in the position of the respondent can acquire goodwill in respect of a product which is manufactured by another but sold by itself is where such a person is not a mere conduit for the goods of another but markets its own product under its own name. This was not the case here, as the packaging indicated that the goods were manufactured by the applicant.

 

In Unilever plc & Anor v Vimco Pvt) Ltd & Anor 2004 (2) ZLR 253 (H) the applicants for many years had been the registered owners of the trade mark “Vim”, which was the name given to a household scouring powder. That powder had been sold in this country for many years. The respondent company, Vimco (Pvt) Ltd, sold several products, among them a scouring powder. The applicants sought an order interdicting the respondent from infringing its trade mark and from passing off its goods as those of the applicants. The application was granted as the court found that the trade mark used by first respondent so nearly resembled the applicants’ registered trade mark as to be likely to deceive or cause confusion.

 

In Polaris Zimbabwe (Pvt) Ltd v Zapchem Detergent Mfrs CC 2004 (2) ZLR 351 (S) the court held that the owner of goods, or the person who has proprietary rights in the goods, or the assignee of the goods, has the locus standi to sue for passing-off if his rights are infringed by the act complained of. The only situation in which a trader in the position of the appellant could acquire goodwill in respect of a product which is manufactured by another but sold by itself is where such a person is not a mere conduit for the goods of another but marketed its own product under its own name. This was not the case here, as the packaging indicated that the goods were manufactured by the respondent.

 

In Royal-Beech-Nut Ltd t/a Manhattan Confectioners v United Tobacco Co Ltd t/a Willards Foods 1992 (4) SA 118 (A) the court stated that passing off involves a trader adopting the trade mark of his rival or one so closely resembling it that his goods are those of or connected in some way with those of his rival,a trader. P is required to establish reputation in his trade mark, i.e. that trade mark has become associated with goods emanating from P and thus distinctive of his goods Where traders are trading in disparate goods but are using very similar unregistered trade marks, the court will not readily conclude in such circumstances that D's products will be regarded as coming from P in the absence of cogent grounds to justify such conclusion. What must be gauged is the reaction of ordinary members of purchasing public to the goods. On the facts of the present case it was not likely that a substantial portion of the public would be confused by D's use of the name in question.

 

In Adcock-Ingram Produces Ltd v Beecham SA (Pty) Ltd 1977 (4) SA 434 (W) the court refused to grant an interdict to stop D from using a design for its bodyspray with a domed closing device similar to that of a competitor because the applicant had failed to show that the design had come to be associated with P’s product and there was any likelihood that the consumer public was be deceived or confused into thinking that D’s product was that of P.

 

In Capital Estate and General Agencies (Pty) Ltd & Ors v Holiday Inns Inc 1977 (2) SA 916 (A) the court said that although passing off normally applies to trade completion where the competitors are operating in common fields of activity, the delict can sometimes be committed even though the competitors are not operating in common fields. In this case, a well-known hotel group sought to restrain a property developer from using its trade name for a shopping centre and a complex of duplex flats. Although the parties were involved in dissimilar trading activities there was a likelihood that members of the public would be deceived or confused by the misrepresentation that the activities of the parties were associated. There was no potentiality of diversion of custom because the parties were involved in different trading activities but the offending conduct involved misappropriating a trade name and this could result in harm such as diluting the commercial value of the trade name and harm to its reputation.

 

In Stellenbosch Wine Trust Ltd & Anor v Oude Meester Group Ltd 1972 (3) SA 152 (C) it was stated that the Court has power to interfere where there has been a calculated attempt to pass off goods as those of a competitor in trade, even though the latter's goods are not yet on the market.

 

In Federation International De Football & Ors v Bartlett & Ors 1994 (4) SA 722 (T) the court dealt with a situation involving the concept of character merchandising (the use of popular names, characters and insignia in order to boost sales of those consumer products in relation to which they are used).

 

In Lorimar Productions Inc & Ors v Sterling Clothing Manufacturers (Pty) Ltd 1981 (3) SA 1129 (T) a company used characters, logos, names etc from the film produced outside South Africa in connection with the sale of its products and services. The agent for the film company applied for a temporary interdict against respondents restraining them from using these characters etc. The court held that the applicants had not created an association in the public’s mind between the television film and the goods or services of the respondents. The requirement of established goodwill for the passing off action had not been met. There was no evidence that public was likely to be deceived. Character merchandising not so well-known in South Africa that it can be assumed that the person in the street has knowledge thereof.

 

In Zambezi Conference of Seventh Day Adventists Church v Seventh Day Adventists Association of Southern Africa 2000 (1) ZLR 179 (H) the court held that the principles of a passing-off action apply also to the unauthorised use of the name of a non-trading body. Thus a mother church which was a long established and well-known religious body with branches world-wide was entitled to the protection of the law insofar as its name is concerned.

 

See also Blue Bell Inc v Lennard Clothing Manufacturing (Pvt) Ltd HH-54-84 (Trade mark registered but not presently trading in Zimbabwe); Bon Marchệ (Pvt) Ltd v Brazier & Anor S-68-84; Rixi Taxis Owners’ Association v Machidza HH-203-86; Saybrook (Pvt) Ltd & Anor v Girdlestone S-119-86; and Rixi Taxi Co-op v Matigi & Ors HH-451-88; Sea Harvest Corporation v Irvin and Johnson 1985 (2) SA 355(C); Capital Estate and General Agencies (Pty) Ltd & Ors v Holiday Inn Inc & Ors 1977 (2) SA 916 (A) (Housing estate developers unlawfully using name Holiday Inn).

 

As regards registration and protection of trade names and trade descriptions by legislation, the provisions of the Trade Marks Act [Chapter 26:04],the Industrial Designs Act [Chapter 26:02] and the Copyright and Neighbouring Rights Act [Chapter 26:05] are the most important pieces of legislation. See also sections 20 and 21 of the Companies Act [Chapter 24:03] regarding non-registration and de-registration of company names identical to or so similar to other company names that the public is likely to be misled.

 

Stealing or disclosing trade secrets

 

On legislative protection of inventions and designs, see the Patents Act [Chapter 26:03], and the Industrial Designs Act [Chapter 26:02]. See also the Copyright and Neighbouring Rights Act [Chapter 26:05].

 

The basis of the delictual action that has been developed in South Africa is the lex Aquilia. Where P by his skill and knowledge has made a certain discovery or invented a formula or designed a certain system and D, by surveillance or by extracting information from an ex-employee of P’s, has gained information about this invention or design which P was keeping confidential, there may be an action for an interdict or damages.

 

In Harvey Tiling Co (Pty) Ltd v Rodomac (Pty) Ltd 1977 (1) SA 316 (T) P company had purchased from a foreign company the patent in the manufacture of a tile. One of its employees, R, had been instrumental in perfecting the use of such tile. R had left P's employ and became instrumental in forming the first defendant company of which he became a shareholder and its managing director. The rival company manufactured a tile in competition with that manufactured by P. The Court found that R had used confidential information gained while employed by P and had used such knowledge and know-how in the manufacture of the competitive tile. An interdict was granted against the defendants and the issue of damages was postponed for further determination of quantum.

 

In Harchris Heat Treatment Pty Ltd v Iscor 1983 (1) SA 548 (T) P had developed a furnace by experiment and expenditure of time and money. D had previously placed orders for the furnace with P and P had allowed D’s experts to liaise with plaintiff in the expectation of obtaining further orders. D then copied the furnace design and started selling steel plate treated in this furnace. P obtained an interdict against D and the claim for damages was postponed.

 

In Stellenbosch Wine Trust Ltd & Anor v Oude Meester Group Ltd 1972 (3) SA 152 (C) the court stated that a trader who filches information from a competitor, information which heknows to be secret and confidential, and which has been developed by the competitor's skill and industry, is acting unfairly and dishonestly if he uses the information for his own profit and to the detriment of his rival. His conduct amounts to deliberate misappropriation of a business asset which was acquired by another's skill and industry. This conduct does not differ in principle from the conduct of a man who steals goods from the shelves of a rival's shop. Both types of conduct constitute unlawful interference with the trade of another: both types of conductare actionable and fall with n the principles of theLex Aquilia.

 

The applicants were about to market a new wine to be sold under a new label which had been designed by advertising agents and printed in secret. Both the agents and the printers were bound to observe a strict confidence but this confidence was breached, the label came into the hands of respondent in a clandestine manner before the applicants' wine was on the market. Respondent copied the label with all expedition and proceeded to market its own product under a label whichwas a close imitation of the applicants' label. It was held that the applicants were entitled to an interdict and ancillary relief.

 

In Knox D’Arcy Ltd & Ors v Jamieson Ltd & Ors 1992 (3) SA 520 (W) the court stated that when deciding whether an employee should be prohibited from utilising confidential information acquired during his employment with a former employer, a distinction has to be drawn between:-

(a) ‘trade secrets’, in a broad sense, being confidential information of an employer to which an employee may have access and which is of such a nature that the employee may never use it except for the benefit of the employer, and which theemployee remains bound to keep secret at all times after leaving that employer's employ; and

(b)other confidential information of an employer which an employee must guard as confidential as long as he remains employed by the employer by virtue of his general implied duty of good faith to his employer (the extent of which duty varies according to the nature of the contract), but which is of such a nature that 'it is inevitably carried away in the employee's head after the employment has ended', and which the employee then remains free to use for the benefit of himself or others, provided that he has not, while still employed by that employer, broken his duty of good faith by, for example, making or copying a list of that employer's customers or deliberately memorising such a list.

 

In the present case the confidential information was of type(b). It related principally to the fact that the applicants, who were management consultants, had made approaches to a number of business entities and had developed, and were continuing to develop, relationships with particular officers of such business entities in the expectation that that would lead to the applicants' services being engaged. Some such information would inevitably have been carried away in the heads of the first and second respondents when they had left the applicants' employ, and that to that extent they would have been free to use it, provided that they had not, by breaching their fiduciary duties to the applicants, wrongfully and unlawfully prepared themselves a 'springboard' to save themselves the time, trouble and expense of having to find and cultivate their own customers in the wayinwhich the applicants had had to do.

 

In Schultz v Butt 1986 (3) SA 667 (A) a designer of a boat sought to interdict a competitor from manufacturing and marketing a boat with an identifical hull design. The hull design has been developed with expertise and expense over a long period of time. The competitor got hold of the hull and used it to construct a mould which he then copied and sold the hull. The designer of the hull obtained an interdict against the competitor.

 

In Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C) using skill and labour a company had collected credit information which it distributed on a confidential basis to its clients. A competitor had gained access to this information and had knowingly used it to expand his business. The company which had compiled the information was awarded damages.

 

In Sage Holdings v Financial Mail & Ors 1991 (2) SA 117 (W) the court held that a company entitled to regard confidential oral and written communications of its directors and employees as sacrosanct and it is entitled to a remedy where access to such information is obtained by illegal means.

 

See Girdlestone v Saybrook (Pvt) Ltd & Anor HH-363-83 (protection of small industries from large industries.)

 

Interference with contractual relations and business

 

Inducement to breach of contract

This delict is committed by D who, knowing or suspecting that A has a contract with P, intentionally induces A to break his contract with P. For example, if A is employed by P, and D, knowing that A has a contract with P, deliberately persuades A to break his contract causing P financial loss, P can claim damages.

 

In Trojan Nickel Mine v RBZ 2013 (1) ZLR 444 (H) the court found that D had unlawfully and intentionally interfered with the P’s bank thereby causing P’s bank to breach its contract with P.P, a public company, sued D for payment of a little over US$1 million, together with interest and costs of suit, being P's money appropriated by D from P’s bank in pursuance of a monetary policy statement issued in terms of s 46 of the Reserve Bank Act [Chapter 22:15]and a directive issued to banks in terms of s 35(1) of the Exchange Control Regulations SI 109 of 1996. D, which was established in terms of s 4 of the Act, was charged with, inter alia,the regulation of Zimbabwe's monetary system, the supervision of banking institutions and the smooth operation of the payment system, as well as acting as banker and financial advisor to, and fiscal agent of, the State. In the discharge of those duties, the defendant issued a monetary policy statement on 1 October 2007, centralising all foreign currency accounts and directing the lodgement with it of all corporate foreign currency balances held by authorised dealers. One such authorised dealer was the bank where P maintained a foreign currency account. P’s bank complied with this directive. P, being unable to access its money, sued D to recover the money. D contested the action, averring that there was no causal nexus between the parties, given that P and D did not enjoy any banking relationship and that P should have proceeded against its own bank, and not against D.P argued that it had a cause of action against D because D wrongfully procured a breach of the contract between P and its own bank, such an action existing in our law for the intentional and wrongful interference with contractual rights. In addition, P was entitled to recover from D the procured money on the basis of unjust enrichment, it having been enriched at the expense of P.

 

The court held that it is well established that the intentional inducement of a breach of contract is an actionable wrong. After appropriating P's money, D did not return that money and had not even begun to give any indication as when, if at all, it will repay the money. It contented itself with hiding behind the non-existence of a contractual relationship between it and P. Quite how and why D could come to the conclusion that it could just acquire the money and refuse to repay it to the owner was unfathomable. The right to private property is sacrosanct. P should be protected against the arbitrary deprivation of its equity deposited at its bank, which institution was powerless against D's directive and was now unable to perform its contractual obligations, namely paying the money to P on demand.

 

The directive which led to the appropriation of P’s foreign currency balance at its own bank constituted a wrongful interference with contractual rights. While D was the monetary authority charged with the management of the banking sector and the formulation of banking rules, no authority was cited which entitled D to proscribe the release of deposits to depositors or indeed to interfere with bankers' obligations to pay balances to their clients on demand. In any event, on the basis of unjust enrichment, D could not escape liability.

 

However, it would be inappropriate, bearing in mind the banking relationship between the parties, to direct that the money be paid directly to P. The correct approach would be for D to return the money to P's banker.

 

In Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn-Ghwano (Pty) Ltd & Ors 1981 (2) SA 173 (T) the court stated that a delictual remedy is available to a party to a contract who complains that a third party has intentionally and without lawful justification induced another party to the contract to commit a breach thereof. The court decided that it is not unlawful competition to induce an employee to terminate his contract of employment lawfully. But public policy would dictate that, where the aim in inducing a competitor’s employees to terminate their employment is not to benefit from their services but to cripple or eliminate the business competitor, this action be branded as unlawful competition..

 

A delictual action on "breach of confidence" can only be a manifestation of the Aquilian action on unlawful competition and it has to be determined according to the principles applicable to such an Aquilian action on unlawful competition.The Court held that D had breached his fiduciary duties by canvassing certain employees of the company he was leaving for the new company during the period of notice.

 

See also New Kleinfontein Co Ltd v Superintendent of Labourers 1906 TS 24; Solomon v Du Preez 1920 CPD 401.

 

Other forms of unlawful interference in trade or business

The law in this regard is not as fully developed as in the United Kingdom but it would seem that the following forms of intentional interference will be considered as being unlawful in Zimbabwe.

 

Intimidation

By actions which are unlawful in relation to third parties, e.g. destroying the tools of P’s workmen so that they cannot perform their work; assaulting or threatening to assault P’s workmen to induce them to cease to work for P; threats by one firm that it will stop dealing with another firm in breach of a contract between them unless the threatened firm ceases to trade with P’s firm; damaging company vehicles; destroying P’s advertising posters etc.

 

Conspiracy

Where a number of defendants, acting in concert, deliberately take action not intended to further their own trade interests, but intended only to cause financial loss P.

 

It is possible that the same may apply when one defendant, acting alone, deliberately causes financial loss to P without in any way seeking to further his own trade interests. (But in the United Kingdom in the absence of a combination of persons, no tort is committed.)

 

See Crofter Hand Woven Harris Tweed v Veich [1942] AC 435 (HL).

 

Other forms of unlawful interference in trade or contractual rights

In Deneys Reitz v South African Commercial, Catering and Allied Workers Union & Ors 1991 (2) SA 685 (W) a trade union had decided to pressurise and embarrass a firm of attorneys and to picket their offices because of firm’s alleged 'union-bashing tactics' activities by assisting employers in labour disputes and because of its alleged anti-labour stance in relation to proposed amendments to labour legislation. The attorneys applied for an order declaring that a decision taken by the trade union was unlawful The court held that this decision impacted to impermissible extent upon attorneys' rights and duties and could not be tolerated. The application was granted.

 

See Murdoch v Bullough 1923 TPD 495; Tothill v Gordon & Ors 1930 WLD 99; Ebrahim v Twala & Ors 1951 (2) SA 490 (W); Hawker v Life Offices Association 1987 (3) SA 777 (C) unlawful interference with right to earn a living; Dantex Investments v Brenner & Ors 1989 (1) SA 390 (A); Rookes v Barnard [1964] AC 1129.

 

Nervous shock

Whereas damages can be claimed for pain and suffering, damages cannot be claimed for transient nervous distress which does not lead on to a recognised psychiatric complaint requiring treatment. Where, however, nervous shock has resulted in psychiatric harm necessitating medical treatment, in certain circumstances, damages can be claimed for such harm.

 

There are few decided Zimbabwean cases dealing with nervous shock.

 

In Thebe v Mbewe t/a Checkpoint Laboratory Services 2000 (1) ZLR 578 (S) a laboratory had been negligent in carrying out a routine blood test. The test showed positive for AIDS. P immediately went for further tests and these correctly found that she was negative. P claimed damages for shock and suffering caused by D’s alleged negligence. In awarding damages, the court found that the trauma suffered by P was transitory and there was no evidence that she needed counselling or psychiatric care. It therefore decided that no more than a small sum of damages was justifiable.

 

In Phida & Anor v East View High School 2015 (1) ZLR 991 (H) the court held that damages can be claimed under the Aquilian action for nervous shock where the shock is substantial and not of short duration and provided that the shock is reasonably foreseeable. There must be a particular relationship of proximity between the between the claimant and the party said to owe the duty. Proximity is not confined to particular relationships, such as husband and wife or parent and child; it includes proximity to an accident in terms of time and space and may also include nervous shock suffered when informed about an accident. There is no difference between nervous shock and emotional and psychological trauma as both affect a person’s mental condition. A person who is especially susceptible to nervous shock can claim for more extensive psychiatric damage attributable to his or her pre-exising weakness provided that psychiatric injury of sufficient gravity to be actionable is foreseeable.

 

In this case a woman’s minor daughter was drugged and raped at a party.  It was alleged that the school attended by the daughter was liable for damages arising out of the rape in that it had allowed child to leave school premises without the authority of the mother, despite the fact that it was a standard and agreed policy known to both the mother and the school’s staff members that the girl could only be released from school with parent’s verbal or a written authority and on condition that parent collects her child from the school. It was argued that as a result of the school’s gross negligence and failure to exercise its quasi-parental obligation to protect the girl, she attended a sexual party where several other minor children from the school were and was drugged and raped by one of the form four boys who were pupils at the school.

 

Damages were claimed by the girl for pain and suffering suffered by her as a result of the rape and the use of drugs administered to her that affected her emotional, physical and psychological integrity. Damages were also claimed by the mother for the emotional and psychological trauma she endured as a result of the rape and exposure to drugs of her daughter.

 

The Defendant excepted to the actions on various grounds but the exceptions were dismissed.

 

 

Situations in which nervous shock can be caused

 

The diagram below illustrates the range of situations in which nervous shock can be inflicted:

 

 

Accident causing

injury or death

Mother, father, sibling, spouse, lover, friend

On spot witnessing accident

Mother, father, sibling, spouse, lover, friend

Told afterwards about accident

Strangers coming to assistance

e.g. train or bus accident

Strangers on spot witnessing disaster such as Hillsborough Soccer Stadium disaster or seeing on TV

Stranger

On spot witnessing

accident

 

 

Fear for personal safety

First, it is clearly established that where the psychiatric harm was sustained as a result of P’s being in fear for his own safety, then damages will be awarded. Thus, if D drives carelessly and nearly knocks down P, if P is so badly shocked by narrowly escaping death that he suffers psychiatric harm requiring treatment, P can recover damages from D.

 

Shock due to witnessing injury to third party

What is the position if a person suffers psychiatric harm not because he/she has been in fear for his/her own safety, but because of traumatic shock from observing someone else being physically injured? For example, a mother witnesses her own child being run down due to the carelessness of a driver; she is so shocked that she suffers deep-seated, emotional disturbance of more than a transient nature requiring psychiatric treatment.

 

Over the years, a wide variety of fact situations have come before the English and South African courts wherein the psychiatric harm has occurred when one person has been shocked about what has happened to another person. These situations include cases where persons have suffered nervous shock when they have witnessed their close relatives being killed right in front of them, cases where the witness is a stranger to the person who dies or is injured, and cases where a relative has not seen the accident but is shocked when he is informed about it sometime later.

 

The present position in South Africa is that liability in all such cases is to be determined simply by applying the ordinary test for negligence, namely, reasonable foreseeability. See Bester v Commercial Union 1973 (1) SA 769 (A). Prior to this decision, a debate had raged as to whether, in addition to the test for negligence, other limiting factors should be applied, such as the closeness of relationship between the person physically injured and the person emotionally harmed, and the proximity of the emotionally harmed person to the scene of the accident. In the Bester case a young person was very close to his brother when the brother was knocked down and killed by a car.The young person suffered nervous shock. D was held liable.

 

In Masiba v Constantia Insurance Co Ltd 1982 (4) SA 333 (C) a person had been assaulted and had witnessed his wife being hit by a car and his car in which his children were present was struck by another car and left precariously perched on the side of a bridge. The person who had been suffering from hypertension prior to this incident suffered nervous shock and had a stroke and died. It made no difference that P was particularly susceptible to nervous shock and would suffer more drastic consequences when shocked because of his heart condition.

 

In England, also, the highest court decided in the case of McCloughlinv O’Brian [1982] 2 All ER 289 (CA) that the sole test for liability was that of reasonable foreseeability. However, the House of Lords in the Alcockv Chief Constable of South Yorkshire [1991] AC 310 (HL) decided that additional factors to reasonable foreseeability had to be weighed such as the closeness to the scene of the accident.

 

Aftermath cases

What if the person was not at the scene of the accident but suffers nervous shock on learning about it later.

 

In the McCloughlin case a mother learnt of a car accident involving her children and her husband. She suffered nervous shock when she went to the hospital and saw the condition of members of her family.  D was liable for nervous shock to the mother.

 

In N v T 1994 (1) SA 862 (C)D had raped an 8 year old girl. The girl’s mother suffered severe emotional shock and trauma as a result of the rape of her daughter. She was awarded damages.

 

Coming to rescue of victims in disaster like train crash

In Chadwick v British Railways Board [1967] 1 WLR 912 P voluntarily went to the assistance of passengers injured in a train crash caused by D’s negligence. Afterwards P suffered severe shock. He successfully sued D.

 

Witnessing a disaster involving injury to numerous people

In the Alcock case numerous people died at a football ground when they were crushed to death due to overcrowding at the ground. D was responsible for the deaths because he had allowed the ground to become overcrowded and unsafe. Some people witnessed the deaths from other parts of the ground and others saw recorded television pictures. The court held that to establish a claim in respect of psychiatric illness resulting from shock it was necessary to show not only that such injury was reasonably foreseeable, but also that the relationship between P and D was sufficiently proximate; that there were ties of love and affection between the parties; and that P had to show closeness in time and space to the accident or its immediate aftermath. The court decided that none of the Ps was entitled to succeed in their claims because to allow liability in such a situation would open the floodgates to almost limitless liability.

 

Problems with the reasonable foreseeability test as the sole determinant of liability

The reasonable foreseeability test is certainly not without its difficulties as the sole determinant of liability in these sorts of cases which span a wide spectrum of differing situations. On the other hand, criteria such as proximity and relationship are also very difficult to apply with any precision. There is no leading Zimbabwean case laying down definitively what approach is to be adopted in this sort of situation and if such a case comes before our courts a decision will have to be made as to how we should tackle this sort of case.

 

See also Lutzkie v SARH & Anor 1974 (4) SA 396 (W); Muzik v Canzone Del Mare 1980 (3) SA 470 (C); Attia v British Gas [1987] 3 All ER 455.

 

Intentional infliction of nervous shock

In Boswell v Minister of Police & Anor 1978 (3) SA 268 (E) D, a police officer, deliberately and callously told an elderly woman falsely that her nephew had been shot and she should come to the police station to identify his body. The woman had assumed responsibility for the nephew after his mother had died. She suffered shock which had a substantial effect on her health, aggravating her problem with high blood pressure. D was held liable.

 

Duty of care concept

The phrase “duty of care” is frequently used in cases decisions on the Aquilian action. The phrase is, however, somewhat confusing insofar as it is used in two separate and distinct senses. It is therefore necessary to identify in which of the two senses the expression is being used in the context concerned. The first sense in which it is used is in connection with negligence. A person is said to have breached the duty of care (i.e. to have been negligent) when he fails to foresee and guard against harm which the reasonable person would have foreseen and guarded against. The second connotation of this phrase is in connection with wrongfulness. When it is used to denote wrongfulness, it will be used in this sort of way– although the reasonable person would have foreseen and guarded against harm, D is not liable in the circumstances as the law does not recognise any duty of care to avoid causing that sort of harm (i.e. the conduct was not wrongful or, to put it another way, there was no recognised legal duty to avoid causing harm by negligent conduct).

 

The following two cases can be used as examples of how the duty of care concept can be used in these different senses.

 

In Witham v Minister of Home Affairs 1987 (2) ZLR 143 (H) the court decided that, because the harm was reasonably foreseeable, there was a duty of care. In this case a mentally unstable policeman was given a weapon and was assigned to guard a house. He wandered off and shot some civilians. The Ministry was held to have been negligent in arming him knowing of his mental state. It was reasonably foreseeable that he might end up harming members and the Ministry owed a duty of care to members of the public.

 

On the other hand, in the case of Stanbic Bank Zimbabwe Ltdv Durand 2007 (1) ZLR 398 (H) the court found that the nature of the relationship between the parties was not such as to create a legal duty of care. In this case a customer had defrauded a bank. The bank had opened the account for the customer on the basis of a recommendation by D. The bank then sued D. The court decided that a duty of care would arise in this situation where there is a legal relationship between the parties which would create an obligation on the part of D to exercise such duty in relation to P. In the present case there was no such relationship and in any event the bank was at fault in sustaining the loss.

Causation

General

Even though D’s conduct is proved to be wrongful and negligent, D is still not liable for the harm unless it is proved that D’s conduct was the cause of the harm suffered by P.

 

The conduct of D must be both the factual and the legal cause of the harm to P. The test for factual cause is: but for D’s action would that harm have occurred to P? If the harm wouldhave occurred even without D’s conduct then D’s conduct is not the factual cause of the harm.

 

The test for legal cause is the narrower test of reasonable foreseeability, namely, was it reasonably foreseeable or was it within the range of ordinary human experience that the harm would result from D’s conduct? (The direct consequences test has not been used in Zimbabwe.) In overall terms the primary question which is being asked is whether, on a common sense basis, there was a sufficiently close connection between D’s conduct and the harm to justify imposing delictual liability upon him or her.

 

 

D

D

FACTUAL CAUSE

LEGAL CAUSE

Legal cause is a device to further restrict liability where liability based solely on factual cause may lead to overextended liability.

 

A common sense test to ensure that sufficient connection between conduct and result exists to justify making D liable. What must proven is adequate or sufficient causation. If a subsequent event is reasonable foreseeable it will not break the causal link. But a freakish event which is not reasonably foreseeable would constitute a novus actus interveniens that breaks the chain of causation.

 

The direct consequences test is not used in Zimbabwe.

 

D’s conduct sets in motion train of events that lead to harm – but for D’s action harm would not have resulted – if D’s conduct is removed from the picture would harm still have occurred?

 

As the test for legal cause is essentially the same test as for the fault requirement where negligence is alleged, it has been suggested that the two tests could be merged together into a single inquiry, namely, whether the particular harm to that plaintiff in respect of which he is suing was reasonably foreseeable. However, the inquiry into causation contains a policy element, at times it seems that the test for legal cause is applied in a more extensive fashion than that for negligence and that the test for legal cause is applied with hindsight knowledge, namely, looking at the events which actually occurred the courts enquire as to whether that sequence of events was so exceptional as not to be reasonably foreseeable. On the other hand, in the fault context the test for negligence has more of a prospective character and the question asked is: would a reasonable person placed in the shoes of D have foreseen the harm which flowed from the conduct?

 

In the South African case of Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) the court said that in respect of factual causation, P must establish that the wrongful conduct is a probable cause of loss. This requires a sensible retrospective analysis of what would probably have occurred if a hypothetical course of lawful conduct had been pursued, based on evidence and on what could be expected to occur in ordinary course of human affairs.

 

The following cases provide some examples of how the requirement of causation has been applied in differing fact situations.

 

In Kruger v van der Merwe 1966 (2) SA 266 (A) there was a motor accident due to negligence of D. A passenger was thrown out of D’s car after the collision. He was lying on the road and was run over by another car. The subsequent event was reasonably foreseeable and D was liable for his death.

 

In Portwood v Svamvur 1970 (1) RLR 225 (A); 1970 (4) SA 9 (RA) a dog was caught in fence. P tried to rescue the animal and was bitten. The court awarded damages against the owner of the dog under the Aquilian action. It found that the dog was a savage dog and the owner ought to have foreseen that it might bite an innocent person.The court held that the fact of the dog getting caught in the gate could not here be regarded as a novus actus interveniens breaking the chain of causation: it was an immaterial event in the chain of causation, i.e. simply one of an infinite variety of situations which might cause a dog with a savage nature to bite an innocent person. The plaintiff's action in trying to release the dog could not be regarded as wholly unreasonable in the circumstances, that the defendant had not proved that the plaintiff had been guilty of contributory negligence.

 

In Sadomba v Unity Insurance HS-131-78 there was a motor accident caused by D’s negligence. P, who was injured, was dragged from vehicle and placed on the side of the road in an unconscious state. His watch and shoes were stolen while he was lying there unconscious. He was entitled to claim for these losses of property, as it was reasonably foreseeable that such losses could occur in the circumstances.

 

In Bickle v Minister of Law and Order 1980 ZLR 36 (G) D’s negligent act triggered a freak accident leading to damage to an aircraft. Nonetheless the court held that the damage was sufficiently related to negligence to make D causally responsible.

 

In Mbulawa v Mutandiro 1989 (3) ZLR 83 (S) the court said that as a general rule, intervention by means of intentional or negligent conduct, whether it be that of P or a third party, interrupts the chain of causation. However, if a reasonable person in the position of D would have foreseen the possibility of such intervention and guarded against it, D is negligent if he fails to do likewise. He cannot rely on the intervention of a novus actus interveniens. (This is a new and independent act that breaks the causal link.) Similarly, the negligent act of P or a third party, which was itself an inherent risk created by the negligent conduct of D and which was reasonably foreseeable by him, can never amount to a novus actus relieving him of liability. In this case the driver (D), who had been drinking, drove dangerously by overtaking another vehicle at an excessive speed on a narrow bridge. He started to return to his side of the road before he had fully passed the vehicle being overtaken. The passenger in the front seat, thinking that a collision was about to take place, grabbed the steering wheel and moved it to the right. As a result, D lost control of the car, which went off the road and overturned. The passenger was killed and P, who was in the back seat, was severely injured. It was held that the action of the deceased arose out of the exigencies of the situation created by D’s own conduct and was one which, together with the resultant accident, a reasonably prudent man would have foreseen.

 

In United Bottlers (Pvt) Ltd v Shambawamedza 2002 (1) ZLR 341 (S) P hired a paraffin refrigerator from D. It was a term of the agreement that D would service the fridge and keep it in good working order. A mechanic employed by D lit the burner of the fridge but failed to position the tank correctly beneath the chimney. As a result, heat generated by the burner melted solder on the burner which ignited paraffin that the mechanic had spilled on the tank and omitted to wipe off. When P, who was unaware of what had happened, opened the cover of the tank in order to adjust the flame of the burner, he was engulfed in flames and suffered severe burns. The court found that the mechanic had been negligent. The subsequent harm to P was reasonably foreseeable and should have been guarded against. P’s act in opening the cover of the tank was a reasonably foreseeable consequence of the mechanic’s negligence and was therefore not a novus actus interveniens that broke the causal link. There was also no contributory negligence on the part of P.

 

In Ruvinga v ZEDTC (2) 2012 (2) ZLR 276 (H) the court pointed out that not only must D’s action be the factual cause of the consequences but it must also be the legal cause and the test for legal cause is that of reasonable foreseeability. P paid to have electricity connected to his farm and the installation included a transformer. Some years later D, without the knowledge and consent of P, connected other farms to P’s point of supply. This increased the load beyond the capacity of the transformer and caused a fall in the voltage and damage to the electric motors and this meant that P could not irrigate his crops. He claimed for: the loss of his crops; the cost of replacing the damaged electric motors; and mental anguish, anxiety and depression.

The court held that the moment of causing damage is the relevant one in determining reasonable foreseeability. It held that the anguish, anxiety and depression suffered by P was so remotely connected to D’s conduct that D could not be held liable for it.

 

In Groenewald v Groenewald 1998 (2) SA 1106 (SCA) D physically assaulted P, threatening to kill her. He locked her inside an office. She had tried to escape from D previously but the attempt was unsuccessful and had led to the assault and threats. After being locked in the office, P had sought to escape by climbing out of the office window onto a ledge outside the third storey of a building. She had fallen from the ledge and sustained injuries. The court found that, by assaulting, confining and threatening to kill P, D had intentionally committed a wrongful act. This wrongful act factually caused the plaintiff to fall from the ledge and sustain injuries. P’s attempt to escape via the outside ledge did not affect the chain of causation to such extent as to preclude D from liability for damages. No considerations of legal policy militated against D's liability. It waseminently reasonable, fair and just to hold D liable.

 

In Fourie NO v Hansen & Anor 2001 (2) SA 823 (W)a car rental company hired a vehicle with defective tyres. It was held that it was liable for the harm caused to passengers in the vehicle when there was an accident due to the defective tyres. The failure by the claimant to detect the defective condition of the tyres did not constitute a novus actus interveniens.

 

In Van der Spuy v Minister of Correctional Services 2004 (2) SA 463 (SE) P, a bystander, was shot by an escapee during a prison escape. At least one of the escapees was considered a dangerous person. The prison officials were negligent in not preventing the escape, particularly of the dangerous person. The general kind of injuries sustained by P and the general way in which P sustained his injuries was reasonably foreseeable. The damages were not so remote that the chain of causation should be regarded as having been interrupted. The Ministry was held liable to P.

 

In Minister of Safety and Security & Orsv W H 2009 (4) SA 213 (E) a woman had been raped. Prior to this rape, there had been a warrant for the arrest of the man and a protection order. Three police officers had failed to arrest P's rapist on the Saturday afternoon prior to the rape on the Tuesday. The court held that the police were liable in delict for their negligent failure to arrest the man before P had been raped. The harm was not too remote. The police inaction was both the factual and legal cause of the rape.

 

See also Mercer & Stafford v Pearl 1952 SR 151; R v John 1969 (2) RLR 23 (A) (it was reasonably foreseeable that if one pursued a person with murderous intent across broken ground one could fall into a hidden hole and might end up dying); Van den Bergh v Parity Insurance 1966 (2) SA 621 (A) motor accident; Murray v Union & SWA Insurance Co Ltd & Anor 1979 (2) SA 825 (D).

 

The thin skull rule

The thin skull rule applies in the field of delict as it does in criminal cases. The courts have laid down that it is reasonably foreseeable that some people in society suffer from ailments and other physical conditions which make them more susceptible to injury or more serious injury than persons who do not suffer from those conditions. The general rule is that defendants must take their victims as they find them and if, for instance, the victim in the case of a collision caused by D’s negligence has a weak heart and the shock of the accident induces a fatal heart attack, D may be liable to the victims even though a person without that condition would not have died in the accident.

 

In Wilson v Birt (Pty) Ltd 1963 (2) SA 508 (D) a worker on a construction site suffered greater injury than the normal person because he had a thin skull. The court however went on to say that a victim who is especially vulnerable must take reasonable precautions to protect himself and failure to do so will amount to contributory negligence.

 

In Smith v Leech, Brain and Co [1961] 3 All ER 1159 (QB) a fleck of molten metal splashed on a workman’s lip because D had failed to provide him with a shield. The burn turned cancerous and he died. D was held liable for the death.

 

In R v John 1969 (2) RLR 23 (A); 1969 (2) SA 560 (RA) the court held that if you assault a person moderately it is reasonably foreseeable that he may have a thin skull and may end up dying.

 

In S v Ndlovu HB-204-16 a woman caused the death of a child by beating it. The fact that the child was HIV positive did not prevent the woman being convicted of culpable homicide as the court applied the thin skull rule,

 

However, in S v Ncube GB-47-80, during a minor tussle one of the people involved, Y, suffered haemorrhaging into lung cavity probably precipitated by exertion of the struggle combined with the tubercular condition from which Y suffered. The court held that the thin skull rule did not apply as death was not reasonably foreseeable in the circumstances.

 

In Santam Insurance Co (Ltd) v Paget 1981 ZLR 73 (A) an accident aggravated a pre-existing back complaint. The court applied the thin skull rule.