The Long and Short of it

The Long and Short of it

By Neo Modisakeng, Candidate Attorney

Duty of care was one of the interesting subjects that came under consideration in a recent decision of the Supreme Court of Appeal (SCA) in the matter of Long & Another v Jacobs 145/11 [2012] ZASCA 58. 

The SCA concretised the findings in many prior judgments regarding the existence of a legal duty, especially regarding a negligent omission. It emphasised that where no error in principle is evident, it would not lightly interfere with the apportionment decided upon by the trial court "unless the trial court's assessment differs substantially from what the appellate court thinks the assessment should have been".

Long and Another v Jacobs (145/11) [2012] ZASCA 58 

Ms Jacobs, the respondent and previously a Grade 8 teacher at Rhodes High School (RHS), was attacked with a hammer by a 13 year-old learner.  As a result of the assault, Jacobs suffered serious bodily injuries. She instituted action in the Western Cape High Court against the headmaster of RHS at the time, Mr Long, and the Member of the Executive Committee of Education in the Western Cape. 

The trial court found in favour of Jacobs and granted judgment against the appellants for damages of approximately ZAR1,1 million. 

The appellants took the matter to the Supreme Court of Appeal (SCA).  The SCA had to decide whether the trial court: 

• Was correct in finding that the appellants and their employees owed Ms Jacobs a legal duty to act positively to ensure her safety;
• Erred in finding the conduct of the headmaster to be negligent, and if so, whether the negligence was causally linked to the harm suffered by Jacobs;
• Correctly determined the parties' respective degrees of fault; and
• Correctly assessed the quantum of Jacobs' damages to a degree that required the SCA to interfere or intervene. 

In the court a quo the second appellant was held vicariously liable for the acts and omissions of the employees of the department at RHS.

The existence of a legal duty 

The requirements for wrongfulness have been identified in Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA). Thus, in dealing with liability for negligent omissions, and similarly for cases of pure economic loss, wrongfulness depends on the existence of a legal duty not to act negligently. 

The SCA confirmed the trial court's ruling on the joinder of parties to the case. Although the appellants were enjoined in terms of the South African Schools Act, No. 84 of 1996, the Western Cape Provincial School Education Act, No. 12 of 1997 and the regulations promulgated, these provisions do not necessarily give rise to a legal duty to act for purposes of delictual liability. 

The SCA clearly ruled that public or legal policy requires the imposition of liability for negligence in the circumstances before it. The SCA thus simply concretised the findings in many prior judgments regarding the existence of a legal duty, especially regarding a negligent omission.

The issue of negligence 

Jacobs alleged that the first appellant, the headmaster, had been negligent in that he failed to: 

• Ensure that the learner was detained within his office or within other suitable premises until the police arrived (despite a clear threat of an imminent attack on Jacobs);
• Ensure that the learner's bag was searched for dangerous weapons;
• Take effective and reasonable steps to safeguard Jacobs from being exposed to the risk of undue physical harm or danger from the learner;
• Take adequate and / or reasonable steps to preserve and protect the bodily integrity, psychological well-being, mental tranquillity and dignity of Jacobs. 

In dealing with the issue of negligence in this case, the SCA applied the test in Kruger v Coetzee 1996 (2) SA 428 (A) at 430E-G which confirms that negligence occurs if a reasonable person: 

• would foresee the reasonable possibility of his or her conduct injuring another; and
• would take reasonable steps to guard against such occurrence; and
• and the defendant failed to take such steps. 

The SCA also emphasised that an enquiry of negligence is always based on the relevant circumstances of each case and considered that the headmaster: 

• Admitted that another teacher had informed him of death threats directed at Jacobs by the learner; and
• Simply had to neutralise the learner until the seriousness of the threats could be investigated and while waiting for the police to arrive, which he failed to do. 

The SCA concluded that the trial court correct in finding that the headmaster negligent.

Contributory negligence - who is to blame? 

An interesting issue that arose in this case was the degree of fault attributed to Jacobs. The trial court apportioned 80% fault in respect of the defendants and 20% to Jacobs as the plaintiff. 

The appellants argued that the trial court erred in finding that their own degree of fault was substantially greater than that of the respondent, and submitted that Jacobs was grossly negligent as she: 

• Generally did not exercise reasonable care in the management of her relationship with the learner in her capacity as an educator and that this resulted in the assault;
• Paid insufficient attention to the learner even after realising that he required more attention than she was giving him; and
• Failed to inform the second defendant and / or any other person in authority at the school and / or the police about the seriousness of the threats, when she ought to have done so.

Conclusion 

In this case, the SCA did not decide the merits of the arguments put forth by the appellants, but rather emphasised that where no error in principle is evident, the appeal court will not lightly interfere with the apportionment decided upon by the trial court "unless the trial court's assessment differs substantially from what the appellate court thinks the assessment should have been".