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