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2nd and 3rd Stages of Negligence Test

• Precaution – 2nd part
o Q: is it possible to take precautions

it only needs to be reasonable precautions – what are those?

Robertson V Durban Turf Club
- R owned a race horses and trained them on racecourse
- The course dug a nearby ditch and placed an earth
mound to stop the horses from falling
- A horse panicked and jumped over the mound into the
hole
- Held: the club doesn’t have to stop all forms of harm
 it was foreseeable horse dismount jockey
 it was reasonable to create a mound as it would
stop a horse w/ a jockey = reasonable
 a panicking horse would not have been stopped
unless there had been a fence which would have
hurt the horse more

Interplay of factors considered
1. likelihood of the harm
2. seriousness of the harm
3. cost/ difficulty of precautions
4. social utility – policy reason to make him act differently
- the above factors are weighed up

Pretoria City Council v De Jager
- Mrs. D fell into a 2m deep hole that had been dug by
the Pretoria city council in order to lay cables
- The hole was in the payment by a busy intersection
- Mrs. D sued for her injuries on the basis of Pretoria
City Councils negligence
- When the negligence test applied part A of the test is
satisfied( foreseeability)
- Held: where it comes to part B 4 factors need to be
considered
1. the degree and extent of the risk
2. seriousness of the harm caused
3. the utility of the def conduct – importance of the
conduct
4. the burden of eliminating the risk
- the council surrounded the hole with candy tape and
provided a ramp in order for the pedestrians to walk
over the hole
- Mrs. D did not use the ramp but tried to take a short
cut
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- Court weighed up the factors

- Held: the degree of risk was high but 3 and 4
outweighed 1 and 2
 Drs D created the risk by not walking on the plank
 Just because the foreseeable harm did occur
doesn’t mean that steps taken were insufficient

Herschel v Mrupe
- Aside: B4 RAF insured everyone you had to lodge a claim
with a specific insurance Co.
- P lodges a claim with a Co which is wrong and just b4 the
claim prescribes they repudiate liability
 P sues D saying you were negligence
- In this case courts provided a principle on which to base 1
and 2
1. if the harm would probably be serious if it
happened and reasonable person would guard
against it unless the chances of it happening are
very remote
2. If the harm would be trivial then a reasonable
person would not guard against it even if the
chances of it happening were substantial
 the steps a reasonable person would take
depends on the magnitude of the risk
- Held: the court didn’t think it was foreseeable that the Co
would string him along until the claim prescribed

Wasserman v Union Gov

- W worked in a Police station
- Chief constable asked W to find out where the bee hive was
 He stuck his head out the window
- W was stung by a bee and died and wife sues Union Gov (
vicariously liable) for not investigating the bees on 2
grounds
1. they knew the bees were on the roof and didn’t
get rid of them thus negligence
2. they asked her husband to check where the bees
were
- Held: it was foreseeable that he would get stung
 however to trivial – thus a reasonable person only
foresee the possibility of getting stung
 no1 was aware he allergic
 thus thin skull weak hart test only applies to the first
step of the negligence test
 held: to take steps to prevent this kind of thing would
create a very large burden thus not liable
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Note: 2nd leg always use the relative approach

• if harm to trivial a reasonable person would not take steps
• if a reasonable person would and he didn’t = negligence

Botha v Stone
- cricketer hits a 6 out the stadium during match
- lady killed by the ball
- in the past 26 years only 6 balls ha cleared the stadiums boundary fence
– thus foreseeable but remote
- foreseeable that it would hurt but chance highly unlikely
- a reasonable person would not take steps to guard against it
- held RP would not precautions as chance of injury remote
 thus part B test not satisfied
 court found in favour of the def

Lomagundi Sheetmetal v Basson

- the P hired the def to build a roof on top of a silo
- the def was welding on the roof during which a spark ignited by one of
the sparks ignited a bail of stove situated at the base of the silo
- as a result of the fire the silo was destroyed and the P sued for damages
caused
- when applying the negligence test part A is satisfied
- considering the 4 factors in part b
 risk of harm was high
 seriousness of the harm high as well
 high factor – it would have cost nothing to move the bails which
would have prevented the fire from starting
 the court found in favor of the P

Social Utility
• interests of society are considered

Principle
- if the interest served by the conduct is of such a nature that is more
important than the risk of the harm it endures
- the a reasonable person would not take steps to prevent the harm
- e.g. an ambulance speeding

Cape Town Municipality v Butter
- C.T.M owned a perking lot that was situated in a heavily developed area
- Next to the parking lot was a river canal
- there was no barrier between the road and the canal
- butters parked his car
- the front of his car protruded over the edge of the canal
- Butters wanted to get to the other side of his car
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- he walked along the front of his car balancing along the edge of the canal
and fell in
- Butters sued the CTM for his injuries
- Butters said the CTM was negligent in not taking precautionary measures
against the foreseeable harm
- Held majority: the utility of the parking lot was NB and they could have
taken precautions and warned the public
 cost not that high to fix
- minority said there was no reason for him to walk across the front of the
car
- The court found in favour of Butters

Cape Metropolitan Council V Graham

- Def tried to use the social utility argument
- Graham was driving his car along Chapmans peak when a stone fell and
injured him
- The municipality had put up signs warning drives to beware of falling
rocks
- Rock falls had happened before and happened mainly when it rained
- There had been rain prior to G’S accident
- G sued the council for failing to close the road before the accident
- Council said if they closed the road there would be an outcry from the
community as it is a main road
- Held: initially when not raining the utility of the road outweighs the risk
 as the weather changed the magnitude of the risk changed to such
an extent that it outweighed the utility
- Held: it had gotten to the stage where it was unreasonable for the council
not to close the road
 Court found in favour of Graham

3rd Part of the Negligence Test

• Did the accused take preventative steps
o if yes he is not negligence
o if no he is negligence
• when the conduct is not wrongful a reasonable person would not take steps
o however different where instructions have been given by the P to def
• a RP would not take steps if the harm is trivial or where costs of taking the
precaution very high

Higher Standard of care required

• 2 situations where def required to take more precautions
1. skill for doing a particular type of work
2. guarding against danger to children
1. if a person undertakes work which requires a certain skill
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the std that is applied is that of a reasonable expert in the accused’s

position

when applying this test you don’t apply the highest level of expertise but
rather the average measure of expertise ( ie a reasonable level of
expertise)
- e.g. compare a GP skills to the std of skill of other GP’s
- Can you expect the same standard everywhere?

- Van Wyk
 doc left something in the patients tummy
 held: you shouldn’t say a higher care of skill is required by an
Urban doc than a rural doc
{ Bouberg says location don’t make expertise different but facilities
do}
 held you look at the level of the expert at the time of the incident
 held: you look differently at a GP and a specialist

- Bul’s v Tsatsarolakis
 the def hurt his wrist
 he went to Bul’s who was a GP and had X-Rays taken
 Bul’s didn’t detect a fracture in the wrist gave pain killers, strap
and told him to come back of pain
 3 weeks later the def was still in pain
 this time he went to an orthopedic surgeon who took an x-ray
and found a fracture
 Def said doc negligence for not finding the fracture
 held an average GP would not detect a fracture and cant expect a
GP to have the knowledge of an orthopedic surgeon
 The court refused to apply such a high std

- Durr v ABSA Bank

 the def was an investment broker
 he was a regional manager of the brokering division
 Durr went to ABSA as expected ABSA only to hire
professionals
 Durr advised to invest in a certain share
 Broker said it was a sure and safe investment
 however when giving the advise the only info he had on
the share was what he read in an advert he had seen
• didn’t look at the financial sheet or prospectus
 after Durr brought the shares the co went bung and she
lost R5 000
 Durr sued ABSA for vicarious liability
• said broker was negligence for not exercising the
std of skill that would be expected of someone in
his position
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 Defense: the skill of an average broker should be

applied
 held: broker not an average broker he was a regional
manager
• he should have looked at the Co. financials
• court applied a specialist std
o held: lack of skill in not negligent but it
is negligence to engage in a potentially
dangerous activity unless you have the
skill – must have the skill if you say you
do
o Result def = negligence

2. Guarding against danger to Children

• 0 -7 no capacity – irrebutable
• 7 -14 it is a rebuttable presumption that the child has capacity to act
• 14 – assumed to have capacity

• A reasonable person in deciding what precautions are necessary in a particular sit

bears in mind
o the ability of the victim to protect himself

thus a reasonable person takes extra care with children

TEST
- a reasonable person being with a child would foresee that
the child might act irrationally thus take extra precautions
 applies only where a reasonable person would
foresee the possibility of there being a child
 factors to consider when dealing with a child
 age, how lively the child is and if the child is
visible

De Bruyn No
- child on the pavement by ice cream van
- where the presence of a child id foreseen you must lower
your speed in order to avoid hitting the child

Seti
- 8 year old boy
- child between age of 7 and 14 so we need to check for neg
on the drivers and the child b1/2
- boy and 2 friends playing on the side of the pavement
- one of the boys mother’s call him and he runs across the
road
- 3rd boy picked up the toys left behind – he was hit
- court had to decide if child had capacity and if driver neg
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 held: the driver should have seen the 3rd child as he had
watched the other 2 run across the road
 failure to see this = negligence
- Created Assumption
 while a motorist after seeing a child on the side of the
road is not required to slow down on the assumption
that every child is just about to run across the road
 it is required that such a motorist bears in mind that
such a child may run across the road and thus regulate
his speed accordingly
- although you don’t need to assume you need to anticipate

Nkosi v Santam Insurance

- a driver knocked down a child on the side of a road
- court had to decide if the driver was negligence
- Facts
 the driver was in a narrow street in a residential area at
lunch time on a Sunday
 the street was heavily populated and there was a school
on it
 from previous experience the driver knew that children
played on it
 on the day of the accident the street was deserted
 the only thing visible in the street was a car with an old
man standing by it
 there was a little girl hiding behind the car
 as the driver road past the car the little girl ran out
and got hit by the car
- court looked at the time the accident happened
 at a lunch time on a Sunday a reasonable person
would not expect a little girl to be in the road
 would have been very different if the incident had
happened on a Monday lunch
 thus neg was not satisfied and a reasonable person
would not take precautions

Minister of Education and Another v Wynkwart

- 9 year old boy involved
 thus considering capacity
- After school the boy wanted to go home ( after hours)
- school had a main gate and back gate – the back gate was
locked
 boy tried to clime over the locked gate – children had been
told not to use it
 children had been taken to front gate by the teachers
 he fell and got seriously injured
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 parent sued the minister of education for vicarious liability

on the grounds that the teachers negligent
 court considered the level of supervision required
by the teacher
 in order for the teacher to stop the above the child
would need to be under constant surveillance
• cant expect this
• the court said you would only need this when
danger on the school ground – the gate was not
one of those dangers
 in addition teacher not liable after hours
- even though a higher risk of harm you don’t need to do
everything – the teachers had taken then to another gate

• Thus various factors that play a role

1. age of the child – the older the child the less need to take precautions
2. what the child is doing
o if the child is sleeping you don’t expect them to jump up
3. adult supervision/ control
o you can assume they will prevent harm to the child
4. visibility of the child
o if aware of the child = awareness of the danger
5. proximity of the child – the closer the child is the higher chance of danger
o need to consider all the above factors in order to determine if a
reasonable person would take precautions