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Negligent conduct does not automatically attract liability


Where a claimant sues for damages for a personal injury claim, the proof of negligence does not automatically attract liability on the part of the third party for the claim. The claimant is required to prove that the third party’s negligent act or omission caused the harm or loss suffered by the claimant. This was recently re-enforced in the Supreme Court of Appeal in The Memorable Order of Tin Hats v Els.[1]

The claimant sued the MOTHS for damages that he sustained as a result of falling on the two step staircase on the MOTHS’ premises. The claimant was assisting another invitee, who was wheelchair bound, to exit the premises, when he lost his balance and fell backwards with the wheelchair and its occupant falling on top of him.

The claimant alleged that the defendant was negligent in that, they failed to install adequate handrails on both sides of the staircase, they failed to have steps which were safe for use and they failed to install ramps. After the incident, the defendant installed a ramp.

The court accepted that the defendant’s omission to ensure that the staircase was safe for use by its members and the public was a catalyst to cause potential harm and that no reasonable steps were taken to safeguard its members and the public from this harm.

That conduct was therefore wrongful because the negligent omission resulted in harm, which could have been avoided had the defendant taken reasonable steps to safeguard against such harm. In summary, the court decided that the omission to install a second hand rail on the staircase was negligent and wrongful.

The next enquiry was whether the negligent and wrongful omission caused the claimant’s injuries. The negligent and wrongful omission was not the cause of the injuries for the following reasons:

  • It is probable that when the claimant overbalanced and fell, a handrail on his side of the staircase would not have prevented the harm.
  • Even if the claimant was able to grab the handrail, the force of the weight of the person that he assisted and of the wheelchair that fell on him, would have broken his grip.
  • The claimant would have still fallen even if there was a handrail installed.

As a result, the court dismissed the claim.

This case is a reminder that even in circumstances where a person fails to take reasonable steps to guard against harm, it does not automatically attract liability on their part. The failure to take such reasonable steps must cause the harm suffered by the claimant.

[1] (488/2021) [2022] ZASCA 99 (22 June 2022).


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