The five elements of delict are conduct, damage, causation, negligence and wrongfulness. All five elements must be present before a party can be found to be liable. In my view, the first four elements are the less “complex” aspects of delict, whilst wrongfulness is by far more complex.

1. Conduct is defined as “voluntary human act or omission” – in other words a failure to act (omission) or a positive, physical act or statement (commission).
2. Causation means that there must be a connection (causal nexus) between conduct and damage, and the question that needs to be asked in this context is did the conduct cause damage?
3. Damages can be patrimonial loss (in other words money i.e. medical expenses or loss of earnings) or non-patrimonial loss (pain and suffering, emotional shock, disfigurement, .loss of amenities of life and shortened life expectancy).  In the context of public liability, this would general damages.
4. Negligence arises when a reasonable person in the position of the defendant would foresee the reasonable possibility of his/her conduct injuring another in his person or property and causing him patrimonial loss, and would take reasonable steps to guard against such an occurrence.  In other words, the defendant therefore failed to take these steps.
5. Wrongfulness is defined as “conduct which is objectively unreasonable and without lawful justification”.  The test for wrongfulness is that of the boni mores or legal convictions of the community (or public policy) – an objective, reasonableness test and looks at whether the harm was caused in a legally reprehensible way.  Underpinning the boni mores are constitutional values.

The recent case of The Memorable Order of Tin Hats v Els [2022] ZASCA 99  is a good example of how our Courts interpret these five elements. MOTH is a voluntary association and brotherhood of former South African soldiers. It occupies the basement area of a two-storey building that it utilizes as a pub for recreational gatherings of its members and the public. Mr Els frequented the pub and often assisted Mr Levengs when he left, to reach the parking area, because Mr Levengs was wheelchair-bound. One day Mr Levengs, who weighed 120 kilograms, was jammed with his wheelchair at a staircase. While trying to assist, Mr Els ended up falling on his back and losing consciousness, with Mr Levengs and his wheelchair on top of him. Mr Els claimed delictual damages from MOTH, contending that they failed to provide adequate hand rails, a safe wheelchair ramp and other measures.

The High Court found 90 % in favour of Mr Els – it found that MOTH owed a duty to protect its patrons against harm (duty of care) from stairs which did not have railings and that such breach had caused harm to Mr Els and that had a wheelchair ramp been built and rails placed at the staircase, Mr Els’ claim would not have materialised; and that even though the staircase, having only one handrail was practical and useable, as per the expert reports, it was not completely safe for use by the MOTH members and the public, abled or disabled. MOTH’s omission to install a second handrail on the stairs was negligent and wrongful.

The full court dismissed MOTH’s appeal and concluded ‘The appellant had a duty to protect its members and guests from harm which could be caused by the steps and should have facilitated the navigation of the steps by providing rails, ramps or signage …The appellant was negligent in failing to take the appropriate steps to render the hazard safe’.

The Supreme Court of Appeal upheld MOTH’s appeal and concluded that

“[17] This case rests on the liability attracted for an omission on the part of the M.O.T.H. In these circumstances, a different approach than that of positive conduct is applicable, in addressing wrongfulness for the omission or failure to do something.

 

[18] An omission per se is not wrongful unless it is considered to go against legal policy or public considerations, which dictate that a plaintiff be compensated for the loss suffered as a result of such omission. Thus, the approach alluded to above, involves a further enquiry, that being whether there was a legal duty that gave rise to delictual liability. Put differently an omission does not necessarily attract liability, only if it was culpable would it do so.

 

[19] …

 

[20] The duty to prove negligence by conduct or omission lies on Mr Els, as the plaintiff in the trial, as it is trite that he who alleges must prove. Staircases by their very nature are dangerous to traverse, more so, if safety features are lacking and in this instance a second handrail was absent. Thus, even though the staircase, having only one handrail was practical and useable, as per the expert reports, it was not completely safe for use by the M.O.T.H’s members and the public, abled or disabled. It can therefore be accepted that the M.O.T.H’s omission in ensuring that the staircase was safe for use by its members and the public was a catalyst to cause potential harm and no reasonable steps were taken to safeguard its members and the public from this harm.

 

[21] The M.O.T.H conceded that it had a legal duty to take reasonable steps to ensure the premises, inclusive of this staircase, were safe for its members and the public. Thus, a negligent omission on its part can be accepted to have infringed on the policy and legal convictions of the public, as the appellant owed a duty to the public and its members to ensure the safe use of the staircase. This conduct was wrongful as the negligent omission resulted in harm, which with reasonable care could have been avoided. It is thus reasonable that this conduct gives rise to delictual liability. All things considered thus far, this is a classic case as stated by Brand JA in Trustees, Two Oceans Aquarium Trust, where ‘. . . duty of care’ in English Law ‘straddles both elements of wrongfulness and negligence’.

 

[22] In this case, even on the assumptions above, the critical issue is that of causation. The question to be answered is what caused Mr Els to fall backwards on the staircase. He said that he did not know why he fell but he thought that he lost his balance and his foot got stuck whilst they were in the process of transferring Mr Levengs in his wheelchair. The witnesses for the M.O.T.H agreed that he tripped and fell backwards.

 

[23] Despite the fact that the precise manner of the accident is not clear, it is apparent that while helping Mr Levengs, Mr Els overbalanced, tripped and fell backwards, with Mr Levengs and his wheelchair falling onto him. As stated above the combined weight of Mr Levengs and his wheelchair was estimated by the witnesses to be in the region of 120 kilograms. I am prepared to accept for purposes of this judgment that the M.O.T.H’s omission to install a second handrail on the stairs was negligent and wrongful.

 

[24] That, however, is not the end of the enquiry. The element of causation also had to be proved by Mr Els. In my view, he failed to prove a culpably causative relationship between the omission and the harm. It is more probable than not that, when Mr Els overbalanced and fell, a handrail on his side of the stairs would not have averted the harm. Even if he had been able to grab onto such a handrail, the force of 120 kilograms falling onto him from above, would have broken his grip – and he would have fallen and injured himself despite it being present. That he would still have fallen even if the handrail had been there was conceded on his behalf during argument.

 

[25] On an examination of the evidence the conclusion that I have reached is that the M.OT.H’s negligent omission and the wrongful conduct were not the catalysts for the unfortunate accident. Mr Els failed to prove that they were more than likely the cause of the harm. The result is that the appeal must succeed. Costs ought to follow the result, including the costs of two counsel in the appeal.”

As such, it is clear that just because one is injured, through the omission or commission of another, does not mean that you will be able to hold a third party liable for your damages – you have to show and prove all five of the above elements of delict.

This is not intended as a complete legal advise on delictaul law or personal injuries – contact our offices for any further advise or assistance – 021 556 9864 or info@cklaw.co.za