The test for foreseeability of harm
The true criterion for determining negligence is whether in the particular circumstances of each specific case the conduct complained of fell short of the standard of the reasonable person. A court can’t seek guidance from the facts and results of other cases.
In Pick ‘n Pay Retailers (Pty) Ltd v Pillay (900/2020)  ZASCA 125 (29 September 2021) the Supreme Court of Appeal had to decide whether the appellant, Pick ’n Pay Retailers (Pty) Ltd (the defendant), was negligent in the operation of an automated Centurion Sector boom gate (the boom) controlling the exit of vehicles from a parking area for persons with special needs and parents with small children at Pick ’n Pay Hypermarket in Durban North. The plaintiff was injured when the boom struck on her head as it descended from a vertical position.
The plaintiff instituted proceedings against the defendant, alleging that the defendant should reasonably have foreseen the possibility that the boom could cause injury to persons frequenting the shopping centre, and failed to take steps to guard against such occurrence.
Although the risk of the boom descending and striking a person was reasonably foreseeable, counsel for the defendant submitted that the plaintiff had not proved that the defendant was negligent.
The court cited various authorities and authors:
In Kruger v Coetzee, Holmes JA formulated the test for negligence as follows:
‘For the purposes of liability culpa arises if:
(a) A diligens paterfamilias in the position of the defendant-
(i) would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.’
In Sea Harvest Corporation, Scott JA stated that dividing the issue of negligence into various stages, however useful, was no more than an aid or guideline in resolving the issue: in the final analysis the true criterion for determining negligence was whether in the particular circumstances the conduct complained of fell short of the standard of the reasonable person. There is no universally applicable formula which would prove to be appropriate in every case.
In the light of recent authorities, J R Midgley and J C van der Walt in Lawsa have made the following observation:
‘When assessing negligence, the focus appears to have shifted from the foreseeability and preventability formulation of the test to the actual standard: conduct associated with a reasonable person. The Kruger v Coetzee test, or any modification thereof, has been relegated to a formula or guide that does not require strict adherence. It is merely a method for determining the reasonable person standard, which is why courts are free to assume foreseeability and focus on whether the defendant took the appropriate steps that were expected of him or her.’
Applied to the present case, the question is thus whether in the particular circumstances, the defendant took appropriate steps to avoid injury to pedestrians.
‘Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case. No hard and fast basis can be laid down. Hence the futility, in general, of seeking guidance from the facts and results of other cases.’
The SCA found that, in the particular circumstances, the defendant’s conduct fell short of the standard of the reasonable person. In the result the appeal was dismissed with costs.