Chartaprops 16 (Pty) Ltd v Silberman

(300/07)  (2009 (1) SA 265 (SCA) ; [2009] 1 All SA 197 (SCA); (2009) 30 ILJ 497 (SCA)) [2008] ZASCA 170; [2008] ZASCA 115 (25 September 2008)

Media Statement

‘Today the majority of the Supreme Court of Appeal (SCA) upheld an appeal by Chartaprops 16 (Pty) Ltd (Chartaprops) which carries on business as the Killarney Shopping Mall (the Mall) in Johannesburg and dismissed an appeal by Advanced Cleaning Services (CC) (Advanced Cleaning) with whom the former had contracted to provide cleaning services at the Mall.

What gave rise to the appeal was an action instituted by Ms Michelle Silberman, a conference tele- marketer, who slipped on a gel-like substance and fell in the pedestrian passage on the upper level of the Mall during the course of the afternoon of 14 December 2000. In consequence of the fall, she sustained fractures to both elbows, as well as certain abrasions and soft tissue injuries. She accordingly sued both Chartaprops and Advanced Cleaning in the Johannesburg High Court. The issues of liability and quantum were separated and the trial proceeded solely on the former. The High Court held both Chartaprops and Advanced Cleaning jointly and severally liable to her for such damages as may in due course be agreed upon or proved.

On appeal, the majority of the SCA re-affirmed the general principle in our law that a principal is not liable for the wrongs committed by an independent contractor or its employees. As Chartaprops was obliged to take no more than reasonable steps to guard against foreseeable harm to the public, which it had done by engaging a competent contractor, it could not be held liable to Ms Silberman. Insofar as Advanced Cleaning was concerned, the damage complained of was caused solely as a result of the defective performance by one of its employees of the work entrusted to it. The majority accordingly held that the finding by the High Court that Advanced Cleaning was liable, could accordingly not be faulted and its appeal thus had to fail.

The minority judgment held that the duty cast upon Chartaprops in this case was not capable of being delegated to Advanced Cleaning. It accordingly held that it would have dismissed the appeal by Chartaprops and upheld the appeal by Advanced Cleaning.”

PONNAN JA (SCOTT and MAYA JJA and LEACH AJA concurring):

[27] I have read the judgment of Nugent JA with which I respectfully am unable to agree.

The salient facts, which for the most part are either common cause or undisputed, are set out in the judgment of my learned Colleague.

[28] The general rule in our law is that a principal is not liable for the wrongs committed by an independent contractor or its employees. But, as Glanville Williams put it:

‘One of the most disturbing features of the law of tort in recent years is the way in which the courts have extended, seemingly without any reference to considerations of policy, the liability for independent contractors’.
Prominent among the cases that sowed the seeds of the large extension that has since taken place was Dalton v Angus and the oft-quoted remark that ‘a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor’.

As has been correctly observed, this dictum if literally applied, would create vicarious responsibility for any and every act of negligence performed by an independent contractor in the course of doing the work and would efface the whole distinction between employee and independent contractor.

[29] When a principal will indeed be liable for the negligence of an independent contractor has been the subject of continuing debate in foreign jurisdictions. A legacy of that debate in the terminology of English Law is the concept of non-delegable duty. A more accurate description of what is at play is captured by the alternative name for a non-delegable duty, namely, a ‘personal duty’.

A duty of this nature involves what has been described as ‘a special responsibility or duty to see that care is taken’. Such a duty enables a plaintiff to outflank the general principle that a defendant is not vicariously responsible for the negligence of an independent contractor where the causative agent of the negligence relied on was not an employee of the defendant but an independent contractor.

[30] From a practical standpoint, according to Fleming ‘its most perplexing feature is the apparent absence of any coherent theory to explain when, and why, a particular duty should be so classified’ and ‘whether the resulting uncertainty and complexity of the law is matched by any corresponding advantages’.

That complexity and uncertainty may well be compounded in our law, for, as Scott JA observed in McIntosh v Premier, KwaZulu-Natal:

‘But the word “duty”, and sometimes even the expression “legal duty” [in the context of the second leg of the test for negligence as formulated by Holmes JA in Kruger v Coetzee], must not be confused with the concept of ”legal duty” in the context of wrongfulness which, . . . is distinct from the issue of negligence. . . . The use of the expression “duty of care” is similarly a source of confusion. In English law “duty of care” is used to denote both what in South African law would be the second leg of the inquiry into negligence and legal duty in the context of wrongfulness. As Brand JA observed in the Trustees, Two Oceans Aquarium Trust case, at 144F, “duty of care” in English law “straddles both elements of wrongfulness and negligence” ’.

(See also Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA. )

[31] Indeed it has been said that the classification of a duty as non-delegable in the circumstances of particular cases rests on little more than assertion. According to Kirby J,

‘The law governing non-delegable duties of care has been described as a “mess”, comprising “a random group of cases” giving rise to a basis of liability that is “remarkably under-theorised”. The instances in which a non-delegable duty has been upheld have been variously labelled “an inexplicable rag-bag of cases” comprising an erroneous feature of the “über-tort of negligence” and an “embarrassing coda” to judicial and scholarly writings on the scope of vicarious liability for wrongs done by others. Judges have been taken to task for their reluctance, or incapacity, to express a clear theory to account for the nature and ambit of non-delegable duties of care. The whole field has been assailed as one involving serious defects, containing numerous “aberrations” that have plunged this area of the law of tort into “juridical darkness” and “conceptual uncertainty”. Courts of high authority have been accused of coming to the right result for the wrong reasons; or the wrong result despite adopting the right reasons’.

[32] Kondis v State Transport Authority (1984) 154 CLR 672, identified some of the principal categories of case in which the duty to take reasonable care under the ordinary law of negligence is non-delegable: namely –

  • adjoining owners of land in relation to work threatening support or common walls;
  • master and servant in relation to a safe system of work;
  • hospital and patient;
  • school authority and pupil. (See also Saayman v Visser. )

[33] One further category of case to which Kondis alluded was that of invitor and invitee. However, certainly in Australia, it must now be taken as settled that in relation to a person in the position of an invitee, the duty of an invitor is no more and no less than the ordinary duty to take reasonable care. For, as it was put in Voli v Inglewood Shire Council and Another,

‘But, even without the aid of a statue such as now exists in England, the trend of judicial authority has been to treat the liability of an occupier for mishaps upon his premises as governed by a duty of care arising from the general principles of the law of negligence. The special rules concerning invitees, licensees and others are ultimately subservient to those general principles. Instead of first looking at the capacity in which the plaintiff comes upon the premises, and putting him into a category by which his rights are measured, the tendency now is to look at all the circumstances of the case, including the activities of the occupier upon, or in respect of, the premises, and to measure his liability against the conduct that would be expected of a reasonably careful man in such circumstances. . . . . It seems better to appreciate that the ultimate question is one of fact and governed by general rules, than to create new categories and distinctions.’

[34] According to John Murphy,

‘[i]f we consider various classic examples of a non-delegable duty – such as the duty owed by an employer to his employees…, by a health authority to hospital patients… or by an education authority to school children… – we can see in each case the presence of especial vulnerability. Employees in the workplace, patients in hospital beds and children at single-teacher schools all have in common the fact that they find themselves in an environment the safety of which is controlled by some other person in whom they are required to place some measure of trust and reliance. Even if we turn to the various non-classic, but equally well established, categories of non-delegable duty – that is, where the defendant was in control of an abnormally dangerous person, or an abnormally dangerous thing… – we can again see the presence of either abnormal risk or heightened vulnerability’.

But as Murphy is himself quick to point out

‘it must be conceded at the outset that any explanatory account of the kind or kinds of liability attached to non-delegable duties based on the existing case law requires an exercise in selectivity. This is because the judges are as divided in their views as academics’.

[35] Some cases have been explained as turning on strict liability whilst others, as a form of vicarious liability. As to the former, Kirby J noted,

‘It is sufficient to notice that decisions of this Court after Kondis, … point out the many difficulties that lie behind adopting principles cast in terms of non-delegable duties. Not least of these difficulties is that a non-delegable duty is a form of strict liability and Burnie Port Authority … shows the disfavour with which strict liability is now viewed.’
Strict liability, I may add, is viewed with similar disfavour by our courts (see Wagener v Pharmacare Ltd; Cuttings v Pharmacare Ltd 2003 (4) SA 285 (SCA)). Vicarious liability as a postulate is equally untenable for it flies in the face of the general principle that a person is not liable for an accident occurring without his own fault or that of his servants in the course of their employment. Little wonder then that Fleming would describe those cases as a disguised form of vicarious liability under the fictitious guise of non-delegable duties. To once again borrow from Glanville Williams,

‘[w]e need some sensible reason why, in any particular case, he should be liable where the injury occurs without his fault but through the fault of an independent contractor employed by him. No reason is furnished in the judgments under discussion. Instead, we are merely treated to the logical fraud of the “non-delegable duty” ’.

[36] Many of the statements explaining the nature and consequences of a non-delegable duty, have been criticised on the ground that they offer no criteria distinguishing those duties which are non-delegable from those which are not. But apart from true instances of strict liability particularly where the duty is a statutory one, the distinction between delegable and non-delegable duties does not, it seems, really amount to more than the adoption of convenient headings for those cases in which defendants have been held not liable for the negligence of independent contractors and cases in which they have. However, the explanation given for the non-delegable relationship has been very general – no more than the existence of ‘some element’ that ‘makes it appropriate’ to impose on the defendant a duty to ensure that the safety of the person and property of others is observed – a duty not discharged merely by securing a competent contractor. The truth, according to Glanville Williams,

‘seems to be that the cases are decided on no rational grounds, but depend merely on whether a judge is attracted by the language of non-delegable duty’.

[37] It would be fair to say that there has been great expansion in recent years of the use of independent contractors, and out-sourcing in the place of employees. It is unlikely that vicarious liability for servants would ever have developed if servants as a class had been capable of paying damages and costs. The historical rationale for imputing liability to a master, namely that they had deeper pockets hardly applies, I daresay, to most modern contractors, who may in fact be wealthier than their principals.

Where both principal and independent contractor are large firms or covered by insurance the incidence of liability may not matter much. But where the principal is an individual without insurance, the imposition of liability upon him may cause grave hardship. From the point of view of a plaintiff, the only case in which the liability of a principal is advantageous is where the independent contractor is unable to pay damages.

Whether indeed this situation is sufficiently frequent to warrant provision being made for it must be open to doubt, particularly when it adds so greatly to the difficulty of the law.

Courts have to be pragmatic and realistic, and have to take into account the wider implications of their findings on matters such as these (Tsogo Sun Holdings (Pty) Ltd v Qing-He Shan 2006 (6) SA 537 (SCA) para 10).

[38] It must be accepted that the content of the ordinary common law duty is to exercise reasonable care (and skill) or to take reasonable steps to avoid risk of harm to a person to whom the duty is owed. The degree or standard of care required varies with the risk involved. It follows that those who engage in inherently dangerous operations must take precautions not required of persons engaged in routine activities. This involves no departure from the standard of reasonable care for it predicates that the reasonable person will take more stringent precautions to avoid the risk of injury arising from dangerous operations.

The concept of personal duty departs from the basic principles of liability in negligence by substituting for the duty to take reasonable care a more stringent duty – a duty to ensure that reasonable care is taken.

[39] Traditionally, non-delegable duties have been held to apply in instances where;

  • first, the defendant’s enterprise carries with it a substantial risk and
  • secondly, the defendant assumed a particular responsibility towards the claimant.

Neither of which in my view is present in this case. As already stated, our ‘ordinary’ law of negligence does take proper account of the presence of abnormally high risks and especial vulnerabilities. Thus where those features are found to be present our law expects greater vigilance from a defendant to prevent the risk of harm from materialising, for that according to our law is what a reasonable person in the position of the defendant would do. In the nature of a coherent legal doctrine, the response of our law in those circumstances should not be to impose strict liability or to resort to a disguised form of vicarious liability but rather to insist on a higher standard of care.

It follows that the correct approach to the liability of a principal for the negligence of an independent contractor is to apply the fundamental rule of our law that obliges a person to exercise that degree of care that the circumstances demand.

In Cape Town Municipality v Paine, Innes CJ said:

‘The question whether, in any given situation, a reasonable man would have foreseen the likelihood of harm and governed his conduct accordingly, is one to be decided in each case upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen and guarded against by the diligens paterfamilias, the duty to take care is established, and it only remains to ascertain whether it has been discharged. Now, the English Courts have adopted certain hard and fast rules governing enquiries into the existence of the duty and the standard of care required in particular cases. Speaking generally, these rules are based upon considerations which, under our practice, also would be properly taken into account as affecting the judgment of a reasonable man; and the cases which embody them are of great assistance and instruction. But, as pointed out in Transvaal and Rhodesian Estates Ltd v Golding 1917 AD 18 and Farmer v Robinson Gold Mining Co 1917 AD 501, there is an advantage in adhering to the general principle of the Aquilian law and in determining the existence or non-existence of culpa by applying the test of a reasonable man’s judgment to the facts of each case. The larger latitude allowed in such an enquiry is to be preferred to restriction within the more rigid limits of the English rules. It must be noted, however, ─ and the above remarks are subject to that proviso – that mere omission did not under the lex aquilia constitute culpa; it only did so when connected with prior conduct.’

[40] There is an obvious difference between

  • committing work to a contractor to be executed from which, if properly done, no injurious consequences can arise, as happened in this case (the first category), and
  • handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted (the second category).

In this regard Colman AJ stated in Crawhall v Minister of Transport:

‘Nor, in my judgment, is the occupier of premises liable for the consequences of the negligent conduct on those premises of an independent contractor whom he has engaged to do work thereon, if the negligent act or omission was not one which was authorised by or known to the occupier or one which could reasonably have been foreseen, provided that the work which the independent contractor was engaged to do was not pregnant with danger to persons expected to be on the property. But if work has to be done on premises to which the public have access, and that work can reasonably be expected to cause damage unless proper precautions are taken, the duty of the occupier to see that those precautions are taken and that the premises are safe persists, whether he does the work himself or through his own servants or delegates it to an independent contractor. That seems to me to be the effect of the judgment of Stratford, ACJ, in Dukes v Marthinusen, 1937 AD 12, and …’.

[41] That distinction emerges as well from the decision of Minister of Posts and Telegraphs v Jo’burg Consolidated Investment Co., Ltd 1918 TPD 253, which held (at p 260):

‘where an act which is carried out with proper precautions will ordinarily speaking not cause danger, the doctrine of the independent contractor applies’.

Whilst it may be just to hold the party authorising the work in the first category of case exempt from liability for injury resulting from negligence which he had no reason to anticipate, there may well be, on the other hand, good ground for holding him liable for injury caused by an act certain to be attended with injurious consequences if such consequences are not in fact prevented.

That it seems to me, as I have attempted to demonstrate, is consistent with our ‘ordinary’ law of negligence. In the second category, if liability is to attach to the principal it would be in consequence of his/her negligence in failing to take preventative measures to prevent the risk of harm from materialising that a reasonable person in those circumstances would have taken, rather than in accordance with a proposition framed in terms of a non-delegable duty. That proposition according to Hayne J, on examination, not only has ‘no sound doctrinal foundation’ but ‘cannot stand with the restatement of the [Australian] common law of negligence …’.

[42] More recently Langley Fox Building Partnership (Pty) Ltd v De Valence acknowledged the general rule of no liability of a principal for the civil wrongs of an independent contractor except where the principal was personally at fault. The test for negligence in a case such as this, consonant with the classic test for culpa laid down in Kruger v Coetzee, was set out by Goldstone AJA as follows:

‘(a) would a reasonable man have foreseen the risk of danger in consequence of the work he employed the contractor to perform? If so,
(b) would a reasonable man have taken steps to guard against the danger? If so,
(c) were such steps duly taken in the case in question?’

[43] In determining the answer to the second enquiry into negligence, Goldstone AJA emphasized the following, albeit by no means exhaustive list of factors:

‘[t]he nature of the danger; the context in which the danger may arise; the degree of expertise available to the employer and the independent contractor respectively; and the means available to the employer to avert the danger.’

Applying this test of negligence to the facts, Goldstone AJA held that it was foreseeable to a reasonable person in the position of Langley Fox that the workmen erecting the ceiling would require some form of construction to raise it above the level of the sidewalk, as an obstruction of such a nature would necessarily constitute a source of serious potential danger to pedestrians using the sidewalk. Accordingly,

‘[T]o place it there, and no more, was an inherently dangerous act.’

[44] It is not easy to see why an exception should be specifically carved out allowing a person injured to recover from a principal in addition to the normal rights that the person enjoys against the independent contractor posited as the effective cause of the wrong. In particular, it is difficult to see why the general policy of the law that the economic cost of the wrong should be borne by the legal entity immediately responsible for it, should not be enforced in this case. Furthermore, to shift the economic cost of negligent acts and omissions from Advanced Cleaning, the independent contractor with primary responsibility, to Chartaprops, because of the legal fiction of non-delegability, appears to me to be undesirable.

[45] There are few operations entrusted to an independent contractor by a principal that are not capable, if due precautions are not observed, of being sources of danger to others. If a principal were to be held liable for that reason alone the distinction between ‘employee’ and ‘independent contractor’ will all but disappear from our law.

This plainly is not the type of case where it can be said that Chartaprops negligently selected an independent contractor or that it so interfered with the work that damage results or that it authorised or ratified the wrongful act. The matter thus falls to be decided on the basis that the damage complained of was caused solely by the wrongful act or omission of the independent contractor, Advanced Cleaning or its employee.

[46] Chartaprops did not merely content itself with contracting Advanced Cleaning to perform the cleaning services in the shopping mall. It did more. Its centre manager consulted with the cleaning supervisor each morning and personally inspected the floors of the shopping mall on a regular basis to ensure that it had been properly cleaned. If any spillage or litter was observed, he ensured its immediate removal.

That being so it seems to me that Chartaprops did all that a reasonable person could do towards seeing that the floors of the shopping mall were safe. Where, as here, the duty is to take care that the premises are safe I cannot see how it can be discharged better than by the employment of a competent contractor. That was done by Chartaprops in this case, who had no means of knowing that the work of Advanced Cleaning was defective. Chartaprops, as a matter of fact, had taken the care which was incumbent on it to make the premises reasonably safe.

[47] Neither the terms of Advanced Cleaning’s engagement, nor the terms of its contract with Chartaprops, can operate to discharge it from a legal duty to persons who are strangers to those contracts. Nor can they directly determine what it must do to satisfy its duty to such persons. That duty is cast upon it by law, not because it made a contract, but because it entered upon the work. Nevertheless its contract with the building owner is not an irrelevant circumstance, for it determines the task entered upon.

[48] Chartaprops was obliged to take no more than reasonable steps to guard against foreseeable harm to the public. In this regard, it is well to recall the words of Scott JA in Pretoria City Council v De Jager:

‘Whether in any particular case the steps actually taken are to be regarded as reasonable or not depends upon a consideration of all the facts and circumstances of the case. It follows that merely because the harm which was foreseeable did eventuate does not mean that the steps taken were necessarily unreasonable. Ultimately the inquiry involves a value judgement.’

Applying that test I am satisfied that the High Court erred in holding Chartaprops liable. Its finding in relation to Advanced Cleaning, however, cannot be faulted.

[49] As to costs. In my view no warrant exists for a departure from the general rule that costs should follow the result in this case.

[50] In the result:

1 The appeal of the first appellant is upheld with costs.
2 The appeal of the second appellant is dismissed with costs.
3 The order of the court below is set aside and the following is substituted in its stead:
‘(a) The claim against the first defendant is dismissed with costs.
(b) It is declared that the second defendant is liable to the plaintiff for such damages as might be agreed upon or proved in consequence of the event that is the subject of this claim.
(c) The second defendant is ordered to pay the plaintiff’s costs.’