As a result of a devastating fire in a hostel at the University a student was severely and permanently injured.  After considering the relevant legal principles the high court held that the student had proved that by its conduct, in the form of an omission, the University had been negligent and its wrongful conduct caused the student’s injuries.  The disclaimer signed on behalf of the student, a minor at the time, did not exempt the University from liability.

Potgieter v University of Stellenbosch (16936/2010) [2016] ZAWCHC 158 (4 November 2016) per J Cloete J.

Excerpts

[1]   The plaintiff’s claim against the defendant is for damages arising out of serious and permanent injuries he sustained on 9 August 2007 when, as a 21 year old third year student at the Eendrag men’s hostel of the defendant, he had to escape a fire through the window of his top floor room. The merits and quantum having been separated, the trial proceeded on the merits only.

[2]   The plaintiff testified and adduced the evidence of 11 witnesses of which 7 were called as experts. The defendant called 6 witnesses of which 2 testified as experts.  For reasons that will appear later it is not necessary to deal with all of this evidence.

[3]   The plaintiff’s case ultimately boiled down to the following. The defendant was obliged to ensure that proper and reasonable measures and procedures were in place, and were implemented, for the safety of students in its hostels, including in the case of fire.  The absence of fire stops in the common roof void of Eendrag posed a real and imminent fire risk to the residents of the top floor (referred to as the third floor) immediately below the roof void, given that once a fire reaches a roof void it will spread rapidly unless proper preventative measures are in place.

[4]   The plaintiff contends that the defendant was aware of the risk which a fire in non-compartmentalised roof voids posed to the residents in such hostels, and actually took steps between 1984 and 1987 to mitigate the risk, after a similar fire at a women’s residence, Huis Ten Bosch, in 1983.

. . . . .

[10]   The defendant made various admissions in its plea, principally that it was under a legal duty to take and implement adequate and reasonable safety measures to protect occupants of its hostels from the risk of fire and its consequences. However it alleged that it took such steps by installing smoke detectors coupled to an alarm in the roof void of Eendrag, and by adopting a risk management policy for its hostels to comply with its obligations under the Occupational Health and Safety Act 85 of 1993 (the OHS Act) and the regulations issued thereunder, and/or in fulfilment of its legal duty.  In the alternative, the defendant relied on an indemnity clause contained in the plaintiff’s enrolment application to exempt it from any liability.

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The statutory framework in respect of building regulations

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[15]   The National Building Regulations were also not retroactively enforceable at any stage. Local authorities were not required to adopt or enforce them.  Nothing however prevented an owner of a building to upgrade his building to comply, or partially comply with the 1970 Standard Building Regulations or, after 1990, with the National Building Regulations, thus SABS 0400:1990.  At the time of the fire at Eendrag the National Building Regulations (SABS 0400:1990) had already been in existence for 17 years.  Again, evidence was led by the plaintiff that after its acceptance the National Building Regulations (the SABS 0400:1990) constituted best building practice.

[16]   It is common cause that both sets of regulations dealt also with fire safety and fire protection in buildings and contained measures as to how these could be adequately achieved (the 1970 regulations were more stringent in relation to fire stops than the later 1990 regulations). The regulations were well known in the industry for 13 years before the Huis Ten Bosch fire and (in their 1990 form) for 17 years before the Eendrag fire.  Cumulatively they were well known in the industry for some 30 years before the fire at Eendrag.

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Applicable legal principles

[17]   In order to succeed with his claim the plaintiff must show that the defendant was guilty of conduct (in the form of an omission) which was negligent, wrongful and the cause of the plaintiff’s injuries. It is convenient to first outline the applicable legal principles against which the relevant evidence must be assessed.

[18]   The starting point is the dictum of Harms JA in Telematrix (Pty) Ltd v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) para [12]:

‘The first principle of the law of delict, which is so easily forgotten and hardly appears in any local text on the subject is, as the Dutch author Asser points out, that everyone has to bear the loss he or she suffers.  The Afrikaans aphorism is that “skade rus waar dit val”.  Aquilian liability provides for an exception to the rule and, in order to be liable for the loss of someone else, the act or omission of the defendant must have been wrongful and negligent and have caused the loss.  But the fact that an act is negligent does not make it wrongful although foreseeability of damage may be a factor in establishing whether or not a particular act was wrongful.’

. . . . .

[21]   In Za v Smith and Another 2015 (4) SA 574 (SCA) para [30] Brand JA, referring to the test for factual causation said:

‘What it essentially lays down is the enquiry – in the case of an omission – as to whether, but for the defendant’s wrongful and negligent failure to take reasonable steps, the plaintiff’s loss would not have ensued.  In this regard this court has said on more than one occasion that the application of the “but-for test” is not based on mathematics, pure science or philosophy.  It is a matter of common sense, based on the practical way in which the minds of ordinary people work, against the background of everyday-life experiences.  In applying this common-sense, practical test, a plaintiff therefore has to establish that it is more likely than not that, but for the defendant’s wrongful and negligent conduct, his or her harm would not have ensued.  The plaintiff is not required to establish this causal link with certainty.’

. . . . .

[25]   In H v Fetal Assessment Centre 2015 (2) SA 193 (CC) it was said at paras [51] and [67] that:

‘[51]     Our pre-constitutional law of delict is not couched in terms of a duty to protect fundamental rights.  It is clear, however, that many interests and rights protected under the common law quite easily translate into what we now recognise as fundamental rights under the Constitution…

[67]      In addition to the general normative framework of constitutional values and fundamental rights, our law has developed an explicitly normative approach to determining the wrongfulness element in our law of delict.  It allows courts to question the reasonableness of imposing liability, even on an assumption that all the other elements of delictual liability – harm, causative negligence and damages – have been met, on grounds rooted in the Constitution, policy and legal convictions of the community…’

 

[26]   In South African Hang and Paragliding Association and Another v Bewick 2015 (3) SA 449 (SCA) para [23] Brand JA said:

‘Even on the assumption that the appellants had failed to perform a duty imposed on them by statute, the question remains whether their omissions were wrongful in the delictual sense…’

. . . . .

[28]   See also Van der Walt and Midgley: Principles of Delict (4th ed 2016) para 164 p263:

‘…thus a breach of a statutory duty does not necessarily constitute negligence and, vice versa, compliance with a statutory regulation does not ipso iure exclude negligence.’

[29]   Referring to Minister of Safety and Security v Van Duivenboden 2002 (6) SA 431 (SCA) para [21], Brand JA in Bewick went on to say at para [25]:

‘Accountability is therefore just one of the considerations which should, amongst other things, be taken into account…’

 

[30]   In Le Roux and Others v Dey 2011 (3) SA 274 (CC) para [122] the Constitutional Court also pointed out:

‘Incidentally, to avoid confusion it should be borne in mind that, what is meant by reasonableness in the context of wrongfulness has nothing to do with the reasonableness of the defendant’s conduct, but it concerns the reasonableness of imposing liability on the defendant for the harm resulting from that conduct.’

. . . . .

[108]   The defendant did not produce the specific evacuation plan which it contended was affixed to the notice board at Eendrag in 2007. However what was referred to by the defendant was a ‘similar plan’.  This makes no reference whatsoever to the order of evacuation of students in the case of an emergency such as a fire.  Instead it instructs students to:

(a) react to the alarm;

(b) close doors and windows;

(c) switch off lights and electrical points;

(d) collect important personal effects;

(e) wait for instructions to evacuate; and

(f) when they are given, place a cloth over the doorknob outside one’s room and proceed outside.

. . . . .

[114]   It was De Witt’s opinion that, had the risk management system been properly implemented:

(a) the alarm would have been taken seriously by those who awoke;

(b) those responsible for fire fighting would have had at least a chance of extinguishing the fire or bringing it under control before it breached the ceiling; and

(c) evacuation would have commenced earlier and would have occurred systematically, starting with those in direct danger (such as the plaintiff) and progressing to those in least danger (such as those on the ground floor). 

While accepting in cross-examination that proper implementation of the system would not have ensured a positive result, he responded that it would have increased its likelihood.

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Evaluation

[145]   Having regard to the evidence as a whole there is little doubt in my mind that the plaintiff has discharged the onus resting upon him to show that, on a balance of probabilities, the defendant was negligent. A diligens paterfamilias in the position of the defendant would have foreseen, after the Huis Ten Bosch fire, that its failure to take reasonable steps to guard against a similar occurrence would cause injury to students in its hostels.  A diligens paterfamilias in the position of the defendant would also have taken reasonable steps to guard against such an occurrence.  The steps taken by the defendant were not reasonable and fell far short of the reasonableness standard, both in relation to the installation of fire safety measures at Eendrag and in the implementation of its own risk management policy, to which it merely paid lip service.

[146]   The evidence established that, as a matter of common sense, based on the practical way in which the minds of ordinary people work, against the background of everyday life experiences (see Za v Smith (supra)), the defendant’s failure to take reasonable steps caused the plaintiff injuries. The risk of fire spreading unhindered through a roof void was a severe one.  The gravity of the possible harm to students if the risk materialised was serious.  The defendant was financially able to take reasonable steps to adequately address that risk.  The defendant had a risk manager and access to the necessary expertise to adequately address that risk.  The burden of adequately addressing the risk was not unduly onerous (see Ngubane (supra)).  In these circumstances, there is no reasonable basis to arrive at any conclusion other than that the defendant was negligent.

[147]   The defendant’s conduct was also wrongful. The authorities to which I earlier referred make it clear that compliance with a statutory obligation is not itself determinative of this issue, and that other considerations of policy such as accountability, industry norms and constitutional imperatives are equally important.  Stereotypes such as those relating to persons in control of dangerous property are not entirely irrelevant, and they still provide guidance to answering the question whether or not policy considerations dictate that it would be reasonable to impose delictual liability on a defendant in a particular case (Za v Smith).  Foreseeability may also be a factor (Telematrix (supra)).

[149]   As pointed out in H v Fetal Assessment Centre (supra) our law has developed an explicitly normative approach to determining the wrongfulness element in our law of delict, on grounds rooted in the Constitution, policy and legal convictions of the community. As pointed out in Le Roux and Others v Dey (supra) reasonableness in the context of wrongfulness has nothing to do with the reasonableness of the defendant’s conduct, but rather concerns the reasonableness of imposing liability on the defendant for the harm resulting from that conduct.

[150]   During closing argument the defendant’s counsel urged me to exercise caution in making the required value judgment because of the potential consequences to other owners of buildings such as Eendrag in its pre-August 2007 condition. I have given this careful consideration, but believe that the answer lies in what the Constitutional Court said in H v Fetal Assessment Centre at para [70]:

‘A further general objection is that of the possibility of indeterminate liability.  That is a bogey often raised when the law needs to cater for new circumstances and one that almost always fails to materialise in the wake of innovation…’

[151]   In referring to this passage I do not suggest that what I am dealing with in this matter are ‘new circumstances’. The point is rather that, by finding that it is reasonable to impose liability on the defendant, the finding is based on the particular circumstances of this individual case.  All cases such as these are fundamentally fact bound and a finding of wrongfulness will depend on each particular set of proven facts.  To my mind therefore a finding of wrongfulness in this matter will not have the automatic consequence of opening the floodgates of potential liability for others.

[152]   In finding wrongfulness I have taken into account the following. What constituted reasonable and adequate safety measures had been well known in the industry for 30 years before the Eendrag fire.  Not only the defendant but many affected students had the experience of the Huis Ten Bosch fire in 1983.  The primary cause of its spread was publicised in the community.  The plaintiff and other students who reside in hostels such as Eendrag have a constitutional right to bodily integrity.  Institutions such as the defendant should be accountable for the safety of those who live and sleep in the premises which they own and manage.  Students are, after all, students and for most of them residence in a hostel is just one step further away from parental care and supervision.  They are generally not mature adults in the true sense.  Their parents should be able to place their faith in these institutions to have adequate measures to address the safety of their children.  These parents and students represent a not insignificant sector of society.  These considerations have led me to conclude that it would be reasonable to impose liability on the defendant in the particular circumstances of this case.

The indemnity clause

[153]   The defendant’s alternative defence is that it is relieved of any reliability by virtue of an indemnity clause, being clause G(1)(f) of the plaintiff’s written application for enrolment. It is common cause that he signed this application at the age of 17 and was therefore assisted by his mother who was his guardian reads that:

‘(f)        dat ek onderneem om geen eis van enige aard teen die Universiteit of enige werknemer van die Universiteit in te stel nie en om op geen wyse hoegenaamd die Universiteit aanspreeklik te hou vir enige skade of verlies wat ek persoonlik of aan eiendom van my mag ly en wat regstreeks of onregstreeks spruit uit my deelname gedurende my studietydperk aan die Universiteit aan enige aktiwiteit van watter aard ook al, wat te doen het met my studie of opleiding of met sport of ontspanning van enige aard, hoe sodanige skade of verlies ook al mag ontstaan en dat ek aan enige van die gemelde bedrywighede op my eie verantwoordelikheid sal deelneem en die risiko daaraan verbonde vrywillig aanvaar…’

[154]   In essence the defendant contends that ‘enige aktiwiteit’ includes sleeping in its hostels, because ‘ontspanning’ includes rest and relaxation.

[155]   To my mind the interpretation which the defendant seeks to place on this clause is both strained and artificial. Having regard to the principles in Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA), the plain language of the clause (which is the starting point) reflects that in order for the indemnity to have any effect the plaintiff must first have voluntarily participated in an activity relating to the period of his study.  Sleep is an essential, involuntary, biological function.  It is also not an activity which flows from the plaintiff’s ‘studietydperk’.

[156]   Moreover, the clause cannot merely be considered in isolation. The context in which it was produced, and the material known to those responsible for its production (i.e.  the defendant) must also be taken into account.  At the time the plaintiff signed the enrolment application (on 21 June 2004) the defendant had already identified fire as a real risk to students sleeping in its hostels and had issued both its 1998 and 2003 rule booklets.  If it was ever the defendant’s intention that a student, while asleep, would be regarded by it – contrary to the very tenor of its own risk management policy – as voluntarily participating in an activity linked to his period of study then, peculiar though it would be, the defendant would surely have specifically included ‘sleep’ in its indemnity clause.  There is no merit in this defence, and it must fail.