Chartaprops 16 (Pty) Ltd and Another v Silberman

• Jurisdiction: South Africa
• Judge: Scott JA, Nugent JA, Ponnan JA, Maya JA and Leach AJA
• Judgment Date: 25 September 2008
• Citation: 2009 (1) SA 265 (SCA)
• Docket Number: 300/07
• Hearing Date: 14 May 2008
• Counsel: EJ Ferreira for the first appellant. C Acker for the second appellant. G Nel for the respondent.
• Court: Supreme Court of Appeal

Nugent JA: D

[1] The respondent in this appeal - Mrs Silberman - visited a shopping mall in Johannesburg. In one of the passageways of the mall was a pool of slippery substance - what the substance was has not been established - that had been spilt on the floor. Oblivious to its presence Mrs Silberman slipped on the substance and was injured. The shopping mall was owned by and under the control of the first appellant - Chartaprops - which had contracted with the second appellant - Advanced Cleaning - to keep the floors of the shopping mall clean. E Mrs Silberman sued both appellants in the High Court at Johannesburg for the recovery of her damages. The action was tried by Boruchowitz J who held both appellants jointly and severally liable (the amount of the damages has yet to be determined) but granted them leave to appeal to this court.

F [2] Precisely how the substance came to be on the floor has not been established. It is possible that it was spilt by one of the cleaners but it might just as well have been spilt by a member of the public. The complaint against the appellants is not that they - or those for whose conduct they are legally responsible - created the hazard. The complaint is that they or their employees negligently omitted to detect and remove G the hazard and that the appellants are liable for the consequences of the omission.

[3] Advanced Cleaning had a system in place for cleaning the floors, the details of which are not important. It is sufficient to say that every part of H the floor should ordinarily have been passed over by one or other of the cleaners in the employ of Advanced Cleaning at intervals of no more than five minutes. I think it is clear that the system, if it was adhered to, was adequate to keep the floors in a reasonably safe condition. It is also not disputed that Chartaprops itself kept a regular check on the contractor's performance. Its centre manager consulted each morning I with the cleaning supervisor and personally inspected the floors of the shopping mall daily to ensure that they had been properly cleaned. If he encountered litter or a spillage he would arrange for its immediate removal.

[4] But even the best systems sometimes fail. The learned judge in the J court below found that the spillage had been on the floor for 30 minutes

Nugent JA

or more at the time it was encountered by Mrs Silberman. He said that that A was 'a sufficiently lengthy period so as to constitute a hazard to members of the public and to the plaintiff in particular', that 'the employees of [Advanced Cleaning] failed to take reasonable steps to detect and remove [the hazard]', and that the cleaning system was accordingly 'not sufficiently adequate to detect and remove spillages with B reasonable promptitude'. On that basis he concluded that Advanced Cleaning was negligent and was liable to Mrs Silberman for her damages and that Chartaprops was vicariously liable for the negligence of Advanced Cleaning.

[5] The factual finding by the court below that the substance had been C on the floor for 30 minutes or more at the time the incident occurred - a finding upon which the further conclusions was built - was placed in issue before us but I see no proper grounds to disturb that factual finding. The real questions that arise in this appeal relate rather to the consequences of that finding.

[6] The liability of Chartaprops was held to have arisen vicariously for D what was said to be negligence on the part of Advanced Cleaning and in that respect I think the court below was incorrect. Where liability arises vicariously it is because the defendant and the wrongdoer stand in a particular relationship to one another. Various explanations have been E offered for the existence of the rule that creates liability merely on account of the existence of that relationship - usefully collected by Hartmut Wicke in his thesis entitled Vicarious Liability in Modern South African Law. [1] While none provides a completely satisfactory explanation for the existence of the rule it is nonetheless firmly embedded in our law. It is also well established that the relationships to which the rule applies F do not include the relationship with an independent contractor. That appears from the decision of this court in Colonial Mutual Life Assurance Society Ltd v MacDonald, [2] which has been consistently followed, accurately reflected in the headnote as follows:

A principal is liable for the acts of his agent where the agent is a servant G but not where the agent is a contractor, sub-contractor or the servant of a contractor or sub-contractor.

[7] A defendant might nonetheless be liable for harm that arises from negligent conduct on the part of an independent contractor but where that occurs the liability does not arise vicariously. It arises instead from H the breach of the defendant's own duty (I use that term to mean the obligation that arises when the reasonable possibility of injury ought to be foreseen in accordance with the classic test for negligence articulated in Kruger v Coetzee). [3] It will arise where that duty that is cast upon the I

Nugent JA

A defendant to take steps to guard against harm is one that is capable of being discharged only if the steps that are required to guard against the harm are actually taken. The duty that is cast upon a defendant in those circumstances has been described (in the context of English law) as a duty that is not capable of being delegated: 'the performance of the B duties, but not the responsibility for that performance, can be delegated to another'. [4] Or as it has been expressed on another occasion, it is 'a duty not merely to take care, but a duty to provide that care is taken' so that if care is not taken the duty is breached. [5]

[8] One such case was Tarry v Ashton, [6] in which a lamp that the C defendant had employed an independent contractor to repair was not securely fastened to the wall of the defendant's house and fell on a passer-by. Finding the defendant to be liable Lord Blackman said the following:

But it was the defendant's duty to make the lamp reasonably safe, the D contractor failed to do that; and the defendant, having the duty, has trusted fulfillment of that duty to another who has not done it. Therefore the defendant has not done his duty, and he is liable to the plaintiff for the consequences.

Another was Hardaker v Idle District Council, [7] in which Lindley E LJ described the nature of the duty that was cast upon the council as follows:

But the council cannot, by employing a contractor, get rid of their own duty to other people, whatever that duty may be. If their contractor performs their duty for them, it is performed by them through him, and they are not responsible for anything more. They are not responsible for F his negligence in other respects, as they would be if he were their servant. Such negligence is sometimes called casual or collateral negligence. If, on the other hand, their contractor fails to do what it is their duty to do or get done, their duty is not performed, and they are responsible accordingly.

G [9] That a duty that is cast upon a defendant might be such that it is discharged only if reasonable precautions to avoid the harm are actually taken - and that the defendant who appoints another to take those steps and fails to do will be liable for the failure - was held by this court in Dukes v Marthinusen [8] to be consistent with principles of our law of H delictual liability. In that case the defendant employed an independent contractor to demolish certain buildings. In a claim for damages arising from the negligent performance of the work Stratford ACJ said the

Nugent JA

following after considering various cases in this country and in England, A including the statements of Lord Blackman and Lindley LJ that I have referred to:

The English law on the subject as I have stated it to be is in complete accord with our own, both systems rest the rule as to the liability of an employer for any damage caused by work he authorises another to do B upon the law of negligence . It follows from the law as I have stated it to be that the first and crucial question in this case is to ascertain on the facts of the case whether there was a duty on the employer who authorised the demolition of these buildings to take precautions to protect the public using the highway from possible injury. If there was such duty it could not be delegated and the employment of an C independent contractor is an irrelevant consideration. [9]

[10] In Langley Fox Building Partnership (Pty) Ltd v De Valence [10] this court once more affirmed that the employer of an independent contractor might become liable in that way, though it was careful to emphasise that Stratford ACJ did not purport to say that 'there might be liability as D an invariable rule whenever the work entails danger to the public'. Goldstone AJA said in that case that 'the correct approach to the liability of an employer for the negligence of an independent contractor is to apply the fundamental rule that obliges a person to exercise that degree of care which the circumstances demand'.

[11] Langley Fox was another case in which the defendant employed an E independent contractor to do work on its behalf. The majority held that the defendant should have realised that the work was inherently dangerous and was under a duty to take reasonable steps to guard against the danger. I think it is clear from the following passage that the majority considered that duty to require the defendant to ensure that adequate F precautions were taken (and it held the defendant liable because they were not taken):

Whether such precautions were to be taken by the [defendant] or the contractor, as between them, is a matter depending on their contract. As far as the...