Two recent decisions of the Supreme Court of
Appeal of South Africa dealing with the delictual elements of
wrongfulness and negligence will be of interest to liability
insurers.
In Pro Tempo v Van der Merwe, the Supreme Court of
Appeal considered an appeal by the owner and operator of a school
for children with learning disabilities, which had been found 80%
liable for the injuries of Jaco van der Merwe, a 13 year old boy
who had become impaled on a steel rod placed alongside a sapling in
the school's playground.
It was unclear exactly how the boy had impaled himself but he
had either leaned against or sat on the rod. On appeal, the school
argued that public policy demanded that because of the boy's
most extra-ordinary and peculiar act, it should not be found
liable. Put differently, the school argued that wrongfulness, one
of the elements of a delict, was absent.
