Pauw v Du Preez

The respondent (Du Preez) visited a house owned by the appellant (Pauw) in Strand on Christmas Eve 2005. When leaving the property at around 11 pm, the respondent descended a flight of stairs. After passing through a security gate on the stairway, she closed and latched the gate. Immediately after securing the latch, she lost her balance and fell from the unprotected portion of the stairway on the garage side below the gate level (approximately 1.2 metres drop). The stairway was flanked on one side by a handrail, but the section on the garage side below the gate had no safety railing or protection. The respondent sustained bodily injuries as a result of the fall. The respondent suffered from a right-sided hemiplegia (resulting from a childhood brain injury) which caused a limp, but she was an accomplished para-olympic athlete who had participated in long-distance running and stair training. The appellant acquired the property from her parents (who had owned it since the 1950s) and resided there permanently from 2002, with formal transfer occurring in 2004.

• Whether the appellant's failure to install a safety railing on the unprotected portion of the stairway constituted wrongful and negligent conduct
• Whether the respondent was contributorily negligent in: (a) closing the gate herself despite her physical disability; and/or (b) losing her balance and falling from the stairway
• Whether the onus to prove contributory negligence had been discharged by the appellant

The appeal was dismissed with costs. The trial court's finding that the appellant was liable to compensate the respondent for damages (quantum to be determined separately) was upheld.

The binding legal principles established are: (1) In delictual claims based on omission, wrongfulness and negligence are separate and discrete elements which must not be confused - wrongfulness concerns whether the legal convictions of the community would impose liability, while negligence concerns whether a reasonable person would have foreseen the harm and taken steps to avoid it; (2) A person who loses balance and falls does not, by that fact alone, act negligently - there must be evidence establishing the cause of the loss of balance and that it resulted from a failure to take reasonable care; (3) Where the cause of an accident remains unexplained, a defendant cannot discharge the onus of proving contributory negligence through speculation; (4) The reasonable person standard does not require excessive caution - a reasonable person ventures into the world and takes reasonable chances; (5) A person with a physical disability is not required to refrain from ordinary activities they have demonstrated capability to perform, and undertaking such activities does not constitute negligence per se.

The court made non-binding observations that: (1) The fact that no one had previously fallen from the stairs did not excuse the appellant from liability - as the saying goes, 'there is a first time for everything'; (2) Had there been evidence that the respondent had stepped backwards off the edge of the stairway, there may have been room for an argument of contributory negligence; (3) The court noted with implicit approval the respondent's courage and determination in accepting her physical disability, including her accomplishments as a para-olympic athlete; (4) The court noted that academic criticism of the distinction between wrongfulness and negligence in delictual liability persists 'from certain quarters' notwithstanding that the distinction is now well established in South African law (citing the contemporaneous decision in Za v Smith).

This case reinforces important principles in South African delictual law: (1) It confirms the distinction between wrongfulness and negligence as separate elements of delictual liability in cases of omission; (2) It clarifies the standard of the reasonable person in negligence, emphasizing that a reasonable person is not overly timorous but 'ventures out into the world, engages in affairs and takes reasonable chances' (following Herschel v Mrupe); (3) It establishes that the mere fact of losing balance and falling does not, without more, give rise to an inference of negligence; (4) It demonstrates the proper application of the onus of proof in contributory negligence - the defendant bears the burden and cannot rely on speculation where the cause of an accident remains unexplained; (5) The case illustrates the courts' approach to persons with disabilities - they should not be held to an unreasonably cautious standard where they have demonstrated capability to manage their condition.