On 27 July 2004 a fellow prayer-group member gave the mother and C a lift to the meeting. This member decided to leave the meeting early and so, together with C’s mother, she went to the car to retrieve C’s baby car seat to place it in another member’s car who had offered to take them home. It took a while to remove the car seat and when the mother returned to the house there was no sign of C. She then alerted the rest of the prayer group and everyone went to look for C. The mother found C lying face down in the swimming pool and immediately dove in and lifted her out of the water. C survived, but suffered severe brain damage.
In the recently reported case of Stedall & Another v Aspeling & Another 2018 (2) SA 75 (SCA) the Aspelings sued the Stedalls for their and C’s damages. The High Court found that both parties were negligent: the Stedalls for their failure to secure the swimming pool’s gates and Mrs Aspeling for her failure to keep C under constant watch. The court apportioned blame on the basis that the Stedalls were twice as culpable as Mrs Aspeling.
The Stedalls, with the High Court’s leave, appealed to the Supreme Court of Appeal, challenging the trial court’s conclusion that, in all the circumstances, they should be held liable for damages in delict.
The Aspelings’ counsel argued that the homeowners (the Stedalls) were negligent in failing to secure the swimming pool’s gates. The Aspelings therefore relied on a negligent omission. However, a negligent omission, as relied on by the Aspelings, is not necessarily regarded as prima facie wrongful.
The Aspelings should not only have alleged that the negligent omission upon which they relied had been wrongful, but also had to plead the facts upon which reliance was placed in support of that contention. However, the Aspelings only alleged the Stedalls’ negligent failure to take reasonable steps to ensure that the swimming pool gate was closed or properly secured.
The crucial question was, irrespective of whether the Stedalls were negligent, whether the failure to secure the gates was wrongful in the particular circumstances. The circumstances were that of a parent bringing her child to a home on a visit, being aware there was a pool on the premises, supervising the child, becoming momentarily distracted and, whilst so distracted, her child wandering off, falling into the swimming pool and suffering brain damage.
Leach JA, writing for the full court, held that the Aspelings failed to establish the element of wrongfulness on the part of the Stedalls and their claim had to fail on that basis alone. The appeal succeeded since the Stedalls’ conduct was not wrongful. Because of this finding it was not necessary to consider the question of the Stedalls’ alleged negligence. Leach JA, for completeness, stated that the Aspelings failed to establish their claim on this basis as well:
There is no absolute duty upon a landowner to ensure that any person upon his property will not be injured in some way. The sources of potential danger to a toddler in a normal domestic household and garden are numerous, and no homeowner can be expected to guard against all the harm that might befall a young child. On the other hand, a homeowner can reasonably expect that a child will be supervised and guarded from harm by its supervising parent, and could not foresee that the parent would be distracted whilst caring for its child.
While the court made reference to a number of foreign judgments, it did not go into the details of each, choosing, rather, to draw attention to the clear theme running through the cases:
Common to all is the sentiment that where small children are in the care and under the supervision of their parents whilst visiting the home of another, the duty to keep the child safe lies with the former and the homeowner should not be held liable in the event of the child falling into the swimming pool when the parent is distracted.
Leach JA concluded that the Aspelings failed to establish that negligence on the part of the Stedalls led to C being injured. However, he stated that this did not imply that “the second appellant (sic)” (intending to refer to C’s mother, the second respondent) was negligent in the tragic affair. Accidents unfortunately do happen, but the fact that an accident happens does not mean that someone must be held liable.