How close is too close?
By Lerissa Rooplal
Deacon v Reeds Motor Group, a decision of the High Court, Cape Town on 18 March 2020, dealt with a claim for damages suffered due to personal injury.
Some car dealerships in the Cape Town Foreshore display their stock on the pavement. On the relevant day, Reeds had five or six vehicles, including a BMW 540i, parked in a line-up on the pavement outside its showroom in Christian Barnard Street. The vehicles blocked the entire width of the pavement, save for some space between the showroom windows and the backs of the vehicles.
Walking along the pavement, Mr Deacon successfully negotiated his way past the vehicles until he came to the BMW, the rear bumper of which was about 45 cm from the showroom windows. A tow bar protruded at the rear of the BMW, and “he had not been aware of it before his leg came into contact with it, unexpectedly interrupting his forward motion and toppling him from his feet“.
Indignant about what had happened, and in some pain as a result of his fall, Deacon immediately went into the Reeds showroom to complain, but he was given an unsympathetic reception by the staff. So, he sued Reeds on the basis that it was negligent by failing to ensure that the BMW did not constitute a source of danger to the public (a claim in delict).
The Court considered the classic three questions in respect of negligence:
- Whether the reasonable person in the position of Reeds would have foreseen the reasonable possibility of its conduct injuring another (and causing that person financial loss).
- Whether the reasonable person would take steps to guard against such occurrence.
- Whether Reeds failed to take such steps.
The Court held that Reeds had indeed been negligent.
The next question was whether there had been contributory negligence on the part of Deacon. Under the Apportionment of Damages Act, the negligence of all the relevant parties is considered and the damages then apportioned (divided) by the amount each party’s negligence contributed to the damages. The Court held that:
“The evidence suggests that had he been more watchful, he probably would have seen the tow bar and been able to take steps to avoid coming into collision with it. In the result I am satisfied that [Reeds] has shown that [Deacon] was contributorily at fault.”
The Court apportioned the liability 65/35%, meaning:
“It would be just and equitable were [Reeds] to be held liable for only 65 percent of the quantum of such damages as [Deacon] might prove.”
One must proactively consider the potential consequences of one’s deeds, and look where you walk.