The Unseen Shield: Foreseeability of Damages in Delictual Claims

Introduction
In the realm of delictual claims, the concept of foreseeability of damages is both fundamental and frequently underestimated. Plaintiffs often focus on the harm suffered and the apparent negligence of the defendant, but delictual liability requires a more nuanced assessment—particularly of whether the harm was reasonably foreseeable. Foreseeability plays a pivotal role in evaluating both negligence and wrongfulness, especially in cases involving omissions. This principle was brought into sharp focus in the recent case of Shirbeza v Tobitrix (Pty) Ltd, where the court was called upon to determine whether a building owner could be held liable for injuries sustained by a pedestrian after a glass window unexpectedly fell from an upper floor. 

Facts of the Case
On 10 February 2021, Mr Sultan Zeberga Shirbeza (“the plaintiff”) was walking on the pavement in front of the Medical One Shopping Centre in Johannesburg when a glass window fell from the building, striking his left forearm.  The injury necessitated immediate medical attention, and the plaintiff was taken to the Lister Medical Centre.  The defendant offered the plaintiff R50,000.00 as damages, which he rejected, electing instead to institute legal action to recover the damages he believed was due to him. 

Elements of Delict
To succeed in his claim, the plaintiff was required to prove all five elements of delictual liability: conduct, wrongfulness, fault (in the form of negligence), causation, and harm. The court’s analysis centred on whether the defendant owed the plaintiff a legal duty of care, whether that duty was breached, and whether such breach resulted in the harm suffered.

1. Conduct: The plaintiff alleged that the defendant’s failure to properly maintain the building’s windows amounted to negligent conduct. 
2. Wrongfulness: The court had to determine whether the defendant’s conduct, in the form of an omission, was wrongful. In contrast to positive acts—where wrongfulness is generally presumed—omissions require the plaintiff to establish that a legal duty to act existed. Such a duty arises from public and legal policy considerations, and while the foreseeability of harm does not by itself create a legal duty, it is a key factor in assessing whether it is reasonable to impose liability for failing to act. 
3. Fault (Negligence): The plaintiff needed to demonstrate that the defendant acted negligently by failing to foresee the risk of harm—specifically, the possibility of a window falling and injuring a pedestrian—and by not taking adequate steps to prevent such harm. 
4. Causation: There had to be a clear causal link between the defendant’s alleged failure to act and the harm suffered by the plaintiff. 
5. Harm: The plaintiff had to prove that he suffered actual, compensable harm as a direct result of the incident. 

Court’s Findings
In evaluating the element of negligence, the court applied the standard of whether a reasonable building owner in the position of the defendant would have foreseen the possibility of harm and taken steps to prevent it. The court found that the defendant had installed a balcony specifically designed to act as a protective barrier for pedestrians below, thereby taking reasonable precautions against falling objects. It held that there was no evidence—nor did the plaintiff establish—that a reasonable building owner would have been expected to implement additional or alternative measures beyond those already in place. As such, the defendant’s conduct did not fall short of the standard of care required in the circumstances.

When considering the issue of wrongfulness, the court reiterated that liability for an omission requires more than just proof of harm. It must be shown that the defendant had a legal duty to act, which depends on considerations of public and legal policy. Central to this inquiry is whether the harm was reasonably foreseeable. The court found it would be far-fetched to suggest that the defendant should have foreseen that a glass window would detach from the upper floors of the building and cause injury to a pedestrian. In light of the existing protective measures and the absence of any prior incidents or warning signs, the court held that the harm was not reasonably foreseeable. Consequently, the omission was not considered wrongful, and delictual liability did not arise.

Conclusion
The case of Shirbeza v Tobitrix (Pty) Ltd highlights the central role that foreseeability plays in establishing delictual liability. While the plaintiff undoubtedly suffered harm, the court emphasised that liability does not arise merely because harm occurred. Rather, a nuanced legal inquiry is required to determine whether the harm was reasonably foreseeable and whether the defendant failed to take the steps that a reasonable person in their position would have taken to prevent it. The court found that the protective measures in place—particularly the installation of a balcony—demonstrated that the defendant had acted reasonably, thereby negating negligence. 

Moreover, the case reinforces the stricter standard applied when assessing wrongfulness in instances of omission. Unlike positive conduct, where wrongfulness is generally presumed, an omission will only be wrongful if a legal duty to act exists. This duty must be grounded in considerations of public and legal policy, with the foreseeability of harm serving as a crucial factor in that determination. In the absence of such a duty, and where the harm was not reasonably foreseeable, the failure to act does not attract delictual liability. 

Article written by:  Jean-Paul Rudd
Partner, Adams and Adams