Levendal v Balakrishma (CA412/2008) [2009] ZAECGHC 50 (7 August 2009)

Levendal v Balakrishma (CA412/2008) [2009] ZAECGHC 50 (7 August 2009)

The respondent's conduct was both wrongful and negligent. Wrongfulness was established by the unreasonable use of deadly force against a fleeing suspect accused of minor offences. Negligence was proven as a reasonable person in the respondent's position would have foreseen the risk of harm from running with a cocked firearm and finger on the trigger, and would have taken the simple precaution of removing the finger from the trigger. The respondent failed to take this precaution, resulting in the appellant being shot. The trial court erred in granting absolution from the instance; the respondent is liable for damages caused by the shooting.

Citation
[2009] ZAECGHC 50
Parties
Appellant: T. S Levendal; Respondent: A. Balakrishma
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
7 August 2009
Case Number
CA412/2008
Procedural Posture
Civil Appeal / Appeal From Trial Court Absolution From the Instance
Outcome
Appeal upheld. The respondent is liable for damages to the appellant resulting from the shooting.
Judges
Plasket, Kroon, Pillay
Legal Topics
Negligence, Wrongful Conduct, Use of Deadly Force, Damages, Foreseeability, Liability for Firearm Discharge
Delict Negligence Wrongful Conduct Use of Deadly Force Damages Foreseeability Liability for Firearm Discharge

Case Brief

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Parties

T. S Levendal

Appellant

A. Balakrishma

Respondent

Procedural Posture

Civil Appeal / Appeal From Trial Court Absolution From the Instance

Legal Issues

  1. 1 Whether the respondent's conduct in shooting the appellant was wrongful and negligent.
  2. 2 Whether the respondent is liable for damages resulting from the shooting incident.

Ratio Decidendi

The respondent's conduct was both wrongful and negligent. Wrongfulness was established by the unreasonable use of deadly force against a fleeing suspect accused of minor offences. Negligence was proven as a reasonable person in the respondent's position would have foreseen the risk of harm from running with a cocked firearm and finger on the trigger, and would have taken the simple precaution of removing the finger from the trigger. The respondent failed to take this precaution, resulting in the appellant being shot. The trial court erred in granting absolution from the instance; the respondent is liable for damages caused by the shooting.

Court Disposition

Appeal upheld. The respondent is liable for damages to the appellant resulting from the shooting.

Orders

  • The order of the trial court is set aside.
  • The respondent is liable to the appellant for such damages as the appellant may prove in due course as a consequence of being shot by the respondent on 20 October 2002.