Beyond a Simple Mistake: The Thin Line Between Negligence and Gross Negligence
- Wendy
- 5 days ago
- 4 min read
Negligence is a concept in South African law – particularly employment law – which looks at the failure to exercise the standard of care expected of a reasonable person under similar circumstances. The general test for negligence is derived from the reasonable person standard: Would a reasonable person in the same position have foreseen the reasonable possibility of harm and taken steps to prevent it?
The Law in Practice
In the landmark case of Transnet Ltd t/a Portnet v The Owners of the MV STELLA TINGAS, the Supreme Court of Appeal (SCA) provided clarity on how negligence is to be approached and tested in practice as well as the difference between “normal” negligence and gross negligence.
In this case, the dispute arose when the vessel Mv Stella Tingas collided with port infrastructure under the management of Transnet Ltd (Portnet). The owners of the vessel brought a claim for damages, alleging negligence on the part of the harbour pilot employed by Transnet, whose decisions allegedly led to the collision.
The SCA had to determine whether the harbour pilot and/or Transnet was negligent in the handling of the vessel.
The Court held, at para 7 that “If a person foresees the risk of harm but acts, or fails to act, in the unreasonable belief that he or she will be able to avoid the danger or that for some other reason it will not eventuate, the conduct in question may amount to ordinary negligence or it may amount to gross negligence (or recklessness in the wide sense) depending on the circumstances. If, of course, the risk of harm is foreseen and the person in question acts recklessly or indifferently as to whether it ensues or not, the conduct will amount to recklessness in the narrow sense, in other words, dolus eventualis; but it would then exceed the bounds of our modern-day understanding of gross negligence. On the other hand, even in the absence of conscious risk-taking, conduct may depart so radically from the standard of the reasonable person as to amount to gross negligence. It follows that whether there is conscious risk-taking or not, it is necessary in each case to determine whether the deviation from what is reasonable is so marked as to justify it being condemned as gross.”
The Court continued to say “…to qualify as gross negligence the conduct in question, although falling short of dolus eventualis, must involve a departure from the standard of the reasonable person to such an extent that it may properly be categorised as extreme; it must demonstrate, where there is found to be conscious risk-taking, a complete obtuseness of mind or, where there is no conscious risk-taking, a total failure to take care.”
Ultimately, the pilot was found grossly negligent, and Transnet was liable for damages.
In Mtshwene v Glencore Operations South Africa (Pty) Ltd (Lion Ferrochome) the Labour Appeal Court confirmed the fairness of an employee’s dismissal who was found to be negligent in the execution of his duties. In this case, the employee was responsible for ensuring that the subcontractor had conducted satisfactory work in the lining and welding of the kiln refractory. The employee failed to ensure that the workmanship was of the required standard by supervising and overseeing the process which in turn resulted in the kiln refractory collapsing prematurely and causing the employer to suffer a financial loss of R4 000 000. The Applicant’s arguments of attempting to shift the blame to the subcontractor, coupled with contradictions in his evidence in chief, were rejected and the dismissal was confirmed to have been fair.
Testing the Conduct Against the Principles
The above principles guide us in determining whether an employee’s conduct was negligent in the ordinary sense or grossly negligent.
The elements which encompass these principles include but are not limited to answering the following:
Is the risk or potential harm foreseeable?
Can it be avoided?
Did the employee depart from the standard required to the extent that it is categorised as extreme?
Was there conscious risk taking by the employee?
Was there a total failure to take care by the employee?
Skill, Care and the Consequences of Falling Short
When employees execute their duties in the workplace, they need to do so with sufficient skill and the care required to perform that particular task, failing which, they could be found guilty of misconduct which could attract various sanctions depending on the circumstances.
It is important to note that each case will be judged on its own merits to determine whether negligence is gross or not, and what the appropriate sanction might be.
Accountability as a Way of Working
In the ever‑changing world of employment, negligence remains a silent but costly threat. By understanding the legal principles and recognising the signs of foreseeable harm, organisations can build environments where accountability is second nature and preventable losses are avoided.
It is critical to rely on practical, legally grounded guidance from professionals who understand how to promote fairness, compliance, and a culture of care in every corner of your workplace.
