Delict and Civil Claims

Can You Claim Damages After Hitting a Pothole?

Written by Nicole Ross Attorneys on March 28, 2023. Posted in Delict and Civil Claims.

“The American Automobile Association estimated in the five years prior to 2016 that 16 million drivers in the United States have suffered damage from potholes to their vehicle including tire punctures, bent wheels, and damaged suspensions with a cost of $3 billion a year.” (Wikipedia)

Pothole problems are by no means exclusive to South Africa, but we certainly do seem to have more than our fair share of them.

As a recent High Court decision illustrates, if you suffer any form of loss as a result of a pothole, hold whoever is responsible to account. Sue for your damages!

Injured motorcyclist awarded damages

Descending a pass on a provincial road with a group of fellow bikers, a motorcyclist leaned into a corner on a sharp bend then hit and went over a pothole. He lost control of the bike which then skidded across the road surface, injuring his shoulder and arm and damaging his clothing and motorbike.
He was taken by ambulance to hospital, underwent surgery, and although discharged after four days, still two years later is taking painkillers and undergoing physiotherapy for ongoing pain and restricted use of his shoulder and arm.
An expert confirmed that he had had no opportunity to avoid the pothole and thus the accident. It was also clear that an attempt had been made to repair the pothole.
He had suffered permanent injuries which “have left him greatly compromised and vulnerable.”
He sued the Province for damages, and was no doubt pleasantly surprised when the MEC made no effort to defend the action. However, he still had to prove his claim…

Proving negligence, and loss

The Court confirmed that the onus is on a claimant to prove negligence on the part of the local authority, even when, as in this case, the MEC had taken no steps to defend the claim and it was uncontested.

Finding from the uncontradicted evidence of the biker and his expert witnesses that the MEC was solely negligent for the accident in failing to live up to the responsibility “of building, maintaining road infrastructure and putting up road signs cautioning road users of the dangers of potholes”, the Court held him liable for the claimant’s proved damages.

The Court awarded the claimant damages of R850,000 in respect only of those aspects of his claim that he had led evidence to support (future medical treatment and general damages). That figure could increase – although he had failed to produce evidence in support of his further claims (for loss of earnings and damage to property), he can still re-institute action for them.

So, do you have a claim?

You quite possibly do have a claim for any losses you suffer after hitting a pothole. Considering our courts’ attitude to the responsibility of local authorities for road maintenance, proving negligence may not be that hard. Line up also evidence to support all aspects of your claim.

Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.

A “Running Down” Damages Claim – Elite Athlete v Happy Snapper

Written by Nicole Ross Attorneys on November 28, 2022. Posted in Delict and Civil Claims.

“This is a running down case: literally” (Extract from judgment below)

The scene is Cape Town’s iconic Sea Point Promenade. An elite runner participating in a race knocks down a pedestrian out for a Sunday walk, causing serious injuries. The pedestrian sues both the runner and the race organiser for damages of R718,000.

The outcome is another reminder to us all to be aware of our surroundings at all times – a moment’s inattention can change everything in a split second. As the facts here illustrate…

The race-day collision and the R718,000 claim

Although the Court heard conflicting evidence as to detail, the setting for this unfortunate collision was common cause. A popular public space on a Sunday, replete with not only the normal pedestrians, cyclists, dog walkers and kite-flyers, but on this particular day also thousands of participants in a “Ladies Race”, ranging from athletes competing in an “elite race” to costumed “Fun Walk” entrants.
Going for a Sunday stroll with a friend and “in the wrong place at the wrong time” whilst blissfully unaware of the misfortune about to be visited upon her for her act of goodwill, the claimant happily consented to a request from a group of “Fun Walk” participants to take a “happy snap” of them.
Picture taken, she moved across the sidewalk to hand the camera back to its owner and a participant in the “elite race” ran straight into her, then ran off to finish her race.
Suggestions that the runner (approaching it seems at about 20 kph) shouted a warning to the effect of “get out of my way” and forcefully pushed the claimant aside were in dispute, but what was clear was that she was knocked to the ground and sustained a hip injury which resulted in an ambulance trip to hospital and hip replacement surgery.
The claimant sued both the runner and the race organiser for R718,000 in damages. The Court’s findings hold lessons for us all.

The race organiser off the hook

On the evidence, the race organiser and the race Marshall in the vicinity of the collision were cleared of any negligence.

The runner’s negligence

The runner, found the Court, was in a public space and should have been alive to the possibility of encountering other sidewalk users at close quarters. She had a duty to keep a proper look out and should have taken into account “the nonchalance and lack of interest of ordinary pedestrians who were out and about enjoying the fresh air rather than watching an athletics race. Ordinary human experience tells one that such persons might behave irrationally and get in the way, as it were.” (Emphasis added).

The runner was negligent in focussing only on the ground immediately ahead of her, “running as if in a bubble, oblivious to what was happening around her and intent only on achieving her goal of winning the race.” She could have avoided the collision with little effort and without seriously affecting her chances in the race.

The pedestrian’s 70% contributory negligence

However, in all the circumstances the Court held that the claimant (actually the executor of her estate as she had later died from unrelated causes) was only entitled to 30% of whatever damages could be proved.

She had been, said the Court, considerably more negligent than the runner. She had to be aware of the race, she knew runners were “whizzing” past her, and she had been warned of runners coming through.

The old ironic saying “no good deed goes unpunished” springs to mind, but the hard fact (in life as in law) is that we are often the architects of our own misfortune.

Be aware of your surroundings at all times!

It’s a hard lesson, but the law holds us to certain standards, and one of those is to keep a proper look out, particularly when in a public space. A moment’s inattention, and in a split second your life could change forever, with physical injuries compounded by the risk of damages claims and counterclaims of contributory negligence.

Take legal advice immediately if you are unlucky enough to be involved in an incident causing injury or other loss!

Property Owner and Body Corporate Liable After Child’s Electrocution?

Written by Nicole Ross Attorneys on March 29, 2022. Posted in Delict and Civil Claims, Property.

A recent High Court decision saw both a sectional title unit owner and his cupboard contractor held liable for damages suffered by an 11-year-old boy electrocuted by a communal tap. The complex’s body corporate and an electrician were also sued but escaped liability.

The reasons given by the Court for these contrasting outcomes provide valuable lessons for property owners, contractors, and bodies corporate.

Electrocuted when he turned on a tap

You don’t expect to be electrocuted when you turn on a tap, but that is what happened to an unfortunate boy, aged 11, who had offered to wash his mother’s car in a residential complex.
When he touched a communal tap to fill up a bucket of water he was electrocuted and unable to remove his hand for 1 to 2 minutes. Fortunately the tenant of the unit which was the source of the electric current arrived home in time to switch off the electricity so that the boy could be rescued.
He was rushed to hospital with serious injuries and his mother sued all the role-players for more than R3m in damages on his behalf.
To simplify as much as possible some very complicated facts, a cupboard contractor had been brought in to do work in the unit by the owner’s agent/employee at the request of a tenant. The contractor employed two workers who caused the initial problem by drilling through a wall and damaging the electrical insulation.
The owner’s agent then contracted an electrician to fix the problem, but he only compounded the danger by bungling the repair job and leaving the plumbing live.
The tenant, shocked (electrically, presumably also figuratively) when she turned on taps in the unit, switched off the electricity and reported the danger to the agent. Unfortunately the two workers, in her absence the next day, switched it on again – thus creating anew the dangerous situation that later that day led to the boy’s electrocution.

Let’s have a look at some of the legal principles that led the Court to its decision in regard to each of the role-players –

Your agent or employee doesn’t tell you of a dangerous situation – are you liable?

There was a dispute over whether the owner’s “agent” was legally an agent or an employee, and whether or not he had told the owner of the dangerous situation. But it made no difference, held the Court – the “agent’s” knowledge of the dangerous situation in the unit was attributed to the owner because (1) he had acquired that knowledge in the course of his employment, and (2) in the circumstances he had a duty to report it to the owner.

Make sure your agents and employees are trustworthy enough to tell you about any dangerous situations in your property!

Are you liable for your contractor’s negligence?

Clearly the workers employed by the contractor had caused the dangerous situation, firstly by damaging the electrical insulation and secondly by turning the electricity back on knowing of the danger. The contractor was accordingly liable, but what about the property owner who had employed him?

Our law is that you are not automatically liable for your contractor’s negligence, but you must “exercise that degree of care that the circumstances demand”. On the basis that “It is the principal, who selects his agent and represents him as a trustworthy person, and not the other party to a contract who has no say in the selection, who bears the risk……” (emphasis supplied), the Court found both the contractor and the unit’s owner liable for “the negligent omissions and/or acts on the part of their agents/employees.”

In any event both the “agent’s” inaction and the actions of the two workers “jointly contributed to the cause of the electrocution of the minor. Had either acted as they ought to have, the minor would not have been electrocuted.”

You are at risk for the conduct of any contractors and employees on your property, so again make sure they are trustworthy!

When is a body corporate liable?

A body corporate is as much at risk of being sued as any individual owner in a case such as this – it was presumably sued in this matter on the basis that the tap in question was a “communal” one and therefore under its control.

Its security officers had become aware of the situation when they queried the presence of the workers in the complex. However the claim against it failed as the evidence was that the child’s electrocution “was unforeseeable as far as it [the body corporate] was concerned. It had no duty to do anything while it was unaware of the danger posed. There had never been any problem with the electrical installation and it follows that what occurred was not reasonably foreseeable to it. Immediately the dangerous situation was brought to its attention it acted immediately.”

As a body corporate, take all reasonable steps to prevent dangerous situations arising in the complex in the first place, and take immediate action to rectify any that come to your notice!

What about the negligent electrician and the “chain of causation”?

Our law is that you are only liable if there is a “chain of causation” between your negligence and the damage resulting. So you can sometimes escape liability if there is a new “intervening cause” that interrupts that chain of causation.

In this case, the electrician’s failure to do the repairs properly was held to have been a “direct cause” of the incident. But his bacon was saved by the fact that the two workers, in switching the electricity back on, knew they were creating a dangerous situation anew. This made it sufficiently “unusual”, “unexpected” and not “reasonably foreseeable” for there to be – from the electrician’s point of view – a new “intervening cause” which interrupted the “chain of causation” between his negligence and the electrocution. The claim against him failed accordingly.

Any break in the “chain of causation” may come to your rescue if you are sued. But don’t count on it!

Exemption Clauses and Thieving Employees: Can You Sue (or Be Sued)?

Written by Nicole Ross Attorneys on March 29, 2022. Posted in Delict and Civil Claims.

“Where one of the parties wishes to be absolved either wholly or partially from an obligation or liability which would or could arise at common law under a contract of the kind which the parties intend to conclude, it is for that party to ensure that the extent to which he, she or it is to be absolved is plainly spelt out.” (Extract from judgment below)

Employee theft has been a headache for employers from the dawn of history, and no business should ignore the dangers it poses, particularly if your business handles third-party high value goods. Your chances of being sued if one of your employees steals a customer’s asset/s are high, the reason being of course the concept of “vicarious liability” – the legal rule that can make you generally liable for your employee’s actions.

Your best defence (other naturally than taking steps to stop light-fingered employees from stealing in the first place!) is the “exemption” or “disclaimer” clause. It can present a formidable obstacle to any customer (or their insurer) seeking to hold you liable, but it needs to be professionally drawn, unambiguous, and tailored to suit your particular industry, circumstances and contracts.

A recent Supreme Court of Appeal (SCA) decision illustrates –

The cargo thief who stole R4.5m worth of computers

A customer imported by air freight some R4.5m worth of computers and accessories, and contracted a clearing and forwarding agent to receive and forward them to the customer from the SAA cargo warehouse.

The agent’s employee, armed with his “identity verification system” card and the necessary custom release documents, collected and loaded the consignment into an unmarked truck, signed the cargo delivery slip, and disappeared with his loot.

Sued by the customer for its losses, the agent relied on the exemption clauses in its Standard Trading Terms and Conditions. These clauses were comprehensive and widely worded which, as we shall see below, proved central to the agent’s legal victory here.

On appeal the SCA dismissed the claim against the agent on the basis that it had been able to prove that its liability was excluded by the exemption clauses. Let’s see how it achieved that…

Employers – can you be sued?

Without an enforceable exemption clause in its standard contract, the employer in this case would have been liable for R4.5m (plus substantial legal costs).

Critically, the forwarding agent’s success here resulted from the Court’s interpretation of the wording of these particular clauses, in the context of this particular contract, and in the particular circumstances of this matter. Any ambiguity in meaning would have been fatal for it, and it was particularly assisted in this case by the fact that it had made special provision in the contract for “goods requiring special arrangements”. In other words, make sure your contracts all contain unambiguously worded exemption clauses tailored to your specific industry and circumstances.

Customers – can you sue?

Read and understand the contracts you sign, follow any requirements applying to specified or “valuable” goods, and take professional advice if you are unhappy with any of the terms. The reality is however that few service providers will be prepared to compromise on exemption clauses, which leaves you vulnerable unless you have the right type of insurance cover – check upfront!

When Can a Shop Be Sued for Damages If a Customer Falls?

Written by Nicole Ross Attorneys on November 25, 2021. Posted in Delict and Civil Claims.

“… it is by now long established in our law that the owner or other person or entity in control of a shopping mall has a legal duty to take reasonable steps to ensure that its premises are ‘reasonably safe’ for those members of the public who might frequent them … What such steps may be will depend on the circumstances.” (Extract from judgment below)

The Festive Season is once more upon us, cueing shops, shopping centres and malls packed with ever-growing crowds of shoppers.

What happens if you fall while shopping and hurt yourself? Our law reports are full of cases where shops are sued for damages following “slips” and “trips”, and a recent High Court case confirms once again that as a general rule shops and malls are liable to keep their visitors from harm.

A broken elbow from a slip on a wet mall floor

A shopper visited a mall to draw money from an ATM on a rainy day. Rain carried into the mall by other shoppers on their rain jackets, umbrellas and shoes had left the floor wet and slippery, and she saw a yellow ‘wet floor’ warning sign on the tiled floor.
14 metres from the mall entrance her feet suddenly gave way from under her and she fell, extending her right arm to break her fall and shield the baby she was carrying. She was left with a fractured elbow.
She successfully sued both the mall’s owner and its management company for damages, a “Full Bench” of the High Court ordering the two companies to pay “jointly and severally” whatever damages she can prove.
“Thus, in summary” held the Court, “the owner or person or entity in control of a mall will only potentially be liable for harm or danger which would have been foreseeable to the hypothetical reasonable man in its position, and is obliged to take no more than reasonable steps to guard against such harm occurring … Whether the steps that were taken in a particular case are to be regarded as reasonable or not depends upon a consideration of all the facts and circumstances, and merely because harm which was foreseeable did eventuate does not mean that the steps which were taken to avoid it were necessarily unreasonable. Ultimately the inquiry involves a value judgement on the part of the Court.”
The Court found that the “legal duty to take reasonable steps to safeguard the [shopper] from harm that day … was one which fell primarily and squarely” on the owner and its management company.
It rejected the defence raised that the mall’s cleaning contractors were the liable party with the comment “It would be a startling state of affairs if independent cleaning contractors in shopping malls who are only contracted to keep floors clean became saddled with a duty to safeguard those who frequent the mall premises, and became liable to them on this basis in the event that they failed to comply with their contractual cleaning duties.”

What about “enter at your own risk” disclaimer notices?

Another defence raised was that there were “enter entirely at your own risk” type disclaimer notices “prominently displayed” at all entrances to the mall. The shopper denied having noticed any such notices either on the day in question or on previous visits to the mall, and the Court found that the mall owner and manager had failed to prove that –

Such a notice was displayed at the time, and
The shopper had read and accepted the terms of the notice “or at the very least that they had taken ‘reasonably sufficient’ steps to ensure that the notice would come to her attention in the ordinary course”.

The bottom line for shop and mall owners

Take all reasonable steps to keep your visitors from harm, and ensure that you have adequate and prominent disclaimer notices displayed at all times. Keep these notices updated – one of the mall owner’s problems in this case was that the disclaimer notices were old and still in the name of a previous owner.

The bottom line for shoppers

As this judgment shows, you have to jump through a number of loops to establish a claim. Besides, shops and malls by their very nature present dangers to the unwary – spillages, items dropped on the floor, wet and slippery surfaces and the like are common and if you don’t keep your eyes open and your wits about you, you run the risk of a court holding you fully or partially liable for your own misfortune. In that event it could dismiss your claim or at most only award you part of your damages on the basis of your “contributory negligence”.

Worse, you could have no claim at all if a court finds you bound by an “enter at your own risk” disclaimer sign.

So – enjoy your Festive Season shopping, but Safety First!

Don’t Risk Consequential “Loss of Profits” Damages: Check Your Contracts and Insurance!

Written by Nicole Ross Attorneys on August 26, 2021. Posted in Delict and Civil Claims.

“Consequential Loss: This is loss not directly caused by the insured event, but is an indirect result of the event. This is loss or damage that was not foreseen by the insurer or the policyholder at the time the policy was taken out. Consequential loss is in many instances not covered and cover is dependent on the risk that the policy covers” (South African Insurance Association definition)

One of the risks you run in any business is being sued for losses you cause to someone else. Although normally your risk of legal liability is linked to the claimant proving some form of negligence on your part (i.e. the onus is on the claimant to prove your negligence), there are exceptions. To take one example (as seen in the case discussed below) a “carrier of goods for reward by land” has “absolute liability” to deliver goods undamaged; and thus the onus switches to the carrier to prove a lack of fault.

No matter who has to prove what there could be serious money at stake here, so taking upfront measures to protect yourself is prudent.

Protecting your business with insurance

Your first line of defence is of course always the practical one of minimising the actual risks of causing any form of harm or loss to any and all role-players – customers/clients, suppliers, employees etc. On the legal side, disclaimers and exclusion clauses are commonly used for the purpose but they have their limitations and should never be relied on as foolproof.

That is where taking out commercial (business) insurance can make sense – if all else fails, you can look to your insurer to cover you for whatever damages you may be found liable to pay.

Beware however – as a recent High Court judgment aptly illustrates, even with insurance you could find yourself up the creek without a paddle if you are found liable for “consequential damages”.

What are “consequential damages”?

Before we get into the details of this particular High Court case however, it’s important to know that several types of damages could be awarded against you –

What are often called “general damages”, i.e. “those damages that flow naturally and generally from the kind of breach of contract in question and which the law presumes the parties contemplated as a probable result of the breach.” An electrician for example negligently frying a business customer’s distribution board is likely to be sued firstly for the cost of replacing it.
What are often called “special”, “consequential” or “indirect” damages, i.e. “those damages that, although caused by the breach of contract are ordinarily in law regarded as too remote to be recoverable unless in the special circumstances attending the conclusion of the contract, the parties actually or presumptively contemplated that they would probably result from the breach.” To stick with the negligent electrician example above, the business might also sue for consequential loss such as the sales it lost because it had no electricity. The test then would be whether the electrician and the business had in mind that loss of sales would probably result from the distribution board’s failure.

Let’s see that distinction playing out in action…

Sued for R2.2m “loss of profits” and not covered by insurance

A transport company (a “carrier”) agreed to move two valuable machines for a customer which intended to rent them out to the film industry.
Both machines were substantially damaged in transit and the carrier was found to have breached the contract of carriage and to have caused the losses through negligence.
The carrier claimed from its insurers to cover its liability (it had taken out “goods in transit” cover of R1m for each machine), and the insurer duly paid out a total of R1.7m for direct losses in the form of the repair of one machine and the replacement of the other.
No problem for the carrier there; but it was a different story with the second part of the damages claim. This was for “loss of profits” suffered by the customer through being unable to rent out the machines whilst waiting for them to be repaired/replaced.
The insurer refused to pay out this second part of the claim (R2,218,464) because it had agreed to cover only “actual” damage to the machines. The goods in transit policy specifically excluded “consequential financial loss as a result of any cause whatsoever”. That left the carrier fighting the customer without the safety net of insurance cover.
The carrier argued that its liability to the customer was limited to the R1m goods in transit cover per machine. But to no avail, the Court holding that the contract of insurance was between the transport company and its insurers and therefore it did not prevent the customer from claiming damages for losses beyond those covered by the carrier’s insurance.
Critically, the Court found on the facts that “This type of loss must have been contemplated and reasonably foreseen when the carriage contract was concluded by the parties” and that the customer’s loss of income followed logically from the fact that it could not hire out the machines.
The end result – the transport company must pay, out of its own pocket, whatever consequential damages the customer can prove (presumably the customer will go for its original R2.2m claim).

Check your contracts, and your insurance cover!

The lesson here of course is to make sure that your contracts protect you from liability for “consequential damages” and the like, and/or to check that your insurance cover will protect you if you get sued for any liability beyond “general damages”. If there is an “exclusion” clause in the policy such as the one discussed above, you’re on your own!

Violence and Looting – Can You Sue SAPS?

Written by Nicole Ross Attorneys on July 27, 2021. Posted in Delict and Civil Claims, Employment and Labour Law.

“When a crime is imminent and foreseen it is expected of the law enforcement agency to take appropriate action. The duty of the police to provide assistance arises from their mandate to carry out law and order” (extract from judgment below)

Can you sue the police if they fail to protect you during unrest and violence? It’s an important question not just for employers dealing with strike violence. In the aftermath of the massive damage caused by the recent public unrest and looting, the case we now discuss will no doubt find application far beyond the labour relations field.

Strike violence – damages for a vandalised farm and an assaulted employee

A large fruit farm was subjected to a month-long strike “characterised by violence through various acts of intimidation, assaults, malicious damage to property, vandalism, theft, road blockades and various acts of looting.”
Ahead of the strike, SAPS (the South African Police Services) had been informed of the looming strike and of suspicions that “there is a great likelihood that the strike is likely to be violent.”
What followed was a litany of violent action by a large crowd of strikers – stonings, petrol-bombings, arson, assaults, intimidation, brandishing of knobkerries, threats of murder, looting, and destruction of property. 251 strikers were dismissed after disciplinary hearings, an event which itself led to more violence.
The farm and a non-striking worker stabbed by strikers sued SAPS in the High Court for damages. Although many of the facts were disputed in evidence, the Court found that the employer had made numerous pleas to SAPS, based some 15 km away, for assistance. During one police response, said the employer, it was informed that the police had no capacity to assist, whilst on many other occasions the police failed to respond at all.
A Labour Court interdict and contempt of court order were allegedly not enforced, and whilst various criminal charges were laid during the course of the strike, few arrests took place (four of them only when police themselves were stoned).
On the basis of the evidence before it and its analysis of the duty of the police to provide assistance when a crime is imminent, the Court ordered the Minister of Police and the National and Provincial Commissioners of Police to pay “proven or agreed damages” arising from the strike “as a result of their wrongful and negligent conduct.”
Critical to the outcome was the Court’s findings that “The police had a legal duty to act positively to prevent harm to the Plaintiffs. The legal convictions of the community required of the police to act more swiftly to prevent harm to the Plaintiffs. The legal convictions of the community incorporate constitutional values and norms and in our constitutional democracy it cannot be acceptable of the police to sit idle when they should have reasonably foreseen that the strike will turn violent. When a crime is imminent and foreseen it is expected of the law enforcement agency to take appropriate action. The duty of the police to provide assistance arises from their mandate to carry out law and order.”
Factually, the Court found that “The police had the capacity to patrol the area and conduct continuous monitoring which they failed to do. Their failure to respond to various pleas for assistance was not only negligent but wrongful” and “the conduct of the police viewed against the legal and public policy considerations, constitutional norms and values was unacceptable and accordingly unlawful.”

Will these principles apply to unrest and looting claims generally?

Of course the recent public unrest, destruction of property and looting were on a totally different scale and took place in a very different context to the facts before the Court in the case above.

At time of writing, media reports suggest that a general failure by security services to foresee and forestall the violence may have rendered them largely incapable of reacting effectively to whatever pleas for help they may have received. In contrast, in the case above the Court seems to have accepted that the police had the resources to react effectively but failed to do so. So although the general principles laid out above will no doubt assist in any attempt to hold the police liable for looting and other losses, time alone will tell whether victims will actually be able to prove any degree of police liability, either generally or in specific instances.

Landlord Liable for a Tragic “Freak” Flood Drowning

Written by Nicole Ross Attorneys on April 25, 2021. Posted in Delict and Civil Claims, Property.

“Nature has the ability to spring a surprise when least expected” (extract from the judgment below)

A recent High Court decision dealing with the tragic drowning of a toddler highlights once again the legal dangers faced by property owners who let out accommodation to the public.

This particular case related specifically to a Holiday Let on a guest farm and a natural disaster in the form of a flood, but of course any loss however caused could lead to your visitors/guests suing you.

And weather-related disasters – think storms, floods, wildfires and the like – will almost certainly increase in both frequency and intensity if climate change predictions hold true.

A “freak” flood and a tragic drowning

It should have been an idyllic holiday on a riverbank. A family booked a week’s vacation in one of three chalets built by a farmer on the banks of a river. The family was particularly attracted by the fact that this was the closest chalet to the river, with a wooden balcony from which the children could fish.
The family arrived in fair weather but a violent storm and heavy rains in the river’s catchment area led to overnight flooding when the river burst its banks. They awoke at midnight to flooded rooms, struggled to escape from the chalet and were unable to save their toddler, who was swept away and drowned in the flood (according to media reports at the time, he was torn from his father’s arms whilst his father and an older brother clung to a tree in the raging flood).
The family sued the farmer as owner of the farm, chalet and guest house business. They also claimed against his wife, but this part of the claim failed as she was married to the farmer out of community of property, and had merely assisted him with bookings and administration.
As regards the farmer as property owner, although he denied any element of “wrongfulness” (unlawfulness), the Court found that he had built the chalets in a dangerous area, known to experience occasional flooding, and therefore had a legal duty to ensure that they were safe for use by members of the public.
The owner also denied any negligence. The flood, he said, was a “freak of nature” and not foreseeable, no such event having been experienced for over 40 years. He had built the chalet 6m above the normal river level and 2.8m over the high water mark pointed out to him by the previous owner.
Expert evidence was that the year in question had seen a normal rainfall pattern and that the day in question experienced “high but not abnormal” rainfall. The chalet was built in the “dangerous area” of a 100-year flood line area with no escape route nor flood warning mechanism. Such floods, the expert said, could be expected once every 17-18 years.
Critically, the Court found on the evidence that the possibility of heavy flooding was “foreseeable” and that the owner’s failure to take steps to protect chalet occupants rendered him liable.
The owner also argued that the family had no right to sue because of disclaimer notices which he said were at the farm entrance warning visitors that they entered at their own risk. He also claimed to have taken reasonable steps to warn occupants of the danger of flooding. On its assessment of conflicting evidence however the Court found that even if there were warning and indemnity notices as claimed, the owner had not proved that they were brought to the family’s attention. In any event, said the Court, it would in this case be unjust and unfair to deny the family its claim.
The owner is accordingly liable for whatever damages the family can prove.

Property owners – protect yourself!

From a practical point of view you will want to pro-actively investigate any potential risks, manage them, warn your guests/tenants about them and make sure they know how to protect themselves should Mother Nature suddenly spring one of her nasty surprises.
The legal side to all that of course is that you should always be able to show that you have taken reasonable steps to protect your guests from all foreseeable risks.
Comply also with all building and safety regulations – not doing so immediately puts you in the wrong.
Take advice on the use of indemnity/disclaimer/exemption notices on your website, all advertising materials, booking platforms etc, also on the premises themselves and in your contracts. Bear in mind that there are limits to their effectiveness particularly where the Consumer Protection Act or constitutional considerations apply.
Insurance – make sure you are covered for any claims of this nature, and that you comply fully with any requirements imposed on you by the insurers.

Most important of all, take professional advice specific to your circumstances!

Does Your Dog Bite? Your (Substantial) Risk Remains

Written by Nicole Ross Attorneys on October 28, 2020. Posted in Delict and Civil Claims, General Interest.

“People are entitled to walk our streets without having to fear being attacked by dogs and, where such attacks occur, they should in most circumstances be able to look to the owner of the dog for recompense” (extract from judgment below)

Dog owners (in fact owners of any potentially dangerous domesticated animal) should take note of the Supreme Court of Appeal (SCA)’s recent refusal to extend the legal defences open to you if you are sued for injuries and losses caused by your animal.

Your risk is substantial – the dog owner in this case is being sued for R2.3m.

Three dogs savage a passer-by

An “itinerant gardener and refuse collector”, making his peaceful way down a suburban street and pulling the trolley in which he collects refuse, was attacked by three dogs for no reason, and without any warning.
The dogs savaged him to such an extent that neighbours who came to the scene thought he was dead. He survived, but his left arm was amputated as a result of his injuries.
Sued for R2.341m in damages by the victim, the dog owner raised a variety of defences, but the important aspect for most of us is the SCA’s decision regarding his defence which boiled down to “the injuries weren’t my fault”.

Pauperian liability – liability without fault

Which brings us to the nub of your risk – you can be held liable on a “strict liability” or “no fault” basis. You can be sued even if you were in no way negligent.

That’s very different to most other types of liability for damages, where you are – with just a few exceptions – only at risk if you are proved to be at fault. As unfair as that may sound at first blush, there is solid reasoning behind it: “…the reality is that animals can cause harm to people and property in various ways. When they do so and the victim of their actions is innocent of fault for the harm they have caused, the interests of justice require that as between the owner and the injured party it is the owner who should be held liable for that harm.”

That concept goes back millennia to pre-Roman laws, and our modern law continues to apply this no-fault principle in respect of domesticated animals as “pauperian liability” (“actio de pauperie” to lawyers).

This is a complicated area of law, involving much judicial interpretation of both old and modern laws, and professional advice specific to your case is essential. In a nutshell however you are liable “if the animal does damage from inward excitement or, as it is also called, from vice … its behaviour is not considered such as is usual with a well-behaved animal of the kind.”

SCA: The three defences open to you remain limited

The three limited defences that have always been available to you are –

The victim “was in a place where they were not entitled to be” – for example “a housebreaker bitten by a watch dog [or] where the animal was chained to restrain it and the injured party ventured within reach … However, in general, if the harm occurred in a public place, such as a public street, the owner would be liable.”
“The injured party or a third party provoked the attack by goading or provoking the animal.”
Another person (perhaps a dog-sitter, dog walker or boarding kennel for example) had taken “custody or control” of the animal and failed through negligence to control it resulting in it injuring the victim. The claim then would be against the other person and not against you as owner.

The dog owner here asked the Court to extend that third defence by taking away the “custody or control” requirement, so that negligence by another person not a custodian of the dog would still be a defence open to the owner. That would have given the owner a glimmer of hope with his speculative defence that that he had left the dogs behind a locked gate and “an unknown intruder must have attempted to gain access to the property via the gates and in doing so damaged the two padlocks … In turn this enabled the dogs to escape…”.

Bottom line (after much learned analysis of the law and constitutional considerations) – the Court declined to extend the third defence and your strict liability risk remains undiminished.

Control your dogs and check your insurance policies!