It’s all fun and games until someone gets hurt

Article_Its-all-fun-and-games-wideIn a recent decision handed down by the Honorable Judge Kollapen in the Gauteng Division of the High Court of South Africa on 10 September 2015 (BJ Strydom v M W P Strecker and Another), the Court considered the extent of the legal duty on property owners / occupants in ensuring the safety of those visiting their property.

The case arose due to a devastating twist of events during a social visit between the plaintiff, his then-wife, their two minor children and the defendants at the defendants’ house. One of plaintiffs’ children, referred to as “B”, had a near-drowning experience after falling into a fish pond situated inside the house.

Tragically, and without anyone realizing, B fell into the fish pond while her mother was sitting with the second defendant outside near a swimming pool, and her father, who had been busy in the garage with first defendant sorting and packing meat, had washed his hands inside and the joined the rest of the group outside.

When B was found floating in the fish pond a short while later, she had no pulse and was not breathing.  She was only resuscitated over 20 minutes after arriving at the hospital. Due to the length of time that B has been without oxygen, she sustained severe brain damage and is no longer able to walk, talk or take care of herself. Accordingly, plaintiffs’ claim against the defendants was for damages arising out of the incident.

The plaintiff’s claim was based on the alleged negligence of the defendants in a number of respects including their failure to secure the pond satisfactorily, their failure to take reasonable steps to avoid the incident, and their failure to give a sufficient warning about the indoor fish pond – although the court’s judgment mainly focuses on the failure to give a sufficient warning. The defendants pleaded in response that the sole cause of the incident was the failure of B’s parents to exercise proper supervision over B, as both parents were present at the time of the incident.

The court sought firstly to determine whether there was any legal duty on the defendants towards B in general, and then specifically in relation to the potential danger of their pond. In determining this, Judge Kollapen relied on the boni mores standard referred to in Minister van Polisie v Ewels [1975 (3) 590 (A) at 596H – 597G], wherein the Appellate Division (now the Supreme Court of Appeal) determined that wrongfulness could be found where the community’s legal convictions require a legal duty to protect others from injury.

The court therefore sought to determine the legal convictions of the parties’ community, which seemed to cause no trouble, as Judge Kollapen stated that

it was clear that society would have reasonably expected the Defendants to protect B from the possible harm that is the fish pond

The court based this assertion on the fact that socializing in another’s house is both important for, and commonplace in, society and therefore a reasonable expectancy would exist that guests and their children would not be exposed to harm or injury during such visits.

The court qualified the above statement by stating that society would however not expect a property owner to take steps beyond what is reasonable in order to protect guests from potential harm. Therefore there was a duty on the defendants to take reasonable steps to protect B from harm.

During questioning in court, both the plaintiff and his then-wife admitted that the defendants had given them some warning regarding the fish pond.  It therefore fell on the court to determine whether the warning given discharged the defendants’ legal duty. The plaintiffs further admitted that they themselves were aware of the potential harm of the fish pond on B who had, at the time, just started walking.  The court also noted that B’s parents were in fact in B’s vicinity when the incident occurred.

Accordingly, the court was satisfied that the warning given by the defendants had been sufficient to discharge their legal duty in that they would expect B’s parents to supervise her sufficiently to avoid the harm warned of.

Although the defendants were not held liable, this case serves as a tragic reminder that an incident that many would class as an ill-fated accident, may easily attract legal liability for the owners of a property if reasonable care is not taken to protect visitors from harm. It is easy to imagine a list of potential dangers that could expose property owners to similar risk, including uncovered swimming pools, exposed wires, incomplete renovations and even excessively slippery floor surfaces. It is further conceivable that friends and family who visit a home with which they are very familiar, may not noticed new potential hazards, and the owners may not think to draw their attention to them.

The judgment quoted the matter of Serfontein and another v Spoornet [1923 AD 207] wherein the court concluded that:

the reasonable steps to be taken by a diligens paterfamilias in the position of the Defendant would depend upon the circumstances of each case and no hard and fast rules could be laid down.”  

Consequently, it may be wisest for property owners to apply the idiom ‘better safe than sorry’ in order to ensure the discharge of their legal duty to protect guests from harm, and much more importantly, to actually avoid the possible injury and harms considered completely.

Note: The original of this article appears on Ashersons Attorneys website, here.