Article courtesy of Law Dot News | Delict Claims |Civil Claims | Property

Neighbours’ Facebook Feud…

“Dance like no one is watching, but text, post, and email like it will be read in court one day.” (Anon)

When can the target of rude comments and insults on a community Facebook group sue?

The High Court recently grappled with a community debate over free-roaming jackals that turned sour.

The golf estate and the Facebook group

The scene here is one of Sandton’s large and secure golf estates, whose closed Facebook group, aimed at fostering community spirit, reaches some 1,800 residents.

Jackals roaming freely on the estate were at the heart of this dispute, with residents split into two opposing camps.

1. In one camp, those believing that all wildlife in the estate should be left alone – including the jackals.
2. In the other camp, those arguing that, as well as being predators dangerous to other animals (including domestic pets), jackals are carriers of rabies. Presumably this group advocates some form of control measure, no doubt an emotive topic.

Cat pics and Karen insults

The online debate between the two sides began civilly enough, but that changed with a series of posts by a prominent supporter of the “hands-off-the-jackals” lobby. In criticising the other camp, she targeted one of them by name. Stung, the recipient of what she perceived as insulting and defamatory attacks, demanded that her opponent remove the posts and apologise to her.

Central to the outcome of this case are the posts themselves. They included an image of a cat in a spiked vest (with the comment “maybe this will help the cats”), suggestions that the target of the posts shouldn’t be living in Africa, that she had published false information on the group, and that she was “stupid” and a “stupid keyboard muppet”. She read further posts as referring to her as a “B” (she took this to mean “bitch”) and as caricaturing her as a dog (with a bob haircut like hers) and as a “Karen”.

Off to court with a two-pronged attack

As a professional (actually a business rescue practitioner), the complainant wasn’t prepared to take any of that lying down. Offended by the poster’s refusal to retract, she sued her in the Magistrate’s Court for damages of R250,000, asking also for orders to remove the posts and apologise publicly for them.

She lost, appealed to the High Court and lost again. Why?

It’s important to note firstly that she had launched a two-pronged legal attack, enabling her to prove a valid claim for either or both of actionable insult (where offending statements injure your dignity or self-worth) and defamation (where they damage your reputation). To win, she needed to show either that the statements referred to her and were defamatory of her, or that they were wrongful and hurt her dignity.

Her failure to convince the Court that she had a case was partly because she hadn’t been able to prove all the facts needed to establish a case. But it was also rooted in two principles which anyone engaging in public debate (online or otherwise), and anyone thinking that an insult is perfectly fine if it’s structured as a “joke” or “jest”, needs to take note of.

Let’s have a look at each principle.

Public debate is not for sissies

The Court: “The law expects those who take part in public discourse to do so with a degree of pliancy and robustness. A subjectively hurtful remark is not wrongful unless a reasonable person in the plaintiff’s position would take exception to it.”

More particularly, this being a closed group of neighbours in a security complex: “Those who engage in online debate about matters of mutual interest between neighbours ought reasonably to foresee that the criticism they sustain may be tart and, at times, discourteous.”

In this case, while some of the posts were definitely rude and hurtful, no reasonable person would have thought that they had tarnished their target’s reputation. Rather, readers would have thought less of the poster “because she was unable to keep to civil terms of debate.”

Everything said in jest?

Some, but certainly not all, “jokes” are safely posted. The poster of this “cat in spikes” picture said it was just a light-hearted joke, and the Court agreed. A joke can certainly be defamatory if it’s a deliberate attack on the target’s reputation – but in this context, it was just “a satire of the entire debate between the parties.” It wasn’t, said the Court, “of the defamatory kind”.

Turning to what appears to have been another attempt at a joke in the form of the dog caricature and “Karen” reference, what saved the poster here was the lack of proof that this was actually aimed at the claimant. Had it been, calling her a “Karen” (“a privileged, entitled woman with a thin skin and a quick temper”) would have opened her up to ridicule and “would probably have been defamatory”.

There’s a fine line or two there. Call us before posting if you aren’t sure that you’re on solid ground!

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 us for specific and detailed advice.

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Article courtesy of Law Dot News | Delict and Civil Claims – False Accusations

Sour Grapes? Don’t Make Accusations Unless They’re True

“I am disgraced, impeached, and baffled here,
Pierced to the soul with slander’s venomed spear.”
(William Shakespeare)

Here’s another warning from our courts to think twice before publishing anything defamatory, even if you genuinely believe it to be true.

To escape liability, you must show that you fall under one or other of the legal defences available to anyone sued for defamation – as a recent High Court decision illustrates perfectly.

A R500m bribe and a restaurant dinner

• A company director, in dispute with a government department over his company’s contract with it, went public with claims that a government minister was involved in soliciting a R500m bribe from him.
• Critically, he had no actual proof of the truth of these allegations, which he said were made to him by two unnamed informants over a restaurant dinner.
• Nonetheless, he spread these (hotly denied) claims far and wide – to his more than 12,000 Twitter (now “X”) followers, as well as to the listeners/viewers of a podcast, a radio interview, and two TV interviews.

Sued for R1m: “But I thought it was true”

The minister, outraged by these slanderous allegations, sued for R1m in damages.

• The director countered that he had never intended to defame the minister, that his statements amounted to “fair comment” and that he reasonably believed that his two informants were telling the truth.
• The Court was unconvinced, finding both that the statements were defamatory and that the director had made them with the necessary “intent to injure”, having taken no steps to verify the information given to him.
• Secondly, held the Court, the director could not rely on the “fair comment” defence, both because his allegations were statements of fact rather than “comment”, and because he spread them “with reckless indifference as to whether they were actually true.”
• Finally, the defence of “truth and public interest” requires that you prove both that a statement is “substantially true” and that it is published in the public interest. For the purposes of this defence, belief that the statement is true isn’t enough – it must actually be true. In this case, the director had relied on hearsay statements and had no proof to substantiate them.
• With no proof of the allegations, the Court concluded that the minister was “a victim of a vicious assault on his dignity”, and the director “in order to safeguard his commercial interests, [had] thrown unsubstantiated accusations widely, to put pressure on the government, to accede to his demands”.

Prove it’s true, or pay up

The outcome:

• The allegations were found to be both defamatory and false.
• The director’s publication of them was unlawful.
• He is liable to pay damages (with the amount to be paid, and the question of a public apology, to be determined after hearing evidence).
• He is interdicted from repeating the allegations, directly or by implication. Breach that one and he could find himself jailed for contempt of court!
• He must pay costs on the punitive attorney and client scale.

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.

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Article courtesy of Law Dot News | Delict and Civil Claims

The Pothole Plague – Claiming Damages

“If cars are required to be roadworthy, shouldn’t roads be required to be car-worthy?” (Online meme)

If you fall victim to a pothole-infested road, don’t hesitate to sue for your losses. A recent High Court victory for a motorist claiming R8.6m in damages confirms yet again that those charged with maintaining our roads can be made to pay for failing to do so.

R8.6m claimed for a pothole crash

• A motorist hit a pothole on a gravel road, lost control, and hit a tree. Severe injuries landed him in the ICU with no memory of the crash, and he claimed R8.6m from a provincial department of Public Works and Roads for past and future medical expenses, past and future loss of earnings and general damages.
• His case was that the department’s negligence was the sole cause of his accident. He was, he said, a careful driver unfamiliar with the road in question. As he had no recollection of the accident, the Court relied on expert testimony that the vehicle and tyres were in good condition and his speed was probably about 80kph, whilst the road had numerous potholes and no signs warning of hazards or speed limits despite it being a road notorious for accidents.
• The department flatly denied any liability and said there were no potholes in the road. Alternatively, it claimed that the accident was caused solely by the driver’s negligence, alternatively that he was contributorily negligent for failing to keep a proper lookout, driving at an excessive speed, and failing to avoid the accident when he could have done so.
• On the facts the Court held the department 100% liable for whatever damages are proved or agreed. The driver, said the Court, had proved that the department had a duty of care to him, his injuries resulted from its breach of that duty, and it had a legal duty to take reasonable steps to prevent harm. It was negligent in not maintaining the road and in not keeping it in a constant state of repair.
• On the other side of the coin, the department had not proved any contributory negligence on the part of the motorist – it alone was to blame.

Drivers – your duty to keep a proper lookout

None of that of course means that you will automatically be able to recover for vehicle damage or injury caused by a pothole. As our courts have put it: “A driver of a motor vehicle is obliged to maintain a proper look-out. He (or she) must pay attention to what is happening around him; but most important of all, he must as far as possible keep his eyes on the road …”.

That boils down to simply taking common-sense safety precautions – being aware of the general condition of the road, keeping a proper lookout at all times (a particularly sharp lookout when visibility is poor), travelling carefully and at a reasonable speed, paying attention to road hazard signs and speed limits, keeping your vehicle safe and roadworthy.

All are factors that a court will take into account if you end up in a legal fight, and if you are shown not to have complied with any one of them you risk either losing your claim in total, or having your claim apportioned for contributory negligence.

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.

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Article courtesy of Law Dot News | Civil Claims | Delict Claims

Suing for a Supermarket “Slip ‘n Trip” – What Must You Prove?

“The path is smooth that leadeth on to danger” (William Shakespeare)

Civil Claims – Tripping over aisle blockages or slipping on floors made slick by spillages can happen in even the best-managed supermarkets, and injured shoppers regularly turn to our courts to claim damages from shopkeepers and building owners.

It’s no surprise therefore that this sort of claim has its own (informal) name – the “slip ‘n trip” case. A recent High Court judgment provides some clarity on what you will need to prove should you be one of the unfortunate shoppers who are injured in this way.

A shopper slips, and sues

• A shopper slipped on an unidentified spillage, injuring herself and needing hospitalisation and further treatment for unspecified orthopaedic injuries.
• Supermarket employees initially undertook to cover her medical expenses but later the supermarket denied liability.
• It admitted that it had a “general duty of care to customers visiting its store to ensure that it afforded them a safe environment within in which to shop”, but claimed the shopper’s fall was “due to her sole negligence in that she failed to keep a proper lookout, failed to take reasonable steps to prevent her fall and failed to avoid injury to herself.” In the alternative it alleged contributory negligence on her part. It also sought to blame its cleaning service contractors and/or an independent merchandiser who had been working in the aisle in question.
• The shopper took her claim for damages to the High Court, which confirmed that what you will have to prove is that the shop –
  • Should have foreseen the reasonable possibility of its conduct causing your injury and monetary loss; and
  • Should have taken reasonable steps to avoid that loss; and
  • Didn’t do so.
• The Court held that, on the evidence presented, the shopper had proved that “she took proper care for her own safety on the morning in question. The fact that she may have moved down aisle 5 at more than a leisurely dawdle did not occasion her fall: she did not slip or trip because of haste or inattention but because she stepped in some spillage of unknown origin.” (i.e., you need to prove you weren’t negligent)
• And even if the spillage was a small one (supposedly the size of a R2 coin in this case) “it really matters not what the extent thereof was as its mere presence on the supermarket floor presented a risk to any unassuming shopper, who would be expected to spend her morning looking at the merchandise on the shelves and not peering down at the floor ahead of her.” (i.e., keeping a proper lookout doesn’t necessarily mean peering down at the floor ahead of you all the time)
• In principle, once a shopper has “testified to the circumstances in which he fell, and the apparent cause of the fall, and has shown that he was taking proper care for his own safety, he has ordinarily done as much as it is possible to do to prove that the cause of the fall was negligence on the part of the [supermarket] who, as a matter of law, has the duty to take reasonable steps to keep his premises reasonably safe at all times when members of the public may be using them.
• The shopper in this case had done all that, raising a rebuttable presumption of negligence by the supermarket so that, in the absence of an explanation from it, it was inferred that a negligent failure on its part to perform its duty must have been the cause of the fall. In this case it provided no evidence of how long the spillage had been on the floor or how long it was reasonably necessary for it to discover the spillage and clean it up. (i.e., once you prove what happened and that you took proper care for your own safety, it’s for the supermarket to prove that it wasn’t negligent)
• The shopper is entitled to whatever level of damages she can prove.

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.

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Article courtesy of Law Dot News | Delict and Civil Claims

“Bad Dog!” Why a Husky’s Owner Must Pay R100,000 Damages

“…in general, ownership of an animal should carry with it strict liability for any harm done by the animal.” (Extract from judgment below)

Owning a pet comes with both joys and responsibilities, and a recent High Court award of almost R100,000 in damages to the victim of a dog attack is yet another reminder of the potential dangers of animal ownership and the legal responsibilities that come with it.

A social invite goes horribly wrong

• 17 years old at the time, a young woman was invited to a social gathering at a private house. As the gate was opened to let her in, two dogs came running out and the one (a large Siberian Husky) ran towards her and without warning launched itself towards her throat. She raised her arms to ward off the attack which resulted in both her forearms being bitten.
• Rushed to hospital, she was operated on by a plastic surgeon and has been left (nine years on) with scarring, physical disability and pain requiring physiotherapy, as well as counselling for psychological trauma in the form of PTSD (post-traumatic stress disorder).
• The dog’s owner suggested in court papers that when the dog jumped up to greet the victim, she had provoked it and acted negligently by retaliating, hitting it and pulling its hair. She was, he said, injured when the dog fended off her “unwarranted attack”. However, as the owner led no evidence to support this (the onus being on him to do so) the Court accepted that there was no provocation or negligence from the victim’s side.
• On the basis of our law’s general legal principle that “…in general, ownership of an animal should carry with it strict liability for any harm done by the animal”, the Court ordered the dog’s owner to pay the victim a total of just under R100,000 in damages.

The danger for pet owners – liability without fault

To understand that outcome, we need to go back to an old Roman law remedy, the pauperian action (“actio de pauperie”).

Under that action, which is still very much part of our modern law, the victim does not need to prove that the animal’s owner was negligent in any way. If your dog (or any other domesticated animal) causes someone else harm you are held liable on a “no fault” or “strict liability” basis.

There are a few limited exceptions to this rule, so if for example the dog’s owner in this case had been able to show that the victim had provoked the attack, she would no longer have been able to rely on the “no fault” concept. She would then have had to prove negligence and fault on the dog owner’s part – a much harder task.

But the general risk for animal owners remains this – you can be held liable for damage caused by your animals without the slightest fault on your part.

Dog Owners – how to manage the risks

So let’s end off with a few practical tips on how to protect your pet, ensure the safety of others, and reduce your risk of legal liability –

1. Understand the risk: You could be held legally responsible for any harm caused by your pet, including injuries to people and other animals, property damage, and emotional distress suffered by the victims.
2. Check your insurance cover: Make sure you have in place Public Liability insurance that will cover you for any claim of this nature.
3. Socialise and train your dog: Proper socialisation and training are vital to prevent aggressive behavior in dogs. Ensure that your dog interacts well with people and other animals.
4. Supervision and restraint: Keep your dogs supervised and under control at all times. Follow leash laws in public spaces or whenever there is any risk of harm.
5. Watch for the warning signs: Be aware of any signs or history of aggression or fear in your dog, and if necessary, seek professional help from a qualified animal behaviorist or trainer.
6. Take legal advice: If you are ever involved in a dog-related incident, consult immediately with your lawyer to assess your case, explain your legal rights, and guide you through the necessary legal processes.

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.

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Article courtesy of Law Dot News | Delict and Civil Claims – Claim Damages

Can You Claim Damages After Hitting a Pothole?

“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.

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Article courtesy of Law Dot News | Business Law – 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!

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.

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Article courtesy of Law Dot News | Delict & Civil Claims

Violence and Looting – Can You Sue SAPS?

“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.”</lii
• 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.

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.

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Article courtesy of Law Dot News –  Property & Delict and Civil Claims

Landlord Liable for a Tragic “Freak” Flood Drowning

“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!

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.

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