Court allows widow to sue club for lightning death

A Johannesburg widow has received the green light to sue the Johannesburg Country Club after her husband died after being struck by lightning on the golf course.

The Supreme Court of Appeal yesterday gave judgment saying that club rules which forbid lawsuits under some circumstances do not apply to the case of Eleanor Stott.

The judgment points to a showdown looming over contracts barring lawsuits for the negligent causing of death.

Two judges said it might be unconstitutional.

Mrs Stott sued the club for R5,92-million for loss of support and funeral costs after her husband Brian, an engineer, died in hospital 20 days after he was struck by lightning while playing a round of golf with friends on March 4 2000.

Mrs Stott claimed there were no emergency medical facilities available at the club and that it should have made sure the shelter was safe.

The club said there was an exemption clause in their rules that barred her from suing them.

Mrs Stott's answer was that the exemption clause did not indemnify the club. She also said she was not bound by the exemption clause because she had not been aware of it.

Judge Frank Kirk-Cohen agreed with Mrs Stott's legal team and dismissed the special plea by the club.

They appealed, but yesterday the Supreme Court of Appeal dismissed their appeal.

Justice of Appeal Louis Harms said they agreed that Mr Stott could not exempt the club from being sued by his dependants. But the problem was that Mrs Stott was a member too and had undertaken "not to hold the club responsible for harm caused to members".

The court, however, held that Mrs Stott's claim was not one for "personal injury or harm" but for harm done to her husband.

Judge Harms said they had to consider "the radical nature" of a rule excluding liability for damages for the negligent causing of death at some time, but added that they did not need to decide now whether it could be done effectively.

"It is arguable that to permit such exclusion would be against public policy because it runs counter to the high value that the common law and, now, the constitution place on the sanctity of life," Judge Harms said.

Justice of Appeal Robin Marais agreed that the appeal must be dismissed but said that for now he did not support the statement that such clauses may be unconstitutional.

The court said Mrs Stott must be allowed to proceed with her claim.