In Minister of Education and Another v Wynkwart NO 2004 (3) SA 577 (C)   R, a nine-and-a-half-year-old minor at the time of the accident, was seriously injured when he fell off an unused but locked gate at his school. Contrary to repeated warnings not to climb over the fence and gates R did so, instead of using the other available gates. The trial court found in favour of R’s father who was representing him, saying that the school management had failed to take reasonable steps to ensure that R, like all his peers, left the school through the correct exit gate. On appeal to the full bench the court reversed the decision of the trial court on the basis that the perimeter fence and gates in place were reasonable safety measures. In addition thereto pupils were regularly warned of the dangers of climbing over the school gates and fences. Furthermore, there was in use a properly considered system of teacher, and even scholar, supervision to manage the daily egress of pupils simultaneously from other gates.

Indemnities again. Subscribers refresh your memories by clicking here.

Koen v Storms River Adventures CC July 2003.   The plaintiff sued the defendant for damages for injuries sustained by her as a result of an accident while on a river tubing expedition organised by defendant. Prior to the outing, the plaintiff was required to sign an indemnity form which indemnified defendant against any injury or death which resulted from its negligence. The accident in question occurred while plaintiff was being driven by an employee of the defendant in one of the defendant's vehicles. The Court found that the evidence established that the vehicle's braking system was not entirely safe at the time. The defendant was aware of this. In signing the indemnity form, the plaintiff had accepted the risks associated with the adventure trips offered by the defendant. The defendant relied on the agreement of indemnity entered into by the plaintiff and itself prior to embarking on the venture. The relevant clause of the agreement reads as follows:

"not to claim from and undertake not to take legal action against and to indemnify, hold harmless and absolve StormsRiver Adventures, its owners, members, guides, organisers, servants, helpers and agents from any or all claims and or liability in connection with loss or damage to any property or injury to myself or even my death arising from negligence of the above parties or from any cause whatsoever in the course of any tours and/or transport organized by StormsRiver Adventures in which I partake."

Subscribers click here to ascertain whether the indemnity was upheld. Case reported in August 2004.

Subscribers click on Ras NO v Senekal & another [2003] (T). Plaintiff was the curator ad litem for a person who had leased a flat owned by the first defendant. The lessee was found lying in his bath, in a coma. According to the plaintiff, the lessee was poisoned by gas in a gas leak in the flat. It was alleged that first defendant was liable for the ensuing damages, because he had a duty to ensure that the flat was properly maintained. The court found that the issues for determination were whether the lessee had sustained brain injuries as a result of gas poisoning, whether such poisoning was caused by first defendant's negligence, and whether there was any contributory negligence on the lessee's part. (Case reported in August 2004).

What is the impact of contributory negligence in a criminal OHS Act trial?

Nothing. Only the negligence of the accused is considered although contributory negligence can impact upon sentence. (Mitigate). The other party may be charged separately for a negligence offence in terms of the OHS Act as often happens when an employer is charged with a section 8 contravention while an employee is charged with contravening section 14 emanating from the same incident.

Subscribers click here for Niemann v African Oxygen Ltd July 2004 for a recent case involving a motor vehicle collision and contributory negligence.

Aboobacar & another v Greater Johannesburg Metropolitan Council [2003] JOL 11855 (W). As plaintiffs in the High court, the appellants had claimed compensation from the respondent for damages suffered as a result of a municipal water pipe bursting and the consequent flooding of the appellant's home which caused extensive damage. The court held that the only issue for decision was whether or not the evidence established the respondent's negligence. Although municipalities enjoy a measure of immunity against delictual actions, such immunity is not absolute. The court found that the municipal supply of water is potentially hazardous and should be operated and controlled with skill, circumspection and care. Where a person is in control of dangerous objects, injury may more easily result if reasonable care is not taken. Thus the reasonable man test is in such circumstances modified to form a reasonable expert test. Having regard to the evidence, the court found that the appellant had established, on a balance of probabilities, that there had been negligence on the part of the respondent. The appeal was upheld.

The decision in Hamilton v Minister of Safety and Security [2003] 1 All SA 678 (C) had far-reaching implications as far as the potential liability of the Minister of Safety and Security for the neglect of police officers to apply their minds to their job were concerned. The case involved the issuing of a firearm license to a mentally disturbed person who then shot another person during an altercation at a parking lot. The court found that the police had failed in their duty of care and were thus liable to compensate the party who was shot and paralysed. See Minister of Safety & Security v Hamilton [2003] JOL 11632 (SCA). Click here for summary.

Why is this and the Carmichele case   important? Because the it shows that the State can be held liable if it fails in its duty of care. In terms of section 12(1) of the Bill of Rights to the Constitution the State guarantees everyone the right to freedom and security of person. Will the State (Ministry of Labour) be sued for failing in their duty of care in the Lenasia factory fire? The precedent has been set. Click here for more. And what about the person who was paralysed when the marquee collapsed on International Women's day? Click here for more. Section 24 of the Bill of Rights guarantees everyone the right to an environment that is not harmful to their health or well-being.

When is a medical practitioner negligent? In Roos v Sinclair [2004] 1 All SA 299 (NC) the court upheld an appeal by a medical practitioner that he failed in his duty of care by failing to ensure that a father properly administered medication to his child. Click here for summary. (Electronic Law Report not yet available).

Grootbroom v Graaff-Reinet Municipality [2001] JOL 7975 (E) Grootbroom sued the municipality for damages after his minor son sustained an electric shock and had to have both his arms amputated when he climbed an electric transformer installation and came into contact with high voltage electricity. The court had to determine whether the defendant was liable to plaintiff for the consequences of the incident. The plaintiff alleged negligence on the part of the defendant. The court held that it was common cause that the incident occurred on property under defendant's control. The test for negligence is the well-known diligens paterfamilias test. It had to be established whether the defendant's conduct fell short of that of the reasonable person. It was clear to the court that the defendant was carrying out a very dangerous undertaking. It could have taken extra precautions which were regarded as reasonable and inexpensive. The court therefore found that the defendant was liable for plaintiff's damages.

Vicarious liability of employer for delict committed by employee.  In Van Drimmelen and Partners v Gowar and Others [2004] 1 All SA 175 (SCA)   the court held that the employer was not liable for a delict committed (causing personal injuries suffered in a motor vehicle collision) after work when the employee was going home. More...

Ntapane v Minister of Safety & Security [2003] JOL 11986 (Tk).  Plaintiff had sued the Minster of Safety & Security for damages for loss of support. The plaintiff's breadwinner was shot dead through a window by a policeman who was illegally in possession of his motor vehicle. Was the policeman acting within the scope of his authority and in the course of his employment thus triggering vicarious liability for the minister? At the end of plaintiff's case, the defendant applied for absolution from the instance. The question was whether, at the close of the plaintiff's case, there was evidence upon which a reasonable man might find for the plaintiff. The plaintiff had sued the defendant on the basis that the person who had shot the deceased was acting in the course and scope of his employment with defendant at the time of the shooting. This attempt to impute vicarious liability on the the Minister failed as no prima facie case was established against the defendant. Absolution was granted. The same principles apply when someone is injured or killed at the workplace by an employee. (A servant of the company).