Three 2010 judgments illustrate the courts’ common sense approach to personal injury claims.
Swinburne v Newbee Investments (Pty) Limited  4 ALL SA 96 (KZD):
In the first case, the defendant was a property owner of a block of flats where the plaintiff, a tenant, fell and broke his arm while using courtyard stairs on which sand had accumulated. The steps had no handrail.
The Kwazulu-Natal high court held that it was reasonable to expect the owner to take positive measures to prevent harm. Accordingly, he also had a legal duty to prevent harm to the tenant, and to ensure that the stairs were safe.
The owner was negligent in failing to provide a handrail. If a railing had been in place, it was probable that the Plaintiff would not have fallen nor sustained injuries. The provision of a handrail was an obvious way to protect users against the hazard of loose materials having been washed down from higher ground onto the stairs.
It would not have been unduly costly to install the handrail. The fact that there was another safer route for residents to follow did not detract from the negligence. The tenant was using stairs (and a pathway) created by the landlord and did so with the landlord’s knowledge.
In the second case, Hawekwa Youth Camp & Another v Byrne  6 SA 83 (SCA), the Supreme Court of Appeal dismissed the appeal of the lower court’s judgment. The trial court had dealt with a claim on behalf of a minor child against the Minister of Education for the alleged negligence of teachers who accompanied the children to a youth camp.
The primary school pupil had suffered a degree of permanent brain damage when he fell, whilst sleeping, from the top bed of a bunk that had no side protection, onto a cement floor.
The court held that the teacher should reasonably have foreseen that there was a real risk that a child aged nine could roll off the bunk in his sleep and injure himself.
The reasonable teacher would have examined the bunks and considered whether they afforded children protection from rolling off.
The court found that it would have been easy to instruct the children to put their mattresses on the floor and sleep there.
In the third case, Holm v Sonland Ontwikkeling (Mphumalanga) EDMS Beperk  6 SA 342 (GNP), the North Gauteng High Court dealt with a property owner sued for injury suffered when the Plaintiff dived into a dam next to a volleyball court, to retrieve a ball from the water. The Plaintiff, unaware that the dam was shallow because the water was murky, was paralysed and confined to a wheelchair. There had been no warning notices at the dam which was also unfenced.
The Plaintiff had conceded some contributory negligence. The property owner was held 50% liable for the injuries as it should have reasonably been foreseen that people could walk along the water’s edge and dive into the dam even if it was negligent to do so. The easy and inexpensive precaution available was to alert passers-by to the potential danger.
The court found that the property owner was not entitled, in the circumstances, to assume that others would not act negligently.
By situating the volleyball court adjacent to the water’s edge, the Defendant had introduced a source of danger and had subsequently failed to eliminate that danger.
The court said public policy required that the property owner either should have ensured that the dam was not hazardous, taken steps to remove the volleyball court from the edge of the dam, warned the public about the dam or erected an appropriate barrier.
In all three cases, the courts considered whether a duty of care was owed in the circumstances and on review of the relevant case law, found that a duty was owed.
In all the cases:
➢ The injuries would probably have been averted without undue effort or cost on the part of the Defendants;
➢ A simple risk management review, identifying potential dangers, and easy and inexpensive steps could have been taken to avoid the dangers arising.
By: Donald Dinnie, Director, Norton Rose South Africa
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