“A plumber visited my new house to repair a water leak in my upstairs bathroom. He fell from the second story of my house and claims that he fell because I did not have stair railings. I have not yet had my railings installed as they are quite expensive and I am still saving for this. We have however been using the house for a few months without the railings and without incident. The plumber is now threatening to sue me for damages. Can he do this?”

It always seems a bit unfair when someone tries to cast blame or tries to gain financial benefit for something silly they did. The stark reality however is that it is our responsibility to provide protection and take precautionary steps when we are in possession of or in control of a potentially dangerous object such as an unrailed flight of stairs. Where somebody is hurt due to something you did or did not do to make the object safe, you may very well find yourself at the wrong end of an attorney’s letter of demand.

For your plumber to succeed in a delictual claim against you, it would require that he prove wrongful and negligent conduct on your part. He will have to demonstrate the following:

• That you did something or failed to do something that caused the accident. The fact that you failed to install a railing on stairs being utilized will satisfy this element. 
• That your conduct or failure was wrongful. To prove this, one must look at the views of the community and whether the community would find that the failure to have a railing on a used staircase is wrongful. In respect of this element, I would venture that the community would be in agreement that such conduct would be wrongful and one would expect a dangerous staircase to be railed.
• That the conduct was intentional or negligent. Of course you did not intend the plumber to fall (unless you pushed him for overcharging you!) so there will not be intentional conduct. However, if a reasonable man would foresee the possibility of an accident happening on an unrailed staircase and take steps to avoid the harm from occurring, this could establish negligence on your part. Given the obvious risk that an unrailed staircase holds (that’s why one has railings) it would be quite likely that negligence can be established.
• Lastly, it must be shown that the accident was the result of the railing not being there. Again, given the plumber’s averment that he was injured due to his fall from the unrailed staircase, it is probably likely that it can be shown that the absence of the railing caused the accident.

This means that there is a good chance the plumber will be successful in showing your conduct was wrongful and negligent and caused the accident. The question now is whether he can claim damages from you for his medical expenses, pain and suffering and possibly even loss of future income if he is no longer able to work?

I’m sure by now you are quite worried about how much the silly plumber falling down the steps is going to cost you? Fortunately in our law our courts can apportion damages to parties based on their respective negligence in contributing to an accident. The general rule is that parties involved must at least have tried to mitigate their damages, and a person cannot claim damages where they could have taken reasonable steps to prevent the damage from occurring.

Our courts have in the past found that a reasonable person would check to see if a railing is present before using a staircase and that if they fail to do so, they could be held 100% responsible for their damages.

Our Supreme Court of Appeal has however come out to state that the danger of a staircase without a railing is so big, that unless the owner of the staircase can show that the injured party was contributory negligent in falling, the owner will be liable for the damages suffered by the injured party.

Taking account of the above, one can make the following assessment of your situation:

• An unrailed staircase is inherently dangerous, and your failure to make it safe or prevent people from using it can show negligence on your part.
• If you cannot show that the plumber was also negligent (in full or partially) in falling, then you may be liable for his damages. To the extent that the plumber may also have been negligent, a court may apportion some of the plumber’s damages suffered to him.

Importantly, every case is different and often the devil is in the detail. But it is clear that this matter is serious and you would be well advised to seek legal assistance to assist you in managing any claim from the plumber that may be forthcoming.

 

Written by Hermann Fourie, Associate, Phatshoane Henney Attorneys: Litigation Department