Mthokozisi Maphumulo | Senior Associate | Litigation Attorney | Insurance & Financial Sector Laws | Adams and Adams | mail me |
Recently, the Johannesburg High Court dismissed a personal injury case against an institution. The court found no evidence of negligence or wrongdoing on its part.
In recent years, South Africa has witnessed a growing trend of litigation. There has been an increasing number of lawsuits being filed, even in cases where the objective facts do not justify legal action. This case serves as a timely reminder.
Prospective litigants and their legal representatives must approach court proceedings with care and realism. Not every injury occurring on someone’s premises will result in compensation. Below is a synopsis of the case, the court’s ruling and its reasoning.
The public liability insurance court case
The plaintiff tripped and fell over a piece of metal skirting. As a result, she sustained injuries while walking inside the defendant’s premises. Consequently, the plaintiff instituted a delictual claim against the defendant. She alleged that the defendant breached its duty of care towards herself and other customers.
Specifically, the plaintiff claimed that the defendant was negligent. The defendant failed to ensure the metal skirting was securely affixed to the wall. Additionally, the defendant did not maintain safe walkways for customers. Moreover, the plaintiff claimed the defendant failed to place warning signs and other related failures.
The defendant denied any negligence. Alternatively, the defendant argued that the plaintiff was contributorily negligent.
The defendant maintained that the metal skirting was properly affixed to the wall. This eliminated the need for warning signs. Additionally, the defendant argued that the walkways were safe for public use at all times.
Furthermore, the defendant contended that its obligation was not to make the area absolutely safe. The defendant argued that its duty was only to ensure it was reasonably safe for public use. The defendant emphasized that customers, including the plaintiff, were expected to exercise reasonable care for their own safety.
Evidence before the court
In addition to disputing negligence and denying liability in delict, the defendant relied on a disclaimer, video footage and witness testimony. This included testimony from the plaintiff and the site manager subcontracted by the defendant at the time.
Regarding negligence, the court held that there was no evidence to show the metal skirting had been loose prior to the incident. The court stated that concluding the skirting was dislodged before the incident would amount to speculation without proof.
As for the disclaimer, the defendant argued that it was prominently displayed in visible locations. It used suitable colours and font for the disclaimers. Although the plaintiff testified that she did not see the disclaimers, she admitted to being aware of their existence. Furthermore, she understood their purpose and implications.
The court held that the plaintiff, by her own testimony, demonstrated that she had “actual” or “quasi-mutual” consent to the disclaimer. The plaintiff had adequate opportunity to read the disclaimer. The site manager testified that immediately after the incident, he inspected the scene and found no loose metal skirting. He further stated that he was familiar with the area. He conducted daily inspections of the premises before opening to the public.
The site manager had also carried out an inspection on the day of the incident, finding nothing out of place. While he conceded that he did not witness the incident firsthand, he was informed of it via radio. He promptly attended the scene.
The court found the site manager to be a credible witness. His testimony regarding the inspection was not contradicted. Regarding the video footage, it showed the plaintiff “cutting corners” and moving closer to the edge of the skirting as if distracted. The court was of the view that the plaintiff did not act reasonably in doing so.
The importance of the case
The court dismissed the plaintiff’s case with costs. This public liability insurance judgment is an important reminder of the need to scrutinise the facts and evidence before proceeding with legal action. It should also deter opportunistic litigation. Lastly, the judgment is also a victory for public liability insurers who constantly have to fight against legal claims that lack merits.
