A property owner’s liability resulting from his failure to warn visitors about dangers

In Za v Smith and Another 2015 (4) SA 574 (SCA) Mr Za slipped on a snow covered mountain slope, which was situated in a private reserve, and fell over a 150 m sheer precipice to his death. Mrs Za sued the nature reserve and the owner of the reserve for loss of support personally and on behalf of her and the deceased’s three minor children.

The basis of Za’s claim was delictual liability which arose from the private reserve’s wrongful and negligent failure to take responsible steps to avoid the incident which lead to his death.

The court a quo held that there was no causal link between failure by the private reserve to warn the deceased of any danger and Mr. Za’s death.

However, the Supreme Court of Appeal carefully considered the elements of delict and specifically focused on wrongfulness, negligence and causation. Another factor they considered was the fact that the private reserve were in control of the property which held the risk of danger for visitors and, with the knowledge and consent of the reserve and its owner, allowed members of the public, for a fee, to make use of a four-wheel drive route designed to lead directly to the area which proved to be extremely dangerous.

Wrongfulness

In terms of wrongfulness the court held that there was an assumption in this case that the reserve could have prevented the deceased from slipping and falling to his death. He died because of their negligent failure to do so. The court further held that it is reasonable to impose delictual liability on the reserve for the loss suffered by the dependents because of their negligent actions by failing to warn visitors of the potential dangers they could encounter within the nature reserve.

Negligence

The reserve’s defence to negligence was that the danger which materialized when the deceased slipped and slid to his death relates to the reasonable person test which should always be the measure and decided on considering the facts of each case. The reserve felt that the danger was clear and therefore no warning signs were needed. The Supreme Court of Appeal held that, in the reserve’s position, a reasonable person would have taken precautionary measures to protect visitors, which the reserve failed to do, therefore they were negligent.

Causation

Although the Court a quo found against Za because she failed to establish causation, the Appeal court indicated that the correct test to determine causation is the “but for” test. The Appeal court held that the court a quo was correct to use the “but for” test but not in the manner it was implemented. The Appeal court believed that when applying the “but for” test it should not be applied scientifically or mathematically, but in a practical way, with other words in the mindset of an ordinary person. The Appeal court further held that the “but for test” should be applied as follows: “but for the Respondent’s (reserve’s) wrongful and negligent failure to take reasonable steps, the harm that befell the deceased would not have occurred”, therefore establishing causation.

It was for these reasons that the Appeal court declared the private reserve liable to compensate Za in her personal capacity and as a mother of her and the deceased’s three minor children for their losses suffered I respect of support previously provided by the deceased.

By
Nicole Naidoo
nicole@dyason.co.za