Property owners who ignore dangerous conditions on their premises could face a costly legal battle if someone is injured.
This is the warning emerging from a Western Cape High Court judgment that found a property owner liable after a heavy gate fell on an eight-year-old boy, leaving him with serious injuries.
Once a risk is foreseeable, doing nothing can have very serious consequences.
— Attorney Kirstie Haslam
The judgment in Jones v Chilwan, delivered last week, has important lessons for homeowners, landlords, and anyone responsible for maintaining property.
The court found that the property owner, Moegamat Shadley Chilwan, was liable for the injuries suffered by Reece Jones after the gate at a residential property in Ruiterwacht, Cape Town, derailed and fell on him.
The court described Chilwan’s conduct as “wrongful and negligent” and ordered him to compensate Reece. The amount of compensation has not yet been decided and will either be agreed between the parties or determined later.
The judgment sends a simple message: owning property comes with responsibilities, experts say.
Property owners cannot simply wait for an accident to occur before addressing a danger they could reasonably have identified and fixed.
Kirstie Haslam, a partner at DSC Attorneys, which represented Reece, said property owners have a legal responsibility towards people who can reasonably be expected to use or enter their properties.
“You do not have to eliminate every conceivable risk, but you do have to take reasonable steps to protect people from dangers that are foreseeable,” she said.
The case involved an incident in September 2017. Reece was living with his mother at the property when the large sliding entrance gate became dislodged and toppled onto him as they entered the premises.
He suffered a severe head injury with a fracture, frontal haematoma, scalp laceration and abrasions. He also suffered a displaced fracture of his right femur.
The court heard that the gate was large and heavy and did not have adequate safety mechanisms to prevent it from derailing and falling.
The dispute included whether a stopper had been installed on the gate.
The court rejected Chilwan’s version and made a clear distinction between a bracket and a proper safety stop.
“A bracket is not a stop,” the court said.
The judgment found that the gate’s size and weight created a foreseeable danger.
It said proper safety measures, including stops, guide rollers or a stabilising pole, could have reduced the risk of the gate derailing.
The court concluded that Chilwan “could and should have done more than he did to ensure that the gate was rendered reasonably safe”.
The judgment, however, did not mean property owners are expected to make their homes completely risk-free.
Instead, the court focused on whether a reasonable person would have recognised a possible danger and taken sensible steps to prevent an injury to someone.
For homeowners and landlords, this means regular maintenance should not be treated as an optional expense.
Gates, staircases, balconies, walls, swimming pools, electrical installations and other structures can pose serious risks if they are poorly maintained or incorrectly installed.
Haslam said property owners should be especially careful where a defect could cause serious injury and where reasonable measures are available to prevent an accident.
“Where the potential consequences are serious and reasonable preventative measures are available, property owners should be acting before somebody gets hurt,” she said.
The owner had tried to place some responsibility on Reece’s mother, arguing that she had not supervised her son properly while he was closing the gate.
But the court rejected this argument.
It concluded that “no blame can be laid at the feet of the plaintiff”.
Haslam urged property owners to regularly identify hazards and deal with any defects before they cause harm.
“Once a risk is foreseeable, doing nothing can have very serious consequences – for the person who is injured and ultimately for the owner who failed to act,” she said.
Sowetan
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.