A Western Cape High Court judgment has reinforced the duty on property owners to take reasonable precautions against foreseeable risks after a heavy sliding gate fell on an eight-year-old boy, leaving him with serious injuries.
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A Western Cape High Court judgment has reinforced the legal duty on property owners to take reasonable steps to ensure their premises are safe after a heavy sliding gate fell on an eight-year-old boy, causing serious injuries.
The judgment in Jones v Chilwan, delivered on August 25, found property owner Moegamat Shadley Chilwan liable for damages suffered by Reece Jones.
The court found that the incident was caused by Chilwan’s “wrongful and negligent conduct” and ordered him to compensate Reece in an amount to be agreed or determined in due course.
The owner was also ordered to pay specified legal costs, including further costs and counsel’s costs on Scale C.
The judgment deals with liability only. The amount of compensation payable for Reece’s injuries has not yet been determined.
The case stemmed from an incident in September 2017 at a residential property in Ruiterwacht, Cape Town, where Reece lived with his mother.
As they entered the property, the large sliding entrance gate became dislodged and toppled onto Reece.
He suffered serious injuries, including a severe head injury with a fracture, frontal haematoma, scalp laceration and abrasions, as well as a displaced fracture of his right femur.
The case centred on whether the gate was reasonably safe and whether adequate mechanisms had been installed to prevent it from derailing and falling.
Evidence before the court showed that the gate was large and heavy and that adequate safety mechanisms were not in place.
In considering whether a stopper had been fitted, the court rejected the defendant’s version, stating: “A bracket is not a stop.”
The court found that the gate’s size and weight presented a hazard and that, without sufficient safety mechanisms, including stops, guide rollers or a stabilising pole, the possibility of derailment was foreseeable.
It concluded that Chilwan “could and should have done more than he did to ensure that the gate was rendered reasonably safe”.
Kirstie Haslam, a partner at DSC Attorneys, which represented the plaintiff, said the judgment highlighted the responsibilities of property owners towards people who could reasonably be expected to use or access their premises.
“This judgment reinforces a fundamental principle: owning or controlling property comes with a legal responsibility towards the people who can reasonably be expected to use or access it,” she said.
“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.”
The court reiterated that an owner or person in control of premises has a legal duty to take reasonable precautions to prevent a foreseeable risk of injury to people whose presence can reasonably be foreseen.
The court stressed that the test was not whether the owner knew an accident would happen, but whether a reasonable person in the circumstances would have foreseen the possibility of injury and taken reasonable steps to prevent it.
Chilwan had sought to attribute fault to Reece’s mother, arguing that she had failed to supervise him adequately while he was closing the gate.
The court rejected this argument, concluding that “no blame can be laid at the feet of the plaintiff”.
Haslam said property owners should regularly identify hazards and address defects that could reasonably cause injury.
“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.
Daneil Botha of DSC Attorneys acted as attorney for the plaintiff.
The amount of compensation payable to Reece will be agreed between the parties or, failing agreement, determined in due course.
IOL
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