COMPENSATION FOR A FATAL HOLIDAY RESORT ACCIDENT

Emily and Nathan were a happily married couple in their early thirties with two minor children. Emily was a stay at home mom and Nathan was the breadwinner of the family. The family decided to take a vacation in Sun City, which ended tragically when Nathan was fatally injured on a Valley of the Waves ride. Who was to take care of the family now that Nathan was no longer there and who was to pay the price for the family holiday that ended in a tragic loss?

Negligence

If the question of negligence is hanging in the air, then the obvious word to pop into one’s mind would be that of delict. In Kruger v Coetzee 1966 (2) SA 428 A 430E-G the formulation for negligence was established by Holmes in two steps:

(a) a diligens paterfamilias in the position of the defendant –

  • would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and
  • would take reasonable steps to guard against such occurrence; and

(b) the defendant failed to take such steps.

In the case of Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015) the father and breadwinner of the family died in a tragic accident while on vacation at a mountain resort close to Ceres, Western Cape, after falling off a sheer precipice (a steep rock or cliff). The wife of the deceased took the matter to the Supreme Court of Appeal, who considered three elements, namely wrongfulness, negligence and causation.

The background facts were taken into account, namely the fact that the park was used for recreational purposes for the public upon paying an entry fee. Furthermore, the 150 metres gorge drop where the deceased fell to his death was not visible, especially in snowy weather, nor were there any warning signs.

Wrongfulness

The court a quo did not find the Respondents to be wrongful as they did not have the duty to warn guests of the danger that was blatantly apparent to them. However, in the above-mentioned case it was reiterated that the test for wrongfulness is whether it would be reasonable to have expected the defendant to take positive measures, while the test for negligence is whether the reasonable person would have taken such positive measures. Confusion between the two elements is almost inevitable. It would obviously be reasonable to expect the defendant to do what the reasonable person would have done. The result is that conduct which is found to be negligent would inevitably also be wrongful and visa versa.”[1]

Conclusion

If the above-mentioned case is taken into consideration then Emily would most likely be successful in her application for compensation for herself, as well as in her capacity as mother of the two minor children, if it is found that Sun City Holiday Resort was negligent and wrongful and had causation.

Reference:

  • [1] Za v Smith (20134/2014) [2015] ZASCA 75 (27 May 2015)

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

THE HEAVY COSTS OF SETTLING AN ESTATE

If you have never planned your estate, perhaps now is a good time to consider it. This will be to you and your family’s benefit, as there are often hidden costs which come into effect at the time of passing, that are not taken into account when you plan your estate and inheritance.

Expenses when an estate comes into effect

  1. Estate duty
  2. Executor’s fee
  3. Capital Gains Tax

These costs have a direct impact on the cash balance of the estate. Questions arise of whether there will be enough cash to enable the executor to administer the estate without having to sell estate assets. This can slow down the administering process of the estate considerably with potential detriment to the heirs.

Settling the estate’s expenses

The care of the dependents will be influenced because the above-mentioned costs will have to be settled from the estate cash. This may result in the spouse and children inheriting less than what the testator had planned. The person who gets the worst of it is the person who lives longest, because he/she usually inherits the remaining estate cash.

Unfortunately, the fact that you have a judicially sound will may not necessarily provide the answers to these questions. Thorough estate planning will be needed in order to find the answers. The stipulations of the will must be tested against the aforementioned costs, after which the necessary changes can be made to produce a cost-effective will. The will’s lay-out will therefore have a direct impact on the costs. If you spend time to ensure that your will is in order in all aspects, it will limit the grief when you are no longer there to set things straight.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

BALANCING FREEDOM OF EXPRESSION AND DEFAMATION

Defamation law in South Africa is one of the most debated topics in our legal system. The reason being that South Africa is a democratic country founded on human dignity, equality and freedom of expression, to name just a few. These founding provisions in our constitution, together with the relevant Human Rights provisions, make it difficult to find an equitable balance between these competing rights in defamation cases. Many agree that a free press is an important part of an open and democratic society, but that false, unjustifiable attacks on an individual’s reputation are damaging and wrong. How do our courts find a balance between these competing rights?

What about the constitution?

The relevant section in the Constitution is Section 36, which provides for the limitation of rights in the following circumstances. The first requirement is that the law must be of general application. Secondly, the limitation must be reasonable and justifiable in an open democratic society. To determine when it will be reasonable the court will take certain factors into consideration. These factors include the nature of the right, the importance of the purpose of the limitation, the relationship between the limitation and its purpose, and whether less restrictive means were explored to achieve the purpose.

What have the courts decided?

In the Supreme Court of Appeal case of National Media Ltd and Others v Bogoshi the court adopted the attitude that, although there is no constitutional value in false statements of fact, an incorrect statement of fact is nevertheless inevitable in free debate. The publication in the press of a false, defamatory allegation of fact will not be regarded as unlawful if, upon consideration of all the circumstances of the case, it is found to have been reasonable. When a court considers the reasonableness of the publication it will take into account the nature, extent and tone of the allegations, and “greater latitude” will usually be allowed in respect of political discussion. The Court held that the press should bear the onus of showing that the publication was reasonable under these circumstances.

The consequence of the Bogoshi judgement is that if a newspaper can show that a decision to publish was reasonable and justifiable, it will be able to avoid liability even in circumstances where the statements are false.

This reasoning was developed further in Sankie Mthembi-Mahanyele v Mail & Guardian Limited where it was held that justifiability is to be determined by having regard for all relevant circumstances. These include the interest of the public in being informed; the manner of publication; the tone of the material published; the extent of public concern about the information; the reliability of the source; the steps taken to verify the truth of the information; and whether the person defamed has been given the opportunity to comment on the statement before publication. In cases where information is crucial to the public, and is urgent, it may be justifiable to publish without giving an opportunity to comment.

Conclusion

Freedom of expression and defamation are both important parts of South African law. They can both be powerful, but a balance can be maintained between the two, ensuring circumstances to be taken into account, leading to fair judgement.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

MY DOG JUST ATTACKED SOMEONE

Due to circumstances beyond your control your dog bites someone. There is blood, an injury, and a shocked and angry victim. Luckily it is a small wound, but before you can mouth an apology, the traumatised person storms off with the words: “You’ll pay for this; see you in court!”

Are you liable for the damage caused by your dog?

Well, you could be, depending on the circumstances. Damages caused by a pet can be claimed from the owner through the Actio de Pauperie. You will be liable for damages if the complainant is successful in proving:

  1. that you were the owner of the animal at the time of infliction of the injury;
  1. that the animal is domesticated;
  1. that the animal acted contrary to the nature of a domesticated animal; and
  1. that the conduct of the animal caused the plaintiff’s damage.

How can you defend your dog?

The onus will be on you, as owner of the dog, to prove a valid defence. You will not be liable for the complainant’s damages if you can successfully prove:

  1. that your poor dog was provoked by the culpable conduct of the complainant;
  1. that someone else was in charge of your dog when the injury was inflicted, in other words a third party had control over the animal and the damage occurred due to that person’s negligence;
  1. the unlawful presence of the plaintiff on the premises, in other words that the injured person had no legal right to be there;
  1. that the plaintiff knew of the risk and voluntarily accepted the risk; and
  1. that the owner is not responsible for damages caused by his animal in terms of an existing indemnity agreement between the parties.

The circumstances and actions of the injured person will determine what happens. If someone came onto your property uninvited and got attacked by your dog, then it’s not your fault. However, if you were walking your dog in the park and they randomly attacked someone, without being provoked, then you are liable.

Owning a dog can be a very rewarding experience and a boundless source of unconditional love, but at the same time it also brings great responsibility. If you own a dog, you also have a responsibility to prevent it from causing harm to anyone or their property.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)