It would be reasonable to assume that the lifestyle of many South Africans living in suburbs across the country would include having access to a swimming pool. It is well known that if its not properly fenced and gated, swimming pools can be a potential hazard especially to young children. Picture the scene, a mother with her toddler are visiting you. The mother is distracted for a short while to attend to moving a car seat and leaves her 2- year child to wander around your property, where the pool gate is open. A few minutes later the child is found floating on the pool. If the child drowned, who would be liable for negligently causing the child's death The mother of the child for allowing the child to wander off unsupervised or the owner of the property for not closing the pool gate
A similar case came before the Western Cape High Court. Thankfully in that case the child survived but she sustained severe injuries. The parents of the child sued the owner of the property for over R62 million as compensation for damages. The parents said that the owner of the property failed to take reasonable steps to ensure the swimming pool was properly fenced and/or failed to keep the gate of the pool closed.
The owner of the property denied being negligent and blamed the mother, saying that in leaving the 2 year old child unattended, she was responsible for the child falling into the pool. The argument being that the mother failed to keep the child properly under her care and allowed her to wander around unsupervised. Using 'the reasonable man's test', i.e. by asking what would a reasonable person in the shoes of both the owner of the property and the mother of the child do in those circumstances, the court found the owner of the property to be liable for the injuries caused to the child, but reduced one third of the amount of the damages claimed in terms of the Apportionment of Damages Act.
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