A recent High Court decision of A and Another v S and Another (8352/2007)  ZAWCHC 106 highlights once again both the personal tragedy and the legal consequences of failing to protect children from the dangers of swimming pools and other hazards.
The facts of the case
The property in question had both a swimming pool (fenced, with two entrance gates) and a koi pond (neither fenced nor covered);
The 2½ year old child at the centre of this case usually accompanied her mother to weekly cell group meetings held at the house;
The gates were protected with double latches which the child could not have opened herself, but on at least five occasions before the tragedy the gate had been left open. Critically, the mother had pointed this out to the owner’s wife, who had undertaken to ensure it was kept closed in future;
On the day in question the mother was unexpectedly distracted and out of sight of her daughter for approximately 2 to 3 minutes. Unfortunately that’s all the time it took for the child to fall in the pool, where she was found floating face down. She was resuscitated but suffered severe brain damage;
The child’s parents sued the homeowner (and his wife as the person in control of the property at the time) for over R62m, both on behalf of their daughter and in their personal capacities;
Faced with conflicting evidence, the Court found on the probabilities that the gate had in fact been left standing open. If there had been a self-latching spring on the gate (a subject of dispute) it had been insufficient to latch the gate.
The question which the court had to decide was: who’s liable?
Negligence, held the Court, was, on the particular facts of this case, shared between –
- The property owner, aware of the risk to small children and negligent for failing to ensure that the gate was properly secured with a self-latching spring or padlock;
- His wife, negligent for failing to ensure that the gate was kept closed as promised;
- The mother of the child on the other hand was guilty of contributory negligence for leaving her 2½ year old child unattended when she was already aware of the dangers posed by the swimming pool.
The result being that the homeowner and his wife are liable for whatever damages the parents can prove. The mother’s personal claim will be reduced by 30% to reflect her contributory negligence, but the child’s proven damages will be 100% payable.
Note: For a similar case in which the property owners had warned a child’s parents of the danger posed by their koi pond, and avoided liability on that basis can be found in our previous article: Property Owners – Manage your risk of being sued