AN INTERESTING CASE ON LIABILITY
Piet was throwing a party at his home in Green Point, Cape Town and amongst the guests were Russ and Joe. A car’s alarm went off and they went out onto the balcony to see what was going on. As fate would have it, the balcony collapsed, they fell off and sustained some serious injuries.
Liability involved 3 parties:
Piet had instructed a contractor, Classen, to build the balcony who again sub-contracted the work to Lamberts.
The matter was complicated further as the building plans weren’t approved by the local authority.
All 3 (Piet, Classen and Lamberts) knew that harm could be caused to 3rd parties if the work was not properly done and they were all held to be liable in court a quo. Piet and Classen appealed against this ruling.
The legal test to be applied is whether the reasonable man (or woman!) would have foreseen the risk of danger, and whether steps should have been taken to guard against that danger.
The Supreme Court of Appeal found in 2009 that expert evidence indicated that it was not the failure to obtain approved building plans that caused the balcony to collapse, but the manner in which it was fixed to the wall. Piet had no expertise in the field and passed the work to an experienced building contractor, in the expectation that he would pass it on to a person whom he considered to be an expert.
Classen could not be held to be vicariously liable for the negligence of Lamberts on the basis of the general rule that an employer is not responsible for the wrongdoing of an independent contractor employed by him. His responsibility did not, however, stop with his passing of the work to Lamberts.
Classen was also required to ensure that it was properly done. Classen however had made it clear from the start that he did not have any skill or expertise in the erection of steel balconies and there was no proof that he had the means of evaluating that Lamberts had used inadequate fastenings or placed them in the wrong positions. The appeals of both Pienaar and Classen consequently succeeded.
Moral of the story….don’t stand too close to balconies 😉