THE RIGHTS OF A DOMESTIC PARTNERSHIP
March 12, 2018
CANCELLING A CONTRACT? THE DO’S AND DONT’S TO CONSIDER!
April 4, 2018

THE OBLIGATION TO AVOID A DANGEROUS SITUATION ARISING ON PROPERTY

As noted in a previous newsletter, a property owner is obliged to take reasonable precautions to avoid the possibility that other people may be injured or suffer damages as a result of a dangerous situation on his property. The courts will examine the facts of each case and consider what is reasonable and fair given the circumstances.

How the courts examine the evidence before it was recently illustrated in the Supreme Court of Appeal case of MTO Forestry (Pty) Ltd v Swart NO [2017] 3 All SA 502 (SCA).

In brief the facts of the case are that the appellant conducted a forestry business on a plantation and was the beneficial owner of the forest in the sense that it had the right to harvest the trees and enjoy the income from the forest’s production. A fire started on a farm owned by the respondent, situated immediately adjacent to the plantation. The fire spread onto the plantation where, according to the appellant, it caused some 1 300 ha of forest to be destroyed. The appellant instituted action in the High Court, alleging that the fire had either been caused, or allowed to spread onto its plantation, by negligence on the part of the respondent. It claimed damages in excess of R23 million. The court of first instance (a quo) held that the respondent’s liability had not been established, and it dismissed the appellant’s claim but granted leave to appeal to the Supreme Court of Appeal.

The appellant sought to hold the respondent liable, not for starting the fire on the day in question, but for its alleged negligent omission to take preventative steps which allowed or caused it to spread onto the plantation. It was clear that such a negligent omission, if established, can found liability.

The Court held that as the appellant’s claim was founded in delict it had to establish, first, the conduct of the respondent of which it complained; second, the wrongfulness of that conduct; third, fault on the part of the respondent (in this case in the form of negligence); fourth, that it had suffered harm; and fifth, a causal connection between such harm and the respondent’s conduct that is the subject of its complaint.

The Court found that while a property owner is under a duty to control or extinguish a fire burning on its land, that is not an absolute duty. Instead, it is required that reasonable avoidance steps should be taken. A reasonable property owner in the respondent’s position was therefore not obliged to ensure that in all circumstances a fire on its property would not spread beyond its boundaries. All the respondent was obliged to do was to take steps that were reasonable in the circumstances to guard against such an event occurring. If it took such steps and a fire spread nevertheless, it could not be held liable for negligence just because further steps could have been taken. The Court confirmed that the steps taken by the respondent to avoid a fire on its property spreading to its neighbours were reasonable in the circumstances.

Considering the above the Court dismissed the appeal with costs and thereby found that the respondent was not negligent in this case.

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)

Source:

We use cookies to improve your experience on our website. By continuing to browse, you agree to our use of cookies
X