By Zelda Venter
High Court Reporter
Soapie star Erik Holm, who is claiming millions in damages from a company which owned the waterfront shopping centre where he dived into a lake and became paralysed, will receive half of the damages he can prove he suffered.
The Pretoria High Court yesterday ruled that Holm was negligent in diving into the shallow lake to retrieve a ball without ensuring the water was deep enough, but the company was equally negligent.
Judge EM Makgoba said Holm's conduct "consisted, rather of a manifestation of poor judgment on the spur of the moment than of recklessness or foolhardiness on the plaintiff's part".
However, the company Sonland Ontwikkeling (Mpumalanga), which owned the waterfront in Secunda, was equally negligent in failing to erect any warning sign of the danger posed by diving into the dam.
Alternatively, the company should have erected railings at the water's edge, adjacent to the volleyball court, the judge said.
At the time of the accident, Holm, who was well-known for his role in 7de Laan, was involved in a production of the play Fiela se Kind.
He and his fellow cast members were in Secunda in August, 2007, for a performance when the accident happened.
The cast visited the Lake Umuzi Waterfront Shopping Centre and after lunch, Holm and his friends played with some children on the volleyball court.
While having lunch at a venue overlooking the lake, Holm saw boats on the water. So when the ball flew over the net and landed in the water, he took off his shirt and dived into the water.
Holm was instantly paralysed.
It is not clear whether he injured himself in the shallow water or against an invisible object.
Holm conceded that his conduct was dangerous, unsafe and not reasonable. However, at the time of his diving into the water, he believed it to be safe, he said.
Holm told the court that he saw boats floating on the water and there were no warning signs of any danger posed by the lake.
Because of the murky state of the water he could not see the bottom of the lake, he added.
But the owner of the centre said there was a notice board at the entrance, which stated that the centre would not be liable for any loss or injury to anyone who entered the premises. The level of the dam was low because of irrigation and any person could see it was not safe to dive into it, he said.
The judge said: "This case raises the problem of to what extent the owner of land who invites others to use the land owes a duty to protect those users against the consequences of their own foolishness."
The owner of the centre conceded that there were no signs warning the public against diving into the dam. The exclusion from liability clause was put up on one of the gates leading to the centre, but Holm said he saw no such a disclaimer when he entered.
The judge said the owner of the shopping complex was under a legal duty to warn Holm of the hazard and the risk involved in diving into the dam. Steps could have been taken, with minimum effort, by simply displaying a warning sign at the volleyball court that diving into the water was dangerous.
The owner said that in his opinion a disclaimer board indemnified him against damages. But the judge said he agreed with Holm's advocate's submission that this amounted to a devil-may-care attitude by the defendant.