This is why it is important to insure yourself for personal liability
Insurance / 30 September 2019, 5:00pm / Roz Wrottesley
In December 2017, a woman and her two-year-old daughter visited a friend’s home.
While the hostess was busy, the mother left her child playing in the house while she went out to the parking area. When she returned, the child was nowhere to be seen.
In the panic that followed, the owner of the house found the child floating face down in the swimming pool. The baby survived but sustained serious and permanent brain damage.
The devastated parents sued the homeowner in the high court for their own and their child’s damages, on the grounds that the homeowner was negligent in not securing the swimming pool gate. It was undisputed that the two-year-old could not have opened the gate if it had been properly closed. A clear-cut case of homeowner liability?
Far from it, says Kirstie Haslam, a director at law firm DSC Attorneys, which specialises in personal injury law. She cites this case for the very reason that it illustrates how complex the law is when it comes to liability for damages.
The high court found that the parties were jointly negligent: the homeowner failed to secure the pool gate, but the mother allowed herself to be distracted and left her child unattended. Accordingly, the liability was to be shared.
The homeowner appealed the judgment. The Supreme Court of Appeal took a very different view: briefly, that “negligent omission” is not necessarily wrongful or unlawful unless it occurs in circumstances where a person has a legal duty not to cause harm through negligence.
In this case, the appellant was guilty of an omission in not securing the gate, but at the time had no legal duty towards the child because the mother was present and could be expected to watch over her child.
So the homeowner won her case.
What is the key takeaway from this case?
When it comes to personal liability, take it seriously and don’t make presumptions about the outcome, says Haslam. Terrible things do happen to good people, as this story illustrates, and every case is different.
“Make sure you are insured - it costs very little. And whichever side you are on, don’t delay.
“Take legal advice as quickly as possible, while the events are still fresh in your mind,” she says.
What law regulates personal injury claims?
Whether someone should be compensated for harm, and who is liable for that compensation, comes down to the law of delict (delict = a harmful act) in South Africa.
Liability can be established if the circumstances include all five of the following elements:
* An act or an omission;
* Wrongfulness (legal, not just moral; a violation of someone’s right or neglect of your own duty, including a duty of care);
* Fault - whether intentional or negligent;
* Causation (something would not have happened “but for” the action/omission); and
* Harm (loss or damages).
As in the High Court judgment above, liability can be shared if there is evidence that both parties were at fault.
What happens if a contractor is injured at my home?
Contractors who do potentially risky work at your home should, by law, be covered by the Compensation for Occupational Injuries and Diseases Act (COIDA), which compensates employees for “disablement caused by occupational injuries or diseases sustained or contracted in the course of their employment, or for death resulting from such injuries or diseases”.
So you can check that an employer is registered with COIDA before you accept a quote for work on your property. The employer and the person for whom they do the work are indemnified against liability under the act and an injured employee (or the family of a deceased employee) can claim against the compensation fund without having to establish fault.
Note that sole proprietors and immigrant workers without legal work permits are not covered by COIDA, so they could sue you for damages if they believe they have a case.
How can I protect myself?
If you have contents or building insurance on your home, you probably have personal legal liability insurance as part of the package - although lots of policyholders don’t realise it, says Haslam.
It is available only as an add-on to home insurance because the price is so low: for example, if you have home insurance with Santam, a monthly premium of R350 covering building and contents will include R5 for cover of up to R5million should you be found liable for the accidental death, injury or illness of a person, or for loss of, or damage to, another person’s property. And for the same R5, you have R5m-worth of liability cover should a domestic worker be injured or killed at work.
For a few more rand, most insurers will extend your legal liability cover to between R8m and R10m. It might sound like a lot of cover, but bear in mind that claims for damages can be enormous.
Another good reason for paying a little more is that the cover is usually not limited to events at home or even in South Africa. You could be required to pay compensation in a foreign currency or a foreign country, in which case the extension might turn out to be a very good investment indeed.