Toddlers and small children are really difficult to keep track of and have an unerring attraction for danger; and danger seems to be just about everywhere. From trampoline to jumping castle, jungle gym to fountain or swimming pool, all can be very dangerous for children. The Gauteng High Court’s judgment in the case of BS v MS and another, published on 23 November 2015, required the Court to decide whether the owner of a home in whose fishpond a little girl nearly drowned, suffering permanent brain damage, had to do more than warn her parents about the danger.
The Court found that homeowners have a duty of care to visitors generally and specifically in relation to any particular dangers posed by his / her property. The Court had to decide whether the homeowner in this tragic case, by warning the little girl’s parents of the danger posed by the fishpond, had done enough to meet the standard of care demanded by the “legal convictions of the community”. The test, the Court held, is an objective one. The legal convictions of the community change from time to time and from place to place - they must be worthy of protection by law and consistent with constitutional values and norms.
In a sensible judgment in very difficult circumstances, the Court held that:
“Community and family members invite people to their homes for social functions on a regular basis and, even though a legal duty exists created by society's reasonable expectancy that neither they nor their children will be exposed to harm or injury upon visiting the property of another upon invitation, it cannot be said that society would reasonably expect a property owner to go beyond reasonable means in order to make his or her property safe, as this would place an unfair duty on property owners and would also serve to discourage social interaction.”
In this case, the warning to the parents, both of whom admitted that they were aware of the danger, was enough.