A Body Corporate has the responsibility to ensure that all areas of the common property are safe and secure. Liability may arise in circumstances where injuries of owners, tenants or visitors are caused by poor maintenance or structural defects.
The risk that a Body Corporate is exposed to in this area is illustrated in the matter of Swinburne v Newbee Investments (Pty) Ltd 2010 (5) SA 296 (KZD). Mr Swinburne sustained serious injuries as a result of slipping and falling whilst walking down stairs that were wet as a result of rain. The court held that the landlord (the owner of the building) was negligent for its failure to construct a handrail that would have prevented a person in the position of mr Swinburne from falling on the wet stairs. The court held that a clause in the lease excluding liability on the part of the owner for negligent acts, did not cover bodily injuries.
The court further held that even if the clause excluding liability for negligent acts did include personal injuriies, the owner may still be held liable on the basis that such exclusions are aginst public policy.
Although the matter of Swinburne involves a block of flats of which the landlord was the owner, the principles aluded to would apply equally to a Body Corporate as owner of common property. Trustees must also take note of the provisions of section 61 of the Consumer Protection Act 68 of 2008 that provides for stirct liability in some cases of bodily injuries. For example, a clause or notice excluding liability for negligent acts would not exclude liability in a case where a swimming pool is not sufficiently secured.
Our management team can assist trustees in identifying areas of concern that pose the risk of liability for losses suffered by third parties. A Body Corporate is also obligated to take out adequate insurance against such claims.