Els v Memorable Order of Tin Hats (M.O.T.H.) (241/2017) [2019] ZAGPJHC 77 (7 March 2019)

Els v Memorable Order of Tin Hats (M.O.T.H.) (241/2017) [2019] ZAGPJHC 77 (7 March 2019)

The court found that the defendant owed a duty of care to its patrons, including the plaintiff, to provide safe access for wheelchair-bound individuals. The defendant was aware of the risk and failed to implement reasonable safety measures, such as ramps and railings, despite prior advice and the foreseeable danger. The plaintiff did not voluntarily accept the risk but acted out of necessity and brotherhood. The defendant's breach of duty caused the plaintiff's injury. However, the plaintiff was found to have contributed 10% to the negligence by not taking sufficient precautions, resulting in apportionment of liability. The defendant is liable for 90% of the plaintiff's proven damages and...

Citation
[2019] ZAGPJHC 77
Parties
Plaintiff: Kenneth Paul Els; Defendant: The Memorable Order of Tin Hats (M.O.T.H.)
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
7 March 2019
Case Number
241/2017
Procedural Posture
Civil Trial / Merits Separated From Quantum; Judgment on Merits
Outcome
Plaintiff succeeds; defendant liable for 90% of proven damages and costs.
Judges
Twala M L
Legal Topics
Negligence, Duty of Care, Contributory Negligence, Premises Liability, Volenti Non Fit Injuria
Delict Land and Property Negligence Duty of Care Contributory Negligence Premises Liability Volenti Non Fit Injuria

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 4 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Kenneth Paul Els

Plaintiff

The Memorable Order of Tin Hats (M.O.T.H.)

Defendant

Procedural Posture

Civil Trial / Merits Separated From Quantum; Judgment on Merits

Legal Issues

  1. 1 Whether the defendant was negligent in failing to provide safe access for wheelchair-bound patrons, resulting in injury to the plaintiff.
  2. 2 Whether the plaintiff consented to the risk of injury (volenti non fit injuria).
  3. 3 Whether the defendant breached its duty of care owed to the plaintiff.

Ratio Decidendi

The court found that the defendant owed a duty of care to its patrons, including the plaintiff, to provide safe access for wheelchair-bound individuals. The defendant was aware of the risk and failed to implement reasonable safety measures, such as ramps and railings, despite prior advice and the foreseeable danger. The plaintiff did not voluntarily accept the risk but acted out of necessity and brotherhood. The defendant's breach of duty caused the plaintiff's injury. However, the plaintiff was found to have contributed 10% to the negligence by not taking sufficient precautions, resulting in apportionment of liability. The defendant is liable for 90% of the plaintiff's proven damages and...

Court Disposition

Plaintiff succeeds; defendant liable for 90% of proven damages and costs.

Orders

  • The defendant is liable to compensate 90% of the plaintiff’s proven damages.
  • The defendant is liable to pay the costs of the action.