Rarely are our trial courts required to deal with delictual claims arising from injuries sustained in the course of the use of or arising from a swimming pool.
In this recent judgment the court swiftly disposed of the claimant’s multiple allegations that the defendant game lodge operator was at fault and liable to the claimant for her injuries sustained when she stepped into a swimming pool and fractured her right femur.
Only the claimant gave evidence. She agreed that the pool was visible in daylight when they arrived. When having lunch she had sat with her back to the pool for a couple of hours.
Returning to the lodge after a game drive after dark that evening and on walking into the restaurant she walked on the left side of a pot plant which was on the corner of the pool. She did not see the water and stepped into the pool with her right leg.
The claimant’s husband had walked on the other side of the pot plant and had walked around the pool as had her friends. She knew that there was a pool in the vicinity but had not on her evidence registered its exact position because she had sat with her back to it at lunch but had not forgotten about the pool.
The court found that the claimant had prior knowledge of the pool. She had seen it in daylight and was aware that it was situated on the deck. She would have walked past it twice on her way to sit at her table for lunch and when leaving the deck in order to go to her room. The claimant’s husband and her friends had clearly avoided the pool. They had to move to the right of the pool as they entered the deck in order to skirt the pool. They did so because they were aware of the pool and were avoiding it. The court remarked that it was clearly the reason that the claimant’s husband, originally billed to give evidence, did not do so.
If the claimant’s husband and her friends were able to do so, the question was why did the plaintiff not avoid the pool?
The court said the obvious answer was that she did not keep a proper look out and that if she had exercised the necessary care she would not have stepped into the pool.
The court found that her conduct was the sole cause of her stepping into the pool and sustaining injuries. Refreshingly the court held that an ordinary alert consumer would reasonably be expected to notice the pool and the claimant was the author of her own misfortune.
The court also found in the alternative that, even if the lodge was at fault, it was entitled to rely on the indemnity clause contained in the registration document which you can read about here.