[34] Mr Pieralberto Za (the deceased) slipped on a snow covered mountain slope and fell over a 150 metre sheer precipice to his death. The incident occurred at Conical Peak, one of the highest mountain peaks in the Western Cape. Ms Federica Za, was married to the deceased and is the mother of their children. She instituted action in the Western Cape Division of the High Court, Cape Town, based on delictual liability arising from the wrongful and negligent failure by the first and second respondent to take reasonable steps to avoid the incident which led to the death of the deceased.
[35] The facts are largely common cause and are not materially in dispute. The facts that exist are largely tangential to the issues to be determined and not …show more content…
Further, there was no fencing at the edge of the cliff to arrest any free-fallers.
[37] On of the main attractions, particularly during the winter season was the specific four-wheel drive vehicle route leading up to Conical Peak. The route proceeds over very rough terrain and ends in a fairly level plateau at the foot of Conical Peak where members of the public park their vehicles. In the immediate vicinity of this parking area, there is a sharp precipice falling 150 metres into a gorge known as Groothoekkloof.
[38] My general view and opinion is that no property could be rendered 100% safe for all persons at all times, and that there would always be an element of risk in the nature of things. …show more content…
In order to shift the burden of damages to another, a plaintiff must establish that the other party is legally obliged to compensate him or her for the loss suffered.[ Federica Za v Smith and Another (5462/11) [2014] ZAWCHC 35 (19 March 2014), para 20] In general, the conduct of a respondent is labelled as wrongful if it offends the legal convictions of society. These legal convictions of the community are firmly established as the criterion for wrongfulness in all cases of delict.[ Judd v Nelson Mandela Bay Municipality ECP case No 149/2010 (2010 JDR 290) para 19: ‘The turning point came in Minister van Polise v Ewels 1975 (3) 590 (A) when the (then) Appellate Division recognised thot wrongfulness is also found in circumstances where the legal convictions of the community require a legal duty to sheild others from injury, and not only when there was a negative duty to avoid causing injury (at 596H-597G). After Ewels (supra) it became generally accepted that in all cases of delict an omission may constitute wrongful conduct in circumstances where the legal convictions of the community impose a legal duty to prevent harm’. See Minister of Law and Order v Kadir 1995 (1) SA 303 at 317C-318A; Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as Amicus Curiae) 2003 (1) SA 389
[35] The facts are largely common cause and are not materially in dispute. The facts that exist are largely tangential to the issues to be determined and not …show more content…
Further, there was no fencing at the edge of the cliff to arrest any free-fallers.
[37] On of the main attractions, particularly during the winter season was the specific four-wheel drive vehicle route leading up to Conical Peak. The route proceeds over very rough terrain and ends in a fairly level plateau at the foot of Conical Peak where members of the public park their vehicles. In the immediate vicinity of this parking area, there is a sharp precipice falling 150 metres into a gorge known as Groothoekkloof.
[38] My general view and opinion is that no property could be rendered 100% safe for all persons at all times, and that there would always be an element of risk in the nature of things. …show more content…
In order to shift the burden of damages to another, a plaintiff must establish that the other party is legally obliged to compensate him or her for the loss suffered.[ Federica Za v Smith and Another (5462/11) [2014] ZAWCHC 35 (19 March 2014), para 20] In general, the conduct of a respondent is labelled as wrongful if it offends the legal convictions of society. These legal convictions of the community are firmly established as the criterion for wrongfulness in all cases of delict.[ Judd v Nelson Mandela Bay Municipality ECP case No 149/2010 (2010 JDR 290) para 19: ‘The turning point came in Minister van Polise v Ewels 1975 (3) 590 (A) when the (then) Appellate Division recognised thot wrongfulness is also found in circumstances where the legal convictions of the community require a legal duty to sheild others from injury, and not only when there was a negative duty to avoid causing injury (at 596H-597G). After Ewels (supra) it became generally accepted that in all cases of delict an omission may constitute wrongful conduct in circumstances where the legal convictions of the community impose a legal duty to prevent harm’. See Minister of Law and Order v Kadir 1995 (1) SA 303 at 317C-318A; Van Eeden v Minister of Safety and Security (Women’s Legal Centre Trust, as Amicus Curiae) 2003 (1) SA 389