KNYSNA NEWS - “There is sufficient evidence to conclude that the second defendant [the local municipality] failed to take adequate or reasonable precautions to ensure that the fire did not break out and spread… the employees acted wrongfully and negligently by failing to call for aerial support timeously…” – Pretoria High Court judge DS Fourie in the case of Bedrock Mining Support (Pty) Ltd v Greater Tzaneen Local Municipality, 2017.
I am a fellow Knysna resident, ratepayer and victim of the Knysna fires on 7 June 2017.
My family and I were extremely fortunate that our house in Knysna Heights survived and we were only displaced for five weeks before being able to return.
I am also an attorney, practising in Knysna. My first reaction to the recent newspaper articles in Noseweek and the Knysna Plett Herald, stating that legal action for damages for negligence against the Knysna local and Eden District municipalities has commenced, was one of shock.
Could this disaster, and the loss and trauma suffered by so many, have been avoided?
Keep in mind this issue will be determined by a competent court of law who must consider and weigh all of the relevant evidence before delivering any judgement.
At the request of the Knysna Plett Herald, I have submitted this article for publication to address the applicable legal principles.
Damages claims for negligence
In our law, if a person suffers damages as result of the negligence of another, those damages can be recovered in a court of law.
A common example is the costs to repair a motor vehicle following an accident.
The person who makes the claim (referred to as a plaintiff) carries a legal onus to prove, on a balance of probabilities:
- that he or she suffered harm;
- the harm was caused by the conduct or omission of the other party (referred to as the defendant);
- the conduct was wrongful;
- there is a legal and factual nexus between the conduct or omission and the harm caused; and
- the defendant is at fault.
The test for negligence is commonly defined by reference to a "reasonable person" in the position of the defendant.
Our law imposes questions relating to what a reasonable person would be expected to do or not do: should they have foreseen the possible harm? Would taking reasonable steps have prevented the harm?
If a plaintiff proves the above elements, the defendant will be held liable for the damages proven by the plaintiff.
The amount in respect of damages awarded is determined with reference to the restoring of the Plaintiff to the position that he or she was prior to the negligent conduct.
Again, with reference to our motor vehicle accident scenario, if the panel beater charged you R5 000 to repair the damages, that is the amount you may recover – to restore you to the position you were in prior to the accident.
Factual basis for claim
It is now public knowledge that people have already, via attorneys in Cape Town and Pretoria, delivered notices of their intention to institute damages claims against the Knysna and Eden municipalities – in simple terms, litigation has already commenced.
The alleged facts on which these claims are founded, summarised by me from the public records so far available (the reports of Dr Wallace Vosloo, an Elandskraal resident, Dr David Klatzow who investigated this matter at the request of Afriforum, and the Noseweek article that refers to the report of the CSIR), include:
- In April 2017 a lightning strike in the Elandskraal area set alight an area of land, causing a smouldering underground (“root”) fire.
- This smouldering land ignited into an open fire due to the weather conditions and, in particular, the berg winds that preceded the “Cape Storm” of 6 and 7 June 2017, and started burning out of control.
- Weather satellite imagery show the fires originated where the smouldering land was seen in Elandskraal, and, driven by the near gale force northwesterly winds, rapidly spread through Barrington farm and on to other areas like Rheenendal, Brenton-on-Sea, Buffalo Bay and Knysna.
- During the months of April and May 2017, multiple residents of the Elandskraal area repeatedly requested the assistance of the Sedgefield, Knysna and Eden fire departments and warned them about the threat.
- These warnings were telephonic, per email and WhatsApp messages. Representatives of the Sedgefield fire department went to Elandskraal in May 2017 to inspect the situation but did not believe it posed any risk.
- The residents were, among other things, advised that a fire truck could not access the smouldering portion of land; there was no open fire and it would extinguish itself naturally; that aerial bombardment was too expensive; and the units were deployed in Mossel Bay fighting another fire there (at the time).
- “This was gross negligence. If a water bomb had extinguished the smouldering Elandskraal fire in April or May, this disaster would have been prevented," says Dr Wallace Vosloo, Eskom fire engineer and property owner in Elandskraal.
If any plaintiffs are able to prove the above allegations in an appropriate court of law, then the Knysna and Eden municipalities may well be found to have been negligent vis-à-vis not having taken reasonable steps when they were able to extinguish the fire while they had the opportunity to do so.
Generally speaking, a fire department has a legal obligation to have taken such steps.
Who has a claim?
Any person (which includes companies) who suffered loss or harm is entitled to institute a claim.
What is your claim for?
Our law determines that the negligent defendant must restore you fully to the position that you were in prior to the negligent event. This means your claim will depend on various factors and every individual claim will differ. In summary, the typical claims include:
- The costs of rebuilding homes and replacing any lost items of property;
- Lost income due to absence from work or the loss or temporary closure of your business;
- All claimants have claims for general damages in respect of loss of enjoyment of life, inconvenience and emotional distress, shock and trauma.
It is also important to note that if you were insured and received any settlement, in any amount, from your insurance company, then you are not entitled to claim this amount (you cannot be “paid twice”).
You can, however, claim any shortfall or difference between the harm you in fact suffered, less the amount you received from your insurer.
Presentation
I will be hosting a presentation next week Wednesday (31 January) at the Knysna Angling Club, from 18:00 to 19:00.
The purpose of the presentation is purely to elaborate in more detail on that which I have addressed above and any victim of the Knysna fires who would like to find out more is welcome to attend.
COURTESY OF DONALD CURTIS, DERCKSENS INC ATTORNEYS, KNYSNA
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