It can, and does happen (although rarely), that when viewing a property, you incur an injury, after all it’s unfamiliar territory. It’s reasonable to expect that depending on the extent of the injury, you will likely pick yourself up and brush off the incident as a mis-step. But what if the injury is more serious and you can prove it was caused by a hazard or problem that was not evident?
South Africa, unlike the USA for example, does not require estate agents to have public liability insurance. Generally, and this is usually the case with reputable agencies, there is a clause in the signed agreement between the seller and the agency, that govern the terms and conditions of the sale process. Such a clause would likely indemnify the estate agent against any claim that can be brought against the agent, which means the next step may be to look to the seller to be legally liable for any damage suffered by a third party.
In such a case the seller may have public liability insurance, which is designed to protect the homeowner if someone is injured on their property and they are found legally responsible. It covers accidental death, bodily injuries or illness, even accidental loss or damage to property that belongs to another person.
Public liability insurance is often included in comprehensive home insurance policies, but the policyholder does need to check whether this policy covers only the residents of the property or if it extends to visitors. Agents should be checking with the seller what type of public liability insurance is in play and, if it doesn’t exist and the agent feels there may be threats to visitors, advising the seller to acquire such a policy. Generally public liability insurance will cover the financial costs of legal expenses and only possible compensation relating to the damage, loss or injury to a third party.
Regardless, the agent does have a ‘duty of care’ to ensure that the premises are safe to enter. In practice the agent should be inspecting the property before a viewing to ensure there are no known threats to visitors. This may mean ensuring that a swimming pool gate is closed, or a dog is locked away. During the showing, the agent should be clearly indicating unsafe areas or potential threats, be that, for example, a low hanging branch or protruding items, steps, or floors that are wet, cracked or slippery.
Assuming this is standard procedure but an injury still occurs, and neither seller nor agent accepts any responsibility, there is one recourse for the injured party, which is a principle called contributory negligence. Here it must be proven that no-one took reasonable steps to guard against such an incidence, and the court would need to determine the degree to which the party claiming was at fault in any way. If contributory negligence is proven, it may also be that the claimant will only be entitled to recover a portion of the claim.
To improve the chance of winning such a case, the injured person needs to, among other things: Seek medical attention immediately, and produce a doctor’s certificate detailing the nature of the injury. Take detailed photographs of the injury and the cause. Secure witness statements including confirmation of the conditions that may have given rise to the injury (wet floor, exposed wiring etc).
Hopefully you will never be in this position but it is valuable advice to look up as well as down when navigating through a property. If you want to see what is behind something that can be moved, ask the agent or owner to do this for you, and if something looks dodgy, avoid at all costs.
