Can I claim for damages if I slipped and broke my ankle?

What is the test for negligence?

In the case of Klassen v Blue Lagoon Hotel and Conference Centre the court had to decide if a hotel was negligent. The plaintiff sued the defendant hotel for damages suffered by him when he slipped and fell in the defendant’s bathroom as a result of which he sustained an injury to his ankle.

The defendant disputed liability, alleging that the plaintiff was drunk at the relevant time. It also relied on a disclaimer notice to guests, indicating that the hotel would not be responsible for any personal injury to guests whether such injuries or loss were sustained by the negligent or wrongful act of anyone in the employment of or acts on behalf of the defendant.

The Court was satisfied on the evidence before it, that the plaintiff had injured his ankle when he slipped and fell in the defendant’s toilets. It also accepted that when the plaintiff checked in at reception, he completed and signed a registration card and that the said card contained the exemption clause relied on by the defendant. Furthermore, the disclaimer notices were displayed at the motor vehicle entrance and the guardhouse.

The test for negligence is whether a reasonable person, in the same circumstances as the defendant, would have foreseen the possibility of harm to the plaintiff; would have taken steps to guard against the possibility; and whether the defendant failed to take those steps. The evidence established that the defendant had a properly functioning cleaning system in place, and that it took reasonable precautions in ensuring that the toilet facilities were kept in a clean and dry condition and that they did not pose a danger to its guests. Finding no negligence, the Court dismissed plaintiff’s claim.

Is the disclaimer at the bottom of your email enforceable?

As far as I have been able to establish, no court has pronounced on the enforceability of email disclaimers.

Generally, they seek to impose a contractual obligation between the sender and recipient. In terms of the law of contract, unilateral contracts are generally unenforceable, even in the form of email disclaimers.

However, the doctrine of vicarious liability applies equally to emails as it does to other forms of correspondence. If the recipient reasonably believes the email was sent by someone representing the company, he or she can conclude that the content of that email represented the views of the company. If the email was defamatory of the recipient, he or she could sue the company. The exception to this is where the recipient has good reason to believe that the sender was not acting on behalf of the company, but was in fact acting on “a frolic of his own”.

The types of legal problems that can be caused by an email are numerous and could include claims for Defamation, Misrepresentation, Breach of Confidentiality, Sexual Harassment and Virus contamination of a recipient’s network.

Even if the recipient of your email does nothing to signify acceptance of the disclaimer, the chances of the disclaimer being effective are improved if:

·        the disclaimer appears at the top rather than the bottom of the email. In this way, the email comes to the attention of the recipient before he or she has read the contents of the email so that in the same way as a fax cover sheet disclaimer, the recipient can make an informed decision whether to continue reading the contents.

• if the recipient has received emails from the sender before, it could be argued that s/he knew and accepted the contents of previous email disclaimers and should exercise care in continuing the exchange of emails if s/he is unwilling to accept the terms of such disclaimer.

The actual content of the disclaimer is important. It should anticipate areas of potential liability as contemplated by the common law and statute, such as the Consumer Protection Act and the soon-to-be enacted Protection of Private Information Act.

A company can and should minimise the damage that it could suffer at the hands of its employees who may send embarrassing or offensive emails? What procedure should it follow?

·        Every company should have a detailed “Email and Internet Use Policy” in place, that must be signed for in writing by every staff member. The policy should set out the sanctions for various types of breach of the policy. Let Bregmans help you design this policy.

I recommend that your emails begin with this disclaimer:

The contents of this e-mail and any attachments are confidential, may be privileged and are intended solely for the use of the named recipient(s). If you have received it in error, do not disclose, distribute, or retain it or any part of it, and please notify the sender immediately and delete the e-mail.

And end, below your signature, with:

E-mail is not necessarily secure or error free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or contain viruses. We endeavour to exclude viruses from our e-mails. However, it is the responsibility of the named recipient(s) to ensure that e-mails and all attachments are virus free. Name of your company accepts no liability or responsibility of whatsoever nature should information or data be corrupted, or fail to reach its intended destination or be accessed by anyone other than the addressee, for whatever reason or cause.

Body Corporate not playing the game?

A client asked: if the body corporate is not abiding by the rules, which ombudsman can we complain to?

A colleague, Karen Bleijs, a sectional titles expert replied:

A Sectional Titles Ombudsman has been appointed in terms of recent legislation but the Ombuds-office is regrettably not operational yet. However the Sectional Titles Act makes provision for a unit-owner to take action against a Body Corporate if it, through its Trustees, does not adhere to the Rules of the Body Corporate.

The first thing you must do is write to the Trustees or speak to them to demand that they adhere to the Rules. If this does not work, then you are at liberty to make use of the procedure set out in the Management Rules to the Act to take the Body Corporate to Arbitration.

Resignation during a disciplinary hearing

A client asked me if an employer is obliged to accept an employee’s resignation before or during a disciplinary hearing, when he (or she) is unsure of the outcome and would prefer to avoid a blemish of dismissal on his or her record.

An employer is not obliged to halt the process and accept the resignation. It has two options – to proceed with the enquiry or accept the resignation.

If an employee tenders his resignation during a formal process, it is important that the employer follows the correct procedure to ensure that the Company is not exposed to the risk of a personal grievance for constructive dismissal, or a referral to the CCMA.

Disciplinary procedures or investigations can be very stressful for employees and as a result they may make a decision to resign in the heat of the moment. In most circumstances it is best for the employer to first allow the employee some time to fully consider his decision to resign, by giving him a period of reflection (often referred to as a cooling off).  A period of at least 24 hours is recommended.

If the company accepts the resignation, it must draw up a full and final settlement agreement, recording the resignation and disposing of all disputes, and both parties must sign, preferably before two witnesses.

Close Corporations and Association Agreements

Are you a co-member of a CC? Protect yourself with an association agreement.

In terms of the New Companies Act of 2008, no new Close Corporations may be registered, and existing Close Corporations may convert to a company.

The Close Corporations Act has been substantially and materially amended in terms of Schedule 3 of the New Companies Act, resulting in new responsibilities and risks for the Close Corporation, its members and the accounting officer.

Most Close Corporations don’t have an Association Agreement (the equivalent of a company’s shareholders’ agreement or Memorandum of Incorporation - MOI). If you plan to retain your close Corporation (and not to convert to a company) it is a very good idea to conclude an Association agreement, one that:

·        Is in the best interests of the Close Corporation and its members;

·        Is fully compliant with the amended Close Corporations Act;

·        Enhances the role, relationship, and responsibilities of members;

·        Covers accountability and other requirements of the act;

·        Ensures that members enjoy the Business Judgment Rule protection (http://goo.gl/CNofPx);

·        Identifies all cases requiring solvency and liquidity tests;

·        Forewarns members of sanctions applicable to reckless or fraudulent business activities in the Corporation.

Unlike the company’s MOI, the Association agreement does not have to be registered or submitted to CIPC.

Contact Bregmans if you would like help in upgrading your existing Association Agreement or, if you don’t have one, creating one for you.