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Pretoria - The tragic case of a Pretoria toddler who nearly drowned in the fish pond at the home of her parents’ friends has highlighted the duty of parents to keep an eye on their young children around water at all times.
The incident left the child with such severe brain damage that she is unable to walk or talk.
In the subsequent case, the father of the child unsuccessfully claimed damages from the friends at whose house the accident happened.
He alleged they did not ensure that the fish pond was safe.
Pretoria High Court Judge Jody Kollapen cited the words of a California Appeal Court in his opening remarks to his judgment in this case: “An infant is afraid of nothing and in danger of everything when left to his own devices.”
Judge Kollapen said: “This accurate characterisation of children has continued to provide challenges to legal systems across the world in how children are to be best protected against their own curiosity and vulnerability when they simply act as children. This tragic and unfortunate case is precisely about that challenge.”
The child is only referred to as B in the judgment and the details of her parents and the friends cannot be divulged, as per Judge Kollapen’s order.
The child’s family visited friends in Montana and the child nearly drowned in the fish pond, which was inside the home of the defendants.
The purpose of the visit was to hang biltong and dry wors as the parties had earlier hunted on the defendant’s game farm.
While the families were hanging out the meat in the garage, the child walked around. The wives of the two men at some stage left the garage and agreed to supervise B.
The father said he found the women sitting near the swimming pool. He went inside the house to wash his hands and heard someone screaming. He saw his wife lifting their daughter out of the fish pond in the house.
She had no pulse and he administered CPR until the staff at a nearby hospital took over. They managed to revive the child, but by that time she had suffered massive brain damage.
The father blamed the friends for the incident and said they were negligent in not securing the fish pond, by not warning him and his wife about the dangers, and failing to ensure that the child did not fall into the fish pond.
The defendants, on the other hand, said both parents were there and they should have looked out for their child’s safety.
They also said that they did warn the parents about the open fish pond.
The father said the fish pond was illegal, as the City of Tshwane had not specifically approved this when it approved the building plans for the house.
The defendant’s expert testified that the deviation was so minor that it would not have been a problem for the city. The expert said that while the fish pond may have been a potential danger, no property could be rendered 100 percent safe for everyone at all times.
There would always be an element of risk in the nature of things.
Judge Kollapen said that while there was a legal duty on the defendants to take reasonable steps to protect B from harm on their property, people who invited guests could not be expected to go beyond reasonable means to ensure their property was safe. This, he said, would place an unfair duty on property owners and would also serve to discourage social interaction.
The judge found that the defendants did warn the parents about the pond and the parents themselves said they were aware of its dangers. He said the defendants did not have a greater duty of care towards the child than her parents.
According to the judge, the defendants cannot be held liable for the accident. He subsequently turned down the claim of B’s parents.
Pretoria News