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Friday, December 1, 2006
A shot in the dark

Deneys Reitz on insurance case law:Tsogo Sun Holdings (PTY) Ltd v Qing-he Shan and another 2006

The Supreme Court of Appeal allowed an appeal on 31st May 2006 by Tsogo Sun Holdings against an order of the Pretoria High Court holding it liable for damages suffered by Mr Shan. Shan had been shot during an altercation with one Shoa. The argument had begun within the VIP section of the Montecasino casino. Shan then invited Shoa to accompany him to the outside for a fight. Instead of getting involved in a fistfight, Shoa produced a firearm and shot Shan three times on 21st June 2001. Shoa, who was charged with attempted murder, undertook in a plea agreement to pay Shan an amount of R200 000 as damages. However, Shan wanted to recover all his damages (some R560 000) from Tsogo. Action was instituted against Tsogo in the Transvaal Provincial Division. Tsogo, in addition to disputing liability, joined Shoa as a second defendant by means of a third party notice. Shoa, save for filing a plea in which he relied on the settlement and denied negligence, did not take part in the proceedings.
The high court had held that Tsogo was liable because it should have searched all its patrons for hidden weapons. Had it done so, Shoa would not have been able to shoot him.
The SCA disagreed and held that Tsogo had no legal duty to search its patrons. In any event, Tsogo was not negligent and Shan was the author of his loss.

Comments Deneys Reitz, if every person who enters a facility open to the public must be fully searched for the possession of weapons, especially if the facility had, in the past, been the subject of an armed robbery, life in this country would become unbearable and the duty cast on owners and occupiers limitless. Many (if not the majority) of banks and petrol service stations, for instance, have been subjected to an armed robbery and many a local corner store too. Passengers have been shot on trains, buses and taxis.
Must those in control all employ security guards for the sake of clients and is it to be expected that every client has to be bodily searched before being allowed to enter the premises or use public transport? Surely not.
Courts have to be pragmatic and realistic, and have to take into consideration the wider implications of their findings on matters such as these. By its judgment the high court unconsciously created a new class of virtually limitless vicarious liability.
However, the SCA correctly reversed the High Court ruling, and judged that Tsogo did not, under the circumstances of the case, have a legal duty to protect a person in the position of Shan against persons in the position of Shoa. On this basis the appeal succeeded..

Copyright © Insurance Times and Investments® Vol:19.6 1st December, 2006
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