Negligence, Gross Negligence and Disclaimer Notices -S.D.N v Sunwest International (Pty) Ltd t/a Grand West Casino.

In 2020, the plaintiff’s child was electrocuted while holding a metal rail at the kiddies' ice-skating rink in Grand West Casino. A live wire had been left exposed following the dismantling of a Christmas tree installation. The child sustained burn injuries and was treated by paramedics on site before being taken to a medical centre. The defendant admitted negligence but denied gross negligence, arguing that its liability was limited by disclaimer notices displayed on the premises, though it conceded these notices would not absolve it of gross negligence.

The evidence was analyzed, including testimony from the plaintiff, who described the incident and the visible live wire, and Grand West’s witnesses, who confirmed the electrical department’s responsibility for securing the area after the removal of a Christmas tree. All Grand West’s witnesses corroborated one another, that it was the duty and or responsibility of Grand West’s electrical and maintenance department to check that the electricity source was properly connected and disconnected before and after the contractor had removed the Christmas tree. Grand West’s witnesses admitted the live wire posed a significant danger, particularly near a water source like the ice-skating rink, but sought to attribute the negligence to an independent contractor. This argument was rejected, as the defendant failed to call its electrical department employees to testify, which weakened its case.

Grand West’s conduct, failing to secure a live wire in a high-traffic public area, departed radically from the standard of a reasonable person, constituting gross negligence. The conduct of the electrical and maintenance department, in failing to follow up whether the electricity supply had been secured was of an extreme nature when compared to ordinary negligence. Grand West defendant was vicariously liable for the gross negligence of its employees, who consciously disregarded the foreseeable risk of harm. The failure to ensure the safety of its premises, particularly near a children’s play area, demonstrated a complete obtuseness of mind and a total failure to take care. The plaintiff successfully proved the defendant’s gross negligence on a balance of probabilities. The defendant was ordered to pay the plaintiff’s damages, to be proven or agreed upon.

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