Watch your step! High Court Rules on Property Owner’s Liability in Falling Glass Case

The recent judgement of Shirbeza v Tobitrix [2025] ZAGPJHC 258 provides valuable insights into premises liability when injury results from falling objects. It underscores the responsibilities of property owners regarding foreseeable risks and practical safety measures.

This article examines how the High Court applied established legal principles to limit property owner liability, offering valuable insights for building owners and insurers on risk assessment, preventative measures, and the legal threshold for liability in cases involving alleged safety failures.

Background of the incident

On 10 February 2021, while walking on a pavement in front of the Medical One Shopping Centre in Johannesburg (owned by the defendant) the plaintiff allegedly sustained serious injuries when a piece of glass fell from the building. The plaintiff claimed damages based on allegations that the defendant had been negligent in ensuring pedestrian safety around its property. The defendant disputed that the incident occurred, noting that no such event was reported to security or recorded in the building’s occurrence book. The plaintiff only informed the defendant of the incident several months later.

Legal analysis

The court evaluated the claim based on the five elements of delictual liability. The court considered in depth whether the building owner had acted negligently or failed to fulfill a legal duty of care. The court stated that the test to be applied in this case is:

1. What a reasonable owner of the building of the same kind would have done in the circumstances to prevent an injury of this kind to the plaintiff; and
2. Would a reasonable owner of the building of this nature have foreseen a window glass falling from the upper floors and landing beyond the balcony of the building and causing injury to people and in particular the plaintiff.

The court noted that the building had a balcony over the pedestrian pathway, which was designed specifically to protect people from objects falling from upper floors. The court found that:

• It would be “far-fetched” to suggest the defendant should have foreseen that glass would fall from upper floors, bypass the protective balcony, and injure pedestrians below.
• The plaintiff failed to demonstrate that a reasonable building owner would have taken additional protective measures.
• No expert evidence was presented to show how window glass could fall past the balcony and cause injury to someone walking on the road.

As a result, the Court ultimately found that the plaintiff failed to prove all the elements of the delict, particularly that the act or omission of the defendant was wrongful. The plaintiff’s claim was dismissed with costs.

Key take aways

This judgement reaffirms important principles regarding property owner liability:

1. In cases involving omissions (failure to act), wrongfulness is not presumed and must be established through legal duty.
2. Reasonable preventative measures (such as protective balconies) may be sufficient to fulfill duty of care obligations.
3. Plaintiffs bear the burden of proving all elements of delict, including that the defendant’s conduct was wrongful and caused the alleged harm.

Implications for property owners and insurers

The case serves as a reminder that property owners who have implemented safety features may be protected from liability from unusual or unforeseeable incidents. Property owners and their insurers should practice the following three “R’s” to minimise possible liability exposure:

• Regular Risk Assessments: Continually evaluate and mitigate structural risks to ensure safety measures remain adequate.
• Reasonable Precautions: Ensure that safety precautions align with industry standards and are demonstrably effective.
• Record keeping: Maintain meticulous records of safety inspections, risk assessments, and protocols, which could be pivotal in litigation.

For expert guidance and further assistance in addressing premises liability risks effectively, contact Clyde & Co's dedicated Property and Assets team.

Shirbeza v Tobitrix [2025] ZAGPJHC 258