In Gordon v Civils 200 (Pty) Ltd [2026] ZAWCHC 188, the Western Cape High Court was required to determine whether the defendant, a construction company, remained liable in delict for injuries sustained by the plaintiff, a member of the public who fell on an uneven, sand-covered parking area where the defendant had previously performed construction works. The incident occurred after the company had informally handed the site over to the employer.
The evidence showed that, some months before the incident, the defendant had excavated a trench, installed a pipeline, backfilled it with compacted sand and informally handed the site back to the employer. However, no further work was performed on the site from the date of the handover until the incident occurred and the defendant's health and safety officer continued to inspect and photograph the site regularly.
From the conduct of the defendant's safety officer in regularly inspecting and photographing the site, the court drew an inference that the defendant still considered itself to be the entity responsible for the well-being of the incident site. This was bolstered by the fact that the defendant also attended to intermittent maintenance of the incident site when called upon by the employer. Accordingly, the court found that the defendant was in control of the incident site when the incident occurred. The court also found that the defendant had failed to take reasonable steps to prevent the incident. The defendant was therefore found liable to the plaintiff.
However, the plaintiff was found to have contributed to the incident by walking through a construction site and, in accordance with her concession that she may not have been keeping a proper lookout in the prevailing circumstances, as she was concentrating on getting to her destination. She was found equally to blame for the incident and the defendant was ordered to pay 50% of the plaintiff's proven damages.
This judgment serves as a useful reminder that, where sites that may contain hazards are handed over, proof of actual handover should be retained. Moreover, inferences can be drawn from the conduct of parties after the handover process, which could lead to a finding of liability. Parties should therefore ensure that conduct following any handover process is managed properly, preferably in a written contractual document.
