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[2016] ZAWCHC 106
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C.P.A N.O and Another v G.S and Another (8352/2007) [2016] ZAWCHC 106; [2016] 4 All SA 386 (WCC) (25 August 2016)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 8352/2007
DATE:
25 AUGUST 2016
In
the matter between:
[C...
P..... A....]
NO
...............................................................................................................
First
Plaintiff
[M....
W.... U.... A....]
(NEE
K)
NO
....................................................................................................................
Second
Plaintiff
And
[G......
S....]
........................................................................................................................
First
Defendant
[L
….
S.....]
...................................................................................................................
Second
Defendant
JUDGMENT
DELIVERED ON 25 AUGUST 2016
DONEN
AJ
[1]
This is an action for damages in which only the
merits are in issue at this stage. Mrs and Mrs A are the
parents and legal
guardians of their daughter, C L A, who was born on
28 December 2001. On 5 June 2007 they issued summons.
The
matter eventually came to trial over eight years later. On
the face of their combined summons Mr A sued in a representative
capacity, as first plaintiff, and Mrs A, in a representative
capacity, was the second plaintiff. On 22 November 2012,
after pleadings had closed, the first and second plaintiffs then
filed a notice of intention to amend their particulars of claim.
They inserted a new paragraph 5 in which they alleged that first and
second plaintiffs also acted in the matter in their personal
capacities. No objection was raised. Nor is there any
suggestion that the amendment was brought in bad faith, or that
it
would prejudice the defendants. Accordingly the A became
claimants for damages in both their personal and representative
capacities.
[2]
Defendants had already pleaded on 14 May 2008.
It does not appear that their plea was amended thereafter to deal
with the
amendment effected by the plaintiffs. It is admitted
in defendants’ plea that first and second defendants (Mr and
Mrs
S), either individually or jointly, are the owners or
alternatively the persons in control of the premises situated at
1… B…..
W…., C……, Western
Cape. It is common cause that, on Tuesday, 27 July 2004, when C
was a little over
2½ years old she was found floating in the
swimming pool situated on these premises.
[3]
As a result of this accident she allegedly
suffered injuries. Plaintiffs allege that, in their
aforementioned capacities,
they have suffered damages in the sum of
R62 804 071, 37. They claim that Mr S, alternatively
Mrs S, alternatively
both of them, are liable to compensate the
plaintiffs in the aforementioned amount. Plaintiffs also allege
that the injuries
to C were caused by the negligence of Mr S;
alternatively Mrs S; alternatively the negligence of both;
alternatively the failure
of both to take reasonable care.
[4]
More particularly plaintiffs plead that the
defendants were negligent, alternatively failed to take reasonable
care, in one or more
of the following respects:
[4.1]
firstly, defendants failed to take reasonable
steps to ensure that the swimming pool situated on their premises was
properly fenced
off and/or properly secured;
[4.2]
secondly, they failed to take reasonable steps to
ensure that the gate to the swimming pool was closed and/or properly
secured;
[4.3]
Thirdly, they failed to take reasonable measures
to prevent foreseeable harm to persons present on their premises,
particularly
to small children, when by the exercise of reasonable
care they could have prevented such harm.
[5]
In their plea defendants deny that they were
negligent. They plead that the injuries to C were caused by the
sole negligence
of second plaintiff.
[6]
The basis pleaded for second plaintiff’s
alleged negligence is that:
[6.1]
she brought C to defendant’s premises with
the knowledge that there was a swimming pool there and an unprotected
fish pond
into which C might fall;
[6.2]
she failed to keep C under her care and control
and allowed her to wander around the premises, without satisfying
herself that it
was safe for her to so wander unaccompanied;
[6.3]
She was aware of the said dangers and failed to
take any or adequate steps to stop C from wandering around the
premises unaccompanied.
[7]
In the alternative, defendants plead that, in the
event of it being found that the defendants were negligent, second
plaintiff,
in her capacity as mother and natural guardian of C, was
negligent on the grounds set out above, which negligence causally
contributed
to C’s injuries.
[8]
Defendants not only plead that first and second
plaintiffs’ claims should be dismissed; but also, in the
alternative,
that plaintiffs’ claims have to be “
reduced
in accordance with the provisions of the apportionment of Damages
Act, Act 34 of 1956,
to such extent
as may be just and equitable having regard to second plaintiff’s
degree of negligence
.” The
alternative plea follows the precise wording of section 1(1)(a) of
the aforementioned Act.
[9]
At the time of this pleading, second plaintiff was
merely a representative of C. She was not a claimant in her
personal capacity.
It is common cause that at all material
times C was
culpae
incapax
.
She could therefore not be at fault in the accident.
Accordingly, there was no legal basis to attenuate Mrs A’s
claim in her representative capacity. No negligence was
attributed to Mr A in defendants’ plea. No basis existed
to attenuate his claim.
[10]
However, once plaintiffs had effected the
aforementioned amendment, in her personal capacity, Mrs A became
potentially liable for
contributory negligence as a claimant and
subject to the application of section 1(1)(a) of the Act. In
their reply to first
defendant’s request for trial particulars,
dated 6 October 2015, plaintiffs admit that second
plaintiff was the
mother and custodian of C and was primarily (but
not solely) responsible for C’s physical safety.
[11]
It would appear that after the matter was referred
to trial, in terms of an order made by agreement on 12 October 2015,
counsel
for the plaintiffs proceeded to cite Mr and Mrs A, in their
personal capacities, as third and fourth plaintiffs.
[12]
I understand the intention in defendants’
plea to have been to invoke the provisions contained in section 1 of
the aforementioned
Act which specifically relate to the contributory
negligence of a claimant. In my view, section 2 of the Act has
no application.
Counsel for the plaintiffs conceded this during
argument. He contended, however, that section 1 of the Act does
not apply
to an apportionment of damage between “
fourth
plaintiff
”
and first and second
defendants, and that there is no basis on the pleadings for the Court
to apply such an apportionment.
[13]
On the other hand counsel for the defendants
argued that the parties have accepted that section 2 of the Act was
applicable and
they conducted the trial on that basis. However,
certain jurisdictional requirements for the application of section 2
are
not present. No notice of this action was given to Mrs A
by the plaintiffs or the S before close of pleadings.
Mrs A was
never sued in this action. Nor did she “
intervene
as a defendant
.”
Furthermore, no notice was given to her, in terms of Rule 13, before
the close of pleadings.
[14]
It is apparent from the pleadings as a whole, as
well as the circumstances above, that the Court is being called upon
to determine
whether Mr S, or Mrs S, or both of them, are liable to
the plaintiffs for their negligence; and whether the damages
recoverable
in respect thereof must be reduced having regard to the
contributory negligence of Mrs A. Indeed counsel for defendants
submit
in their written argument that the proper order would be for
the Court to declare that Mrs A’s entitlement to damages, in
her personal capacity, falls to be reduced by the percentage of her
contributory negligence.
[15]
Before dealing with the evidence it is helpful to
consider the layout of the premises where the accident occurred.
This was
established through an inspection
in
loco
at the commencement of the trial.
This was attended by the Court and the parties’ legal
representatives. The property
occupies approximately 2 acres.
A double storey house of approximately 400 square meters stands
there. Its length runs
roughly along an axis from east to
west. A lounge forms an L-shape on the eastern side and turns
north. A garage extends
southward on the western side of the
axis. A long driveway from B W curves into a large parking area
near the entrance at
the back (south) of the house and ends at the
garage. The driveway runs south towards the swimming pool
before it turns west
into the parking area. This area and the
back of the house are nearest to and face the swimming pool.
[16]
Between the car park and the pool a row of trees
or bushes have been planted. The pool is a full size domestic
pool.
It has a fence surrounding it. There are two gates
to enter and exit the pool area. One faces north towards the
parking
area and house. Another faces west. (For convenience I
shall refer to the first-mentioned as “the gate”.)
At the time of the inspection each gate had two latches attached to
it inside the pool area. Within the pool fence, to the
south of
the pool, is a garden shed where gardening tools are stored.
The garden shed was there in 2004. So too was
a slide which had
been located (close to) the north east corner of the swimming pool.
The distance between the front door
(at the back of the house on the
aforementioned parking area) and the gate is 23 adult paces.
The gate is visible from
the driveway side of the parking area.
It is not so obvious from the garage side of the driveway.
[17]
There is a Khoi fishpond near the front door of
the house, facing the parking area to the south of the house.
At the time
of the inspection it was neither fenced nor covered.
It was approximately ½ meter deep on the one side and
approximately
1 meter deep on the other.
[18]
The lounge area has sliding doors which lead onto
a patio. This lies in the crook of the L formed by the lounge
and a dining
room. The kitchen area and scullery look onto the
parking area. At the time of inspection the view of the pool
from
there was obscured by trees and shrubbery which had grown since
2004. A large garden area is located to the north of the
house. A lawn opens off the patio and leads to the front gate
of the premises. There is a gazebo on the far side of
the
lawn. The distance from the patio to the gazebo is 29 adult
paces. Near the gazebo there is a small cavity with
water which
is covered by vegetation.
[19]
Four witnesses testified for the plaintiffs.
Mrs A testified as follows. She is married to Mr A. She
is a devout
Christian. During 2004 she belonged to a group of
Christian women (“the cell”) who used to hold meetings at
the
house of the S, where the accident occurred. The meetings
would commence at about 10h00 and would go on till about noon.
After that the women would have tea in the kitchen. The
meetings would involve prayer, worship, songs, a message and
discussion.
Mrs A would be conveyed to the meetings, usually by S P.
C would usually accompany her. On two or three separate
occasions
the A were invited to the S’ home. On 8 July
2004 Mrs S hosted a breakfast for Mrs A’s birthday. The
whole cell attended. On that occasion Mr A drove his wife and C
to the S house. Mr A and C walked around the property.
Then Mr A left.
[20]
On 27 July 2004, Mrs A and C were given a lift to
a cell meeting by K M. Mrs A believed that the driveway had no
gates at
the time, and that the entrance to the property was
completely open. The pool had a fence around it with two
gates.
The gates did not have any form of automatic closing
mechanism, such as the springs which were later observed during an
inspection
in loco
in
October 2005. The gates were very often completely open.
On a few of occasions both Mrs A and Ms P had observed that
the gates
were open when they arrived on the property. This upset Mrs A.
She closed the gate. She reported what
she had seen to Mrs S,
and asked her to keep the gates closed.
[21]
When Mrs A got out of Ms M’s car on 27 July
2004 she did not notice whether the gate was open. She
explained that this
was because she had taken C and her bags out of
the car and had never really turned around to the pool side.
The meeting
started a little late and followed the usual pattern.
C remained with her mother, on the floor and playing with her toys
and puzzles in front of Mrs A. During the last five or ten
minutes of the discussion C became bored and went outside to the
patio. Mrs A could see her through the sliding door. C
had often done this and had always stayed in eyesight.
She
would play on the wrought iron furniture there and with the flowers
on the verge of the grass. There were about ten or
eleven
ladies in the lounge. Some of them could observe C. On
the numerous occasions that C had visited the house she
had never
moved from the patio around the house, to the back area where the
pool was located. She would always stay in view.
At all
times Mrs A was aware of where C was and what she was doing.
[22]
Towards the end of the meeting Ms M informed Mrs A
that she had to leave the premises at 12h00. It was arranged
that M K would
give Mrs A and C a lift home. As a result Mrs A
had to go outside to the parking area and move C’s car seat
from Ms
M’s car to Ms K’s car. The process was not
speedy because Ms K’s car was old, the bolt system was
different,
and Mrs A had difficulty getting C’s car seat belted
in. Because it was taking her longer than expected to install
the car seat, Mrs A became nervous. She therefore wanted to go
back into the house to fetch C. She left the car seat
unfixed
and went through the house onto the patio. She called C but did
not receive an answer.
[23]
The other participants in the prayer meeting were
in the kitchen with Mrs S. Mrs A ran to the kitchen and shouted
to the ladies
that she could not find C and did not know where she
was. When Mrs A looked into the kitchen she saw Mrs S drop the
pan and
spatula that she was working with and start to run.
[24]
Mrs A then ran from the dining room onto the patio
in the direction of the entrance to the property, because she
believed that there
was no gate and she was concerned that C could
have wondered out onto the road. Mrs S was behind her at first,
but then ran
around the house and straight to the pool on the other
side of the house. Mrs A then followed her. Mrs S ran to
the
pool with Mrs A behind her. When Mrs S reached the pool she
started shouting “Oh my God! Oh my God!” Mrs
A saw
clothes floating on the pool. Upon closer inspection she saw
C’s hair and realised that it was her. She
jumped
straight into the pool and grabbed C, who was face down. She
turned C around. Foam was coming out her nose and
mouth.
Mrs A brought C to the edge of the pool and lifted her out.
She got out and shouted that somebody should
call an ambulance.
She fell onto her knees and started praying.
[25]
She saw Mr S giving C CPR. G L reacted to
Mrs A’s request and ran into the house. When she returned
she said that
she had called her doctor who had told her to bring C
to Constantiaberg Hospital. Ms P moved her car to the gate of
the pool
and they put C in the back. Mr S sat with her.
Mrs P drove and Mrs A was in the passenger seat. It took about
10 minutes to reach the hospital. Mr S took C to the ER
resuscitation room. At some stage Mr A arrived at the
hospital.
[26]
After the accident Mrs A went for counselling with
G C. A week after the accident she and Ms C went back to the
S’s
house. Both gates to the pool were wide open. A
year after the accident the A’s again went to the S’s
house
to meet with the pastor of the cell, F P. Again the gates
were open.
[27]
Under cross-examination it was put to Mrs A that
the gates to the driveway of the house had been erected in September
1989 and existed
at the date of the accident. It was further
put that on 27 July 2004 the gates were open and this presented a
hazard to her
child. Mrs A conceded that she would not have
allowed C near the hazard presented by the cycads and sharply pointed
shrubs
and plants on the north side of the house, or the pond in the
front garden, or the khoi pond, or the swimming pool. She also
conceded that the defendants were entitled to assume that she would
not leave C unattended.
[28]
When it was put to her that she had in fact done
so (i.e. allowed C to be near to the pool), and that the
tragedy would not
have occurred if she had kept C in view, Mrs A
replied that she did not believe that she had left C unattended.
She was distracted
for a moment; two to three minutes at most.
C had been in her vision until she was distracted. She had left
C on the
north side of the house, gone inside, and proceeded to the
south side near the driveway where she could not see C. Mrs A
asserted that, even though she had let C out of her sight, if the
pool gates had been closed the accident would never have happened.
If she had not been distracted the accident would also not have
happened.
[29]
Mrs A also stated that she had seen the gates to
the swimming pool open on at least five occasions, if not more.
This upset
her because it was a danger. Any child that visited
the property could fall into the pool. Whenever she saw the
gate
open she closed it. If the gates were left open the pool
might as well have not had any gates at all.
[30]
It was further put to Mrs A that the S’s
youngest child was 16 years old at the time and the pool did not
constitute
a danger to him. She agreed. Mrs A also agreed
that she would not have allowed C to be alone in the back (parking)
area unaccompanied. She asserted that nobody among the group of
women on that day could have opened the pool gate.
[31]
Under further cross-examination Mrs A stated that
the gate had been left open at least five times over half a year.
She had
taken the matter up with Mrs S on each occasion that she saw
the gate open. She also closed the gate herself. It was
put to Mrs A that Mr S would say that the gardener had been
employed by him since 1996 and was under strict instructions to
ensure that the pool gates were always closed.
[32]
It was also put that Mrs S had fallen down the
stairs in her house and had been severely brain damaged. The
result was that
she would not be able to testify at the trial.
Mrs A admitted that Mrs S had fallen down the stairs of her house,
had suffered
severe brain damage, and would not be able to testify or
contradict Mrs A’s evidence. Mrs A testified further that
she had arrived before some members of the women’s group and
after others. It was not possible that any of them would
have
walked around the swimming pool. They always went straight into
the house. They never walked around.
[33]
On the day of the accident, when Ms M’s
vehicle was moving down the driveway towards the pool, Mrs A had been
chatting to
her and she had not looked at the gate. She was
nevertheless perturbed that it had been left open in the past.
She
did not believe it was her responsibility to check the gate.
She replied under cross-examination that she did not check the
gate
on that day because she was not perfect. She had already
mentioned the open gate to Mrs S a couple of times.
She
expected Mrs S to make sure that the gate was closed on the Tuesday
mornings when the cell convened. She conceded that
she and C
were the only people affected by the open pool gate.
[34]
When questioned by the Court, Mrs A stated that an
open gate was relevant to her. She admitted under further
cross-examination
that if the gate had been closed other foreseeable
dangers would nevertheless have existed. C could have fallen
into the
Khoi pool, or have made her way onto the street and been run
over; or have pierced her eyes on the cycads.
[35]
When it was put to Mrs A that the gates were
equipped with springs and self-closing and self-locking devices, she
answered that
in 2004 there had been no springs on the gates.
She had checked the gates, and how to open one of them, shortly after
the
accident had occurred. She established that C would not
have been able to open it because her arms would not have been long
enough to reach both latches on the gate. Mrs A did not see any
springs on the gate. She admitted that she did not
look for
springs, but had checked the gate at the time. She opened it.
It did not spring back. One could open
it wide; and it would
stay wide open. This inspection had occurred within one year of
the accident. She did not bring
it to her lawyer’s
attention that there were no springs on the gate. The gate had
been open a couple of times in 2004.
All of the above applied
when she checked it.
[36]
Mrs A stated that C had never played at the Khoi
pond. She was frightened of it and did not go close to it.
She was
frightened of the big fish.
[37]
Under further cross-examination Mrs A testified
that the cell meeting had been running late. Sometime during
its course Ms
M had told her that she had to leave at 12h00. It
was the first occasion on which Mrs A had needed to move the car
seat.
The car to which she moved the seat was parked on the
curve of the driveway, closer to the pool than Ms M’s car.
Mrs
A did not look at the pool gates because she was busy with the
car seat.
[38]
When Mrs A went to the car park to change the car
seat she had proceeded from the lounge through a little hallway and
out of the
backdoor leading onto the parking area. She could
not recall if she had shut the door behind her. She had
unstrapped
the car seat from Ms M’s vehicle. This took
less than a minute. Then she went to Ms K’s vehicle where
she
encountered problems. This vehicle was parked close to the
pool. She could not make the belt of the car seat long enough.
She decided to leave it because she did not have enough time, and she
wanted to go back and fetch C. She did not want to
leave her
alone for so long.
[39]
When Mrs A had raised the alarm the women were in
the kitchen. Mrs A had been moving towards the road when Mrs S
ran past
her round the house to the pool. She confirmed that
she had then followed Mrs S. Prior to that Mrs A had come
through
the front door from the motor vehicle, and had passed through
the dining room onto the patio where she had called C. She had
then run back through the dining room towards the kitchen. She
and Mrs S had run through the gate to the pool. The
gate was
wide open. Mrs A did not look at the second gate.
[40]
Under re-examination Mrs A confirmed that, after
she had told Mrs S that the pool gate had been open and had
asked her to ensure
that it was closed, she expected Mrs S to make
sure that the gate was kept closed. She also confirmed that
from the pathway
that runs alongside the lounge on the eastern side
of the house (as it is depicted on photographs allegedly depicting
the scene
during 2004) the slide which stood in the pool area was
visible. When C was found in the pool she was in the middle
towards
the opposite side to the slide. Mrs A also confirmed
that Ms M’s vehicle had been parked in the parking area
directly
at the wall of the house facing the driveway to the east.
Ms K’s vehicle was parked on the other side of the
driveway,
i.e. on the pool side, also facing east. Because of
the direction it was facing Mrs A had her back to the pool when
she tried to fix the car seat into the car.
[41]
When Mrs A had checked the gates after the
accident her purpose had been to establish whether C could have
reached the top and bottom
clips at the same time in order to open
the gate. She concluded that C could not have done so.
The clips were fairly
hard to open. On the day of this check
the gate was closed. Mrs A opened it. It did not close
itself. She
confirmed that after she had raised the alarm she
ran across the patio but had not reached the grass before Mrs S
starting running
around the house towards the pool. She had run
straight into the fenced area without stopping. The gate was
open.
[42]
Later in the proceedings Mrs A was recalled.
She was asked whether, in July 2004, there had been any automatic
spring closing
mechanism on the gate. She replied “
definitely
not
”
. She was asked when
she closed the gate on the various occasions that she found it open
whether she saw any object keeping
it open. She replied that
there was no object. She did not remove anything in order to
close the gate. She just
closed it.
[43]
Mr A testified as follows. On the occasion
of Mrs A’s birthday, 8 July 2004, the family attended a
function at the S’s
house. Mr A did not stay for the
duration of the function. He and C had walked around the
property. C had wanted
to go towards the slide. Mr A had
told her that he did not have the time. She was very
persuasive. The slide
was near to the pool. They walked
through the gate. It was open. They proceeded to the
slide which was next to
the pool. C went down the slide while
Mr A sat on its edge. He told her that she should not go down
the slide without
her mother and father being present. Shortly
after that he left. Mr A also testified that they would take C
to a municipal
park near their home, and that she would use the
slides there. She was strong willed and could use a slide on
her own.
[44]
Under cross-examination Mr A confirmed that the
gate through which he and C entered the pool was the gate nearest the
driveway.
Because Mrs A was there to look after C, and because
the S were there, he was not unduly concerned about the open gate.
Furthermore, he was with C when she entered the pool area. Mr A
did not know that the gate was supposed to close on its own.
When Mr A told C not to use the slide without her parents being
present he believed that she would obey him. He did not draw
the open gate to the attention of the S.
[45]
Under re-examination Mr A stated that the gate
that he entered with C was difficult, that it had two catches, and a
child would
not have been able to open both of them. It was
difficult to open the gate even for an adult. He identified the
slide
on a photographic exhibit (D12) as the one he had seen on 8
July 2004, and had testified about. At that stage it was
standing
about 300mm away from the pool. It was down that slide
that C had gone when she was with him on 8 July. Under
examination
by the Court Mr A confirmed that the bottom of the slide
had been a short distance from the water’s edge on 8 July 2008.
[46]
G C testified as follows. After the accident
Mrs A consulted with her in her capacity as a Christian counsellor.
As
part of her therapy Mrs A visited the defendants’ premises
with Ms C. When they entered the pool area the gate
was
unlatched and opened inwards. Under cross-examination Ms C
stated that the visit took place a week after the accident.
They had obtained permission to visit the premises and they were
expected. The gate was not wide open. The gate was
not
latched. The second gate was also unlatched.
[47]
S M P testified as follows. She is an
attorney and mediator as well as a member of the cell that attended
meetings on a weekly
basis at the defendants’ house. Ms P
confirmed that she would often give a lift to Mrs A. She
further confirmed
that the pool gates had stood wide open on a number
of occasions when they visited the S house; and that Mrs A would get
annoyed
and would go and close the gates herself. On one
occasion, in Mrs P’s presence, Mrs A brought the fact of
the
gate being open to the attention of Mrs S. What she
remembered Mrs A saying was, “
Look,
it is very frustrating to arrive and find that the gate is open.
Is there something that can be done about it?
”
Mrs S said that she would do what she could to
ensure that the gate was kept closed. Mrs P confirmed that Mrs
A was mistaken
in regard to the non-existence of a gate at the
entrance to the house. There were gates, but they always stood
open.
[48]
Mrs P also confirmed that, at a meeting of the
cell after the accident, people had been very upset at the thought
that there might
be litigation against Mrs S. Ms P had
explained that an insurance claim would have to be based on the
insurance company accepting
liability on the grounds that the insured
household was negligent. Ms P also testified to and confirmed
that a meeting had
taken place that was attended by the S, the A, Ms
P and Father T P. There had been a discussion about an
insurance payment
on the S’ public liability policy. Ms P
had explained that this would involve an admission of negligence by
the S and
that it could be settled out of court. The meeting
ended with Mr S saying that he would discuss it with his insurers.
Ms P confirmed – contrary to Mr A’s evidence –
that no settlement of the plaintiffs’ claim was ever
reached.
[49]
Under cross-examination Ms P testified that if the
pool gates had been standing wide open on the day of the accident she
would have
noticed them when she arrived, because her consciousness
had been raised around the whole issue. However, having said
that,
she admitted that she did not always park beside the pool.
From a distance, if the pool gate was not standing open, one could
not see whether it was latched or not. This answer was given in
reply to the proposition, put by counsel for the defence,
that the
pool gates were not open on the fateful day. The question was
objected to on the basis that no evidence had been
put up that the
gates were not open; and it had never been put to Mrs A that they
were closed on the fateful day. Ms P then
stated that the gates
might nevertheless have been unlatched. One could only find out
if one went right up to the gate.
She confirmed that she did
not notice the gate on that day, but felt that if it was standing
open she would have noticed.
[50]
She could not remember where she had parked.
She further confirmed, with reference to a sketch drawn by Mrs A,
that when she
drove down the driveway towards the house the pool gate
would have been in full sight. Ms P confirmed that Mrs A had
drawn
the open gate to her attention until she herself eventually
became aware that the gate stood open. She had only ever
noticed
the one gate nearest the parking area. On the occasions
that Mrs A drew it to her attention, Mrs A would say that this gate
was open again. Ms P saw that it was visibly standing open on a
number of occasions. When it was put to her she could
not
dispute what Mr S would say, namely, that the spring on the gate
worked, that the gate worked and the gates were well maintained,
Ms P
admitted that she was not in a position to dispute that.
[51]
Ms P also confirmed that, at the settlement
meeting which she and the A had attended, Mr S had made it
clear that he could
not settle without first consulting his
insurers.
[52]
Mr S testified on behalf of the defendants.
He stated that he was at home on 27 July 2004. He worked from a
laboratory
which joins the house on the western side of the axis
described above. He identified certain photographs (exhibit C)
which
were taken in 1989 of the front gate of the house. He
confirmed that this gate would have been open on 27 July 2004.
[53]
The pool was on the property when he bought the
house. It was enclosed as at the date of his testimony.
That included
the gates. The gates were spring loaded and had
always been in good order. They could not stand open.
They might
not lock, but they could not stand open. The spring
on the gate had eventually broken. It was replaced with a new
spring
before the inspection in
loco
.
Mr S did most of the small handyman repairs himself at the house.
The maintenance he did on the property required
a bit of skill.
Mr S admitted that he kept the house well maintained. Because
he had small children when he bought
the house the S made sure that
everything worked properly and they did not let the children go near
the pool unless they were attended
by somebody. They had a
gardener who came three times a week, on Mondays, Wednesday and
Fridays. He had strict instructions
that the pool gates were to
be closed and locked at all times. That is, the two latches (on
each gate) had to be latched.
It was impossible that the two
gates to the swimming pool could have stood open as described by the
plaintiffs; unless they were
wedged by a sizeable rock placed in
front of them.
[54]
Mrs S had never drawn Mrs A’s complaints
about the open pool gate to his attention. Mr S further
explained that Mrs
S had undergone a brain operation in January
preceding the trial. She was physically and mentally disabled
and could not
testify. She remembered nothing. Mr S
confirmed that he had said that if the A felt they had a case they
should go
and pursue it with the insurance company. He had
never agreed to write a letter admitting negligence.
[55]
His attention was drawn by Mr Bridgman,
defendant’s junior counsel, to a plastic wire with a padlock
around the upright section
of the gate that was visible at the
inspection
in loco
.
Mr S testified that he had put it there. The S had a four star
guesthouse at the time and did not want any guests
going into the
pool area unless they were really sure that if there were children
that they were accompanied by their parents.
They would have to
come and ask for the key or he would have to show them how to unlock
it. His attention was also drawn
to the fact that the top latch
of the first gate had been defective and that there was a part
missing. He said that this
was due to a request by his
insurers. He had put the other type of latch over it just in
case.
[56]
Under cross-examination Mr S said that Mrs A
was mistaken when she said that she saw the gate open with no wedge
on it.
He did not understand her evidence. When
confronted by the fact that the evidence of Mr and Mrs A, Ms C and Ms
P was all
to the effect that they had seen the gate open, and that
this was left unchallenged when they were cross-examinated, Mr S said
that the gate was never open. He insisted that all their
evidence was incorrect. They were all mistaken and he was
correct. However, he conceded that, on the day of the accident,
C reached the pool because the gate might have been closed
but not
latched. He further conceded that if the gate was not slammed,
“
it would appear closed, but
wouldn’t be latched.
”
[57]
He suggested that anyone on the property, except
for him or Mrs S, could have opened the gate and left it unlatched.
Had he
and Mrs S been there they would have made sure that it is was
locked. Someone unfamiliar with the property, and there were
many on that day, could have gone through to the pool and come back
out, without slamming and latching it. However, he had
not been
at the cell meeting. He was working. He had to speculate
about what, as a matter of fact, had occurred.
[58]
He testified that if he had thought that Mrs A
would not look after her child he would not have allowed her or C
onto the premises.
Under examination by the Court Mr S
suggested that at the time of the accident the slide in the pool area
was as depicted on the
photographic exhibit; that is, with its
lower end at the edge of the pool.
[59]
The present proceedings commenced more than 11
years after the accident. In the circumstances the witnesses
could not be expected
to remember the finer detail of the event.
Mrs A had good reason to remember certain detail. She made a
good impression
on the Court as a witness. She was clear and
consistent on material aspects, and those which were important.
Her mistaken
beliefs that there were no gates to the S property, and
that Mr S was prepared to settle her claim, are understandable.
When
the cell met the driveway gates were left open. According
to Ms P, Mr S had said that he could not settle without consulting
his insurers. The opinion of Mrs A, that her visit to the car
park to move the car seat was a distraction, will be dealt
with
below.
[60]
Mr A did not testify about the events on the
day of the accident. However, he established that the pool gate
was standing
open when he visited the S home some 19 days before the
accident. Ms C was a satisfactory witness. She
established
that the gate was standing unlatched a week after the
accident. Ms P impressed the Court as being credible on the
aspects
to which she testified, and fair in respect of facts which
she had no personal knowledge of. On the other hand Mr S
came across as a witness who was determined to question facts of
which he had no direct knowledge. His outburst under
cross-examination
(which is on record), though understandable in the
circumstances, did not help to instil the confidence of the Court in
the value
of his testimony. He was speculative on the material
issue of whether the gate was often left standing open before the
accident.
He conceded that it may have been unlatched on the
day of the accident.
[61]
Upon a conspectus of the evidence as a whole the
following facts were established on a balance of probabilities:
[61.1]
On at least five occasions in the six months
preceding the accident the gate was standing open on the Tuesdays,
when the cell met
at the S house and Mrs A visited there;
[61.2]
It was standing open when Mr A visited the house
on 8 July;
[61.3]
It was standing unlatched when Ms C visited the
property a week after the accident.
[61.4]
Mrs A drew the open gate to the attention of Mrs S
who undertook to ensure that the gate was kept closed;
[61.5]
Ce would not have been able to unlatch the gate on
her own;
[61.6]
On the day of the accident the gate must have been
unlatched, at least, in order for C to have gained access to the pool
area;
[61.7]
The gate was standing open when Mrs A and Mrs S
ran into the pool area;
[61.8]
The slide located within the pool perimeter fence
close to the pool was used by children and was an attraction for C;
[61.9]
Ce was strong willed and may have wanted to use
the slide if she had seen it;
[61.10]
Mrs A left C unattended on the patio and was away
for at least two to three minutes;
[61.11]
Had C moved a few meters eastwards from the patio
along the outside of the lounge she would probably have seen the
slide;
[61.12]
She would then have had direct access to the slide
whose base was either on the pool edge (per Mr S) or not more than
300mm away
from the edge (per Mr A);
[62]
Mr S’s speculation that someone other than C
could have opened the gate on the morning before C entered the pool
area remains
pure speculation. The evidence that the gate was
regularly standing open, despite Mrs A’s complaints to Mrs S,
leads
to the inference – on a balance of probabilities –
that the gate was left standing open on the day of the accident as
it
had been previously. Alternatively, and in any event, it may
not have been latched, if it was not slammed shut, as Mr
S conceded
was possible. (That might explain why Mrs A and Ms P did not
notice it standing open when they arrived at the
house.) In
either event the pool and the gate had not been secured when C
approached the pool area and entered it. There
is no credible
evidence to suggest that the reason the gate was not secured was
anything other than the inability of the gate to
close itself, and
the failure of the persons in control of the property to secure it.
It is clear that, if there was a spring
mechanism on the gate it did
not operate with such efficiency that it automatically latched the
gate.
[63]
The issues that arise are:
[63.1]
Firstly, whether Mr and/or Mrs S were negligent in
failing to ensure that the swimming pool and the gate were properly
secured when
C visited the premises;
[63.2]
Secondly, whether Mrs A was negligent in leaving C
unattended for the period that it took the child to leave the patio
and reach
the pool.
[64]
Had Mrs S taken steps – as she undertook to
do – to ensure that the gates to the pool were kept closed the
accident
would not have occurred. Had Mr S taken the same
measures to secure the gate before the accident as he did before the
inspection
in
loco
the accident would not have occurred.
Had Mrs A not left C unattended for two to three minutes the accident
would not have
occurred. The accident was co-caused by the S’
failure to secure the gate and Mrs A leaving C unattended.
[65]
Negligence on the part of the parties must be
tested according to the principles laid down in
Kruger
v Coetzee
1966 (2) SA 428
(AD)
at p.430
which were formulated as follows.
[66]
“
For the purposes of liability culpa
arises if –
(a)
a diligens paterfamilias, in the position of the defendant–,
(i)
would foresee the reasonable possibility of his
conduct injuring another in (her) person or property and causing
(her) patrimonial
loss; and
(ii)
would take reasonable steps to guard against
such occurrence; and
(b)
the defendant failed to take such steps
.”
[67]
A reasonable person in the position of the S would
foresee that a failure to secure the pool gate could reasonably
possibly result
in serious injury to a 2½ year old child.
The four basic considerations which influence the reaction of the
reasonable
person in a situation posing a reasonable risk of harm to
others are: (a) the degree or extent of the risk posed by the
actor’s
conduct; (b) the gravity of the possible consequences
if the risk of harm materialises; (c) the utility of the actor’s
conduct;
(d) the burden of eliminating the risk of harm. (See
Ngubane v South African Transport
Services
[1990] ZASCA 148
;
1991 (1) SA 756
AD at 776 H- J
).
Consideration of the risk and gravity of consequences, and the ease
with which the risk could have been eliminated, would
prompt a
reasonable person in the position of the S to take steps to prevent
such occurrence by securing the pool gate in a closed
position (as Mr
S did after the accident) with an effective mechanism.
[68]
The defendants assumed that Mrs A would look after
her child. Indeed plaintiffs admit in their trial particulars
that Mrs
A was primarily responsible for C’s physical safety.
Although a reasonable person in the position of the S might make
this
assumption, she or he could not have assumed that the child would
inevitably remain under her parent’s absolute control
at all
times and under all circumstances over a period of hours and days,
and that the risk created by the unsecure gate could
simply be left
at large. Distractions such as the one that affected Mrs A are
an inevitable part of life. Mr S
demonstrated, under
examination by his own counsel, that he regarded it as necessary to
place a plasticised wire with a padlock
around the upright section of
the pool gate because the S had a four star guesthouse: and
they did not want the children
of their guests (who bore the same
duty to their children as Mrs A) entering the pool area unaccompanied
by their parents.
[69]
It is not in dispute that Mr and Mrs S were in
control of the property, and therefore the pool area. The open
pool gate was
pertinently drawn to Mrs S’s attention. She
had a duty to address the danger. She failed to do so. Mr
S
appears from his evidence to have been directly involved in
securing the gate from the time that the S’s bought the house.
He too was aware of the risk posed by the pool to his own small
children. A reasonable person in Mr S’s position, as
the
owner and person in control of the pool, would have observed –
as Mrs A and Ms P and Mr A did over a period of six months
–
that the gate was sometimes standing open and had not self-latched as
it was supposed to do. He would have foreseen
risk to C, and
would have eliminated the risk by securing the gate. According
to his evidence Mr S was involved in the regular
maintenance and
repair of the house, including securing the gate. An unsecured
gate was a danger. He had a duty to
ensure it was secure.
[70]
I reject his speculation that the gate was always
secure. I also reject any speculation that the gate was
automatically able
to close itself at the time of the accident, and
that the unchallenged eye witnesses who contradicted him were wrong.
I do
so particularly in the absence of genuine cross-examination of
Mrs A, Ms P and Mr A on their evidence that the gate sometimes stood
open.
[71]
The fact that the gate was observed standing open
on a number of occasions and over a period of time before the
accident; that Mr
S remained unaware of this; and that Mrs S did
not address the danger after it was brought to her attention, all
indicate
that the negligence on the part of the defendants was
significant.
[72]
The independent negligent omissions of Mr and Mrs
S combined to produce the same harmful consequences to C.
According to the
common law they are concurrent wrongdoers. In
failing to take steps to secure the gate the defendants were both
jointly and
severally liable to C for the same harm. (See
Nedcor Bank Ltd t/a Nedbank v Lloyd-Gray
Lithographers (Pty) Ltd
2000 (4) SA 915
(SCA) paragraph 10
.)
[73]
Insofar as Mrs A’s independent act, in
leaving C unattended, may also have combined to produce the same
damage to C, the Apportionment
of Damages Act recognises and
regulates a reduction of a claimant’s recoverable damages (as
well as a right of contribution
between joint wrongdoers who are
defined to include concurrent wrongdoers at common law).
[74]
That there were risks attendant on the S’s
property for an unattended 2½ year old child was manifest.
These included
the open front gate to the property, the pond at the
end of the garden across the lawn from the patio, the Khoi pond, as
well as
the pool whose access gate (to Mrs A’s knowledge) was
sometimes left open. Ready access to this pool gate from the
patio did exist. Beyond that gate stood a slide. Mrs A
should have known that C might seek to use it if she was
left free to
access it. Moreover, the bottom of the slide was close to the
edge of the pool.
[75]
Mrs A misjudged the risk posed by the pool gate.
C did act unusually, but her movements were foreseeable.
Unusually
she did leave the patio area, and went around to the back
of the house. Although Mrs A eventually foresaw the possibility
of C moving out of the S’s property and towards the road on its
northern side, she did not in fact foresee the possibility
of C
moving around the house to the pool area. Only when Mrs S ran
directly to the pool did Mrs A appear to become conscious
of a risk
to C that a reasonable person in her position would have already
foreseen. Mrs A ignored the possibility and risk
of C passing
through the pool gate that she had, with concern, observed to be open
on a number of occasions.
[76]
Mrs S’s assurance that she would do what she
could to ensure the gate stayed closed might have gone some way
towards justifying
Mrs S’s attitude. However, it is
not clear on the evidence before the Court that, between the time
this assurance
was given and the accident, Mrs A could reasonably
have relied on this assurance or did so. It is clear from the
evidence
of Mrs A that she entertained some concern that C might
leave the patio if she was unattended. As a result Mrs A
interrupted
the transfer of C’s car seat in the car park and
made her way back to the patio. A reasonable person in the
position
of Mrs A would have guarded against the foreseeable
possibility of injury resulting to C if she was left unattended on
the patio
for a period long enough to access the potential hazards on
the property including the pool.
[77]
I accept that Mrs A faced an unexpected
distraction when she was called upon to move C’s car seat from
one vehicle to
another. However, Mrs A had a duty to take
charge of the attendant risk. There is no suggestion that she
saw fit to
ask one or more of the women at the meeting to keep an eye
on C in her absence. A reasonable person would have done so.
Mrs A left C unattended for a period that was too long. It was
long enough for C to pass from the patio around the house
(or even
through it) across the parking area to the pool’s perimeter
gate, the slide and the pool.
[78]
The unexpected distraction of Mrs A, and her
action when she realised that she might be leaving C alone for too
long, stand in stark
contrast to the lack of any evidence to suggest
that the S’s, on each of their parts, either responded to the
concern about
an unsecure pool (raised with Mrs S) or the danger of
the gate regularly standing open on Tuesdays (which should have
become obvious
to Mr S). The negligence of Mrs A was
therefore somewhat mitigated.
[79]
Taking a common sense approach to the question of
causation (see
Lee v Minister of
Correctional Services
2013 (2) SA 144
CC)
on the part of the S I conclude that, had they acted reasonably to
ensure that the gate was secured and not intermittently standing
open, C would probably not have been able to enter the pool area and
suffer damage. There is no evidence on record to suggest
that
the fact that the gate stood open on the day of the accident was
unique or unconnected to the negligence of the S.
[80]
Negligence on the part of Mrs A was a
sine
qua non
for the accident. In her
personal capacity she claims that she suffered damages due to the
negligence of the S. If such
damages are proved they were
caused partly by her own fault and partly by the fault of the S.
By virtue of the provisions
of section 1(1) of the Apportionment of
Damages Act, Mrs A’s personal claim is not defeated by her
fault as a claimant.
The damages recoverable in respect of her
claim stand to “
be reduced by the
court to such extent as the court may deem just having regard to the
degree in which the claimant was at fault
in relation to the
damages.
”
I understand the
performance of such an exercise by this court to be the object of
defendants’ plea.
[81]
The court’s function is to “
assess
the degree of the claimant’s [Mrs A’s] negligence in
relation to the damage which has been caused by the combination
of
that negligence and the negligence of the defendant.
”
(See
South British
Insurance Co Ltd v Smit
1962 (3) SA 826
at 836 B-C
).
This must be done on the basis of comparison between the respective
negligence of the several parties where there is more
than one
plaintiff or defendant. (See
Jones
v Santam Bpk
1965 (2) SA 542
(A) at 555 C-D
).
Where two or more defendants are liable the proper approach to
apportionment is first to reduce the extent of the recoverable
damages in proportion with the plaintiff’s negligence and then
to apportion remaining damages between the defendants in accordance
with their negligence. The entire process remains subject to
considerations of justice and equity. (See
Harrington
and Another v Transnet Ltd and Others
2007 (2) SA 228
(CPD) at
paragraphs 90 and 91 and the cases
quoted and referred to there).
[82]
As no fault can be attributed to C, first and
second plaintiffs’ claim in their representative capacities
does not stand to
be reduced. To the extent that Mr A, in his
personal capacity may have suffered damages from the negligence of
the defendants and
Mrs A it cannot be said that he was in any sense
or degree the author of his own wrong, and that his wife’s
negligence can
be set up against him. (
See
Union Government (Minister v Railways) v Lee
1927 AD 202
.)
[83]
The negligence of Mrs A is outweighed by the
aggregate of blameworthiness on the part of the defendants. In
my view, Mrs A’s
act, in leaving C unattended for two to
three minutes, deviated by 30 percent from the norm of the
bonus
paterfamilias
. Defendants’
omissions deviated by 60 percent. The respective responsibility
for damages of Mrs A and defendants
should be assessed upon the basis
of 1 to 2, or one third to two thirds. (See the method
illustrated by Williamson JA in
Jones NO
v S.A.N.T.A.M supra at 555 E – H.
)
I deem it to be just and equitable, having regard to the degree in
which Mrs A was at fault in relation to the damage caused
to C, to
reduce the damages recoverable by Mrs A in respect thereof by one
third.
[84]
Plaintiffs have been substantially successful.
They are entitled to their costs.
[85]
I therefore make the following order:
(a)
The first and second defendant are jointly and
severally liable for all such damages as the first and second
plaintiffs, in their
representative capacities, and first plaintiff
in his personal capacity, may be found to be entitled in consequence
of the accident
that befell C A on 27 July 2004 in the
swimming pool situated on defendants’ premises;
(b)
The damages recoverable in respect thereof by
second plaintiff, as a claimant in her personal capacity, shall be
reduced by one
third in terms of section 1(1) (a) of the
Apportionment of Damages Act.
(c)
The defendants are liable to pay costs incurred by
the plaintiffs to date.
DONEN
AJ