Rhoode v City of Cape Town (23341/2011) [2017] ZAWCHC 160 (29 June 2017)

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[2017] ZAWCHC 160
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Rhoode v City of Cape Town (23341/2011) [2017] ZAWCHC 160 (29 June 2017)

IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE
NUMBER: 23341/2011
In
the matter between:
SHAUN
RHOODE
Plaintiff
and
THE
CITY OF CAPE
TOWN
Defendant
JUDGMENT
delivered 29 June 2017
NDITA,
J:
[1]
On or about 7 January 2011, the plaintiff, Mr Shaun Rhoode, an
adult
male person, sustained a broken neck (medically referred to as a
fracture of the C5 vertebra) when he went down a water slide
on his
stomach, hitting his head on the bottom or side of a swimming pool
operated by the defendant at Mnandi Resort, Mitchell’s
Plain.
The defendant, the City of Cape Town, is a metropolitan municipality
established in terms of the
Local Government Municipal Structures Act
of 1998
, with its principal place of business at 12 Hertzog
Boulevard, Cape Town. As a result of the aforesaid injury, the
plaintiff was
hospitalised, underwent medical treatment, suffered
pain and was rendered a complete quadriplegic, thereby losing several
amenities
of life.
The pleadings
[2] Pursuant to the
incident, the plaintiff lodged a claim for damages and other
ancillary expenses with the defendant. The plaintiff
alleges that the
defendant, as the manager of the resort and in turn the water slide,
had a duty to ensure that the resort, and
in particular, the water
slide did not constitute a danger to members of the public utilising
it. More specifically, the plaintiff
pleads that the defendant and/or
its servants, acting within the scope of their employment, owed the
public and the plaintiff a
duty to ensure that:
2.1 that the water slide
was manufactured and/or erected in such a way that it would not
constitute a danger to persons utilising
the slide.
2.2 the water slide would
be monitored by employees and/or lifeguards in order to prevent the
water slide constituting a source
of danger to persons utilising such
water slide and
2.3
the swimming pool into which individuals who utilised the water slide
plunged, would be sufficiently deep  and/or sufficiently
filled
with water so as not to constitute danger to persons utilising the
water slide.
[3] According to the
plaintiff, the defendant breached the duty of care it owed to the
plaintiff, and were wrongfully negligent
in one or all of the
following respects:
3.1 the defendant or its
servant failed to ensure that the water slide was manufactured or
erected in such a way that utilising
the water slide would not
constitute danger to people using it;
3.2 the defendant or its
servant failed to have monitors and or lifeguards to ensure that
individuals using the water slide, in
particular the plaintiff, did
not place themselves in a situation where they could be injured in
utilising the water slide;
3.4 the monitors and/or
lifeguards monitoring the water slide failed to ensure the safety of
persons, particularly the plaintiff,
who used the water slide;
3.5 the defendant and/or
its servants acting as such, failed to ensure that there was
sufficient water in the swimming pool so that
when persons,
particularly the plaintiff who entered the swimming pool after
sliding down the water slide were not injured by hitting
the bottom
and/or side of the pool;
3.6 the defendant and/or
its servants acting as aforesaid failed to avoid the incident in
circumstances whereby the exercise of
reasonable care, the incident
could, and should have been avoided;
3.7 the defendant and/or
its servants failed to adequately warn persons, particularly the
plaintiff, of the dangers of using the
water slide and
3.8 The defendant and/or
its servants failed to institute adequate measures to control how
persons, particularly the plaintiff,
used the waterslide.
[4] The defendant pleads
that whilst it was aware that members of the public frequented the
resort and utilised the waterslide,
it denies any specific allegation
that it was responsible or owed a duty of care for ensuring that the
resort and the waterslide
did not constitute any source of danger to
any person. And in so far as it is
alleged that
the defendant was responsible or owed a duty of care for ensuring
that  the resort and the waterslide did not
constitute any
source of danger to any person, the defendant denies those
allegations. The defendant pleads that at all material
times, and
particularly on 7 January 2011, the defendant discharged any duty
owed by it to persons such as the plaintiff by doing
the following:
4.1
warning all visitors at the entrance to the resort that the
superintendent’s instructions must be obeyed;
4.2
displaying two signs prominently on two tall poles on either side of
the steps leading from the entrance to the main pool that
the pool
rules must be followed, that patrons may not run and dive, and that
the water pool is shallow;
4.3
posting four additional warning signs prominently around the main
pool area, prohibiting running and diving;
4.4
advertising prominently, next to the pool, the depth of the pool;
4.5
displaying prominently, near the ladder to the waterslide, signs
specifically informing users to descend the waterslide feet
first,
with one’s back against the slide, and specifically prohibiting
other manners of using the slide such as descending
head first;
4.6
displaying, at the top of the waterslide, a further prominent notice
informing those using the slide to descend the slide feet
first and
4.7
appointing staff to monitor the use of the slide, including a member
of staff at the top of the slide.
[5]
The defendant further pleads that the plaintiff, by entering the
resort, agreed to do so at his own risk as two prominent signs
to
this effect were displayed at the entrance to the resort, and
visitors were advised that they would enter the resort at their
own
risk and that they agreed thereto by using the resort. According to
the defendant, the plaintiff voluntarily assumed risk of
injury to
himself. In addition, the plaintiff had exempted the defendant from
any liability for harm of the nature pleaded by the
plaintiff. For
all these reasons, so alleges the defendant, the plaintiff’s
claim is precluded by virtue of the terms agreed
to by the plaintiff.
Besides, so pleads the defendant, the plaintiff acted recklessly and
negligently by descending the waterslide,
head first, as well
disregarding the warnings by the defendant’s staff not to do
so.  As such, the plaintiff’s
damages were caused by the
plaintiff’s reckless and/or negligent conduct. Alternatively,
in the event that it is found that
the defendant was negligent in any
respect, the plaintiff’s damages were not caused solely by the
defendant’s conduct,
the plaintiff’s injury or damages
were also caused by the plaintiff’s reckless conduct. According
to the defendant,
this is so because a member of the defendant’s
staff specifically warned the plaintiff against doing tricks on the
slide.
Notwithstanding the warnings, the plaintiff descended the
waterslide head first. By conducting himself in that manner, the
plaintiff
knowingly and voluntarily assumed the risk of injury to
himself.
[6]
Alternatively, in the event of it being found that the defendant was
negligent in any respect, the plaintiff’s damages
were not
solely caused by the plaintiff’s conduct and the defendant’s
negligence contributed to the plaintiff’s
damages, the
defendant pleads that the plaintiff’s injury and damages were
caused partly by the fault of the plaintiff, whose
conduct was
reckless and/or negligent as set out above.
[7]
In replication, the plaintiff denies that by entering into the
resort, he entered into any agreement at all. However, should
the
court find that such an agreement came into existence, the plaintiff
denies the terms of such an agreement as pleaded by the
defendant.
The plaintiff particularly denies:
7.1
that in terms of the said agreement, that the defendant would be
absolved of its duty of care and subsequent negligence as pleaded
by
the plaintiff;
7.2
that the plaintiff in terms of such agreement voluntarily assumed the
injury to himself;
7.3
the plaintiff denies his claim is precluded by the alleged agreement
as pleaded by the defendant. To this end, the plaintiff
alleges that
it would be contrary to public policy to nullify or exempt the
defendant from its liability as well as duties and
obligations.
The
Issues
[8]
The only issue for determination in these proceedings is whether the
plaintiff’s injuries were caused by wrongful and
negligent
conduct on the part of the defendant.
The
Evidence
[9]
The plaintiff gave evidence to the following effect: He was born on 8
August 1991 and the highest educational standard he had
achieved at
school was Grade 7.  Whilst at school, he enjoyed sport, was a
runner, threw javelin and also did gymnastics.
He left school
in 2010 without completing Grade 8 when his girlfriend, Jocelyn, fell
pregnant. The plaintiff testified that after
leaving school, he
obtained employment at Woolworths as a packer, but his contract ended
in November of the same year. The child
was born on 14 February 2011.
[10]
With regard to the merits, the plaintiff testified that during the
morning of the day in question, Jocelyn’s uncle came
to pick
him up and they went to the Mnandi resort. Inside the vehicle was the
plaintiff, Jocelyn’s uncle, Jocelyn, her sister
Trish and her
four children. At that time Jocelyn was 8 (eight) months pregnant.
The plaintiff gave evidence to the effect that
Trish paid the
entrance fee, and as she did, the rest of her fellow travelers stood
next to her, watching over the children. After
the entrance fee was
paid, they all entered the resort and settled next to the shallow end
of the pool. There they set up their
camping tent. The plaintiff
testified that he was able to discern the shallow end of the pool
because it was written ‘shallow’
in yellow.
Besides, according to his evidence, it was not his first time to
visit the resort as he had previously done so
when he was about 11 or
12 years old. But on that occasion, he did not go down the water
slide as his father forbade him to do
so. However, the plaintiff
recounted his past experiences going down water slides and testified
that he had been to the slide at
Hendon Park, Strand, the Water Park
and the Farmyard Park in Wellington when he was between 15 and 16
years of age.
According to Mr Shaun Rhoode (herein
referred to as Mr Rhoode), after settling in at the resort, he and
Jocelyn went for a swim.
Inside the water, they were skipping and
bouncing up and down, generally having fun. As they were skipping,
one of the lifeguards
blew his whistle and told them to stop skipping
and get out of the pool as Jocyln was highly pregnant. They got out,
but the witness
went back into the pool for a swim. Mr Rhoode
testified that after swimming and relaxing for a while at the camp
site, he walked
across the grass to the water slide. When he got to
the slide, he found other people visiting the resort and briefly
conversed
with them. According to Mr Rhoode, they joked about the
hole that was on the part of the fence. He walked up the stairs to
the
platform where he waited for the lifeguard to release the latch
giving him way onto the slide.  Another boy was waiting with

him. Mr Rhoode testified that he got on his knees to position himself
to go down the slide, held on to the rails and went down
the slide on
his stomach,  and entered the water head first. According to the
witness when he came into the water, he opened
his arms, in a
breaststroke kind of movement, but when he was going down the water
slide, holding onto the rails, his hands were
in front of him. The
plaintiff landed on his crown. When asked why he went down the slide
head first, the plaintiff explained that
he saw someone else doing
it, and had always done it at the other resorts he had visited.
According to his evidence, he had also
assumed that the water at the
deep end would be at the level of his chest as that had been the case
in all the other resorts he
had previously visited.
[11]
The plaintiff further testified that before he went down the water
slide, he had not observed any notice boards telling him
that he
could not go down the slide on his stomach. Furthermore, had he been
told by the operators that he should not slide on
his stomach, head
first, he would have listened and would not have gone down the slide
on his stomach. In addition, had there been
an indication before he
went down the slide that the pool was shallow at the bottom of the
slide, he would not have gone down head
first. The attention of the
witness was drawn to Exhibit A12 depicting a board showing that users
of the water slide were permitted
to ‘
ride
feet first only’
.
His evidence was that he could not recall seeing the sign, and if he
did have a look at it, he might not have taken serious note
of it.
[12]
Under cross-examination, Mr Rhoode explained that the board reflected
on Exhibit A12 was about approximately five metres from
them, as a
group, and the reason why he could not take note of it is because
they were talking to each other. It was put to Mr
Rhoode that as he
came out of the office, there was another sign which read thus:
“
Main
pool. Please observe all pool rules and supervisor’s
instructions. No running or horseplay.”
The
sign also read ‘
shallow
water, no diving’
.
The witness confirmed that if he had read the sign, he would have
surely understood it as it was written in both English and Afrikaans

and he is fully conversant in both languages. He also conceded that
whilst he was swimming in the middle of the pool, he could
have
easily noticed the signs placed around the pool prohibiting diving
and running. The witness also revealed that in order to
get to the
top of the water slide, he joined a queue to the water slide which
began at its bottom. He conceded that whilst standing
in the queue
awaiting his turn onto the water slide, he had lots of opportunity to
look at the sign at Exhibit A12 that was behind
the slide. Similarly,
Mr  was referred to Exhibit A11, which showed a red line running
across a picture of someone sliding
on their stomach. When asked
whether he understood the sign to mean that going down the slide on
one’s stomach was prohibited,
he confirmed that had seen it, he
would have realised that that is what it stood for. However, later,
when asked the same question,
Mr  explained that because the
sign reads ‘
slide
this way’
and has a red line running through it, it was confusing to him. It
was nonetheless clear through further questioning that Mr  firmly

understood that the board at Exhibit A11 clearly prohibited sliding
through the stomach. Similarly, the witness confirmed that
had he
been paying attention to the signs put by the respondent, he would
have seen a further sign which prohibited sliding on
one’s
stomach and conceded that had he paid attention to the signs, he
would not have gone down the slide on his stomach,
and consequently,
the accident would not have happened. Mr Rhoode further explained
that what encouraged him to go down the slide
on his stomach was
because he had done so previously on other water slides, coupled with
the fact that as he was waiting in line
for his turn, he watched a
man who was in front of him sliding in head first and then swimming
towards the deep end.
[13]
Mr  further explained that when he was in the middle of the
pool, he could see the lifeguards around the swimming pool.
According
to his evidence, some were walking around, and up and down the pool,
whilst others were watching the pool. Mr  confirmed
that there
was another person based on the platform of the slide controlling the
plank that leads to the slide. It was suggested
to Mr  that the
person who was in charge of the slide platform was Mr Mncedisi
Memani, who has since passed away. A
statement made by Mr
Memani with regard to the incident was read into the record. The
statement reads thus:
“
On
Friday 2011-01-07 at 14:45 was on duty at Mnandi Beach Pool
monitoring the slide. I’ve warned Shaun  and several other

persons to go down the slide head first, but he and the other persons
refused to listen to me. I’ve also shown them the signs
that
prevents [sic] them from doing that.”
Mr
was confronted with the above statement and it was put to him that
because he was fired to go down head first, he did so
notwithstanding
the explicit warning from Mr Memani.  Mr  reiterated that
if he had been warned not to go down head first,
he would not have
done so. According to his evidence any version that suggests that he
was verbally warned not to slide in head
first was a lie. This
assertion is despite his earlier admission that as a 19 year old, he
was a little bit of a risk taker. It
was further put to Mr  that
one of the defendant’s witnesses would give evidence to the
effect that he (Mr ) went down
the slide more than once. His response
was that such testimony would be a lie.  The witness was quizzed
on the plausibility
of his version to the effect that he walked
around the resort for approximately two hours without seeing a single
sign that warned
him not to dive in head first. He was adamant that
he did not take note of any such sign. Mr Butler SC, who represented
the defendant,
suggested the following scenario to Mr :
“
I’m
suggesting to you that, while you were in the company of your nine
month, eight and a half, nine month old – nine
month pregnant
girlfriend, you were quite careful with her in the shallow part of
the pool. You had dutifully, appropriately dutifully,
looked after
her. You had stopped doing some silly thing when you were in her
company. But when you approached the water slide,
you were now in the
company of other young guys, who were keen for a bit of fun, is that
correct? - - - - Yes
Just
as you’d done on other water slides, you were just going to go
down head first, is that right? - - - - That’s correct
That
is correct. And you disregarded all the warnings, is that right?
-
-
- - That’s correct.’
When
it was put to Mr  that a witness saw him change position as he
was going down the slide, he confirmed that he started
on his knees
and after he was told that he may go down the slide, he went down on
his stomach. Mr  further explained that
as he was kneeling on
the slide, he was crouching forward and his bottom was on his heels.
[14]
In re-examination Mr  emphasised that even if he had seen the
sign that prevented him from sliding head first, because
he is a
chance taker, he might have slid on his stomach, but had he known
that the water was shallow, he would not have taken a
chance.
He further stated that when he went down the slide on the day in
question, his intention was merely was to just swim
under the water,
and he assumed that the water would be deep enough. Mr
reiterated that at no stage did Mr Memani or anyone
employed by the
defendant admonish not to go down the slide head first.
[15]
It will be recalled that the plaintiff alleges that that the water
slide was not manufactured and/or erected in such a way
that it would
not constitute a danger to persons utilising the slide. In support of
this allegation, the plaintiff tendered the
evidence of Professor
Jeffrey Christopher Hillman, a mechanical engineer. Professor Hillman
testified that on 2 February 2015,
he visited the scene of the
accident at Mnandi Recreational Facility in order to evaluate how the
accident may have occurred.  Professor
Hillman explained that in
order to carry out the evaluation, he needed to get an idea of what
sort of speed the riders of the slide
achieved when they enter the
splash pool at the bottom of the slide, and to measure the depth of
the pool. According to his evidence,
the speed at the exit of the
slide ranged from 25 kilometres per hour at the slowest up to 40 and
50 kilometres per hour. The above
measurements were taken using a
stopwatch. He qualified these assertions by explaining that speed is
affected by a variety of factors,
for example, how heavy an
individual is; what sort of clothing he or she was wearing; the
amount and type of sunscreen and how
much water the operator is
pumping into the slide. According to the witness’s evidence,
the quantity of water as a lubricant
would also have a small effect
on the friction co-efficiency. He further explained that the amount
and type of sunscreen is relevant
because it is slippery and can
reduce friction. Professor Hillman told the court that he also
measured the level of the water at
the exit of the pool and found it
to be .75 metres
[16]
It is well to recall that the plaintiff suffered a fracture of the C5
vertebra. In Professor’s Hillman’s opinion,
this type of
injury is consistent with the plaintiff striking his head on the
bottom of the pool while the rest of his body was
essentially in line
with it. In addition, this type of injury can occur at relatively low
speeds when the object being struck is
both hard and immovable, as it
was in this case a concrete pool floor. Commenting on the plaintiff’s
injury, Professor Hillman
stated that when one is in a head first
position and comes to a dead stop, the whole body presses on the
spine and the neck region
takes the maximum force. However, in the
case of the plaintiff, the ‘breaststroke manoeuvre’
according to the witness
caused him to penetrate the surface of the
water as soon as he exited the slide. Professor Hillman explained the
mechanic as follows:
“
.
. . normally when people come down the slide, regardless of whether
they go head first, they would normally plane along the surface
of
the water briefly and then come to a stop and the legs would then
sink. If you go down head first, they’ll sink behind
you and
cause you to stand up. If you go down feet first, the legs will go
down and you end up standing up that way. Somehow, because
of the
orientation of the plaintiff’s head, and the action he took
with his arms, he’d managed to penetrate the surface
of the
water as soon as he exited the slide, and direct himself down to the
bottom of the pool.”
In
short, the effect of the plaintiff’s breaststroke manoeuvre
would have been the downward trajectory of the rider’s
body. In
Professor Hillman’s opinion, the plaintiff must have had his
head bent forward quite a lot to encourage the water
to go over the
back of his head and then force him down and the same applies to the
action with his arms and with his hands. The
witness further
explained that as the speed of the rider is reduced by the resistance
or drag of the water
:
‘
the
substantial negative buoyancy of the legs would then gradually cause
the body to rotate vertically backwards until it comes
to rest with
the feet at the bottom of the pool and the head on the surface of the
water. This slowing and rotational phase requires
a minimum depth of
water in order to prevent the rider’s hands, arms, and in this
case, the head, making any contact with
the bottom of the pool before
the described rotation of the body obviates this possibility’.
[17]
As to the depth of the pool , Professor Hillman testified that in
assessing the sufficiency of the water level for the water
slide at
the Mnandi Resort, he had regard to the excerpt pool depth for water
slides; speed tubes and novelty slides in Australia;
Canada and USA,
and the research revealed that most require a minimum depth of 1.2
metres and some 0.9 metres. Professor Hillman
told the court that a
substantial amount of research has been conducted into the causes of
spinal injuries arising from shallow
water diving and it is apparent
from it that there is a wide range of values for what is deemed to be
the maximum impact speed
above that can be tolerated by a rider’s
head without causing a spinal injury as well as identifying a minimum
speed about
which spinal injuries will occur with increasing
likelihood of severity.  The witness explained that there is a
formula that
one applies to circumstances such as the present, which
is that as one enters the water, the maximum deceleration that one
achieves
is at the moment of entry, and thereafter the rate with
which one slows down decreases. He expatiated on the theory as
follows:
“
.
. . And it’s a function, and how deep you will go and what your
speed is at any particular depth, is a function of the speed
that you
entered the water, because obviously the faster you went into the
water, the deeper you will go, and a thing called the
K factor, which
has a constant for different individuals and it’s a function of
the drag, in other words or the friction
that you get entering the
water. It’s a function of the effective cross-sectional area of
the individual. So somebody who
has got a really big chest and really
wide shoulders and a big head, will clearly slow down, you know, the
K factor will be higher
than somebody that’s very slight.’
Professor
Hillman further explained the formula applied for various diving
speeds as v = Ve to the minus ks, where v = a diver’s
residual
speed at a depth after entering the water at an initial speed of V
exponential to the minus whereas the value of k is
a function of mass
and size and drag co-efficiency and density of the water. According
to his evidence, this formula dictates that
a small increase in depth
will significantly reduce a diver’s speed by the time that he
reaches the bottom. To better explain
the formula, Professor Hillman
provided the court with a colour coded table accepted on record as
“Appendix A” to his
report. The table reflects varying
values for K.  Professor Hillman reiterated that the depth of a
pool makes a considerable
difference to the risk of getting an
injury. Based on the table presented had the Mnandi Resort facility
been 0.9 or 1.2 metres
deep, with all other factors being the same,
it is highly unlikely that the plaintiff would have experienced an
injury or even
that his head would have made contact with the bottom
of the pool. According to Professor Hillman, the relationship between
water
depth and retardation dictates that had the exit pool at Mnandi
been of a similar depth to the others in the area, then the plaintiff

would not have sustained an injury, even in the unlikely event that
he still managed to strike his head on the bottom of the pool.

Professor Hillman testified that even if the pool had complied with
the recommended minimum international standards of 0.9 depth
for
water slides, it would not necessarily have prevented contact between
the plaintiff’s head and the bottom of the pool,
but it would
likely have been sufficient to reduce the impact speed to a level
that would not have caused any serious injuries.
[18]
It is well to recall that the plaintiff in his evidence explained how
after watching one other person ‘
slide in a head first
orientation
’, he entered the chute, went on his knees and
positioned himself to slide down head first.  Commenting on the
state
of platform of the slide, Professor Hillman in his report
states that an inspection of the launch area at the stop of the slide

revealed that there is nothing to prevent riders adopting whatever
position they chose at launch should they either ignore or fail
to
note the warning posters and instructions of the attendant on duty to
adopt a ‘feet first’ orientation only. According
to the
witness, it is noteworthy that the minimum depths for water slide
exit pools recommended by international standards, comes
with a
proviso that ‘
head first’
riding is prohibited,
even at the 1.2 metre level. In the opinion of Professor Hillman,
this calls for some form of control at
the access point to the slide
chute that will prevent a user from attempting to ride down in any
such fashion. In addition to control
at the access point of the
slide, Professor Hillman expressed an opinion that;
“
I
think it’s just the understanding that if you want to prevent
something from occurring, notices are one thing, but you have
to
actually take some action to make sure that, you know, people don’t’
disobey what you are trying to tell them. So
if you insist that you
can only go down feet first, you need some method of ensuring that
this is the case, and a barrier of some
sort would obviously not
allow anybody to take off, until the attendant, or whatever, was
assured that, you know, you weren’t
going to go down head
first.”
This
suggestion by the witness is in line with paragraph 19 of Professor
Hillman’s report wherein he states that:
“
It
would appear from anecdotal evidence that “head first”
riding down the slide is not an uncommon event and the layout
of the
slide entry at Mnandi and the alleged position in which the attendant
stands makes him unable to prevent this. It seems
that the primary
task of the attendant is to only permit access to the launch
platform. A similar inexpensive device could easily
be fitted to the
launch point and this would provide the attendant with complete
control over the rider’s launch orientation.”
Professor
Hillman in his evidence described the type of barrier or pole device
that he referred to on page 28-29 of exhibit A ,
depicting a
photograph of an electrically operated device at Splash Waterworld in
Amanzimtoti,  which prevents anybody from
taking off until the
barrier is lifted out of the way. Professor Hillman provided an
estimation of the amount the installation
of device may cost, but Mr
Butler rightly protested that such evidence was outside the expertise
of the witness and therefore Professor
Hillman’s evidence of
quantities and costs must obviously be disregarded during evaluation.
This is particularly so in the
light of Professor’s Hillman’s
unequivocal acknowledgement that he is not an expert in design and
manufacture of these
barriers and his opinion is informed by an
internet search. The nub of this aspect of Professor Hillman’s
evidence is simply
that a barrier could be easily installed at
minimal cost.
[19]
Professor Hillman gave evidence to the effect that in reaching his
conclusions he had regard to certain values identified by
James
McElhaney in an article, Biomechanical Analysis of Swimming Pool Neck
Injuries. I do not at this stage propose to interrogate
the McElhaney
values as these are effectively dealt which during cross-examination
of the witness. The conclusion reached by Professor
Hillman can be
summarised thus:
“
I
conclude from the above that the plaintiff’s injury was the
result of inadequate exit pool depth coupled with the lack of
an
effective rider control system. These deficiencies should have been
identified in any thorough risk assessment as being potentially

harzadous for its users. The presence of explicit warning notices
declaring that “head first” riding was prohibited

demonstrates that the hazard was acknowledged to be a real one and
therefore action should have been taken to ensure that riders
were
compelled to comply with this requirement.”
[20]
Professor Hillman was referred to a supplementary opinion filed by
the defendant’s expert witness, Mr Rozowsky, a civil
and
structural engineer wherein the former’s hypotheses that a
rider going down head first must have positioned himself that
way at
the start of the ride was put to the test. A video demonstration
where a rider entered the chute in a “
feet
first”
position and before entering the pool at the foot of the slide the
rider again adjusted his orientation in the chute a second time
into
a “
feet first”
position again was taken. Professor
Hillman acknowledged that in the video that was achieved but seemed
to attribute it to athletic
display. The witness confirmed the joint
minute compiled by him and Mr Rozowsky. It is necessary to refer to
paragraph 2.1 and
2.2 of Mr Rozowsky’s opinion which reads
thus:
“
2.1
It is agreed that an increase in the depth of the exit pool to 1.2m
would have substantially reduced the severity of the impact
between
the Plaintiff’s head and the bottom of the pool.
2.2
However, Rozowsky does not agree that the reduction in head impact
would probably have prevented the plaintiff’s spinal
injury and
reiterates that the literature recommends that the pool depth should
be up to 1.8m in order to achieve this”.
Professor
Hillman confirmed that he disagrees with the Rozowsky contention on
the basis that the “
safe”
depth of 1.8m referred
to by Rozowsky is for poolside diving and that is substantially
different to the dynamics of the plaintiff’s
entry into the
exit pool. Professor Hillman explained his dissension in the
following manner:
“
Yes,
I mean this for individuals who stand on the side of the pool or run
towards the pool and dive in head first, and you need
1.8 metres in
order to ensure that, you know, they don’t injure themselves.
That’s really not relevant to this situation
of the slide. I
mean it doesn’t add or detract anything, it just seemed to be
of no relevance.”
[21]
Under cross-examination, Professor Hillman explained that the focus
of his analysis was the benefit of having the exit pool
deeper. The
witness’s attention was drawn to paragraph 2.4 of the expert
joint minute which reads thus:
“
Hillman
further states that even if the pool had only complied with
appropriate international standards at the minimum depth of
just 0.9
m would not necessarily have prevented contact being made between the
Plaintiff’s head and the bottom of the pool
but it would likely
have been sufficient to reduce the impact to a level that would not
have caused any serious injury.”
The
above statement must be read with paragraph 10 of the Hillman expert
report which reads as follows:
“
Research
into the dynamics of diving into water, provides values for CD in the
range of 0.9 to one in the absence of special friction
reducing
swimsuits.”
Furthermore
that:
“
These
values enable one to compile a table of corresponding values for K.”
Against
this backdrop, the witness confirmed that in the two scenarios dealt
with in Table 2 and 3, he calculated the values for
velocity at the
foot of the slide, i.e K and derived values for different depths. In
Table 2, the witness indicated that at 50
kilometres per hour, at the
depth of 0.9 metres there is a given K value of 1.3 to 1.4. Professor
Hillman further confirmed that
what can be discerned from the two
tables is that the faster one goes into the water, the more space is
needed for one to slow
down to a safe speed. He further conceded that
the angle after entering the water constitutes a further variable.
Furthermore,
because in the matter at hand the angle at which the
plaintiff descended after entering the water is unknown, the results
would
need to be adjusted if it turned out that it was at a steeper
angle. It is necessary to restate that Professor Hillman had
explained
that the value of K indicates how much one will slow down
as one goes into the water and that there are numerous elements that
go into the K variable. In other words, the lower the K variable, the
greater the depth required for safety. One such variable is
the mass
of the person entering the water as well as the quality of the
swimsuit. When it was put to Professor Hillman under
cross-examination
that the bigger the swimsuit, the greater the drag
and the more streamline the swimsuit, the less the drag, his response
was that,
that doesn’t make much difference on the facts such
as the present and would be of greater impact in swimming Olympics.
Similarly,
the fact that the plaintiff propelled himself forward with
a breaststroke movement has no major effect on speed, but rather, it

is the change in direction which made him break into the surface at a
steeper angle, according to Professor Hillman, it might have
a very
small effect on the equivalent entry speed into the water.
[22]
With regard to velocity, Professor Hillman was quizzed on the two
calculations he had made at 45 and 50 kilometres per hour.
He was
asked whether in his calculations he made allowance for the
possibility that the person coming down the slide may have propelled

themselves from a lift at the back of the slide when they began, he
responded that he did, but added that propelling oneself off
the top
adds very little to the final velocity achieved at the end of the
slide. Professor Hillman readily conceded that with relatively
minor
adjustments to the input in variables, the indicated safety depth of
0.9 m might be wrong and that it might quite easily
be the greater
depth that is required.
[23]
I indicated earlier on in this judgment that the conclusions in
Professor Hillman’s report were influenced by the principles

stated in article written by James McElhaney. The article is an
analysis and examination of certain swimming pool neck injury
mechanisms. More precisely, the authors examined vertebra injuries
from C1 to T17 and indicated that the most likely areas are C4
and
C5. It appears from the article that they analysed nine accidents of
head first entry into shallow water but these were a simulation
of
other accidents that had happened. Professor Hillman again conceded
that there is a scope for variation in the input factors
which lead
to a significant result in what is assessed to be a safe depth.
Cross-examination also clarified the fact that any reference
made by
Professor Hillman to other waterslides and their depths was purely
anecdotal facts as it was not facts observed by the
witness but those
given to him by others.
[24]
After the examination of Professor Hillman, the plaintiff closed his
case.
[25]
The defendant opened its case and led the evidence of Mr Lubabalo
Ngwadi who was at the time of the accident employed as a
lifeguard at
the Mnandi pool facility .  Mr Ngwadi testified that in 2011, he
had been working at Mnandi for three years.
The witness testified
that on the day in question he was on duty as a lifeguard next to the
pool and so was Mr Memani.  According
to the witness, there
weren’t many people at the resort on the day in question. Mr
Ngwadi testified that the signs shown
on Exhibit B 1 to 15 were
displayed at the resort on the day of the incident. According to the
witness, the signs were there as
at January 2011.  I think it is
prudent to list what is depicted on each sign confirmed by Mr Ngwadi,
more specifically those
relevant to the warnings related to the
waterslide. These are:
Exhibit
B3
1.
B3 Entrance to Mnandi Resort with two blue signs prominently
displayed on both sides of the entrance door. The one sign states
in
both English and Afrikaans that ‘all facilities are to be used
your own risk’.
2.
B7 is placed next to the edge of the swimming pool and reads:
‘
MAIN
POOL
Please
observe all pool rules and supervisor’s instructions. No
running or horse play. Failure to obey the rules will result
in you
being asked to leave. Shallow water.  No diving”.
3.
B8
4.
B9
5.
B12 A sign written in red on the deep end of the pool, and it also
reads
‘
DEEP
END’
.
6.
B13 reads thus:
SPEED
SLIDE
It
shows a figure sliding down on his stomach. A red bold line is drawn
across the picture.
7.
B15
8.
B 16 reads as follows:
“
HOW
TO HAVE FUN AND BE SAFE
Always
enter pool at holding & ride feet first. It also warns ‘Danger
no diving- Shallow pools and cautions
Ride
Feet First Only.”
[26]
Mr Ngwadi testified that on the day in question, he saw the plaintiff
and his family entering the swimming pool. The witness
testified that
he saw the plaintiff going down the slide on his stomach and he
admonished him that that was an incorrect way of
sliding. When the
plaintiff went down the slide, Mr Memani was already on top. The
plaintiff was not injured the first time he
went down on his stomach.
Mr Ngwadi testified that he when he stopped the plaintiff and
admonished him, the plaintiff said ‘
I’m
sorry uncle, I won’t do it again
’.
But, contrary to the undertaking, the plaintiff went down the slide
again and slid like he did in the first occasion, so
testified Mr
Mngadi. According to the witness, on the second occasion the
plaintiff initially sat on the slide, but in the next
moment, Mr
Mngadi heard a booming sound. At that time the plaintiff was already
in the water. He proceeded to the pool and found
the plaintiff lying
with his face in the water. He turned the plaintiff’s head and
found him smiling. Mr Ngwadi told the
court that he asked the
plaintiff if he was alright and he responded and said that he was
fine but was feeling some pain. The witness
asked Ricardo, a fellow
lifeguard to bring a spinal board and the paramedics attended to him
[27]
Cross-examination elicited the following: Mr Ngwadi became a
lifeguard around 2008/2009. The resort opens at 07:00.  Mr

Cerfontein is the superintendent at the facility. During peak season,
the facility does have up to 4000 visitors. The resort does
not open
all year round. It opens for six months in a year. The people who
stand at the top of the slide are permanent employees
but not
lifeguards. The lifeguards patrol the pool area and the pool. It is
not unusual for people to slide down on their stomach
at Mnandi
resort. In fact, every day the witness is on duty, there are people
going down on their stomachs. The witness testified
that when that
happens, he would inform his superintendent, who in turn, would call
law enforcement officers. There are enforcement
problems when some of
the visitors who slide down on their stomach are stopped as the
witness mentioned feeling threatened by gangsters
and those taking
drugs.
[27]
Mr Ngwadi revealed under cross-examination that Mr Memani was working
alone on the top of the slide on 7 January 2011, the
day of the
incident. He further explained that on this day, he came in at 11:30
and a senior lifeguard would then tell him on which
spot he should
stand. After 30 minutes he would rotate and go to the deep side of
the pool. On this day his allocated spot was
next to a rock and is
marked with an X at B69. The witness’s duty at any allocated
spot was to monitor the people and ensure
that those that were coming
down the slide exited the pool. According to Mr Ngwadi, he had been
standing at the spot for approximately
ten minutes when he saw the
plaintiff. He was waiting for the plant operator to switch the slide
on so that he could start to monitor
the people. The slide was
switched on after one of the visitors had asked that it be put on.
It transpired during further
questioning that it was the plaintiff’s
group that had requested that the slide be switched on. According to
Mr Ngwadi, the
plaintiff also approached him and asked that the slide
be switched on.  Mr Ngwadi further revealed that he saw the
plaintiff
and his group as they emerged from the cash office
proceeding towards the lawn. The plaintiff was, according to the
witness in
the company of his girlfriend who was pregnant as well as
two ladies (‘aunties’). Mr Ngwadi told the court that at
the time he noticed the plaintiff, he was getting in by the swimming
pool at 11:30. On their arrival, the plaintiff and his group
chose a
spot under a tree on the lawn and unpacked their clothes.
When
asked as to who is supposed to monitor the people as they come down
the slide, Mr Ngwadi had this to say:
“
I
don’t know whether my answer would be the right one sir. First
thing, he’s the first person to monitor himself. He’s

supposed to be alert to – to be alert of himself that because
our boards, they already saying that there are things which
you
must’nt do, there are things which you must do.”
It
emerged under cross-examination that Mr Ngwadi did not see the
plaintiff sliding down the second time, he only heard the booming

sound.
[28]
Mr Ngwadi was ceaselessly quizzed on the report made to his
supervisor, Mr Cerfontein
,
as well as on the contents of the
statement he made to the police pertaining to the incident. Mr Ngwadi
explained that he told
Mr Cerfontein that before the plaintiff got
injured, he had warned him not to  slide down on his stomach.
The witness confirmed
that he told the police about the incident in
the precise manner in which it took place. The statement Mr Ngwadi
made to the police
reads as follows:
“
On
Friday 2011-01-07 at 14:45 I was on duty at Mnandi Beach doing pool
duties when I saw Shawn  coming down the slide head
first and
dived into the pool. Ricardo Losper was on duty with me and also
witnessed what happened. We knew Shawn had injuries
and stabilised
Shawn while Ricardo ran to fetch the trauma board. Shaun was taken to
our first aid room and waited for the paramedics
to come.”
It
will be recalled that the plaintiff testified that the incident
occurred during his first posting at about 12 noon. He was confronted

with the obvious anomaly in his statement to the effect that it
happened at 14:45. Mr Ngwadi conceded that he made a mistake when
he
stated that it occurred at 12:00. It was pointed out to the witness
that in his statement, he failed to mention when the accident

happened, the plaintiff was getting into the slide for the second
time and that he was admonished not to slide on his stomach.
It was
further suggested to Mr Ngwadi that the version in his statement is
consistent with the plaintiff’s version and inconsistent
with
his (Mr Ngwadi’s) own evidence in chief. The witnesses again
conceded that he made a mistake by omitting to disclose
in his
statement that he did warn the plaintiff about sliding head first.
[29]
Regarding the court’s impression of Mr Ngwadi as a witness, I
must from the outset acknowledge that Mr Ngwadi testified
in English
and it is apparent from his evidence that there was a language
barrier.  However, it must also be said that the
statement he
made to the police differed markedly from the evidence he gave during
the trial. First, Mr Ngwadi failed to disclose
to the police that
when the plaintiff got injured, he had been sliding head first for
the second time.
The
puzzling aspect with Mr Ngwadi’s failure to disclose this is
that it is important to the defendant’s defence as
it
demonstrates that there was effective control of the patrons sliding
on the chute on this day. Mr Memani also failed to mention
in his
statement that the plaintiff went down the slide two times. An
inference that this aspect of Mr Ngwadi’s evidence
is an
afterthought is irresistible.
He
did not tell the police that on the first instance, he had admonished
him not to slide on his stomach.  Similarly,
in
his evidence in chief, Mr Ngwadi appeared confident as he recounted
how thirty minutes after reporting for duty at 11:30 he saw
the
plaintiff and his family arriving and settling at a spot in the
grass. Cross-examination cast serious aspersions on the reliability

of this evidence as Mr Ngwadi was confronted with the evidence that
contradicted his time frame relating to when the plaintiff
was
injured. Despite his concession that he made a mistake, I find it
difficult to understand his evidence that the plaintiff shortly
after
his arrival asked him to open the slide. Where there is a difference
between the
viva
voce
evidence of a witness and his or her statement, it remains the duty
of the trial court to consider these differences, which may
even be
material and its final task is to weigh up the previous statement
against the
viva
voce
evidence, to consider all the evidence and to decide whether the
evidence is reliable or not and whether the truth has been told,

despite any shortcomings.
See
S
v Mafaladiso en Andere
2003
(1) SACR 583
(SCA)
at
593 b - 594 h. I find the shortcomings in Mr Ngwadi’s evidence
quite material as it is difficult to reconcile his version
that when
the plaintiff went down the slide the second time, he observed him to
monitor whether he would slide head first for the
second time.
Strangely, Mr Ngwadi testified that he did not observe the plaintiff
go down the slide, he only heard a big sound
as his head hit the
bottom of the pool. It is my judgment that the inconsistencies and
contradictions in Mr Ngwadi’s evidence
are so material that no
court can place any reliance on his evidence and as such it is
rejected.
[30]
The plaintiff gave his evidence in a clear and consistent manner. He
struck me as being honest because he made concessions
which could
have a damaging effect on his case. For example, he did not try to
hide the fact that he is a risk taker. That is hardly
surprising for
a nineteen year old male person.  He correctly conceded that he
did not pay any attention to his surroundings
and that had he done
so, he would have observed the signs warning him not slide in head
first. It is not difficult to believe him
when he states that had he
been admonished not to slide on his stomach, he would have listened.
After all the evidence,when he
was told not jump in the swimming pool
with his pregnant girlfriend, he stopped. It must be said that he did
try to duck and dive
when it was suggested to him that because he is
a chance taker, he would have slid head first even if he had seen and
observed
the warning signs.  However, this does not detract from
the fact that, overall that  his evidence was truthful.
The
legal principles and evaluation
[31]
As set out in the pleadings, the plaintiff’s claim is based on
delictual liability arising from the alleged wrongful
and negligent
failure by the defendant to take reasonable steps to avoid the
incident, which rendered the plaintiff a complete
quadriplegic.
Wrongfulness
:
In
the pleadings, the plaintiff alleges that the defendant, as the
manager of the resort and in turn the water slide, had a duty
to
ensure that the resort, and in particular the water slide did not
constitute a danger to members of the public utilising it.
Therefore,
the
conduct of the defendant, on which the plaintiff relies relates to an
omission and in the circumstances the existence of a legal
duty to
act depends upon questions of policy and what should reasonably be
expected of the defendant. In this regard Brand JA in
Hawekwa
Youth Camp v Byrne
2010 (6) SA 83
(SCA)
at par 22 stated the following:
“
The
principles regarding wrongful omissions have been formulated by this
Court on a number of occasions in the recent past.
These
principles proceed from the premise that negligent conduct which
manifests itself in the form of a positive act causing physical
harm
to the property or person of another is prima facie wrongful.
By contrast, negligent conduct in the form of an omission
is not
regarded as prima facie wrongful. Its wrongfulness depends on the
existence of a legal duty. The imposition of this legal
duty is a
matter for judicial determination, involving criteria of public and
legal policy consistent with constitutional norms.
In the result, a
negligent omission causing loss will only be regarded as wrongful and
therefore actionable if public or legal
policy considerations require
that such omission, if negligent, should attract legal liability for
the resulting damages (See
Gouda
Boerdery Bk v Transnet
2005
(5) SA 490
(SCA) para 12)”.
The
Supreme Court of Appeal in
Gouda Boerdery BK v Transnet
, supra
at 449E - 500B, on the question of wrongfulness endorsed the Judge a
quo’s formulation of the enquiry, expressed as
follows:
“
I
am of the view that the legal convictions of the community would, in
a case such as the present, expect that if the defendant’s

negligent conduct leads to harm by fire to a neighbour’s
property, such harm should be regarded as having been wrongfully

inflicted, or, put another way, that the defendant should be regarded
as having been subject to a duty not to cause such harm.
In
arriving at this conclusion I particularly bear in mind the fact that
the defendant is a commercial entity, all of whose shares
are held by
the State, and that its purpose is to conduct a commercial rail
operation.  That being the case, and if it can
be shown to have
acted negligently and in a manner to have caused harm, there can be
no reason to excuse it from liability.
In arriving at this
conclusion, I take into account the fact that the net of liability
will not be cast too wide as a plaintiff
still needs to establish
both negligence and causation before it is entitled to succeed.
In
the premises, I hold that the defendant was under a legal duty to the
plaintiff not to negligently cause harm to it, more particularly
by
allowing a fire to spread from its property to that of the
plaintiff.”
(See
Gouda Boerdery Bp v Transnet, supra at 499E- 500B)
In
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA)
at 1055 to 1057, the Supreme Court of Appeal stated that all relevant
factors, which according to the convictions of the community
may be
indicative of a legal duty to act positively, must be considered and
in the era of our new constitutional dispensation these
factors must
be furthermore applied in the light of the spirit, purport and
objects of the bill of rights.  The court further
held that the
legal convictions of the community can even in the absence of prior
conduct place a legal duty on a municipality
to, for instance, warn
against danger.
[31]
Counsel for the plaintiff contended that the defendant, an organ of
state, which is constitutionally accountable, was in control
of a
resort, which held a serious risk to life and limb to visitors which
were allowed as members of the public, including, the
plaintiff, for
a fee, to make use of the recreational facilities at the resort,
which proved to be extremely dangerous.
As such, so
continued the contention that this court should find that the
plaintiff has proved the first leg of the enquiry,
namely
wrongfulness. Furthermore, if the measures that were in place
inadequate, the legal convictions of the community would in
a case
such as the present one, expect if the defendant’s negligent
conduct leads to harm, such should be regarded as having
been
wrongfully inflicted. Counsel for the defendant further argued that
in reply to a list of admissions referred to in terms
or
Rule 37
(4)
en passente, it would appear that it had a legal duty to persons
utilising the waterslide. It follows that if a legal duty
exists,
injuries resulting from an omission to control the dangerous
situation would be
prima
facie
wrongful.
[32]
It is well to recall that the defendant in the pleadings
denies
any allegation that it was responsible or owed a duty of care for
ensuring that the resort and the waterslide did not constitute
any
source of danger to any person. It further refutes any implied
allegation that it owed a duty of care for ensuring that the
resort
and the waterslide did not constitute any source of danger to any
person. Notwithstanding the defendant’s plea, I
am satisfied
that the plaintiff has proven that the defendant
was
in control of the recreational facilities at Mnandi resort, wherein
members of the public, including, the plaintiff, were allowed
for a
fee, to make use of same, which proved to be extremely dangerous. I
therefore hold that the defendant owed the plaintiff
the legal duty
of care. In the light of this finding, the next enquiry should be
whether the defendant took reasonable steps to
prevent the
plaintiff’s injury.
Negligence
[33]
Having found that the element of wrongfulness on the part of the
defendant has been satisfied, the next issue for determination
is
whether the defendant was negligent in failing to ensure that the
plaintiff was not injured when using the water slide.
The
test for negligence has been authoritatively laid down as follows in
Coetzee
Kruger
v Coetzee
1966 (2) SA 428
(A)
at
430
‘
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 his person on property and causing him patrimonial
loss;
and
(ii)
would take reasonable steps to guard against such occurrence; and
(b)
the
defendant failed to take such steps.’
This
test rests on two bases, namely reasonable foreseeability and the
reasonable preventability of damage. (See Jacobs
v
Transnet Ltd t/a Metrorail
2015
(1) SA 139
(SCA)
.
If
the answer to all three questions is in the affirmative then the
defendant is said to have failed to measure up to the standard
of a
reasonable person, and is consequently negligent. I
n
Ngubane
v South African Transport Services
Ngubane
v South African
Transport
Services
1991
(1) SA 756
(A)
at
776E-777C
.
Kumleben
JA, explained the principle as follows:
˝Once it
is established that a reasonable man would have foreseen the
possibility of harm, the question arises whether he would
have taken
measures to prevent the occurrence of the foreseeable harm. The
answer depends on the circumstances of the case. There
are, however,
four basic considerations in each case which influence the reaction
of the reasonable man in a situation posing a
foreseeable risk of
harm to others: (a) the degree or extent of the risk created 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; and (d) the burden
of eliminating the risk of harm.”
“
The
first two considerations are recognised and discussed in the
well-known and oft-quoted passage in Herschel v Mrupe
1954
(3) SA 464
(A)
at 477A-C, which is as follows:
No
doubt there are many cases where once harm is foreseen it must be
obvious to the reasonable man that he ought to take appropriate

avoiding action. But the circumstances may be such that a reasonable
man would foresee the possibility of harm but would nevertheless

consider that the slightness of the chance that the risk would turn
into actual harm, correlated with the probable lack of seriousness
if
it did, would require no precautionary action on his part. Apart from
the cost or difficulty of taking precautions, which may
be a factor
to be considered by the reasonable man, there are two variables, the
seriousness of the harm and the chances of its
happening. If the harm
would probably be serious if it happened the reasonable man would
guard against it unless the chances of
its happening were very
slight. If, on the other hand, the harm, if it happened, would
probably be trivial the reasonable man might
not guard against it
even if the chances of its happening were fair or substantial. An
extensive gradation from remote possibility
to near certainty and
from insignificant inconvenience to deadly harm can, by way of
illustration, be envisaged in relation to
uneven patches and
excavations in or near ways used by other persons.”
[34]
It is clear that the defendant was alive to the fact that sliding
down head first on one’s stomach was dangerous. The
experts
also agree that the slide was not designed for sliding with your head
first and that it was only designed to go down feet
first. Hence, the
defendant erected warning signs. It is for the same reason that after
the incident, the Mnandi resort introduced
amended signs which
clarified the prohibition on sliding down head first. This was an
unequivocal acknowledgement of the dangers
of going down head first.
There can be no doubt that the reasonable possibility of harm
resulting from head first sliding was foreseeable.
On this basis, it
is clear that the defendant foresaw the harm of sliding in head
first. It is my judgment that the first leg of
the test for
negligence, namely, reasonable foreseeability of harm has been
satisfied. The next leg of the test entails an enquiry
into whether
the defendant was obliged to take such precautions as were reasonable
to guard against the eventuality of harm. In
Gouda Boerdery Bk v
Transnet
2005 (5) SA 490
(SCA)
at 500 C-E the concluded thus:
“
Turning
to the question of negligence, there can be no doubt that the
reasonable possibility of a fire in the reserve and of it
spreading
to neighbouring properties was foreseeable. The respondent was
accordingly obliged to take such precautions as were reasonable
to
guard against that eventuality. What those steps would have been
depends on an examination of all the relevant circumstances
and
involves a value judgment which is to be made by balancing various
competing considerations. These have been said to include:
(a)
the
degree or extent of the risk created 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; and (d)
the burden of eliminating the risk of harm.”
In
ZA v Smith 2015(4) SA 574 (SCA)
at para 22 the court further
explained the negligence test thus:
“
As
we know, this leg calls for an enquiry into whether the reasonable
person, in the position of the respondents, would have taken
any
steps to warn and to protect persons in the position of the deceased
against the harm that he eventually suffered. Properly
construed, the
defence raised by the respondents thus seeks to provide the negative
answer to this question, namely, that the reasonable
person would not
have done so, because these dangers would be patently clear and
apparent to those in the position of the deceased.
In consequence,
those in the position of the deceased could reasonably be expected to
protect themselves”……..
At
para 24:
“
As
to the first of these considerations, I think the short answer is
that, in determining what preventative steps the reasonable
person
would or would not take, every case must depend on its own facts. It
follows that if the question were to arise whether
or not the
reasonable person would take measures to warn and protect visitors to
certain areas . . . against the dangers they may
encounter, it could
only be answered with regard to all the facts and circumstances of
that case. Indeed amongst those would be,
for instance, the
proportionality considerations which would require the weighing up
of the prospects of the proposed measures
being successful; the
degree of risk of the harm occurring; the extent of the potential
harm; the costs involved in taking the
preventative measures
proposed”.
In
casu
, the evidence from Mr Ngwadi establishes that
notwithstanding warning signs as well the presence of lifeguards to
monitor the water
slide, patrons continued to slide down head first
on their stomachs. In fact, Mr Ngwadi testified that on certain
occasions, Mr
Cerfontein would engage the services of law enforcement
when things got completely out of hand. This knowledge on the part of
the
defendant shows without a doubt that the defendant more than
foresaw the reasonable possibility of harm to the plaintiff. With
regard to warning signs, it is common cause that there was no sign or
indication at the slide exit that the water in the pool was
shallow
(75 cm). That means that even if the sign that warns against on the
stomach, head first, was prominently displayed, it
is unlikely that
patrons would align such a warning with the shallowness of the water
or with the dangers inherent in diving head
first into a shallow
slide exit. In my judgment, a reasonable person operating the
swimming pool would have realised how shallow
it was and would have
foreseen that it constitutes a serious risk of injury to people going
down head first on the waterslide.
In addition, the defendant ought
to have seen that the measures employed to avert harm on persons such
as the plaintiff were inadequate
or insufficient. This is
particularly so in the light of the evidence of Mr Ngwadi to the
effect that law enforcement had on occasions
been deployed to control
patrons sliding head first.
[35]
The next leg entails considering what steps the defendant ought to
have taken to guard against the foreseeable danger.
[36]
The defendant pleads that it discharged any duty of care owed to the
plaintiff or any such person as introduced measures. In
the matter at
hand, it is clear from the evidence that the steps taken by the
defendant to guard against the materialisation of
the harm were
inadequate. Having accepted the plaintiff’s evidence, it is
clear that he was not warned not go down on his
knees. To answer the
question as to what a reasonable person in the position of the
defendant would have done, the answer is simply
that effective
control by the slide operators is pivotal to preventing the kind of
harm suffered by the plaintiff. It is clear,
that Mr Memani could
have prevented the plaintiff from going down the slide for the second
time. His averment that he admonished
the plaintiff and other patrons
proves that he did not exercise effective control in ensuring that
the patrons abided by the rules.
As argued by counsel for the
plaintiff Mr Dane, loud hailers could also be used to tell patrons
about the dangers of sliding head
first as these are already used to
locate lost children.  As to the warning signs, it is clear that
none of them actually
spells out the dangers of sliding head first
onto a shallow edge of the pool. Clear signs spelling out the dangers
of sliding head
first onto a shallow edge of the pool could also be
effective.
CAUSATION
[37]
I have in this judgment held that the conduct of the defendant is
wrongful and negligent. What must follow is a determination
of
whether but for the defendant’s wrongful and negligent failure
to take reasonable steps that the plaintiff’s injury
and loss
would have ensued. The evidence shows that when the plaintiff
descended head first on the waterslide, he was unaware of
the depth
of the water at the exit. This is so because there was no indication
of such depth. The only indication related to the
pool depth is that
it was 1.2 metres deep. The plaintiff further testified that had he
known that the water at the slide exit was
dangerously shallow, he
would not have slided head first. According to his evidence, he
assumed that the water at the edge of the
slide would measure up to
his chest. He did not notice the warning boards but even he had, he
admitted that he would have descended
on his stomach anyway because
he saw another person doing so. I have already held that the measures
put up by the plaintiff were
ineffective and inadequate. It follows
that but for the defendant’s wrongful and negligent failure to
take reasonable steps,
the harm which befell the plaintiff would not
have occurred. When regard is had to the plaintiff’s evidence
that when he
swam in the pool the water was up to his chest, it makes
sense that he would have thought that the water was at the same level
at the edge of the slide.
[38]
It must be stated from the outset that some of the essential facts in
this trial are not in dispute as can be discerned from
the evidence
tendered. These are that:
38.1.
The plaintiff sustained the injury as a result of going down the
slide operated by the defendant head first.
38.2.
The defendant had displayed two signs prominently on two tall poles
on either side of the steps leading from the entrance
to the main
pool that the pool rules must be followed, that patrons may not run
and dive, and that the pool water is shallow.
38.3.
Another sign was posted near the ladder to the waterslide, signs
specifically informing users to descend the waterslide feet
first,
with one’s back against the slide, and specifically prohibiting
other manners of using the slide such as descending
head first.
38.4.
A further notice was displayed at the top of the waterslide,
informing those using the slide to descend the slide feet first;
38.5.
The defendant had appointed staff, including Mr Memani,  at the
top of the slide to monitor the use of the slide.
38.7.
The plaintiff did not see or pay attention to any of the signs
prohibiting him from sliding down the waterslide head first.
The
expert evidence of Professor Hillman
[39]
In assessing whether the defendant was negligent, I start by
analyzing the evidence of Professor Hillman given that in the

pleadings the plaintiff alleges that:
39.1
the water slide was manufactured and/or erected in such a way that it
would not constitute a danger to persons utilising
the slide.
39.2
the swimming pool into which individuals who utilised the water slide
plunged, would be sufficiently deep  and/or
sufficiently filled
with water so as not to constitute danger to persons utilising the
water slide.
[40]
The principles governing the admission of expert evidence are
restated in
Schneider NO v AA
2010 (5) SA 203
(WCC)
at 211 E
as follows:
“
In
this connection it is necessary to deal with the role of an expert.
In Zeffertt, Paizes, & Skeen The South African Law of
Evidence at
330, the learned authors, citing the English judgment of National
Justice Compania Naviera SA v Prudential Assurance
Co Ltd (The
‘Ikarian Reefer’) [1993] 2 Lloyd’s Rep 68, set out
the duties of an expert witness thus:
‘
1.
Expert evidence presented to the court should be, and should be seen
to be, the independent product of the expert uninfluenced
as to form
or content by the exigencies of litigation.
2.
An expert witness should provide independent assistance to the court
by way of objective, unbiased opinion in matters within
his expertise
. . . . An expert witness should never assume the role of an
advocate.
3.
An expert witness should state the facts or assumptions upon which
his opinion is based. He should not omit to consider material
facts
which could detract from his concluded opinion.
4.
An expert witness should make it clear when a particular question or
issue falls outside his expertise.
5.
If an expert opinion is not properly researched because he considers
that insufficient data is available, then this must be stated
with an
indication that the opinion is no more than a provisional one. In
cases where an expert witness who has prepared a report
could not
assert that the report contained the truth, the whole truth and
nothing but the truth without some qualification, that
qualification
should be stated in the report.’
In
short, an expert comes to court to give the court the benefit of his
or her expertise. Agreed, an expert is called by a particular
party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument of the
particular
party. But that does not absolve the expert from providing the court
with as objective and unbiased opinion, based on
his or her expertise
for the purposes of that particular case. An expert does not assume
the role of an advocate, nor give evidence
which goes beyond the
logic which is dictated by the scientific knowledge which that expert
claims to possess.”
In
Michael
v Linksfield Park Clinic (Pty) Ltd
2001 (3) SA 1188
(SCA)
at [37] the court further explained that a court will accept evidence
of a witness if and when it is satisfied that such opinion
has a
logical basis, in other words that the expert has considered
comparative risks and benefits and has reached ’a defensible

conclusion’. At paragraph 36, the court said that:
“
[36]
That being so, what is required in the evaluation of such evidence is
to determine whether and to what extent their opinions
advanced are
founded on logical reasoning.”
To
recap the evidence, Professor Hillman testified that in assessing the
sufficiency of the water level for the water slide at the
Mnandi
Resort, he had regard to the excerpt pool depth for waterslides and
speed tube and novelty slides in Australia, Canada,
USA and the
research revealed that most require a minimum depth of 1.2 metres and
some 0.9 metres. He concluded that the relationship
between water
depth and retardation dictates that had the exit pool at Mnandi been
of a similar depth to the others in the area,
then the plaintiff
would not have sustained an injury, even in the unlikely event that
he still managed to strike his head on the
bottom of the pool. Both
experts agree that water slide at Mnandi resort is not safe for head
first descent.
[41]
As correctly submitted by Mr Butler, It is clear from the evidence
that Professor Hillman’s reference to the depths at
other
comparative slides constitutes unmitigated hearsay evidence as he
also admitted during cross-examination that he had not
conducted
those investigations. Similarly, Professor Hillman’s reference
to photographs of waterslides in Durban must be
disregarded as he
conceded that he did not visit Durban, neither did he take
photographs of the waterslide. It is so that hearsay
evidence remains
hearsay, even if proffered by an expert witness, unless it is proved
in the ordinary manner, it therefore remains
inadmissible. In
Holtzhauzen v Roodt
1997 (4) SA 766
(W)
Satchwell J stated
thus:
“
Experts
are frequently called in to assist our Courts. The relevant
principles applicable to the admissibility of expert opinion
evidence
in this particular case appear to me to be as follows:
…………
.Fourth,
the facts upon which the expert opinion is based must be proved by
admissible evidence. These facts are either within the
personal
knowledge of the expert or on the basis of facts proved by others.”
Flowing
from the aforegoing, it must be accepted that the evidence of
Professor Hillman relating to the steps that the defendant
could have
taken to implement access control to the water slide must be
disregarded as Professor Hillman is not an expert on the
subject and
neither did he conduct an investigation into the feasibility of any
of those systems and his opinion was, merely based
on his being a DIY
enthusiast.
[42]
Again, as rightly pointed out by Mr Butler, there is yet another
level at which the evidence of Professor Hillman must be disregarded.

One of the issues for determination by this court is whether there
were other steps the defendant could have taken or ought to
have
taken to avert the harm to the plaintiff. Professor Hillman’s
evidence relating to the installation of access control
and the
attendant costs constitutes an opinion on the general merits of the
case, and usurps the function of the court whose duty
is to
ultimately decide what steps ought to have been taken by the
defendant to prevent harm to the plaintiff.
[43]
The question is whether the rest of the evidence of Professor Hillman
is capable of withstanding logical analysis to render
it reasonable.
Mr Butler lamented the fact that Professor Hillman’s brief did
not include the extent to which the plaintiff’s
breaststroke
manouvre
may have, to a large extent contributed to his demise. This becomes
particularly important when regard is had to the fact that
the
plaintiff himself testified that one other person slide head first
but there is no evidence that that person was injured. I
am not of
the view that the failure to investigate the impact of the
plaintiff’s breaststroke movement taints the evidence
of
Professor Hillman in any way. This I say because Professor Hillman
explained that, that would constitute a variable and
that most
of the time a valuation in one value will be cancelled by a variation
in another value. But it is clear from Professor
Hillman’s
evidence that the orientation of the plaintiff’s head and the
action he took with his arms caused him to
manage to penetrate the
surface of the water as soon as he exited the slide thereby directing
himself down to the bottom of the
pool. Logically, if he hit the edge
of the pool earlier than he would have had, but for the breaststroke
movement, it follows that
the movement also had a direct impact on
the injury he sustained, albeit uncalculated.  Inasmuch as I
have rejected certain
aspects of Professor Hillman’s evidence,
it must be said that he, otherwise gave his evidence in a clear and
straight forward
manner and I did not get the impression that he was
at all costs advancing the plaintiff’s case. Professor Hillman
made concessions
when that was called for and generally gave a
credible and logical account of his opinion.
[44]
Counsel for the respondent argued that it is debatable whether the
facility would have been safe at a depth of 90cm. According
to the
argument, this is particularly so because the plaintiff entered the
slide with his head down and deliberately propelled
himself under the
water with a breast stroke motion. However, I consider the following
aspects of Professor Hillman’s opinions
as specifically
acceptable, because it is in my view these are not only reasonable,
but also logical:
“
1.
That an inspection of the launch area at the stop of the slide
revealed that there is nothing to prevent riders adopting whatever

position they chose at launch should they either ignore or fail to
note the warning posters and instructions of the attendant on
duty to
adopt a ’feet first’ orientation only.as admissible as it
is, in my view, based on upon logic.
2.
The above calls for some form of control at the access point to the
slide chute that will prevent a user from attempting to ride
down in
any such fashion.
3.
The relationship between water depth and retardation dictates that
had the exit pool at Mnandi been of a similar depth to the
others in
the area, then the plaintiff would not have sustained an injury, even
in the unlikely event that he still managed to
strike his head on the
bottom of the pool.
4.
Even if the pool had complied with the recommended minimum
international standards of 0.9 depth for water slides, it would not

necessarily have prevented contact between the plaintiff’s head
and the bottom of the pool, but it would likely have been
sufficient
to reduce the impact speed to a level that would not have caused any
serious injuries.
5.
That both Professor Hillman and the defendant’s expert Mr
Rozowsky, agree in the joint minute that an increase in the depth
of
the exit pool to 1.2m would have substantially reduced the severity
of the impact between the Plaintiff’s head and the
bottom of
the pool.
6.
The plaintiff’s ‘breaststroke manouvre’ according
caused him to penetrate the surface of the water as soon
as he exited
the slide.
This
I say notwithstanding the fact that according to the defendant, the
witness’s computation is uncertain”.
The
probative value of the hearsay evidence of Mr Memani
[45]
It will be recalled that the statement of Mr Memani who is deceased
was accepted as having sufficient probative value to qualify
it for
consideration and then to analyse it to see whether it has sufficient
cogency to warrant acceptance. (See
Mnyama
v Gxalaba
1990 (1) SA 650
(C) at 653 H).  Mr Memani said in his statement
that he explained to the plaintiff and several other persons that
they were
not permitted to go down the slide, head first. It is easy
to discern from Mr Memani’s statement how pivotal his oral
evidence
would have been in these proceedings. I think that it is
important to recap the law governing the reception of hearsay
evidence.
The
reception of hearsay evidence is regulated by
s 3(1)
of the
Law of
Evidence Amendment Act 45 of 1988
. The section provides as follows:
‘
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence in criminal proceedingsor civil

proceedings, unless -
(a)
each
party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b)
the
person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
(c)
the
court, having regard to -
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account, is of the opinion that such evidence should
be admitted
in the interests of justice”.
It
has long been acknowledged that the acceptance of and reliance upon
hearsay evidence restricts the trier of fact of observing
the
witness’ demeanour. This acknowledgement is captured in
Johnson
v Road Accident Fund
2001 (1) SA 307
(C)
at 310H as follows:
“
What
a witness is alleged to have told someone else leaves room for
misstatements, misunderstandings and misconstructions. The statement,

however carefully drafted, can never be as reliable as listening to
the ipsissima verbaof the witness himself. Signing or otherwise

confirming the content of a previous statement does not remove the
inherent deficiencies of the hearsay nature of the evidence
and all
its inherent faults. The best test of the accuracy and truth of what
a witness says lies in an independent assessment of
his actually
spoken words. It lies in the Court’s ability to listen to his
words and to observe his demeanour. It lies in
the Court’s
ability to observe and note any degree of hesitancy or uncertainty
which may or may not attend upon a concession
by the witness or his
affirmation of a given fact. Ultimately this Court is a trier of
facts of the case…..”
In
Mnyama
,
supra
, at 654 A, the court offered the
following guidelines to assess the cogency of hearsay evidence:
“
A
court should ideally be in a position to establish as closely as
possible the mood of the speaker, the interests he was attempting
to
serve, and any reason he might have had for concealing his true
sentiments from the witness or for exaggerating them and this
is very
difficult when one is examining not the speaker himself but only an
account of what he is supposed to have said. Moreover,
oral
statements are notoriously difficult to fully comprehend and to
recall and reproduce adequately. The smallest change of inflection
or
nuance could change their meaning and words uttered in casual
conversation are particular vulnerable to these defects. ‘Talk

is cheap’ is an old adage which, I think, is as apt to hearsay
evidence as it is to unkept promises. Fabrication of hearsay
evidence
is always a danger. So is the danger innocent misreporting.’
[46]
In assessing the cogency of Mr Memani’s statement, I accept
that very little weight can be attached to it given that
it has
neither been tested by cross-examination, nor has the court had the
opportunity to assess his reliability and credibility
as a witness.
Mr Memani’s statement must be tested against the evidence of
the plaintiff and Mr Ngwadi. In trying to locate
the mood of Mr
Memani and the interests that he was attempting to serve, I must
recount the evidence of Mr Ngwadi relating to the
mood that was
prevailing when he went to the police station with Ricardo to make a
statement. He testified thus:
“
And
you went to the police station to what?
To
testify or to talk or to say what did happen over there because we
were supposed to give the statement, sir, of what did happen
that day
I – it was another thing, sir which was happening in that pool
that day according to this plaintiff incident. So
then everything was
happening so fast, after – after this incident happened because
every – even – even the parents,
if they were parents,
the first thing which they, if I still remember well, the first thing
which they did, they put the lifeguards
wrong. They put us wrong, in
the position which is wrong because that- the plaintiff already got
the incident and then it’s
like, . . . I won’t say they
were drunk but it’s like the way it was happening because this
field, this is the field,
this is the field which we put the
plaintiff that time we finish to dress him. They talk Afrikaans, they
talk English, but I can
hear they are accusing the lifeguards. I
don’t know which the accused us because I‘ve already to
you, you come down
by the slide in a right way, at the end in a wrong
way. I can’t stop you.’
It
is clear from the aforegoing that blame for the plaintiff’s
demise was laid squarely on the doorstep of the lifeguards
and Mr
Memani as a slide operator. In my view, it is therefore  hardly
surprising that in making their statements to the police,
the
lifeguards and Mr Memani would exonerate themselves. In my view,
self-preservation was the primary motive for making the statements
to
the police. I am fortified in this view by the fact that their
statements provide no more than a denial of the responsibility
for
the plaintiff’s injury. I have already found the evidence of Mr
Ngwadi relating to how the plaintiff was injured to be
unreliable. As
correctly contended by Mr Dane, Mr Memani’s statement is
unconvincing. Indeed, if the plaintiff had gone head
first on the
first occasion as testified to Mr Ngwadi, Mr Memani ought to have
observed when he went back onto the slide for the
second time. His
statement does not to this end corroborate Mr Ngwadi. I am inclined
to believe that, if that version is true,
he was mindful of the fact
that he should not have him back onto the slide the second time. It
defies logic why Mr Memani did not
prevent the plaintiff from doing
so, seeing that he had already defied Mr Ngwadi’s instructions
and he (Mr Memani) controlled
the access to the slide. After all, it
is the evidence of Mr Ngwadi that the plaintiff was going onto to the
slide head first for
the second time when he got injured. For all
these reasons, I find myself unable to place any reliance on the
statement made by
Mr Memani.
Voluntary
assumption of risk
[47]
The defendant pleads that the two prominent signs were placed next to
the waterslide informing users not to descend head first
and the
plaintiff had been specifically warned against running and doing
tricks on the slide, but he nonetheless descended head
first on the
slide. In so doing, so pleads the defendant, the plaintiff knowingly
and voluntarily assumed the risk of injury to
himself. Stated
differently, the plaintiff assented to the risk or injury inherent or
associated with the use of the water slide.
Neethling,
Potgieter en Visser
,
Law of Delict, 5
th
ed, page 92-94 outline the requirements for valid consent to the risk
of harm constitutes a ground of justification as the following:
1.
The
consent must be given freely and voluntarily;
2.
The
person giving consent must be capable of volition;
3.
The
consenting person must have full knowledge of the nature and extent
of the risk of possible prejudice;
4.
The
consenting party must also comprehend and understand the nature and
extent of the harm or risk;
5.
The
person consenting must in fact subjectively consent to the
prejudicial act. This consent has to be inferred from the proven

facts; and
6.
The
consent must be permitted by the legal order; in other words, the
consent must not be contra bonis mores.
7.
The
requirements for this defence are further explained in Santam
Insurance Co Ltd v Vorster 1973(4) SA 464(A ) at 781:
“
I
am . . . of opinion that, if it be shown that, in addition to
knowledge and appreciation of the danger, the claimant foresaw the

risk of injury to himself, that will ordinarily suffice to establish
the consent required . . ., provided always that the particular
risk
which culminated in his injuries falls within the ambit of the thus
foreseen risk. The inherent difficulty that the central
factum
probanda viz, the consent to the particular risk which occasioned the
supervening injuries – is basically a subjective
enquiry, can,
I suggest, be only be bridged by way of inference from the proved
facts. In the nature of things direct evidence
will seldom, if ever,
be available, and manifestly the negative ipse dixit of the claimant
himself can by itself carry but little
weight. The Court must, in my
view, thus perforce resort first to an objective assessment of the
relevant facts in order to determine
what, in the premises, may
fairly be said to have been the inherent risks of the particular
hazardous activity under consideration.
Thereafter the Court must
proceed to make a factual finding upon the vital question as to
whether or not the claimant must, despite
his probable protestations
to the contrary have foreseen the particular risk which later
eventuated and caused his injuries, and
is accordingly to be held to
have consented thereto.”
The
court in
Maartens v Pope 1992(4) SA 883 (NPD)
at 888 C-E
expatiated on these words thus:
“
The
question is not, one notices, whether the claimant should have
foreseen the risk. It is whether he must have foreseen the risk,
and
therefore in fact foresaw it. The judgment did not analyse how
strongly innately had to be before it entered the reckoning.
The
prospect of its eventuation which counts can hardly be limited to one
so great that the risk gets turned into a virtual certainty.
The very
notion belies the thought, as Van Winsen J reminded us in Rosseau v
Viljoen
1970 (3) SA 415
(C ) when he remarked (at 420 G)
‘
(T)he
fact that  . . . an occurrence is unlikely to happen does not
mean that there is no risk of it happening.’
Nor,
it surely stands to reason, does account need to be taken of a risk
so remote at the other extreme, of a risk so like the kinds
which few
human activities are free altogether that only a nervous pessimist
would think it amounted to such. Between those poles,
however, the
concept does not lend itself to calibration. No more definite a
generalization will do there, it seems to me, than
this. What must
emerge is not merely a fanciful or abstract risk, but a real one
inherent in the situation.”
[48]
The defendant must therefore prove on a balance of probabilities that
the plaintiff had the knowledge and appreciation of the
risk inherent
in sliding head first to a shallow edge of the pool. The plaintiff
obviously protests that he had no such knowledge,
and in the result,
there was no danger to foresee and nonetheless act contrary to such
foresight. In a nutshell, the plaintiff
says that he could not have
consented to the injury. According to his evidence, he slid only once
on his stomach and was injured.
Mr Memani did not advise him that he
was not allowed to slide head first and if he had, he would have
heeded the warning. The plaintiff
testified that it was not his first
time to go on a slide. He had slid in three other resorts without
injuries. It is for this
reason that he assumed that he could do so
at Mnandi Resort. Besides, he had seen one person doing it. This
aspect of the plaintiff’s
evidence is corroborated by Mr Ngwadi
when he stated that it was a usual occurrence for people to defy
instructions and notices
and slide head first. Mr Ngwadi further
testified that they would report the recalcitrant sliders to Mr
Cerfontein, who in turn
would summon law enforcement officers.
[49]
The crux of the defendant’s argument is that the plaintiff
failed to have regard to the warning signs which were visibly

displayed. The plaintiff on the other hand contends that even if the
warning signs were visible and or prominent, this does not
absolve
the plaintiff from its duties. Furthermore, so goes the contention,
the defendant’s sole witness, Mr Ngwadi testified
that
notwithstanding the signs and warnings, people continued on a regular
basis to slide head first. Therefore, having regard
to the evidence,
the defendant ought to have foreseen that the signs were ineffective.
The plaintiff testified that even if there
signs prohibiting sliding
head first, he did not see or pay attention to them. There is no
evidence to counter the plaintiff’s
assertions. That he stated
that as a nineteen year old lad even if he had seen the warning
signs, he might have chosen to take
the risk cannot and should not be
elevated to knowledge and appreciation in these circumstances. I am
not convinced that the plaintiff’s
youthful penchant for risk
taking should absolve the defendant. The defendant ought to have
reasonably foreseen that members of
the public might slide on their
stomachs despite the warnings. The defendant in my view ought to have
taken effective precautions
to avert the potential danger. It
therefore is my judgment that the defendant has not proved the
volens
defence. In my view, no sufficient warrant exists to find that the
defence has been made out.
The
Exemption Clause
[50]
I have already indicated that the defendant pleads that the plaintiff
on entering the resort was faced by two prominent signs
wherein
visitors were advised that they would enter the resort at their own
risk and that they agreed thereto by entering the resort.
The notice
reads thus:
“
PLEASE
NOTE/LET WEL
Take
care – all facilities are used at your own risk.
Wees
asseblief versigtig – alle geriewe word op eie risiko gebruik”
The
second notice reads as follows:
“
The
right of admission is reserved.
All
facilities are used at your own risk and the Council accepts no
liability whatsoever for the loss of any article from these

premises.”
The
question to be answered is whether the plaintiff, in law, taken to
have agreed to the terms contained in the notice. In essence
the
defendant is relying on the quasi-mutual assent document. The
application of the principle is explained in
Naidoo v Birchwood
Hotel
2012 (6) SA 170
(GSJ)
:
“
In
order to rely on quasi-mutual consent, a party has to demonstrate
that it took reasonably sufficient steps to bring these terms
to the
notice of the other party and it was therefore entitled to assume
that by his conduct in going ahead, notwithstanding the
disclaimer,
the other party had assented to the terms thereof. This is the
doctrine applicable in the so-called ticket cases where
the terms and
conditions are to be found on the tickets. The purchase is assumed to
have assented to the conditions once he or
she purchases a ticket.”
Counsel
for the defendant submitted that facts of the matter at hand stands
on all fours with facts in
Durban’s Water Wonderland v Botha
and Another
1999 (1) SA 982
(SCA)
where the court reasoned
and said the following:
“
The
principles applicable to the so-called “ticket cases”
apply mutatis mutandis to cases such as the present where
the
reliance is placed on the display of a notice containing terms
relating to a contract . . . . Had Mrs Botha read and accepted
the
terms of the notices in question there would have been actual
consensus and both she and Mariska’s Guardian, on whose
behalf
she also contracted, would have been bound by those terms. Had she
seen one of the notices, realised that it contained conditions

relating to the use of the amenities but not bothered to read it,
there would similarly have been actual consensus on the basis
that
she would have agreed to be bound by those terms, whatever they may
have been. . . . The evidence, however, did not go that
far. Mrs
Botha conceded that she was aware that there were notices of the kind
in question at amusement parks but did not admit
to having actually
seen any of the notices at the Appellant’s Park on the evening
concerned, or for that matter at any other
time. In these
circumstances, the appellant was obliged to establish that the
respondents were bound by the terms of the disclaimer
on the basis of
quasi-mutual assent. This involves an inquiry whether the appellant
reasonably entitled to assume from Mrs Botha’s
conduct in going
ahead and purchasing a ticket that she had assented to the terms of
the disclaimer or was prepared to be bound
by them without reading
them. . . The answer depends upon whether in all the circumstances
the appellant did what was “reasonably
sufficient” to
give patrons notice of the disclaimer. . . . I have previously
described the notices containing the disclaimer
and their location.
From that description it is apparent that they were prominently
displayed at a place where one would ordinarily
expect to find any
notice containing terms governing the contract entered into by the
purchase of a ticket, viz at the ticket office.
Any reasonable person
approaching the office in order to purchase a ticket could hardly
have failed to observe the notices with
their bold-white painted
border on either side of the cashier’s window.”
Counsel
for the defendant urged the court to adopt this reasoning and apply
it on the facts of this case.
[51]
The evidence is uncontested that the signs referred to above were
prominently displayed at the entrance of the resort and next
to the
ticket sales, what remains to be determined is whether the language
of the disclaimer exempts the proferens from liability.
In
Durban’s
Waterland
at 989 H-I, supra, the court outlined the proper
approach to the construction of a disclaimer and stated the
following:
‘
The
correct approach is well-established. If the language of a disclaimer
or exemption clause is such that it exempts the proferens
from
liability in express and unambiguous terms, effect must be given to
that meaning. If there is ambiguity, the language must
be construed
against the proferens………. But the alternative
meaning upon which reliance is placed to demonstrate
the ambiguity
must be one to which the language is fairly susceptible; it must not
be “fanciful” or “remote”.’
When
one has regard to the disclaimer in the present matter, it is
difficult to fathom with precision the risk that the defendant
is
referring to in the disclaimer notice. This I say because one finds
some form of qualification of the risk where it states that
the
defendant accepts no liability or risk of lost articles. In my view
the disclaimer in the present case is not a model of clarity
in that
it makes no reference to injury at all. An example of a clear
disclaimer is found in
Naidoo
v
Birchwood
Hotel
,
supra
, and reads thus:
“
The
guest hereby agrees on behalf of himself and the members of his party
that it is a condition of his/their occupation of the
Hotel that the
Hotel shall not be responsible for any injury to, or death of, any
person or the loss or destruction of or damage
to any property on the
premises, whether arising from fire, theft or any cause, and by
whomsoever caused or arising from the negligence
(gross or otherwise)
or wrongful acts of any person in the employment of the Hotel.”
Similarly,
the notice in
Swinburne v Newbee Investments (Pty) Ltd
2010 (5) SA
296
(KZD)
contains clear terms of the disclaimer and reads thus:
“
26
The LESSOR shall not be responsible or liable to the LESSEE, his
family, friend, servant or guests for loss sustained by any
of them
as a result of theft, burglary, or fire on the PREMISES or in or
about the building or for any damage suffered as a result
of any any
negligent act or omission on the part of the LESSOR, and/or its
I  agent/s and/or its caretaker and/or
other employees or as a
result of any state of disrepair, defect or flaw in or failure,
non-functioning or breakage of the PREMISES
or the building, in which
the PREMISES are situate, or any fittings, or in any fixtures,
appliances or lifts therein. . . .”
In
my view, given the far-reaching consequences and magnitude of the
disclaimer in the present case, it was imperative on the part
of the
defendant to make specific reference to injuries sustained in the
course of the visit. Otherwise, this court cannot assume
that had the
plaintiff read the notice, he might have understood the word “risk”
to pertain to injuries he might sustain
as a result of partaking in
the amenities at Mnandi resort.  I am fortified in my view in
paragraph 25 of
Swinburne v Newbee
, which reads as follows:
“
On
the same point Lewis AJA said:
There does
not, therefore, appear to be any clear authority for a general
principle that exemption clauses should be construed differently
from
other provisions in the contract. But that does not mean that courts
are not, or should not be, wary of contractual exclusions,
since they
do deprive parties of rights that they would otherwise have had at
common law. In the absence of legislation regulating
unfair contract
terms, and where a provision does not offend public policy
considerations of good faith, a careful construction
of the contract
itself should ensure the protection of the party whose rights have
been limited, but also give effect to the principle
that the other
party should be able to protect himself or herself against liability
insofar as it is legally permissible. The very
fact, however, that an
exclusion clause limits ousts common law rights should make a court
consider with great care the meaning
of the clause, especially if it
is very general in its application...”
I
emphasise that I find it difficult to conclude that the word “risk”
includes harm arising from personal injury in
the circumstances of
the present matter.  It is noteworthy that the notice in
Durban’s Water Walk Wonderland
case was to the following
effect:
“
The
amenities which we provide at our amusement park have been designed
and constructed to the best of our ability for your enjoyment
and
safety. Nevertheless we regret that the management, its servants and
agents, must stipulate that they are absolutely unable
to accept
liability or responsibility for injury or damage of any nature
whatsoever whether arising from negligence or any other
cause
howsoever which is suffered by any person who enters the premises
and/or uses the amenities provided.”
Again,
it is clear from the notice that the risk pertains to damage and/or
injury sustained in the course of the enjoyment of the
amenities
offered by the
Durban’s
Water Wonderland.
In the matter at hand, and as I said, it is difficult to locate and
define the ambit of the word “risk”, in the result
that
the notice is in my judgment, ambiguous.  This is such a case
where the ambiguity in the disclaimer notice must be interpreted

against the proferens. (See
Durban’s
Water Wonderland (Pty)
,
supra).
I
n
the result, the defendant has failed to prove that the plaintiff
accepted any risk of injury to himself.
[52]
The second leg of the plaintiff’s argument is that the
disclaimer notice falls foul of public policy and the Constitution.

According to the plaintiff, an unjustified limitation on the right to
seek judicial redress, or a denial of such a right, is prima
facie a
breach of Section 34 of the Constitution, namely the right to access
the courts. It is so that in
Barkhuizen
v Napier
[2007] ZACC 5
;
2007
(5) SA 323
(CC).
Ngcobo
J stated that when challenging a contractual term, the question of
public policy inevitably arises. But this was no longer
difficult to
determine because:
“
Public
policy represents the legal convictions of the community; it
represents those values that are held most dear by the society.

Determining the content of public policy was once fraught with
difficulties. That is no longer the case. Since the advent of our

constitutional democracy, public policy is now deeply rooted in our
Constitution and the values that underlie it……….human

dignity, the achievement of equality and the advancement of human
rights and freedoms……as given expression by the

provisions of the Bill of Rights. Thus a term in a contract that is
inimical to the values enshrined in our Constitution is contrary
to
public policy and is, therefore, unenforceable.”
The
first question to be considered in such circumstances was whether the
clause itself was objectively unreasonable, and the second
question
was, if it were found to be reasonable, then should it be enforced in
the circumstances. Given that I have already found
that the ambiguity
in the disclaimer notice must be interpreted against the proferens, I
deem it unnecessary to make a determination
on the grounds of public
policy.
Conclusion
Apportionment
of Damages
[53]
It is well to recall that the defendant pleads that in the event of
it being found that the defendant was negligent in any
respect, the
plaintiff’s damages were not solely caused by the plaintiff’s
conduct and the defendant’s negligence
contributed to the
plaintiff’s damages, the defendant pleads that the plaintiff’s
injury and damages were cause caused
partly by the fault of the
plaintiff, whose conduct was reckless and or negligent as set out
above. Section 1(1) (a) of the Apportionment
of Damages Act 34 of
1956 provides as follows:
“
Where
any person suffers damage which is caused partly by his own fault and
partly by the fault of any other person, a claim in
respect of that
damage shall not be defeated by reason of the fault of the claimant
but the damages recoverable in respect thereof
shall be reduced by
the court to such extent as the court may deem just and equitable
having regard to the degree in which the
claimant was at fault in
relation to the damage.”
It
follows that this court must make a factual determination of the
degree of fault, if any, attributable to the plaintiff.
Counsel
for the respondent submitted the following circumstances which assist
in the factual determination:
1.
The
plaintiff deliberately ignored warning signs;
2.
His
decision to slide on his stomach was unreasonable as it was based on
previous experiences at other water slides.
3.
His
conduct was motivated by seeing one other person descend head first.
4.
He
is a self-confessed chance taker, and even if he had read the
warnings, he might or might not have obeyed them.
According
to the defendant, all the evidence points towards the plaintiff being
reckless and having no concern for the consequences
of his actions.
He displayed an intent to take risk despite the obvious warnings.
[54]
I am not of the view that the plaintiff’s concession to the
effect that even if he had read the signs he might or might
not have
taken the risk. I find his averments to this effect consistent with
the exuberance of youth. Equally, I am not convinced
that the
plaintiff’s execution of the exaggerated breast stroke movement
whilst exiting the waterslide to make himself descend
deeper into the
water had any particular significance in the manner in which he
sustained the injury. It is so that it is one of
the variables but
there is no direct evidence as what extent that might have
facilitated the occurrence of the accident. The defendant
passed an
opportunity to present evidence of a correlation between the
plaintiff’s breaststroke movement and its effect on
the injury.
That said, it is clear that part of the blameworthiness must be
attributable to the plaintiff.
[55]
The defendant on the other hand has been found negligent in more than
one way. Firstly, the defendant failed to ensure that
the water slide
was be monitored by employees and/or lifeguards in order to prevent
the water slide constituting a source of danger
to persons utilising
such water slide. It has been abundantly established through the
evidence of Mr Ngwadi that the defendant
was very much alive to the
fact that patrons were descending on the water slide head first. In
spite of this knowledge, the defendant
failed to implement effective
measures to prevent the slide from constituting a danger to people.
Secondly, the defendant and/or
its servants acting as such, failed to
ensure that there was sufficient water in the swimming pool so that
when the plaintiff who
entered the swimming pool after sliding down
the water slide he was not injured by hitting the bottom and/or side
of the pool.
The plaintiff’s uncontroverted evidence is that he
was not aware that the water was shallow on the side of the pool
wherein
he slided. Furthermore, the plaintiff specifically testified
that had he had this knowledge, he would not have descended the slide

in the manner in which he did. The plaintiff’s version to this
end is supported by the fact that the depth of the water inside
the
pool was indicated at 1.2m, whereas there was no indication of the
depth of the water at the exit slide. However, the plaintiff’s

appetite for risk caused him to enter the slide head first without
considering the consequences and in complete disregard of signs

prohibiting same. All of the above is clear from evaluation of the
evidence. An apportionment of 60% to 40% in favour of the plaintiff

is in my view reasonable under the circumstances.
CONCLUSION
[56]
In
conclusion, the harm of the plaintiff hitting his head on the edge of
a shallow pool was reasonably foreseeable. The evidence,
establishes
unequivocally that the defendant was aware of the fact that visitors
were frequently sliding on their stomachs to the
shallow edge of the
pool.  The defendant failed to take adequate reasonable steps to
prevent the materialisation of the harm,
namely by ensuring that the
water levels at the edge of the pool were within the safe and
acceptable limit. Had the defendant ensured
that the level of the
water above .75m, the injury sustained by the plaintiff would not
have occurred at all, if it did, it would
have been greatly
mitigated. There is a yet another leg in respect of which the
defendant foresaw harm and yet failed to take reasonable
steps.
Whereas the defendant was acutely aware of the dangers of sliding
head first in that it had put up warning sings, its employees

monitoring the slide, failed to take reasonable steps to ensure that
the plaintiff did not slide head first. On the uncontested
evidence,
this simple precautionary measure would have averted the accident
altogether. In the circumstances, the respondent is
liable for the
injury sustained by the plaintiff
.
[57]
ORDER
The
following order is issued:
1.
The
defendant is liable for sixty percent (60%) of such damages as the
plaintiff may prove to have sustained in the accident that
occurred
on 7 January 2011.
2.
The
defendant is ordered to pay the plaintiffs’ costs of suit
,
inclusive of the costs of two counsels.
________________
NDITA,
J