City of Cape Town v Rhoode (A314/2017) [2018] ZAWCHC 49 (17 April 2018)

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[2018] ZAWCHC 49
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City of Cape Town v Rhoode (A314/2017) [2018] ZAWCHC 49 (17 April 2018)

THE
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION, CAPE
TOWN)
Case
No:  A314/2017
Before the Hon. Mr
Justice Bozalek, the Hon Mr Justice Samela and the Hon. Mr Justice
Wille
Hearing:  29 –
30 January 2018
Judgment Delivered:
17 April 2018
In
the matter between:
THE
CITY OF CAPE
TOWN
Appellant
and
SHAUN
RHOODE
Respondent
JUDGMENT
BOZALEK
J
[1]
This
is an appeal with the leave of the Court
a
quo
against an order that the appellant, the City of Cape Town, is liable
for 60% of such damages as the respondent may prove arising
out of
injuries which he sustained on 7 January 2011 when he used a water
slide owned and operated by the appellant at the Mnandi
Resort,
Mitchells Plain. After descending down the water slide head first the
respondent struck the bottom of the pool with the
crown of his head
sustaining a spinal injury which rendered him a quadriplegic.
The
pleadings and the issues
[2]
The
respondent sued the appellant in delict alleging that the appellant
owed, the public in general and him in particular, a duty
to ensure:
1.
that
the water slide was manufactured and/or erected in such a manner that
it would not constitute a source of danger to persons
utilising it;
2.
that
the water slide would be monitored by employees and/or lifeguards in
order to prevent it constituting a source of dangers to
its users;
3.
that
the swimming pool into which water sliders plunged would be
sufficiently deep or filled with water so as not to constitute
a
source of danger to users; and
4.
that
users of the slide would do so in such a way that they would not be
at risk of injury.
[3]
In
its plea, the appellant denied that its conduct had in any way been
wrongful, as alleged, or that it had been causally negligent.
It also
raised certain special defences, namely:
1.
that
the respondent agreed to exempt the appellant from liability;
2.
that
the respondent, through his conduct, voluntarily assumed the risk of
injury to himself; and
3.
contributory
negligence.
[4]
The
issue of liability was separated from that of quantum in terms of
rule 33(4) of the Uniform Rules of Court and was determined
first. It
is against the order made by the Court
a
quo
at the conclusion of the hearing relating to the merits, together
with a costs order in favour of the respondent, that the appellant

now appeals.
[5]
The
respondent gave evidence on his own behalf in the trial and also led
the evidence of an expert, Professor J Hillman. The respondent
placed
the evidence of a lifeguard who was on duty on the day in question,
Mr L Ngwandi, before the court. Also admitted into evidence
was a
sworn statement by another employee of the appellant who was on duty
that day, Mr Memani, but who had passed away by the
time of the
trial.
[6]
The
evidence of the witnesses is set out in some detail in the judgment
of the Court
a
quo
and I shall not repeat it save where it is necessary for a
determination of the issues on appeal. A brief summary of the facts

at this stage is, however, appropriate. At the time of the incident
the respondent was 19 years of age and this was the first occasion
on
which he had visited Mnandi Resort (‘the resort’). After
spending several hours in the company of the party with
which he
arrived he decided to use the water slide (‘the slide’).
The slide comprises a wooden structure some 8.4 metres
in height from
which twin chutes, some 31.3 metres in length, lubricated by water,
descend into the pool. Persons wishing to use
the slide ascend stairs
to the top of the structure where an employee of the respondent
operates a plank or boom to ensure that
not more than one person at a
time uses each of the two chutes. At various points on the grounds of
the resort, in some cases near
the slide, are signs erected by the
appellant stipulating the manner in which it is to be used. At the
top of the structure, on
a pole between the two chutes, was a further
such sign. It was common cause that the respondent had been aware of
the presence
of these signs but had not troubled to read their
contents.
[7]
The
respondent testified that he had decided to descend the slide head
first. He had previously used similar slides at other facilities
in
the Cape Town area and had descended head first without any
difficulties. On the day in question he also witnessed one other

person descend head first before he did so but he had been unaware
that the water into which he would plunge was only 0.75 metres
deep.
Before sliding down the chute he had positioned himself at its
starting point on his knees with his buttocks on his heels.
In this
position he had received the go ahead from Mr Memani, the appellant’s
employee who was stationed at the top of the
slide structure and who
was supervising its use from that vantage point. When he entered the
water from the chute he had performed
some kind of breaststroke
manoeuvre with his arms in order to ‘
go
deeper’
.
[8]
Mr
Ngwandi testified that he was performing lifeguard duties at the
relevant time and was positioned at a rock near the point where
water
sliders exited into the pool. At the time of the incident his
attention had been drawn to the unusual noise made when the

respondent entered the water and by his failure to surface in the
normal manner. Mr Ngwandi jumped into the pool to assist the

respondent, called for the necessary paramedical and other assistance
and reported the incident to his superior. He testified further
that
this was the second occasion that day the respondent had descended
the slide. On the first occasion he had also descended
head first
whereupon Mr Ngwandi had warned him not to do so.
[9]
The
respondent denied that he descended the slide before the accident or
that he had been so warned. Mr Ngwandi’s evidence
in this
regard was not accepted by the Court
a
quo
,
which determined the case on the basis of the respondent’s
evidence that the accident had occurred on his first and only
descent
of the slide. Mr Ngwandi also gave evidence about the signage at the
resort relating to the terms and conditions of entry
and how users of
the pool and the slide were required to conduct themselves.
[10]
Professor
JC Hillman, a consultant mechanical engineer, testified that he
measured the depth of the pool at several points forward
of the chute
exit and found it to be 0.75 metres. He performed various experiments
and found that users of the slide would reach
different speeds upon
entry into the water, varying between 40 – 50 kilometres an
hour when lying supine. He testified that
the required depth for
water slide exit pools in Australia, Canada and the United States of
America was in most cases 1.2 metres
and in some cases 0.9 metres but
both come with the proviso that ‘
head
first’
riding is prohibited, even at the 1.2 meter level. He expressed the
view that this calls for some form of control at the access
point to
the slide chute which would prevent a user attempting to descend head
first and that the most common such system involved
a physical
barrier of some sort at the launch point which was then removed or
de-activated by an attendant once the rider was correctly
positioned
on the chute.
[11]
Professor
Hillman concluded that the respondent’s spinal injury was the
result of inadequate exit pool depth coupled with
the lack of an
effective rider control system. His opinion was further that these
deficiencies should have been identified in any
thorough risk
assessment as being potentially hazardous for users of the slide,
that the explicit warning signs demonstrated that
head first sliding
was acknowledged to be a real hazard and therefore that action should
have been taken to ensure that slide users
were compelled to comply
with this requirement.
Findings
of the Court a quo
[12]
The
Court
a
quo
found that the appellant had displayed two signs ‘
prominently’
,
on poles on either side of the steps leading from the entrance to the
main pool stating that the pool rules had to be followed,
that
patrons may not run and dive and that the pool water was shallow.
[13]
Another
sign near the ladder to the slide informed users to descend the slide
feet first and prohibited other manners of descent
such as head
first. Finally, a further notice was displayed at the top of the
water slide informing users to descend feet first.
The Court
a
quo
found too that the appellant had appointed staff, including Mr
Memani, stationed at the top of the slide, to monitor its use. It

recorded that the respondent did not see or pay attention to any of
the signs prohibiting him from descending the slide head first.
[14]
The
Court found that the respondent was an honest witness and that
‘
overall,
his evidence was truthful’
.
It preferred the respondent’s evidence that he had descended
only once in contrast to the testimony of Mr Ngwandi, finding
the
latter’s evidence in this regard unreliable. Dealing firstly
with wrongfulness, the Court
a
quo
was satisfied that the respondent had proven that the appellant was
in control of the recreational facilities at the resort which
members
of the public were allowed, for a fee, to make use of and which
facilities proved to be ‘
extremely
dangerous’
.
The Court held that in these circumstances the appellant owed the
respondent a legal duty of care, the negligent breach whereof
would
constitute wrongfulness.
[15]
The
Court then dealt with the issue of negligence, applying the test laid
down in
Kruger
v Coetzee
.
[1]
Regarding the requirement that the harm must have been reasonably
foreseeable, it found that it was clear that the appellant was
alive
to the fact that head first descent of the slide was dangerous, a
fact borne out by the signage which it had erected warning
against
such conduct. On the further question of whether the appellant should
have taken reasonable steps to guard against any
such occurrence, it
took into account Mr Ngwandi’s evidence that, notwithstanding
the warning signs as well as the presence
of lifeguards, some users
continued to descend head first. It noted too the absence of any sign
at the slide exit indicating the
depth of the water in the pool at
that point and therefore that it was ‘
unlikely,
that patrons would align the warnings of the shallowness of the water
or with the dangers inherent in descending the water
slide head
first
’.
The Court
a
quo
concluded that a reasonable person in the position of the appellant
would have foreseen that the slide constituted a serious risk
of
injury to persons descending head first and that the existing
measures employed to avert such harm were inadequate. It then

embarked on the exercise of establishing what steps the appellant
ought to reasonably have taken to guard against that danger.
It held
that effective control by the appellant’s staff was ‘
pivotal’
to preventing the kind of harm suffered by the respondent.
[16]
The
Court
a
quo
also held that the appellant’s warning signs were ineffective
inasmuch as none of them spelt out the danger of descending
head
first into the shallow water at its exit. Finally, it observed that
the appellant could also have used loudhailers to advise
users about
the dangers inherent in head first descent.
[17]
The
Court then turned to the issue of causation, namely, the question of
whether, but for the appellant’s wrongful and negligent

conduct, the respondent would not have suffered the injury which he
did. Here the Court noted the respondent’s admission
that even
if he had studied the warning signs he may well still have descended
the slide head first because he had assumed that
the water at the
exit point would take him up to his chest i.e. he had not realised
how shallow it was. Nevertheless the Court
found that, but for the
appellant’s negligent conduct in the form of inadequate control
at the top of the slide and inadequate
signage, the respondent would
not have suffered his injury.
[18]
As
regards the defence of voluntary assumption of risk, the Court a quo
concluded that the appellant had failed to meet the requirements
of
the
volens
defence. Finally, as regards the exemption agreement defence, the
Court
a
quo
held that given the far-reaching consequences of the disclaimer, the
absence of any specific reference in the notices to injuries
which
might be sustained rendered them ambiguous and thus that they were to
be interpreted against the appellant as
proferens
.
Grounds
of appeal
[19]
The
main grounds of appeal relied upon by the appellant were that the
Court
a
quo
had erred in attributing a duty to the appellant to ensure that the
slide did not constitute
any
source of danger to any person as opposed to a duty to take no more
than reasonable precautions; further by finding that it was
unlikely
that those who observed the warning signs would appreciate that they
were being warned that it was dangerous to descend
the slide head
first and that the water was shallow. A further ground was that the
Court
a
quo
had erred in finding that the appellant could have prevented the
respondent from descending the slide a second time despite accepting

the respondent’s evidence that he had only descended the slide
once; further that it had erred in finding that it had failed
to
discharge its duty in law and had acted negligently notwithstanding
unchallenged evidence of all the precautionary measures
which it had
adopted. Further grounds of appeal were that the Court
a
quo
had incorrectly found that it was negligent for the appellant not to
have used loudhailers to warn patrons of the danger and in
failing to
maintain a depth of water at the slide exit point greater than 0.75
metres in the absence of evidence that this was
an acceptable
standard or that the appellant had the financial resources to meet
such a requirement. Another ground related to
the Court’s
credibility findings, more specifically the Court’s rejection
of Mr Ngwandi’s evidence. Other grounds
of appeal were that the
Court had erred in accepting the respondent’s evidence and in
finding that the respondent had discharged
the burden of proof
relating to causation.
Wrongfulness
[20]
As
previously mentioned the appellant disputed the element of
wrongfulness. It contended in this regard that the Court
a
quo
had in effect misdirected itself in two important respects: firstly,
by applying an incorrect standard in finding that the appellant
owed
an absolute duty to eliminate
any
source of danger from the slide as opposed to a duty to take no more
than reasonable precautions against such danger/s eventuating.
The
appellant’s second contention was that the respondent’s
case asserted a failure by the appellant to take further
steps to
prevent any harm or danger eventuating without examining whether any
such omission was wrongful, thereby potentially extending
the
boundaries of the duty of care without limitation.
[21]
I
do not think that the Court
a
quo
held in effect that the appellant was under an absolute duty in law
to eliminate any conceivable danger potentially inherent in
the
slide’s use. Any impression to the contrary urged by the
appellant arises from the Court’s somewhat loose use of

language in para 36 of its judgment, rather than its evident
reasoning. In my view it is clear enough on a fair reading of the

judgment that the Court
a
quo
went no further in respect of the issue of wrongfulness than to hold
that the extent of the duty on the appellant was no more than
to take
reasonable measures to guard against the dangers inherent in the use
of slide eventuating.
[22]
Regarding
the contention that the Court
a
quo
failed to consider the requirement of wrongfulness, one notes that in
recent years our courts have frequently warned against blurring
the
elements of wrongfulness and negligence. In
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority
[2]
it was pointed out that a first principle of our law of delict is
that everyone has to bear the loss that she or he suffers. Inasmuch

as Aquilian liability provides an exception to this rule, the act or
omission complained of must not only be negligent and have
caused the
harm be it must also be wrongful.
[3]
[23]
In
Za
v Smith
[4]
Brand JA quoted with approval the dictum of Khampepe J in
Country
Cloud Trading CC v MEC Department of Infrastructure Development
[5]
as follows
:
“
Wrongfulness
is an element of delictual liability. It functions to determine
whether the infliction of culpably caused harm demands
the imposition
of liability or, conversely, whether
‘
the
social, economic and other costs are just too high to justify the use
of the law of delict for the resolution of the particular
issue’.
Wrongfulness
typically acts as a brake on liability, particularly in areas of the
law of delict where it is undesirably and overly
burdensome to impose
liability.”
Brand
JA went on to warn of the potential confusion between wrongfulness
and negligence which could lead to instances of defendants
being held
liable because negligence has been established but without the
requirement of wrongfulness being considered.
[6]
[24]
In
Loureiro
v Imvula Quality Protection (Pty) Ltd
[7]
the Constitutional Court held that the wrongfulness enquiry focuses
on “
the
[harm-causing]
conduct
and goes to whether the policy and legal convictions of the
community, constitutionally understood, regard it as acceptable.
It
is based on the duty not to cause harm – indeed to respect
rights – and questions the reasonableness of imposing

liability”
.
[25]
In
Hawekwa
Youth Camp v Byrne
,
[8]
again speaking for the Court, Brand JA stated that depending on the
circumstances it may be appropriate to consider wrongfulness
first,
i.e. assuming negligence, or, in another case, vice versa.
[26]
In
my view the former approach best suits the present matter, the
circumstances of which are similar in many respects to those in
the
recent matter of
Van
Vuuren v eThekwini Municipality
[9]
.
That case also concerned a water slide at a swimming pool operated by
a local authority in which an eight year old child sustained
serious
facial injuries when he lost his balance descending the slide after
apparently being pushed by a child behind him. There
was no access
control to the slide and no supervision at the top.
[27]
On
appeal the Court dealt first with the issue of wrongfulness
viz
whether there was a legal duty to supervise and control access to the
slide. Its starting point was to note that where a party
has by prior
lawful conduct created a potential risk of harm to others a duty may
arise which is breached where it fails to take
reasonable steps to
prevent the risk from materialising. The Court noted that in
providing the pool with a slide the municipality
created a potential
risk of harm to others. It found as significant the following
factors: the fact that children under 12 years
of age used the
facility, their protected position in terms of section 28(2) of the
Constitution, that children used the slide
in a chaotic manner, that
parents were precluded from entering or being proximate to the slide
so as to control the actions of
their children and, finally, that
making provision for supervision and access control by the local
authority would not place an
intolerable burden on it.
[28]
The
approach of the Supreme Court of Appeal in
Van
Vuuren
is
instructive for the present matter. Against the background of a
finding by the trial court that no legal duty could be imposed
upon
the local authority to provide a supervisor at a water slide used by
children i.e. apparently holding that this omission on
the part of
the local authority was not wrongful, the Court stated as follows:
“
It will be recalled that Steyn J
considered the following to be the issue to be adjudicated:
‘
[W]hether a parent exercising
parental control over a child can legally expect of a local authority
to either share in the duty
of parental control or usurp the duty and
responsibility.’
Counsel agreed that the primary issue was
rather, whether there was a legal duty on the part of the
Municipality to supervise and
control access to the slide. The
Municipality also contended that there had been no negligence on its
part and in particular, that
the consequences suffered by Jacques had
not been foreseeable.”
[10]
[29]
In
arguing that the element of wrongfulness had not been established Mr
Butler, on behalf of the appellant, sought to distinguish
the present
matter from that of
Van
Vuuren
,
inter alia, on the grounds that the interests of children were
concerned in the latter case. Apart from the fact that the evidence

suggests that the slide at Mnandi Resort was also available for use
by children, that factor alone does not, in the present
circumstances,
and in my view, make any material difference to the
question of wrongfulness. In terms of our Constitution all citizens
have a
right to their bodily integrity.
[11]
[30]
The
appellant, a local authority, established and constructed the resort
as a public amenity, including the swimming pool and the
water slide
facilities. Combined, these two amenities, notwithstanding the
pleasure which they afforded innumerable users over
the years,
constituted a potential source of danger to such users inasmuch as
incorrect use of the slide could lead to catastrophic
harm in the
form of serious injury or even death. Moreover, to the knowledge of
the appellant the slide was sometimes used in a
potentially dangerous
manner. The slide facility was seemingly available to every visitor
to the resort irrespective of their age.
I venture to suggest that
such visitors would reasonably expect the appellant to take all
reasonable measures to guard against
dangers inherent in the use of
the facilities. In these circumstances, where the potential harm can
be averted, forestalled or
minimised through the taking of reasonable
measures by the local authority without imposing too great a burden
on it financially
or otherwise, then I have no doubt that the legal
convictions of society would regard a failure to meet those standards
as wrongful.
[31]
In
the present matter not only did the appellant create a potential risk
of harm to resort users in providing the water slide, the
evidence as
a whole, and in particular its own signage, established that it was
well aware that the slide, improperly used, could
be dangerous and
might result in grave injury. In particular it was aware that head
first descent of the slide posed a serious
risk of injury to users.
An even more compelling consideration was revealed by Mr Ngwandi’s
evidence that, notwithstanding
all the warnings, slide users
regularly descended head first. A further consideration, one to which
I shall return, is that the
water level at the point of exit of the
water slide was 0.75 metres deep. On the evidence presented to the
Court
a
quo
this increased the risk of harm to water slide users who descended
head first. Taking all these circumstances into account I consider

that the element of wrongfulness, namely, that the appellant should
be liable for a failure to take reasonable measures to avoid
injury
to users of the slide, was satisfactorily established.
[32]
Mr
Butler also argued that the appellant had taken a range of steps to
ensure the safe use of the slide at the resort, that potentially

there was no limit to further safeguards which could be added, and
that the line should be drawn where it presently stands. In
my view
this argument raises questions which must be dealt with under the
issue of negligence, to which I now turn.
Negligence
[33]
The
oft-stated test formulated in
Kruger
v Coetzee
,
[12]
provides that negligence is established 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 or 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
.”
[34]
The
appellant did not put paragraph (a) of the test in
Kruger
in issue on the facts of this case. The area of contestation bore on
paragraph (b), with the appellant contending that it had not
been
negligent because the steps that it had taken were reasonable and
adequate.
[35]
The
enquiry into negligence therefore turns around whether the appellant
took reasonable steps to guard against such occurrence.
In this
regard the appellant contended that it took all reasonable steps
which included the posting of prominent signs throughout
the facility
warning persons not to dive, that the water was shallow and that they
should not descend the slide head first.
[36]
The
clarity and sufficiency of these signs were challenged on behalf of
the respondent, in my view with some justification. Certain
of the
signs appeared faded and were not immediately comprehensible. For
example one sign (Vol 6 pages 543 and 544), has an important
panel
depicting a user descending the water slide head first. However, the
accompanying written message is contradictory, namely,
‘
slide
this way/gly op hierdie manier’
.
The thick red line across that entire panel, apparently suggesting a
prohibited practice, does not entirely remove the confusion.
No sign
specifically warned that head first descent of the slide could lead
to head or spinal injuries, a danger which was not
necessarily
obvious to all users.
[37]
Notwithstanding
these shortcomings, however, the final sign visible to users, which
is erected on a wooden post between the two
chutes where slide users
commence their ride, is clear. It reads: ‘
How
to have fun and be safe - Always enter chute by holding bar and ride
feet first’.
This
message is then illustrated pictorially. Underneath follows the words
‘
Danger
no diving – shallow pools’
.
It reads further ‘
Ride
feet first only’
and provides some six (6) pictorial depictions of prohibited modes of
descending the slide which are variations of either descending
head
first, standing or, crucially for this matter, kneeling.
[38]
It
is clear therefore that the appellant had been at pains to erect
signage at the resort warning potential users of the slide that

descending head first and certain other modes of descent were
prohibited. There was also uncontested evidence that the appellant

exercised supervision over the use of the pool generally and the
slide in particular through the deployment of lifeguards. At the

relevant time Mr Ngwandi was specifically deployed to monitor slide
users descending into the pool whilst Mr Memani controlled
access at
the top of the slide structure. It would appear further that Mr
Ngwandi, at least, had undergone training as a lifeguard.
Mr Memani
was not a lifeguard but a permanent member of staff. Details of his
training or responsibilities were not clear beyond
that he was tasked
with ensuring that not more than one person used the chutes at one
time and did not descend before other users
had cleared that part of
the pool area into which the slide exited.
[39]
A
noticeable, if not glaring, omission in the evidence concerned the
issue of what control or supervision, if any, was exercised,

particularly at the top of the slide, in an effort to ensure that
slide users did not descend head first. Mr Ngwandi’s evidence

in this regard must be considered. He appeared to testify that the
respondent had descended the slide twice on the day in question,
on
both occasions head first. Unfortunately Mr Ngwandi did not testify
in his mother tongue but in English in which he was clearly
not
proficient for the purposes of giving evidence. As a result his
testimony on several aspects was far from clear. As best one
can make
out, however, his account was that the respondent commenced his first
descent in the sitting position but then changed
it to head first. Mr
Ngwandi then warned him not to do this again which warning the
respondent appeared to accept. Nonetheless
he immediately proceeded
to make his second descent in the same manner i.e. starting off in
the sitting position but, by implication,
changing this to a head
first position.
[40]
The
respondent steadfastly denied that he had descended twice or that he
had been warned not to do so. He insisted that he had descended
only
once, that he had commenced in the kneeling position and immediately
moved into the head first position.
[41]
Mr
Ngwandi also testified that it was a regular occurrence for slide
users to descend head first. On such occasions he would advise
the
superintendent if the user in question was refusing to heed warnings
not to do so again. In those instances, and after advising
his
superintendent, ‘
law
enforcement’
would remove such persons from the resort.
[42]
Asked
what were the duties of persons in the position of Mr Memani i.e.
stationed at the top of the water slide, Mr Ngwandi replied
that it
was to monitor those persons using the slide but he could add nothing
by way of detail. There was no further evidence from
the appellant on
this score since Mr Ngwandi was the only witness which it called. The
evidence of Mr Memani as to what transpired
at the top of the water
slide that day would have been critical but he passed away before the
trial. A brief affidavit which he
made shortly after the incident was
admitted by the Court
a
quo
but it said no more than that he had warned the respondent (and
others) not to go down the slide head first but that they had refused

to listen to him.
[43]
On
the evidence then, two contrasting versions of what had taken place
on the day in question were presented to the Court. On behalf
of the
appellant Mr Butler was content to argue the appeal on the basis that
the Court
a
quo
’s
credibility findings should stand, even though one of the appellant’s
grounds of appeal belies this.
[44]
On
first principles credibility findings are not to be judged in
isolation but must be considered in light of the proven facts and
the
probabilities of the matter as a whole. Although a court of appeal is
generally reluctant to disturb the findings based on
credibility it
will do so where such findings are plainly wrong.
[13]
This is because, inter alia, of the advantages which the trial Court
enjoys in observing the witness and his or her demeanour at
first
hand. Nonetheless overemphasis of these advantages is to be avoided
“
lest
an appellant’s right of appeal becomes illusory”
.
[14]
[45]
The
Court
a
quo
’s
decision to accept the respondent’s evidence that he only used
the slide once on that day and to reject Mr Ngwandi’s
evidence
that there were two such occasions was not based on a wholesale
rejection of his evidence. It rejected Mr Ngwandi’s
evidence
only in respect of certain points where it differed from that of the
respondent, principally on the issue of whether the
respondent had
descended the slide once or twice that day after being warned by Mr
Ngwandi on the first such occasion. The question
is whether it is
appropriate or justified for the Court to interfere with that
finding, particularly in the light of the appellant’s
attitude
as mentioned above. As mentioned, the appellant was content to argue
the appeal on the respondent’s version of events
as regards
whether he used the water slide once or twice that day, possibly
because any advantage it gained from a finding that
the respondent
was specifically warned not to descend head first after his first
descent is offset by the stark fact that the respondent
was
nonetheless able, or permitted, to do so a second time.
[46]
In
my view the Court
a
quo
’s
findings on this score were reasoned and substantiated and based on
the evidence as a whole, the proven facts and the probabilities.

There is thus no warrant for this Court to interfere with those
limited credibility findings made by the Court
a
quo
.
[47]
The
respondent testified that on the sole occasion he descended the water
slide that day he positioned himself on his knees before
he was
permitted to proceed by one of the persons on duty at the top of the
water slide, presumably Mr Memani. The respondent further
clarified
that he was not kneeling in an upright position but with his buttocks
on his heels – a ‘
backwards
kneeling position’
.
Upon launching himself down the chute he immediately changed his
position to head first i.e. on his stomach with his hands in
front of
him. He testified that the official at the top of the slide, nor
anyone else for that matter, had not told him not to
do so. He added
that had an official done so he would have obeyed.
[48]
The
respondent testified that the official had given him the go ahead
while he was on his knees by saying ‘
go’
.
It was put to him that it was probable that Mr Memani had thought
that he was going to descend in the normal and permitted manner
i.e.
on his back or bottom but the respondent resisted this suggestion and
held firm that whilst on his knees on the chute he was
told to go.
[49]
In
light of the Court
a
quo
’s
acceptance of the respondent’s version of events, including
what happened at the top of the water slide, and there
being no
countervailing evidence from Mr Memani, one is led inescapably to one
of two conclusions: either Mr Memani observed the
respondent in a
kneeling position immediately prior to him descending the water slide
or he did not observe this when, had he paid
attention, this would
have been obvious to him. Had the respondent been seen in the
kneeling position by Mr Memani it would also
have been obvious to him
that the respondent was intent upon launching himself down the slide
head first. Clearly the kneeling
position is the natural one to adopt
if a rider is intent upon descending head first whilst the sitting
position is the natural
position to adopt for a feet first descent.
To change from the kneeling position so as to descend feet first,
either prior to commencing
the ride or whilst doing so, would require
extricating one’s legs from underneath one’s buttocks, a
physically cumbersome
and unlikely exercise.
[50]
Given
these conclusions the question then becomes whether it was negligent
on the part of the appellant, acting through Mr Memani,
to have
either not observed that the respondent was intent upon descending
head first or if, this had been noticed, to have failed
to take any
steps to have prevented him from doing so. Such negligence would fall
within two of the grounds of negligence pleaded
by the respondent,
namely, that the appellant was under a duty to ensure:
1.
that
the water slide would be monitored by employees in order to prevent
it constituting a source of danger to users; and
2.
that
persons using the water slide do so in such a way that they would not
be at risk of injury.
[51]
In
determining whether the appellant was negligent regard must also be
had to two other factors, namely, the depth or shallowness
of the
water at the slide exit point and the issue of what additional
control mechanism or mechanisms, if any, the appellant could
have
implemented in order to reduce the danger to users.
[52]
It
is in these areas that Professor Hillman’s evidence becomes
relevant. He expressed the opinion that the respondent’s
injury
was the result of ‘
inadequate
exit pool depth with a lack of an effective rider control system’
and that these deficiencies could have been identified in any
thorough risk assessment of the slide as being potentially hazardous

for its users.
[53]
It
was common cause that the depth of the water where the slide exited
into the pool was 0.75 metres. Professor Hillman testified
that an
internet survey of applicable standards and guidelines for exit pool
depths for water slides in Australia, Canada and the
United States of
America revealed that most require a minimum of 1.2 metres but some
only 0.9 metres. Following an analysis of
the variables which would
influence the likelihood of a slide user sustaining a head or neck
injury he expressed the opinion that
had the water depth at the
resort being 0.9 metres this would not necessarily have prevented
contact being made between the respondent’s
head and the floor
of the pool but would likely have been sufficient to reduce the
impact speed to a level at which the respondent
not have suffered any
serious injury.
[54]
On
behalf of the respondent Mr Butler criticised Professor Hillman’s
evidence in relation to alleged international standards
for the depth
of water of pools at the exit to water slides as being in part
hearsay. He also questioned the value of Professor
Hillman’s
evidence given his failure to investigate the conduct of the
respondent himself i.e. on the basis that his investigation
was
one-sided. Further criticisms were that Professor Hillman’s
consideration of the four input variables for his calculations

involved a certain amount of guess work and that he had no expertise
in the field of access control systems.
[55]
In
considering these criticisms it is as well to note that the appellant
also filed the expert opinion report of a consulting civil
and
structural engineer, a Mr J Rozowsky, in regard to the question
whether the slide and pool design at the resort could be considered

as safe for feet first descent. He was also asked to comment
generally on Professor Hillman’s report.
[56]
In
my view the criticisms of Professor Hillman lack substance. It is
inevitable that his calculations relating to the exit speed
of slide
users and safe water depth would not be capable of precise
measurement given the number of variables and the difficulty
of
measuring them. Whilst it is correct that his evidence of water depth
at similar resorts in the Cape Town area appeared to be
hearsay this
was not central to his evidence. His evidence regarding safe pool
depths in other countries was presumably gathered
from reputable
sources on the internet and it is difficult to see how else,
practically speaking, this could have been done. It
is also not
correct to suggest that Professor Hillman turned a blind eye to the
respondent’s conduct since he took full account
of the only two
relevant factors in that regard, namely, that he descended head first
and upon entry performed a breaststroke manoeuvre.
All other
considerations relating to the respondent’s conduct fell
outside his brief and were for the Court
a
quo
to determine in its enquires into negligence and causation. Professor
Hillman’s evidence was cogent and logical and in my
view meets
all the requirements for an expert witness, not least in its
objectivity and reasoning.
[57]
Although
the appellant gave notice of its intention to call its expert, a Mr J
Rozowsky, it did not do so. In a joint minute, however,
the two
experts agreed that:
1.
the
water slide was designed for ‘
feet
first usage only’
and was safe for that purpose;
2.
an
increase in the depth of the exit pool to 1.2 metres would have
substantially reduced the severity of the impact between the

respondent’s head and the floor of the pool.
[58]
Professor
Hillman relied on and cited three journal articles in his Rule
36(9)(b) report, copies of which were introduced as exhibits.
The
most relevant was entitled ‘
Bio
mechanical analysis of swimming pool neck injuries.’
[15]
,
a study used in the development of swimming pool equipment safety
standards which investigated 67 accidents involving neck injuries.

Nine of these injuries were sustained after a head first entry from a
water slide into shallow water described as three and a half
feet or
less. Dealing with this subsection the study reads in part:
“
The
normal body position at the water surface is with the head and hands
up and the back arched. This causes the slider to skim
across the
surface with little penetration. If, however, the head and/or the
hands are lowered, a snap roll or tumble occurs. The
head and hands
increase the drag causing the body to rotate towards the pool bottom.
…
It is clear from
the number and severity of the accidents presented here that diving
or head first sliding into shallow waters is
potentially very
dangerous and should be actively discouraged. The snap roll motion
probably occurred in many of these accidents.”
[59]
It
is correct that Professor Hillman could not give personal evidence of
measurements he had taken of pool depth at water slides

internationally and objection was taken to his evidence in this
regard. However, no countervailing evidence was presented on behalf

of the appellant regarding water depth. Furthermore, as a matter of
logic, (and as was agreed by the experts in their joint minute),
the
shallower the water at exit/entry point the greater the likelihood of
injury. By any standard a depth of 0.75 metres (which
is less than
waist height for an adult of average height) had the potential for
serious head and/or neck injuries where slide users
were entering the
water head first at speeds of around 40 kilometres per hour.
[60]
The
second critical element to be considered is the question of control
mechanisms to ensure that slide users did not descend head
first. It
was the appellant’s own case that head first descent was
potentially dangerous and that the pool was only safe
for feet first
descent. The quantity and the content of the signage which it erected
as well as the evidence of Mr Ngwandi established
that the appellant
was well aware of the risks involved in head first descent. The
measures adopted by the appellant to ensure
the safety of slide users
did not end with its signage, however. Lifeguards were deployed to
ensure that the slide was safely used,
and, in addition, an official
was stationed at its top to control access to the chutes. Presumably
this was done to ensure that
they were only used by one rider at a
time and, furthermore, that riders did not descend until such time as
the pool exit area
was clear of those who had preceded them. However,
Mr Ngwandi’s evidence was that notwithstanding these measures
it was a
regular occurrence for slide users to descend head first and
it appears that the measures taken to prevent this were, at best,
somewhat ineffective, seemingly limited to having repeat offenders
removed from the resort in isolated instances by law enforcement

officials.
[61]
It
is unclear from the evidence whether Mr Memani and others stationed
at his post saw it as part of their duties to ensure as far
as
possible that slide users did not descend head first. This would
entail instructing and/or requiring all users to position themselves

on the slide in a feet first position. On the contrary, on the
evidence accepted by the Court
a
quo
the respondent was allowed to assume a kneeling position on the slide
which was clearly a prelude to him launching himself down
the slide
head first and, furthermore, whilst in the kneeling position he
received the go ahead from Mr Memani. The respondent’s
evidence
that had he been so warned or instructed by Mr Memani he would have
changed his position to feet first, cannot be gainsaid.
On the
probabilities therefore, had Mr Memani been alert to the possibility
of the respondent descending head first a timely warning
or
instruction would have averted this eventuality.
[62]
It
is striking that the final and possibly the most important sign which
slide users see has one panel expressly prohibiting the
user from
assuming the position which the respondent did shortly before he
commenced his descent, namely, on his knees. It highlights
the
question of why Mr Memani either gave the respondent the go ahead to
descend whilst in this position or simply failed to notice
that he
was kneeling.
[63]
What
is more Professor Hillman’s evidence was also that a simple
control mechanism, such as a pole or gate erected in front
of the
user on the chute which would be lifted only when he/she was seen to
be correctly positioned, would have gone even further
in preventing
head first descents. He testified of the dangers inherent in ‘
head
first’
riding and recommended some form of control at the access point to
the chute to prevent a user attempting to descend in such a
position.
Professor Hillman added that the most common system involves a
physical barrier of some sort at the launch point which
is then
removed or deactivated by an attendant once the rider is correctly
positioned on the chute.
[64]
In
evidence Professor Hillman made the simple but important point that
if one wants prevent something from occurring, ‘
notices
are one thing, but you have to actually take some action to make sure
that … people don’t disobey what you
trying to tell
them’
.
He referred to the possibility of something as simple as a ‘
pole
device’
that goes through the side of the chute and which the attendant
removes once satisfied that the rider is positioned properly. Another

possible safety device could be something like a carpark boom
blocking the chute off which could be lifted electrically or manually

with a pulley system when the rider was safely positioned and
Professor Hillman was referred to photographs taken in Amanzimtoti
of
such a device actually in operation (record page 506 and 507).
[65]
Counsel
for the respondent objected to Professor Hillman’s evidence as
a whole regarding possible safety devices but in my
view it is
eminently within the province of an engineer to testify not only
about the feasibility of such devices but also their
probable cost.
That cost appeared to be well within reason, particularly if a
manually operated device was employed.
[66]
In
argument before us appellant’s counsel was asked why a control
mechanism could not have been put in place to ensure that
users could
not descend until such time as they were in the correct and safe
position. Counsel’s response was to contend
that this would be
yet a further step on top of the many steps which the appellant had
already taken to ensure the safety of users
and that one could always
envisage yet a further step to ensure the safety of the slide’s
users. In my view this is an inadequate
response since the real issue
is whether the measures taken by the appellant in dealing with the
risks inherent in the use of the
water slide were reasonable or not.
Of course the enquiry as to the reasonableness of the appellant’s
conduct must be related
to the relevant circumstances. This aspect
was discussed in
Cape
Metropolitan Council v Graham
[16]
where Scott JA said:
“
Turning to
the question of negligence, it is now well established that whether
in any particular case the precautions taken to guard
against
foreseeable harm can be regarded as reasonable or not depends
on a consideration of all the relevant circumstances
and involves a
value judgment which is to be made by balancing various competing
considerations. These would ordinarily be
‘
(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”.
…
If a
reasonable person in the position of the defendant would have
done no more than was actually done, there is, of course,
no
negligence.”
[citations
omitted]
.
[67]
Applying
these factors to the present matter it is common cause that the
erection of the slide exiting into comparatively shallow
water posed
a serious risk for any users who descended head first. The gravity of
the risk was self-evident: striking one’s
head with force on
the floor of the pool could quite conceivably lead to a serious head
or neck injury as happened in the present
instance. The question of
utility involves the weighing up the cost or feasibility of
additional safety measures against the advantages
which they might
deliver. In my view given that an official was already routinely
stationed at the top of the slide to control
access, expanding that
person’s duties to include ensuring that users were in the
correct body position immediately before
sliding would eliminate a
substantial proportion of those persons initially intent upon
descending the slide head first. Ordinary
human experience tells one
that if a personal warning is addressed to someone disobeying a rule
the chances are much better that
the person will correct his/her
behaviour. This, incidentally, was demonstrated by the fact that,
earlier on during his visit the
respondent was engaged in horse play
in the pool. When a whistle was blown and a lifeguard told him to
desist he immediately did
so. Furthermore, the fitting of an access
control device, either manually or electrically operated would, on
the probabilities,
have ensured that virtually all instances of
persons descending head first would have been obviated. Such a
mechanism may not have
provided for a complete elimination of such
instances since there was some evidence that if a user is determined
enough he/she
can change position from feet first to head first in
mid-descent, albeit with difficulty.  These instances would
surely be
a very small minority.
[68]
A
final consideration is the burden, financial or otherwise, of
introducing such additional safety measures. Every indication was

that this would be very limited. An employee was already routinely on
duty at the top of the slide and one would reasonably expect
that
ensuring that users were in the correct bodily position would be part
of such official’s duties in any event. Unfortunately
no
evidence was led on this score. The death of Mr Memani may perhaps
have been partly responsible for this omission but it was
noteworthy
that no person in a position of higher authority e.g. the manager of
the resort, was called to testify as to the scope
of the duties of
the employee stationed at the top of the slide and in particular
whether this extended to ensuring that slide
users launched from the
top of the chute in a safe position. Furthermore, on the available
evidence the further step of erecting
an access control device at the
top of the chutes would not have been burdensome from the appellants’
point of view. The
costs involved in erecting such a device do not
appear to be substantial and it could easily be designed so that it
was operated
by the self-same employee, either manually or
electrically.
[69]
The
potentially catastrophic consequences to slide users descending head
first, the frequent infractions of the stipulation that
head first
descent was not permitted and the comparative ease of introducing
measures to eliminate or significantly reduce such
infraction, leads
me to the conclusion that a reasonable person in the position of the
appellant would have done more i.e. taken
at least one or more of
these steps to ensure that head first descents were greatly
minimised, if not eliminated.
[70]
For
these reasons I find that the appellant was negligent in not taking
the further steps discussed above.
[71]
In
reaching this conclusion my reasoning differs somewhat from that of
the Court
a
quo
.
It relied largely on the lack of any sign or indication at the slide
exit that the water in the pool was shallow and the unlikelihood
of
users making the connection between the warnings against head first
descent and the fact of the shallow water. Secondly, it
considered
that the appellant could have used loudhailers to warn the public
and; thirdly, that it could have prevented the respondent
from
descending a second time. On the factual matrix accepted by the Court
a
quo
there was no second descent by the respondent and in my view the
efficacy of using loudhailers is open to doubt. There is a good
deal
to be said for improving the clarity of the signage employed at the
resort but it is not necessary to make any finding in
this regard in
order to find negligence on the part of the appellant not least since
it is academic in the present matter.
[72]
These
differences in reasoning do not, however, affect the central finding
that the appellant was negligent in not taking further
the steps that
I have discussed above to prevent or at least to minimize the
instances of slide users descending head first.
Causation
[73]
The
final issue to be addressed to establish liability on the part of the
appellant is causation. The appellant challenged the Court
a
quo
’s
finding that causation had been proved, basing this principally on
two legs. Firstly, it was contended that even if the
respondent had
been aware of the risks of descending head first he would still have
done so. In this regard the appellant relied
on the respondent’s
concession that he was a ‘
risk-taker’
.
The second leg of the appellant’s argument was that the
respondent’s performing a breaststroke movement upon entering

the water had forced him deeper under the water and was something
which no other user had done. The argument proceeded that it
stood to
reason that it was this conduct which distinguished the respondent’s
case from that of many others who had safely
descended the water
slide head first and was therefore, the ultimate cause of his spinal
injury.
[74]
The
first leg of the appellant’s argument does not support its case
in relation to causation, firstly because it is speculative
and
secondly, because it is based on the assumption that the appellant’s
negligence lay in not adequately conveying to the
respondent that by
descending head first he ran the risk of sustaining a serious injury
i.e. on a lack of adequate signage. This
factor, however, was not the
sole basis of the Court
a
quo’s
finding that the appellant was negligent and certainly is not the
rationale for this Court making such a finding. The appellant’s

negligence lay instead in not taking appropriate measures, through Mr
Memani or other employees at his post, to ensure that slide
users did
not descend head first irrespective of whether they were
‘
risk-takers’
or
not.
[75]
There
are also considerable difficulties attendant upon the second leg of
the appellant’s argument disputing causation. In
the first
place the principal causative factor for the respondent sustaining
his injury was his head first descent. If he had descended
in the
correct manner i.e. feet first, whatever hand or head movements he
made would have been irrelevant in that they could not
have caused
any similar injury. Secondly, the appellant’s main hypothesis
regarding the breaststroke action is also largely
speculative and
unsupported by any acceptable evidence. There was no evidence from
its own expert or any witness for that matter
suggesting that it was
the respondent’s alleged breaststroke movement which caused him
to hit the crown of his head against
the pool bottom with such force.
Professor Hillman, in my view a fair-minded witness, was not prepared
to concede that any breaststroke
movement by the respondent was the
sole distinguishing feature between him descending head first and
sustaining an injury and other
persons who had descended head first
without being injured.
[76]
The
Court
a
quo
’s
ultimate finding that the breaststroke movement played no material
role in causing the respondent’s injury was strongly
challenged
by the appellant. Its contention was that this was at odds both with
Professor Hillman’s evidence and with earlier
findings made by
the Court
a
quo
.
Given the importance which the appellant attaches to the respondent’s
breaststroke movement, both in relation to causation
and the
apportionment of fault, the evidence on this score must be examined
more carefully.
[77]
In
his report Professor Hillman noted that in a head first descent
should the rider’s head be tilted down upon entry this
would
tend to direct the rider’s body on a trajectory towards the
pool floor whilst the forward placing of the arms would
accentuate
this effect somewhat. The effect of a breaststroke manoeuvre upon
entry would have been to steepen the downward trajectory.
In evidence
Professor Hillman testified that the cause of the respondent’s
steep underwater descent was a combination of
‘
quite
a few things’
and was not clear but that having his head bent forward as well as
his arm and hand action would have forced him down. As regards
the
latter factor Professor Hillman testified that any breaststroke
movement would have had a limited effect upon the respondent’s

speed through the water as distinct from its role in deepening his
angle of descent.
[78]
As
noted earlier, the article by McElhaney relied upon by Professor
Hillman indicates that it is the position of the head or hands
which
is critical, i.e. where they are lowered, drag is increased causing a
snap roll or tumble and the consequent impact on the
pool floor.
[79]
In
my view, the evidence as a whole does not support the hypothesis that
it was the respondent’s ‘
reckless’
breaststroke action which was the crucial difference between an
injury-free head first descent and the catastrophic injury he
suffered.  It does not appear possible to determine precisely
what combination of factors or forces caused the respondent’s

injury apart, of course, from the fundamental fact of his head first
descent, but the (downward) position of his head and his hands
or
arms clearly also played a role.
[80]
In
the recent case of
Za
v Smith
2015 (4) SA 574
(SCA) at 589D–G Brand JA stated the following:
“
The
criterion applied by the court a quo for determining factual
causation was the well-known but-for test as formulated, e.g. by
Corbett
CJ in International Shipping Co (Pty) Ltd v Bentley
1990
(1) SA 680
(A). What it essentially lays down is the enquiry —
in the case of an omission — as to whether, but for the
defendant's
wrongful and negligent failure to take reasonable steps,
the plaintiff's loss would not have ensued. In this regard this court
has said on more than one occasion that the application of the
‘but-for test’ is not based on mathematics, pure science

or philosophy. It is a matter of common sense, based on the practical
way in which the minds of ordinary people work, against the

background of everyday-life experiences. In applying this
common-sense, practical test, a plaintiff therefore has to establish

that it is more likely than not that, but for the defendant's
wrongful and negligent conduct, his or her harm would not have
ensued.
The plaintiff is not required to establish this
causal link with certainty.
”
[citation omitted].
[81]
The
test to be applied then in the present circumstances is whether, had
the appellant’s staff member on duty applied a protocol
of
requiring slide users to assume the correct physical position for a
safe descent of the slide and/or had the appellant utilised
a gate
mechanism to ensure that this was the case, the respondent would
nevertheless have sustained the injury. I have no doubt
that the
respondent established on the probabilities that had those measures
been in place he would not have descended head first
and would
therefore not have sustained the injury. In my view the Court
a
quo
correctly found that causation had been established.
The
defence of voluntary assumption of risk
[82]
In
argument the appellant’s counsel acknowledged that, in the
event of the court finding that the exemption or disclaimer
defence
was not sound, little or no reliance could be placed on the defence
of voluntary assumption of risk. Nonetheless I propose
to deal first
with the
volens
defence. The appellant bore an onus to establish this defence, the
elements of which are that the respondent had knowledge of the
risk,
appreciated its ambit and consented thereto. As long ago as 1973, the
Appellate Division (as it then was) set out in
Santam
Insurance Co. Ltd v Vorster
[17]
the
correct approach in determining whether the defence has been
satisfied.
“
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.”
[83]
Ogilvie
Thompson CJ stated as follows:
“
That
the onus of establishing this defence rests upon the appellant, is
common cause. Nor is it disputed that the essential elements
of the
defence were correctly stated in Innes, CJ’s well-known
succinct summary of ‘knowledge, appreciation and consent’

… The overall enquiry is undoubtedly one of fact to be
determined in relation to the circumstances of the particular case
…
Little or no difficulty is encountered regarding the first two of the
above-mentioned essential elements; but it is in
relation to the
requisite of
“
consent”
that
problems of considerable difficulty present themselves. It is well
established the knowledge and appreciation alone do not
constitute
such consent; as it is sometimes said the maximum is volenti non fit
injuria, and not scienti non fit injuria.”
[18]
[84]
On
the facts found by the Court
a
quo
,
when the respondent injured himself it was the first time that he had
used that particular water slide. Furthermore, his evidence
that he
was given the go ahead by the official on duty to descend even though
at that stage he was in a kneeling position, must
be accepted. The
respondent testified that he thought that the depth of the water at
the slide’s exit point was similar to
the depth of the water at
the deep end of the pool and that it would reach up to his chest. He
testified further that he had used
similar water slides at other
resorts where his experience had been that the depth of the water
upon exit would take him up to
his chest or thereabouts. He stated
further that had Mr Memani told him that he should not go down head
first he would have obeyed
him. His evidence was also that he had not
taken any notice of the signs warning him not to descend other than
feet first. Finally,
the respondent was asked by his counsel whether
if he had known that the water upon exit would only have taken him
somewhere up
above his knees or midway between his knees and his
waist he still would have descended head first. His answer was that
he would
not have done so since the water would have been too shallow
and similar to that in a baby pool. Taking all this evidence into
account it appears to me that the appellant has come nowhere near
establishing knowledge, appreciation and consent of the risk on
the
part of the respondent.
The
exemption agreement defence
[85]
In
contending that it was exempt from liability for the injury suffered
by the respondent, the appellant pleaded and contended that
by reason
of two prominent signs at the entrance to the resort advising that
visitors entered and used it at their own risk, the
respondent must
have taken to have agreed to these terms.
[86]
The
two signs appear at pages 533 – 534 of the record. They are
prominently displayed on either side of the entrance to the
resort
just before the ticket office. The relevant part of sign A, on the
left hand side, reads in English as follows: ‘
Take
care – all facilities to be used at your own risk’
(record
page 481)
.
It is followed, however, by an injunction to visitors to the resort
to look after their valuable articles. It is also followed
by a
request that tickets be retained for inspection purposes and
notification that ‘
the
Council accepts no liability whatsoever for the loss of any article
from these premises however caused’
.
[87]
The
sign on the right hand side does not address the question of risk.
Although the appellant placed no reliance on it, a third
sign was
displayed just within the entrance to the resort on the wall opposite
the ticket office (record page 536). Under the heading
‘
Rules
applicable to this pool’
rule number two reads: ‘
All
facilities are used at your own risk and the Council accepts no
liability whatsoever for the loss of any article from these

premises’
.
A list of prohibited activities follow but diving is not listed
amongst them.
[88]
For
the sake of completeness I should add that it would appear that
sometime after the respondent’s accident prominent new
notices
(record page 502 and 584 – 586) were erected, apparently also
just within the entrance to the resort near the ticket
office. They
contained the following warning: ‘
Please
note that all facilities are used at your own risk’
.
In smaller letters below this warning appear the words: ‘
The
City of Cape Town accepts no liability whatsoever for
any
injuries
or for the loss of or damage to any property’
.
[my
underlining].
It is common cause that these signs were not displayed at the time of
the incident, and were the first signs to make reference
to
‘
injuries
’.
[89]
The
respondent admitted that he was aware of the presence of the signs at
the entrance to the resort but stated that he did not
read them. This
too is not in dispute. The issue is then whether the respondent was
bound by the provisions of the sign stating
‘
Take
care – all facilities to be used at your own risk’
and
what risk was covered by that warning.
[90]
The
Court
a
quo
found that it was difficult to fathom with any precision the risk
that the appellant was referring to in the disclaimer notice/notices.

It held further that, given the potentially far-reaching consequences
and magnitude of the disclaimer, it was imperative that the
appellant
made specific reference therein to injuries which might be sustained
by users of the resort’s facilities. The Court
a
quo
found further that the warning was ambiguous and therefore had to be
interpreted against the appellant. As a result it found that
it was
unnecessary to deal with the respondent’s further argument that
the disclaimer notice fell foul of public policy and
the
Constitution.
[91]
For
the purposes of considering the exemption defence I am prepared to
accept that by reason of the doctrine of quasi mutual assent
the
respondent must be taken to have read the signs in question and be
bound by their terms.
[19]
The
facts in the present matter as regards the visibility of the signs in
question are somewhat similar to those in
Durban’s
Water Wonderworld (Pty) Ltd v Botha and Another
[20]
where Scott JA stated as follows:
“
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.”
[92]
On
behalf of the appellant it was contended that the words on the
relevant sign were not ambiguous and were not qualified in any
way.
Counsel further contended that the expression ‘
at
your own risk’
was well known and sought to rely on the cases of
Holm
v Sonland Ontwikkeling (Mpumalanga) (Edms) Bpk
[21]
and
Van
Wyk v Thrills Incorporated (Pty) Ltd
.
[22]
In the latter case the warnings were explicit: ‘
Hot
rod racing is dangerous - any member of the public attending this
meeting does so entirely at their own risk’
and
‘
You
attend this meeting at your own risk. Speedway racing can be
dangerous. Please do not walk near or stand close to the fence
while
a race is in progress. Do not sit on the lower concrete seats’
.
[23]
In addition other notice boards warned patrons to ‘
Keep
away from the fence during performance’
.
[24]
The adequacy of the warnings was also only one factor in the larger
question of whether the appellant had taken reasonable precautions

against a spectator being injured. The case therefore offers little
assistance to the appellant.
[93]
In
Holm
[25]
a
warning notice contained the phrase ‘
(e)ntry
to this premises is completely at your own risk’
but it also referred to ‘
injury
to anyone entering’
the premises. In any event it was common cause that the alleged
exclusion clause never came to the attention or knowledge of the

plaintiff and thus could not be relied upon by the defendant. This
case is also of no assistance to the appellant.
[94]
A
case in point, however, is
Swinburne
v Newbee Investments (Pty) Ltd
[26]
where the Court was concerned with the proper interpretation of
clauses contained in a lease agreement. It held that the proper

approach to the construction of a disclaimer clause was set out in
Durban’s
Water Wonderland (Pty) Ltd
and
quoted with approval the following passage:
“
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’.”
[27]
[95]
Turning
to the wording of the signs in the present matter, it is immediately
apparent that the sign at the entrance outside of the
resort makes no
reference to injury to a person, stating only that ‘
All
facilities to be used at your own risk’
.
Nor are these facilities listed or explained. Significantly, the
warning is followed by references to taking care of one’s

valuable articles and that the Council will accept no liability for
the loss of ‘
any
article from these premises’
however caused. The second sign just within the precincts of the
resort similarly makes no reference to the risk of injury to a

person. In fact it links the concepts of risk and the loss of
property even more closely than the external sign by combining them

in the only relevant warning, namely ‘
All
facilities are used at your own risk and the council accepts no
liability whatsoever for the loss of any article from these

premises’
.
[96]
One
of the questions which arose in
Swinburne
was whether the words ‘
any
damage’
in
the provisions of a lease extended to a claim for damages arising
from personal injury. The Court found against the party invoking
this
disclaimer as a defence to liability stating as follows:
“
I
am not satisfied that a reasonable person reading this clause would
understand the reference to ‘any damage’ as extending
to
a claim for damages arising from personal injury. It appears in a
clause that in other respects, both preceding and following,
is
clearly dealing only with loss or damage to physical property. There
is no word that refers in clear terms to harm to the person
as would
have been the case had the word
‘
injury’
or ‘personal injury’ been used. Whilst a negligent act or
omission may cause both damage to property and
physical injury to the
person the true question in construing this clause is whether the
reference to ‘any damage’
extends to the latter. In my
view, the clause is perfectly capable of a construction that confines
its scope to damage to property.
The clause is capable of a
construction that confines its scope of operation to situations
causing damage to property and that
construction is consistent with
the other provisions of the clause and the lease as a whole. There is
no indication anywhere in
the lease that what is being sought is an
exemption from liability for causing personal injury arising from
negligence. There is
also no exclusion of the landlord’s
obligation to make the premises safe for those residing in and
visiting them. Neither
‘negligence’ nor ‘injury’
is used in any clause. At best for Newbee Investments, the clause is
ambiguous
and applying the principles discussed earlier in this
judgment it falls to be construed against Newbee Investments.”
[28]
[97]
I
am not satisfied that a reasonable person reading the provisions of
the two notices in the present matter would understand the
reference
to using the facilities at their ‘
own
risk’
as
extending to exclude a claim for damages arising from personal
injury. There is no wording referring in clear terms to physical
harm
to a person as would have been the case had the word ‘
injury’
or a variant thereof been used. In my view the relevant provisions in
the two notices are readily capable of a construction that
confines
their scope to damage to, or loss of, property. At best for the
appellant the disclaimer clauses are ambiguous as to whether
they
extend to physical injuries and therefore they fall to be construed
against the appellant.
[98]
It
follows that the Court
a
quo
was correct in holding that the appellant was not exempted by the
warning notices from liability for the consequences of it having

negligently caused the accident in which the respondent was injured.
It is unnecessary therefore to consider the argument
that
upholding the disclaimer defence in these circumstances would be
contrary to public policy or the Constitution.
Apportionment
[99]
Finally,
the appellant challenged the Court
a
quo
’s
findings on apportionment contending that when the respondent’s
‘
effective
recklessness’
was weighed against the appellant’s ‘
simple
negligence’
any apportionment should be heavily in favour of the appellant.
[100]
In
its findings the Court
a
quo
took into account on the one hand that the respondent had ignored
warning signs and that his decision to descend head first was

unreasonable in that it was based on previous experiences at other
slides. It discounted as a factor weighing against the respondent
his
‘
appetite
for risk’
as evidenced by his statement at one point that even if he had read
the signs he might or might not have taken the risk. The Court
a
quo
also gave no weight to the role of the respondent’s
breaststroke movement which may have caused him to descend deeper
into
the water. In this regard it held that there was no clear
evidence as to what extent that movement might have facilitated the
occurrence
of the accident. Implicit in the Court’s finding was
a further conclusion, with which I also agree, namely, that the
respondent’s
blameworthiness in descending head first cannot be
exacerbated by the fact that he performed a breaststroke manoeuvre
upon entry
into the water. For the reasons already discussed I am of
the view that the Court
a
quo
did not err or misdirect itself in the apportionment exercise in the
manner it approached the issue of the breaststroke manoeuvre.
[101]
On
the other side of the scale the Court
a
quo
found that the appellant had been negligent in two respects, namely,
that it had failed to ensure that the slide was monitored
by
employees and/or lifeguards in order to prevent it constituting a
source of danger to users; secondly, it had failed to ensure
that
there was sufficient water in the swimming pool to prevent the
respondent being injured when he descended head first. In this
latter
regard it referred to the evidence that the depth of the water at the
exit of the water slide was not specifically indicated
and the
respondent’s evidence that had he had known that the water was
so shallow he would not have descended head first.
[102]
In
South
British Insurance Co Ltd v Smith
[29]
it was held that section 1(1)(a) of the Apportionment of Damages Act
34 of 1956 requires the Court to assess the degree of the
claimant’s
negligence in relation to the damage which has been caused by the
combination of that negligence and the negligence
of the defendant.
In doing so the Court must determine how far the claimant’s
acts or omissions, causally linked with the
damage in issue, deviated
from the norm of the
bonus
paterfamilias
.
Dealing with the test on appeal the Court stated as follows:
“
From
the very nature of the enquiry, apportionment of damages imports a
considerable measure of individual judgment: the assessment
of ‘the
degree in which the claimant was at fault in relation to the damage’
is
necessarily a matter upon which opinions may vary. …. Were
this Court readily to interfere with the trial Court’s

apportionment of damages, dissatisfied litigants would be encouraged
to appeal in well-nigh every case. Where, therefore, the trial
Court
has correctly found the facts and has made no error in principle,
this Court, as was indicated by Schreiner ACJ in Frodsham’s
…
will not lightly disturb the apportionment decided upon by the trial
Court.”
[30]
[103]
This
approach was reinforced by the dictum of Cloete JA in
Transnet
Ltd t/a Metrorail and Another
v
Witter
[31]
where the following was stated:
“
[Section
1(1)(a) of the Apportionment of Damages Act, 34 of 1956]
requires
the court of first instance to exercise a narrow discretion.
Accordingly, an appeal court will not decide the
question afresh; it
will interfere with the exercise of the discretion exercised by the
trial court only where it is shown that:
‘
(T)he
lower court had not exercised its discretion judicially, or that it
had been influenced by wrong principles or a misdirection
on the
facts,  or that it had reached a decision which in the result
could not reasonably have been made by a court properly
directing
itself to all the relevant facts and principles.’
An appeal court
is therefore entitled to interfere (as it can in respect of sentences
imposed in criminal matters - another example
of the exercise of
a narrow discretion) where its assessment differs so markedly from
that of the court a quo as to warrant
interference.”
(citations
omitted).
[104]
On
behalf of the appellant it was contended that as far as the conduct
of the respondent was concerned regard must be had to his
almost
deliberate ignoring of the warning signs, that his decision to
descend head first was based only upon his previous experiences
at
other water slides and seeing just one other person do so at Mnandi
Resort, as well as his concession that he was a ‘
risk-taker’
and finally the consideration that, even if he had read the warnings,
he might still have disobeyed them.
[105]
In
my view the respondent’s ignoring of the warning signs and
basing his decision to descend head first on rather flimsy or

inappropriate grounds must be taken into account in the apportionment
exercise. However, the respondent’s evidence that even
if he
had read the signs he may still have descended head first is neither
here nor there in the evaluation of fault inasmuch as
it both has no
causal relevance and is speculative.
[106]
Turning
to the other side of the scale the proven negligence on the part of
appellant was its failure to exercise access or control
at the top of
the slide to ensure that, as far as possible, users did not descend
head first.  At worst for the appellant
the comparative
shallowness of the water in the pool at the slide’s exit point
was a secondary factor inasmuch as had the
water been deeper than
0.75 metres the risk of the respondent sustaining a serious injury
would likely have been reduced. In my
view, however, the depth of the
water at the exit point or the lack thereof was not proven as an
independent ground of negligence
on the part of the appellant. The
parties were in agreement that the depth of 0.75 metres was a safe
depth for a feet first descent.
Mr Ngwandi’s evidence was that
in the three years he worked at the resort he had never witnessed nor
heard of anyone being
injured in any manner after descending down the
water slide. There is also the difficult question of whether
increasing the depth
of the water at the exit point might not have
created or exacerbated other dangers such as drowning.
[107]
Although
not specifically stating so, the Court
a
quo
appeared also to take into account the appellant’s failure to
indicate the depth of the water at the slide exit point. In
this
regard it cited the respondent’s ‘
uncontroverted’
evidence that he had not been unaware of the water depth at the exit
point. This approach assumed, unrealistically, in my view,
that the
respondent would have paid attention to any such depth marker. It
also overlooks the evidence that the respondent ignored
every warning
sign on the premises as well as other indications that the water at
the exit point was shallower than in other parts
of the pool. In any
event this omission was not a ground of negligence specifically
relied upon by the respondent in his particulars
of claim.
[108]
In
my view, the Court
a
quo
erred in holding that, on top of its negligence in not adequately
monitoring users of the slide, the appellant was negligent in
failing
to ensure that there was sufficient water in the swimming pool to
prevent the respondent being injured in a head first
descent. In
these circumstances, this Court is entitled to make its own
assessment in relation to the apportionment of damage.
[109]
When
the full picture is considered, what stands out is the fact that had
the respondent taken the trouble to read, and then to
heed, even some
of the many warning signs on the resort’s premises or had he
exercised reasonable care in determining whether
it was safe to
descend head first the accident would never have happened. On the
other hand had the appellant taken simple precautions
to enforce its
rule that no head first descents were permitted, similarly, there
would have been little, if any, likelihood of
the respondent
descending head first and sustaining the injury that he did. In my
view having regard to all the relevant circumstances
and factors it
would not be fair to apportion a greater degree of blame to either of
the parties and the appropriate award is a
50/50 apportionment.
Costs
[110]
None
of the defences raised by the appellant in this appeal has prevailed.
It has succeeded in disturbing the apportionment made
by the Court
a
quo
but only by a factor of 10%. Seen in the context of the appeal as a
whole I would hesitate to describe this limited gain a ‘
substantial
success’
.
Having regard to all the circumstances I consider that the most
appropriate costs order would be that each party bear its own
costs
in the appeal.
Order
[111]
In
the result the following order is made:
1.
The
appeal succeeds but only to the extent that the Court
a
quo
’s
apportionment of 60/40 in favour of the respondent is set aside and
replaced with the following order:
The
defendant is liable for 50% (fifty percent) of such damages the
plaintiff may prove to have sustained in the accident that occurred

on 7 January 2011.
2.
Each
party will bear its own costs in the appeal.
____________________
BOZALEK
J
____________________
SAMELA
J
____________________
WILLE
J
For
the Appellant

:           Adv J Butler
(SC)
As
Instructed by

:           Clyde &
Co
For
the Respondent

:           Adv R Van
Rooyen (SC)
Adv
E Benade
As
Instructed by

:           Lester
& Associates
[1]
1966 (2) SA 428
(A) at 430.
[2]
2006 (1) SA 461
(SCA).
[3]
At 468A-C
(para 12).
[4]
2015 (4) SA 574
(SCA) at 583B-C
(para 15).
[5]
2015 (1) SA 1
(CC).
[6]
ZA
above
n 4 at 583-5D (paras 17-9).
[7]
2014 SA 398
CC at para 53.
[8]
2010 (6) SA 83
(SCA) at 91F
(para 24).
[9]
2018 (1) SA 189 (SCA).
[10]
Ibid
at
194G-H (para 15).
[11]
Section 12(2) of the
Constitution.
[12]
1966 (2) SA 428
(A) at 430E-F.
[13]
Rex v
Dhlumayo and Another
1948
(2) SA 677
(A) at 706.
[14]
See
Santam
Bpk v Biddulph
2004 (5) SA 586
(SCA) at para 5.
[15]
J McElhaney
and others from
The
Human Neck Injury Mechanism and Biomechanics Warrendale, PA, Society
of Automotive Engineers, 1979, pp 47 – 53.
[16]
2001 (1) SA 1197
(SCA) at para
7.
[17]
1973 (4) SA 764
(AD) at 781D.
[18]
Ibid
at
779B-C.
[19]
See
Naidoo
v Birchwood Hotel
2012 (6) SA 170 (GSJ).
[20]
1999 (1) SA 982
(SCA) at 992B.
[21]
2010 (6) SA
342 (GNP).
[22]
1978 (2) SA
614 (A).
[23]
Ibid
at
620H – 621A.
[24]
Ibid
at
621A.
[25]
Above n 21 at 344G.
[26]
2010 (5) SA
296 (KZD).
[27]
Ibid
at
para 23.
[28]
Ibid
at
para 35.
[29]
1962 (3) (AD) 826.
[30]
Ibid
at
837I-J
.
[31]
[2008] ZASCA 95
;
2008 (6) SA
549
(SCA) at 557A–C.