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[2018] ZAWCHC 173
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Carelse v City of Cape Town (13310/2015) [2018] ZAWCHC 173; [2019] 2 All SA 125 (WCC) (12 December 2018)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
“
REPORTABLE”
Case
No: 13310/2015
In
the matter between:
FATIMA
CARELSE Plaintiff
and
THE
CITY OF CAPE
TOWN Defendant
QUINTON
EKSTEEN First
third party
DYLAN
EKSTEEN Second
Third party
JUDGMENT
DELIVERED ON 12 DECEMBER 2018
Vos,
AJ
INTRODUCTION
[1]
At approximately 13:15 on 7 December 2013 at the Harmony Park Day
Camp (“the Day Camp”), Strand, Western Cape Province,
the
plaintiff was swimming in one of the swimming pools of the public
facility, when she was viciously attacked by a dog.
[2]
As a result of the injuries that she sustained in the attack, she
instituted action against the defendant (“the City”)
in
which she claims payment of her damages.
[3]
The City has disputed liability, but in the event of it being held
liable to the plaintiff, it claims a contribution from the
first and
second third parties. I shall refer to the first third party as “Mr
Quinton Eksteen”, and to the second third
party as “Mr
Dylan Eksteen”.
[4]
In terms of the provisions of rule 33 (4) of the Uniform Rules of
Court, it was agreed that the issue of liability had to be
adjudicated first, and the question of quantum would stand over for
later determination, if necessary.
ISSUES
THAT ARISE FOR DETERMINATION
[5]
The plaintiff’s claim against the City, based on a breach of a
legal duty, was pleaded as follows:
“
6. At all
material times, the City owed the public utilising the premises and
the plaintiff in particular a duty of care, which
duty of care
entailed that one or more or all of the following reasonable steps
was / were taken:
6.1.
the premises was
(sic)
kept in a safe condition for use by the
public and the plaintiff in particular;
6.2.
the premises did not constitute a source of danger when used by the
public and the plaintiff in particular;
6.3.
no dogs were allowed on the premises;
6.4.
no unaccompanied, unleashed and dogs without muzzle nooses were
allowed on the premises;
6.5.
to take all necessary steps to avoid incidents such as the one which
gave rise to this action;
6.6.
to ensure the safety of any person in or at the premises;
6.7.
to ensure that any person or entity employed, alternatively
contracted, to carry out any of the duties referred to hereinabove,
would do speedily, properly and effectively.”
[6]
The City has admitted that on 7 December 2013, at approximately
13:15, at the Day Camp, the plaintiff, while swimming in one
of the
swimming pools, was viciously attacked by the dog.
[7]
The City has also admitted that the Day Camp was used by members of
the public, and that the City:
“…
owed
the public utilising the premises and the plaintiff a duty of care…
”.
[8]
The plaintiff has alleged that the incident was caused wrongfully and
negligently by the City’s employees by
inter alia
failing to ensure that no dogs were allowed on the premises.
[9]
Save for
admitting that the City owed the plaintiff a “duty of care”,
all the grounds of negligence and wrongfulness
are denied in the
City’s plea. Although the parties used the phrase “duty
of care” in the pleadings, that nomenclature
is inaccurate,
because in
Home
Talk Developments (Pty) Ltd and Others v Ekurhuleni Metropolitan
Municipality
[1]
the
Supreme Court of Appeal said the following about “duty of
care”:
“
Before leaving
the foreign authorities, it needs to be mentioned that in English law
'duty of care' is used to denote both what
in South African law would
be the second leg of the inquiry into negligence and legal duty in
the context of wrongfulness. As Brand
JA observed in Trustees, Two
Oceans Aquarium Trust at 144F, 'duty of care' in English law
'straddles both elements of wrongfulness
and negligence'.
Accordingly, the phrase 'duty of care' in our legal setting is
inherently misleading.”
[10]
In further support of the denial of liability, the City pleaded that:
“…
it did
comply with its duty of care by taking reasonable precautionary steps
to keep the premises in a safe condition and ensure
the safety of any
person in or at the premises”.
[11]
The City also pleaded that:
“…
the
dog was brought onto the premises unlawfully by a third party
(Mr
Dylan Eksteen)
and in contravention of the defendant’s
by-laws, and appropriate notice boards in and around the premises.”
[12]
The plaintiff averred in the particulars of claim that the Day Camp
was under the control and in possession of the City, who
exercised
such control and possession through its employees, who were at all
material times acting in the course and scope of their
employment.
Those allegations were denied in the City’s plea.
[13]
Mr Quinton Eksteen and Mr Dylan Eksteen did not deliver a notice of
intention to defend, or plea to the third-party notice
addressed to
them.
[14]
In summary, the issues that have to be decided, are as follows:
[14.1] what is the nature
of the City’s admitted legal duty?
[14.2] did the City act
in a wrongful and negligent manner?
[14.3] was the Day Camp
under the control of the City?
[14.4] did the employees
of the City exercise control at the Day Camp?
[14.5] were the employees
acting within the course and scope of their employment?
[14.6] are the third
parties liable to make a contribution to the City?
THE
EVIDENCE FOR THE PLAINTIFF
[15]
The plaintiff, Ms Zulfah Carelse, Mr Emilio Nelson and Mr Dylan
Eksteen (the second third party) testified on behalf of the
plaintiff.
[16]
The plaintiff testified that on 7 December 2013 she, together with
friends, travelled to the Day Camp in a bus. They were looking
forward to an enjoyable day of recreation. They arrived at the main
entrance to the Day Camp, where their bags and possessions
were
searched by about 15 law enforcement officials. The search was
focused primarily on looking for alcohol and firearms.
[17]
She stated that immediately in front of the main entrance gate, there
are signboards that
inter alia
prohibit alcohol and dogs at
the Day Camp. After they had entered through the main entrance, they
found a convenient place to sit,
and to settle down for the day.
[18]
At about 13:15 she was swimming in one of the swimming pools at the
Day Camp, and all of a sudden, a dog attacked her in the
swimming
pool, by biting her, and causing serious injuries. After the incident
the plaintiff was immediately attended to by law
enforcement
officials, and she was taken to an office inside the Day Camp. There
she was given emergency treatment, after which
an ambulance took her
to hospital.
[19]
Ms Zulfah Carelse testified that she is a niece of the plaintiff. She
accompanied the plaintiff on the day in question, and
she stated that
they arrived at the Day Camp sometime between 09:00 and 10:00. She
was also in the swimming pool together with
the plaintiff, and they
were playing with a ball. There was a large group of people in the
swimming pool, and she noticed a dog
that was on a leash outside the
swimming pool. She noticed that the leash was loosened and then the
dog jumped into the swimming
pool. It attacked the plaintiff by
biting her. After the incident, she accompanied the plaintiff to a
nearby office where law enforcement
officials attended to the
plaintiff. After the incident, she also noticed a law enforcement
official who was on a four-wheel motorbike.
During cross-examination
she stated that, when the dog jumped into the swimming pool, Mr Dylan
Eksteen went after the dog into
the swimming pool, but he was also
bitten by the dog.
[20]
Mr Emilio Nelson testified that he accompanied the plaintiff on the
day in question. He knew the Day Camp, as he had previously
visited
it. He confirmed that the law enforcement officials searched the
party of people at the main entrance. After entering the
Day Camp,
they put up a gazebo, and that is where they put their personal
belongings. Prior to the dog attacking the plaintiff,
he noticed the
dog on a jetty, which is in close proximity to the swimming pool.
That was about 30 minutes before the attack. At
the time of the
attack, Mr Nelson was also in the swimming pool.
[21]
Mr Dylan Eksteen testified that, prior to the incident, he had
attended the Day Camp on several occasions. He was born on 20
June
1997. On the day of the incident, he was sixteen years old, and he
entered the Day Camp through an entrance which he described
as a
“
free entrance
”. The entrance appears on a
photograph which is marked exhibit “A”, and it is
reproduced as follows:
[See
PDF for image]
[22]
The photograph depicts an unguarded entrance to the Day Camp. The
obstacles preventing vehicular entry, are four pillars, but
it is
clear that pedestrians can easily access the Day Camp through the
pillars. On the left-hand side of the photograph, there
is a gate,
but it serves no purpose because there is a large opening to the
right of the gate where pedestrians and dogs have free
access to the
Day Camp. The photograph also shows that there is a footpath leading
through two of the concrete pillars, and it
runs in the direction of
the jetty and swimming pools that are situated at the Day Camp.
[23]
Mr Eksteen said that there were no law enforcement officials at the
“
free entrance
”, and many people use that
entrance. He entered the Day Camp with the dog on a leash, walked
over the jetty, and on the other
side of the jetty, he walked down
some stairs towards the swimming pool in question. He gave the dog
water and rinsed it. Somehow,
the dog came loose, it jumped into the
swimming pool, apparently on its way towards the ball in the swimming
pool, and ended up
attacking the plaintiff. Mr Eksteen followed the
dog by trying to get it under control, but the dog also bit him.
[24]
After the incident, he left the dog and ran to a law enforcement
official in the Day Camp as an angry mob wanted to attack
him with
bottles and bricks. He stated that many people bring their dogs to
the Day Camp, and he was aware that no dogs are allowed
inside the
Day Camp. His evidence to the effect that many people bring their
dogs to the Day Camp, was not challenged by the City.
EVIDENCE
FOR THE CITY
[25]
Mr Lourens Fourie, Mr Willem Le Roux and Ms Lauren Rodrigues
testified on behalf of the City.
[26]
Mr Fourie testified that he is employed by the City as a first
inspector. He is in control of the whole Helderberg area, and
in
December 2013 he was a senior inspector, and the Day Camp fell under
his control. He was second in command of his station at
the time, and
he has been employed by the City for 28 years. He has been stationed
at the Day Camp for the last 17 years. The Day
Camp is managed and
controlled by the City, and the law enforcement officials at the Day
Camp are tasked with policing the Day
Camp and enforcing the relevant
by-laws.
[27]
On the day in question, there were eight law enforcement officials
that were employed at the Day Camp. They worked in shifts
of four
people. Two officers were stationed at the Day Camp, while the other
two officers patrolled the Helderberg district that
consisted of
beaches from the Strand to an area known as Koggelbay. At the time of
the incident, the biggest concern at the Day
Camp was the abuse of
alcohol, but they had previously not experienced a dog attack.
[28]
If an incident occurred at the Day Camp, it was reported to his
office, and if there were no personnel in the office, it would
be
reported to the main entrance. Depending on the level of seriousness
of the incident, the metro police would also be involved,
and they
also had an office in the Day Camp.
[29]
There was also a private security guard deployed during the day and
two private security guards during the evening. Their main
purpose
was to look after the buildings in the Day Camp. There were also life
guards employed at the Day Camp, but their concern
was to look after
the safety of the public while swimming, and they had to prohibit
people from diving off the jetty, into the
swimming pools.
[30]
He
testified that, although no dogs were allowed inside the Day Camp
during December and the summer months, dog owners were told
on a
daily basis to remove their dogs from the Day Camp. If they did not
obey an instruction to remove the dogs, they could be
fined, and dogs
could also be confiscated. The dogs enter the Day Camp through the
main entrance and through the two un-manned
side entrances.
[2]
[31]
Law enforcement officials were deployed at the main entrance to the
Day Camp. In addition to the main entrance, there are also
two other
entrances at the sides of the Day Camp. One of those entrances, is
the “
free entrance
” as depicted on exhibit “A15”.
That entrance is on the northern side, and the other is on the
southern side.
[32]
Approximately 90% of the people attending the Day Camp, enter through
the main entrance, and the remaining 10% of the visitors,
gain access
to the Day Camp through the two side entrances. The two side
entrances to the Day Camp, do not have any personnel to
search
visitors, or to prevent dogs from entering the Day Camp. On the day
of the incident, there were approximately 1000 visitors
at the Day
Camp. The maximum amount of people that the Day Camp can accommodate,
is 3500 people.
[33]
The fencing of the Day Camp falls within the jurisdiction of the camp
management, which is executed by the City. Mr Fourie
was clear that
during the month of December, dogs are removed from the Day Camp on a
daily basis.
[34]
Mr Willem Le Roux testified that he is the manager at the Day Camp
and he is employed by the City. He has been working for
the City for
the last 26 years and he knows that the Day Camp and tidal pools were
built by the City. The law enforcement officials
at the main entrance
to the Day Camp,
inter alia
ensure that no alcohol or dogs are
brought into the Day Camp, and they also manage the people who attend
the Day Camp. He stated
that the two side entrances cannot be blocked
off, as the beach must be open to the public at all times. Between
10% and 20% of
the visitors to the Day Camp, gain access through the
two side entrances.
[35]
Mrs Lauren Rodrigues testified that approximately 800 people attended
the Day Camp on the day in question. She was deployed
at the main
entrance together with Mr Titus. Law enforcement officials from other
branches of the City, also assisted them at the
main entrance on that
day. She did not witness the incident, but became involved after it
had been reported to her.
[36]
On the day, she had to search visitors at the main entrance for
alcohol. Alcohol presented a significant problem, as approximately
two out of ten visitors try to bring alcohol into the Day Camp. She
was doing duty at the main entrance and she testified that
when they
saw a dog, they would ask the owner to remove the dog. If the owner
did not obey, they would impound the dog. When she
received the call
that the plaintiff had been bitten by a dog, she saw the plaintiff
coming from the swimming pool and she assisted
by calling the
ambulance. After the incident, the dog was confiscated by the City
and thereafter put down.
RELEVANT
LEGAL PRINCIPLES APPLICABLE
[37]
The plaintiff’s claim is based on the contention that the City
wrongfully and negligently omitted to prevent harm to
the plaintiff.
I proceed to consider the relevant legal principles.
[38]
An
omissio
is not
prima
facie
wrongful.
In
Hawekwa
Youth Camp and Another v Byrne
[3]
the Supreme Court of Appeal had to consider whether a teacher, and by
extension the responsible Minister, was liable when a child,
during a
school excursion, fell from an upper bunk bed with an inadequate
protective barrier. Brand JA said the following in relation
to the
principles concerning wrongful omissions
[4]
:
“
. . . [They]
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 eg [Telematrix (Pty) Ltd t/a Matrix
Vehicle Tracking
v Advertising Standards Authority
2006 (1) SA
461
(SCA) ([2006]
1 All SA 6
;
[2005] ZASCA 73)]
para 14; [Local
Transitional Council of Delmas and Another v Boshoff
2005 (5) SA
514
(SCA) ([2005]
4 All SA 175
;
[2005] ZASCA 57)]
D paras 19 –
20; Gouda Boerdery BK v Transnet
2005 (5) SA 490
(SCA) ([2004]
4
All SA 500
;
[2004] ZASCA 85)
para 12).”
[39]
In the
matter of
Van
Vuuren v Ethekweni Municipality
[5]
the Supreme Court of Appeal had to determine whether a municipality,
providing a beach side facility swimming pool with slides,
was under
a legal duty to provide supervision or access control. Whether or not
the municipality was negligent, was a question
of foreseeability.
[40]
Nafsa ADP
stated the following
[6]
:
“
[24] The
concern expressed by the court below that the imposition of a legal
duty on the Municipality would result in an abdication
of parental
control loses sight of the fact that parents are not allowed entry to
the facility itself, because its use is restricted
to children under
the age of 12. Furthermore, they have no authority over the actions
of other children. After all, the facility
is the Municipality’s
and lies within its administration and control.
[25] The additional
concern expressed by the court below, that providing supervision and
access control would place an intolerable
financial burden on the
Municipality, is also without foundation. As can be seen from the
photograph, access to the slides can
be controlled at the top of the
stairhead by an official. As stated above, the evidence by Gregersen,
that this is all that would
be required, was unchallenged. The
appellant's evidence that there is supervision at other public pools
was also uncontradicted.
It might well be that a simple and safely
constructed turnstile on either side of the slide with an official
centrally placed might
be even more effective. I hasten to add that
there was no evidence on that score. However, it was clear that a
municipal official
at the top of the stairhead could exercise
control. The Municipality chose deliberately not to lead any evidence
about the extent
of the burden, financial or otherwise, it would have
to bear in the event of the imposition of a duty.
[29] … the
Municipality, by providing the slide and pool facility for the use of
young children, created a potential risk
of harm due to misadventure.
Considering, in relation to wrongfulness, the criteria of
reasonableness, constitutional norms and
policy, the compelling
conclusion is that in the circumstances set out above, a legal duty
is owed by the Municipality to avoid
negligently causing harm to
persons in the position of Jacques. As appears from what is stated
earlier, the steps that could be
taken to prevent harm by ensuring
access control are relatively simple and would not place an
intolerable financial burden on the
Municipality.
[31] As stated above,
foreseeability was fiercely contested by the Municipality,
particularly on the basis that parents are obliged
to care for their
children and that the Municipality was entitled to assume that
parents would look after and supervise their children.
It was
contended on behalf of the Municipality that since the appellant
herself did not foresee that Jacques would be injured,
it follows
that the Municipality itself could not be expected to foresee harm of
the kind suffered by Jacques. We are here concerned
with whether,
objectively, a sensible person in the position of the Municipality
would foresee the reasonable possibility of operating
the facility
without access control causing harm to children in the position of
Jacques. As stated above, it was obvious to Gregersen.
From his
evidence, it would have been obvious to any official operating the
facility on behalf of the Municipality, that unattended
access had
the effect of children bunching up and pushing against each other and
that the kind of harm which ensued in this case
was a reasonable
possibility. The Municipality failed to take steps to guard against
such an occurrence.
[32] Thus, the
Municipality's contention that failure to provide supervision or
access control was not negligent, must fail.”
[41]
In
Pro
Tempo Akademie CC v Van Der Merwe
[7]
the Supreme Court of Appeal found that the appellant had created a
dangerous situation by placing a steel rod in a play ground.
It was
held liable for the damages suffered by a child injured by such steel
rod, as it did not take reasonable steps to prevent
the foreseeable
risk of harm occasioned by its own prior positive conduct. In that
regard, the Supreme Court of Appeal quoted
[8]
the following passage in Lawsa with approval
[9]
:
“
A duty may
arise when the defendant has by lawful prior positive conduct
(commissio) created a potential risk of harm to others.
If the actor
then omits to take reasonable steps to prevent the risk from
materialising (omissio), the duty is breached.”
[42]
In
Country
Cloud Trading CC v MEC, Department of Infrastructure Development
[10]
the Constitutional Court held that
[11]
:
“
[22]
Wrongfulness is generally uncontentious in cases of positive conduct
that harms the person or property of another. Conduct
of this kind is
prima facie wrongful.”
[43]
In
Minister
of Safety and Security v Van Duivenboden
[12]
the Supreme Court of Appeal dealt with a matter which involved the
allegation of a negligent omission:
[13]
“
[12] A
negligent omission is unlawful only if it occurs in circumstances
that the law regards as sufficient to give rise to a legal
duty to
avoid negligently causing harm. It is important to keep that concept
quite separate from the concept of fault. Where the
law recognises
the existence of a legal duty it does not follow that an omission
will necessarily attract liability - it will attract
liability only
if the omission was also culpable as determined by the application of
the separate test that has consistently been
applied by this court in
Kruger v Coetzee, namely whether a reasonable person in the position
of the defendant would not only have
foreseen the harm but would also
have acted to avert it.”
[44]
In
Cape
Town Metropolitan Council v Graham
[14]
the Supreme Court of Appeal held that the Cape Town Metropolitan
Council was liable for damages suffered as a result of a rock
fall
and landslide incident on Chapmans Peak Drive. Liability arose due to
the foreseeability of a serious incident following a
wet month
preceding the incident, and a history of rock falls and landslides in
the area. The Court found that it should have closed
the road prior
to the incident.
[15]
[45]
In
ZA
v Smith
[16]
the Supreme Court of Appeal held as follows:
“
[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 of Table Mountain or the Drakensberg
escarpment at Tugela Falls
against the dangers they may encounter, it could only be answered
with regard to all the facts and circumstances
of that case. Included
amongst these 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; and so forth. To
decide, without having regard to all these
considerations that the
reasonable person would never take any steps to protect or warn
visitors to Table Mountain or Tugela Falls,
would at best be
superficial and ill-considered. Moreover, simply to transpose this
ill-considered decision onto the facts of this
case, would plainly be
untenable.”
[46]
In
The
City of Cape Town v Shaun Rhoode
[17]
the full bench of this Division considered an appeal by the City of
Cape Town against an order that the City was liable for 60%
of the
respondent’s damages arising out of injuries which he sustained
when he used a water slide that was owned and operated
by the City.
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 Court held
that the City was liable for 50% of the proven
damages, and noted
that “
in
recent years our courts have frequently warned against blurring the
elements of wrongfulness and negligence
”.
[18]
The City was held liable, because the Court found that it acted in a
wrongful and negligent manner.
[47]
In
Bridgman
N.O v Witzenberg Municipality
[19]
the plaintiff, in his capacity as
curator
ad litem
for a young woman, successfully sued the municipality for damages
arising out of a rape which was perpetrated upon her while being
mentally disabled. The particular resort in question, was owned,
managed and controlled by the municipality, and it was held liable
on
the ground of inadequacy of security arrangements. The Court held
that in the light of the Constitutional duties imposed upon
a
municipality, and because it owns, managed and controlled the resort,
the municipality’s failure to prevent the rape, was
wrongful.
With regard to the question of negligence, the Court held that
negligence was established based on the following facts.
The
abduction and rape occurred within the fenced boundaries of the
resort, the resort was subject to access control and secured
by
guards who patrolled the premises. The three juvenile perpetrators
who committed the crime, gained access to the resort on presentation
of a season ticket. On the day in question, only two security guards
were on duty, one patrolling, and one manning the gate.
[48]
When a
Court has to determine whether wrongfulness has been established, it
is also important to consider whether a defendant acted
in a
reasonable manner. In
Odinfin
(Pty) Ltd v Reynecke
[20]
the following was said:
“
The test for
determining wrongfulness in a delictual sense for omissions was
formulated by this court in Van Eeden v Minister of
Safety and
Security (Women's Legal Centre Trust, as Amicus Curiae) as follows:
'.
. . An omission is wrongful if the defendant is under a legal duty to
act positively to prevent the harm suffered by the plaintiff.
The
test is one of reasonableness. A defendant is under a legal duty to
act positively to prevent harm to the plaintiff if it is
reasonable
to expect of the defendant to have taken positive measures to prevent
harm. The court determines whether it is reasonable
to have expected
of the defendant to have done so by making a value judgment based,
inter alia, upon its perception of the legal
convictions of the
community and on considerations of policy. The question whether a
legal duty exists in a particular case is
thus a conclusion of law
depending on a consideration of all the circumstances of the case and
on the interplay of the many factors
which have to be considered. . .
.'”
[49]
I proceed to apply the above legal principles to the facts of this
matter, in order to determine whether the City acted in
a wrongful
manner.
DID
THE CITY ACT IN A WRONGFUL MANNER?
[50]
The evidence and the pleadings have established that the following
are common cause:
[50.1]
on the day
of the incident, the City owed a legal duty to the plaintiff to
ensure her safety at the Day Camp
[21]
;
[50.2] on the day of the
incident, the plaintiff’s safety was not ensured, because she
was bitten by a dog;
[50.3] the Day Camp was
operated, managed and controlled by the City’s employees;
[50.4] the Day Camp has
three entrances;
[50.5] the three
entrances consist of a main entrance, an entrance on the northern
side and an entrance on the southern side;
[50.6] the City knew that
visitors gained access to the Day Camp through all three entrances;
[50.7] the City knew that
about 80% to 90% of visitors gained access to the Day Camp by
entering through the main entrance;
[50.8] the City knew that
about 10% to 20% of visitors gained access to the Day Camp through
the entrances on the northern and southern
sides;
[50.9] the City managed,
supervised and controlled access only at the main entrance in order
to prevent alcohol, drugs, firearms
and dogs from being brought onto
the premises through the main entrance;
[50.10] the City did not
conduct any supervision or access control at the entrances on the
northern and southern sides;
[50.11] the City knew
that dogs were a significant problem at the Day Camp, because during
December, they were removed (or confiscated)
on a daily basis.
[51]
The City realised that it had a legal duty to supervise and control
access at the main entrance gate in order to ensure the
plaintiff’s
safety. Its duty was to prevent dogs, alcohol and firearms from
entering the Day Camp.
[52]
So, by placing law enforcement officials at the main entrance, it
complied in a reasonable manner with its legal duty to supervise
and
control access at the main entrance. It did that to ensure the safety
of the visitors to the Day Camp.
[53]
In my view, one of the key issues that falls for determination, is
whether there was a legal duty on the City to supervise
and control
access to the Day Camp in a partial or comprehensive manner in order
to ensure the safety of the public.
[54]
If the legal duty called for limited, or partial supervision and
access control at the Day Camp, the City would not have acted
wrongfully, because the measures taken at the main entrance were
reasonable and sensible. If, on the other hand, the legal duty
involved a comprehensive manner of supervision and access control,
the City would have acted wrongfully, because there was no
supervision and access control at the two side entrances.
[55]
In general, where the public gain access to a public facility via all
the entrances of such a facility, it would be irrational
and
ineffectual to manage, supervise and conduct strict access control at
only one entrance, while conducting no supervision or
access control
at the other entrances.
[56]
When access control must be done in order to prevent dogs from
entering a public facility, such as the Day Camp, it should
be done
in a reasonable and comprehensive manner. There would be no point in
only selecting one entrance area to conduct supervision
and access
control.
[57]
The City could quite easily have put up signboards at the side
entrances, thereby warning visitors not to bring dogs onto the
premises. The evidence is that there are no signboards at the
northern entrance where Mr Dylan Eksteen and the dog entered.
Effective
and prominent signboards would probably have contributed
towards stemming the influx of visitors through the side entrances.
[58]
The placing of law enforcement officers at the two side entrances,
would in all likelihood not have caused financial hardship
for the
City. If there was only one law enforcement officer at the northern
entrance, it is likely that such officer would have
prevented the dog
from entering the Day Camp, and the attack on the plaintiff.
[59]
In any event, the City did not present any evidence in that regard to
claim that the cost of extra law enforcement officials
would have
involved an intolerable financial burden on the City or, would have
been disproportionate to the benefit gained thereby.
[60]
The City knew that visitors and dogs entered the Day Camp through the
two unmanned entrance areas. It took no reasonable steps
to prevent
it.
[61]
I accordingly find that, by failing to provide signboards and access
control at the two side entrance areas, the City breached
its legal
duty in a wrongful manner.
NEGLIGENCE
[62]
The
regularly stated test in
Kruger
v Coetzee
[22]
provides that negligence is established if:
“
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 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.”
[63]
The enquiry into the question whether the City was negligent,
therefore centres around:
[63.1] whether the City
should have foreseen the reasonable possibility that a dog attack
could occur at the Day Camp, and if so:
[63.2] whether the City
should have taken reasonable steps to guard against such dog attack
that took place on 7 December 2013.
Foreseeable?
[64]
I turn to first deal with the question whether it was foreseeable
that a dog could bite a visitor in the Day Camp. While relying
on the
evidence that previously there was no dog attack, counsel for the
City submitted that a dog attack was therefore not foreseeable.
Counsel for the plaintiff submitted that it was foreseeable.
[65]
In general, a reasonable person should continuously and reasonably
evaluate and deal with the facts that confront him. In order
to
predict the likelihood of future harm occurring, the necessary
inferences must be drawn from those facts. In this matter, the
obligation to foresee the danger, is not triggered only after the
first dog attack has taken place. In order to determine whether
a dog
attack was foreseeable, regard should be had to the objective facts
as they existed at the time immediately before the dog
attack
occurred.
[66]
The following should therefore be considered:
[66.1] the City has a
by-law that
inter alia
deals with dangerous dogs;
[66.2] the City has two
signboards at the main entrance informing the public that dogs are
prohibited;
[66.3] the City’s
employees prevented dogs at the main entrance from entering the Day
Camp;
[66.4] it is a generally
known fact that dogs, even small ones, do bite human beings;
[66.5] if dogs only
occasionally or rarely made their appearance in the Day Camp, the
chances of a dog biting somebody, would not
have been significant.
Then a dog attack may possibly not have been foreseen;
[66.6] but, as the number
of dogs and visitors at the Day Camp increased, the risk of a dog
attack would likewise also have increased.
[66.7] the evidence
established that in December the City had to deal with, and remove
dogs from the Day Camp, on a daily basis.
It also confiscated dogs.
[66.8]
during the
month of December, the Day Camp was generally very busy with many
people visiting it
[23]
;
[66.9] it follows
therefore, that there was a significant prevalence of dogs inside the
Day Camp. The more dogs there were, the
greater the possibility that
a dog attack could occur;
[66.10] after the dog
attack, and on 6 January 2014, the City issued an impoundment notice
in terms of sections 7, 14 and 20 of
the City’s Animal By-Law,
2010 read with part 5 (A) of Government Notice R 209, 2002 to Mr
Quinton Eksteen. In that impoundment
notice it stated: “
your
dog is dangerous and constitutes a threat and a source of danger…
”
[66.11] Section 6(b) of
the City’s Animal By-Law, illustrates that the City knows that
dogs can be dangerous:
“
6.
Prohibition relating to the keeping of dogs
No person shall
–
(a)
…
(b)
urge any dog to
attack
, worry or frighten
any person or animal or through negligence fail
to prevent any dog from
attacking
,
worrying or frightening any person or animal, except
where necessary for the defence of such first-mentioned person his
or her property or of any other person;”
(emphasis
added)
[66.12] section 6(h)(ii)
of the by-law also illustrates that the City knows that dogs can be
ferocious, vicious or dangerous:
“
No person shall
–
(h)
permit any dog owned or kept by him or her –
(i)
…
;
(ii)
which
is in the assessment of the authorised official ferocious,
vicious or dangerous to be in any public street or public
place,
unless it is humanely muzzled and held on a leash and under control;”
[66.13] the purpose of
the by-law, is
inter alia
, to prevent dogs from attacking
people. The by-law shows that the City had first hand knowledge that
dogs could be dangerous, ferocious,
vicious, and they do attack
people.
[67]
Given the significant number of dogs and visitors that regularly
frequented the Day Camp during December and the summer season,
the
City should have foreseen the reasonable possibility that it was only
a question of time before an attack would take place.
[68]
I therefore find that a reasonable person, in the position of the
City, would have foreseen the reasonable possibility that
a dog
attack could occur inside the Day Camp.
Reasonable
steps taken?
[69]
I now turn
to deal with the next enquiry, and that is whether the City should
have taken reasonable steps to guard against a dog
attack. The
enquiry as to the reasonableness of the City’s conduct, must be
evaluated in the light of the relevant facts
and circumstances. This
aspect was discussed in
Graham
[24]
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)
[70]
The gravity
of the consequences if a dog had to attack a person at the Day Camp,
is self evident. Often victims of a dog attack
have scars that they
have to bear for the rest of their lives. It is also known that in
some cases children have been savagely
attacked and killed by dogs.
The consequences of a dog attack, can be very serious
[25]
.
[71]
The question of utility involves the weighing up of the cost or
feasibility of additional safety measures against the advantages
that
could be achieved thereby.
[72]
The City knew that dogs were entering the Day Camp through the main
entrance, the northern and southern entrance. In the light
of the
fact that the City appreciated that it had a legal duty to ensure the
plaintiff’s safety and must have foreseen that
dogs can be
dangerous, and therefore bite people, it should have taken reasonable
steps to prevent dogs from gaining access to
the Day Camp through
those two un-manned entrance areas. By preventing dogs from gaining
access through those two entrance areas,
it would have prevented the
dog attack on the plaintiff on 7 December 2013, and it would thus
have complied with its legal duty
towards the plaintiff.
[73]
Despite the
City’s knowledge that there were so many dogs frequenting the
Day Camp, it had no signboard on the northern and
southern side to
warn people not to bring dogs onto the premises. It also had no law
enforcement officer at the northern and southern
entrance. If it had
an appropriate signboard and a law enforcement officer at the
northern entrance (as illustrated above), it
would probably have
prevented Mr Dylan Eksteen and the dog from entering the Day Camp,
because they entered the Day Camp through
the northern entrance. In
that case, the plaintiff would not have been injured. Such steps
would have been reasonable, effective,
affordable and
sustainable
[26]
.
As
stated in
Van
Vuuren
“…
ensuring
access control
[is]
relatively
simple and would not place an intolerable financial burden on the
Municipality
”
[27]
.
[74]
In my view,
the City’s failure to erect an appropriate sign board
[28]
at the northern and southern entrances, and the failure to provide
supervision and access control at the northern and southern
entrances, was unreasonable and negligent. It is unreasonable to only
apply access control and supervision in respect of the majority
of
the visitors to the Day Camp, and in respect of between 10 to 20 %,
no supervision and access control is undertaken. That conduct,
in my
view, falls short of what a reasonable and sensible person, in the
position of a municipality, should do.
THE
QUESTION OF LIABILITY ON THE PART OF THE THIRD PARTIES
Mr
Quinton Eksteen
[75]
The City’s claim against Mr Quinton Eksteen is based on the
actio de pauperie
, alternatively, it is alleged that he
contravened the City’s by-law that prohibits dogs at the Day
Camp, and in the further
alternative, he is liable by failing to take
reasonable steps to prevent Mr Dylan Eksteen from taking the dog to
the Day Camp.
[76]
No evidence was presented to support a claim based on the alternative
claims, and no allegation was made in the pleadings that
the conduct
complained of in the alternative claims was wrongful and negligent.
The alternative claims cannot be upheld.
[77]
I proceed to consider the main claim based on the
actio de
pauperie,
within the context of the authorities.
[78]
In
O'Callaghan
v Chaplin
[29]
,
after an exhaustive review of the authorities, Innes C.J. said :
“
By our law,
therefore, the owner of a dog that attacks a person who was lawfully
at the place where he was injured, and who neither
provoked the
attack nor by his negligence contributed to his own injury, is
liable, as owner, to make good the resulting damage.”
[79]
In the
matter of
South
African Railways and Harbours v Edwards
[30]
it was confirmed that the
actio
de pauperie
is still part of our law, and De Villiers C.J., said:
“
'The action
lies against the owner in respect of harm (pauperies) done by
domesticated animals, such for instance as horses, mules,
dogs,
acting from inward excitement (sponte feritate commota). If the
animal does damage from inward excitement or, as it is also
called,
from vice, it is said to act contra naturam sui generis; its
behaviour is not considered such as is usual with a well-behaved
animal of the kind.”
[80]
What is
meant by an animal acting
contra
naturam sui generis,
is explained by Voet
[31]
as
follows:
'Animals are said
to do harm contrary to their nature when, though tame, they take
on wildness; as when a horse kicks or an ox gores, albeit that a
horse is apt to kick and an ox wont to gore. An ox and a horse, along
with other animals which come under the term 'cattle', are
wont to
graze in a herd under the control of a shepherd without doing harm,
and to that extent they are counted among tame fourfooted
creatures.
Hence it is correctly said that they do damage contrary to the nature
of their kind when on their wildness being roused
they kick or gore.'
(Gane's
translation).
[81]
I agree
with the following remarks of P. M. A. Hunt, the author of an article
entitled “Bad Dogs”
[32]
:
“
The contra
naturam concept seems, in fact, to have come to connote ferocious
conduct contrary to the gentle behaviour normally expected
of
domestic animals. This imports an objective standard suited to
humans. It is far more refined than behaviour literally natural
to
that species of animal. It is what Voet, 9.1.4, means when he speaks
of animalia mansueta feritatem assumunt.”
[82]
In this matter the plaintiff has alleged that Mr Quinton Eksteen is
the owner of the dog, which has not been controverted by
him. The dog
bit the plaintiff in a public place. She was lawfully at the Day
Camp, and the dog was not provoked. I therefore find
that the City
has made out a case that Mr Quinton Eksteen is liable to make a
contribution to the City, in respect of any damages
that the
plaintiff may prove.
Dylan
Eksteen
[83]
The claim against Mr Dylan Eksteen is formulated as follows:
“
10.2 The second
third party unlawfully brought the dog to Harmony Park, in
contravention of the City’s by-laws, which is a
dog-free zone
as clearly indicated by the appropriate notice boards in and around
the premises.”
[84]
No allegation has been made that that the conduct was wrongful, but
the allegation of unlawful conduct may possibly suffice.
However,
there is no allegation that Mr Dylan Eksteen should have foreseen
that the dog was likely to bite the plaintiff. There
is no allegation
that he acted in a negligent manner. That allegation is required to
establish liability.
[85]
Also, no evidence was produced to prove that he should have foreseen
the attack, and no evidence was presented to show that
he failed to
take reasonable steps to guard against the attack. It is unlikely
that such evidence could have been presented, because
he was only 16
years old. I do not think that children of that age have the maturity
to foresee a dog attack. The City says that
it did not foresee a dog
attack. I therefore find that the City has failed to establish that
Mr Dylan Eksteen is liable to make
any contribution to it.
CLOSING
REMARKS
[86]
As the City breached its legal duty to the plaintiff in a wrongful
and negligent manner, it is liable to compensate the plaintiff
for
such damages as she may prove.
[87]
It remains to apportion liability between the City and Mr Quinton
Eksteen. In my view it would be fair to hold that Mr Quinton
Eksteen
should make a contribution of 50% of any proven damages to the City.
ORDER
[88]
I make the following order:
[88.1] It is
declared that the City of Cape Town is liable for such damages as Ms
Fatima Carelse may prove, arising out of
a dog attack on 7 December
2013 at the Harmony Park Day Camp;
[88.2] Mr Quinton
Eksteen is liable to contribute 50% of the aforementioned proven
damages, to the City of Cape Town;
[88.3] The City of Cape
Town shall pay the costs of Ms Fatima Carelse;
[88.4] Mr Quinton
Eksteen is liable to pay the costs of the City of Cape Town only
involving the third-party notice proceedings
against him on an
undefended basis.
______________________
WESLEY
VOS, AJ
ACTING JUDGE OF THE
HIGH COURT
[1]
2018 (1) SA 391
(SCA) at para 25
[2]
The evidence, freely translated from Afrikaans, is as follows: “
And
how do the dogs gain access to the premises? My Lord, through the
main entrance when I do not have officers there, then they
simply
walk past the sign to the swimming pools or to the tidal pools, or
they gain access on the side-on the northern side as
indicated on
page 15 (
of
exhibit A
)
and then also on the southern side of which I do not have a
photograph here.
So
the dogs gain access through the main entrance, the entrance on page
15, which is the northern side, and then also at the entrance
on the
southern side? … Correct”
[3]
2010 (6) SA 83
(SCA) at para 22
[4]
Paragraph 22
[5]
2018 (1) SA 189 (SCA)
[6]
At paragraph 24
[7]
2018 (1) SA 181 (SCA)
[8]
At para [18]
[9]
2ed para 65 at 103 - 4
[10]
2015 (1) SA 1 (CC)
[11]
Paragraph 22
[12]
2002 (6) SA 431 (SCA
[13]
At paragraph 12
[14]
[2001] 1 All SA 215
(A)
[15]
Paragraphs 14 to 15
[16]
2015 (4) SA 574
(SCA) at paragraph 24
[17]
(A314 / 2017) [2018] ZAWHC 49 (17 April 2018) (Unreported)
[18]
At paragraph 22
[19]
2017 (3) SA 435 (WCC)
[20]
2018 (1) SA 153
(SCA) at para 13
[21]
Mr Fourie’s evidence, freely translated from Afrikaans, was:
“So essentially it is the function of the City of Cape
Town
not to allow dogs there… Correct”
[22]
1966 (2) SA 428
(A) at 430 E - F
[23]
Mr Fourie testified that on the day of the incident there were about
1000 people and the Day Camp was busy.
[24]
2001 (1) SA 1197
(SCA) at para 7
[25]
The law reports are replete with victims claiming damages for
serious injuries arising out of dog attacks. In
Trolip
v Wattrus
(EL1416/14, ECD3016/14) [2016] ZAECELLC 11 (6 December 2016) the
plaintiff was bitten by a dog, as a consequence of which he
lost his
ear and suffered serious injuries to his arm, neck and face. In
Cloete
v Van Meyeren
(731/2017) [2018] ZAECPEHC 72 (27 November 2018) the plaintiff was
attacked by three dogs and the injuries were so serious, that
his
left arm had to be amputated.
[26]
See
Za
at para [28]
[27]
At para [29]
[28]
Warning visitors not to bring dogs into the Day Camp
[29]
1927 AD 310
at p. 329
[30]
1930 AD 3
at p. 9
[31]
9.1.4
[32]
(1962) 79 S.A.L.J. 326
at p. 328