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[2015] ZASCA 75
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Za v Smith and Another (20134/2014) [2015] ZASCA 75; 2015 (4) SA 574 (SCA); [2015] 3 All SA 288 (SCA) (27 May 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
REPORTABLE
Case
No 20134/2014
In
the matter between:
FEDERICA
ZA
.................................................................................................................
APPELLANT
and
ANDRÉ
FREDERIK
SMITH
...........................................................................
FIRST
RESPONDENT
MATROOSBERG
RESERVAAT
CC
..........................................................
SECOND
RESPONDENT
Neutral
citation:
Za v Smith
(20134/2014)
[2015] ZASCA 75
(27 May 2015).
Coram:
Brand, Cachalia, Petse JJA, Fourie
et
Mayat AJJA
Heard:
11 May 2015
Delivered:
27 May 2015
Summary:
Delict – claim by dependants for
loss suffered through death of their breadwinner who fell over a
sheer precipice in a mountain
resort – liability of respondents
as owner and entity in control of resort – element of
wrongfulness, negligence and
causation considered
ORDER
On
appeal from:
Western Cape Division of
the High Court, Cape Town (Griesel J, sitting as court of first
instance):
1 The appeal is
upheld with costs, including the costs of two counsel, against the
respondents jointly and severally.
2 The order of the
court a quo is set aside and replaced by the following:
‘
(a)
It is declared that the respondents are liable, jointly and
severally, to compensate the plaintiff in her personal capacity
and
in her capacity as mother and natural guardian of her three minor
children in such sum as may be agreed or determined in due
course.
(b) The defendants
are liable, jointly and severally, for payment of the plaintiff’s
costs, including the costs of two counsel.’
3
The cross-appeal is dismissed with costs, including the costs of two
counsel.
JUDGMENT
Brand
JA
(Cachalia, Petse JJA, Fourie et
Mayat AJJA concurring):
[1]
This appeal originates from a tragic incident on 27 June 2009 when
the late Mr Pieralberto Za (the deceased) slipped on a snow
covered
mountain slope and fell over a 150 metre sheer precipice to his
death. The incident occurred at Conical Peak, one of the
highest
mountain peaks in the Western Cape. It is situated on the farm
Erfdeel near the town of Ceres and in the Matroosberg private
reserve. The reserve is the property of the first respondent, Mr
Andre Smith, on which the second respondent, Matroosberg Reservaat
CC, conducts the business of the private nature reserve for gain. The
deceased was the father of three minor children. At the time
of his
death their ages varied from eight to two years of age. The
appellant, Ms Federica Za, was married to the deceased and is
the
mother of their children. She instituted action in the Western Cape
Division of the High Court, Cape Town, in her personal
capacity and
in her capacity as mother and natural guardian of her three children,
for the loss of support they had suffered through
the death of the
deceased. In substance, her claim was based on delictual liability
arising from the wrongful and negligent failure
by the first and
second respondents to take reasonable steps to avoid the incident
which led to the death of the deceased.
[2]
Before the commencement of the trial, the parties agreed to a
separation of issues in terms of Uniform rule 33(4). In terms
of the
separation agreement, the issues relating to the respondents’
delictual liability were to be determined first while
those relating
to the quantum of the appellant’s damages stood over for later
determination. The matter came before Griesel
J. At the end of the
preliminary proceedings, he held that the appellant had failed to
discharge the onus of proving a causal connection
between the alleged
wrongful and negligent omission of the respondents, on the one hand,
and the death of the deceased, on the
other. In consequence, her
claims were dismissed with costs. The appeal against that judgment is
with the leave of the court a
quo. There is also a cross-appeal by
the respondents which is likewise with the leave of the court a quo.
Broadly stated, it is
aimed at the failure by the court a quo to
award the costs of the respondents’ expert witness, Dr Meiring
Beyers.
Background
facts
[3]
The facts are not particularly complex and largely common cause. They
appear from what follows. In conducting its business of
a private
nature reserve, the second respondent invited and allowed members of
the public, for a fee, to make use of the recreational
facilities
available in the reserve. It did so with the full knowledge and
approval of the first respondent. The recreational facilities
available included four-wheel drive vehicle routes. One of the main
attractions, particularly during the winter season, was the
specific
four-wheel drive vehicle route leading up to Conical Peak. The route
proceeds over very rough terrain and ends in a fairly
level plateau
at the foot of Conical Peak where members of the public park their
vehicles. In the immediate vicinity of this parking
area, there is a
sharp precipice falling 150 metres into a gorge known as
Groothoekkloof. Although it is clear from the parking
area that there
must be a very deep gorge between that area and the sheer cliffs on
the other side, the actual edge of the plateau
is not visible,
particularly when the surroundings are covered with snow, as it was
on the day of the incident.
[4]
Two witnesses called by the appellant were actually present when the
tragic incident occurred. They were Mr Benjamin Moggee
and Mr Otto
Rall. Rall took a series of photographs immediately before and after
the tragic event. These photographs were introduced
at the trial and
are of great benefit in understanding the evidence. In addition, the
court a quo had the advantage of an inspection
in loco when there was
a significant amount of snow, both at the scene and along the
four-wheel drive route to the top. Photographs
taken at the
inspection were also dealt with in evidence. This, to some extent,
alleviates the disadvantage of those, including
the members of this
court, who did not attend the inspection.
[5]
Moggee was a close friend and business associate of the deceased.
Their business had an Italian name, Soluzione, because the
deceased
was a qualified architect of Italian origin. Somewhat ironic, in view
of how he met his fate in South Africa where snow
is an uncommon
phenomenon, is that the deceased grew up in an area of the Italian
Alps known as the Dolomites where he partook
in the sport of downhill
skiing and where he must have spent many days in the snow. On the
fateful day Moggee and the deceased
drove from Cape Town to
Matroosberg to see the snow, each in his own four-wheel drive
vehicle. Moggee had been in the area on at
least three previous
occasions together with his parents, wife and children. On at least
some of these occasions, snow conditions
prevailed. The deceased
expressed a keen interest in going up Matroosberg in the snow, but
the occasion had not presented itself
previously. When heavy snow
fell in late June 2009, the two of them managed to arrange the
excursion. Their plan was that, after
they had experienced the snow,
they would go down to the river where they would have a braai.
[6]
Upon their arrival at the office on the farm, they paid their
entrance fee to the second respondent and then proceeded along
the
designated four-wheel drive track up the mountain towards Conical
Peak through thick snow. They arrived at Conical Peak between
12h30
and 13h00 and parked in the snowbound parking area behind the
vehicles that had arrived before them. According to Moggee’s
estimation, there were already about 20 to 30 people on the mountain,
including children. Some were skiing down the face of Conical
Peak on
pieces of cardboard used as homemade sledges. Moggee and the deceased
got out of their vehicles. They intended to walk
to a position where
Moggee had had a picnic with his family on a previous occasion and to
enjoy the scene down the gorge from there.
Moggee took two folding
chairs and two beers from the vehicle and started walking. His
impression of the surface in the parking
area and its surroundings
was that of white snow. To him it looked similar to what he had
encountered on his previous visits. There
were tracks in the snow and
the surface on which they were walking, made what he described as the
sound of fresh snow. He was not
aware of the 150 metre immediate drop
where the snow ended. According to Moggee, he was also unaware that
the situation on Conical
Peak that day was dangerous in any way. In
addition, he inferred that the deceased, despite his knowledge of
snowy mountains, did
not see any danger either. Given the deceased’s
personality and the fact that both of them were the fathers of young
children,
so Moggee said, it is highly unlikely that, if the deceased
suspected any hidden danger, he would not have alerted Moggee.
[7]
The two of them started walking to the spot chosen by Moggee. He was
carrying the two folding chairs and the beers. They walked
parallel
to the edge of the precipice. Without warning Moggee slipped. He
indicated that he at first lurched backwards, then pulled
himself
forwards and landed on his hands and knees, jettisoning the chairs
and the beers in the process. He then started sliding
uncontrollably
towards the precipice on his hands and knees. The surface was hard
and slippery. He tried to dig his fingers in,
but was unable to do
so. Instead, he picked up speed. He saw a little patch of what looked
like grass and as he went past, he stuck
his left hand into it and
was able to arrest his slide in this way. When he stopped he saw the
deceased sliding past him on his
backside towards the precipice with
his arms folded across his chest in a brace position. Sadly he slid
over the precipice and
fell to his death. Where Moggee had stopped,
the conditions under foot were so slippery that he could not get back
onto his feet.
He therefore called for help and was pulled from his
position by others present in the area using ropes. Unaware of what
happened
to the deceased he fashioned a harness from rope and
attempted to approach the edge of the precipice in search of his
friend. The
surface was too slippery for him to do so. He therefore
used a spade to dig footholds into the surface. According to Moggee’s
estimation, the point where he had arrested his slide was a few
metres from the precipice.
[8]
Rall arrived at Conical Peak shortly before Moggee and the deceased
had reached the parking area. He parked alongside the other
vehicles
in the parking area. When he and his wife alighted from the vehicle,
they found that the area where they had stopped was
hard and
slippery. He had to dig his heels into the snow to prevent himself
from falling on his backside. Nonetheless, he obviously
did not
perceive the situation as exceptionally dangerous. On one of the
photographs that he took, he identified his wife as standing
near the
edge of the precipice. He testified that before he took the
photograph, he had stood there with her. He said that he would
not
have done so if he had appreciated that there was any danger in them
doing so. The reason why he did not appreciate the danger,
he said,
was that it was not apparent where the precipice was in relation to
where they had been standing. He realised that there
was a slope
towards the precipice, but regarded it as a gentle slope which did
not create any particular danger. It turned out
that his concern
about the slippery conditions underfoot had nothing to do with a fear
of slipping over the precipice. His real
concern was to avoid falling
on his backside. Others were obviously under the same mistaken
impression as Rall and his wife because
numerous footprints in the
snow are depicted by his photograph of the area. Rall was aware of
Moggee and the deceased arriving
and noted that they had walked
between his vehicle and the deceased’s vehicle towards the
point where the incident had occurred.
He did not see precisely where
they went because he had his back turned to them. He also did not
know what had caught his attention
but he turned to see Moggee lying
in the snow calling for help. He then assisted in recovering Moggee
from his dangerous position.
[9]
The appellant also called two expert witnesses, namely, Dr Rik de
Decker and Mr Dion Tromp. Although De Decker is a medical
specialist,
he was not called for his professional expertise, but for his
experience as a mountaineer, skier and mountain rescue
practitioner
in mountains all over the world, since 1982. In the light of his
experience, he was able to speak authoritatively
about snow, ice,
Alpine conditions and the dangers they pose. He also knew Matroosberg
well and in fact partook in the recovery
of Mr Andrew John in 2007,
who fell to his death from a spot close to where the deceased had met
his fate. His evidence was that
the combination of snow and ice is a
continually changing environment. It varies from place to place and
from time to time, even
during the cycle of a single day. Although it
is not an unusual phenomenon to those familiar with these conditions,
amateurs may
be caught unawares. In consequence, they would also be
unaware of the danger it poses. The fact that Matroosberg may be
accessed
by four-wheel drive vehicles right up to Conical Peak, so he
said, increases the potential danger, because it causes people to
underestimate the conditions and thus be lulled into a false sense of
security.
[10]
The prevailing conditions near Conical Peak on the day of the
incident were described by De Decker as ‘objectively
dangerous’.
By that he meant that there was a real and imminent
danger which was unlikely to be recognisable by those with no
experience of
these conditions. What rendered the conditions so
dangerous, he said, was the fact that there was a soft layer of
unfrozen snow,
at places no more than one to two centimetres thick,
concealing a hard layer of frozen ice which was extremely slippery
and dangerous,
particularly on a slope. And if one slipped and fell
on the slope, he explained, one could slide for hundreds of metres,
only coming
to a stop once the incline flattens or something else
arrests the slide. In his expert notice in terms of Uniform rule 36,
he expressed
the view that the layer of unfrozen snow had been caused
by freshly fallen snow. After he had spoken to those who were there
on
the day, it became clear to him, however, that there was no
snowfall on that day. He then concluded that the layer of unfrozen
snow had been caused by the fact that the top layer had melted. With
reference to the deep layer of unfrozen snow encountered by
the
vehicles on their route up the mountain, as depicted in the
photographs of Rall, he explained that the temperature was higher
at
the lower altitudes than at Conical Peak. In addition, the rate of
melting also had to do with the elevation and position of
the sun,
the slope orientation, protruding topographical features, and so
forth. In short, because the parking area was higher
and the
incidence of sunlight less than en route up the mountain, this
resulted in less melting of frozen snow than would have
been
encountered en route. To the unwary everything would, however, look
virtually the same: a mountain area covered by soft snow.
[11]
Tromp is an expert in height safety equipment and in working at
heights. Part of his occupation is to train people to work
around
high and dangerous sites. In addition, he has substantial experience
in mountaineering and skiing in snow and icy conditions.
He has also
been involved in mountain rescue operations since 1973. In this
regard, he was involved in the recovery of the bodies
of Mr Andrew
John and Ms Elaine Abrams, who fell to their deaths in the Conical
Peak area, into Groothoekkloof in 2007 and 2010
respectively. He
confirmed De Decker’s evidence that, on 27 June 2009,
circumstances at Conical Peak presented a serious
danger which would
not have been evident to the uninitiated. This danger was the risk of
slipping on the hard frozen ice underlying
a thin layer of snow,
whatever the distance from the edge and then sliding down the
precipice.
[12]
Tromp also expressed an opinion as to what steps could have been
taken in order to prevent the incident. In his expert summary
in
terms of Uniform rule 36(9), he made four suggestions: (a) The total
prohibition of vehicles on Matroosberg when conditions
are dangerous.
(b) The erection of catching fences that will prevent people from
falling over the edge. (c) The prohibition of
vehicle access to the
current parking area by providing a turning point and a parking site
lower down. (d) Warning and educating
people by way of signs and
notices, when dangerous conditions present themselves, so that the
unwary may know that they are entering
a very treacherous area.
[13]
In his evidence, he abandoned proposals (a) and (b). At the same
time, he expanded on (c) and (d). As to (c), he proposed that
a
stonewall or gabion fence be built with an opening through which
visitors would have to pass on foot. This would cause people
to walk
some distance in the snow and in this way make themselves aware of
the treacherous mountain environment. At the entrance
thus created by
a stonewall or fence, he recommended that a number of graphic warning
signs be placed that alerted visitors to
keep away from the precipice
and of the dangers of slipping and sliding on the surface. As to (d),
he further proposed that a line
of poles connected by markers should
be placed along the line beyond which visitors should not be allowed
to go closer to the precipice
and warning that treacherous conditions
existed on the other side of the line. He also suggested that an
induction or briefing,
alerting visitors to the dangers posed by
conditions to be encountered on Conical Peak, beyond the line of
poles, should be held
at the entrance of the resort prior to visitors
commencing the assent on the four-wheel drive route to Conical Peak.
He further
testified that all of this could be done at a minimal
cost, which he estimated to be between R50 000 and
R70 000.
No witness was called on behalf of the respondents,
despite their notice in terms of Uniform rule 36(9), that they
intended to
call Dr Meiring-Beyers as an expert witness.
Wrongfulness
[14]
In the court a quo as well as in this court the respondents’
first line of defence rested on what they proposed to be
the absence
of wrongfulness. For this defence they relied, in the main, on a
proposition of law for which they sought to find support
in older
authorities such as
Skinner v Johannesburg Turf Club
1907 TS
852
at 860 and MacIntosh and Scoble
Negligence in Delict
5 ed
(1970) at 196-198. What this proposition amounts to in essence, is
that owners and others in control of property, are under
a duty to
warn and protect those who visit the property against hidden dangers
of which the latter are unaware, but not against
dangers which are
clear and apparent. The court a quo found merit in this defence. That
much appears from the following passage
in the court’s judgment
(paras 24 and 25):
‘
Having
been to the scene of the incident . . . I am inclined to agree with
this line of reasoning. . . . On arrival at the top one
is presented
with a dramatic view of the various mountain ranges and peaks towards
the north and the east. It is immediately apparent,
even to the
first-time visitor, that there must be a very deep gorge between the
parking area and the cliffs clearly visible on
the other side of the
kloof. The fact that the land slopes slightly towards the edge of the
gorge is likewise clear and apparent
even though the actual edge
itself is not visible from the parking area. As for the condition of
the snow underfoot, the qualities
of snow can vary from moment to
moment and from place to place and can be extremely treacherous. This
likewise becomes clear and
apparent as soon as visitors disembark
from their vehicles, as confirmed by Mr Rall under cross-examination.
In
short, the potential danger inherent in the snow-covered site near a
deep precipice ought to be clear and apparent to a visitor
upon
arrival on the scene, which danger increases exponentially the closer
one approaches the concealed edge of the precipice.
Having
said that, I do not find it necessary to make any firm finding in
this regard or to base the judgment on this issue. In the
view that I
take of the matter it may be assumed in favour of the plaintiff
(without finding) that the defendants were under a
legal duty to
protect persons in the position of the deceased against the
possibility of harm and that their failure to take adequate
steps to
prevent foreseeable harm was indeed unlawful and negligent. However,
proof alone that reasonable precautions were not
taken to avoid
foreseeable harm and that the harm occurred does not establish that
the former caused the latter. Before the defendants
can be held
liable, the court must be satisfied that there is indeed a causal
link between the defendants’ negligence and
the death of the
deceased. It is on this aspect, in my view, that the plaintiff’s
claim falters.’
[15]
As foreshadowed in the final sentence quoted, the court a quo
eventually dismissed the appellant’s claim on the basis
that
she had failed to establish the element of causation. I shall return
to this. But I propose to deal first with the element
of
wrongfulness. In doing so, let me start out by saying that I do not
believe that the concept of a clear and apparent danger,
on which the
respondents so heavily relied for this line of defence, has anything
to do with wrongfulness at all. In my view it
pertains to negligence.
Hence it again brings to the fore the potential confusion between
these two discrete elements of delictual
liability: a confusion which
not only offends the legal purists, but can in fact lead to the wrong
imposition of delictual liability.
The import of wrongfulness in the
province of delict – and particularly with reference to
delictual liability for omissions
and pure economic loss – has
been formulated, both by the Constitutional Court and in this court
on numerous occasions recently
(see eg
Gouda Boerdery BK v
Transnet
[2004] ZASCA 85
;
2005 (5) SA 490
(SCA) para 12;
Local
Traditional Council of Delmas v Boshoff
2005 (5) SA 514
(SCA)
para 20;
Hawekwa Youth Camp v Byrne
[2009] ZASCA 156
;
2010 (6)
SA 83
(SCA) para 22; Johan Scott ‘Akwiliese aanspreeklikheid
vir suiwer ekonomiese verlies – Die Hoogste Hof van Appèl
draai briek aan’
2014 4 TSAR 826).
In the most recent of these
expositions by the Constitutional Court in
Country Cloud Trading
CC v MEC Department of Infrastructure Development
[2014] ZACC 28
;
2015 (1) SA 1
(CC) paras 20-21, Khampepe J explained the position 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 undesirable and overly burdensome to impose
liability.
Previously,
it was contentious what the wrongfulness enquiry entailed, but this
is no longer the case. The growing coherence in
this area of our law
is due in large part to decisions of the Supreme Court of Appeal over
the last decade. Endorsing these developments,
this court in
Loureiro
[ie
Loureiro v Imvula Quality Protection (Pty) Ltd
[2014]
ZACC 4
;
2014 (3) SA 394
(CC) para 53] recently articulated 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.”
The
statement that harm-causing conduct is wrongful expresses the
conclusion that public or legal policy considerations require
that
the conduct, if paired with fault, is actionable. And if conduct is
not wrongful, the intention is to convey the converse:
“that
public or legal policy considerations determine that there should be
no liability; that the potential defendant should
not be subjected to
a claim for damages”, notwithstanding his or her fault.’
(Footnotes omitted.)
[16]
With reference to the criterion for wrongfulness referred to in
Loureiro
, as to whether it would be reasonable to impose
liability on the defendant, the Constitutional Court sounded the
following note
of caution in
Le Roux v Dey (Freedom of Expression
Institute and Restorative Justice Centre as amici curiae
)
[2011]
ZACC 4
;
2011 (3) SA 274
(CC) para 122):
‘
In
the more recent past our courts have come to recognise, however, that
in the context of the law of delict:
(a)
the criterion of wrongfulness ultimately depends on a judicial
determination of whether — assuming all the other elements
of
delictual liability to be present — it would be reasonable to
impose liability on a defendant for the damages flowing
from specific
conduct; and
(b)
that the judicial determination of that reasonableness would in turn
depend on considerations of public and legal policy in accordance
with constitutional norms. Incidentally, to avoid confusion it should
be borne in mind that, what is meant by reasonableness in
the context
of wrongfulness has nothing to do with the reasonableness of the
defendant's conduct, but it concerns the reasonableness
of imposing
liability on the defendant for the harm resulting from that conduct.’
(Footnotes omitted.)
[17]
The potential confusion between wrongfulness and negligence warned
against in
Le Roux
becomes readily apparent when the test for
wrongfulness is formulated, as it unfortunately was in
Van Eeden v
Minister of Safety and Security
2003 (1) SA 389
(SCA) para 9,
namely:
‘
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
the harm.’
[18]
This is to be compared with the well-known formulation of the test
for negligence by Holmes JA in
Kruger v Coetzee
1966 (2) SA
428
(A) 430E-G when he said that negligence would be 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.
This
has been constantly stated by this Court for some 50 years.
Requirement
(a)
(ii) is sometimes overlooked. Whether a
diligens
paterfamilias
in the position of the person concerned would take any guarding steps
at all and, if so, what steps would be reasonable, must always
depend
upon the particular circumstances of each case.’
[19]
It should be readily apparent that if the test for wrongfulness is
whether it would be reasonable to have expected the defendant
to take
positive measures, while the test for negligence is whether the
reasonable person would have taken such positive measures,
confusion
between the two elements is almost inevitable. It would obviously be
reasonable to expect of the defendant to do what
the reasonable
person would have done. The result is that conduct which is found to
be negligent would inevitably also be wrongful
and
visa
versa
. The question then arising was
the very title of an academic article by Prof Johan Neethling, namely
‘The Conflation of Wrongfulness
and Negligence: Is it always
such a bad thing for the law of delict?’
(2006) 123
SALJ
204
.
To which our former colleague, R W Nugent, responded extra-judicially
in an article entitled ‘Yes, it is always a bad thing
for the
law: A Reply to Professor Neethling’ (2006) 123
SALJ
557. I find myself in respectful
agreement with this answer by our former colleague. My reason,
broadly speaking, is that this confusion
may lead to the element of
wrongfulness being completely ignored. If negligence – whether
properly understood or under the
guise of wrongfulness – is
found to be absent, the confusion would make no difference to the
result. In either event, liability
will not ensue. By way of
illustration a comparison can be made between
Administrateur
Transvaal v Van der Merwe
[1994] ZASCA 83
;
1994 (4) SA
347
(A) on the one hand, and
Gouda
Boerdery BK v Transnet
2005 (5) SA 490
(SCA), on the other. In these two cases, the defendant was held not
liable in circumstances which were virtually the same. This,
despite
the fact that the issue was considered in
Van
der Merwe
– wrongly in my view –
as one pertaining to wrongfulness whereas in
Gouda
Boerdery BK
it was regarded –
rightly in my view – as one of negligence. But where the
confusion will indeed make a difference
is where negligence –
properly understood or under the guise of wrongfulness – is
found to have been established. In
that event it will lead to the
imposition of liability without the requirement of wrongfulness –
properly understood –
being considered at all. The safety valve
imposed by the requirement of wrongfulness – as described by
the Constitutional
Court in
Country
Cloud Trading CC
– will simply be
discarded. If that were to have happened, for instance in
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
[2005] ZASCA 73
;
2006 (1)
SA 461
(SCA) and in
Minister of Law and
Order v Kadir
[1994] ZASCA 138
;
1995 (1) SA 303
(A), the
defendants in those cases would have been held liable, despite the
ultimate conclusion arrived at by this court in those
cases that, for
reasons of public and legal policy, it would not be reasonable to
impose delictual liability on them.
[20]
Reverting to the enquiry into wrongfulness – properly
understood – in this case, it will be remembered that prior
to
the watershed decision of this court in
Minister van Polisie v
Ewels
1975 (3) SA 590
(A), liability for omissions was confined
to certain stereotypes. One of these was referred to as relating to
those in control
of dangerous property, who were said to be under a
duty to render the property reasonably safe for those who could be
expected
to visit that property. A discussion of this stereotype is
to be found, for example, in the passages from
Skinner v
Johannesburg Turf Club
1907 TS 852
at 860 and MacIntosh and
Scoble
Negligence in Delict
5 ed at 196-199
,
upon which
the respondents exclusively relied for their argument. After
Ewels
,
those stereotypes did not become entirely irrelevant. They still
afford guidance in answering the question whether or not policy
considerations dictate that it would be reasonable to impose
delictual liability on the defendant in a particular case, although
these stereotypes no longer constitute the straitjackets that they
were before
Ewels
(see eg
Cape Town Municipality v Bakkerud
2000 (3) (SA) 1049 (SCA) para 14;
Cape Town Municipality v
Butters
1996 (1) SA 473
(C) at 480; 8(1)
Lawsa
2 ed sv
Delict, para 65). Having regard to this stereotype of those in
control of dangerous property, as well as other considerations
of
policy finding application on the facts of this case, I am satisfied
that the element of wrongfulness had been established by
the
appellant.
[21]
Broadly speaking my reasons for this finding are as follows. In
determining wrongfulness, the other elements of delictual liability
are usually assumed. Hence the enquiry is whether – on the
assumption (a) that the respondents in this case could have prevented
the deceased from slipping and falling to his death; and (b) that he
had died because of their negligent failure to do so –
it would
be reasonable to impose delictual liability upon them for the loss
that his dependants had suffered through their negligence.
While
denying, of course, that these assumptions could validly be made,
counsel for the respondent conceded that, if they were
true, the
answer to the question posed must be ‘yes’. I believe
that this concession was rightly and fairly made. Apart
from the fact
that both respondents were in control of a property, which held a
risk of danger for visitors, the second respondent,
with the
knowledge and consent of the first respondent, as owner of the
property, allowed members of the public, for a fee, to
make use of a
four-wheel drive route, designed to lead directly to the area which
proved to be extremely dangerous.
Negligence
[22]
In the light of the aforegoing, it is apparent that the defence
relied upon by the respondents, that the danger which materialised
when the deceased slipped and slid to his death, was clear and
apparent, relates to the second leg of the
Kruger
v Coetzee
test for negligence. As we
know, this leg calls for an enquiry into whether the reasonable
person, in the position of the respondents,
would have taken any
steps to warn and protect persons in the position of the deceased
against the harm that he eventually suffered.
Properly construed, the
defence raised by the respondents thus seeks to provide the negative
answer to this question, namely, that
the reasonable person would not
have done so, because these dangers would be patently clear and
apparent to those in the position
of the deceased. In consequence,
those in the position of the deceased could reasonably be expected to
protect themselves.
[23]
In support of their contention that the danger which eventually
materialised was clear and apparent, the respondents aligned
themselves with the factual findings by the court a quo, which were
essentially threefold. First, that in this regard the conditions
at
Conical Peak were virtually no different from those prevailing at
Table Mountain and Tugela Falls in the Drakensberg where,
so the
court held (in para 23), ‘the danger was so clear and apparent
that one simply does not find signs warning people
that they were on
top of a mountain – notwithstanding the fact that death or
injury to visitors is entirely foreseeable at
both places’.
Secondly, that it should be apparent even to those visiting Conical
Peak for the first time, that there must
be a very deep gorge between
the parking area and the cliffs on the other side of the kloof, and
finally, that on the day in question,
it should have become apparent
to all visitors, as soon as they alighted from their vehicles, that
conditions underfoot were slippery
and extremely treacherous, as
confirmed by the evidence of Rall.
[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.
[25]
As to the second consideration, it is undoubtedly so that the
presence of the deep gorge somewhere between the parking area
and the
cliffs on the other side must have been known to every visitor. The
problem is that the distance to the gorge would be
unknown,
particularly in conditions of snow and ice, because the actual edge
itself was invisible. And if anything, it is that
distance which
would assist the visitor in determining the extent of the danger.
After all, as the court itself held (in para 25),
‘the danger
increases exponentially the closer one approaches to the concealed
edge of the precipice’. As a generic
statement, this must be
so. Even more significantly, however, is De Decker’s testimony
that, once one starts slipping on
ice one may slide for hundreds of
metres. In these circumstances, the exact distance to the gorge loses
much of its significance.
Knowledge which then becomes crucial
relates to the extent of the danger of slipping on ice: that danger
being that once one starts
sliding one may not be able to arrest that
slide, despite one’s distance from the gorge that may otherwise
appear to be quite
safe. This, so De Decker testified, is exactly
what the unwary visitor would not appreciate.
[26]
As to the third consideration, namely that everyone in the position
of the deceased would have recognised the possibility of
slipping on
ice, the first answer is that Moggee says he did not appreciate that
danger. According to his evidence he thought he
was walking in snow
until his feet suddenly slipped from under him. Even if he then
realised the extent of the danger confronting
him, it was too late.
De Decker gave a theoretical explanation why Moggee’s
description of what happened to him was plausible.
The respondents’
answer to the expert opinion of De Decker was, however, that direct
evidence as to conditions prevailing
on that day must trump the
inferences upon which De Decker relied. That must be right. But, as I
have said, De Decker’s evidence
only confirms the plausibility
of the direct evidence of Moggee. The respondents’ further
contention that Moggee’s
direct evidence could nonetheless not
be relied upon, rested on two legs. First, the evidence of Rall that
he found conditions
underfoot to be extremely slippery and, secondly,
the photographs of the scene that were taken by Rall on that day
showed that
the danger was manifest. As to Rall’s evidence
regarding what he encountered, I do not believe it constitutes a
sufficient
basis for the rejection of Moggee’s version. It was
common cause at the trial that conditions underfoot varied from
moment
to moment and from place to place. It follows that the mere
fact that Rall slipped on an icy patch when he alighted from his
vehicle,
does not mean that the same happened to Moggee.
[27]
With regard to the photographs taken by Rall that day, the
respondents sought to point out that, in the area where Moggee and
the deceased had slipped and started sliding, the surface appears to
be covered by ice as opposed to melted snow. Again I believe
there
are two answers to this argument. First, I find it very difficult to
distinguish, by just looking at the photographs, between
undisturbed
molten snow, on the one hand, and hard ice, on the other. Secondly,
it is common cause that where Moggee and the deceased
actually
slipped they were in fact on hard ice. Moggee’s testimony was
that he did not realise that he was about to slip
on hard ice before
it actually happened. It follows that the photographs do not provide
a sufficient basis to reject Moggee’s
version as to what
happened to him and the deceased that day. On that version, Moggee
and the deceased were indeed confronted by
dangerous conditions that
were not clear and apparent to them. Even more significant in the
present context, however, is that Rall
himself clearly did not
appreciate the nature of the danger that confronted him. As he said,
he thought that the consequence of
slipping would be that he could
fall. What he did not realise was that once he slipped and fell, he
could slide over the edge of
the cliff. To me the difference between
the two types of danger is important. The one entails the risk of, at
worst, an injury,
while the consequences of the other could be fatal,
as occurred in this case.
[28]
With reference to the measures proposed by Tromp as to what the
reasonable person in the position of the respondents could
have done
to warn and protect the unwary visitor against the danger of slipping
and sliding over the precipice, the respondents
did not contend that
these measures would not be effective to protect those who were
indeed unaware of these dangers. To me it
is clear that they probably
would have. The respondents’ answer to these proposals was in
essence that there could be no
unwary visitors because the dangers
would have been clear. But I have already decided that this answer is
not good. The respondents
also did not argue that the measures
proposed by Tromp would be proportionally too expensive or
unsustainable. I believe that they
clearly would not be so. An answer
that the respondents did raise with regard to these measures, was
that they would deface the
stunningly beautiful environment at
Conical Peak. The problem with this answer, as I see it, is that the
environment has already
been compromised by the construction of a
four-wheel drive route right up to the parking area and by the
erection of direction
signs. Equally clear is the fact that the
respondents must take responsibility for these intrusions into the
natural beauty of
the environment. In the circumstances, I conclude
that the reasonable person in the position of the respondents would
have taken
the precautionary measures proposed by Tromp. What
inevitably follows, is the finding that the respondents were
negligent in having
failed to do so.
Causation
[29]
As we know, the basis upon which the court a quo eventually found
against the appellant was that she had failed to establish
the
element of causation. The ratio for this finding appears from the
following statement in the court judgment: (para 36)
‘
Reverting
to the evidence in this case, one is confronted with the striking
example of Mr Moggee, who had previously visited the
site on no less
than four occasions, both in summer and in winter, and who was
accordingly well acquainted with the lay of the
land. He had
previously seen the kloof and had sat with his family in the snow on
the edge of the precipice admiring the view.
He wanted to repeat that
experience with his friend on the day in question and to experience
the thrill associated therewith. Both
he and the deceased were also
acquainted with the varying qualities of snow in different
circumstances. The “induction”
and warning signs proposed
by Tromp would have equipped first time visitors with the exact same
knowledge that Moggee already had.
The fact that, notwithstanding
this knowledge, he slipped literally to within an inch of his life
demonstrates persuasively that
the steps proposed by Tromp would not,
on the probabilities, have prevented the death of the deceased . . .
.
’
[30]
The criterion applied by the court a quo for determining factual
causation was the well-known but-for test as formulated, eg
by
Corbett CJ in
International Shipping Co
(Pty) Ltd v Bentley
1990 (1) SA 680
(A)
at 700E-H. 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 (see eg
Minister
of Safety & Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 25;
Minister of
Finance v Gore NO
[2006] ZASCA 98
;
2007
(1) SA 111
(SCA) para 33. See also
Lee v
Minister of Correctional Services
[2012]
ZASCA 30
;
2013 (2) SA 144
(CC) para 41.)
[31]
I do not suggest that the court a quo misunderstood the but-for test.
My difficulty lies in the manner of its application,
which is
reflected in the passage from the judgment that I have quoted. To
begin with, the proposition that appears to be crucial
to the
application is that, even if the danger of slipping and sliding to
one’s death would not have been apparent to the
amateur first
time visitor, it was indeed apparent to Moggee who had been there
before. Measures alerting him to that danger would
therefore be
neither here nor there. My first problem with this line of reasoning
is that I do not understand how Moggee’s
knowledge can be
transposed onto the deceased. More significantly, however, the very
point of the matter appears to be that when
Moggee visited the area
on previous occasions, the conditions were quite different and far
less dangerous. It follows that, if
anything, this was one of the
very factors which served to lull him into a false sense of security.
Coupled with the court’s
line of reasoning was the proposition
emphasised by the respondents on appeal, namely that, since the
deceased grew up in the Dolomites,
he would probably be in an even
better position than Moggee to recognise the dangerous situation that
confronted them. This may
be so. But, I believe the argument again
misses the point. The point is not whether Moggee or the deceased
should have been more
alert and that, if they were, they would have
realised the danger. That could perhaps be classified as negligence.
But since we
are dealing with a dependant’s claim, negligence
on the part of the deceased – or even less on the part of
Moggee –
would be of no consequence.
[32]
In order to succeed in proving that the warning measures proposed by
Tromp would have made no difference, the respondents would
have to
show that the deceased – and, for that matter, Moggee –
were actually aware of the danger that they were in.
Moggee denied
that he was. The respondents contended, however, that this denial is
rendered untenable by the inevitable inference
from the facts. In
support of this contention, they again relied mainly on the evidence
of Rall. However, I find this contention
unsustainable. Rall himself,
as I have pointed out, did not recognise the real import of the
danger that confronted him or his
wife on that day. In addition, as
Moggee explained, he and the deceased were both the fathers of young
children, and had good reason
not to expose themselves to mortal
danger. Their very behaviour that day also indicated that they were
not looking for adventure
or an adrenalin rush. While they were
making their way to the lookout point with their chairs and their
beers, they were quite
relaxed, until disaster unexpectedly struck.
Unlike the court a quo, I therefore do not think it can be found as a
fact that the
warning measures proposed by Tromp would be of no
consequence. On the contrary, in my view, they would probably have
been effective.
This means that, but for the respondents’
wrongful and negligent failure to take reasonable steps, the harm
that befell the
deceased would not have occurred. On this basis I
believe that the appeal should be upheld. As to the cross-appeal,
counsel for
the respondents conceded that it would only arise if the
appeal were to fail. In the event, the cross-appeal cannot succeed
either.
[33]
In the result:
1 The appeal is
upheld with costs, including the costs of two counsel, against the
respondents jointly and severally.
2 The order of the
court a quo is set aside and replaced by the following:
‘
(a)
It is declared that the respondents are liable, jointly and
severally, to compensate the plaintiff in her personal capacity
and
in her capacity as mother and natural guardian of her three minor
children in such sum as may be agreed or determined in due
course.
(b) The defendants
are liable, jointly and severally, for payment of the plaintiff’s
costs, including the costs of two counsel.’
3
The cross-appeal is dismissed with costs, including the costs of two
counsel.
____________
F
D J BRAND
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant: A R Sholto-Douglas SC & F Smuts
Instructed by:
Brink De Beer &
Potgieter Inc, Cape Town
c/o
Honey Attorneys, Bloemfontein
For
the Respondent: R van Riet SC & M V Combrink
Instructed by:
West & Rossouw,
Cape Town
c/o
Symington & De Kok, Bloemfontein