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[2015] ZASCA 80
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Pauw v Du Preez (20197/2014) [2015] ZASCA 80 (28 May 2015)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 20197/2014
In
the matter between:
MARIANNE
ALET
PAUW
...........................................................................................
APPELLANT
and
GERTRUIDA
ELIZABETH DU
PREEZ
................................................................
RESPONDENT
Neutral
citation:
Pauw v Du Preez
(20197/2014)
[2015] ZASCA 80
(28 May 2015)
Coram:
Brand, Leach and Saldulker JJA and
Dambuza and Gorven AJJA
Heard:
6 May 2015
Delivered:
28 May 2015
Summary:
Delict ─ failure to protect a
section of a stairway with a hand-railing ─ such omission
wrongful and negligent ─
respondent who fell from stairway not
shown to have been negligent.
ORDER
On
appeal from:
Western Cape Division,
Cape Town (Traverso DJP and Erasmus and Goliath JJ concurring):
The
appeal is dismissed, with costs
JUDGMENT
Leach
JA
(Brand and Saldulker JJA and Dambuza
and Gorven AJJA concurring)
[1]
Whilst leaving a house owned by the appellant in the Strand on
Christmas Eve, 2005 the respondent lost her balance and fell
from a
flight of stairs. She sustained bodily injuries and, in due course,
instituted action for damages against the appellant
in the Western
Cape High Court alleging, inter alia, that the appellant had
negligently failed to protect that portion of the stairs
from which
she had fallen with a railing that would have prevented her fall.
When the matter came to trial, the issue of the appellant’s
liability was decided as a separate issue at the outset with the
quantum of damages standing over for later decision.
[2]
The trial court concluded both that the appellant had indeed been
negligent and that she had failed to establish contributory
negligence on the part of the respondent. It therefore issued an
order declaring the appellant to be liable to compensate the
respondent for whatever damages she might prove in due course. In an
appeal to a full court, the appellant accepted that she had
been
negligent but argued that the trial court had erred in not finding
contributory negligence on the part of the respondent.
The appeal was
dismissed. With special leave, the appellant now appeals to this
court contending, once again, that the respondent’s
own
negligence had contributed to her fall.
[3]
The property where the incident occurred was acquired by the
appellant’s parents as a holiday home in the mid-1950s, at
a
time when the appellant was a young girl. Initially registered in the
name of the appellant’s father, it has remained in
the family
ever since. Although the appellant and her husband had moved to the
Strand in November 2002 and had thereafter resided
permanently in the
house, it was only formally transferred into her name in 2004.
[4]
As is apparent from the photographs and plans of the appellant’s
property included in the record, the house is built on
a steep
hillside. Access from the street is provided by way of a fairly
lengthy but straight flight of stairs leading from the
street
frontage and passing between a garage and a retaining wall. The
garage is set back somewhat, both from the street and the
front
retaining wall. Viewed from above, the entire length of the stairway
is flanked on the right by a wall fitted with a handrail.
On
the left, it is flanked for approximately half its length by the side
wall of the garage. At the level of the front wall
of the garage
there is a security gate across the stairs, hinged on the right hand
side and secured by way of a latch on the garage
wall on the left.
The fall from the bottom of the edge of the gate to the level of the
ground is approximately 1,2 metres. Below
the gate the stairs on the
side of the garage are not fitted with any safety rail or other form
of protection.
[5]
It was from this unprotected portion of the stairway below the gate
that the respondent fell. It may well be so, as the
appellant
testified, that no-one had ever previously fallen off the stairs but,
as the saying goes, there is a first time for everything
and the mere
fact that no-one else had previously suffered a similar fate does not
excuse the appellant from the consequences of
her failure to render
that portion of the stairway safe.
[6]
Although the appellant initially denied negligence on her part, the
lack of protection on the garage side of the stairs below
the gate
was an inherently dangerous state of affairs and, as stated earlier,
she accepted both in the court a quo and in this
court that she ought
to be held liable to the respondent for failing to fit a safety
railing to secure that portion of the stairway.
She also
accepted that had there been such a safety railing, the respondent
would probably not have fallen off the stairs and been
injured.
As the respondent’s claim was based upon an alleged
negligent omission, the appellant’s concession
embraced an
admission that her failure was both wrongful (in the sense that the
policy and legal convictions of the community would
visit a delictual
claim with liability) and negligent (in that she had failed to take
steps to avoid the harm when a reasonable
person in her position
would have foreseen the reasonable possibility of the omission
causing injury to another and would have
taken steps to avoid the
harm occurring). That wrongfulness and negligence are two separate
and discrete elements of delictual
liability which, importantly,
should not be confused, can now be accepted as well established in
our law, academic criticism from
certain quarters
notwithstanding.
[1]
[7]
In any event, the consequence of the appellant’s acceptance of
liability is that, in regard to the so-called ‘merits’
of the respondent’s claim, the only issue that this court
is called upon to decide is whether the extent of the appellant’s
liability should be reduced by any contributory negligence on the
respondent’s part . It is trite that, on this issue, the
onus
fell on the appellant to prove such contributory negligence.
[8]
On Christmas Eve, 2005 the respondent and her mother went to visit
relations who had hired the appellant’s house over
the
Christmas season (the appellant was with her husband at his beach
house at Boggomsbaai at the time). They stayed until about
11 pm. It
was when leaving and descending the stairs that the respondent fell
and was injured. The fall occurred below the level
of the gate where
the stairway on the side of the garage was unprotected.
[9]
The respondent and her mother were the only two witnesses who
testified as to how the incident had occurred. It can be accepted
that although it was dark and there were no lights shining directly
onto them, the stairs were adequately lit by the lights in
the
vicinity. The respondent alleged that she had descended the stairs
with her mother behind her. Her mother contradicted her,
saying that
she had gone ahead. At the end of the day it matters not but, as her
mother did not see her fall, the probabilities
are overwhelming that
the respondent had in fact preceded her down the stairs.
[10]
The gate was closed when they descended and, closed as it was against
the rise of a step, had to be opened away from persons
descending,
towards the road. After both she and her mother had passed through
it, the respondent closed the gate. In order to
do so, she first had
to proceed down several steps to provide space to close it behind
her, and then turned around and moved back
up a few steps to secure
the gate’s latch to the clip mounted on the garage wall. No
sooner had she done so when she lost
her balance and fell, not down
the stairs themselves, but off the stairway to end up lying between
it and a motor vehicle that
was parked parallel to the stairs facing
the garage door.
[11]
The appellant’s mother was unable to say precisely how the
appellant’s fall had come about. She volunteered that
after the
appellant had closed the gate she turned around and, in the process,
missed a step which caused her to lose her balance
and fall. However,
she admitted that she had not seen this happening and that, at the
crucial time, she had turned and was facing
down the stairs when she
suddenly heard a scream and the sound of the appellant falling.
The
appellant herself did not know what had caused her to fall. According
to her, she had just closed the gate but still had her
hands on it
when she lost her balance, her hands slipped off the gate, and she
fell. But how or why she lost her balance she was
unable to say.
[12]
In arguing that the respondent had been negligent, counsel for the
appellant contended that the respondent ought not to have
closed the
gate at all but should have left it to her mother to do so. This
argument, as I understood it, was based on the fact
that the
respondent suffers from a physical disability as a result of a
head injury sustained as a young child; that as the
latch of the gate
was on the side of the garage wall, she had to move towards the open
side of the stairway in order to close it,
particularly as she was
left-handed; and that in these circumstances she had exposed herself
to the obvious danger of the unprotected
side of the stairway instead
of having remained on the opposite side where there was a handrail
available for her to support herself.
[13]
Not only was this never specifically pleaded as a ground of
negligence, but the contention has no merit. It is indeed so that
more than 30 years previously the respondent had suffered a brain
injury in a motor accident that had left her with a permanent
right-sided hemiplegia and an associated limp on that side, and she
admitted that in order to compensate for her weak right leg
she
descended the stairs by angling herself towards her left. But despite
her gait being compromised, the respondent has accepted
her physical
disability with courage and determination. She became a long distance
runner who, in 1999, had been a member of an
invitation team that
attended a para-olympic event in Australia where she had won three
medals, two gold and a silver. And, importantly,
as part of her
training she used, at times, to run up 10 flights of stairs.
[14]
Accordingly, despite her physical disability and the necessity for
her to be cautious when traversing non-level terrain, the
respondent’s hemiplegia was not so severe that the stairs at
the house constituted a challenge that she ought not have accepted
without assistance. A reasonable person is after all not ‘a
timorous faint-heart always in trepidation lest he (or she) suffer
some injury’ but ‘ventures out into the world, engages in
affairs and takes reasonable chances’.
[2]
Bearing that in mind, the evidence falls short of establishing that
the respondent’s disability was such that it was inherently
dangerous for her to have attempted to close the gate herself, or
that she was negligent in not having her mother do so.
[15]
However, as a second string to her bow, the appellant argued that the
respondent had been negligent in losing her balance and
falling. This
argument was based principally upon the contention that she had
failed to keep a proper lookout and that, after having
closed the
gate, she had lost her balance as she must have stepped back and off
the edge of the stairway which caused her to fall.
[16]
Had the evidence established that the respondent had indeed fallen in
this manner, there may have been room for an argument
that she had
been negligent. But there is no evidence this was in fact how she
came to fall, nor can it be so inferred. As I have
said, her mother
did not see what had happened and the respondent herself does not
know what caused her to lose her balance. All
one knows is that she
did so before she fell, but there are a myriad of potential reasons
why persons might lose their balance.
It follows that a person doing
so, and falling, does not in itself give rise to any inference of
negligence on his or her part.
[3]
[17]
Thus the reason why the respondent lost her balance remains an
unexplained mystery. It is impermissible to speculate on what
led to
her doing so. That being the case, the necessary facts from which a
conclusion can be drawn that she acted negligently have
not been
established. In these circumstances the appellant failed to prove
contributory negligence on the respondent’s part
and the appeal
must fail.
[18]
The appeal is dismissed, with costs.
_______________________
L
E Leach
Judge
of Appeal
Appearances:
For
the Appellant: A B Rossouw SC
Instructed
by:
D
M Bakker Attorneys, Roodepoort
Lovius
Block, Bloemfontein
For
the Respondent: J D Maritz SC
Instructed
by:
Rose-Innes,
Du Preez Attorneys, Barberton
Symington
& De Kok, Bloemfontein
[1]
Cf
Za
v Smith
(20134/2014)
[2015] ZASCA 75
paras 17-22.
[2]
Per
Van den Heever JA in
Herschel
v Mrupe
1954
(3) SA 464
(A) at 490E-F.
[3]
Cf
Swinburne
v Newbee Investments (Pty) Ltd
2010
(5) SA 296
(KZD) para 19 and
Spencer
v Barclays Bank
1947
(3) SA 230
(t) at 238-9.