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[2010] ZAGPJHC 105
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Skead and Others v Melco Elevator (South Africa) (Pty) Ltd and Another (07/19770) [2010] ZAGPJHC 105; [2010] 3 All SA 445 (GSJ) (3 March 2010)
REPUBLIC
OF SOUTH AFRICA
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE
NUMBER: 07/19770
In the matter between
SKEAD, DENISE First Applicant
AUSTICK, CHERYL Second
Applicant
KELLY, JUNE Third Applicant
and
MELCO ELEVATOR (SOUTH AFRICA) (PTY)
LTD First Respondent
LIBERTY GROUP LIMITED Second
Respondent
______________________________________________________________
J U D G M E N T
JAJBHAY
J:
Introduction
[1] The appellants, who were the
plaintiffs in the court below, sued the respondent for damages
sustained by them on the 26
th
March 2006. The damages which they suffered arose from the personal
injuries they sustained when the escalator on which they were
being
conveyed at the Eastgate shopping centre malfunctioned.
[2] As a result of the separation of
issues in terms of Rule 33(4) of the Uniform Rules of Court, the
Court below was called upon
to decide whether or not the respondents’
negligence was the cause of the appellants’ falling and
injuring themselves.
The Escalator
[3] The escalator is a 1994 Otis
GESC692 (UP) 21054B escalator (“the escalator”), which is
one of the only set of Otis
escalators at the Eastgate Mall. The
handrail and steps of this escalator are interconnected and operate
in tandem, i.e. they
move together at the same speed. The handrail
drive mechanism on the escalator rotates a belt known as a
poly-V-belt.
[4] On the day in question the left
handrail malfunctioned. There was an initial jerk. Thereafter it
continued to move. Then
there was another jerk, after which it came
to a complete stop. The handrail malfunctioned because the
poly-V-belt was shredded
and strips jammed between rollers and the
roller frame of the handrail drive mechanism.
The Appellants’ case
[5] The second appellant first
ascended the escalator, followed by the third appellant and directly
behind her the first appellant.
The first appellant was some 7 to 8
steps ahead of the other appellants. The first jerk of the handrail
occurred when the second
appellant was approximately 5 steps from the
top of the escalator.
[6] After the first jerk of the
handrail, the third appellant, who held on to the handrail with her
left hand, lost her balance
but was caught and held up by the first
appellant.
[7] At the time of the second jerk of
the handrail the first and third appellants fell backwards. The first
appellant was caught
by a man behind her and the third appellant fell
on her back.
[8] The second appellant, after the
first jerk and hearing her sister (the third appellant) screaming
behind her, immediately turned
around on the escalator, and within a
“split second”
reached the top of the
escalator where she lost her balance and fell.
[9] The appellants sustained injuries
in the process.
[10] The appellants argued that the
sole cause of the injuries they sustained was due to the negligence
of employees of the first
and/or second respondents, more
particularly –
[10.1] the failure of the first
respondent’s employees to ensure that the escalator was
properly maintained, monitored, and
repaired at all times;
[10.2] the failure of the second
respondent’s employees, on behalf of the owner and occupier of
the Eastgate Mall, to ensure
that the escalator was fully operational
and safe for use at all times.
First Respondent’s Case
[11] The first respondent denied any
negligence on its part, and pleaded in the alternative that the sole
cause of any fall was
due to the appellants’ own negligence for
–
[11.1] failing to keep a proper
lookout;
[11.2] failing to avoid the fall and
injuries when, by the exercise of reasonable care, they could and
should have done so.
Second Respondent’s Case
[12] The second respondent denied any
negligence on its part and averred that –
[12.1] it did not possess the
necessary skill and expertise in relation to the maintenance and
repair of escalators;
[12.2] it employed the services of the
first respondent, a company having the requisite expertise and skill,
to maintain and repair
the escalators at the Eastgate Mall in terms
of a written maintenance agreement (“the maintenance
agreement”);
[12.3] by contracting with the first
respondent, it took all reasonable steps to guard against any injury
or loss to members of
the public utilising such escalators.
[13] In the alternative the second
respondent pleaded that should it be found that its employees were
negligent, that it denied
that such negligence was the cause of the
appellants falling (and injuring themselves), and that the incident
was caused by the
negligence of the appellants.
The evidence
Third Appellant – Mrs Kelly
[14] The third appellant, Mrs June
Kelly testified that the second appellant, Cheryl Austick is her
sister. The first appellant,
Denise Skead is her cousin. The third
and second Appellants live in Cape Town, and had come down to visit
their cousin, Mrs Skead,
who lives in Alberton. First Appellant had
taken them by car to the Eastgate Mall. She recalls that they arrived
towards the afternoon.
They first had lunch at the Eastgate Mall.
Thereafter, they went shopping and window shopping. She was only
carrying handbag, which
she carried around her neck in front of her.
She was not carrying any parcels.
[15] They wanted to leave the Eastgate
Mall at around 17h00. Second appellant stepped onto the escalator
first, followed by third
appellant and then by first appellant.
Second appellant was about seven or eight steps further ahead of
third appellant and first
appellant. Third appellant held onto the
left handrail. As she stepped onto the escalator it was functioning
normally.
[16] The escalator moved about 4 or 5
steps. The left hand rail stopped and she felt a shudder underneath
her feet. This caused
her to fall forward on her knees. As she
corrected herself, she felt a second shudder and this caused her to
fall over backwards.
First appellant at this point tried propping her
up. First appellant could not hold her and she fell on her back and
felt herself
bumping downwards. When asked by the Court how any steps
she had slid down, she answered that she was falling from halfway
down.
She was sliding down the steps to the bottom. As she looked
back, she saw a man in a brown safari suit running up. He was like an
angel. He picked her up, and helped her to the top.
[17] As she got upstairs, she was
shaking terribly. She had to hold onto the rail. Her head spun and
her body was shaking. They
moved to the car park entrance. When she
entered the garage, she collapsed. There was an ER ambulance. She was
put onto a spinal
board and taken to the Bedfordview Hospital.
[18] She testified that she received a
visit from a employee of the second respondent, one Michael. He said
that management had
sent him up to the hospital. At that stage, she
was lying on a bed and they were about to wheel her into the X-ray
room. He told
her that this has happened before. She testified that
he had said:
“Please
don’t quote me. I can lose my job.”
She testified that when he saw her she was alone, and that first
appellant and second appellants were not with her at the time.
[19] During cross-examination, third
Appellant confirmed that the handrail had stopped dead whilst they
were on the escalator. She
testified that she had felt the handrail
jerking, the stairs jerking and then the stairs jerked again. She
could not provide any
explanation as to why, nowhere in the pleadings
or the pre-trial answers mention had been made of the stairs jerking.
The first
time any mention was made of the stairs jerking was at the
trial. Despite it being an important component of her recollection
and
the reason for her fall, it had never featured before until the
trial date, more than three and a half years after the incident.
She
was asked to explain the sequence again and she re-iterated that
first she felt the handrail jerking and a “shudder underfoot”.
This caused her to fall forwards momentarily on her knees, but as she
pushed herself up, the second shudder “threw her”
and she
fell backwards. First appellant could not hold her and she fell
backwards.
[20] When asked what the reason was
that she could not stay up, she said that the left handrail was
“dead”. She lost
her balance on the shuddering of the
steps. The second shudder of the steps is what made her fall
backwards. She could not explain
at all the failure to mention
anything about the shuddering of the steps previously.
[21] She further alleged that as she
was sliding down, first appellant moved past her. She could not
explain how, under those circumstances,
first appellant had descended
off the escalator after her. She herself had not seen first appellant
fall at any stage.
[22] She could vividly recall that she
had fallen first, yet could not explain why, again in reply to a
pertinent posed as part
of the list of Rule 37(4) questions by both
respondents during March 2007, it was alleged that “
Appellant’s
cannot recall who fell first.”
[23] She conceded under the first
respondent’s cross-examination that her evidence that she “felt
a shudder” may
have been her perception in a crisis situation.
[24] Here it is clear that the third
appellant has reconstructed the sequence of events. It was apparent
from the order in which
everyone alighted from the escalator after
the incident (per Exhibit D), that third appellant did not slide past
first appellant,
as first appellant descended from the escalator
after third appellant. Accordingly, the court
a
quo
correctly found that
third appellant could not have slipped back as she had described.
[25] The shuddering of the steps was
clearly reconstructed evidence, as it was never pleaded by the
appellants, despite pertinent
questions. The appellants’ case
had always been that the “handrail jerked violently”.
Second Appellant – Mrs
Austick
[26] The second appellant fell because
she turned around, looking down the escalator which was moving
upwards.
[27] During her evidence second
appellant made no mention of the so-called “previous incident”
allegedly mentioned by
Michael to the third appellant.
[28] The appellants were specifically
requested whether anyone of them had turned around to face down the
escalator to the lower
level immediately prior to the alleged
incident. The answer thereto was “No”. The evidence
regarding video footage
(Exhibit “D” in the trial court)
indicated otherwise.
[29] The Court
a
quo
correctly found that
the second appellant had been the author of her own misfortune.
First Appellant – Mrs Skead
[30] When the first appellant stepped
onto the escalator it was functioning normally and she held onto the
left handrail. The handrail
jerked and there was a shudder under her
feet. It was not the jerking of the handrail which made first
appellant “lose her
balance” and step back on the
escalator. What caused first appellant to “momentarily lose her
balance” was that
third appellant was leaning on her. Third
Appellant was too heavy and first appellant could no longer support
her own weight and
that of third appellant. Throughout, she held onto
the handrail and used it as a balustrade. She cut her foot just under
her toes
as she stepped back onto the escalator. She remained
stationary on top of the escalator landing for some time because she
waited
for her shoe to come back up with the escalator.
[31] She testified that as she was
starting to lean backwards the man in the safari suit pushed her back
upwards, and in the next
instant picked up third appellant. The first
appellant never fell down the escalator as had been initially alleged
in the particulars
of claim.
[32] First Appellant testified that
all the appellants were together when the employee of the second
respondent made the allegation
about similar incidents on this
particular escalator, as reported by third appellant.
Experts’ evidence
[33] The first respondent called two
expert witnesses to testify, Mr. Murray, the National Maintenance
Manager of the first respondent
and Mr Peyper, whose expertise as an
expert in lift and escalator maintenance was not disputed.
[34] Murray explained that the
handrail turns via a poly-V-belt. The driving mechanism is called a
linear drive unit. The linear
drive unit is driven by a gear, which
is connected to a step chain. The gear which is connected to the step
chain is connected
to the linear drive unit. This drive mechanism
ensures that the handrail and the steps move at the same speed. It is
impossible
for the handrail to move faster than the steps. You cannot
have stationary steps and a moving handrail, but you can have moving
steps and a stationary handrail, as described by the appellants.
Murray testified that a poly-V-belt can last up to 8 years, although
he would say that the average would be five years. Murray testified
that the escalators in question were serviced more frequently
than is
required by the manufacturer of the escalator and more frequently
than required by the statutory regulations. Murray further
testified
that Mr Ndlovu, the employee of the first respondent responsible for
maintaining the escalators at Eastgate on behalf
of the first
respondent in terms of the agreement with the second respondent was
competent to do so, and that Ndlovu had obtained
the requisite
certificates and obtained practical knowledge to maintain the
escalators.
[35] Both experts testified that,
having regard to the nature of the damage to the poly-V-belt which
was inspected on 29 March 2005,
it was apparent that the poly-V-belt
had become shredded lengthwise into strips. The poly-V-belt began to
shred because a piece
of the belt’s fabric became partially
separated from the belt and then jammed between one of the rollers
and the roller frame.
Once a single piece of the poly-V-belt had
become stuck between the roller and the roller frame, the belt would
cease to rotate
over the drive mechanism evenly. It would become
trapped in other places between the roller and the roller frame,
which would lead
to further tearing and the ultimate destruction of
the belt.
[36] Both Murray and Peyper were in
agreement that the entire process of the initial tear to the point
where the handrail stopped
moving completely would have taken place
as one event over a period of minutes.
[37] Their view in this regard was
fortified by the fact that all three appellants were unanimous in
their testimony that the handrail
had been working normally as they
initially got onto the escalator. There was no report that the
handrail had been “slipping”
and/or had felt different
and/or was not moving prior to the initial “jerk”.
[38] Under those circumstances, Murray
and Peyper were in agreement that the shredding of the poly-V-belt
was a sudden unforeseen
event of which there had been no prior
warning. It would not have been picked up by either the first or the
second respondent
even if a handrail test (which can only be done by
a competent person) had been done a minute before the event.
[39] Both experts were in agreement
that the sudden stopping of the handrail due to the shredding of the
poly V-belt would not have
either a) caused the steps to move faster
and/or b) cause the steps to jerk or move in a strange manner in any
way whatsoever.
The stopping of the handrail would not have had any
effect on the working of the steps whatsoever.
[40] Both experts noted that the
thickness of the poly-V-belt had been intact. Under cross-examination
Murray confirmed that the
depth of the belt had not been worn down.
What had been impossible for him to see on 29 March 2005 was the
horisontal surface of
the poly-V-belt.
[41] The fact that the thickness of
the poly-V-belt had been intact would lead to the exclusion of the
possibilities of ordinary
wear and tear, extraordinary wear and tear
and burning/melting of the poly-V-belt as an explanation for the
initial tear. Murray
could not say what would have led to the initial
fragment coming loose from the poly-V-belt, whereas according to
Peyper the most
likely explanation for why the initial fragment had
come loose would be a defect in the manufacture of the poly-V-belt.
[42] Both experts were in agreement
that it would not have been possible for the loose fragment of the
poly-V-belt to have been
there for any length of time prior to the
incident. Given the movement of the poly-V-belt with reference to the
length of the poly-V-belt
and the number of rotations it makes to
enable the handrail to turn, once a fragment became loose it would be
caught between the
rollers and the roller frame within a very short
period of time.
[43] They found no evidence of any
water/liquid ingress into the escalator.
[44] Murray testified that if the
handrail had been slipping, it would have heated up to such an extent
that it would have melted.
He found that it had not melted. It had
just shredded, not snapped.
Mr De Sousa
[45] The appellants pleaded that the
respondents were aware of the faulty poly-V-belt for a period of 8
months prior to the incident,
based upon an entry in Exhibit B3 which
reads
: “19/6/04 –
V-belt damages & canvas. Switched off. Need to re-canvas h/rail &
replace V-belt.”
[46] The first respondent called Mr
Xavier de Sousa, who had made the entry in the record book pertaining
to this particular escalator
(JESC 692). He testified that he was on
call-out duty and had been paged to attend at Eastgate. He
specifically recalled that this
was the up escalator. He recalls this
because this particular escalator is an Otis escalator which works
with a poly-V-belt (as
opposed to a chain). On arrival, he had found
that the handrail had stopped moving, but the escalator steps had
continued to move.
He therefore switched the escalator off. He found
that the poly-V-belt had been worn down and the canvas was damaged.
He was not
the technician on site and he therefore did not replace
the poly-V-belt himself.
[47] Given that Murray and Peyper were
consistent in their evidence that the thickness of the Poly V-belt
which they had inspected
after the incident of 26 March 2005 was
intact and not “very worn down” as testified to by De
Sousa, the trial court
found that the Poly V-belt was replaced by
Ndlovu after De Sousa’s entry of June 2004.
Mr Ndlovu
[48] Ndlovu was called. He testified
that he did replace the poly-V-belt on 22 June 2004. He was assisted
by Mr Edward Monqa on
21 June 2004 to remove the canvass from the
handrail. This is a time consuming process as the old canvass has to
be chiselled out,
they then have to apply glue (section for section
not in one go) and thereafter re-apply canvass, also section for
section. They
have to leave the re-applied glue and canvass to set
for a day and the next day he then finished with the job and replaced
the
poly-V-belt. He made a note on Exhibit B3.1 that he had
re-canvassed the handrail, but neglected to note, in error, that he
had
replaced the poly-V-belt. He was adamant that one could not
replace the canvass on the handrail, without also replacing the
poly-V-belt.
[49] He referred in his evidence to
his time sheet and that of Monqa at Exhibit B, p78-79, which bears on
that a day’s work
had been done on escalator number 21054B,
being the escalator in question, on 21 June 2004, by both Monqa and
Ndlovu and again
on 22 June 2004 by Ndlovu.
Mr Motshoari
[50] Mr Motshoari testified that he
had been on duty during the week immediately preceding the incident.
[51] It was part of his duties to
occasionally conduct a handrail check to check for slipping. In
particular, if he did not have
a particular job to attend to in the
mornings or afternoons, he would conduct handrail checks on the
escalators.
Mr Gomes
[52] Mr Gomes testified that he had a
team of 15 technical staff members working under him. His team would,
as and when they were
upon the escalators at Eastgate, lightly touch
the handrails to feel for anything untoward (as opposed to the
handrail tests which
the first respondent conducted and which can
only be done by competent persons), check for broken comb plates and
listen for strange
noises.
[53] Gomes himself would do the exact
same as and when he was on an escalator and would specifically do
these checks on each and
every escalator Friday afternoons after
lunch, before he left for the week-end.
[54] Over week-ends and public
holidays a technician would be on duty as well as a duty manager
and/or supervisor. They would do
the same “informal checks”
as and when they were on the escalators.
[55] The second respondent’s
staff members were not allowed to work on the escalators in any way.
They were merely “the
eyes and ears” of the first
respondent and would immediately report a malfunction to the first
respondent and/or switch off
an escalator, depending on the
seriousness of the malfunction.
[56] Gomes was on leave during the
week-end that the incident occurred.
Onus
[57] The appellants appear to be of
the view that because the trial court had dismissed the application
for absolution by the respondents
after the close of the Appellants’
case, that a) the maxim
res
ipsa loquitur
finds
application and consequently that b) the onus to disprove negligence
shifted to the respondents. The proposition is incorrect
in law.
[58] Given that the respondents denied
negligence as alleged by the appellants, the appellants retained the
onus to prove the allegations
of negligence. The second respondent is
not required to “confess and avoid” the denial of
negligence. Furthermore,
the content of expert summaries aimed at
disproving negligence does not require to be pleaded, as is proposed
in the appellant’s
heads of argument.
[59] In the
locus
classicus
case of
Arthur
v Bezuidenhout & Mieny
1
Ogilvie Thompson JA held as follows:
“
There is only one inquiry:
namely, has the Appellant, having regard to all the evidence in the
case, discharged the burden of proving
on a balance of probabilities
the negligence he averred against the Respondent?”
2
[60] As stated by Erasmus J in
MacLeod
v Rens:
3
“
As a particular form of
inferential reasoning,
res
ipsa loquitur
requires
careful handling. It is not a doctrine, as it is sometimes referred
to. It propounds no principle and is therefore strictly
speaking not
even a maxim. What it does do is pithily state a method of reasoning
for the particular circumstance where the only
available evidence is
that of the accident. It boils down to the notion that in a proper
case it can be self-evident that the accident
was caused by the
negligence of the person in control of the object involved in the
accident. As such it is not a magic formula.
It does not permit the
Court to side-step or gloss over a deficiency in the plaintiff’s
evidence; it is no short cut to a
finding of negligence: these are
real dangers in the application of the expression. It seems to tempt
Courts into speculation.
Expressions such as “in ordinary human
experience”, “common sense dictates”, and
“obviously, which
are regularly employed in reasoning along the
lines of the maxim, sometimes only serve to disguise conjecture”
4
[61] Further, in
Administrator
Natal v Stanley
5
the Court held:
“
If the facts are
sufficiently known, the question ceases to be one where the facts
speak for themselves, and the solution is to
be found in determining
whether on the facts established, negligence is to be inferred or
not.”
6
[62] It is quite clear, however, that
the issue in the trial was whether or not the evidence as a whole
justified the inference
that the respondent was negligent. It is
absolutely trite that the
onus
of proving negligence on a balance of probabilities rests with the
plaintiff. (See, for example,
Arthur
v Bezuidenhout and Mieny
1962
(2) SA 566
at 574H and 576G;
Sardi
and Others v Standard and General Insurance Co Ltd
1977
(3) SA 776
(A) at 780C-H and
Madyosi
and Another v SA Eagle Insurance Co Ltd
[1990] ZASCA 65
;
1990 (3) SA 442
(A) at 444D-G.) Sometimes, however, a plaintiff is
not in a position to produce evidence on a particular aspect. Less
evidence
will suffice to establish a
prima
facie
case where the matter
is peculiarly in the knowledge of the defendant. (See, for example,
Union Government (Minister
of Railways) v Sykes
1913
AD 156
at 173-4;
Gericke v
Sack
1978 (1) SA 821
(A) at
827D-H and
Macu v Du Toit en
‘n Ander
1983 (4) SA
629
(A) at 649B-650F.) In such situations, the law places an
evidentiary burden upon the defendant to show what steps were taken
to
comply with the standards to be expected. The
onus
nevertheless remains with
the plaintiff. (See, for example,
Ex
parte Minister of Justice: in re R v Jacobson and Levy
1931 AS 466 at 473;
Durban
City Council v SA Board Mills Ltd
1961 (3) SA 397
(A) at 404C-405A;
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972 (1) SA 26
(A) at 37A-38G.) It is my understanding of the law
that the maxim of
res ipsa
loquitur
can only come into
operation where an inference is at least suggested from the evidence
produced. (See, for example,
Naude
NO v Transvaal Boot & Shoe Manufacturing Co
1948 AD 379
at 392-3 and 398-9.) The maxim does not place any
onus
on the defendant to explain or rebut anything. (See, for example,
Arthur v Bezuidenhout and
Mieny
(
supra
at 574A-576G).)
[63] In my view, the facts do not
establish or raise the inference that the respondents’ turned a
“cold shoulder”
to the safety of the public by the
continuous use of the escalator under the prevailing circumstances.
The malfunction
[64] A strand came loose from the
poly-V-belt and snagged. This caused the belt to tear lengthwise
along its grooves, ultimately
reducing it to “spaghetti”.
In this state it could not drive the handrail, which stopped.
Whilst shredding the belt
may have regained friction momentarily,
causing the handrail to stop, then to start moving again and then to
stop finally.
[65] The steps of the escalator did
not shudder or jerk. All that happened was that the handrail
stopped, then moved again, then
stopped.
[66] The evidence also established
that the destruction of the belt occurred over a very short space of
time from the dislodgement
or separation of the strand until final
destruction of the belt. In this regard the confined space of the
drive unit makes it
unlikely that a loose strand would move around
the belt for long without snagging (Peyper estimated that snagging
would occur within
three to four rotations of the V-belt). The
V-belt is 1 to 1.2 metres in circumference. Therefore within 3 to
3.5 metres of movement
of the handrail the strand would be likely to
snag.
[67] The width of the V-belt is
approximately 500mm. Therefore once lengthwise stripping down the
internal groves commences, the
entire belt is destroyed within a
handful of rotations.
[68] The third appellant testified
that the handrail was functioning properly when she stepped onto the
escalator, but during her
journey it came to a complete stop.
Causation
[69] The causation enquiry requires
the elimination of the first respondent’s actual conduct and
the substitution of a different
cause of conduct in its stead. The
enquiry is whether, imagining the different cause of conduct to have
been taken, the malfunction
probably would not have taken place. If
it would have occurred anyway, then the actual conduct is not the
factual cause of the
accident.
[70] Peyper testified that if a
competent person had performed a hand test on the left hand side
handrail of the escalator in question
one minute before the incident,
such hand test would not have revealed that anything was amiss.
[71] Likewise, a visual inspection of
the poly-V-belt at any time before the strand broke free would not
have prompted a technician
to replace the poly-V-belt, because the
rubber on the belt was still thick.
[72] The average lifespan of a
poly-V-belt is about three years. The belt destroyed in this
incident was only nine months old,
the shortest surviving V-belt in
Murray’s experience.
[73] Murray testified that there were
no signs of melting on the destroyed V-belt. It may be inferred that
there was no prolonged
slipping before the belt was destroyed.
[74] Peyper said that the coming loose
of a strand was an extraordinary, unexpected occurrence. This was
the only V-belt that he
had seen shredded in this way. Likewise
Murray had never seen another V-belt shredded in this way.
[75] In Peyper’s view a defect
in the V-belt was the probable explanation for a strand having come
loose. This conclusion
is supported by and is consistent with all of
the objective facts.
[76] The court a quo rightly accepted
Peyper’s opinion, and accordingly concluded that the cause of
the malfunction was “an
unforeseen and unexpected failure of
the belt when a thread snagged and led to its disintegration”.
[77] The appellants’ competing
hypothesis is that a strand came loose because the V-belt had worn so
thin that the canvas
had become exposed.
[78] There are no substantial reasons
for the court a quo to have rejected the evidence of any one of these
witnesses, let alone
to have rejected the evidence of each one of
them.
[79] There are no objective facts in
evidence that support the appellants’ hypothesis.
[80] There is a distinction between an
inference based on an objective fact and a purported inference based
on an assumption not
based on facts. No inference can be drawn
unless there are objective facts from which to infer the other facts
sought to be established.
[81] The appellants called no expert
witness to counter the evidence of Peyper and Murray (despite having
delivered notice of their
intention to call one Willem du Toit).
They called no factual witness to describe the general condition and
maintenance of the
escalators at Eastgate.
[82] The appellants failed to
establish any causal link between the malfunction and any act or
omission on the part of the first
respondent. The court a quo
rightly found that there was no such link, and on this ground alone
the appeal fails.
Appellants’ case regarding
negligence
[83] The trite test for negligence was
formulated in
Kruger v
Coetzee
1966 (2) SA 428
(A)
at 430E-G and still applies.
[84]
“Once
it is established that a reasonable man would have foreseen a
possibility of harm, the question arises whether he would
have taken
measures to prevent the occurrence of the foreseeable harm. The
answer depends on the circumstances of the case. There
are, however,
four basic considerations in each case which influence the reaction
of a reasonable man in a situation posing a foreseeable
risk of harm
to others:
(a) The degree or extent of the
risk created by the actor’s conduct;
(b) The gravity of the possible
consequences if the risk of harm materialises;
(c) The utility of the actor’s
conduct; and
(d) The burden of eliminating the
risk of harm.”
(
Ngubane
v South African Transport Services
[1990] ZASCA 148
;
1991
(1) SA 756
(AD) at 776G-I)
[85] The evidence in
this
matter
established
that the Eastgate Mall was an extremely busy and popular shopping
centre, frequented by members of the public well beyond
the normal
working hours. The evidence further established that due to the fact
that the Eastgate Mall was so busy the first respondent
ensured
“a
presence”
of
employees at the Mall at all times during normal working hours.
[86] In
Lindsay
v Checkers Supermarket
2008
(4) SA 634
(NPD) at 638E-H, a customer slipped on an oily substance
on a supermarket floor. The Court found that the emphasis on the
length
of time the spillage remained undetected without consideration
of the adequacy of the cleaning system is an artificial and
unrealistic
test. The Court held that certain shopping areas in a
supermarket require more vigilant supervision and cleaning of
spillages,
and therefore the adequacy of the system also has to be
considered against the number of cleaning staff allocated to deal
with
spillages and the floor area and number of shopping isles. It is
submitted that the evidence in
casu
similarly established an
inadequate maintenance and monitoring systems implemented by the
respondents (See also
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) at 448F-G).
[87] In order to determine what would
constitute reasonable steps to guard against an occurrence such as
the one in question, will
depend upon what can reasonably be expected
in the circumstances of the particular case (
Minister
of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) at 448F-G).
[88] In the ultimate analysis the true
criteria for determining negligence is whether in the particular
circumstances the conduct
complained of falls short of the standard
of the reasonable person. By dividing the enquiry into various stages
is no more than
an aid or guideline for resolving this issue. There
can be no universally applicable formula which will prove to be
appropriate
in every case (
Minister
of Safety and Security and Another v Carmichaele
2004
(3) SA 305
(SCA) at 325C-D and
Sea
Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage
(Pty) Ltd and Another
2000
(1) SA 827
(SCA), paras 21-22 at 838I-840G).
[89] While the precise or exact manner
in which the harm occurs need not be foreseeable, the general manner
of its occurrence must
indeed be reasonably foreseeable (
Carmichaele
case
supra
at 325B-E and
Sea
Harvest Corporation
case
supra
at
839H-840G).
[90] Here, the negligence was not
established in respect of both respondents.
[91] The Court
a
quo
was correct in finding
that the V-belt was replaced on 21 or 22 June 2004 by Petrus Ndlovu.
This was his direct evidence –
Xavier de Sousa remembers the call out
on 19 June 2004 (which was a Saturday and therefore out of the
ordinary, and also pertained
to the only escalator at Eastgate having
a v-belt). He remembered that he found the v-belt very thin and
worn. He said in that
condition it could never drive the handrail.
He found the escalator on i.e. with the steps moving and the handrail
drive unit
turning but with the handrail not turning. It is
inconceivable that the same belt could have continued to drive the
handrail for
a further nine months when it was already incapable of
doing so on 19 June 2004.
[92] Despite the appellants’
assertions to the contrary the evidence of Ndlovu in regard to the
replacement of the poly V-belt
on 22 June 2004 accords with the
probabilities and the documentation in support of the probabilities:
[92.1] De Sousa found a poly V-belt
that was very worn down on 19 June 2004, whereas Peyper and Murray
were unanimous (and uncontested)
that they found a poly V-belt on 29
March 2005, the thickness of which was intact.
[92.2] De Sousa found that the
handrail had stopped moving on 19 June 2004, which is why he had
switched off the escalator. The
appellants had testified that the
handrail was moving when they got onto the escalator on 26 March
2005. The handrail could not
have moved and/or continued to move
between 19 June 2004 and 26 March 2005 unless it had been replaced.
[92.3] The handrails were checked
according to the Annexure “C” certificate produced by WAC
projects on 1 February 2005
(Exhibit B, p80-81) and nothing untoward
was noted on that occasion.
[92.4] Exhibit B, pages 78-79 bears
out that work was done of a considerable length of time on 21 and 22
June 2004.
[92.5] The trial court correctly found
that, both on the probabilities and on the evidence of De Sousa,
Ndlovu, Peyper and Murray
that the poly V-belt had indeed been
replaced after 19 June 2004, contrary to the Appellants’
assertion in the pleadings
and during cross-examination to the
contrary. In particular, the trial court correctly held that
corroboration for this evidence
was found in the fact that the belt
was working properly immediately prior to the incident according to
the Appellants’ evidence.
WAC Audit Reports
[93] The Appellants have sought to
make out a “general case of lack of maintenance” with
reference to the WAC audit
report.
[94] It is noteworthy that the
specific complaints relate to
another
escalator – number JESC 361, manufacturer number 21059B - with
reference to for example the knocking noise and reference
to the
right hand side handrail being damaged, which items were carried over
from a previous report. To that extent, it is similar
fact evidence
of the most irrelevant nature.
[95] In addition, both Murray and
Peyper testified that there is nothing contained in the WAC audit
report of 7 February 2005 pertaining
to this particular escalator
which would call for immediate action and/or pose any danger to the
public in the use of this particular
escalator. Gomes and Murray made
it clear in their evidence that the inferences sought to be drawn by
the Appellants were not apparent
from the WAC audit reports, i.e. it
could not be said that the knocking noise referred to in the audit of
March 2002 was the same
as that referred to in February 2005. Gomes
further testified that it was not apparent whether the damage to the
handrail was internal
or external. He further testified that he would
take up issues arising from a WAC audit with Murray if the need
arose, without
any paperwork. This accords with the evidence of
Murray.
[96] The attempt to prove a “pattern
of lack of maintenance” with reference to the WAC audit reports
was not borne out
by the evidence. Had the appellants been serious in
their contentions in this regard, they would have been at liberty to
subpoena
and call as witnesses the authors of the two WAC reports,
which they failed to do. To introduce similar fact evidence of this
nature,
the appellants would have to prove: i) a high degree of
relevance ii) that the evidence sought to be tendered was “reasonably
conclusive” and iii) that it would not raise difficult
collateral issues. The appellants did not prove a “pattern of
lack of maintenance”. No evidentiary basis was laid by the
appellants for an inference of negligence based on the content
of the
WAC reports pertaining to other escalators. In particular, such an
inference would be contrary to the direct evidence given
by the
witnesses called by the first and second respondent.
Speculative similar fact
evidence regarding a “prior incident/s”
[97] Third appellant and first
appellant testified that Michael, the employee of the second
respondent had allegedly told them “this
had happened before”.
This threadbare evidence is used a basis to contend for an adverse
inference to be drawn against the
second respondent for failing to
call Michael Sibanda.
[98] The third appellant had testified
that she was alone when this was allegedly said to her. It is clear
that she had reconstructed
most of her evidence. Contrary to the
third appellant, the first appellant had testified that all three the
appellants were together
when this was allegedly mentioned to them.
The second appellant did not give any evidence to this effect.
Consequently, there was
no consistency in regard to this alleged
conversation between the appellants.
[99] Murray who, as Maintenance
Manager of the first respondent is responsible for submitting the
relevant reports in terms of the
Occupational Health and Safety Act
to the Department of Labour testified that to his knowledge, there
had been no other similar
incidents (where someone was injured) on
this particular escalator. Although the appellant’s counsel was
given the opportunity
to re-cross-examine Murray, his testimony in
this regard was not challenged.
[100] The Appellants argue for an
adverse inference to be drawn against the Second Respondent for the
failure to call Sibanda on
the strength of
Elgin
Fireclays Limited v Webb
.
7
The judgment in
Elgin
makes it abundantly clear that
“…the
inference is only a proper one if the evidence is available
and
if it would elucidate the facts.
8
”
It is certainly not a
proper inference where what the Appellants sought to establish was
similar fact evidence of the most irrelevant
kind. In any event,
Murray’s direct evidence in this regard put paid to any
speculation of this nature.
The case against the Second
Respondent
[101] The appellants do not dispute
that the first respondent has the requisite skill and expertise to
maintain and repair the escalators
at the second respondent’s
Eastgate shopping centre.
[102] The second respondent does not
have the requisite skill and expertise to maintain and repair the
escalators at the Eastgate
Shopping Mall. It is legally not entitled
to touch the escalators and/or do any work on the escalators. This
was not challenged
on the evidence.
[103] The second respondent
specifically pleaded that in contracting with the first respondent,
it took all reasonable steps to
guard against any injury or loss to
members of the public utilizing the escalators.
[104] Given the uncontested evidence
of Murray and Peyper as to the precise cause for the handrail
stopping suddenly on 26 March
2005, and more particularly the fact
that it was a sudden unforeseen event that would have unfolded within
minutes, which was unusual
and which even a handrail test by a
competent person one minute before the event would not have picked
up, does not point to any
negligence on the part of either the first
or the second respondent.
[105] The appellants contend that the
handrail “must have been slipping” sometime during the
week before the incident
and that if it had been slipping “it
should have been picked up” by either of the respondents. Both
experts testified
that in light of the appellants’ unanimous
evidence that the handrail had been working as they got onto the
escalator on
26 March 2005, this theory was untenable.
[106] In
Langley
Fox Building Partnership (Pty) Ltd v De Valence
9
it was recognised that the existence of a duty upon an employer of
an independent contractor to take steps to prevent harm to
members of
the public will depend upon the facts of each case. The relevant
factors which would necessitate consideration would
include:
[106.1] the nature of the danger;
[106.2] The context in which the
danger may arise;
[106.3] the degree of expertise
available to the employer and the [106.4] independent contractor
respectively; and
[106.5] the means available to the
employer to avert the danger.
[107] In the present matter, this was
not a situation, such as found in
Langley
where there is an apparent danger, which the second respondent would
have been able to guard against.
[108] The second respondent engaged
the first respondent to conduct monthly maintenance of its escalators
at the Eastgate Shopping
Centre. In addition, the first respondent
maintained a presence at the Eastgate Shopping Centre during
weekdays, Monday to Fridays.
This it was not contractually obliged to
do. It elected to do so. Murray agreed that this election by the
first respondent to go
beyond what was required of it, accrued to the
benefit of the second respondent.
[109] The agreement also provided for
a 24 hour call-back service. It is self-evident from the record book
that the call-back service
was being used by the second respondent
and reacted to with reasonable promptitude by the first respondent.
10
[110] Murray testified that the staff
on the second respondent’s premises conducted daily handrail
tests, which is a particular
test which can only be done by a
competent person. This was corroborated by Ndlovu. Whilst Ndlovu was
not on duty during that week,
Motshoari testified that he did the
handrail tests “occasionally” and particularly, after the
morning or afternoon
if he had no particular job to attend to.
[111] Peyper testified that, given the
particular circumstances of how the handrail came to stop
functioning, a handrail test a
minute before the event would not have
detected the problem.
[112] Murray testified that the
shredding of the poly-V-belt would literally have taken a very short
time and that there had been
no prior indication that the belt was
going to shred itself.
[113] Murray further testified that
the second respondent was not slack in notifying the first respondent
in the event that there
was a problem. This is clearly borne out by
the content of the record book (Exhibit “B”, p3
11
)
and the specific events of 26 March 2005 which reflect that
immediately when there was a problem, the first respondent was
notified
and was on the premises by 18h08. It is also clear from
Exhibit B, pages 83-87
12
,
that there had been an immediate recordal of the events and that the
appellants details and their version of events had been recorded
on
the day of the incident by the second respondent’s employee.
There is therefore no indication of a “system failure”
simply because it was a long week-end.
[114] Gomes, the Technical Manager of
the second respondent at the time, testified that he was satisfied
with the maintenance and
service levels received from the first
respondent. In addition, their presence on site ensured a far more
speedy reaction and far
less down times.
[115] The second respondent also
appointed WAC projects as independent lift inspectors to conduct the
3 yearly comprehensive report
required by Regulation 5(1) of Exhibit
B, p106. Both Murray and Gomes testified that this constituted a type
of cross-check on
the work conducted by the First Respondent, as
maintenance contractor. The most recent audit report of February 2005
did not bring
to light anything that required either of the
Respondents’ immediate attention in regard to either this
escalator or any
of the other escalators (See Exhibit B, p81: nothing
noted under C.6.a “immediately”), nor was anything
highlighted
which would constitute a danger to the public in the use
of this particular escalator.
[116] Gomes had a team of 15 technical
people working under him. They would conduct “informal checks”
on the escalators
as and when they were on the escalators. This would
comprise holding the handrail lightly to feel for anything out of the
ordinary
13
,
checking for broken comb plates and listening for unusual noise. In
the event that something was found, they would either contact
the
second respondent, or contact Gomes who would then call the second
respondent.
[117] Gomes himself would, in his
capacity as technical manager, also conducts the same informal checks
as and when he found himself
on an escalator. He would also make a
point of checking each and every escalator on a Friday afternoon
after lunch, before he left
for the week-end.
[118] He was not on duty that
week-end, but there would have been a technical person on duty over a
week-end as well as a duty manager.
These persons would also do
informal checks as and when they were on the escalators. The Liberty
staff, security guards and members
of the public were entitled to
switch off an escalator in case of emergency. However, once an
escalator had been switched off,
it could only be switched back on by
the first respondent, once the problem had been attended to.
[119] The evidence does not establish
that a dangerous situation had been created for members of the public
such as the appellants,
of which the second respondent had been aware
or ought to have been aware of prior to the incident occurring. A
comprehensive system
of maintenance was established, with this
particular escalator’s handrails having been checked by WAC on
1 February 2005
and again by Ndlovu, as part of the monthly
maintenance cycle, on 28 February 2005. WAC had not recorded anything
untoward on 1
February 2005 in regard to the working of the
handrails. Routine maintenance was conducted on 28 February 2005. The
next routine
maintenance would’ve been required only on 28
March 2005, the handrails and their functioning having been checked
twice in
February 2005 (excluding the daily handrail checks by
Ndlovu) and the ordinary checks which would have been conducted by
the second
respondent’s technical staff and Gomes personally as
and when they got onto the escalators.
[120] The appellants appear to contend
for an interpretation that the handrail must have been slipping some
time during that week
before the incident and that this had simply
not been picked up by either of the respondents. The expert evidence
of both Murray
and Peyper militate against such an interpretation.
The appellants’ evidence that the handrails were functioning
normally
as they got onto the escalators that afternoon, the fact
that there are no records indicating any slipping point to the
probabilities
that no such slipping occurred during that week.
[121] The speculation appears to be
based on a paragraph in Peyper’s report of 29 March 2005, which
he describes not only
as “standard to all his reports”,
but which he also clarified as being a most unlikely probability
having heard the
appellants’ evidence that the handrail had
been working as they got onto the escalator.
[122] The speculative theory was not
established on a balance of probabilities. And certainly does not
provide any basis for a finding
that there was a general lack of
maintenance and/or a failure to maintain the escalator in question by
either of the respondents.
Conclusion
[123] I am satisfied that given the
evidence of Peyper and Murray, that there was no way in which a
reasonable person, in the position
of the respondents, would have
been able to take any more steps than they had to prevent the
incident of 26 March 2005. No amount
of reasonable preventative
maintenance would have been able to prevent the poly-V-belt from
shredding in the manner that it did.
The evidence as to the system of
reasonable preventative maintenance in place was not contradicted in
any way by the appellants.
[124] Murray and Peyper were in
agreement that the occurrence of this particular incident could not
have been foreseen or prevented,
given the manner in which it had
occurred and the time frame within which it had occurred. Peyper
testified that a handrail test
by a competent person a minute before
the incident would not have led to the detection of the problem with
the poly V-belt (that
a shard/fragment had become loose).
Monteoli
v Woolworths
14
:
“
Within
the constraints of reasonable prudence, these systems would,
ordinarily, be more than adequate. It is clear that the Courts
must
avoid establishing an unrealistic and impossible standard.”
15
[125] The law does not require an
impossible standard from either of the respondents, nor does it make
extravagant demands upon
the second respondent as property owner
under these circumstances.
16
[126] The sudden stopping of the
handrail was not a dangerous situation of which the respondents were
aware for any considerable
length of time and which they failed to do
anything about. Despite the comprehensive system of preventative
maintenance in place,
it was a sudden unforeseen event which would
not have been detected even had a handrail test been conducted a
minute before it
had occurred.
[127] The court
a
quo
correctly found that
the second respondent was unable to perform visual internal checks.
It is legally not permitted to do any
work on the escalators as it
does not have the necessary expertise to do so. Further, the court
a
quo
correctly found that
external handrail checks would have revealed nothing wrong and that
the second respondent’s normal external
checks would probably
have revealed no warning signs of the impending events.
17
[128] Both experts were in agreement
that it would be manifestly unreasonable if not totally impractical
to expect either of the
respondents to have someone on the escalators
to check for potential problems every minute of every day.
[129] The evidence indicated that the
second respondent had appointed the first respondent, an entity which
would be regarded as
a skilled and qualified entity to maintain the
escalators. Further, the evidence revealed that there was a
comprehensive maintenance
system in place comprising not only that
the first respondent was on site (excluding holidays and week-ends),
but exceeding the
requirements of the manufacturer and any statutory
requirements. The evidence of Gomes further established that,
notwithstanding
the above, an independent contractor had been
appointed to check on the work of the first respondent and that
Gomes’ team
also checked the escalators externally.
[130] Here, the dictum in
Rhodes
Fruit Farms Ltd v Cape Town City Council
18
finds application:
“
It is the duty of the
employer to take such precautions as a reasonable person would take
in the circumstances. I do not, however,
consider B Dukes' case as
an authority for the proposition that the employment of a skilled
independent contractor, where the
extent of the danger and the
reasonably practical measures to minimise it can only be determined
by such skilled person, cannot
in any circumstances constitute a
discharge of the employer's aforesaid duty. . . .
There may well be situations
in which a reasonable person would rely solely on an independent
skilled contractor to take all
reasonable precautions to eliminate or
minimise damage to another, and in such circumstances it could not be
said that he was negligent
if such contractor fails to act
reasonably.
In my opinion, therefore, the
duty to take care where the work undertaken is per se dangerous
could in some cases be discharged
by delegating its performance to an
expert.
”
19
[131] In light of the above
circumstances, I propose that the decision of the court
a
quo
be upheld and that all
three of the appellants’ claims against the first and second
respondents fall to be dismissed with
costs, the appellants’
having failed to discharge the onus of proving negligence as against
the first and second respondents
on a balance of probabilities in
relation to the incident which occurred on 26 March 2005.
____________________
JAJBHAY J
Judge of the High Court
I AGREE,
____________________
MBHA J
Judge of the High Court
I AGREE.
____________________
MATHOPO J
Judge of the High Court
Date of Hearing : 1 March
2010
Date of Judgment : 3 March 2010
For Appellants : Adv. Strydom
For First Respondent : Adv. Lamplough
For Second Respondent : Adv. Goedhart
1
1962 (2) SA 566
(A). See also
Monteoli
v Woolworths
2000 (4) SA 735
(W)
742C-G.
2
At 574.
3
1997 (3) SA 1039.
4
At 1048E/F-H/I.
5
1960 (1) SA 690
(A).
6
At 700. In
Hamilton
v MacKinnon
1935 AD 114
where the
court found that where there are several possibilities which can
give rise to an innocent cause of death, than an inference
of
negligence could not be made in the circumstances. The same argument
applies
in casu.
See
also
Ocean Accident and Guarantee
Corporation Ltd v Koch
1963 (4) SA 147
(A).
7
1947 (4) SA 744
(A) at 750. See also
Munster
Estates (Pty) Ltd v Killarney Hills (Pty) Ltd
1979 (1) SA 621
(A) at 624 D-G.
8
Supra.
9
1991 (1) SA 1
(A).
10
19 June 2004 entry (on a Saturday) and the
incident itself on 26 March 2005, which was also a Saturday, with
the preceding Friday,
25 March 2005 having been Good Friday.
11
Vol 9, p885.
12
Vol 9, p926-930.
13
This is very different from the handrail tests
testified to by Murray, Peyper and Ndlovu, which can only be
conducted by competent
persons with at least 5 years’
experience.
14
2000 (4) SA 735
(W).
15
Supra,
at 744-745, para 45.
16
Hammerstrand v Pretoria Municipality
1913 TPD 374
at 377.
17
Vol. 12, p1238, para 80.
18
1968 (3) SA 514
(C).
19
At 519. Quoted with approval in
Langley
Fox Building Partnership (Pty) Ltd v De Valence
1991
(1) SA 1
(A) and
Chartaprops 16 (Pty)
Ltd v Silberman
[2008] ZASCA 115
;
2009 (1) SA 265
(SCA)
at 273A-D.