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[2021] ZAGPJHC 664
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Prazares v Life Healthcare Group (Pty) Ltd t/a Life Healthcare the Glynnwood (4914/2017) [2021] ZAGPJHC 664 (25 March 2021)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO:
4914/2017
In the matter
between:
ROSA
GRACINDA DOS PRAZARES
PLAINTIFF
and
LIFE
HEALTHCARE GROUP (PTY) LTD t/a
DEFENDANT
LIFE
HEALTHCARE THE GLYNNWOOD
JUDGMENT
WINDELL J:
INTRODUCTION
[1]
On 5 February 2017, the plaintiff, 80
year old Rosa Gracinda Dos Prazares, visited her sick husband in the
Intensive Care Unit (“ICU”)
at the defendant’s
hospital. Her daughter, Ms O’ Reilly, accompanied her. It was
the second time that day they attended
at the ICU ward. They had
earlier received news that her husband was gravely ill but he was
showing signs of improvement and they
were back to see him.
[2]
Before one enters the ICU ward, there is
a foyer area which is controlled by a security guard. The foyer is
not a waiting area for
the ICU, but is intended to control access to
the ICU ward. Access is gained to the ICU ward by means of an
automatic door (“the
automatic door”) which on the
plaintiff’s and Ms O’ Reilly’s prior attendances,
was opened by the security
guard. Whilst Ms O’Reilly was
waiting in line behind a group of people, to sign the attendance
register at the security desk,
the plaintiff walked passed the
security guard and entered the foyer. She lingered for a moment and
then moved backwards to the
right, leaning with her back against the
wall. The automatic door was situated on the same wall the plaintiff
was leaning against.
Moments later, the security guard passed the
plaintiff, who was looking in front of her, and moved towards the
automatic door,
accompanied by the group of people. The automatic
sliding door in question slides parallel in front of the wall of the
ICU and
is activated from the outside by means of combination
lock/fingerprint activation. The security guard activated the door,
thereby
opening it, in order to let the group of people into the ICU
ward. The automatic door opened and collided with the plaintiff where
she was still leaning / standing against the wall. The plaintiff, as
a result, was knocked down and fell to her left hand side
onto the
floor.
[2]
A video showing the whole incident, as
well as two photographs, depicting the position of the automatic door
and wall area at the
time of the incident and after the event, were
entered into evidence. The video and photographs were of great
assistance to the
court. The first photograph shows the automatic
door which is situated in the foyer area on the right wall, a couple
of metres
from the security desk. A warning sign with bold red
letters reading “Caution automatic sliding door” is
present on
the front of the door and in the middle thereof. A second
photograph of the wall area and automatic door, taken some time after
the event, shows that a metal structure had been installed against
the wall within the trajectory of the automatic door. Mr Goosen,
the
witness on behalf of the defendant testified that it was installed
approximately a month after the incident in an attempt to
improve
safety. The defendant had not installed similar brackets at any other
automatic door on the premises, but had placed additional
warning
signs on the walls at other automatic doors, including the door in
question. The additional warning sign reads as follows:
“CAUTION!
Automatic Sliding Door. DO NOT LEAN OR STAND BEHIND DOOR”.
[3]
The plaintiff testified that she is
originally from Portugal. She came to South Africa with her family at
the age of 9. From the
age of 10, she worked at a Fish and Chips shop
for a Portuguese speaking family. She only attended school up to
Grade 3 and has
a very limited command of the English language. She
testified with the help of a Portuguese interpreter. She stated that
at the
time of the incident she felt emotional and was thinking about
her husband, who was sick and about to pass away-- they had been
married for 56 years. She disputed that she had leaned against the
wall and stated that she did not see the security guard moving
to the
automatic door to open it. On being asked about whether she thought
she was wrong by standing against the wall, she stated
that she did
not know. She testified that she saw how the door operated on the
previous occasions she visited the hospital and
that “
it
runs and it closes
” and that
she noticed it sliding along the wall. Later, during
cross-examination she however stated that she was not aware
of the
operation of the door at all. She stated that she did not notice the
warning sign on the door and that she did not know
that the door was
going to hit her.
[4]
Mr Goosen, testified on behalf of the
defendant. He was employed as the defendant’s maintenance
engineer at the defendant’s
premises at the time of the
incident. He stated that there are 28 automatic doors on the
defendant’s premises and approximately
1500 people attend at
the defendant’s premises on a daily basis. There had been no
prior incidents involving any of the automatic
doors. He testified
that the security guard, stationed at the ICU ward in question, was
not employed by the defendant, but was
employed by an independent
security company, namely Itemba Skymark Security. The security
company was appointed to provide security
and access control services
to the defendant in terms of a service level agreement. Mr Goosen
stated that the approximate length
of the area which the door, on
opening, would traverse was 2.2 to 2.5 metres and although he could
not pinpoint the plaintiff’s
exact location at the time of the
incident, he estimated that she was standing approximately 1 meter
from the leading edge of the
door.
[5]
The plaintiff claims damages due to the
injuries she sustained during the incident. Her claim is based on
delict, arising from the
wrongful and negligent failure by the
defendant to take reasonable steps to avoid the incident which led to
her fall. At the start
of the hearing, the court ordered a separation
of the issues in terms of Rule 33 of the Uniform Rules of Court. The
only issue
to be decided by this court is liability.
[6]
The plaintiff alleges that the defendant
had a legal duty to sufficiently warn all people within a certain
proximity to the door
of the operation of the door; to avoid any
danger that the door could cause to the public; to ensure that the
door was not left
unattended; and to exercise reasonable care to
avoid the incident. The plaintiff alleges that the defendant was
negligent by wrongfully
failing and/or neglecting to warn of the
operation of the door; avoid any danger that the door and the
operation thereof could
pose to the public; and by avoiding the
incident.
[8]
In
Swinburne
v Newbee Investments Pty Ltd
,
[1]
Wallis J held that the owner of property is ordinarily liable to
ensure that the property does not present undue hazards to persons
who may enter upon and use the property. In other words, it is the
owner's legal duty to ensure that the premises are safe for
those who
use them. Control over a dangerous (or potentially dangerous) object
can be a factor in determining whether, in terms
of the
boni
mores
, a legal duty rests upon the
person in control to prevent someone from being injured by the
particular situation.
[2]
A factor pointing to such a duty is when the defendant had knowledge
and foresight of possible harm because they were aware of
the
dangerous situation.
[3]
[9]
The defendant in its plea accepted that
it has a reasonable duty of care in keeping its premises safe, but
contends that it took
“
all
reasonable steps to ensure the safety of the operating of the door.”
The defendant pleaded that the door
was attended to by an independent security guard employed by an
independent security company,
duly contracted to the hospital; that
the door had warning signs; and that it was not reasonable and
foreseeable that a visitor
to the hospital would lean against the
wall within the path of travel of the door. The plaintiff pleaded
that the sole cause of
the incident was the negligence of the
plaintiff who,
inter alia,
leaned
against the wall within the path of travel of the door; failed to
take heed of the warning signs prominently displayed on
the automatic
sliding door; failed to take notice that the independent security
guard proceeded to engage the opening of the automatic
sliding door;
and failure to avoid the incident when by the exercising of
reasonable care, she could and should have done so.
NEGLIGENCE
[10]
It is trite that, for the purposes of
liability,
culpa
arises
if:
“
(a)
a diligens paterfamilias in the position of the defendant —
(i)
would foresee the reasonable
possibility of his conduct injuring another in his person or property
and causing him patrimonial loss;
and
(ii)
would take reasonable steps to
guard against such occurrence; and
(b) the
defendant failed to take such steps.
[4]
[11]
The precise way in which harm occurred
need not have been foreseeable. Only the general nature of the harm
that occurred and the
general manner in which it occurred, should be
reasonably foreseeable.
[5]
In
The Premier of the Western Cape
Province v Loots NO,
[6]
the Supreme Court of Appeal (“SCA”)
affirmed this approach and stated that our courts have adopted the
relative approach
to negligence as a broad guideline, without
applying that approach in all its ramifications. Brand JA explained
that the relative
approach “
does
not require that the precise nature and extent of the actual harm
which occurred was reasonably foreseeable. Nor does it require
reasonable foreseeability of the exact manner in which the harm
actually occurred. What it requires is that the general nature
of the
harm that occurred and the general manner in which it occurred was
reasonably foreseeable.”
[11]
The defendant clearly foresaw that the
automatic door poses a danger and that it could cause injury to
persons. It is for that reason
that the defendant placed signs on the
door to warn the public of the existence of the door. The only reason
why the defendant
would warn someone of the existence of the
automatic door is because it foresaw that if the door opens it might
injure someone
standing in the trajectory of the door. Once harm is
foreseen it must be obvious to the reasonable man that he ought to
take appropriate
steps to avoid harm.
[7]
The only question that needs to be determined is whether the steps
that were taken by the defendant under the circumstances were
reasonable.
[12]
The plaintiff in her particulars of
claim does not rely upon any conduct of the security guard in the
manner or timing in which
the door was opened and there is no
evidence presented by either parties that the placing of the security
guard at the ICU ward
was a further step taken by the defendant to
prevent anyone from getting injured by the door. It is in any event
clear from the
evidence as well as the service level agreement
between the security company and the defendant, that the security
company was responsible
for access control to the ICU ward and that
the guard was not placed at the ICU ward to prevent people from
getting injured by
the door. So, the only step that was taken by the
defendant to prevent someone from getting hurt by the automatic door,
was placing
a warning sign “Caution: Automatic Door””
on the door.
[13]
Was this step taken by the defendant
reasonable under the circumstances?
In
ZA v Smith & Another,
[8]
the SCA found that reasonable steps
should be taken to prevent harm even where the danger would not have
been clear, and the proposed
remedial steps would have been
effective, affordable and sustainable. Whether steps would be
reasonable, must always depend upon
the particular circumstances of
each case.
[14]
Mr Goosen testified that the steps taken
by the defendant was, in his opinion, reasonable. I disagree.
Firstly, although the door
might be visible from the entrance of the
foyer, it will only be when one is standing in front of the door and
consciously observes
how the door moves that one would understand the
operation of the door and the danger of standing against the wall.
The specific
technical operation of the door, would probably not be
scrutinized or even considered by the reasonable person. Secondly,
when
the plaintiff entered the foyer and moved towards the wall,
there were no signs to warn her that she is standing in the
trajectory
of the door. The evidence of Mr Goosen is that the
automatic door opens 2 to 2,5 metres to its right in front of the
wall. There
is nothing to indicate to a person entering the area,
that the door moves such a distance. That is probably the reason why
the
defendant placed a metal bracket in front of the wall after the
incident occurred. Although the after-the-fact installation does
not
in itself provide evidence of negligence, Mr Goosen’s answer in
this regard was telling: it was done to prevent harm.
He also
conceded that the placing of barriers was a simple and cost-effective
solution to the issue, but attempted to explain away
this remedial
action not as reasonably necessary but as a valiant attempt to render
the environment even safer.
[15]
Thirdly, the automatic door was
unshielded and only contained a warning printed in red letters:
"Caution automatic sliding
door". The plaintiff was within
the trajectory of the automatic door when it opened and there was no
sign on the wall indicating
in which direction the door opened or
cautioning a person not to lean or stand close to the wall. Placing a
sign only on the door
therefore served no purpose in preventing a
person from getting harmed if that person is leaning against the wall
in the trajectory
of the door. The defendant should have, as it has
done after the incident, placed a sign on the wall warning people not
to lean
or stand behind the door. The sign placed on the door was not
a reasonable measure given the particular circumstances of this case
and did not prevent the foreseeable harm. Fourthly, to make matters
even worse, the automatic door can be opened from the inside
by a
motion detection sensor, without any warning to someone standing on
the outside of the ICU ward. By only placing a blue and
red sticker
on the door itself, the defendant did not take reasonable steps.
Visitors would probably not give more regard to the
door than to
realize that it is a sliding door.
WRONGFULLNESS
[16]
An enquiry into wrongfulness is
determined by weighing competing norms and competing interests.
Whether conduct is wrongful is tested
against the legal convictions
of the community.
[9]
LAWSA,
[10]
explains it as follows:
“
Public policy is closely
associated with, and cannot be separated from, the community’s
perception of justice, equity, good
faith and reasonableness.
However, courts are “not concerned with what the community
regards as socially, morally, ethically
or religiously right or
wrong, but whether or not the community regards a particular act or
form of conduct as delictually wrongful”.
[17]
The enquiry is the following: As the
defendant could have prevented the harm that the plaintiff suffered
and it had negligently
failed to do so, should the defendant, as a
matter of public and legal policy, be held liable for the loss
resulting from such
harm? As stated before, the defendant admitted
that it has a legal duty to prevent harm. Its only defence was that
it took all
reasonable steps to prevent harm.
[18]
The question of wrongfulness in the
present matter is, in my view, self-evident. The defendant is
expected to act positively to
prevent the harm and it is reasonable
to expect of the defendant to have taken positive measures to prevent
the harm. The hospital
did not take reasonable steps to ensure that
the premises is safe. The legal convictions of the community, in
consideration of
constitutional principles, require the hospital to
act reasonably. The failure of the hospital to take reasonable steps
to ensure
the safety of people attending its premises was wrongful.
CONTRIBUTORY NEGLIGENCE
[19]
The plaintiff clearly gave evidence on a
retrospective basis. The objective evidence from the video footage
clearly depicts that
the plaintiff simply walked into the foyer but
never looked in the direction of the door or gave any regard to the
security officer
or the other visitors approaching the door. This, in
itself, confirms that the plaintiff was oblivious to the operation of
the
door and the risks associated therewith. Her only knowledge of
the risk could have been founded on pre-acquired knowledge, but her
evidence in this regard did not confirm any definite knowledge or
insight to the risk.
[20]
The mere fact that one visitor might
give regard to the operation of the door and another does not, is
indicative of the risks associated
with the operation of the door.
The test remains that of the reasonable person. Under the
circumstances, there is no evidence to
support the allegation that
the plaintiff was contributory negligent in the causing of the
incident. I am satisfied, on a balance
of probabilities, that the
failure of the defendant to take reasonable steps in preventing the
risk, was the sole cause of the
incident.
[21]
In the result the following order is
made:
1.
The defendant is held liable to pay 100%
of the damages suffered as a result of injuries sustained by the
plaintiff during the incident
on 4 February 2017.
2.
Costs to be paid by the defendant which
includes the costs of counsel.
L.
WINDELL
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Electronically
submitted therefore unsigned
Delivered:
This judgement was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines. The
date for hand-
down is deemed to be 25 March 2021.
APPEARANCES
Attorneys
for the plaintiff:
A. Wolmarans Inc
Counsel
for the plaintiff:
Advocate P. Uys
Attorneys
for the defendant: Whalley &
van der Lith Inc
Counsel
for the defendant:
Advocate W. de Beer
Date
of hearing:
24 November 2020 & 26 November 2020
Date
of judgment:
25 March 2021.
[1]
Swinburne v Newbee Investments Pty Ltd
2010 (5) SA296 (KZD)
ad paragraphs (10) and (12).
[2]
Neethling & Potgieter
Delict
(2015) 62–5).
[3]
ZA v Smith & Another
2015 (4) SA 574
(SCA) at 586.
[4]
Kruger v Coetzee
1966 (2) SA 428 (A).
[5]
Sea Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold
Storage (Pty) Ltd and Another
2000 (1) SA 827 (A).
[6]
(9214/2010)
2011 ZASCA 31
at
[13]
.
[7]
Herschel v Mrupe
1954 (3) SA 464
(A) at 477A.
[8]
Ibid fn 3 at
[9]
Loureiro and Others v Imvula Quality Protection (Pty) Ltd
2014
(3) SA 394
(CC) at [34].
[10]
LAWSA, Delict, Volume 15 – Third Edition Wrongfulness, 75.