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[2010] ZAGPPHC 17
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Klesh v Monateng Safari Lodge Shareblock Ltd (32819/2008) [2010] ZAGPPHC 17 (15 March 2010)
/EVDM
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
Case
Number:
32819/2008
Delivered
on:
15
March
2010
In
the matter between:
M.
F. KLESH PLAINTIFF
vs
MONATENG
SAFARI LODGE SHAREBLOCK LTD DEFENDANT
JUDGMENT
POTTERILL
J,
§
1
.
The plaintiff is claiming damages from the defendant after slipping
while walking across the patio of Unit
RB05.
The
plaintiff occupied this unit in terms of an oral agreement between
the parties that the plaintiff could take up occupation of
this unit
at the defendant's Safari Lodge for the period
14
January
2008
to
21
January
2008.
§
2.
The plaintiff is averring that the slipping of the plaintiff was
caused solely as a result of the negligence on the part of the
defendant and or its employees. The grounds of negligence are set out
as follows:
"7.1
there was insufficient protection against water and/or rainwater
collecting and/or falling onto the tiles at the said
patio;
there
was no warning to members of the public including the Plaintiff who
occupied the said unit that the said tiles when wet
were dangerous
and slippery:
no
precautions were taken in order to ensure that if the said tiles
became damp and/or wet, same would not be slippery and would
be safe
for members of the public including the plaintiff to walk across;
in
allowing the tiles to on the patio to become wet and in not taking
any or any sufficient steps to ensure that same did not occur
in
failing to avoid the aforementioned when, by exercise of reasonable
care, same could and should have been avoided.
in
failing to avoid the aforementioned when, by the exercise of
reasonable care, same could and should have been avoided."
It
is also averred that the defendant owed a duty of care to the members
of the public who took up accommodation to have foreseen.
"8.1
...that the tiles on the patio aforementioned would become
dangerously slippery and a danger to such person or persons,
including the plaintiff when wet;
8.2
the
defendant should have taken reasonable steps to guard against such
occurrence which the Defendant failed to take.
9
The Defendant breached its duty of care aforementioned in that it
failed to take any reasonable steps to guard against an incident
as
referred to hereinabove occurring when, by the exercise of reasonable
care, it could and should have done so."
§
3.
The
defendant denied that it or its employees were negligent. It pleaded
that if the court should find that there was negligence
on the part
of the defendant or its employees then by accepting Annexure A. an
indemnity form and search warrant, the defendant
was absolved from
liability. On a proper construction of Annexure A the defendant is
absolved from potential liability for any
incidents however such
incidents might be caused. Cumulatively or in the alternative the
notice that was prominently displayed
at the entrance to the lodge
and assented to by the plaintiff on a proper construction served to
excuse the defendant from potential
liability. Furthermore Annexure A
and the board excluded the plaintiff from a duty of care. It was also
pleaded that should the
court find that there was negligence on the
part of the plaintiff and its liability was not excused by Annexure A
and/or the board
at the entrance then the plaintiff negligently
contributed to the incident. He did so by failing to keep a proper
lookout. He also
failed to take account of the fact that it was
raining and that the surface was consequently wet and did not take
due care.
§
4.
The
plaintiff is a native from the United States of America who at the
time of the incident was stationed in Addis Ababa for three
years. He
is well-read with an MBA-degree and a seasoned traveller. He in
January 2008 exchanged his RCI points trading the resort
Sun City for
the resort Monateng Safari Lodge. He would take up accommodation from
14 to 21 January 2008. Two years previously
he had also stayed at the
Monateng Safari Lodge. He passed the green board on his arrival but
did not notice it at all. He stopped
under the thatch at the entrance
to the resort. When standing there the board is behind one and he did
not see it. The security
rushed him on because of a vehicle behind
him and he parked at the parking bays. In cross-examination he
admitted that on his visits
to the dentist he had passed the board 4
times and did then notice it, it but he did not read it. The board at
the top and bottom
has very bold letters drawing attention to the
fact no fire-arms are allowed and the right of admission is reserved.
He did not
read the remainder of the writing on the board. At
reception he handed over his credit-card, his UN diplomatic passport
and divulged
his vehicle's registration number.
He
also signed and dated annexure A with the heading "INDEMNITY
FORM AND SEARCH WARRANT." He however did not read the
first
three-quarters of the document. He only read the question whether he
had a fire-arm or not and that his vehicle could be
searched. He was
told that the document related to fire-arms and pets. He was rushed
at reception and he knew he had to sign to
get his key. He wanted it
to be speedy because he was in pain due to his visit to the dentist.
The receptionist told him the document
was a mere formality. At Sun
City he saw the big board at the entrance to the resort. At all
resorts he would sign a document before
receiving his keys. Prior to
the incident he did not use any of the other resort facilities except
the restaurant and its amenities.
He saw a board at the restaurant,
but he also did not read it. In between the teeth appointments he
also worked on his personnel's
performance assessment reports. Over
the four days prior to the incident it rained in the night, he did
not find the patio to be
wet. he knew this from the wet surroundings.
§
5.
On
the 19
th
of January 2008 he was at the resort. He was working on the patio. He
had moved the table and chairs to the east so that he could
have some
African sun and have a view on all sides. He had taken a nap earlier
in the day. He was wearing shoes, topsiders, with
very good traction;
made for use on boats. While taking a comfort break he heard that it
had started to rain heavily and he also
heard the wind. He feared
that his important governmental documents on the patio were being
blown away and would get wet. He was
also not sure if he closed the
windows of his vehicle. He finished up, washed his hands and went to
the patio door to see that
his worst nightmare had come true. From
finishing up to getting on to the patio took him no more than 4
seconds. He described the
storm as a tempest; an exceptional storm.
The wind was whirling and he saw tornado manifestation of the strong
wind. He took 2-3
steps on the patio when he slipped. He did not see
water on the patio but conceded there must have been rainwater there,
because
that is why he avers he slipped. He hydroplaned at a 45
degree angle and fell with his back on the corner of steps 2 or 3
which
caused his back to break. He landed another 2-3 metres further
on the concrete breaking his wrist in trying to break his fall. In
this state he lay in the rain until he managed to painfully and
slowly drag himself up the steps. He managed to get to his cell-phone
and called for help. Jacques and a lady with first-aid knowledge
arrived within 6 minutes. When crawling he was amazed at the amount
of water that had collected on the patio. He testified that he could
do nothing to avoid the incident. He was not running but walking
briskly.
§
6.
The
question that must be answered is whether the defendant was
negligent. To answer in the affirmative I must find that a reasonable
person in the defendant's position would have foreseen the reasonable
possibility that the defendant's conduct caused the plaintiff's
damage. The reasonable person would also have taken reasonable steps
to guard against such occurrence and the defendant should
have.
§
7.
Part
of unit RB5 consists of a large covered patio. The patio accommodates
a built in braai and a large table with 6 chairs. The
patio has a
roof, ceiling and a tiled floor. The patio is formed with two walls
of the unit itself, thus two sides of the unit
are walled in and two
sides are open. With the patio being roofed rain from above is not
reasonably foreseen. Normal rainfall would
also not render the patio
wet, but by its very nature it is an open patio to see and experience
the elements. The plaintiff himself
pushed the table to the eastside
to experience the African Sun. thus although the patio is covered sun
will shine on the patio.
The moment the plaintiff heard the rain and
wind he hurried to save his documents because he knew the wind would
blow on the patio.
Although the patio is covered sideway rain may
fall onto the tiles. The plaintiff put no evidence before the court
that the tiles
were not fit for outdoor use. There is no evidence to
suggest that the tiles on the patio are as a general rule slippery
when wet.
The defendant can foresee that a two sided open patio is
partially open to the elements, sun, wind, rain and hail as a few
examples.
The reasonable person would also foresee that most
surfaces, including tiles, are slippery when wet.
§
8.
The
degree of the probability of the harm occurring raises the question
whether the defendant had to take reasonable steps to guard
against
it. The evidence is that on the plaintiff's previous visit and the
four days prior to the incident the rain on the patio
did not cause
him any harm. The incident occurred 2-3 steps from exiting the patio
sliding door, even before reaching the table
as set out in the
photographs. The plaintiff could not explain how the rainwater had
got up so far onto the patio. He ventured
that he had seen a leak
from the roof, but nothing was made of that and it was in anyhow not
in the vicinity of where he slipped.
It is probable that the tempest
with swirling winds had blown the water on to the tiles. Should the
defendant have foreseen that
an exceptional storm would blow the
water in under the roof, more than 4 metres up to 2-3
steps
from the patio sliding door in 4 seconds? Should they also have
foreseen that a person with knowledge that the patio is open
to the
elements, which while this tempest, is playing itself out would rush
to save possessions on the patio from these very elements
and then
slip. The slip resulted in the plaintiff sliding 4 metres, down steps
and landed 2-3 metres further. Under these circumstances
it would to
my mind be expecting too much of a reasonable person to hold that the
defendant should have guarded against injury
to another in these
circumstances. The open-sided patio allows for tiles to get wet when
rain is accompanied by side winds; the
defendant did not have to
guard against this. There is simply no evidence to suggest that the
tiles are more slippery than to be
expected when wet; i.e.
dangerously slippery. I accordingly find that the defendant was on a
preponderance of probabilities not
negligent.
§
9.
The
argument that the defendant owed the plaintiff a duty of care and
breached it is similarly not proven. In as far as the duty
of care
arises when a reasonable man in the position of the defendant would
have foreseen harm and taken steps to guard against
it there is no
difference from the test for negligence. Lord Goddard, C.ZJ said in
Gillmore
v London County Council
[1938]
4 ALL E.R. 333(C.A.)
at 639;
"The
mere fact that the plaintiff slipped on some stones which had become
polished owing to ordinary wear in this drive is
no justification for
holding that this was a dangerous place, or that reasonable care had
not been used to see that the premises
were reasonably safe."
In
this matter the plaintiff had in the night slipped on shiny and
polished stones with which the drive was made up. As set out
above
the plaintiff has not on a preponderance of probabilities proven that
the defendant should have foreseen that the tiles when
wet would be
so dangerously slippery that they should have taken reasonable steps
to guard against it. They had no duty to prevent
rain on an
open-sided patio.
§10.
It was also argued that the plaintiff proved he slipped, the
defendant did not lead evidence to the contrary and accordingly
res
ipsa loquitor
applies.
This maxim is applicable where the facts of the matter are such to
give rise to an inference of negligent conduct. A court
is however
not compelled to draw an inference of negligence and on these facts I
am not applying the maxim. The plaintiff slipped
on wet tiles after
hurrying to save important papers and perhaps the interior of his
vehicle. There was no evidence that the tiles
were dangerous when wet
and not suitable on a patio. In fact the evidence is that the
plaintiff was really worried about his papers
on the patio. He heard
the tempest and knew the wind and rain of the tempest would affect
his papers on the patio. He had moved
the table with the papers to
the more unprotected side of the patio. Within 4 seconds he reached
the patio, crossed the pailu walking
"briskly" with 2-3
steps and then he hydroplaned. He did not look at his feet, or the
patio floor, he never saw water
on the tiles. He was hurried and
worried. The incident was not due to a thing or means within the
exclusive control of the defendant
or where the only known facts
relating to negligence consist of the occurrence itself. These facts
do not warrant the application
of the maxim or for the defendant to
adduce evidence to the contrary.
§11.
It follows that it is not necessary to address whether Annexure A,
the averred indemnity and /or the board at the entrance
absolved the
defendant from liability.
§
12. I accordingly make the following order:
§
12.1 The plaintiff's claim is dismissed with costs.
S.
PotterJH
Judge
of the High Court
Matter
heard on: 08 & 09 March 2010
Delivered
on: 15 March 2010
Attorney
for the Plaintiff:
Attorney
for the Defendant:
SCHOONNEES,
BELLING & SAVAGE JOOSTE & ADAMS INC
GEORGIEV. Pretoria
Johannesburg. Tel:
012 452 8200
(Ref:
MR GEORGIEV/CDP/K94) (Ref: MR FORRESTER/ER/WS938)