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[2010] ZAGPPHC 58
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Holm v Sonland Ontwikkeling (Mpumalanga) (Edms) Bpk (58525/2008) [2010] ZAGPPHC 58; 2010 (6) SA 342 (GNP) (9 July 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(NORTH
GAUTENG HIGH COURT, PRETORIA
)
CASE
NO:
58525/2008
DATE:
9/07/2010
IN
THE MATTER BETWEEN
ERIK
HARM HOLM PLAINTIFF
AND
SONLAND
ONTWIKKELING (MPUMALANGA)
(EDMS)
BPK DEFENDANT
JUDGMENT
MAKGOBA,
J
[1]
This case raises the problem of to what extent the owner of land who
invites others to use that land owes a duty to protect
those users
against the consequences of their own foolishness. The plaintiff sues
the defendant for damages arising out of the
injury sustained by him
pursuant to his having dived into the dam at the Lake Umuzi
Waterfront Shopping Centre at Secunda, of which
the defendant is the
owner. As a consequence of the injury sustained by him the plaintiff
is permanently paralysed from nipple-level
downwards and is thus
confined to a wheelchair.
[2]
At the commencement of the trial, the parties agreed to and the court
ordered a separation of issues in terms of Rule 33(4)
of the Uniform
Rules of Court. In terms of the separation order, the issues relating
to the liability of the defendant are to be
decided first, while
those pertaining to the
quantum
of
the damages claimed stood over for later determination.
[3]
At the commencement of the trial it was conceded on behalf of the
plaintiff that the plaintiff was to a degree negligent in
diving into
the
dam
without satisfying himself that it was safe to do so by way of
determining the depth of the water in the dam.
[4]
During the course of the trial the plaintiff would therefore
endeavour to prove contributory negligence on the part of the
defendant. That the defendant owed him a duty of care and was in
breach thereof. The defendant in its plea pleaded that the incident
was caused solely as a result of plaintiffs own negligence and
alternatively pleaded that even in the event of the court finding
that the defendant was negligent, which is denied, that the
defendant's liability is excluded by virtue of an agreement entered
into between the parties (exclusion clause).
[5]
The following issues were agreed upon between the parties at the
commencement of the trial:
5.1
that the defendant is the owner of the property where the incident
occurred;
5.2
that the water in the dam was turbid at the time of the incident;
5.3
that the defendant bears the
onus
of
proving the alleged agreement as per the exclusion clause;
5.4
for the rest of the issues, the plaintiff bears the
onus
of
proof.
[6]
Both parties adduced evidence. On behalf of the plaintiff a Ms
Nicollete van Zyl and the plaintiff gave evidence. Mr Johan Rosslee,
the shareholder and director of the defendant was called as a witness
for the defendant.
[7]
Ms Van Zyl's evidence is that she was in the vicinity of the
volleyball court on the date of the incident. She saw the plaintiff
kicking the ball over the three metre high nett-fence causing the
ball to land in the dam. Plaintiff ran to retrieve the ball and
in so
doing, dived into the dam. She subsequently realised that the
plaintiff was injured.
[8]
Ms Van Zyl testified further that there are two gates for members of
the public to gain entrance to the shopping complex, namely
a "boom
gate" on the one side and a "sliding gate" on the
other side. She confirmed that the notice boards
containing the
exclusion clause were present at the boom gate through which members
of the public gained access to the premises.
However, as at the date
of this incident there were no such notice boards on the sliding
gate. She visited the premises some two
weeks before the trial date
and discovered that the notice board containing the exclusion clause
has since been put on the sliding
gate.
[9]
The wording of the board disclaiming liability on the part of the
defendant (that is, the exclusion clause) is as follows:
"
Sonland
Ontwikkeling Mpumalanga (Pty) Ltd and/or any of its employees and/or
agents, hereby do not take responsibility for any loss
of or damages
to any vehicle and/or other property belonging to, or injury to
anyone entering this premises, whether such loss
or damage was caused
by the Company and/or its agents and/or employees, or not. Entry to
this premises is completely at your own
risk.
"
[
10] Under cross-examination Ms Van Zyl stated that the volleyball
court was not dangerous and that she did not think that it was
dangerous for her children to play on the volleyball court or in the
vicinity of the volleyball court. She told the court that
the dam or
the water in the dam and the surrounding circumstances are such that
she would not dive into the dam and does not think
that it would be
safe for any person to dive into the dam.
[11]
She confirms that there are no warning signs in the vicinity of the
volleyball court warning members of the public not to dive
into the
dam. This was the position on the date of the incident and it is
still the position.
[12]
The plaintiff gave evidence to the effect that on 24 August 2007 he
visited, together with the cast who were in Secunda for
purposes of
performing a play, the premises for the first time. They entered the
premises through the sliding gate (as opposed
to the boom gate). At
the entrance through which they entered the parking area of the
shopping complex, there was no board erected
by way of disclaiming
liability on the part of the defendant for injury to persons entering
the premises. After arriving at the
shopping complex, the plaintiff
and his companions walked around the shopping complex before having
lunch at the Ocean Basket restaurant
which overlooks the dam. From
the deck of the restaurant the plaintiff observed boats on the water.
He observed certain notice
boards at the shopping centre. Such notice
boards did not include any warning that it was not safe to swim in or
dive into the
dam, nor was there any railing at the water's edge to
prevent one from so doing.
[13]
After lunch, the plaintiff and two others started playing volleyball
on the volleyball court which is situated adjacent to
the dam at the
water's edge. He had borrowed the volleyball from Ms Van Zyl. During
the course of the volleyball game, the ball
flew over the
side-netting of the volleyball court into the dam. A strong wind was
blowing which had the effect of causing the
ball to start drifting
away from the water's edge. He decided to retrieve the ball and in so
doing he started running. Whilst running
he took off his shirt, and
without stopping to ensure that it would be safe to dive into the
water, dived into the water to retrieve
the ball. He is unable to
state whether he injured himself in shallow water or against an
object that was not visible.
[14]
The plaintiff conceded that his conduct was dangerous, unsafe and
not reasonable. He, however, stated that at the time of
his diving
into the dam, he believed it was safe to do so on the ground that:
14.1
the plaintiff had observed that there were boats on the water;
14.2
the volleyball court was situated adjacent to the dam at the water's
edge in spite of there being a likelihood that the ball
would in fact
fly over the side-netting of the volleyball court into the dam and
needed to be retrieved;
14.3
there was no warning sign at the volleyball court or elsewhere at the
shopping centre of any danger posed by diving into the
dam, due to
the shallow water level or otherwise;
14.4
there was no railing to prevent one from diving into the dam;
14.5
one could not due to the murky/turbid state of the water see the
bottom of the dam by way of being alerted to the shallow water
level
of the dam;
14.6
children were running and playing in the immediate vicinity of the
dam.
[15]
The evidence of Mr Rosslee can be summarised as follows. On the day
that the plaintiff visited the shopping complex (24 August
2007),
there was no notice board at the entrance at which the sliding gate
is situated by way of disclaiming liability on the part
of the
defendant for injury to persons who enter the premises. The water
level of the dam was low as a result of irrigation during
winter and
it would have appeared to any person that it would not be safe to
dive into the dam. He stated that it would not be
foreseeable that
any member of the public would dive into the dam in order to retrieve
a volleyball. Volleyballs have been retrieved
during the last couple
of years by a number of people who walked into the dam to retrieve
the ball, without sustaining any injury.
[16]
Mr Rosslee confirmed that there are no signs warning members of the
public against diving into the dam. The dam is not suitable
for
swimming, people do not swim in the dam and the danger posed by
diving is so obvious that it does not require any warning.
This was
the case not only on the date of the incident but subsequently and to
date hereof as he does not deem it necessary to
warn members of the
public against the obvious danger. He does not dispute the plaintiffs
evidence that no notice board was erected
at the sliding gate. He
confirmed that no railing was erected at the water's edge where the
volleyball court is situated adjacent
to the dam given that, due to
the shallow water level, one will not drown if one falls into the
dam.
[17]
Under cross-examination Mr Rosslee made the following concessions:
17.1
that the plaintiff had entered the shopping complex through the
entrance at which the sliding gate is situated and where there
was no
notice board by way of disclaiming liability on the part of the
defendant for injury to persons entering the premises;
17.2
if there was a notice/warning board at the particular entrance the
plaintiff would have known that he entered the premises
at his own
risk;
17.3
the reason for there being no warnings displayed at the shopping
complex, by way of warning visitors not to dive into the dam,
notwithstanding the shallow water level, was that this was not "the
norm" at waterfront shopping complexes (eg the Randburg
Waterfront);
17.4
that in retrospect, the defendant should have warned visitors not to
dive into the dam due to the shallow water level;
17.5
that it is not disputed by the defendant that on 24 August 2007 the
plaintiff, in order to gauge the depth of the water in
the dam, could
not see the bottom of the dam;
17.6
that when it developed the shopping complex, the defendant situated
the volleyball court at the water's edge, in the absence
of any
warning as to the danger posed by diving into the dam, rather than
away from the water's edge; 17.7 that the defendant did
not deem it
necessary to display any such warnings to the visitors not to dive
into the dam, as it could simply erect a disclaimer
board in terms of
which it was indemnified against liability for injury to persons
entering the premises.
[18]
It is appropriate at this juncture to deal with the defendant's
defence that its liability is excluded by virtue of an agreement
entered into between it and the plaintiff. On the evidence before me
it is common cause that the plaintiff entered the premises
through
the sliding gate. It is further common cause that there was no notice
board disclaiming liability at the sliding gate.
It goes without
saying that the alleged exclusion clause never came to the attention
or knowledge of the plaintiff. There can therefore
be no agreement
between the parties as alleged by the defendant. The defendant has
failed to discharge the
onus
of
proving that the alleged agreement came to the notice of the
plaintiff.
[19]
The next issue before me is for the plaintiff to establish the
wrongfulness of the defendant's act of omission. Whether there
was a
duty of care on the part of the defendant and that through its
negligence the defendant has breached the duty of care. An
omission
is wrongful if the defendant is under a legal duty to act positively
to prevent the harm suffered by the plaintiff. A
defendant is under a
legal duty to act positively to prevent harm to the plaintiff if it
is reasonable to expect of the defendant
to have taken positive
measures to prevent the harm.
[20]
The court determines this issue by making a value judgment based on
"the legal convictions of the community" and
on
considerations of policy. The approach of the courts to this issue
has always been an open-ended and flexible one. See
Van
Eeden v Minister of Safety and Security
2003
1 SA 389
at 395 par [9].
[21]
In the abovementioned decision VIVIER, ADP said the following at page
396:
"[10]
In applying the concept of the legal convictions of the community the
court is 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. The legal convictions of the community must
further be seen as the legal convictions
of the legal policy makers
of the community such as the Legislature and Judges. See
Schultz
v Butt
1986
3 SA 667
(A) at 679D-E and
Premier
Hangers CC
v
Polyoak
(Pty) Ltd
1997
1 SA 416
(A) at 422E-F."
[22]In
Minister
van Polisie v Ewels
1975
3 SA 590
(A) it was held that: Our law has developed to a stage
wherein an omission is regarded as unlawful conduct when the
circumstances
of a case are of such a nature that the omission not
only incites moral indignation but also that the legal convictions of
the
community demand that the omission ought to be regarded as
unlawful and that the damage suffered ought to be made good by the
person
who neglected to do a positive act. In order to determine
whether there is unlawfulness the question in a given case of an
omission
is thus not whether there was the usual "negligence"
of the
bonus
paterfamilias
but
whether regard being had to all the facts, there was a duty in law to
act reasonably. Compare
Minister
of Law and Order v Kadir
1995
1 SA 3
03 (A) at 317C-318 A. See also
Cape
Town Municipality v Bakkerud
2000
3 SA 1049
(SCA) at paras [14] to [16].
[23]
A defendant acts wrongfully when he creates a source of danger by
means of positive conduct
(commissio)
and
subsequently fails to eliminate that danger
(omissio)
with
the result that harm is caused to a plaintiff. See Neethling,
Potgieter and Visser
Law
of Delict
5
th
edition at page 52 (par 5.2.1).
Likewise
a defendant which is in control of property upon which a hazard
exists is under a duty to warn a plaintiff of the nature
of the
hazard and the risk involved, by appropriate warning of the hazard.
Failure to do so involves a wrongful omission. See
Neethling,
Potgieter and Visser, supra,
at
page 57;
Cape
Town Municipality v Bakkerud, supra,
at
par [11].
[24]
In the recent decided case on the issue before me, BRAND, JA said the
following in
Hawekwa
Youth Camp
v
Byrne
[2010]
2 All SA 312
(SCA)atpage 321:
"[22]
The principles regarding wrongful omissions have been formulated by
this court on a number of occasions in the recent
past. These
principles proceed from the premise that negligent conduct which
manifests itself in the form of a positive act causing
physical harm
to the property or person of another is
prima
facie
wrongful.
By contrast, negligent conduct in the form of an omission is not
regarded as
prima
facie
wrongful.
Its wrongfulness depends on the existence of a legal duty. The
imposition of this legal duty is a matter of judicial determination
involving criteria of public and legal policy consistent with
constitutional norms. In the result, a negligent omission causing
loss will only be regarded as wrongful and therefore actionable if
public or legal policy considerations require that such omission,
if
negligent, should attract legal liability for the resulting damages."
[25]
In the light of the principles outlined in the authorities referred
to above, MrBester, counsel for the plaintiff, made the
following
submissions:
25.1
that the omission on the part of the defendant to take positive steps
to prevent harm to the plaintiff (in particular, the
failure to
display warning signs or erect a railing at the volleyball court)
constituted a wrongful omission in breach of the duty
of care towards
the plaintiff;
25.2
that the defendant by its prior conduct, in situating the volleyball
court adjacent to the dam at the water's edge, introduced
a source of
danger and subsequently failed to eliminate that danger (in
particular by failing to erect warning signs or a railing
at the
volleyball court) in breach of its legal duty of care towards the
plaintiff;
25.3
that the defendant as the owner in control of the shopping complex,
was under a legal duty to warn the plaintiff of the nature
of the
hazard and the risk involved in diving into the dam. In breach of its
legal duty in this regard, the defendant wrongfully
omitted to warn
the plaintiff of such hazard.
[26]
I agree with the submissions made by counsel. I may add by concluding
that when regard is had to all the circumstances outlined
in the
evidence, I am of the view that the legal convictions of the
community require the defendant either to ensure that the dam
is not
hazardous or to take appropriate steps to remove the volleyball court
from the edge of the dam, or to warn the public about
it, or to erect
a barrier or railings preventing members of the public from
proceeding into the dam. Public policy, in relation
to a public
shopping complex such as the defendant requires that.
[27]
Turning to the question of negligence, it is now established that
whether in any particular case the precautions taken to guard
against
foreseeable harm can be regarded as reasonable or not depends on a
consideration of all the relevant circumstances and
involves a value
judgment which is to be made by balancing various competing
considerations. These would ordinarily be
(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.
If
a reasonable person in the position of the defendant would have done
no more than was actually done, there is, of course, no
negligence.
See
Cape
Metropolitan Council
v
Graham
2001
1 SA 1197
(SCA) at 1203 par [7].
[28]
According to the test laid down in
Kruger
v
Coetzee
1966
2 SA 428
(A) at 430E-F a defendant is negligent if-
(a)
the
diligens
paterfamilias
in
the position of the defendant-
(i)
would foresee the reasonable possibility of his act or omission
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.
[29]
It has been conceded on behalf of the plaintiff that the plaintiff
was to a degree negligent in diving into the dam without
first
satisfying himself that it was safe to do so. Apparently on the basis
of this concession, Mr Pieterse, counsel for the defendant
argued and
submitted that a reasonable person, in the position of the defendant,
does not have to guard against reckless or gross
negligent conduct on
the part of a plaintiff In this regard counsel referred me to the
following
authorities:
Southern
Insurance Association Ltd v Danneberg
1976
3 SA 253
(A);
Rondalia
Versekeringskorp SA Bpk v De Beer
1976
4 SA 707
(A);
South
African Railways & Harbours v Reed\965 3 $A
439(A).
[30]
I have considered the authorities referred to by counsel and in my
view same cannot be helpful to the defendant
in
casu.
The
above cases deal with negligence in relation to the driving of motor
vehicles. Without suggesting that negligence on the highway
falls
into a discrete category, it is nevertheless appropriate to point out
that particular factual circumstances, which may vary
considerably
from case to case, attend to driving of motor vehicles. Even in the
context of negligent driving there are circumstances
when a
reasonable driver will foresee and take precautionary measures
against the negligent conduct of other drivers.
[31]
Although the plaintiff had himself been negligent, the defendant
should have reasonably foreseen that members of the public
might walk
along the water's edge and even dive into the dam, albeit that it was
negligent to do so, and should have taken the
easy and inexpensive
precautions available to it to avert the potential danger and that it
could not, in the circumstances of the
case, rely on the principle
that one is entitled to assume that others will not act negligently.
[32]
The reasonable person in the position of the defendant would have
taken reasonable steps to guard against someone diving into
the dam
to retrieve a volleyball. Steps could have been taken by the
defendant, at negligible cost and with minimum effort by simply
displaying a warning sign at the volleyball court of the danger of
diving into the dam due to the shallow water level, alternatively
erecting a railing adjacent to the volleyball court at the water's
edge. The defendant failed to take any steps, as it ought to
have
done, to prevent harm by way of a visitor to the shopping complex
diving into the dam.
[33]
Mr Rosslee's explanation for the failure to take steps to guard
against such occurrence was that the defendant could simply
erect a
disclaimer board in terms of which the defendant was indemnified
against liability for injury to persons entering the premises.
I
agree with Mr Bester's submission that this amounts to the "devil
may care" attitude on the part of the defendant.
It is not
surprising that only after the occurrence involving the plaintiff a
disclaimer board was erected at the sliding gate.
[34]
The degree of plaintiffs negligence must be assessed in order to
determine the defendant's contributory negligence. In my view
the
plaintiffs conduct was momentary in nature, or at most, of only very
short duration. It consisted, rather, of a manifestation
of poor
judgment on the spur of the moment than of recklessness or
foolhardiness on the plaintiffs part.
[35]
In conclusion I make a finding that the wrongful and negligent
omission on the part of the defendant in failing to erect any
warning
sign of the danger posed by diving into the dam, alternatively to
erect railings at the water's edge adjacent to the volleyball
court
to prevent one from doing so, was directly causally related to the
plaintiffs injury.
[36]
I accordingly grant the following order:
(a)
The defendant is ordered to pay 50% of the plaintiffs damages, to be
proved or agreed, arising out of his having been injured
by diving
into the dam on 24 August 2007.
(b)
The defendant is ordered to pay the plaintiffs costs of the trial on
the merits, such costs to include the costs of two counsel.
E
M MAKGOBA
JUDGE
OF THE NORTH GAUTENG HIGH
COURT
58525-2008
HEARD
ON: 8, 9 & 10 JUNE 2010
FOR
THE PLAINTIFF: ADV T W G BESTER & ADV J A DU PLESSIS
INSTRUCTED
BY: LUBBE INC
FOR
THE DEFENDANT: ADV J C PIETERSE
INSTRUCTED
BY: CLIFFE DEKKER HOFMEYER INC
c/o
GELDENHUYS LESSING MALATJI INC