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2024
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[2024] ZAFSHC 34
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Pieterse v FLM SA (Pty) Ltd and Others (994/2019) [2024] ZAFSHC 34 (5 February 2024)
FLYNOTES:
PERSONAL INJURY – Slip and trip –
Uneven
walkway
–
Alleging
uneven and unsafe paving on sidewalk – Sustained injuries –
Negligence and legal duty of care –
Falling due to raised
paving stone does not equate to finding of danger or being unsafe
– Disclaimer notice present
– Condition of paving fair
and reasonable – Implemented system in dealing with repairs
and maintenance –
Failed to show existence of dangerous
situation – Plaintiff was negligent on her own version.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Number:994/2019
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
ELORÉZE
PIETERSE
Plaintiff
and
FLM
SA (PTY) LTD
First
Defendant
JOSEPH
REYNOLDS CHEMALY N.O.
Second
Defendant
MICHAEL
NICOLAS GEORGIOU N.O.
Third
Defendant
ADRIANA
GEORGIOU N.O.
Fourth
defendant
CORAM:
VAN RHYN J
HEARD
ON:
15 AUGUST 2023, 16 AUGUST 2023
and arguments on
20 NOVEMBER 2023
DELIVERED:
5 FEBRUARY 2024
[1]
On 30 April 2018 Mrs Eloréze Pieterse, the plaintiff, attended
at Food Lover’s
Market (“FLM”) situated at Showgate
Centre, Curie Avenue, Bloemfontein when she fell on the sidewalk or
passageway
leading to the entrance of FLM. She sustained bodily
injuries and suffered damages as a result of the incident. She
instituted
action on 4 March 2019 against FLM as the only defendant.
Subsequent to the filing of FLM’s plea, the plaintiff amended
her
particulars of claim to include, cited as the second, third and
fourth defendants, the trustees of the Michael Family Trust
(registration
Number TMP 2502) (the “Trust”).
[2]
In her amended particulars of claim the plaintiff pleaded that FLM
conducted and operated
a business at and from the premises occupied
by it and known as shop 21 and 21a in the building known as the
Showgate Centre. It
is furthermore pleaded that the Trust is, and in
particular on 30 April 2018, the lessor/landlord/owner of the
premises occupied
by FLM. The plaintiff alleges that she fell
as a result of uneven and unsafe paving on the sidewalk or passageway
directly
in front of- and leading to- and providing access to the
business premises of FLM.
[3]
The plaintiff alleges that FLM and the Trust had:
3.1 a legal duty to
ensure that the exterior sidewalks, walkways, passageways and
entranceways and entrances leading to and providing
access to the
business and the premises were properly maintained and were in a safe
condition;
3.2 a legal duty to warn
and caution members of the public in general, including clients,
patrons and invitees of any dangerous
situation which might exist in
respect of the exterior of the premises including the sidewalks,
walkways, passageways and entranceways
and entrances leading to and
providing access to the business and its premises, which situation
might pose a risk or cause damages
to members of the public in
general, including clients, patrons and invitees; and
3.3 ought reasonably to
have foreseen that if the exterior in the immediate vicinity of the
premises, including the sidewalks, walkways,
passageways and
entranceways and entrances leading to and providing access to the
business premises were in a poor condition and
not properly
maintained, members of the public in general, including clients,
patrons and invitees, might suffer damages as a result
of bodily
injuries or otherwise.
[4]
The plaintiff pleaded that the incident was caused due to the
negligence of either or both FLM
and/or the Trust in that it/they
inter alia
failed to:
4.1 ensure that the
sidewalks, walkways, passageways and entranceways and entrances
leading to and providing access to the business
and the premises, in
particular in the direct vicinity of the main public entrance, were
in a safe condition for use by members
of the public intending to
enter the business premises;
4.2 repair or cause to be
repaired uneven paving on the sidewalks, walkways, passageways and
entranceways and entrances leading
to and providing access to the
business and the premises, in particular directly in front of and
providing access to the premises;
4.3 exercise the
necessary care in regularly inspecting the sidewalks, walkways,
passageways and entranceways and entrances leading
to and providing
access to the business and the premises, in particular in the direct
vicinity of the main public entrance, in
order to ensure that they
were safe for use by members of the public in general, including
clients, patrons and invitees;
4.4 warn and caution the
members of the public in general, including clients, patrons and
invitees of the potential risks of utilizing
and/or walking on the
uneven and/or unsafe paving on the sidewalks, walkways, passageways
and entranceways and entrances leading
to and providing access to the
business and the premises, in particular in the direct vicinity of
the main public entrance; and
4.5 act with the due
diligence regarding the safety of all persons entering the premises;
4.6 being aware of or in
the circumstances ought to have been aware of the unsafe and uneven
paving on the sidewalks, walkways,
passageways and entranceways and
entrances leading to and providing access to the business and the
premises, in particular in the
direct vicinity of the main public
entrance, they failed to take steps to rectify same or to warn and
caution members of the public
of the potential dangers and risks
attached to using or walking on such uneven paving when
approaching or entering the main
public entrance to the business
premises.
[5]
As a result of the incident the plaintiff suffered various bruises
and abrasions on her knees
and palms, acute thoracic outlet syndrome
with a vascular compression, injuries to her ribs and back. She
claims an amount of R433 509.36
in respect of past medical
expenses, future medical expenses and general damages.
[6]
FLM’s defence is essentially that it only has a duty to ensure
that the interior of the
premises occupied by it are reasonably safe
for members of the public. In terms of the lease agreement with the
Trust, it as the
lessor, is responsible and has the exclusive control
of the “common areas which includes the foyers, malls, arcades,
passages,
parking areas, entrances, exits, loading docks, landscape
areas, interior and exterior stairways, toilets, ramps and all other
amenities provided by the lessor.”
[7]
FLM specifically pleaded that the area where the incident occurred is
outside FLM’s premises
and it had no legal duty in respect of
and was not in control of the area where the alleged incident
occurred in terms of the lease
agreement with the Trust. In the
event of it being found that the incident occurred within the area of
FLM’s control
and/or responsibility, then and in that event FLM
pleads that it took all reasonable and necessary steps to ensure that
its premises
was reasonably safe for members of the public in that
FLM performed regular inspections of the property to locate any
hazards and
that the alleged incident was not reasonably foreseeable.
[8]
FLM expressly denied that the incident occurred. Further, in
the event of it being found
that the incident occurred in an area
under FLM’s control or responsibility and that the incident was
reasonably foreseeable,
such negligent conduct was not causally
related to the alleged incident. In the further alternative and
in the event of a
finding that the incident did occur in an
area under FLM’s control and that the incident was reasonably
foreseeable, the
sole cause of the plaintiffs alleged fall and
injuries was due to the negligence of the plaintiff who was negligent
in that she,
inter alia
, failed to walk with due care, walked
in an area where she ought to have known that she needs to step
carefully and failed to do
so, wore inappropriate shoes taking into
consideration her age and mobility, failed to keep a proper lookout
and walked hurriedly.
[9]
The Trust admitted that the plaintiff visited the premises as averred
and that an incident occurred
involving her. The Trust denies that it
had a legal duty on the basis pleaded by the plaintiff or that the
incident occurred as
a result of the negligence of the Trust.
[10]
The Trust furthermore relies on a “disclaimer notice”
which was prominent at the entrances to
the premises and/or the
exterior of the building which were visible to the public at all
relevant times and by entering the premises
and approaching the
property or building, the plaintiff expressly and/or tacitly accepted
the disclaimer and is bound thereby with
the result that the Trust is
exempted from any claim of whatsoever nature in respect of loss,
damage, expense, injury or death
howsoever caused. The premises
referred to in the disclaimer notice includes the exterior sidewalks,
walkways, passageways and
entrance ways leading to and providing
access to the property or building.
[11]
In the event that it is found that the Trust had a legal duty and
were indeed negligent, the Trust pleads
that such negligence did not
contribute to the incident occurring and/or that the incident was not
reasonably foreseeable. In the
event of it being found that there was
a legal duty of care which rested on the Trust and that it was
negligent and such negligence
contributed to the incident and that
the incident was reasonably foreseeable, the Trust pleads that it
took all reasonable and
necessary steps to ensure that the premises,
including the exterior sidewalks, walkways, passageways and entrances
leading to and
providing access to the property or building was
reasonably safe for members of the public and the plaintiff by,
inter
alia
, performing regular inspections of the property to locate
potential hazards.
[12]
If it was found that the Trust had a legal duty of care,
that it was negligent, that the incident was foreseeable
and that the
negligence was the cause of the Plaintiff’s damages, then it is
alleged that the plaintiff was also negligent
and that her negligence
was a contributing factor to the causing of the incident, in that she
failed to keep a proper lookout,
she failed to take reasonable steps
to avoid the occurrence and she failed to act with due care and that
her claim should be apportioned
as per the Apportionment of Damages
Act
[1]
.
[13]
The parties agreed to separate the issue of the liability from the
quantum in the result that the trial continued
only in respect of the
liability issue. The plaintiff testified that she is a house wife and
55 years of age. It is therefore safe
to assume that she must have
been 50 at the time of the incident on 30 April 2018. At
approximately 09h30 she and her
husband arrived at the
Showgate Centre. A series of 8 photographs depicting the exit and
entrance to FLM, the parking area and
shoes similar to the ones worn
by the plaintiff on the day in question, were tendered during
evidence and were referred to by the
witnesses during the trial.
These photographs are contained in plaintiff’s photo bundle,
Exhibit “B”.
[14]
The plaintiff’s husband parked their vehicle in one of the
allocated parking bays, indicated with a
red cross on photo 15. Her
husband remained in the parked vehicle and the plaintiff walked from
the vehicle to the entrance of
FLM. She was not in a hurry at the
time. She had previously visited this particular branch of FLM but is
not a regular customer
in the sense that she normally goes to the FLM
branch situated at Langenhoven Park which is closer to their place of
residence.
[15]
The parking area is paved with grey coloured paving stones/bricks.
The plaintiff walked in a diagonal direction
from the motor vehicle,
passing the exit of FLM, to the entrance of FLM as indicated with a
red line on photograph 15. She stepped
up a curb stone, visible on
photo 2, onto a paved walkway towards the entrance of FLM. The
walkway in front of the wall of the
building leads from the entrance
of FLM, situated on the left side of the building, to the right side
of the building, where the
exit from FLM is situated.
[16]
The curb stone separates the parking area from the walkway towards
the main entrance. The walkway is paved
with the same paving stones
as the parking area. The curb stone is painted yellow as is
visible on Photo 2. There is
no curb stone in front of the
entrance to FLM. A low concrete ramp, obviously to provide easy
access for disabled persons and trolleys,
leads to the entrance of
FLM.
[17]
After she stepped up the curb stone onto the walkway, the plaintiff
turned to her left and proceeded 3 to
4 steps towards the entrance of
FLM when she stumbled as a result of her foot getting stuck and she
fell forward. A circle on Photo
2 and marked “X2”
indicates the area, more or less, where she fell. The plaintiff
testified that she was wearing flat,
rubber soled shoes at the time
of the incident. The security guard who was standing next to the
entrance of FLM came to assist
her and helped her to her feet.
[18]
At that stage she had no idea what had caused her to fall but she
assumed that the front of her shoe had
caught or hooked onto
something. The plaintiff testified that she has no problems
with her eyesight or her balance. She
is not overweight. She
often walks on uneven terrain on the farm and on hikes and has never
fallen before.
[19]
The plaintiff then entered the premises of FLM and reported the
incident to an employee, Nicky Swanepoel
(“Swanepoel”) at
the cash registers. The plaintiff was assisted and accompanied by
Swanepoel to her husband who was
still waiting in the vehicle. After
exiting the building and on their way to the vehicle, the plaintiff
pointed to Swanepoel the
general area where she had fallen. The
plaintiff testified that she experienced pain and discomfort as a
result of the incident.
She sustained injuries to her ribs, knees,
left shoulder and her back.
[20]
When the plaintiff was referred to photo 3 by Mr Louw, counsel on her
behalf, she testified that it was difficult
to identify the precise
place where she had fallen but indicated that it was on the other
side of the person appearing on the photo
wearing long black pants.
Photo 3 is taken from inside of FLM towards the entrance door with a
view of the walkway leading to the
entrance. She explained that
she did not provide photo 3 to her attorney and was unable to say who
took the photograph.
[21]
On the day of the incident, at around 18h00, she and her husband
returned to the premises because she wanted
to ascertain where
exactly she had fallen and what had caused her to fall. She noticed a
paving stone that was raised at one of
its four corners. She
photographed the raised paving stone, photo 13. She marked the
specific paving block “X3”
on photo 13 and testified that
it is the same spot marked “X2” on photo 2, being the
spot where she fell. According
to the plaintiff, she assumed that if
a dangerous situation or risk existed, FLM would have placed
something like a trolley or
a cone at the spot to warn the public
about the danger.
[22]
She testified that looking at the paving afterwards, it is quite
clear that the paving is uneven. Mr Louw,
questioned the plaintiff
whether she noticed or observed anything that might cause a risk or
danger on the day of the incident.
The plaintiff responded by
explaining that because she was approaching the entrance of FLM, she
was not looking towards the ground.
She was focusing on entering the
building and was looking ahead while walking and therefore she did
not notice anything of the
sort. During the trial the plaintiff
testified in Afrikaans. I find it apposite to quote her evidence
verbatim. (“My fokus
was om by die winkel te kom. Ek het nie my
oë op die vloer gehou om te kyk waar is iets fout nie. Ek stap
doelgerig om in
te gaan”). The plaintiff testified that when
she returned to the scene at 18h00 on the day of the incident, and as
can be
seen from photo 13, the paving is clearly uneven.
[23]
The plaintiff testified that she did not notice any disclaimer
notices at the time of the incident. She noticed
a disclaimer notice
afterwards which notice is posted near the exit door at the premises
of FLM. According to her it does not make
any sense to place a
disclaimer notice near the exit door. It should have been posted at
the entrance to the building. The plaintiff
returned to FLM on 2 or 3
May 2018 and discussed the incident with Mr Andrew Whitehouse, the
manager at FLM. She wanted to ascertain
whether she can consult a
medical practitioner because she has no medical insurance/aid. Mr
Whitehouse told her to consult with
a doctor because she cannot live
in pain. (“Mevrou u moet dokter toe gaan. U kan nie so in pyn
lewe nie”).
[24]
Mr Whitehouse gave her a document titled “Internal
Accident/Incident Investigation Report”, referred
to as the
“Incident Report” to complete and return to him.
She completed the Incident Report, dated 3 May 2018
and submitted
same to the management staff at FLM. The time of the incident was
recorded as 09h34 on 30 April 2018. The plaintiff
noted that she fell
in front of the shop as a result of lifted paving stones. (“Het
by Fruit & Veg voor winkel geval
a g v pavingstene wat opgelig
is”).
[25]
During cross examination by Mr De Beer, counsel on behalf of FLM, the
plaintiff conceded that she only realized
why she had fallen when
she, on the same day of the incident, returned to the area at around
16h00. She cannot recall whether any
items were displayed for
specials against the wall of FLM at the time of the incident as
depicted on photo 2. She did not fall
at the entrance to FLM or right
in front of the entrance. Immediately after she had fallen, she did
not endeavour to ascertain
the reason for her falling because of pain
and discomfort. She also did not show the specific area to Swanepoel
when they exited
the building on the way to the vehicle.
[26]
The plaintiff did not take any measurements at the
location where the incident occurred. Mr De Beer questioned
the
plaintiff regarding the entries made on the Incident Report, in
particular question 16: “What are the basic causes for
this
incident?” and the plaintiff’s response that the
paving stones were uneven right in front of the entrance.
(“Die
pavingstene was ongelyk, reg voor die ingang”).
[27]
The Plaintiff, in an effort to explain where exactly she fell and
with reference to photo 2, testified that
to the left of the curb
stone, the curb stone levels out as a result of a low ramp that leads
to the entrance of FLM. Shortly after
she had stepped up the curb
stone to the level of the walkway and had turned to her left on the
way to the entrance, she realised
that she acted rather “stupidly”
by not walking a little further to the left and up the ramp. It would
then not have
been necessary to step up the curb stone. Only a few
steps after she realised that she had failed to notice the ramp
leading to
the entrance, she stumbled and fell.
[28]
When she and her husband returned to the scene she saw the lifted
paving stone. She knew that the specific
paving stone, depicted as
“X3” on photo 13 was the “culprit” that
caused her to fall. She then took two
or three photographs of which
photo 3 clearly shows the raised paving stone. She would have shown
the specific photograph to her
attorney when she explained to him
what had happened.
[29]
The plaintiff testified that she was not the photographer and did not
provide photographs 1- 4 and 14-15,
contained in exhibit “B”,
to her attorney. She confirmed that the area depicted in photo 3 and
photo 4 is not the area
where she fell. She could not provide an
explanation for the purpose of a small cross visible on photo 3, the
small cross being
just behind the person wearing black trousers.
[30]
The plaintiff was unable to explain why, in relation to a question by
FLM in its preparation for the trial
whether the plaintiff admits
that the area where the purported uneven and unsafe paving was
located was on a passage on the property,
the response was as
follows: “Plaintiff admits that the uneven and unsafe paving
was located at the entrance to the property
leased by the First
Defendant. A photo of the area where the incident took place is
appended hereto marked Photo 3”.
Appended to the answer
filed in response to the question by FLM, is photo 3 which, according
to the testimony of the plaintiff
does not indicate the location
where she fell.
[31]
The plaintiff was unable to give any measurement of the height at
which the paving stone was raised above
the other paving stones.
According to her it was clearly visible because “…dit
het baie duidelik uitgestaan. ‘n
Mens kon dit op ‘n
afstand sien toe ons daar aankom toe sien ek die spesifieke
steentjie”. In response to an allegation
that the landlord
regularly maintains the paving, she stated that there were various
places where pieces of paving were missing
or the paving stones were
uneven. It was put to her on behalf of FLM that a witness, Christene
van Deventer, will testify that
in the period between 19 March 2018
to 23 March 2018 she inspected the area between the exit and the
entrance to FLM and she did
not notice any unsafe area and no other
incidents were reported pertaining to the exterior or the paving. The
plaintiff responded
that the area is really in a “bad shape”.
[32]
During cross examination by Mr van der Merwe, counsel on behalf of
the Trust, the plaintiff explained that
she did not mark the item
“failure to warn” on the Incident Form because she did
not peruse the form thoroughly because
her knowledge of the English
language is not that good. She did however mark the section
indicating that “inadequate guards/barriers”
were erected
at the scene where the incident occurred. Regarding the disclaimer
notice on photo 14, she confirmed that she stepped
up to walkway at
the place where the disclaimer notice is affixed to the wall.
She conceded that the disclaimer notice was
noticeable and visible,
clear and legible. She was aware of what the purpose of an indemnity
or disclaimer notice was.
[33]
Even though she wrote on the Incident Report that the paving was
uneven right in front of the entrance the
reference to “reg
voor” was intended to describe the area between the entrance
and the exit of the building. She denies
that she was contributory
negligent or negligent on the day in question. In re-examination she
explained that she did not see the
disclaimer notice. Her attention
was not captured by the disclaimer notice, her attention and focus
were captured by the presence
of the security guard at the entrance
to the building. According to the plaintiff, the averment that she
was negligent by not walking
with due care or failed to keep a proper
lookout is nonsense (“Dit is sommer nonsense”). This
concluded the evidence
proffered by the plaintiff.
[34]
FLM presented the testimony of Christina van Deventer (Van
Deventer”), Divisional Project Manager of
FLM. She testified
that she visits branches of FLM with the purpose of conducting
“safety checks”. She performed
these tests
regularly at both of FLM’s premises in Bloemfontein. She
visited the particular branch of FLM at the Showgate
Centre on
average once a month and completed a safety check approximately a
month before the incident. During her inspection she
walks around the
store, inspect the loading area and the interior of the shop to
ascertain whether everything is in order and to
ascertain whether any
hazardous or dangerous objects or situations exist.
[35]
She was unable to recognize what is depicted on photo13 and has never
seen the raised paving or uneven paving.
Subsequent to the incident
involving the plaintiff she visited the particular branch of FLM
again during June 2018 and again did
not notice any unsafe or
hazardous situation. The outside of the shop (FLM) is the
responsibility of the landlord and audits are
only done in respect of
the inside of the shop in accordance with clause 10 of the lease
agreement with the Trust. She was assigned
to the Showgate Centre
branch during 2016 and is not aware of any other similar incidents,
except for one incident which occurred
on the inside of the premises.
[36]
During cross examination by plaintiff’s counsel Van Deventer
explained that the term “common
areas” means the “public
area”. However, FLM also conducts business on the common area
as depicted on photo 2.
Some of FLM’s merchandise consisting of
wooden pallets with bags of oranges, other goods and bags containing
charcoal are
displayed against the wall, on the walkway leading to
the entrance on photo 2.
[37]
FLM is required to compile an Incident Report as part of the records
which it keeps regarding its safety
regulations. A safety and
health representative of FLM, referred to as the SHE-representative,
must complete an Incident
Report and FLM keeps a register regarding
incidents or accidents. When Van Deventer visited FLM during June
2018 she learned about
the incident involving the plaintiff. The
witness, with reference to a form with the heading “Public
Liability Accident Report
Form” (the “Public Liability
Report”) explained that the manager completed the form and
signed the form on 7
May 2018. The date and time “of loss”
is noted as 30 April 2018 at “Food Lovers Showgate”. How
exactly
the incident occurred is recorded as follows: “Paving
moved due to heavy vehicle. Customer tripped on raised paving. Please
see attached photo.” The photograph appended to the form
depicts the entrance to FLM’s premises. Again this photograph
does not depict the area where the plaintiff fell. The Public
Liability Form is submitted for insurance purposes.
[38]
During cross-examination by Mr van der Merwe, Van
Deventer explained that a palette jack is used to convey
products
which are too heavy to carry. However, a pallet jack is not a
“vehicle”. Her testimony in this regard
refers to
the indication on the Public Liability Form that the paving was moved
due to a heavy vehicle. No further evidence pertaining
to the
possible use of a pallet jack or a heavy vehicle which could have
caused the paving to move was presented during the trial.
This
concluded the evidence in respect of FLM.
[39]
Mr Harold Verster (“Verster”), a witness called on behalf
of the Trust, testified that he was
appointed to oversee the property
portfolio of the Trust and he oversees approximately 42 buildings
which are used for warehousing
and commercial purposes. At the
time of the incident during April 2018, he was employed by the Trust
as a maintenance officer.
Due to the number of properties in
the property portfolio of the Trust it is not possible to do
maintenance checks on a daily,
weekly or even a monthly basis and
therefore the tenants are obliged to report any issues of concern
through a call centre. During
April 2018 inspections were performed
at the Showgate Centre every 3 months.
[40]
In the event of a report regarding a maintenance issue, a job card is
completed and the issue is attended
to at the soonest opportunity.
The property manager does a check-up every three months.
Verster testified that the Trust
did not receive a report regarding
the incident involving the plaintiff during 2018 and no repairs to
the paving stones were done
as a result of the incident. The Showgate
Centre extends over nearly 20 000 square metres and it is not
possible to check
all the paving stones every day. The
disclaimer notice, on the wall next to the exit door of FLM,
represents one of several
disclaimer notices which are put up
throughout the Showgate Centre and relate to the general areas and
not the interior of the
FLM premises. The purpose of these notices is
to inform patrons and visitors to the Showgate Centre to be careful
where they go
in relation to the general areas.
[41]
During cross examination by Mr Louw, Verster testified that according
to him, the condition of the paving
depicted in photo 4 is fair and
the condition of the paving depicted in photo 13 is acceptable and
does not pose a dangerous or
a hazardous situation. If the
paving was damaged by a pallet jack, the Trust would have seen to the
repairs to the general
area, but if the damage was caused by one of
FLM’s own vehicles, FLM would have had to effect the repairs.
It remains the
responsibility of the tenant being in this case, FLM,
to report any maintenance issue to the Trust.
THE
APPLICABLE LEGAL PRINCIPLES AND THE ARGUMENTS ON BEHALF OF THE
PARTIES.
[42]
The plaintiff’s claim for damages is based on the
actio
legis aquiliae
and in order to succeed on the issue of liability,
she must prove the following:
42.1
the commission or omission of an act (
actus
reus
) by the defendant(s);
42.2
which is unlawful or wrongful (wrongfulness). Wrongfulness can
manifest itself in different breaches of which
breach of a duty of
care is but one.
42.3
negligence;
42.4 which
results in or causes the harm (causation); and
42.5 the
suffering of injury, loss or damage.
[43]
An act which causes harm to another is in itself insufficient to give
rise to delictual liability. For liability
to follow, prejudice must
be caused in a wrongful (legally reprehensible or unreasonable)
manner. To determine wrongfulness a dual
investigation is to be
followed: firstly, to determine whether a legally recognised
individual interest has been infringed and
caused a harmful result
and secondly, if so, legal norms must be used to determine whether
such prejudice occurred in a legally
reprehensible or unreasonable
manner.
[44]
The general norm or criterion to be employed in determining whether a
particular infringement of interests
is unlawful, is the legal
convictions of the community: the
boni
mores.
[2]
The
boni
mores
test
is an objective test based on the criterion of reasonableness.
Boni
mores
concerns
the legal convictions of the community which serve as a yardstick to
establish whether or not the community regards a particular
act to be
delictually wrongful (the “reasonableness criterion”
[3]
).
[45]
In cases concerning liability for an omission, wrongfulness is
normally determined by asking whether the
defendant had a legal duty
to prevent the loss because, according to the
boni mores
criterion, there is neither a general duty to prevent loss to others
by positive conduct, nor a general duty to prevent pure economic
loss. The reason being the imposition of such duties would probably
place too heavy a burden on individuals in the community.
[46]
The plaintiff relies upon FLM’s and the Trust’s alleged
failure to take various steps,
inter
alia
,
their failure to ensure that the sidewalks, passageways and
entranceways leading to and providing access to FLM, in particular
in
the direct vicinity of the entrance, were in a safe condition for
public use. In
Regal
v African Superslate (Pty) Ltd
[4]
the Appellate Division held that control over the maintenance of a
building is an important consideration in establishing whether
a
defendant’s omission amounts to unlawful conduct. Firstly, the
court must decide whether the omission was unlawful and
if so,
whether it was also negligent.
[47]
The test for negligence remains that enunciated in
Kruger
v Coetzee
,
[5]
where the erstwhile
Appellate Division stated:
“
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.”
[6]
[48]
The plaintiff contends that both defendants, FLM as business owner
and in control of the premises or area
where it conducted business,
as well as the Trust (on the basis of being in control of the
premises) have a common law duty of
care towards patrons and the
general public present and commuting on the premises known as
Showgate Centre. With reference to
Both
v Post Office Café Bazaar CC
[7]
Mr Louw contends that an obstruction of some sort must have caused
the plaintiff to stumble and fall.
[49]
Mr Louw argued that the plaintiff testified that she had never seen
the disclaimer notice either on the day
of the incident or prior to
it. The Trust did not ensure that the contents of the disclaimer
notice will come to the attention
of patrons and the general public
who attends at the Showgate Centre. The inescapable conclusion is
that FLM and the Trust are
liable for the plaintiff’s damages.
[50]
Mr de Beer argued that FLM is not responsible for the
maintenance of the outside area, retains no remedy should
it suffer
any damages resulting from a lack of maintenance or repair to the
outside area and does not exercise control over the
outside area.
Therefore, the imposition of liability in these particular
circumstances would be unreasonable, it would be limitless
and would
exist in abstract. Regarding the plaintiff’s testimony as to
where exactly she fell, FLM contends that the plaintiff
has not
proven the cause or location of her fall and therefore there cannot
be a question of negligence. The plaintiff failed
to keep a
proper lookout and was negligent in respect of her fall.
[51]
Mr van der Merwe argued that it is common cause that FLM conducted
its business on the outside of the premises
in front of the entrance.
It seems as if FLM traversed the area with a pallet jack which FLM
was not authorised to do. FLM acted
outside the scope of the lease
agreement by exercising physical control of the area where the
incident occurred and therefore cannot
rely on the clause in the
lease agreement which places an obligation on the Trust to maintain
the areas which are not occupied
by FLM as a self-standing ground to
avoid liability
vis à vis
the plaintiff.
[52]
However, the Trust contends that the plaintiff has failed to
discharge the onus of proving what the cause
of the incident was and
where the incident occurred. In any event, the plaintiff was aware of
what the purpose of an indemnity
notice is. She had previously
noticed such notices at similar establishments. The plaintiff
conceded that she had seen the disclaimer
notice before the incident
occurred and that the disclaimer notice is noticeable, clear, legible
and visible. The Trust moves that
the plaintiff’s claim against
the 2
nd
, 3
rd
and 4
th
defendants be
dismissed with costs.
EVALUATION OF THE
EVIDENCE AND CONCLUSION.
[53]
A negligent omission giving rise to damages is unlawful only if
it occurs in circumstances that the
law regards as sufficient to give
rise to a legal duty to avoid negligently causing harm.
[8]
The narrow question is whether the legal convictions of the community
require FLM and/or the Trust to properly maintain the paving
on the
walkways/passageways to prevent its/their patrons or visitors to the
Showgate Centre an incident experienced by the plaintiff.
If so, then
the failure to do so constitute wrongful conduct on the part of
either FLM or the Trust or both.
[54]
The basis for FLM’s occupation of the premises and its presence
at the Showgate Centre is the lease
agreement. The Mangaung
Metropolitan Municipality is the owner of the land and the Trust
leases the Showgate Centre. Members
of the public utilise the
parking area and walkways at the Showgate Centre to visit a multitude
of shops, and commercial businesses
situated at this particular
shopping centre. Evident from the agreement is the fact that FLM
occupied and conducted its business
from the interior of shop 21 and
21a (“the leased premises”). Therefore, FLM was
responsible for the maintenance of
the interior of the leased
premises and would, in terms of the agreement and at its own expense,
repair and maintain the leased
premises.
[55]
In terms of clause 10(A)(a) of the lease agreement the Trust would
keep and maintain only the exterior structure,
roof, gutters, and
down pipes of the building and any lifts, passages or other common
services in the building in good order and
condition. In terms of the
agreement FLM has no claim against the Trust for any loss or damage
which it may suffer by reason of
the property, being the land and the
building, or any part thereof being in a defective condition or any
particular repair or maintenance
not being effected by the Trust.
FLM’s argument is thus that the alleged incident occurred
outside the leased premises, in
a common area, over which the Trust
has control over and is responsible for the maintenance thereof.
[56]
The question is whether the fact that FLM used a section of the
walkway, against the wall on the outside
of the leased premises/shop
being part of the common area, for displaying merchandise and
advertising its products, leads to a
conclusion that FLM took control
of and occupied the area and that the lease agreement as a result
thereof, does not come to the
aid of FLM at all as the agreement is
res inter alios acta.
To impose liability upon FLM to maintain
the passageway leading to the entrance or the exit or even a certain
area of the parking
area as a result of merchandise being displayed
in this area, would, to my mind, be unreasonable having regard to the
facts of
the matter.
[57]
The imposition of liability would have been different when, for
example, the plaintiff ripped over
a bag of potatoes on the
passageway to the entrance which one of the employees of FLM dropped
and failed to remove. Or one of the
many display boards advertising
FLM’s products fell on a customer due to the fact that it was
not securely fastened by FLM.
[58]
The evidence does not support an inference that FLM or its employees
caused damage to the paving at the outside
of the leased premises.
Reference to a heavy vehicle was made in the Public Liability Form
which had to be submitted in terms of
an insurance policy. I
agree with the argument on behalf of FLM that the use of the area
against the wall of the premises
and the walkway next to the wall
leading to the entrance of FLM to advertise its merchandise and to
display certain products did
not attract control and responsibility
pertaining to the maintenance of the paving stones. The plaintiff
solely relies upon the
allegation that the issue of wrongfulness
arises from the fact that FLM was a tenant and operated its business
from the premises.
I am of the view that control and
responsibility in respect of the outside of the leased premises,
specifically pertaining to the
responsibility and maintenance of the
walkway leading to the entrance of FLM, remained with the Trust.
[59]
The plaintiff testified that she returned to the Showgate Centre at
18h00 on the day of the incident to ascertain
what had caused her to
fall earlier that morning and to take photographs. She did not
explain why she considered it necessary to
take photographs. When she
returned to the area she immediately saw the lifted paving stone
depicted on photo 13. The single lifted
paving stone was immediately
visible and “stuck out like a sore thumb”. The incident
occurred on 30 April 2018 with
the result that at the time when the
plaintiff returned to the Showgate Centre at 18h00 it must have been
close to sunset.
[60]
To my mind doubt and uncertainty exists as to the precise location
where the plaintiff fell. If the lifted
paving stone was in fact the
“culprit” as identified by the plaintiff at around dawn
on the day of the incident, why
did she indicate in her reply to a
request for admissions dated 11 April 2022, that the incident
occurred at the entrance to the
property with reference to photo 3.
On photo 3 the entrance to FLM is depicted. This was not where she
fell according to her testimony.
She furthermore indicated in
the Incident Report that the reason for the incident was that the
paving stones (“pavingstene”)
were uneven right in front
of the entrance. Her answer is capable of only one reasonable
interpretation, namely more than one paving
stone were uneven right
in front of the entrance and had caused her to fall.
[61]
The confusion regarding the reason for her stumbling and
falling is exacerbated by the information contained in
the Public
Liability Report contained in the plaintiff’s trial bundle.
Even though the form was not completed or signed by
the plaintiff,
the information had to be provided by her, or the security guard who
stood at the entrance at the relevant time
or Swanepoel, who did not
witness the incident. In this document it was recorded that the
“Paving moved due to heavy vehicle.
Customer tripped on raised
paving. Please see attached Photo”. Van Deventer testified that
the photograph appended to this
form depicts the immediate entrance
of the leased premises, being the area similar to photo 3,
contradictory to the area where
the plaintiff fell according to her
testimony in court.
[62]
Mr Louw, with reliance on
Both
v Post Office Café Bazaar
argued
that the evidence clearly indicates that the plaintiff tripped and
fell forward which could only mean that there must have
been some
obstruction which caused her to fall. She did not slip and fall
backwards. In
Both
v Post Office Café Bazaar
the
plaintiff claimed damages as a result of her having tripped, stumbled
and fallen at a Spar Supermarket at Brakpan. The following
day she
returned to the supermarket with a witness to ascertain the reason
for the incident. The plaintiff requested the witness
to slide her
feet across the floor where she had fallen to detect if there was any
obstruction. The witness then pointed “…a
tile that
protruded in a corner, some half a centimetre to a centimetre above
the rest of the tiles that were on the floor.
This, the
plaintiff seems to suggest, was the obstruction that
caused her to trip and fall. Some considerable
time later, she
returned to the store with her attorneys but it seemed
that the protruding tile had been “made
good”.
[9]
[63]
The facts in the Both matter is distinguishable form the matter at
hand in the following respects:
63.1
The evidence in
Both
was that the tile was
protruding some half a centimetre to a centimetre above the rest of
the tiles.
[10]
In the matter
at hand there is no evidence pertaining to the degree or height of
the raised paving stone(s);
63.2
The incident in the
Both
matter was recorded on
closed circuit television which subsequently “disappeared”
[11]
;
63.3
The plaintiff in the
Both
matter called a witness who
confirmed, in every material respect, the evidence of the plaintiff
relating to the discovery of the
protruding tile in the corner.
In
casu,
the plaintiff did not present the testimony of her husband,
who accompanied her on the same day of the incident, to testify
regarding
the discovery of the raised paving stone when they visited
the scene at 18h00. Taking the plaintiff’s evidence and her
injuries
into consideration, the plaintiff’s husband would in
all probabilities have joined her in her endeavour to ascertain what
had caused her to fall;
63.4
The “partner” at the Spar in the
Both
matter denied that there
was any protruding tile and denied that any protrusion had been fixed
after the incident.
[12]
63.5
The court was not impressed with the inability of the “partner”
who testified on behalf
of Spar, to describe how the plaintiff had
tripped even after he had watched the video of the incident several
times. Furthermore,
the court was surprised by the disappearance of
the video recording.
63.6
On the other hand, the plaintiff impressed the court as an honest and
careful witness;
[13]
63.7
Mr Louw correctly pointed out that the
Both
incident occurred
within a supermarket. The court held that when accidents occur within
a supermarket, any obstacle that was on
the floor over which a
customer may have tripped, is an obstacle which should not have been
there. In the matter at hand the plaintiff
fell on an exterior paved
area.
[64]
The plaintiff did not testify in detail about the
condition of the paving at the Showgate Centre regarding the
parking
area and the adjacent walkway except to say that afterwards, and with
reference to the photographs shown to her, it is
clear that the
paving stones are uneven and that the paving stone marked “x3”
is raised. She furthermore testified
that according to her the paving
was not done well (“was nie mooi gelê nie”) and
appeared to be in a bad state.
[65]
During argument and in his heads of argument Mr Louw often referred
to the paving “blocks/stones which
were lifted” –
meaning more than one paving block or stone being uneven and/or
lifted. As a matter of fact, it
was pleaded by the plaintiff
that the defendant(s) neglected to ensure that the sidewalks,
walkways, passageways and entranceways
and entrances were in a safe
condition for the public to enter the business premises and to repair
the uneven paving on the sidewalks,
walkways, passageways and
entranceways, in particular, directly in front of and providing
access to the premises.
[66]
Having regard to photo 3, it seems as if the paving stones leading up
to the entrance of FLM consists of
several uneven sections. To the
left of the entrance an obvious hollow portion is visible. Not only
the paving in the walkway,
but also the tiles on the inside of the
premises of FLM presents with dark marks which resembles possible
damage or imperfections.
These uneven areas and imperfections are
even more clearly visible on photo 4. Photo 4 is an enlargement of
the floor surface of
the area depicted on photo 3 and depicts the
paving stones directly at the outside of the entrance to FLM and the
first two rows
of tiles on the inside of FLM’s premises.
[67]
The demarcation between the outside paving area and the tiles on the
inside of the premises is not clearly
defined by a border or trim and
the edge seems uneven. The paving stones on photo 13 are not in a
pristine or immaculate condition
at all. In fact, several “lifted”
paving stones can be detected to the right of the paving stone marked
“X3”
and a broken paving stone just in front of “X3’
is also visible. It has to be kept in mind that photo 13 seems to be
an enlargement of the area. Photo 13 does not, to my mind, depict the
visibility of the raised paving when an adult approaches
the specific
area when walking in a normal upright position. This is observations
made from the photograph contained in plaintiff’s
photo bundle.
[68]
The plaintiff did not present any evidence or expert evidence
regarding:
68.1
the nature and extent of the unevenness of the paving;
68.2
the height of the unevenness in general;
68.3 or
the height of the unevenness of the lifted or raised paving stone
(“X3”) which allegedly caused
her to fall;
68.4
the reasonable standard/condition of paving similar to the area or
location pertaining to the plaintiff’s
complaint.
[69]
The evidence of the plaintiff regarding the exact location where she
fell and the cause thereof must be considered
in light of the
following facts:
69.1 The plaintiff’s
response to a request by FLM for an admission, that the area
where
the purported uneven
and unsafe paving was located was on a passage, was that the uneven
and unsafe paving was on the passage located
at the entrance of the
property as depicted on photo 3”;
69.2 The plaintiff
testified that she took photo 13 with her cell phone and would have
shown photo 13, the raised paving stone,
to her attorney when she
consulted with him;
69.3 A copy of photo 13
was not initially discovered by the plaintiff;
69.4 During
cross-examination the plaintiff confirmed that photo 3 does not
depict the area where the uneven and unsafe paving was
located. She
did not fall in close proximity of the area depicted on photo 3;
69.5 In the photo bundle
provided by the plaintiff during the trial (exhibit “B”),
and on the very same photo 3 a small
“X” was appended
unto the photograph. The plaintiff could not provide any explanation
for this inconsistency;
69.6 The plaintiff
elected not to call any witnesses or to explain this material
contradiction regarding the exact location where
she had fallen in
respect of the answer provided during preparation for trial and with
reference to photo 3.
[70]
Furthermore, FLM presented the evidence of Van Deventer, who
conducted health and safety inspections at this
particular premises
as well as at numerous other branches of FLM. Although Van Deventer
was concerned regarding the inside of the
premises, she also
traversed the outside area and more specifically the passage way
leading to the entrance, which includes the
area where the plaintiff
fell. She did not notice anything that concerned her regarding
a hazardous or dangerous situation
in respect of the paving.
[71]
Verster explained that any maintenance issues had to be reported to
the Trust. This fact is also conveyed
to the tenants in writing at
the bottom of the monthly statements. FLM did not report any
damaged or raised paving to the
Trust during 2018. No repairs were
effected to the paving at Showgate Centre after the incident.
Verster opined that the
condition of the paving as depicted on photo
3 and 4 is fair.
[72]
The mere fact that the plaintiff, on her version, fell as a result of
a raised paving stone, does not automatically
equate to a finding of
danger or that of being unsafe. In
Skejana
v Buffalo Metropolitan Municipality
[14]
the plaintiff stated that
the pavement had been uneven as apparent from the photographs
presented during the trial. The court held
that from the photographs,
the pavement where the plaintiff fell: “… seems to have
been far from perfect but not impossible
to have used while
exercising a reasonable amount of caution. There was nothing to
suggest that it was marked by large potholes
or broken paving or that
the uneven surface was difficult to discern.”
[15]
[73]
Previously there was no duty upon municipalities to repair and
maintain a street or pavement.
[16]
However in
Cape
Town Municipality v Bakkerud,
[17]
the Supreme Court of
Appeal held as follows:
“
[28] There
can be no principle of law that all municipalities have at all times
a legal duty to repair or to warn the public whenever
and whatever
potholes may occur in whatever pavements or streets may be vested in
them.
[29]
It is tempting to construct such a legal duty on the strength of a
sense of security engendered by the mere provision of a
street or
pavement by a municipality but I do not think one can generalise in
that regard. It is axiomatic that man-made streets
and pavements will
not always be in the pristine condition in which they were when first
constructed and that it would be well-nigh
impossible for even the
largest and most well-funded municipalities to keep them all in that
state at all times. A reasonable sense
of proportion is called for.
The public must be taken to realise that and to have a care for its
own safety when using the roads
and pavements.
[30]
It is not necessary, nor would it be possible, to provide a catalogue
of the circumstances in which it would be right to impose
a legal
duty to repair or to warn upon a municipality. Obvious cases would be
those in which difficult to see holes develop in
a much used street
or pavement which is frequently so crowded that the holes are upon
one before one has had sufficient opportunity
to see and to negotiate
them. Another example, admittedly extreme, would be a crevice caused
by an earth tremor and spanning a
road entirely. The variety of
conceivable situations which could arise is infinite.
[31]
Per contra
, it would, I think,
be going too far to impose a
legal duty upon all municipalities to maintain a billiard table-like
surface upon all pavements, free
of any subsidences or other
irregularities which might cause an unwary pedestrian to stumble and
possibly fall.
It will be for a plaintiff to place before the
court in any given case sufficient evidence to enable it to conclude
that a legal
duty to repair or to warn should be held to have
existed. It will also be for a plaintiff to prove that the failure to
repair or
to warn was blameworthy (attributable to culpa). It is so
that some (but not all) of the factors relevant to the first enquiry
will also be relevant to the second enquiry (if it be reached), but
that does not mean that they must be excluded from the first
enquiry.
Having to discharge the onus of proving both the existence of the
legal duty and blameworthiness in failing to fulfil
it will, I think,
go a long way to prevent the opening of the floodgates to claims of
this type of which municipalities are so
fearful.” (Underlining
added)
[74]
I am mindful of the shift in municipality liability cases and that
the doctrine of municipal immunity no
longer applies. Municipal
liability cases should be decided in accordance with the common law
principles of delictual liability
which includes an anterior finding
of wrongfulness based on the legal convictions of the community. In
the matter at hand,
the condition of paving stones on an exterior
passageway in front of a shopping centre is at stake, not the inside,
tiled passages
of a shopping mall. The paved parking area including
the paved walkway leading to the entrance of FLM consists of the same
paving
bricks. The paving had existed in the same condition, as it
was when the incident involving the plaintiff occurred, for a
considerable
time prior thereto as well as afterwards. No complaints
other than the complaint of the plaintiff had been received regarding
the
condition of the paving stone(s). The paving on the walkway where
the raised paving stone (“X3”) was photographed, had
not
been repaired as a result of the incident.
[75]
To my mind there was nothing out of the ordinary
regarding the paving stones. The condition of the paving
seems
fair and reasonable having regard to the fact that it is suitable for
an exterior surface covering. No deep crevices or gaping
holes are
visible. I agree with the plaintiff’s contention that the
paving appears to be uneven, but it is the degree of
unevenness and
the question whether it poses a dangerous or hazardous situation that
have to be adjudicated upon.
[76]
Even if I am wrong in my finding that FLM is not liable
having regard to the lease agreement and the use of the
walkway to
display their merchandise, I am not convinced that the plaintiff
placed sufficient evidence before court to enable me
to conclude that
a legal duty to repair the uneven paving stone (“X3”) or
paving area or to warn patrons or customers
that the area consist of
uneven paving can be found to have existed.
[77]
In
Prinsloo
v Barnyard Theatre and Another
[18]
the plaintiff and her
daughter attended a show at the Barnyard Theatre in the Menlyn
Shopping Centre in Pretoria. After the show
they proceeded downstairs
using the staircase. After reaching a landing the plaintiff had to
turn to her right and descend further
by way of five more steps. The
first section of the staircase had a handrail while the last five
steps did not have a similar handrail.
The plaintiff fell and
sustained injuries as a result of falling down the last set of five
stairs. The plaintiff’s claim
was that she was injured because
the defendant failed to install a handrail along the bottom steps.
The court held that the staircase,
in particular the last five steps,
can be negotiated by any healthy able–bodied person.
[78]
During the trial it became unclear whether the cause of
the plaintiff’s fall was attributed to the absence
of a
handrail, the poor lightning or the uneven steps or all of these
factors. It became evident that the plaintiff assumed or
expected a
handrail and that she fell because she reached for the non-existent
handrail and lost her balance. The court found that
it was not so
dark that one could not see the stairs and whether or not there had
been a handrail. If the plaintiff had looked
for a handrail, she
would have seen that there was none. The court held as follows:
“
People
negotiate all kinds of stairs and obstacles in everyday life without
falling. Sometimes they stumble and fall where there
are no
obstacles, even in their own homes. It cannot be expected of owners
of property to protect the public against their own
inattentiveness
or possible clumsiness.”
[79]
The ultimate enquiry is whether FLM and/or the Trust can reasonably
be expected to have acted in the circumstances
of the particular
case. It is to be expected that the paving stones outside a shopping
mall and on a walkway from the parking area
to the entrance of a shop
will not always be in perfect and pristine (or “billiard
table-like surface”) condition.
I agree with the finding by
Supreme Court of Appeal in
Cape
Town Municipality v Bakkerud,
[19]
where it was held that “a
reasonable sense of proportion is called for” and that “the
public must be taken
to realise that and to have a care for its own
safety when using the roads and pavements.”
[20]
If the plaintiff kept a proper lookout she would have noticed that
the paving is uneven.
[80]
The next question is whether it was foreseeable that a
patron or customer to the Showgate Centre would assume
that the
paving leading to the entrance of FLM would be perfectly even and
smooth, without any imperfections, and that FLM and/or
the Trust
should have foreseen the likelihood of a person falling as a result
thereof and failed to remedy the situation. Both
FLM and the Trust
had at all relevant times implemented a system in dealing with
repairs and maintenance of the infrastructure
which included the
paving and walkways. No reports apart from the complaint by the
plaintiff had been received pertaining
to the condition of the
paving. Applying the test for negligence in Kruger v Coetzee, it is
clear that the plaintiff has not shown
the existence of a dangerous
situation in respect of which FLM or the Trust could have foreseen
harm and would require to take
steps to prevent such harm.
[81]
I find it apposite to make a finding pertaining to the demeanour and
reliability of the witnesses. During
argument it became clear that Mr
Louw and Mr Van der Merwe did not agree on the issue whether the
plaintiff had seen the disclaimer
notice during her visit to FLM or
not. According to Mr Louw his client did not see the disclaimer
notice. Mr Van der Merwe argued
that she conceded during cross
examination that she had seen the disclaimer notice. To my mind the
confusion regarding this issue
is mainly due to the way in which the
plaintiff responded to the questions regarding this aspect and in
general during her testimony.
[82]
In chief the plaintiff testified that she did not see the disclaimer
notice. However, during cross examination
and when the plaintiff was
confronted by Mr van der Merwe with the fact that she stepped up onto
the walkway where the disclaimer
notice was posted against the wall
and having regard to her testimony that she looked ahead of her when
walking and not at the
ground, she must have seen the disclaimer
notice right in front of her, she responded that she must have seen
it then. (“Ek
moes dit seker raakgesien het”.)
[83]
My impression of the veracity of the plaintiff’s observations
pertaining to the condition of the paving,
the exact area where she
fell and the question whether she saw the disclaimer notice or not,
is that she is vague and unreliable.
The plaintiff’s attitude
while testifying was that she had never fallen before in her life and
she is very steady on her
feet therefore the fact that she fell when
walking to the entrance of FLM, has to be attributed to the fault of
somebody else.
She has obviously never considered the fact that her
own inattentiveness and her failure to observe where she was walking
caused
her to fall. In this regard I take cognisance of her
response to the statement that FLM and the Trust will contend that
she
failed to keep a proper lookout to which she replied that it is
simply nonsense. On her own version she did not see the ramp
and she did not notice the raised paving stone(s) during broad
daylight.
[84]
The plaintiff did not impress me as a careful and truthful witness.
The contradiction and confusion pertaining
to the place where the
plaintiff fell with reference to the averments in the particulars of
claim, the photographs of the entrance
to FLM and the reply to the
question where exactly the incident occurred, being the entrance to
FLM and the testimony in court
that by referring to right in front of
the entrance actually refers to the whole area in between the
entrance and the exit, is
a further example of the unreliableness of
the plaintiff’s evidence. I do not have any criticism against
the demeanour and
reliableness of Van Deventer’s and Verster’s
evidence.
[85]
The plaintiff has not satisfied the elements of the delictual action
in that she did not satisfy the requirement
of wrongfulness, she did
not prove the cause and location of her fall and she did not satisfy
the requirement of negligence of
either FLM, nor the Trust. The
plaintiff was negligent on her own version.
ORDER:
[64] In
the result:
1.
The plaintiff’s claim is dismissed with costs.
VAN
RHYN J
On
behalf of the Plaintiff:
ADV.
M C LOUW
Instructed
by:
HILL
McHARDY & HERBST INC.
BLOEMFONTEIN
On
behalf of the First Defendant:
ADV.
W A DE BEER
Instructed
by:
WESSELS
& SMITH INC.
BLOEMFONTEIN
On
behalf of the Second - Fourth Defendants:
ADV.
R VAN DER MERWE
Instructed
by:
PHATSHOANE
HENNEY INC.
BLOEMFONTEIN
[1]
Act 34 of 1956.
[2]
Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA).
[3]
Natal Fresh Produce Growers’ Association and Others v
Agroserve (Pty) Ltd and Others
1990 (4) SA 749
(N) at 753H-J.
[4]
1963 (1) SA 102 (A).
[5]
1966
(2) SA 428 (A).
[6]
At
430E-F.
[7]
[2009] JOL 24631 (GSJ).
[8]
Administrateur, Natal v Trust Bank van Afrika BPK 1979 (3) SA 824
(A)
[9]
At [9].
[10]
Both (supra) at [9].
[11]
Both Supra) at [10] and [12]
[12]
Both (supra) at [14]
[13]
Both (supra) at [16]
[14]
2022 JDR 3723 (ECGEL). at [29].
[15]
Skejana (
supra
)
at [29] and [30].
[16]
Moulang v Port Elizabeth Municipality
1958 (2) SA 518
(A) at 522E-H.
[17]
2000
(3) SA 1049 (SCA).
[18]
(27705/06) [2009] ZAGPPHC 105 (4 September 2009).
[19]
2000
(3) SA 1049 (SCA).
[20]
At [29].