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[2022] ZAFSHC 362
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Anwarey v Loch Logan Waterfront (Pty) Ltd (2096/2018) [2022] ZAFSHC 362 (17 February 2022)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case No.: 2096/2018
Reportable:
NO
Of
Interest to other Judges:
NO
Circulate
to Magistrates: NO
In the matter between: -
KATIJA
BEBE ANWAREY
Plaintiff/Respondent
and
LOCH
LOGAN WATERFRONT (PTY) LTD
Defendant/Applicant
CORAM:
N. M.
MBHELE, AJP
HEARD
ON:
16, 17, & 19 NOVEMEBR 2021 and 28 JANUARY 2022
DELIVERED
ON:
17
FEBRUARY 2022
[1]
The issue presently due for determination is whether the application
for absolution
from the instance moved on behalf of the defendant
herein should be granted.
[2]
It is necessary to chronicle a brief history of the facts giving rise
to the issue
for determination. On 21 August 2016 the plaintiff
whilst walking through the corridor of the Loch Logan Mall fell onto
the floor
on her right arm resulting in her suffering a fracture and
dislocation. The plaintiff claims damages against the defendant for
the injuries sustained. Before me is the merits of the dispute.
[3]
During the trial the plaintiff testified and further called her
husband as a witness.
The parties handed in a video footage depicting
activities on the corridor where the plaintiff was walking just
before she fell.
There was an inspection
in loco
conducted
just before the plaintiff was subjected to cross-examination. At the
close of the plaintiff’s case an application
for absolution
from the instance was moved on behalf of the defendant. The plaintiff
did not concede her claim.
[4]
It is apposite at this juncture to set out the relevant law
applicable in applications
of this nature. The test for absolution
from the instance is well formulated in
Claude
Neon Lights (SA) Ltd v Daniel
[1]
quoted with authority by Harms JA in
Gordon
Lloyd Page & Associates v Rivera and Another
[2]
where the following was said:
“
[2]
The test for absolution to be applied by a trial court at the end of
a plaintiff's
case was formulated in
Claude
Neon Lights (SA) Ltd v Danie
1976
(4) SA 403 (A)
at
409G - H in these terms:
'. . . (When absolution
from the instance is sought at the close of plaintiff's case, the
test to be applied is not whether the evidence
led by plaintiff
establishes what would finally be required to be established, but
whether there is evidence upon which a Court,
applying its mind
reasonably to such evidence, could or might (not should, nor ought
to) find for the plaintiff. (
Gascoyne v Paul and Hunter
1917
TPD 170
at 173;
Ruto Flour Mills (Pty) Ltd v Adelson
(2)
1958 (4) SA 307
(T).)'
This
implies that a plaintiff has to make out a
prima
facie
case
- in the sense that there is evidence relating to all the elements of
the claim - to survive absolution because without
such evidence no
court could find for the plaintiff (
Marine
& Trade Insurance Co Ltd v Van der Schyff
1972
(1) SA 26 (A)
at
37G - 38A;
Schmidt Bewysreg
4th
ed at 91 - 2).”
[5]
At this stage of the proceedings it is not required of me to
critically look at all
the evidence as it would be required at the
end of the trial as the onus is less stringent. In applying the test
stated above the
plaintiff must have delivered evidence relating to
all the elements of the claim. For example, the plaintiff must show
that there
was a duty of care that was breached by the defendant and
that that breach resulted in the injuries she sustained.
[6]
In her particulars of claim the plaintiff alleged the following:
“
4.
At all material times Defendant:
4.1
exercised control over the said premises,
4.2 was
responsible for the maintenance and safety of the said premises;
4.3 was
aware that members of the general public, such as Plaintiff, visited
the premises; and
4.4 was
obliged to take reasonable steps to protect the safety of members of
the public, such as Plaintiff by,
inter alia
, ensuring that
the floor of the said premises was safe and free of obstructions.
5.
In the premises, Defendant owed a duty to Plaintiff that, when
present
upon the said premises, she was not exposed to the risk of
injury.
6.
The incident referred to in paragraph 3 above was caused by the
negligence
of Defendant and/or breach of its aforesaid duty of care,
in that its employee(s), acting at all material times within the
course
and scope of their employment with Defendant:
6.1
removed floor tiles on the walkway of the premises, thereby rendering
the floor dangerous to Plaintiff and
other persons present upon the
premises;
6.2
permitted the removal of floor tiles on the walkway of the premises,
thereby rendering the floor dangerous
to Plaintiff and other persons
present upon the premises;
6.3
failed to maintain the floor of the premises in a reasonable state of
repair;
6.4
failed to take any and/or adequate steps to prevent Plaintiff and
other persons from falling as a result of
the state of the floor of
the premises;
6.5
failed to take adequate steps to warn Plaintiff and other persons of
the state of the floor of the walkway;
6.6
failed to take any and/or adequate measures to ensure the safety of
Plaintiff and other members of the public
present on the premises;
6.7
failed to prevent the Plaintiff’s fall when by the exercise of
reasonable skill and care Defendant could
and should have done so;
and
6.8
failed to act with due care.
7.
In and as a result of the incident referred to in paragraph 4 above
Plaintiff sustained a fracture dislocation of her right elbow.”
[7]
The defendant in its plea admitted that an incident occurred on 21
August 2016 at
Loch Logan Waterfront in the vicinity of the Foschini
store, during which the plaintiff fell. The defendant admits that
tiles were
removed on the certain portion of the walkway but denies
that the removal of the tiles led to the fall of the plaintiff. The
defendant
pleaded that at all material times there were disclaimer
boards visibly displayed at the entrance of the building exempting
the
plaintiff from any damages, loss or injury to the plaintiff. It,
further, pleaded that there were warning notices/ signs displayed
in
the premises and in the vicinity of the Foschini store warning
visitors at the mall that tiles have been removed and to be cautious.
[8]
The plaintiff who was 58 years of age at the time of the incident
testified that she
was walking towards Woolworths at the Loch Logan
mall to have something to eat. She was accompanied by her husband,
daughter and
grandson. There were two strips on the walkway where
tiles had been removed. The area where the tiles were removed was
layered
with cement and grey in colour. She walked on the tiled area
which parties measured and agreed that it was 178 cm wide. She was
walking next to her husband who was closer to the cemented area while
she walked closer to the shops. According to the plaintiff,
the mall
was busy with people going back and forth in the same space just
before she fell. She was in the vicinity of Foschini
and Sterns when
she fell. At the time of her fall she turned around grabbed her
daughter and held on to her grandson before she
fell on her right
elbow. She does not know what caused her fall. She said that she did
not see the yellow caution signboards spread
all over the cemented
area. She admitted that the yellow signboards that could be seen
spread on the cemented area throughout the
corridor on the video
footage are used to warn people of the potential danger in the
specific area.
[9]
She was wearing a pair of black Green Cross boots. The boot on her
right foot had
some cement on it when the plaintiff was placed on a
stretcher at the scene before she was carried away by the paramedics.
She
simply could not tell how she fell.
[10]
The next witness was Moushini Mayet, the plaintiff’s husband.
He testified to the effect
that he was slightly in front of the
plaintiff and he did not see how she fell. His testified that there
were many people walking
in the mall at the time the plaintiff fell.
He was confronted with the video footage which showed a different
picture from the
one he described.
[11]
Is the evidence before me sufficient to enable me to find in favour
of the plaintiff? In
Gascoyne
v Paul and Hunter
[3]
the court said the following:
“
At the close of
the case for the plaintiff, therefore, the question which arises for
the consideration of the Court is, is there
evidence upon which a
reasonable man might find for the plaintiff? And if the defendant
does not call any evidence, but closes
his case immediately, the
question for the Court would then be, "Is there such evidence
upon which the Court ought to give
judgment in favour of the
plaintiff?”
[12]
L
iability
hinges on the notion that we have a certain set of responsibilities
in any given situation. For the plaintiff to succeed
in her claim she
must prove that there was a duty of care that was breached and that
the breach resulted in an injury which caused
monetary loss. Once it
has been established that the defendant owed a duty to the plaintiff
and that the defendant breached that
duty, the plaintiff must show
that the breach is the proximate cause of the accident which caused
her harm.
[13]
Ms. Becker, on behalf of the Plaintiff, submitted that there is
sufficient evidence from which
I can draw an inference that the
Plaintiff fell because of the unevenness of the floor at the mall,
caused by the removal of the
tiles. She contends that the fact that
there was cement on her shoes after falling, it means that she might
have stepped on the
cemented area.
[14]
The above contention ignores the evidence that the cement was on the
right foot shoe of the plaintiff
and that her right part of the body
was away from the cemented area as she was walking towards
Woolworths. Her right part of the
body was closer to the shops while
the left part was the one on the side of the cemented area. If the
cement on the shoe is indicative
of the fact that she stepped on the
cemented area while walking, logic dictates that it is the left foot
that should have stepped
on the cemented area. It is improbable that
the plaintiff’s right foot could have stepped onto the cemented
area while walking
towards Woolworths in the manner that she
described.
[15]
Inference is a conclusion arrived at based on evidence, it must be
logical and reasonable.
Blacks
Law Dictionary
defines inference as a
truth or proposition drawn from another which is supposed or admitted
to be true. A process of reasoning by which a fact or proposition
sought to be established is deduced as a logical consequence from
other facts, or a state of facts, already proved or admitted.
[4]
This indicates that the conclusion drawn must not be based on
speculation, it must be supported by evidence.
[16]
In
S v
Essack & another
[5]
the following passage by Lord Wright in
Caswell
v Powell Duffryn Associated Collieries Ltd
[6]
was quoted:
“
There can be no
inference unless there are objective facts from which to infer the
other facts which it is sought to establish.
In some cases the other
facts can be inferred with as much practical certainty as if they had
been actually observed. In other
cases the inference does not go
beyond reasonable probability. But if there are no positive proved
facts from which the inference
can be made, the method of inference
fails and what is left is mere speculation or conjecture.”
[17]
The evidence before me is not sufficient to enable me to come to the
conclusion that the plaintiff
fell because of the removal of tiles on
the walkway. The plaintiff was adamant that at all times she was
walking on the tiled area
of the walkway. She reiterated that she
never steered away from the tiled area.
[18]
Ms. Becker, further, submitted that in the absence of an explanation
of how the accident happened,
I must apply
res ipsa loquitur
and find that the accident would ordinarily not have occurred without
the negligence on the part of the defendant. The defendant,
however,
placed yellow caution boards throughout the corridor which were
clearly visible. It is inconceivable how the plaintiff
who was
walking adjacent these boards did not notice them. The evidence is
insufficient for me to infer negligence on the part
of the defendant.
[19]
The plaintiff failed to bring a
prima facie
case to which the
defendant has to answer. The application for absolution from the
instance must succeed. Costs are in the discretion
of the court. I am
of the view that the circumstances surrounding this case call for
each party to pay its own costs.
[20]
I make the following order:
1.
Absolution from the instance is granted
2.
Each party to pay its own costs.
N.M. MBHELE, AJP
Appearances:
For the
Plaintiff/Respondent:
Adv. C. Bekker
Instructed by Matsepes
Inc.
Bloemfontein
For the
Defendant/Applicant:
Adv. H. J. Cilliers
Instructed by Phatshoane
Henney
Bloemfontein
[1]
Claude
Neon Lights (SA) Ltd v Daniel
1976 (4) SA 403
(A) at 409 G-H
[2]
Gordon Lloyd Page & Associates v Rivera and Another
2001 (1) SA
88
(SCA
)
at 92 F-H:
[3]
Gascoyne v Paul and Hunter
1917 TPD 170
at 173.
[4]
Blacks
Law Dictionary on the definition of inference.
[5]
S v Essack & Another
1974 (1) SA 1
(A) at 16C-E.
[6]
Caswell v Powell Duffryn Associates Collieries Ltd
[1939] 3 All ER
722
at 733.