About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 357
|
|
Kruger v Wawiel Park (PTY) Ltd (4538/2014) [2022] ZAFSHC 357 (23 December 2022)
HEADNOTE:
DISCLAIMER NOTICES AT RESORT
Delict
– Disclaimer – Gross negligence – Holiday
resort where visitor injured – Falling into hole
at picnic
site during thunderstorm – Resort grossly negligent in
leaving hole open without warning signs and without hole
being cordoned off – Disclaimer notice clearly exempting
resort – Could not rely on disclaimer where there
had been
gross negligence and where such reliance contrary to public
policy.
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
4538/2014
Reportable: YES
Of Interest to other
Judges: NO
Circulate to
Magistrates: NO
In
the matter between:
PETRA
KRUGER
Plaintiff
and
WAWIEL
PARK (PTY)
LTD
Defendant
CORAM:
JP DAFFUE, J
HEARD
ON:
31 OCTOBER 2022, 01 NOVEMBER 2022 & 04 NOVEMBER 2022
DELIVERED
ON:
23 DECEMBER 2022
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 11h00 on 23 December
2022.
ORDER
1.
The defendant is liable to pay the plaintiff’s damages to be
proven or
agreed upon arising from the injuries sustained by her on
25 December 2012 on the defendant’s premises.
2.
The defendant is liable for the plaintiff’s costs of the
action, inclusive
of the trial costs of 31 October 2022, 01 November
2022 and 04 November 2022, including the costs of senior counsel.
JUDGMENT
Introduction
[1]
On Christmas day, 25 December 2012, nearly ten years ago, the
plaintiff,
Mrs Petra Kruger and family members were day visitors at
the holiday resort Wawiel Park (the resort), it being owned by the
defendant,
Wawiel Park (Pty) Ltd.
[2]
That day a traumatic event occurred during which the plaintiff
sustained
a serious injury as a result of which she instituted action
against the defendant to claim damages due to the alleged unlawful
conduct of the defendant, acting through its directors and/or
employees.
[3]
The matter went on trial on 31 October 2022, 01 November 2022 and 04
November
2022 for adjudication of the issue of liability. An order
was granted in terms of rule 33(4), specifically recording that all
disputes
relating to paragraphs 1, 5, 6, 7 and 8 of the particulars
of claim read with the corresponding paragraphs of the special plea
and plea, to wit paragraphs 1, 2, 6, 7, 8 and 9 thereof, as well as
the averments in the replication were to be adjudicated. All
remaining disputes stood over for later adjudication if required.
Issues
to be adjudicated
[4]
Adv PJJ Zietsman SC on behalf of the defendant referred to the issues
in dispute as are apparent from the pleadings, but as I shall
indicate later herein, several issues in dispute on the pleadings
have not been taken any further during the hearing, especially
insofar as the defendant decided to close its case without calling
any witnesses. The issue of contributory negligence on the part of
the plaintiff as pleaded was not taken up with her in
cross-examination
and there is no factual basis on which this issue
can be considered and/or adjudicated. Mr Zietsman did not argue the
contrary.
The real issues between the parties to be adjudicated are:
a.
whether the plaintiff was injured at the resort on 25 December 2012;
b.
whether the defendant, acting through its directors and/or employees,
was negligent,
and in particular, grossly negligent;
c.
whether the defendant can rely on the disclaimer notices displayed on
two separate
notice boards to avoid liability.
Wrongfulness
[5]
It is apparent from the
disputes to be adjudicated mentioned in the previous paragraph that
wrongfulness was not an issue during
the trial. Notwithstanding this,
it is perhaps apposite to state what the Constitutional Court had to
say about wrongfulness in
Le
Roux and Others v Dey (Freedom of Expression Institute and
Restorative Justice Centre as amici curiae)
[1]
:
‘
In the more recent
past our courts have come to recognise, however, that in the context
of the law of delict:
(a)
the
criterion of wrongfulness ultimately depends on a judicial
determination of whether — assuming all the other elements
of delictual liability to be present — it would be reasonable
to impose liability on a defendant for the damages flowing
from
specific conduct; and
(b)
that
the judicial determination of that reasonableness would in turn
depend on considerations of public and legal policy in accordance
with constitutional norms. Incidentally, to avoid confusion it
should be borne in mind that, what is meant by reasonableness
in the
context of wrongfulness has nothing to do with the reasonableness of
the defendant's conduct, but it concerns the reasonableness
of
imposing liability on the defendant for the harm resulting from that
conduct.’
As
the Constitutional Court warned, reasonableness in the context of
wrongfulness concerns the reasonableness of imposing liability
on a
defendant for the harm resulting from that conduct and has nothing to
do with the reasonableness of the defendant’s
conduct when
considering fault.
The
test for establishing negligence
[6]
The locus classicus
remains
Kruger
v Coetzee,
[2]
the court describing the
test as follows:
‘
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.’
[7]
In
MV
Stella Tingas: Transnet Ltd t/a Portnet v Owners of the MV Stella
Tingas
[3]
the court referred to the
concept of gross negligence as follows:
[4]
‘
I shall assume,
without deciding, that the exemption would not apply if the pilot
were found to have been grossly negligent.
Gross negligence
is not an exact concept capable of precise definition
.
Despite
dicta
which
sometimes seem to suggest the contrary, what is now clear, following
the decision of this Court in
S
v Van Zyl
1969
(1) SA 553
(A)
, is that
it
is not consciousness of risk-taking that distinguishes gross
negligence from ordinary negligence
.
…
If
a person foresees the risk of harm but acts, or fails to act, in the
unreasonable belief that he or she will be able to avoid
the danger
or that for some other reason it will not eventuate, the conduct in
question may amount to ordinary negligence
or it may amount to gross
negligence (or recklessness in the wide sense) depending on the
circumstances. … On the other
hand, even in the absence of
conscious risk-taking, conduct may depart so radically from the
standard of the reasonable person
as to amount to gross negligence.
It follows that whether there is conscious risk-taking or not,
it is necessary in each case
to determine whether the deviation from
what is reasonable is so marked as to justify it being condemned as
gross. … It
follows, I think, that
to
qualify as gross negligence the conduct in question
,
although falling short of
dolus
eventualis
,
must
involve a departure from the standard of the reasonable person to
such an extent that it may properly be categorised as
extreme;
it must demonstrate, where there is found to be conscious
risk-taking, a complete obtuseness of mind or, where there is
no
conscious risk-taking, a total failure to take care
.
If something less were required, the distinction between ordinary and
gross negligence would lose its validity.
’
(Emphasis added.)
In
S v Van
Zyl
[5]
referred to in
Stella
Tingas
the
court stated that the word ‘reckless’ in s 138 (1) of
Ordinance 21 of 1966 (C) also embraced gross negligence without
advertent negligence, held that gross negligence had been proved and
that the conduct of the accused could be characterised as
‘reckless’.
A
summary of the evidence pertaining to the incident and an evaluation
thereof
[8]
A photo album containing 66 photographs was handed in by agreement as
exhibit ‘A’. The evidence was led with reference to some
of the photographs. The plaintiff’s son-in-law, Mr Pieter
Labuschagne, her husband, Mr Johannes Kruger and she testified about
the events that occurred at the resort on Christmas day, 25
December
2012. I do not intend to summarise the versions individually, but
will point out from time to time where the witnesses
differ from one
another. Mr Kruger also testified about a further visit to the resort
on 29 December 2012 when photos were taken
to which I shall revert.
The plaintiff also attended the scene with her attorney several years
later when further photographs were
taken. The witnesses never
visited the resort before 25 December 2012.
[9]
Mr Kruger and the plaintiff who reside in Orkney decided later the
morning
of 25 December 2012 to join their daughters, their partners
and their grandchildren at the resort on the banks of the Vaal River
in the Free State Province. Although Mr and Mrs Kruger initially did
not want to join the others because of the weather conditions,
they
were convinced by the children who indicated that they had found a
picnic spot. It is not in contention that this picnic spot
turned out
to be on the lawn area which was packed with holiday makers. It was
in proximity of the heated and cold swimming pools.
The family
enjoyed themselves like hundreds of other holiday makers. Mr
Labuschagne’s evidence differs from that of the plaintiff
and
her husband pertaining to the time of his in-laws’ arrival at
the resort, when they started to braai and when the thunderstorm
erupted. In my view these discrepancies are immaterial, bearing in
mind the time lapse of ten years. I accept that the thunderstorm
erupted closer to 16h00 than about 13h00 as estimated by Mr
Labuschagne if the totality of the evidence is considered and
particularly
the hospital notes referred to in cross-examination.
[10]
Mr Kruger and the plaintiff corroborated each other on several
material aspects. They conceded
having discussed the issue over the
years which I find to be totally probable bearing in mind the fact
that they are spouses, having
been married for several decades. The
plaintiff testified about the crucial issue as to how she had
sustained her injuries to which
neither her husband, nor Mr
Labuschagne, could offer any corroboration or assistance.
[11]
Once the plaintiff and her husband have parked their vehicle, they
went down towards the
lawn area where they found their family at the
picnic spot. According to Mr Pieter Labuschagne the family were
sitting approximately
one meter from the huge hole in the ground
depicted on the photographs taken on 29 December 2012, although he
was unaware thereof
at the time. This evidence is contradicted by
that of the plaintiff and Mr Kruger. Mr Kruger was of the view that
they were about
10 to 15 meters from this hole, whilst the plaintiff
indicated that they were about 8 to 10 paces from it. All three
testified
on this aspect whilst totally unaware of the position of
the hole at the stage when they were enjoying their picnic. They made
their estimates years after the event, based on, either where Mr
Labuschagne found the injured plaintiff under the tree, or the
position of the hole depicted on the photographs. It must be recorded
that the lawns were packed with holiday makers and covered
with
blankets and camping chairs.
[12]
The men, that is Mr Kruger and the partners of their daughters, made
a fire and prepared
for a traditional South African braai. Just as
the meat was about ready to be taken off the fire, a thunderstorm
described as a
cloudburst accompanied by light hail, arrived
suddenly. Streams of water quickly started to run down towards the
Vaal River and
in the process several items of holiday makers were
washed down as well. Holiday makers scrambled to find protection. The
plaintiff’s
daughters’ priorities were their infants and
they sought shelter under a veranda, whilst the men grabbed so much
of their
belongings that they managed to carry in order to put that
in the vehicles. Mr Kruger accompanied the sons-in-law on one
occasion,
but on his return decided to seek shelter underneath a
veranda. The plaintiff stayed at the picnic spot and covered the
remaining
items with a blanket in order to prevent them from being
washed away. At a stage she decided to seek shelter underneath a
nearby
tree closer to the river. As she was about to reach the tree,
she fell into a hole with both legs. The hole was so deep –
her
knees were underneath ground level - that she had severe difficulty
to get out, especially bearing in mind the serious injuries
in the
form of deep lacerations sustained to her right foot and leg. She
eventually managed to grab the tree trunk in order to
get upright
whilst screaming for help. Blood was spurting from two different
locations. She unsuccessfully tried to stop bleeding
by using her
thumbs.
[13]
On his way back from his vehicle, Mr Labuschagne heard the screams
but due to the heavy
downpour found it difficult to see the plaintiff
initially. When he approached her the plaintiff had to make him aware
of the hole
as it was impossible to see it due to being filled with
water and the streams of water running down towards the river. The
plaintiff
and Mr Labuschagne’s versions differ in respect of
when she warned him about the hole. Contrary to her version, he
testified
that she warned him on their way back to the vehicles.
There must have been much confusion and I am not prepared to find
that any
of their versions should be rejected as false. Anyone might
have made an innocent mistake in the circumstances. Mr Labuschagne
took off his T-shirt to dress the wounds, but to no avail. He
assisted the plaintiff on the way to the vehicles as she could not
step on her right foot, but found it difficult on his own. At a stage
a person unknown to them, identifying himself as Aubrey,
alleging
that he was an employee at the resort, working at the hot water
swimming pool, assisted Mr Labuschagne. This person was
eventually
relieved as the plaintiff’s other son-in-law, Mr Jean Watson,
arrived. As blood was still spurting out of the
two separate wounds
on her foot, Mr Watson transported the plaintiff in his vehicle to
the casualties’ department of the
Wilmed Park private hospital.
As the plaintiff was not a member of a medical aid fund, the wounds
were merely dressed to stop the
bleeding, where after she was taken,
first to the Klerksdorp hospital who did not assist her and
thereafter to the Tshepong hospital
where the wounds were cleaned and
sutured. Operations followed later on as Mr Zietsman extracted in
cross-examination which was
really unnecessary and will become
relevant only when quantum is to be adjudicated, save insofar as he
tried to establish that
the plaintiff was not a credible witness.
[14]
Four days after the incident Mr Kruger and Mr Watson visited the
holiday resort. Photos
were taken, inter alia depicting a huge hole
in the ground. Mr Kruger testified that the hole was about 600mm deep
and 800mm x
800mm in length and width. The photographs depict a
broken glass bottle (apparently a beer bottle) and nappies as well as
a piece
of a newspaper inside the hole. Mr Zietsman indicated
correctly that it appears as if the newspaper was completely dry at
that
stage, suggesting that the newspaper must have been put in the
hole after the storm four days earlier. At that stage camping chairs
were placed around the hole, apparently by visitors, whilst in the
background several other holiday makers are visible, standing
around
or sitting on their camping chairs. According to Mr Kruger there must
have been a thousand holiday makers at the resort
on Christmas day
whilst the number was approximately three hundred on the 29
th
of December 2012. Mr Kruger testified that the soil dug out to make
the hole was thrown next to it although this is not clearly
depicted
on the photographs. His evidence was not disputed.
[15]
A major issue was made in cross-examination by Mr Zietsman of the
fact that, contrary to
the pleadings, the hole as depicted in the
photographs was not situated on the lawn area. I do not agree with
his line of questioning
which was not conceded. It is apparent from
the photographs that numerous fire places have been erected all over
the picnic area
under the trees and that the area is covered by lawns
although the grass is sparse around the tree trunks. This is
especially so
where the hole was dug. The plaintiff explained this
aspect satisfactorily with reference to her own garden. As mentioned
and depicted
on the photographs of the 29
th
, the holiday
makers utilised this lawn area for their picnics. The submission that
the evidence differs from the pleadings is incorrect
or at best for
the defendant, immaterial. The hole was located where patrons
gathered to enjoy themselves on the lawn area underneath
the trees.
[16]
Mr Zietsman never denied the existence of this particular hole or any
other similar hole
on 25 December 2012 during cross-examination of
any of the witnesses and that it still remained there on 29 December
2012 when
the photos were taken. He suggested, perhaps more tongue in
the cheek than otherwise, that the hole could have been dug by
holiday
makers on Christmas day and that the plaintiff perhaps just
did not notice that. The plaintiff could not meaningfully respond to
this suggestion, but in my view this is so improbable that it can be
ignored. There is no reason why holiday makers would arrive
at a
resort on Christmas day with a spade and pick-axe to dig a hole for
their garbage. In the absence of any evidence on behalf
of the
defendant, this was really nothing, but a grasping at straws.
Furthermore, bearing in mind the allegations in the defendant’s
further particulars for purposes of trial, the premises were
allegedly cleaned and examined daily by a number of personnel to
identify defects and any potentially dangerous situations. This duty
was not seriously undertaken, given the established facts.
[17]
Plaintiff’s evidence of the fall is uncontroverted. She
proceeded to a nearby tree
on the lawn area to shield her from the
heavy rain and hail. She did not run and although her view was partly
obscured as a result
of the rain, she could see where she was going.
Unfortunately, the streams of water not only filled the hole, but
caused her not
to identify the danger. Her evidence is unimpeachable.
I am satisfied that the plaintiff stepped into this man-made hole on
the
defendant’s lawn area as depicted in the photographs and
that this hole must have contained sharp objects such as broken glass
bottles although it may not be possible to make a definite finding
that the specific broken bottle in the hole depicted in the
photographs is the one that cut the plaintiff. Garbage might have
been removed from the hole after the 25
th
and new garbage
might have been thrown into the hole before the photos were taken on
the 29
th
of December 2012.
[18]
Contrary to the denial in
the pleadings, Mr Zietsman did not deny during cross-examination of
any of the witnesses that the plaintiff
and her family visited the
resort on 25 December 2012 and that she was injured on the
defendant’s premises as alleged by
her. I accept that she does
not have first-hand knowledge of what exactly caused the severe cuts
to her foot and leg. In this regard
the broken bottle found in the
hole four days after the event lends support for a finding based on
circumstantial evidence. Mr
Zietsman considered it relevant to refer
the plaintiff to the medical records of the Tshepong hospital
indicating that on 26 December
2012 she refused medical care. In my
view she explained sufficiently what occurred and there is no reason
to deal with this aspect
any further. Instead of supporting a
possible version put to her by the defendant, the records support the
plaintiff’s case.
The documents contained in the discovery
bundle provide inter alia the duty doctor’s assessment that the
plaintiff had fallen
and sustained lacerations to her dorsal area. It
is also apparent from the hospital records that the plaintiff first
attended the
hospital late afternoon of 25 December 2012. Several
photographs in the photo-album, although not specifically dealt with
in the
evidence, depict the lacerations after being sutured. These
three aspects: the plaintiff’s direct testimony, the objective
hospital records brought into play during cross-examination and the
photographs of the sutured lacerations, taken together, point
to the
only reasonable and logical inference to be drawn (applying the
stricter test used in criminal matters) or the more plausible
inference than any other inference, being the test in civil matters,
that the plaintiff was cut by a sharp object such as a broken
glass
bottle when she fell in the hole at the resort. Mr Zietsman did not
put it to plaintiff or the other two witnesses that she
did not
injure her foot as alleged in the particulars of claim and as
testified; yet he submitted in argument that she should not
be
believed and that a negative credibility finding should be made
against her. Such submission is in direct conflict with the
authorities, the most well-known of all being
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others.
[6]
Therefore, although not even suggested by Mr Zietsman that the
plaintiff injured herself at a different location - not on the
defendant’s premises - I disregard the possibility of the
injuries being sustained due to for example uneven ground or any
other like cause, or even the glass plates with snacks that she was
carrying when falling in the hole.
[19]
The plaintiff was not
negligent. Contrary to the allegations in the plea, Mr Zietsman did
not submit as such. He submitted that
even if the defendant was aware
of the existence of the hole, but failed to cordon it off with
warning tape, such negligence would
not have been causally connected
to the injuries suffered by the plaintiff as she could not see in
front of her moments before
she fell into the hole. This submission
is factually incorrect and based on speculation as no
cross-examination was conducted in
this regard. I am satisfied that
the proved facts called for an explanation, but none was forthcoming.
Consequently, an adverse
inference can be drawn from the defendant’s
silence.
[7]
The defendant never
denied the version that Aubrey, who assisted the injured plaintiff,
was employed by it, he having conducted
duties at the hot water
swimming pool. No evidence was placed on record to dispute this
uncontested version. The plaintiff’s
letter of demand dated 11
March 2013 was delivered to the defendant within three months from
the date of the incident, allowing
the defendant sufficient time and
opportunity to investigate the plaintiff’s allegations. Yet,
the defendant elected not
to present a version.
[20]
The defendant, acting through its directors and/or employees, acted
grossly negligent in
either digging the hole, or allowing the hole to
be left open without cordoning it off properly to prevent patrons to
fall in it,
and/or providing any warning signs to warn patrons of the
imminent danger. Contrary to what was stated in the further
particulars,
the huge hole dug in the ground which caused the
plaintiff’s injuries, was either dug by the defendant’s
directors
and/or employees to be used as an unprotected garbage pit,
or if that was not the case, it was not detected and left open over a
period of four days between 25 and 29 December 2012 when the first
photos were taken. In my book and bearing in mind the hundreds
of
patrons that visited the resort during those days, this constitutes
gross negligence, if not recklessness. In the words of the
court in
Stella Tingas
supra, there was a departure from the standard
of the reasonable person to such an extent that it may be categorised
as extreme
and at best for the defendant, a total failure to take
care of its resort. If the hole was not there in the first place, no
injuries
would have been sustained by the plaintiff. If the hole was
properly cordoned off to avoid a person from falling into it, the
same
would apply. If proper warning signs were erected, this would in
all probability have been heeded to although the plaintiff’s
vision was affected to an extent. She was at least able to see the
tree where she wanted to seek protection from the rain. Her
son-in-law was able to find her. Aubrey came to her assistance and
clearly managed to see her from a distance. Therefore, causation
has
been proven.
[21]
Finally, I need to address Mr Zietsman’s remarks during
argument that the plaintiff
and her husband in particular confirmed
that they discussed the matter. He failed to persuade me to dismiss
the version of any
of the witnesses on the basis of their
untrustworthiness. If Mr Kruger wanted to support the plaintiff’s
testimony as to
exactly what happened to her on the particular
Christmas afternoon, he as well as his son-in-law could have lied and
presented
factual evidence of exactly what happened to her, what was
found in this hole and what caused her injuries. They maintained that
they did not have first-hand knowledge of the ordeal and explained
where they were at the relevant time. It was never stated during
cross-examination that the witnesses’ versions would be
contradicted by evidence of opposing witnesses and the precise nature
of the evidence to be presented in order to provide an opportunity
for an explanation. Furthermore, it was never put to any of
the
witnesses that they should be disbelieved for them to respond
accordingly. In fact, evidence of the serious injuries sustained
by
the plaintiff that faithful afternoon has not been challenged at all
during cross-examination. In his heads of argument Mr Zietsman
for
the first time touched on the subject, submitting that the court
should ‘make a negative credibility finding against
the
plaintiff and to find that she did not injure her leg as alleged in
the particulars of claim.’ He said nothing about
her viva voce
evidence.
[22]
I am satisfied that the first two issues mentioned in paragraph 4
above, to wit whether
the plaintiff was injured at the resort on 25
December 2012 and whether the defendant’s gross negligence
caused the injuries
should be adjudicated in favour of the plaintiff.
The remaining issue is the disclaimers relied upon on which I shall
focus under
the next heading.
The
disclaimers
[23]
As mentioned, two
disclaimer notices are depicted on the photographs. It is not in
dispute that on 25 December 2012 the two notice
boards were in place
as depicted on the photographs. The first one should have been
visible as the plaintiff and her husband drove
past it. As the
plaintiff and her husband approached the resort in their vehicle,
driven by her husband, the plaintiff’s
attention was focussed
on some lions in a camp on the right hand side of the road leading
towards the resort. She did not see the
first notice board at the
first set of gates which were open at the time and not manned by
anybody. During cross-examination she
had to concede that on her own
version, they would have passed the lions by the time that they
arrived at the first set of gates.
It is apparent from the
photographs that this notice board containing disclaimers in three
languages, is erected on the left hand
side of the road and just
where the road curves to the right. There is no indication that
visitors are directed to stop and read
the notices before proceeding.
In fact, the gates do not depict the entrance to the resort which is
some distance away. Visitors
driving past the notice board will have
a split second to read the contents if they are actually aware of the
notice board. The
defendant did not present evidence to prove from
what distance the contents are legible and how long it would take to
read same.
In my view, and unless the driver comes to a stationary
position right in front of the notice board, it would not be possible
to
read the contents in order to appreciate that it has something to
do with a visit to the resort. I find that the defendant did not
take
reasonably sufficient steps to notify the plaintiff of the terms of
this disclaimer. Therefore, I am not satisfied that actual
or
quasi-mutual assent was proven in respect of the first disclaimer, ie
that on the factual basis presented at the time, the plaintiff
assented to the terms thereof. This disclaimer was not prominently
displayed in the manner found in
Durban's
Water Wonderland (Pty) Ltd v Botha
[8]
(
Durban’s
Water Wonderland),
ie
on either side of a ticket booth where visitors had to purchase their
tickets for the amusement park. In that case the court
held that any
reasonable person approaching the ticket booth would hardly have
failed to see the notice.
[9]
The
facts in
Durban
Water Wonderland
are
distinguishable from the facts in this case pertaining to the first
disclaimer. The defendant does not have a valid defence
in respect of
this disclaimer.
[24]
At the second set of
gates where one enters the resort, prospective patrons have to stop
in order to pay entrance fees. Here, the
second notice board is
erected to the left hand side of vehicles on their way into the
resort. The plaintiff testified initially
that she also did not see
this notice board, her excuse being that she was looking to find out
where the children had parked their
motor vehicles. She also
explained that she was calling her children on her cell phone at that
stage to establish where exactly
they were seated. She testified that
even if she had noticed or observed the notice board and read the
contents thereof she would
not relate (‘associate’)
herself with the contents thereof. Eventually she conceded that she
did not read everything
on the notice board and that she had
associated herself with the information which she had read. The
cross-examination did not
go further to establish what was read and
what not. Fact of the matter is that the plaintiff had sufficient
time to read the second
disclaimer, unlike the case with the first
one, that the disclaimer was prominently displayed and that any
ordinary alert visitor
to the resort would have seen and be able to
read it, an aspect in essence conceded by the plaintiff. I am
satisfied that actual,
or at the best for her, quasi-mutual assent
was proven in respect of this second disclaimer, ie that on the
factual basis presented
at the time, the plaintiff assented to the
terms thereof. Although she insisted in evidence that she did nor
associate herself
with the contents, this is irrelevant if the
applicable legal principles are kept in mind.
[10]
Mr Kruger who was the driver of the vehicle did not make any
meaningful contribution towards the issue. According to him he was
not aware of the two notice boards. The next issue to be considered
is the language used by the defendant to rely on the disclaimers.
[25]
A party wishing to
contract out of liability must do so in clear and unequivocal terms.
The
Supreme Court of Appeal made it clear as follows in
Durban's
Water Wonderland
[11]
that
exemption clauses or disclaimers are part of our law:
‘
The correct
approach is well established. If the language of a disclaimer or
exemption clause is such that it exempts the
proferens
from
liability in express and unambiguous terms, effect must be given
to that meaning. If there is ambiguity, the language
must be
construed against the
proferens
…
But the alternative
meaning upon which reliance is placed to demonstrate the ambiguity
must be one to which the language is
fairly susceptible; it must
not be 'fanciful' or 'remote'.
[26]
Marais JA stated in
First
National Bank of SA Ltd v Rosenblum and Another
[12]
as
follows:
‘
In
matters of contract the parties are taken to have intended their
legal rights and obligations to be governed by the common law
unless
they have plainly and unambiguously indicated the contrary. Where one
of the parties wishes to be absolved either wholly
or partially from
an obligation or liability which would or could arise at common law
under a contract of the kind which the parties
intend to conclude, it
is for that party to ensure that the extent to which he, she or it is
to be absolved is plainly spelt out…
Thus, even where an
exclusionary clause is couched in language sufficiently wide to be
capable of excluding liability for a negligent
failure to fulfil a
contractual obligation or for a negligent act or omission, it will
not be regarded as doing so if there is
another realistic and not
fanciful basis of potential liability to which the clause could apply
and so have a field of meaningful
application.’
[27]
The wording of the second disclaimer is in Afrikaans only, the home
language of the plaintiff,
while the first disclaimer is in three
languages, including Afrikaans and English. If I find that the
wording of the second disclaimer
is clear and unambiguous and that it
was properly displayed at the time, it may be the end of the
plaintiff’s case.
[28]
The plaintiff relied on
Hanson v
Liberty Group Ltd and Others.
[13]
In that case the plaintiff who was visiting the Sandton City shopping
centre, tripped over an elevated expansion joint cover in
the parking
area. She was a passenger in the motor vehicle that entered the
parking area. The court held that the defendant did
not take
reasonably sufficient steps to notify the plaintiff of the terms of
the disclaimer notice and did not discharge the onus
on it. Just a
few days ago the Supreme Court of Appeal dealt with a disclaimer
defence in
Cenprop
Real Estate (Pty) Ltd v Holtzhauzen.
[14]
It found, based on the proven facts, that the respondent (the injured
customer) had never seen the disclaimer notices (either on
the day of
the injury, or during her previous visits to the premises), that even
assuming the disclaimer notices were in fact displayed,
they were
hidden or obstructed by objects and not visible to shoppers. This
case is different. Here, the second disclaimer notice
in particular,
was prominently displayed and right in front of the plaintiff’s
eyes. The defendant took appropriate steps
to notify prospective
patrons of the conditions applicable to them when entering the
resort. Before I conclude on the defence raised
by the defendant in
respect of the second disclaimer, I need to refer to the plaintiff’s
replication as well as other authorities.
[29]
The plaintiff filed a
replication to deal with the defendant’s plea relying on the
two disclaimers. She averred that it was
unconstitutional to rely on
a notice exempting the defendant from liability, alternatively, the
defendant could not rely on such
a defence as it was against public
policy. She did not quote the legislation relied upon. As a general
rule, if a party relies
in litigation on a particular statute or
section within a statute, that party must state the statute fully
with reference to the
name and number thereof, or formulate their
cause of action or defence sufficiently clearly so as to allow the
court to adjudicate
what they are relying on.
[15]
Mr Ferreira referred in the heads of argument and during oral
argument for the first time to the protection given to consumers
in
terms of the Consumer Protection Act 68 of 2008 (the CPA). He also
quoted from
Koen
v Pretoria Central Investments (Pty) Ltd t/a Pretoria Parkade
[16]
(
Koen
)
where the learned judge put great emphasis on several sections of the
CPA. I quote the judge’s conclusion verbatim:
[17]
‘
Accordingly
disclaimer notices that a bad in law and not being able to be enforce
or allow an injured person to approach the courts
for redress are bad
in law and can therefore not pass the constitutional muster.’
This
conclusion is in direct conflict with all available authorities of
the Supreme Court of Appeal and the judgment should not
be followed.
Both the judgments in
Bafana
Finance Mabopane v
Makwakwa and Another
[18]
(Bafana
Finance)
and
Barkhuizen
v Napier
[19]
relied upon, do not support the learned judge’s conclusion.
[30]
In
Bafana
Finance
a
clause in a moneylending contract whereby the debtor undertook not to
apply for an administration order, and if they did apply
for such
order, the loan debt would not form part of the administration order,
was held to be unenforceable as being contrary to
public policy. This
case is totally irrelevant to the issue at hand. In
Barkhuizen
v Napier
the
Constitutional Court dealt with a time-limitation clause in an
insurance contract in terms whereof an insured had to institute
action within the time period specified in the contract, namely 90
days from date of repudiation of the claim. The court specifically
accepted that the
doctrine
of
pacta
sunt servanda
is
still part of our law, although it stated that courts are allowed to
decline to enforce contractual terms that are in conflict
with
constitutional values even if parties may have consented thereto. In
that case the Constitutional Court held that the enforcement
of the
clause would not be contrary to public policy and thus also not
unjust to the insured.
[20]
Clearly, as the Constitutional Court found, the insured’s right
of access to court provided for in s 34 of the Constitution
was not
ignored.
[31]
In
Reineke
v Intercape Ferreira Mainliner (Pty) Ltd
[21]
the full bench dealt with
a disclaimer in a so-called ticket case and stated that ‘
however
widely phased a disclaimer may be, if its language upon a proper
interpretation thereof expressly and unambiguously exempts
the
proferens
from
liability, then effect must be given to it.’
It also held that the
disclaimer had to be read in the context of the respondent’s
core business, which was the
daily
conveyance of passengers by bus on public roads and concluded that
the respondent’s defence in relying on the disclaimer
was good
in law. In this case the defendant’s core business is that of
managing a resort, providing picnic facilities on
its lawns on the
banks of the Vaal River as well as other amenities such as swimming
pools, a playground for children, trampolines
and fishing.
[22]
I shall deal with the apparent ratio for the disclaimer in this case
hereunder.
[32]
Although the plaintiff failed to rely on the principles enunciated in
the CPA in her pleadings,
and although a case might have been made
out that she should not be heard now to rely thereon as the defendant
was not given an
opportunity to consider the matter before the
closure of its case, Mr Zietsman did not submit that I should
disregard any submissions
raised in terms of the CPA. Consequently, I
am prepared to briefly deal with the CPA. Section 49(1) thereof
states inter alia that
any notice to consumers that purports to limit
in any way the risk or liability of the supplier or any other person,
or impose
an obligation on the consumer to indemnify the supplier or
any other person, must be drawn to the attention of the consumer in a
manner and form that satisfies the formal requirements of subsecs 3
to 5. Sub-section 3 refers to the fact that the notice should
be
written in plane language. Sub-section 4 stipulates that the
attention of the consumer must be drawn in a conspicuous manner
and
form that is likely to attract the attention of an ordinarily alert
consumer and the notice must be given before the consumer
engages in
the activity, or enters, or gains access to the facility.
Furthermore, the consumer must be given adequate opportunity
to
receive and comprehend the provision or notice. Bearing in mind these
provisions, I am satisfied that the second disclaimer
notice in
particular complies with the CPA.
[33]
In the second disclaimer – only in Afrikaans - patrons entering
the resort accept
it to be an express condition of their visit that
the resort would not be held liable for any damages sustained as a
result of
fire, theft, flooding of property or physical injuries,
whether fatal or otherwise. The wording is clear: it exempts the
defendant
from liability in express and unambiguous terms. In
accordance with the
Durban Water Wonderland
-principle effect
must be given to that meaning, unless other considerations come into
play to assist the plaintiff.
One
may understand why the defendant would want to obtain an indemnity
against damage caused by fire (patrons injuring themselves
or others
during braais), theft (patrons stealing from other patrons), flooding
of property (bearing in mind the mighty Vaal River
and thunderstorms)
and physical injuries (caused by diving into swimming pools, falling
off trampolines, children falling off swings,
to name but a few
typical incidents.)
No reference is made to any
negligence, gross negligence or recklessness by the defendant, its
directors or employees, although
one may argue that the defendant
intended to protect it against negligence by its directors and/or
employees in providing the facilities,
eg where the defendant fails
to provide proper security to curb theft, or fails to ensure that a
qualified instructor oversees
trampoline activities and/or if a
novice is allowed to use the trampoline without supervision. Logic
dictates that a service provider
such as the defendant would for
various reasons insist on disclaimers in order to protect it against
the risks occasioned by the
attendance of numerous patrons of all
walks of life. Objectively speaking, this is what the defendant must
have had in mind when
the notice was displayed.
[34]
Mr Ferreira submitted
that I should follow
Koen
[23]
and
Naidoo
v Birchwood Hotel.
[24]
I already mentioned that
Koen
is not good law insofar
as it held that all disclaimers are ‘bad in law and can
therefore not pass constitutional muster.’
Heaton-Nicholls J
did not go that far in
Naidoo
v Birchwood Hotel
although
the learned judge stated that she was unconvinced that such clauses
would withstand constitutional scrutiny.
[25]
She held, based on the facts in that case – a heavy steel gate
jammed, ran off its rail and fell on a hotel guest –
that the
plaintiff discharged the onus of proving his delictual claim and that
neither the disclaimer notices, nor the exemption
clauses, were a
good defence to the claim. I do not agree with the view of the
learned judge that exemption clauses will not pass
constitutional
muster. Each case involving reliance on a disclaimer will have to be
scrutinised to ensure that the values enshrined
in the Constitution
are not undermined. The legislature accepts, as provided for in s 49
of the CPA mentioned above, that a supplier
or service provider may
limit its risk or liability, subject to the provisions enumerated in
the subsections thereof and obviously
bearing in mind public policy
considerations.
[35]
The defendant did not
expressly seek indemnity in the second disclaimer against gross
negligence or recklessness of its directors
and/or employees. Such a
clause in the disclaimer would be contrary to public policy and
unenforceable. The disclaimer is so wide
in ambit that the defendant
seeks to be indemnified in respect of all events, imaginable or
unimaginable, whether its directors
and/or employees are guilty of
direct intent,
dolus
eventualis
,
recklessness or gross negligence in causing death, injury, or loss of
property. I pointed out earlier that disclaimers must be
interpreted
restrictively. In
Stella
Tingas
[26]
the Supreme Court of
Appeal assumed, without deciding, that the exemption would not apply
if the pilot were found to have been grossly
negligent. In my view,
although the
pacta
sunt servanda
principle
remains part of our law as reiterated in
Barkhuizen
v Napier,
[27]
a term in a contract that
is inimical to the values enshrined in the Constitution is contrary
to public policy and unenforceable.
[36]
Durban Water
Wonderland
was
decided on 27 November 1998, but the incident occurred as long ago as
November 1988, ie in the pre-constitutional era. It is
distinguishable on the facts insofar as no case of gross negligence
or recklessness was presented, but mere negligence. In
Afrox
Healthcare Bpk v Strydom
[28]
the Supreme Court of
Appeal held that the principle of contractual autonomy was paramount
and that the disclaimer in that case was
not contrary to the public
interest. The court considered public policy and constitutional
principles and made it clear that the
values underpinning the
Constitution had to be taken into account in considering whether a
particular contractual provision was
in conflict with the interests
of the community.
[29]
The
court pertinently raised the aspect of gross negligence which was not
relied upon by the respondent on the part of the appellant’s
nursing staff. In an obiter dictum it stated that although the
question was not relevant in that matter, contractual exclusion
of
liability caused by gross negligence was not necessarily in conflict
with the public interest and would cause the automatic
invalidity of
the relevant clause. It suggested that the clause would probably
rather have to be interpreted restrictively to exclude
gross
negligence.
[30]
[37]
Whatever the nature of the disclaimers relied upon by the defendant,
and even if I am wrong
in the conclusions arrived at earlier, they
cannot indemnify it against liability in this case. It would be
against public policy
to allow a resort such as the one run by the
defendant to escape liability on the basis of either of the
disclaimers and specifically
the second one.
Conclusion
[38]
The defendant cannot rely on the disclaimer defence in circumstances
where I have found
that it, acting through its directors and/or
employees, was grossly negligent which caused the injuries sustained
by the plaintiff.
Consequently, the plaintiff is entitled to success
on the merits of her claim and an appropriate order will be made. She
is also
entitled to the costs of her senior counsel. The defendant
also considered the matter sufficiently serious to employ senior
counsel
and there is no reason not to allow the costs of her senior
counsel.
Order:
1.
The defendant is liable to pay the plaintiff’s damages to be
proven or
agreed upon arising from the injuries sustained by her on
25 December 2012 on the defendant’s premises.
2.
The defendant is liable for the plaintiff’s costs of the
action, inclusive
of the trial costs of 31 October 2022, 01 November
2022 and 04 November 2022, including the costs of senior counsel.
J
P DAFFUE, J
On
behalf of the Plaintiff:
Adv EJ Ferreira SC
Instructed
by:
LB Attorneys
c/o McIntyre & Van
Der Post
BLOEMFONTEIN
On
behalf of the Defendant:
Adv PJJ Zietsman SC
Instructed
by:
Honey Inc
BLOEMFONTEIN
[1]
[2011] ZACC 4
;
2011
(3) SA 274
(CC) at para 122.
[2]
1966
(2) SA 428
(A) at p 430 E – F; see also
Jacobs
v Transnet Ltd t/a Metrorail
[2014]
ZASCA 113
;
2015 (1) SA 139
(SCA) para 6, confirming the dictum and
explaining that the
test
rests on two bases, namely reasonable foreseeability and the
reasonable preventability of damage; in
Ngubane
v South African Transport Services
[1990] ZASCA 148
;
1991
(1) SA 756
(A) at 776G – 777 the court identified four
considerations influencing the reaction of the reasonable man in a
situation
involving foreseeable harm to others, to wit (a) the
degree or extent of the risk created by the actor’s conduct,
(b) the
gravity of the possible consequences if the risk
materialises, (c) the utility of the actor’s conduct, and (d)
the burden
of eliminating the risk of harm.
[3]
2003
(2) SA 473 (SCA).
[4]
Ibid
para
7.
[5]
1969
(1) SA 553
(A) at p 559.
[6]
2000
(1) SA 1
(CC) para 63.
[7]
Venter
v Credit Guarantee Corporation
[1996] ZASCA 50
;
1996
(3) SA 966
(A) at p 980.
[8]
1999
(1) SA 982 (SCA).
[9]
Ibid
at p 988 A – D.
[10]
Ibid
at pp
991D – 992D.
[11]
Ibid
at
989 G – J; see also
Viv’s
Tippers v Pha Phama Staff Services
2010
(4) SA 455
(SCA) paras 13 – 18.
[12]
2001
(4) SA 189
(SCA) para 6.
[13]
[
2012]
JOL 28202 (GSJ).
[14]
[2022]
ZASCA 183
(19 December 2022) paras 35 – 37.
[15]
Yannakou
v Apollo Club
1974
(1) SA 614
(A) at p 623 F – H.
[16]
(33737/13) [2018] ZAGPPHC 113 (2 March 2018).
[17]
Ibid
para
54.
[18]
[2006] ZASCA 46;
2006
(4) SA 581 (SCA).
[19]
[2007] ZACC 5; 2007 (5) SA 323 (CC).
[20]
See
inter alia paras 30 & 67.
[21]
[2013] ZAECGHC 47 (23 May 2013) at p 10 of the typed judgment.
[22]
See also
Walker
v Redhouse
[2006]
ZASCA 96
;
2007 (3) SA 514
(SCA), a case where a novice fell off a
horse that bolted on a guest farm after signing an indemnity, the
interpretation of the
indemnity clause and the court finding that
the indemnity was a complete defence to the claim: paras 15, 19 &
20.
[23]
Koen
loc cit
,
fn 16.
[24]
2012
(6) SA 170 (GSJ).
[25]
Ibid
paras
45 & 54.
[26]
Fn 3 above.
[27]
Barkhuizen
v Napier loc cit
paras
28 – 29.
[28]
2002
(6) SA 21 (SCA).
[29]
Ibid
para
18.
[30]
Ibid
para
13, relying on the dictum of Innes HR in
Wells
v South African Alumenite Company
1927
AD 69
at pp 72 - 73.