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[2008] ZASCA 32
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Abrahams v Springbok Atlas Company (Pty) Ltd (137/07) [2008] ZASCA 32 (28 March 2008)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Not Reportable
C
ASE
NO: 137/07
In
the matter between:
M
ABRAHAMS ... APPELLANT
versus
SPRINGBOK
ATLAS COMPANY (PTY) LTD
...
RESPONDENT
____________________________________________________________________________________
CORAM: NAVSA JA and HURT, KGOMO
AJJA
Date of hearing: 21 FEBRUARY 2008
Date of delivery: 28 MARCH 2008
Summary: Claim for personal injury â negligence â
fittings in bus â absolution from
the instance.
Neutral
citation: M Abrahams v Springbok Atlas (137/2007)
[2008] ZASCA 32
(28 March 2008)
____________________________________________________________________________________
JUDGMENT
____________________________________________________________________________________
HURT
AJA
[1] On the morning of Friday 14 May 1999, a group of pupils from
Wynberg School, Cape Town, were being conveyed to Port Elizabeth
in a
bus owned by the respondent, Springbok Atlas Co. (Pty) Ltd. While the
bus was travelling along the N2 freeway in the vicinity
of
Riversdale, one of the passengers, Riyadh van der Westhuizen, fell
out of the bus through the window of a toilet which was situated
at
the rear of the bus. The bus was travelling at a speed of about 80
kph at the time of this incident and, not surprisingly, Riyadh
sustained a number of injuries as a result of his fall. He was 14
years old at the time. It is common cause that he suffered amnesia,
presumably as a result of injuries to the head and he was, and still
is, unable to describe how he happened to fall through the toilet
window which was fitted into a seal and was not designed to be
opened.
[2] Almost 3 years after the event, Riyadh's mother, Mrs M Abrahams,
instituted action against the Road Accident Fund (which she
cited as
the first defendant) and the respondent (as second defendant) for
damages arising out of the injuries sustained by Riyadh.
The claim
against the first defendant was settled and the trial proceeded in
the Cape Provincial Division before Allie J with the
respondent as
the only defendant. At the outset of the trial, counsel agreed that
the court would be asked to rule separately on
the issue of liability
and an order to this effect was made in accordance with Rule 33 (4).
After hearing the evidence, Allie J ruled
that the plaintiff had
failed to discharge the onus of proving negligence on the part of the
defendant and made an order absolving
the defendant from the
instance. There was an application for leave to appeal which was
refused by Allie J. The present appeal is
before us with the leave of
this court. I will refer to the parties by their designations in the
court a quo.
[3] In her particulars of claim, the plaintiff had pleaded that
Riyadh's fall and the injuries consequently sustained by him were
the
result of negligent conduct on the part of the servants of the
defendant in one or more of the following respects: --
'
(a) the driver of the bus
suddenly caused the bus to lurch forward, thereby causing Riyadh to
fall backwards against the window of
the toilet;
(b) the servants of the
defendant failed to ensure that the window of the toilet was properly
secured and that the bus was generally
in a roadworthy and safe
condition;
(c) the servants of the
defendant, acting within the course and scope of their employment,
failed to ensure that the carpet of the
toilet was properly fitted
and did not cause the door of the toilet to jam against it, thereby
necessitating considerable force to
be used by persons attempting to
open the door from the inside.'
[4] In the course of his opening address at the trial, counsel for
the plaintiff was granted an amendment to the allegation in (c)
by
the substitution of the word 'outside' for the word 'of'. It appears
from the evidence that the misconception relating to the
position of
this carpet may have arisen because statements from the pupils who
observed the events were incorrectly recorded. I am
prepared to
assume that this was so and that the reference in the statements made
about a month after the event to a carpet 'in the
toilet' was the
result of a misunderstanding between the witnesses and the person
taking their statements.
[5] During the course of the trial, the plaintiffâs counsel
abandoned the contention that Riyadh had fallen through the window
because the bus had lurched. The result was that only two grounds of
negligence were relied upon by the plaintiff at the conclusion
of the
evidence, namely the ground in the amended paragraph (b) and that in
(c).
[6] At the time when Riyadh fell out of the bus he was alone in the
toilet and the door was closed. Since he was unable to recollect
what
had happened, the precise sequence of events which culminated in his
fall must be a matter of conjecture. Although it was the
subject of
(sometimes heated) debate in the course of the trial, it was now
conceded, in argument on appeal on behalf of the plaintiff,
that the
most probable sequence of events was that Riyadh found himself unable
to open the toilet door in the ordinary manner and
that he 'attempted
to exert more force against the door by bracing his feet against the
door and his back against the . . . window.
In so doing he was able
to exert sufficient force to cause the window and rubber surround to
dislodge from the frame'.
1
I think this concession was wisely and justifiably made.
[7] Counsel for the plaintiff contended that if it is found on the
evidence that the window collapsed because it was badly fitted
(or
some other defect had rendered it insecure) or that the toilet door
jammed because of the nature of the carpet or the way that
the carpet
was placed, then the plaintiff will have established the negligence
requisite to render the defendant liable for such
damages as the
plaintiff may be able to prove. (I am ignoring, for the purposes of
deciding this appeal, the Third Party Notice in
which the defendant
seeks an apportionment of damages as a result of alleged contributory
negligence on the part of Riyadh.) While
one is inclined to accept
that use of a vehicle such as the bus with an insecurely fitted
window would probably amount to negligence,
there must be substantial
doubt as to whether the mere presence of an ill-fitted or loose
carpet would give rise to an inference
that the bus owner or operator
should have foreseen the possibility that it might cause injury.
2
For the purposes of this judgment, however, I am prepared to assume,
in the plaintiff's favour, that proof of either of these allegations
would constitute a
prima facie
case of negligence. As already
indicated, Allie J absolved the defendant from the instance after
hearing both parties' evidence.
She did so on the basis that the
evidence of the plaintiff's witnesses to the effect that the window
was insecurely fitted and that
the toilet door had become jammed
against the carpet was not sufficiently convincing to discharge the
onus upon the plaintiff. It
is this finding, in particular, which is
challenged on appeal.
[8] In the course of argument before us, counsel for the plaintiff
narrowed the issues still further by conceding that if the operation
of the toilet door was hampered by one of the pupils outside the
toilet interfering with, or manipulating, the door handle so as
to
make it difficult to open from inside the toilet, then the
plaintiff's claim must fail.
[9] Four of the witnesses called by the plaintiff were Riyadh's
fellow pupils who were in the bus at the time of the unfortunate
occurrence. In keeping with other complicating factors arising out of
the delay in bringing this matter before court, this evidence
required to be viewed through a benign eye. They were testifying
about a sudden and horrifying sequence of events which had taken
place over a very short period some six years previously. They were
all about 14 years old at the time of the occurrence and the
temptation to indulge in reconstructive analysis, at least during the
remainder of their journey to Port Elizabeth and on their return
to
school in the following week, must plainly have been irresistible.
They had made statements to the police about a month after
the event.
They were not prepared to concede that those statements had been
taken down entirely accurately by the policemen concerned,
although,
by and large, they were inclined to the view (a perfectly
understandable one) that their memory of events after the lapse
of a
month would be more reliable than it was at the time of entering the
witness-box. A further complication was that there had
been no steps
taken, either at the time of the unfortunate occurrence or within a
reasonable time thereafter, to carry out an inspection
of the bus as
a whole or the toilet door and window in particular. This occurred
although it must have been apparent from very shortly
after the event
that the question of responsibility for it would ultimately become
important. As a consequence of there having been
no drawings, data or
photographs depicting the scene and the layout of the relevant items,
the witnesses had no tangible points of
reference to which they could
relate their descriptions of the scene, and the court was left to try
to estimate or imagine such crucial
matters as the dimensions and
location of various items and features. Counsel for the plaintiff
urged us to have regard to these
factors and view the various
contradictions between the witness' respective versions more as
corroboration that there had been no
collusion between them to put up
a falsified version, than as a source of doubt as to the reliability
of their evidence. Although
there is substance in the suggestion,
sight must not be lost of the fact that the presiding judge made an
explicit finding as to
the credibility of these four witnesses and
this finding must be accorded its customary weight on appeal unless
we can conclude,
on the contents of the record alone, that it was
misguided.
[10] Because of its crucial nature, it will be convenient to deal
with the evidence given by each of these four eyewitnesses
separately.
[11]
Kyle Nash
told the court that he had been sitting at the
back of the bus, in the last row of seats, with two companions. They
were looking out
of the rear window. He suddenly saw 'something blue'
rolling on the road surface and recognized it as a school tracksuit.
He then
realised that one of the pupils had fallen out of the bus. It
was only when, a second or two later, someone opened the toilet door
and saw that the toilet was empty and the window was missing, that it
was realised that it was Riyadh who had fallen out. A number
of
pupils alighted from the bus to go and see whether they could assist
Riyadh but they were instructed to resume their seats. When
he went
back to his seat, Kyle opened the toilet door. He found the door ajar
but difficult to open because it was catching on the
carpet, or
carpets, outside the toilet.
3
He said he had inspected the opening where the window had been and,
around the rim of the frame, he had seen what he took to be blue
putty, with a slightly wet appearance as if it had been newly
installed. There were small fragments of glass stuck in it. He
mentioned
that earlier in the day he had specially noticed that the
window was vibrating violently and making a 'rattling noise'.
Kyle had not been looking in the direction of the toilet door at the
time Riyadh must have entered it, nor at the time when Riyadh
fell
out. But he had, a short time before this, seen his friend, Chad
Riffle approach the door and he noticed that Chad had had to
apply
force, using two hands, to overcome the resistance by the carpet and
open the door sufficiently to enter the toilet.
He was asked in cross-examination to describe the carpet and his
answers were somewhat vague. It was put to him that the toilet floor
was separated from the aisle by a 'lip' or 'ridge' which formed the
bottom of the door frame. It was suggested that this was about
5 cm
high, so that the bottom of the door would have been 5 cm above the
floor level. On this basis it was suggested that the carpet
could
hardly have caused the door to stick, but that, if this was
happening, it could very simply be remedied by pulling the carpet
flat, away from the ridge. His answers to these suggestions were
unsatisfactorily vague, and the impression that was left was that
he
accepted them as valid. Be that as it may, there seems to be no
particular reason why Kyle's vagueness in relation to the carpet
should count against him as a credibility factor. I do have the
impression from his evidence about the window, however, that he was
making an effort to link his observations of the window frame to a
suggestion that the window must have recently been replaced (and
might therefore be suspect from a safety point of view).
[12]
Justin Smit
was sitting on the left side of the aisle,
one or two rows in front of where the toilet was situated. He was
kneeling on his seat,
facing the rear of the bus and talking to his
companions who were seated toward the rear. He saw Riyadh enter the
toilet. A short
while after Riyadh had entered and shut the door
behind him, Justin saw the door open and close briefly. He ascribed
this to Riyadh
'battling to open the door'. He indicated that the
door had not opened more than about 5 to 10 cm. He turned his gaze
from the toilet
door to talk to his companion in the rear seat and
the next thing he knew was that the alarm went up because Riyadh had
fallen out
of the bus. He said he had gone into the toilet a short
while before Riyadh and had had to use force to pull the door open.
He had
to 'jerk' the door three times to get it open wide enough to
slide through the gap. The door was not as difficult to close as to
open, but it nevertheless had to be ' yanked' to close it properly.
In order to get out of the toilet he had found it necessary to
'
shoulder barge' the door. He ascribed these difficulties to the
carpet which was outside the toilet door, placed loose on top of
the
' runner carpet' that ran the length of the aisle. He estimated that
this carpet was between 5 and 8 cm thick. From the moment
he had
entered the toilet he had noticed that the window was rattling and
'looked dodgy'. He said the rattling noise was so loud
'you couldn't
even hear the engine of the bus' and he could see the glass moving in
its frame as it rattled. He said that no one
had been holding the
door closed while Riyadh was in the toilet and that he hadn't seen
anyone standing at the toilet door when Riyadh
fell. After the
accident, when he and others were sent back into the bus, he had
opened the toilet door and entered the toilet '
to see what had
happened'. He saw Riyadh's ' Walkman' earphones hanging over the rim
of the window frame.
I regret to have to say that this witness' evidence reads poorly on
the record. His versions about where he was facing while Riyadh
was
in the toilet and why he would not have seen anyone standing at the
toilet door
4
were as numerous as they were unconvincing. His description of the
carpet being '5 to 8 cm thick' also seemed to be contrived to
deal
with the point which had risen during the cross-examination of Kyle,
namely that there was a ridge approximately 5 cm high between
the
floor of the bus and the bottom of the toilet door. Finally his
explanation as to why, when he saw Riyadh was struggling to open
the
door, he did not assist him by simply pulling the carpet away from
under the door, was unsatisfactory.
[13]
Mark Raubenheimer
said he could not remember where he had
been sitting before the accident occurred. He had been standing for
some time, facing the
rear of the bus with the toilet door about 10
cm away on his left hand side. He saw Riyadh enter the door and close
it after him.
While Riyadh was still in the toilet with the door
shut, he had opened it a short way and saw Riyadh washing his hands.
He had then
immediately closed the door again. When he heard his
companions screaming that someone had fallen out of the bus, he
opened the toilet
door to find that Riyadh was no longer there.
[14]
Ashley Wells
was sitting in the back row of seats,
looking out through the rear window. He had not observed anything
specific before the accident
but he was one of the first to see
Riyadh rolling along the road surface. He had seen Mark Raubenheimer
standing immediately outside
the toilet door just before Riyadh fell
out. He had also, earlier, seen pupils struggling to open the toilet
door and had noted that
it appeared to be sticking against the carpet
beneath it.
[15] There appears to me to be a decisive feature in this evidence,
which is not dependent on issues of credibility. It relates to
the
operation of the toilet door on a number of occasions both before and
after the accident. It will be noted that the door was
opened at
least ten and possibly eleven times around the time when the accident
occurred.
5
It is also accepted that the door was fully shut at the moment when
Riyadh fell out of the window. Two questions must be asked:
(a) Why would the door have proved to be impossible to move, even to
create a small gap, on the one occasion when Riyadh found it
necessary to brace himself against the window to try to get it open?
(b) Why did Riyadh not adopt the simple and obvious procedure of
calling for assistance?
If one accepts the pupils' denial that anyone was holding the door
handle closed from the outside, the picture which emerges is a
confused and illogical one indeed. In my view it is so confused that
the inference must be drawn that this aspect of the evidence
was
probably not accurate. On the one hand there is a version which is
shrouded by irrationality, on the other, the simple proposition
that
the pupils were playing pranks on each other by trapping each other
in the toilet, clears the mists of uncertainty and affords
one a
rational explanation for everything that happened. I may say that
this rationality is not adversely affected by the circumstance
that
each of the witnesses was probably lying when he denied that the door
was being held. They had every reason to lie about this.
First, the
person holding the door and probably his companions who were enjoying
the joke with him would obviously have been in serious
trouble if
this had been disclosed to anyone. The person concerned would also
have been liable in delict to Riyadh. Those who observed
but did not
participate in the prank would, in all probability have been sworn to
secrecy or have voluntarily decided to protect
their fellows. I do
not think that judicial nescience goes so far as to preclude me from
observing that such pacts are by no means
uncommon amongst school
pupils and perhaps a very common feature of rugby teams travelling on
tour together. Furthermore, it is common
cause that, at some stage
earlier in the morning, when the bus had been stopped at a service
station, the driver had found it necessary
to walk down the aisle to
the back of the bus and admonish the pupils seated there for their
unruly behavior. I must reluctantly
conclude that the most reasonable
and probable inference
6
which must be drawn from the various accounts given by the witnesses
is that when Riyadh tried to leave the toilet some one was holding
the door closed from the outside. The defendant called a Mr Bell as
an expert witness, who testified that the toilet door catch was
so
constructed that if a person held the handle from outside the toilet
door it could not be opened from the inside. This adds credence
to my
conclusion.
[16] As far as the allegations about the ill-fitting window were
concerned, it will suffice to say that the defendant's witnesses
testified that the 'wet putty' material observed by Kyle Nash was a
waterproofing seal that was applied to the outside of all the
windows
and that there was nothing sinister about its presence in the window
frame. The vague suspicions voiced by Kyle Nash and
Ashley Wells
about the rattling of the window were also explained by the fact that
the engine of the bus was situate at the rear
of the bus and
immediately below the toilet. It was denied by the defendant's
witnesses that the window could possibly have been
'rattling' at all,
given that it was housed in a rubber lining. There was nothing in the
allegations or denials in this connection
to which the court could
refer for the purposes of deciding where the truth lay on this
aspect, save its views on the performance
of the pupils as witnesses.
[17] In the result, the evidence tendered on the whole for the
plaintiff fell far short of proving any of the grounds of negligence
on which the plaintiff relied. The order for absolution from the
instance made in the court a quo was accordingly correct.
[18] The appeal is dismissed with costs.
__________________
N V HURT
JUDGE OF APPEAL
CONCUR: ) NAVSA JA
) KGOMO AJA
1
I
quote from plaintiff's counsel's Heads of Argument.
2
Kruger
v Coetzee
1966 (2) SA 428
(A) at p 430 E to F
3
He
said: 'The door itself got jammed there was a carpet situated
outside the door that had a rubber lining around it and it had
carpet on top of it in the middle and that when opening the door
towards you, [it] would get jammed and you had to have quite a
big
heave to open this door to be able to fit through it.'
4
The
evidence of Mark Raubenheimer, dealt with below, was that he was
actually standing at the door, waiting for Riyadh to come out
when
the accident happened.
5
Twice
by Chad Riffle, twice by Justin Smit (once before and once shortly
after the accident),once by Riyadh to enter the toilet
and
(possibly) once just before he fell out, once by Mark Raubenheimer
(before the accident) and once immediately afterwards and
once by
Kyle Nash shortly afterwards.
6
Govan
v Skidmore
1952 (1) SA 732
(N) at p 734, followed and approved
e.g. in
Kruger v Carlton Paper of SA (Pty)Ltd
2002 (2) SA 335
SCA)
at p 334.