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[2016] ZAGPPHC 744
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Muller v Lawrence (15279/2015) [2016] ZAGPPHC 744 (24 August 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
24/8/2016
CASE
NO:
15279/2015
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
CHARMAINE
VERONICA
MULLER PLAINTIFF
and
JERMAINE
LAWRENCE
DEFENDANT
JUDGMENT
MALI
J
[1]
The plaintiff is 56 years old and described herself as an adult
female former machine operator residing at No 11 Nahoon Road
Brackendowns, Gauteng. She sues the defendant for damages for the
amount of R750 000.00. The claim for damages arises out of the
injuries sustained by her because of the alleged defendant's breach
of the legal duty to care or the defendant's causal negligence.
[2]
The parties have agreed to a separation of the merits and quantum and
an order had been made to such an effect. The quantum
is postponed
sine die. The matter proceeds on merits with this court being tasked
to make a determination thereon.
[3]
What is common cause between the parties is that the plaintitrs son
and the defendant were engaged to be married and stayed
together. Out
of their relationship a male child was born, the plaintiff being the
grandmother. The engagement was later broken
off and the relationship
terminated approximately on April 2012.
[4]
It is also common cause that the plaintiff, the defendant and the
plaintiff’s son were all co-owners of the immovable
property, a
townhouse where the plaintiff sustained the injuries.
[5]
The plaintiff’s case is that the defendant, as the co-owner of
and in control of the property and as such, had a duty
to maintain
the premises and ensure the safety of visitors. She was supposed to
take all reasonable steps to avoid incidents which
could cause
visitors, in particular the plaintiff, any harm.
[6]
With regards to the above, the defendant is alleged to have failed to
comply with the duty to maintain the premises and as a
result thereof
which the incident occurred, the plaintiff was injured and she
suffered damages.
LAW
[7]
In
Kruger
v Coetzee
[1]
the test for negligence requires of a diligent person, in the
position of the defendant, to have foreseen the risk of harm to
another and to have acted in order to avoid such harm. Furthermore in
Minister
of Safety and Security v Carmichelle
[2]
Harms JA states as follows:
"Negligence
[45] The test for
determining negligence is that enunciated in Kruger v Coetzee:41 (41)
'
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 ..... and
causing him..... loss; and
(ii)
would take
reasonable steps to guard against such occurrence; and
(b)
the defendant
failed to take such steps.'
BUT
'
it should not be
overlooked that in the ultimate analysis the true criterion for
determining negligence is whether in the particular
circumstances the
conduct complained of falls short of the standard of the reasonable
person. Dividing the inquiry into various
stages, however useful, is
no more than an aid or guideline for this resolving this issue.
It is probably so that
there can be no universally applicable formula which will prove to be
appropriate in very case.' 42 (2)
And
'it has been
recognised that, while the precise or exact manner in which the harm
occurs need not be foreseeable, the general manner
of its occurrence
must indeed foreseeable'.
Further
'
In considering this
question [ what was reasonably foreseeable], one must guard against
what Williamson JA called
"
the insidious subconscious
influence of ex post facto knowlege" ( in S v Mini 1963(3) SA
188 (A) at 196E-F). Negligence is
not established by showing merely
that the occurence happened (unless the case is one where res ipsa
loquitur), or by showing after
it happened how it could have been
prevented. The diligens paterfamilias does not have
"
prophetic foresight". (S v Burger (supra at 879 D). ) In
Overseas Tankship (UK) Ltd v Morts Dock
&
Engineering
Co
Ltd ( The Wagon Mound)
[1961] UKPC 1
;
1961 AC 388
(PC) ([1961]
[1961] UKPC 1
;
1 All ER 404)
Viscount Simonds said at 424 (AC) and at 414G- H ( in all ER):
"After the event
, even
a
fool is wise. But it is not hindsight of
a
fool,
it is the foresight of the reasonable man which alone can determine
responsibility." 44 (44)".
[8]
I now turn to inquire whether a reasonable person in the position of
the defendant would have foreseen that a tile could have
caused harm.
EVIDENCE
[9]
The witnesses were the parties themselves and the plaintiff’s
son, Mr Terrence Muller.
[10]
The plaintiff testified that on 22 March 2013, that being a Friday,
she visited the premises and took take care of her grandson
whilst
the defendant was at work. She stayed at the premises over the
weekend. The Sunday morning, 24 March 2013, she walked to
the outside
through the lounge using the sliding door with steps leading down. On
her return she stepped on the top step which
is level with the inside
floor, when a loose tile moved causing her to slip. She fell and got
badly injured in the ribs as a result
of the loose tile. When the
incident took place only the plaintiff's grandson was present and he
assisted her thereafter. The defendant
was not at the premises.
[11]
Under cross examination the plaintiff stated that the tile appeared
intact, she would not have stepped on a tile if it had
been loose.
She admitted that she had used the same steps when she initially went
outside. She stated that the accident occurred
when she was going up
the steps. She further stated that she seldom used the sliding door
leading to the steps and or loose tiles.
On re-examination by her
Counsel she stated that she only saw the loose tile for the first
time when she fell.
[12]
The plaintiff could not explain the reason her clinical notes, which
were discovered by her; stated that she fell on the stairs
into a
water fountain. She did not dispute that it was wet outside and that
she could have fallen because the tiles were slippery
as a result of
her having been outside.
[13]
She further stated that approximately two weeks subsequent to the
incident she visited her grandson. During this visit a friend
of her
grandson slipped and fell on the loose tiles. Her grandson picked up
a few loose tiles and complained to his mother about
the dangerous
situation. The defendant disputed that there was any incident
involving her son after the occurrence with the plaintiff.
[14]
The plaintiff testified that her son went to the premises to take
photographs in 2015 which were tendered as evidence.
[15]
The plaintiff further testified that she had no role to play with
regard to the property albeit she was a co-owner. Subsequent
to the
separation of the defendant with her son neither the plaintiff nor
her son had any role in the control and the administration
of the
property. The plaintiff's co-ownership of the property was as a
result of the plaintiff assisting the defendant and her
son to obtain
a bond over the property. They would otherwise not have been able to
qualify for a mortgage bond on their joint salaries.
The plaintiff
never occupied the property except for visiting her grandson. The
property was sold in April 2015 and the proceeds
were received by the
defendant.
[16]
The plaintiff further stated that she understood her son and the
defendant's terms of separation to include that the defendant
was
responsible for almost everything pertaining to the premises. These
included the bond payment, insurance and maintenance of
the property,
as a result she would have exclusive control of the property and
would be entitled to any profit made on the sale
of the property.
[17]
However under cross examination she did not proffer any reasons why,
on her injury questionnaire, she said she fell down the
stairs of her
son's house. Furthermore, under cross examination she submitted that
when she signed the documents of the property
she was under the
impression that she was signing surety documents. She only knew about
her co-ownership of the property when the
house was sold. The
plaintiff's version is an attempt to distance herself from the shared
responsibility of taking care of the
premises.
[18]
Mr Terrence Muller, the plaintiff's son collaborated his mother's
evidence. He stated that on the day he took photographs he
removed
the loose tile from its position, where it was neatly placed, in
order to take photographs. He insisted on the defendant's
role to
take care of the maintenance of the house because of the oral
agreement amongst them.
[19]
The defendant's testimony is that she was not aware of any loose
tile. The steps used by the plaintiff were used on regular
basis
without any incident and that there has not been other incidents in
the house. The said averment was never disputed by the
plaintiff. She
further stated that there was no agreement of maintenance and sole
responsibility for the property amongst her,
the plaintiff and the
latter's son.
[20]
The defendant's denial that there was such an oral agreement is
supported by the undertaking given by all three owners on 26
May
2015, almost three years post incident, to the purchaser. The
undertaking made by the three of them was for the repair of certain
items that the new owner identified. Amongst the said items there was
no mention of any tiles.
[21]
The defendant further testified that the plaintiff, as the co-owner
of the property in that capacity, was under similar obligations
to
that of the defendant. Furthermore the plaintiff was familiar with
the property as she was a regular visitor and should have
been aware
of any faults. The plaintiff therefore should have avoided the
incident and she acted negligently for not avoiding it.
Be that as it
may as stated above that the plaintiff on her own version fell on a
tile which showed no signs of being loose.
[22]
Under cross examination the defendant stated that the proceeds of the
house approximately between R150 000 and R200 000 were
ceded to her.
This is because the proceeds were in exchange for the appliances her
former fiancee took. Furthermore the said arrangement
was made in
order not to disrupt and upset their own son. She also stated that
the house insurance was always under her name even
before their
separation and it only covered the movables. The plaintiff could not
counter the defendant's evidence.
[23]
The defendant further stated that she took control and responsibility
of the maintenance of property without consulting the
other
co-owners. There is nothing much to make out of the defendant's
alleged responsibilities towards the maintenance of the property.
This is not pleaded by the plaintiff in her particulars of claim.
ASSESSMENT
OF THE EVIDENCE
[24]
The plaintiff testified in a coherent and lucid manner, however her
failure to explain the reason she stated that she fell
on a water
fountain and her late explanation of her surety status in the
premises puts her credibility in doubt. The gravamen of
this matter
is the injury caused by the loose tile which she herself testified
appeared intact.
[25]
The above account by the plaintiff is in line with the defendant's
version; which was never disputed by the plaintiff. The
defendant's
version is that she was not aware that there was a loose tile. It is
rather perplexing for the plaintiff to persist
on the defendant's
alleged liability. I do not want to make any speculation about her
claim which appears to have no basis at all.
[26]
Mr Terrence Muller's evidence particularly in respect of the
photographs taken 30 months later, with him admitting to removing
the
tiles is of no assistance at all. His evidence in respect of the co
ownership of the property and the defendant's sole
responsibility for
the maintenance of the property has been countered above
[27]
The defendant was coherent, logical composed and credible. When her
credibility was questioned because of the circumstances
surrounding
her taking the insurance cover, she was honest and did not try to
make up things. For example she admitted that although
she believed
that the three of them had the same responsibilities towards the
maintenance of the property; there were times she
would have acted on
her own accord without consulting the other co-owners.
[28]
The most important concession made by the plaintiff is that the tile
appeared intact and that she would not have stepped in
a loose tile.
It is reasonable probable true that the plaintiff slipped because it
was wet outside as it was raining the night
before. I sympathise with
the plaintiff, no one deserves to be injured in whatsoever manner.
The evidence tendered on behalf of
the plaintiff did not prove that
the defendant was aware of the loose tile. Therefore the legal
requirement of a reasonable man
and foreseeability of harm should not
be expected from the defendant. She could not have been expected to
avoid or repair anything
that was not in her foresight.
[29]
Furthermore on evidence tendered by the defendant; that the sliding
door was used regularly as it was the middle door, in the
event there
was something wrong she would have seen or foreseen it. The defendant
in her testimony also stated that she used to
sit on the same steps
when she was smoking. The same door was used by her young child and
the plaintiff’s son when he came
to visit their son.
[30]
Taking into account the above, I am of the view that the defendant
would not have exposed herself and her child to the danger
by
ignoring the loose tile if there had been one. The undisputed fact
that the defendant sat on the steps on regular basis, should
be seen
as an opportunity for her to notice any kind of harm particularly a
loose tile.
[31]
On the evidence tendered she would not have foreseen any harm because
there was none even at a general level. Regarding the
above even
though the law leans on the general manner of the occurrence of harm,
the law still requires that it must indeed be
reasonably foreseeable.
This requirement is lacking in the present matter.
[32]
On the facts from the evidence tendered I find that there was no
loose tile. Therefore the defendant had no duty to take reasonable
steps to forbid the incident which led to the plaintiffs injury. The
plaintiff has not succeeded to prove the negligence of the
defendant.
The plaintiffs claim must fail.
[33]
In the result I make the following order;
33.1 The plaintiffs claim
is dismissed with costs.
__________________
N.P.
MALI
JUDGE
OF THE HIGH COURT
Counsel
for the Plaintiff:
Adv. J van DER MERWE
Instructed
by:
Markus Moritz Haasbroek Attorneys
Counsel
for the Defendant:
Adv. W W Geyser
Instructed
by:
Savage Jooste & Adams Inc.
Date
of hearing :
26 April 2016
Date
of Judgment:
24 August 2016
[1]
1966 (2) SA 428 (A)
[2]
2004 (3) SA p327
paragraph 45