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[2016] ZAGPPHC 1185
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Viljoen and Another v Cornelius and Others (48446/14) [2016] ZAGPPHC 1185 (27 October 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 48446/14
27/10/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
CHARLINE
VILJOEN
1
st
PLAINTIFF
CHARLINE
VILJOEN
o.b.o.
JACOBUS DANIEL VILJOEN
2
nd
PLAINTIFF
And
DEON
CORNELUIS
1
st
DEFENDANT
SUSANNA
CATHARINA
CORNELUIS
2
nd
DEFENDANT
FIRM-O-SEAL
CC
3
rd
DEFENDANT
JUDGMENT
MALI J
[1]
The plaintiff is a 36 year old married woman. She described herself
as a beautician residing at and working from [...] S. Street,
Ben
Fleur, Witbank. The plaintiff sues the defendants for damages arising
from an incident that took place on 22 March 2014. The
claim for
damages arises out of the injuries sustained by her because of the
alleged defendants' breach of the legal duty of care.
[2]
The plaintiff also instituted a claim on behalf of her minor son, who
was allegedly been bitten by a meerkat as a result of
the defendants'
negligence. On 3 May 2016, at the commencement of the proceedings in
court the plaintiff withdrew the claim on
behalf of her son and
tendered wasted costs.
[3]
The parties have agreed to a separation of the merits and quantum and
an order had been made to that effect. The quantum is
postponed sine
die. The matter proceeds on merits with this court being tasked to
make a determination thereon.
DEFENDANTS
[4]
The first defendant is· a major male business man married to
the second defendant. Both the first and second defendants
are
members of the third defendant.
[5]
Third defendant is a close corporation duly incorporated in
accordance with the company laws of the Republic of South Africa.
The
third defendant owns u Bhetyan-o-Africa Game Lodge & Safari park
("u Bhetyan"). The first and second defendants
manage and
operate u Bhetyan.
COMMON
CAUSE FACTS
[6] On 21 March 2014, the
plaintiff, her husband and their two minor children visited the
premises of the third defendant. The purpose
of the visit was to
attend a couple's boot camp which was held on 22 March 2014. The
activities of the boot camp were mainly to
traverse various
obstacles, which are situated in the obstacle course. The obstacle
course is part of the third's defendant's farm
and premises.
[7]
An incident took place on one of the obstacles and the parties refer
to the obstacle in the papers as a Fufi Slide. The Oxford
online
dictionary and Collins English Dictionary refers to the obstacle as a
Foefie Slide. For ease of reference I will refer to
the obstacle as
Foefie Slide.
The
Oxford online dictionary
[1]
defines Foefie Slide as follows:
"Noun. A rope or
cable with
a
suspended handle or pulley by means of which
one
may slide between two points"
The
Collins English Dictionary
[2]
defines Foefie Slide as follows:
"Noun
-
(South Africa)
a
rope, fixed at an incline, along which
a
person suspended on
a
pulley may traverse
a
space,
especially across
a
river'
[8]
On 22 March 2014 the second defendant was in charge of the boot camp
which involved traversing the obstacles. One of these obstacles
is a
Foefie Slide. From the video presented in court marked exhibit 1 the
Foefie slide appeared to be constructed in such a way
that the
starting point of the obstacle is from a platform erected on the side
of a dam, approximately 10 meters from the ground,
with a rope or
cable extending over the water at a downward gradient.
[9]
The plaintiff got injured whilst participating in the Foefie slide.
According to the plaintiffs particulars of claim the defendants
owed
her a duty of care,
inter alia;
9.1 to inform her of the
inherent dangers of participation in the boot camp;
9.2 to provide properly
trained marshals at each obstacle on the obstacle course to explain
and demonstrate to her what to do and
how to traverse each obstacle;
9.3 to provide safety
equipment for every dangerous obstacle, and in particular for the
Foefie slide a safety harness;
9.4 to ensure that
participants completing the obstacle course were fit and physically
able to complete it, and in particular the
Foefie slide.
[10]
In order for the plaintiff to succeed in her claim she must prove
there was a legal duty on the defendants to:
10.1 inform her of the
inherent dangers of participation in the boot camp;
10.2. provide properly
trained marshals at each obstacle on the obstacle course to explain
and demonstrate to her what to do and
how to traverse each obstacle;
10.3 provide safety
equipment for every dangerous obstacle, and in particular for the
Foefie slide a safety harness;
10.4. ensure that
participants completing the obstacle course were fit and physically
able to complete it, and in particular the
Foefie slide.
[11]
If the duty according to the above terms is established, and the
defendants are found to have negligently breached that duty,
the next
enquiry is whether such negligence caused the plaintiff to suffer
harm, which was reasonably foreseeable or not too remote.
If all
these are established, the defendants' omission would be wrongful and
attract liability.
LAW
[12]
Milner Negligence in Modern Law (1967) at p.230 states:
"The legal duty
[7] This duty is often
referred to as 'the duty of care' (which is
a
concept of
English law). I will therefore use the term guardedly, bearing in
mind the remarks of Harms JA (In Telematrix (pty) Ltd
v Advertising
Standards Authority SA
2006 (1) SA 461
(SCA) para 14.) (as he then
was) that to formulate the issue in terms of the concept of 'duty
of
care' may lead one astray. The concept of 'duty of care' comprises
two discrete enquiries. Milner Negligence in Modem Law (1967)
at
p.230 states:
The duty of care
concept in negligence operates at two levels. At one level it is
fact-based, at another it is policy-based. The
fact-based duty of
care forms part of the enquiry whether the defendant's behaviour was
negligent in the circumstances. The whole
enquiry is governed by the
foreseeability test, and 'duty of care' in this sense is a convenient
but dispensable concept. On the
other hand, the policy-based or
notional duty of care is an organic part of the tort; it is basic to
the development and growth
of negligence and determines its scope,
that is to say, the range of relationships and interests protected by
it. Here is
a
concept entirely divorced from foreseeability
and governed by the policy of the law. 'Duty' in this sense is
logically antecedent
to 'duty' in the fact-determined sense. Until
the law acknowledges that
a
particular interest or
relationship is capable in principle of supporting
a
negligence
claim, enquiries
as
to what was reasonably foreseeable are
premature.
"
[8] In Knop v
Johannesburg City Council
1995 (2) SA 1
(A) Botha J
A,
at
27G-I, citing with approval the passage in Milner, said:
"The existence of
the legal duty to prevent loss is
a
conclusion of law
depending on
a
consideration of all the circumstances of the
case. The general nature
of
the enquiry is stated in the
well-known passage in Fleming The Law of
Torts
4th ed at 136,
quoted in the Administateur, Natal case supra at 833 in fine 834A:
In short, recognition
of
a
duty of care is the outcome of
a
value judgment,
that the plaintiffs invaded interest is deemed worthy
of
legal
protection against negligent interference by conduct of the kind
alleged against the defendant. In the decision whether
or
not
there is
a
duty, many factors interplay; the hand of history,
our ideas
of
morals and justice, the convenience of
administering the rule and our social ideas as to where the loss
should fall. Hence, the
incidence and extent of duties
are
liable
to
adjustment in the light
of
the constant shifts and
changes in community attitudes.'
The enquiry
encompasses the application of the general criterion of
reasonableness, having regard
to
the legal convictions
of
the community
as
assessed by the Court..."
The passage in
Fleming's work has undergone
some
modification in the eighth
edition (1992, at p 139) in that the first sentence has been omitted
and the second sentence begins:
"in the decision whether to
recognise
a
duty in
a
given situation but it is the
passage in the fourth
edition which has been twice approved by
the Appellate Division and which has also recently been relied on by
the Full Bench of
the Transvaal Provincial Division in the decision
in Bowley Steels (Ply) Limited v Dalian Engineering (Pfy) Limited
1996 (2) SA 393
(T) at 398G-H
(See also Minister of
Defence v Mkhatswa
[1997] 3 All
SA
376
(W) at 379 ad fin and
380a-c).
Negligence
[9] In Kroger v
Coetzee
1966 (2)
SA
428
(A) at 430E-G the test for negligence
was stated 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 has
failed to take such steps.
...
Where
a
diligens paterfamilias in the position
of
the person
concerned would take any guarding steps at all and, if
so,
what
steps would be reasonable, must always depend upon the particular
circumstances
of
each
case.
No hard and fast basis can
be laid down.'
(see the modification
of this test in Mukheiber v Raath
1999 (3) SA 1065
(SCA) para 31, in
light of subsequent developments).
Causation
[10] It is settled
that establishment of negligence, is not the end of the enquiry, and
liability does not necessarily
follow
for the damages
suffered. For liability
to
arise there must be a causal nexus
between such negligence and the plaintiffs damages. Causation
represents a dual problem on different
levels of enquiry. This
was
authoritatively enunciated in the leading case of Minister of
Police v Skosana
1977 (1) SA 31
(A) at 34F-H and 35A D by Corbett JA
(as he then was):
"Causation in the
law of delict gives rise to two rather distinct problems. The first
is
a
factual
one
and relates to the question whether
the negligent act
or
omission in question caused or materially
contributed to
...
the harm giving rise to the claim. If it
did not, then no legal liability can arise and cadit quaestio. If it
did, then the second
problem becomes relevant, viz whether the
negligent act or omission is linked to the harm sufficient closely or
directly for legal
liability to ensue or whether, as it is said, the
harm is too remote. This basically
a
juridical problem in
which considerations of legal policy may play a part."
(See also Siman
&
Co
(Pty) Ltd v Barclays National Bank
1984 (2) SA 888
(A) at
914C-918A; Tuck Commissioner for Inland Revenue
1988 (3) SA 819
(A)
at 832F-G; and Silver v Premier, Gauteng Provincial Government
1998
(4) SA 569
(14? at 574D-G).
Wrongfulness in delict
[13] The development
of wrongfulness as
a
criterion for determining the boundaries
of delictual liability has its basis and foundation in Minister van
Polisie v Ewels
1975 (3) SA 590
(A). In that
case
the
Appellant Division found that our law had reached the stage of
development were an omission is regarded
as
unlawful when the
circumstances of the case are of
a
nature that the legal
convictions of the community demand that the omission should be
considered wrongful.
[14] As
a
general
proposition, there is constitutional and public law duty on the State
to protect its citizens and the State is liable for
the failure to
perform that duty, unless it can be shown that there is compelling
reason to deviate from that principle (see Minister
of Safety and
Security v Carmichele
2004 (3) SA 305
(SCA) para 43). In Minister of
Safety
and Security v Duivenboden
2002 (6)
SA
431
(SCA)
paras 20 and 21 the Supreme Court of Appeal held that determining
wrongfulness in these matters involves the balancing of
identifiable
norms, which include constitutional norms. An important
constitutional norm that will factor in cases such as these
is the
norm of accountability (see also Olitziki Property Holdings v State
Tender Board and Another
2001 (3) SA 1247
(SCA) para 31). This view
has received the approval of the Constitutional Court in Rail
Commuters Action Group and Others v Transnet
Ltd t/a Metrorail and
Others
[2004] ZACC 20
;
2005 (2)
SA 359
(CC) paras 73-78.
[15]
Generally,
accountability concerns would favour delictual liability but, that is
not always the
case...As
pointed out by Nugent JA in Van
Duivenbonen, para 21, there might be factors that militate against
the imposition of liability,
which would include the availability of
an alternate remedy, the possibility that imposing liability might
undermine the functioning
of the State organ in question, the
convenience of administering
a
rule that liability will be
imposed in these circumstances, the possibility of limitless
liability and whether the plaintiff is
best placed to protect himself
against loss. It is generally only when these concerns are net that
the value may require the recognition
of a legal duty under the
wrongful enquiry.
[16] In the context of
delictual damages, the
test
for determining wrongfulness or
otherwise of an omission to act is
as
restated in Van Eeden v
Minister of Safety and Security (Women's Legal Centre Trust, as
Amicus Curiae)
2003 (1) SA 389
(SCA).
'Our common law
employs the element of wrongfulness (in addition to the requirements
of fault, causation and harm) to determine
liability for delictual
damages caused by an omission. The appropriate test for determining
wrongfulness has been settled in
a
long line of decisions of
this Court. An omission is wrongful if the defendant is under
a
legal duty to act positively to prevent the harm suffered by the
plaintiff. The test is
one
of reasonableness.
A
defendant
is under
a
legal duty to act positively to prevent harm to the
plaintiff if it is reasonable to expect of the defendant to have
taken positive
measures to prevent the harm. The Court determines
whether it is reasonable to have expected of the defendant to have
done
so
by making
a
value judgment based, inter a/ia,
upon its perception of the legal convictions of the community and in
considerations of policy.
The question whether
a
legal duty
exists in
a
particular case is thus
a
conclusion of law
depending on
a
consideration of all the circumstances of the
case and on the interplay of the many factors which have to
be
considered.'
(See also Cape Town
Municipality v Bakkerud
2000 (3) SA 1049
(SCA) paras 14-17; Cape
Metropolitan Council v Graham
2001 (1) SA 1197
(SCA) para
6;
0/itzki
Property Holdings v State Tender Board and Another
2001 (3) SA 1247
(SCA) para (11 J and (31 ]; BOB Bank Ltd v Ries
2002 (2) SA 39
(SCA)
para 13; and Van Duivenboden above, para 16).
[3]
"
[13]
The defendants deny being liable for the Plaintiff's injuries based
on two grounds namely:
13.1 That the defendants
are indemnified against such liability as visitors to the lodge enter
onto the property and participate
in activities at their own risk.
13.2 That in the light of
the above the plaintiff had voluntarily assumed the risk of injury
before traversing the obstacles on
the obstacle course.
[14]
I turn now to inquire whether the defendants ought reasonably and
practically to have prevented harm to the plaintiff, ie whether
it
was reasonable to expect of the defendants to take positive measures
to prevent the harm.
EVIDENCE
[15]
Two witnesses testified in support of the plaintiff's case, that
being the plaintiff and her husband.
PLAINTIFF
[16]
The plaintiff testified that on 21 March 2014 she and her family
drove to the third defendant's lodge. When they arrived at
the
premises of the third defendant they found a sliding gate extended to
the left and was wide open. She stated that there was
a security
guard who told them to drive to the reception area. She further
stated that she did not notice any signs and neither
the guard told
them anything about the notice boards. They were following another
car and they proceeded to drive to the reception
for purposes of
check in. At the reception no one drew their attention to the
disclaimer boards.
[17]
The plaintiff further stated that on the evening of 21 March 2014,
the day of their arrival her son was bitten by a meerkat.
The
plaintiff and her husband drove their son to the hospital to and fro.
They again noticed that the gate was wide open and there
were no
disclaimer boards in place.
[18]
On the morning of 22 March 2014 at about 7h30 to 9h00 the plaintiff
and her husband joined a group of other participants at
the obstacle
course. On their way to the obstacle course they never saw any signs
and they neither saw any disclaimer boards, nor
were they alerted by
anyone to the notice boards. Under cross examination the plaintiff
stated that she only saw the disclaimer
boards on 23 April 2016 when
she visited the farm again with her legal team.
[19]
When the plaintiff and her husband got to the obstacle course they
found the second defendant with other participants as alluded
above.
The second defendant was giving instructions, inter alia that the
couples had to participate together and that they had
to run. They
were told to run outside the obstacle course, two minutes of each.
The second defendant further informed them that
she had forgotten the
indemnity forms at the lodge, as a result the plaintiff and her
husband did not sign indemnity forms.
[20]
Under cross examination the plaintiff stated that there were no risks
explained to them and she neither accepted any risks.
It was put to
her that other participants stated they were grown up and did not
need to sign the forms. She testified that she
was not one of the
people who expressly stated that they were grownups, in that manner
accepting the risks involved.
[21]
The plaintiff stated that the previous evening they were told that
there would be marshals at the obstacle courses who were
the friends
of the son of the second defendant. The role of the said marshals was
to monitor the participants including the plaintiff
and would show
them how to traverse each of the obstacle courses. The plaintiff
stated that she did not sign indemnity forms and
no one explained to
them what the boot camp entailed.
[22]
The plaintiff further stated that there were marshals in the obstacle
course, she noticed that the marshals were there for
fun because they
were focussing on demonstration of push ups. The group including the
plaintiff ultimately traversed the obstacle
courses without any of
the marshals explaining anything to them.
[23]
The plaintiff said that she got into the Foefie slide whilst her
husband was waiting for her on the other side of the dam.
The Foefie
slide is approximately 8 metres above the dam. The plaintiff was not
informed about the depth of the dam. At the time
she was
participating in the Foefie slide there was a marshal who was
standing and not giving her any instructions and there was
another
marshal who was manoeuvring the handle bar to the back. She stated
that in traversing the Foefie slide she climbed on to
the ladder and
held on to the handle bar holding the cable.
[24]
The plaintiff further stated that she dried her hands as her previous
obstacle involved water. She dried her hands in order
to ensure that
she would not encounter any accident and held the ropes of the slide
with her hands. Under cross examination when
she was asked how she
dried her hands she stated that she used the T- shirt she was wearing
at the time as there was no towel provided.
[25]
The plaintiff testified that she then sat and slided her legs over,
when she released herself from the construction her hands
slipped and
fell off the dam. When she fell she went out of her breath and felt
her lower body numb as she could not feel her legs.
She then asked
for assistance from the marshal who was standing around and not
giving her instructions before she asked. The marshal
told her to use
her arms and did not assist her at all.
[26]
Under cross examination it was put to the plaintiff that what
happened to her was the accident as the purpose of not using
the
harness was to fall into the water and swim out. She countered that
the purpose was not to hit rock bottom and surface and
got injured.
In fact she added that when the second defendant gave them
instructions she told them that they should not get hurt
as the
defendants were still waiting for an accreditation. The defendants
could not challenge the evidence relating to accreditation.
[27]
The plaintiff further stated that the only instruction she received
pertaining to the Foefie slide was when the second defendant
had a
briefing with the participants. The second defendant told them to
release the handle bar when they went down. This accords
with the
second defendant's testimony below that she gave the participants a
rough explanation.
[28]
The plaintiff further told the court that her friends called her
husband who came rushing to her assistance. The plaintiffs
husband
helped her to get out of the water. She stated she was badly injured
and a lot of people surrounded her. Counsel for the
plaintiff adduced
photographs wherein the plaintiff identified herself and other people
she knew. She further stated that she was
later taken to the hospital
in Fearie Glen Pretoria where she was treated for her injuries.
MR
JAKOBUS VILJOEN
[29] Mr Viljoen
("Viljoen")
testified that he was the plaintiff's
husband. On 21 March he was driving in a convoy of eight vehicles to
the third defendant's
place. Mr Viljoen's evidence collaborated the
plaintiff's evidence in many respects including the facts that the
gate was wide
open and there was a guard stationed at the gate, as
well as the initial events of the morning of 22 March 2014.
[30]
Viljoen further stated that when they got to the Foefie slide he went
to the other end of the slide to wait for the plaintiff
because it
looked like the plaintiff was not going to make it. He saw her drying
her hands into her T shirt many times before holding
the foefie
cables. There was a marshal standing at the bottom without offering
any assistance to the plaintiff. As she moved forward
towards the
structure she fell down and heard her yelling asking for help. Mr
Viljoen asked the marshal why he was not helping
the plaintiff, the
marshal asked why she did not use her arms.
[31]
Viljoen further stated that he was assisted by other participants to
pull the plaintiff out of the water. The defendants did
not provide
any first aid to the plaintiff, although there were people attending
to her. Of importance is that Viljoen stated that
the first defendant
never attended the obstacle course and as a result he never gave any
demonstration. His testimony is that he
first saw the first defendant
after the plaintiffs incident. Viljoen testified that the first
defendant came rushing in his motor
vehicle bakkie and was clearly
very upset with the second defendant.
[32]
According to Viljoen the first defendant told the second defendant
that he had informed her before that he was going to hurt
people.
According to Viljoen the first defendant was speaking in Afrikaans
and told the second defendant that he did not want anything
to do
with the accident. Viljoen's averments were not challenged by the
defendants. Under cross examination Viljoen was adamant
that there
were no disclaimer signs and neither notice boards displayed on both
dates they were at uBhetyan for the boot camp.
[33]
Viljoen further stated that he and the plaintiff did not state they
were grownups as a result acquiescing to the risk. He said
that in
the event he had seen the boards on the day of the event he would
still have instituted a claim if he was hurt because
he was not
alerted to the dangers of the obstacle courses.
[34]
Viljoen further opined that if the defendants provided the
participants with harness in particular the plaintiff would not
have
fallen free into the water and that resulting to her injuries. Under
cross examination Viljoen stated they were not informed
that the
purpose of traversing the Foefie slide was to fall into the water.
DEFENDANT'S
EVIDENCE
[35]
The defendants called five (5) witnesses to testify on their behalf;
the first defendant Mr Deon Cornelius, Mr Brian Ludickt
Ms Esme
Spires the second defendant ,Ms Susan Cornelius and Ms Pinky Madinoge
Modila.
MR
DEON CORNELIUS
[36]
The first defendant testified that on 21 March 2014 the gate was
closed and the notices were prominent and visible on the day
in
question. The warning signs were put up sometime in 2009 and others
were placed in 2012. The first defendant provided invoices
of the
suppliers of the signboards. The first defendant also provided the
court with photographs depicting visible and prominent
disclaimer and
warning signs. With respect invoices do not prove in any manner that
the notice boards and disclaimer boards were
in the premises when the
incident occurred.
[37]
Under cross examination the first defendant stated that he did not
alert the plaintiff and her husband of the notice boards
and he did
not know whether anyone alerted them about the sign boards. He
further testified that he only deals with the demonstrations
of the
Foefie slide and that the second defendant attends to the
demonstration of other obstacles.
[38]
The first defendant testified that some of the marshals were employed
by the defendants and others were from the Middleburg
Gym. He further
stated that he did not know how many marshals were in attendance. He
also mentioned one Hanno and Zonya. He conceded
that he did not know
the extent of both their training. In fact he stated that Hanna's
specialisation was in feeding animals and
nature reserve related
work. Zonya did not have any experience and she was in the
defendants' business for six months training.
MR
BRIAN LUDICK
[39]
Brian Ludick ("Ludick") testified that he works at Glencore
Mine, in Mpumalanga and from 21 to 22 March 2014 he attended
the
defendants' boot camp. He attended with his wife, mother and
stepfather. He further stated that he knew the first and second
defendant because he met them earlier when he visited the third
defendant's farm with his wife on 14 February 2014.
[40]
Ludick stated that he saw the disclaimer boards on both days. He said
there was a board in the gate entrance as well as in
the parking area
and also at the bottom obstacle course there were two boards. He
described the boards as orange boards with notices,
similar to the
boards identified by the first and second defendants during their
evidence in chief.
[41]
Ludick further stated that the notice board situated at the gate in
the position showed in the photographs would not be that
clear. The
photographs depict the gate in a sliding open position towards the
left. He testified that on 22 March 2014 the second
defendant told
all the participants including the plaintiff and her husband that she
had forgotten to bring with the indemnity
forms and wanted to go and
fetch them. According to him all the people told the second defendant
that they were grownups, there
was no need to fetch the forms. The
second defendant then said
"you are there on your own risk".
Under cross examination he conceded that he did not see and
neither heard the plaintiff stating that she was a grown up and there
was no need to sign the indemnity forms.
[42]
Ludick testified that the second defendant gave demonstrations to the
whole group. When it was his turn in the Foefie slide
there was a
Marshal on top who gave him proper instructions. He further stated
that he was the fifth or sixth person to traverse
the Foefie slide
and he did not follow the procedure, he just jumped off and got
injured. He considers the injury to be at his
own risk because he was
properly instructed. Ludick further stated that he saw the plaintiff
falling from the Foefie slide as she
had a grip of the rope with one
hand and slipped out and fell.
MS ESME SPIRES
[43]
Esme Spires ("Spires") testified that she is a personal
trainer and the manager at the gym in Middleburg and that
she employs
personal trainers. She said that she was aware of the obstacle
courses at the third defendant's place as she normally
utilises them
with the gym group.
[44]
Spires further testified that there are notice or disclaimer boards
at the entrance of the lodge (third defendant). On the
day in
question she was a first aider and the marshal and there were also
two other gentlemen who were marshalling with her. There
were
approximately 12 marshals on the day and her employees are
professional personal trainers. They are used to the obstacles
and
they never experienced any problems.
[45]
Spires stated that she did not see the plaintiff falling, however she
assisted her with first aid when she got injured. She
put a splint
and the bandage on her knee as she could not band the knee. Under
cross examination she could not take it further
when she was
challenged that she did not put any bandage to the plaintiff.
SUSANNA
CATHARINA CORNELUIS (Second Defendant)
[46]
The second defendant testified that on 21 March 2014 the gate was
closed as it is the practise. On 22 March she informed the
participants including the plaintiff that she accidentally forgot the
indemnity forms. They told her that they were grownups, however
under
cross examination she conceded that she never heard the plaintiff
stating that there was no need for indemnity forms because
she was a
grownup. Furthermore she did not corroborate Ludick's averments that
she told the participants that they were there on
their own risk. It
should have been very important for her to remember what she said in
particular as it concerns her defence.
[47]
According to the second defendant she roughly explained to the
participants how the obstacles worked and the first defendant
conducted the demonstrations and thereafter the first defendant went
back to the lodge. She said she stated that
"no wet hands".
She further stated that there were 12 Marshalls on the day in
question and that Spires was in charge of the marshals. She said that
there is no specific training required for the marshals to assist the
participants in traversing the courses. The functions of
the marshals
were to assist if they were asked questions by the participants. The
second defendant stated that the marshals were
not employees of the
third defendant.
[48]
The second defendant told the court that she is familiar with the
Foefie slide and it is not a difficult course because participants
are instructed beforehand and that there is no special training
required. This is despite the fact that in the defendants' pleading
it is stated that capable employees were there. She further stated
that Hanno who was a salaried student doing a year practice
with them
who is now in Namibia was at the Foefie slide giving instructions.
When pressed by the plaintiff's counsel under cross
examination about
what she meant about capable employees in the event there is no
special training required she could not take
her statement further.
MS PINKY MADINOGE MODILA
[49] The defendants
further called Pinky Madinoge Modila
(“Pinky”).
She
stated that she works for the defendants. Amongst her duties she
tends to the bar, work with school groups and teambuilding,
handling
stock and helping at the rooms. She stated that she resides at the
third defendant's premises next to the tent camp. She
attends to the
obstacle course once a week for cleaning. She testified that there
are two visible signboards at the entrance of
the obstacle course.
She said she found the signboards erected when she commenced working
with the defendants in 2013.
[50]
Pinky further stated that the plaintiff and her husband were booked
in the tent camp. They then requested to change the rooms
and they
were moved to room 6. She personally directed them to the tent camp
and the two disclaimer boards were prominently displayed
in
outstanding places. Under cross examination Pinky admitted that there
is more than one opening leading to the tent camp and
or obstacle
course. The other opening is covered by tall grass.
ASSESSMENT
OF
EVIDENCE
[51]
The plaintiff and her husband were impressive witnesses who were
honest, straightforward and not opportunistic. For example
the
plaintiff's husband admitted that the plaintiff did not ask before
getting to the Foefie slide. Be that as it may it does not
relieve
the defendants of the duty of giving her proper instructions and
care.
[52]
The defendants called 5 (five witnesses) some contradicted each other
on material aspects. This is despite the fact that the
second
defendant was sitting in court when the first defendant testified.
The second defendant's listening to the first defendant's
evidence
did not assist things much in their case.
[53]
The defendant's defence that the plaintiff was expected to have seen
the notice boards as they are prominent and visible at
the gate is
unacceptable. The gate is a sliding gate, a fact not disputed by the
defendants. In the event the gate is left open
the notices are not
visible because they are fixed on the sliding part of the gate. In
fact this was confirmed by Ludick, defendants'
witness. Furthermore
Pinky's evidence that there was an extra opening or pathway which
could have been covered by tall grass makes
it possible that that the
plaintiff and her husband could not have noticed the disclaimer
boards in the obstacle course.
[54]
The defendants could not deny that the plaintiff and her family was
driving in a convoy. In fact the defendants admit that
the plaintiff
was part of the group that came for the boot camp. It is probable
that they were following another car driving through
a wide open
gate. The first and the second defendant's testimony in respect of
the fact that the gate is always closed and that
there is always
personnel at the gate to open for the visitors is not supported by
evidence. The defendants did not call the guard
who was supposedly
manning the gate on 21 March 2014 to testify.
[55]
In the absence of the evidence by the defendants that the gate was
closed resulting to the visibility of notice boards to the
plaintiffs, I am bound to accept the plaintiff's evidence.
[56]
Furthermore in respect of the defence of the disclaimer and notice
boards the Counsel for the plaintiff contended that the
defendants
did not plead the defence of disclaimers which were contained in the
notice boards. It is trite that pleadings must
be read as a whole.
Counsel for the defendant insisted that it is pleaded at paragraph 11
of the third's defendant's plea. Paragraph
11 reads:
“
Visitors to the
lodge enter onto the property and participate in activities at their
own risk and
are
specifically
informed that the owner
of
the
property and presenters of activities do not accept liability for any
loss or injury"
[57]
The defendants could not explain what they meant by specifically
informing the plaintiff of the non- acceptance of liability.
Regarding the defendants' insistence that the participants were
specifically informed; I cannot accept this contention as the first
and second defendants did not tender any evidence in this regard.
[58]
The testimony of the second defendant that the plaintiff admitted to
the incident being her own fault is a fabrication. It
is not even
corroborated by Ludick who happened to hear some of the things said
by the second defendant; for example he heard her
saying that the
participants were there at their own risk, but did not hear her
saying "
no wet hands".
[59]
The defendants applied for an inspection
in loco
in order to
prove that the notice boards were at the defendants premises and
prominently visible. I did not grant the application
as I could not
see how the inspection would assist the court in determining whether
the notice boards were visible or were even
there on 21 and 22 March
2014.
[60]
The defendants' evidence that the purpose of the Foefie slide would
be defeated, in the event the plaintiff was provided with
harnesses,
as the traversing is meant for the, participant to fall into the
water contradicts the defendants' testimony that the
plaintiff was
given proper instructions and demonstrations by the first defendant
and or marshals on how to traverse the slide.
If it was intended for
the participants to fall there would have been no need for the
alleged diligent demonstrations by the first
defendant.
[61]
Counsel for the defendants, Mr Greef submitted that the plaintiff had
knowledge of the existence of disclaimer boards in places
of such
nature as game reserves and amusement parks. In this regard the
Counsel referred to the case of
Durban's
Water Wonderland (PTV) LTD v Ingrid Botha and another
[4]
wherein
the appellant conceded that she was aware that there were notices of
the kind in question at amusement parks.
[62]
In the present matter the facts are distinguishable from Durban
Water. In Durban Water the appellant conceded to the knowledge
of
signs in amusement parks. The appellant and her child had been flung
from one of the amusement amenities. Their claims were
based on the
cause of action arising from the amusement park. The plaintiff in
casu
did not concede to the knowledge of existence of
disclaimer and
notice
boards at obstacle courses.
[63]
The plaintiff was at the third defendant's premises to attend the
boot camp It is common cause that the boot camp consisted
of
traversing the obstacle courses. In respect of the Foefie slide where
she got injured everything depended on the proper and
clear
instructions by the defendants as well as the presence of trained
marshals or capable personnel in the words of the defendants.
[64]
By the defendant's own testimony though not accepted the plaintiff
was given demonstration to traverse the slide. As alluded
above the
defendants have contradicted each other on who gave the instructions
to the plaintiff. Their witness Mr Ludick was adamant
that there were
no demonstrations by the second defendant. The plaintiff admitted
knowing about the signs in places like Kruger
National Park. It need
not be said again that although the defendants run a game farm, the
plaintiff was not there for game viewing,
her knowledge of the signs
in games reserves is irrelevant.
[65]
Furthermore I am satisfied that the plaintiff and her husband had
proven that the first defendant was never in the Foefie slide
to
conduct demonstrations. The defendants admitted that the Foefie slide
is a dangerous obstacle and the first defendant was supposed
to be
the one in charge of the Foefie slide. This is exacerbated by the
defendants' failure to put positive measures regarding
the safety of
the plaintiff. By the first defendant's own admission marshals with
no adequate training and those who lacked training
were in charge of
the obstacle courses.
[66]
Having regard to the above the first and second defendants foresaw
the danger although they acted negligently at their own
peril. This
is inferred from the second defendant's evidence that she did rough
demonstrations. The impact of rough demonstrations
in a foreseeable
dangerous environment should be tantamount to negligence. It has been
proven overwhelmingly that the first defendant
never attended to the
Foefie slide when the plaintiff commenced traversing it. The first
defendant's omission to attend to the
demonstrations of the Fufi
slide and his failure to be at the Foefie slide when it mattered
should be more the reason to show that
the defendants breached the
duty of care.
[67] Furthermore there
are lot of disparities in the evidence of defendants witnesses, for
example Ludick testified that during
the briefing in respect of the
indemnity forms; the second defendant told all the participants that
"You are there on your own risk".
The second
defendant did not mention anything in this regard. This is very
strange because the defendant's case is based on the
plaintiff having
voluntarily accepted the risks. Ludick's statement is a mere
fabrication to protect the defendants.
[68]
Neither Ludick nor the first defendant corroborated the second
defendant on her instructions
"no wet hands".
This
should be very important for the defendants considering that their
defence is a largely a blame upon the plaintiff for having
used wet
hands when she participated in the slides. Furthermore the second
defendant's testimony that there was a towel placed
on top of the
Foefie slide is not corroborated by Ludick and neither the first
defendant who was supposedly on top of the slide.
There was no towel,
I believe that the plaintiff wiped her hands with her clothing.
[69]
I find that Spires lied when she said that she assisted the plaintiff
with first aid by putting splints and bandages. The first
defendant
stated that marshals were employees of the third defendant and the
second defendant' evidence in corroboration of Spires
is in total
contradiction. The second defendant and Spires testified the marshals
were not employees of the third defendant. That
proves that there
were no responsible marshals at all .The concocted version of the
presence of responsible marshals who were there
to assist is a mere
fabrication. This is intended to persuade the court that things were
run in a professional manner. I believe
the plaintiff's version that
the so called marshals were people who were just there for fun, who
did not know their responsibilities
if they had any at all.
[70]
In conclusion upon enquiry on facts, I find that the defendants had a
legal duty towards the plaintiff and they breached their
legal duty.
The defendants neglected to take the steps to ensure that the
plaintiff was given demonstration to traverse the Foefie
slide, they
did not provide trained marshals and there was no equipment at hand
to assist plaintiff and that the defendants failed
to take
preventative steps. The defendants' negligence led to the injuries
sustained by the plaintiff on 22 March 2014.
[71]
The duty of the defendants to act positively with respect to
their failure to assist the plaintiff with traversing the obstacle
fully knowing its dangers, in my view accords with the legal
convictions of the community and there are no considerations of
public
policy militating against the imposition of such duty.
ORDER
[72]
In the result I make the following order;
72.1 The defendant is
liable in full for the plaintiff's proven or agreed damages
consequent upon the injuries the plaintiff sustained
during the
incident in question.
72.2 The defendants are
ordered to pay the plaintiff's costs, jointly, or severally the
paying the other to be absolved.
72.3 The plaintiff is
ordered to pay wasted costs of the defendants in respect of her claim
on behalf of her minor son.
72.4 The determination of
the plaintiff's quantum of damages is postponed
sine die.
----------------------------------
NP
MALI
JUDGE
OF THE HIGH COURT
Counsel
for the Applicant: Adv. T.P. KRUGER
Instructed
by: MARAIS SASSON INC
Counsel
for the Respondent: Adv. J. J. GREEF
Instructed
by: KEMP DE BEER & GOOSEN
Date
of Hearing: 09 May 2016
Date
of Judgment: 27 October 2016
[1]
https://en.oxforddictionaries.com/definition/foefie_slide
[2]
http://www.collinsdictionary.com/dictionary/english/foefie-slide
[3]
Ramushi v Min of Safety and Security (6895/2002) [2012] ZAGPPHC 175
paragraph 7, 8, 9,
10,
12, 13, 14, 15, 16
[4]
117/98 SCA at page 16