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[2016] ZAGPPHC 1036
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Nearhou v Netcare Hospital (Pty) Ltd t/a Netcare Millpark Hospital (40774/2013) [2016] ZAGPPHC 1036 (15 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO
: 40774/2013
DATE
OF JUDGMENT:
15/12/16
Reportable:
No
Of
interest to other judges: No
Revised.
In the matter
between:-
MADELEIN
CHARMAINE
NEARHOU Plaintiff
and
NETCARE HOSPITAL.
(PTY) LTD
tla
NETCARE MILLPARK
HOSPITAL Defendant
JUDGEMENT
KOOVERJIE AJ:
[1] The Plaintiff
instituted an action against the Defendant for the recovery of
damages for injuries sustained by her which was
caused by her falling
over a chain on the Defendant's premises.
[2] The pleadings
reflect the following dispute
2.1. On the 12
th
September 2011 in the parking lot of the
Defendant's premises, the Plaintiff in her particulars of claim,
paragraphs 4.2 and 4.3
thereof alleged that:
"4.2 she fell over a chain which had become affixed which
barred her way and/or
access
to the area, she wished to
proceed from the area she
came
and in the
same
direction
she had originally taken to the cafeteria
....
no chain was
affixed to the post when she accessed the said cafeteria in the first
instance.
4.3 she fell across the chain which caused her to trip and
thereby suffering bodily injuries and more particularly a fracture of
her right tibia
some
5
cm
below the knee."
2.2. The Defendant denied any liability on its part and in its plea,
particularly pleaded in paragraph 5 thereof that:
"5.2 the only chain affixed at all times on the property
was the chain affixed around the parking area of the Trauma Doctors'
unit between the trauma reception and the cafeteria, which was
permanently affixed by welding.
5.3 that the Plaintiff, if she did in fact fall over the chain
as is averred (which averment is denied) deviated from the dedicated
walkway leading patrons from the trauma ICU to the Netcare Coffee
Shop and back.
5.4 that the chain over which the Plaintiff avers to have
fallen was incapable of detachment from the posts as a result of the
chain
being welded to the said posts."
2.3. In the Defendant's request for admissions from the Plaintiff, at
pre-trial stage, the Plaintiff was requested to admit that
there was
a dedicated walkway towards the cafeteria and that she did not
utilise such pathway. The Plaintiff s response thereto
was that she
was unable to admit or deny these facts and moreover she could not
recall as to whether there were other dedicated
pathways.
2.4. When requested to admit that the chain was permanently fixed by
having being welded in place, she also denied this fact.
[3] It
remains common cause that she fell over the chain. The particular
facts which remain in dispute are, where she fell, were
the chains
welded to the posts and whether she followed the same path when she
proceeded to and when she came from the cafeteria?
[4]
The witnesses who testified on the Plaintiff's behalf were the
Plaintiff and her husband. After the Plaintiff closed her case,
the
defence informed this Court of its intention to lodge an application
for absolution from the instance. This Court then directed
time
periods within which such application be brought and requested that
both parties file heads of arguments in this regard.
[5] By
virtue of Rule 39(6) of the Rules of Court, it is settled law that
when absolution from the instance is sought, the test
to be applied
is whether there is evidence upon which a Court, applying its mind
reasonably to such evidence, could or might find
for the Plaintiff.
Counsel for the Plaintiff also referred the Court thereto. Such test
was formulated in
Gascoyne v Paul
&
Hunter
1917 TPD 170
at
p
173
(Gascoyne
matter) and has been approved by the SCA in various
decisions thereafter.
[6] It
is further trite that the power which a Court has to grant absolution
at the close of the Plaintiff's case is a discretionary
one. In
this instance, I refer to
Ardecor (Pty) Ltd v Quality Caterers
(Pty) Ltd
1978 (3) SA 1073
N at 1076 G.
[7]
What the Plaintiff has to establish in order to avert a ruling of
absolution is at least to establish a
prima facie
case. It was
common cause in this matter that the Plaintiff bears the burden of
proof and has to discharge same.
[8]
The test as set out in the
Gascoyne
matter is that this Court
must consider whether there is evidence upon which a reasonable man
might find for the Plaintiff?
[9]
With measured caution, our authorities have also ruled that a
Plaintiff should not be lightly deprived of his remedy without
the
evidence of the Defendant being heard. Hoexter
J
in
Gandy v Makhanya
1974 (4) SA 853
N at 855
held that
when there is doubt the Court should lean on the side of caution and
allow the case to proceed. Counsel for the
Plaintiff also
referred this Court to a further matter where the aforesaid test was
not adopted. In
Gordon Lloyd and Associates v
Riviera
2001
(1) SA 88
SCA at 92 H
- J, Harms J stated that:
"The Court should rather be concerned with its own
judgment and not that of another "reasonable" person or
court."
I am however swayed
by the test formulated in the
Gascoyne
matter, and which test
has been adopted by the SCA and the Constitutional Court.
[10]
The test at this stage is to satisfy itself that no reasonable Court
could draw the inference for which the Plaintiff contends.
In other
words, it does not have to weigh up different possible inferences but
merely determine if one of the reasonable inferences
is in favour of
the Plaintiff. In the aforesaid
Gordon Lloyd
matter the Court
stated:
"This implies that a plaintiff has to make out a prima
facie
case
in the sense that there is evidence relating to all
the elements of the claim to surviv13 absolution because without such
evidence
no court could find for the plaintiff:
...
The
inference relied upon by the plaintiff must be a reasonable one, not
the only reasonable one
......"
[11]
In circumstances such as this matter, a possibility exists where
there is only one Defendant, the Plaintiff has closed her
case, and
the Court has heard all the evidence against the Defendant, any
further evidence that would be forthcoming if the case
continues,
would likely be to the detriment of the Plaintiff. In such an
instance it is not in the interest of justice to allow
the case to
continue if there is no
prima facie
evidence against the
Defendant.
[12] I
have considered both the Plaintiff's as well as her husband's
evidence and I note the relevant portions which have a bearing
on
this matter and which
inter alia
were the following:
12.1. She followed the same path to and from the cafeteria;
12.2. There was no designated pathway to the cafeteria and
furthermore she was not aware of such designated path;
12.3. Her visit to the cafeteria was for approximately 5 minutes. She
had only purchased two cups of coffee.
12.4. When she walked to the cafeteria she did not see any chains in
the path. However, upon her return on the same path she fell
over a
chain. She only noticed after she fell that it was caused by the
chain;
12.5. It was dark at the time and there was insufficient lighting in
the vicinity;
12.6. She could however not deny that the chains were welded to the
posts. At this juncture it must be mentioned that this is in
contradiction to what she had stated in her pleadings. In her
pleadings she denied that the chains were welded to the posts.
[13]
When this Court requested the Plaintiff to demonstrate on the exhibit
(a diagram handed by the Plaintiff's counsel just before
the trial
commenced) to illustrate the path she used and where she fell, she
had done so and the Court took cognisance of the point
marked "X".
[14]
The Plaintiff was also referred to a further diagram appearing in the
discovered bundles, bundle 1 at page 45, where the Plaintiff
confirmed
inter alia
the following that:
·
There
were parking bays 1 to 5 just outside the cafeteria;
·
There
were chains on posts from parking bay 1 to 5;
·
From a
further exhibit shown to her, which was a picture depicting the deck
of the cafeteria, she confirmed that parking bay 1 and
a half of
parking 2 were adjacent to the cafeteria deck and more importantly,
the incident took place in the vicinity of parking
bay 5.
·
In her
explanation as to the path she followed, she testified that she
passed between the tree on the curb and parking bay 5.
[15]
Crucial for consideration was that the Plaintiff was unable to deny
the existence of the yellow notice boards which hung from
the chains
and the fact that the chains were welded. This was the primary
defence of the Defendant as reflected from the pleadings.
[16] In respect of
where she actually had fallen, she conceded "in the parking
lot". The location identified by her was
next to the chains on
parking bay no. 5.
[17]
This Court also took cognisance of Dr Carides' report where he set
out the background related to him by the Plaintiff in respect
of her
fall. He records in his report:
"She described the chain as a permanent fixture which
separates the doctors' parking area from the public parking area."
[18]
When her husband, Mr Nearhou testified, the following was noted by
this Court, namely:
18.1. He did not witness the path his wife walked to the cafeteria;
18.2. He also did not witness how she fell;
18.3. However, when he was alerted of her fall, he found her in
excruciating pain on the ground in the parking lot;
18.4. Moreover, he was aware that the chains were always in front of
trauma doctors' parking bay. He could do so since he was a
paramedic
in his professional capacity and he often frequented the said
hospital.
18.5. He further did not deny that the chains were welded to the
posts;
18.6. In respect of the lighting he testified that there had been a
flood light erected in the area but it had not been in working
order
for a while.
[19]
In exercising my discretion I must consider whether there is evidence
upon which a reasonable Court might find for the Plaintiff.
As
alluded to above, the evidence presented on the Plaintiff's part,
does not suffice as evidence which I can find in the Plaintiff's
favour for
inter alia
the following reasons:
19.1. The chains were permanently welded and this fact was not denied
nor was it successfully challenged by the Plaintiff.
19.2. The chains were always existent between parking bays 1 to 5
according to the Plaintiff's husband's testimony.
19.3. The Plaintiff fell in the vicinity of parking bay 5.
19.4. It could not be that within a period of 5 minutes the chain was
drawn across the posts in the Plaintiff's pathway.
19.5. The Plaintiff was not aware of her full surroundings. She
noticed the curb, the tree and even the yellow signs hanging from
the
chains. Having regard to her evidence this could be expected of her
as at the time she was concerned and pre-occupied about
her husband's
condition who was in casualty the emergency ward at the time.
19.6. The Plaintiff's husband confirmed that the chains were always
there and that he found his wife lying in the parking lot where
the
doctors park.
19.7. He also could not deny that the chains were welded to the
posts.
[20] In order to
determine whether an inference of negligence can be drawn from the
evidence, the Court has to draw such an inference
from the objective
facts or proven facts before it.
[21] In
Carmichele
v Minister of Safety and Security
&
Another
[2001] ZACC 22
;
2001 (4) SA 938
CC
at para 79 the Court
held:
"An order for absolution from the instance is an
appropriate order to make at the end of the plaintiff's case where a
court
applying its mind reasonably to the evidence could not or might
not find for the plaintiff. The underlying reason is that it is
ordinarily in the interest of justice to bring the litigation to an
end in such circumstances."
[22]
In this instance I find that the Plaintiff has failed to establish a
prima facie
case against the Defendant. All the Plaintiff was
required to do was to draw one reasonable inference of negligence. I
have difficulty
in finding for the Plaintiff when applying my mind
reasonably to the evidence before me. Therefore, I consider that it
is not in
the interest of justice to allow the matter to continue
before this Court.
[23] In the
premises, I make the following order:
1. The Defendant is granted absolution from the instance; and
2. the Plaintiff is ordered to pay the Defendant's costs of suit
arising from this action.
________________
H
KOOVERJIE AJ
ACTING
JUDGE OF THE
GAUTENG
DIVISION
APPEARANCES:
For
Plaintiff:
Mr K M Röntgen
Instructed
by:
Röntgen
&
Röntgen
For
Defendant:
Adv W
J
Bezuidenhout
Instructed
by:
Van Stade van Ende