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[2015] ZAGPPHC 379
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M.P and Another v Big Sky Trading 489 CC t/a Mike's Kitchen (5894/2013) [2015] ZAGPPHC 379 (12 June 2015)
SAFLII
Note: Certain personal/private details of parties or witnesses
have been redacted from this document in compliance
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SAFLII
Policy
IN THE GAUTENG
HIGH COURT, PRETORIA
{REPUBLIC OF
SOUTH AFRICA}
CASE NO:
5894/2013
DATE:
12 JUNE 2016
In
the matter between:
M.........
[P……….]
............................................................
First
Plaintiff
W..............
[P………..]
.................................................................
Second
Plaintiff
And
BIG
SKY TRADING 489 CC t/a
MIKE'S
KITCHEN
......................................................
Defendant
JUDGMENT
JANSEN
J
[1] This application
raises the interesting question whether a restaurant has a legal duty
to ensure the safety of children using
a playground area provided by
it for the entertainment of children visiting the restaurant.
[2] At the outset it
should be emphasized that the point was never taken that any of the
playground's equipment at the defendant's
(Big Sky Trading 489 CC t/a
Mike's Kitchen - hereinafter referred to as "Mike's Kitchen)
restaurant posed a danger
per se.
The point taken was that the
restaurant had omitted to take the necessary precautions to prevent
injury to users of the playground
equipment. In the instant
case, an injury was sustained by a 13-year-old boy playing on the
trampoline.
[3]
It was common cause and readily conceded by counsel for the plaintiff
that all the witnesses had been credible and honest.
[4]
The issue to be decided is whether Mike's Kitchen had a legal
duty to prevent injury to the child.
[5]
The first witness who was called was the 13-year-old boy’s
mother who readily conceded that her son was difficult to control,
disobedient in general and only occasionally obeyed his father.
[6]
The mother testified that on the day in question her son begged
her to have a milkshake at Mike's Kitchen
at the Makhado Mall
in Louis Trichardt. It was a Friday afternoon at about 16h30 and they
were going away for the weekend and the
mother still had to do some
shopping and pick up her mother. She left her son at Mike's Kitchen
with money for a milkshake and
was phoned whilst in Pep Store by an
attorney friend, who coincidentally was at Mike's Kitchen, who
informed her that her son had
injured himself on the trampoline.
[7]
The mother testified that she was the first person on the scene at
the trampoline and that her son informed her that he had
hurt his
neck and could not really move. (Contrary evidence was led in that it
was testified that the attorney and waiter were
first at the scene,
but this dispute is irrelevant for purposes of this judgment.)
[8]
It is necessary to emphasise that all possible precautions had been
taken by Mike's Kitchen to render the trampoline safe.
It
had netting all around it. The netting at the top of it was so high,
according to the boy, that even when he jumped as high
as he could
and stretched out his arm, he could barely touch the tip. He added
that the areas between the springs of the trampoline
had been filled
with a soft sponge. Furthermore, there were steps leading up to the
entrance of the netting around the trampoline
with a small entrance
and one had to bend down to gain entrance. Two signs were also
attached to the front of the netting of the
trampoline. One was a
height restriction sign and the other made it clear that the
trampoline could only be used under adult supervision.
By the time
the trial took place the signs had been removed from the trampoline
which had, in any event, been sold and removed
from the playground,
but the holes in the netting for the support of the signage was
still visible in the photographs produced
at the trial.
[9]
The boy suffered a neck injury which required
the insertion of a plate and which resulted
in the boy
never being able to participate in contact sport again
(which he had thoroughly enjoyed before
the
incident). He also had to wear a neck brace for quite a while after
the incident.
[10] During
cross-examination the mother readily conceded that her son did
not fare well at school because he was hyperactive.
She
reiterated that she and her husband could barely control the boy.
Upon questioning as to how Mike's Kitchen was supposed
to do so, she
could not furnish any answer.
[11] The mother
further testified that on occasion they would eat out at Mike's
Kitchen but that the boy's father only allowed
him to
play on the trampoline on isolated occasions. She testified
that the rules regarding the use of the playground were
erected at
the entrance to the playground, on the climbing frames for the
small children and on the netting of the
trampoline. It was put
to the mother that when she and her husband allowed their son to play
on the trampoline (and at the
date of the accident he already
exceeded the height limitation as conceded by her) they, as parents,
intentionally breached the
rules of the playground. She remained
silent for a long time and then admitted that the allegation was
true.
[12] The mother
further admitted that she had no problem that children who were
taller than the height restriction jumped
on the
trampoline. She also admitted that her son had been chased away from
Mike's Kitchen on previous occasions. She
testified that
he had a BMX-bicycle on which he executed all species of
tricks. It bears mention that such tricks are,
of course, as
dangerous as jumping on a trampoline and that children who injure
themselves by falling off bicycles is a common
occurrence. The mother
was questioned regarding her son's habit of riding on his bicycle to
the railing of Mike's Kitchen, jumping
over it and playing on the
trampoline. She was also questioned about her son burning the
netting in the playground with cigarettes.
She professed her
ignorance of these shenanigans, testified to later by the
personnel and owners of Mike's Kitchen.
[13] The mother
also admitted that her son was not a proficient
reader but at least an average reader.
Hence, as at 26
August 2010,
the
date when he injured himself on the trampoline, he would have
been
able to read the signs on the
netting with ease. When
asked
whether, when he turned 14, a few months later, his
comprehension
of the difference between right and wrong had changed in any way, she
answered in the negative. The reason why this
question was asked is
due to the question when a child is
doli
capax.
[1]
However, the court
agrees with Mr Bergenthuin's submission that both the questions of
capacity on the part of a child to commit
a wrong, and the issue of
fault should be considered subjectively. In the case of
Eskom
Holdings Ltd v Hendricks
2005 (5) SA 503
(SCA) at par [15]the
matter of
Weber v Sanlam Versekeringsmaatskappy Bpk
1983 (I)
SA 381 (A) was quoted with approval as was the matter
Jones NO v
Sanlam Bpk1965
(2) SA 542 (A). The court held that the
distinction drawn between on the one hand, the issue of capacity on
the part of a child
to commit a wrong and, on the other, the issue of
fault was accurate. The court further stated the following in this
regard:
"(i)n doing so,
it
declined tofollow a
view
widely
held,
particularly
in academic circles, that there was a need to introduce a
subjective element
into the concept of negligence in the case
of children by requiring no more than a degree
of
care expected of a child of the age and maturity of the one in
question. Instead, the Court
in
Weber held that
thefirst inquiry, ie as to capacity, was subjective, while the
second, ie as to fault, was objective. In other
words, once a
child wasfound to have the necessary
capacity,
[14] The son was
called as the next witness. He
confirmed that his injury occurred at
about 16h30 at Mike's
Kitchen where his mother left him to enjoy a chocolate milkshake
which he had been craving.
its negligence or
otherwise, was to be determined in accordance with the standard of
the
ordinary (adult)
reasonable
person.
"
It
was also hel d in
Eskom supra
at paragraph [16] that the
distinction between girls and boys, the prior being
presumed to lack capacity between the
ages of seven and twelve and
the latter between the ages of seven and fourteen (until the contrary
has been proved) was probabl
y unjustifiable and that the age of
fourteen should be the cut-off point for children of both
sexes.
(It
is also pointed out that distinctions drawn on the basis of gender
are
per se
unconstitutional in terms of the Constitution, in
terms of section 9 of Chapter 2: Bil l of Rights.)
Further in the
Eskom matter reference was made to the
Weber
matter
supra
and the following was stated: -
"Experience
revealed,
Jansen
JA said
(at
400C
-
D)
that
although
childre11
may he
able
to distinguish hetwee11
right a11d wrong,
they will
often
not
he
able
to act
i
11 accordance with
that appreciation; they become
so
engrossed i11
their play that
they become oblivious of other co11sidemtio11s
a11d
acted
impulsively. The teamed judge
accordingly
wamed
t1gai11st
'plllci11g
a11
old
head
011 you11g shoulders'.
(400F-G.
He said a waiter
took him outside to the table closest to the trampoline as it was the
only table which was unoccupied. Whilst waiting
for his milkshake he
jumped on the trampoline and did two backward flips successfully, but
fell on his forehead and his body flipped
over when he tried to do so
for the third time. He said that he had hurt himself severely and
cried out for help, as it was so
painful.
[15]
The son further testified that he went to Mike's Kitchen on a regular
basis and that he often jumped over the railing, or the
part thereof
which was broken, in order to join his friends when they sat close to
the trampoline drinking milkshakes or eating.
He also admitted to
smoking outside the restaurant close to the trampoline but said that
his friends were the ones who jumped on
the trampoline without eating
anything and who burned holes in the netting with cigarettes. He
admitted that he was often chased
from the premises when he tried to
jump on the trampoline
without being a paying customer
of
Mike's Kitchen and that his mother or father was contacted by
somebody in control if he did so. However, he denied being warned
and
reprimanded in general to play on the trampoline.
[16] The son stated
that whilst he was doing backward somersaults and injured himself, he
saw that his milkshake had arrived but
that nobody had called him to
tell him that it was ready. He said that the attorney friend of the
family was one of the first people
on the scene and that he begged
him not to tell his father about the incident because his father, as
he put it colloquially,
would "murder" him.
He testified that he stated this because his father always instructed
him never to try
any tricks on the trampoline because he could hurt
himself. He also said that he never obeyed his father. He said that
"Oom
Jan" (Mr Jan Adriaan Kleynhans, the co-owner of Mike's
Kitchen restaurant) promised him a free milkshake after the incident
and that when he visited Mike's Kitchen later and asked for his free
milkshake, he received it after "Oom Jan" had been
phoned
and informed who was requesting the milkshake.
[17]
Under cross-examination he admitted to doing tricks on his bicycle
but maintained that he could not hurt himself as he
knew what he was
doing. Usually, so he testified, there were two managers and thirteen
waiters available at Mike's Kitchen. He
added that they would check
the playground on occasion and that he had often been chased
away by a certain Ms Christina Maseko,
a co-owner of Mike's Kitchen.
[18] The first
witness to testify for the defendant was Mr Jan Adriaan Kleynhans who
testified that he was a co-owner of the Mike's
Kitchen restaurant at
the Makhado Crossing Shopping Centre. He testified that all waiters
had a duty on a rotational basis to monitor
the playground in order
to check that the children were behaving. He also testified
that at all relevant times there were
two managers on duty at the
restaurant. He confirmed that the requisite playground
rule boards were erected at three
points: the entrance to the
playground; the jungle gym area and on the trampoline's
netting. He emphasised that there
was a height requirement. A line
had also been drawn in the play area in order to assist children to
ascertain whether they exceeded
the height requirement. The firm rule
was that children were only allowed to play under adult superv1s10n.
[19] Mr Kleynhans
said that he knew the father of
the boy as he regularly
repaired his motor
vehicles. On the Friday of the accident he was
in his office,
working, when the
attorney came to tell him that a child had hurt himself
on the trampoline.
He immediately went to the trampoline and
contacted a woman called Maud who operated an emergency service. He
testified that he
and Ms Christina Maseko had, in the past,
discussed the problem of the boy who was often found jumping on the
trampoline on his
own, and asked to leave as a result. Mr Kleynhans
admitted that he never broached the subject with the boy's father as
he was his
friend but that he asked his co-owner or the managers to
chase the child away and to do something about the situation.
[20]
According to him the two managers on duty would each have an
allocated duty - one as front of house manager and the other as
the
back of house manager. He testified that the photographs of the
trampoline produced at the hearing showed the opening to it
closed
and secured with rope which he and Ms Maseko had erected to prevent
entrance to the trampoline. He also testified that there
were only
two occasions when children had hurt themselves on the trampoline
within the eight year period that it had been
erected in the
playground area. One was the boy
and the second incident
occurred shortly after the
boy was injured when a little girl broke her arm.
[21]
Mr Kleynhans further testified that even when the
boy's parents came to eat at Mike's Kitchen with
their son, he
instructed his co owner or the managers that their son was not
to be allowed to play on the trampoline. However,
it was never put to
anybody that this would be his version, a statement with which Mr
Kleynhans agreed. In this regard, his evidence
was therefore less
than satisfactory.
[22] It was put to
Mr Kleynhans that even when he was accompanied by his parents
it was because of the boy's height that he
was not
allowed to jump on the trampoline - a fact which Mr Kleynhans
admitted. He stated that it was impossible for him
to target specific
individual naughty children given the fact that he had four to five
thousand patrons in his restaurant per month.
It was further put to
him that he knew the son's father so well that they even entered into
personal wagers - a fact which he conceded.
He reiterated that he
might not have taken up the
issue with the parents
but that he
discussed it with his co-owners and managers and requested them to
take it up with the parents.
[23]
Mr Kleynhans also emphasised that he was m the restaurant business -
not the child entertainment business and that the playground
was an
adjunct to the restaurant - a means of alleviating parents' stress
and to render an evening more pleasant for parents. He
stated that in
any event the rules pertaining to the playground were prescribed by
his franchise agreement which he followed religiously.
He used the
analogy of a municipal swimming pool - it was a facility provided by
the municipality, but parents were most certainly
not exonerated from
liability by the municipality. They remained liable to monitor their
children.
[24] It was
further put to him that a certain Pieter, who was one of the managers
who was present on the day of the boy's injury,
knew that the boy was
at the premises but did nothing to monitor him. However, this was
countered by the fact that the son ordered
a milkshake and was
therefore a paying client.
[25] Mr
Kleynhans was once again queried as to why he did not inform
the parents of the child's misbehaviour and he
reiterated that he
left that task to his co-owner and managers because the boy's father
was his friend. Although he never expressed
the sentiment, logic
would also dictate that it is difficult for a family friend to
chastise his friend in respect
of a child who is known to be
hyperactive.
[26] Ms Christina
Maseko, the co-owner of Mike's Kitchen, testified
next. Her testimony was that she had
been in the
restaurant business for nineteen years and involved with Mike's
Kitchen for eight years. She confirmed
the placement of the
signs stipulating the playground rules - particularly those on
the trampoline. She stated
that she did not even know what the boy 's
parents looked like and often chased him away when he arrived on his
own. She said
that he never said anything and obeyed her
immediately. She said that he had illegally jumped on the
trampoline without
ordering food or anything to drink on about
at least about ten occasions. She testified that she warned the
managers and staff
against him and that they were duty bound to
follow her instructions and did so as far as she was concerned.
She testified that she was unaware he that he was a
smoker.
[27] Ms Linda
Chihoboya, a waitress at Mike's Kitchen, since 2009, confirmed Mr
Kleynhans' evidence. She was present the day of
the incident. She
also confirmed where the playground signage was displayed. As was the
case with all the other witnesses
she testified that on the
trampoline the larger sign was erected at the top and the smaller
sign below the larger sign.
She was the one
who testified that the boy burnt the netting in
the tunnel and
jungle gym area. She confirmed
that as far as his height was concerned, he was not allowed to play
in the playground area.
She also testified that she
often chased him away.
[28]
The defendant then closed its case.
How
to resolve conflicting
v
ersions:
[29]
The cases setting out the manner in which to deal with conflicting
evidence are
Stellenbosch Farmers Winery Group Ltd v Martell Et
Cie
2003
(1) SA 11
(SCA)
and
Baring Eiendomme Bpk
2001 [l]
All SA 399 (SCA).
The principles set out in these cases are
trite and require no repetition. Applying these rules to the evidence
above, on
the inherent probabilities the signs, as testified by the
plaintiffs, were on full display and the boy knew full well that he
was
not allowed to play on the trampoline, as did his parents.
[30]
In order to establish delictual liability
five factors are to be established:
-
[30.l]
an act or omission;
[30.2]
which is wrongful;
[30.3]
intent or negligence;
[30.4]
a causal connection between the act or omission and injury suffered;
and
[30.5]
actual injury suffered.
U
nlawfulness:
[31] Unlawfulness or
wrongfulness is a requirement for delictual liability. Negligent
conduct giving rise to loss, unless also wrongful,
is not actionable.
In
Gouda Boerdery BK v Transnet
2005 5 SA 490
(SCA) at
paragraph 12 the question of wrongfulness in delict was explained as
follows: -
"
But
the issue of wrongfulness is more often than not uncontentious as the
Plaintiff' s action will be founded
upon conduct which, if held
to be culpable, would be prima facie wrongfuL Typically this is so
where the negligent
conduct
takes the form of a positive act which causes physical harm Where the
element of wrongfulness gains importance is
in relation to liability for
omissions and pure economic loss.
The enquiry as to
wrongfulness will then involve a
determination of the
existence or otherwise of a legal duty owed by the Defendant to the
Plaintiff to act without negligence: in
other words to avoid
negligently causing the Plaintiff harm.
This will be a matter
for judicial judgment involving
criteria
of
reasonableness, policy, and where appropriate,
constitutional norms. If a legal duty is found to have existed, the
next enquiry will be whether the Defendant was
negligent
...
While conceptually the enquiry as to
wrongfulness might be anterior to the enquiry as to negligence, it is
equally so that
without negligence the issue of
wrongfulness does not arise
for conduct will not
be wrongful if there is no negligence. Depending upon
the circumstances
therefore, it
may be
convenient to
assume the existence of a legal duty and consider first the issue of
negligence. It may also be convenient for that
matter, when the issue
of wrongfulness is considered first, to assume for that purpose the
existence of negligence."
[32] The court is
enjoined, objectively, to apply the values of justice, fairness and
reasonableness, taking into consideration
the
bani
mores
which reflect the legal convictions of the community as
seen through the prism of the Constitution. In particular, it is very
important
not to conflate the issues of negligence and wrongfulness,
otherwise it may result in the imposition of liability in
circumstances where it is unwarranted.
[33] Our courts
gingerly accepted the concept that the omission to act could,
in certain circumstances, be wrongful. The courts'
hesitation was due
to the fact that they were loath to create "oewerlose
aanspreeklikheid" , namely liability without
limits.
[34]
In this regard it is interesting to have regard to "playground
rules" to be found in countries throughout the world.
In 1981
the US Consumer Product Safety Commission published the first
Handbook for Public Playground Safety.
The most important
safeguard mentioned in it is adult supervision.
[35] It should
immediately be emphasised that the case law to which the plaintiff
referred the court, relating to abandoned mining
areas etc,2 find no
application in this case, as parents who take their children to a
playground know full well which "dangers"
exist at a
playground in exactly the same way in which they realise that
a child may drown in a swimming pool or in
the sea.
2
Burton
v Real estate Corporation
1903 TH 430
;
Transvaal
and Rhodesian Estates Ltd v Golding
1917 A D
18
;
Farmer v
Robison GM Co Ltd
1917 AD 501.
[36] However, one
cannot have a shift of cultural understanding of acceptable risk to
such an extent that known risk
ultimately becomes
synonymous with hazard.
[37]
Section 28(1)(b) of the Constitution of the Republic of SA, 1996
provides as follows: -
"28 Children
(])
Every child has the right
(a)
(b) to family care
or parental care, or to appropriate alternative care when removed
from thefamily environment;
[38]
The court in
S v M
(CCT 53/06 [2007] ZACC
18
[2007] ZACC 18
; ;
2008 (3) SA 232
(CC)
(26 September 2007) per Justice Sachs held as follows: -
"
the court spelt out thefollowing guidance on the role of
a parent in caringfor child:
-
"Indeed, one
of the purposes of section 28(J)(b) is
to ensure that
parents serve as the most immediate moral exemplars for their
offspring. Their responsibility is
not just to be with
their children and look after their
daily needs. It is
certainly not simply to secure money to
buy the
accoutrements of the consumer society, such as cellphones and
expensive shoes.
It
is to show
their
children how to look problems in the eye. It is
to
provide them with guidance on how to deal with setbacks and
make difficult decisions. Children have
a need and a
right to learn from their primary
caregivers that
individuals make moral choices for which they can be held
accountable."
[39)
Children should be free to play and explore
their environment within acceptable limitations but
always
under adult supervision. Where such supervision is lacking but an
entity or person has taken all reasonable steps to ensure
the safety
of persons in various environments, then such precautions
will suffice to safeguard an entity or person
against any
liability arising from injuries which may occur.
[40]
Given the mother's ready concession that they, as parents, had no
problem in allowing their son to play unsupervised in the
playground,
in the full knowledge that he exceeded the height restriction, no
wrongful conduct can be attributed to
Mike's
Kitchen. The restaurant gave parents more than adequate warning that
parental or adult supervision was required and
what the height
restriction was.
[41] As was ably
argued by Mr Bergenthuin on behalf of the defendant, Mike's Kitchen
could not be saddled with a greater legal duty
than that which the
law imposes on parents. Furthermore, on the day of the accident, the
mother knew full well that her son might
jump on the trampoline.
[42] As argued, Mr
Bergenthuin, there are four basic considerations in each case which
influence the reaction of a reasonable man
in a situation posing a
foreseeable risk of harm to others, namely: -
[42.1]
the degree or extent of the risk created by the actor's conduct;
[42.2]
the gravity of the possible consequences if
the risk of harm materialises;
[42.3] the
utility of the actor's conduct; and
[42.4] the burden
of eliminating the risk of harm.3
[43]
Even had there been an adult standing right next to the trampoline,
nothing could have prevented injury to a child who was
executing
risky tricks. He/she could fall on his neck or head at any moment
and nobody standing close or right next to the
trampoline would
have been in a position to avert such an accident, even had the child
been the correct height and age.
[44]
In consequence, it cannot be stated that there was any legal duty on
the owners and/or employees of Mike's Kitchen to
do more than that
which they had already done. Neither can negligence, a
causal
Ngudane
v South African Transport Services
[1990] ZASCA 148
;
1991 (1) SA 756
AD at
776 H-1;
Pretoria
City Council v De Jager
1979 (2) SA 46 AD at 56 A—C
connection or any comm1ss10n or
om1ss1on on
their part be attributed to
Mike's Kitchen regarding the boy's injury.
Order
In the result, the
action is dismissed, with costs on the scale of a senior advocate.
JANSEN J
JUDGE OF THE HIRE
COURT
For
the Plaintiffs
Advocate JD MARITZ SC and PL UYS
Instructed
by
Gildenhuys, Malatji Inc (Reference: R Venter/01670794)
(012-428 8600)
For
the Defendant
Advocate JG BERGENTHUIN SC
Instructed
by
Van Zyl Le Roux Inc (Reference: MAT31326/MR VAN RENSBURG/EG
(012-435 9444)
[1]
The
age
of
fourteen
is
when
the
boy
would
be
considered
doli
capax.
On
the
date
of
the
incident he was thirteen years and seven months.
The
court agrees that this approach
is
archaic as argued by
Mr
Bergenthuin,
the
defendant's
counsel,
and
that the question
whether
a
child is
doli capax
should be approached subjectively. For purposes of this
judgment, however, this question need not be considered.