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2015
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[2015] ZAKZDHC 63
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Clarke v Mervelee Investments (Pty) Ltd (8986/2011) [2015] ZAKZDHC 63 (31 July 2015)
IN
THE HIGH COURT OF SOUTH AFRICA,
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 8986/2011
DATE:
31 JULY 2015
In
the matter between:
GERALD
ADRIAN
CLARKE
............................................................................................
PLAINTIFF
And
MERVELEE
INVESTMENTS (PTY)
LTD
...................................................................
DEFENDANT
ORDER
(1)
The injuries sustained by the plaintiff
were caused by the negligent conduct of both the defendant and the
plaintiff.
(2)
The negligence of the parties is assessed
at 60% - 40% in favour of the plaintiff.
(3)
Defendant is ordered to pay the costs of
the action.
JUDGMENT
SISHI
J
[1]
The plaintiff, a 60 year old retired male, allegedly fell through a
gap in the boundary wall at the north-western corner of
the second
floor parking area of the Glenwood Village shopping centre and fell
approximately ten meters to the ground below, sustaining
injuries as
a result of the fall.
[2]
The defendant Mervelee Investments (Pty) Ltd, a property owning
company, owns and runs the shopping centre and parking area
known as
Glenwood Village in Moore Road, Durban, KwaZulu-Natal where the
incident occurred.
[3]
This action arises because on 13 March 2010, at approximately 12
noon, Mr Clarke fell and injured himself as aforesaid. He attributes
his fall to the negligence on the part of the defendant, Marvelle
Investments (Pty) Ltd, the owner of the building, principally
in
failing to ensure that the boundary wall situate at its premises was
in such a condition that no person could fall through the
gap.
[4]
Mervelee Investments denies negligence and in the alternative pleads
contributory negligence on the part of the plaintiff.
[5]
At the commencement of the trial, the Court granted an application
for the separation of the issues of liability and quantum.
The
matter proceeded on the issue of liability, with the issue of quantum
to stand over for later determination.
[6]
On behalf of the plaintiff, the court heard the evidence of Mr Clarke
and his wife Mrs Marlien Clarke, Kervin Robert Lewis,
the Managing
Director of the Security company which guarded the building at the
time; Christopher Mxolisi Mbombo, a handy man employed
at the centre
residing in the building. On behalf of the defendant, Charlien
Dukes-Heads who was the centre manager at the
relevant time; Nichol
Strydom, a hair dresser, working at the Saloon at the same centre;
Joseph Ziko Rukangika, a Congolee citizen
who was a car guard at the
center at the time.
[7]
The Court was furnished with two sets of photographs, depicting
various relevant areas of the complex.
[8]
The ground floor of the building mainly consists of the shops and the
first floor of the building also consists of a few shops
plus a
parking area. The second floor of the building consists of a
parking area only.
[9]
The gap where Mr Clarke is alleged to have fallen from is on the
north-westerly direction of the second floor of the building,
near
the exit ramp. The building itself is situated at the corner of
Moore Road and Hunt Road in Durban.
[10]
Access to the second floor of the parking area is gained through a
Moore Road entrance, and the exit ramp from the second floor
is on
Hunt Road.
[11]
The difficulty with this case is that the Court has been asked to
draw inferences on whether the plaintiff fell from the upper
level of
the exit ramp at the upper western level floor and landed on the
ground floor of the enclosed area.
[12]
The plaintiff himself does not remember how he fell and landed
on the ground floor of that section of the building. There
were no
eye witnesses to the incident. All that the plaintiff remembers
was when he left his home together with his wife
and a pet, driving
to the shopping centre. His wife was driving the car.
[13]
The following facts are either common cause or not disputed by the
parties.
[13.1]
That Mr Clarke was admitted to hospital after the incident;
[13.2]
That Mr Clarke had no recollection of the events immediately leading
up to the incident, which have given rise to the
claim.
[13.3]
That as at the date of the incident (13 March 2010) a gap existed in
the north-western corner of the fencing/boarding
at or about the
edge/corner concerned of the upper level parking exit (to and in
order to proceed down the ramp towards Hunt road)
above the height of
approximately 500 to 600 mm from standing level (as is more readily
apparent in photograph No.1 of the plaintiff’s
photographs made
available to the defendant and taking on or about 19 March 2010).
[13.4]
That the aforesaid gap was approximately 450mm wide, i.e. between
boarding placed above metal rail fencing.
[13.5]
That at the later stage the said gap was filled by new railing placed
above the existing (bottom railing) so as to
close the gap.
[13.6]
The roofing above the upper level parking was asbestos based at the
time.
[13.7]
Evidence has established that it was very hot at the upper parking
level during the time of the incidence.
[13.8]
The plaintiff was discovered at the ground level in an enclosed
service area immediately adjacent and below the aforesaid
gap in the
fencing concerned.
[13.9]
Access to the said service area in the normal course of events at the
time would be by way of a locked gate thereto.
[13.10] The said
service area was enclosed and the public did not have accessed
thereto.
[13.11]
Total height from the floor/standing level of and at the ramp
concerned near the gap mentioned (immediately after the gap)
i.e. to
the top of the boarding above railing was a total of 1.2 metres high.
[13.12]
The drop from the standing level of the north-western corner of the
ramp leading down from the upper level parking at the
centre
concerned to the ground level of the service area mentioned above is
approximately 7 to 8 metres.
[13.13] That the
plaintiff had reduced visual ability as a result of pre-existing
glaucoma.
[13.14]
That at the relevant time no CCTV footage of the relevant areas
concerning the incident was available to the defendant.
[13.15]
That there was no history whatsoever of the plaintiff having suffered
epileptic fits or blackouts prior to the incident
giving rise to the
claim.
[13.16]
Persons including staff tenants and members of the public utilise the
area in the vicinity of the aforesaid gap.
[13.17]
That there was no restriction of movement of pedestrians to this
area.
[13.18]
That the aforesaid gap was only closed after the incident giving rise
to this claim.
[13.19] That as a
result of the incident, the plaintiff suffered the following bodily
injuries:
(a)
a head injury including a laceration into the back of the head;
(b)
a fracture of the right Tibia fabula
(c)
a fracture of his right heel;
(d)
a fracture of his ring figure;
(e)
lacerations to his back.
The
Issues
[14]
The following issues remain to be determined by this Court:
(a)
The circumstances under which the plaintiff sustained his injuries;
(b)
Whether there was any negligence on the part of the defendant;
(c)
Contributory negligence.
Plaintiff’s
cause of action
[15]
The plaintiff’s cause of action is set out as follows in the
particulars of claim
[1]
:
“
The sole
cause of the fall was the negligence of the defendant, who was
negligent in one or more of the following respect: -
(a)
It omitted to ensure that the boundary wall
situate at its premises was in such a condition that no person could
fall through the
gap.
(b)
It ought to have realised that the gap in
the said boundary wall was a hazard of such a nature that it exposed
persons using the
parking area at the shopping centre to potential
danger.
(c)
It omitted to ensure, as a reasonable
prudent property-owner would have done, that no person could fall
through the said gap in
the wall and fall to the ground, as a result
of which they could injure themselves.
(d)
It failed to warn, adequately or at all, or
ensure that the public at the shopping centre concerned were aware of
the existence
of a gap from approximately knee height in the
perimeter fencing of the upper level parking of the centre concerned.
(e)
It failed to inspect, timeously, adequately
or at all, the premises concerned to identify potential sources of
danger so as to eliminate
such from, in particular, areas to which
the public would normally have access.
(f)
It failed to avoid the incident when by the
exercise of reasonable care and skill it could and should have done
so.”
[16]
As indicated above, the defendant has denied any negligence on its
part.
Circumstances
under which the plaintiff sustained his injuries
[17]
As indicated above, the plaintiff himself has no recollection as to
how he fell and sustained the injuries in question. Furthermore,
there is no direct evidence of witnesses who witnessed how the
plaintiff landed up on the ground floor of the secured area.
The Court therefore has to rely on circumstantial evidence as to how
the plaintiff fell and sustained the injuries.
[18]
In the absence of direct evidence to prove factual issues, courts are
entitled to use inferential reasoning normally referred
to as
circumstantial evidence.
[19]
Although all evidence requires the trier of fact to engage in
inferential reasoning
[2]
, all
circumstantial evidence ultimately depends upon the facts which are
proved by direct evidence.
[20]
Direct evidence generally concerns the assertion of a fact by a
person who claims to have perceived it which his or her own
senses.
[3]
[21]
In P J Schwikkard and SC Van der Merwe;
Principles
of Evidence
,
3
ed
[4]
the following appears on circumstantial evidence:
“
Circumstantial
evidence often forms an important component of the information
furnished to the court. In these circumstances, the
court is required
to draw inferences, because the witnesses have made no direct
assertions with regard to the facts in issue.
These inferences
must comply with certain rules of logic.”
[22]
Circumstantial evidence is described as follows in CWH Schmidt:
Bewysreg 4
ed
[5]
:
“
Omstandigheidsgetuienis
is getuienis van ‘n feit of feite waaruit ‘n afleiding
ontrent die primere feite in geskil gemaak
kan word.”
The
passages above were cited with approval in
Burger
v S
[6]
.
[23]
In
Goliath
v MEC for Health, Eastern Cape
[7]
,
a surgical swab was left in Ms Goliath’s abdomen during a
hysterectomy performed at a provincial hospital falling under
the
MEC. It resulted in infection and further surgery was required
to remove the swap. Ms Goliath sued the MEC
in delict,
alleging negligence on the part of the doctors and nursing staff that
performed the hysterectomy. The High Court
dismissed the claim
despite the fact that the MEC did not adduce any evidence.
[24]
In holding that Ms Goliath failed to discharge the onus of
establishing negligence, the High Court pointed out that it was
precluded by precedent from applying the
res ipsa loquitur
doctrine in the medical/negligence field. The decision of the
High Court was reversed on appeal, the SCA holding as follows:
”
Thus
at the close of Ms Goliath’s case, after both she and Dr Muller
had testified, there was sufficient evidence which gave
rise to an
inference of negligence on the part of one or more of the medical
staff in the employ of the MEC who attended to her.
In that
regard it is important to bear in mind that in a civil case it is not
necessary for a plaintiff to prove that the inference
that she asks
the court to draw is the only reasonable inference; it suffices for
her to convince the court that the inference
that she advocates is
the most readily apparent and acceptable inference from a number of
possible inferences
(AA
Onderlinge Assuransie Associasie Bpk v De Beer
[8]
;
see also Cooper and Another NNO v Merchant Trade Finance Ltd
[9]
.
That being so, the MEC, in failing to adduce any evidence whatsoever,
accordingly took the risk of a judgment being given against
him. …”
(at para 19).
[25]
Counsel for the plaintiff, Mr
Frost
submitted that the Court should infer from the following
circumstances that the plaintiff fell from the gap on the upper level
of the parking area to the ground floor.
[26]
The plaintiff was found on the ground floor and immediately below the
gap referred to in the perimeter fencing.
[27]
Evidence established that access to the service area was only by way
of a locked gate and that members of the public had no
access
thereto.
[28]
Evidence led established that, a key was used to unlock the gate to
access the service area.
[29]
The plaintiff‘s injuries from his oral testimony and exhibit
“D1” the Entabeni Hospital casualty document,
are
consistent with a fall from the upper level of the parking area to
the ground floor of the service area.
[30]
Blood was found in the service area immediately below the gap of the
perimeter fencing.
[31]
It was common cause that the plaintiff was seen going to the north
westerly corner of the upper level of the parking close
to the gap.
[32]
It is evident from the evidence of both the plaintiff’s wife
and Mr Mbombo that not much time elapsed between the plaintiff’s
wife going to the area and the discovery of the plaintiff by Mr
Mbombo.
[33]
Mr Mbombo testified that the plaintiff’s dog was seen going
down the exit ramp and turning to the left towards the service
area
as Mr Mbombo said “to find the owner”.
[34]
Counsel for the plaintiff submitted that this indicated that the
separation between the dog and its owner occurred not long
ago since
the dog was seen going down the exit ramp.
[35]
No one saw the plaintiff going down the exit ramp.
[36]
The evidence of Kevin Robert Brewis who was at the time Managing
Director for the security company guarding the building and
Charlene
Dukes-Heads who was the Manageress at the relevant time in the
Glenwood Shopping Centre, established that the centre was
quiet on
the commission of crimes during the day. Furthermore, there
were security guards guarding the area during the day.
[37]
Counsel for the plaintiff submitted that robbery as a possible cause
for the plaintiff to have gone down should be excluded,
because no
possessions were taken from the plaintiff, no blood or blood trails
was seen at the corner of the upper level, no person
was seen leaving
the area. He then submitted that from the nature of the
injuries sustained, as set out above, it is clear
that he fell on the
back of his head and assault could be totally excluded. The
absence of blood trails in the area of the
upper level of the parking
as opposed to the blood found on the ground floor tells a story.
[38]
Evidence established that no report was made to the security
controller on the day of the incident. The possibility of
blood
being cleaned up on the upper level of the parking was not likely.
[39]
Furthermore, there was no indication that the plaintiff was somebody
prone to committing suicide.
[40]
Counsel for the plaintiff submitted, correctly in my view, that the
evidence of Mr Strydom, the hair dresser should be rejected.
His evidence was that the plaintiff Mr Clarke, was sitting on top of
the board of the perimeter fence, holding his dog with two
hands,
most probably his feet were hanging because of the length of the
wall, which is highly improbable. Mr Strydom also
contradicted
himself as he showed two different positions wherein the plaintiff,
Mr Clarke was seated on top of the perimeter fencing
in photographs
“C1” and “C2”. In photograph
“C1”, he pointed at the position on
the extreme right of
the photograph. In photograph “C2”, he pointed at
the position on the extreme left of the
photograph.
Furthermore, Mr Strydom conceded that his opportunity for observation
was limited as he had gone to the upper
floor only to fetch the
towels to be used in the salon where he works, on the first floor.
[41]
If Mr Strydom’s evidence that the plaintiff was seated on top
of the perimeter fence is correct, that would have been
pleaded by
the defendant.
[42]
In paragraph 5.1 of the defendant’s plea, it is pleaded that
the sole cause of the fall, was due to the plaintiff’s
own
negligence in that he,
inter alia
,
failed to keep a proper look out for the alleged gap in the boundary
wall when by exercise of reasonable care he could and should
have
done so.
[43]
There is no positive allegation in the defendant’s plea that
the plaintiff was seated on top of the boundary wall immediately
before he fell down.
[44]
What can further be elicited from this plea, from the phrase ‘the
sole cause of the fall was due to …’ is
that the
defendant seems to have accepted that the plaintiff fell from the
boundary wall.
[45]
In any event, Mr Strydom was not a credible witness in that besides
these contradictions, it was inherently improbable that
the plaintiff
would have been seating in the position referred to above on the
evidence of Mr Strydom. Furthermore, he was
hesitant in
answering questions and questions had to be repeated before he
answered.
[46]
Counsel for the defendant, Mr Bedderson on the other hand, submitted
that it is not known how the accident occurred, the plaintiff
is
merely speculating. He advanced a number of possibilities,
namely, that the plaintiff might have tripped on an uneven
surface,
the possibility that he might have tripped and fell whilst he was
chasing his dog. All these possibilities do not
make the
defendant liable.
[47]
He submitted that the evidence of Mr Strydom should be accepted,
although he was not a model of clarity. I have no hesitation
in
rejecting Mr Strydom’s evidence as unreliable.
[48]
In applying the legal principles enunciated in the cases referred to
above to the facts of this case, and possibilities referred
to above,
there is no need for the mind and conscience of an ordinary man
[10]
to resort to conjecture or guessing as to the probable causes of the
plaintiff’s injuries
[11]
.
On the contrary, the plaintiff’s injuries at the back of his
head are consistent with the fall on his back from the
upper level of
the parking area. See
Motor
Vehicle Assurance Fund v Dubuzane
[12]
,
it surfices for the plaintiff to convince the court that the
inference that he advocates is the most readily apparent and
acceptable
inference from a number of possible inferences.
[49]
I am satisfied that the inference that plaintiff fell from the gap on
the perimeter fence of the upper level of the parking
area in the
said shopping mall, to the ground surface is the most plausible
inference which can be drawn from the facts of this
particular case.
Negligence
[50]
The classic test for negligence was articulated by Holmes JA in
Kruger v Coetzee
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 failed to take such steps.
…
Whether
a
diligens
patermalias
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” Hence the futility, in general,
of
seeking guidance from the facts and results of the other cases.”
[13]
[51]
This test has been applied in a number of subsequent cases by our
courts including the Supreme Court of Appeal.
[14]
[52]
The next issue is whether Mr Clarke’s fall was due to the
negligence on the part of Mervelee Investments (Pty) Ltd, the
defendant.
[53]
In
Herschel
v Mrupe
[15]
,
the Court elaborated on the test for negligence and Van Den Heever JA
had the following to say:
“
The
concept of the
bonus paterfamilias
is not of a timorous, faintheart always in trepidation lest he or
others suffer some injury; on the contrary, he ventures out into
the
world, engages in affairs and takes reasonable chances. He takes
reasonable precautions to protect his person and property
and expects
others to do likewise.”
[54]
On the element of foreseeability, Scott JA expressed himself as
follows in
Sea
Harvest Corporation (Pty) Ltd and Another v Duncan Dock Cold Storage
(Pty) Ltd and Anothe
r:
[16]
“
It
is probably so that there can be no universally applicable formula
which will prove to be appropriate in every case…
Notwithstanding the wide nature of the inquiry postulated in
paragraph (a)(i) of Holmes JA formula – and which has earned
the tag of the absolute or abstract theory of negligence – this
Court has both prior and subsequent to the decision in
Kruger
v Coetzee
acknowledged the need for
various limitations to the broadness of the enquiry where the
circumstances have demanded. For
example, it has been
recognised that, where the precise and exact manner in which the harm
occurs need not be foreseeable, the
general manner of its occurrence
must indeed be reasonably foreseeable”
[55]
This passage was cited with approval in
Imvula
Quality Protection (Pty) Ltd v Loureiro and Others
[17]
.
[56]
In
Kruger v Coetzee, supra
,
the Court held that the standard of care that is required of the
defendant will be determined by the circumstances of each particular
case.
[57]
It is trite law that negligence alone is not sufficient to give rise
to liability for an omission: The omission must be wrongful
as well.
In
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
[18]
Brand
JA stated:
“
When
we say that a particular omission or conduct causing pure economic
loss is “wrongful”, we mean that public or legal
policy
considerations require that such conduct, if negligent, is
actionable; that legal liability for the resulting damages should
follow. Conversely, when we say that negligent conduct causing
pure economic loss or consisting of an omission is not wrongful,
we
intend to convey that public or legal policy considerations determine
that there should be no liability; that the potential
defendant
should not be subjected to a claim for damages; his or her negligence
notwithstanding. In such event, the question
of fault does not
even arise. The defendant enjoys ammunity against liability for
such conduct, whether the negligent or
not.”
This
passage was cited with approval in
Chartaprops
16 (Pty) Ltd and Another v Silberman
[19]
.
[58]
Turning to the facts of the instant case, this Court is required to
determine whether a reasonable person in the defendant’s
position would have foreseen the reasonable possibility that the gap
at the north western part of the defendant’s parking
area
presented a danger to such person or persons using the area next to
the gap such that a person could pass through the gap
and drop to the
ground on the concrete floor and, having so realised, failed to close
the gap.
[59]
Counsel for the plaintiff submitted that the defendant failed the
test of negligence as set out in
Kruger
v Coetzee and Herschel v Mrupe, supra
,
in that, it failed to close the gap in the North Western part of the
shopping centre on the upper floor, which presented a danger
to the
users of the area and more in particular the plaintiff.
[60]
Mr
Frost
for the plaintiff also referred to
Swinburne
v Newbee Investments (Pty) Ltd
[20]
where Wallis J held that the owner of the property is ordinarily
liable to ensure that the property does not present undue hazards
to
persons who may enter upon and use the property. In other
words, it is the owner’s legal duty to ensure that the
premises
are safe for those who use them. That is so whether one is
dealing with trespassers, invitees or others who may
have a right to
enter upon the property such as tenants
[21]
.
[61]
Ordinary members of the public and also staff members utilise the
area in the vicinity of this gap. There is no restriction
of
movement of pedestrians around this area. There is no notification to
pedestrians of the existing danger.
[62]
It is common cause that this gap was only closed after the incident.
That moved the defendant to ensure that there was no particular
danger presented.
[63]
Counsel for the plaintiff submitted that the gap was the cause of the
plaintiff’s fall and that the defendant had a legal
duty to
close that gap so as to protect all the users of the area.
[64]
Mr
Bedderson
for the defendant also referred to the test for negligence enunciated
in both
Kruger v Coetzee and Herschel v
Mrupe, supra
, and submitted that it was
incumbent upon the plaintiff to prove the requirements as sent out in
these cases. He also submitted
that the onus of proof never
shifts.
[65]
Counsel for the defendant also referred to
Broom
and Another v The Administrator, Natal
[22]
,
wherein
the test for negligence as set out in
Herschel
v Mrupe, supra
,
was cited with approval at 515 H - 516 A.
[66]
Counsel for the defendant submitted that the gap referred to by
Counsel for the plaintiff was never the cause of the accident
as
suggested by the plaintiff. He referred to the evidence of
Charlene Dukes-Heads and Mr Mbambo who both testified that
during
tenure of office, an incident of this nature never occurred in the
centre.
[67]
Counsel for the defendant submitted that the plaintiff should have
foreseen that that gap may cause him harm. He further
submitted
that although Mr Strydom was not a model of clarity in his evidence,
he testified that he saw plaintiff seated on the
rail, holding his
dog like a baby and that the Court cannot find that he was lying.
[68]
I have already referred to the evidence of Mr Strydom earlier on in
this judgment. He, however, submitted that if the
plaintiff was
sitting on the edge of the fence, he was completely negligent and
contributed towards his injuries.
[69]
The defendant was aware that the area next to the gap was used by
staff, pedestrians and ordinary members of the public.
Evidence
also established that pedestrians also used the area of the exit
ramp.
[70]
The proximate cause of the injuries is that the plaintiff fell
because the perimeter fencing was inadequate as a result of
the gap.
[71]
As indicated above, it is highly unlikely that he was sitting on top
of the fence and fell through. He must have fallen
through the
gap. There was therefore causal negligence present in this case.
[72]
In my view, there was a negligent failure on the part of the
defendant, to ensure that the gap on the perimeter fencing referred
to above was closed and was reasonably safe for users of the area.
In this instance, the test is that of a
diligens
paterfamilias
who would foresee the
possibility of his conduct leading to the injury to others, and would
take reasonable steps to guard against
such injury.
[73]
In the instant case, there can be little doubt that the reasonable
person in the position of the defendant would have foreseen
the
possibility of someone falling through the gap down to the ground
floor and injuring himself or herself.
[74]
I, accordingly, find that the accident involving the plaintiff was
occasioned by the negligence on the part of the defendant.
[75]
The defendant’s negligence lay in failing to close the gap in
the perimeter fencing of the upper floor of the parking
area in the
north-westerly section of the parking area in the building.
[76]
I am satisfied that causative negligence has been established in this
matter.
Contributory
Negligence
[77]
I now tend to consider the question of contributory negligence.
[78]
Section 1(1)(a) of the Apportionment of Damages Act
[23]
enjoined the Court to reduce damages suffered by a claimant “to
such an extent as the Court may deem just and equitable”,
having regard to the degree to which the claimant was also at fault.
[79]
In
South
British Insurance Company Ltd v Smit
[24]
,
Ogilvie Thompson JA said:
“
From
the very nature of the enquiry, apportionment of damages imports a
considerable measure of individual judgment: the assessment
of “the
degree in which the claimant was at fault in relation to the damage”
is necessary a matter upon which opinions
may vary. In the words of
Lord
Wright in British Fame (Owners) v McGregor (Owners) -
1943
(1) AER 33
at p35
(a
maritime case; but the principle appears to be equally followed in
England in relation to the Contributory Negligent Act).
“
It
is the question of degree of fault, depending on a trained, an expert
judgment considering all the circumstances, and it is different
to
assess from a mere finding of fact in the ordinary sense. It is
a question, not of principle, but of proportion, of balance
and
relative emphasis, and of weighing different considerations. It
involves an individual choice or discretion as to which there
will be
difference of opinions by different minds”
See
also:
Transnet
Ltd v Witter
[25]
[80]
The onus is on the defendant to prove that the plaintiff was
negligent and that this negligence was causally connected to the
damages suffered by the plaintiff
[26]
.
[81]
Mr
Frost
for the plaintiff submitted that the Court has to consider whether
the defendant had done enough to prove contributory negligence.
He submitted that the defendant has not done enough to prove
contributory negligence in this case.
[82]
He submitted that it was unlikely that Mr Clarke would do something
stupid like seating on a thin rail of fence next to the
gap as
testified by Mr Strydom, he then submitted that the defendant has not
placed sufficient evidence to enable the Court to
conclude that the
plaintiff was at fault.
[83]
He then submitted that if the Court was not with him, obviously the
degrees of fault are not equal. The defendant was
more at
fault, it was required to repair the perimeter fencing to prevent
anyone from falling but did not do so, causal negligence
has
therefore been established, he then submitted that the degree of
negligence which could attributed to the plaintiff could be
in the
region of between 20 and 30 percent.
[84]
Mr
Bedderson
submitted that on the evidence of Mr Strydom, he saw the plaintiff
sitting on top of the railing, holding a dog like a baby, there
was
no evidence that the dog was restricted by a leash, this Court cannot
find that he was lying. He conceded, however, that
Mr Clarke
had to jump to be able to sit on the edge of the fencing. He
then submitted that if he was indeed seated there,
he was completely
negligent.
[85]
He then submitted that the plaintiff placed himself in danger, he
took the risk and he must live with it.
[86]
He submitted that if the Court finds reason for apportionment, the
plaintiff’s blame worth should be place at 75 per
cent and 25
per cent be attributed to the defendant.
[87]
He further submitted that the worse scenario could be 50 per cent –
50 per cent basis.
[88]
There is no doubt as the Court has found that the plaintiff fell from
the gap on the upper level of the parking. Whether he
was seated or
standing whilst he fell, it not clear. Plaintiff himself should
have noticed that the area wherein there was
a gap, was dangerous and
ought to have avoided it. In failing to guard against the
danger of falling from the gap, he was
partly negligent. He
therefore also contributed towards his fall.
[89]
In the light of the evidence tendered, the conduct of the plaintiff
deviated from the norm, being that of a reasonable man,
to a lesser
degree than that of the defendant.
[90]
I am satisfied on the evidence that both parties were negligent in
this matter, but their degrees of negligence vary.
[91]
The damages sustained by the plaintiff have to be apportioned in
terms of section 1(1)(a) of Act 34 of 1956.
[92]
Considering all the above, I am of the view that the degree in which
the plaintiff was at fault in relation to the damage sustained
by
him, should be assessed at 40 per cent and the defendant’s
negligence at 60 per cent.
[93]
The plaintiff’s proven damages should be reduced by 40 per
cent.
[94]
In the circumstances, the negligence of the parties in this matter
should be assessed at 60 per cent – 40 per cent in
favour of
the plaintiff.
Costs
[95]
On the issue of costs there is no reason why costs should not follow
the result in this matter. The defendant should be ordered
to pay the
costs of the action.
[96]
In the result, I make the following order:
(1)
The injuries sustained by the plaintiff
were caused by the negligent conduct of both the defendant and the
plaintiff.
(2)
The negligence of the parties is assessed
at 60% - 40% in favour of the plaintiff.
(3)
Defendant is ordered to pay the costs of
the action.
SISHI
J
APPEARANCES
Date
of Hearing : 17 April 2015
Date
of Judgment : 31 July 2015
Plaintiff’s
Counsel :
R.S. Frost SC
Instructed
by : Graham Wright Inc
c/o
Messenger King
Suite
801, 8
th
Floor
Esplanade
Garage
127
Margaret Mncadi Avenue
DURBAN
Ref:
01C651/10C
Defendant’s
Counsel : BSF Bedderson
Instructed
by : NORTON ROSE FULBRIGHT
3
Pencarrow Crescent
La
Lucia Ridge
(Ref:
C Woolley/CW/CIA/132
[1]
Paragraph 5(a) – (e) on page 5 of indexed papers.
[2]
S
v Zuma
2006
(3) All SA 8
(W) at 71
.
[3]
D T Zeffert and AP Paizes,
The
South African Law of Evidence
2 Ed, 99.
[4]
(
2009)
at 21 paragraph 29.
[5]
(2000) at 101.
[6]
[
2010]
3 All SA 394
(SCA) paras 26 and 27.
[7]
2015 (2) SA 97
(SCA).
[8]
1982
(2) SA 603
(A)
[9]
2000
(3) SA 1009
(SCA)
[10]
Cf
Wildebeest v Geldenhuis
1911
TPD 1050
[11]
Motor
Vehicle Assurance v Duduzane
1984 (1) SA 700(A)
at 705 A
[12]
Ibid
at 705 A
[13]
Kruger
v Coetzee
1966
(2) SA 428
(A) at 430 E-G.
[14]
Imvula
Quality Protection (Pty) Ltd v Loureiro and Others
2013
(3) SA 407
SCA para 24;
Transet
Ltd and another v Witter
[2009]
1 All SA 164 (SCA) paras 4 and 6.
[15]
1954 (3) SA 464
(A) at 490 E-F
.
[16]
2000 (1) SA 827
(SCA) para 22 .
[17]
2013 (3) SA 407
SCA para 26.
[18]
2006 (3) SA 138
SCA at para 12.
[19]
[2008] ZASCA 115
;
2009 (1) SA 265
SCA para 15.
[20]
2010 (5) SA 296
(KZD) para 13.
[21]
Spencer
v Barclays Bank
1947
(3) SA 230
T at 241-243.
[22]
1966 (3) SA 505
(D).
[23]
Act 34 of 1956
[24]
1962
(3) SA 826
(A)
[25]
2009
(1) All SA 164
SCA at 169 A-D.
[26]
South
British Insurance Company Ltd v Smit
1962
(3) SA 826
(A);
Union
National South British Insurance Company Ltd v Victoria
1982
(1) SA 444
(A).