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[2014] ZAFSHC 236
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Hanger v Regal and Another (2826/2012) [2014] ZAFSHC 236; 2015 (3) SA 115 (FB) (11 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Nr: 2826/2012
In
the case of:-
MARIA
ELIZABETH
HANGER
......................................................................
Plaintiff/Respondent
and
JOE
REGAL
….......................................................................................
1
st
Defendant / 1
st
Applicant
PETRA
REGAL
…...............................................................................
2
nd
Defendant / 2
nd
Applicant
CORAM:
MURRAY, AJ
JUDGMENT
BY:
MURRAY, AJ
HEARD
ON:
5 DECEMBER 2014
DELIVERED:
11 DECEMBER 2014
[1]
This is an application for Absolution from the Instance at the close
of the Plaintiff’s case on the merits where quantum
and merits
have been separated. For ease of reference the parties are
referred to herein as in the main case.
[2]
The Plaintiff sues the Defendants for damages for injuries to her
lower right arm and hand and the loss of a finger and part
of a
second finger sustained during a visit to the Defendants’ farm
on 5 November 2009. It is common cause that the
said injuries
were caused by a caged Himalayan bear on the Defendants’
premises. In dispute is the Defendants’ liability
for the
Plaintiff’s damages.
[3]
From the Heads of Argument filed in the application for Absolution
and from the argument raised in court on behalf of the Defendants,
it
appears that the Plaintiff relies on the
actio
or
edictum
de feris
to
impose strict liability on the Defendants. They aver that they
therefore need not allege and prove negligence by the Defendants.
It
is not clear, however, that the said
actio,
for
which ownership of a wild animal in captivity as cause of a
plaintiff’s injuries must be proved, still exists in the South
African Law.
[1]
It is debatable,
furthermore, whether negligence forms part of the cause of action of
the
edictum
de feris
[2]
should such action still subsist in our Law.
[4]
The Rhodesian High Court in
Lycett
v Bristow
[3]
determined that there was no strict liability on the part of a person
who had control of a wild animal in captivity for injuries
caused by
it, but that such a person would be liable for damages caused if he
or she failed to take steps which a reasonable person
would have
taken to prevent the animal from doing harm. That court therefore
indicated that such an action needed to be based on
negligence
.
[5]
On appeal it was held in
Bristow
v Lycett
[4]
that in such a case negligence on the part of the owner was presumed,
making it unnecessary for the plaintiff to plead or prove
it. It is
on this latter decision that the Plaintiff now relies to attribute
strict liability to the Defendants. What is clear
from
Bristow
v Lycett
[5]
and
from
Klem
v Boshoff
[6]
to which the Court was referred in argument for the Plaintiff,
however, is that the owner of the wild animal is not liable if the
complainant either provoked the attack or by his negligence
contributed to his own injury.
[7]
[6]
Normally the onus to prove that the Plaintiff negligently contributed
to her own injury or voluntarily accepted the risk of
injury as a
defence would shift to the Defendant. But on the Plaintiff’s
own version
in
casu
it
is clear that she was negligent and by her own negligence either
caused or contributed to her injuries, and/or that she voluntarily
accepted the risk of injury, as fully set out below. And once
that is the case, the Plaintiff cannot rely on strict liability
[8]
,
but needs to rely on the
lex
Aquillia
and
prove the grounds for negligence averred in its particulars of claim.
[7]
In order to avert Absolution at the end of its case, a plaintiff has
to make out a
prima
facie
case
for its claim. Although the standard of proof is slightly less than
that at the end of the entire case, i.e. not quite on a
balance of
probabilities
[9]
, a plaintiff
must at least show that it has a prospect of succeeding with its
claim at the end of the case.
[8]
The question a court needs to ask at the end of the Plaintiff’s
case, therefore, is whether there is such evidence before
Court upon
which a reasonable Court might or could give judgment for the
Plaintiff. (See:
Claude
Neon Lights (SA) Ltd v Daniel
[10]
.)
Harms, JA, as he then was in
Gordon
Lloyd Page & Associates Rivera
[11]
reconfirmed the test for Absolution at the end of the Plaintiff’s
case as set out in
Gascoyne
v Paul & Hunter
[12]
,
namely:
“
whether
there was evidence upon which a court applying its mind reasonably to
such evidence could or might (not should or ought
to) find for the
plaintiff.”
[9]
In order to avert Absolution, therefore, a plaintiff needs to make
out a
prima
facie
case
in the sense that there is evidence relating to all the elements of
the claim, since without such evidence, no court could
find for the
plaintiff. The material facts upon which a plaintiff relies in
support of its claim must be set out in its particulars
of claim in
‘a clear and concise statement’
[13]
.
In other words:
“
The
plaintiff must … state clearly and concisely on what facts he
bases his claim and he must do so with such exactness that
the
defendant will know the nature of the facts which are to be proved
against him so that he may adequately meet him in court
and tender
evidence to disprove the plaintiff’s allegations.”
[14]
[10]
The purpose of pleading is to define the issues so as to enable the
other party to know what case he has to meet.
[15]
While a pleader’s first duty is to allege the facts upon
which he relies, his second duty is to plead the conclusions
of law
which he claims follow from the pleaded facts.
[16]
The parties are limited to their pleadings.
[11]
It is trite that once the pleadings have been filed, the parties are
bound by them. If the pleadings raise certain
issues and
the evidence adduced at the trial does not substantiate them, the
action will fail unless amendments have been granted
[17]
and implemented. Since the particulars of claim
in
casu
has
not been amended regarding the material facts on which the Plaintiff
relies for its cause of action, the Plaintiff is bound
by them.
[12]
Though inconsistent allegations are only permissible in claims
provided that they are pleaded in the alternative,
[18]
such as the Defendants’ denial of any liability, alternatively
voluntary assumption of the risk, and further alternatively
contributory negligence, and though the Plaintiff now purports to
rely on strict liability for which she need not allege or prove
negligence, she listed in paragraph 11 of the Particulars, without
pleading it in the alternative, a long list of factors which
she
alleged constituted the Defendants’ negligence which allegedly
caused ‘
the
incident’.
The
Defendant was therefore entitled, in the absence of an amendment, to
prepare a defence on those material facts which the Plaintiff
needs
to prove in order to succeed with her claim. And the Plaintiff
by the end of her case needs to have provided evidence
that shows
that she has a possibility of obtaining judgment in her favour at the
end of the trial on those facts.
[13]
The Plaintiff relies on the grounds of negligence listed in her
pleadings. She therefore has the onus to prove
that the
reasonable person in the position of the Defendants must have
foreseen the reasonable possibility that their conduct would
injure
another, should have taken reasonable steps to guard against such
event and must have failed to take such steps.
[14]
In order to avert Absolution at this stage, the Plaintiff needed to
have led evidence on all of these elements and to have
at least made
out a
prima facie
case
regarding each element to show that she has a probability of
succeeding in proving all of the said elements. In my view, the
three
witnesses who testified for the Plaintiff failed to do so.
[15]
On the papers her case was that she never touched the jackal-proof
wire fencing around the iron bars of the bear cage. The
‘incident’
on which she bases her claim was averred to be that the bear put his
mouth through the wire fencing and
bit her hand, pulling her hand and
arm through the wire fencing. The negligence ascribed to the
Defendants also relied mainly on
this scenario: namely that the
fencing was not adequate and safe enough to prevent the bear from
biting people through the
fencing.
[16]
The Plaintiff’s evidence, in a nutshell, was that she loved
animals, but knew that the wild bear was dangerous and that
it could
hurt her. She testified, furthermore, that on their way to the bear’s
cage, the Second Defendant explicitly warned
her that the bear was a
dangerous animal. She conceded in cross-examination that there was no
way in which the bear could push
its mouth through the ‘jackal-proof’
wire fencing (“the wire fence”) covering the iron bars
of the
cage, and consequently no way in which it would have been able
to open its mouth should it somehow have succeed in getting it
through
the wire fence. She therefore conceded that there was no way
the bear could have grabbed her fingers with its mouth if they were
on the outside of the wire fence. Based upon these
concessions, she eventually admitted that her fingers must have
protruded through the wire fence for the bear to have been able to
get a hold of them.
[17]
The Plaintiff also testified that the bear bit her fingers before
pulling her hand and arm through the wire fence. The photographs
submitted by the Plaintiff confirmed that that was impossible,
however.
[18]
The Plaintiff mentioned the lack of any warning signs but conceded
that the bear was not kept in a zoo which could be visited
by the
general public, but was kept on private premises in a cage behind the
Defendants’ home and that the Second Defendant
took them to see
the bear at the Plaintiff’s friend’s request. The lack of
such signs cannot establish negligence since
the Plaintiff on her own
version knew of the danger of her own accord and she conceded that
the Second Defendant did warn her that
the bear was dangerous.
[19]
Although the Plaintiff testified that the Second Defendant allowed
her to feed the bear a peach before the incident happened,
she
admitted in cross-examination that the bear would have been unable to
put its mouth through the wire fence to bite her during
the said
feeding. There is no evidence, in any event, that the said
feeding caused the incident.
[20]
She testified that the Second Defendant did not repeat her earlier
warning and did not tell her to stay away from the bear
when she
posed for the photograph with her ‘flat’ hand less than
2cm from the wire enclosure. Since she flatly denied
having been on
the platform which extended half a metre around the cage, and by
implication would not have been immediately ‘next
to’ the
cage, however, there is no reason to have expected any reasonable
person to foresee that she would allow her fingers
to protrude
through the fence and to infer that such person was negligent
because she did not warn her again.
[21]
Ms Holroyd testified that the bear pushed its paws through the wire
fence and grabbed the Plaintiff’s fingers. This evidence
directly contradicted the allegations in paragraph 9 and 12 of the
particulars of claim, namely that the bear bit the Plaintiff’s
hand through the wire fence and then pulled her arm through the said
wire fence as well. It directly contradicts, furthermore,
the
Plaintiff’s testimony by averring that the Plaintiff’s
fingers at no stage protruded through the enclosure but
were merely
very close to it. Her evidence was also refuted by the photographs
submitted by the Plaintiff which showed that neither
the bear’s
mouth nor its paws could go through the wire fence and pull the
Plaintiff’s fingers through the fence.
[22]
Both the Plaintiff and Ms Holroyd testified that the Second Defendant
was present when the incident happened, but neither testified
that
the latter saw the Plaintiff’s hand or fingers being held close
to or through the fence. There is no evidence, therefore,
that she
had been negligent in not warning the Plaintiff shortly before the
incident.
[23]
The Plaintiff’s last witness, Mr Boing, testified that the bear
was not kept on premises accessible to the general public.
In his
evidence in chief he contended that the cage was inadequate to
contain a dangerous animal like a bear; that the cage was
too small
and that the cage lacked a protective railing to keep people at a
distance of 1 to 1.5 metres from the cage. In his view,
the
Defendants were negligent in that respect.
[24]
In cross-examination, however, he conceded that there are no
statutory prescriptions for the bear’s cage and conceded,
too,
that the Defendants were indeed in possession of the necessary
permits to keep the bear. Such permits, he conceded, would
not have
been issued if the cage had not been maintained in a proper and safe
condition.
[25]
Counsel for the Defendants pointed out the significance of Mr Boing’s
concession that he was one of the top officials
in the employ of the
Department of Nature Conservation in the Free State and that the
keeping of animals and the safety of such
keeping fell under his
jurisdiction as the Control Diversity Officer: Compliance Monitoring
and Law Enforcement in the Department
of Environmental Affairs. Of
special importance is his testimony that he visited with the First
Defendant next to the bear’s
cage on numerous occasions, but
that he never once mentioned to the First Defendant that the cage
created a dangerous situation,
or that the absence of warning signs
could create a problem for the Defendant or for the safety of
visitors.
[26]
I agree with the Defendant’s counsel that the only inference
one can draw from that, is that this witness who was a top
official
in his field, either never noticed any danger in the situation, or
did not consider it to be of sufficient concern to
bring it to the
First Defendant’s attention.
[27]
That begs the question whether the Defendants should then reasonably
have known that there was danger in the situation and
should have
taken steps to rectify the situation. I agree that if an
experienced top official like Mr Boing never drew their
attention to
any dangerous situation, it cannot readily be said that they acted
unreasonably in not realising that the situation
was dangerous and
that they were negligent in not taking any reasonable steps to
address such a situation.
[28]
In my view, therefore, the Plaintiff failed to put any evidence
before court on which a reasonable court could or might find
that the
Defendants were negligent. There is no evidence that the Defendants
did not keep the bear lawfully, or that the cage failed
to comply
with any statutory or regulatory requirements, or that the incident
would have occurred had the Plaintiff, on her own
version, not only
touched the wire fence, but allowed her fingers to protrude into the
cage.
[29]
There is no evidence, either, that the bear bit her through the fence
or that he was even able to do so, as averred in her
particulars of
claim. There was no evidence that the cage would not have been safe
if she had not allowed her fingers to protrude
through the fence.
There is no evidence, either, that any warning signs would have
prevented her from allowing her fingers to protrude
through the
fence.There is no evidence, furthermore, that the size of the cage
provoked the incident, that the bear did attempt
to tear down the
fence, or that the Defendants should reasonably have foreseen a
situation where a grown-up person who admits to
knowing animals and
to having known that the bear was dangerous and could injure her,
after being warned that he was dangerous,
would allow her fingers to
protrude into the bear’s cage while, on her own version, he was
sitting very close to the fence
where her protruding fingers would
have been within easy reach of his mouth.
[30]
In my view, then, the Plaintiff failed to provide any evidence which
could reasonably be seen to indicate that she was not
negligent or
that she did not voluntarily accept the risk of injury by her conduct
and that the Plaintiff should for that reason
be allowed to rely on
strict liability. I cannot but conclude, either, that the
Plaintiff failed to make out a
prima
facie
case by putting evidence relating
to all the elements of her claim before the Court on which a
reasonable court could or might find
in her favour.
[31]
Consequently the Defendants’ application for Absolution from
the Instance has to succeed. The party who succeeds
with such
an application is considered to be the successful party and is
entitled to costs.
WHEREFORE
THE FOLLOWING ORDER IS MADE:
1.
The application for Absolution of the
Instance succeeds with costs.
______________________
H
MURRAY, AJ
On
behalf of the Plaintiff: Adv F G Janse van Rensburg
Instructed
by Mr O J van Schalkwyk
Lovius Block
Attorneys
31 First Avenue
Westedene
BLOEMFONTEIN
On
behalf of the Defendants: Adv P J Loubser
Instructed
by Mr JJ Grundlingh
Webbers
Attorneys
96
Charles Street
BLOEMFONTEIN
The
‘incident’ she relies on in the particulars of claim,
first of all, is described in the particulars of claim as
the bear
“
biting the Plaintiff’s hand
through the fence”
and the
Defendants’ negligence to have consisted,
inter
alia
, of failing to properly and
adequately enclose the cage “
to
prevent the bear from putting its mouth through the fence”.
On
the Plaintiff’s own version in court, that is not what
happened. From the photographs she admitted in evidence, and upon
her
own admission, it is clear that it is impossible for the bear to put
its mouth through the ‘jakkalsproof’ wire
enclosure
around the steel bars of the cage and even more impossible to open
its mouth to bite someone through the wire enclosure.
There is
no allegation in the particulars of claim that the bear used his
nails to pull her fingers through the fence as averred
by Ms Holroyd,
the friend who accompanied her to the farm, upon whose request the
Second Defendant showed them the bear and upon
whose request the
Plaintiff posed for a photo with the bear when she upon her own
admission allowed her fingers to protrude into
the bear’s cage.
From
the photos it is evident that the bear’s claws cannot go
through the wire-enclosure either.
The
Plaintiff was warned that the bear was dangerous and on her own
version she knew of her own knowledge that it was dangerous.
Yet she
still allowed her fingers to intrude into the cage through the
wire-enclosure.
On
the Plaintiff’s own version she not only touched the
wire-enclosure around the iron bars of the cage, but allowed her
fingers to protrude into the cage. On her own version she
allowed this to happen despite the 2
nd
Defendant’s
warning that the bear was dangerous and despite the fact that she
knew of her own knowledge as well that the
bear was dangerous. She
even foresaw the possibility that the bear might hurt her. This
is evident from her testimony that
she did not step onto the platform
on which the cage rested because in order to do so, she would have
had to hold onto the wire-mesh
which she did not want to do because
she did not know if the bear would then injure her if she touched the
cage. Yet she
nevertheless held her hand less than 2 mm from
the mesh and allowed her fingers to protrude through the mesh into
the cage. Without
a doubt that constitutes negligence on the part of
the Plaintiff.
[7]
That begs the question whether the Plaintiff made out a
prima
facie
case regarding the incidences of
negligence in the Particulars of Claim alleged to have caused “
the
incident”
on which she bases her
claim.
upon
which she based her claim in paragraph its claim for negligence were
all addressed ore, although the Plaintiff in paragraph
6 of the
Particulars of Claim did plead the facts that would have been
required to establish such liability if the
actio
were still part of our law, it also
stated in paragraph 7, without pleading negligence in the
alternative, the various grounds for
negligence it relied on.
[6]
[1]
Joubert:
The Law of South Africa, Vol. 8, para 32, pa 51 and
Harms: Amler’s Precedents of Pleadings, 7
th
Ed,
p.
403.
[2]
Zietsman
v Van Tonder 1989 (2) SA 484 (T).
[3]
1971
(1) SA 911
(R). See also: Beck,
supra,
at
para 13.9.3 at p. 212.
[4]
1971
(4) SA 223
(RA) at p. 212.
[5]
Supra,
at
p. 233C.
[6]
1931
CPD 188
[7]
Bristow
v Lycett,
supra,
at
p. 212 and Beck,
supra,
at
p. 212.
[8]
Lycett
v Bristow,
supra,
at
p. 235F.
[9]
Law
of Evidence
[10]
1976
(4) SA 403
(A) at 409 G – H.
[11]
2001
(1) SA 88
(SCA) at 92 – 93.
[12]
1917
TPD at 173.
[13]
Rule
18(4). See also Erasmus, Superior Court Practice, Service 35,
2010, at p. B1-129.
[14]
Benson
& Simpson v Robinson
1917 WLD 126
and Beck’s Theory and
Principles of
Pleading
in Civil Actions, p.45.
[15]
Imprefed
(Pty) Ltd v National Transport Commission 1993(3) SA 94 (A) at 107 C
– E.
[16]
Erasmus,
Service 35, 2010 at p.B1 – 130A.
[17]
Ferguson
& Timpson Ltd v African Industrial & Technological Services
(Pty) Ltd 1949 (4) SA 340 (W).
[18]
Kragga
Kamma Estates CC v Flanagan
[1994] ZASCA 137
;
1995 (2) SA 367
(A) at 374.