Tsogo Sun Holdings (Pty) Ltd v Shan and Another (374/05) [2006] ZASCA 86; 2006 (6) SA 537 (SCA) (31 May 2006)

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[2006] ZASCA 86
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Tsogo Sun Holdings (Pty) Ltd v Shan and Another (374/05) [2006] ZASCA 86; 2006 (6) SA 537 (SCA) (31 May 2006)

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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case
No 374/05
In the
matter between:
TSOGO
SUN HOLDINGS (PTY) LTD Appellant
and
QING-HE
SHAN First Respondent
KAI
RONG SHOA Second Respondent
Coram: HARMS, ZULMAN, NAVSA, VAN HEERDEN JJA and
CACHALIA AJA
Heard: 23 May 2006
Delivered: 31 May 2006
Subject: Delict ─ liability of
owner/occupant of casino to patron/client for injuries caused by
another patron/client
Neutral citation: This case may be
quoted as
Tsogo Sun Holdings (Pty) Ltd v Shan
[2006] SCA 85
(RSA).
J U D G M E N T
HARMS
JA:
[1] The appellant, Tsogo Sun Holdings (Pty) Ltd
operates a casino known as Montecasino at Fourways in Sandton. The
respondent, Mr
Shan, was shot in the parking area of the casino by
one Shoa, after having left the casino in the company of Shoa. This
happened
on 21 June 2001. Shoa, who was charged with attempted
murder, undertook in a plea agreement to pay Shan an amount of R200
000 as
damages. However, Shan wishes, according to the particulars of
claim, to recover all his damages (some R560 000) from Tsogo. Action
was instituted against Tsogo in the Transvaal Provincial Division.
Tsogo, in addition to disputing liability, joined Shoa as a second
defendant by means of a third party notice. Shoa, save for filing a
plea in which he relied on the settlement and denied negligence,
did
not take part in the proceedings.
[2] After hearing evidence Bosielo J issued an
order declaring Tsogo liable for the damages caused to the plaintiff
as a result of
the shooting. (The issue relating to quantum stood
over by agreement.) The learned judge, unfortunately, overlooked the
fact that
he had to make an order on the third party notice but he in
any event granted the necessary leave to Tsogo to appeal to this
Court.
[3] From the evidence of Shan and some video
footage the high court was able to make the following factual
findings, which are not
disputed on appeal by either side. Shan,
accompanied by his wife, went to the casino complex to deliver some
goods. His wife proceeded
to gamble in the VIP section, where she
became involved in a heated argument with Shoa’s wife. Shoa is said
to be a loan shark
Shan owed him money. Shan arrived and entered the
fray. Security personnel immediately intervened and defused the
situation. Shan
and his wife then left Shao and they got involved in
a marital spat. Thereafter Shan returned to Shoa and confronted him.
Shoa allegedly
then asked Shan whether he wished to die. In response
Shan, who thought that he could win any physical fight, invited Shoa
outside
and he actually led the way, gesticulating all along. The
altercation continued outside and in the vicinity of the boom gate of
the
parking area Shoa fired three shots at Shan, wounding him badly.
[4] The
salon privé
is a restricted
area, accessible to selected serious gamblers. Shoa is a regular
patron and the holder of a platinum card, which
entitles him to VIP
privileges. During the preceding year he in fact visited the casino
on at least 77 occasions. On the night in
question he entered the
casino through the VIP entrance, left and returned, passing the same
security guards. On his return, which
was before the altercation
between the ladies began, the guards evidently enquired whether he
had any weapon, whereupon he probably
said no and to show that he was
not in possession of a weapon, lifted his jacket to indicate that he
was not. They then allowed him
to proceed.
[5] Shan’s case, in essence, is
that Tsogo had a legal duty to so-called ‘invitees’ (an outmoded
classification that has never
formed part of our law and is being
abandoned in common law jurisdictions – eg
Neindorf v Junkovic
[2005] HCA 75
para 6) to take reasonable steps to ensure their safety
on the premises; it is reasonable to foresee that one gambler could
pose
a risk to other gamblers; the guards failed to search Shoa
properly; had they done so they would have found the firearm; the
failure
to remove the firearm enabled Shoa to shoot Shan; this
dereliction was causally linked to the shooting.
[6] Counsel are agreed that the high court’s
reasoning holding Tsogo liable was as follows: (1) As a result of an
earlier armed
robbery Tsogo deployed security personnel at all
entrances. They had a specific instruction to prevent people from
entering the casino
with firearms and were in possession of portable
metal detectors. (2) This was clear proof that Tsogo appreciated the
grave danger
or risk posed by patrons who enter with firearms. (3)
The failure to (body) search Shoa was in breach of their instructions
and the
contractual obligations of the security firm towards Tsogo
but Tsogo remains liable for the negligence of its security
contactor.
(4) This omission was negligent and allowed Shoa to enter
with a firearm, which was later used to shoot Shan. (5) ‘Given the
peculiar
circumstances of the case’ Tsogo owed everyone ‘at or
inside the casino a duty of care.’ (6) The risk of harm was clearly
foreseeable,
something evinced by all the security measures,
including surveillance cameras.
[7] The high court in finding for Shan fell, as so
many before, into the quagmire of the ‘duty of care’ doctrine, by
failing to
distinguish clearly between the different requirements for
delictual liability. Wrongfulness and negligence were intertwined and
the issue of causation does not appear to have received the necessary
consideration.
[8] Finding (5) is somewhat baffling. How can the
(unidentified) peculiar circumstances give rise to a general duty to
all and sundry
and, one may fairly ask, what is the scope of the
duty? The owner or occupier of property, no doubt, has a legal duty
to ensure that
those whose presence can reasonably be anticipated on
the property are not harmed by the condition of the property or a
construction
on the premises (See eg ‘Delict’ in 8 (1)
Lawsa
2ed para 76, by JR Midgley and JC van der Walt). This liability is
often based on a commission by that person but may also be based
on
an omission in particular circumstances. However, in the present case
we have a clear case of an omission on the part of Tsogo
and a
damage-causing act by a third and unrelated party, Shoa. The question
is what legal duty did Tsogo have vis-à-vis a
patron (in the
position of Shan) to protect him from harm by another patron who uses
the same facilities? Put differently, what are
the public policy
considerations that require of an owner or occupier of business
premises to protect ‘clients’ against possible
assaults by other
clients by, for instance, preventing other ‘clients’ from
carrying weapons onto the property?
Policy considerations must
require that the plaintiff should be entitled to be recompensed by
the defendant for the loss caused by
a third party
before liability can be imposed.
[9] No constitutional considerations arise on the
facts here. The only factor the high court took into consideration
was the fact
that there had been an armed robbery by a gang of
robbers some time before this event. As I understand the reasoning,
every person
who enters a facility open to the public must be fully
searched for the possession of weapons if the facility has, in the
past, been
the subject of an armed robbery. If this were correct,
life in this country would become unbearable and the duty cast on
owners and
occupiers limitless. Many (if not the majority) of banks
and petrol service stations, for instance, have been subjected to an
armed
robbery and many a local corner store too. Passengers have been
shot on trains, buses and taxis. Must those in control all employ
security guards
for the sake of clients
and is it to be
expected that every client has to be bodily searched before being
allowed to enter the premises or use public transport?
I think not.
[10] Courts have to be pragmatic and realistic,
and have to take into consideration the wider implications of their
findings on matters
such as these. By its judgment the high court
unconsciously created a new class of virtually limitless vicarious
liability. I therefore
come to the conclusion that Tsogo did not,
under the circumstances of this case, have a legal duty to protect a
person in the position
of Shan against persons in the position of
Shoa. On this basis the appeal succeeds.
[11] There is another reason why Shan should not
have succeeded and that is the absence of negligence. The classic
test for
culpa
has been laid down in
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E-F where Holmes JA said the following:
‘
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
the defendant failed to take such steps.’
[12] The first question can be reframed for
purposes of the facts of this case in these terms: Was it reasonably
foreseeable that
a regular patron at the
salon privé
could be a danger to another patron? I know of no fact that would
lead to an affirmative answer. The high court, however, relied
on the
fact of the armed robbery by a gang some time in the past as
indicating that something like this was foreseeable. I fail to
see
the relevance of that occurrence. Because of this occurrence Tsogo
instructed the security company to be on the look-out for
possible
members of armed gangs. Shoa hardly fell within that category. He
must have been known to the security guards; he was a
regular
visitor; and he was an esteemed patron. There was no reason why the
possibility of harm should have been foreseeable.
[13] In any event, the steps taken by Tsogo were
reasonable. Considering that some 30 000 persons visit the casino
during a weekend
and that a facility such as a casino should be
consumer-friendly, I do not accept that it would have been justified
to have required
of Tsogo to body search each and every patron for
weapons. If there were reason to be suspicious of a particular person
the position
may have been different. In this case there was no good
reason to suspect Shoa. In any event, he was asked about weapons and
he indicated
he had none. There is nothing to show that such a
request, which was complied with, did not constitute reasonable steps
in the circumstances.
In addition there are surveillance cameras all
over the casino and one must not forget that as soon as trouble began
members of security
intervened.
[14] In this regard it is well to recall the words
of Scott JA in
Pretoria City Council v de Jager
1997 (2) SA 46
(A) at 55H-56C:
‘
The Council was obliged to take no
more than reasonable steps to guard against foreseeable harm to the
public. Whether in any particular
case the steps actually taken are
to be regarded as reasonable or not depends upon a consideration of
all the facts and circumstances
of the case. It follows that merely
because the harm which was foreseeable did eventuate does not mean
that the steps taken were
necessarily unreasonable. Ultimately the
inquiry involves a value judgment.’
Applying that test, I am satisfied that the high
court erred in finding negligence in this case. I may add that the
alleged breach
of contract by the security guards cannot be equated
with negligence by Tsogo vis-à-vis Shoa.
[15] Legal
causation was also not established. The test according to
International Shipping Co (Pty) Ltd v Bentley
1990 (1) SA 680
(A) 700E-701F
is this:
‘
As has previously been pointed out
by this Court, in the law of delict causation involves two distinct
enquiries. The first is a factual
one and relates to the question as
to whether the defendant’s wrongful act was a cause of the
plaintiff's loss. This has been referred
to as “factual causation”.
. . . If the wrongful act is shown in this way not to be a
causa
sine qua non
of the loss suffered, then no legal liability can
arise. On the other hand, demonstration that the wrongful act was a
causa sine qua non
of the loss does not necessarily result in
legal liability. The second enquiry then arises, viz whether the
wrongful act is linked
sufficiently closely or directly to the loss
for legal liability to ensue or whether, as it is said, the loss is
too remote. This
is basically a juridical problem in the solution of
which considerations of policy may play a part. This is sometimes
called ‘legal
causation’.
. . .
In [
S v Mokgethi
1990 (1) SA
32
(A)] Van Heerden JA referred to the various criteria stated in
judicial decisions and legal literature for the determination of
legal
causation, such as the absence of a
novus actus
interveniens
, proximate cause, direct cause, foreseeability and
sufficient causation (“adekwate veroorsaking”). He concluded,
however, as
follows [at 40I-41B]:
“
Wat die onderskeie kriteria
betref, kom dit my ook nie voor dat hulle veel meer eksak is as 'n
maatstaf (die soepele maatstaf) waarvolgens
aan die hand van
beleidsoorwegings beoordeel word of 'n genoegsame noue verband tussen
handeling en gevolg bestaan nie. Daarmee gee
ek nie te kenne nie dat
een of selfs meer van die kriteria nie by die toepassing van die
soepele maatstaf op 'n bepaalde soort feitekompleks
subsidiêr
nuttig aangewend kan word nie; maar slegs dat geen van die kriteria
by alle soorte feitekomplekse, en vir die doeleindes
van die
koppeling van enige vorm van regsaanspreeklikheid, as 'n meer
konkrete afgrensingsmaatstaf gebruik kan word nie.”’
[16] Having regard to this approach I am satisfied
that Tsogo’s failure to body search Shoa was not legally connected
to the shooting
incident. What really caused the shooting was Shan’s
intent to involve Shoa in a physical altercation. Assume, for
instance, that
in the anticipated fist fight Shan was seriously hurt,
could this have been ascribed to Tsogo? I think not and by a parity
of reasoning
the same ought to apply to the fact that he was shot. He
would not have been shot but for his insistence that he wished to
engage
in a fight, which he lost albeit not in a manner anticipated
by him. In any event, on leaving the casino Shoa would have been
entitled
to the return of his gun and he could then have shot Shan.
The omission of the guards was in my judgment too remote to fix
liability
on Tsogo. On this further ground the claim had to flounder.
[17] The appeal is upheld with costs including
the costs of two counsel and the order of the high court is amended
to read: ‘Absolution
from the instance with costs.’
__________________
L T C
HARMS
JUDGE OF
APPEAL
AGREE:
ZULMAN JA
NAVSA JA
VAN HEERDEN JA
CACHALIA AJA