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[2013] ZAFSHC 16
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Bruwer v Nortje NO and Another (2467/2011) [2013] ZAFSHC 16 (21 February 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 2467/2011
In the matter between:
GERHARD JOHANNES
BRUWER
..................................................
Plaintiff
and
BENJAMIN BUCHANAN
NORTJE N.O.
.............................
First
Defendant
BENJAMIN NORTJE
N.O.
.............................................
Second
Defendant
_______________________________________________________
HEARD ON:
22 & 23 JANUARY 2013
_______________________________________________________
JUDGMENT BY:
LEKALE, J
_______________________________________________________
DELIVERED ON:
21 FEBRUARY 2013
_______________________________________________________
INTRODUCTION AND
BACKGROUND
[1] On 21 February 2009
the plaintiff sustained serious personal injuries when he fell off a
cable slide (foefie slide) at the holiday
farm ran by the defendants
in their capacities as trustees of the De Rust Trust (the trust).
[2] He, thereafter,
instituted action for recovery of general and special damages from
the trust on the basis that the defendants
were negligent,
alternatively grossly negligent, in that they,
inter alia
,
failed to mount the cable sufficiently tight and/or to ensure that
the mechanism used for sliding (sliding tong) functions smoothly
without any impediments or jerky movements.
[3] The defendants resist
the claim on,
inter alia
, the grounds that the trust was not
negligent as to the cause of the plaintiff’s injuries and that
the trust is contractually
exempted from liability for the relevant
damages suffered by the plaintiff.
[4] At the commencement
of the trial the parties, in line with their Rule 37 minute, secured
an order for separation of issues and,
thus, limited the present
proceedings to the determination of liability with the question of
quantum standing over for determination,
if necessary, at a later
stage.
ISSUES IN DISPUTE
[5] The parties are
effectively in dispute over whether or not the trust was negligent,
alternatively grossly negligent as to the
cause of the incident which
resulted in the plaintiff sustaining injuries.
[6] In the event of this
question being decided in the affirmative, the parties are in dispute
over whether or not the trust is
exempted from liability
vis-a-vis
the plaintiff in respect of his injuries.
PLAINTIFF’S
CASE
[7] In support of his
claim the plaintiff testified that on the fateful day he attended at
the holiday farm as a guest of his brother-in-law
who was celebrating
a birthday. He was with his family and duly signed a document at the
entrance when they entered the premises.
He did not read the relevant
document although he could have read the same had he wanted to. They
proceeded to the chalet allocated
to them. He did not see any other
documents or notices in the chalet nor did he see any notices on the
premises. They left their
luggage at the chalet and proceeded to join
other guests for the function. He enjoyed some refreshments,
whereafter, they all proceeded
to the pool area to watch a game of
rugby. On their way to the pool area he went via his chalet and
collected his beer cans. All
that he remembers, thereafter, is that
he was in conversation with his sister-in-law and the next thing he
woke up in hospital
with extensive personal injuries. He cannot even
remember seeing the cable slide.
[8]
Francois L.
Slabbert
testified that he is the plaintiff’s
brother-in-law and was also a guest at the relevant function. He did
not see the notices
on the property, but does not dispute that they
could have been in place. The accident occurred during the half-time
break in the
match and he saw children around the cable slide. He saw
the wife of one Johnny and their son go down the cable slide without
any
incidents. The cable slide consisted of a 2.5 metres to 3 metres
long cable mounted onto two Bluegum trees with one end on one tree
and the other end on the other tree. There was a 3.5 metres high
platform for reaching the cable. The sliding mechanism also had
a
handhold which a person wishing to slide had to hold with both hands.
He had a camera and wanted to take photographs of the plaintiff
as he
slid down. He saw children sitting down on the cable, but they stood
up and left when the plaintiff was on the platform.
He saw the
plaintiff place his hands on the handhold and lift his feet and slide
down. The cable was, however, hanging low with
low tension and, at
the critical moment, it got stuck and threw the plaintiff up in the
air with his feet while his hands remained
on the handhold. The
plaintiff came down, lost the hold on the mechanism and fell down. He
sustained serious injuries.
THE TRUST’S
CASE
[9]
Johannes Steyl
Willemse
testified as the sole witness for the trust to the
effect that he was the manager of the farm at the relevant time. In
his view
the farm was more suitable for functions and was not
necessarily a holiday farm. The trustees are his father-in-law and
brother-in-law
respectively. The farm was sold in 2010 and well after
the incident in question. The cable slide was already in place when
he got
involved as the manager. The cable slide used to be serviced
on a regular basis by technicians at least once a month. He and his
niece used the cable that very morning without a problem and so did
other people.
[10] Notices to the
effect that the use of facilities on the farm was at own risk were in
place and were displayed prominently all
over the area. One 2.4
metres x 1.2 metres big notice board was at the entrance as reflected
on photographs 15 to and including
17 in exhibit “A”.
Notices were, further, placed behind the doors in the chalets and on
the tables as per photograph
12 in exhibit “A”. The cable
slide was clearly dangerous. The Rules and Regulations referred to in
the receipt signed
by the plaintiff as reflected on document number 1
on page 3 of exhibit “B” are the ones on page 1 of the
same exhibit.
It is clear from number 2 of those Rules and
Regulations that the trust is exempted from liability for injuries
and damages arising
from,
inter alia
, the use of facilities.
Notwithstanding what the relevant receipt says about Rules and
Regulations as well as Terms and Conditions,
there existed no
separate document dealing with terms and conditions. The only
document available was the one outlining what are
referred to as
“Rules and Regulations” on page 1 of exhibit “B”.
Provision was made for English version
of the same as A02 while the
Afrikaans version was A01.
PLAINTIFF’S
CONTENTIONS
[11] Mr Reinders for the
plaintiff submits at length that it is patent from evidence that the
defendants owed members of the public
a duty of care and that they
breached it by not ensuring that the relevant facility did not pose a
danger to the public.
[12] It is, further,
contended for the plaintiff that in law the onus is on the defendants
to prove the terms and conditions of
the contract allegedly excluding
liability on the part of the trust in respect of the incident in
question.
[13] In conclusion it is
submitted for the plaintiff that no evidence was tendered by the
defendants to prove what it regarded as
terms and conditions and that
without such terms and conditions there can be no agreement exempting
the trust from liability.
[14] In Mr Reinders’
view liability should be apportioned at 80/20 in favour of the
plaintiff with the same being applicable
to costs.
DEFENDANTS’
CONTENTIONS
[15] Mr Pohl for the
defendants submits that there is no proof of any form of negligence
on the part of the trust before the court
insofar as no evidence was
tendered of any defect in the cable slide.
[16] The harm suffered by
the plaintiff was not foreseeable to the trust because undisputed
evidence is to the effect that the cable
slide had been in use for
two years without any harmful incident and was, further, used that
morning without any hiccups.
[17] It is, further,
contended that the plaintiff consented to the risk of harm insofar as
he signed the receipt excluding liability
on the part of the trust in
circumstances where he knew the importance of the document in
question and he could have read the same
if he had wanted to.
[18] The trust took
reasonable and sufficient steps to bring the fact and/or import of
the exclusionary clause to the attention
of the plaintiff through
notices which were clear and unambiguous.
[19] The claim should,
therefore, be dismissed with costs in Mr Pohl’s view.
APPLICABLE LAW
[20] The parties
correctly submit that the test for negligence is whether or not a
reasonable man in the position of the defendant
would have foreseen
the reasonable possibility of his conduct injuring another and, if
so, whether or not he would have taken reasonable
steps to guard
against such eventuality, which steps the defendant failed to take.
(See
Kruger v Coetzee
1966 (2) SA 428
(AD) at 430E –
F.)
[21] The precise way in
which the harm eventuates might not be foreseeable. What must,
however, be foreseeable to the
diligens
paterfamilias
in the position of the person whose conduct is in issue, is the
general manner of the occurrence of the harm in question. (See
Mkhatswa v Minister of Defence
2000 (1) SA 1104
(SCA)
at 1112D and
S v Bochris Investments (Pty) Ltd and Another
1988 (1) SA 861
(AD).)
[22] Parties to a
contract may validly and lawfully agree to exempt one of them or each
other from liability for specified harm
or damages by including
exclusionary clauses to that effect in their contracts. Such clauses
are enforceable by the courts to the
extent that they are not
contrary to public policy. (See
Wells v South African Alumenite
Co.
1927 AD 69
at 72 and
Afrox Healthcare Bpk v Strydom
2002 (6) SA 21
(SCA).)
[23] An exclusionary
clause exempting a party from the consequences of his own negligent
conduct is permissible and, as such, legally
enforceable. (See
Masstores (Pty) Ltd v Murray & Roberts Construction (Pty)
Ltd and Another
[2008] ZASCA 94
;
2008 (6) SA 654
(SCA) at par
[30]
.)
[24] As the parties
correctly submit the onus of establishing the terms of the contract,
inter alia
, excluding liability is on the party relying on the
same and, in the instant matter, on the defendants. (See
Afrox
Healthcare Bpk v Strydom
,
supra
, at par [6].)
NEGLIGENCE
[25] The onus is on the
plaintiff to prove negligence on the part of the trust insofar as his
claim is based on delict.
[26] In discharging the
onus in question, the plaintiff first has to prove, on a balance of
probabilities, that the possibility
of the slide mechanism getting
stuck on the sliding cable and catapulting the plaintiff into the
air, thus, causing him to fall
to his near fatal injuries, was
reasonably foreseeable to the reasonable man in the position of the
defendants. The only undisputed
evidence available in this regard is
that no incidents of such nature ever took place in the two years
preceding the relevant incident.
Slabbert’s evidence on this
point is, with respect, vague, unreliable and simple inadmissible
hearsay. The undisputed and/or
common cause evidence is that the
facility in question was being serviced regularly and was used
without any problems that very
morning and immediately before the
plaintiff’s unfortunate experience. In my view, it can hardly
be said that the harm in
question was reasonably foreseeable to the
diligens
paterfamilias
in the position of the trust.
[27] The plaintiff’s
claim, in my judgment, fails the very first leg of the enquiry
insofar as the concession by Willemse
that the cable slide was
clearly dangerous does not assist the plaintiff’s claim. The
concession in question is, in my view,
as general as a statement that
there always existed the possibility that someone might fall from the
slide and injure himself.
That concession is not remotely related to
the manner in which the fall in the present matter took place. There
is no reliable
evidence tendered with regard to the actual cause of
the plaintiff’s fall.
[28] Slabbert testified
that there was no visible fault with the slide mechanism. He, in
fact, speculated that the tension on the
cable was reduced when a
child or children who had been sitting on the same stood up. There is
no evidence before the court that
the defendants were aware of and,
in fact, authorised such a state of affairs. The particulars of such
a child or children are
not before the court and it is, further, not
clear how and at what stage the tension was reduced. In this regard
Slabbert’s
evidence is that the children or the child in
question, stood up when the plaintiff was on the platform and,
a
fortiori
, before he could slide down the cable. There is,
further, no evidence of the effect such a reduction in the tension
had on the
cable slide and how same could have caused the plaintiff’s
fall. The possibility of the plaintiff falling in the manner in
which
he did was, in my view, not so real or reasonable as to be
foreseeable to the trust.
[29] Even if I am wrong
in the aforegoing finding with regard to foreseeability of the
reasonable possibility, I am not persuaded
that the reasonable man
would have taken any steps other than to ensure that the cable slide
gets serviced regularly. There exists
no evidence of any other
reasonable measures which the trust could and should reasonably have
taken to guard against the relevant
risk. The position would, most
probably, be different if evidence was to the effect that the
defendants were aware of the need
for the tension on the cable to be
maintained through external means such as constant human
intervention.
[30] The plaintiff
contends in the particulars of claim that the trust failed to ensure
that the slide mechanism runs smoothly and
has no impediments which
subject it to jerky movements. There is, however, no evidence
tendered in support of these contentions.
[31] In my judgment the
enquiry relating to disclaimer does not arise in the light of the
aforegoing findings. Even if I am wrong
in this regard, I am
satisfied from evidence that liability is excluded in the instant
matter insofar as the plaintiff admittedly
signed the relevant
receipt which,
inter alia
, incorporates, by reference, the
relevant rules and regulations excluding liability in clear and
unambiguous terms.
ORDER
[32] In the result the
claim is dismissed with costs.
______________
L. J. LEKALE, J
On behalf of applicant:
Adv S.J. Reinders
Instructed by: Rossouws
Attorneys
BLOEMFONTEIN
On behalf of defendants:
Adv L. Le R. Pohl
Instructed by: Honey
Attorneys
BLOEMFONTEIN
/spieterse