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[2011] ZAKZPHC 9
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Hobbs v Autumn Star Trading 180 (Pty) Ltd (14235/08) [2011] ZAKZPHC 9 (4 March 2011)
In
the KwaZulu-Natal High Court, Pietermaritzburg
Republic
of South Africa
Case
No 14235/08
In
the matter between :
Ronald
Sydney Hobbs
….......................................................................................
Plaintiff
and
Autumn
Star Trading 180 (Pty) Ltd
…...............................................................
Defendant
Judgment
Lopes
J
[1] The plaintiff in this matter
claims payment of the sum of R1 335 139,77 from the defendant, being
damages allegedly sustained
by the plaintiff when he fell down a
flight of stairs in the shopping centre known as the Sunningdale
Shopping Centre situated
in Umhlanga Rocks Drive in Durban and which
was owned by, or under the control and administration of, the
defendant.
[2] With the consent of the parties I
granted an order at the outset of the trial in terms of Rule 33(4)
separating the issues of
liability and quantum.
[3] The citation and identity of the
plaintiff were admitted by the defendant who also admitted ownership
and control of the shopping
centre. In argument before me Mr
Marais
SC who appeared for the defendant also conceded the duty of care
owed to the plaintiff to ensure that the stairwell was safe, free
of
any object or substance that could cause harm, and was adequately
illuminated.
[4] The plaintiff’s claim is
that on the 14
th
September, 2007 and at approximately
6.45pm (or at any rate, at a time when it had become dark) the
plaintiff descended the stairwell
and slipped, resulting in his
sustaining injuries.
[5] The plaintiff’s first
witness was Mr Harold Gaze who described himself as an occupational
hygiene, safety and environmental
consultant. The essence of Mr
Gaze’s evidence is that he conducted an inspection on the 17
th
March, 2008 and measured the light levels on the stairwell. The light
levels which he found were approximately a fifth of what
they should
have been as prescribed by the relevant legislation for a working
environment.
[6] I regard the evidence of Mr Gaze
as being unhelpful because :-
(a) the stairwell is not part of a
working environment and he gave no indication that it was governed by
the legislation to which
he referred; and
(b) the fact that the lighting in the
stairwell might have been below the minimum level required for a work
environment does not
of itself indicate negligence on the part of the
defendant.
[7] Indeed, Mr
Topping
who
appeared for the plaintiff submitted that I should use the evidence
of Mr Gaze as an indication or yardstick that the lighting
level was
clearly below what was required as a minimum standard. Although I
accept the accuracy of the readings which were taken
by Mr Gaze, he
was a most unimpressive witness who sought to exaggerate his
technical qualifications, indicating at the outset
of his evidence
that he had approximately eight or ten degrees and later that he had
an Honours degree in the relevant field, none
of which appears to be
accurate.
[8] The plaintiff’s next witness
was Anand Pancholy. He testified that he was the proprietor of Indian
Summer, a restaurant
in the Sunningdale Shopping Centre. It is
situated on the left hand side as one enters the stairwell. On the
14
th
September, 2007 he had been standing alongside the
restaurant at the top of the stairs and had been speaking to the
plaintiff.
The plaintiff had ordered a takeaway and they had spoken
for approximately five to ten minutes whilst they waited for the
takeaway
to be ready. At that stage Mr Pancholy’s partner
handed over the takeaway and he bid goodbye to the plaintiff. Later
he was
informed by one of his staff members that the plaintiff had
fallen down the stairs. He did not investigate the matter any further
because he did not think that any serious injury had been caused.
[9] Mr Pancholy stated that the
plaintiff had been on his own when he had been talking to him, but
that he had been waiting for
his wife. There was nothing in the
plaintiff’s manner which suggested that his state of sobriety
was not normal. In cross-examination
by Mr
Marais
SC he
expressed the view that he was able to form an opinion on the
plaintiff’s state of sobriety. Although he could not
recall the
weather on the night in question, he stated that wind would blow the
water under the roof section at the top of the
stairs. It was his
habit to caution customers of his establishment that they should be
careful going down the stairs. This is because
customers regularly
did so if they wanted to make use of the toilet facilities in the
centre. He also warned them of a red box
on the right-hand wall
immediately above the middle landing. He did so because he had at
some stage banged his own head on the
red box.
[10] He also indicated that the two
lights on the stairwell were sometimes not working, and would not be
fixed for a few days. On
the day in question the one light on the
wall of the stairwell on the left hand side was not working. With
reference to picture
four on annexure C10, he indicated the light
above the middle landing of the stairwell and the red box. He had
remembered that
the light was out when his staff told him about the
incident because he had considered that to be a possible cause of the
plaintiff
falling.
[11] The plaintiff then testified that
he was a representative for a labour broking company. On the day in
question he had had a
busy afternoon visiting various clients, etc
culminating in him fetching his wife from her place of work at about
5 or 5.15pm.
They drove to Glen Anil to the Spar at the Sunningdale
Shopping Centre where his wife went upstairs to purchase a curry
takeaway
(clearly from Indian Summer). He parked his car downstairs
outside the Spar and had gone up to the pub called Someplace Else
(using
the stairwell) whilst his wife had gone to attend to some
shopping. The pub is situated to the right of the stairwell as one
enters
it from above, and approximately 10 metres from the stairwell.
The pub had been very full and he had taken a seat at a table inside
the pub door and ordered a beer. He stated that he had met the owner
of the pub and his son the week before that he liked the pub
and that
he had intended to be a regular there. He had continued to watch the
rugby until his wife arrived, whereupon he had a
second beer and
ordered his wife a glass of wine. She had been away for a maximum of
approximately ten minutes, and upon her return
told him that the
curry takeaway order would take approximately 10 to 15 minutes.
[12] When they left the bar they went
to Indian Summer to fetch their takeaway. At that stage it was dark
and raining. The manager
of the Indian Summer indicated that the food
would be ready in a minute or two and they stood and chatted to him.
As they left
with the takeaway, the plaintiff held the groceries his
wife had purchased in his right hand, and held her right hand with
his
left hand. She was carrying the curry takeaway in her left hand.
In this manner they proceeded down the stairwell, and approximately
on the third or fourth stair from the middle landing the plaintiff’s
right foot slipped out from under him and he landed
on the middle
landing on his right elbow and right hand side. His wife did not
fall. He described the lighting in the stairwell
as pretty dull and
dark, but could give no explanation as to why he had slipped. He was
in a lot of pain but nonetheless drove
home. At a later stage his
daughter took him to hospital where a fracture of the cuff of his
shoulder was detected on X-ray. It
was pointed out to the plaintiff
that in its plea the defendant alleged that he had consumed
approximately six beers in a short
space of time. He denied this and
maintained that he had only had two beers.
[13] In cross-examination by Mr
Marais
, the plaintiff maintained that he had been in Someplace
Else for only approximately 15 to 20 minutes. It was suggested to the
plaintiff
that he had been able to drive home because he had had so
much to drink that he was unaffected by his injury. He denied this
and
maintained that he had been in pain but had been keen to get home
to watch the remainder of the rugby match.
[14] Various recordings of the
plaintiff’s fall were then put to him. Exhibit A(4) was a
handwritten manuscript statement
which records that after buying a
takeaway from the Indian Summer restaurant the plaintiff was walking
down to the lower level
where his car was parked, and he slipped on
the stairs which were wet. The words “
due to rain
”
had originally been part of the manuscript but had been crossed out.
The plaintiff’s evidence was that his wife had
written out the
document that he was unable to recall whether or not he had been
present when it was written out. He says that
he did not tell her
that he slipped because the stairs were wet.
[15] The plaintiff was then referred
to the medico-legal report of Mr J R Domingo which records that he
slipped on water which was
on the stairs. He was carrying a shopping
bag in his right hand. The plaintiff conceded that there is a strong
possibility that
he may have told that to Mr Domingo. He said he may
have done so because when they later went to the scene they were told
that
there was water on the stairs because the fire hydrant on the
middle landing had been leaking. He also said that he seemed to
remember
water on the landing when he fell. He conceded that he had
previously said that he could not say whether or not the stairs had
been wet. He also said that Dr Domingo had got it wrong in his report
where he recorded that the plaintiff’s wife had driven
him
home.
[16] The plaintiff was extensively
cross-examined on his drinking habits. It was clear from his evidence
that he frequented bars
on an almost daily basis. He conceded that he
might well consume six beers on any given day. However, he was
adamant that on this
day he had only had two beers, and that he was
able to handle his drink and said that he would be totally stable
having consumed
between six and eight beers.
[17] With regard to other possible
reasons why he fell, he said that he had been looking approximately
two to three steps ahead
of where he was walking but that if the
illumination in the stairwell had been good enough, he would have
been able to see anything
lying on the step. He maintained that the
footing on all the other stairs on which he had trodden on the way
down the stairwell
was firm.
[18] The plaintiff then closed its
case. The defendant called as its first witness Johannes Petrus
Mostert van Zyl who was the sole
owner and creator of the Someplace
Else pub. He had been present in the pub on the evening in question.
The bar had been very busy,
and he testified that it had rained quite
heavily that night from the east when a lot of water would come into
the top of the stairwell
and down onto the stairs.
[19] Mr van Zyl said that he knew the
plaintiff, but only as a customer. He described him as a nice person
who was well spoken and
who communicated with him. He said that he
sometimes came into the bar in the morning at approximately 10am to
have a couple of
beers. He would usually drink Hansa pints and he
would come into the bar approximately three to four times per week.
[20] Mr van Zyl stated that on the day
in question there had been a change in the behaviour of the plaintiff
who had been somewhat
out of the normal. He said that that night the
plaintiff was very loud and as a result of that Mr van Zyl had
focused on the group
of people with whom the plaintiff was sitting.
He said that he would always do that, fearing some kind of trouble in
the bar. He
had counted that the plaintiff had consumed approximately
six beers during the second part of the rugby match. He did not agree
that the plaintiff had only been in the bar for 15 minutes. After the
plaintiff had left he had been told that someone had fallen
on the
stairs and he had gone there and seen the plaintiff sitting on the
landing bent forward as if in pain, with people attending
to him.
[21] Under cross-examination by Mr
Topping
for the plaintiff, Mr van Zyl conceded that everyone
was talking about the wetness on the stairs because it had rained
heavily
from the east and water had got onto the stairs. He said that
when he was standing at the top of the stairs looking down they had
been wet. He could not see how far down the stairs the wetness
extended.
[22] In response to a suggestion by Mr
Topping
that the plaintiff had only moved into the area two
weeks previously and only met Mr van Zyl on the previous Friday
night, Mr van
Zyl was of the view that he had definitely met the
plaintiff before that time.
[23] Mr
Topping
put to Mr van
Zyl that he was getting his timeframe confused and that the plaintiff
had only adopted a routine of drinking approximately
six beers per
day at the pub after the incident. Mr van Zyl was of the view that
the plaintiff’s habits had not changed.
Mr van Zyl conceded
that the plaintiff had not been disturbing other patrons, but
maintained that he had been loud, shouting at
the barman. I did not
understand Mr van Zyl to mean that the plaintiff did so in an
aggressive or unfriendly way.
[24] Mr van Zyl conceded it was
possible that when the plaintiff’s wife had joined him he had
ordered another beer together
with a glass of wine for his wife. He
conceded that he did not keep track of the plaintiff all of the time
that he was there. He
could not recall the exact time that the
plaintiff left but said that the plaintiff had to pass his table when
he emerged from
the bar. When he did so he was still talking loudly.
As he was leaving he had swung around to wave to his friends, and had
seemed
unable on his feet at that stage.
[25] John Charles de Beer then gave
evidence and testified that he was the owner of S E Services, a
security services company which
rendered services to the owner of the
Sunningdale Shopping Centre, and had been doing so for approximately
five years. He had previously
assisted with the management of the
shopping centre, but not on a full-time basis. He attended to
repairs, arranging for defects
to be attended to, etc. He was
familiar with the staircase and was aware of the incident but was not
able to say whether or not
the light had been working on the night in
question. He said that during 2007 faults would be reported to him
and he would pass
the message onto JHI who were looking after the
centre administratively.
[26] He had never seen rain on the
stairs of the stairwell. He was unable to comment on Mr
Topping
’s
suggestion that it had rained heavily that night, and that people had
complained of the wet stairs. He conceded that the
foot traffic of
people using the stairwell would carry water down the stairs.
[27] Mr de Beer acknowledged that he
had received complaints about the fire extinguisher hose on the
middle landing leaking, although
he had not seen it himself. He
maintained however, that things had more recently been improved and
the stairwell had been better
illuminated after the incident. He
conceded that at the time of the incident lights could have been off
in the stairwell for a
couple of days.
[28] The defendant then closed its
case.
[29] At the end of the first day of
the trial an inspection
in loco
was conducted which was
attended by Mr
Marais
SC, Mr
Topping
and myself. The
record of that inspection
in loco
is contained in annexure F
but the most relevant aspects were the following findings :-
the stairwell comprising two tiers of
stairs is completely covered;
from the top landing approximately
12 stairs lead to the central or middle landing; and
after the middle landing
approximately another ten stairs lead to the bottom of the
stairwell which leads into a parking area
at the bottom end of the
shopping centre; and
there are two large round lights in
the stairwell, one in the vicinity of the top landing approximately
a metre below the ceiling
line and the second on the left-hand side
of the middle landing at approximately the same height below the
ceiling;
when the inspection
in loco
was conducted the middle landing light was covered so that the only
light available was the round light in the vicinity of the
top
landing; and
it was dark, and if one descended the
stairwell from the top landing the lighting was such that the tile
covering the top of each
step was clearly visible, albeit dimly lit.
The available lighting was poor;
Mr
Marais
SC placed a R1 coin
and a 50 cent coin on each of the bottom two steps of the top half
of the stairwell i.e. immediately above
the middle landing. As one
descended the top half of the stairs those coins were visible, as
was amply demonstrated when a passerby,
unconnected with the
inspection
in loco
, came down the stairwell oblivious to the
presence of those attending the inspection
in loco,
and
picked up the two coins;
The fire hydrant was present on the
middle landing as evidenced in the photographic exhibits and the
stairwell was covered through
its entire length running from a
roughly easterly to westerly direction; and
When the inspection
in loco
was conducted the light above the middle landing was covered. At the
end of the inspection
in loco
the light was uncovered and the
visibility was dramatically improved and one was able to see the
steps much more clearly;
As one descended the stairs from the
top the lighting was initially dim, but at the bottom one emerged
into fairly bright lights
from a chemist’s shop at the bottom
of the stairs; and
The fire hydrant on the middle
landing would not have leaked onto the steps above it, but it was
agreed that foot traffic may
have carried any water lying on the
middle landing onto the few steps above it.
[30] Mr
Topping
submitted in
argument that the most likely reason why the plaintiff fell was a
combination of wetness and the fact that the stairs
were dimly lit.
Confirmation of these facts is to be found in the evidence of Mr van
Zyl who testified as to the rain. The poor
lighting was common cause.
Had all the lights been properly working, the plaintiff would have in
all probability detected the wetness
and sought to avoid it. Mr
Topping
referred to various cases involving persons who
slipped and fell and the liability attaching to those in charge of
such premises.
[31] Mr
Marais
SC argued that
the plaintiff had failed to demonstrate any negligence on the part of
the defendant, and even if such negligence
was demonstrated, there
was no causal link between the negligence and the injuries sustained
by the plaintiff. He said that as
this stairwell was situated
outside, people should expect rain to intrude and for the stairwell
to be wet.
[32] Mr
Marais
SC maintained
that as the plaintiff could not explain why he had fallen, he could
not succeed. There were a number of possible
explanations for his
falling such as :-
the poor state of the lighting,
resulting in the plaintiff being unable to see properly and losing
his footing – this was
discounted by the inspection
in loco
where it was evidenced that the lighting, albeit poor, was
sufficient;
that he slipped on wet stairs –
this had not been established;
that he slipped because he was
intoxicated- the plaintiff had conceded his excessive alcohol
consumption;
that he might just have fallen
anyway.
[33] The onus was on the plaintiff to
pinpoint the probable cause of his fall, and he could not do so.
[34] Mr
Marais
maintained that
this was not a case where, with the exception of the expert witness
Gaze, and the plaintiff’s evidence on
his consumption of
alcohol on the night, the witnesses could be criticized.
[35] Despite what the plaintiff had
said in his evidence, Mr
Marais
SC maintained that it was
clear that he believed he had fallen because of water causing the
tiles on the steps to become slippery.
This was not, however, his
evidence.
[36] In reply, Mr
Topping
pointed out that the plaintiff had said that he landed in water and
not that he had fallen because of it.
[37] What we are concerned with in
this case is the duty of care owed by the defendant to ensure that
members of the public using
the stairwell in the Sunningdale Shopping
Centre were not harmed as a result of poor lighting or that the
stairwell was not kept
free of objects or substances which could
cause people to fall and harm themselves. A failure to do so would
constitute the necessary
element of wrongfulness which, in addition
to the requirements of fault, causation and harm, would determine
liability for delictual
damages caused by an omission.
See
:
van Eeden v Minister
of Safety and Security
2003(1) SA 389 (SCA) at 395H-396E
[38] From the evidence referred to
above the following emerges :-
that the light above the middle
landing of the stairwell was not working on the night in question
and consequently the lighting
conditions on the stairwell were poor.
This emerged both from the evidence of Pancholy and the inspection
in loco
. The fact that one could have made out the steps, and
even possibly anything lying on them, does not detract from the fact
that
poor lighting made it more difficult to see anything lying on
the steps; and
it had rained heavily that night and
at least the top of the stairs would have become wet from the rain
which would have been
driven under the cover at the top of the
stairs by the easterly wind. This emerged from the evidence of van
Zyl. That the wind
would cause the rain to come in under the roof at
the top of the stairwell was also confirmed by Pancholy;
the fire hydrant was a continual
problem in that it leaked. That it was doing so at the time is to be
found in the plaintiff’s
evidence that when he landed on the
middle landing, he had got the impression that it was wet. As there
was no evidence that
he was bleeding from his fall, water is the
most likely source of that wetness. It was evident from the
inspection
in loco
that water leaking from the fire hydrant
would not have leaked onto the steps above the middle landing, but
that foot traffic
could have carried water onto those steps.
[39] Although the plaintiff in his
evidence said he could give no explanation for why he had fallen, it
appeared he was being somewhat
over-cautious in his evidence. I say
this because it is clear from the evidence gathered shortly after the
incident that the plaintiff
believed he had fallen because of water.
In the statement taken down by his wife it was recorded that he had
slipped on something
wet. The fact that the words “due to rain”
had been scratched out appears in hindsight to be attributable to the
fact
that the plaintiff and his wife were probably unsure whether the
water had come from the rain or from the fire hydrant, or indeed
from
some other cause. In addition, the probabilities favour the plaintiff
having informed Mr Domingo that he had slipped on water
which was on
the stairs. This version appears likely because Mr Domingo also
records that the plaintiff was carrying a shopping
bag in his right
hand, a factor which he confirmed in evidence.
[40] There is a discrepancy in this
evidence insofar as Mr Domingo later records that the plaintiff’s
wife drove him home.
This may have been an assumption on Mr Domingo’s
part, because the plaintiff denied that he had told her that.
[41] In addition, in the documents
provided in respect of Theo Gregersen an occupational health and
safety specialist who did not
testify at the trial, but whose expert
summary was included in Exhibit C, is an interview with the plaintiff
where it is recorded
that the plaintiff apparently stated that his
foot had slipped “on a wet spot”.
[42] Viewing the evidence in its
totality, it would seem that on a balance of probabilities the cause
of the plaintiff’s fall
was the presence of a wet patch on the
stair where his foot slipped. One cannot discount the possibility
that he would have been
better able to see that wet patch, had the
light above the middle landing of the stairwell been working.
[43] The defendant was accordingly at
fault in not ensuring that the lighting was properly maintained and
the stairwell kept free
from water. Indeed, no evidence was led on
the part of the defendant to demonstrate that it had taken steps to
maintain or ensure
that the stairwell was properly maintained.
Indeed, the evidence of Mr de Beer on behalf of the defendant would
appear to contradict
such a conclusion.
[44] In those circumstances the
failure on the part of the defendant as set out above was causally
linked to the plaintiff falling
on the stairwell. The extent of the
harm caused to him is something which is to be determined at the next
phase of the trial.
[45] What remains for me to consider
is whether the negligence of the plaintiff himself contributed to his
falling. Whilst Mr
Mara’s
SC indicated that the
plaintiff should not be believed on the question of how much he had
to drink on the night in question, I
am not persuaded that I should
do so. The evidence of the plaintiff was contrasted with the evidence
of Mr van Zyl who was of the
view that the plaintiff had been
somewhat loud on the night in question and had consumed approximately
six beers. Even if he had
done so, the evidence of the plaintiff was
that he could handle his drink and would be completely stable after
consuming six to
eight beers. Although disputed, no evidence was led
by the defendant in that regard. The plaintiff candidly acknowledged
that he
was accustomed to drinking six beers on any given day, but
was adamant that on the day in question he had only consumed two
beers.
Although he may have attracted the attention of Mr van Zyl by
his behaviour in the bar, it seems unlikely that Mr van Zyl would
have consciously counted the number of beers which the plaintiff
consumed. The suggestion by Mr van Zyl that the plaintiff had
been
unstable on his feet at the time he left the bar, is based on his
evidence that the plaintiff had turned and was waving to
his friends
as he left the bar. I am not satisfied that I am able to conclude
from this that any instability which may have been
evidenced in the
plaintiff’s gait whilst he was turning was due to his drinking
could have contributed to his fall.
[46] There is nothing else in the
evidence which would indicate that the plaintiff was at fault in the
manner in which he descended
the stairwell. Indeed, he seems to have
taken the sensible precaution of holding onto his wife’s hand
while they were descending
the stairwell. Whatever his reason for so
doing, the fact that he did so would have contributed to his
stability in descending
the stairwell. To paraphrase Hattingh J in
Kriel v Premier, Vrystaat en Andere
2003 (5) SA 66
, para 12, a
person walking down a flight of stairs is not obliged to study each
step carefully to ensure that there are no obstacles
in his path. In
my view he was not contributorily negligent in any way.
[47] I accordingly make the following
order :-
(1) the defendant is liable to
compensate the plaintiff for any damages which he may prove that he
has suffered as a result of the
fall which he sustained on the
stairwell at the Sunningdale Shopping Centre on the 14
th
September, 2007;
(2) the defendant is directed to pay
the costs of the action thus far.
Date of hearing : 22
nd
February 2011
Date of judgment : 4
th
March 2011
Counsel for the Plaintiff : I Topping
(instructed by Friedman & Associates)
Counsel for the Defendant : J Marais
SC (instructed by Deneys Reitz Inc)