Prinsloo v Barnyard Theatre and Another (27705/06) [2009] ZAGPPHC 105 (4 September 2009)

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[2009] ZAGPPHC 105
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Prinsloo v Barnyard Theatre and Another (27705/06) [2009] ZAGPPHC 105 (4 September 2009)

IN THE NORTH GAUTENG HIGH COURT
(PRETORIA)
CASE No.: 27705/06
In the matter between:
PRINSLOO R. PLAINTIFF
and
BARNYARD THEATRE FIRST DEFENDANT
OLD MUTUAL LIFE INSURANCE CO (SA) LTD SECOND DEFENDANT
JUDGMENT
Hiemstra AJ
[1] On the evening of 2 November 2004, the plaintiff, Mrs Ronel
Prinsloo, together with her daughter and two nieces, attended a
show
at the Barnyard Theatre in the Menlyn Shopping Centre in Pretoria.
They were seated on the upper level of the theatre. After
the show
they proceeded downstairs using the staircase. The plaintiff walked
ahead of her group while holding on to the wooden
handrail on her
right. She reached a landing at the bottom of the first flight of
stairs. The next flight of stairs is to the right
of a person
descending and consists of five steps. From the third step down from
the landing the stairs widen. There are two concrete
pillars at the
entrance to these last five steps which form a kind of portal. The
guardrails end at the bottom of the first flight
of stairs. There are
no guard rails along the last five steps. The plaintiff testified
that when she started down the first of
the last five steps she
expected the handrails to continue and reached for a handrail with
her right hand. When there was no rail,
she lost her balance and fell
down the stairs. She crushed her left elbow in the fall and suffered
bruises and chafe wounds. She
also suffered psychological trauma.
[2] She instituted action against the first and second defendants for
payment of the sum of R580 977,53, which is made up of hospital
and
medical expenses incurred; future hospital and medical expenses; loss
of income and loss of earning potential.
[3] The parties agreed that the merits of the claim and the quantum
of damages should be separated. I accordingly made an order
in terms
of Rule 33(4) to that effect and the trial proceeded on the merits
only.
[4] "The Barnyard Theatre" is the trading name of On Cue
Investments Kilo CC, which conducts the business of a theatre.
The
second defendant is the landlord of the prem­ises. The plaintiff
withdrew her claim against the second defendant at the
outset of the
trial. The parties agreed that should this court find that the
plaintiff's injuries had been caused by a wrongful
and negligent act
or omission on the part of either the first or second defendant, the
first defendant would be liable for the
plaintiff's damages. The
parties further agreed that I should decide which of the plaintiff or
the first defendant is responsible
for the second defendant's costs.
[5] The plaintiff testified that the staircase had been poorly lit.
She further testified that she went to inspect the staircase
some
time later after she had been discharged from hospital. On that
occasion she found that the stairs were not of equal height.
She
vacil­lated under cross-examination as to the cause of her fall.
It was not clear whether it was the absence of a handrail,
the poor
lighting or the uneven steps or all of them.
[6] The plaintiff's daughter, Mrs E. Campher, who had walked down the
stairs right be­hind the plaintiff, testified that her
mother had
fallen because she had reached for the non-existent handrail and lost
her balance.
[7] The night manager, Mr Bjorn Schlickemeier, testified that he was
looking down the stairs from the upper level when the accident

happened. He did not actually see her fall, but saw the plaintiff
lying at the foot of the stairs. He was adamant that the lighting
had
been quite adequate. He said that there was no dimmer switch that
could be turned down.
[8] Mr Tom Muller, one of the members of the first defendant close
corporation and the manager of the theatre, was not present
at the
night of the fall. Mr Schlickemeier re­ported the incident to
him. Mr Muller confirmed that there was adequate lighting.
He said
that the lights are always on and are only switched off when the
theatre is locked up at night. The theatre is in a shopping
centre
and there is no natural light at any time. He said that the staircase
had been designed by an architect according to prescribed

specifications. He saw no need for a handrail along the bottom steps.
He further testi­fied that according to bookings, approximately

130 000 people attend shows at the theatre per year. Since the
opening of the theatre in November 2002 there had been about three

incidents where patrons had fallen. However, all the other incidents
hap­pened in other areas of the theatre and none at the
stairs.
[9] Several photographs were presented of the staircase. There is
nothing out of the ordinary about the staircase. The last five
steps
are wide with a gentle slope. It is diffi­cult to determine the
state of lighting from photographs, but it does not appear
to be
particularly dark. Several lights are visible above the staircase.
[10] Despite the plaintiff's confusion as to the cause of her fall, I
am satisfied on a con­spectus of her evidence and that
of Mrs
Campher that she fell because she lost her balance when she expected
a handrail when there was none. The alleged poor lighting
and uneven
steps had nothing to do with her fall.
[11] The plaintiff's claim is that she was injured because of the
defendants' failure to install a handrail along the bottom steps.
The
law regarding an omission as a wrongful act that can give rise to a
duty of care and delictual liability is trite. A useful
summary of
the law is found in the judgment of A. P. Joubert AJ in Faiga v Body
Corporate of Dum­barton Oaks and another
1997 (2) SA 651
(W) in
which several guiding dicta are quoted, e.g.:
Administrateur, Transvaal v Van der Merwe
[1994] ZASCA 83
;
1994 (4) SA 347
(A) at
358D-F where the following was said:
"'n blote late [kan] ook onregmatig [wees] indien dit, volgens
die gemeenskapsoortuiging, onredelik oftewel sosiaal-inadekwaat
is.
Indien daardie late ook spreek van nalatigheid, is daar deliktuele
aan-spreeklikheid."
And at 360E—G:
"Natuurlik is dit so dat beheer oor eiendom aanspreeklikheid kan
meebring omdat juis daardie beheer sosiale verantwoordelikheid
en
gevolglik 'n regsplig kan skep om die beheer doeltreffend uit te
oefen so-
dat andere nie benadeel word nie."
[12] It was held in Peri-Urban Areas Health Board v Munarin
1965 (3)
SA 367
(A) as follows at 373E--H:
"In general, the law allows me to mind my own business. Thus if
I happen to see someone else's child about to drown in a pool,

ordinarily I do not owe a legal duty to anyone to try to save it. But
sometimes the law requires me to be my brother's keeper.
This
happens, for example, when the circumstances are such that I owe him
a duty of care; and I am negligent if I breach it. I
owe him such a
duty if a diligens paterfamilias, that notional epitome of reasonable
prudence, in the position in which I am in,
would -
foresee the possibility of harm occurring to him; and
take steps to guard against its occurrence.
Foreseeability of harm to a person, whether he be a specific
individual or one of a category, is usually not a difficult question,

but when ought I to guard against it? It depends upon the
circumstances in each particular case, and it is neither necessary
nor
desirable to attempt a formulation which would cover all cases.
For the purposes of the present case it is sufficient to say, by
way
of general approach, that if I launch a potentially dangerous
undertaking involving the foreseeable possibility of harm to
another,
the circumstances may be such that I cannot reasonably shrug my
shoulders in unconcern but have certain responsibilities
in the
matter - the duty of care."
[13] I shall consider this matter in view of the above principles.
The first question is whether the first defendant was in control
of a
potentially dangerous object, namely a dark staircase without a
handrail. I am satisfied that it was never so dark that one
could not
see the stairs, and whether or not there had been a handrail.
Therefore, if the plain­tiff had looked for a handrail,
she would
have seen that there was none.
[14] The next question is whether it was foreseeable that a normally
prudent and care­ful person would assume that there was
a
handrail and reach for it without looking. I believe not. When the
plaintiff reached the landing, she found herself in a new

envi­ronment. The steps took a new direction and there were
concrete pillars on each side that formed a portal to the last
five
steps, the last three of which are noticeably wider. There was
nothing from which she could assume that there would be a handrail

identi­cal to the one on the stairs that she came from. The
staircase, in particular the last five steps, can be negotiated
by
any healthy able-bodied person. The plaintiff agreed that she was a
healthy woman who had no difficulty negotiating stairs.
[15] I therefore find that no special duty of care rested on the
first or second defendant. One could not foresee the likelihood
of a
person assuming that there was a handrail and reach for it only to
grab fresh air.
[16] People negotiate all kinds of stairs and obstacles in everyday
life without falling. Sometimes they stumble and fall where
there are
no obstacles, even in their own homes. It cannot be expected of
owners of property to protect the public against their
own
inattentiveness or possible clumsiness.
[17] I therefore find that the defendant has not caused the fall of
the plaintiff.
[18] That brings me to the question of whether the plaintiff or the
first defendant should pay the costs of the second defendant.
[19] On 8 November 2006 the first defendant's attorney wrote to the
plaintiff's attorney as follows:
"Ons bevestig dat die eerste verweerder, namens wie ons hierin
optree, op risiko was ten tye van die beweerde voorval op 2
November
2004.
Sou u klient kan bewys dat ons klient nalatig was, soos beweer (wat
ontken word), sal u klient van ons klient kan verhaal die skade,

indien enige, wat sy kan bewys.
In die omstandighede sal u klient dan 'n besluit moet neem of sy nog
steeds met 'n aksie teen die tweede ven/veerder wil voortgaan."
[20] In a letter marked "URGENT", dated 17 August 2007, the
second defendant's at­torney referred the plaintiff's
attorney to
the first defendant's letter of 8 November 2006, referred to above,
and explained that the first defendant's risk arose
from a
contractual provision between the first and second defendants. The
plaintiff's attorney is urged to consider whether the
plaintiff wants
to proceed against the second defendant in the cir­cumstances. On
7 October 2008 the second defendant's attorney
again requested the
plaintiff's attorney urgently to respond to the matter. The
plaintiff's attorney did not re­spond to any
of the letters.
[21] On strength of the above correspondence Adv Pieterse, who
appeared on behalf of the first defendant, argued that the plaintiff,

or her attorneys, knew at all times that the first respondent had
accepted the risk.
[22] Adv Geach SC argued on behalf of the plaintiff that despite the
correspondence, the first defendant never admitted in its
plea, which
was filed on 23 April 2007, that it alone was at risk. He argued that
the plaintiff could therefore not assume that
the first defendant had
accepted the risk. This argument is spurious. The second defendant
ex­plicitly denied in its plea that
it had control over the
premises. Furthermore, its attorney explained in a letter to the
plaintiff's attorney the basis of the
first defendant's sole
po­tential liability, namely a contractual provision between the
first and second defendants. This should
have made it clear to the
plaintiff that only the first defendant was poten­tially liable.
It was therefore unreasonable to
have proceeded against the second
de­fendant.
The plaintiff's claim is dismissed with costs, including the costs of
the second defen­dant.
J. Hiemstra AJ
2009-09-02