About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2009
>>
[2009] ZAGPPHC 351
|
|
Kriek v Steinberg (16185/2008) [2009] ZAGPPHC 351 (11 December 2009)
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: 16185/2008
DATE:
11 DECEMBER 2009
IN
THE MATTER BETWEEN:
HANRIA
KRIEK PLAINTIFF
AND
JOHANNES
LODEWICUS
STEINBERG DEFENDANT
JUDGMENT
LTUWAHA.
J
[1]
The plaintiff instituted a delictual
action against the defendant claiming an amount of R 880 000 for the
damages she suffered when
she fell on the staircase in the
defendant's house.
[2]
Some preliminary issues regarding a
document which was sent to the defendant's attorney's by mistake
containing the plaintiff's
statement made to her attorney during a
consultation, the attending of an inspection
in
loco
by the court and the notice
of intention to amend filed by the plaintiff were raised before the
witnesses testified. I ruled that
the admissibility of the said
document would be dealt with when the defendant's counsel decides to
use it during the trial, the
proposed amendment to the plaintiffs
particulars of claim, the words tripped and by deleting the first
line of paragraph 3 the
words "and would therefore create"
be deleted in paragraph 44 and be replaced with the words 'and/or
created” by
adding the words “or fall" after the
word "slip" in the last line of paragraph 4 4 was granted
and I. together
with the parties counsel and legal representation
went to the defendant's house to inspect the area where the incident
took place
;
see exhibit C, minutes of the inspection
in loco
.
The inspection in loco was a beneficial exercise.
[3]
As the parties agreed, I further ordered in terms of Rule 33(4) that
the merits and quantum be separated. The trial proceeded
on the
merits only and the quantum proceedings were stayed. Exhibit B a
bundle which was handed in by agreement, contained pleadings,
house
plans, homeowner's insurance policy, WinDeed Report of portion 6 of
erf 680 Rietfontein, plaintiffs expert report (the contents
of which
were admitted by the defendant s), photographs and admissions by the
parties.
[4]
The plaintiff testified and closed her case without calling any
witnesses. Thereafter, the defendant's counsel made an application
for absolution from the instance, and it was opposed. The application
was dismissed. The defendant testified and he also closed
his case
without calling any witnesses.
[5]
The factual backdrop which is common cause is that on the 9th June
2007, the plaintiff's children attended a party which was
held at
Rietendale Lodge in Pretoria. At about 18H00 some of the children and
their parents went to the defendant's house to continue
with the
party. The plaintiff said she consumed about half a bottle of wine.
At about 23H00 the plaintiff climbed the stairs shown
on the
photograph in exhibit B, up to the fourth or fifth step from the
bottom to call her children. Whilst on the fourth or fifth
step she
made a U-turn to the left to her left to descend the stairs. She said
in the process when she was facing the bottom of
the steps she lost
her balance and fell forward. As she was falling forward she grabbed
the wooden rail of the balustrade next
to the end of the rail where
there is a knob attached to the rail. The hand that grabbed the rail
slided to the knob and the knob
just came out of the rail and she
ended lying at the bottom of the steps in the passage
[6]
The plaintiff further testified that what caused her to loose balance
is a combination of one or more of all of the following:
6.1
the inadequate lighting and/or;
6.2
the slippery tiles and/or.
6.3
the unevenness of the stairs.
[7]
The defendant stated that he purchased and occupied the house in
about November 2006. It has three bedrooms on the top floor
and it
was built about fifty years ago. The diagram and measurements of the
staircase is as drawn and measured by the plaintiff's
expert Len
Eybers (the architect).
[8]
He further said that when he purchased the house the tiles, including
the balustrade on the staircase, had already been fitted
The rail had
always been firmly attached to the wall with some brackets. However,
he testified that he could not comment on whether
the knob had been
loose or not prior to the plaintiffs incident. He mentioned that his
children were three and six years old when
they occupied the house
and they managed to move up and down on the staircase. He stated that
when he ascended the steps he did
not generally hold the handrail but
when he descended he would hold the rail and leave it before he
reached the bottom knob that
is why he cannot comment on how the knob
was fixed to the rail.
[9]
The defendant testified that the light on the staircase clearly
illuminated the staircase at night when it was switched on.
It
is
not in dispute that the light was on when the incident occurred. He
also said the tiles were not slippery and they were cleaned
with an
ordinary tile cleaner
[10]
The plaintiff's claim is based on
the defendant's negligence in that he was, inter alia:
10.1
the stairs and the balustrade on the
premises were safe and suitable for use by persons visiting the
premises;
10.2
the stairs and balustrade were
constructed in accordance with the relevant National Building
Regulations and/or in compliance with
the standards prescribed
thereby.
10.3
the stairs and the balustrades did not
create a dangerous situation;
10.4
the stairs were not slippery and
dangerous for use; and
10.5
the balustrade was properly fitted and not dangerous for use
[11]
Legally an omission may in certain
circumstances be regarded as a wrongful act can give rise to
delictual liability. In
Peri-Urban
Areas Health Board v Munarin
1965 (3)
SA
367
(A)
as follows at 373E-H the
court said:
"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
-
(a)
foresee the possibility of harm
occurring to him; and
(b)
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. “
[12]
In casu. it is trite that the stairs
and the balustrade were not constructed in accordance with the
National Building Regulations
and/or the South African Bereau of
Standards regulations, see contents of the report by the architect.
[13]
On the fact of this case
non-compliance with the building regulations would not per se impute
delictual liability to the defendant.
Failure to comply with relevant
regulations is merely a factor to be considered when determining
presence or absence of negligence.
[14]
The defendant testified that he had
been staying in the house for about eight months together with his
family and he nor members
of his family had not fallen whilst walking
on the steps. He further said he did consider reconstructing the
stairs but it would
involve about R 50 000 and other astronomical
costs to do major structural changes on the house. The burden and
costs of eliminating
the risk of harm is a factor to be considered in
determining the liability of the defendant, see Rocky Lodge v Livie
1977 (3) SA 231
RA 235.
[15]
In assessing the standard of care
required a reasonable man should have foreseen the real possibility
of harm, an ex post facto
knowledge is not sufficient. A mere
possibility of harm is not enough, a reasonable person must foresee a
reasonable possibility
of harm, see Lomagundi Sheetmetal &
Engineering (Pvt) Ltd v Basson
1973 (4) SA 523
(RA) at 524-525.
[16]
The defendant and his family have
been using the staircase regularly, and according to him they were
safe and to be used. According
to him the balustrade was safe and he
was not aware that the knob was loose If he knew that the knob was
loose, reasonably foresaw
the possibility of harm to a person loosing
balance and holding to a loose knob and he failed to take reasonable
steps to fix his
omission it would be regarded as negligence.
[17]
In assessing the plaintiff's
evidence, she managed to climb the steps up to the fourth or fifth
step and executed a three hundred
and sixty degree turn on a
staircase is, in my view such a conduct is potentially dangerous
conduct and it should be done with
great care and circumspection.
[18]
The plaintiff cannot explain clearly
what made her to loose her balance. Her explanation that it could
have been a combination of
the insufficient light and/or slippery
tiles and/or the unevenness of the stairs is a speculation. She
cannot justify her loosing
her balance. There may be other factors,
unknown to the court which could have caused her to fall which cannot
be attributed to
any wrongful conduct on the part of the defendant.
[19]
On the evidence presented the
plaintiff failed to prove that the knob was loose before she touched
it and that the defendant was
aware that the knob was loose and he
failed to take reasonable steps to prove the harm
[20]
The defendant denied that the steps
were slippery. Even if I was not at defendant’s house in June
2007 when the incident occurred.
The inspection in loco was helpful
in assessing the quality of the tiles in the defendant's house When I
walked on the steps and
in the house I did not experience any
slipperiness on the tiles
[22]
In the light of the aforesaid, I make the following order: Plaintiffs
action is dismissed with costs.
A.
P. LEDWABA
JUDGE
OF THE HIGH COURT
Date
of hearing: 1 December 2009
Counsel
for Plaintiff: Advocate L. Kilmartin
Instructed
by: Adams & Adams Counsel for Defendant: Advocate E. Ferreira
Instructed
by Gildenhuys Lessing Malatji