Gabriel and Another v Enchanted Bed and Breakfast cc (5566/2001) [2002] ZAWCHC 40 (2 August 2002)

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[2002] ZAWCHC 40
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Gabriel and Another v Enchanted Bed and Breakfast CC (5566/2001) [2002] ZAWCHC 40; 2002 (6) SA 597 (C) (2 August 2002)

IN THE HIGH COURT OF
SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
Case no.: 5566/2001
In the
matter between:
EDWARD LYON
GABRIEL
1
st
Plaintiff
BARBARA
PHILLIPA GABRIEL
2
nd
Plaintiff
and
ENCHANTED BED AND BREAKFAST CC
Defendant
JUDGMENT GIVEN THIS
FRIDAY, 2 AUGUST 2002
­­­­­­­­­­
CLEAVER
J:
[1] This case concerns the application of
Praetor’s edict
“de nautis
cauponibus et stabularis”
and in
particular the strict liability imposed by that edict on innkeepers
in respect of goods brought onto their property by guests.
[2] The plaintiffs are Mr and Mrs Gabriel, an ex-South African couple
who emigrated to the USA some 22 years ago and who have lived
in that
country ever since. On 6 March 2001 they visited Cape Town on
holiday and booked in at an accommodation establishment in
Craigrownie Rd Sea Point, known as Enchanted Bed and Breakfast (the B
& B), owned and operated by the defendant.
[3] The room occupied by the plaintiffs, room no.
6, was on the first floor facing the sea with access to it being
gained by an external
spiral staircase leading up to a deck outside
the room from which in turn access was gained to the room. Before
the trial commenced
I attended an inspection
in
loco
with the parties’ legal
representatives. The following details of the room and deck are
important:
The wall of the bedroom facing the sea comprises
two large plate glass panes, each 2.3 metres high. Above one of
these panes there
are three small windows, each measuring 40cm by
60cm. These windows are today fitted with burglar bars, but at the
time of the event,
which gave rise to the claim, they were unbarred.
A door providing access to the room from the deck, is positioned next
to the plate
glass pane on the Cape Town side. It is constructed of
timber. The bottom portion is solid, but it has eight clear glass
panes
in it above the solid portion. The door opens outwards.
Attached to the doorframe on the inside is an expanding metal door
(known
as a
“trellidoor”
),
which has a lock and key. The trellidoor was in place at the time of
the incident. Full-length curtains are provided which cover
the two
plate glass panes and the small windows above. A counter (the
‘kitchenette counter’
)
is positioned against an interior wall, which runs at right angles to
the plate glass wall. It is at a height of 1 metre from the
floor
and the side nearest to the glass wall extends to approximately 1,2
metres from the wall. It is positioned more or less in
front of the
outside door already described. A small bathroom is situated behind
the wall on which the kitchenette counter is fixed.
Access to it is
gained through a door from the bedroom, which can be locked. The
bathroom has one window. It has only one pane
which measures 55cm by
55cm. This pane opens upward from the bottom to a maximum distance
which permits a gap of 18cm. (The opening
action of the pane is
limited to this extent.) Although there are today burglar bars on
this window, there were no bars on the window
at the time of the
incident.
[4] On 8 March 2001 the plaintiffs returned to their room between
22h45 and 23h15 after visiting friends. The plaintiffs testified
that the manageress of the B & B, Mrs Rauch, had explained to
them that the purpose of the trellidoor was to secure themselves
within the room while leaving the outside door open. It was in fact
necessary to leave the outside door open as it was summer time
and by
doing so they were able to get fresh air into the room, which they
would not otherwise have been able to do. They retired
to bed almost
immediately after returning to the room. On waking up at about 06h00
Mr Gabriel found that his watch, which he normally
takes off and
places next to his bed before going to sleep, was not there. He then
got up and found that he could also not find
his wallet. Furthermore,
he noticed that the trellidoor was open with its key in the lock on
the inside, while the outer door had
been closed. On speaking to his
wife he ascertained that her watch and jewellery, which she had
placed in an ashtray next to her
bed, were also missing. In due
course the plaintiffs discovered that certain items of clothing
belonging to each of them were also
missing. They were adamant that
the trellidoor had been locked and the key removed from the lock
before they retired to bed. This
evidence was not disputed by the
defendant. They explained that in their household Mrs Gabriel assumed
the responsibility of locking
up and tidying the bedroom before
retiring each night. Mrs Gabriel explained that the reason for this
was that she was somewhat
neurotic about these aspects and since her
husband was rather absent-minded he deferred to her views in this
regard.
I accept the plaintiff’s evidence that having regard to the
vulnerability of the room to intruders had the trellidoor not been
locked, coupled with Mrs Gabriel’s invariable practice of locking
up before retiring, they would not have left the trellidoor unlocked
and did not do so. That Mrs Gabriel was concerned about her safety
is evidenced by the fact that she placed a heavy chair in front
of
the door giving access to their room from the inside of the
establishment when retiring each night. She says that she did this
because she did not have a key for the door (it was used by staff in
order to gain access for cleaning purposes). It is clear that
the
room was entered and burgled during the night. During the course of
the morning the theft was reported to the police.
[5] It is common cause that a small safe in which
valuables could be stored was provided by the B & B in a cupboard
in the room.
Mrs Gabriel placed their passports and some dollars in
cash in the safe. The jewellery which was stolen, she explained, was
not
placed in the safe because it was the jewellery which she wore
daily. (I interpose to say that the stolen jewellery included two
sets of earrings, but for the rest, the items were all items of
jewellery which she wore each day.) It was her custom too to remove
her watch upon retiring and to replace this with her everyday
jewellery next to her bed. During the course of the trial the
quantum
of
the plaintiff’s claim in respect of stolen items was settled at
R252 000.
[6] The facts thus far recorded establish a
prima
facie
case for the defendant to be held
liable in terms of the Praetor’s edict.
Davis v Lockstone
1958 AD 153
at 158 and 166
LAWSA Vol 11 para 32.
One might have expected that the strict liability
imposed by the edict would have disappeared from our jurisprudence by
now and been
replaced by a simple test for negligence on the part of
the innkeeper, but the principles set forth in
Davis
v Lockstone
have remained unaffected by
the passage of time.
[7] I now
turn to the defences raised by the defendant. These are:
7.1 The
loss was unforeseen, unexpected and irresistible.
7.2 That
the defendant was exempted from liability.
7.3 That
the plaintiffs’ negligence caused the loss.
7.4 That the defendant was entitled to an apportionment of the loss
resulting from contributory negligence by the plaintiffs.
Since these are special defences, the onus of establishing any one of
them rests on the defendant.
[8]
UNFORSEEN,
UNEXPECTED AND IRRESISTIBLE CIRCUMSTANCES
The strict distinction between these defences
known in Roman Law as
vis casus
fortuitus, damnum fatale
and
vis
major
is no longer applied, and any
event, which is unforeseen, unexpected or irresistible and which
human foresight cannot guard against
such as burglary with violence
or unavoidable accident, can be raised as a special defence (LAWSA,
Vol 11 (Hotels and Tourism) paragraph
35). It is clear that the
burglary which occurred at the B & B was not one accompanied by
violence. As to the defence of unforeseeability
the evidence was
clear that thefts from houses in the area were common at the time.
Both the B & B and a bed and breakfast establishment
immediately
adjacent to it
had
experienced intruders coming on to the properties. The premises next
door had been burgled while one of the members of close
corporation
which owns the B & B had surprised an intruder on the premises of
the B & B and had been fortunate in being able
to chase him off.
There had also been a break-in at a private home across the road and
here again the owner of the house had been
able to chase the burglar
away. One of the policemen who testified stated that break-ins in
the area were, fortunately for the inhabitants,
invariably not
accompanied by violence. It was his experience that when confronted,
the intruders would flee. In the light of the
prevailing
circumstances, this defence cannot succeed.
[9]
EXEMPTION FROM
LIABILITY
This defence stems from the exhibition of a notice reading
“
The owner and the staff will not be held liable for any loss or
damage sustained by whatsoever cause.”
at the premises.
At the time of the inspection
in
loco
, two notices in the form mentioned
above were displayed. One was affixed to the wall in the reception
area above a desk upon which
a register recording the names of guests
was kept. The other was affixed to a glass pane in one of the double
doors through which
access is gained to the premises from the street.
It was common cause that at the time of the Gabriel’s visit, only
the notice
on the front door was displayed. Mrs Rauch testified that
after the burglary had occurred, Mr Berzack, one of the members of
the
defendant, had instructed her to display another copy of the
notice more prominently. This is the notice which is now to be seen
on the wall in the reception area. According to Mrs Rauch this was
done in order to protect themselves. After the event a similar
warning was also
added
to the information on the B & B’s website and the size of the
lettering on the notice affixed to the door was also increased
slightly. As to this notice, it is relatively insignificant in
appearance on the door taking up approximately ¼ of the area of
one
of eight glass panes in one of the two double doors. At the time of
the inspection it was dwarfed by a
“FULL”
sign, which covered the whole pane immediately above it. Mr McGill,
who at the time in question was the manager
of the bed and breakfast establishment
next door, testified that although he had been a regular visitor to
the B & B prior to
the burglary, he had never seen the sign. The
plaintiffs, who at best for the defendant would only have gone
through the door once
(they were required to use the out-door
entrance to their room) also testified that they had never seen the
sign. It is common cause
that the sign was never pointed out to them
and in fact; it was never put to them in cross-examination that the
sign had been in
place on the front door when they visited the B &
B. The defendant’s case was also that a notice similar to that
which was
on the front door appeared in the brochure which had been
left in the room. In this respect also it is common cause that the
attention
of the plaintiffs was never drawn to the notice in the
brochure. They were told by Mrs Rauch that the brochure was
available, but
Mrs Gabriel testified that neither she nor her husband
looked
at
the brochure until after the theft had occurred. I accept the
plaintiffs’ evidence that they were unaware of the notice on the
front door and in the brochure and consequently there can be no
question of them ever having agreed to the terms of the notice.
[10]
THE PLAINTIFFS’
NEGLIGENCE
Ultimately this was the aspect which received most attention during
the course of the evidence. The issue concerns precisely where
the
plaintiffs had left the keys before retiring to bed on the night in
question. According to the defendant’s witnesses, there
was a
special ornamental key rack having a number of hooks on it hanging on
the internal wall of the room, but the plaintiffs testified
that they
had not seen this. Although the plaintiffs testified that they would
have seen the rack if it had been there, the rack
was in all
probability available but not noticed by the plaintiffs. Since they
did not hang the keys on the rack, the keys would
in all probability
have been placed in one of three places, namely the small glass table
near the glass wall, a dresser against the
wall opposite the
trellidoor (some three metres from the trellidoor) or on the
kitchenette counter. The counter was used for preparing
a
rudimentary breakfast or tea.
Two sets of keys were supplied for the plaintiffs.
One comprised the key to the gate providing access to the spiral
staircase along
the
side of the house, a key to the glass door giving access to the room
from the deck and the key to the trellidoor. The other bunch
had the
same keys on it, plus the key to the small safe.
Neither of the plaintiffs was able to say with
certainty where the keys had been left, and I must accordingly decide
whether leaving
the keys in any one of the places I have mentioned
would constitute negligence of the degree sufficient to relieve the
defendant
from the strict liability imposed by the Praetorian edict.
This aspect turns on the conversations which Mrs Rauch and Mr Berzack
had with the plaintiffs shortly after the theft was discovered. Mrs
Rauch testified that she was woken by a telephone call from
either Mr
or Mrs Gabriel at about 6h45. Her immediate reaction was to run
upstairs to ascertain if an isolated burglary had occurred
or whether
any of the other guests has also been robbed.
She established that the internal door
to the plaintiffs’ room was still locked. This satisfied her that
only the plaintiffs had
been burgled and she then went downstairs
again to telephone Mrs Hamburger, one of the members of the defendant
close corporation.
She was advised by Mrs Hamburger to go up to the
plaintiffs to find out what had happened, which she did. She was
still in her
nightclothes at that stage. Upon entering the room, she
says she heard Mrs Gabriel berating her husband for having left the
keys
on the kitchenette counter. In cross-examination she conceded
that Mr Gabriel might have said that it was possible that he had left
the keys there. She clearly formed the view that Mr Gabriel had left
the keys on the kitchenette counter, for when she went downstairs
to
meet Mr Berzack and Mrs Hamburger, who arrived shortly thereafter,
she informed Mrs Hamburger that the
“asshole
left the keys on the side of the table and the burglar put his hand
through and robbed them”.
This view
may well have reached Mr Berzack’s ears. Mr Berzack testified that
he had gone up to the plaintiffs’ room as soon
as he reached the B
& B. According to him, Mr Gabriel told him that he had left the
keys on the counter. Mr Gabriel denied
this emphatically, stating
that he could not be certain where the keys had been left. It seems
clear that some discussion took place
between Mr Berzack and Mr
Gabriel relating to the issue of keys being left on the counter. Mr
Gabriel clearly did not consider it
likely that the thief would have
reached through the trellidoor, picked up the keys from the counter
and then unlocked the door from
inside the room. He considered such
a manoeuvre impossible and indeed
unlikely and told Mr Berzack so. Mr
Berzack on the other hand, considered such a manoeuvre entirely
possible and says that he then
proceeded to demonstrate that it could
be done. The case for the defendant rests entirely on what Mrs
Rauch, and more particularly
Mr Berzack, said that Mr Gabriel told
them. For this reason it is necessary to evaluate the evidence given
by these parties as also
the evidence of Mrs Gabriel. Both Mr and Mrs
Gabriel gave their evidence in a very spontaneous and open manner.
Their evidence was
consistent and frank with both (Mr Gabriel in
particular) being prepared to make concessions. They were criticised
by Mr
Le Breton
,
who appeared for the defendant, for certain inconsistencies in the
list of missing items furnished to the police and the items for
which
they claimed from their insurance. In my view, such inconsistencies
as there may have been do not detract from their testimony
and can be
explained by the fact that the initial list was compiled in haste
without a detailed search being made. The haste was
due to Mr
Gabriel’s insistence that the theft be reported to the police for
insurance purposes. Mrs Rauch did not make a good
impression in the
witness box. She did not answer spontaneously. Her evidence was
characterised by long pauses before answering
questions. I did not
get the impression that these pauses were caused by her trying to
recall what actually had happened, but rather
her wishing to ensure
that the answer, which she furnished, was satisfactory. Since she
conceded that Mr Gabriel may merely have
said that it was possible
that the keys had been left on the counter (as opposed to a positive
averment that this effect), the only
other portion of her evidence
which is relevant is her evidence to the effect that she heard Mrs
Gabriel berating Mr Gabriel for
leaving the keys on the counter. In
this regard, her evidence that she stood listening to the two talking
and not being spoken to
for a period of some five minutes is hardly
credible. The plaintiffs denied that Mrs Gabriel had at any stage
“berated”
her husband. On the other hand, it seems clear from the evidence of
both plaintiffs, and also from the manner in which Mrs Gabriel
gave
her evidence, that she was a forceful personality, accustomed to
speaking her mind in no uncertain manner. Mrs Rauch conceded
that
Mrs Gabriel was aggressive and raised her voice in conversation. Mr
Gabriel testified that after many years of marriage he
had accepted
his wife’s
disposition
and was content to let her have her way in respect of many issues.
It is therefore quite possible that what Mrs Rauch
perceived as Mrs
Gabriel berating her husband was no more than her manner of
expressing herself forcefully during a discussion about
whether or
not he had left the keys on the counter.
Mrs Rauch eventually conceded that this
could have been the case.
As to Mr Berzack’s evidence, he too did not answer spontaneously
and was not prepared to make any concessions, notwithstanding
the
passing of some two and a half years since the incident. However, one
aspect of his evidence deserves comment. He testified
that Mr
Gabriel had at the outset informed him that the burglar had gained
entry through the bathroom window. In the first place
there is no
suggestion that this possibility had been contemplated or discussed
either by the plaintiffs between themselves, or by
the plaintiffs
with Mrs Rauch by the time that Mr Berzack arrived. In fact, the
plaintiffs say that they only became aware of this
possibility when
the police arrived later that morning and indicated that in their
view that was how entry had been gained. Secondly,
if Mrs Rauch is
to be believed that Mrs Gabriel had been berating her husband about
leaving the key on the ledge, it is highly unlikely
that Mr Gabriel
would have suggested that the thief had come in through the window.
This leaves a question mark over Mr Berzack’s
evidence, which the
rest of his evidence does not sufficiently dispel.
Sgt Louw, one of the two policemen who visited the
premises later that morning, had no doubt as to how access had been
obtained.
He was shown the premises with the key still in the lock
on the inside of the trellidoor and after an inspection, he opined
that
the thief had entered the premises through the slightly open
bathroom window. He explained that he tested the aperture in the
window
by inserting his head in it. As his head could fit into the
gap, he concluded that he himself would have been able to get his
body
through the window, albeit with some difficulty. He explained
that a smaller person would have been able to get through with ease
and that it was not uncommon for thieves to use a small person or a
child in order to gain access through small apertures and for
that
person then to open a door so as to allow access from the outside.
Sgt Louw explained, and this was also observed during the
course of
the inspection
in loco
,
that access to the rear of the premises and the deck could easily be
obtained through an alleyway between the B & B and the
adjacent
accommodation establishment. In fact, it would also have been
possible to gain access from the adjacent premises on the
other side.
In order to establish that the plaintiffs had been
negligent in leaving the keys on the counter within reach of the
trellidoor, Mr
Le Breton
submitted on the strength of the exercise conducted by Mr Berzack,
that the burglar had in a single action reached through the locked
trellidoor from the outside, taken hold of the keys, inserted the
trellidoor key into the lock from the inside and then unlocked
the
door. This would then have enabled access to be gained from the
outside of the premises. The difficulty and improbability of
this
theory hardly needs to be stated. Notwithstanding the evidence by
the defendant’s witnesses to the effect that the block
of flats to
the sea side of the room had some form of illumination in the
stairwells and passages, the room occupied by the plaintiffs
would
have been dark at night. The glass wall facing the deck had full
length curtains along the entire length of the wall, save
in front of
the trellidoor. The only source of light from the front of the deck
would have been from flats in the building in front
of the deck and
these would have been extinguished by the time the occupants in the
flats
retired
for the night. In the version suggested by the defence, the person
picking up the keys would probably have done so in the
dark, would
then have had to select the correct key for the trellidoor lock, and
thereafter performed the difficult manoeuvre of
inserting the key in
the lock and unlocking the door from the inside while standing
outside the trellidoor. Why he should do this
and run the risk of
waking the occupants by rattling the keys when he could simply
withdraw the keys to the outside, select the correct
key and unlock
the trellidoor from the outside is difficult to imagine, and
improbable, to say the least. The problem for the defence
is of
course that the key to the trellidoor was found in the lock on the
inside of the door the next morning. In my view, the
modus
operandi
suggested by the police,
namely that access had been gained through the narrow aperture in the
bathroom, is far more probable. That
would also explain why the keys
were found on the inside of the door. The police also found a wet
T-shirt lying in the bathroom.
Sgt Louw mentioned that thieves
sometimes use chloroform, or a similar agent to ensure that the
occupants of houses being burgled
do not wake up. The method used is
to apply the chloroform by pressing a wet cloth soaked with the
chloroform briefly over the sleeping
victim’s face. There was
insufficient evidence to conclude that the wet T-shirt had been used
for this purpose, but the fact is
that the intruder (or one of them)
had been in the bathroom at some stage. I accordingly conclude that
on a balance of probability,
access was gained through the bathroom
window.
Mr
Le Breton
also submitted that the plaintiffs were negligent in not putting
their jewellery and watches in the safe before retiring and in
leaving
the keys on the counter. As to the first proposition, it was
Mr Gabriel’s invariable habit not to sleep with his watch on but
to
leave it on the table next to his bed with his wallet. His wife also
did not sleep with her watch on and habitually left it on
a bedside
table, together with her daytime jewellery.
The plaintiffs testified that they believed that once the trellidoor
had been locked, they were safe from intruders. Mrs Rauch did
not
give them any warning as to any special safety precautions which they
should take. The information on the B & B’s website
was also
to the effect that
“
We are in a high class residential area (safe) 4km from the
city centre…”
Mr
Le Breton
submitted that as the plaintiffs were South Africans, they should
have been aware of the danger from possible intruders, but to my
mind
the evidence does not justify this conclusion. They had last been to
Cape Town some 20 years ago and although they had been
told about the
crime rate in Johannesburg (which they had visited before coming to
Cape Town), they were under the impression that
Cape Town was a much
safer place than Johannesburg. Finally, Mrs Rauch had assured them
that if they locked the trellidoor, they
would be safe. Having
regard to Mrs Gabriel’s feelings of insecurity, it is unlikely that
they would not have closed the bathroom
window or taken other
precautions had they not been left with the impression that they were
safe. They, like Mr Berzack, assumed
that it would be in order to
leave the bathroom window open. After all, if Mr Berzack considered
that the aperture in the window
was sufficiently small to prevent
access being gained through it, there is no reason why the plaintiffs
should not have considered
it safe to leave the window open.
I am satisfied that the defendant has failed to
establish as a fact that the keys were left on the kitchenette
counter. It is not
certain where they were left, but would probably
have been left on the glass table near the trellidoor or on the
dresser against
the opposite wall, or on the kitchenette
counter. In all the circumstances I do
not consider that they would have been negligent in leaving the keys
in any one of these places.
Mr
Le
Breton
also submitted that the keys
would have been visible from the outside in any one of the places and
that consequently a thief would
have been aware that he could use the
keys in order to make his exit from the premises once access had been
gained from the bathroom
window. In my view this is pure
speculation. We do not know what, if anything, could be seen from
outside, nor does it follow that
if the keys were visible the thief
would have known that the bunch included the key for the trellidoor.
I accordingly conclude that
the plaintiffs were not negligent in
leaving their watches and jewellery next to their bed and in failing
to place the keys in an
otherwise safe or secure place.
[11]
CONTRIBUTORY
NEGLIGENCE
As pointed out in
OK
Bazaars (Pty) Ltd and Others v Stern and Ekermans
1976
(2) SA 521
(C) at 529 A-E, it is strictly speaking not correct to
speak of contributory negligence in cases of this nature. The
defendant’s
liability flows from the Praetor’s edict and not from
negligence. Furthermore, as I have already concluded, the defendant
has
failed to prove that the plaintiffs were negligent. If anyone
was negligent, it was the defendant. Mr Berzack was well aware of
the high crime rate in the area, having himself been confronted by an
intruder and being aware of thefts from the adjoining accommodation
establishment. He had placed burglar bars on all the windows and
trellidoors on all the doors in the establishment save the windows
at
the top of the glass wall facing onto the deck and the window to the
bathroom. These actions he had taken because of the crime
in the
area. His failure, under these circumstances, to secure the bathroom
window properly was inadequate to prevent the foreseen
danger and was
thus negligent.
[12] There will accordingly be judgment for the
plaintiffs in the sum of R252 000 and costs. The plaintiffs’ costs
will include
the qualifying fees of their expert witnesses Messrs
Trigg and Powell, who are declared necessary witnesses. These
gentlemen were
present in court at 15h50 on 6 June 2002 when the
settlement of the
quantum
of the plaintiffs’ claim was recorded, having been present in court
from 13h00 on that day. The plaintiffs are also declared to
be
necessary witnesses in as much as it was incumbent on them to travel
from the United States of America in order to give evidence
at the
trial.
__________________
R B CLEAVER