SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy


IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

JUDGMENT

Reportable
Case no: 7659/2021

In the matter between:

S[...] D[...] N[...] Plaintiff
(in his representative capacity as father and natural guardian)
of A[...] N[...]

and

SUNWEST INTERNATIONAL (PTY) LTD t/a Defendant
GRAND WEST CASINO AND ENTERTAINMENT WORLD

Neutral citation: S[...] D[...] N[...] v SUNWEST INTER NATIONAL (PTY) LTD t/a
GRANDWEST CASINO AND ENTERTAINMENT WORLD (Case
no 7659/21) [2020] ZAWCHC (31 JULY 2025)

Coram: MTHIMUNYE AJ
Heard: 24 March 2025

Delivered: Judgment was handed down electronically by circulation to the parties’
representatives email and release to SAFLII. The date and time for hand -down is
deemed to be 14H30 on 5 August 2025.

Summary: Delict - Gross negligence - The matter concerns the question of
whether the Defendant (by virtue of its vicarious liability for the conduct and/or
omissions of its personnel, staff, employees, and/or contractors) , had acted
wrongfully and with gross negligence by allowing a live wire to be exposed on
the floor of their premis es, thereby creating a danger to the public, whom they
knew or should have known were walking or likely to walk on the floor of their
premises. Similarly, that the exposed live wire would pose a danger to
members of the public who might hold onto the metal railing at the kiddie’s
ice-skating rink.

ORDER

The defendant is liable to pay the plaintiff’s damages to be proven or agreed
upon arising from the injuries sustained by his minor child on 8 January 2020 on
the Defendants premises. The defendant is liable for the plaintiff’s cost of the
action on a party and party scale C, including cost of counsel.


JUDGMENT
______________________________________________________________
MTHIMUNYE AJ

[1] The Plaintiff, the father of the minor child , sued the Defendant for damages
resulting from an incident that happened on 8 January 2020 at Grand West Casino
("Grand West"), where the minor was electrocuted by a live wire while clinging to the
metal rail at a kiddie ice-skating rink while observing other children.

[2] It was agreed between the parties that the trial proceed for the determination
of liability only. An order was made to separate the issues of liability and quantum of
damages in terms of Rule 33(4) of the Uniform Rules of Court.

[3] The minor ’s injuries referred to in paragraph 12 of the particulars of claim
have been admitted by the Defendant. The parties further agreed that the question of
causation and the sequalae of the injuries , a long with the issue of disclaimer of
indemnity notices , will stand over until the court has decided the degree of
negligence. An order to this effect was made by the court.

[4] The Plaintiff’s case at para graphs 4, 6 and 11 of their amended particulars of
claim are that the Defendant, (by virtue of its vicarious liability for the conduct and/or
omissions of its personnel, staff, employees , and/or contractors ) had acted
wrongfully and with gross negligence by allowing a live wire to be exposed on the
floor of the ir premises, thereby creating a danger to the public, whom they knew or
should have known were walking or likely to walk on the floor of their premises .
Similarly, that the exposed live wire would pose a danger to members of the public
who might hold onto the metal railing at the kiddie’s ice-skating rink.

[5] Furthermore, that the Defendant created a potential and foreseeable risk of
harm by failing to take reasonable measures to prevent such risk from materializ ing,
in not displaying adequate signs warning users of the floor of the premises of the
presence of the exposed live wire or indicating that it was unsafe for members of the
public to hold onto the metal railing near the kiddies ice-skating rink.

[6] Whereas the Defendant in paragraphs 8 and 9 of their amended plea, admits
that it had acted negligently and relied on certain disclaimer notices situated and/or
displayed at the premises, which it pleads, indemnifies it against liability for any
negligent act and/or omission on its part. The Defendant conceded that these
disclaimers do not absolve them from liability for gross negligence.

[7] In their pre -trial minute dated 5 September 2024, the Defendant stated that

[7] In their pre -trial minute dated 5 September 2024, the Defendant stated that
the incident invoked the doctrine of res ipsa loquitur, meaning the facts speak for
themselves. The Defendant conceded that they have a legal duty of care to the
members of the public more specifically, the minor child, as was pl eaded in
paragraph 10 of the Plaintiff’s amended particulars of claim. The Defendant further in
their amended plea dated 5 September 2024, admitted that they acted wrongfully

and negligently as was pleaded in paragraph 11 of the Plaintiff’s particulars of claim
as amended.

[8] Even though the Defendant have admitted that they were negligent , they
however deny that they were grossly negligent. They further accept that if the court
were to find that they were grossly negligent that they cannot be exempted from
liability.

[9] The Defendant further accepts that they cannot rely on the ir Disclaimer or
Indemnity Notices to limit liability for gross negligence.

[10] In order to determine whether the Defendant was indeed grossly negligent on
the day of the incident, I will firstly proceed with a consideration of all the relevant
circumstances in this matter and briefly summarize the evidence presented by all the
witnesses.

EVIDENCE FOR THE PLAINTIFF

I[...] N[...]

[11] He testified that he was the Plaintiff in this matter and the biological father of
the minor child who was electrocuted. On the day in question during the middle of
the day during the festive period the food court at Grand West was bustling with foot
traffic and lively children. His minor child was standing next to him at the kiddies ice-
skating rink, holding on to a steel/metal pole, when his child suddenly cried out loud.
He looked at his child and could see her visibly trembling. He then pulled h is child
towards him, who was screaming and at the same time showing him her hand. He
took a moment to survey the surroundings and noticed an exposed electrical wire
lying on the floor. A red mark was visible on his child's hand. He then concluded that
his child had been electrocute d. Making use of the images in Exhibit “A”, especially
images 2, 3 and 4, the Plaintiff identified the area where incident occurred and the
exposed electrical wire, his child had stepped on.

[12] Mr Titus, the floor manager of Grand West Casino, arrived on the scene and
asked him what had transpired . When the security wanted to switch off the main
electricity plug point , which was approximately 6 or 7 meters away from where the
ice-skating rink was stationed, Titus prevented the security from doing so , as Mr
Titus first needed to do an incident report.

[13] Subsequently the p aramedics arrived, examined his child and applied some
burn gel to his child’s hand and under her feet. Thereafter, he took his child to the
emergency medical center.

[14] He further testified that he never expected that his child would under normal
reasonable circumstances step on a live wire at Grand West , a public venue , as
there was no war ning or any indication that there w as work in progress, or that his
child might step on a live wire. Furthermore, he noticed the disclaimer notices on the
Defendant’s premises but failed to read them.

[15] During cross-examination, his evidence was briefly that he was informed by a
lady at the ice rink reception that prior to the incident there was a Christmas tree to
the left hand side of the ice rink, which was removed on the 7th of January 2020.

DEFENDANT’S EVIDENCE

Ms Karien Maritz

[16] She stated that she has been employed by Grand West since 2020, serving
as the manager of the e ngineering, electrical, and o perations department. An
independent contractor (“contractor”) was engaged by Grand West to set up its
Christmas tree, mount the lights and to remove and dismantle the tree afterwards .
Grand West’s electrical department were responsible for connecting and
disconnecting the Christmas tree lights to the electrical supply of the Defendant.
She was not able to confirm whether on the day of the incident , whether the tea m
from the electrical department switched the main plug on or off as she was not there.
She firmly stated that after the contractor removed the Christmas tree, they left the

She firmly stated that after the contractor removed the Christmas tree, they left the
wires at the ends of the strands of the Christmas tree lights for the Defendant’s

electrical department to connect. She conceded that had the electrical wire been
removed by the electrical department the injury to the minor child would not have
occurred.

[17] She further testified that she maintained a WhatsApp group which served the
purpose of connecting all the relevant departments , including the Defendants
electrical department, which she would inform regarding the timing for connecting or
disconnecting the electrical supply to the Christmas tree. According to her the
Christmas tree had been dismantled and removed a day prior to the incident, and
she promptly notified the electrical department through WhatsApp to disconnect the
electrical supply and make sure the area was safe.

[18] During cross examination she conceded that electricity poses a great danger .
She further testified that the electrical department sometimes had to cut the electrical
wires depending on the type of plug or connection to the Christmas tree lights. She
further conceded that the electrical cable was exposed in a busy area where there
were plenty of foot activity by the public and that the ice -skating rink which
constituted a water source was near to where the electrical cable was lying.

Faizel Pietersen

[19] At the time of the incident , he was employed by Fidelity S ecurity as a n
investigator, contracted to Grand West. He was stationed at the outer building on
the Grand West premises, when the control room notified him about the child that
had been electrocuted. Upon arriving at the scene, he observed the Plaintiff cradling
the weeping child in his arms. He then noticed a white electrical cable with one
connector block. Within the connector block was a black insulated wire, and a red
live wire which was not insulated was protruding, outside of the connector block .
According to him he knows what a connector block is and has seen one before. His
evidence was further that the purpose of the white cable was to feed electricity to the

evidence was further that the purpose of the white cable was to feed electricity to the
lights on the Christmas tree. However, by the time he reached the scene, the
Christmas tree, the lights and the cable were already removed by the contractor. He
was unaware of the methods the contractor used to remove the Christmas tree and
lights.

[20] According to him the maintenance department of Grand West connected the
cable and plugged it in near the ice rink. The Christmas lights were the property of
Grand West and was mounted and removed from the Christmas tree by the
contractor.

[21] He never inspected the location where the Christmas tree was placed before
or after the said incident. He only spoke to Mr Cookson the day after the incident
and their conversation was about when the wire would be removed.

[22] During cross -examination, he speculated that it could have been the
contractor who caused the live wire to protrude from the connector block , or that it
could have been as result of someone who had inadvertently stepped on the wire.
Further, the live wire may have been laying there for quite a few hours. He further
confirmed that Ms Ma ritz had a WhatsApp group with several employees. That she
was the person who informed him that Grand West needed to go and secure the
area. He further conceded that the removal of the wire was not safely done.

[23] During cross-examination, he testified that he could not recall the date when
the incident occurred as it happened a long time ago. He further could not confirm
when the Christmas tree had been removed by the contractor. He can also not say
why the red wire was protruding from the connector block. He confirmed that the red
wire was live and l ying there for several hours and that Ms Maritz informed him that
the electrical and maintenance department had to have secured the area after the
Christmas tree had been removed.

Titus Martin Cookson

[24] At the time of the incident , he was employed as the Safety and Health
manager at Sunwest International who operated as Grand West. At approximately
7h30 pm on the day of the incident, he received a call from SA Paramedics informing
him that a child had been electrocuted by an electrical cable. He then spoke and
instructed Faizel Pietersen (“Faizel”) who was the investigator on duty that day , to

instructed Faizel Pietersen (“Faizel”) who was the investigator on duty that day , to
proceed to the scene and ensure that the area is secured. He did not go to Grand

West on that day to check out the incident as he only goes in when summoned for
situations that are of a critical nature. He confirms that it was the responsibility of the
electrical and maintenance department to ensure that the place where the incident
had occurred was safe and secure. When the electrical cable was shown to him by
the maintenance department, he noticed that there was a connector block with a
black wire within it. There was also a red wire with exposed naked copper wires
which were not within the connector block. He conceded that if the cable were to be
plugged it would result in a person bei ng shocked as the exposed red wire was live.
According to his opinion the child was electrocuted as a result of the live red wire
being exposed. He further conceded that he never inspected the area where the
wires were prior, or after the incident had occurred. He cannot say what had exposed
the red wire.

[25] During cross-examination, his evidence was briefly that he is unable to specify
when the Christmas tree had been removed. He speculated that it could either have
been removed on the morning or the day before the incident. He was adamant that
it was the duty of electrical and maintenance department of Grand West who were
responsible for removing electrical cables and ensuring that the area is safe after
such removals.

[26] The Defendant attempted on numerous occasions throughout the testimonies
of its witnesses to introduce physical evidence of a connector block, discussing its
uses and speculating on the possibility whether the red live wire might have been
disconnected from the connector block by an intervening act. It is important to note
that the court already ruled on the admissibility of the connector block and how , if
used as evidence, should be led. It was never pleaded by Defendant that they would
lead evidence on a connector block. The evidence by the Defendant’s witnesses with
regard to this connector block was thus mere speculation and hypothetical

regard to this connector block was thus mere speculation and hypothetical
suggestions.

PLAINTIFF’S SUBMISSIONS

[27] Adv Van Wyk , on behalf of the Plaintiff , submitted that the Defendant’s
negligence is neither ordinary nor aligned with the standard of the reasonable

person. She submitted that when the court has to determine the extent of the
deviation from the standard of the reasonable man , it is essential for the court to
consider the fundamental principles outlined in the case of Ngubane v South African
Transport Services 1991 (1) SA 756 (A) at 776E - 777C, where the Appellate Division
laid down the test for negligence as follows:

“Once it is established that a reasonable man would have foreseen the
possibility of harm, the question arises whether he would have taken
measures to prevent the occurrence of the foreseeable harm. The answer
depends on the circumstances of the case. There are, however, four basic
considerations in each case which influenc e the reaction of the reasonable
man in a situation posing a foreseeable risk of harm to others: (a) the degree
or extent of the risk created by the actor’s conduct; (b) the gravity of the
possible consequences if the risk of harm materializes; (c) the uti lity of the
actor’s conduct; and (d) the burden of eliminating the risk of harm” needs to
be considered.”

[28] She submitted that the degree of the risk and the gravity of the consequences
suffered by the child is extreme as conceded by the Defendant’s witnesses, noting
that electrocution can lead to death. Further , that it is common knowledge that when
electricity is exposed to water , it can result in devastating outcomes and certain
death. She submitted that it is not in dispute that the ic e-skating rink was a water
source that was in the near vicinity of the exposed live wire and that the live wire was
exposed in the food court where fluids were consumed and could be spil t.
Furthermore, that it was the duty of the Defendant’s electrical de partment to secure
the area and ensure it safe, but failed to do so. Further, that even Maritz testified
that the simplest way to have disconnected the electricity would have been to switch
off the plug by a qualified electrician of the Defendant.

off the plug by a qualified electrician of the Defendant.

[29] She further submitted that the Defendant failed to show any reasonable care
and that its conduct can only be characterised as a neglect to give consideration to
the consequences of their actions , in that the Defendant had an attitude of reckless
disregard of such consequences.

DEFENDANT’S SUBMISSIONS

[30] Adv Tyle r submitted that the doctrine of res ipsa loquitor allows for an
inference to be drawn from specific facts based on common sense. If an explanation
exists for specific facts, then the doctrine fails to function. He further submitted that
the Defendant engaged an independent contractor , to mount the lights on the
Christmas tree. He conceded that the contractor did not connect the cables carrying
the Christmas lights to the electricity supply inside the Defendant’s premises but that
it was the responsibility of the Defendant’s electrical and maintenance department.

[31] Adv Tyler further submitted that the court has to take judicial notice that plastic
(of a connector block) does not conduct electricity and that the Christmas lights cable
was connected to the external electricity cable, with the red and black insulated wires
being secured inside a plastic connector block featuring recessed screws.
Furthermore, that as a result of the engineering department’s failure to remove the
electricity supply, constituted ordinary negligence.

[32] He conceded that the evidence by Faizel Petersen and Titus Cookson along
with the photograph enlargements of photographs 2 and 3 of trial bundle “A” ,
established that at the time of the incident the external source electricity cable was
positioned near the kiddie’s ice-skating rink . He noted that the neutral wire with
black insulation remained secured within its electrical connector block, whereas the
live wire with red insulation was not. The live red wire with its copper core was
stripped and completely exposed , thus creating a risk of electrocution for someone
who is bare foot.

[33] He further speculated that the contractor exhibited gross negligence by
creating and ignoring a clearly hazardous situation, having detached the external
electricity cable from the Christmas lights cable in an excessively forceful manner
and subsequently leaving the cable unattended . Furthermore, that there is n o

and subsequently leaving the cable unattended . Furthermore, that there is n o
evidence that the Defendant was grossly negligent by f ailing to appreciate the
possibility of such gross negligence on the part of the contractor. However, even if
the Defendant were to appreciate the failure it would not constitute gross negligence
on the Defendant’s part, unless it can be proven that the Defendant should have

doubted the competence or efficiency of the contractor. In addition, he submitted in
his heads of argument that it has not been established that the conduct of the
Defendant departed “from the standard of the reasonable person to such an extent
that it may be categorized as extreme, found to be conscious risk -taking, a complete
obtuse of mind or a failure to take care .” He submitted that the court should find that
the Defendant was guilty of ordinary negligence and not gross negligence.

DISCUSSION AND APPLICABLE LEGAL PRINCIPLES

[34] The test to determine negligence is set out in the matter of Kruger v Coetzee
1966 (2) SA 428 (AD) 430 E - H, where Holmes JA said the following:

“For the purposes of liability culpa arises if –
(a) a diligens paterfamilias in the position of the defendant –
(i) would foresee the reasonable possibility of his conduct injuring another in
his person or property and causing him patrimonial loss; and
(ii) would take reasonable steps to guard against such occurrence; and
(b) the defendant failed to take such steps.”

[35] The central question is how a reasonable person would have acted in the
given situation . In The Law of Delict, Butterworths 1989, a reasonable person is
defined as follows;

“The reasonable man is merely a fictitious person, which in law invents in
order to have a workable objective form for conduct in society. Accordingly,
reasonable man is not an exceptionally gifted, careful or developed person,
but neither is he underdeveloped, nor someone who recklessly takes chances
or who has no prudence . Between the two extremes the qualities of a
reasonable man are found.”

[36] In the environment of public entertainment, the reasonable man test in the
event of an allegation of gross negligence made against the establishment , would
suffice by determining whether the establishment in this instance Grand West was

negligent by having children at a play area which was not made secure or safe for
children to play in or be around the area.

[37] In National Union of Metal Workers of South Africa obo Selepe v ORAWAB
Investments (Pty) Ltd t/a Bergview Engen One-Stop [2013] BALR 481 (MIBC ), the
difference between gross negligence and ordinary ne gligence was def ined as
follows:

“[5.3.5] Gross negligence can be described as a conscious and
voluntary disregard of the need to use reasonable care, which has or is likely
to cause foreseeable grave injury or harm to persons, property or both. It is
conduct that is extreme when compared to ordinary negligence. Gross
negligence also focuses on the magnitude of the risks involved , such that, if
more than ordinary care is not taken, a serious mishap is likely to occur …
[5.3.6] Ordinary negligence and gross negligence accordingly differ in degree
of consciousness or inattention; and both differ from ‘wilful misconduct’ , which
is conduct that is reasonable calculated to cause damage or injury.”

[38] In MV Stella Tingas: Transnet Ltd t/a Portnet v Owners of the MV Stella
Tingas 2003 (2) SA 473 (SCA), the court referred to the concept of gross negligence
as follows:

“Gross negligence is not an exact concept capable of precise definition.
Despite dicta which sometimes seem to suggest the contrary, what is now
clear, following the decision of this Court in S v Van Zyl 1969 (1) SA 553 (A),
is that it is not consciousness of risk -taking that distinguishes gross
negligence from ordinary negligence … If a person foresees the risk of harm
but acts, or fails to act, in unreasonable belief that he or she will be able to
avoid the danger or that for some other reaso n it will not eventuate, the
conduct in question may amount to ordinary negligence or it may amount to
gross negligence (or reckless in the wide sense) depending on the
circumstances…On the other hand, even in the absence of conscious risk -

circumstances…On the other hand, even in the absence of conscious risk -
taking, conduct may depart so radically from the standard of the reasonable
person as to amount to gross negligence. It follows that whether there is

conscious risk -taking or not, it is necessary in each case to determine
whether the deviation from what is reasonable is so marked as to justify it
being condemned as gross. … It follows, I think, that to qualify as gross
negligence the conduct in question, although falling short of dolus eventualis,
must involve a departure from the standard of the reasonable person to such
an extent that it may properly be catergorised as extreme; it must
demonstrate, where there is found to be conscious risk -taking, a complete
obtuseness of mind or, where there is no conscious risk -taking, a total failure
to take care. If something less we re required, the distinction between ordinary
and gross negligence would lose its validity.”

[39] The minor child accompanied by her parents , visited an establishment that
caters for public entertainment, Grand West, which belongs to the Defendant.
According to the evidence of the Defendant’s employee Ms Maritz , her electrical
maintenance and operations department was in charge of ensuring that the electrical
wire connections were done in order for the Christmas tree rental co ntractor to be
able to mount the lights to the tree. Her evidence indicates that she has a WhatsApp
group communication with her electrical and maintenance team to ensure that once
Christmas tree had been removed by the contractor, the area is made safe , plugs
are turned off and wiring is secured. At no specific time does she state that it was
the duty of the contractor to ensure that all wires were safely secured or that the
contractor had to make sure that the area where the Christmas tree and lights were
mounted were safe for the public or children aft er it had been removed. By her own
evidence the tree was removed the day before the incident, and it can only be
attributed to the negligence of the Defendant’s electrical department not performing
their duty that the exposed live was there that caused th e electrocution to the
Plaintiff’s child.

Plaintiff’s child.

[40] It is clear from the evidence of the Defendant’s witnesses, Maritz , Petersen,
and Cook, that the electrical and maintenance team of the Defendant failed in their
duty to ensure that the area near the ice-skating rink had been secured after the tree
was removed.

[41] It is crucial to note that t he Defendant failed to call any of the electrical or
maintenance team that is on the WhatsApp group to come and testify . Whether this
was done, or what could have caused the live red wire lying exposed, or whether,
this wire was placed inside the connector block as the Defendant wants this court to
believe.

[42] In Tshishonga v Minister of Justice and Constitutional Development and
Another 2007 (4) SA 135 (LC) at paragraph 112, it was held:

“[112] The failure to call a witness is excusable in circums tances, such as
when the opposition fails to make out a prima facie case. But an ad verse
inference must be drawn if a party fails to testify or produce evidence of a
witness who is available and able to elucidate the facts, as this failure leads
naturally to the inference that he fears that such evidence will expose facts
unfavourable to him, or even damage his case. The inference is strengthened
if the witnesses have a public duty to testify.”

[43] All three of the Defendant’s witnesses corroborated one another, that it was
the duty and or responsibility of the Defendant’s electrical and maintenance
department to check that the electricity source was properly connected and
disconnected before and aft er the contractor had removed the Christmas tree .
These witnesses were consistent and confirmed this version during cross
examination. Ms Maritz, who was a satisfactory witness, confirmed that the electrical
and maintenance department is employed by the Defendant. She however could not
verify or confirm whether the electrical and maintenance department followed up on
her WhatsApp instruction to secure the electrical cables and ensure that the vicinity
where the Christmas lights were mounted to the tree was safe for the public.

[44] Except for the Plaintiff’s evidence which was corroborated by all the
Defendant’s witnesses that due to the negligence of the employees of the Defendant

Defendant’s witnesses that due to the negligence of the employees of the Defendant
there was a live exposed wire lying next to a kiddies ice-skating rink, resulting in the
child stepping on it and being electrocuted , constituted res ipsa loquitor , which is
indicative of gross negligence on the part of the Defendant’s employees. The law is
clear that unless the employees of the electrical or maintenance department came to

testify or give a factual explanation that they were not grossly negligent by failing to
secure the area or that they had switched of the main plug or secured the wires after
being instructed by Ms Maritz via WhatsApp, the f acts speak for itself, and the court
can only draw the inferences from the facts so proven.

[45] The Defendant’s failure to call the electrical and maintenance department , to
testify, means that they cannot speculate that the live wire was properly connected to
the connector block or that it might have been mistakenly stepped on by the public
resulting in the wire lying exposed on the floor of the Defendant’s premises.

[46] Considering the nature of the Defendant’s business and the public's
expectation for proper conduct and safety of the premises for children and the
general public, the lack of any explanation from the electrical department regarding
the safety of the area after the contractor removed the Christmas tree and lights ,
leads to the conclusion that the electrical department did not fulfil their
responsibilities as employees of the Defendant to secure the area as instructed by
Maritz via WhatsApp. The negligence exhibited by the electrical and maintenance
department of the Defendant manifested itself in the form of conscious and voluntary
disregard of a need to exercise reasonable care, which was likely to cause
foreseeable significant injury or harm to the child or any other member of the public
who visited the play or food court area on the day of the incident. The Defendant
through the actions of its employees, electrical and maintenance department acted
grossly negligent.

[47] It is also important to note that the Defendant did not plead that there was an
external company contracted to mount the lights to the Christmas tree and that they
should be held grossly liable, thus this fact raised during the trial and argument by
the Defendant is not substantiated and mere speculation.

the Defendant is not substantiated and mere speculation.

[48] A further aggravating factor is that not only was the child four years old at the
time of the incident but a live wire with the copper outside was next to an ice rink with
water substance. Grand West failed dismally in their responsibility of due diligenc e
and care expected from an establishment in their position . Had the electrical and
maintenance department conducted a thorough inspection and secured the area

after the Christmas tree had been removed, not only would the live wire have been
seen and removed, but the child would also not have been electrocuted. The actions
of the employees of the Defendant in the scope of their employment, was reckless
as they failed to give due consideration to the consequences of their actions by
totally disregarding their duty to make sure all electrical connections were safe near
a water substance ice-skating rink and an area where it was reasonably foreseeable
that the re would be significant foot traffic from the food court and the kiddies ice-
skating rink area.

CONCLUSION

[49] Having evaluated the evidence presented by the witnesses and considering
the relevant case law , the only conclusion that can be drawn is that the Defendant
was vicarious grossly negligent as the employer of the electrical and maintenance
department, it consciously and voluntary disregarded the need to take reasonable
care of a likely foreseeable harm or grave injury to the Plaintiff’s child or other
persons who were on its premises on or near the ice -skating rink on the day of the
incident. The conduct of the electrical and maintenance department and even Maritz ,
in failing to follow up whether the electricity supply had been secured was of an
extreme nature when compared to ordinary negligence.

[50] I am thus satisfied on a balance of probabilities , that the Plaintiff has proven
that the Defendant was vicariously grossly negligent in its duty to ensure the safety
of the child and the public at large as alleged by the Plaintiff in their amended
particulars of claim.

COSTS

[51] It is trite that costs ordinarily follow the result. The Plaintiff submitted that the
costs of counsel be awarded on scale C. In the exercise of my discretion, I am
inclined to agree with the Plaintiff.

ORDER

[52] In the result, I grant the following order:

(i) The defendant is liable to pay the plaintiff’s damages to be proven or
agreed upon arising from the injuries sustained by his minor child on 8
January 2020 on the Defendants premises. The defendant is liable for
the plaintiff’s cost of the action on a part y and party scale C, including
cost of counsel.

(ii) The trial on quantum is postponed sine die.


_________________________
MTHIMUNYE AJ
ACTING JUDGE OF THE HIGH COURT


APPEARANCES

Counsel for the Plaintiff: Adv R van Wyk
roxy@capebar.co.za
Attorney for the Plaintiff: A Batchelor & Associates
Mr E Louw
ruwaydah@batchelor.co.za

Counsel for the Defendant: Adv T Tyler
ttyler@caoebar.co.za

Attorney for the Defendant: Dicks van der Merwe Attorneys
Mr J van der Merwe
jakes@inlegal.co.za