OFFICE OF THE CHIEF JUSTICE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case NO: 2367/2022
REPORTABLE: NO
OF INTEREST TO OTHER JUDGES: NO
In the matter between:
AMANDA JOHANNA MARTINSON PLAINTIFF
and
OVERTURE RESTAURANT CC FIRST DEFENDANT
HIDDEN VALLEY WINES (PTY) LTD SECOND DEFENDANT
HIDDEN VALLEY WINES (PTY) LTD and THIRD PARTY
Coram: Kholong, AJ
Date of hearing: 5 September 2025
Date of judgment: 6 October 2025
Summary: Delictual claim for damages arising from a trip and fall – onus on plaintiff
to prove the elements - wrongfulness, fault, causation and patrimonial loss.
ORDER
1. The plaintiff’s claim is dismissed.
2. The plaintiff to pay costs on scale A.
JUDGMENT
KHOLONG AJ
Introduction
[1] This Court is called upon to determine an action for damages instituted by
plaintiff, Mrs. Amanda Martinson against first defendant Overture Re staurant cc.
Overture Restaurant in turn served a third party notice and joined Hidden Valley
Wines (Pty) Ltd in the action seeking indemnity in the event they were found liable.
[2] The Plaintiff is Mrs. Amanda Johanna Martinson, an adult female
administrative manager residing in Roundhay, Western Cape.
[3] First defendant is Overture Restaurant cc a close corporation registered in the
Republic and at the time of the incident in question was conducting business as a
restaurant on the Hidden Valley Wine Estate in Stellenbosch.
[4] The second defendant is Hidden Valley Wines (Pty) Ltd) a private company
which has its principal place of business situated on the Hidden Valley Estate,
Stellenbosch.
Background
[5] First defendant operated as a restaurant kn own as Overture Restaurant
(herein-after “the restaurant”) which was situated on the Hidden Valley Wine Estate
operated by second defendant and landlord. The plaintiff slipped and fell whilst
walking to her vehicle, after a work related year -end function w hen leaving the
restaurant as a patron. She was at the time travelling with her husband, Mr.
Martinson who had accompanied her for the event and had been driving the vehicle
to and from that event.
[6] The record indicates that she fell on 10 December 2020 at approximately
21h02 whilst walking down the pathway after leaving the restaurant with her husband
and was walking towards the parking area where her husband’s car had been
parked. She suffered injuries as a result of that fall. An injury set out as a right ankle
trimalleolar fracture – dislocation involving the articular surface of the ankle joint.
[7] The parties have agreed to separate the issues in terms of rule 33(4).
Consequently, the only issu e for this court to determine is whether first or and
second defendant are liable for that fall and consequent injury. First defendant had
issued a third-party notice against second defendant wherein it alleged that if the first
defendant was found liable to compensate plaintiff for damages, the area in question
fell outside the area leased by the restaurant and third party, and that the second
defendant was responsible for the maintenance thereof. That in the event the first
defendant, the restaurant was f ound to be liable, the third party was in turn liable or
joint wrongdoer. In its plea to the annexure, the second defendant denied liability.
Plaintiff’s evidence
[8] The Plaintiff led the evidence of Mrs. Amanda Johanna Martinson and that of
her husband , Mr. Martinson with whom she was travelling on the day in question.
Her evidence in essence was that when the plaintiff and the husband arrived at the
wine estate her husband, Mr. Martinson had been driving.
wine estate her husband, Mr. Martinson had been driving.
[9] Mr. Martinson’s testimony confirmed that of plaintiff that he had been driving
on the day in question. He testified that he had followed, during the afternoon, other
vehicles in front of him which had continued driving straight at the junction with
signboard showing directions to various destinat ions. These directions included
direction to the parking area for the restaurant but had simply followed the vehicles
he was travelling behind to the parking they used. He testified that he had proceeded,
following those vehicles, to park at the bottom level parking area.
[10] Both plaintiff and Mr. Martinson’s testimony is that after parking, they then
ascended steps which form a tapered treads creating a curved stairway to the right
when ascending the stairs leading to a paved walkway and then up the st one clad
ramp. They testified that at the top of the ramp they continued walking straight
across a terrace which led them directly to the entrance of the restaurant.
[11] Both witnesses testified further that upon leaving the restaurant at around
21h02, the plaintiff and her husband exited the restaurant the same way that they
had entered earlier in the day. Their testimony is that after walking out of the
restaurant, they walked the same route they came straight across the terrace, down
the stone clad ramp and across the paved walkway.
[12] The evidence points out that whilst plaintiff and her husband were walking
from the restaurant to the vehicle the pathway was getting incrementally dark and
because of the dark and lack of illumination, she was unawar e that the steps were
situated right where she fell. Plaintiff testified that the steps were not visible to her
because it was dark and because there were no lights to illuminate the stairs. Her
testimony was that the lighting on the ramp was poor as some lights on the ramp
were not working. Further that the lights on the light post next to walkway were not
switched on. She could not recall if the light on the light post at the bottom of the
steps was working. Plaintiff explained that there was little illumination on the pathway
when suddenly everything was dark, because there ware no lighting on the steps.
when suddenly everything was dark, because there ware no lighting on the steps.
She testified that she shouted to her husband: “Ek kan nie sien nie, ek kan nie sien
nie”. The next moment she lost her footing and fell. Plaintiff con firmed that she took
one step forward after she said she couldn’t see. Because she didn’t expect to
encounter the steps there.
[13] It was at the point when she shouted that she couldn’t see that she lost her
footing and fell. This resulting in her fractured right ankle. The plaintiff’s contention is
that it was the defendant’s fault as they had failed to render the steps safe for use as
they were an integral part of the route used by members of the public to access the
restaurant. Plaintiff further compl ained that defendants failed to make the walkway
safe for use together with the curved steps because of lack of illumination and the
absence of a handrail which created a hidden trap.
[14] Plaintiff stated that there were no signs which prohibited her hus band from
parking in the lower parking area, which was also where the other vehicles that were
driving in front of them had parked. She stated that there was no car guard or
parking attendant in the said parking where they parked. She denied that she was
walking too quickly at the time of the accident. Plaintiff testified that there were no
disclaimer notice in the parking area nor at the steps or along the walkway. That
when they went up to the restaurant she had been on the right and thus didn’t see
the disclaimer notice on the pathway. She denied that the wording on the notice was
legible. Further that there was no handrail or ballustrate next to the steps. She
pointed out that on leaving the restaurant she had forgotten about the exact
configuration of the steps.
[15] Mr. Martinson, on the other hand testified that he was certain that the lights
situated next to the pathway were off at the time of the incident. He confirmed that he
had been to the restaurant before and used the same parking and entrance into the
restaurant. He stated that the restaurant staff were aware that guests had entered
and left the restaurant via the ramp.
[16] Plaintiff also led the evidence of its expert Mr. Michael Bester an architect by
trade. He testified that he had inspec ted the wine estate and took a number of
photographs. He testified on the layout that the ramp was originally intended as the
primary point of entrance and egress to the restaurant and that this changed
primary point of entrance and egress to the restaurant and that this changed
because a new entrance was created and had become the new entrance. He
explained that the main entrance to the restaurant was accessed from the upper
level via a pathway that leads into the restaurant from the parking area. He further
explained that there were a number of ways a person could enter the restau rant like
through the ramp. He also explained that there were a number of parking areas on
the property where a person could park should they wish to enter the property. He
further explained that all the parking areas can be reached via a ring road
constituting a continuous looping access roadway.
[17] He commented that the signboards were not good and had too much
information on them such that one would not stop to read them. Mr. Bester denied
that the top parking area could be used exclusively for restau rant patrons. He stated
that one can use that parking to access other areas on the property. He testified that
on the steps, the angels of the treads on the one side are relatively narrow and on
the other wider. He noticed dimensional irregularities in the steps which make them
dangerous and unsafe to use. That from a design perspective his testimony was that
they could have been made safer with balustrade on the side of the steps or not
have the steps at all. His evidence was that the wood material used fo r the steps
was such that when wet it would create a slippery surface as moisture cannot
penetrate the wood easily. He found the plaintiff’s explanation of how she fell
plausible. He also commented on what he termed the low level at which the lighting
was positioned, which he contended even if the area had light on the day it would
have just been poor patches of lights leaving surrounding area in total darkness.
[18] Mr. Bester conceded that the steps didn’t need to comply to national building
regulations. He was also of the opinion that the disclaimer notice was not placed at
the right place given that where it is located a person would have walked a bit at risk.
He was of the opinion that plaintiff fell at the beginning of the steps and had not
started descending the steps when she fell. That the parking the plaintiff used was a
natural area to park going to the restaurant.
[19] Plaintiff also led the evidence of Ms. Roeleen Henning an expert in
occupational health and safety who testified that defendants were obliged to comply
with sections 8, 9 and 17 of the Occupational Health and Safety Act 1 which require
with sections 8, 9 and 17 of the Occupational Health and Safety Act 1 which require
an employer to perform a hazard identification and risk assessment. She testified
that an employer needed to take measures to reduce risk to people who may be
exposed to their facilities. She further testified that defendants failed to comply with
sections 8 and 9 as no risk assessments were done. It was her view that the
1 Act 85 of 1993.
disclaimer signs failed to exonerate the defendants from liability as the sign was put
at the wrong place and its reference to risk was not clear. Her view on the
signboards was simply that t hey were information boards which pointed to a
preferred parking for the restaurant. That there was no signboard at the bottom
where plaintiff parked indicating that patrons of the restaurant were not to park there.
[20] Ms. Henning further testified that clause 19.2 of the lease agreement enjoined
the restaurant to observe occupational health and safety which included monitoring
access to its premises and lighting that works. She testified that the lighting around
the steps was insufficient to render the steps safe for use. She was of the view that
the restaurant as a tenant was also responsible for the safety of common areas like
steps even though the lease agreement stated that common areas shall be subject
to the exclusive control and management of the landlord.
[21] In argument, Counsel for plaintiff contended that the wording of sections 9(1)
and 41 of the Occupational Health and safety Act is broad enough to include any
member of the public who may be affected by an employer’s activities. Further that in
terms of section 41 an employer may not indemnify himself from any provisions of
the Occupational Health and Safety Act. That this meant that any notice of indemnity
or waiver of liability or own risk notice will be invalid (null and void) should a p erson
sustain an injury which is due to an employer’s breach of the Act.
[22] In respect of the disclaimer notice, counsel contended that whilst second
defendant accepted that it bears the onus of proof that plaintiff was bound by the
terms of the disclai mer notice, that second defendant had to prove that plaintiff was
aware of the disclaimer notice and that she had accepted the terms thereof either by
actual consensus or based on the doctrine of quasi mutual assent. He argues that in
actual consensus or based on the doctrine of quasi mutual assent. He argues that in
order to rely on a di sclaimer of liability, the notice must have been prominently
displayed where one would ordinarily expect to find such a notice. Further that a
disclaimer of liability must be restrictively interpreted (contra proferentem) because it
seeks to deprive a part y of his or her right to seek judicial redress for injuries
sustained. That such notice must be clear and unambiguous.
[23] It was Counsel’s argument that the cumulative effect of the evidence
presented on behalf of the plaintiff was sufficiently cogent t o place evidential burden
on defendants to counter such evidence, which both defendants failed to do. That
the court should draw an inference that testimony on behalf of defendants would
have corroborated plaintiff’s version.
Defendant’s evidence
[24] Both first and second defendants closed their case after plaintiff had closed its
case. The first and second defendant argued that plaintiff’s testimony and some
testimony of the experts proves their case absolving them individually of liability. In
the plea dings responding to this action, first defendant filed a plea denying that it
owed plaintiff any legal duty. In denying liability, it pointed out that the area where the
plaintiff allegedly fell was not situated on the restaurant premises leased. That the
incident occurred on the second defendant’s farm and on an area where the second
defendant was the owner and operator.
[25] First defendant had also pleaded that the stairs led to a parking area
demarcated and designated for the second defendant’s wine ta sting room, and
which was not the parking area demarcated and designated for the first defendant’s
restaurant and thus did not fall within its control, responsibility or liability. First
defendant accordingly denied that it was responsible for the state of the stairs. First
defendant pleaded that the incident was due to the conduct of plaintiff who was
causally negligent and responsible for the incident or at least contributed thereto.
[26] The argument was that plaintiff elected to park in a parking area not
demarcated or designated for the restaurant. That she failed to traverse the steps
with due caution given her allegations as to the condition of the stairs and that she
failed to indicate to any personnel of first or second defendant that she required any
form of assistance in traversing the stairs.
form of assistance in traversing the stairs.
[27] Second defendant pleaded that plaintiff’s husband parked his vehicle in the
parking area of the wine tasting facility and not the parking area of the first
defendant’s restaurant, which parking facili ty is situated on the other side of the
building. Second defendant admitted that it had a legal duty to take all necessary
steps as could reasonably be expected of a reasonable wine farm owner, to ensure
that no harm befell patrons of the wine farm while a ttending at the farm. Second
defendant’s plea was that plaintiff was negligent by failing to park her vehicle in the
parking area of first defendant and using the pathway indicated for use of first
defendant’s patrons during nighttime.
[28] They averred t hat plaintiff was also negligent by parking the vehicle in the
parking area of wine tasting facility which is an area not utilized at night and by using
a pathway from the parking area that is not utilized after dark. They averred that she
failed to keep a proper lookout and failed to take into consideration the layout of the
pathway having traversed the stairs earlier during daytime. They also averred that
plaintiff failed to pay heed to signs erected by second defendant.
[29] Second defendant further averred that when entering and leaving premises on
the pathway where the alleged incident occurred, there was a disclaimer of liability
signboard which read:
“This is a working farm and inherent risks exists on this property. All persons
entering these premi ses do so entirely at their own risk. The owner,
employees, agents, representatives and management of these premises shall
not be liable for any damage, loss, theft, injury, accident or death suffered by
any person howsoever caused”.
[30] They thus pleaded that plaintiff was warned that it was dangerous to walk on
that area of farm and was fully aware of the risks involved with walking on the
pathway which according to them is not a pathway to the entrance of the restaurant.
That in spite of this knowledge plaintiff proceeded thereby consented to be subjected
to the risk of injury. That therefore second defendant was not liable for any loss or
damage suffered by plaintiff.
[31] In argument Counsel for first defendant pointed out that the in quiry in a
[31] In argument Counsel for first defendant pointed out that the in quiry in a
delictual claim is not general but specific. He submitted that the court must enquire
whether first defendant, the restaurant, owed plaintiff a legal duty at the time and
place where the injury occurred. Whether the restaurant wrongfully breache d that
duty at the time and at the place where the injury occurred. Further whether that
breach in fact caused the injury.
[32] In this regard Counsel argued that plaintiff failed to establish the existence of
any legal duty on the part of the restaurant relating to the hazard which caused her
fall and further that her evidence point to her having caused her injury. Counsel
reminded the court of the special plea the first defendant took which is that the place
where the injury occurred did not fall within first defendant’s control, responsibility or
liability. He pointed out that the lease agreement, handed into evidence had material
terms which excluded the point where the incident occurred. That clause 11 set out
that whilst restaurant will have access t o common areas, they at all times were
subject to the exclusive control and management of landlord.
[33] Counsel points out that the plaintiff accepted that first defendant is not the
owner of the farm and the area where she fell does not fall within the area leased by
first defendant. Further that she accepted that the area where she fell may constitute
part of the common area in which case it fell within the exclusive control and
management of the landlord in terms of the lease. That in cross examinatio n plaintiff
agreed with the points they raised in the special plea. He also pointed out that in
cross examination the expert, Ms. Henning conceded that the landlord remained
responsible for all common areas by which access was gained. That therefore
plaintiff has conceded the special plea in its entirety.
[34] Counsel for first defendant argues therefore that there is no negative
inference to be drawn from restaurant’s failure to lead its evidence because there is
nothing for the first defendant to lead by way of evidence as the plaintiff accepts that
first defendant does not own or lease the area where the steps are located. She
first defendant does not own or lease the area where the steps are located. She
accepted under cross examination that the first defendant does not have control over
the area, and has conceded how her fall came about. That plaintiff has failed to
make out a case against first defendant and thus there can be no negative inference
to be drawn. Counsel contended that in the event this court were to find that there
was a legal duty, the next step would be to determi ne negligence in respect of the
steps. In this respect they argued that the court may have to consider whether
plaintiff was attentive or not when she fell. Further that if this court were to find first
defendant negligent, then the lease agreement between first and second defendant
contains a clear indemnification of first defendant and is entitled to the order sought
in its third party notice.
[35] Counsel for second defendant on the other hand argued that plaintiff failed to
discharge the onus resting o n her to prove (i) wrongfulness (ii) fault (negligence in
this case) and (iii) causation. He argues that it will not be necessary for the court to
consider wrongfulness or causation as plaintiff’s case falls on negligence hurdle to
begin with.
[36] He notes that there is no dispute about the existence of a disclaimer notice to
the left of the walkway at the bottom of the ramp leading to the main building. Further
that there is no dispute about the express wording of the disclaimer notice. He
submits that Plaintiff conceded in cross examination that had she kept a proper look
out she would have seen the notice. Counsel proceeded to hinge his case around
the precedence laid by ticket cases or doctrine of quasi mutual assent. He also
advanced argument on enforceability of clauses that exclude liability.
[37] Counsel for second defendant explains that a reasonable person walking
along the footpath would have seen the disclaimer notice. Read and understood that
the terms of the notice meant that the second defen dant intended excluding liability
for damages resulting from injury. That second defendant took reasonably sufficient
steps to bring the terms of the notice to the attention of a person such as the plaintiff
walking past the disclaimer notice. That second defendant was entitled to assume
that plaintiff walking past the disclaimer notice and continuing further, assented to
the terms of the disclaimer notice. That therefore the plaintiff is bound by the terms of
the disclaimer notice having consented to them on the basis of quasi mutual assent.
The Law
The Law
[38] The plaintiff’s claim is based on delictual liability arising from the alleged
wrongful and negligent failure by the defendants to take reasonable steps to avoid
the incident which caused the plaintiff in juries. It is this court’s assessment that in
order to succeed, the plaintiff must prove all the elements of delict. Boberg2 notes
that in an aquilian action there are four requirements (a) a wrongful act or omission
(b) fault, which may consist of either intention or negligence (c) causation which must
not be too remote and (d) patrimonial loss.
[39] The Court in Swinburne v Newbee Investments (Pty) Ltd 3 held that the
owner of a property is ordinarily liable to ensure that the property does not present
undue hazards to persons who may enter upon and use the property. In other words,
it is the owner’s legal duty to ensure that the premises are safe for those who use
them. This authority elucidates the point that there are instances where our courts
have imposed upon an owner of property such a legal duty in relation to the
condition of stairs and staircases.
[40] In this instance second defendant as owner ordinarily has this legal duty.
There is no evidence if regard is had to the lease agreement that such a legal duty
had been transferred to the t enant, the restaurant. On the contrary, clause 11.2 of
the lease agreement makes it clear that all common areas remain at all times subject
to the exclusive control and management of the landlord. It specifically states that
the landlord, being second defe ndant, shall have the right from time to time to
establish, modify and enforce reasonable rules and regulations appertaining to
common areas. Clause 11.3 states that the tenant agrees to abide by and conform to
such rules and regulations and to procure th at its suppliers, employees, contractors
and patrons and invitees also abide and conform to such rules and regulations.
Clause 11 allows the landlord to do anything it deems necessary to the common
area. The only reference in clause 11.6 to tenant is the duty to keep cloakroom clean
during dinner ours.
[41] The incident on the evidence before this court thus did not happen in this
court’s view within the leased area of first defendant as contemplated in clauses
court’s view within the leased area of first defendant as contemplated in clauses
2.1.1; 2.1.2 looked together with clause 13 and exhibit b handed into evidence.
2 PQR Boberg, The Law of Delict, vol 1. Juta and Company, 1984 at 24.
3 Swinburne v Newbee Investments (Pty) Ltd 2010 (5) SA 296 (KZD) at [13] – [14].
[42] Equally, it can be said that disclaimer notices have been accepted by our
courts in delictual claims if found to be appropriately placed and a party willfully elect
to consent to the terms thereof. In Fujitsu Services Core (Pty) Ltd v Schenker
South Africa (Pty) Ltd 4 the constitutional court found provisions excluding liabil ity
even in circumstances of loss caused by deliberate wrongdoing enforceable. It was
noted in Durban’s Water Wonderland (Pty) Ltd v Botha and Another 5 that in
cases of disclaimer notices the answer in determining this defense depe nds upon
whether in all circumstances a litigant did what was reasonably sufficient to give
patrons notice of the terms of the disclaimer.
[43] The plaintiff conceded in cross examination that the incident where she fell on
the first top stair leading to the parking area is not situated on the restaurant
premises leased by first defendant. It is situated if regard is had to the lease
agreement clauses 2.1.1; 2.1.2;13.1 and 13.5 handed into evidence to an area under
the control of the landlord and second d efendant. In terms of clause 11.6 and 18.3
first defendant is responsible for the interior of the building.
[44] In cross examination plaintiff agreed that first defendant is not the owner of
the farm and that they only leased a portion. She also conceded that the area where
she fell was under the control of the second defendant. She conceded under cross
examination that she overlooked the signboards guiding her to the designated
entrance to the restaurant. It is this court’s view therefore that the testim ony of the
expert witnesses Ms. Henning and Mr. Bester where thus unhelpful especially looked
against direct evidence of the witnesses, the plaintiff and her husband in assisting
this court to understand why the plaintiff and her husband elected to ignore the
signboards directing them to the correct parking area. It is quite evident that if
plaintiff and her husband had followed the road signs or signboards correctly, they
plaintiff and her husband had followed the road signs or signboards correctly, they
would have avoided the incident leading to plaintiff’s fracture as the correct entran ce
had no stairs from the parking.
[45] The explanation by both expert witnesses could also not help this court to
understand how a reasonable person whatever the color scheme used on the
4 2023 (6) SA 327 (cc).
5 1999 (1) SA 982 (SCA).
signboards, could ignore or overlook a direction to the restaurant to which they were
invited and enter into their own frolic ostensibly because other cars ahead of them
were moving in that direction or they did it before, in circumstances where the farm is
a multi-purpose destination. In any event this court finds that the experts Mr. Bester
and Ms. Henning have been qualified as an architect and occupational health and
safety experts respectively and not signboard experts. This court thus finds their
opinions on signboards and disclaimer notice looked against the direct evidence of
the witnesses themselves and the minute of the in loco inspection of not much use in
respect of the signboards and disclaimer notices.
[46] It is therefore this court’s view that the first defendant thus had no control of
the area where plaintiff fell and could thus not control the design nor workings of the
stairs lighting. This court also finds that even if it were to be found that first defendant
didn’t comply with the requirements of the occupational health and safety act in
respect of the areas it leased, that cannot reasonably be extended to an area
evidently outside its control and under the exclusive control of the landlord. This
court thus accepts the submission by first defendant that it had no legal duty in
respect of the steps. Cons equently, first defendant is not the factual nor legal cause
of the injury sustained by the plaintiff. This court accepts first defendant’s argument
that there is no evidence before this court that plaintiff sought assistance from first
defendant’s employe es when leaving the restaurant and seeing that the area to
which she and her husband were walking was incrementally getting dark.
[47] When asked to explain exactly how she fell, plaintiff stated that she slipped,
resulting in her losing her footing where after she tripped and fell down the stairs.
Following cross examination she stated that she assumed that she had slipped
Following cross examination she stated that she assumed that she had slipped
because the steps were wet. She stated that should there have been enough lighting
she would not have fallen. Plaintiff has testified t hat she had been to the restaurant
approximately 3 or 4 years before the incident. Her husband in his testimony also
testified that she had previously been to the farm before the day of the incident.
Further that on that previous occasion they had also par ked in the same parking
area and had entered the restaurant through the same ramp where the incident
happened. Plaintiff testified that she knew that the ramp would take her to the
entrance of the restaurant. That she was unaware that that entrance was not the
main entrance into the restaurant. This court accepts the testimony by both the
plaintiff and her husband, Mr. Martinson who was driving on the day in question, that
they had in previous occasions been on the farm.
[48] The evidence based on plainti ff’s concession is that plaintiff fell on the first
railway sleeper coming down from the ramp and there being no evidence before this
court that the sleeper was wet on the day plaintiff fell means that the court must
accept that it was not wet as previously pleaded by plaintiff and was thus acceptable.
The expert, Mr. Bester, testified that the railway sleeper was acceptable when dry.
[49] Equally, the evidence is that from the exit the plaintiff used, given the design
of the lights, there were patches of light and then complete darkness. Plaintiff
testified that she stepped for about a meter or a leg forward in complete darkness
and shouted to her husband that she could not see anything at all. In these
circumstances, this court agrees with first defendan t that the actual cause of the
plaintiff’s fall is her rashness. This court concurs with defendants that a reasonable
person would not have continued into pitch darkness having appreciated the danger
of ascending stairs earlier in the day and on at least one other previous occasion that
there were steps on the pathway they will come across. To transfer that liability to
first or second defendant is in this court’s view unreasonable given that she used an
undesignated exit for the restaurant and at a time th ere was no wine tasting activity
for second defendant’s patrons.
[50] The photographs and minute of the in loco inspection conducted by the
parties and handed into evidence points to signboards guiding patrons about
directions to different destinations on the farm. In those circumstances, this court
finds the evidence by the plaintiff and her husband Mr. Martinson that they did not
see or ignored the signboards that directed them to the parking area of the
see or ignored the signboards that directed them to the parking area of the
restaurant to which they were going simply because they were following cars that
were moving ahead of them unsatisfactory on balance. A reasonable person,
intending to reach their destination appropriately, would not as a guide to their
destination simply and aimlessly without regard to directions and sig nboards follow
cars ahead of them regardless of where those cars were headed.
[51] The photographs admitted into evidence shows the disclaimer notice on the
left side of the ramp. Much was made by the experts about its location and
appropriateness. This c ourt cannot accept the argument by plaintiff and the expert,
Ms. Henning and Mr. Bester that the notice to be visible had to have been worded or
colored or positioned differently. This court is satisfied that second defendant had
taken reasonable steps fir stly to direct patrons on the direction to the designated
entrance to the restaurant which plaintiff ignored or overlooked.
[52] Secondly the court is satisfied about measures taken in respect of the
disclaimer notice on content and position. This court thus finds that second
defendant had taken reasonable measures to communicate the disclaimer notice
and finds plaintiff to be bound by the terms of the disclaimer notice which she passed
on the day in question having freely proceeded to the restaurant and back in spite of
the terms of that disclaimer notice. The court finds the testimony that she did not see
the notice because she was to the right of the husband not credible especially given
that she had been to the property on previous occasions and had go ne up the same
ramp past the same disclaimer notice.
[53] This court finds that the second defendant was entitled to assume that a
reasonable person walking past the disclaimer notice and continuing further like the
plaintiff did had assented to the terms of the disclaimer notice. Plaintiff’s argument
that she did not see the notice walking in as she was to the right of her husband falls
to be rejected.
Conclusion
[54] This Court thus concludes that first defendant had no legal duty and was thus
not the factual nor legal cause of the injury given the location and circumstances of
the incident and is thus not liable for the injury sustained by plaintiff.
[55] This court also finds that second defendant had a legal duty to ensure the
[55] This court also finds that second defendant had a legal duty to ensure the
safe use of its premises. This court further finds that plaintiff is bound by the terms of
the disclaimer notice and her claim falls to be dismissed based on her consent to the
terms of the disclaimer notice on the basis of the doctrine of quasi-mutual assent.
Costs
[56] Plaintiff and defendant made submissions on costs. Costs must follow the
results including costs of Counsel where so employed on scale A.
Order
Accordingly, I would make the following order:
[57] The plaintiff’s claim is dismissed.
[58] The plaintiff to pay costs on scale A.
__________________________
KHOLONG, AJ
Appearances:
For the Plaintiff: Adv. W.S. Coughlan
Instructed by: Jonathan Cohen and Associates
For the
First Defendant: Adv A.D. Brown
Instructed by: BDP Attorneys
For the Second
Defendant: Adv. D.J Coetsee
Instructed by: MacGregor Stanford Kruger In