Naidoo v Birchwood Hotel

• Jurisdiction: South Africa
• Judge: Heaton-Nicholls J
• Judgment Date: 03 April 2012
• Citation: 2012 (6) SA 170 (GSJ)
• Docket Number: 2010/47765
• Counsel: Z Khan for the plaintiff A Bester for the defendant.
• Court: South Gauteng High Court, Johannesburg

Heaton-Nicholls J: C

[1] This is an action against a hotel owner in which damages are sought for bodily injuries. It has raised the question as to the proper approach to be taken to exemption clauses under the new constitutional dispensation.

D [2] The defendant is the Birchwood Hotel (the hotel) and carries on business as a hotel and conference centre near the OR Tambo International Airport. The plaintiff, Rubanathan Pooenthran Naidoo (Naidoo), is a fleet manager and coach driver. On the morning of 15 October 2008 the gate to one of the entrances of the hotel fell on top of Naidoo, causing him serious bodily injuries. He has sued the hotel for the E damages he suffered as a result thereof.

[3] At the commencement of the trial the court, with the consent of the parties, granted an order in terms of rule 33(4), that the merits be separated from the quantification of the plaintiff's damages. Accordingly F the only issue for determination at this stage is whether the defendant is liable for the bodily injuries sustained by the plaintiff.

[4] Naidoo pleaded that the hotel had been negligent, in that it had failed to take adequate steps to prevent the incident from occurring by not properly maintaining the gate, not ensuring that it was safe for public usage, and failing to warn the public of the potential danger created by G the state of repair of the gate.

[5] It is not disputed that the hotel owed its customers a duty of care to maintain its premises in a safe condition. The hotel denied that its employees were negligent, and pleaded that Naidoo contributed to, or H was the cause of, the incident by interfering with the operation of the gate. The crux of the hotel's case is its reliance on disclaimers, which it contends exempt it from liability for any damages that Naidoo may have suffered as a result of its negligence. The issues to be determined are, firstly, whether such disclaimers were displayed at the time, and, I secondly, whether they would exempt the hotel from liability.

[6] The hotel pleaded that the disclaimers were prominently displayed at the entrance where the gate was located and around the premises, which Naidoo took cognisance of, thereby creating a tacit contract between himself and the hotel. Furthermore it is pleaded that by signing the hotel register Naidoo bound himself to the terms and conditions appearing on J the reverse thereof, which included an exemption clause.

Heaton-Nicholls J

[7] Naidoo, having instituted a delictual claim, has the onus of proving A negligence on the part of the defendant. The hotel, insofar as its defence is based on a contract in terms of which liability for negligence is excluded, bears the onus of establishing the terms of the contract, and that it did everything reasonably necessary to bring these terms to the attention of Naidoo. [1]

The evidence B

[8] The main issue in dispute in respect of the incident is whether Naidoo had merely approached the gate when it fell on him or whether he was pushing the gate at the time. In this regard Naidoo and the security guard, Tobius Mudhluli (Mudhluli), give differing versions. C

[9] Naidoo's evidence was that he had been a coach driver for more than 22 years. His first visit to the Birchwood Hotel was on 14 October 2008 when he was driving a busload of passengers from Durban, who were booked in to stay at the hotel for the night. He entered the hotel premises at about 21h00 that evening through the service entrance. D Naidoo testified that normally coach drivers would stay in the drivers' quarters, but, because one of the passengers had not shown up, he approached the reception desk to see if any accommodation was available for him. He was allocated a room and given a key for which he signed. E

[10] Naidoo's evidence regarding the incident was as follows: the following morning at about 08h00 he went to start the bus. He was unable to exit, as the gate was closed. He waited until he saw a security guard walking towards the gate. The security guard then called to Naidoo and requested assistance in opening the gate. At that stage the F gate was half-open and Naidoo did not know what the security guard required of him. According to Naidoo, whilst he was walking towards the gate, it fell on top of him. He screamed as he was pinned under the gate. The security guard was not able to lift the gate on his own and had to be assisted by other men who lifted it off Naidoo's body and managed to drag him out. Thereafter Naidoo was taken to hospital with fractures of G the lumbar spine and ankle.

[11] Mudhluli, who was an employee of the defendant from 2007 to 2009, testified that he was operating the gate on the day in question. He said he saw the bus at about 08h00 waiting to exit the hotel. The bus came to a standstill at the stop sign just before the gate, waiting for it H to open.

[12] Mudhluli explained that, to open the gate, he first pushed half of the gate to the left, and then pulled the other half to the right. As he pulled the gate towards the right it jammed and then ran off its rail. He said that he attempted unsuccessfully to open it three times, using maximum I force.

Heaton-Nicholls J

A [13] According to Mudhluli, after he had made three attempts to open the gate, Naidoo came running from the bus, wanting to know what had happened. Mudhluli told him that the gate had got stuck. They then both attempted to push it open from the middle. Under cross-examination Mudhluli said he attempted to push the gate open six times, three B times alone and three times with the assistance of Naidoo. Mudhluli explained that whilst he was pushing alone the gate became jammed, but had not come off the rails — this occurred only after Naidoo had come to his assistance. Mudhluli said it was on his sixth attempt, when he was pushing the gate with Naidoo, that it dislodged and fell on Naidoo.

C [14] That the gate came off the rails only after Naidoo had come to assist is in contradiction to two statements Mudhluli made, one 15 minutes after the incident and a further undated statement. In the former he stated that, 'I was trying to open the gate and the wheel of the gate came out of the way. So I tried to push it back and I failed, the driver feel (sic) to help and he came and helped me to push the gate but won't drive D back, so we decide to push it forward so it can get on its way.' In the latter statement he states: 'I tried to open the gate, but I could not, the gate was stuck, I tried again, but realised the gate was off the rail. Mr Naidoo then approached me.' From these two statements it is apparent that the wheels of the gate had come off the rails before Naidoo E approached.

[15] Much was made by the defendant that on Naidoo's description of events, the gate could never have fallen on him. Nonetheless, that the gate did fall on him is not in dispute. How the gate in fact operated is not material, in my view. What is clear is that at some stage while Mudhluli F was pushing the gate it came off its rails. It is likely that this was the reason for the gate jamming in the first instance. Mudhluli's evidence, that it only came off the rails after Naidoo had started pushing it, is improbable in the light of the statements Mudhluli made shortly after the incident. Likewise it is unlikely that Naidoo would leave his bus for no apparent reason and start pushing the gate. On the probabilities Naidoo's G version that he was called by Mudlhuli and the gate fell on him while approaching, is more plausible. Even if Naidoo were a participant in the attempt to force the gate open, the probabilities are that he did so on Mudhluli's invitation, which thereby placed Naidoo in a situation of danger.

H [16] Naidoo's evidence was that the gate and the layout of the guard- house were not as depicted in the photographs allegedly taken on the day of the incident. It is common cause that the gate has since been changed. Naidoo testified that on 15 October 2008 the guardhouse was not in existence, and the gate was comprised of a single gate sliding from right I to left, and manually operated. He was supported in this contention by his wife and Mr Rajendran Nanthan (Nanthan), a fellow coach driver. Neither of these two persons witnessed the incident, but Mrs Naidoo came to the hotel on the same day to observe the scene, after visiting her husband in hospital.

[17] Nanthan testified that he had stayed at the hotel prior to 15 October 2008 J on approximately seven occasions, and after the incident on two

Heaton-Nicholls J

occasions, the first being two weeks after. His evidence was that there A had been a change to the structure of the entrance since Naidoo's accident. Before, there had been no guardhouse on either side, and the gate was different, consisting of a single gate sliding from right to left. It was much higher. Immediately thereafter it had changed to a much smaller gate. B

[18] The evidence of Naidoo's witnesses in this regard is in direct contradiction to the hotel's witnesses who all claimed that the guardhouse existed at the time, but agreed that a different gate had subsequently been installed. Renier Erwee (Erwee), the risk manager for the defendant at that time, testified that he took the...