Swinburne v Newbee Investments (Pty) Ltd

• Jurisdiction: South Africa
• Citation: 2010 (5) SA 296 (KZD)

Swinburne v Newbee Investments (Pty) Ltd
2010 (5) SA 296 (KZD)

2010 (5) SA p296

Citation	2010 (5) SA 296 (KZD)
Case No	10514/06
Court	KwaZulu-Natal High Court, Durban
Judge	Wallis J
Heard	March 17, 2010
Judgment	April 22, 2010
Counsel	EJB Lingenfelder (attorney) for plaintiff.; AV Voormolen for defendant.

Flynote : Sleutelwoorde E

Delict — Liability — Exemption clause — Effect — Plaintiff sustaining injuries upon falling from staircase — Clause in lease agreement exempting landlord from liability for any damage suffered as a result of any negligent act or omission on part of landlord — Proper interpretation of exemption clause — F Locality of clause in lease agreement indicative of meaning thereof — Ambiguity in wording of clause fatal to reliance thereon.

Delict — Liability — Duty of care — Duty of landlord to tenant and other users to ensure that staircase provided being safe for use — Failure by landlord to provide handrail on staircase — Diligens paterfamilias would in circumstances G have foreseen possibility of injury arising from falling on staircase — Not to guard against foreseeable danger by installing handrails or other safeguards constituting negligence.

Headnote : Kopnota

The plaintiff, a tenant in defendant's building in terms of a lease agreement between them, sustained injuries when he slipped and fell some distance off H a flight of stairs leading to his flat. Contending that this would not have happened had the defendant not negligently failed to erect a handrail on the stairs, plaintiff instituted proceedings to claim damages. The defendant denied negligence and in the alternative relied on two clauses in their lease agreement which, it submitted, excluded liability for any damages arising from its alleged negligence. Particular reliance was placed on a portion of I clause 26 of the lease agreement, which read as follows: 'The LESSOR shall not be responsible or liable to the LESSEE . . . for any damage suffered as a result of any negligent act or omission on the part of the LESSOR'. The plaintiff countered that, should the disclaimers operate to bar his otherwise valid claim, it would be unenforceable for being contrary to public policy. Merits and quantum were separated at the commencement of the trial, this J judgment dealing only with the former.

2010 (5) SA p297

Held, that the question of whether defendant owed plaintiff a legal duty was A anterior to the question of defendant's negligence. In the case of liability for omission, the test for the existence of a legal duty was the reasonableness of plaintiff's expectation that defendant should have taken positive measures preventing the harm from occurring. The reasonableness or not of such expectation was a conclusion of law based on the court's perception, the prevailing legal convictions of a community, and on considerations of B public policy. (Paragraphs [10] and [12] at 302D - F and 303A - D.)

Held, further, that there were a number of instances where our courts have imposed a legal duty upon an owner of property in relation to the condition and use of staircases, such as Spencer v Barclays Bank 1947 (3) SA 230 (T), which confirmed that, where the landlord provided a staircase to occupiers of flats as a means of entry into and exit out of their flats, he was under a C legal duty to see that the staircase was not dangerous. The stairs in the present case were the obvious and natural route for tenants, and others visiting the premises, to use in order to gain access to and exit the flats, and accordingly the defendant owed plaintiff a legal duty to ensure that the stairs were safe to be used. (Paragraphs [13] and [14] at 303F - 304G.)

Held, further, that defendant's legal duty having been established, the next D question which arose was whether a reasonable person, in the position of defendant, would have (i) foreseen the possibility of his conduct leading to injury to others; and (ii) would have taken reasonable steps in guarding against such injury. The nature of the surface of the staircase suggested that material such as sand and water could render it slippery. A reasonable person in the position of the defendant would therefore have foreseen the E possibility of someone slipping on the staircase, losing their balance and falling. The provision of a handrail was the obvious step in guarding against such injury, and failing to do so was negligent on the part of the defendant. (Paragraphs [15] and [19] at 304G - H and 306C - E.)

Held, further, that the first of the two clauses of the lease relied on by defendant F as a disclaimer (clause 17), read in context, clearly only excluded its liability for negligence to omissions or acts relating to obligations for repair and maintenance, and did not extend to the provision of basic safety features such as handrails for the stairs. (Paragraph [22] at 307E - F.)

Held, further, that the second set of disclaimers, clause 26, was to be construed against the background of the general context of where it appeared in the G lease. An overview of the lease revealed three broad categories of rights and duties and clause 26 fell into the group that dealt with the condition of the premises. This background indicated that it was generally concerned with regulating the ordinary and natural consequences arising between landlord and tenant in that context, ie the condition of the building. There was no indication that it was directed at accidents causing personal injuries or questions of possible negligence. (Paragraphs [28] and [29] at 309D - 310A.) H

Held, further, that the defendant's contention, that the portion of clause 26 that the defendant claimed exempted it from liability for negligence causing personal injury, required interpretation of the words 'damage' and 'any', and whether 'any damage' was meant to include personal injury. Given that it was in the context capable of construction that confined its scope to damage to physical property, the clause was, at best for defendants, I ambiguous. (Paragraphs [34] and [35] at 311A - H.)

Held, further, that the proper approach to the construction of a disclaimer clause, such as clause 26, was as set out in Durban's Water Wonderland (Pty) Ltd v Botha and Another 1999 (1) SA 982 (SCA) (1999] 1 All SA 411); and First National Bank of SA Ltd v Rosenblum and Another 2001 (4) SA 189 (SCA) ([2001] 4 All SA 355), which confirmed that, if the language of a disclaimer J

2010 (5) SA p298

A or exemption clause was such that it exempted the proferens from liability in express and unambiguous terms, effect was to be given to that meaning, but, if there was ambiguity in the language, then it was to be construed against the proferens. (Paragraphs [23] and [24] at 307G - 308C.)

Held, further, that it was appropriate to consider what a reasonable person would have understood from the provision in question because this explained why B ambiguity was fatal to reliance upon the clause. A reasonable person reading clause 26 would not have understood the reference to 'any damage' as extending to damages arising from personal injury. It followed that the defendant was not exempted from liability for personal injury caused by its negligence, and it was therefore unnecessary to consider plaintiff's argument relating to unenforceability of the exemption clause for being against C public policy. The argument would have had some force for the following reasons: (i) defendant had no bargaining power; (ii) the terms of the exclusion were buried in the fine print and not explained to plaintiff; (iii) the exemption was contrary to plaintiff's common-law right that defendant secure the safety of the building; (iv) the defendant had alternatives to protect himself against liability, such as insurance; and (v) the constitutional D right to bodily integrity ought to be given weight in the consideration of the impact of public policy on this type of clause. (Paragraphs [26] and [35] - [37] at 308F - H and 311D - 313B.) Defendant's liability, for such damages as plaintiff may prove confirmed.

Cases Considered

Annotations:

Reported cases E

Ablort-Morgan v Whyte Bank Farms (Pty) Ltd 1988 (3) SA 531 (E): referred to

Afrox Health Care Bpk v Strydom 2002 (6) SA 21 (SCA) ([2002] 4 All SA 125): referred to

Barkhuizen v Napier 2007 (5) SA 323 (CC) (2007 (7) BCLR 691): referred to F

Brauns v Shoprite Checkers (Pty) Ltd 2004 (6) SA 211 (E): referred to

Burton v The Real Estate Corporation 1903 TH 430: referred to

Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA) ([2000] 3 All SA 171): referred to

Cape Town Municipality v Butters 1996 (1) SA 473 (C): referred to

Cape Town Municipality v Paine 1923 AD 207: referred to G

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995): referred to

Chartaprops 16 (Pty) Ltd and Another v Silberman 2009 (1) SA 265 (SCA): referred to

Durban's Water Wonderland (Pty) Ltd v Botha and Another 1999 (1) SA 982 (SCA) ([1999] 1 All SA 411) dictum at 989H - I applied H

ER24 Holdings v Smith NO and Another 2007 (6) SA 147 (SCA): dictum in para [12] applied

First National Bank of SA Ltd v Rosenblum and Another 2001 (4) SA 189 (SCA) ([2001] 4 All SA 355): dictum in para [6] applied

Hayne and Co v Kaffrarian Steam Mill Co Ltd 1914 AD 363: referred to I

Heerman's Supermarket (Pty) Ltd v Mona Road Investments (Pty) Ltd 1975 (4) SA 391 (D): referred to

Johannesburg Country Club v Stott and Another 2004 (5) SA 511 (SCA): referred to

K v Minister of Safety and Security 2005 (6) SA 419 (CC) (2005 (9) BCLR 835; 2005 (8) BLLR 749; 2005 ZACC 8): referred to J

2010 (5) SA p299

King v Arlington Court (Muizenberg) (Pty) Ltd 1952 (2) SA 23 (C): referred to A

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