GOWORA
JA:
[1] When
this matter was called Mr Bhatasara,
counsel for the appellant, applied to amend the grounds of appeal. Mr
Mutasa,
who appeared for the respondent, was not averse to the application.
The matter was stood down to allow counsel to confer on the proposed
amendments. When the matter resumed the parties indicated that they
had agreed on the amendments. The grounds were as a consequence
amended by consent.
[2] The
facts of this matter can only be described as tragic. On 15 February
2015, the appellant who was the plaintiff in the court a
quo,
proceeded to OK Mart in Hillside. He was accompanied by his wife and
their daughter then aged 4 years 7 months. The family proceeded to
shop. The child was within reach of her parents. At some stage during
the shopping excursion a soccer ball display cabinet was observed to
have fallen onto the floor. The minor child was underneath the
cabinet. It is common cause that she sustained the following injuries
as a result of the accident: fractured right femur; fractured left
femur; tenderness and swelling of the pelvis and swelling of the
ankle joints. As result of the injuries, she was hospitalized for
more than a month whilst receiving treatment.
[3] Following
upon the injuries, the appellant, as father and guardian of the minor
child, instituted proceedings against OK Zimbabwe, the respondent in
this case, for a total sum of USD51,982.93 for shock pain and
suffering, permanent disability and loss of amenities as well as
past and future medical expenses. In its plea, OK Zimbabwe denied
liability and the matter proceeded to trial.
[4] At
the close of the appellant's case as plaintiff, OK Zimbabwe,
applied for absolution from the instance which the court granted. The
appeal before us is against the grant by the court a
quo
of the application for absolution. The grounds of appeal, as amended,
are the following:
1.
The court a
quo
erred in fact and in law in finding that the appellant failed to
establish that the respondent OK Zimbabwe had been negligent.
2. The
court a
quo
erred and misdirected itself by failing to consider documentary
exhibits 2, 4, 5A and 5B which established that OK Zimbabwe had
created an unsafe environment.
3. The
court a
quo
misdirected itself in fact and in law by making the aspect of whether
or not the minor child climbed the shelf decisive of the case.
4. The
court a
quo
misdirected itself in making definitive factual findings that the
area where the shelf was positioned was not covered by C.C.T.V. when
in fact it was.
5. The
court a
quo
erred in fact and in law in finding that it was unforeseeable that a
child of about five (5) years would climb onto a display shelf where
children's soccer balls of various colours were displayed.
[5] In
submissions however Mr Bhatasara
abandoned the fourth ground of appeal.
APPELLANT'S
SUBMISSIONS ON THE MERITS
[6] The
argument presented by Mr Bhatasara
went
as follows. He commenced his argument by moving the last ground. He
contended that the court was wrong to find, as it did, that it was
unforeseeable that a child of five would shop on her own. He
submitted that it was not correct that the child was shopping on her
own.
[7] He
suggested that, at all times, she was with her parents and that, at
her age, it was foreseeable that she would be fascinated by the
display of soccer balls. As a result of the colours a child would
reach for the balls and, if not within reach, would try and climb the
display shelf containing the balls.
[8] He
argued that the court a
quo
further misdirected itself in making the question of whether or not
the child climbed the shelf decisive of the case. He added that
whether or not the child climbed the shelf did not absolve OK
Zimbabwe of liability. He contended that OK Zimbabwe had created an
unsafe environment and that the court was guilty of a grave
misdirection in deciding the question of absolution on the premise
that the child had climbed the shelf. He submitted that this was
impossible as the shoes she was wearing did not enable her to do
this.
[9] He
submitted that one of the issues agreed during the pre-trial
conference was whether or not OK Zimbabwe had breached a legal duty
to provide a safe environment. He added that the documents tendered
into evidence by the appellant proved that OK Zimbabwe breached its
duty of care in this respect.
[10] He
contended that the court a
quo
erred in finding that the appellant had not met the onus required at
the close of his case. He submitted that the appellant established a
prima
facie
case and that the evidence tendered at that stage met the required
standard.
ARGUMENTS
TENDERED ON BEHALF OF THE RESPONDENT
[11] Mr
Mutasa,
on behalf of OK Zimbabwe, countered the appellant's argument mainly
on three bases. He contended that the abandonment by the appellant of
the fourth ground was fatal to his cause. He said that this was
because there was a concession in the abandonment of that ground that
the child had tampered with the shelf. He suggested that once the
concession was made it destroyed the appellant's case which was
premised on the allegation that the shelf had collapsed on its own
accord.
[12] He
challenged the contention by the appellant that the shelf had
collapsed due to one of its legs being corroded with rust. He
contended that the appellant had alleged specific grounds of
negligence but had failed to lead evidence to substantiate them.
[13] He
submitted that the appeal lacked merit and that the judgment of the
court a
quo
granting absolution should be upheld.
[14] I
turn now to the ratio decidendi
by the court a
quo.
THE
COURT'S REASONING ON THE APPLICATION FOR ABSOLUTION FROM THE
INSTANCE
[15] The
court was alive to the fact that the child was injured. She was
undoubtedly injured by the shelf. It is common cause that the shelf
collapsed. The missing evidence was how the shelf fell and injured
the child. In disposing of the application moved by OK Zimbabwe for
absolution from the instance the court reasoned:
“What
is critical in this case is that no one knows why the shelf fell at
the material time. It
cannot be far-fetched to assume that the unsupervised child was
fascinated by the balls that were being displayed on the shelf in
question (and) climbed on the shelf causing the same to succumb to
the minor's weight and collapsed.
If
the area in question had been covered by the CCTV this could have
solved our problem. It cannot be said for sure that the shelf just
fell on its own when the child was passing by or standing there.
While it is regrettable that the child was injured, the plaintiff
did not, in my view manage to prove that the shelf fell due to the
negligence of the defendant. It
was unforeseeable that a child of that age would shop on her own and
a child of that age would climb the shelf.”
(the emphasis is mine.)
THE
COURTS APPROACH TO APPLICATIONS FOR ABSOLUTION FROM THE INSTANCE
[16] There
exists within this jurisdiction a plethora of authorities on how a
court should consider an application for absolution from the instance
at the close of the plaintiff's case.
[17] Crucially
the test to be applied is not whether or not the evidence for the
plaintiff establishes what would finally be required to be
established to obtain judgment. The evidence required at this stage
is whether or not the plaintiff has made out a prima
facie
case to prove the claim. The correct approach to an application for
absolution from the instance was set out in Gordon
Lloyd
Page
& Associates v Rivera 2001 (1) SA 88, at pp92-93 by
HARMS
JA.
He stated:
“The
test for absolution to be applied by a trial court at the end of a
plaintiff's case, the test to be applied is not whether the
evidence led by plaintiff establishes what would finally be required
to be established, but whether there is evidence upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff. (Gascoyne
v Paul and Hunter
1917 TPD 170 at 173; Ruto
Flour Mills (Pty) Ltd v Adelson
(2) 1958 (4) SA 307 (T)).'
This
implies that a plaintiff has to make out a prima
facie
case - in the sense that there is evidence relating to all elements
of the claim – to survive absolution because without such evidence
no court could find for the plaintiff (Marine
& Trade Insurance Co Ltd v Van der Schyff
1972 (1) SA 26 (A) at 37G-38A; Schmidt Bewysreg 4th
ed at 91-92). As far as inferences from the evidence are concerned,
the inference relied upon by the plaintiff must be a reasonable one,
not the only reasonable one (Schmidt at 93). The test has from time
to time been formulated in different terms, especially it has been
said that the court must consider whether there is 'evidence upon
which a reasonable man might find for the plaintiff' (Gascoyne
(loc cit)) - a test which has its origin in jury trials when the
'reasonable man' was a reasonable member of the jury (Ruto
Flour Mills).
Such a formulation tends to cloud the issue. The court ought not to
be concerned with what someone else might think; it should rather be
concerned with its own judgment and not that of another 'reasonable'
person or court.
Having
said this, absolution at the end of a plaintiff's case, in the
ordinary course of events, will nevertheless be granted sparingly
but when the occasion arises, a court should order it in the
interest of justice.”
[18] At
the end of the day the prime consideration in the exercise is whether
or not there is sufficient evidence upon which a reasonable court
might find for the plaintiff. But that is not all that the court
hearing the application must consider. As stated by BEADLE CJ in
Supreme
Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971
(1) 1, at 5-6:
“Before
concluding my remarks of the law on this subject, I must stress that
rules of procedure are made to ensure that there is justice between
the parties, and, so far as is possible, courts should not allow
rules of procedure to be used to cause an injustice. If the defence
is something peculiarly within the knowledge of a defendant, and the
plaintiff has made out some case to answer, the plaintiff should not
be lightly deprived of his remedy without first hearing what the
defendant has to say. A defendant who might be afraid to go into the
box should not be permitted to shelter behind the procedure of
absolution from the instance. I might usefully quote here what was
said by SUTTON J in Erasmus
v Boss
1930 CPD 204 at 207:
'In
Theron
v Behr
1918 CPD 443, JUTA J, at p451 states that according to the practice
in this court in later years judges have become very loath to decide
upon questions of fact without hearing all the evidence on both
sides.'
We
in this territory have always followed the practice of the Cape
courts. In case of doubt at what a reasonable court might do, a
judicial officer should always, therefore, lean on the side of
allowing the case to proceed.”
See
also Standard
Chartered Finance Zimbabwe Ltd v Georgias & Anor
1998 (2) ZLR 547 (H), at 552-553; Bailey
NO v Trinity Engineering (Pvt) Ltd & Ors
2002(2) ZLR 484 (H), at 487.
[19] In
para 4 of the declaration the appellant alleged the following:
“At
all material times (the) plaintiff was supervising and monitoring the
movements of the minor child. A soccer ball display cabinet fell on
the minor child who was standing close to it and injured her.”
[20] OK
Zimbabwe did not file a bare denial to this allegation. It responded
in a plea in which it made positive averments. The response, in para
2 of its plea reads:
“The
contents of this paragraph are denied and (the) plaintiff is put to
strict proof of the same. Defendant avers that:
2.1
The plaintiff left the minor child concerned unsupervised as he went
around doing his shopping. Consequently, the child who appears to
have been fascinated by the balls that were being displayed on the
shelf in question climbed on the shelf causing the same to succumb
to the minor's weight and collapsing.
2.2
At all material times, the shelf concerned was properly mounted in
accordance with its specifications.
2.3
Before the child climbed on the shelf as stated above, same was
carrying less weight than that which its carrying capacity allows.
It would have remained standing if the minor child had not climbed
on it as stated above.
2.4
Not being the manufacturer of the shelf in question, the defendant is
unaware of the allegation that the materials used to manufacture the
same are cheap and not durable. Defendant does not accept that
allegation and puts plaintiff to strict proof thereof.”
[21] It
seems to me that by pleading in the manner that it did, OK Zimbabwe
alleged that it had knowledge of facts surrounding the collapse of
the shelf. It pleaded that the child had climbed the shelf. It stated
that the shelf collapsed due to the weight of the child. In my view
it has offered a defence as to why the child got injured.
[22] The
stance by OK Zimbabwe was that none of the witnesses called by the
appellant saw what happened. That is correct. The declaration never
suggested that appellant's witnesses saw what happened. It was OK
Zimbabwe who contended that the child had climbed the shelf causing
the collapse.
[23] In
determining the application for absolution from the instance, the
court a
quo
stated that no one knew why the shelf fell at the material time that
the child got injured. This statement by the court appears to
contradict the defence as contained in the plea which places an on OK
Zimbabwe to explain how the child got injured. OK Zimbabwe said that
the child climbed the shelf causing it to fall and in the process
injuring the child.
[24] Having
said that no one knew why the shelf fell at the material time that
the child also got injured, the court, in an apparent contradiction
of the earlier statement, adopted the stance of OK Zimbabwe as set
out in the plea. The learned judge then went on to state that the
unsupervised child, fascinated by the display, climbed onto the shelf
causing it to fall. There was no evidence before the court at that
stage pointing to the child having climbed the shelf. This was a
statement in the plea. The learned judge then, again in the absence
of evidence to that effect, stated that if one of the legs of the
shelf had broken, it did so due to either the sheer weight of the
child or the fall. Again there was no evidence before the court to
justify either of the scenarios so postulated.
[25] It
is evident that, by making findings of fact which were not supported
by any evidence, the court a
quo
was guilty of a gross misdirection on the facts. A court is permitted
to reach an inference based on the evidence before it. The court did
not undertake an analysis of the evidence and reach a conclusion
based on inferences. At that stage OK Zimbabwe had not yet adduced
evidence. The court ignored the positive statement in the plea that
the child had climbed the shelf and further that the collapse
occurred as a result of the child's weight. In addition, completely
ignoring the pleadings, it then surmised its conclusions of fact,
based, not on any evidence, but on what had been pleaded by the OK
Zimbabwe. In fact, it is fair to say that the court a
quo
went on a frolic of its own. It stated at p 6 of the cyclostyled
judgment:
“….The
shelf from the evidence was not overloaded with balls since the
father confirmed that some of the compartments were empty. If at all
one of the legs of the shelf broke it could have broken due to
either sheer weight of the child or the fall.
……………………………………………..
I
agree with counsel for the defendant that this is not a strict
liability case.”
[26] It
seems to me that the statement from the court was premised on the
defence mounted by OK Zimbabwe in the plea. If OK Zimbabwe had
evidence establishing that the child in fact climbed the shelf and
caused it to collapse it should have been put on its defence to
adduce such evidence. It is not for the court to reach a conclusion
as to what happened based on an averment in a plea without calling
the pleader to prove its allegations.
[27] If
regard is had to the summary of evidence filed by OK Zimbabwe it
records that three witnesses employed by it would testify and adduce
evidence on how and why the shelf fell. It is alluded therein that
the child who was unsupervised climbed onto the shelf causing it to
fall on the child.
[28] It
seems to me that, allowing an application for absolution from the
instance to stand in circumstances such as these would lead to a
grave injustice. It appears that the manner of the collapse of the
shelf was peculiarly within the knowledge of OK Zimbabwe and its
employees. Justice can only be done if those witnesses testified as
to the circumstances under which the child got injured.
[29] In
my view the appeal has merit and the judgment of the court a
quo warrants
interference by this Court. In the premises the following order will
issue.
IT
IS ORDERED THAT:
1.
The appeal be and is hereby allowed with costs.
2.
The judgment of the court a
quo
is set aside and in its place is substituted the following:
“The
application for absolution from the instance is dismissed with
costs.”
3.
The matter is remitted to the court a
quo
for continuation of trial.
GARWE
JA: I
agree
BERE
JA: I
agree
Mapuranga
Bhatasara,
Attorneys legal practitioners for the appellant
Gill,
Godlonton & Gerrans,
legal practitioners for the respondent