IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE DIVISION, GRAHAMSTOWN

									Case No:  2362/2016

Reportable/Not Reportable 

In the matter between:

RIAAN DU TOIT VAN HUFFEL						Plaintiff

and

ELZEA SNACKS MANUFACTURING (PTY) LTD			Defendant

JUDGMENT

MAKAULA J:

A.	Introduction:

[1]	The plaintiff, issued summons against the defendant for damages arising from injuries he sustained while in the premises of the defendant for business purposes.

[2]	The parties sought an order separating the issue of liability from quantum.  The order was granted.  The matter served before me on the merits.  

[3]	The plaintiff is a self-employed male who owns a long-distance freight company.  The defendant is a company which manufactures maize products like Simba Chips etc. and sells them in bulk to various customers throughout the country.

B.	The Plaintiff’s Case:
[4]	The plaintiff testified that on 2 July 2014 he was the co-driver of an interlink truck and were at the premises of the defendant to load chips for his client in Cape Town.  Mr Eduard Van Huffel (Mr Van Huffel) was the driver.  He parked the truck along the loading bay.  The loading bay is built in such a way that it is level with the truck.  The driver of any truck, when alighting, would step or land on the loading bay.  Mr Van Huffel alighted landed on the loading bay and opened the curtains of the trailer.  The plaintiff alighted on the passenger’s side with the same purpose.  He went round the back of the truck.  He asked from the defendant’s employees how he could gain access to the loading bay.  They showed and directed him to a pallet that was standing at forty five degrees against the wall of the loading bay.  The pallet had missing planks at intervals thus resembling a ladder.  He used it as a stairway and climbed up onto the loading bay and assisted in opening the curtains.

[5]	Having finished, the plaintiff proceeded to the pallet following Mr Van Huffel and went down the loading bay.  The pallet slipped under his feet and he lost balance, fell on the ground and fractured his wrist.  Mr Van Huffel helped him to get up.  The plaintiff was in terrible pain.  He went to the truck and lay there for the duration of the loading.  The wrist began to swell.  As he was lying on the seat in the truck he saw Mr Van Huffel speaking to a person who during the trial turned out to be Mr Dean Du Preez (Mr Du Preez).  After the truck was loaded, the plaintiff and Mr Van Huffel asked for directions to the nearest hospital.  Mr Du Preez gave them the directions.  They drove straight to the hospital.  The plaintiff remained at the hospital while Mr Van Huffel proceeded alone to Cape Town.

[6]	The plaintiff conceded under cross-examination that it was peculiar for him and the employees to have used the pallet as a staircase.  The plaintiff testified that he later appreciated that the use of the pallet was a dangerous venture. But at the time, he did not see any stairs leading up the loading bay.  He testified that he did not see the need of jumping across the centre console in order to alight on the driver’s side.

[7]	The plaintiff mentioned that he fell about twenty minutes after their arrival.  His estimation was based on the fact that it takes about ten minutes to open the curtains.  He disputed that he was injured three hours into the loading time but agreed that it could have taken them three hours to load the truck.  He denied that Mr Du Preez found him on the loading bay.  He did not dispute that the employees of the defendant were not allowed to use the pallet as there were stairs behind a wall (that was depicted in the photo album marked as Exhibit “A”) leading up to the loading bay.

[8]	Mr Van Huffel corroborated the evidence of the plaintiff in all material respects as to what occurred upon arrival at the defendant’s premises.  He stated that after he parked the truck, he alighted onto the loading bay and started to open the curtains.  The plaintiff joined and assisted him.  After they opened the curtains he went down the pallet as he was going to the toilets which were opposite the loading bay.  As he was walking towards the toilet, he heard somebody fall from the pallet.  He looked back and saw the plaintiff lying on the ground.  He went back and assisted him to stand up.  The plaintiff stood up and went straight to the truck.  He realised that the plaintiff was in pain.  He testified that the incident occurred shortly after the opening of curtains which normally takes about ten minutes thereby corroborating the plaintiff’s version that the accident occurred twenty minutes after he had parked and opened the curtains.

[9]	Mr Van Huffel did not remember all that took place except how the accident happened.  He ascribed that to the length of time as the accident occurred six years prior.  He remembered seeing Mr Du Preez that evening.  He could not dispute that he was the night staff manager.  He further remembered that one of the employees reported the accident whereafter Mr Du Preez arrived.  He confirmed that the defendant’s employees used the pallet frequently while the truck was being loaded.

[10]	Mr Van Huffel did not dispute the version of Mr Du Preez put to him that he enquired if there were no “cherries” meaning girls around there.  He testified that he is a person who liked to joke and therefore could have said so in jest.  He disputed that the plaintiff went on the loading bay after the fell.  He was adamant that the plaintiff went to lay on the bed in the truck as he was in pain.  Mr Van Huffel was content that they received the directions to the hospital from Mr Du Preez.  He corroborated the version of the complaint that the plaintiff remained in hospital and he drove alone to Cape Town.

C.	The Defendant’s Evidence:
[11]	Mr Tyron Power is the owner and Managing Director of the defendant.  His evidence is of a formal nature because he was not present when the plaintiff was in the premises of the defendant.  He got a report about the accident from Mr Du Preez the following morning.  Mr Du Preez explained to him that it was a minor accident which did not require medical attention.  Mr Power did not bother to follow it up by either going through the video footage or contact the plaintiff.  

[12]	Mr Power explained that the employees of the defendant checked in and out of the factory by using biometric attendance and access control machine which is behind a building that is at the end of the loading bay.  The access control gate is not visible on the loading bay.  The employees knew and were instructed to use that access control when going to the toilets.  He testified that there were signs posted on the walls showing the entrances.  He, however, could not deny that the employees, unbeknown to the management, used a pallet to move up and down the loading bay for purposes of going to the toilet.  He further admitted that there may have been pallets lying around at the back where the loading bay is because they are frequently used when loading trucks.

[13]	Mr Du Preez, testified that he was the duty manager that evening.  He inspected the loading bay when he arrived for work and there were no pallets lying around.  He saw both the plaintiff and Mr Van Huffel when their truck was being loaded.  He spoke to both of them.  He was called by one of the employees informing him that the plaintiff had fallen off a pallet that was used as a staircase.  He spoke to the plaintiff and Mr Van Huffel who told him that they were looking for “cherries”.  He testified that the plaintiff was not seriously injured.  The plaintiff applied betadine and put on a plaster on his leg.   The plaintiff told him that he was okay.  He testified that the accident occurred about two to two and half hours into loading.  He denied that they sought directions to the hospital from him.  He testified that the plaintiff was driving when the truck left the premises.

D.	Argument:
[14]	Mr Jooste, counsel for the defendant, argued that the plaintiff failed to discharge the onus of establishing that the defendant was negligent by not foreseeing that a pallet could be used by its employees as a staircase to access the loading bay.  He argued that the evidence of Mr Power indicated that the defendant complied with all the safety regulations required of it e.g. by posting safety signs and fitting the necessary cameras to make certain that the rules and regulations are complied with amongst other things.  He emphasised the evidence of Mr Power pertaining the importance of the employees to use the biometric access control when going out of the premises to the toilet.  The employees were not paid for the time wasted when going out of the building, so he submitted.  He further submitted that the plaintiff and his witnesses did not testify faithfully especially because they suddenly had a lapse of memory when it came to crucial issues.  He alluded to the fact that there was a sharp dispute of facts which needed to be resolved in favour of the defendant.

[15]	Ms Joubert, counsel for the plaintiff, argued that the probabilities favour the plaintiff and the defendant should be held to be vicariously liable for the actions of his employees.  She submitted that I should find that such vicarious liability stems from the negligence of the employees of the defendant by placing the pallet in that position and directing the plaintiff to use it in gaining access to the loading bay.  

E.	Analysis:
[16]	To me, it is not an issue that the plaintiff got injured whilst he was in the premises of the defendant.  It is further not an issue that the injury sustained by the plaintiff was to his wrist.  Mr Power did not dispute that the plaintiff fell off while using a pallet as a staircase to gain access to the loading bay.  The defendant did not adduce evidence to dispute the evidence that the plaintiff was shown the pallet by its employees to use as a staircase.  I have no reason not to accept that the pallet was at the time used by the defendant’s employees to climb up and down the loading bay hence the plaintiff was told to use it.  That the plaintiff got injured was corroborated by Mr Du Preez who testified that he was advised of the accident and went to investigate what had happened.  The plaintiff told him that he was injured.  The only difference is that Mr Du Preez said that the plaintiff showed him an injury on the leg.  The plaintiff down played the injury to an extent that he offered him betadine and plaster, so testified Mr Du Preez.  Mr Du Preez said he did not observe any seriousness in the leg injury to an extent that they were joking and the plaintiff drove the truck when they left.  

[17]	I accept the evidence of the plaintiff and Mr Van Huffel regarding the time of the incident.  They both testified that it occurred about twenty minutes after their arrival.  As stated above each of them substantiated why they say so.  On the other hand, Mr Du Preez relies on his memory.  He did not say he was present or saw the truck when it arrived.  There is no indication further that he was present when they started to load the truck.  He was called to the loading bay by one of the employees after the incident had occurred.  The plaintiff and Mr Van Huffel are the people who are better placed to know how and when the accident occurred.

[18]	The plaintiff’s evidence as stated above is that after he fell and was assisted up by Mr Van Huffel, he went straight to the truck as he was in pain.  He remained in the truck until they left the premises.  The plaintiff’s evidence is that he heard Mr Van Huffel talking to someone while the truck was being loaded.  His evidence is corroborated by Mr Van Huffel and Mr Du Preez in this regard in that they conversed while the truck was loaded and they were standing on the loading bay.   The plaintiff was candid and stated that he did not talk about “cherries”.  Even though Mr Van Huffel did not have an independent recollection of him asking Mr Du Preez about girls, but as a jocular person he might have said so in jest.  I therefore accept the plaintiff’s evidence that he was never on the loading bay after the accident and I reject the evidence of Mr Du Preez in this regard.

[19]	Mr Du Preez testified that the plaintiff sustained a minor leg injury.  This cannot be true in the light of the evidence presented by the plaintiff.  The plaintiff and Mr Van Huffel’s testimony is clear that the injury was on the wrist.  The plaintiff categorically stated that he had no injury on the leg.  It is inconceivable that with the kind of injury he would have shown Mr Du Preez his leg and not his wrist.  The plaintiff could not have declined medical assistance as Mr Du Preez made us to believe if regard is had to all these factors. 

[20]	The circumstances under which the plaintiff fell have not been gainsaid by the defendant.  Similarly, the report made to Mr Du Preez could not have been different on how the accident occurred.  In other words one way or the other it would have come up on the day that the plaintiff fell while using the pallet as a means of getting off the loading bay.  It is improbable that an accident was reported but not the circumstances under which it occurred.  This is so because Mr Du Preez met the plaintiff and Mr Van Huffel pursuant to a report by one of the employees.

[21]	The version of the plaintiff about the events surrounding his injury are clear and concise and so is the evidence of Mr Van Huffel.  Their evidence is credible in the circumstances.  Both made concessions favourable to the defendant where due.  

[22]	The evidence of Mr Du Preez casts doubt as to its truthfulness.  He down played everything that occurred.  He stated that when he got to the loading bay both the plaintiff and Mr Van Huffel were on the loading bay joking about what had occurred.  He further down played the injury sustained.  His evidence that the plaintiff drove off the truck is not consistent with the evidence and the probabilities.  It is improbable that a person injured as described to an extent of remaining in hospital would have driven himself to the hospital especially when a co-driver was available. 

[23]	The pallets are readily available next to the loading bay because they are used regularly, so testified Mr Power.  Mr Du Preez testified that before the plaintiff’s truck arrived, precisely at the time he reported for duty, he inspected the area of the loading bay and he could not find anything dangerous.  Nothing of the sought was put to the witnesses as correctly argued by Ms Joubert.  The truth, as established, is that there was a pallet which posed a danger which ultimately led to the injury sustained by the plaintiff.  It is clear that the defendant’s employees were negligent by putting and using the pallet as a staircase.  They were further negligent by causing the plaintiff to use it to gain access to the loading bay.  It is evident that at the time the defendant’s employees were acting within the course and scope of their employment with the defendant.  In fact, that aspect is not in issue as it was not pleaded.  It is apparent that the pallet was not a reliable and safe means of gaining access to the loading bay.  

[24]	The manner in which the pallet was positioned was clearly dangerous.  A reasonable person would not have expected a pallet to be used continuously in the manner in which it was used without it injuring a person.  Risk of harm to a person using the pallet was foreseeable in the circumstances.  The defendant, in its plea admitted that it has a duty to take reasonable care to avoid foreseeable risk of injury to persons entering the premises.  That duty of care extends to its employees when acting within the course and scope of their employment with the defendant.  

[25]	I find that the plaintiff contributed to the negligence of the defendant.  A reasonable person in the position of the plaintiff would have realised that the use of the pallet as a staircase posed a risk or danger to himself and would have avoided using it.  There were other means the plaintiff could have used in order to avoid being injured.  He could have jumped from the passenger seat across console to the side of the driver and landed on to the loading bay.  Alternatively, he could have remained in the truck and not assist Mr Van Huffel because they both did not create the impression that it was difficult to open the curtains.  The plaintiff undoubtedly contributed to the negligence of the defendant.  

[26]	Consequently, I make the following order.
	1.	The defendant is liable to pay seventy percent of the plaintiff’s proven 		damages.
	2.	The defendant is ordered to pay the plaintiff’s costs, on a party and 			party scale, duly taxed or as agreed.

____________________
M MAKAULA
Judge of the High Court      

Appearances:

Counsel for the plaintiff:						Adv L Joubert

Instructed by:							Whiteside Attorneys
									Grahamstown
									c/o Simpsons Inc
									Belville
Counsel for the defendant:						Adv P Jooste
			
Instructed by:							Huxtable Attorneys
									Grahamstown

Dates heard:								16 & 17 March 2020

Date judgment reserved:						17 March 2020

Date judgment delivered:						12 May 2020

This judgment was handed down electronically to the parties’ legal representatives by email and will be published and released by the Registrar if so required or necessary.  The date for hand down of this judgment is 12 May 2020