Bruwer v Nortje NO and Another (2467/2011) [2013] ZAFSHC 16 (21 February 2013)

Bruwer v Nortje NO and Another (2467/2011) [2013] ZAFSHC 16 (21 February 2013)

The plaintiff failed to prove on a balance of probabilities that the harm suffered was reasonably foreseeable to the trust or that the trust was negligent. The evidence showed the cable slide was regularly serviced and had no prior incidents. There was no reliable evidence of a defect or failure in the mechanism, nor of any reasonable steps the trust could have taken beyond regular servicing. Even if negligence were established, the plaintiff signed a receipt incorporating clear and unambiguous rules and regulations excluding liability, which were brought to his attention through prominent notices. The trust is contractually exempted from liability. The claim is dismissed with costs.

Citation
[2013] ZAFSHC 16
Parties
Plaintiff: Gerhard Johannes Bruwer; Defendant: Benjamin Buchanan Nortje N.O.; Defendant: Benjamin Nortje N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
21 February 2013
Case Number
2467/2011
Procedural Posture
Civil Trial / Liability Only; Quantum Separated
Outcome
Claim dismissed with costs.
Judges
Lekale
Legal Topics
Negligence, Exclusionary Clause, Duty of Care, Contractual Liability Exclusion
Delict Negligence Exclusionary Clause Duty of Care Contractual Liability Exclusion

Case Brief

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Parties

Gerhard Johannes Bruwer

Plaintiff

Benjamin Buchanan Nortje N.O.

Defendant

Benjamin Nortje N.O.

Defendant

Procedural Posture

Civil Trial / Liability Only; Quantum Separated

Legal Issues

  1. 1 Whether the trust was negligent or grossly negligent in relation to the plaintiff's injuries.
  2. 2 Whether the trust is contractually exempted from liability for the plaintiff's injuries.

Ratio Decidendi

The plaintiff failed to prove on a balance of probabilities that the harm suffered was reasonably foreseeable to the trust or that the trust was negligent. The evidence showed the cable slide was regularly serviced and had no prior incidents. There was no reliable evidence of a defect or failure in the mechanism, nor of any reasonable steps the trust could have taken beyond regular servicing. Even if negligence were established, the plaintiff signed a receipt incorporating clear and unambiguous rules and regulations excluding liability, which were brought to his attention through prominent notices. The trust is contractually exempted from liability. The claim is dismissed with costs.

Court Disposition

Claim dismissed with costs.

Orders

  • The plaintiff's claim is dismissed with costs.