Clarke v Mervelee Investments (Pty) Ltd (8986/2011) [2015] ZAKZDHC 63 (31 July 2015)

Clarke v Mervelee Investments (Pty) Ltd (8986/2011) [2015] ZAKZDHC 63 (31 July 2015)

The court found, on circumstantial evidence, that the plaintiff fell through a gap in the perimeter fencing of the upper level parking area, which the defendant failed to secure despite foreseeable risk to users. The defendant's omission to close the gap constituted negligence under the standard of a reasonable property owner. However, the plaintiff also contributed to his injuries by failing to avoid the dangerous area, and his conduct deviated from that of a reasonable person, though to a lesser degree than the defendant. Applying the Apportionment of Damages Act, the court apportioned liability at 60% to the defendant and 40% to the plaintiff.

Citation
[2015] ZAKZDHC 63
Parties
Plaintiff: Gerald Adrian Clarke; Defendant: Mervelee Investments (Pty) Ltd
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
31 July 2015
Case Number
8986/2011
Procedural Posture
Civil Trial / Liability Determination; Quantum to Stand Over
Outcome
Liability apportioned 60% to defendant, 40% to plaintiff; defendant ordered to pay costs.
Judges
Sishi
Legal Topics
Negligence, Apportionment of Damages Act, Premises Liability, Contributory Negligence
Delict Land and Property Negligence Apportionment of Damages Act Premises Liability Contributory Negligence

Case Brief

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Parties

Gerald Adrian Clarke

Plaintiff

Mervelee Investments (Pty) Ltd

Defendant

Procedural Posture

Civil Trial / Liability Determination; Quantum to Stand Over

Legal Issues

  1. 1 Under what circumstances did the plaintiff sustain his injuries.
  2. 2 Was there negligence on the part of the defendant in failing to secure the boundary wall.
  3. 3 Did the plaintiff contribute to his own injuries through negligence.

Ratio Decidendi

The court found, on circumstantial evidence, that the plaintiff fell through a gap in the perimeter fencing of the upper level parking area, which the defendant failed to secure despite foreseeable risk to users. The defendant's omission to close the gap constituted negligence under the standard of a reasonable property owner. However, the plaintiff also contributed to his injuries by failing to avoid the dangerous area, and his conduct deviated from that of a reasonable person, though to a lesser degree than the defendant. Applying the Apportionment of Damages Act, the court apportioned liability at 60% to the defendant and 40% to the plaintiff.

Court Disposition

Liability apportioned 60% to defendant, 40% to plaintiff; defendant ordered to pay costs.

Orders

  • The injuries sustained by the plaintiff were caused by the negligent conduct of both the defendant and the plaintiff.
  • The negligence of the parties is assessed at 60% - 40% in favour of the plaintiff.