A veterinarian aged 70 sued the landlord of the premises where her practice is, for damages after she claimed that she had suffered injuries when a steel motorgate fell on her.
Alfreda Alberts turned to the Gauteng High Court, Johannesburg, as she said her landlord, dentist Louis Muller, had a duty to ensure that the sliding gate was safe to use.
She leased business premises from Muller, and she said he, as the owner of the property, was responsible for the repair and maintenance of the leased property, including the gate.
She is claiming nearly R1.8-million from him in respect of past medical expenses, general damages, loss of earnings, and future medical expenses.
Alberts (the plaintiff) testified that in the afternoon of the incident, she went to open the gate in preparation for her afternoon session. When she pressed the remote control, the gate only opened a little enough for her to stand sideways.
She then went to the gate motor and switched the mode from automatic to manual as instructed by Muller and then pushed the gate open to allow a person with a dog on a leash to enter.
She started to walk back to the motor to switch it back to automatic.
When she was close to the gate, it dislodged from its rails. It started pivoting, and the left side of the gate fell at an angle, striking her left shoulder and left hip, causing her to fall.
She testified that her foot got stuck under the gate, and she had to crawl on her hands and knees from underneath the gate. The gate motor prevented the gate from falling flat, in which instance it would have crushed her, she said.
According to the plaintiff, the gate started to malfunction years ago. She said Muller failed to properly maintain the gate.
A neighbour testified that when he arrived at the premises, he found the gate lying flat on the ground and that the plaintiff looked distraught.
Muller testified that he bought the property in 2014. The gate and the motor in question were still the same as when he purchased the property and had never been replaced. He only changed the battery of the motor once.
Muller also confirmed that no maintenance was done on the gate or motor except for the reprogramming of the remote and the computer PC board and when the battery had to be replaced.
Muller stated that he does not know why the gate fell. He acknowledged that the remote was at times not functional but denied that the motor or the gate was faulty.
He is of the view that the allegation that the gate fell on the plaintiff was made up.
Muller further testified that the gap from underneath the gate was too small, making it impossible for a person the size of the plaintiff to crawl underneath as alleged by her.
Acting Judge JL Bhengu said on the proven facts it is clear that the remote had not been working properly since 2015. The defendant tried to attribute the malfunctioning of the gate to the manner in which the plaintiff opened the gate, by overriding the gate motor and then closing with a remote.
He also mentioned that when the plaintiff left the gate partially closed to allow entry to the clinic, it caused the gate motor not to function properly.
The judge commented that it is common cause that the plaintiff did not attend a medical facility for treatment until 11 months after the incident, when she physically consulted with her doctor.
Her evidence was that she self-medicated and was in constant contact with her doctor over the phone. In trying to explain the delay in seeking medical attention, the plaintiff described herself as stoic by nature. She stated that she knows her body and that “she knows when to see a doctor and when to self-medicate.”
“In this matter, it is common cause that the plaintiff only sought medical treatment 11 months after the accident. There are no clinical notes from her treating doctor to show that she consulted with her, even if it was telephonically as alleged,” the judge said.
While the court could not make a finding that the plaintiff was not injured, the judge said the plaintiff failed to prove the prerequisite element of harm required for a delictual claim and as such, her claim falls to be dismissed.
Pretoria News