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[2019] ZAWCHC 17
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Boshoff v City of Cape Town (7407/16) [2019] ZAWCHC 17 (27 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE NO: 7407/16
In
the matter between:
TIAAN
BOSHOFF
Plaintiff
and
THE
CITY OF CAPE
TOWN
Defendant
Coram:
P.A.L.Gamble, J
Date of
Hearing: 4 & 5 September; 23 October 2018
Date of
Judgment: 27 February 2019
JUDGMENT
DELIVERED ON WEDNESDAY 27 FEBRUARY 2019
GAMBLE,
J:
INTRODUCTION
[1]
On a chilly winter’s night on Monday
11 August 2014, the plaintiff, Mr. Tiaan Boshoff (a 40 year old man
from Port Elizabeth)
fell into a stormwater channel near a
neighbourhood shopping centre in Durbanville. He sustained serious
orthopaedic injuries and
claims damages from the City of Cape Town as
a consequence thereof.
[2]
The plaintiff accepts that he was negligent
in not keeping a proper lookout while he was walking across a public
area adjacent to
the channel belonging to the City, but he claims
that the City created the source of the harm and that it too was
negligent in
the circumstances. The parties agreed that the court was
only required to hear the merits of the claim with the quantum
standing
over for later determination.
SETTING
THE SCENE
[3]
To evaluate the plaintiff’s claim
fully it is necessary to describe the area in some detail. In the
vicinity of the channel
Langeberg Road runs through Durbanville from
west to east
[1]
.
It bisects a residential area to the west which is where the
plaintiff was staying with friends. As the road heads eastward it
traverses a wide area of public open space which has been reserved
for the future development of the R300 highway, a ring road
around
the City’s southern and eastern suburbs which terminates
several kilometres to the south of Langeberg Road. I shall
adopt the
parties’ description of this area as “
the
road reserve”
[4]
The road reserve runs in a broad swathe,
generally from south to north, on either side of Langeberg Road and
is a couple of hundred
metres wide. The evidence is that due to the
topography there is the potential for the run-off of stormwater on
the road reserve,
generally in a southerly direction. To accommodate
the passage of such water under Langeberg Road the City installed a
culvert
in 1998 when it attended to the upgrade of the road. On the
upstream side of the culvert there is a wide ditch choked–up
with grass and reeds which runs into a large, exposed cement channel
and headwall which is intended to funnel the water into the
culvert.
At its deepest the base of the channel is more than a one and a half
metres below ground level. This is where the calamity
occurred. For
the sake of convenience a recent photograph of the scene is attached
to this judgment as Annexure A.
[5]
The plaintiff testified that at about 20h00
on the night in question he ventured up Langeberg Road (in an
easterly direction) in
search of a box of aspirins. He said that the
friends with whom he was staying directed him to a neighbourhood
convenience store
(“
the 7/11
”)
which was located in a small shopping centre to the north of
Langeberg Road and about 20 - 30m beyond the channel. As he
walked up
Langeberg Road the plaintiff would have set off on the southern
sidewalk for that is the side on which his friends’
house is
located. To reach the 7/11 the plaintiff would at some stage or other
have had to cross over to the northern sidewalk
of the road.
[6]
At the point where Langeberg Road traverses
the road reserve it is bounded on either side by tall blue gum trees
which create additional
shadow at night. At that point there is a
tarred sidewalk on the southern side of the road (Annexure A depicts
2 men in orange
overalls standing there), while on the northern side
of the road there is a large gravel area which is accessible to
pedestrians
who have, over the years, carved out a number of paths
under and next to the trees. As fate would have it, the plaintiff
crossed
Langeberg Road before he got to the road reserve and so he
proceeded up the northern sidewalk along a well-worn gravel path
rather
than along the formally constructed sidewalk on the southern
side of Langeberg Road.
[7]
Contemporaneous photographs of the area (as
also Annexure A) show that the City had planted a series of wooden
bollards adjacent
to the gravel footpath. This would afford
pedestrians ample space (more than 4m) within which to proceed up the
road but would
prevent motor vehicles from accessing the road reserve
or adjacent areas. A pedestrian wishing to patronize the 7/11 would
walk
up the path with such bollards a couple of metres to his left.
He could proceed about 50m further up the road to the intersection
of
Langeberg and Goedemoed Roads, turn left and then enter the parking
area of the shopping centre from the latter road.
[8]
Alternatively, a pedestrian might do what
is very much part of human nature and take a short cut. This would
involve making a 45
degree left turn towards the shopping centre just
past the channel and follow another well-worn footpath towards the
parking area
of the shopping centre. That footpath too is bounded on
its left by wooden bollards albeit somewhat further apart than those
adjacent
to the road. The channel is located next to these bollards
which would serve as a barrier to vehicles which might seek to
venture
towards the road reserve or the channel. Those bollards would
also tend to keep pedestrians a safe distance away from the channel.
THE
MATERIAL ASPECTS OF THE EVIDENCE FOR THE PLAINTIFF
[9]
The plaintiff said that as he crossed the
road reserve he kept left and headed towards the 7/11 taking the
short cut. However, instead
of safely passing the channel to his left
he effectively turned too early and plunged into it, somewhere in
between points “G”
and “J” on annexure A. He
suffered a knock to the head and when he came to found that he had
sustained a complete fracture
of his left femur. He had evidently
been lying in the channel for a couple of hours when he was found by
a nearby security guard.
[10]
According to the plaintiff he had been to
the shopping centre only once before during the day but said that
this was the first time
that he had walked up Langeberg Road to the
7/11 at night and he was therefore in unfamiliar territory. Under
cross examination
the plaintiff readily conceded that he was then a
recovering drug addict who had abused dagga and methamphetamine
(“
tik
”)
at the time of his fall. However, he denied that he had used any drug
that evening or that his faculties were in any way
impaired.
[11]
The plaintiff adduced the evidence of
Gerhardus Boshoff (who is no relation but will be referred to as
“
Gerhard
”
to avoid confusion) the friend with whom he had been staying at the
time. Gerhard said that he and his wife had stayed at
no. 22
Langeberg Road for some time and that the plaintiff had been living
with them for about 2 months at the time of the accident.
Gerhard
said that both he and his wife had regularly walked up to the 7/11
without incident and that during the time that he had
stayed with
them, the plaintiff had done likewise. Gerhard further testified that
he too had been a substance abuser and that he
had subsequently ended
his friendship with the plaintiff because he considered that they
were a bad influence on each other. In
the circumstances it is fair
to assume the accuracy of the statement by Gerhard which suggested
that the plaintiff was familiar
with the area.
THE
LIGHTING ON THE NIGHT IN QUESTION
[12]
The plaintiff made much of the inadequate
lighting and overhead conditions that night, suggesting that certain
of the street lights
in the area were out of operation and that it
was cloudy and overcast, thereby creating the impression that he had
ventured into
the dark, as it were. This evidence must be considered
against the fact that it was full moon the night before and that it
had
been a so-called “
super moon
”
suggesting additional luminance. Also, the case for the City was that
it had been only partly overcast with passing clouds
on the 11
th
of August. In regard to the lighting in the vicinity of the road
reserve at the time, it is common cause that there were standard
street lights on the northern side of Langeberg Road and that these
complied with accepted international design standards.
[13]
Gerhard testified that when he got to the
scene where the plaintiff was lying in the channel, he observed that
a single street light
immediately to the west of the channel was out.
It is common cause that the lamp pole was about 20m from the channel.
(It is not
visible on Annexure A but is just out of picture to the
right). The plaintiff on the other hand said that he remembered that
all
of the street lights in the area were flicking on and off at the
time. This evidence then generated an enquiry and debate all of
its
own. Initially the City’s case was that there had been a
problem with a single light further to the west and down the
road
towards Gerhard’s house earlier in August 2015 but that this
outage had been rectified by 5 August. However, after some
further
enquiry the City fairly conceded that the problem might well have
only been attended to after the accident.
[14]
In regard to the lighting issue the City
called Mr. Coetzee van Heerden, a senior municipal official charged
with responsibility
for lighting in the area. He testified that he
lived close by in a street just off Langeberg Road. Mr. van Heerden
is a dedicated
electrical engineer who takes great pride in his work
and the efficiency of his unit. He explained that the street lights
in the
area of the culvert had been upgraded in 2008 and used 250w
high pressure sodium lamps mounted on poles that were 50m apart. Mr.
van Heerden said that the lifespan of such a bulb was of the order of
7 years. Mr. van Heerden is a keen motorcyclist and he told
the court
how he regularly rode around his area of responsibility (which
extended as far Mfuleni) and reported non-functional street
lights.
[15]
With reference to the plaintiff’s
allegation that the lights were flickering on and off at the time,
Mr. van Heerden explained
what he termed “
cycling”.
He said that it sometimes happened that
shortly before a street lamp’s life expired it would flicker on
and off. This is called
cycling and is a relatively rare occurrence
.
With more than 30 years’ experience in the field of street
lighting Mr. van Heerden said he had never encountered 2 street
lights adjacent to each other cycling, thereby refuting the
plaintiff’s evidence that a whole string of street lights was
flickering. However, after persistent questioning by Mr. Nel (who
appeared for the plaintiff) the witness eventually accepted that
the
light closest to the culvert may well have been out of order, thereby
corroborating Gerhard’s evidence.
[16]
Mr. van Heerden went to great lengths to
assess the degree of luminance in the immediate vicinity of the
channel. Using a properly
calibrated lux meter he found that the
available light there was sufficient for one to be able to read a
newspaper, as the witness
so optimistically put it. But this evidence
is undermined somewhat by Mr. van Heerden’s fair concession
that the nearest
street light was non-functional. It was also pointed
out that the area was partially illuminated by the headlights of
passing traffic
(and Langeberg Road is said to be a busy arterial
route) and spillage from the shopping centre where the 7/11 was
located.
[17]
There can be little doubt that the area in
the vicinity of the road reserve is dark – it is after all an
area of land which
lies fallow in anticipation of being converted
into a highway one day. But when one wanders up the northern sidewalk
adjacent to
Langeberg Road, particularly where it traverses the road
reserve, one’s path is illuminated by the street lights along
that
side of the road. And, common sense tells one that if the path
is poorly lit (perhaps because a streetlight is out or cycling) one
would have to proceed with extra caution lest one was exposed to
injury through a trip or fall.
[18]
In the circumstances I am satisfied on the
available evidence that the area in the vicinity of the channel was
adequately illuminated
on the night of 11 August 2014 and that the
City was in no way remiss in failing to afford pedestrians seeking to
use the well-worn
footpath on the northern sidewalk of Langeberg Road
sufficient lighting to enable them to proceed safely at night.
[19]
What of the non-functional street light? As
Mr. van Heerden explained, the City is responsible for a huge
metropolitan area much
of which is illuminated by street lights under
its auspices. It has put suitable reporting mechanisms in place to
enable it to
respond to electrical breakdowns (other than of course
the euphemistically termed “outages” which the national
power
supplier visits on its users from time to time) and aims to
address faults within time frames (a maximum of 14 days) that seem to
me to be fair, given the City’s budgetary constraints,
personnel and available resources. The fact that it took the City
about 2 weeks to replace the street light which had fused does not,
in my view, constitute negligence if regard is had to the extent
of
the duty of care it owes to its citizenry. In the circumstances, I am
satisfied that the City has established that there was
sufficient
light to illuminate Langeberg Road in the vicinity of the road
reserve. And, after all, the City is entitled to assume
that people
using its roads and particularly its sidewalks will exercise
reasonable care and diligence.
[20]
Under cross examination by Mr. Greig for
the City the plaintiff boldly asserted that he was not negligent
because he could not see
where he was going. Mr. Nel, prudently in my
view, did not seek to make much of this statement in argument and
immediately conceded
that the plaintiff was negligent in failing to
keep a proper lookout, observe the channel and walk around it. After
all, as Annexure
A reflects, the channel adjacent to the culvert is
made up of a large hole in the ground – probably about 3m wide,
5m long
and 1,5m deep – and is comparable to a small plunge
pool. The plaintiff’s suggestion that he was finding his way in
pitch dark conditions does not withstand scrutiny.
THE
CITY’S ALLEGED FAILURE TO SECURE THE AREA AND OTHER ALLEGED
GROUNDS OF NEGLIGENCE
[21]
In his amended particulars of claim the
plaintiff alleged, in addition to alleging a failure to ensure that
the locality was sufficiently
lit, the following grounds of
negligence on the part of the City.
“
6.1 By failing to ensure that the
stormwater channel was properly cordoned off and secured;
6.2 By failing to ensure that the location were
(sic) kept in a safe condition for use by the public and the
Plaintiff in particular;
6.3 By failing to ensure that the location did
not constitute a source of danger when used by the public and the
Plaintiff in particular;
6.4 By failing to ensure that the stormwater
channel was properly marked and/or obstructed to draw the attention
of the public and
the Plaintiff in particular to the fact that the
stormwater channel was not cordoned and therefore constituted a
source of danger
to the public;
6.5 By failing to ensure that the public and
the Plaintiff in particular were properly aware of the presence of
the open stormwater
channel.
6.6 By failing to ensure that a proper system
was in place to inspect the location on (sic) regular intervals.
6.7 …..
6.8 At all material times of the Defendant owed
a duty to the members of the public, including the Plaintiff to
perform the act
as described in one or more of paragraphs 6.1 to 6.7
above, and its failure/omission (as pleaded) constitutes a breach of
its duty
and was wrongful in the circumstances.
7. By reason of the foregoing, the defendant and/or its employees
knew or ought to have known by failing to ensure that the location
was properly maintained and inspected and the drain and/or stormwater
channel was properly cordoned off and secured, it constituted
a
danger to the public, and to the Plaintiff in particular.”
[22]
I agree with Mr. Greig’s approach in
argument that the essence of the plaintiff’s case on this leg,
shorn of its elaborate
verbiage, is based on the City’s alleged
failure to warn of, or cordon off, the culvert. The plaintiff adduced
no evidence
on this score while the defendant presented the evidence
of Mr. Johan Snyman, a civil engineer employed by the City as the
area
manager responsible for maintenance of roads and stormwater
systems.
[23]
Before considering this evidence, however,
it is apposite to deal with one historical development subsequent to
the plaintiff’s
accident. Recent photographs of the channel
(including Annexure A) show the erection of a simple
agricultural-type fence made up
of so-called “dropper”
poles and 3 or 4 horizontal strands of wire. The location of the
fence in the vicinity of the
channel now renders a calamity such as
the plaintiff’s a near impossibility. To get to the channel one
would have to climb
over, or through, the fence.
[24]
Mr. Snyman pointed out (and the photographs
confirm) that this rudimentary fence stretches along either side of
Langeberg Road over
the entire width of the road reserve. Mr. Snyman
said that his department was directed to erect the fence about 2 or 3
years ago
to restrict access to the road reserve to motor cyclists
who were becoming an increasing source of noise and irritation to the
local residents. The fence was not a response to the plaintiff’s
claim. In fact, said Mr. Steyn, he only came to hear of the
injury to
the plaintiff fairly recently when called upon by the City’s
lawyers to attend a consultation in relation to this
trial.
[25]
Mr. Steyn pointed out under cross
examination that urban roads are not ordinarily fenced off by the
municipality. Rural roads however
are something different and might
need to be fenced off to prevent livestock wandering onto the road
surface. In the result the
subsequent erection of the fence next to
(and partially around) the channel is a red-herring in this matter:
it has nothing to
do with the plaintiff’s claim and most
certainly was not erected in response thereto.
[26]
The purpose of Mr. Steyn’s evidence
was to demonstrate to the court what the risks were that were
required to be evaluated
by the City when it constructed a culvert
such as that in question and what reasonable steps were required to
be taken to ensure
that it did not pose a danger to the public. He
came across as a very intelligent and thoughtful witness who fully
appreciated
the risks which were required to be evaluated. He
approached the case scientifically pointing out that there were 6663
headwalls
[2]
within the jurisdiction of the City and explaining what the cost
would be of enclosing each of them. That cost was then compared
to
the City’s overall budgetary constraints and, in particular,
the budget made available to the department in which he was
employed.
The testimony highlighted not only the City’s budgetary
constraints but stressed the prioritization of the limited
funds made
available to the roads and storm water department. As Mr. Steyn
explained, in the current financial year (2018/19) his
department had
only been allocated R78m to spend and this represented a mere 15% of
what the department’s actual budgetary
requirements were.
[27]
Mr. Steyn stressed that his department’s
main aim was to ensure a functional storm water system and that this
was where much
needed resources ought to be allocated. He testified
that he would at all times assess the risk inherent in any particular
culvert,
its location, its depth and design and the incidence of
accidents before deciding whether some form of protective barrier or
fence
was called for. This witness’ evidence falls to be
evaluated against the backdrop of the City’s legal duties and
obligations
and it is to that which I now turn.
THE
APPROACH TO MUNICIPAL LIABILTY IN SUCH CIRCUMSTANCES
[28]
It is perhaps apposite to revert to first
principles in delictual claims as the Supreme Court of Appeal
directed in
Telematrix
[3]
.
“
[12] The first principle of the law of
delict, which is so easily forgotten and hardly appears in any local
text on the subject,
is… that everyone has to bear the loss he
or she suffers….. Aquilian liability provides for an exception
to the rule
and, in order to be liable for the loss of someone else,
the act or omission of the defendant must have been wrongful and
negligent
and have caused the loss. But the fact that an act is
negligent does not make it wrongful although foreseeability of damage
may
be a factor in establishing whether or not a particular act was
wrongful. To elevate negligence to the determining factor confuses
wrongfulness with negligence and leads to the absorption of the
English law of tort of negligence into our law, thereby distorting
it.”
[29]
The cases involving alleged municipal
liability for injuries through pedestrian trips and falls and the
like are numerous.
[4]
Butters
is probably the
locus classicus
,
and its facts are not entirely dissimilar to the present case. A 72
year old man fell into the canalized part of the Liesbeeck
River
adjacent to a parking area behind a shopping centre in Rondebosch in
the dark as he was making his way from his car to a
restaurant. The
canal was several metres wide and more than 2,5m deep and the
plaintiff sustained serious injuries after he slipped
and fell.
[30]
In finding that the plaintiff’ was
partly to blame for his injuries (25%), the court found the
municipality to be far more
culpable in the circumstances. Mr. Nel
modelled his argument on this decision and asked the court to make a
similar apportionment.
In
Butters
,
the court conducted a thorough review of all the relevant authorities
and cautioned that in each instance where such claims are
brought –
“
(E)ach..set of circumstances will have
to be assessed on its own merits, and against the background of its
own facts, and the question
of the defendant’s legal duties and
liabilities, if any, in each such situation will have to be decided
separately and in
the light of the relevant facts pertaining to each
such case. The existence or non-existence of duties and liabilities
on the part
of the defendant in such other hypothetical cases cannot
assist this Court in the decision of this case.”
[5]
[31]
In
Graham
,
a case involving a claim for damages following a rock fall on
Chapman’s Peak Drive, the Supreme Court of Appeal restated
the
approach thus.
“
[7] Turning to the question of
negligence, it is now well established that whether in any particular
case the precautions taken
to guard against foreseeable harm can be
regarded as reasonable or not depend upon a consideration of all the
relevant circumstances
and involves a value judgment which is to be
made by balancing various competing considerations. These would
ordinarily be
‘
(a)
the degree or extent of the risk created by the actor’s
conduct; (b) the gravity of the possible consequences if the risk
of
harm that materialises; (c) the utility of the actor’s conduct;
and (d) the burden of eliminating the risk of harm.
’….
If a reasonable person in the position of the
defendant would have done no more than was actually done, there is,
of course, no
negligence.”
[6]
[32]
Bakkerud
was
a case involving a fall into a long-standing hole in the pavement
adjacent to a Sea Point street in which the Supreme Court
of Appeal
had to consider whether the municipality was to be held liable for
its omission to effect repairs to the hole. In the
course of a
detailed judgment the learned judge of appeal proceeded to review and
reconsider the well-established line of cases
affording so-called
“
municipal immunity
”
for the failure by a local authority to repair streets and sidewalks
which it was empowered, but not obliged, to build.
[7]
The import of those cases, as the law has developed over the years,
has led to some now arguing that there was in fact a general
immunity
for municipalities to claims arising from unrepaired streets and
sidewalks and the extrapolation of that principle has
led to attempts
to broaden the ambit of the exemption even further.
[33]
Cognizant of these developments and
conscious of the fact that the case before it fell squarely within
the established municipal
immunity parameters, the Supreme Court of
Appeal stated the following.
“
[17]…(W)hen a court is required
to consider whether a legal duty should be imposed in a given
situation the ‘balance
ultimately struck must be harmonious
with the public’s notion of what justice demands’…
[27] While the Court
a quo’s
conclusion that it was
open to it to re-visit the general or relative immunity of
municipalities and, if justification existed,
to jettison the notion,
was therefore correct, I think that, having done so, it was wrong to
substitute for it what amounts to
a blanket imposition upon
municipalities generally of a legal duty to repair roads and
pavements. In my view, it has to be recognised
that in applying the
test of what the legal convictions of the community demand and
reaching a particular conclusion, the Courts
are not laying down
principles of law intended to be generally applicable. They are
making value judgments
ad hoc
.
[28] A minuscule and underfunded local authority with many other
more pressing claims upon its shallow purse, and which has not kept
in repair a little used lane in which small potholes have developed
which are easily visible to and avoidable by anyone keeping
a
reasonable look-out, may well be thought to be under no legal duty to
repair them or even to warn of their presence. A large
and
well-funded municipality which has failed to keep in repair a
pavement habitually thronged with pedestrians so densely concentrated
that it is extremely difficult to see the surface of the pavement, or
to take evasive action to avoid potholes of a substantial
size and
depth, may well be under a legal duty to repair such potholes or to
barricade or otherwise warn of them. There can be
no principle of law
that all municipalities have at all times a legal duty to repair or
warn the public whenever and whatever potholes
may occur in whatever
pavement or streets may be vested in them.
[29] It is tempting to construct such a legal duty on the strength
of a sense of security engendered by the mere provision of a street
or pavement by a municipality but I do not think that one can
generalize in that regard. It is axiomatic that man-made streets
and
pavements will not always be in the pristine condition in which they
were when first constructed and that it will be well-nigh
impossible
for even the largest and most well-funded municipalities to keep them
all in that state at all times. A reasonable sense
of proportion is
called for. The public must be taken to realise that and to have care
for his own safety when using the roads
and pavements.
[30] It is not necessary, nor would it be possible, to provide a
catalogue of the circumstances in which it would be right to impose
a
legal duty to repair or to warn on a municipality. Obvious cases
would be those in which difficult to see holes develop in a
much used
street or pavement which is frequently so crowded that the holes are
upon one before one has had sufficient opportunity
to see and to
negotiate them. Another example, admittedly extreme, would be a
crevice caused by an earth tremor and spanning a
road entirely. The
variety of conceivable situations which could arise is infinite.
[31]
Per contra
, it would, I think, be going too far to
impose a legal duty on all municipalities to maintain a billiard
table-like surface upon
all pavements, free of any subsidences or
other irregularities which might cause an unwary pedestrian to
stumble and possibly fall.
It will be for a plaintiff to place before
the court in any given case sufficient evidence to enable it to
conclude that a legal
duty to repair or to warn should be held to
have existed. It would also be for a plaintiff to prove that the
failure to repair
or to warn was blameworthy (attributable to
culpa
).
It is said that some (but not all) of the factors relevant to the
first enquiry will also be relevant to the second enquiry (if
it be
reached), but that does not mean that they must be excluded from the
first enquiry. Having to discharge the onus of proving
both the
existence of the legal duty and blameworthiness in failing to fulfil
it will, I think, go a long way to prevent the opening
of the
floodgates to claims of this type of which municipalities are so
fearful.”
[34]
I am mindful that we are not dealing in
this case with a pothole in a pavement or street
per
se
. Nevertheless, the facts of this
case do focus on the general use by the public of a sidewalk adjacent
to a public road and the
facts illustrate the potential pitfalls (if
I may be permitted to use the pun) which might confront such a
pedestrian in the vicinity
of the channel. In the circumstances I
believe that it is fair to approach the plaintiff’s claim along
the lines suggested
in
Bakkerud
and
Graham
.
[35]
There can be no debate that when it
constructed the channel adjacent to the culvert the City was creating
a potential source of
harm – really a large open pit into which
an errant pedestrian might fall. And when referring to pedestrians
one would have
to include joggers, cyclists, skateboarders and all
the other classes of people who tend to occupy our sidewalks these
days.
[36]
In Annexure B hereto the channel is
depicted in the direction of the 7/11 and the bollards parallel to
Langeberg Road are clearly
visible. So too are the bollards which go
off at an angle and guide one safely past the headwall of the channel
towards the shopping
centre. Undoubtedly, both sets of bollards were
intended to keep vehicular traffic (be they cars, motorcycles or
cycles) from entering
upon the sidewalk and ultimately the road
reserve. But they also served a useful secondary purpose – to
guide pedestrians
around the hazard as the footpaths visible on
annexure B demonstrate.
[37]
The question that then arises is whether it
was incumbent on the City to take any further steps to warn the
public of the hazard
it had lawfully created. Applying the
dicta
in
Bakkerud
and
Graham
,
the answer to that question requires the court to exercise a value
judgment after due consideration of all the relevant factors.
In
Administrateur, Natal
[8]
the Appellate Division cited with approval the following passage from
Fleming
,
The Law of Torts, 4
th
ed at 136.
“
In short, recognition of a duty of care
is the outcome of a value judgment, that the plaintiff’s
invaded interest is deemed
worthy of legal protection against
negligent interference by conduct of the kind alleged against the
defendant. In the decision
whether or not there is a duty, many
factors interplay; the hand of history, our ideas of morals and
justice, the convenience of
administering the rule and our social
ideas as to where the loss should fall. Hence, the incidence and
extent of duties are liable
to adjustment in light of the constant
shifts and changes in community attitudes.”
[38]
There can be no doubting the necessity and
utility of constructing the channel and headwall: it is advisable and
reasonable to divert
stormwater flowing down the road reserve from
the road surface of Langeberg Road. The “
utility”
factor referred to in
Graham
is therefore readily established, as
the evidence of Mr. Steyn demonstrates. Similarly, the degree of
potential harm implicit in
the construction of the channel is
self-evident: the drop is significant and a person inadvertently
falling into the channel could
be expected to sustain serious
injuries, as the plaintiff did.
[39]
The burden of eliminating the risk of harm
is not extensive in this instance. While a protective barrier made up
of some steel piping
would not unduly tax the City’s coffers,
the subsequent but unrelated installation of a rudimentary fence
certainly has significantly
reduced the risk of future accidents. The
real question in this case is whether it was reasonable for the City
to foresee that
someone might wander off a well-defined and used path
and plunge into the channel.
[40]
In considering the answer to that question,
a court will have regard to the fact that the channel is located away
from a quiet residential
area, close to an open field in a locality
where not many pedestrians would ordinarily be expected to
venture.
[9]
But even if that were the case, and it was reasonable to anticipate
someone’s morbid fascination with the base of a cement
channel,
the pit is so large and visible that the City would be entitled to
assume that such an adventurer would approach with
caution and keep
away from the danger, certainly during the daytime.
[41]
What of the
notional nocturnal wanderer? It certainly is not beyond the realms of
speculation that someone may wind his way up the
path towards the
7/11 at night. Nor is it unreasonable to anticipate that such a
pedestrian might take the short-cut across to
the shopping centre.
But a reasonable local authority would, in my view, be entitled to
assume that such a person would be guided
by the bollards it had
installed and keep away from the hazard. After all the large void
occasioned by the channel would still
have been visible in the
available ambient light and would have presented to the reasonable
pedestrian as just that – a large
dark area where danger might
lurk. And, adopting the cautioning words of the Supreme Court of
Appeal in
Bakkerud
,
members of the public are expected to
have regard for their own safety when using the City’s roads
and sidewalks and cannot
demand that they be protected against their
own foolhardiness.
CONCLUSION
[42]
In the circumstances I am satisfied that
the City had taken adequate steps to expose the source of harm to the
public and that the
legal convictions of the community would not
expect it to cater for heedless behavior by nocturnal pedestrians in
a low traffic
area well off the roadway. In the result I conclude
that the plaintiff has not established that the defendant was
negligent as
alleged, or at all, and his claim must therefore fail.
Accordingly
it is ordered that the plaintiff’s claim is dismissed with
costs.
__________________
GAMBLE,
J
[1]
While Google Maps suggests that the direction might more properly be
described as north-west to south-east it is convenient to
rely on
east and west as the compass points.
[2]
In Annexure A the headwall runs between points K and G.
[3]
Telematrix (Pty) Ltd v Advertising Standards Authority SA
2006 (1) SA 461
(SCA) at [12]
[4]
Butters v Cape Town Municipality
1993 (3) SA 521
(C);
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA);
Cape
Town Metropolitan Council v Graham
2001 (1) SA 1197
(SCA);
Judd
v Nelson Mandela Bay Municipality
[2010] ZAECPEHC 10 (23 March
2010);
James v City of Cape Town
[2013] ZAWCHC 110
(14 August
2013)
[5]
At 529 I-J
[6]
1203H
[7]
See for example
Halliwell
v Johannesburg Municipal Council
1912
AD 659
;
Municipality of Bulawayo v
Stewart
1916 AD 357
;
Cape
Town Municipality v Clohessy
1922 AD
4
;
Moulang v Port Elizabeth
Municipality
1958 (2) SA 518 (A)
[8]
Adminstrateur, Natal v Trust Bank van Afrika Bpk
1979 (3) SA
824
(A) at 833J - 834A
[9]
October v Nelson Mandela Bay Municipality
[2008] ZAECHC 205
at
[26]