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[2020] ZAWCHC 21
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Deacon v Reeds Motor Group, a Division of Pepkor Trading (Pty) Ltd (9203/2017) [2020] ZAWCHC 21 (18 March 2020)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 9203/2017
Before:
The
Hon. Mr Justice Binns-Ward
Hearing: 11 March 2020
Judgment:
18 March 2020
In
the matter between:
LEONARD
MARK
DEACON
Plaintiff
and
REEDS MOTOR GROUP
A
division of Pepkor Trading (Pty)
Ltd
Defendant
Judgment
BINNS-WARD
J:
[1]
The plaintiff is a 59-year old
businessman. On 29 May 2014, at about three o’clock in
the afternoon, he was walking
on the pavement in Christiaan Barnard
Street on the Cape Town Foreshore when he caught his right leg
against the tow bar of a BMW
540i motor vehicle that was parked on
the sidewalk and tripped and fell. The current proceedings
concern his claim for compensation
in damages in respect of the
injury he allegedly sustained in the incident and in consequence of
its sequelae. The defendant
is Reeds Motor Group, a well-known
motor dealer. The BMW motor vehicle was owned by or under the
control of the defendant.
An agreement between the parties that
the issue of liability should be determined separately from, and
before, the other issues
in the case was formally adopted by way of a
ruling made in terms of rule 33(4) of the Uniform Rules at the
commencement of the
hearing. This judgment is therefore
concerned only with the question of liability, including, to the
extent necessary, the
issue of contributory negligence.
[2]
The incident that gave rise to the
institution of the action occurred immediately outside the
defendant’s Cape Town showroom.
The BMW had been parked
on the pavement by one of the defendant’s staff. The
vehicle was in point of fact one of five
or six vehicles that were
parked in a line-up of cars on the pavement outside the showroom.
It emerged at the trial that
it was a common practice of the
defendant, and apparently also that of some other motor vehicle
dealers with business premises
in the vicinity, to display some of
their stock on the pavement.
[3]
The plaintiff’s counsel pointed out
that s 32(3) of the City of Cape Town Parking By-Law, 2010
[1]
prohibits the parking of a vehicle ‘
on
a sidewalk or in a manner restricting pedestrian movement on a
sidewalk
’. It is not
altogether clear though whether the prohibition in terms of s 32(3)
applies generally, or only within
the area of a ‘
parking
ground
’. The provision to
which counsel referred is located within chapter 3 of the By-Law,
which is entitled ‘
Parking
Grounds
’. It does appear,
however, that the parking of vehicles on pavements by motor dealers
must have been regarded by the
City as a particular problem, for
which special provision in the By-Law appears to have been considered
necessary. Thus,
the parking of cars on the pavement by a
dealer in, or seller of, vehicles is expressly prohibited in terms of
s 8.
It does not matter whether the vehicles are being
actively advertised for sale or not. In terms of s 2 of
the By-Law,
the stated purpose of the statutory instrument is ‘
to
control parking within the jurisdiction of the City in order to
provide a safe environment
’.
[4]
At the time of the incident, however, the
defendant had been granted what appears to have been an informal
dispensation by the municipal
authorities permitting it to use the
pavement to display some of its vehicles. The reason for the
dispensation was that certain
building activity being undertaken in
the immediate vicinity had had the effect of temporarily impinging on
the internal showroom
space available on the defendant’s
premises, as well as restricting access to a certain extent. It
was a condition
of the dispensation that the vehicles had to be
parked in such a manner as would leave at least one metre’s
width of the
sidewalk free for unimpeded use by pedestrians.
The evidence is that Christiaan Barnard Street is at times a busy
pedestrian
thoroughfare. There is a bus stop and a coffee shop
in the close vicinity of the defendant’s showroom.
[5]
The plaintiff testified that on the
afternoon in question he had parked his car in Jack Craig Street, a
side road that intersects
at right angles with Christiaan Barnard
Street. He proceeded from there on foot along the pavement on
his way to Amway, which
is a business premises in Christiaan Barnard
Street. Amway was on the same side of the road and in the same
city block as
the defendant’s showroom. The plaintiff’s
route required him to navigate his way past the line-up of vehicles
parked on the pavement outside the defendant’s showroom. He
did so using the pavement space that had evidently been
left
available for pedestrians to use. The free pavement space was
in the area between the showroom display windows and the
backs of the
vehicles, which were parked facing into Christiaan Barnard Street.
He had no difficulty in making his way until
he reached the BMW,
which was the last in the line of parked vehicles behind which he
would have to pass. The rear end of
the BMW was notably closer
to the showroom window than those of any of the other vehicles in the
line-up; the plaintiff estimated
that the gap between the window and
the BMW was only between 45 and 50 cm in width. The gap was so
narrow that as he passed
through it, the plaintiff, who is heavily
built (but not exceptionally so), could feel the sides of his body
brushing against the
window on his left side and against the rear of
the BMW on his right side.
[6]
The reliability of the plaintiff’s
estimate of the dimensions of the gap left behind the BMW for
pedestrians to pass is supported
by the undisputed evidence that the
pavement is between 5,03 and 5,04 m wide and that the length of the
BMW 540i was 4,83 m.
Had the vehicle been parked at right
angles to the road, with its entire body length straddling the
pavement, only 20 cm or so
of space would have been available for
pedestrians to pass. However, the plaintiff’s
uncontradicted evidence was that,
after his fall, he noted that the
front end of the BMW was poking out over the kerb on the street-side
edge of the pavement.
After he had ascertained the relevant
measurements, the plaintiff deduced, logically in the circumstances,
that the front of the
BMW must have been protruding over the kerb by
about 25 to 30 cm.
[7]
It was suggested to the plaintiff in
cross-examination that the BMW had been parked at an oblique angle,
in a position comparable
to that in which the gold or brown VW Kombi
that is visible in the centre of the photographic exhibit introduced
as Exhibit C is
depicted. The plaintiff was unable to recall
whether that had been so or not, and no evidence was called by the
defendant
to substantiate or confirm the proposition. In the
result there was not any direct evidence on the point. It is
evident,
however, from the other photographs in the trial bundle,
Exhibit B, that cars were at different times parked on the pavement
outside
the defendant’s showroom in a variety of positions and
parking configurations. What does weigh with me though is that
it seems improbable, if the vehicle had been parked at a significant
deviation from a 90° angle to the road, that the plaintiff
would
have experienced the sensation of his body brushing against the back
of the vehicle as he passed behind it. If the
vehicle had been
parked at a distinctly oblique angle, the closest part of its rear to
the showroom window would have been its
left rear corner and the
furthest part from the window would have been the right rear corner.
The plaintiff’s line
of approach was from the right of the
vehicle. If he started brushing against the car immediately he
started passing it,
as his evidence would suggest, he would find
himself ever-increasingly squeezed between it and the showroom window
as he traversed
the line of the vehicle’s boot from right to
left if the vehicle had been parked at an oblique angle. That
is not consistent
with the experience he described. The
plaintiff’s description of his passage behind the vehicle
before he tripped over
the tow bar (which was probably protruding
from somewhere more or less at the centre of the back of the car) was
more consistent
with what might have been expected had the rear of
the vehicle been more or less parallel to the showroom window. That
would
have been the case had the vehicle been parked at a right angle
to the street.
[8]
As the plaintiff went by the back of the
parked BMW, he did not see that there was a tow bar protruding at its
rear. The tow
bar obviously encroached onto the narrow 45-50 cm
space through which the defendant proceeded, for otherwise it would
not
have caught on his leg as he walked past the car. The first
the plaintiff knew about the tow bar was when he looked back and
saw
it from the position into which he had fallen after tripping over
it. As mentioned, he had not been aware of it before
his leg
came into contact with it, unexpectedly interrupting his forward
motion and toppling him from his feet. He said that
had he been
astute to the tow bar before passing behind the vehicle he would have
taken pre-emptive action by moving himself sideways
to negotiate the
narrow opening between the showroom window and the back of the car.
[9]
There was also no positive evidence about
the colour of the tow bar. It was suggested to the plaintiff in
cross-examination
that tow bars are usually black or chrome in colour
and that in some cases the bar is black and the ball or towing hook
is chrome.
Everyday experience as a motorist and urban
pedestrian suggests that most tow bars are actually entirely black in
colour.
It was common ground that the place where the incident
occurred was on the eastern side of the building in which the
showroom was
housed and that the pavement area closest to the
showroom windows would have been in shadow in the afternoon. It
is evident
from the photographs that were put in evidence that there
is also an overhanging roof or ceiling protruding significantly over
the pavement outside the showroom windows, the effect of which would
have strengthened the darkening effect of the afternoon shadow
in the
pavement area closest to the windows. I consider that it may be
inferred as a matter of probability that the degree
to which any dark
attachment sticking out from the back of the BMW would have been
visible would be relatively poor, or at least
adversely affected, in
the prevailing circumstances.
[10]
The defendant’s counsel argued,
however, that the plaintiff’s eyes would have had time to
adjust to the poorer light
by the time he had walked up Christiaan
Barnard Street as far as the BMW. Acceptance of that submission
would imply that
the plaintiff had been walking all of that distance
with his eyes focussed on the darker part of the pavement, rather
than looking
ahead, as a pedestrian ordinarily would do, in the
general direction of his destination. Looking ahead, in what I
would regard
as the normal way, would have involved scanning areas of
both light and shade at the same time. The effect on his vision
in those circumstances would not have been the same as if he had
walked into a darkened room with the adjusting dilation of his
pupils
to cope with the darkness, as counsel’s postulate would imply.
Moreover, the tow bar, being a relatively small
protuberance, did not
constitute anything like the ‘open danger, manifest and
apparent’,
[2]
that the large inspection pit in an adequately lit workshop did in
the example in
Albort-Morgan v Whyte
Bank Farms (Pty) Ltd
1988 (3) SA 531
(E) referred to by counsel. The defendant’s counsel
relied on
Albort-Morgan
to support a contention that the tow bar was such a commonplace
phenomenon that any pedestrian walking behind the car should have
anticipated its presence and looked out for it; so obviously so
went the argument that the defendant could not be reasonably
be
expected to treat its susceptibility to trip up passers-by as a
danger worthy of guarding against. I am not persuaded
that the
analogy counsel sought to draw was at all apposite.
The
inspection pit in
Ablort-Morgan
loomed large. It was
5,25m long, 0,75m and 2m deep. It was situated 2,55m from the
entrance to the room, the dimensions
of which were 9,15m x 3,9m.
In other words, the pit took up more than 11 percent of the floor
space of the entire workshop.
Its presence could hardly be
missed. A tow bar, by comparison, is a proportionately
insignificant vehicular attachment, more
especially so on a large
vehicle like a BMW 540 sedan.
[11]
Indignant about what had happened, and
reportedly in some pain as a result of his fall, the plaintiff
immediately went into the
defendant’s showroom to complain
about what he considered to be the dangerous situation created by the
parked vehicle.
He was given an unsympathetic reception by the
sales staff on the floor and consequently asked to speak to the
manager. The
manager was absent, but the plaintiff was given
his email contact details.
[12]
When he got home later that afternoon, the
plaintiff addressed an email letter of complaint to the manager.
The email was
sent after office hours and seen by the general manager
of Reeds Cape Town, Mr Denicker, only the next morning. Mr
Denicker
responded promptly to the plaintiff’s email early on
30 May 2014 as follows:
Dear Mr Deacon
I apologise for the inconvenience & frustration
caused due to your accident.
At the moment as you can see, our building is a partial
building site, which has taken up not only nearly all the customer /
staff
parking outside the building, but a fair portion of our parking
inside the building as well.
As a business we still need to trade & be profitable
during this inconvenient construction process / period. We have
salaries
(jobs to protect), rent, etc. to pay.
Normally we leave a gap of a meter behind the cars
parked in front to allow customers access, but unfortunately in the
case of the
big BMW, one of our drivers mislaid the keys after
parking it, and we could not move the car from the night before.
This can be verified by the security company who were
asked to monitor the vehicle through the night. I had already
given
instruction for the car to be moved & not to be parked in
that manner.
We are very sorry to hear that you injured / hurt
yourself & we sympathise with you. As to your accident, we
are not at
fault, as you walked into the tow bar without seeing it
(an unfortunate accident).
However, I am not happy with my one staff member’s
reaction when you confronted him & we apologise profusely.
I
have already taken action in this regard.
Please understand our position in this instance & I
wish you a speedy recovery.
Yours sincerely
Kevin Denicker
REEDS Motor Group
General Manager
Reeds Cape Town
[13]
The plaintiff alleged that the defendant
had been causally negligent in a number of respects, but in view of
the conclusion to which
I have come it is necessary to mention only
one of them. The allegation I have in mind is that the
defendant had been negligent
by failing to ensure that the parked
vehicle did not constitute a source of danger to the public.
[14]
Whether the defendant was negligent in the
manner just described falls to be decided on the well-established
test that was usefully
summed up and elucidated by Holmes JA in
Kruger v Coetzee
1966 (2) SA 428
(A) in the following terms at p. 430E-G:
For the purposes of liability
culpa
arises if-
(a) a
diligens paterfamilias
[i.e. the notional
reasonable person] in the position of the defendant-
(i) would foresee the reasonable possibility of his
conduct injuring another in his person or property and causing him
patrimonial
loss; and
(ii) would take reasonable steps to guard against such
occurrence; and
(b) the defendant failed to take such steps.
This has been constantly stated by this Court for some
50 years. Requirement (a)(ii) is sometimes overlooked. Whether a
diligens paterfamilias
in the position of the person concerned
would take any guarding steps at all and, if so, what steps would be
reasonable, must always
depend upon the particular circumstances of
each case. No hard and fast basis can be laid down. Hence the
futility, in general,
of seeking guidance from the facts and results
of other cases.
[15]
In my judgment, a reasonable person in the
position of the defendant would appreciate that parking a vehicle
with a tow bar fixed
at its rear on a pavement, leaving only 45-50 cm
of pedestrian space between the rear of the vehicle and the adjoining
building,
and no pavement space whatsoever in front of the vehicle,
would create a source of potential danger to pedestrians using the
pavement.
He or she would foresee the reasonable possibility
that doing so could result in a passing pedestrian being injured as a
consequence of colliding with or tripping over the tow bar. In
a situation, such as that which presented in the current case,
where
the only passage left for pedestrians to go by on the pavement was at
the rear of the line-up of parked vehicles, the reasonable
person
would foresee that the possibility of injury to a passing pedestrian
would increase the closer the vehicle was parked to
the building.
The hazardous potentiality of the tow bar would be increased because
of the limitation in the space left available
for a pedestrian to
circumvent it. Even a pedestrian who had seen the tow bar would
be rendered vulnerable to injury by exposure
to the possibility of
mis-stepping or tripping while trying to negotiate the obstruction.
But in the given situation in the
current case, the danger that the
tow bar might not even be noticed by an approaching pedestrian was
heightened by the fact that
the affected part of the pedestrian
thoroughfare was in shadow.
[16]
The submission by the defendant’s
counsel that the fact no other person had, to the knowledge of the
defendant’s representatives,
been injured as a consequence of
the parking of cars on the pavement outside the defendant’s
showroom, notwithstanding that
the practice of parking cars there had
stretched over several years, demonstrated that it did not give rise
to a dangerous situation
worthy of requiring the defendant to take
avoiding measures is unpersuasive. I did not understand it to
be suggested that
the parking of vehicles on the pavement was, of
itself, dangerous. The case the defendant had to meet was that
the parking
of the BMW in the manner
that
vehicle was parked created a danger. It was not suggested, for
example, that the position in which the other five or six
vehicles in
the line-up had been parked created a danger. Certainly, it is
evident from the photographs, and the dimension
of the pavement as
measured, that it would be possible to park vehicles on that sidewalk
in ways that would not constitute a danger.
That, no doubt, was
the reason that the local authority had been prepared to give the
defendant a conditional dispensation from
compliance with s 8 of
the Parking By-Law.
[17]
The suggestion that pedestrians like the
plaintiff approaching the BMW could take an alternative route by
stepping off the pavement
and walking around the front of the car
afforded no excuse to anyone to park the vehicle in a position which
presented a potential
danger. There would be no danger to a
pedestrian who had seen the tow bar and was nimble enough to avoid
it. The most
pressing danger presented was that there was a
foreseeable chance that a pedestrian would not see the tow bar in the
prevailing
condition of reduced visibility caused by the area being
in shadow, and, to a lesser degree, that even a person who had seen
it
might nevertheless accidentally trip over it because the space
left open was too narrow for some people, especially those of larger
build like the plaintiff, to walk through normally.
[18]
That the situation created by the parking
of the vehicle in the manner it in which it had been posed a danger
was, in my judgment,
acknowledged in Mr Denicker’s email to the
plaintiff quoted above. The email acknowledged that the
plaintiff ordinarily
left a space of one metre behind the vehicles
parked on the pavement. The reason for that is self-evident.
It was to
allow for the reasonably safe use of the pavement by the
pedestrians for whose use the sidewalk facility is primarily
intended.
The parking of vehicles on an urban pavement is, by
contrast, an exceptional use of the facility, and a person parking a
car on
a pedestrian facility should therefore reasonably be expected
to be especially conscious of the impinging effect of his or her
action on the ordinary user of the sidewalk. The duty on such a
person to consider the impact on pedestrians is quite distinguishable
from that which would apply were the vehicle to be parked in a
parking bay or other space specially designated for parking.
A
pedestrian choosing to cross an urban road by walking through
designated parking bays, instead of using a designated pedestrian
crossing place, might be expected to take more care to look out for
vehicular attachments than he or she would be expected to do
when
using a designated pedestrian space.
[19]
It was all very well for Mr Denicker to
formally deny that Reeds had been at fault, but it is evident from
what he wrote in his
email to the plaintiff that he recognised that
the position in which the vehicle had been parked was not acceptable
and that it
had been incumbent on the defendant to rectify the
position. Indeed, the evident import of Mr Denicker’s
email, which
was produced during the plaintiff’ evidence, made
it obvious that any application for absolution from the instance at
the
end of the plaintiff’s case would be misconceived. It
was primarily that consideration that motivated the summary refusal
of the application that was nevertheless brought.
[20]
The nature of the problem that Mr Denicker
had in mind when he composed his email to the plaintiff was not
explored with him in
evidence by counsel on either side, but, in the
absence of any special explanation, his most probable concern would
have been that
its position presented an unacceptable impediment to
lawful users of the pavement because it left inadequate space for
pedestrians
to pass safely. The effect of the inadequacy was
obviously potentially dangerous if a tow bar protruded into the
already
too little space that had been left for pedestrian use.
[21]
The leaving of a space of at least one
metre for the safe passage of pedestrians was evidently also
considered by the relevant municipal
traffic authority to be a
necessary measure. That is the only rational reason I can
conceive of for its stipulation of the
condition it attached to the
dispensation that was given to the defendant from compliance with s 8
of the Parking By-Law.
And nothing in Mr Denicker’s
evidence suggested that he regarded the condition as inappropriate or
irrational.
[22]
Having determined that a reasonable person
in the position of the defendant’s employee would have foreseen
the reasonable
possibility that parking the BMW in that position
could result in a passing pedestrian injuring himself and incurring
consequent
expense and financial loss, the question arises ‘would
the reasonable person in the position of such employee have taken
reasonable steps to guard against such occurrence?’ In my
judgment, the question indubitably demands an affirmative
answer.
A reasonable person would have been careful in the circumstances to
comply the municipality’s condition for
allowing the special
dispensation to park vehicles in a space intended for pedestrian use;
he or she would appreciate that the
imposition of the condition was
related to the safety and convenience of the pedestrians. The
reasonable person would have
complied with the condition, just as Mr
Denicker appreciated should have been done. It is clear from
the instructions that
Mr Denicker said he had given that the car
could easily have been parked elsewhere or differently. No
financial cost to the
defendant would have been involved in taking
steps to avoid the danger.
[23]
It is not in dispute that the defendant
failed to take either of the measures that it should have done in the
circumstances.
In the result I am satisfied that the plaintiff
has succeeded in establishing causal negligence on the part of the
defendant so
that the defendant should be liable, at least to a
certain extent, for such damages that the plaintiff may prove that he
sustained
as a consequence of the injury that he suffered.
[24]
The defendant pleaded that in the event of
it being held to have been causally negligent, the extent of its
liability for the plaintiff’s
damages should be abated in terms
of the Apportionment of Damages Act 34 of 1956 by virtue of the
plaintiff’s contributory
negligence. In this regard it
was alleged that the plaintiff had been negligent in one or more of
the following respects
(I quote from paragraph 7.2 of the defendant’s
plea):
1.
He
had failed to keep a proper look out;
2.
He
had failed to avoid injury to himself under circumstances where he
could and should have done so;
3.
He
failed to pay due and /or proper regard to the area where the
vehicles were parked, and in particular the immediate area where
the
incident occurred;
4.
He
failed to make use of an alternative route under circumstances where
he could and should have done so;
5.
He
failed to take any reasonable steps to prevent the incident under
circumstances where he could and should have done so.
[25]
I do not consider that there is any merit
in the contention that the plaintiff should have made use of an
alternative route.
On the contrary, any alternative route would
have required him to leave the pavement and step off the kerb and use
a space that
was not designated for pedestrians. It is clear
that the line-up of cars had been parked in such a manner as to
suggest a
route to pedestrian users of the pavement. The route
was that circumscribed by the wall of the building on the one side
and
the rear of the parked vehicles on the other. The only
tricky bit was where the BMW was parked, and even there the gap of
45
to 50 cm that had been left would have been wide enough for many
persons of slighter build than the plaintiff to proceed without
difficulty and with less jeopardy. I do not suggest that it
would not have been open to the plaintiff to take an alternative
route by walking around the front of the BMW, stepping into the
adjacent loading bay in order to be able to do so. I do hold,
however, that it was not unreasonable in the circumstances for him
not to have done so.
[26]
I am, however, of the view that the
plaintiff should reasonably have taken into account that the route
behind the BMW that he chose
to proceed on was unusually narrow and
that it provided a relatively ill-lit passage on the pavement to
traverse. These features,
which made walking on that part of
the pavement different to the experience of being able to stride
confidently down an unobstructed
sidewalk, should have made him more
watchful of his step than might be expected in ordinary
circumstances. The evidence suggests
that had he been more
watchful, he probably would have seen the tow bar and been able to
take steps to avoid coming into collision
with it. In the
result I am satisfied that the defendant has shown that the plaintiff
was contributorily at fault.
[27]
In determining the consequent apportionment
of liability, I must consider the degree to which the conduct of each
of the protagonists
deviated from the standard of the reasonable
person in the circumstances; see
South
British Insurance Co. Ltd v Smit
1962
(3) SA 826
(A) at 836C-E. In my judgment the conduct of the
defendant in parking the BMW in a position that gave rise to a
foreseeable
danger of injury to passing pedestrians constituted a
materially greater deviation from the conduct of a
diligens
paterfamilias
than did the plaintiff’s
failure to keep an especially watchful lookout. In the
circumstances I consider that it would
be just and equitable were the
defendant to be held liable for only 65 percent of the quantum of
such damages as the plaintiff
might prove in the second stage trial
of the action.
[28]
It is not obvious that the sum of damages
that the plaintiff is likely to be awarded in the second stage
hearing will necessarily
exceed the jurisdiction of the regional
court, and the questions involved in the determination of liability
were not of sufficient
complexity or difficulty as to, by themselves,
justify the institution of proceedings in the High Court. It is
therefore
not clear at this stage whether the plaintiff should be
able to recover his costs on the High Court or the Regional
Magistrates’
Court scale. That will only become apparent
once his damages have been fixed by a subsequent judgment or
agreement.
In the circumstances, I consider that the
appropriate order in respect of costs would be to direct that they
stand over for later
determination by the court seized of deciding
the remaining issues in the action if the parties are not able to
reach a settlement.
[29]
The following order is made:
1.
It
is declared that the defendant is liable to pay to the plaintiff 65
percent of the quantum of damages that the plaintiff might
prove in
the second stage trial of the action.
2.
The
costs of the trial in respect of the separated issue of liability
shall stand over for later determination by the court seized
of
deciding the remaining issues in the action, or by agreement between
the parties.
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Plaintiff’s
counsel:
R. van Wyk
Plaintiff’s attorneys:
A. Batchelor & Associates
Cape Town
Defendant’s
counsel:
P.A. Botha SC
Defendant’s attorneys:
Adams Attorneys
Claremont, Cape Town
[1]
Promulgated in Province of Western Cape:
Provincial Gazette 6847, dated 18 February 2011.
[2]
A quotation from
Skinner v Johannesburg Turf Club
1907 TS 852
at 860, drawn on by Kannemeyer J in the full court’s
judgment in
Albort-Morgan
.