Brief Summary

Delict — Trip and fall injury — Visitor injured due to poorly maintained pathway at prison — Plaintiff tripped and fell on an uneven surface while exiting Pollsmoor Prison — Defendants, responsible for maintenance of the pathway, failed to ensure it was safe for public use — Court found defendants liable for damages due to negligence in maintaining the pathway.

Comprehensive Summary

Summary of Judgment

1. Introduction

The matter concerned a delictual damages action arising from a trip-and-fall incident at Pollsmoor Prison in Cape Town. The plaintiff, Ms Nazley Lakay, alleged that she sustained bodily injuries when she tripped on an uneven, deteriorated prison pathway used by visitors. The defendants were the Minister of Justice and Correctional Services (first defendant) and the Minister of Public Works (second defendant), both cited on the basis of their alleged responsibilities relating to the management and maintenance of the premises and the relevant pathway.

The action was instituted during December 2017. The defendants delivered a notice of intention to defend and, in their plea, initially denied that the incident occurred, raising what the judgment characterised as a bare denial. On 13 December 2019, the parties obtained an order by agreement separating the merits from quantum, with the trial proceeding only on liability.

The merits trial commenced on 5 September 2022. During the trial, the plaintiff successfully applied (from the bar) to amend her particulars of claim to correct that she had been entering, not exiting, the visitors’ section at the relevant time, while still walking along the same pathway leading between the visitors’ area and the parking lot. The defendants indicated that the amendment caused no prejudice.

A further procedural development occurred when, after initially appearing to represent both defendants, defence counsel informed the court on 9 September 2022 that she had instructions only for the first defendant and that the second defendant would abide the decision of the court. The judgment records that no formal notice to abide had been filed by the second defendant at that stage.

The subject matter of the dispute was whether the defendants were wrongfully and negligently liable for the plaintiff’s damages due to an alleged failure to maintain the pathway in a safe condition, to repair it timeously, and/or to warn visitors of hazards.

2. Material Facts

It was common cause that on 23 April 2017 the plaintiff fell on a pathway in the vicinity of the visitors’ section and communications centre at Pollsmoor Prison. The plaintiff alleged that the fall occurred while she was walking along the designated pathway used by visitors moving between the prison’s access points and the visitors’ parking lot, and that she sustained injuries as a result.

It was also not disputed that, at the relevant time, the first defendant, through its employees, was responsible for the maintenance, management, upkeep, and day-to-day running of Pollsmoor Prison, including the pathway in question. The defendants further did not dispute that the second defendant was the owner of the land on which the pathway was situated and was said to be equally responsible for maintenance and upkeep in relation to Pollsmoor and the pathway.

The condition of the pathway at the time of the incident was established through photographs accepted as accurately depicting it. The pathway was described as narrow, partially obstructed by a large aloe plant, and comprised of deteriorated, broken concrete, with an uneven surface and loose stones. The court observed from the photographic record that the pathway was uneven and littered with broken-down concrete pieces and stones.

It was not disputed that the pathway was effectively the only available pedestrian route for visitors to traverse between the prison’s visitor-related areas and the visitors’ parking lot, with the alternative being walking in the roadway.

A further undisputed fact was that after the incident, the pathway was repaved/resurfaced, and no longer resembled its earlier deteriorated state.

The defendants disputed the plaintiff’s version in material respects during cross-examination, including the suggestion that she had not fallen at Pollsmoor but elsewhere (with reference to roadworks on Steenberg Road and medical records said to record a fall “into a ditch”), and even that she had staged the incident. The plaintiff denied these allegations. The court noted that, when the defence case was presented, no factual foundation or evidence was produced to support the insinuations that the incident was staged or occurred elsewhere.

The defendants’ witnesses, both Pollsmoor employees familiar with the pathway, accepted that the photographs accurately depicted its condition. Their position was that the pathway was not dangerous, that it had existed in that condition for years, and that they were not aware of other accidents occurring there. Evidence was also led that the pathway was later paved as part of planned maintenance using leftover paving materials, though the reason for the timing of the paving was not established by the defendants’ evidence.

3. Legal Issues

The central issues for determination on the separated merits were whether the defendants were liable in delict for the plaintiff’s injuries, specifically whether the defendants’ omissions in relation to the pathway were wrongful and negligent, and whether any proven negligence should be reduced by contributory negligence or assumption of risk on the plaintiff’s part.

The dispute required the court to make determinations involving application of law to fact and a value judgment. The wrongfulness enquiry required a normative assessment grounded in policy and constitutional values, including whether it was reasonable to impose a legal duty on the defendants to take steps to prevent harm to visitors. The negligence enquiry required application of the objective reasonable person test to the established facts concerning the condition of the pathway, foreseeability of harm, and reasonable preventative measures.

A further issue was whether the defendants had discharged any evidentiary burden in relation to their pleaded defences that the plaintiff failed to keep a proper lookout or voluntarily assumed the risk of using the pathway, thus justifying apportionment.

4. Court’s Reasoning

The court approached liability by first considering wrongfulness in the context of omissions. It treated the question as whether it was reasonable, based on policy and the legal convictions of the community (viewed through constitutional values), to expect the defendants to take reasonable steps to prevent the harm. The court accepted that while control over the hazardous situation is a relevant factor, control alone does not automatically establish a legal duty; the duty depends on the circumstances.

In assessing the circumstances, the court emphasised that Pollsmoor is a public-facing correctional facility regularly frequented by members of the public, including visitors to inmates and religious groups. It considered that the defendants, as organs of state, should be concerned with the safety of those members of the public who attend the facility and are practically compelled to traverse its access routes. The court further considered that visitors had no meaningful choice but to use the pathway as the available pedestrian route to and from the visitors’ parking area.

The court also treated section 9 of the Occupational Health and Safety Act 85 of 1993 as relevant to the framework of duties owed to persons other than employees. While the plaintiff’s counsel clarified that the claim was not pleaded as a statutory cause of action under the Act, the court accepted that the statutory framework was nonetheless indicative of expected safety measures and informed the negligence enquiry. On the evidence, the court considered that the pathway could be paved with relative ease, noting that it was eventually repaved and that the defendants did not provide an evidentiary explanation as to why this had not been done earlier. Weighing the relationship between the parties, the public nature of the premises, and the ease of addressing the hazard, the court held that the defendants were under a legal duty to prevent injuries to visitors by ensuring safe access.

Having found wrongfulness, the court turned to negligence, applying the test in Kruger v Coetzee 1966 (2) SA 428 (A). It considered whether a reasonable person in the defendants’ position would have foreseen the reasonable possibility of harm and would have taken steps to prevent it. The court found that foreseeability was established because the pathway was heavily used daily by visitors and staff, was narrow and obstructed, and had a disintegrated surface with loose stones and uneven broken concrete. On these facts, the court regarded it as reasonably foreseeable that someone could trip and fall, and that it was only a matter of time before the risk materialised.

On preventability, the court considered the nature and extent of the risk, the seriousness of harm if the risk materialised, and the cost and difficulty of precautionary measures. It treated the risk as high and the potential harm as serious. It also considered that reasonable preventative measures were readily available, including repairing/paving the pathway and placing warning signage. The defendants’ submission that limited resources affected reasonableness was rejected on the basis that no evidence had been adduced to establish financial or human resource constraints, while the evidence suggested the pathway was repaved without significant difficulty using leftover materials.

The court rejected the defendants’ reliance on the alleged absence of prior incidents as negating foreseeability, holding instead that the state and disrepair of the pathway, combined with daily foot traffic, supported foreseeability of harm. It further treated the defendants’ employee witnesses as not being experts on the question of whether the pathway was dangerous and noted the principle that expert evidence must be objective.

In relation to contributory negligence and assumption of risk, the court held that the defendants failed to substantiate these defences with evidence. It found that the factual basis for the allegation that the plaintiff failed to keep a proper lookout or voluntarily assumed the risk was not properly put to the plaintiff in a manner enabling a meaningful response, and, in any event, that the plaintiff had no realistic alternative route given that only one pathway was available. The court therefore declined to apportion fault.

5. Outcome and Relief

The court held the defendants fully liable (100%) for the plaintiff’s proven damages, with quantum to be determined later due to the prior separation of issues. The court ordered that the costs of the trial be borne by the defendants jointly and severally, with the one paying to absolve the other.

Cases Cited

President of the Republic of South Africa and Others v South African Rugby Football Union and Others 2000 (1) SA 1 (CC)

Jacobs and Another v Transnet Ltd t/a Metrorail and Another 2015 (1) SA 139 (SCA)

City of Cape Town v Carelse and Others 2021 (1) SA 355 (SCA)

Van Eeden v Minister of Safety and Security (Women's Legal Centre Trust, as amicus curiae) 2003 (1) SA 389 (SCA)

Tsogo Sun Holdings (Pty) Ltd v Qing-He Shan and Another 2006 (6) SA 637 (SCA)

Administrateur, Transvaal v Van der Merwe [1994] ZASCA 83; 1994 (4) SA 347 (A)

Kruger v Coetzee 1966 (2) SA 428 (A)

Gouda Boedery BK v Transnet 2005 (5) SA 490 (SCA)

Minister of Safety and Security v Mohofe 2007 (4) SA 215 (SCA)

Herschel v Mrupe 1954 (3) SA 464 (A)

Legislation Cited

Occupational Health and Safety Act 85 of 1993

Architectural Profession Act 44 of 2000

Construction and Project Management Professions Act 48 of 2000

Rules of Court Cited

No specific rule of court was cited in the judgment; however, the proceedings reflected an agreed order separating merits and quantum.

Held

The court held that the defendants, as organs of state responsible for the premises and the relevant visitor pathway at Pollsmoor Prison, bore a legal duty to take reasonable steps to ensure the pathway did not pose a hazard to members of the public required to use it. On the established facts, the condition of the pathway (uneven, broken concrete with loose stones and partial obstruction) created a foreseeable risk of harm, and reasonable measures such as repairs or warnings were available.

The court held that the defendants breached that duty by failing to maintain the pathway in a safe condition, failing to repair it timeously, and failing to warn visitors adequately of the hazard. It further held that the defendants did not establish contributory negligence or voluntary assumption of risk on the plaintiff’s part. The defendants were accordingly held 100% liable for the plaintiff’s proven damages, and ordered to pay costs jointly and severally.

LEGAL PRINCIPLES

Wrongfulness in omission-based delict claims depends on whether, in light of policy considerations, the legal convictions of the community, and constitutional values, it was reasonable to impose a legal duty on the defendant to act to prevent harm. Control over a potentially hazardous situation is a relevant consideration, but it is not on its own decisive; the duty arises from the overall context and relationship between the parties.

An occupier (or party responsible for premises) may owe a duty to prevent injury to persons who enter or use the premises, including where the premises contain potentially dangerous conditions. Where members of the public are effectively required to use a particular access route to exercise legitimate purposes, the responsible state actors may be expected to take reasonable steps to ensure safety.

Negligence is assessed objectively in accordance with Kruger v Coetzee 1966 (2) SA 428 (A): the question is whether a reasonable person in the defendant’s position would foresee the reasonable possibility of harm and would take reasonable steps to prevent it, and whether the defendant failed to take those steps. In evaluating preventability, relevant considerations include the nature and extent of the risk, the seriousness of potential harm, and the cost and difficulty of precautions.

A plea of contributory negligence or assumption of risk requires an evidential foundation. It is insufficient to rely on mere assertion that a plaintiff was familiar with a hazardous condition, particularly where the plaintiff had no meaningful alternative route, and where the basis of the allegation is not properly substantiated by evidence.

Lakay v Minister of Justice and Correctional Services and Another (22403/2017) [2022] ZAWCHC 221 (2 November 2022)