Judd v Nelson Mandela Bay Municipality (2361/08) [2010] ZAECPEHC 10 (23 March 2010)

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[2010] ZAECPEHC 10
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Judd v Nelson Mandela Bay Municipality (2361/08) [2010] ZAECPEHC 10 (23 March 2010)

FORM
A
FILING
SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT
PARTIES
:
Case
Number:
2361/2008
High
Court:
Port
Elizabeth
DATES
HEARD:
15
& 16 March 2010
DATE
DELIVERED:
23
March 2010
JUDGE(S):
D.
Chetty
LEGAL
REPRESENTATIVES –
Appearances:
for
the Plaintiff(s):
Adv
J J Nepgen
for
the Defendant(s):
Adv
M E Menti
Instructing
attorneys:
Applicant(s):
Mr
C de Villiers (De Villier & Partner)
Respondent(s):
Ms
K Nonkwelo (Ketse Nonwelo & Ass)
CASE
INFORMATION -
Nature
of proceedings
:
Action
for Damages
Topic:
Key Words:
Negligence
– Liability for – Liability of municipality for damages resulting
from omission to repair raised portion of sidewalk
caused by tree
roots – Municipality conceding that it had legal duty to maintain
sidewalk – No evidence to gainsay defendant’s
version that it was
unaware of defect – Operating system whereby defects could be
reported in use for period of 22 years and working
effectively –
Proposed alternatives not shown to be viable – Negligence not
established
NOT REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE, PORT ELIZABETH)
CASE NO: 2361/08
In the matter between:
ROSE LILLIAN JUDD Plaintiff
And
NELSON MANDELA BAY MUNICIPALITY
Defendant
Coram:
Chetty,
J
Dates Heard:
15
& 16 March 2010
Date Delivered:
23
March 2010
Summary:
Negligence
– Liability for – Liability of municipality for damages resulting
from omission to repair raised portion of sidewalk
caused by tree
roots – Municipality conceding that it had legal duty to maintain
sidewalk – No evidence to gainsay defendant’s
version that it was
unaware of defect – Operating system whereby defects could be
reported in use for period of 22 years and working
effectively –
Proposed alternatives not shown to be viable – Negligence not
established
________________________________________________________________
JUDGMENT
________________________________________________________________
CHETTY,
J
[1] The plaintiff is a sprightly 78
year old lady, a resident at The Sanctuary, an establishment for
those advanced in years, situate
at Bingley Street., Central, Port
Elizabeth. As a devout Christian she was accustomed to frequenting
her local church in Dickens
Street, a short distance away from The
Sanctuary. Getting there was normally achieved by walking, save for
the odd occasion when
she managed to secure a lift in a motor
vehicle. The pedestrian route, which the plaintiff routinely
followed, entailed exiting The
Sanctuary in Bingley Road proceeding
along the sidewalk towards its intersection with Westbourne Road,
crossing Bingley and accessing
the sidewalk along Westbourne via a
concrete ramp at the street entrance to the Old Austria restaurant
situate at the corner of Bingley
and Westbourne Roads. On Sunday
morning, 6 July 2008, the plaintiff followed her normal route to
church and suddenly fell forwards
onto the pavement in front of the
Old Austria restaurant in Westbourne Road. Passers by immediately
rushed to her assistance and
eventually the plaintiff was assisted
into a wheelchair and returned to The Sanctuary prior to being
hospitalised. Fortuitously,
one of the persons who witnessed the
plaintiff laying on the sidewalk was the ward councillor, Mr.
Jeremy
Davis
(
Davis
),
about, whom, more later.
[2] The plaintiff suffered a serious
injury and in due course instituted an action for damages against the
defendant. In her particulars
of claim she alleged that she
“tripped
and fell over a raised and cracked portion of the sidewalk”
and averred that the defendant, who was responsible for the
maintenance and upkeep of the sidewalk owed her a duty of care. She
alleged
further that her fall was occasioned by the negligence of the
defendant’s employees which she particularised as –
“
5.1 They failed
to warn pedestrians of the danger posed by the cracked and raised
sidewalk/ pavement;
5.2 They failed to
take any and/or adequate measures to prevent members of the public,
to wit, the Plaintiff, access to this dangerous
portion of the
sidewalk/pavement;
5.3 They failed to
maintain the sidewalk/pavement at a reasonable standard when
consideration is had to the purpose of which it was
used, namely, by
pedestrians whilst walking;
5.4 They failed to
take any and/or adequate measures to prevent the sidewalk/pavement
from cracking and lifting thereby posing a danger
to pedestrians
utilising it;
5.5 They failed to
take any and/or adequate measures to ensure that the
sidewalk/pavement was safe for use by members of the public.”
[3] In its plea, the defendant, whilst
admitting responsibility for the maintenance and upkeep of the
specific sidewalk and that it
owed the plaintiff and the wider
community a duty of care pleaded that such legal duty was premised on
its developed operating system
and facilities at its disposal.
[4] At the commencement of the trial
and at the request of the parties I ordered that the merits of the
dispute be determined first.
The issues themselves had considerably
narrowed and the only triable issues I was called upon to determine
related to the occurrence
of the incident itself and the question of
negligence. As to the former the evidence conclusively established
that the plaintiff
fell at the raised portion of the sidewalk.
Although the plaintiff was unable to state categorically that she
tripped on the raised
section of the sidewalk the inference is
inescapable that her fall was occasioned thereby.
Davis
,
who had emerged from a church across the road witnessed a group of
people congregating on the sidewalk and proceeded thence. He
saw the
plaintiff laying in the vicinity of the raised sidewalk slab and his
evidence justifies the inference that the plaintiff’s
fall was
occasioned thereby.
[5] We are concerned in this case with
delictual liability for an omission. The defendant’s admission that
it was under a legal
duty to take reasonable precautions in order to
avoid or minimise injury to pedestrians on the sidewalks carries with
it the necessary
corollary that if it is found to have negligently
failed to take such precautions its conduct would not only be
negligent but also
wrongful. The legal position is trite, succinctly
formulated by Scott JA in
Cape
Town Metropolitan Council v Graham
1
as follows –
“
[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 depends
on
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
materialises;
(c)
the
utility of the actor's conduct; and
(d)
the
burden of eliminating the risk of harm'.
(See
Ngubane
v South African Transport Services
1991
(1) SA 756 (A)
at
776H - J, where J C van der Walt in Joubert (ed)
The
Law of South Africa
vol
8 para 43 is quoted with approval;
Pretoria
City Council v De Jager
1997
(2) SA 46
(A)
at
55H - 56C.) 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] Counsel for the plaintiff, Mr.
Nepgen
,
has however submitted that the evidence adduced clearly established
such negligence. He argued that the undisputed evidence that
the
raised portion of the sidewalk was at least 50 mm in height, which,
by its very nature, created a risk of serious injury to members
of
the public ineluctably compelled the conclusion that the
precautionary measures extant defendant’s operating system, whereby
hazards of similar ilk be timeously identified and corrected, was so
unreasonable as to constitute negligence.
[7] The defendant’s much maligned
operating system, and which has attracted such strident criticism
warranting its complete overhaul,
amounts to the following. The
responsibility for the maintenance and upkeep of sidewalks falls
under the auspices of the defendant’s
infrastructure and
engineering unit headed by its director, Mr.
John
Sponneck
(
Sponneck
).
He testified that the current system has been in operation for the
past 22 years, has worked well and continues to do so. It is
dependent largely on a number of factors, inter alia, the goodwill of
the metropole’s inhabitants, the conscientiousness and zeal
of the
particular ward councillor or reports received from the
superintendents in the six zones which constitute the metropole
detailing
defects which have either been brought to their notice or
which they encountered in the execution of their duties. The
procedure
for dealing with sidewalk repairs is that a complaint may
be generated telephonically, either during office hours or after
hours
during designated hours on telephone numbers reflected in the
telephone directory. Once a complaint is logged onto a log of
complaints
sheet the official will investigate the complaint and take
whatever remedial action is called for. Whether telephonic or
otherwise,
the complaint is recorded onto a complaint form which is
forwarded to an operations officer for investigation and whatever
action
he/she deems appropriate and a copy of the complaint form is
also forwarded to the superintendent of the particular zone within
the
metropole where the defect manifested itself for investigation.
Once the superintendent receives the complaint form approving the
remedial measures, he/she issues a job card to a foreman to effect
the necessary repairs.
[8]
Sponneck’s
evidence that the defendant’s operating system was efficient and
operated smoothly was sought to be assailed on the basis of what
counsel contended was the less than dilatory approach adopted by its
officials once the complaint concerning the defect in the sidewalk
had been communicated to the defendant. He submitted that this
compelled the conclusion that the system was woefully deficient and,
a fortiori, so unreasonable, to justify the finding that it was
negligent. The submission is superficially attractive but proceeds
from a wrong assumption. The facts certainly do not support the
contention advanced.
[9] The argument proceeds from the
assumption that the defect in the sidewalk must have been reported to
the defendant but not recorded
on a complaint form. This is pure
speculation. It is common cause that
Davis
telephonically contacted Mr.
Tony
Arthur
(
Arthur
),
the assistant director of the defendant’s Roads and Storm Water
infrastructure and engineering directorate, shortly after the
incident involving the plaintiff. Arthur testified that from the
import of the communication he deduced that it related to a
reinstatement
of the sidewalk and conveyed the complaint to the
responsible official, Mr.
Hollen
Msila
(
Msila
).
He assumed that the latter, whom he considered to be an efficient and
responsible person, would attend to the matter expeditiously.
The
defect had however not been repaired and
on 17 July 2008
Davis
addressed a letter to the defendant’s municipal manager detailing
the events surrounding the plaintiff’s fall and its sequelae.
It is
evident from the terms of the letter that since his initial
telephonic report to
Arthur
the defect had not been repaired.
[10] It appears common cause that this
letter galvanised
Arthur
in seeking an explanation from
Msila
for the lack of progress in effecting the remedial work.
Msila’s
explanation that the problem was not a reinstatement but a complaint
relating to a defective sidewalk led to Arthur communicating
the
complaint to the responsible official, Mr
Jeffrey
Sawuli
(
Sawuli
)
that the repairs be effected expeditiously.
Arthur
readily conceded under cross-examination that there was an inordinate
delay in
Msila’s
reporting to him. Does this remissness on the part of
Msila
however justify the inference sought to be drawn that the defendant’s
operating system is woefully deficient? In my view clearly
not. An
isolated instance of dilatoriness on the part of
Msila
cannot be the yardstick by which to judge the defendant’s operating
system nor, as adumbrated hereinbefore, does it afford corroboration
for the speculative contention advanced that there may well have been
earlier complaints received by the defendant concerning the
state of
the sidewalk.
[11] As part of his arsenal of
reasonably viable alternatives to the defendant’s operating system
plaintiff’s counsel proposed
that the most efficient method to
identify defects in the sidewalks within the metropole was the
establishment of what may conveniently
be termed, a dedicated
sidewalk policing unit, each of whose members would be provided with
either a 25 mm piece of plastic or cardboard
and tasked with
traversing the entire network of the metropoles sidewalks in search
of elevated sections in excess of 25 mm, recording
their findings and
reporting same to their superiors. Mr.
Nepgen
submitted that this could be done at minimal cost to the defendant in
as much as unskilled or semi-skilled persons could be employed
and
remunerated accordingly. The other alternatives propounded were that
the defendant’s refuse collectors and street sweepers
could be
provided with pen and paper and instructed to note sidewalk defects
in excess of the permitted 25 mm elevation.
Sponneck’s
response to the latter two proposals was that given the aforesaid
municipal workers schedule it would be well nigh impossible to
expect
them to do so. As to the former and whilst conceding that a
dedicated sidewalk policing unit would provide the most effective
method, he remained steadfast that the defendant’s current
operating system was tried and tested and the most effective.
[12] In an ideal world all streets and
sidewalks would be in pristine condition but the reality is that in a
large metropole such
as that managed by the defendant no reasonable
municipality could be expected to keep its roads and sidewalks in a
perfect condition.
Sponneck
emphasized that the defendant’s invitation to the general public to
report defects in its roads and sidewalks network by utilising
both
the office and after hours telephone numbers is frequently made use
of and, to my mind, does not cast an onerous burden upon
the
metropole’s inhabitants.
[13] I am satisfied that it cannot be
said that the current operating system is unreasonable in the
circumstances. Whilst I have the
utmost sympathy for the unfortunate
consequences of the plaintiff’s fall, negligence on the part of the
defendant has clearly not
been established and the plaintiff must be
non suited. In the result the following orders will issue –
The plaintiff’s claim is
dismissed with costs.
The defendant is ordered to pay
the costs reserved on 23 February 2010.
_________________________
D.
CHETTY
JUDGE
OF THE HIGH COURT
On behalf of the
Plaintiff: Adv J.J Nepgen
Instructed by De
Villiers & Partners
62 Erasmus Drive
Summerstrand
Port Elizabeth
Ref: Colin De Villiers
Tel:
041-5835534/0823202489
On behalf of the
Defendant: Adv M.E Menti
Instructed by Ketse
Nonkwelo Inc
522 Govan Mbeki Avenue
Nedbank House
North End
Port Elizabeth
Ref: N. Nonkwelo
Tel: 041-4842709
1
2001 (1) SA 1197
at para [7]