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[2022] ZAECELLC 35
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Skenjana v Buffalo City Metropolitan Municipality (EL 434/2020) [2022] ZAECELLC 35 (29 November 2022)
HEADNOTE:
Delict – Duty of municipality – Maintenance of
pavement – Runner falling – Pavement far
from perfect
but usable with a reasonable amount of caution –
Municipality not liable.
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
Case
no. EL 434/2020
In
the matter between:
KHANYISA
SKENJANA Plaintiff
and
BUFFALO
CITY METROPOLITAN
MUNICIPALITY Defendant
JUDGMENT
LAING
J
[1]
This is a claim for damages as a result of the plaintiff’s
having fallen while
jogging on an uneven pavement along the main road
in Amalinda, East London.
Background
[2]
The accident happened on 26 February 2019. The plaintiff sustained
serious injuries
to her right knee and alleges that these were caused
by the negligence of the defendant’s employees inasmuch as
they,
inter alia
, failed to maintain the pavement properly.
The quantum of the claim is R3,139,327 and comprises past and future
medical expenses,
future loss of earnings, and general damages.
[3]
The defendant denies liability, pleading that it regularly checks and
repairs pavements
within its municipal boundaries, within the
constraints of the available budget, and takes all reasonable steps
to warn pedestrians
of damaged surfaces, drains and manholes. In the
alternative, the defendant pleads that the plaintiff was fully aware
of the damaged
pavement and the risks associated with using it, but
nevertheless elected to jog thereon; accordingly, she consented to
the risk
of injury. In the further alternative, the defendant pleads
that the plaintiff was also negligent and that the damages must be
determined in accordance with the provisions of the Apportionment of
Damages Act 34 of 1956.
[4]
The matter proceeded to trial for the leading of oral evidence. A
request was made
at the commencement of trial that the issues of
merits and quantum be separated; an order was made to that effect in
terms of rule
33(4).
The
plaintiff’s case
Ms
Khanyisa Skenjana
[5]
The plaintiff testified on her own behalf. She stated that she had
started jogging
approximately two weeks prior to the incident, she
had been new to the sport. On the day in question, the weather had
been clear
and dry.
[6]
The plaintiff had left her house at about 4.30 pm, wearing proper
running shoes; she
had proceeded along Main Road in the direction of
Frere Hospital, and then turned around at the traffic circle. She had
never taken
this route before. At the time, there had been high
volumes of traffic on the road and many pedestrians using the
pavement. On
the plaintiff’s return, she had been watching the
traffic when she had passed a pole on the pavement and suddenly felt
herself
falling. She had twisted her leg badly in the process,
screamed in pain, and called for help from a fellow jogger.
[7]
Ms Skenjana averred that the surface of the pavement had been uneven,
as depicted
in photographs that were submitted as evidence. That
portion of the pavement had subsequently been repaired.
[8]
She also indicated that she had spoken to a member of a local running
club, Ms Yandisa
Dintsi, who had cautioned her about the injuries
that could occur while jogging. At the time of the incident, the
plaintiff had
not been jogging fast.
Ms
Yandisa Dintsi
[9]
The next witness, Ms Dintsi, testified that she was part of a running
club. She had
used the same route as Ms Skenjana for jogging and
usually jogged three of four times per week.
[10]
Members of the club used to caution each other about holes in the
surface of the pavement; some
of the members were not that observant.
The portion of pavement depicted in the photographs had not been
repaired for quite a length
of time. It had, however, subsequently
been repaired.
[11]
That was the case for the plaintiff.
The
defendant’s case
[12]
The defendant closed its case without leading evidence.
Issues
to be decided
[13]
The parties previously agreed upon the following issues for
determination: (a) whether the plaintiff
had set out the facts upon
which to allege that the defendant should have foreseen that harm
would be caused to the plaintiff;
and (b) whether the plaintiff had
proved negligence on the part of the defendant.
[14]
The case is an action in delict. The essential requirements for
delictual liability are well-known:
harm sustained by the plaintiff;
conduct on the part of the defendant which is wrongful; a causal
connection between such conduct
and the plaintiff’s harm; and
fault or blameworthiness on the part of the defendant.
[1]
[15]
At the close of trial, the defendant argued that the plaintiff had
failed to prove causation.
This is a critical issue that needs to be
decided before the court can determine the issues previously agreed
upon by the parties.
The court must be persuaded that there was
indeed a causal connection between the defendant’s wrongful
conduct and the plaintiff’s
harm.
[16]
A brief overview of the applicable principles
follows.
Legal
framework
[17]
It is necessary, at the outset, to investigate the principles that
operate in relation to the
question of wrongful conduct within the
context of a municipality’s failure to repair or maintain a
street or pavement. After
that, the principles of causation will be
reiterated before dealing with the principles pertaining to fault or
blameworthiness.
[18]
The case law indicates that, previously, the law merely empowered a
municipality to repair and
maintain a street or pavement. There was
no duty to do so.
[2]
In
Moulang
v Port Elizabeth Municipality
,
[3]
the erstwhile Appellate Division referred to ‘the general
degree of immunity for municipalities in relation to accidents
caused
by potholes and the like in the surface of streets’.
[4]
[19]
The situation changed, however, after the decision in
Cape
Town Municipality v Bakkerud
,
[5]
where the Supreme Court of Appeal held as follows:
‘
[28] …There
can be no principle of law that all municipalities have at all times
a legal duty to repair or to warn
the public whenever and whatever
potholes may occur in whatever pavements 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 one can generalise 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 would 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 a care for its
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 upon 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 upon 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
will also be for a plaintiff to prove that the failure to repair or
to warn was blameworthy (attributable to culpa). It is so 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.’
[20]
The decision in
Bakkerud
marks a distinct move away from the
previous position, where municipalities enjoyed a ‘general
immunity’ from liability
for harm caused as a result of a
street or pavement in a poor condition. An onus, however, rests on
the plaintiff to present evidence
that a legal duty rested on the
municipality to repair such street or pavement or to warn the public
about any hazard, and to prove
that the failure to have done so gives
rise to fault.
[21]
The concept of wrongfulness regarding an omission was addressed in
Van
Eeden v Minister of Safety and Security
,
[6]
where the Supreme Court of Appeal held that an omission to act is
wrongful where the defendant is under a duty to act positively
to
prevent the harm suffered by the plaintiff. The test is that of
reasonableness. A defendant is under a duty to act positively
where
it is reasonable to expect of him or her to have taken positive
measures to prevent the harm. The court determines reasonableness
by
making a value judgment based on its perception of the legal
convictions of the community and on considerations of policy.
[7]
[22]
In
Du
Plessis v Nelson Mandela Metropolitan Municipality
,
[8]
the court dealt with a claim for damages arising from injuries
suffered by the plaintiff when she stepped into a pothole after
having alighted from her motor vehicle at night. The court addressed
the question of when an omission to act must be regarded as
wrongful
conduct and stated as follows:
‘
A local authority,
therefore, has a duty to act only where the legal convictions of the
community demand the recognition of such
a duty. 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
…
…
It follows that
the ultimate enquiry is whether the local authority can reasonably be
expected to have acted in the circumstances
of a particular case.’
[9]
[23]
Turning briefly to the concept of causation, the law distinguishes
between factual and legal
causation. In relation to the former, the
question to be asked is whether the defendant’s conduct
amounted to a
causa
sine qua non
.
The conduct, in other words, must have been a necessary condition for
the plaintiff’s harm to have occurred. In
International
Shipping Co (Pty) Ltd v Bentley
,
[10]
the erstwhile Appellate Division applied the so-called ‘but
for’ test. This involves a hypothetical enquiry as to what
would probably have happened but for the wrongful conduct of the
defendant.
[11]
Regarding legal
causation, the question to be asked is whether the factual link
between the wrongful conduct and the harm suffered
should be
recognised in law; the harm must not be too remote.
[12]
[24]
Finally, the concept of fault is relevant to this matter inasmuch as
the issues identified by
the parties for determination entail an
investigation into the existence or otherwise of negligence on the
part of the defendant.
[13]
The
classic test for negligence (
culpa
)
remains that enunciated in
Kruger
v Coetzee
,
[14]
where the erstwhile Appellate Division stated:
‘
For the purposes
of liability
culpa
arises if–
(a)
a
diligens
paterfamilias
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.’
[15]
[25]
Consequently, the question of whether the plaintiff in the present
matter has set out the facts
upon which to allege that the defendant
should have foreseen that harm would be caused to the plaintiff, and
the question of whether
the plaintiff has proved negligence on the
part of the defendant, must be determined in accordance with the test
laid down in the
above case.
[26]
All the essential requirements for delictual liability must be proved
before the plaintiff can
succeed in her claim. The principles must be
applied to the facts of the case at hand.
Application
of the law to the facts
[27]
The plaintiff alleges that the defendant and its employees had been
negligent. The grounds of
such negligence are listed in the
plaintiff’s particulars of claim as follows,
inter alia
:
the defendant and its employees had failed to maintain the pavement;
they had failed to ensure its safety; they had failed to
ensure that
it did not constitute a source of danger; and they had failed to
alert the public to the danger by not erecting warning
signs.
Furthermore, the plaintiff alleges that the defendant owed a duty to
the public and that its failures or omissions amounted
to a breach
thereof.
[28]
A key contention made by the defendant in argument was that the
plaintiff placed insufficient
evidence before the court to prove the
above allegations. She failed to discharge the onus.
[29]
In her testimony, the plaintiff stated that the pavement had been
uneven, as apparent from the
photographs submitted. Nevertheless, the
photographs relied upon by the plaintiff give rise to questions of
their own. The pavement
appears to be tarred for the most part but
only a strip, estimated to be approximately 50 centimetres in width
when measured from
the kerb, remains in reasonably good condition and
runs past the pole described by the plaintiff. Near the pole, the
tarred pavement
gives way, along the outer edge, to what looks like a
light gravel or stony surface. There is a small lip, estimated to be
a centimetre
or two in height, where the two surfaces meet. Just past
the pole, but at a distance estimated to be slightly more than one
metre
away from the kerb, the light gravel or stony surface drops
away at a gradient of approximately ten to 15 degrees, increasing in
steepness at approximately two metres from the kerb to form what
looks like a path that leads into the adjacent bush.
[30]
The above observations are based purely on the photographs. The
plaintiff never testified in
detail about the condition of the
pavement. It seems to have been far from perfect but not impossible
to have used while exercising
a reasonable amount of caution. There
was nothing to suggest that it was marked by large potholes or broken
paving or that the
uneven surface was difficult to discern. There was
also nothing to suggest that the pavement was located outside a busy
shopping
mall or abutted commercial premises where there were high
volumes of users. Whereas the plaintiff indicated that there had been
many other pedestrians using the pavement at the same time, what this
meant is not clear; there may have been bustling throngs
of people,
making it difficult to see where she had been going, or there may
simply have been a steady flow of people, separated
by comfortable
spaces between them. Moreover, the plaintiff never indicated whether
the condition of the pavement had previously
been brought to the
attention of the defendant and that nothing had been done about it.
[31]
Overall, the principles laid down in
Bakkerud
require the
plaintiff to have placed enough facts before the court to prove that
there had been a duty on the defendant to have
repaired or maintained
that section of pavement or to have warned the public about any
hazard. It is simply unclear from the evidence
that such a duty had
existed. Applying the test described in
Van Eeden
and
Du
Plessis
, the court is not convinced, based on the evidence
presented, that the legal convictions of the community would have
deemed it
reasonable to have expected the defendant to have taken
positive steps in the circumstances. The photographs indicate, as the
defendant
has argued, that the strip of pavement between the kerb and
the pole was passable. It was a relatively narrow strip, but it was
a
tarred, flat surface. The plaintiff did not advance any evidence to
the contrary to discharge the onus of proof placed upon her.
[32]
The failure on the part of the defendant to have proved wrongful
conduct should be the end of
the matter. It is necessary, however, to
deal briefly with the issue of causation. The plaintiff alleges that
she suffered serious
injury to her right knee, necessitating
substantial medical treatment. She avers that future medical
treatment will entail,
inter alia
: ligament reconstruction,
ongoing treatment for chronic instability associated with
osteoarthritis, a debridement procedure, knee
replacement, and a
tendon transfer. The plaintiff testified, in relation to the incident
itself, that she had jogged between the
kerb and the pole; she had
then felt her leg ‘falling and turning’. She never
indicated, however, precisely how or
why she had fallen. There was no
mention of her having tripped on the strip of tar itself or having
tripped on the small lip where
the tarred surface met the light
gravel or stony surface or having tripped where the surface dropped
away at the top of the path
into the adjacent bush. There was also no
medical evidence about the probable cause of the plaintiff’s
injuries, whether
these had been purely as a result of the way she
had twisted her leg or whether they had been complicated by
underlying weaknesses
in her ligaments and tendons. The court is left
to speculate.
[33]
Consequently, it is difficult to find that the alleged omission on
the part of the defendant
in relation to the condition of the
pavement amounted to a
causa sine qua non
. The ‘but for’
test applied in
International Shipping
does not take the
matter any further; it cannot be said that the plaintiff would
probably not have fallen and injured herself but
for the defendant’s
failure to have repaired the section of pavement in question or to
have warned the public about any hazard
that existed. From the
plaintiff’s testimony, she was an inexperienced jogger. She had
also been watching out for passing
motor vehicles at the time. The
possibility that this combination of facts may have caused her to
lose focus on her jogging and
to stumble and fall, as happens from
time to time, cannot be entirely excluded. In the absence of
sufficient evidence, the court
is not persuaded that the plaintiff
has established factual causation to succeed in her claim.
[34]
By reason of the court’s findings, above, it is unnecessary to
embark upon an investigation
into the fault or blameworthiness of the
defendant (and, by implication, the issues identified by the
parties). The existence or
otherwise of negligence no longer falls to
be determined where the plaintiff has failed to present facts upon
which findings of
wrongful conduct and causation can be made against
the defendant.
Relief
and order to be granted
[35]
The court has considered the pleadings and the evidence placed before
it. The facts presented
by the plaintiff are insufficient to persuade
the court, in these circumstances, that the defendant had a duty to
repair the portion
of pavement in question or to warn the public
about any hazard in relation thereto, and that the failure to have
done so gave rise
to wrongful conduct. Moreover, the facts are
insufficient to persuade the court that the alleged omission on the
part of the defendant
gave rise to factual causation regarding the
injuries suffered.
[36]
Overall, the court is not satisfied that the plaintiff has discharged
the onus of proof placed
upon her. In other circumstances, where an
adequate set of facts had been presented, the court may well have
decided differently.
Unfortunately for the plaintiff, this is not
such a case; the relief sought cannot be granted. In relation to
costs, there is no
reason why these should not follow the result.
[37]
Accordingly, the following order is made:
(a)
the
plaintiff’s claim is dismissed; and
(b)
the
plaintiff is directed to pay the defendant’s costs.
JGA
LAING
JUDGE
OF THE HIGH COURT
Appearing
on behalf of the Plaintiff: Adv
Wood,
instructed
by Niehaus
McMahon Attorneys, East
London.
Appearing on behalf of
the Defendant: Adv
Quin SC, Adv Poswa, I
nstructed
by Makhanya
Attorneys,
East London.
Date
Heard: 06 September 2022
Date
Delivered: 29 November 2022
[1]
Evans v Shield
Insurance Co. Ltd
[1980]
2 All SA 40
(A); see, too,
HL
& H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd
[2000] 4 All SA 545 (SCA).
[2]
Haliwell v Johannesburg Municipal
Council
1912 AD 659
and
the cases that followed. Collectively, they were referred to as ‘the
municipality cases’.
[3]
1958 (2) SA 518 (A).
[4]
At 522E-F.
[5]
2000 (3) SA 1049
(SCA).
[6]
2003 (1) SA 389
(SCA).
[7]
At paragraph [9].
See, too,
Bakkerud
,
at paragraph [27].
[8]
[
2009]
JOL 24114 (ECG).
[9]
The court referred
to
Cutting
v Nelson Mandela Metropolitan Municipality
[2006] JOL 16574 (A).
[10]
1990 (1) SA 680
(A).
[11]
At 700E-F.
[12]
See Van der Walt
and Midgley,
Principles
of Delict
(LexisNexis, 4ed, 2016), at paragraph 181.
[13]
Op cit
,
paragraph 135. There are two manifestations of fault: intent and
negligence; the existence of either forms the basis upon which
to
impute wrongful conduct to the defendant. Negligence is relevant to
the present matter.
[14]
1966 (2) SA 428
(A).
[15]
At 430E-F.