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2009
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[2009] ZAGPPHC 87
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Vosloo v Ekurhuleni Metropolitan Municipality and Another; Kenny v Ekurhuleni Metropolitan Municipality and Others (32201/05, 32786/05) [2009] ZAGPPHC 87 (17 June 2009)
I
N THE HIGH
COURT OF SOUTH AFRICA
(NORTH GAUTENG, PRETORIA)
Case No:
32201/05
Date heard:
04/06/2009
Date of judgment:
17
June 2009
In the
consolidated
matter between:
M.A. Vosloo
Plaintiff
and
Ekurhuleni Metropolitan Municipality Defendant
Estie Civils (Pty) Ltd Third Party
Case No: 32786/05
L. Kenny Plaintiff
and
Ekurhuleni Metropolitan Municipality Defendant
A. Botha N.O. 1
st
Third Party
Estie Civils (Pty) Ltd 2
nd
Third Party
M.A. Vosloo 3
rd
Third Party
_____________________________________________________________
JUDGMENT
DU PLESSIS J:
On the evening of Sunday 20 February 2005
just
before 20h00 Mr MA Vosloo was on his way home with his motorcycle. A
friend, Mr Kenney, was riding pillion. They were travelling
north in
Albatros Road in Kempton Park when, trying to avoid an obstruction in
the road, Mr Vosloo hit a mound of earth that was
heaped next to a
hole in the road. Both men were thrown from the motorcycle and both
were injured. Mr Kenney died as a result
of his injuries.
It is common cause that the accident occurred in
the municipal area of the defendant, the Ukurhuleni Metropolitan
Municipality.
Two actions for damages arising from the accident were
instituted against the defendant. In the first action Mr Vosloo, the
plaintiff
in case number 32201/05, contends that the defendant’s
unlawful and negligent failure properly to warn road users of the
hole in the road, caused the accident. He claims from the defendant
damages arising from his injuries and also damages resulting
from the
damage to his motorcycle. The defendant denies that it was negligent
and pleads that the accident was due to the plaintiff’s
own
negligence. In Mr Vosloo’s action the defendant has also
joined Estie Civils (Pty) Ltd, the contractor who dug the hole,
as a
third party. As an alternative, the defendant contends that the
accident was due to Estie Civils’ negligence. Estie
Civils did
not defend the third party notice.
In the second action Ms Lianne Kenney, the
daughter of the late Mr Kenney, claims damages from the defendant for
her loss of the
support of her late father. In Ms Kenney’s
action Vosloo, the late Mr Kenney’s executrix and Estie Civils
were all
joined as third parties on the footing that the alleged
negligence of Vosloo and Estie Civils were contributory causes to the
accident
and that Kenney’s own negligence contributed to his
death.
The parties, excluding Estie Civils agreed to
seek an order consolidating the two actions and an order separating
the quantum of
damages in each action from the other issues. A draft
order to this effect prepared by the parties was made an order of
court.
The consolidated actions are now before this court. I shall
refer to Mr Vosloo as the plaintiff, to the defendant as such and
to
the other parties by name.
It is common cause that Albatros is a busy road.
Where the accident took place it is a dual road, divided by a traffic
island
in the middle. There are two lanes for traffic from south to
north. As only those lanes are relevant, I shall refer to them
simply
as the right hand lane and the left hand lane. By agreement
photographs of the scene of the accident taken the day after the
accident, Monday 21 February 2005, were placed before the court as
Exhibit B1, B2, B4 and B5. While there is a dispute as to whether
the road signs depicted on the photos were there at the time of the
accident, the photos show the road and the hole in it as it
was when
the accident took place.
It is not in issue that the defendant
commissioned Estie Civils to dig the hole in order for the defendant
to install certain valves
in an underlying water pipe. The hole in
the road was dug in the course of the week before the accident. The
photos show that
the hole was dug in the right hand lane but more
towards the island in the middle. Soil excavated from the hole was
heaped to
the north and west of the hole. The excavation site
comprising the hole and the heaped soil (“the site”)
blocked practically
the entire right hand lane. The hole was about
1,5 to 2 meters (5 to 6 feet) deep.
The plaintiff testified that he and Mr Kenney
left Bonaero Park, where they lived, at about 08h30 that morning on
what is colloquially
called a breakfast run. They were on their way
to Delmas but it was raining and they stopped at the Babsfontein
hotel where a
comedian was entertaining customers. At about 15h00
they proceeded to Delmas, but due to the rain returned to Babsfontein
from
where they left in the early evening. He did not drink any
intoxicating liquor the plaintiff said. He confirmed that a bar
frequented
by motor cyclists, called the Mad Hatter, is close to the
scene of the accident. He did not go there on the day, however.
When
the plaintiff gave evidence, some time was spent to find out
which route he had taken from his home in the morning and which he
took coming back. The purpose thereof was to show that he had
probably gone past the Mad Hatter bar and had taken alcohol there.
There is, however, no evidence that he was under the influence of
alcohol, and I find it unnecessary to deal with the evidence
regarding the routes he took. That includes similar evidence by
other witnesses.
On their way back to Bonaero Park they turned
into Albatros Road. It was still “pouring rain” at the
time and he travelled
in the right hand lane at no more than 65kph.
The street lights are on the island and the plaintiff travelled in
the right hand
lane to make the best of the light there.
Directly before the collision, the plaintiff saw
a pole in the road about two meters in front of him. The pole had no
sign on
it. It was too late to brake and in order to avoid the pole,
the plaintiff swerved to his right. As he did so he saw the hole
in
the road in front of him. The hole was not even a meter beyond the
pole. The plaintiff said that he then swerved left in an
effort to
avoid the hole and the motorcycle’s front wheel stuck in the
soil heaped around the hole. It cart wheeled and
both the plaintiff
and the late Mr Kenney were thrown from the motor cycle. The
plaintiff landed about five meters beyond the
hole and Mr Kenney
landed still further.
Mr Vosloo said that there were no road signs
whatsoever warning oncoming traffic of the hole in the road. He
could not remember
speaking to Inspector Lesufi, a metro policeman
who attended the scene, and telling him that he “did not notice
the road
sign of the road work”. (The quotation is from
Lesufi’s accident report, Exh. A68).
Mrs Colleen Pretorius testified for the plaintiff
that at the time of the accident she was employed as a para-medical
officer by
Trauma Med, a private undertaking. On the night in
question she was on duty, driving as a front seat passenger in an
emergency
vehicle. She and two of her colleagues were driving north
in Albatros Road. The witness confirmed the plaintiff’s
evidence
that it was raining hard. They were in the right hand lane.
Mrs Pretorius said that they saw activity and an obstruction in the
left hand lane, and moved in that direction in order to illuminate
that side. She later explained that what they saw were the
two men
lying in the road but moving. They also saw the motorcycle. In
short, they saw the scene of an accident. As far as she
could
remember there were no other people on the scene yet but it is
possible that someone had waved them down. There definitely
was no
policeman.
Mrs Pretorius was not very precise as to where
the two men and the motorcycle were on the road. She said that it
was on the left
hand lane, but she also said it was nearly in the
middle of the two lanes.
Mrs Pretorius and her colleagues stopped and
rendered assistance. She attended to the plaintiff and said that she
did not smell
any alcohol on his breath. Other emergency services
arrived and she left the scene in one of the other ambulances taking
the deceased
to the hospital. There she and her two colleagues
rendered further assistance. After leaving the hospital, they again
drove past
the accident scene. It was then about 21h30 or 22h00. An
investigator was on the scene taking measurements. They also saw a
man erecting sign boards there.
According to Mrs Pretorius she only became aware
of the hole in the road when they returned to the scene. When they
came there
for the first time, there were no signboards warning road
users of the hole in the road. In fact, she testified, had they not
seen the accident scene, they would have driven into the hole. When
they went back to the scene, however, they saw several warning
signs
as they approached the scene.
Mr Ralph Flindt, the driver of the emergency
vehicle in which Mrs Pretorius also was, gave evidence on behalf of
Miss Kenney, the
plaintiff in the second consolidated action. He
confirmed that at about 20h00 they were driving north in Albatros
Road at about
80kph. It was raining, a heavy drizzle. He said that,
when he was about ten meters away from it, he saw a “mine dump”
in front of him in the road. He slowed down and swerved to the left.
He then saw the accident scene. There were some bystanders
there
but definitely no metro policeman or emergency service personnel. He
stopped and they rendered assistance. He attended
to the deceased
and could not smell alcohol on his breath.
Mr Flindt said that there were no road signs to
warn oncoming traffic of the hole. He confirmed the evidence of Mrs
Pretorius
that, after they had been to the hospital, they drove past
the scene again. He saw a man there with a vehicle putting up signs.
In cross examination he said the man, wearing a blue overall, had a
road sign in his hand. Although he again said that the man
was
putting up signs, he also said when questioned further, that he could
not say exactly what the man was doing.
For the defendant Mr FW
Bryce testified that in 2005 he worked for the defendant as a
prosecutor in the municipal court. He had
previously been a
policeman and was trained in the investigation of accident scenes.
Due to manpower shortage in the defendant’s
accident bureau,
charged with investigating serious accidents, he helped out as an
investigator over weekends. He was on duty
on the Sunday of the
accident.
Mr Bryce referred the court to a number of entries
in the occurrence book of the metro police. According thereto the
defendant’s
engineering department made regular reports,
starting on the Friday, that everything at the excavation site was in
order. Bryce
said that earlier on the day of the accident he was
returning from another accident when he heard a civilian person who
identified
himself as being from Estie Civils talking on the official
radio of the metro police. The person reported that the signage and
markings at the site were all in place. The person reported that he
had checked the signage as there had been an accident at the
site a
day or so earlier. Bryce drove past the site and he found it
properly marked. There were more signs, but he could remember
seeing
drums with red and white tape on them and orange cones on the tarred
surface demarcating the site.
Bryce said that he was called to the scene of the
accident at about 20h26. He put on a reflective overall and drove to
the scene
where he arrived some 10 to 15 minutes later. The two
injured men had already been removed but he found Inspector Lesufi of
the
metro police, Mr Jaco Els of Estie Civils and family of the
injured persons on the scene. Els told Bryce that somebody had
raised
concerns about the marking of the site. Bryce then walked to
a bridge about 250 plus meters to the south of the hole. Moving back
towards the site, he took photos of every road sign and other
equipment marking the site. He also made notes of what he saw.
Thereafter he took a measuring wheel and measured the distance from
each sign to the site.
On the Monday after the accident Bryce briefed Superintendent Van
Greunen, the head of the accident bureau about the accident and
his
investigation thereof. He gave his notes and photos to Van Greunen.
Based on this briefing, Van Greunen drew a written report
(Exh. A1 to
3). Bryce confirmed the content of the report. According to the
report the following road signs were in place on
the night of the
accident (distances are to the site when approaching from the south):
At 212m a “road works ahead” sign;
at 191m a 20kph speed limit sign;
at 181m a sign that the road narrows from the right;
at 160m and again at 143m keep left signs;
at 122m another 20kph speed limit sign;
at 105m a further keep left sign;
at 91,7m another sign indicating that the road narrows from the
right;
at 77,8m a “road closed” sign;
at 49,1m a sign to keep left and one that the road narrows from the
right;
at 44,1m “hazard and chevron boards”;
at 27,4m a keep left sign.
In evidence Bryce said that all the signs
mentioned in the report were actually on the scene when he arrived
there. The first three
were on the island but the other signs were
all in the road. Not mentioned in the report, Bryce said, there also
were orange cones
on the road to the left of the site and drums next
to the site. Bryce said that he could not remember anybody putting
up sings
that night but added that Estie Civils might have put up
additional signs.
According to Bryce the only reason for the
accident can be that the plaintiff ignored the signs. The signs were
placed such that,
in order to ride into the soil heap, the plaintiff
had to weave through the signs and other markings. Later he added
that for
Flindt to have driven up to ten meters from the soil heap,
he must have knocked over several road signs.
Of all the photos that Bryce said he took on the
scene, only indistinct copies of seven were put before the court in
the form of
an album (Exh. A4 to 10). Only the road sign closest to
the site, a keep left sign, is shown on two of these photos (Photos
01
and 02 in exh. B5). The photos do not show or purport to show any
other road sign. The captions of both these photos convey that
the
photos show “where the road sign was”. Bryce said that
one of the spools of photos taken were lost while in Van
Greunen’s
possession. Van Greunen has since passed away. With reference to
the photos taken on the Monday, Bryce said that
the signs shown on
exh. B5 were on the scene when he was there. Looking in the
direction of the site, the signs on B5 are, first,
a road narrows to
the right sign placed on a tripod on the island. Secondly, the
photos show a road closed sign placed in the
right hand land next to
the island. In the third place, the photo shows a keep left sign
placed in the right hand lane, close
to the barrier line between the
right hand and left hand lanes, nearly in front of the site but a
little to the left thereof.
The road signs on the photo correspond
with those mentioned in paragraphs vii, viii and ix above, except
that vii is depicted on
the island and not on the road as testified
to by Bryce. The other photo on exh. B5 shows two drums in a
north/south line to the
left of the site and connected by red and
white tape. Cones are also shown on the photos.
Inspector SS Lesufi of the metro police was called
to the scene soon after the accident. He testified that when he
arrived it was
not raining but soon thereafter it started to drizzle.
The plaintiff and the deceased were still on the scene but there was
nobody
else. On finding that the two men had been injured seriously,
Lesufi called for an ambulance.
Still on the scene
,
Lesufi spoke to the plaintiff who told the inspector that “he
did not notice the Road Sign of the Roadwork. Unfortunately
he went
over them and then tried to over (
sic
)
the hole …” (The quotation is from Lesufi’s
accident report, exh. A68). Lesufi testified that he found chevrons
intermittently placed from about 500m to the south of the site so as
to warn oncoming traffic that the road is narrowing to the
left.
Close to the site such a chevron was placed across the right hand
lane. There were metal “pins” (poles; standards)
around
the hole with “danger tape” (red and white striped tape)
put up in between them. He testified that he does
not remember
seeing cones on the road when he arrived. It is possible that the
emergency services placed such cones. In cross
examination Lesufi,
however, said that the plaintiff went past the cones. According to
Lesufi, the plaintiff must have driven
through between the chevrons.
The motorcycle, Lesufi said, then hit the soil heap, jumped over the
hole, broke the tape and overturned
and scattered some of the
standards. From skid marks he saw, Lesufi concluded that the
plaintiff must have been driving very fast.
Lesufi said that he arranged for Bryce to be
called to the scene. He was with Bryce when the latter did his
investigation (“tried
to find the point of impact”).
Lesufi, however, also said that he left when the ambulance did.
While he was there, he did
not see anyone putting up road signs.
Mr DJ Mulder works in an administrative capacity
for the defendant’s water department and he did so at the time
of the accident.
For reasons that are not relevant the water
department decided, in the week preceding the accident, to install a
valve in a water
pipe underlying Albatros Road. The defendant
commissioned Estie Civils to do the excavation. Although he did not
do the appointment,
Mr Mulder testified that it was done on his
recommendation. He recommended Estie Civils, among other reasons,
because he knew
them as a reputable firm that had done large
contracts for the defendant. Mr Mulder expressed the opinion that
the proper marking
of the site was the duty of Estie Civils. He
added that, in the past they had done so adequately on other sites.
The witness
said that, from the defendant’s side, its
operations officer was responsible for overall supervision of Estie
Civils’
work, including the proper marking of the site.
Mr Mulder testified that he visited the site on
the morning of Friday, 18 February. He had heard that a car had
driven into the
site on the Thursday evening, but the purpose of his
visit was to assess work progress. For purposes of warning oncoming
traffic
thereof, he found, he testified, the site adequately marked.
He could remember that there were a road closed sign, a keep left
sign and a sign indicating that traffic must move to the left. On
the Saturday morning he drove past the scene by coincidence.
There
were noticeably more road signs. At that stage, Mulder said, there
were signs intermittently from about 250m to the south
of the site.
In addition to the signs on the Friday, he could recall a sign to
reduce speed and a speed limit of 40kph.
The defendant’s last witness was Mr LM van
Niekerk who is, and was at the relevant time, employed by the
defendant as a manger
in its traffic engineering department. The
maintenance of road signs and the installation of new ones formed
part of his work.
The site was opposite the offices of the
defendant’s traffic department. In the week before the
accident, Mr Van Niekerk
saw the excavation in the road, formed the
view that the marking thereof was inadequate and informed the head of
his department
accordingly. When Mr Van Niekerk drove to his office
on the Friday morning, he saw that a car had driven into the site.
Despite
his earlier communication with his departmental head, Mr Van
Niekerk saw on the Friday morning that the marking of the site was
still inadequate. There were, he said, a “road closed”
sign, a “keep left” sign and cones on the road.
There
might have been a “road works ahead” sign. Mr Van
Niekerk said that he again called his senior to inform him
of the
situation and Van Niekerk requested his senior to attend to the
problem.
On Saturday morning Van Niekerk realised that
nothing had been done to improve the marking of the site. He
received a phone call
from Mr Els of Estie Civils who asked him
whether he (Els) could borrow road signs from the defendant.
Although not authorised
to do so, Van Niekerk went to the depot, took
signs from it and lent them to Els. He also helped Els to put the
signs up.
Starting 250m to the south of the site, Van
Niekerk and Els put up a graphic sign indicating that there are road
works ahead, a
60 or 40kph speed limit sign (the defendant has no
such 20kph signs), a graphic sign that the road narrows to the left,
a graphic
sign to keep left and a second sign indicating that the
road tapers off to the left. Most of the signs were placed on the
island
and also on the other side of the road. Van Niekerk said they
placed cones around the site. Inside the area thus demarcated by
the
cones, they placed a drum with a horizontally mounted board on it.
The board had red and white stripes and indicated that
the road had
been closed. This board was placed on the southern side of the site
and spanned just less than the width of the left
hand lane.
After he and Els had placed the boards, Van
Niekerk asked Els from time to time to check that the boards are in
place. He has never
before heard of a civilian reporting over the
metro police radio, however.
In cross examination counsel referred Van Niekerk
to exh. B5, two of the photos that were taken on the Monday after the
accident.
Van Niekerk initially said that is how the signage was on
the Friday before he and Els had placed the additional signs. When
it was pointed out to him when the photo was taken, Van Niekerk
persisted that the signage on the photos are inadequate and placed
too close to the site. That, the witness said, definitely was not
how they placed the signs on the Saturday.
On the pleadings one of the
issues
is whether, by not wearing a properly protective helmet, Mr Kenney
was negligent. Although that in my view was one of the
issues to be
decided now, Mr Ferreira informed the court that he did not think so
and did not address the issue on defendant’s
behalf.
Therefore, the defendant will be prejudiced if the issue is now
determined. Mr Van der Westhuizen for Miss Kenney and
the executor
in the estate did not object to that issue also being left for
adjudication together with the issues that have been
separated and
postponed.
Although there were suggestions that the plaintiff and Kenney might
have consumed alcohol before the accident, there is no evidence
whatsoever to such effect. It is found that neither of the men was
intoxicated.
With the exception of Lesufi, the relevant
witnesses were agreed that it rained at the time of the accident.
There is a difference
as to the intensity of the rain.
The site, in the middle of the fast lane of a busy
urban road was without doubt dangerous for
oncoming traffic. The essential factual disputes are whether there
were road signs warning
oncoming traffic of the site and, if so,
whether they were adequate. I shall now deal with these issues.
The plaintiff saw no road signs warning him of the
site. Mr Ferreira for the defendant submitted that, by telling
Lesufi that he
did not “notice
the
road sign”, the plaintiff was on the night of the accident
implying that there were road signs. The argument loses sight
thereof that Lesufi’s report was written on the scene and does
not necessarily convey the plaintiff’s exact words.
Even if it
did, the plaintiff could not have been implying that there were signs
that he did not see. First, if he did not see
them, he would not
have known they were there. Second, he made the statement while
lying in the road beyond the site and could
not have known whether
there were signs on the other side of the site. Finally, the use of
the word “the” probably
is the result of inaccurate
expression on the part of Lesufi or the plaintiff rather than an
implication that there were signs
that Vosloo did not see.
The plaintiff and his two witnesses were firm in
their evidence that there were no road signs warning oncoming traffic
of the site.
The defendant’s four witnesses all said that
there were road signs, albeit, as I shall illustrate, they do not
agree on
which signs there were. Photographs that were taken on the
day after the accident show road signs. The question arises whether
those photos do not afford objective evidence of what probably was on
the scene at the time of the accident. Pretorius and Flindt
said
that they saw a man putting up road signs after the accident.
Although he did not agree that there was no road sign before
that,
Bryce volunteered the evidence that somebody from Estie Civils might
have put up road signs after the accident. Moreover,
the photos,
exh. B, do not correspond with the signs mentioned in exh. A 1 –
3. Van Niekerk was sure that the signs on the
photographs were not
the same as those he said were put up on the Saturday. From all this
it may be concluded that the road signs
on the photographs taken on
the Monday probably do not depict the scene as it was at the time of
the accident.
In essence the two opposing versions before the
court are, for the plaintiff, that there were no road signs and, for
the defendant,
that there were adequate road signs. On the
plaintiff’s version it was pouring rain, visibility was poor
and, being on a
motorcycle, he had to turn his face sideways to avoid
rain directly in his face. Under those conditions the possibility
that the
plaintiff might have missed road signs cannot be discounted.
Flindt, an independent witness also saw no road signs. He explained
that he had to utilise his special training as the driver of an
emergency vehicle to avoid the heap and the site. Bryce and Lesufi
both could not understand how the plaintiff could have driven into
the soil heap as, on their version, he must have weaved through
at
least two road signs to get to the heap. Bryce volunteered the
opinion that for the plaintiff to have driven into the heap,
he must
have ignored the road signs. One cannot bind the defendant to
Bryce’s opinion, but that opinion is the inevitable
conclusion
to be drawn from his evidence: On his evidence the signs close to
the site were so placed that a motorcycle could only
reach the site
by weaving through them. If that were so, the plaintiff could not
have reached the site without seeing and ignoring
the signs. I can
neither on the evidence nor on the inherent probabilities find any
reason for such reckless, if not homicidal,
conduct on the
plaintiff’s part. On Lesufi’s version, the plaintiff
must not only have weaved through road signs,
he must also have
squeezed past the horizontal board that Lesufi said was mounted on
one of the drums and that spanned most of
the right hand lane.
According to Van Niekerk’s evidence the
signs closest to the site were possibly not as close as Bryce said
they were. Even
if Van Niekerk’s evidence is accepted, one
does not know whether the signs were at the time of the accident
still as he left
them.
Mulder’s evidence that he was satisfied with the placing of the
signs already on the Friday is of no assistance: It is the
court’s
function to judge whether the signage were adequate. It is the
witness function to tell the court how the signs
were placed.
Regard being had to the evidence as
a
whole, it is inherently improbable that the plaintiff would have
driven into the heap if all the signs that the defendant’s
witnesses testified to were indeed there. This inherent probability
is not upset if one took into account, as Mr Ferreira for
the
defendant submitted one must do, that on the busy road no other
vehicle drove into the site. For that there might be many
reasons.
In my view the version that there were no signs is on the evidence
before the court more probable than the opposite one.
Even if there
were signs, they could in the light of the inherent probabilities not
have been clearly visible.
My conclusion is fortified by Flindt’s
evidence that he was able to avoid the heap only by utilising his
special driving skills.
It is also fortified by Bryce’s
volunteered opinion that for Flindt to have driven up to about ten
meters from the heap,
as Flindt said he did, he must have knocked
over several signs. Flindt did not knock over any signs. Unless
Flindt is an outright
liar, his experience on the night of the
accident is also destructive of the versions of Bryce and Lesufi. As
I shall point out,
I do not think that Flindt lied to the court.
I am further fortified in my conclusion by the
particularly poor quality of the evidence given by the defendant’s
witnesses.
In the first place the
defendant’s four witnesses gave practically four versions of
the road signs that were on the scene.
There is some overlap between
the signs that Bryce testified to and the ones Lesufi testified to,
but even those two, who were
on the scene together, did not give the
same account. In this regard it is important to bear in mind that at
least Bryce knew
at the time that allegations of inadequate road
signs had been made.
Bryce sought to strengthen his evidence with his
reference to the occurrence book. That book recorded that the road
signs were
inspected and found in order already on the Friday evening
and early on the Saturday morning, at 07h49. Yet, according to Van
Niekerk, Els called him on the Saturday to ask to borrow signs and
they only put the signs up at about 09h30. Disconcerting as
such a
conclusion is, the discrepancies indicate that the occurrence book is
by no means reliable. Not a single witness could
explain why it was
found necessary to inspect road signs and report that they are in
order.
Bryce testified that he took the photos and measurements because he
had been told of the allegations that the signage were inadequate.
Yet, the defendant could produce only two photographs showing where
“the road sign was”. (I am referring to photos
01 and 02
at Exh. A5.) Despite the fact that an official album of relevant
photos was compiled (Exh. A4 to 9), the defendant did
not explain
what had become of, according to Bryce, two “spools” of
photographs. Assuming that in these days of digital
cameras, the
defendant still used cameras with film spools in 2005, Bryce’s
efforts at explaining the loss of his photographs
is unconvincing.
Even if one assumed that the photos taken the morning after the
accident depict the scene as it was at the time of the accident,
most
of the road signs that Bryce and Lesufi testified to are not on those
photos.
As for the plaintiff and his witnesses, Mrs Pretorius was not too
sure of her facts. In my view the plaintiff and Flindt’s
evidence may safely be accepted, and also that of Mrs Pretorius where
it is corroborated. The contrary evidence on behalf of the
defendant
is rejected as false.
In paragraph 5 or his particulars of claim the
plaintiff alleged that the nature of the road works put on the
defendant a duty adequately
to close the relevant portion of Albatros
Road and to put up adequate warnings signs. To this the defendant
pleaded that it “was
the obligation of Estie to warn all
motorists and road users about the excavation” and that Estie
alleges that it had done
so.
The defendant municipality caused a hole to be dug in the fast lane
of one of the busier streets in its jurisdiction. There is
no doubt
that the hole and its surroundings constituted a very dangerous
situation. There can also be no doubt that in the circumstances
the
law cast upon the defendant a duty adequately to warn traffic of the
hazard or otherwise to guard against damage to road users.
With the above Mr Ferreira for the defendant had no quarrel. He
submitted, however, that the defendant fulfilled its legal duty
by
appointing Estie Civils, a reputable business, to see to the marking
of the site and by supervising Estie Civils’ in that
regard. I
assume without finding that the evidence shows that Estie Civils was
a reputable business in the context of putting
up adequate warning
signs and that the defendant did supervise it.
When considering counsel’s argument, it is
important to bear in mind that the plaintiff did not sue the
defendant for something
the defendant did, but did negligently. He
sued the defendant for something that the defendant negligently did
not do, for a negligent
omission on the defendant’s part. In
that context there is in this case no question of the defendant being
liable for something
that Estie Civils did or did not do. The
plaintiff seeks to hold the defendant liable for what the defendant
itself did not do.
Where, as in this case, the law casts a duty upon
a party to do something that party has what is sometimes called “a
legal
duty” to act or a “duty to take care”. If
the party on whom the duty to act is cast fails to act, such failure
or omission is unlawful (wrongful, “onregmatig”). A duty
that the law puts upon a party cannot “be delegated
and the
employment of an independent contractor is an irrelevant
consideration” in the context of whether the omission was
or
was not wrongful (See
Dukes v
Marthinusen
1937 AD 12
at 23). The
appointment of another to perform the duty is irrelevant because, if
the required duty is not performed, then, as
a matter of fact the
party bearing the duty did not perform it.
Once it has been established that the law cast
upon a party a duty to act and that that party did not act, the
omission is unlawful.
That does not mean, however, that the party is
necessary liable for damage caused by the omission. A person seeking
to hold the
party bearing the duty liable, must of course also
establish that the omission was negligent in the sense that a
reasonable person
would not have omitted to act (See the
Dukes
-judgment
on p. 24, 25).
It is in the context of negligence (
culpa
,
“skuld”) that Mr Ferreira submitted that the defendant
acted reasonably by leaving it to Estie Civils to put up the
necessary signs and for it (defendant) to have supervised Estie
Civils in that regard. In my view, counsel’s argument is
not
covered by the pleadings. As I read the pleadings, the defendant
pleaded that it had no legal duty because it had appointed
Estie
Civils. I shall nevertheless assume in the defendant’s favour
that the issue raised by counsel’s argument was
duly raised on
the pleadings.
Although the legal duty remains his, a party
bearing a legal duty to act can as a matter of fact appoint another
to perform the
duty:
qui facit per alium
facit per se
. Sometimes a party who
has so employed another to perform a duty on his behalf might be
heard to say: “My failure to act
was unlawful but I was not
negligent because it was reasonable for me to have expected the one I
have appointed to act”.
But the position is different where a
party embarks upon a dangerous undertaking in the sense that the
undertaking itself implies
the possibility of harm or injury to
others. In such cases “the law casts upon the author of the
operation the duty to take
… precautions and the breach of
that duty is called
culpa
or negligence” (See the
Dukes
-judgment
on p. 24). Thus, the legal duty cast upon a party authorising an
inherently dangerous undertaking is such that that party’s
failure to take precautions is in itself negligent. Our courts have
consistently held that to be the position (See
Chartaprops
16 (Pty) Ltd and Another v Silberman 2009(1) SA 265 (SCA)
at paragraph 40 in particular. See in the latter paragraph the
quotation from
Grawhall v Minister of
Transport and Another
1963 (3) SA 614
(T)
).
Digging a hole in the fast lane of a busy street
certainly is n inherently dangerous undertaking in the sense referred
to above.
It follows that it is no answer for the defendant to
contend that it has instructed Estie Civils to take the necessary
precautions
and only to supervise it. The defendant’s failure
itself to have taken the necessary precautions was negligent.
Mr
Ferreira submitted
that the plaintiff was himself negligent by driving in the pouring
rain at 65kph. That is so, counsel argued,
because the plaintiff
himself said that he could only see two meters ahead. The latter was
not the plaintiff’s evidence.
He said that he could only see
an unlighted and unreflective pole when he was two meters away from
it. In any event, the defendant
did not establish that if the
plaintiff had driven slower, he would not have collided with the
site. Counsel’s argument
that the plaintiff should not have
driven at all is not borne out by the evidence: it was raining but
the evidence does not establish
that it was raining so hard that
driving was impossible. I have pointed out that the plaintiff
probably faced sideways so as to
avoid rain directly in his face.
This impaired his vision ahead to some extent but in my view does not
mean that in the circumstances
he drove without keeping a proper
lookout. The hazard that the defendant created in the road was not
reasonably to be expected.
The defendant did not establish that the
reasonable motorcyclist would have seen the site in time. It is
concluded that the defendant
did not prove that any negligence on the
plaintiff’s part contributed to the accident.
The defendant contends that
Estie Civils had a duty to the defendant to ensure the safety of the
site. It did not perform that duty, the defendant further
contends.
Estie Civils did not appear to dispute these contentions.
The plaintiff was represented by two counsel. The
issues dealt with at the trial were not involved. The case, however,
is of prime
importance to the plaintiff and the issues were only
separated at a relatively late stage. In my view the costs of two
counsel
should be allowed. I was informed that there are previous
orders reserving costs but that the parties agree that those costs
should
follow the event. This judgment does not resolve all the
issues between the defendant and the first third party in case no.
32786/05,
the executor in the late Mr Kenney’s estate. The
issues of whether the deceased was negligent in the type of helmet he
wore
and whether that negligence contributed to his injuries and
death stand over. The first third party was not separately
represented
in this trial and most of her costs will be covered by
the costs order in favour of Miss Kenney. Accordingly, I do not
propose
to make any cost order in respect of the first third party.
In the result the following order is made:
It is declared that the defendant is liable for
all the damages that the respective plaintiffs in case no. 32201/05
and in case
no 32786/05 suffered as a result of the accident that
took place on 20 February 2005 in Albatros Road, Kempton Park.
It is declared that Estie Civils (Pty) Ltd is liable to compensate
the defendant for any amount that the defendant pays in damages
pursuant to this order.
The questions whether the late Mr Alec Stephen
Kenney was negligent by reason of the type of helmet he wore on the
night of the
accident and whether such negligence contributed to his
injuries and resultant death are postponed sine die.
The defendant is ordered to pay the costs, including the reserved
costs, of the respective plaintiffs in case no 32201/05 and
case no
32786/05, the costs of the plaintiff Vosloo to include the costs of
two counsel.
B.R. du Plessis
Judge of
the High Court
Case No:
32201/05
On behalf
of the Plaintiff: Potgieter Penzhorn & Taute
inc.
Woltemade Building
1
st
Floor, Room 5
118 Paul Kruger
Street
Pretoria
Adv:
B.P. Geach (SC)
Adv:
P Nel
On behalf
of the Defendant: Macintosh Cross & Farquharson
210 Nedbank Building
246 Paul Kruger
Street
Pretoria
Adv: J.E. Ferreira
Case No:
32786/05
On
behalf of the Plaintiff: Potgieter Penzhorn &
Taute inc.
Woltemade Building
1
st
Floor, Room 5
118 Paul Kruger
Street
Pretoria
Adv:
Van Der Westhuizen
On behalf
of the Defendant: Macintosh Cross & Farquharson
210 Nedbank Building
246 Paul Kruger
Street
Pretoria
Adv: J.E. Ferreira
The
attorneys for the plaintiff acted for the third parties Vosloo and
Botha.
The third
party Estie Civils (Pty) Ltd was unrepresented.