Cape Metropolitan Council v Graham (157/99) [2000] ZASCA 93; [2001] 1 All SA 215 (A) (27 November 2000)

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[2000] ZASCA 93
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Cape Metropolitan Council v Graham (157/99) [2000] ZASCA 93; [2001] 1 All SA 215 (A); 2001 (1) SA 1197 (SCA) (27 November 2000)

Case
No
1
57/99 REPORTABLE
IN
THE SUPREME
COURT
OF
APPEAL OF
S
OUTH
AFRICA
In
the matter between:
THE
CAPE
METROPOLITAN
COUNCIL
APPELLANT
and
NOEL
RA
Y
MOND
GRAHAM
RE
S
P
ON
D
E
NT
CORAM
: HOW
I
E,
OLIV
I
E
R,
SCO
T
T,
ZUL
M
AN
JJA et
FARLAM AJA
HEARD
:
1
4
NOVEMBE
R
2000
DELIVERE
D
: 27
NOVEMER
2000
Landslide
on
Chapman’s
Peak
Drive
on
the
Cape
Peninsula
-
wet
period
-
motorist seriously injured - loc
a
l government body entrusted wi
t
h
management
of
road
held
to
be
liable in
delict.
J
U
D
G
M
E N
T
S
C
O
T
T
J
A
/...
SCOTT
J
A
:
[
1
] Cha
p
mans
Peak
Drive
is
a
r
o
a
d
linking
Hout
Bay
and
Noordhoek on
the
west
coast
of
t
h
e
Cape
Peninsula. On
26
June
1994
the
respondent was severely injured
while
driving
on
the
r
o
ad
when
his
vehicle
was
struck
by
a landslide
descending
from
above
a
rock
c
u
t. The
accident
occurred
during
a
particularly
wet
period
in
the
Cape
winter. T
h
e
a
p
pellant
is
a
local
government
body
and
the
legal
successor
to
the
obli
g
ations
of
the
Western
Cape
Regional Services
Council
which
had
previously
been
entrust
e
d
with
the
manage
me
nt
and
ma
intenance
of
the
road
on
behalf
of
the
Cape
Provincial Ad
m
inistration.
The
respondent sued
the
app
e
llant
for
delictual
damages
in
the
Cape
of
Good
Hope
Provincial
Division
.
In
te
r
m
s
of
Rule
33(4)
t
h
e
Court
a
quo
was
called upon
to
d
e
cide
only
the
issue
of
liability.
At
the
conclusion
of
the
trial
it
ruled that
the
appellant
was
liable
for
the
damage
suffered
by
t
h
e
respondent in consequence of
the
accident.
The
judgment
of
the
Court
a
qu
o
is
reported
sub nom
Graham
v
Cape
Metropol
i
tan
Council
1999
(3)
SA
356
(C).
The
appeal
is with
the
leave of
the Court
a
quo
.
[
2
] Since
its
c
o
m
p
letion
in
1922
Cha
p
man’s
Peak
Drive
has
been
a major
tourist
attraction.
With
the
devel
o
p
m
ent
of
the
area
to
the
south
it
is
now also used as a commuter route. Starting from
virtually sea level at Hout Bay it
traverses what is relatively speak
i
ng
a gentle slope for a dis
t
ance of
approxi
m
a
tely
5
km
ris
i
ng several
hundred
feet
to
a
look-out
point
which
overlooks
the
Hout
Bay
Sentinel
and
the
bay
itself.
At
this
point
t
h
e
slope
of
the
m
ountainside
increases
dramatically
and
for
the
next
4 km
the
road
winds
its way
around
Chapman’s Peak
as
it
gradually
descends
to
N
oordhoek with
an a
l
most
sheer
drop
down
to
the
sea
on
t
h
e
western
side
and
towering
rock
cuts
and
steep
m
ountainside
on
t
h
e
eastern sid
e
.
The
rock
cuts
i
n
many
ins
t
ances
are perpendicular
or
at
angles
on
l
y
slightly
le
ss
than
perpendicular.
To
the
north
of
the
look-out point
(i
e
on
the
Hout
Bay
side)
there
are
two
identical
warning
signs
about
three
km
apart
directed at
traffic
travelling
south
towards
Noordho
e
k.
This
sign,
which
is
internationally
recognised
and
is
described
in
the
relevant
regulations as
the
“falling
r
o
cks”
sign,
takes
the
form
of
a
triangle enclosing a
sketch
in
diagrammatic
form
of
rocks
falling
down
a
steep
incline.
Beneath
one
is
a
board
bearing
the
wor
d
s,
painted in
white
against a
green
background,
“For
5
km”. There
is
a
simi
l
a
r
sign
near
the
c
o
mmencement
of the
drive
on the
Noordhoek
side
directed
at
traffic
travelling
north
towards
Hout
Bay.
[
3
] Records
kept
at
the
Hout
Bay
weather
station
reveal
that
it
had rained every day for nine consecutive days
prior to the accident. A total of 156
mm
of
rain
was
recorded
for
the
week
ending
Fr
i
d
ay
24
June
at
8
am. By Monday, 27
June,
at
8
am
a
further
87,4
mm
of
rain
had
fallen.
The
rainfall recorded
at
Cape
Town
International
Airport
for
t
h
e
m
onth
of
June
1994
was
m
o
re
than
double
the avera
g
e
for
the
period
1961
to
1990.
[4] On
Sunday
afternoon,
26
June
1994,
the
respondent,
who
l
ived
in
a flat
in
Ca
p
e
Town,
decided
to
go
for
a
d
r
ive.
He
drove
to
Hout
Bay
via
Marine Drive
on
t
h
e
west
coast
of
the
peninsu
l
a
and
then
took
the
fateful
decision
to proceed
over
Chapman’s
Peak
Drive
to
N
oordho
e
k.
He
reca
l
led
in evidence
that
there
had
been
m
u
ch
rain
for
some days prior
to
the
accident.
He
reca
l
led
also observing
the
“falling
rocks”
sign
as
he
proceeded
up
the
first
section
of
the
drive
to
the
look-out
point.
At
the
ti
m
e
there
was
what
he
described as
a
“
m
ild
drizzle”.
After
proceeding past
the
loo
k
-out
point
he
could
remember
nothing further
un
t
il
waking
up
i
n
hospital. W
h
at
happened
in
t
h
e
i
n
tervening
period appears
from
the
evidence
of Mr
Cagnazzo.
At
the
ti
m
e
he
was
the
dr
iv
er
of one of
several
m
o
tor
cars
proceeding
so
m
e
way
ahead
of
the
respondent
towards Noordho
e
k.
At
a
po
i
nt
so
m
e
200
me
tres
beyond
w
h
ere
the
accident
occurred
he
found
t
h
e
way
blocked
by
m
ud
and
a
tree
which
had
washed
onto
the
road.
He
executed, he
said,
a
“three-point”
turn
in
order
return
t
o
Hout
Bay.
By
this
t
ime
water and small stones were raining down onto his vehicle from above
and he began
to
fear
for
his
safety.
After
proceeding
a
short
distance
back
towards
the
look-out point
the
vehicle
ahead
of
him
stopped.
He
saw
that
there
had
been another
landsl
i
de
which
barr
e
d
their
way. He
and
the
other
drivers
a
lighted from
their
vehicles
and
sought
refuge
from
the
falling
stones
by
standing up against
the
rock
face.
At
th
i
s
stage
he
observed
the
respondent’s
v
e
hicle,
a Volkswagen minibus,
a
short
distance
awa
y
.
The
roof
had
been
dented
in
t
h
e shape
of
a
“V”
by
mud
and
rocks, and
the
windscreen
was
broken.
On investigation he
found
the
respondent
s
t
ill
in
the
vehicle.
The
front
was
filled with
m
ud
which
he
had
to
dig
away
in
order
t
o
free
the
respondent.
With
the
help
of
o
t
hers
the
respondent
was
t
a
ken
to
an
area
where
there
was
so
m
e
protection
from falling
stones. Mr
Cagnazzo
returned
to
ma
k
e
sure
that
no
one
else
was
in
the
veh
i
cle.
No
sooner
had
he
done
so
than
it
was
struck
by
m
o
re
m
ud
and
debris
falling
from
a
b
ove.
Thereaf
t
er
he
and
so
m
e
of
the
others
set
off on
foot
for
Noordhoek
to
summon
help.
In
the
me
anti
m
e,
the
initial
landslide,
i
e
the
one
which
had
prevented
Mr
Cagnazzo
from
continu
i
ng
to
Noordhoek,
had
been
brought
to
the attention
of
t
h
e
appellant’s
assistant
maintenance superintendent,
Mr
La
m
b
,
who
had
immed
i
ately
taken
steps
to
close
the
r
o
ad.
[
5
] The
distance
be
t
ween
the
look
-
out
point
and
where
the
acc
i
dent
occurred
is 1.5 km. A photograph taken some hours after the event shows the
respondent’s
vehicle
surrounded
by
m
ud,
rocks
and
water
as
deep
as
the
front
bumper.
The
vehicle
itself
appears
to
be
extensively
dama
g
e
d
with
the
front section
of
the
roof
f
l
attened
al
m
o
st
to
t
h
e
le
v
e
l
of
the
hea
d
lights.
Much
of
the roof
is
covered
by
m
ud,
smallish rocks and what appear to be plant
roots. The
photograph
also
shows
water
cascading
down
the
rock
cut
at various
points.
[6] The
appellant
ad
m
itted
in
i
ts
plea
that
it
was
under
a
legal
duty
t
o take
such
r
easonable
precautions
as
ci
r
c
u
m
s
t
ances
permitted
i
n
order
to
avoid
or
m
ini
m
ise
injury
to
users
of
the
road.
In
other
words,
i
t
effectively
acknowledged
that
if
it
were
found
to
have
negligently
failed
to
take
such
precau
t
ions
its conduct
would
have
been
not
only
negligent
but
also
wrongful. (Cf
Sea Harvest
Corporation
(Pty)
Ltd
and
Ano
t
her
v
Duncan
Dock
Cold
Storage
(
Pty)
Ltd
and
Another
2000
(1)
SA
827
(S
C
A)
at
837
G
-
838
C.) In
m
y
view
the ad
m
ission
was
properly
ma
de.
Given
the
c
i
rc
u
m
stances,
the
existence
of
such
a duty
accords
with
what
I
would
perceive
to
be
“the
legal
convictions
of
the c
o
mmunity”
(see
Cape
Town
Municipa
l
ity
v
Bakkerud
2000
(3)
SA
1049
(SCA) at
1056
F
-
G). In
view
of
the
a
d
m
i
ssion,
however,
it
is
unnece
s
sary
to consider
this
aspect further.
[7]
Turning to the question of negligence, it is now well established
that
whether
in
any
particu
l
ar
case
the
precautions
taken to
guard
against foreseeab
l
e
ha
r
m
can be regarded
as
reasonable or not depends
on
a consideration of
all
the
relevant
cir
c
u
m
stances
and
invo
l
ves
a
value
judg
m
ent
which
is
t
o
be
m
ade
by
balancing
var
i
ous
co
m
p
eting
considerations. These would
ordinarily be
“(a)
the
degree
or
extent
of
the
risk
created
by
the
actor’s conduct; (b)
the
gravity
of
t
h
e
poss
i
b
l
e
consequences
if
the
risk
of
harm materialises;
(c)
the
utility
of
the
ac
t
or’s
conduct; and
(d)
the
burden
of el
i
m
inating
the
risk
of
harm”.
(See
Ngubane
v
South
African
Transport
Services
[1990] ZASCA 148
;
1991
(1)
SA
756
(A)
at
776
H
-
J
where
J
C
Van
der
Walt
in
The
Law
of
South
Africa
vol
8
para
43
is
q
u
oted
with
approval;
Pretoria
City
Council
v
De
Jager
1997
(2)
SA
46
(A)
55H
-
56C.)
If
a
reasonable
person
in
the
position
of
the
defendant
would
have
done
no
m
o
re
than
was
actually
done,
there
is,
of
course,
no
neglig
e
n
ce.
[
8
] It
was
clear
from
t
h
e
evidence
of
the
experts
who
testified
at
the
trial
that
the
unstab
l
e
nature
of
m
u
ch
of
the
rock,
the
height
and
slope
of
the cuts
and
the
steepness
of
the
m
ounta
i
nside
above
(and
its
inacce
s
sibility)
rendered
it
virtual
l
y
im
possible to
prevent
rockfalls
and
so
ensure
the
safety
of
users of
the
road. The
problem
of
falling
rocks was
noth
i
ng
new.
Although
t
h
e
Appellant
and its predecessors kept no proper records of slope failures,
inquiries from
various
sources revea
l
ed
that
over
the
years
th
ere
had
been
a
number of major
rockfalls
or
la
ndslides
resulting
i
n
the
road
being
closed
for
varying
periods. Such
slope
failures
are
known
to
have
occurred
in
August
1977,
Ju
l
y
1987,
March
1989,
July
19
9
3
and
August
1993.
The
failure
in
Ju
l
y
1993 occurred
during
or
after
a
rai
n
stor
m
.
The
weat
h
e
r
conditions
prevailing
when the
other
failures
o
c
curred
are
unknown. It
is
also
unknown
whether
there were
other
si
m
ilar
failures;
there
may
have
been,
but
one
does
not
know.
There were,
however, a
nu
m
b
er
of
m
inor
or
le
ss
severe
slope
fai
l
ures
which
were
known to
have
caused injury
t
o
users
of
the
road
and
in
one
case
the
death
of
a
m
o
torist.
Several
reports
dealing
with
t
h
e
stability
of
the
slope
were
o
b
tained
from
ti
m
e
to
ti
m
e
by
the
appellant
and
its
pr
e
d
ecessors
from
consult
i
ng
engineers.
On
advice
given,
steps
were
t
a
k
e
n
some
y
ears
prior to
the
accident
to
stabilize
certain
of
the
rock
cuts
close
to
the
base
but these
did
little
to
e
li
m
inate
the
risk
of
rockfalls
and
landsl
i
des
emanating
from
the
upper
reaches
of
the
rock
cuts
or
from
the
mountainside
above
t
h
e
rock
cuts. A
poss
i
ble
solut
i
on,
perhaps the
only
one
to
avoid
the
danger
altogether,
would
have
been
to
construct
something
in
the
nature
of
a
concrete
roof
over
t
h
e
road
but,
qu
i
te
apart
from
the
technical
proble
m
s
involved,
the
cost
of
such
a
structure
wou
l
d
be so
prohibitive as to render it not a feasible option. Nor, I should add,
did the respondent
contend
t
h
at
the
appellant
was
negligent
for
not
having
adop
t
ed
such a course.
[
9
] By
the
time
the
trial
c
o
mmenced
the
grounds
of
negligence
relied upon
by
the
respondent
had
been
confined
to:
(a)
the
appellant’s
failure
to
warn
users
of the
road
of
the
risk
of harm
from
falling
earth
and
rock
(it
being
alleged that
the
“falling
rocks”
sign
previously
referred
to
was
inadequate),
and
(b)
the appellant’s
failure
to
close
the
road te
m
porarily
prior
to
the
accident.
The appellant
conceded that
it
was
obliged
to
warn
the
public
of
the
danger
but
contended
that
t
h
e
existing
warning
s
i
gns
were
adequate for
this
purpose. Si
m
ilarly,
the
appellant
accepted
that
it
was
obliged to
close
the
road temporarily when
the
circ
u
mstances
w
e
re
such
to
warrant
such
a
step
but denied
that
its
failure
to
close
the
r
o
ad
prior
to
the
accident
a
m
ounted
to negligence.
The
Court
a
qu
o
found
for
the respondent
on
both
grounds.
[10] The
warning
sign
described
above
serves
to
warn
users
of
the
road not
only
of
the
danger
arising
from
roc
k
s
ly
i
ng
on
the
roadway but
a
l
so
from rocks
falling
from
a
rock
cut
or
the
mountainside
above.
The
Court
a
quo
appears
to
have
held
that
the
sign
does
no
m
o
re
than
warn
m
o
torists
of
the for
m
er.
I
cannot
agree.
The
rocks
are
not
placed
on
the
road;
they
fall
there.
Anyone who is not prepared
to run the risk must choose some other route. The
risk
of
fal
l
ing
rocks
i
s,
however, one
w
h
ich
is
i
nherent
in
any
m
ountain pass
or for
that
matter
any
unstabilized
rock
cut
or
cutting. Indeed,
the
sign
in
question is
frequen
t
ly
encoun
t
ered
on
mountain
p
a
sses
in
t
h
e
Western
Cape
-
even
the relatively
new
ones.
Most
m
o
torists
w
ould
ordinarily
accept
the
risk
without
de
m
u
r.
They
would
generally also
be
a
w
are
that
the
risk
is
not
necessarily
unifor
m
. In
the
case
of
so
m
e
passes,
typ
i
cally
the
older
ones
built
in
a
different technolog
i
cal
age,
the
risk
would
be
so
me
what
greater. Although
rockfalls
on Cha
p
man’s
Peak
Drive
are
unpredictab
l
e
and
can
occur
bo
t
h
in
wet
and
dry
periods it
is
clear
that
the
risk
of
rockf
a
lls
associated
with
the
characteristics
of the
slope,
and
particularly
ma
jor
s
l
ope
f
a
il
u
res
whether in
the
form
of
rockfalls or
landslides, are
greatly
increased
by
r
a
infall
and particularly
the
saturation
of
the
m
ountainside.
Indeed,
all
the
exper
t
s
who
testified
were
agreed
that
the
greater
the
rainfall,
t
h
e
grea
t
er
the
risk
of
rockfalls
and
particularly
landslides. As
far
as
t
h
e
latter
a
r
e
concerned, Mr
Stapelberg,
an
engineering
geologist
who
gave
evidence
for
the
respondent, exp
l
ained
that
with
the
increase
in
the
m
o
isture
content
of
soil
on
a
m
ountain
slope
there
is
a
decrease
in
the
shear
strength of
the
soil
and
that
once
the
c
r
itical
shear
strength
is
reached a
slope failure
will
result.
In
view
of
the
steepness
of
the
slope
of
the
soil
on
the
ledges
above the rock
cuts on Chapman’s Peak Drive, the risk of a landslide in sustained
wet
weat
h
e
r
is
acc
o
rdingly
m
u
ch
greater
than
would
normally
be expected
on a
m
ountain
pass.
It
is
no
doubt
true that
m
o
st
experienced
motor
i
sts
would
be
aware
that
the
risk
i
s
generally
intensified
in
wet
weather.
But
the appellant
is
in
a
far
better
pos
i
tion
t
o
assess
that
risk.
Not
only
does
it
have knowledge of
the
particular
proble
m
s
ass
o
ciated
with
the
road,
it
also
has
or ought
to
have
knowledge
of
previous
landslides
and
ma
jor
rockfalls
in
wet weather
as
well
as
incidents
in
which
peo
p
le
have
suffered
in
j
u
ries
as
a
result
of
all
for
m
s
of
slope
failures.
In
addition,
the
rainfall
figures
recorded
at
Hout
Bay
are
readily
available
to
it.
There
co
me
s
a
time,
I
think,
when
it
m
u
st
or
ought
to be
known
to
the
appellant
that
by
reason
of
the
weather
conditions,
or otherwise,
the
risk
of
harm
resulting
fr
o
m
rockfalls
or
landslides
has
increased to
such
an
extent
that
the
“fall
i
ng
roc
k
s”
sign
no
longer
ad
e
quately
conveys to users
of
the
road
the
true
extent
of
the
r
i
sk.
This
is
to
so
m
e
extent
i
m
plicit
in
the
appellant’s acceptance
of
an
obligation
to
close
the
road
when
weat
h
e
r
conditions
or
other
circ
u
m
stances
r
e
ndered
it
unsafe.
The
concession
was contained
in
a
reply
to
a
request
for
f
u
r
t
her
particulars in
which
the
appellant
indicated
that
it
did
not
dispu
t
e
that
it
would
be
obliged to
close
the
road
to
the
public
“in
circ
u
m
stances
and/or
weather
conditions
which
rendered
the
road
unsafe for
public use”. In addition, the appellant’s chief engineer (roads,
transportation and
p
l
anning
division)
test
i
fied
that
t
h
e
appellant
had
in
t
h
e
past closed
the
road
following
heavy
rains
e
v
en
in
the
absence
of
some
obstruction
occurring
if
the
maintenance
staff
had
observed
that
rocks
were
beginning
to
fall on
the road.
[1
1
] The
problem
that
would
face
t
h
e
appellant,
of
cou
r
se,
would
be
to decide
whether
in
the
particular
circu
m
stances
the
stage
had
been
reached that the
road
shou
l
d be
closed. The
decis
i
on
would
not
be
an
easy
one
and
when
subsequently considering
whether
the
appellant
was
negligent
or
not
it
is
i
m
portant
to
bear
in
m
ind
that
it
is
not
required
to
exercise
prophetic
foresight; it is oblig
e
d
to
do
no
m
o
re
than
act
reasonably.
[1
2
] The
engineers
in
the
employ
of
t
h
e
appellant
e
m
phasized
the dilemma
which
faced
them
when
the
question
of
c
l
osing
t
h
e
road
arose.
Closure of
the
road
is
inevitably
greeted
by
a
p
ublic
outcry.
As
previously
mentioned,
the
road
is
now
a
commuter
route and
no
l
o
nger
merely
a
scenic
drive.
There
is, however,
another
road
linking
Noordh
o
ek
and
Hout
Bay. A
d
m
ittedly,
it involves
a
detour
of
something
like
an
additional
14
km
but
this is
no
m
o
re
than an inconvenience.
A
further
proble
m
,
they
said,
was
that
once
the
road
h
a
d
been closed
an
equally
difficult
question
aro
s
e
as
to
when
to
reopen
it
as
slope
Failures
occurred at all times of the year and not only in wet weather. It may
well
be
difficult
to
decide
w
h
en
to
reopen
the
road;
but
that
is
no
justification for
keeping
it open
in
circ
u
m
stances
which
require
it to
be
closed.
[1
3
] It
is
clear
from
the
evidence
t
h
at
the
dec
i
sion
whether
to
close
or
leave
Chapman’s
Peak
Dri
v
e
o
p
en
was
n
o
t
a
decis
i
on
taken
by
a
mem
b
er
of
the
appellant’s
engineering
s
t
aff
who
would
have
had
expert
knowledge
of
the particular
problems
associated
with
the
r
o
ad. Instead,
the
d
ecision
was
left
in the
hands
of
the
assistant
ma
i
n
tenance
superintendent, Mr
La
m
b
,
who
was
in charge
of
the
maintenance
of
roads
in
the
Hout
Bay
area,
including
Cha
p
man’s Peak.
Mr
Lamb
is
not
an
engineer.
His
principal
task
was
to
check
for
damage
to
the
road
surface
and
to
ensure
that
roads
und
e
r
his
supervision
were
kept
clean
and stor
m
w
ater
culverts
and
drains
unb
l
ocked. There
was
no
po
l
icy
as
to
when
he
was
to
close
Cha
p
man’s
Peak
Drive,
nor
were
there
guidel
i
nes
laid down
so
as
to
assist
him
in
making
a
decision.
No
proper
records
were
kept
of
past
major
slope
fai
l
ures
which
m
ight
have
provided
so
m
e
indication
of
when they
were
likely
to
occur
in
the
future.
No
regard was
had
to
rainfall
figur
e
s
which we
r
e
availab
l
e
at
the
Hout
Bay
w
e
ather
station
and
no
regard
was
had
to weather
forecasts.
Indeed,
it
appears
that
in
June
1994 no
one
on
the
staff
of
the appellant
applied
his
or
her
mind
to
what
m
ight
happen
in
the
future.
Mr
La
m
b
would merely
take steps to close the road once a rockfall or landslide had
rendered
it
unusable.
Having
regard
to
the
proble
m
s
associated
with
Chapman’s Peak
Drive
and
its
history
of
major
slo
p
e
failures,
the
appellant,
in
m
y
view,
was
negligent
in
failing
to
appoint
an
a
ppropriately
qualified
person
to
consider
the
infor
m
ation
available
and
to
consider
the
question
whether
the
risk
of
a major
slope
failure
had
increa
s
ed
to
such
an
extent
as
to
justify
the
closure
of
the
road.
Indeed,
I
did
not
understand counsel
for
t
h
e
appellant
to
con
t
end
the contrary.
But
this
does
not
mean
that
t
h
e
appellant
is
necessarily liable.
What
must
be
d
ecided
is
whether
in
all
the
c
i
rc
u
m
stances
the
failure
of
the
appellant to
close
the
road
prior
to
the
acc
i
dent
was
unreasonable
and
according
l
y
a
m
ounted
to
negligence
on
its
part.
[14] As
I
have
said,
the
m
onth
of
June
1994
was
particularly
wet.
Records
kept
at
the
Hout
Bay
weather
station
show
that
by
8
am
on
Friday
24
June
1994
no
less
than
221
mm
of
rain
had
fallen
since
the
beginn
i
ng
of
the
m
onth.
Of
that,
156
mm
had
fallen
in
the
course
of
the
immediately
preceding week.
If
regard
is
had
to
these
figures,
w
h
ich
were
available,
it
m
u
st
have
been
obvious to
anyone
in
the
employ
of
the
appellant,
w
ho
was
fa
m
iliar
with
the
problems
associated
with
C
h
a
p
man’s
Peak
Drive,
that
by
then
the
risk
of
rockfalls,
and
in
particular
a
major
rockf
a
ll
or
landsl
i
de,
had
greatly
increased.
Furthermore,
there was nothing to suggest that the wet spell was over. On the
contrary,
heavy
rainfalls
were
foreca
s
t
for
the
weekend. In
the
event,
by Monday
27
June
a
further
87
.
4
mm
of
rain
had
fallen.
The
accident
occurred
on a
stretch
of
the
road
which
was
known
t
o
h
a
ve
a
high
risk
of
s
l
ope
failure. On
9
Ju
l
y
the
previous
year,
viz
1993,
a
major
rock
fall
had
occurred
at
virtual
l
y
the
same
point
during
or
after
a
rains
t
orm
resulting
in
a
lengthy
closure
of
the road.
During
the
week
the
road
was
pat
r
olled
by
a
worker with
a
wheelbarrow who
re
m
o
ved
any
s
t
ones
or
rocks
which
m
ight
have
fallen
onto
the
road.
On
Saturday
m
o
rning
25
June,
Mr
La
m
b
w
a
s
cal
l
e
d
out
to
clear
away
rocks
which
had
subs
e
quently
l
a
nded
on
t
h
e
road.
Although
he
could
no
longer
re
m
e
m
b
er
the
full
extent
of
the
falls
he
was
able
to
recall
that
they
w
e
re
scattered
along
the length
of
the
road.
He
said
that
while
he
was
able
to
re
m
ove
the
rocks
without assistance
they
must have
been sufficiently
substa
n
tial
to
warrant
a
traffic
officer
calling
him
out
over
the
weekend. On
the
m
o
rning
of
Sunday
26
June,
he
was
again
called
out
but
th
i
s
time
the
problem
was
on
the
Hout
Bay
side
of
the look-out
point.
[1
5
] Having
regard
to
the
cu
m
u
lati
v
e
effect
of
the
aforegoing,
there
can,
I think,
be
no
doubt
t
h
at at
least
by
t
h
e
m
o
rning
of
Sunday
26
June
1994
t
h
e
risk of
slope
failures
on
Chapman’s
Peak
Dri
v
e
had
greatly
increased
and
that
this
would
have been known or ought to have been known to the appellant through
its
officials
having
knowledge
of
the
p
a
rticular
proble
m
s
associated
with
the road.
C
ounsel
for
the
appellant
contended,
however,
that
while
this
was
undoubtedly
the
case,
the
possibility
of
a
slope
failure
actually
causing
har
m
,
or serious harm,
to
us
e
r
s
of
the
road
rem
a
ined
too
r
e
m
o
te
to
justify
the
extreme
measure
of
closing
the
road.
Tha
t
ma
y
o
r
ma
y
no
t
b
e
s
o
in
relation
to
the
risk
of
harm
resulting
from
m
inor
s
l
ope
failur
e
s
involv
i
ng,
for
exa
m
ple,
stones
or
individual
rocks
falling
on
t
o
t
h
e
road.
It
is
unnecessary
to
resolve
th
i
s
issue. What
is
clear
is
that
the
risk
of
slope
failures
which
had
increased with
the
rain was
not
confined
to
t
h
e
risk
of
such
m
i
nor
failures;
it
included
the
risk
of
major rockfalls
or
landslid
e
s
and
this
ought
to
have
been
clear
to
the
appellant.
In
the
event
of
such
a
slope
failure
o
ccurring,
a
re
l
a
tively
large
area
of
the
road
would
be
affected
and
the
possibility
of
serious
harm
being
suffered
can
by
no
mea
n
s be
regarded as
re
m
o
te.
In
all
the
circu
m
stances
it
seems
to
me
that
the
risk
of
a major
slope
failure
and
harm
to
users
of
t
h
e road
had
increased
to
such
an
extent
that
by
the
m
o
rning
of
Sunday
26
June
at
the
latest,
the
“falling
rocks”
warning sign
no
lo
nger
conveyed
to
the
public
t
h
e
t
r
ue
extent
of
t
h
e
risk
invo
l
v
ed
in using
the
road
and
that
by
then
it
had b
e
come
unreasonable
for
the
appellant
not to
have
closed
the
road.
In
my
judg
m
ent,
therefore,
the
appellant
was
negligent in failing to close the road prior to
the accident.
[16] It
was
not
contended
in
t
h
is
Court
that
there
was
contributory
negligence
on
the
part
of
the
responden
t
.
The
appeal
is
according
l
y
dis
m
issed
with
costs.
D G SCOTT
CONCU
R
:
HOW
I
E
JA OLIV
I
E
R
JA ZULMAN
JA FARLAM AJA