Cape Metropolitan Council v Graham

• Jurisdiction: South Africa
• Judge: Howie JA, Olivier JA, Scott JA, Zulman JA and Farlam AJA
• Judgment Date: 27 November 2000
• Citation: 2001 (1) SA 1197 (SCA)
• Docket Number: 157/99
• Hearing Date: 14 November 2000
• Counsel: H M Carsten SC (with A Ferreira) for the appellant. M Donen for the respondent.
• Court: Supreme Court of Appeal

Scott JA:

[1] Chapman's Peak Drive is a road linking Hout Bay and Noordhoek on the west coast of the Cape Peninsula. On 26 June 1994 the respondent was severely injured while driving on the road when his vehicle was struck by a landslide descending from above a rock cut. The G accident occurred during a particularly wet period in the Cape winter. The appellant is a local government body and the legal successor to the obligations of the Western Cape Regional Services Council which had previously been entrusted with the management and maintenance of the H road on behalf of the Cape Provincial Administration. The respondent sued the appellant for delictual damages in the Cape of Good Hope Provincial Division. In terms of Rule 33(4) the Court a quo was called upon to decide only the issue of liability. At the conclusion of the trial it ruled that the appellant was liable for the damage suffered by the respondent in consequence of the accident. The judgment of the Court a quo is reported sub nom I Graham v Cape Metropolitan Council 1999 (3) SA 356 (C). The appeal is with the leave of the Court a quo.

[2] Since its completion in 1922 Chapman's Peak Drive has been a major tourist attraction. With the development of the area to the south it is now also used as a commuter route. Starting from virtually sea-level J

Scott JA

at Hout Bay it traverses what is relatively speaking a gentle slope for a distance of approximately five kilometres, rising several A hundred feet to a look-out point which overlooks the Hout Bay Sentinel and the bay itself. At this point the slope of the mountainside increases dramatically and for the next four kilometres the road winds its way around Chapman's Peak as it gradually descends to Noordhoek with an almost sheer drop down to the sea on the western side and B towering rock cuts and steep mountainside on the eastern side. The rock cuts in many instances are perpendicular or at angles only slightly less than perpendicular. To the north of the look-out point (ie on the Hout Bay side) there are two identical warning signs about three kilometres apart directed at traffic travelling south towards C Noordhoek. This sign, which is internationally recognised and is described in the relevant regulations as the 'falling rocks' 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 words, painted in white against a green background, 'For 5 km'. There D is a similar sign near the commencement 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 Friday, E 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 the month of June 1994 was more than double the average for the period 1961 to 1990.

[4] On Sunday afternoon, 26 June 1994, the respondent, who lived in a flat in Cape Town, decided to go for a drive. He drove to Hout Bay F via Marine Drive on the west coast of the peninsula and then took the fateful decision to proceed over Chapman's Peak Drive to Noordhoek. He recalled in evidence that there had been much rain for some days prior to the accident. He recalled also observing the 'falling rocks' sign as he proceeded up the first section of the drive to the look-out G point. At the time there was what he described as a 'mild drizzle'. After proceeding past the look-out point he could remember nothing further until waking up in hospital. What happened in the intervening period appears from the evidence of Mr Cagnazzo. At the time he was the driver of one of several motor cars proceeding some way ahead of the H respondent towards Noordhoek. At a point some 200 metres beyond where the accident occurred he found the way blocked by mud and a tree which had washed onto the road. He executed, he said, a 'three-point' turn in order return to Hout Bay. By this time water and small stones were raining down onto his vehicle from above and he began to fear for I 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 landslide which barred their way. He and the other drivers alighted from their vehicles and sought refuge from the falling stones by standing up against the rock face. At this stage he observed the respondent's vehicle, J

Scott JA

a Volkswagen minibus, a short distance away. The roof had been dented in the shape of a 'V' by mud and rocks, and the A windscreen was broken. On investigation he found the respondent still in the vehicle. The front was filled with mud which he had to dig away in order to free the respondent. With the help of others the respondent was taken to an area where there was some protection from falling stones. Mr Cagnazzo returned to make sure that no one else B was in the vehicle. No sooner had he done so than it was struck by...