Cape Town Municipality v Butters

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: Williamson J, Ackermann J and King J
• Judgment Date: 29 September 1994
• Citation: 1996 (1) SA 473 (C)
• Hearing Date: 01 February 1994
• Docket Number: A860/93
• Counsel: D R Mitchell SC for the appellant. W R E Duminy SC for the respondent.

Ackermann J:

Appellant, the Municipality of Cape Town ('the Municipality'), owns the Fountain Pay and Display public parking area I ('the parking area') in Rondebosch as well as the Liesbeeck River canal ('the canal') adjacent to it on the eastern side. Immediately to the west of the parking area is a complex of buildings called the Fountain Centre. On Saturday evening, 18 August 1990, the plaintiff ('Butters') fell into the canal, which has been canalised in concrete, fractured his hip and sustained certain other less serious injuries in consequence whereof he J suffered damages in an amount which was agreed at R80 000.

Ackermann J

A Butters sued the Municipality to recover the damages sustained by him. The matter was tried before Thring J who, after hearing evidence, found that the municipality was negligent

'particularly in its failure to provide any fence or railing or other suitable barrier between the parking area concerned and the drop into the canal',

B and liable in damages to Butters. Thring J further found that Butters had also been negligent, apportioned 75 per cent of the fault to the municipality and 25 per cent to Butters and gave judgment in favour of Butters in the sum of R60 000, with costs.

The present appeal, leave thereto having been granted by Thring J, is against that judgment and order.

C Thring J's findings on the facts, as regards the physical features of the parking area, the canal and surroundings, as well as the events leading up to Butters' fall into the canal, were not challenged on appeal, nor indeed were these facts really challenged in the trial.

On the eastern extremity of the parking area there is a kerbstone, running D approximately north to south. There was no barrier or fence between the parking area and the drop into the canal and no warning signs anywhere in the vicinity. The agreed dimensions of the canal are reflected on a sketch of the cross-section of the side of the canal down which Butters fell, exh 'B'. The following salient features of the western wall of the canal, ie the wall next to the parking area, are recorded as E follows in Thring J's judgment (see 1993 (3) SA at 526B-E):

'1.

From the top of the kerbstone to the western edge of the first ledge the vertical distance was 250 millimetres, that is about ten inches.

2.

The width of the first ledge was 570 millimetres, or about 221/2 inches. It sloped down towards the east, the eastern edge being 200 millimetres, or about eight inches, lower than the western edge. Its F surface was fairly uneven and was covered with long grass, which overhung the eastern edge of the ledge. There were also a number of loose pieces of broken slate or tile lying directly in front of where the plaintiff parked his car on the night in question.

3.

There followed a vertical drop of 700 millimetres, or about 271/2 inches, to a second ledge, which was more or less horizontal, also 570 millimetres, or about 221/2 inches, in width, and bounded along G its eastern edge by a rounded concrete lip or bullnose.

4.

There then followed a further vertical drop of 1 500 millimetres, or about 4 feet 11 inches, to the concrete floor or bed of the canal.

5.

The drop, measured vertically, from the top of the kerbstone to the bottom of the canal was 2 650 millimetres, or about 8 feet 8 inches. From the western side of the first ledge the vertical drop was 2 400 H millimetres, or about 7 feet 10 inches.'

The slope of the first ledge, referred to in the above extract, was therefore fairly steep, dropping 200 millimetres over a distance of 570 millimetres.

At the time of the incident Butters was an energetic man, 72 years of age. Prior to his fall he used to hunt and fish regularly on difficult terrain, I including slippery streambeds. He also played tennis. Thring J described Butters as '. . . remarkably fit and active . . . for his age. He certainly does not look his age'.

Although Butters had played tennis earlier in the day, it had rained or drizzled intermittently. It must be accepted that at the time of Butters' J fall the grass on the first ledge of the canal was wet.

Ackermann J

A Butters, his wife and a friend had planned to go to dinner that evening at a restaurant in the Fountain Centre and proceeded to the restaurant in a motor car driven by Butters. At about 7.15 pm Butters parked his motor car in the parking area in question in a demarcated parking bay with its nose directly over or very close to the kerbstone, flanking the canal, and B immediately above the loose pieces of broken slate or tile lying on the first ledge, referred to in Thring J's judgment. It is common cause that sunset was at 6.18 pm on the evening in question. Butters says that when he parked his car it was dusk, and there was not much light. It is uncertain whether a light on a standard in the parking area was on or not but there were lights in the windows of the shops in the Fountain Centre. C The ensuing events are detailed as follows in Thring J's judgment (at 524I-525F):

'The plaintiff and his party then went into the restaurant, which is on the western side of the parking area. The plaintiff says that shortly thereafter he realised that he had forgotten to bring a bottle of wine D with him into the restaurant. He had left it under the front passenger seat of his car. He therefore returned to the parking area to fetch it. He went to the left-hand side of the vehicle, opened the left front door, and took out the bottle of wine. At that stage the vehicle alarm went off. To deactivate it the plaintiff had to go round to the driver's door of the vehicle, open it and manipulate a switch under the dashboard on the right-hand side of the car. He says that he decided to go round the front E of the car rather than the back. He says that there was no particular reason why he decided on this route. He says that to him it seemed to be as safe to go round the front as to go round the back of the car. He moved about two paces from the front passenger's door of the vehicle to the left front of the car. There was a kerbstone there, running approximately north to south, and bounding the parking bay on its eastern side. The nose of the car was directly over or very close to this F kerbstone. Consequently it was not possible for the plaintiff to walk on the kerbstone itself in order to reach the other side of his car. From having been there before, the plaintiff says that he knew that just beyond, and slightly below the kerbstone, that is on the eastern side of the kerbstone, there was what he described as "a little shelf", approximately two feet in width, running from north to south, parallel to the kerb. I shall refer to this area as "the first ledge". The plaintiff G also knew that beyond this ledge was the canal. It was his intention, he says, to step onto the first ledge and walk along it so as to reach the right-hand side of his car. He says that he stepped over the kerbstone and onto the first ledge. Exactly what happened next he is unable to say. The next thing that he can remember is landing, with a tremendous crash, on the concrete base of the canal. He struggled up onto one leg, found H his car keys, and called for help. Not long thereafter he was helped out of the canal by two passers-by, one of whom, Muller, was called as a witness. The plaintiff was then taken to hospital, and received treatment for his injuries.'

Muller says that the grass on the first ledge was wet and that he and his friend slipped on the wet grass on the first ledge whilst pulling Butters out of the canal. He confirms that the lighting on the canal side of the I parking area was not good at all and says that he could not see well there.

Butters is not the first person to fall into the canal. In November 1989 a Miss Osborne, a woman who was in her early twenties, alighted from the front passenger seat of a motor car which had parked in the parking area, a little further to the north of the place where Butters parked. She J attempted to pass round the front of the vehicle from which she had

Ackermann J

A emerged by walking on the grass-covered first ledge, lost her footing and fell down onto the bottom of the canal. She sustained only minor injuries and made no claim against the Municipality or anyone else.

At the trial, the Municipality closed its case without calling any witnesses.

B It was correctly not disputed, either in the Court below or on appeal, that, on the authority of decisions such as Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 596H-597C, Fourie v Munisipaliteit van Malmesbury 1983 (2) SA 748 (C) at 753G-H, Van der Merwe Burger v Munisipaliteit van Warrenton 1987 (1) SA 899 (NC) at 906J-908E and Rabie v Kimberley Munisipaliteit en 'n Ander 1991 (4) SA 243 (NC) at 258H and, as Thring J C observed,

'the doctrine that municipalities are not liable for mere omissions on their part to construct, maintain or repair roads and streets, unless they have introduced a new source of danger into the roadway concerned (see, for example Moulang v Port Elizabeth Municipality 1958 (2) SA 518 (A)) no longer forms part of our law, and the same principles of the common law of D delict apply to municipalities in this regard as apply to individuals'.

Therefore, as Thring J further pointed out, the principles enunciated in, for example, Cape Town Municipality v Paine 1923 AD 207; Kruger v Coetzee 1966 (2) SA 428 (A) and Herschel v Mrupe 1954 (3) SA 464 (A) are applicable to the present case.

E In the Paine case supra Innes CJ said the following at 216-7:

'It has repeatedly been laid down in this Court that accountability for unintentioned injury depends upon culpa - the failure to observe that degree of care which a reasonable man would have observed. I use the term reasonable man to denote the diligens paterfamilias of Roman law - the average...