Cape Town Municipality v Butters

• Jurisdiction: South Africa
• Judgment Date: 29 September 1994
• Citation: 1996 (1) SA 473 (C)

Cape Town Municipality v Butters
1996 (1) SA 473 (C)

1996 (1) SA p473

Citation	1996 (1) SA 473 (C)
Case No	A860/93
Court	Cape Provincial Division
Judge	Williamson J, Ackermann J and King J
Heard	February 1, 1994
Judgment	September 29, 1994
Counsel	D R Mitchell SC for the appellant.; W R E Duminy SC for the respondent.

Flynote : Sleutelwoorde

Negligence — What constitutes — Foreseeability — Plaintiff falling into 2,6 metre deep canal adjacent to municipal public car park after having parked there at dusk — Plaintiff walking round front of car on narrow, uneven, grass-covered ledge between parking area and canal — Ledge in C hazardous condition — Apart from kerbstone no barrier between area and canal — Area heavily built-up and used extensively by public daily and at night — Plaintiff's claim based on negligent omissions by municipality — Test of municipality's liability whether legal convictions of community required municipality either to ensure that ledge not hazardous or to D erect barrier or to warn public of danger — Court holding that they did so require — Plaintiff contributorily negligent — Principle that one is entitled to assume that others will not act negligently or unreasonably not unlimited — Its applicability dependent on circumstances of case — What conduct is or is not reasonably foreseeable and what steps should be E taken to avert foreseeable harm always depends on particular circumstances of each case — Municipality should have foreseen that people might walk along ledge when slippery and in poor light and owed duty to them to avert potential harm.

Negligence — Action for damages — Damages — Apportionment of — Plaintiff F falling into 2,6 metre-deep canal adjacent to municipal public car park after having parked there at dusk — Choosing to walk round front of car along narrow, uneven, grass-covered ledge of canal of which he was aware — Parking area in heavily built-up environment and used extensively by public daily and at night — Municipality negligent in not having taken measures to eliminate hazardous condition of ledge — Plaintiff also G negligent — Fault apportioned 75% to municipality and 25% to plaintiff.

Headnote : Kopnota

Where a plaintiff relies on the omission by a municipality to protect the public from potential injury on its property, the plaintiff has to establish that the wrongfulness of that omission was such that the legal convictions of the community required the municipality to be held liable. In deciding whether they do so require, the Court has to have regard to H policy considerations. (At 479E-H/I.)

Whether a person was entitled to assume that another would not act negligently and was therefore not under a duty to protect him from the consequences of his own negligence must depend on the facts. What is, or what is not, reasonably foreseeable and what steps, if any, ought to be taken by the reasonable person to avert such foreseeable harm must always depend on the particular circumstances of each case; no hard and fast rule I can be laid down and, in general, it is futile to seek guidance from the facts and results of other cases. (At 482D/E-G/H and 483C-D.)

The appellant owned an extensively used (both by day and by night) public parking area in a heavily built-up area and the river canal adjacent to it. Other than a kerbstone, there was no barrier between the area and the canal. The respondent had parked his car facing the canal, with the nose protruding over the kerbstone. It was dusk and it had been raining. J Wanting to go to the other side of his car, he chose to walk

1996 (1) SA p474

A round the nose along a narrow, uneven, grass-covered ledge running along the side of the canal. He lost his footing, fell into the canal and was injured. He sued the appellant in a Provincial Division for damages, alleging that it had been negligent in omitting to take reasonable precautions for the safety of users of the parking area and, in particular, to ensure that users did not fall into the canal. The Court a quo held that both appellant and respondent had been negligent, apportioning 75% of the fault to appellant and 25% to respondent.

B Held, dismissing the appeal (Williamson J dissenting), that the ledge in its existing condition constituted a disguised hazard which could have been eliminated easily and relatively inexpensively. (At 480I-J.)

Held, further, that the legal convictions of the community and public policy in relation to a public body such as the municipality required the appellant either to ensure that the ledge was not hazardous or to eliminate the factors which obscured its hazardous nature or to warn the public about it or to erect a barrier preventing the public from walking C along it. (At 481G-H.)

Held, further, that, although the respondent had himself been negligent, the appellant should have reasonably foreseen that members of the public might walk along the ledge, albeit that it was negligent to do so, and should have taken the easy and inexpensive precautions available to it to avert the potential danger and that it could not, in the circumstances of the case, rely on the principle that one is entitled to assume that others D will not act negligently; accordingly, its failure to take precautionary measures was wrongful and rendered it liable to respondent in damages. (At 482D/E-G/H, 483D/E-F/G and 484D-F, paraphrased.)

Held, further, that there was no ground for interfering with the apportionment of fault made by the Court a quo. (At 485B/C-C.)

The decision in Butters v Cape Town Municipality 1993 (3) SA 521 (C) confirmed.

Cases Considered

Annotations

Reported cases

The following decided cases were cited in the judgment of the Court:

E Ablort-Morgan v Whyte Bank Farms (Pty) Ltd 1988 (3) SA 531 (E)

Burton v The Real Estate Corporation 1903 TH 430

Cape Town Municipality v Paine 1923 AD 207

Fourie v Munisipaliteit van Malmesbury 1983 (2) SA 748 (C)

Griffiths v Netherlands Insurance Co of SA Ltd 1976 (4) SA 691 (A)

Herschel v Mrupe 1954 (3) SA 464 (A)

F King v Arlington Court (Muizenberg) (Pty) Ltd 1952 (2) SA 23 (C)

Kruger v Coetzee 1966 (2) SA 428 (A)

Minister van Polisie v Ewels 1975 (3) SA 590 (A)

Rabie v Kimberley Munisipaliteit en 'n Ander 1991 (4) SA 243 (NC)

Skinner v Johannesburg Turf Club 1907 TS 852

Van der Merwe Burger v Munisipaliteit van Warrenton 1987 (1) SA 899 (NC) G

Case Information

Appeal from a decision of a single Judge (Thring J), reported at 1993 (3) SA 521 (C). The facts appear from the judgment of Ackermann J.

D R Mitchell SC for the appellant.

W R E Duminy SC for the respondent.

Cur adv vult. H

Postea (29 September 1994).

Judgment

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.

1996 (1) SA p475

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...