Cape Town Municipality v Paine

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Innes CJ, Solomon JA, De Villiers JA, Juta JA and Kotzé JA
• Judgment Date: 15 January 1923
• Citation: 1923 AD 207
• Hearing Date: 30 November 1922

Innes, C.J.:

On the 3rd October, 1921, a sports meeting was held by the South African Athletic and Cycling Association at the Green Point Cycle Track, a ground used for athletic purposes and of which the appellant municipality is owner. The respondent occupied a seat upon the upper tier of a stand erected in 1909 by the council, having paid for admission thereto as well as for entrance to the enclosure. Desiring to move to the tier below he stepped down upon it, resting for a moment his whole weight upon his right foot. The batten or narrow plank, upon which he stood, gave way, his foot slipped through and he sustained injuries, which caused considerable suffering and disability. A jury trial for damages on the ground of the council's alleged negligence resulted in a verdict for the, plaintiff for £1,100, for which amount judgment was entered. We are now asked to set aside that judgment and to enter judgment for the defendant, or order a new trial. Various objections are specified in the statutory notice of appeal. But they were dealt with by Mr. Howes in his very able argument as bearing upon two main questions:- Did

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the council owe any duty to the respondent in regard to the condition of the stand? And if so, did they discharge it? Relying mainly upon English cases which were said to be in consonance with our law, he contended that the appellant was under no obligation to the respondent to take care that the structure did not become dangerous; and that in any event all due precautions had been taken. The quantum of compensation awarded was not attacked.

Negligence depends upon the circumstances; and it is necessary therefore, to be clear as to the council's position with regard to the stand. The date when the land was acquired, does not appear; but the stand was erected in 1909, under statutory authority, Act 26 of 1893 sec. 153, empowered the council to provide and establish "athletic grounds" and adjuncts thereto for the use of the inhabitants; and the general management and control, of the same was vested in the municipal authorities, as also the right of determining the charges for using them. The present Ordinance (No. 10 of 1912) contains a practically identical clause (sec. 255). The right of the council to delegate its statutory powers of control to the extent involved in this case was tacitly assumed during argument, and the matter will be considered on that assumption without the expression of any opinion as to its correctness. The grounds had been leased to the Green Point Cricket Club for one year, terminating on the 31st July, 1920; and on the fifth of that month an agreement was entered into with the Young Men's Christian Association for a three year's lease which is still current, The rental was fixed at 2210 per annum. The land and structures, it was provided (sec. 2), were to be used during weekdays for purposes of sport and outdoor games and amusements (except horse racing); there was to be no Sunday user save upon special approval and subject to such restrictions as might be specially imposed. The lessees were bound (sec. 3) to grant the use of the ground, with or without the structures, to any club or association which had previously enjoyed facilities for the practice of athletics there, upon a tariff of charges (as between the lessees and the club) specified in the agreement. The Athletic and Cycling Association, under whose auspices the meeting was held on the 3rd October, 1921 is admittedly one of the bodies whose right to use the ground was thus safeguarded. Save as above the lessees were not entitled, without the lessor's consent, to grant the use of

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the ground or structures to any person or body. No structure or improvement were to be erected save upon similar consent and subject to the approval of the municipal authorities (sec. 5). The lessee undertook to maintain the grounds in good repair and condition "together with the interior of the buildings and other structures for the time being thereon;" but the responsibility for internal repairs rendered necessary by latent structural defects was accepted by them, which body "shall as far as they deem it necessary repair the exterior of the buildings and other structures on the grounds." (Sec. 6). Finally it was stipulated that "all profits accruing from the conduct of the grounds and buildings hereby leased shall be devoted to the purpose of fostering amateur sports in connection with the Corporation Athletic Grounds and the lessees hereby undertake to improve and beautify the grounds with a portion of any profits accruing." The other provisions of the agreement are not relevant to the present enquiry. The evidence as to the condition of the plank which gave way beneath the respondent's weight will be referred to at a later stage. But it is common cause that it formed portion of the exterior structure of the stand.

The English law takes a very restricted view of the liability of a landlord to third persons who are injured by defects in the demised premises. The leading case on the point is Cavalier v Pope (95 L.T., p. 65). A house had been let by verbal agreement without any stipulation as to repairs; during the currency of the term the landlord in consideration of a continuance of the tenancy, agreed to effect necessary repairs. He failed to do go, and thereafter the tenant's wife was injured in consequence of the defective condition, of the building. It was held by the House of Lords affirming a majority judgment of the Court of Appeal, that she had no cause of action against the landlord. This startling result was arrived at on very narrow grounds. The House adopted the following Pronouncement in an earlier case as correct beyond question, - "A landlord who lets a house in a dangerous state is not liable to the tenant, customers or guests for accidents happening during the term; for, fraud apart, there is no law against letting a tumble-down house and the tenant's remedy is upon his contract if any.' The wife was no party to the contract and was in no better position than a customer or guest. Certain authorities which appeared to look the other way were regarded as

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inapplicable, apparently for reasons stated by the Court of Appeal. Nelson v Liverpool Brewery (2 CPD 301) was the principal of these. There a landlord was held not liable for injury to a servant of the tenant, upon whom a defective chimney pat fell as he was crossing the yard. The decision proceeded upon the point that the lessor had undertaken no liability to repair. Had he done so, it was stated in a considered judgment that an action would have lain. This case was distinguished on the ground that the defective chimney pot was a nuisance, inasmuch as it overhung the street. The element of "proximity" thereby introduced might, it was suggested, form the basis of a liability to strangers. Judging from the report however the claim for damages was based on negligence pure and simple. Moreover the plaintiff was injured while crossing the yard, not while using the street. In any event it is a fine distinction which would make the liability of a landlord who had undertaken to repair, depend, as regards an injured stranger, on whether the defective portion of the demised promises abutted on a highway or not. The question of control was dealt with by two only of the five members of the House, and they were of opinion that the contract to repair did not amount to constructive control, because the entire premises were in the actual possession of the tenant. Subsequent decisions have necessarily followed on the lines of Cavalier v Pope. The latest is Browdey v Mercer (127 L.T., p. 282) which was decided last year. There the landlord had covenanted to keep the premises in structural repair; a yard wall adjoining the highway was in a defective condition, and it fell upon and injured a child playing inside. The child, as an invitee upon property, could not, it was held, recover damages for injury caused by something which happened to be a public nuisance to the highway. And even if the landlord had been negligent, he would not have been liable because, not being an occupier, he owed no duty to any person coming on the premises. That decision of the Court of Appeal goes further than Cavalier v Pope, for it upholds the landlord's immunity on the ground of absence of control as well as absence of privity. But there is another line of cases which, recognised under special circumstances a limited liability on the landlord to strangers injured by defective premises. The most important of there is Miller v Hancock (1893, 2 Q.B., p. 177). A building was let in separate offices; the staircase giving access

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to the offices not mentioned in the lease and was held by the trial Court to be in the possession and under the control of the landlord. A stranger, who in the course of his business called upon one of the tenants sustained injury owing to the had condition of the stairs. It was held that he had an action against the landlord; that there was an implied agreement between the latter and his tenants to keep the staircase in repair and that, as he must have contemplated that it would be used by persons having business with the tenants, there was a duty on the landlord towards such persons to keep it in a reasonably safe condition. That was an important decision somewhat out of the ordinary current; for not only did it recognise a duty to third persons springing from the circumstances, but it did not limit the standard of duty - as in Indermauer v Damer (L.R. I C.P., p. 274) - to an obligation to guard against an unusual danger of which the landlord know or ought to have known. He was held bound to keep the stairs in a reasonably safe condition. There have been several attempts to distinguish or cut down this case. LORD ATKINSON in Cavalier v Pope suggested that it proceeded on the...