Colman v Dunbar

• Jurisdiction: South Africa
• Judge: Wessels CJ, Curlewis JA, Stratford JA, Beyers JA and De Villiers JA
• Judgment Date: 22 March 1933
• Hearing Date: 21 March 1933
• Court: Appellate Division

Wessels, C.J.:

The plaintiff in the court below (appellant in this Court) alleged that on Sunday, 27th September, 1931, a prop, part of some structure erected by defendant, a builder, fell on her whilst she was walking in Plein Street, Johannesburg. She alleges that it was due to the negligence of the servants of the defendant that a wooden prop became dislodged, fell and injured her, and owing to the injuries sustained she has suffered damage to the extent of £8,000. The defendant denied that the accident was caused through the negligence of his servants, but to escape a lawsuit he tendered £800 in full settlement of the plaintiff's claim.

The facts in the case, which are not now disputed, are as follows. In September, 1931, the defendant, as a building contractor, was engaged in erecting mansions at the corner of Eloff and Plein Streets, Johannesburg, known as Downing Mansions. A part of this building was a concrete verandah projecting from the building over the sidewalk in Plein Street. In order to build this verandah

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it was necessary to construct a framework or shuttering into which the concrete could be placed and allowed to set. This framework was supported by props or poles. These props or poles stood on the pavement in four rows. Three of these rows (those nearest to the wall of the building) were inside a hoarding, whilst the fourth row of props stood outside the hoarding. The latter row of props stood on the edge of the pavement a few inches from the kerb. The public could pass on the pavement between the hoarding and the row of props nearest the kerb. The pole which fell on the plaintiff was the corner pole in the last row in Plein Street, i.e., the outside corner prop nearest the Phoenix Sewing Machine Co.'s premises. The tops of these props or poles were fixed by means of two cleats to bearers running under the framework which held the concrete. The bearer rested on the top of the pole, and on each side of the pole and bearer the cleats were fixed by nails both to the bearer and to the pole - two nails in the bearer and three in the pole. The bottoms of the poles rested on wedges placed on footplates and nailed thereto. The wedges were also nailed to the pole. Shortly after 8 o clock on the night of Sunday, September 27th, the plaintiff was travelling by tram, and when the tram stopped at the corner of Eloff and Plein Streets she got off. She walked in the direction of the building which was being constructed when the corner prop referred to became dislodged and fell on her. She was very badly hurt. Her spine was injured, she suffered from severe shock and had great pain. She was some four months in hospital and about two months in a nursing home. The plaintiff's condition was very serious, and she must have suffered great agony.

The whole case depends on whether the plaintiff has proved that the accident was due to the negligence of respondent's servants. The negligence, according to the declaration, consisted in (a) not erecting, securing and maintaining the prop in a proper manner; (b) not taking due precaution to make the prop secure; (c) allowing the prop to become loosely fastened to scaffolding and its base to become loose.

There can be no doubt whatever that the pole which injured the plaintiff was loose on the Sunday night (27th September). It was actually swaying in the wind on the previous afternoon. The bottom portion of the pole was not in contact with the ground. No wedge was seen by Friedland underneath the pole on the Saturday night. There is no doubt that it is a very negligent act for a

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builder to allow a pole or a prop on a pavement, where people are constantly passing, to be loose and to away in the wind.: The only question therefore in this case is whether negligence can be attributed to the defendant or his servants. If they are to blame for the pole being loose and consequently a danger to the public, then the respondent is liable in damages. If on the other hand the pole was loosened by some stranger during the Saturday after work had ceased on the building, then the respondent cannot be held liable unless the law fixes him with liability because he occupied the premises, or unless it can be shown that it was his duty to have had a watchman in the premises to inspect the poles constantly between the period when work had ceased on Saturday afternoon and was resumed on Monday morning.

Much of the time of the lower court was occupied with the question whether the structure which supported the framework or shuttering for the concrete was properly constructed. It is unnecessary for us to deal at any length with this question, for the learned Judge in the court below has found as a fact that the work was carried out in a workmanlike manner and that the props which supported the: shuttering were properly erected and fastened, i.e., the props stood on wedges and these in turn on wooden sole or foot plates, whilst the attachment of the tops of the poles to the bearers was by means of two cleats each nailed to the bearers and to the poles on opposite sides. The poles were also connected by means of braces so as to constitute more or less a rigid structure. The case made by the appellant in this Court is that, assuming that the structure was originally properly erected, then it must have been interfered with at some time prior to 2 p in on Saturday 26th by the workmen of the defendant so that the pole which caused the accident was left hanging by one cleat to the bearer and unsupported at its base by either a sole-plate or wedges. According to the appellant this was the case not only with this corner pole which fell but also with the other poles that stood outside the hoarding on or near the kerb in Plein Street. The appellant contends that as a fact the defendant's workmen left the poles in this dangerous condition, that this was a negligent act and that owing to this negligence on the part of defendant's servants the accident occurred.

Now the evidence discloses that Mr. Lange, an engineer, was asked by the architect of Downing Mansions to act as consulting

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engineer in the constructional part of the building. It was his business to see that the structure supporting the shuttering for the concrete was properly erected. He informed the Court that the poles which supported the shuttering were properly erected and therefore the presumption is that on the Saturday afternoon when work ceased the props would be in the same condition in which they had all along been, and unless something out of the ordinary had happened the poles would remain in the condition in which they were, especially when we consider that each pole supported a weight of 630 lbs. The, learned Judge accepted the evidence of this witness as well as of the other witnesses for the defendant who inspected the structure and the poles from time to time and found them in proper order. Mr. Hitchcock, the municipal inspector, who has no connection with the defendant and whose duty it is to look to the public safety, says that on the Thursday prior to the accident he had a look at the poles all the way along Plein Street and he then found nothing wrong with them. He had constantly examined them and found them most efficiently erected. He was again on the job on Saturday. On that day, however he did not carefully inspect the poles but he looked at them casually as he passed by, and he tells us that any experienced person could see at a glance whether the wedges were loose or had shifted. This agrees with the evidence of most of the expert witnesses that the experienced eve at once appreciates whether a prop is loose or not. The defendant stated that on the Saturday (26th) at about 1 o'clock he looked at the poles on the footpath, which is cleaned up every Saturday. He walked along Eloff and Plein Streets. As dismantling had already begun in Eloff Street there were not many left standing there, but all the poles were standing in Plein Street. They were all in order. Robertson, the foreman in the works, an experienced builder, did not specially inspect these poles, but he had a look round and would have noticed if the poles in Plein Street were not in order. It was part of the general routine to inspect the props regularly. The learned judge says: "All this evidence satisfied me that although a minute inspection of each prop was not made after the concrete had been poured, the props were constantly under expert eyes, and it is most improbable that anything seriously amiss with any of the props would have escaped detection."

Mr. Rosenberg, for the appellant, objects to this finding of the judge. He contends that it is wrong of the judge to say that it is

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improbable that there was anything seriously amiss with the props on the 26th in the face of the positive evidence of Friedland, Harris and Nel that there were no wedges under the outside poles in Plein Street. This brings me to the evidence as regards the props on Saturday and Sunday. The plaintiff called two witnesses, Park and Friedland, to show that during Saturday 26th September, the night before the accident, the prop which caused the injury swayed in the wind, and two witnesses, Harris and Nel, who deposed that on Sunday night there were no wedges or footplates underneath the prop which fell, and none underneath the other props standing on the kerb in Plein Street - that these props stood on the bare pavement. As this evidence is of great importance I shall give a resumé of their testimony. Mrs. Park volunteered evidence on behalf of the plaintiff. She had seen what was reported in the papers, and offered to state what she knew about the accident. She stated that late on Saturday afternoon (after 5 p m.) she was walking with her sister from Eloff Street into Plein Street with a view to entering the shop of the Phoenix Sewing Machine Co adjoining Downing Mansions, when...