Fischbach v Pretoria City Council

• Jurisdiction: South Africa
• Judge: Trengove J
• Judgment Date: 04 November 1968
• Court: Transvaal Provincial Division
• Citation: 1969 (2) SA 693 (T)

G Trengove, J.:

The plaintiff sues the defendant for damages arising out of an accident which he alleges was caused by the negligence of the defendant. He complains that on 30th April, 1966, while he was busy H cutting grass on the sidewalk on the eastern side of Solomon Street immediately to the south of the intersection of Solomon and Swemmer Streets, Gezina, Pretoria, he fell down a stormwater catchpit which formed part of the pavement. As a result of this fall, the plaintiff sustained certain injuries to his right shoulder, neck and spine and, by agreement between the parties, the damages suffered by the plaintiff has been fixed at R4,000. Thus, at the trial itself, the dispute between the

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parties was confined to the question of the defendant's responsibility in law for the plaintiff's damages.

A The grounds of negligence on which the plaintiff relies are set forth in his particulars of claim, but some of these grounds have fallen away and need no longer be considered. The grounds mainly relied upon by the plaintiff may be stated as follows:

(a)

that the defendant failed to take adequate precautions to ensure that pedestrians using the sidewalk in question would not fall into the catchpit;

(b)

B that it failed to ensure that the cover of the catchpit would remain closed when unattended; and

(c)

that it failed to take due precautions to ensure that the catchpit would not constitute a danger to the public.

C The defendant admits that it constructed the catchpit but denies that it was negligent and, in the alternative, it pleads that the mishap was attributable to the plaintiff's own negligence in that he failed to look where he was walking.

The pleadings do not make any specific reference to the relevant statutory provisions applicable to the defendant but the Court was D informed by counsel for the defendant and, indeed, it was common cause between the parties that, in constructing the catchpit, the defendant exercised the permissive powers conferred upon it by the Local Government Ordinance, 17 of 1939. Sec. 63 (1) of the Ordinance, in so far as it is relevant, provides as follows:

'The Council shall have the control and management of -

(a)

all roads, streets, thoroughfares, bridges, overhead bridges, E subways, including foot pavements, footpaths, side-walks and lanes, which have been or shall be at any time set apart and appropriated by proper authority for the use and benefit of the public, or to which the inhabitants of the municipality shall at any time have or acquire a common right, and the same shall be vested in the council in trust to keep the same open and in repair so far as the finances of the Council will permit, for the use and benefit of the inhabitants'

F and in terms of sec. 79 (1) the defendant is empowered to

'(a)

make, construct, alter, keep clean and in repair the roads, streets, squares and open spaces, dams, canals, reservoirs, water-courses, furrows, ferries, culverts and bridges vested in the council under sec. 63 hereof.'

In the context of sec. 79 (1) (a) the words 'road' and 'street' have G been held to include pavements. See Davies v Krugersdorp Town Council, 1965 (4) SA 389 (W) at p. 397.

I now proceed to consider whether the defendant is responsible in law for the damages sustained by the plaintiff. The general principles of our law relating to the lability of municipalities for injuries caused through potholes, excavations or other unevennesses in streets and H pavements have been discussed in a large number of cases in our Courts. Most of the well-known cases on this aspect of our law are referred to in Moulang v Port Elizabeth Municipality, 1958 (2) SA 518 (AD), and at p. 521 SCHREINER, J.A., summarises their effect as follows:

'The effect of these cases, and more particularly of the four cases in this Court, is that municipalities that have permissive powers in respect of the construction and maintenance of streets, and are not by statute required to keep them in repair, are not liable for damages caused by their mere omission to construct or repair them. A municipality is only liable when it has introduced a new danger or source of danger. This may happen at the time when the street is made in the first instance, if the construction is negligently done, so that its

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condition is rendered more dangerous than it was before. Or it may happen when repair work is negligently done, so that, again, the street's condition is rendered more dangerous thereby. Or it may happen when dangerous excavations or the like are made by the municipality. Or it may happen when there are introduced into the surface such objects as cobblestones or pipes which, through wear upon themselves or upon the A adjoining surface, may create a source of danger.

It will be observed that the general immunity recognised in these cases applies not only where the municipality has done nothing to the natural ground surface; it applies also where the municipality, having properly constructed or repaired the surface without introducing a new danger, has thereafter omitted to keep it in repair, so that holes or other unevennesses have developed. Where no specific source of danger has been B introduced by the municipality a plaintiff can only succeed by proving the previous condition as well as the condition after the work was done and by showing that the latter condition was more dangerous.'

In view of the facts of the instant case it is unnecessary for me to enter upon a discussion of the interesting legal problem as to whether a local authority can be held liable for an act or omission without a factum praecedens.

C In Halliwell v Johannesburg Municipality, 1912 AD 659 at p. 673, INNES, A.C.J. (as he then was), said:

' . . . where a road authority either constructs or repairs a street in such a way as to introduce a new source of danger which would otherwise not have existed, then it must take due steps to guard against the danger'

D and in Municipality of Bulawayo v Stewart, 1916 AD 357 at p. 361, he added that such a danger

'whether immediate or future, must be real and substantial'.

Two questions, therefore, arise for decision on this aspect of the case, namely whether the stormwater catchpit constituted a real and substantial source of danger which would not otherwise have existed and, E if so, whether the defendant had taken adequate steps to protect the public against such danger or potential danger.

In my view the evidence in the present case clearly establishes that the catchpit was a potential source of danger. In this regard the evidence F of the three consulting engineers, namely, Mr. Mitchell, who was called on behalf of the plaintiff, and Mr. Krige and Mr. Gie, who gave evidence on behalf of the defendant, has been most helpful. Their testimony related mainly to the nature of the catchpit, its construction and maintenance. This catchpit, as I have already stated, is situated on the sidewalk adjacent to Solomon Street, which is a tarred road. The stormwater inlet is on the street side, from where the water drops into G the catchpit chamber which, of course, is below street level. This chamber is 7 ft long, 2 ft wide and approximately 31/2 ft...