Halliwell v Johannesburg Municipal Council

• Jurisdiction: South Africa

Halliwell Appellant v Johannesburg Municipal Council Respondent
1912 AD 659

1912 AD p659

Citation	1912 AD 659
Court	Appellate Division, Bloemfontein - Cape Town
Judge	Coram Innes ACJ, Solomon J, CG Maasdorp JP, Laurence J and Wessels J
Heard	September 17, 1912
Judgment	November 2, 1912

Flynote : Sleutelwoorde

Municipality — Liability — Dangerous road — Non-repair — Misfeasance — Commission and Omission — Artificial structure.

1912 AD p660

Headnote : Kopnota

Where in consequence of some positive act a duty is created to do some other act or exercise some special care so as to avoid injury to others, the person concerned is liable for damage caused to those to whom he owes such duty by an omission to discharge it.

Where a road authority with permissive powers either constructs or repairs a street in such a way as to introduce a now source of danger, which would otherwise not have existed, it must take due steps to guard against that danger.

The appellant while driving carefully and at a moderate pace down a street in J came to a corner where two Municipal tram lines met. In turning the corner his horse slipped on certain cobbles laid close beside the rails and fell, throwing the appellant out of his cart on to the ground. The cobbles in question were made of concrete with small stones inbedded in it. They were originally rough and were properly laid, but they had worn smooth and were now dangerously slippery.

Held, that whether the cobbles formed part of the road or of the tramline the Municipal Council of J were liable for a dangerous condition brought about by itself which could have been remedied, which must have been foreseen and which might have been guarded against.

The decision of the Transvaal Provincial Division in Johannesburg Municipality v Halliwell (1912 TPD 593) reversed (SOLOMON, J., dissenting on the facts).

Case Information

Appeal from the decision of the Transvaal Provincial Division (SMITH, J., and CURLEWIS, J., DE VILLIERS, J.P., diss.), sitting as a Court of Appeal.

The appellant, Halliwell, was driving from south to north, in Eloff Street, Johannesburg, where there are Municipal tramlines, and in turning a corner his horse

1912 AD p661

slipped and fell. Halliwell was thrown from his sent and sustained somewhat serious injuries. He sued the Municipal Council for damages in the Magistrate's Court, and recovered judgment for £75. On appeal to the Provincial Division, the decision of the Magistrate was by a majority reversed, (DE VILLIERS, J.P., dissenting) and from that decision the plaintiff now appealed by special leave (v.p. 392 supra.).

R. Gregorowski, for the Appellant: The appeal is based on the slipperiness of the cobbles owing to nonrepair. The powers of the Council are under Ordinance 2 of 1906, section 21. There was a weekly inspection of the 1906, section 21. There was a weekly inspection of the tramlines, and the cobbles were swept daily, making them more slippery. The horse did not slip on the rails, but on the cobbles. This corner was very dangerous, for horses have fallen at the same spot. The cobbles should be sprinkled with sand. The Council chose concrete blocks, which were more economical and more dangerous than granite stones. The Council knew the corner was dangerous. When a body with permissive powers does anything to a road, and alters the natural condition of affairs and then allows the place to fall into disrepair it is liable for accidents. The English Law is not applicable; see Halsbury's Laws of England (vol. 16 page 132); Gibson v Preston Corporation (L.R. 5 Q.B. 218). In our law the authority responsible for roads is liable for damage caused by defects in them; see Divisional Council of Cradock v Hume (1 Buch. A.C. 27); Hume v Divisional Council of Cradock (1 E.D.C. 104). This is recognised by the Volksraads Besluit of 14th May, 1891, and in Johannesburg Sanitary Board v Purchase (2 O.R. 44); Kimberley Town Council v Von Beek (1 Buch. A.C. 101); Murtha's case (1 Buch. A.C. 282); Liesbeek Municipality v Partridge (4 S.C. 300); Voet (43-11); Thorpe v Pretoria Municipality (1905, T.S. 787); Jordaan v Worcester Municipality (10 S.C. 159); Kimberley Town Council v Mathieson (1 Buch. A.C. 112); Tilbrook v Port Elizabeth Town Council (4 Buch. A.C. 37); Kotzé v Ohlsson's Brewery (9 S.C. 319). If the Council lays tramlines in a public road it

1912 AD p662

must use every possible precaution to ensure that there shall be no damage caused to the public thereby.

The Council were under a duty to inform themselves as to the state of the road; see Dublin United Tramways v Fitzgerald (1903, A.C. 99), and West v Bristol Tramways Company (1908, 2 K.B. 14). It makes no difference whether the blocks are part of the road or of the tramway.

R. Feetham, for the respondent: The finding of the Magistrate is not supported by the evidence. There is a distinction between the tramway and the road. The former is an artificial work and if it becomes more dangerous than it need be, there will be liability on the ground of misfeasance; see Borough of Bathurst v McPherson (4 A.C. 256).

If a Council makes a road properly and it wears dangerously it is not bound to repair it; see Municipality of Pictou v Geldert (1893, A.C. 524); Sydney Municipality v Bourke (1895, A.C. 433); Beven on Negligence (3rd edition, vol. 1, page 299). The only difference between the English and Roman Dutch Laws on the subject is in the manner of enforcing liability. As to distinction between road work and what is not road work, see White v Hindley Local Board (L.R. 10 Q.B. 219); Blackmore's case (9 Q.B.D. 451); Thompson v Mayor of Brighton (1894, 1 Q.B. 332). If the paving is accessory to the tramway where could one stop. The paving is part of the road; see Chapman's case (1894, 2 Q.B. 599).

If twenty people were injured on this spot, the Council is not liable, as they have done nothing: see Maguire v Corporation of Liverpool (1905, 1 K.B. 767).

The Council can only be liable if it was guilty of negligence in improperly paving the street. There is no evidence of that. Secondly, if the paving was an artificial work placed in the roadway, the material was not unfit, it was commonly used for the purpose and was not badly laid. The Council had no notice of danger at this corner; see Lambert v Lowestoft Corporation (1901, 1 K.B. 590). There is no legislation in the Transvaal similar to Act 24 of 1881 (C) sec. 5 and Act, 22 of 1895 (C) sec. 7 with regard to the liability of tramway companies.

1912 AD p663

Gregorowski, in reply: It does not matter whether the accident was due to faulty construction or non-repair. The original construction was faulty, and the Council must have known of the danger.

Cur adv vult.

Postea on November 2.

Judgment

Innes, A.C.J.:

All public streets and thoroughfares at Johannesburg are by statute vested in and placed under the control of the defendant Council; which body is by the same ordinance authorised to construct, alter, and keep in repair all such streets, and to construct, maintain and work a system of tramways within the Municipal area. The clauses under both these heads are permissive in their terms. There is nothing in the statute which directs the Council either to repair the streets or to construct tramways upon them. Acting under the powers conferred upon it, however, the Council has equipped and is working an extensive system of trams, mainly along thoroughfares previously made up for public use. A double line, being portion of this system, runs down Eloff Street in the direction of Park Station. At the intersection with De Villiers Street another double line branches off towards Braamfontein, the actual junction of the metals being in Eloff Street opposite the, University College. The space between the rails of each line, between the lines themselves and for a short distance beyond is laid with blocks of concrete, into the outer face of each of which smaller stones have been inserted, so as to ensure a certain degree of roughness. The effect of traffic is gradually to wear away these stones and thus produce a smoother surface. The blocks at this particular spot (referred to in the evidence as cobbles) were laid by the defendant in 1907.

On the morning of the 25th December last the plaintiff was driving slowly down Eloff Street in a one-horse dog cart, and was desirous of turning into De Villiers Street, not in the direction of the diverging rails, but in the opposite direction. It became necessary for him, therefore, to turn to his right and cross the rails and cobbles

1912 AD p664

Innes, A.C.J.

for that purpose. While doing so, his horse side-slipped and fell cleanly and heavily to the ground. The shaft was broken the horse was slightly hurt, and the plaintiff was thrown out, sustaining a compound fracture of the right wrist and lesser injuries to the other. Thereafter he sued in the Magistrate's Court for damages, alleging that the fall of his horse was due in the first place to the negligent and uneven manner in which the cobbles had been originally laid, and in the second place to the fact that the surface was slippery and not fit for horses to travel over, this condition being caused, it was specially stated, by grease from the lines carried on to the cobbles by passing traffic. The Magistrate gave judgment for the plaintiff, to whom he awarded damages in the sum of £75. He found as a fact that the corner in question was dangerously slippery; this slipperiness might, he thought, have been accentuated by the grease from the rails, but not to any appreciable extent. He was satisfied that the fall was caused by a slip upon the concrete, and the accident was therefore due either to improper construction in the first instance, or to the fact that the concrete blocks had been allowed to become dangerous as the result of constant traffic. Instead, however, of definitely...