Municipality of Bulawayo v Stewart

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and CG Maasdorp JA
• Judgment Date: 14 September 1916
• Citation: 1916 AD 357
• Hearing Date: 12 June 1916
• Court: Appellate Division

Innes, C.J.:

Section 158 of the Municipal Law (1897) of Southern Rhodesia vests in the Council of the Municipality of Bulawayo all streets and roads to which the inhabitants have a common right. That body is empowered (sec. 155) (11) to construct, alter or repair any roads, streets or drains within its terri-

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torial limits; and it is authorised (sec. 108) to frame bye-laws "for compelling the connection at the owner's expense of private drains with public drains, sewers or pipes." Among the regulations, promulgated and in force within the Municipality of Bulawayo is one (No. 11) dealing with rain-water drains from houses. It is very lengthy and so overlaid with unnecessary verbiage, that it might well serve as a typical example of confused and clumsy draftsmanship. But the effect of its provisions, so far as they bear upon the present case, is to compel householders, at the instance of the Council, to conduct rain-water from their roofs to the ground adjoining the footway, and thence by a covered drain or trunk under the footway to the street gutter. The drain or trunk, it is stipulated, must be such as the Council authorises, and must be kept in good condition by the frontager; its construction, laying and repair being subject to the inspection of the proper municipal officer. In March, 1909, the town superintendent, duly acting on behalf of the Council, notified Willoughby's Consolidated Company, the owner of a stand and buildings fronting Main Street, that steps should be taken to connect the rain-water pipes from its building with iron pipes laid under the footpath and discharging into the gutter. A pipe was thereafter laid by the company in accordance with these instructions, and it was accepted as satisfactory by the municipality. In course of time the footway became worn, and the exposed pipe projected above the surface. On the evening of the 14th October, 1915, the plaintiff, Mrs. Stewart, while proceeding along this footpath, fell over the pipe, cut her knee badly and damaged her clothing. The present action was then instituted in the magistrate's court to recover damages from the municipality. The magistrate found that the accident was caused by the projecting pipe, and that it was a source of danger to the public using the footway. He considered that it was the duty of the Council to keep the streets and footpaths in repair, and in the absence of any evidence of contributory negligence, he gave judgment for the plaintiff. An appeal against his judgment was dismissed by the High Court, and the matter is now before us for final decision.

The learned Judge (RUSSELL, J.) did not adopt the wide standard of liability which guided the magistrate. He inferred from the evidence that the footpath had been constructed by the Council; he saw no reason for differentiating between the footway and the

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rest of the street, and he considered that when once the Council had made it, it was their duty to keep it in repair and prevent it from becoming dangerous. But even thus modified, the principle upon which liability in this case depends was, as it seems to me, somewhat too widely stated. All streets and roads (including public footways) are vested in the Council, which is authorised to construct and repair them; but no statutory duty is imposed to do either the one or the other. The position thus created was investigated by this Court in Halliwell v Johannesburg Municipal Council (1912 AD 659), where the Roman-Dutch authorities and the South African decisions were considered. The general principle was recognised that a road authority empowered, but not obliged, to repair a public thoroughfare, is not liable for mere failure to do so. But it was pointed out that where such an authority, under permissive powers, either constructs or repairs a street in such a way as to introduce a new source of danger, then the duty is imposed upon it of taking steps to guard against the danger. The accident in that case was due to the slippery condition of certain cobbles which, under statutory authority, had been laid in the roadway by the municipality for tramway purposes. And it was held that whether the cobbles were regarded as portion of the tramway line, or as a portion of the surface of the road, the municipality was responsible for not having prevented them from becoming a danger to traffic. The culpa consisted in their failure to foresee and guard against the probable consequence of its acts. The omission to take precautions was actionable because it was connected with a prior act of commission, the consequences of which ought to have been foreseen. That case is the highwater mark of South African decisions on this point: and the question is whether the claim here made can be brought within its authority. In order so to bring it, two conditions must concur: the danger whether immediate or future, must be real and substantial; and there must be some prior act or circumstance which imposes upon the defendant the duty of guarding against it. As concerns the first point the evidence is meagre and not very satisfactory. The pipe was laid at the instance and subject to the supervision of the Council, and the probability of its exposure owing to rain and ordinary wear and tear ought to have been contemplated. But that is not enough; the question is whether its condition at the time of the accident constituted a real and substantial danger to passenger traffic. If it did not, then

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there was no need for precautions, and no negligence in not taking them. Stewart stated that the pipe protruded four inches. If so, it was undoubtedly dangerous. But his estimate was plainly exaggerated, for none of his own witnesses put the extent of projection at more than 21/2 inches; while the town engineer calculated by measuring the exposed width, that the vertical height of the curve above the surface was only a little more than half an inch. The mere fact that the plaintiff fell over the pipe would not in itself be sufficient, for accidents may be due to the most trivial causes. But there is the statement of one witness that she caught her heel on the pipe twice, and of another that he also fell over it before the accident. Then there is the circumstance that the town engineer, in a report to the Waterworks Committee date 27th October, referred to this protruding pipe as "a source of danger." I should have felt some hesitation were it not for the fact that the finding of the trial Court upon this part of the case was not very seriously attacked. It was only argued at all on the suggestion of the Court, the object of the municipality being to obtain a decision upon the larger issue involved. Under those circumstances I am prepared to accept the finding of the magistrate - which there is some evidence in the record to support - that the projection of the pipe above the surface was a source of danger to the public.

It remains to consider whether the Council is responsible for having omitted to guard against that danger. If the work had been performed by the municipality, then clearly the rule in Halliwell's case would have applied. And the question is whether the circumstances here present should be regarded as establishing the same duty to the public, as would have arisen had the Council itself laid the pipe on the footpath. It is necessary to have regard to the position as a whole. The street, including the footway, was vested in the Council with powers to drain and repair; it had authority to frame bye-laws compelling frontage owners to put down connection pipes at their own expense, but for purposes connected with the drainage protection of the street. Under that authority the bye-law in question was promulgated, obliging owners to lay pipes through and under the footpath, but only if and when...