Pretoria City Council v De Jager

• Jurisdiction: South Africa
• Judge: Scott JA, Van Heerden JA, F H Grosskopf JA, Olivier JA, and Zulman JA
• Judgment Date: 29 November 1996
• Citation: 1997 (2) SA 46 (A)
• Docket Number: 451/95
• Hearing Date: 21 November 1996
• Counsel: N Van Der Walt for the appellant F A Ras for the respondent
• Court: Appellate Division

Scott JA:

The respondent, a widow in her early seventies (to whom I shall refer as 'the plaintiff'), sued the appellant ('the Council') in the Transvaal Provincial Division for I damages arising from the injuries she sustained when she fell into a hole approximately two metres deep which had been dug in the pavement on the north-west corner of the intersection of Dr Savage Road and Voortrekker Road, Pretoria. The hole formed part of the excavations required for a cable-laying project undertaken at the instance of the Council's electrical engineer. The work J

Scott JA

was executed by a private contractor under the direction of consulting engineers A appointed by the Council.

The quantum of the plaintiff's damages was agreed at R66 000. The questions in issue at the trial were whether the servants of the Council were negligent in relation to the damage suffered by the plaintiff and, if so, whether there was contributory negligence on her part. It was not in dispute that the possibility of a member of the public being B injured as a result of falling into an unprotected hole was reasonably foreseeable. It was furthermore agreed between the parties that although the work was executed by an independent contractor, it did so under the control and supervision of the Council. As to the question of the Council's liability, therefore, the issues were ultimately (i) C whether steps had been taken to guard against the harm that occurred and, if so, (ii) whether those steps were reasonable in the circumstances. The Court a quo accepted that the Council had required the contractor to take certain steps to guard against the harm and that such steps had been taken, but found that they were inadequate. The plaintiff was held not to have been guilty of contributory negligence. The Council was D accordingly ordered to pay damages in the agreed amount of R66 000 together with costs of suit. Leave to appeal was refused by the Court a quo (Van der Walt J) and the Council now appeals with leave granted pursuant to a petition to the Chief Justice. E

It is necessary at the outset to set out as briefly as the circumstances permit the factual background to the accident.

Dr Savage Road runs approximately east to west. It has four lanes; two for west-bound traffic and two for east-bound traffic. Voortrekker Road runs approximately north to south. The H F Verwoerd Hospital, where the plaintiff was employed in the catering department, is on the north-west corner of the intersection. F

The cable-laying project involved the digging of a trench down the length of Voortrekker Road on the pavement area on the western side of the road (ie the hospital side of the road). The work proceeded from north to south. On reaching the intersection the excavation was deepened and broadened to form a hole 3 metres by 3 G metres in area and 2 metres deep. The object was to provide enough room to permit the use of a drilling machine to enable the contractors to drill under Dr Savage Road and in this way avoid digging up the road surface. This hole was immediately adjacent to Dr Savage Road and in the mouth of the intersection. Its southern wall was a matter of some 30 centimetres from the kerb which at that point was rounded to H accommodate vehicles travelling east in Dr Savage Road turning left into Voortrekker Road.

The trench and the excavated material constituted an obstruction for pedestrians walking on the northern side of Dr Savage Road from west to east who wished to cross Voortrekker Road. To accommodate them the contractors constructed first one I and then a second footbridge over the trench. They did this before the hole in question was dug. The use of these footbridges, however, involved something of a detour for pedestrians intent on crossing at the traffic lights.

In order to explain the reason for this it becomes necessary to describe the scene in a little more detail. What was referred to in evidence as the J

Scott JA

'pavement' on the northern side of Dr Savage Road (and west of Voortrekker Road) is a strip of land several metres wide between the northern edge of the road and a precast concrete wall on the boundary of the hospital premises. The area is unmade save for a cement or concrete strip which serves as a path and which, judging from the photographs tendered in evidence, is closer to the wall than the road. The area between the path and the road is covered mainly with grass but does not appear to be particularly even. At the intersection the concrete wall surrounding the hospital premises has a splayed corner. The cement path follows the direction of the wall. In other words, before reaching Voortrekker Road it turns towards the north at an angle of presumably 45 degrees for some distance before again turning 45 degrees to proceed north and parallel with Voortrekker Road. At a point several metres from the first turn of 45 degrees the contractors provided a walkway for pedestrians leading from the path and at approximately right angles to it. That walkway led to the footbridges over the trench and provided access to the western side of Voortrekker Road in the vicinity of the traffic lights. According to the contractor the second bridge over the trench was constructed after it appeared that a single bridge was inadequate to accommodate the number of pedestrians using the facility. In short, therefore, pedestrians walking from west to east on the northern pavement of Dr Savage Road were obliged, in order to reach the traffic lights, to turn half-left for several metres before turning sharply to the right and then over the trench to the traffic lights. A short cut by some 5 to 10 metres would have been to leave the cement path at the point where it makes a half turn to the left and to walk instead across the unmade part of the pavement to Dr Savage Road and from there in the roadway itself to the traffic lights.

The excavation of the hole immediately adjacent to Dr Savage Road increased the volume of excavated material piled up on the pavement. It is clear from one of the photographs taken at the scene after the accident that anyone walking from west to east on the northern pavement of Dr Savage Road would have been confronted by a G sizeable mound of earth immediately ahead. As I have said, to reach the traffic lights a pedestrian would either have had to go to the right and walk on the road itself or go to the left and take the route which is described above. Whether the route to the left was obstructed by excavated material or not was one of the questions in issue at the trial and I shall return to this aspect later. H

According to the contractor, Mr Rosa, the hole in question was dug about a week to ten days prior to the accident on 24 April 1992. The attempt to actually drill under Dr...