Transvaal and Rhodesian Estates Ltd v Golding

• Jurisdiction: South Africa
• Judge: Innes CJ, Solomon JA and CG Maasdorp JA
• Judgment Date: 17 January 1917
• Court: Appellate Division

Innes C.J.:

The point at issue here is whether the appellant company must compensate the respondent for injuries sustained by falling into a hole on its property. On the night of August 13, 1915, he was proceeding with a friend along a path which was a public thoroughfare traversing portion of the property. This path led towards the main road from Balla Balla to Belingwe, which it met at right angles, but did not cross. The respondent's way home lay

Innes, C.J.

along this main road to the right, and it was his intention to proceed by that route. His companion's course lay to the left; so that they intended to separate on reaching the Balla Balla road. But in the darkness they crossed that road without noticing it, and, 51 feet beyond, the plaintiff fell into the hole in question and broke his leg. The hole was three feet in depth and about two feet six inches square. It had at one time been used as a latrine, but there was no evidence to show who made it. Nor was knowledge of its existence brought home to the company. In view of the terms of the plea, however, the High Court of Southern Rhodesia (RUSSELL, J.) inferred such knowledge, and dealt with the case on the basis that the company had not made the hole, but knew that it was there. I propose to consider the matter from that standpoint.

The respondent claimed relief on two grounds: negligence, and non-compliance with the terms of the Rhodesian Mining Ordinance. As regards the common law, it was contended that the excavation at the time of the accident was a danger to persons using the thoroughfare; that it was the duty of the appellant to take all necessary precautions to guard against that danger; and that failure to do so amounted to negligence, with a resulting liability for the injury sustained. The broad proposition that an owner of property adjoining a highway owes a duty to the public not to allow dangerous excavations to exist in its vicinity was discussed by both sides on appeal, without any elaborate reference to authority. And in view of its importance and difficulty an opportunity was afforded the parties of supplementing their arguments upon that point. The authorities quoted, together with others, have been carefully considered. But the view which I feel constrained to take upon a narrower aspect of the respondent's contention makes it unnecessary, and therefore undesirable, to express an opinion upon the wider principle involved. Because in this instance the obligation of the company to guard the excavation, even if it existed to the full extent contended for by the respondent, could not be greater than would have been the case had the company itself made the excavation. And I am not satisfied, under the circumstances, that in that event the law would have imposed a duty to fill up or to fence the spot.

It will clear the ground for the investigation of the principle which should regulate the liability of an owner who makes an excavation in the vicinity of a public thoroughfare if we consider the

Innes, C.J.

manner in which the matter has been dealt with by English Courts, It seems to be settled law in England that an owner or occupier is not liable unless the excavation amounts to a public nuisance; and it will be so considered only if it immediately adjoins the highway. Should any, even a very narrow strip of private property intervene between the road and the excavation, then the traveller is a trespasser to whom the owner owes no duty. The leading case is Hardcastle v South Yorkshire Railway Co. (28 L.J. Exch., 139), where the law is thus laid down: "When an excavation is made, adjoining a public way, so that a person walking upon it might, by making a false step, or being affected with sudden giddiness, or in the case of a horse or carriage-way, might by the sudden starting of a horse be thrown into the excavation, it is reasonable that the person making such excavation should be liable for the consequences. But when the excavation is made some distance from the way, and the person falling into it would be a...