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KENNETHDLAMINI
IN
THE HIGH COURT OF SWAZILAND
SANDILE
KENNETH DLAMEVI
v
CITY
COUNCIL OF MBABANE
Civil
trial Case No 2255/97
Coram S
W
Sapire
CJ
For
plaintiff P Dumeith
For
Defendant H H Currie
Judgment
(18/09/98)
This
is an action for damages. The plaintiff claims E252 000.00 from the
Defendant, to compensate him for injuries sustained in circumstances
described hereunder. The parties have agreed that the question of the
defendant's liability, if any, and any possible apportionment be
determined before any assessment is made of the amount of the award.
On
Saturday the 19th July 1997 the Plaintiff was taking a postprandial,
early afternoon stroll along Warner Street in the company of two
companions.. The group was leisurely window shopping ambling on the
left-hand pavement moving from the direction of Allister Miller
Street towards the Mbabane post office. The Plaintiff was walking
closest to the street, and was obliged to move to almost the edge of
the pavement to give way to pedestrians approaching from the opposite
direction. His evidence is that while
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KENNETHDLAMINI
walking
on a path close to the kerb, and at a point opposite the entrance to
a men's outfitting shop he tripped over the stump of a metal
standard, projecting calf high from the surface of the pavement. This
accident caused the plaintiff injury to his leg. The question for
decision is whether the Mbabane city council is liable to compensate
the plaintiff by way of damages for the injury so sustained by him.
Attached
to the summons is a photograph of the scene of the accident taken
later on the same day. The original photograph, which is exhibit "A",
is much clearer. It meaningfully depicts the pointing out the
offending projection, and the surrounding area.
Gauging
from
the photograph and the plaintiffs own evidence I have difficulty in
accepting that the stump constituted a hidden obstacle to the
reasonably cautious pedestrian using the pavement in broad daylight.
While it is not expected of a pedestrian using the pavement, that his
eyes should be "glued" to the surface on which he is
walking, he is nevertheless obliged to keep a proper lookout. The
reasonable pedestrian would certainly have seen the pole from which
the "No Parking" sign used to hang, and could not have
expected to be awarded damages if he had walked into the pole and so
caused himself an injury.
The
stump being smaller is less obvious, but nevertheless conspicuous. It
was painted a different colour to the surface of the pavement and was
likely to catch the eye because of this. It was only a meter or so
from the pole, which would probably have caught the attention of the
pedestrian keeping a proper look out. He should also not have missed
the projecting stump of the standard, which was in the immediate
vicinity. The plaintiff led evidence of a witness who claims that he
had seen other people stumbling over the projecting stump. This
evidence, extremely vague in itself, and incapable of being tested,
does not establish that the projection was not obvious, or should not
have been obvious, to the reasonable pedestrian. There was however no
evidence that the Defendant municipality knew of these incidents, if
they had indeed occurred. This evidence does little to advance the
Plaintiff's case.
Having
said all this the fact remains that the projecting metal remained in
place and was a source of potential danger to those pedestrians who
passed that way and failed
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to
keep a proper look out. The possibility of such a person sustaining
injuries as the plaintiff did should have presented itself as
sufficiently real to the person who cut the stanchion, to give rise
to a duty to take precautionary steps to avoid it. The simple
expedient of removing the offending projection, as was done after
plaintiff's accident, should have been resorted to.
Considerable
time was devoted to explaining the presence of the projecting stump.
It was common cause that the stump was the sawed off standard which
had supported a garbage basket. On an inspection in loco the parties
pointed out similar garbage bins still in use on the streets of
Mbabane. Each structure consists of a bin of metal mesh which is
supported clear of the ground on lateral axles borne by vertical
stanchions planted in the ground. The structures were coloured with
the characteristic luminescent orange paint often used by the
defendant. As such they were clearly visible. Their construction and
emplacement at various points could not by any stretch of imagination
be considered the introduction of a potential source of danger. It is
therefor of little consequence as to who actually erected the bins.
At
some time before plaintiffs accident a decision was taken to remove a
number of the bins because of deterioration in their condition. The
bins were removed from the supporting stanchions, which were cut off
at calf height, leaving the stumps projecting from the ground where
they had been implanted. There is evidence that the dismantling of
the structure was carried out, by individuals connected with the
business of the "Key Bar" which is conducted alongside the
men's outfitter, as can be seen in the photograph to which I have
referred. It has not been proved that they were acting as servants
of, or agents for the defendant. If it was negligence to cut the
stanchion leaving a calf high projection on the pavement such was not
he negligence of the defendant. Neither can it be said that the
defendant introduced a potential source of danger by itself leaving
the projecting metal in place.
It
is clear that the Defendant's servants removed the severed bin from
the pavement where it lay after being taken down
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On
what used to be the test for negligence arising from an omission the
defendant would not be liable to the plaintiff. I was referred to the
decision in CAPE TOWN MUNICIPALITY v BAKKERUD 1997 (4) SA 356 C, in
which it was held that, and here I quote the headnote.
"The
doctrine of prior conduct (based on the conclusion that liability
under the lex Aquilia could n ever result from an omission alone,
except where the person sought to be held liable had by prior conduct
created a potential risk of harm to others, in which case the law
imposed a duty I to take precautions to prevent the danger from
materialising) was rejected in Minister van Polisie v Ewels 1973 (3)
SA 69 (A). In the Ewels case the Court held that, although there was
no general legal duty to take positive action to prevent harm to
others, the stage had been reached where a failure to take positive
action would be regarded as wrongful in certain circumstances. Those
circumstances were where not merely the moral, but the legal
convictions of the community would view the failure to take positive
action
as
a wrongful omission which could A give rise to an action for damages.
The circumstances in which a failure to take positive action could
give rise to a claim for damages were not confined to cases involving
prior conduct. (Paragraph [30] at 366E-H.)
In
a series of cases decided between 1912 and 1958 the Appellate
Division held that in South B African law municipalities were immune
from liability for failure to construct, maintain or repair roads and
pavements, except where, by prior conduct, the municipality had
constructed or repaired a street or pavement in such a way as to
create a new source of danger which would otherwise not have existed
In this latter instance the municipality would be liable because it
would have legally been obliged to guard against the danger it had
created. (Paragraph [17] at 362A-B/C.)
In
an appeal to a Full Bench of a Provincial Division from a decision in
a magistrate's court awarding damages to the respondent for bodily
injuries sustained when she had stepped into a hole in a pavement,
the appellant municipality argued that, despite the decision in the
Ewels case, the Appellate Division decisions holding municipalities
immune from liability for failure to D repair streets and pavements
were still binding because those decisions had been based upon policy
considerations, that is that those decisions reflected the legal
convictions of the community, and that the Provincial Division was
bound by those decisions as to what the legal convictions of the
community dictated. It was argued in the alternative that the legal
convictions Eof the modern community still required municipal
immunity from delictual liability for the non-repair of streets and
pavements, the underlying policy consideration being the financial
inability of municipalities to accept such liability.
Held,
as to the first argument, that the fact that the Appellate Division
decisions had been based, not on policy considerations, but on an
interpretation of the Roman and Roman-Dutch Flaw was highlighted by
the Court's finding that if the legal convictions of the community
regarded the results of the application of the common-law principles
as unfair, those common-law principles had to be changed by the
Legislature. (Paragraph [40] at 370C/D-F.)
Held,
accordingly, that in the post-Ewels era, the decisions of the
Appellate Division in the 'municipality cases' were no longer
binding. (Paragraph [42] at 371C.) G
Held,
further, as to the appellant's alternative argument, that the
near-universal condemnation by writers of the unsatisfactory results
flowing from the doctrine of municipal immunity from liability for
omissions and the 'fine spun' distinctions flowing from judicial
attempts to contain its scope was unanswerable. Those unsatisfactory
results and distinctions should not be H perpetuated, particularly
not on the basis that they were dictated by the legal convictions of
the community. (Paragraphs [44] and [45] at 371F/G-H/I and 371I -
372B, paraphrased)
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Held,
further, that a finding that the legal convictions of the community
required municipalities to keep streets and pavements in a safe
condition did not mean that a municipality would ipso Ifacto be
liable for damages resulting from its failure to comply with its
legal duty: a claimant would still have to establish fault (Paragraph
[47] at 372F/G-G/H.)the doctrine of prior conduct (based on the
conclusion that liability under the Lex Aquilia could ever result
from an omission alone, except where the person sought to be held
liable had by prior conduct created a potential risk of harm to
others, in which case the law imposed a duty to take precautions to
prevent the danger from materializing) was rejected by the Appellate
Division in Minister van Polisie v Ewels 1973 (3) SA 69 (A)."
In
that case (Ewels) the court found that a policeman in whose custody a
person detained at the police station was, had a duty to take
positive steps to prevent a third person , such as an off duty
policeman, from assaulting the detainee and causing him harm. I am
not sure that that descision is authority for a general revision of
what the law was previously said to be although it seems generally to
be regarded as
such.
It does however illustrate that there are cases where the
relationship between the persons concerned may create a duty in law
to take positive action to prevent harm befalling another.
The
facts of Bakkerud so closely resemble those of the present case that
I am persuaded that reasoning by analogy the outcome should be the
same
In
the present case the municipality knew that the bins had been
dismantled and that the stumps had been left in the pavement. The
defendant's own witness says that he refered the matter to the
apposite department for attention because he considered the
projecting stumps to constitute a source of danger. Having regard to
the ease with which the obstacles were later removed thus preventing
further harm from occurring, the defendant can properly be considered
negligent in failing to do so earlier.
The
Plaintiff himself was at fault in not paying sufficient attention to
the surface of the pavement before him. As in the case quoted it
would be fair to make an apportionment of the blame and I do so on
the basis that the parties were equally at fault. Accordingly any
damages which it may be found or agreed that the plaintiff has
suffered should be reduced by 50%. in making an award in respect
thereof
I
do not make any order as to costs at this stage.
S
W Sapire,
CJ
