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IN THE HIGH COURT OF SOUTH AFRICA

SOUTH EASTERN CAPE LOCAL DIVISION

Case No.3697/06

In the matter between

DAWN POOK Plaintiff

and

NELSON MANDELA BAY MUNICIPALITY Defendant

EMFULENI RESORTS (PTY) LTD Third Party

JUDGMENT

Froneman J.

[1] The plaintiff claims damages from the defendant on the ground that the defendant negligently failed to maintain a pavement adjacent to Marine Drive, Port Elizabeth, resulting in her falling and sustaining injuries after stepping in to an indentation on the pavement. The defendant denies that it was responsible for the maintenance and upkeep of the particular area and pleaded that the third party was so responsible in terms of an agreement it entered into with the third party. On the pleadings both the defendant and the third party also denied any negligence on their part.

[2] At the start of the trial the third party sought a postponement of the matter on the basis that it wanted to amend its plea to introduce a second alternative defence, or partial defence, to its potential liability to indemnify the defendant for any damages the defendant may be ordered to pay the plaintiff. I refused that application on the grounds that it was premature in that the proposed amendment had not yet been sought and granted and that, even if it was granted, it was unlikely to prejudice the third party if the trial went ahead on the pleadings as they stood, given the fact that the proposed second alternative defence would only become relevant if the plaintiff succeeded in establishing her claim against the defendant on the basis of the present pleadings.

[3] The trial accordingly proceeded on the basis of the existent pleadings, with the understanding that if the plaintiff succeeded in her claim against the defendant the third party will then have the opportunity to pursue the proposed amendment in the next stage of proceedings.¹ An order was granted separating the issue of the defendant’s liability for the alleged fall and injuries from the issue of the extent of the damages that she may have sustained as a result thereof ( the ‘merits’ separated from the ‘quantum’, in the shorthand terms used to denote the two separate issues).

[4] The plaintiff, her daughter and a security guard at the hotel where they were staying gave unchallenged evidence of the circumstances under which the accident occurred. The plaintiff, her daughter and their husbands were staying at the Road Lodge on the evening in question, 25 July 2006. The daughter and her husband left the Road Lodge early in the evening to have dinner at Barney’s Tavern, a ‘pub and grub’ across the road. The Road Lodge is situated on the inland side of the road, Marine Drive. It is a short walk from its entrance to the pavement adjacent to Marine Drive on the inland side, where there is a pedestrian crossing over Marine Drive onto the pavement on the other side. From there it is again a very short walk to Barney’s Tavern along that pavement. Marine Drive runs alongside the sea, as its name implies, with buildings at this particular stretch of road on both sides of it, inland and next to the sea.

[5] The plaintiff’s daughter called her parents from Barney’s Tavern by cellphone, suggesting that they join her and her husband there for coffee. Only the plaintiff went. She asked Mr. Arnoldus, a security guard at the hotel, to show her how to get to Barney’s Tavern. He showed her that it was nearby, across the road, and offered to accompany her there. They walked from the hotel to the pavement alongside Marine Drive, but before they reached the pedestrian crossing a few yards further along the pavement, the plaintiff fell to the ground. She had stepped into an indentation in the pavement. She hurt herself in the fall, the details of her injuries not being of moment at this stage of the proceedings.

[6] The plaintiff’s daughter left Barney’s Tavern to look for the plaintiff and saw that she was sitting on the pavement where she had fallen. She went there to assist her mother. Temporary assistance was also given to the plaintiff by a bystander with some first aid expertise before an ambulance arrived and took the plaintiff to hospital.

[7] When the plaintiff’s daughter had walked to the tavern with her husband earlier she had noticed nothing amiss with the pavement. When she got to her mother, though, she noticed the indentation or ‘hole’ in the pavement. She also noticed that the paving was discoloured, which contributed to it not being easily noticeable. There was normal street lighting in the area. She took photographs of the indentation in the pavement which photographs were handed in at the trial as part of a set of photographs, exhibit ‘A’. She estimated the indentation to be ‘fairly long’, 20 cm in width and 10-15 cm deep.

[8] The only other witness called for the plaintiff was Mr. Mark Odendaal, the general manager of the Road Lodge hotel. He testified that at the time of the Splash Festival on the beachfront during Easter weekend of 2006, he had walked from the parking area of the hotel to the same pedestrian crossing when he noticed a relatively deep indentation on the pavement, between the blue lamppost and the pedestrian crossing. This is the same area testified to by the other witnesses. He noticed the indentation because he was pushing his child in a pram which went through the indentation. His estimation of the depth of the indentation was about 20-30 cm. On the following Tuesday he telephoned the municipality and reported the existence of the indentation and told the person he spoke to that the municipality needed to attend to the problem. He gained the impression that this would be done. Nothing was, however, done. A month later he phoned again and again gained the impression that the problem would be seen to. Once again, however, it was not to be. The third time he phoned the municipality was after the plaintiff’s accident. This time, according to him, he ‘let them have it’. Two weeks later he noticed that the indentation had been repaired.

[9] At the close of the plaintiff’s case Mr. Scott, who appeared as counsel for the defendant, applied for absolution from the instance on the basis that there was insufficient evidence, even at that stage, to prove that the defendant had constructed the pavement and that it was responsible for its upkeep and maintenance as pleaded by the plaintiff in paragraph 4 of her particulars of claim. I refused the application for absolution on the basis that Mr. Odendaal’s evidence was reasonably capable of grounding the inference that the defendant accepted its responsibility for the upkeep of the pavement and arranged for its repair after the accident. Despite this finding the defendant’s case was closed without further evidence being led, as was the case for the third party.

[10] Mr. Scott then re-argued the defendant’s case on the same ground, namely the alleged lack of proof that the defendant constructed the pavement and was responsible for its upkeep and maintenance.

[11] In my judgment the answer to this submission is simple and straightforward. Mr. Odendaal’s evidence was not challenged during cross-examination in any manner that could affect his credibility. He could not remember the identity of the person or persons he spoke to on each occasion, but his reason for assuming that he had phoned the City Engineer’s department is logical and convincing. His evidence of his understanding, on each of the first two calls, namely that the municipality would attend to the problem, was not tested or probed in any way in cross-examination to suggest that he could have been wrong or mistaken in that understanding. His evidence thus forms an unchallenged basis from which the inference may legitimately be drawn that the defendant not only accepted its responsibility for the upkeep of the pavement, but also arranged for its repair after the plaintiff’s accident. I doubt whether there is any other inference that could reasonably be drawn from his evidence alone, but at the very least I consider it the most probable inference that may be drawn from his evidence. And that, in my judgment, is sufficient for the plaintiff to discharge the civil onus in respect of this aspect. There is simply no other evidential basis to draw different conclusions from as to what the defendant’s attitude was about its responsibility in respect of the pavement. In the absence of such evidential basis the other possibilities suggested by Mr. Scott in argument is mere speculation.

[12] Neither counsel for the defendant nor for the third party attempted to argue that the defendant could escape liability on any other ground, such as lack of unlawfulness or that negligence was not established. There is also no suggestion of contributory negligence on the part of the plaintiff. She was not cross-examined at all and it was not argued that her own evidence showed any negligence on her part. All this makes it unnecessary for me to deal with the issues of unlawfulness and negligence in relation to the facts of this case in any detail. Suffice it to state that I consider these elements to be established on the basis set out for their determination in Cape Town Municipality v Bakkerud 2000 (3) SA 1049 (SCA), at paras [28] to 32].

[13] The outcome of this judgment means that two further broad issues remain for determination, namely the ‘quantum’ of the plaintiff’s damages and the possible indemnification relating to the involvement of the third party. If the third party wishes to proceed with its proposed amendments it may do so, but in view of the accepted understanding of all concerned in that regard I do not intend to issue any specific order in that regard.

[14] In the result the following order is made:

1. The defendant is ordered to compensate the plaintiff for the damages that she establishes she has sustained as a result of the accident on 25 July 2006;

2. The defendant is ordered to pay the plaintiff’s costs of the action to date, together with interest thereon at the legal rate from a date 14 days after taxation to date of payment, such costs to include the costs of the photographs, exhibit ‘A’;

3. The plaintiff is declared a necessary witness.

J.C.Froneman

Judge of the High Court.

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