Introduction
The matter concerns a claim for damages arising from an incident in which the Plaintiff fell into an open manhole while walking along a pavement in Soweto. The Plaintiff, a resident of the area, was returning home from a shopping trip and chose to walk along Chris Hani Road to catch a taxi. While walking briskly and looking out for a taxi, the Plaintiff's right leg entered an open, square-shaped manhole situated on the pavement, resulting in injury. The Plaintiff alleged that the manhole was not covered, there were no warning signs, and the area was not barricaded. The Plaintiff was subsequently hospitalised and underwent surgery for injuries sustained.
The Defendant, the Johannesburg Road Agency, was responsible for the construction and maintenance of the manhole. The Defendant did not dispute that the Plaintiff fell into the manhole but raised issues regarding the Plaintiff's conduct and the Defendant's own resource constraints. The Defendant also pleaded contributory negligence on the part of the Plaintiff.
Issues Before the Court
The court was required to determine the issue of liability only, with the quantum of damages to stand over for later determination. The central questions were:
- Whether the Defendant was negligent in failing to maintain the manhole and provide adequate warnings;
- Whether the Defendant's conduct was wrongful and causally linked to the Plaintiff's injuries;
- Whether the Plaintiff was contributorily negligent, and if so, to what extent.
Contributory Negligence
For Contributory Negligence:
The Defendant argued that the Plaintiff failed to keep a proper lookout and did not pay adequate attention to where she was walking. It was contended that the Plaintiff was multitasking—walking quickly while looking for a taxi—and that the pavement was visible, with no obstructions such as overgrown grass or sand that would have impeded her view of the open manhole. The Defendant further submitted that a reasonable person would have exercised greater care and avoided the hazard, especially as the incident occurred during daylight hours with good visibility. The Defendant also suggested that the Plaintiff should have walked on the designated brick-paved section of the pavement, rather than over the stormwater drain area where the manhole was located.
Against Contributory Negligence:
The Plaintiff maintained that she was not familiar with the area and did not see the open manhole, as there were no warning signs or barricades. She denied that her actions amounted to negligence, asserting that she was looking where she was going while also searching for a taxi. The Plaintiff argued that the absence of a cover on the manhole and the lack of warnings were the sole causes of her fall and subsequent injury. It was further submitted that the Defendant's failure to maintain the manhole and to warn pedestrians of the danger constituted the primary negligence.
Court's Assessment of the Facts and Evidence
The court carefully considered the evidence presented by both parties. The Plaintiff was the only factual witness for her case, while the Defendant called a manager from the Johannesburg Road Agency. The Defendant's witness conceded that the manhole was constructed and maintained by the Defendant, that it was uncovered at the time of the incident, and that it should have been barricaded but was not. The Defendant's witness also acknowledged that the Defendant had a duty to keep manholes covered and safe for public use.
In assessing contributory negligence, the court noted that the Plaintiff was walking during the day, in clear weather, and that the area around the manhole was visible and unobstructed. The Plaintiff admitted to walking quickly and multitasking, and the court found that she did not provide a satisfactory explanation as to why she failed to see the open manhole. The court observed that the Plaintiff did not elaborate on how the presence of other pedestrians affected her ability to notice the hazard, nor did she explain why she did not use the designated brick-paved section of the pavement.
The court referred to established legal principles, including the requirement that individuals take reasonable care for their own safety and the notion that the mere existence of a hazard does not automatically render the Defendant liable in full. The court also considered the Apportionment of Damages Act, which allows for a reduction in damages where the Plaintiff's own fault contributed to the harm suffered.
Decision on Contributory Negligence
The court concluded that there was contributory negligence on the part of the Plaintiff. While the Defendant was found to have been negligent in failing to cover or barricade the manhole, the Plaintiff was also found to have failed to keep a proper lookout and to have exercised the degree of care expected in the circumstances. The court determined that a just and equitable apportionment of liability was appropriate and accordingly held the Defendant liable for 50% of the Plaintiff's proven or agreed damages, with a corresponding order as to costs.
In summary, the court's decision reflects a balanced approach, recognising both the Defendant's duty to maintain public infrastructure and the Plaintiff's responsibility to exercise reasonable care for her own safety.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
