Pretoria - A jogger who stumbled and fell on an alleged unkempt pavement lost out on her R3 million in damages claim against the local municipality.
In this matter, the court found that while the pavement was far from perfect, it was usable with a reasonable amount of caution.
Khanyisa Skenjana turned to the Eastern Cape High Court where she claimed damages from the Buffalo City Municipality in East London following the injuries she had sustained from her fall.
She sustained serious injuries to her right knee and alleges that these were caused by the negligence of the municipality’s employees, as they failed to maintain the pavement properly.
Her claim included compensation for past and future medical costs, as well as general damages.
The municipality denied liability, and told the court that it regularly checked and repaired pavements within its municipal boundaries, within the constraints of the available budget.
It further said that all reasonable steps are taken to warn pedestrians of damaged surfaces, drains and manholes on pavements.
According to them, the jogger is the author of her own misfortune, as she saw the pavement was uneven, yet she took the risk to jog there.
Skenjana testified that she had started jogging about two weeks prior to the incident and she had been new to the sport.
She left her house in the early hours of the morning, wearing proper brand-new running shoes. She jogged along a new route and as there was a lot of traffic in the area, she chose to run along the pavement.
She had been watching the traffic when she had passed a pole on the pavement and suddenly felt herself falling. She had twisted her leg badly in the process, screamed in pain, and called for help from a fellow jogger.
Skenjana averred that the surface of the pavement had been uneven, which caused her to fall. She said the municipality had a duty to ensure the public was safe on the pavement.
Another runner testified that she had used the same route as Skenjana for jogging and usually jogged three or four times per week. Members of the club used to caution each other about holes in the surface of the pavement, but she said some of the members were not that observant.
Judge JGA Laing referred to other judgments regarding this subject, where it was found that there can be no principle of law that all municipalities have at all times a legal duty to repair or to warn the public whenever and whatever potholes may occur in whatever pavements or streets may be vested in them.
“It is tempting to construct such a legal duty on the strength of a sense of security engendered by the mere provision of a street or pavement by a municipality, but I do not think one can generalise in that regard.”
The judge added that man-made streets and pavements will not always be in the pristine condition in which they were when first constructed.
He said it would be impossible for even the largest and most well-funded municipalities to keep them all in that state at all times. The public must realise this and for their own safety, take care when using pavements and roads.
The judge said there were obviously exceptions, such as cases involving deep potholes not easily visible to the public using the pavement or street.
“I think it will be going too far to impose a legal duty upon all municipalities to maintain a billiard table-like surface upon all pavements, free of any irregularities which might cause an unwary pedestrian to stumble and possibly fall,” the judge said.
He added that in cases like this, plaintiffs must prove that the municipality deliberately failed in its duty towards the public, to prevent the opening of the floodgates to claims of this type “of which municipalities are so fearful”.
In turning down the claim, the judge said this was not such a case.
Pretoria News