From pavement to plaintiff: the legal journey of a fall

The case of Yende v City of Johannesburg (“COJ”) and the Johannesburg Roads Agency (“JRA”) (collectively referred to as “the defendants”) revolves around a personal injury claim where Ms. Yende (“the plaintiff”) alleges that she sustained injuries due to the negligence of the COJ and the JRA. The matter proceeded on liability with quantum reserved in terms of a separation agreement in accordance with Uniform Rule 34.

Facts of the case:

• Incident: On February 1, 2020, the plaintiff fell into an open manhole while walking on a pavement in Soweto, resulting in a severe injury to her right ankle.
• Plaintiff's Allegations: the plaintiff claimed that the COJ and JRA failed to maintain the manhole, did not provide any warning signs, and neglected its duty to keep the streets and pavements safe.
• Defendants’ Defence: The defendants’ denied responsibility, arguing that they were not aware of the open manhole and that their duty to maintain infrastructure was subject to available resources. They also suggested contributory negligence on the part of the plaintiff.

Evidence presented:

Plaintiff's Testimony: the plaintiff testified about the circumstances of her fall, the immediate aftermath, and her subsequent hospitalization and surgery. She provided photographs of the open manhole as evidence.

Defendants’ Testimony:  A manager at the JRA, testified about the JRA’s maintenance protocols and resource limitations. He acknowledged that the manhole was only covered after the incident. His testimony further focused on the JRA's maintenance protocols and resource constraints, the critical aspects of which are discussed herein below. 

• The JRA stated that they possess both proactive and reactive maintenance plans. The proactive measures include bi-annual inspections of stormwater drains in preparation for the rainy season. While the reactive measures rely on public reports of defects, which are addressed by a 24/7 response team.
• The JRA highlighted that their inability to maintain infrastructure is constrained by limited manpower and resources. At the time of the incident, Region D had only six inspectors.
• The manager in this matter spoke to the incident specific details and acknowledged that the manhole was uncovered at the time of the incident and was only covered on August 5, 2020, after a work order was issued. He testified that the JRA was not aware of the open manhole until after the plaintiff's incident.
• The JRA further spoke to their safety and maintenance protocols according to which they ensure that manholes are kept closed to maintain public safety.
• Maintenance includes monitoring the state of the grass and weeds around the infrastructure.
• The manager conceded that the JRA failed to barricade the open manhole, which should have been done to prevent accidents.
• The JRA further stated that they rely on public reports to identify defects in their infrastructure. They have a website and social media platforms to facilitate defect reporting by the public.

Court findings and order:

1. Wrongfulness: The court examined whether the defendants had a legal duty to maintain the manhole and whether their failure to do so constituted negligence. The court found that the defendants had a duty to cover and barricade the manhole, and their failure to do so was wrongful.
2. Negligence: The court considered whether the defendants could have reasonably foreseen the harm and taken steps to prevent it. The court concluded that the defendants were negligent in not taking reasonable steps to prevent the harm, given the foreseeability of the risk.

Contributory Negligence: The court evaluated whether the plaintiff's actions contributed to her injury. The court determined that the plaintiff was partly responsible for her injury due to her failure to keep a proper lookout in that she was walking fast and multi-tasking amongst other factors.

The court held that the defendants were liable for 50% of the plaintiff's proven or agreed damages, with the remaining 50% attributed to her contributory negligence.

Conclusion:

This judgement highlights valuable concepts which municipal and state-owned entities responsible for performing constitutional functions can adopt to prevent drawn out legal action from being instituted against them.

This will further facilitate a smooth dispute resolution process. The key considerations are highlighted herein below: 

1. Negating negligence

• Demonstrate that the defendant exercised reasonable care in maintaining the property or infrastructure through maintenance records.
• Present thorough maintenance logs and inspection reports to show regular upkeep and adherence to safety protocols.
• Define any proactive measures taken to prevent accidents, such as regular inspections and prompt repairs.
• Execution of such proactive measures.
• Most importantly, the recordal of the above actions and measures taken so as to evince the step and measures taken. 

2. Resource constraints

• Emphasise the constraints on manpower and resources, which may impact the ability to address every potential hazard immediately. This includes taking inexpensive measures to forewarn the public, for example, barricading problem areas and placing notifications to warn the public that a defective area has been reported and will be attended to once the resources are made available.
• Explain how resources are allocated based on priority and risk assessments

3. Document management and preservation 

• Maintain detailed incident reports and witness statements to establish a clear timeline and context for the incident.
• Use date stamped photographs of the scene to demonstrate the condition of the area and any safety measures in place.
• Maintain such records in both a digital and physical formant with the appropriate back-ups in place. 

4. Public reporting systems

• Highlight the reliance on public reports for identifying and addressing hazards and demonstrate efforts to encourage public reporting.

5. Response to incidents

• Show that the defendant took timely and appropriate actions in response to reported hazards or incidents.

6. Expert testimony

• Engage experts to testify on maintenance standards, safety protocols, and the reasonableness of the defendant’s actions.

While plaintiffs may not always succeed in personal injury claims against municipalities or state-owned entities, Yende v COJ and JRA illustrates that liability can arise where reasonable preventative steps are not taken. To avoid such outcomes, it is incumbent upon these entities to proactively maintain infrastructure, document safety measures, and respond promptly to reported hazards, ensuring public safety and minimizing legal exposure.