Pretoria - Those still celebrating the new year should take heed of where they walk – as the court has turned down the claim of a man who was heading to a village bar and took a short cut next to his local post office.
He fell into an uncovered storm water drain and blamed the SA Post Office, the building which was located next to the ditch. He sued them for the damages he had suffered, but while he did succeed in his first legal round, two judges on appeal said he was the author of his own misfortune, and the post office did not owe him any duty of care.
Deon Viviers was injured a decade ago, in 2012, in what was then known as Port Elizabeth. He fell into the uncovered storm water drain adjacent to the building leased by the post office.
Viviers said he was taking a short cut while on the way to the village bar on a Saturday evening.
The Eastern Cape High Court, sitting in Makhanda, at first ruled in favour of Viviers and ordered the Post Office pay him whatever damages he could prove that he had suffered.
The Post Office, however, took the matter on appeal and argued that it did not owe a legal duty to prevent harm and to ensure his safety when he took a short cut route to his village bar. It had leased its building from Telkom.
But Viviers maintained that the Post Office breached its duty towards him in that it failed to ensure that the storm water drain was covered by safety grids or similar covering, alternatively, that it failed to take steps to cordon it off.
The Post Office denied that it was in control of the property where the uncovered drain was located and pleaded that it had the responsibility to maintain only the portion of the leased premises as defined in the lease agreement with Telkom.
The court earlier found that, based on legal convictions of the community, the Post Office had the legal duty to take reasonable steps to prevent the public from harm or injury, and the uncovered drain constituted a source of danger.
In opposing the appeal, Viviers supported the findings by the trial court that the Post Office was in control of the premises and it carried on its business from the premises. As such, it was under duty to warn him of the nature of hazard and the risk involved by issuing appropriate warnings of the hazard.
Judge Nyameko Gqamana said it was common cause that the Post Office provides postal services to its customers. Viviers was not the defendant’s customer, and had no business to attend to the post office premises at that hour of the night. It is also common cause that Viviers did not attend the property to make use of postal services when the incident happened.
The judge said on Viviers’ own evidence, he ventured onto the area where the storm water drain was, purely for purposes of attending the village bar on a Saturday evening between 7pm and 8pm, outside of the business hours of the defendant.
“On his own evidence, he took the short cut to prevent himself from getting wet because it was raining. The area is not sheltered, and the plaintiff was familiar with the environment in and around the village bar.
“The plaintiff was a regular customer and patron to the bar even before the incident took place. The storm water drain was clearly visible both during the day and at night,” the judge said.
He also noted that Viviers conceded that the short cut route he took was not a normal pathway used by members of the public to access either the postal services or the entrance to the village bar.
The judge said the Post Office exercised no control over the area where the drain was located, and is thus not liable for Viviers’ damages.
In dismissing the claim, the judge also slapped Viviers with the Post Office’s legal costs.
Pretoria News