This blog was co-authored by Brigitte Geyer, candidate attorney at Norton Rose Fulbright South Africa.

Absolution of the instance may be granted at the conclusion of a plaintiff’s case in instances where the plaintiff failed to establish a prima facie case.

In a recent unreported judgment, the Eastern Cape high court granted absolution of the instance where the plaintiff failed to adduce sufficient influence to establish that injuries sustained as a result of a slip and trip incident were caused by the wrongful or negligent conduct of the defendants.

The plaintiff instituted a delictual claim against the first and second defendants, two municipalities, for ankle fractures sustained after allegedly slipping on the pavement and sliding into the boundary of an open manhole. The claim was predicated on the alleged negligence of the defendants for leaving the manhole uncovered.

The onus was on the plaintiff to prove, on a balance of probabilities, that (a) the defendants were wrongful and negligent in failing to place a lid on the manhole and (b) if so, that a sufficient causal nexus existed between said negligence and the plaintiff’s injuries.

As for the question of negligence, the test in this instance was whether a reasonable person in the defendants’ shoes would have foreseen the reasonable possibility that leaving the manhole uncovered could result in the injury and patrimonial loss to the claimant in the circumstances and would therefore take reasonable steps to prevent this eventuality. It would furthermore have to be proved that the defendants failed to take the steps relied on.

Both defendants denied that they had any duty to construct and maintain underground drainage systems and related safety measures. During cross-examination, the claimant conceded that the second defendant had no responsibility to maintain stormwater drains and that she therefore had no cause of action against it. The claimant admitted that she did not know who the manhole belonged to and that she instituted action against the defendants on the simple basis that they are municipalities.

It could not reasonably be expected for the defendants to take steps to put safety measures in place for drainage systems that were not their responsibility to manage or maintain.

The second leg of the test pertains to the question of causation. Causation has two elements, namely the factual issue and legal causation.

The factual issue can also be described as the ‘but for’ test, or ‘sine qua non.’ In this instance, it would require of the plaintiff to show that, but for the manhole being left open, she would not have sustained the injuries to her ankles.

The issue of legal causation required determining whether a sufficiently close link existed between the wrongful act and the loss. In other words, even if the defendants were negligent in failing to cover the manhole, they may still escape liability should it be shown that the negligence did not materially contribute to the plaintiff’s injuries.

The court found that, on the evidence, there were three stages of the accident at which the injuries could have occurred.

The first stage entailed the plaintiff falling on the pavement, the second occurred after she had fallen and as she was sliding towards the manhole, without reaching the boundary of the manhole, and the third was when her leg hit the boundary of the manhole.

The court found that first two stages were factually and legally unrelated to the open manhole. The injury could have occurred during any of the three stages and there was no clear evidence that the plaintiff’s injuries were caused during the third stage specifically.

As there were no further evidence as to what specifically caused the plaintiff’s injuries, the court found that the plaintiff had failed to make out a prima facie case against either of the defendants.

The court concluded that the plaintiff’s case was poorly investigated and supported by insufficient evidence. The defendants were absolved from the instance with costs.

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