EX-addict’s claim holds no water

A self-confessed recovering drug addict from Port Elizabeth has lost his civil claim after falling into a stormwater channel in Cape Town while supposedly out looking for aspirin on a chilly winter’s night.

While Tiaan Boshoff, 40, readily conceded to being a recovering tik addict, he denied that he had been under the influence on the night of the fall in August 2014.

He claimed he had simply been on his way to the 7/11 in Durbanville to buy painkillers.

Boshoff sustained serious orthopaedic injuries and claimed damages from the City of Cape Town as a result.

While he accepted that he had been negligent in not keeping a proper lookout, he claimed the city created the source of harm and that it, too, was negligent under the circumstances.

But judge Pat Gamble found that even if it was to be accepted that Boshoff had a morbid fascination with the base of a cement channel, the pit was so large – the size of a small plunge pool – that the city would be entitled to assume a nocturnal wanderer would approach it with caution.

The calamity occurred on August 11 at the deepest base of the channel, which is more than 1.5m below ground level.

Boshoff testified in the Cape Town High Court that he had ventured out at 8pm in search of a box of aspirin.

He walked up Langenberg Road and then at some stage crossed over to the northern sidewalk to reach the convenience store.

However, instead of safely passing the channel to his left, he effectively turned too early and plunged into it.

Boshoff made much ado about the “inadequate lighting” and the cloudy, overcast conditions of the night, suggesting that certain street lights in the area had not been working.

Gamble said Boshoff’s evidence needed to be weighed against the fact that it had been the so-called super moon on the night of the accident, suggesting additional luminance.

With regard to the claims that the street lights were not working on the night, the city called senior municipal electrical engineer Coetzee van Heerden, who said that while one light might have been out of order, there was sufficient lighting from the rest of the lamp posts.

In fact, Van Heerden claimed that the lighting available at the time had been good enough to read a newspaper.

To which Gamble added: “And common sense tells one that if the path is poorly lit, one would have to proceed with extra caution.

“The real question in this case is whether it was reasonable for the city to foresee that someone might wander off a well-defined path and plunge into the channel.

“In considering the answer to that question, a court will have regard to the fact that the channel is located away from a quiet residential area, close to an open field in a locality where not many pedestrians would ordinarily be expected to venture.

“But even if that were the case, and it was reasonable to anticipate someone’s morbid fascination with the base of a cement channel, the pit is so large and visible that the city would be entitled to assume that such an adventurer would approach with caution and keep away from the danger.”

In addition, Gamble said, it was safe to assume that such a person would be guided by the bollards and keep away from the hazard.

The judge dismissed the claim with costs.