McIntosh v Premier of the Province of KwaZulu Natal and Another (3576/05) [2007] ZAKZHC 5 (4 May 2007)

IN THE HIGH COURT OF SOUTH AFRICA

(NATAL PROVINCIAL DIVISION) CASE NO: 3576/05

In the matter between:

ALLISTAIR POVL McINTOSH PLAINTIFF

and

PREMIER OF THE PROVINCE OF KWAZULU NATAL FIRST DEFENDANT

MEC FOR THE DEPARTMENT OF TRANSPORT

FOR KWAZULU-NATAL SECOND DEFENDANT

JUDGMENT

KRUGER J:

INTRODUCTION/BACKGROUND

On 21st August 2004 the Plaintiff and a group of friends cycled along the P164 Road leading from Kamberg to Rosetta. What was intended to have been a pleasant and uneventful ride in the country side did not materialize as the Plaintiff, whilst allegedly taking evasive action in order to avoid a pothole, was unceremoniously separated from his bicycle and seriously injured.

In consequence thereof the Plaintiff instituted an action for damages.

At the commencement of the trial and with the consent of the parties, the issues of quantum and liability were separated. The trial proceeded on the question of liability only.

The following facts are either common cause or have been admitted during the course of proceedings:

The Plaintiff was a cyclist on Road P164. Immediately preceding the accident he was cycling downhill in the direction from Kamberg to Rosetta. The pothole in question was situate in the centre of Road P164, between two barrier lines, approximately 8.6km from Rosetta. On the 29th August 2004 the pothole was measured and the following dimensions noted:

- 400mm at its widest point;

- 750mm at its longest point; and

- 70mm at its deepest point.

At the time of the accident there were no warning signs displayed. It would have cost no more than R598,50 to erect three warning signs in the area. It would have cost approximately R97,80 and taken approximately 25 minutes to repair the said pothole. The said pothole was repaired and a warning sign erected after the accident.

LEGAL DUTY

At the end of the Plaintiff’s case the Defendant made an application for absolution from the instance on the grounds that the Plaintiff had failed to establish that a legal duty existed upon the Defendants to maintain and repair roads and to ensure that no potholes existed. This argument was persisted in by Mr Mbenenge SC, for the Defendants, in his address at the end of the trial. Accordingly, he argued, the Plaintiff had failed to prove the element of wrongfulness and should be non-suited.

What the Defendant had failed to realise was that in its plea it specifically pleaded and admitted that a legal duty existed upon it to repair and maintain the roads. In response to the Plaintiff’s averment, at paragraph 4.7 of the Particulars of Claim, namely:

“4.7 The First Defendant, alternatively the Second Defendant, further alternatively their employees had control over all roads and/or road reserves within the province of KwaZulu-Natal and were obliged to manage and maintain it by virtue of the provisions of Section 3(1) and (6) of the KwaZulu Roads Act, No. 4 of 2001.” (my emphasis)

The Defendant pleaded as follows:

“5

Add para 4.7

The Defendants admit each and every allegation contained in this paragraph.”

In terms thereof, the Defendant clearly admitted the existence of the obligation or duty to maintain the roads.

In paragraphs 4.9 and 4.10 of the Particulars of Claim, the Plaintiff pleaded as follows:

“4.9 No signs, warning of the existence of potholes, existed or were displayed on the road;

The said Defendant(s) department, District Superintendent and/or persons were obliged, or alternatively, had assumed the obligation, alternatively, had a duty of care towards inter alia the Plaintiff to; - ………”

In response thereto the Defendant pleaded as follows:

“7.

Add paragraphs 4.9 to 4.10

At all material times the Defendants, in the discharge of their legal duty, alternatively the duty existing in terms of the KwaZulu-Natal Roads Act, No. 4 of 2001 …..” (my emphasis)

The aforesaid, in my opinion, clearly shows that the Defendants acknowledged, confirmed and admitted the existence of a legal duty upon it to manage, repair and maintain the roads. As such, the argument of Mbenenge on behalf of the Defendants is misplaced. The Defendants did not, either before or during the trial amend their plea by withdrawing the aforesaid admission. Consequently the Plaintiff was, in my opinion, entitled to proceed and present its case on the basis that the question of unlawfulness (the legal duty) was no longer in issue.

In Nyandeni v Natal Motor Industries Limited 1974 (2) SA 274 (Durban and Coast Local Division), Fanin J held, at 279 B:

“The purpose of pleading is to clarify the issues between the parties and a pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another.”

To uphold the Defendants argument/submission would therefore defeat the purpose of pleadings which is to bring clarity to both the Court and the parties to an action of the issues upon which reliance is to be placed and these issues which are in dispute.

In Cape Metropolitan Council v Graham 2001(1) SA 1197 (SCA) at 1203, paragraph 6, Scott JA held that an admission by the Defendant that it was under a legal duty to take such steps so as to minimise injury to road users, was in effect an acknowledgement of wrongfulness.

See also Theopholius Esterhuizen and Others v Die Lid van die Uitvoerende Raad vir Openbare Werke, Paaie en Vervoer van die Vrystaat Provinsie (Case No. 1673/2004 – OFS Provincial Division).

BREACH OF LEGAL DUTY

The issue to be decided is whether the Defendant was in breach of its legal duty and whether it was negligent in doing so and, if so, whether there was any contributory negligence on the part of the Plaintiff.

In response to the Plaintiff’s assertions that the Defendant was negligent, inter alia, in that it failed to properly maintain the road and to ensure that it was pothole free, the Defendant raised numerous defences. It pleaded, inter alia, that it did not have sufficient or adequate budgeted funds to maintain the roads in and around the area concerned; that its employees conducted weekly checks of the roads under its control and management and that it had, during the period 18 to 20 August 2004 conducted maintenance work on the road in question.

In order to substantiate the claims that it had insufficient or inadequate budgeted funds, the Defendant led the evidence of a host of its employees – viz – Mr Mohammed Adam, the General Manager, Fiscal Policy and Budget Management – KZN Provincial Treasury; Mr Wayne Evans, the Chief Manager – Finance - in the Department of Transport during the period 2002 to 2006; Mr Blake McKenzie, the Cost Centre Deputy Manager of the Pietermaritzburg Area; and Mr Bongani Mncube, a Supervisor and Trainer of “Black Top Teams”.

All the aforesaid witnesses confirmed that insufficient funds were allocated to the Department of Transport to enable it to adequately maintain and repair the entire road network in the Province. The relevance of this evidence, save that of Mr Mncube, is to be subjected to some scrutiny later in this judgment.

Mr Mncube, after some persuasion by the Court, was at pains to admit that there were adequate funds available at the time to repair Road P164. Indeed this was so as the weekly meeting was held wherein the state of the said road was discussed and it was resolved to carry out the necessary repairs along the said road. It would have been an exercise in futility, in my opinion, and a waste of much needed funds, to have gone through the entire process knowing full well that there were insufficient or no financial resources available to conduct the necessary repairs.

Mr Roberts SC, on behalf of the Plaintiff, has argued that the costs of repair of the relevant pothole was minimal. Indeed it is common cause that it would have cost no more than R97,80 to repair the said pothole. This argument however does not take into account that it is not a single pothole that is to be repaired but the entire road. It is not simply a matter of raising approximately R100 to repair a pothole whenever one appears and is noticed. The entire road surface is examined and indeed other roads in the area as well. It is the total cost of maintenance that is to be considered.

It is common cause or at least unchallenged by the Plaintiff that the Defendants employees, at their weekly meeting, identified Road P164 as one in need of urgent repair and maintenance. It is further not disputed that the work was allocated to one of the “Black Top Teams” and that they commenced work, on the said road on 18th August 2004. At the end of that week (20th August 2004) the maintenance and repair work along the entire road had not been completed and it was scheduled to resume and did resume, on the Monday of the following week.

Mr Sakhamuzi David Mbedu testified that he was employed by the Department of Transport, KwaZulu Natal, as a “Black Top Team” Leader. On or about the 18th August 2004, he was instructed by his superiors to repair Road P164. He proceeded to the said road and after examining the state of same, commenced work at the 15km to 16km area of the said road. He conceded that he had no independent recollection of the pothole in question. The following extracts of his testimony are of crucial importance.

“Mr Mbenenge: Do you during the course of your functions fix all potholes on the road?

Mr Mbedu: Yes.

Mr Mbenenge: Do you follow a particular scheme when you do that?

Mr Mbedu: Yes. … If it had not been indicated properly to me where such a pothole is along the road, I would drive throughout the road trying to ascertain is there any pothole there, because our aim – because our main purpose is to render all road users safe. If I do find places where there are serious damages, then we would work on those damages and if material remains there, we would then attend to the less serious instances. We always start with the most serious instances.”

Later he testified:

“Mr Mbenenge: Now my question is – my question is why do you start from 15 coming downwards according to the dates?

Mr Mbedu: It does happen that I will start at the end of a road and proceed backwards with it. Because our procedure is that we should start with the most serious places.

Mr Mbenenge: Are you then telling his Lordship that the most serious places were at 15 and 16 and 11 and 12?

Mr Mbedu: That is correct yes.”

(the reference to 15 and 16 and 11 and 12 is the kilometer mark along Road P164.)

When cross-examined by Mr Potgieter, on behalf of the Plaintiff the following exchange took place:

“Mr Potgieter: Now in determining the seriousness of potholes, do you refer to the manual?

Mr Mbedu: No, I do not have any booklet or document which I would consult.

Mr Potgieter: So in determining which potholes are serious or not it is left into (sic) your discretion?

Mr Mbedu: Yes, I determined that.”

When asked to explain why the pothole in question had not been immediately repaired Mr Mbedu responded as follows:

“As I have initially explained, I do not recollect this pothole. Because of its location as it is located in the centre or middle of the road and also because it is situated between the double barrier line, it means that if I just passed it and ignored it, it means that I took into account the fact of its location, that where it was located motor vehicle wheels do not run on that place on that spot.”

Accordingly, and as a result of its location, Mr Mbedu did not regard the pothole as being a serious one. He also confirmed that the pothole had been fixed at a later stage as “…. All potholes, irrespective of their location, wherever they are located, they should be closed, because if they were left unclosed and the rains fell they would get into those potholes and then damage the whole of the road.”

Mr Hattingh, a Road’s Engineer, who testified on behalf of the Defendant, confirmed that because of its locality, the said pothole could not be considered a danger to road users.

In contrast to this evidence, the Plaintiff led the expert testimony of Professor Visser and Mr Bennett who both opined that the pothole in question was a serious one and a danger to road users. Referring to a document entitled “A Pavement Management System Standard Visual Assessment Manual” Professor Visser confirmed that given the size of the pothole, as earlier described in this judgment, it would be regarded as a “degree 5” pothole. This was the highest degree that one could encounter and accordingly the pothole in question was a serious one and a danger to road users. Mr Bennett also referred to a document entitled “TMH 9”, produced by the CSIR, in describing the seriousness of the pothole in question. Given the measurements of the pothole in question, he was of the opinion that it would fall into “degree 3” which was the most serious of potholes referred to in the said document. As such, “the defect is very prominent, a dangerous situation exists and damage will occur in all cases.”

Whilst the Plaintiff’s experts may be correct in their description of the potholes and their classification of same in terms of the various documents and manuals which they referred to, they have failed to take into cognisance the locality of the pothole. At the outset it is accepted that one of the factors which contributes to the growth of a pothole is vehicular traffic. However, given the locality of the pothole, namely between two barrier lines, it is not expected that traffic would travel over that area on a regular basis.

The classic test for negligence was formulated by Holmes JA, in Kruger v Coetzee 1966(2) SA 428 (AD) at 430 E-G:

“For the purposes of liability culpa arises if –

a diligens parterfamilias in the position of the Defendant –

would foresee the reasonable possibility of his conduct injuring another in his person or property and causing him patrimonial loss; and would take reasonable steps to guard against such occurrence; and

the defendant failed to take such steps.

This has been constantly stated by this Court for some 50 years. Requirement (a)(ii) is sometimes overlooked. Whether a diligens paterfamilias in the position of the person concerned would take any guarding steps at all and, if so, what steps would be reasonable, must always depend upon the particular circumstances of each case.”

In casu, the enquiry would then be whether the Defendants, via the actions of its employees, more specifically Mr Mbedu, would foresee the reasonable possibility that the Plaintiff would suffer injury causing patrimonial loss by virtue of Mr Mbedu’s decision to prioritize the repair of the road P164. If so, would the reasonable person in his position have taken steps to guard against the loss occurring? And finally whether he failed to take such steps.

Mr Roberts has argued that the Defendant ought to have foreseen the reasonable possibility of someone being injured as a result of the pothole not being repaired. Accordingly the Defendants ought to have repaired the pothole or alternatively erected a sign or signs warning of the inherent danger. It had in his submission, failed to do so. It is not disputed that the costs of repairing the pothole or of erecting a warning sign were inexpensive. The crucial issue is whether Mr Mbedu exercised his discretion in a reasonable manner by electing to commence repair work at the 15 to 16km area and whether he could foresee that someone would suffer an injury as a result of the pothole not being repaired.

In Premier Western Cape v Fair Cape Property Developers (Pty) Ltd 2003(6) SA13 at 37 B-C, Lewis JA held:

“State officials, including employees of local authorities, and members of government at every level, are accountable for their decisions. They must, of course, perform their duties without negligence. And where they do not exercise due care, in circumstances where they owe a duty to members of the public to act responsibly and without causing loss or harm, they should be held liable for the damage that they have caused.”

I am not persuaded that in exercising his discretion as he did, Mr Mbedu acted unreasonably. Indeed, the Plaintiff himself confirmed that the condition of the road surface was in a poor state at the point where he commenced his descent and that it was necessary for him, at that stage, to ride near the centre of the road. In his own testimony he further confirmed that the quality of the road improved as he proceeded downhill. Accordingly, in my opinion, by electing to commence work in the area where there was more serious damage as opposed to immediately repairing a pothole situate in the middle of the road between two barrier lines, cannot be said to be an unreasonable action. The simple answer to the test as formulated by Holmes JA, is no. Indeed it would place too much of an onus on a diligens paterfamilias to foresee that a cyclist would blatantly ignore the rules of the road and would cycle in the middle of the road, in contravention of the road traffic signals (the double barrier line) and thus injure himself. As the first leg of the test has been answered in the negative, there accordingly would be no need for the diligens parterfamilias to take reasonable steps to guard against such occurrence and indeed there can be no question of him failing to take such steps.

As the Plaintiff has failed to satisfy the test formulated in Kruger v Coetzee (Supra) I find that the Defendants did not breach their legal duty and were not negligent.

Should I be incorrect in concluding as I have, I turn to briefly consider the conduct of the Plaintiff and whether it contributed causally to the collision.

The Plaintiff testified that when cycling downhill, he travelled approximately one (1) metre from the left of the barrier line. The reason for doing so was that at the commencement of the descent, the road had deteriorated somewhat and there were lose stones which made the extreme left hand side of the road dangerous to travel on. Notwithstanding his observation that the condition of the road improved as he proceeded downhill, he nevertheless continued travelling approximately one metre from the left of the said barrier line. As he approached the corner, he began to converge on the barrier line. He then saw the pothole and took evasive action by turning to the left. The bicycle however lost traction resulting in the collision. He explained that he realised that as he had begun to converge on the barrier line he anticipated that he would have struck the extreme left hand side of the pothole.

However, when challenged he changed this version and testified that his path of travel would have been slightly onto the barrier line and back onto the left hand side of same. After it was specifically pointed out to him that on this latter version the bicycle would not have struck the pothole, given its locality, and that there would consequently have been no need take any avoiding action, he tried desperately to convince the Court that his earlier explanation was to be preferred.

This, in my opinion, clearly shows that the Plaintiff did not keep a proper lookout and was also unsure of the path of his travel. There is no doubt that he saw the pothole but being unsure of where he was travelling on the road at the time, he overreacted to his detriment.

A further unsatisfying feature of his evidence was that he was unable to explain why he did not adhere to the basic rule of the road pertaining to cyclists. His explanation that one is entitled to use the entire road surface (even the incorrect side of the road) is disingenious to say the least. Notwithstanding his alleged vast experience of cycling, he further claimed to be unaware of the rules of the road pertaining to cyclists, viz, to travel on the extreme left hand side of the road. Surprisingly this rule was however adhered to when he cycled uphill. There can be no doubt that had he not disregarded this basic rule, the collision would not have occurred.

When challenged further, he reluctantly conceded that the pothole was situate on a non trafficable portion of the road. He tried to justify his action by averring that although he was not executing an overtaking manoeuver, he was nevertheless entitled to and that it is lawful to cross over a barrier line.

Much was made of the amount of time that the Plaintiff had to react to the situation and to take the necessary action to avoid colliding with the pothole. This evidence was presented on the assumption that the Plaintiff’s path of travel would have led to a collision with the pothole. However given the uncertainty of the Plaintiff’s path of travel (on his own version), this evidence is, on my opinion, irrelevant.

For the reasons outlined above, I am of the opinion that the Plaintiff blatantly disregarded the basic rules of the road and that he failed to keep a proper lookout. The Plaintiff was clearly negligent in his actions and it was solely his negligence that led to the collision which ensued. In short, he was the author of his own misfortune.

For these reasons, I conclude that the Plaintiff’s claim falls to be dismissed.

COSTS

Ordinarily, costs should follow the cause. I do not propose departing from this rule. However, there are, in my opinion, some limitations which should be placed on the award of costs.

In their plea, the Defendants alleged that they “have insufficient or inadequate budgeted funds set aside for the maintenance of roads in and around the area concerned …..” By doing so the Defendants broadened the ambit of the trial. Notwithstanding the fact that the question to be answered was whether sufficient funds were available at that time to repair the said road, the Defendants elected to lead evidence to show that there were insufficient funds to adequately maintain the entire Provincial road network. As mentioned earlier in this judgement, the evidence clearly showed that sufficient funds existed at the time and that repair work had commenced on the Rosetta/Kamberg Road (Road P164).

By doing so the Defendants:

Unnecessarily burdened the record by the introduction of 2577 pages of documents referred to in Mr McKenzie’s discovery affidavit; In consequence of a further Rule 35(8) Notice, delivered a further 1590 pages of documentation; Handed in as exhibits “G”, “H”, “I”, “J”, “K” and “L” of which only exhibit “L” pages 2425 to2430 were relevant and

Led the evidence of Messrs Adams, McKenzie and Evans over a period of three days.

As indicated earlier in this judgment this evidence was not necessary and I am of the opinion that the Defendant ought to be disallowed the costs associated therewith.

In conclusion the following order is made:

The Plaintiff’s claim is dismissed with costs. Such costs are:

to include the costs consequent upon the employment of two counsel; to include the costs of the adjournment on the 16th March 2006; to include the costs incurred in the application for discovery dated 25th July 2006; to exclude the qualifying fees, consultations and all other costs incidental to the witnesses Messers Adams, Evans and McKenzie; to exclude the costs relating to the perusal, copying, inspection and consultations consequent upon exhibits “G”, “H”, “I”, “J”, “K” and “L”; to exclude the trial costs incurred on the 22nd, 23rd and 24th August 2006.

CAV ON: 15 December 2006

DELIVERED ON: 4 May 2007

FOR THE PLAINTIFF: G Roberts SC

A Potgieter

FOR THE DEFENDANT: M Mbenenge SC

T G Madonsela