Windvogel v Mpumalanga Provincial Government and Others (22040/2010) [2014] ZAGPPHC 485 (10 July 2014)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION. PRETORIA

CASE NUMBER: 22040/2010

DATE: 10 JULY 2014

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

In the matter between:

DR MEGAN R WINDVOGEL.....................................................................................................PLAINTIFF

and

MPUMANLANGA PROVINCIAL GOVERNMENT......................................................1st DEFENDANT

PROVINCIAL DEPARTMENT OF ROADS AND

TRANSPORT, MPUMALANGA.......................................................................................2nd DEFENDANT

MEC FOR ROADS AND TRANSPORT,

MPUMALANGA PROVINCIAL GOVERNMENT........................................................3rd DEFENDANT

PROVINCIAL DEPARTMENT OF LOCAL

GOVERNMENT, TRAFFIC CONTROL AND

SAFETY, MPUMALANGA................................................................................................4th DEFENDANT

MEC FOR LOCAL GOVERNMENT, TRAFFIC

CONTROL AND SAFETY, MPUMALANGA

PROVINCIAL GOVERNMENT........................................................................................5th DEFENDANT

MACP CONSTRUCTION..................................................................................................6th DEFENDANT

MTEMA MASHAO CONSULTING ENGINEER...........................................................7th DEFENDANT

MACP CONSTRUCTION......................................................................................................THIRD PARTY

MTEMA MASHAO CONSULTING ENGINEER..............................................................THIRD PARTY

CORAM: DE VRIES AJ

JUDGMENT

1. In this matter Plaintiff instituted an action against seven Defendants for payment of the sum of R 5 800 000.00 together with interest on the said sum at a rate of 15.5% per annum from date of service of summons and costs.

2. The first 5 Defendants are all government departments or officials thereof, of the Mpumalanga Provincial Government.

3. The 6th Defendant is the contractor who undertook certain road works in terms of an agreement entered into between the Mpumalanga Government and the 7th Defendant, a Consulting Engineer, appointed to supervise and oversee the 6th Defendant in the execution of its obligations in terms of the said agreement.

4. The Plaintiff's claim arises from an incident which occurred on the 4th of May 2008 on a public road between Kaapse Hoop and Ngodwana, when the Plaintiff, according to her particulars of claim, lost control of the vehicle she was driving, left the road and went down into an embankment and crashed into the trees below the level of such public road. The Plaintiff sustained severe physical injuries in the incident, giving rise to the various heads of damages claimed.

5. It is alleged that as regards the first 5 Defendants, which are organs of State and/or public bodies or officials of public bodies which are entrusted with the power and duty to control, police, regulate, service, upgrade, repair, reseal, reconstruct and maintain road within their area of responsibility and jurisdiction, including the public road where the incident occurred.

6. It is further alleged that the 6lh and 7th Defendants were subject to the supervision and control or right of control of the 1st to 5th Defendants to the extent that the 1st to 5th Defendants are vicariously liable for the acts or omissions of the 6th and 7th Defendants.

7. Included in the Plaintiff’s claim, is a claim for damage occasioned by the destruction of the Plaintiff’s motor vehicle, a Volkswagen Polo, and the balance of the claim, being in respect of physical injuries sustained by the Plaintiff in the incident which for the reasons as are more fully set out hereunder, are not dealt with in this judgment.

8. The Plaintiff relies on the alleged negligence of the Defendants in one or more of the following respects:

8.1 They failed to act with the due and requisite skill, application, attentiveness, consideration, responsibility, insight and/or circumspection;

8.2 They failed to avoid or to prevent the accident when by the exercise ot reasonable care they could, and should have done so;

8.3 They failed to provide or erect a crash barrier which would have prevented the vehicle from going down the embankment and crashing into the trees below the level of the public road;

8.4 They placed or left loose gravel on the road surface;

8.5 They erected or furnished or put out no warning signs or inadequate warning signs;

8.6 They omitted to erect and maintain appropriate warning road signs;

8.7 They omitted to make and keep the public road safe for use or travel by members of the public and more particularly motorists and other users invited and permitted to use the public road;

8.8 They failed to upgrade, service, maintain, reconstruct and/or repair and reseal the public road in such a manner so as not to cause danger or potential danger to motorists or other users of the road or to minimize such danger or potential danger;

8.9 They failed to warn motorists and other users of the road of any danger or potential danger along the public road;

8.10 They created a hazard and source or potential source of danger for motorists on and users of the public road;

8.11 They culpably failed to keep the public road free from hazards and sources or potential sources of danger;

8.12 They omitted to engender a safe environment along the public road but unreasonably created or engendered an unsafe environment along the public road.

9. The 1st to 5th Defendants defended the action, and they were jointly represented at the hearing of this matter by counsel, instructed by the State Attorney.

10. Similarly the 6th and 7th Defendants oppose the action instituted by the Plaintiff and each was individually represented.

11. At the inception of this matter, I was requested to make an order in terms of Rule 33(4) which order was made in the following terms:

11.1 The issue of quantum and liability are separated;

11.2 The question of quantum is postponed sine die;

11.3 Only the question of liability is to be decided at this trial, which issue, will exclude the effect of the alleged absence of a seatbelt, and the effect thereof on the Plaintiff’s injuries, as well as the effect of the alleged absence of a guardrail on Plaintiff’s injuries, which will stand over for adjudication at the quantum trial.

12. At the inception of the matter it was pointed out that, in respect of the summaries of expert evidence, given by the Plaintiff, Mr. Edward Klein and Mr. Braam van Staden, the time limits contained in Rule 39(9)(b) had not been complied with and that the Defendants, but more especially the 6th and 7fh Defendants, who had not briefed experts, were prejudiced thereby. In addition thereto, a fairly voluminous document had been discovered by the Plaintiff one week prior to the hearing, and the Defendants felt that they were prejudiced by the late discovery and production of the said document.

13. It was common cause that the first summary given in respect of the evidence to be tendered by Mr. Edward Klein had been given timeously, but that the second summary had not been delivered ten clear days prior to the hearing of the matter, and that there had been non-compliance with the rule in so far as that is concerned. The report by Braam van Straten was the first report by that expert and that that was similarly late.

14. It was argued on behalf of the Plaintiff, that the second report by Klein, was merely a refinement of his earlier report to be more concise and accurate in regard to the measurements made by Roodt.

15. Klein is a Civil Engineer, and in his report sought to do an accident reconstruction and ventured an opinion as to how the incident had occurred. Mr. Braam van Staden being a surveyor had merely carried out certain measurements regarding the typography of the road on which the incident had occurred.

16. It was argued by the legal teams for the Defendants that the provisions of Rule 36(9) (b) are peremptory and that the Plaintiff was precluded from leading this evidence. Pursuant thereto, and on the basis that the Plaintiff’s contention was that the second report by Klein was merely a refinement, that the Plaintiff would be precluded form relying and leading evidence by Klein outside the ambit of the first report, which was timeous. As regard the second report, no opinions were expressed therein, merely measurements, and for that reason, Rule 36(9) (a) and (b) was not applicable in respect of this evidence and that same would be allowed.

17. After these preliminary points had been disposed of, the matter proceeded on trial.

18. The first witness to be called by the Plaintiff was a Mr. McCarthey, whose evidence was to the effect that he had been employed at Ngodwana for the period 1991 to 1993 and then re-employed during 1997 where he was still employed to date.

19. He had met the Plaintiff, a medical doctor, during the course of 2007, and they were on friendly terms.

20. He had been in contact with the Plaintiff on the day of the incident, the 4th of May 2008. During the course of that morning the Plaintiff had informed him that she was going to take lunch at Kaapse Hoop with the sister, who worked with her in the practice, and her husband. He indicated that he did not intend joining her. At approximately 17h00 on the day in question he received a call from her saying that she would be departing Kaapse Hoop and would call on him on her return to Ngodwana Village. By approximately 20h00 on that day, she had not arrived and he was worried about her safety. He decided that if she had not returned by the next morning, he would take steps in order to ascertain her whereabouts.

21. His working hours incepted at 07h30 and hers at 08h00. When she had not arrived at her workplace at that time the next morning, he decided to go in search of her. He travelled on the road and found her vehicle where it had left the road and came into contact with trees some distance away from the roadway.

22. He indicated that the road surface was full of loose gravel and explained that as the vehicles had travelled over the loose gravel lying on the tar surface, the loose gravel had become concentrated immediately to the left and the right in each lane of where vehicles tyres would come into contact with the tar surface, as well as in the middle between the vehicles wheels.

23.When they found the Plaintiff, she was lying in the immediate vicinity of the vehicle. She was disorientated and unable to speak. An ambulance had been called and she was transported from the scene of the accident to a hospital in Nelspruit.

24. He said that the road had been under construction since October of the previous year. All persons making use of the road were aware of the loose gravel which had been deposited on the road, and that numerous complaints had been made in respect thereof.

25. He further indicated that at travelling at a speed of 80km per hour from Kaapse Hoop it would have taken the Plaintiff approximately 15 minutes to reach the scene of the incident. As regard the speed limit, this witness denied that there were any boards indicating a speed limit. There were no road signs indicating constructions, no painted lines on the road, and that there was loose gravel all over the road.

26. He further indicated that the Plaintiff had used the road on a number of occasions. She had travelled with him in his car when he took her to Kaapse Hoop to introduce her to people who lived in that vicinity. He said that the road was dangerous and that it had to be respected. He had not seen any skid marks on the road surface. There were marks on a curb indicating where the vehicle, that the Plaintiff was driving, came into contact with that impediment before going over the embankment and ending up in the trees below. There was no barrier to prevent vehicles from leaving the road.

27. He indicated that, when conditions were favourable, one should not exceed travelling at a 100km per hour and that when the road was wet and/or misty, that one's speed should be decreased commensurately.

28. The witness was shown several photographs of which notice has been given in terms of Rule 36(10) indicating the typography of the road, and where the Plaintiff's vehicle had come to a rest, inter alia, and he had indicated that these photographs had been taken by a Mrs. Rosslee.

29. The incident had taken place approximately 5 km from Ngodwana Village, where this witness stayed.

30. The second witness called on behalf of the Plaintiff, was the Plaintiff herself. She indicated that she was a General Practitioner, and had obtained the degree MBCHB at the University of Pretoria during 2003.

31. She had intermittently worked at the practise during 2006. She was the owner of a Volkswagen Polo, as described in the pleadings. She was referred to a computer printout, showing the service history of the vehicle, which indicated that the vehicle had been attended to regularly, and had an odometer reading of 61 000.00km approximately at the time when it had last been attended to, shortly before the incident occurred.

32. She indicated that she had not, as a matter of habit, used the road on which the incident had occurred, but had used the N4 usually in order to travel to Nelspruit.

33. She had however at least travelled on the particular road, once per month, in order to confer with Mrs. Rosslee regarding problems and suggestions regarding the medical practise. On those occasions she was not a passenger, as was the case when she travelled in the company of McCarthey, but used her own vehicle as Mrs. Rosslee, the co-worker, lived in Nelspruit and after the Friday meetings continued on that road to Neslrpuit where Mrs. Rosslee lived.

34. She confirmed in her evidence that she was aware that the road had certain inherent dangers, and that it had to be treated with respect.

35. She indicated that she had not consumed any alcohol on the day in question as she was on call. She said that she would not have travelled at the speed exceeding 80km per hour on that road, and to the best of her recollection travelled at a speed between 60 and 80km per hour. She recalled having departed the Kaapse Hoop after making the phone call to McCartehy, not immediately but a short while thereafter.

36. She remembered turning onto the particular road but suffered from amnesia and could not recall her journey or the incident giving rise to her vehicle leaving the road at all.

37. Her next recollection was three days later when she found herself in Hospital. Her evidence was that there were no road signs indicating that the road was under construction, there were no lines painted on the road demarcating the lanes and that there was loose gravel on the road. She was aware of all these problems as she had travelled the exact same road on her way to lunch and on prior occasion for the meetings with Mrs. Rosslee.

38. During examination it appeared that she had some faint recollection of trying to walk after the incident had occurred and that she had fallen down. Apart from that vague recollection, she was unable to give any version of what exactly had occurred leading her to lose control over the vehicle and exiting the road at the pint that she did.

39. After the incident she had returned to the practise during January of 2009, where she initially worked for 1 hour per day until she was able to resume her duties fully by approximately May of 2009. She is presently employed in the position that she occupied prior to the incident.

40. It was put to her during cross-examination that her vehicle could not have ended up at the point where it came to rest and unless she had been travelling at a speed of 150km per hour. She denied that she had ever travelled a speed exceeding a 120km per hour at any time.

41. It was further put to her that there were wild horses in the vicinity, and that the reason for her leaving the road could have been that she was confronted by such horse and that this may have led to her leaving the road. She conceded that this was a possibility.

42. It was further put to her that it was equally possible that a vehicle had moved into her path of travel and that she had left the road in order to avoid such a vehicle. She also conceded the possibility thereof.

43. During cross-examination she advances, as a reason why she had not consumed any alcohol on that day, that she was on standby. During cross-examination it appeared that there was no other doctor at any time, and that the reason for being on standby was in support of against that background.

44. She further attested that it was dusk at the time when the incident occurred. It was further put to her that at the time when the collision occurred the road works were no longer in the vicinity of where the incident occurred and that there would have been no reason to have erected road signs warning of any danger at that particular point.

45. She was unable to comment on the amount of gravel/’’klippies" on the road. It was further put to her that the absence of such signs was irrelevant as she was well conversant with the condition of the road due to her previous travels in that area. She had further been warned of the condition of the road, and she felt that the road should be treated with some respect.

46. She attested that she never travelled at speeds in excess of 80km/hour on that road, and said that her average speed was 60-80km/hour when using that road. The evidence by the Plaintiff was further that she is unsure as to mist at the exact point in the collision but that she saw the mist moving up from Ingodwana prior to her departure from Kaapse Hoop.

47. The third witness called on behalf of the Plaintiff was Mrs. Stella Mashigo. She gave evidence not voluntarily, but after she had been subpoenaed as a witness to court. She attested to the fact that her company had received a contract to act as occupational and safety advisers on the project, independently of the contracters own health and safety employees.

48. She holds a diploma in occupational health and safety and had attended the site meetings, and initially had visited the construction site as it moved along the road, on a weekly basis, and had attended site meetings at least once per month.

49. She was taken through the various site meetings, where she had from time to time remarked that the necessary prescripts in this regard were not strictly adhered to.

50. It was part of her duties to ensure that the persons working on the road did so under safe conditions and also to safeguard road users who would be using the road during the period of construction. She reported to the engineer in charge of the construction, who was also independent of the contractor, and he would in turn report her findings to the Department of Roads.

51. In the main, she indicated that whenever she had raised non-compliance, these had been rectified shortly thereafter. She denied that there was any blanket of aggregate across the road, as had been described by the witness, Mrs. Roslee.

52. It was put to her that the construction had taken place in sections of approximately 500 metres. There had only been one incident reported of a car leaving the road during the entire time period that the construction had been under way and it was that of the Plaintiff.

53. It was further put to her that it was a busy road, and had been used by hundreds of motorists during that period. She was in agreement with this proposition.

54. It was part of her supervisory function as safety officer that the road surface would be clear of gravel prior to being opened for use by the public. She further attested to the fact that, at the time when the road works were in progress, proper road signs had been erected. These had also been mentioned from time to time in the site meetings in regard to the adequacy and size thereof.

55. It was further put to her, that at the time, there were no road signs at the place where the collision occurred and that it was unnecessary for any road signs to be there because the incident had occurred at an appreciable distance away from where the contractors had been working. She was in agreement therewith. She had not at any time seen a large amount of stones on the road.

56. The next witness for the Plaintiff was one Mrs. Rosslee. She attested to the fact that at the time she was the personal to the Plaintiff, also employed by Ocsa at Ingodwana. Regular meetings had been held, predominantly on a Friday afternoon between her and the Plaintiff, and these had taken place at Kaapse Hoop. She had taken some of the photographs used as exhibits by the Plaintiff on the Monday, immediately after the incident. She together with McCarthey found the Plaintiff off the road. An ambulance had been called and transported the Plaintiff to Hospital. The photographs had been taken with her cell phone. She said that on photograph 3 of bundle 5, she had scrapped the loose gravel with her shoe, and that the line depicted thereon was as a result of this.

57. She had further attested that some years back she had been employed by an assessor, and was aware that photographs could be of some importance in explaining to the Plaintiff what had occurred leading to the incident.

58. She attested to the fact that there was a thick blanket of gravel “gruis” over the entire road. She did not notice, as had been mentioned by McCarthey in his evidence, that the gravel had been dislodged by the wheels of vehicles and had formed heaps to the side of where the tyres of vehicles used in the road had come into contact with the road, and that created heaps immediately to the left of the left hand tyre, in the middle between the left and the right hand tyre, and immediately to the right thereof, in both lanes.

59. She had, as a matter of course, used the N4 and not the Kaapse Hoop road, but conceded that when the meeting had been held at Kaapse Hoop, being resident in Nelspruit, she would continue with that road to her home in preference to travelling back to Ngodwana to get on the N4 for that purpose.

60. She had never at any stage seen any road signs, warning of construction activity on the road apart from one very large sign which had been erected at the beginning of the road, and during the inception of the construction. She was however aware, as everybody was, that the road was under construction for several months.

61.She described the blanket as being layers of stones, at least three stones deep. It was put to her that there were material differences between her evidence, the evidence of McCarthey and Mashigo with regard to the presence of gravel on the road.

62. It was out to her that none of the photographs indicated the presence of this loose gravel in their depiction of the road surface. She further attested to the fact that there were no skid marks on the road. The witness further attested to the fact that she had signed an affidavit which had been drawn by the attorney for the Plaintiff and confirmed the content thereof.

63. During cross-examination she further indicated that she had contacted the attorney while the Plaintiff was still in hospital with a view to assisting the Plaintiff.

64. The next witness called on behalf of the Plaintiff was Mr. Braam van Straten. He attested to the various gradients in the road, the rate of four, and the degrees of banking on the road.

65. His measurements have been made by the accident reconstruction experts for the Plaintiff and the Defendant, and his findings did not differ significantly theirs.

66. He did not express any opinion regarding the manner in which the incident had occurred and his evidence in the main was not challenged

by any party to the proceedings.

67. Thereafter the Plaintiff called Mr. Klein, a civil engineer. He qualified himself as an expert witness by way of his curriculum vitae on the first page of his report to be found on page 17 of the first divider in volume 5, and page 20A of the same document.

68. His evidence was that he was expert in, predominantly, the construction of roads, and denied that he was an expert in accident reconstruction although he had had some experience of how collisions had occurred during his many years in the construction industry.

69. He referred to the photographs in the bundle, indicated that there had been an improper surfeit of aggregate use during the construction of the road. He said this by way of reference to the photographs showing aggregate which had been deposited off the shoulder of the road, but in the immediate vicinity thereof, 80% of which so he indicated, had not been covered with any bitumen, and this led him to the conclusion that the incident could have been caused, and probably was caused by loose aggregate on the road.

70. He repeatedly, in referring to the photographs taken at the scene of the accident, averred that it was clear from these photographs that the aggregate was loose. He was unable to indicate on what basis this could be seen from the photographs. No logical explanation was given by him of these observations and to this extent his evidence was unsatisfactory.

71. He further attested to the fact that a guardrail should have been erected in the vicinity where the Plaintiff’s vehicle had left the road. During cross-examination by Mr. Mills SC, on behalf of the first 5 Defendants, he conceded that with reference to the geometries road design manual, which is applicable to road construction, that where there is a fall of 4 metres or higher, the erection of such barriers would be “normally justified”, and not obligatory. This would further be applicable where there is a curve with a radius of less than 300 metres and no recovery area.

72. It is common cause that there was no recovering area where the incident occurred but that the radius was in excess of 300 metres. He was therefore unable to indicate why it would have been obligatory for the erection of such a guardrail at the place where the incident occurred.

73. He had not been at the scene of the collision at any time prior to February of 2014, when he had conducted an inspection in loco. It was put to him that he was not in a position to controvert the evidence to be led by Barry Grobelaar, who was an expert in accident

reconstruction in regard to the reasons why the incident had occurred. He conceded this.

74. The main thrust of his evidence is contained in his reports which are part of the record and not repeated herein.

75. Thereafter the Plaintiff called Conraad Lotter, a motor accident reconstruction expert. His opinions are contained in the bundle of expert reports together with joint reports and the minutiae of his evidence will therefore not be repeated.

76. What is clear from his evidence taken as a whole, is that, based on the evidence of excess aggregate on the road, his opinion was that the vehicle driven by the Plaintiff had slipped on the road, and that she had probably over-corrected, and as a result of that had left the road to the right, explaining the expected deviation to the left rather than to the right by virtue of this over-correction.

77. Despite a rigorous cross-examination pointing out that he had based his opinion on evidence obtained from others, that this evidence had changed materially during the course of the trial, his opinion remained unchanged. The Plaintiff thereafter closed her case.

78. Only two witnesses were called on behalf of the Defendants. The first being Mr. Barry Grobelaar, a mechanical engineer and accident

reconstruction expert. The summary of his evidence, as is the case with Lotter, is contained in the expert notice, and similarly to that of Lotter, his opinion after cross-examination remained unchanged and differed from that of Lotter to the extent that he was of the view that the Plaintiff's vehicle would not have skidded on the aggregate at the speed, 60 - 80km/h, and taking into account the embankment of the road together with the radius of the curb.

79. To a certain degree his evidence, was to my mind, more credible to the extent that he had actually visited the scene and driven over the road or be it some years later, and had experienced the reaction of a vehicle, taking into account the typography of the road, the embankment, the changes in altitude, and the rate thereof by physically driving thereon.

80. Although he was invited to do so, he expressed no theory as to why the incident had occurred, saying that there were to many possibilities, taking into account the prevailing road conditions and other factors which could have led to the Plaintiff's vehicle leaving the road for him to have any definite views in this regard.

81. The last witness called was Mr. Modipa, who gave evidence on behalf of the 6th Defendant. He was the Managing Director of the 6th Defendant and had on various occasions, during the course of the construction, at least once a week, been on site.

82. His evidence was that the aggregate used in the construction of the road, was first dipped and mixed with a bitumen coating and thereafter spread on the road by way of a computerised spreader.

83. The road was done in sections of approximately 500 metres at a time. The road would be partially closed as a result of the construction, to the extent that vehicles were diverted to the side of the road on which the construction was taking place, and thereafter the process would be repeated on the other side of the road.

84. It was further his evidence that the construction, as regards the road surface, took place in the following manner:

84.1 All potholes or indentations in the road were firstly repaired;

84.2 Thereafter a coat of bitumen was sprayed on the road surface followed by another vehicle releasing the precoated aggregate, thereafter followed by a mechanical contrives, which swept excess aggregate off the road, normally diverted to the side of the road where it was manually collected;

84.3 If necessary, a second sweep of the road surface would be carried out to ensure that there was no loose aggregate which could inflict damage to passing vehicles by way of chipping the body work or leading to the loose aggregate coming into contact with the windshields of vehicles.

85. His evidence was that road signs were displayed during the course of their construction, and a resurfaced section would not be open for road use until cleared by the engineer. He denied that the road had ever been open to the public with an excess of aggregate on the road surface. He also attested to the fact that several weeks had passed after road building had ceased due to temperature conditions in winter, and that there was no construction in progress at the time when the incident occurred.

86. Against this background, bearing in mind, that there was no direct evidence before Court regarding how it had come about that the Plaintiff lost control of her vehicle and plunged down the embankment whether the Plaintiff has discharged the onus resting upon her in order to found her claim against the Defendants herein.

87. It was submitted on behalf of the Plaintiff that the Court should come to a finding that such negligence had been proven on the following basis:

87.1 That there was no evidence indicating what the speed limit on the road was;

87.2 That there were no road signs warning motorists of a turn in the road;

87.3 That there were no signs indicating what the critical speed around this corner would be;

87.4 That there were no barriers erected nor a run-off area constructed at the turn in the road;

87.5 That there was no signage indicating that there were unattended animals in the road;

87.6 That there were no signs indicating that the road is situated in an area where thick mist occurs;

87.7 That Mr. Mayemu, the employee of the 2nd Defendant, had failed to communicate the dangerous conditions prevailing on the road to the 2nd Defendant.

87.8 As regard the 6th and 7th Defendants, they were negligent in that they had caused a surfeit of aggregate to be used during the road construction, and that they had not properly brushed the surface in the vicinity of the collision;

87.9 That they had failed to erect warning signs, indicating that there was loose aggregate on the road;

87.10 That the 7th Defendant had allowed the road to be used without ensuring that it was safe to do so.

88. The entire underpinning of the road of the submission in regard to a finding in favour of the Plaintiff is that the incident was caused as a result of a surfeit of aggregate on the road surface.

89. Taking into account the evidence of the experts, there is nothing in the evidence that would lead me to prefer the evidence of Lotter above that of Grobelaar, and Grobelaar is of the view that the presence of loose aggregate alone could not have led to the incident occurred in the manner and at the place that it did.

90. This Court is faced with the same difficulty as faced by Goldblatt J in the matter of Naidoo v Tronsnet Limited an Others an unreported judgment with case number 96/7396, where on page 20 the following is said:

91. "Whilst all the evidence thus suggest that there is a strong possibility that the condition of the road played a part in the accident, I am not satisfied that I am able to say what part it played or how the accident occurred. In my opinion there is insufficient evidence for a Court to come to any truly informed view as to the cause of the accident, and that if I did so my decision would be based, more on speculation than on fact. In the circumstances I am not satisfied that the Defendant had discharged the onus resting upon it."

92. The difficulty that I am presented with in this regard, is illustrated by the judgment of Hancke R in the matter of Beuroin t/a Toptrans Transport v Regering van die RSA 2001 (4) SA 921. The evidence was that the road was a busy road which had been used by a many motorists during construction and in the period after

construction had ceased up to the date on which the incident had occurred. There was no reportage of any other difficulties that had been experienced during the road construction nor of any other vehicles leaving the road as a result of an accumulation of a surfeit of aggregate at the place where this incident occurred.

93. In addition thereto the evidence of the amount of aggregate on the road differs so materially in the evidence of the witnesses called on behalf of the Plaintiff that it is difficult to come to a finding that an over-accumulation of aggregate at the place where the incident occurred existed as a fact.

94. If one were to assume, in favour of the Plaintiff, that this was indeed so, the experts differ in regard to the effect that this would have had, and the evidence attended by Grobelaar would tend to indicate that it is not possible for the Plaintiff’s vehicle to have slipped causing her to lose control as a result of that fact alone.

95. On this basis some other intervening factor appears to have been the cause of the incident. What this was, whether it was the speed at which the Plaintiff was travelling, the presence of an animal, some unexpected hazard on the road or a manoeuvre executed by the Plaintiff on the road surface can only be the basis of speculation.

96. On the evidence it is clear that the Plaintiff was well aware of the prevailing conditions on the road, and the presence of road signs, which would probably have assisted someone unfamiliar with the road, could in my judgment not have attributed in any manner to her leaving the road.

97. The absence of a barrier, which may have precluded the Plaintiff's vehicle from plunging into the surrounding area, doesn't in itself, on the evidence before this Court, constitute circumstances in which it would be correct to impose a positive obligation on the Defendants to have erected such a barrier at the place where the incident occurred. See in this regard the judgment of Marais AJ in the matter of Cape Town Municipality v Bokkerud 2000 (3) SA 1041 SCA paragraph 28 and 31:

“28. A minuscule and underfunded local authority with many other and more pressing claims upon its shallow purse, and which has not kept in repair a little used lane in which small potholes have developed which are easily visible to and avoidable by anyone keeping a reasonable look-out, may well be thought to be under no legal duty to repair them or even warn of their presence. A large well-funded

municipality which has failed to keep in repair a pavement habitually thronged with pedestrians so densely concentrated that it is extremely difficult to see the surface of the pavement, or to take evasive action to avoid potholes of a substantial size and depth, may well be under a legal duty to repair such potholes or to barricade or otherwise warn of them. There can be no principle of law that all municipalities have at all times a legal duty to repair or to warn the public whenever and whatever potholes may occur in whatever pavements or streets may be vested in them."

“31 Per contra, it would, I think, be going too far to impose a legal duty upon all municipalities to maintain a billiard table-like surface upon all pavements, free of any subsidence or other irregularities which might cause an unwary pedestrian to stumble and possibly fall. It will be for a Plaintiff to place before the court in any given case sufficient evidence to enable it to conclude that a legal duty to repair or to warn should be held to have existed. It will also be for a Plaintiff to prove that the failure to repair or to warn was blameworthy (attributable to culpa). It is so that some (but not all) of the factors relevant to the first enquiry will also be relevant to the second enquiry (if it be reached), but that does not mean that they must be excluded from the first enquiry. Having to discharge the onus of proving both the existence of the legal duty and blameworthiness in failing to fulfil it will, I think, go a long way to prevent the opening of the floodgates to claims of this type of which municipalities are so fearful.”

98. No evidence was led by the Plaintift regarding the incidence of places on road in South Africa where such barriers would have to be erected were a Court to find that such a legal duty existed, or what the cost implication would be on a local municipality or other authorities under whose control these roads fall. It may well be that this would be an insurmountable financial burden and be totally unreasonable. I cannot therefore find that such an obligation existed.

99. In this matter a postponement occurred at a previous occasion, and the costs were reserved. Counsel were in agreement that the apposite order in respect of the wasted costs of that day should be that each party are ordered to pay their own costs.

100. By virtue of what has been set out herein before, the 1st to 7th Defendants are absolved from the instance, and the Plaintiff is ordered to pay the 1st to 7th Defendants’ costs, including the costs of two counsel, and the costs of the expert Mr. Barry Grobelaar.

De Vries AJ