MEC must pay for pot­hole crash

Fol­low­ing the ac­ci­dent, Loots spent three months in hospi­tal, af­ter which she had to go for re­ha­bil­i­ta­tion to learn to walk again

Diamond Fields Advertiser - - NEWS - PATSY BEANGSTROM NEWS ED­I­TOR

THE MEC for Trans­port, Roads and Pub­lic Works has been or­dered to pay the costs of dam­ages suf­fered by a North­ern Cape woman fol­low­ing an ac­ci­dent that hap­pened in April 2011, af­ter the driver hit a pot­hole.

Act­ing Judge Lawrence Lever handed down the or­der in the North­ern Cape High Court ear­lier this week.

He pointed out, how­ever, that the plain­tiff, Catha­rina El­iz­a­beth Loots, con­trib­uted to the harm she suf­fered by not wear­ing a safety belt at the time and that the ex­act ap­por­tion­ment of dam­ages aris­ing from her fail­ure to wear a safety belt was re­served for the de­ci­sion of the court that de­ter­mines the plain­tiff ’s quan­tum of dam­ages.

The ac­ci­dent hap­pened on April 10, 2011 on the R31 be­tween Ho­tazel and Ku­ru­man. Loots said in her claim that her ve­hi­cle hit a pot­hole, where­after she lost con­trol of her ve­hi­cle, which then rolled.

Loot’s le­gal team ar­gued that the MEC for the Depart­ment of Road and Pub­lic Works had a le­gal duty to en­sure that the con­di­tion of the R31 was such that it could safely be utilised by road users or al­ter­na­tively ap­pro­pri­ate road signs should have been erected to warn users of the R31 of any dan­ger­ous con­di­tions on the road so that they could take ap­pro­pri­ate ac­tion to avoid them.

The de­fen­dant in the case (the MEC) de­nied that the ac­ci­dent was caused by a pot­hole, with his le­gal team ar­gu­ing that it was caused by the neg­li­gence of the plain­tiff in that she had failed to abide by the gen­eral rules and reg­u­la­tions of the road.

While the MEC ad­mit­ted that the R31 was a pub­lic road and that he had a pub­lic duty and re­spon­si­bil­ity to main­tain the pro­vin­cial roads, he added that this re­spon­si­bil­ity was sub­ject to hu­man and fi­nan­cial re­sources.

Ac­cord­ing to Loots, on the day in ques­tion, which was a Sun­day, she was driv­ing her ve­hi­cle, a Land Cruiser bakkie, on her way to Bloem­fontein as she was tak­ing her son and daugh­ter back to school.

She was not in a hurry and as she ap­proached Ku­ru­man it started rain­ing. She added that there were no road signs warn­ing her of pot­holes and she did not see the pot­hole con­cerned as it was rain­ing at the time. There were also no fur­ther re­duc­tions in the speed limit.

Fol­low­ing the ac­ci­dent, Loots spent three months in hospi­tal, af­ter which she had to go for re­ha­bil­i­ta­tion to learn to walk again. She has since been back to hospi­tal al­most an­nu­ally for op­er­a­tions and pro­ce­dures re­lated to the con­se­quences of the ac­ci­dent con­cerned.

She ad­mit­ted that she was not wear­ing a safety belt at the time.

Jaco Roelofse, who was in the depart­ment’s em­ploy at the time, tes­ti­fied that due to the min­ing boom at the time there was a great deal more pres­sure on the road sys­tem, which to­gether with mine-re­lated traf­fic place a ma­jor strain on the road in­fra­struc­ture.

He added that at the time of the ac­ci­dent there were some prob­lems on the rel­e­vant stretch of road with edge breaks and drop-offs in the level be­tween the gravel shoul­der and the tarred sur­face of the road and there was a pro­ject un­der way to re­pair the road.

Ac­cord­ing to him, R9 mil­lion had been bud­geted for this pro­ject, of which R3 mil­lion was to be pro­vided by the pro­vin­cial depart­ment and R3 mil­lion each by As­samang and BHP mines.

He con­firmed also that the pot­hole con­cerned had been there for at least three weeks and in this time it had not been re­paired by the depart­ment. He reaf­firmed in re-ex­am­i­na­tion that the pot­hole con­cerned should have been a pri­or­ity and he could not rule it out as be­ing the cause of the ac­ci­dent.

Act­ing Judge Lever stated that on his as­sess­ment of the ev­i­dence, he ac­cepted as es­tab­lished facts that there was a pot­hole on the rel­e­vant stretch of road and that it was the cause of the plain­tiff los­ing con­trol of her ve­hi­cle re­sult­ing in the ac­ci­dent. The pot­hole con­cerned caused the rel­e­vant por­tion of the tarred road sur­face to be less than three me­tres wide and there were also no warn­ing signs on the rel­e­vant stretch of road warn­ing of the pres­ence of pot­holes.

Turn­ing to the “wrong­ful­ness” on the part of the de­fen­dant, Act­ing Judge Lever pointed out that the MEC had con­ceded in the plead­ings that he had the duty to main­tain the pro­vin­cial roads.

“The de­fen­dant is the po­lit­i­cal head of the depart­ment charged with main­tain­ing the pro­vin­cial pub­lic roads. A bud­get is al­lo­cated and peo­ple are em­ployed by such depart­ment to ef­fect such obli­ga­tion to main­tain the pro­vin­cial roads. In ex­er­cis­ing this obli­ga­tion to main­tain the pro­vin­cial pub­lic roads, pub­lic and le­gal pol­icy would place a ‘le­gal duty’ on the de­fen­dant not to act neg­li­gently.”

He said the fact that there was a pro­ject in which the de­fen­dant and two mines that utilised the road had pooled their re­sources to re­pair the road and deal with prob­lems on the road was in it­self an ac­knowl­edge­ment that there were prob­lems on the R31.

“In the plea filed on be­half of the de­fen­dant, the de­fen­dant pleaded that he had nei­ther the fi­nan­cial nor the hu­man re­sources to re­pair the pot­hole con­cerned. The ev­i­dence showed that the depart­ment al­lo­cated R3 mil­lion to the pro­ject and that two in­de­pen­dent mines each con­trib­uted R3 mil­lion to the pro­ject, giving a com­bined bud­get for the pro­ject of R9 mil­lion.

“The ev­i­dence showed that a con­trac­tor was ap­pointed and that it was left to the con­trac­tor to pri­ori­tise the ur­gent re­pairs. At the time that the ac­ci­dent oc­curred, the re­pairs were be­ing done to the first 30km from Ho­tazel to­wards Ku­ru­man. In other words, from the other end of the road to where the rel­e­vant pot­hole was lo­cated. There was no at­tempt to ex­plain why that was the start­ing point. There was no at­tempt to ex­plain why the re­main­der of the road apart from the first 30km from Ho­tazel was not mon­i­tored for pri­or­ity re­pairs.”

He stated fur­ther that if cost was re­ally an is­sue, “then at the very least the de­fen­dant was re­quired to erect ad­e­quate warn­ing signs to al­low road users to ad­just their driv­ing ac­cord­ingly”.

“The erec­tion of two or three road signs would surely not be be­yond the bud­get of the pro­vin­cial depart­ment,” Act­ing Judge Lever stated.

“In the light of all of th­ese is­sues, I am forced to the con­clu­sion that the de­fen­dant’s con­duct in fail­ing to ef­fect the re­pair of the rel­e­vant pot­hole or his fail­ure to erect ap­pro­pri­ate road signs warn­ing of the dan­ger posed by the said pot­hole was neg­li­gent.”

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