Monday, April 06, 2009

On a leisurely Sunday morning outing, you fall from your bicycle while swerving to avoid a large pothole in the road. You sustain serious injuries.
Or you come around a corner in your car, hit a pothole and damage your suspension.
Or you swerve to avoid the pothole and collide with a third party.
Do you have a claim against the local authority?
The High Court in Pietermaritzburg found that a cyclist who came off his bicycle had himself been negligent and dismissed his claim against the local authority.
On appeal to the Supreme Court of Appeal, however, the cyclist succeeded in part, with the local authority being ordered to pay 60% of his damages. The SCA found that the cyclist was 40% to blame.
On what basis could a local authority be found to have been negligent?
The offending pothole in this case was on an open road with a 100kph speed limit, and the cyclist was travelling at about 55kph downhill. The pothole was 400mm at its widest, 750mm at its longest, and 750mm at its deepest.
Both sides acknowledged that the pothole in question fell into the most serious category of potholes, as rated by the Department of Transport; a category described, as: “The defect is very prominent. A dangerous situation exists and damage will occur in all cases”.
The parties agreed that the pothole was at least three months old. Indeed, there was evidence to the effect that it could have been as old as a year. It was towards the centre of the road, and as it was not in the normal path of vehicles using the road, it would have increased in size relatively slowly.
The pothole would therefore have fallen into the most serious degree of pothole neglect for some considerable time before the accident – so much so that it would have been visible from about 60 metres. 
The cyclist alleged that the local authority had been negligent in failing to ensure that the pothole was repaired long before the accident, and long before it had grown to the size it had by that date.
For its part, the local authority denied that it had been negligent, contending it had taken various steps to ensure that the existence of potholes was brought to its attention and attended to. It had a call centre to which potholes could be reported, and the road in question was supposed to be inspected on a weekly basis. It also complained of inadequate funding.
The legal principles applied by the appeal court were that a negligent omission, such as the failure to repair a pothole, would not give rise to delictual liability unless it was wrongful. Whether a negligent omission was wrongful would depend on the existence of a legal duty not to act negligently.  The imposition of such a legal duty was a matter for judicial determination involving criteria of public or legal policy consistent with constitutional norms.
The court cited a 2006 judgment from the SCA:
          “.. when we say that negligent conduct … consisting of an omission is not wrongful, we intend to convey that public or legal policy considerations determine that there should be no liability: that the potential defendant should not be subjected to a claim for damages, his or her negligence notwithstanding. In such event, the question of fault does not even arise. The defendant enjoys immunity against liability for such conduct, whether negligent or not.”
In the present case, the local authority sought to evade liability by relying on a provision in the provincial Roads Act that the Minister would not be liable for any claim or damages arising “from the existence, construction, use or maintenance of any provincial road, except where the loss or damage was caused by the wilful or negligent act or omission of an official”.
In weighing up the relevant legal provisions against the facts of the case, the SCA asked if there was negligence.  This issue itself involved a twofold enquiry:
·        Was the harm reasonably foreseeable? and
·        Would the reasonable man take reasonable steps to guard against such occurrence and did the local authority fail to do so? 
The court found that the reasonable foreseeability of harm to others was not in issue.
The crucial question, therefore, was the reasonableness or otherwise of the local authority’s conduct.
The court considered the evidence that:
·        The road was inspected weekly;
·        The pothole had been in existence for about a year prior to the accident;
·        The pothole had been allowed to develop to such a size; and
·        The absence of any explanation as to why it had not been repaired.
Having done so, the court concluded that there was no rational reason why the pothole had not been repaired. In the circumstances, the inference of negligence on the part of the local authority was irresistible.
Not every claim for damages arising from the existence of a pothole will be successful. The relevant provincial legislation will play a role, but at the very least one must establish negligence on the part of the local authority responsible for the road in question.
And what of the cyclist’s own negligence?
He had seen the pothole, but nevertheless proceeded downhill at a speed which left little room for error. On the basis of the SCA’s ruling, we would surely not wish to find ourselves in the same position as the plaintiff in this case.
“A cyclist trundling along a suburban road would normally have no difficulty avoiding a pothole. But the appellant’s speed was such that when he did see the pothole he was unable to adjust the path of his travel to avoid the pothole without losing control of his bicycle. Being aware of the existence of potholes, his speed in these circumstances was to my mind excessive and amounted to negligence on his part.”
A salutary lesson to motorists and cyclists alike.
Miles Carter is a Director in the Dispute Resolution Department of commercial law firm Bowman Gilfillan