Mcintosh v Premier, KwaZulu-Natal and Another

• Jurisdiction: South Africa
• Judge: Scott JA, Mthiyane JA, Nugent JA, Maya JA and Hurt AJA
• Judgment Date: 29 May 2008
• Citation: 2008 (6) SA 1 (SCA)
• Docket Number: 632/07
• Hearing Date: 06 May 2008
• Counsel: KJ Kemp SC for the appellant. M Mbenenge SC (with TG Madonsela) for the respondents.
• Court: Supreme Court of Appeal

Scott JA:

[1] The appellant, a keen cyclist in his late forties, sustained serious bodily injuries when he fell from his bicycle while swerving to avoid a F large pothole in a road under the management and control of the respondents. [1] He subsequently sued the respondents for damages in the High Court, Pietermaritzburg, alleging that they had been negligent, inter alia, for failing to ensure that potholes in the road were timeously repaired or signs were erected warning road users of the danger. The G matter came before Kruger J who was asked to decide only the issue of liability and to defer the issue of the appellant's damages for later determination. At the end of the trial the learned judge held, however, that the appellant's fall was attributable solely to his own negligence and dismissed the action with costs. The appeal is with the leave of the court a quo. H

[2] The circumstances in which the appellant came to fall off his bicycle are largely common cause. On 21 August 2004 he and a group of friends went cycling in the Kamberg area near Pietermaritzburg. They cycled in a group - the appellant described it as a 'bus' - up a fairly steep incline on a road referred to in evidence as the P164. This section of the road I rises to the top of a hill in the course of which there are a number of bends in both directions. The centre of the road is marked with a barrier

Scott JA

A line comprising two solid white lines with a broken white line between them. Shortly after reaching the crest of the rise the appellant and two of his companions decided to ride back in the direction from which they had come. They set off from the crest of the hill, one after the other, with a short interval between the departure of each. The appellant was the B second to leave. He described the bicycle he was riding as a 'mountain bike' which had been fitted out as a 'road bike' with 'slick' tyres. The bicycle had a speedometer. He said that as he descended down the hill he attained a speed of about 55 kph. He virtually had the road to himself and he travelled about a metre from the centre line. As he entered a bend C in the road to his right he began to converge on the barrier line in order to negotiate the bend more easily. The road beyond the bend curved to his left so as to afford him a clear view of oncoming traffic. He observed an approaching vehicle but it was still a long way off. Suddenly he observed a large pothole ahead of him on the broken line between the D two solid white lines. He said his path of travel was then such that he would have struck the extreme left-hand side of the pothole. At that stage both he and his bicycle would have been leaning to his right, ie into the bend. In an effort to avoid the pothole he attempted to swerve to his left by shifting his weight to a more upright position. In the process he lost control of the bicycle and the next thing he remembered was lying E on the grass on the other side of the guard-rail with people helping him.

[3] Photographs taken a few days later show that the pothole extended from the right edge of the left solid line (travelling downhill) to the right edge of the right solid line. It is common cause that its width was F 400 mm at its widest, its length was 750 mm at its longest, and its depth was 750 mm at its deepest. Its depth was such that it had penetrated through the base course of the road. A manual compiled by the CSIR entitled 'Pavement Management Systems: Standard Visual Assessment Manual for Flexible Pavements', which is used throughout the country, categorises potholes as falling into one of three categories, namely degree G one, three or five, the latter having a diameter in excess of 300 mm and being the most serious. A manual compiled by the KwaZulu-Natal Department of Transport entitled 'Maintenance Quality Standards' classifies potholes as degree one, two or three. The latter is described as follows: 'The defect is very prominent. A dangerous situation exists and H damage will occur in all cases.' It is common cause that the pothole in question was a degree five pothole in terms of the former manual and a degree three in terms of the latter. None of the experts who testified had seen the pothole prior to its being patched. Based on the photographs, however, there was general agreement that it was at least three months old. Professor Visser, the chairperson of the South African Roads Board, I thought it could have been as old as a year. Significantly, Mr Donald Robertson, a local farmer and frequent user of the road, testified that he knew of the pothole and that it had been there for about a year before the accident. The experts were also generally in agreement that by reason of the location of the pothole, ie in the centre of the road and not J in the normal wheel path of vehicles using the road, it would have

Scott JA

increased in size relatively slowly. Given its size when measured on A 29 August 2004, it follows that it would have fallen into the categories of degree five or three respectively for some considerable time before the accident.

[4] At an in loco inspection it was noted that the pothole would have been visible to anyone coming down the hill at a distance of approximately B 60 m. By the time of the inspection, however, the pothole had long since been repaired and the patch on the white line was readily visible. The two witnesses who observed the pothole before it was patched both expressed the view that it was not easy to see. The one was Mr Robertson, the local farmer; the other was Mr Adrian Rall who took a C series of photographs of the scene on 28 August 2004. The latter explained that the light, chalk-type dust in the pothole and its position on the broken white line made the pothole difficult to see until one was much closer than the 60 m referred to. To the extent one can judge from the photographs, they appear to confirm Mr Rall's evidence.

[5] To complete the picture, it is necessary to record certain other D features of the road. The speed limit was 100 kph. The radius of the curve where the appellant fell was 100 metres. According to Mr Barry Grobbelaar, a mechanical engineer and 'accident reconstructionist', the appellant's speed of 55 kph was well within the limit at which the curve could comfortably be negotiated. The road itself was 7,3 m wide. E Structurally, the relevant section of the road was in a poor...