Schlebush v MEC for Public Works Roads and Transport Mpumalanga Province
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Mashile J |
| Judgment Date | 13 January 2023 |
| Docket Number | 978/2021 |
| Hearing Date | 13 January 2023 |
| Citation | 2023 JDR 0088 (MN) |
Mashile J:
This is a damages claim arising from injuries sustained by the Plaintiff on 31 May 2020 when the motorbike that he was riding along R40 road allegedly hit a pothole and slipped. In that process, his protective clothing was damaged and he suffered bodily injuries for which he was treated at the Nelspruit Medi Clinic. Believing that the Defendant ("the MEC for Public Works)" was responsible for the road infrastructure, maintenance and the erection of appropriate road signs within the Province of Mpumalanga warning road users of prevailing dangerous conditions on the road, he instituted this damages action against the MEC for Public Works.
Notwithstanding the issuing and service of the summons upon the MEC for Public Works, the matter remained undefended when it served before this Court on 25 April 2022. Following the accident, the Plaintiff was conveyed to Nelspruit Medi Clinic where, on arrival, a diagnosis of fracture of the scapular was made and the following treatment administered:
Emergency treatment;
Pain medication;
Radiological studies;
Acromioclaviclar joint reconstruction.
The Plaintiff is said to have continued to take further treatment at the same hospital and attended rehabilitation as an outpatient, which I understood to be enduring on the date of hearing of the case.
2023 JDR 0088 p3
Mashile J
No application for separation of issues as envisaged in Uniform Rule of Court 33(4) was brought consequently it proceeded on both merits and quantum. The Plaintiff testified in support of his own claim and thereafter called three expert witnesses, one being a reconstruction accident expert and the others, on the injuries sustained by the Plaintiff and their sequelae. Dr Khanyile, an Orthopaedic Surgeon, deposed to an affidavit confirming the contents of his report. Satisfied with the contents of the report, the Court dispensed with the need of his testimony and proceeded to admit the report into evidence.
EVIDENCE:
The evidence of the Plaintiff is that he is a fourty-year old self-employed paintless dent remover ("PDR") and a motorbike mechanic. On 31 May 2020, he was part of a group riding motorbikes travelling down Bulembu Pass along R40 in or around the area of Barberton. While so descending and on the second last sharp bend to the left he leaned into the corner where his motorbike hit and went over a pothole. In consequence, he lost control of the motorbike. The motorbike then skidded across the road surface to the other side during the process of which he suffered injuries to his shoulder and arm.
He stated that he could not avoid the pothole as he was travelling on the left side of the road. The sharp left turn concealed the dangerous area where the pothole was located. Moreover, there were no warning signs cautioning motorists of the danger on the road ahead. He testified further that almost a month prior to the hearing of this case, he had accompanied other travellers by motor vehicle along the same route when he observed that the pothole that had caused his accident was then wider and could pose even more serious danger to other road users.
The Plaintiff further told the Court that he was conveyed to Nelspruit Medi Clinic by ambulance. He was admitted, taken to x-rays and then to theatre for performance of a procedure on his left shoulder to repair the fracture on his clavicle. Four days thereafter, he was discharged but continued to attend physiotherapy and uses pain medication.
2023 JDR 0088 p4
Mashile J
His left shoulder has not been restored to its pre-accident condition because six weeks following his return to work:
He continued to experience pains in his left shoulder;
He remains unable to exert pressure on it like he did previously;
His left arm still experiences numbness making it difficult to use;
In consequence of the above, he found himself compelled to employed an assistant;
As a self-employed mechanic and a paintless dent remover, the above have caused him loss of customers and income.
Mr Corrie Stapelberg ("Stapelberg") testified that he regarded himself as an expert in traffic collision investigation. His evidence was that on 12 October 2020 he received instructions to compile a report on the above accident. He said that he visited the scene of accident to conduct an inspection in loco. He took photographs of the size and location of the pothole. He testified that he observed that the pothole had been dug up in an attempt to repair it.
He said that the pothole was not a big hole in the road surface but rather an area of approximately fifty millimetres deep and approximately two comma three meters long and approximately one comma five to two metres wide, stretching from the left side towards the road centre. There was another pothole, which was narrower measuring approximately half a metre wide and about two metres long. This pothole, he testified, was deeper than the first and curved with the road to the left.
Stapelberg found that the front tyre of the motorbike slid after hitting and riding over the first pothole. It then hit the second narrower but deeper pothole, which caused
2023 JDR 0088 p5
Mashile J
the Plaintiff to fall off his motorcycle. Stapelberg's further opinion was that the motor bikers travelling in front of the Plaintiff missed the pothole as motor bikers travel in a staggered fashion. The front motor biker to the centre of the road, the next to his left back and eventually the Plaintiff followed to their left and on the side where the pothole was located on the left side of the road surface.
Stapelberg testified further that the Plaintiff could not have done anything in the circumstances to avoid the pothole. According to Stapelberg, the Defendant was solely negligent for the accident and the resultant injuries to the Plaintiff, damage to his motorbike and protective clothing.
Ms Nkabinde ("Nkabinde") is an Occupational Therapist who also assessed the Plaintiff following which she compiled a report on 14 May 2021. She described the purpose of the report as being to set out the Plaintiff's residual work capacity, the impact of the injuries he sustained in his daily living, leisure and re-creation. When she evaluated the functional capacity of the Plaintiff, she...
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