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MEC must pay for pothole crash

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Loots has since been back to hospital almost annually for operations and procedures related to the consequences of the accident concerned.

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.”