Pothole crash: state to pay

2008-05-29 00:00

Prominent Pietermaritzburg advocate Allistair McIntosh has welcomed yesterday’s ruling by the Supreme Court of Appeals (SCA) entitling him to claim damages from the province for serious injuries he sustained in a cycling accident when he swerved to avoid a pothole four years ago.

In the wake of yesterday’s ruling, which concerned only the issue of liability, the case will now return to the high court to decide on the amount due.

McIntosh initially sued KZN Premier S’bu Ndebele and Transport MEC Bheki Cele for R7,6 million.

Five SCA judges unanimously ruled yesterday that the Transport Department must carry 60% of the blame for McIntosh’s accident, caused by a massive pothole in the P164 Rosetta-Kamberg road, while McIntosh was found to have been negligent to a lesser degree of 40%.

McIntosh approached the SCA for relief after Judge Gregory Kruger dismissed his claim against the province and ruled that his fall was attributable solely to his own negligence.

McIntosh told The Witness that although he has been at pains to “paint a happy picture” in front of his friends and colleagues, the four years since the accident have been extremely difficult for him financially and health-wise.

The multiple permanent injuries he suffered in the crash seriously affected his ability to continue practising as an advocate at his previous pace, he said.

A keen sportsman, McIntosh can no longer cycle, mountain climb, paddle or pilot an aircraft.

McIntosh has been practising as an advocate in Pietermaritzburg since 1987.

He said he believes the issue of potholes is of enormous public interest and that it is important that government be held accountable and carry out its responsibilities, such as the upkeep of roads.

Evidence was led at the trial that KZN Transport Department is cash-strapped and struggles to maintain its roads adequately.

Judge Douglas Scott and four other judges said in yesterday’s judgment the evidence revealed that the pothole in question had been in existence for “something like a year” prior to the accident, and had grown to dangerous dimensions. No explanation was forthcoming why, notwithstanding weekly inspections of the road, it had not been repaired.

There were no signs warning road users about the potholes. Signs were only erected after the accident.

The judges found that officials whose job it was to inspect and repair potholes on that road were negligent.

The SCA found that McIntosh was also negligent for having proceeded downhill at a speed that left “little room for error” despite him having seen a smaller pothole earlier, which ought to have alerted him to the danger of potholes.

The SCA found that, given that the pothole was allowed to grow to a “dangerous” size despite weekly inspections and the failure to repair it over such a long period, there was a greater degree of negligence on the part of the province than that applicable to McIntosh.

Allegations that KZN’s roads network is in an unacceptable condition are the subject of at least two other current court cases being heard in the high court in Pietermaritzburg. One relates to a March 2005 accident on the Sani Pass road that left Australian Murray Eastman a paraplegic.

In the other, the owners of a Drakensberg hotel have launched proceedings to force the KZN transport authorities to repair signage and roads leading to the hotel, which is in a world heritage site.

ingrido@witness.co.za

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