Victory for pothole victim

2008-08-20 00:00

Pietermaritzburg advocate Allistair McIntosh has won another round in his legal battle with the province of KwaZulu-Natal to be compensated for devastating injuries he suffered in a cycling accident caused when he swerved to avoid a pothole four years ago.

The Constitutional Court this week dismissed with costs a bid by the Premier of KZN to be granted leave to appeal to the ConCourt against a decision by the Supreme Court of Appeal.

The Supreme Court ruled that the department of Transport must carry 60% of the blame for McIntosh’s accident, which was caused by a massive pothole in the P164 Rosetta-Kamberg road.

McIntosh was found to have also been negligent to a degree of 40%.

McIntosh told The Witness yesterday he is “extremely delighted” by the ConCourt’s refusal to entertain the province’s application for leave to appeal.

He added that most attorneys would not be surprised at the finding because “there could never have been any constitutional issue in the first place”.

McIntosh is also pleased that the ConCourt awarded him costs, because cost orders are not often granted by that court unless there are deserving features favouring one party.

“I am even more humbled at the continued prayers and support of family, friends and even colleages,” said McIntosh.

“We as a family owe a lot to such persistent faith and encouragement. The lesson of faith and persistence has been an important one to us as a family,” he added.

Having failed in its quest to take the matter up in the Constitutional Court, the province will now be required to negotiate with McIntosh — either via evidence being led in the high court — or reach an out-of-court settlement, to determine the amount of damages that he is due.

McIntosh initially sued the KwaZulu-Natal premier and the KZN MEC for the Transport Department for R7,6 million.

KZN high court Judge Gregory Kruger dismissed his claim and ruled that McIntosh’s fall and injuries were attributable solely to his own negligence.

McIntosh appealed to the Supreme Court of Appeal against Kruger’s judgment and Judge Douglas Scott and four other judges ruled in his favour.

They found the evidence showed 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 from the province why, despite weekly inspections of the road, it was not repaired, they said.

There were also no warning signs to alert road-users to the existence of potholes. These were erected only after the accident.

The judges found that officials whose job it is to inspect and repair potholes on that road had therefore been negligent.

The SCA found that there was, however, some contributory negligence by McIntosh because he had gone downhill at a speed that had left “little room for error” despite his having observed a smaller pothole in the road earlier, which ought to have alerted him to the danger.

The SCA found that — given that the pothole which caused the fall had been allowed to grow to a “dangerous” size despite weekly inspections and the failure to repair it over such a long period — the greater degree of negligence was attributable to the province rather than to McIntosh.

At the original trial, the department claimed it was cash-strapped. Despite this, the offending pothole was fixed for a minimal amount after McIntosh’s accident.

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