Cyclist can sue over pothole

2008-05-29 21:12

Bloemfontein - A cyclist who fell trying to avoid a huge pothole in the road in the Kamberg area can sue the KwaZulu-Natal Department of Transport for damages, the Supreme Court of Appeal (SCA) ruled on Thursday.

The SCA upheld an appeal by Pietermaritzburg advocate Allister McIntosh, who was a keen cyclist, against a High Court decision that he was solely to blame for his serious injuries from the fall.

During the appeal it was argued that the pothole had been in existence for nearly a year - and had eventually grown to such a size and depth that is was dangerous even by the department's standards.

The department submitted that it did not have sufficient funds to properly maintain the road network in the province.

Delivering the unanimous judgment by five appeal judges, Judge Douglas Scott said the road had been the subject of weekly inspections, but notwithstanding this, no reason was given why the pothole had not been repaired.

Liable for 60% of blame

He said no evidence was given to show that the repair of potholes had to be neglected in favour of some other priority.

He found the department's officials were negligent.

However, the Bloemfontein court found that McIntosh conceded that shortly after starting his downhill ride he had seen a pothole in the road.

The SCA found that McIntosh had proceeded downhill at a speed which left him little room for error and for this reason he had also been negligent.

The court held the department was to carry 60% of the blame.

The courts were asked to decide only the issue of liability. McIntosh's damages can now be decided.

- SAPA