Sani crash: Govt must pay

2009-06-24 00:00

THE MEC for Transport in KwaZulu-Natal is liable for 70% of the damages sustained by an Australian tourist, Murray Eastman, and his wife Jane in a horrific accident on the Sani Pass road in 2005. The driver of a 4x4 bakkie, Robert Mitchell, is liable for the other 30% because he was not driving at a safe speed, high court Judge Sharmain Balton ruled in a reserved judgment handed down yesterday.

Murray Eastman was rendered a paraplegic by the accident, which happened in slippery, wet conditions on the road that is the subject of numerous complaints by local residents.

The amount of the damages payable has yet to be determined, although Eastman, an electrician based in Canberra, and his wife had sued the province and Mitchell jointly for more than R33 million. Costs are to include their air fares to and from Australia to testify.

In her judgment, Balton said that as an experienced driver on gravel roads, Mitchell, who is also Australian, should have driven at a speed that would have made it possible for him to anticipate and react to any unexpected changes in the road surface. But due to the dangerous condition of the road at the time, the speed at which he was travelling was not the only cause of the accident.

She said the transport authorities could not escape liability due to the failure of its officials to properly maintain the road.

“A disturbing aspect of the condition of the road is that this is a busy tourist route and an international road which required adequate care.”

Balton added that if there was proof that the road had been regularly maintained, the Transport Department may have been able to avoid liability, but the failure by Transport officials to maintain the road to a safe standard for motorists attracted a greater degree of negligence than was applicable to Mitchell, as the driver.

Mitchell and his family, as well as the Eastmans, were visiting South Africa at the time of the accident on March 21, 2005, to attend the wedding of Mitchell’s daughter, Jenny.

En route to Sani Pass, Jenny drove the bakkie to a centre that hired out quad bikes. The Eastmans and others drove up Sani Pass on quad bikes while the rest drove by bakkie. On their way up, the weather was sunny and dry but on the way back it started drizzling. They returned the quad bikes and when Eastman got back in the bakkie Mitchell said he had been “voted” to sit in the rear bin.

During the journey the bakkie skidded off the road and landed in a culvert. The canopy flew off. Eastman was seriously injured.

Jane and Murray Eastman both testified that they felt uncomfortable and unsafe due to the speed the bakkie was travelling at just before the crash.

Mitchell maintained that he had been driving only at about 30 km per hour before the accident, but this was rejected by the court. “Expert evidence indicates that he was travelling in the least at 50 km/h, which was undoubtedly excessive in the prevailing conditions,” the judge said.

Balton said there were no warning signs to indicate the road was slippery when wet or that there were culverts along it, that there had been heavy rainfall in 2005 and that signs warning about the slipperiness of the road were put up only after the accident.

Witnesses who lived in the area testified they had complained about the condition and slipperiness of the road and that the Transport Department was aware of the complaints but disregarded them.

Victor Kimmence, the district superintendent for the area, and Warwick Bennett, the regional manager of implementation for the department, viewed the complaints as “an exaggeration”.

Balton said the view of the department was that there were no funds to repair the road and that it was too expensive.

Balton said Kimmence, who was in charge of the road maintenance, had been unable to satisfy the court that he had any records to prove that work was done on the P318 road.

Pietermaritzburg advocate Alistair McIntosh, who suffered severe injuries in a cycling accident, is still engaged in a legal battle with the province over the damages the Transport Department has been held liable for. The Supreme Court of Appeal held that McIntosh was 40% to blame and the department 60% liable for its failure to repair a huge pothole in the Rosetta-Kamberg road, which caused him to crash.

In the budget tabled on Monday, Finance MEC Ina Cronje allocated R5,1 billion to the Transport Department. She said this would cover road infrastructure development and maintenance. She singled out the “continued reconstruction” of the Sani Pass road, but did not quantify the amount allocated to it.

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