McIntosh v Premier of the Province of KwaZulu-Natal and Another (632/2007) [2008] ZASCA 62; 2008 (6) SA 1 (SCA) ; [2008] 4 All SA 72 (SCA) (29 May 2008)

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[2008] ZASCA 62
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McIntosh v Premier of the Province of KwaZulu-Natal and Another (632/2007) [2008] ZASCA 62; 2008 (6) SA 1 (SCA) ; [2008] 4 All SA 72 (SCA) (29 May 2008)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
Reportable
Case no: 632/07
In the
matter between:
ALLISTAIR
POVL McINTOSH
...
APPELLANT
and
PREMIER
OF THE PROVINCE OF KWAZULU-NATAL
...
1
ST
RESPONDENT
MEC FOR
THE DEPARTMENT OF TRANSPORT FOR KWAZULU-NATAL
...
2
ND
RESPONDENT
____________________________________________________________
Coram: SCOTT, MTHIYANE, NUGENT, MAYA JJA
et
HURT
AJA
Date of
hearing: 6 MAY 2008
Date of
delivery:
29 MAY 2008
Summary: Delict – cyclist falling in attempt to
avoid pothole in road - legal duty of Province apparent from statute
– additional
considerations when weighing up reasonableness of
public authority’s conduct.
Neutral citation:
McIntosh
v Premier, KwaZulu-Natal
(632/07)
[2008] ZASCA 62
(29 May 2008)
J U D G M E N T
SCOTT JA/ ….
SCOTT JA:
[1] The appellant, a keen cyclist in his late forties, sustained
serious bodily injuries when he fell from his bicycle while swerving
to avoid a large pothole in a road under the management and control
of the respondents.
1
He subsequently sued the respondents for damages in the High Court,
Pietermaritzburg, alleging that they had been negligent,
inter
alia
, for failing to ensure that potholes in the road were
timeously repaired or signs were erected warning road users of the
danger.
The matter came before Kruger J who was asked to decide only
the issue of liability and to defer the issue of the appellant’s
damages
for later determination. At the end of the trial the learned
judge held, however, that the appellant’s fall was attributable
solely
to his own negligence and dismissed the action with costs. The
appeal is with the leave of the court
a quo.
[2] The circumstances in which the appellant came to fall off his
bicycle are largely common cause. On 21 August 2004 he and a group
of
friends went cycling in the Kamberg area near Pietermaritzburg. They
cycled in a group – the appellant described it as a ‘bus’
–
up a fairly steep incline on a road referred to in evidence as the
P164. This section of the road rises to the top of a hill
in the
course of which there are a number of bends in both directions. The
centre of the road is marked with a barrier line comprising
two solid
white lines with a broken white line between them. Shortly after
reaching the crest of the rise the appellant and two of
his
companions decided to ride back in the direction from which they had
come. They set off from the crest of the hill, one after
the other,
with a short interval between the departure of each. The appellant
was the second to leave. He described the bicycle he
was riding as a
‘mountain bike’ which had been fitted out as a ‘road bike’
with ‘slick’ tyres. The bicycle had a speedometer.
He said that
as he descended down the hill he attained a speed of about 55
kilometres per hour. He virtually had the road to himself
and he
travelled about a metre from the centre line. As he entered a bend in
the road to his right he began to converge on the barrier
line in
order to negotiate the bend more easily. The road beyond the bend
curved to his left so as to afford him a clear view of
oncoming
traffic. He observed an approaching vehicle but it was still a long
way off. Suddenly he observed a large pothole ahead
of him on the
broken line between the two solid white lines. He said his path of
travel was then such that he would have struck the
extreme left-hand
side of the pothole. At that stage both he and his bicycle would have
been leaning to his right, ie into the bend.
In an effort to avoid
the pothole he attempted to swerve to his left by shifting his weight
to a more upright position. In the process
he lost control of the
bicycle and the next thing he remembered was lying on the grass on
the other side of the guard-rail with people
helping him.
[3] Photographs taken a few days later show that the pothole extended
from the right edge of the left solid line (travelling downhill)
to
the right edge of the right solid line. It is common cause that its
width was 400 mm at its widest, its length was 750 mm at its
longest
and, its depth was 750 mm at its deepest. Its depth was such that it
had penetrated through the base course of the road.
A manual compiled
by the CSIR entitled ‘Pavement Management Systems: Standard Visual
Assessment Manual for Flexible Pavements’,
which is used throughout
the country, categorises potholes as falling into one of three
categories, namely degree one, three and
five, the latter having a
diameter in excess of 300 mm and being the most serious. A manual
compiled by the KwaZulu-Natal Department
of Transport entitled
‘Maintenance Quality Standards’ classifies potholes as degree
one, two and three. The latter is described
as follows: ‘The defect
is very prominent. A dangerous situation exists and damage will occur
in all cases’. It is common cause
that the pothole in question was
a degree five pothole in terms of the former manual and a degree
three in terms of the latter. None
of the experts who testified had
seen the pothole prior to its being patched. Based on the
photographs, however, there was general
agreement that it was at
least three months old. Professor Visser, the chairperson of the
South African Roads Board, thought it could
have been as old as a
year. Significantly, Mr Donald Robertson, a local farmer and frequent
user of the road, testified that he knew
of the pothole and that it
had been there for about a year before the accident. The experts were
also generally in agreement that
by reason of the location of the
pothole, ie in the centre of the road and not in the normal wheel
path of vehicles using the road,
it would have increased in size
relatively slowly. Given its size when measured on 29 August 2004, it
follows that it would have
fallen into the categories of degree five
and three respectively for some considerable time before the
accident.
[4] At an
in loco
inspection it was noted that the pothole
would have been visible to anyone coming down the hill at a distance
of approximately 60
metres. By the time of the inspection, however,
the pothole had long since been repaired and the patch on the white
line was readily
visible. The two witnesses who observed the pothole
before it was patched both expressed the view that it was not easy to
see. The
one was Mr Robertson, the local farmer; the other was Mr
Adrian Rall who took a series of photographs of the scene on 28
August 2004.
The latter explained that the light, chalky type dust in
the pothole and its position on the broken white line made the
pothole difficult
to see until one was much closer than the 60 metres
referred to. To the extent one can judge from the photographs, they
appear to
confirm Mr Rall’s evidence.
[5] To complete the picture, it is necessary to record certain other
features of the road. The speed limit was 100 kph. The radius
of the
curve where the appellant fell was 100 metres. According to Mr Barry
Grobbelaar, a mechanical engineer and ‘accident reconstructionist’,
the appellant’s speed of 55 kph was well within the limit at which
the curve could comfortably be negotiated. The road itself was
7.3
metres wide. Structurally, the relevant section of the road was in a
poor condition and the consultants appointed by the Department
to
report on it had recommended that it be reconstructed. Nonetheless Mr
Marthinus van Heerden, one of the consultants involved,
expressed the
view that from the users point of view the asphalt surface would have
appeared to be in a reasonable condition, save
for the potholes, and
he said that he had no reason to doubt the appellant’s evidence
that until falling he had enjoyed a smooth
ride down the hill.
[6] The respondents denied in their plea that they or their employees
had been negligent. They alleged that they had taken various
steps to
ensure that the existence of potholes was brought to their attention
and attended to. These steps, it was alleged, included
the setting-up
of a call centre for members of the public to report the existence,
inter alia
, of potholes, and the establishment of a system of
weekly routine inspections of all the roads under their control and
management.
I interpose that with regard to the latter assertion, Mr
Howard Bennett, a former senior employee in the Department who gave
evidence
on behalf of the appellant, confirmed that the P164 would
have had a person allocated to inspect it on a weekly basis. As far
as
the actual maintenance work was concerned, it was alleged in the
plea that the defendants adopted two ‘streams of systems’. They
were:
‘
(i) an internal maintenance team
for the area concerned, manned by six employees of the defendants;
(ii) a Vulindlela programme, in terms of which
maintenance work is contracted out to emerging contractors, but is
funded by the defendants.’
In addition and notwithstanding the aforegoing, it was alleged that
the respondents had ‘insufficient or inadequate funds set aside
for
the maintenance of roads in and around the area concerned, namely
Mooi River/Rosetta/ Kamberg’.
[7] Much of the evidence adduced by the respondents was aimed at
establishing that there had been a significant underfunding for
the
maintenance of roads in the KwaZulu-Natal province for a number of
years which had resulted in a serious deterioration of the
road
network. Mr Wayne Evans, a senior official involved in the financial
management of the Department, testified that for the financial
year
2004 to 2005 the cost of maintaining the current road network was
estimated to be R1.4 billion. The current funding, awarded
on a
three-year basis, was R681 million leaving a shortfall of R770
million. He said that this amount had been requested but the
amount
allocated by the provincial cabinet following the recommendations of
the treasury was no more than R16m, leaving the Department
underfunded and under resourced. It appears that the road network of
the province is divided into four regions, each with its own
local
areas. The P164 is situated in the Vulindlela local area. This area
contains some 1700 km of road of which 1250 km are gravel
and 460 km
of asphalt. Mr Blake Mackenzie, the cost centre deputy manager for
the Pietermaritzburg region and the person responsible
for the
Vulindlela local area, testified that for the entire length of
asphalt road there is only one ‘black top team’ whose
function it
is to attend to the patching of potholes and the repair of surface
damage. Formerly, he said, there were three such teams.
Subsequently,
patching and surface repair work was outsourced to an ‘emerging
contractor’, Godide Construction, as well as to
other ‘formal
contractors’. Nonetheless, the in-house black top team, he said,
remained over-extended.
[8] The work for this team (and the independent contractors) is
planned at weekly meetings. Ironically, at a meeting held on 12
August
2004 the black top team was directed to effect surface repairs
to the P164 from km 0 to the end of the road (approximately 30 km)
during the period 17 to 18 August 2004. The fact that the work was so
programmed did not mean, however, that it would be completed;
it
depended on the nature and extent of the work. In the event, the team
commenced work on Wednesday 18 August and during the period
18 August
to Friday 20 August repaired the damage to the road surface between
km 15 and km 16. The damage to the remaining sections
of the road,
including the pothole in question which was at the 8 km mark, was
repaired some time after the weekend. (It will be
recalled that the
accident occurred on Saturday, 21 August 2004.) Mr Sakhamuzi Mbedu,
the leader of the black top team, explained
that the procedure he
adopted when repairing a road was to begin with what he perceived to
be the most serious damage. If no particular
damage had been
identified he would drive along the road looking for the most serious
damage to determine where to begin. This is
how it came about, he
said, that work was commenced on the road between km15 and 16. He
said that he did not recall the pothole in
question, but if he had
initially ignored it, the reason would have been that because it was
on the barrier line and not in what
would normally be the wheel path
of vehicles using the road, he would not have regarded it as a
priority.
[9] The approach adopted by the court
a quo
was to determine
the issue of negligence solely in relation to Mr Mbedu’s conduct
during the period 18 to 20 August 2004. It held
that Mr Mbedu’s
modus operandi
of attending first to what he considered to be
the most serious damage to the road surface was reasonable, as was
his attitude that,
although he could not recall the pothole in
question, he would not have attended to it immediately because of its
location on the
barrier line, but would first have attended to the
other potholes which he considered to be the more serious. On this
basis, the
judge found that because on the days in question the
respondents must have had the means of repairing the potholes on the
P164, all
the evidence adduced by the respondents relating to their
lack of funds was irrelevant and he accordingly deprived the
respondents
of their costs in relation to that evidence.
[10] It is clear, however, from both the pleadings and the evidence
adduced on behalf of the appellant that the latter’s allegation
of
negligence on the part of the respondents was not confined to Mr
Mbedu’s conduct on the days immediately preceding the accident.
It
was always the appellant’s case that the respondents’ negligence
lay in its failure to ensure that the pothole in question
was
repaired long before 21 August 2008 and long before it had grown to
the size it had by that date. Indeed, counsel for the appellant
did
not suggest that Mr Mbedu was negligent for commencing the work at
the 15 km mark, as opposed to any other area or at one or
the other
end of the road. In approaching the issue of negligence as it did,
the court
a quo
therefore clearly erred. It accordingly
becomes necessary to consider whether the appellant succeeded in
establishing negligence
on the part of the respondents on the grounds
alleged in the particulars of claim in the light of the evidence as a
whole. As the
alleged negligence is founded upon an omission on the
part of what in effect is a public authority it is desirable to deal
first
with the legal principles involved.
[11] As repeatedly stated by this court, a negligent omission, unless
wrongful will not give rise to delictual liability. More recently
in
Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty)
Ltd
2006 (3) SA 138
(SCA) Brand JA, at 144A-C, para 10, explained
the requirement of wrongfulness as follows:
‘
Negligent conduct manifesting
itself in the form of a positive act causing physical damage to the
property or person of another is
prima
facie
wrongful.
In those cases, wrongfulness is therefore seldom contentious. Where
the element of wrongfulness becomes less straightforward
is with
reference to liability for negligent omissions and for negligently
caused pure economic loss (see eg
Minister
of Safety and Security v Van Duivenboden
2002 (6) SA 431
(SCA) ([2002]
3 All SA 741)
in para [12];
Gouda
Boerdery BK v Transnet
2005
(5) SA 490
(SCA) ([2004]
4 All SA 500)
in para [12]). In these
instances, it is said, wrongfulness depends on the existence of a
legal duty not to act negligently. The
imposition of such a legal
duty is a matter for judicial determination involving criteria of
public or legal policy consistent with
constitutional norms.’
The learned judge continued at 144I, para 12;
‘
. . . when we say that negligent
conduct . . . consisting of an omission is not wrongful, we intend to
convey that public or legal
policy considerations determine that
there should be no liability; that the potential defendant should not
be subjected to a claim
for damages, his or her negligence
notwithstanding. In such event, the question of fault does not even
arise. The defendant enjoys
immunity against liability for such
conduct, whether negligent or not . . . .’
In the present case the second respondent is enjoined in terms of s
3(1) of the KwaZulu-Natal Provincial Roads Act 4 of 2001 to
administer
the provincial road network in accordance with national
and provincial norms
inter alia
‘to achieve optimal road
safety standards within the Province’ and to ‘protect and
maintain provincial road network assets’.
In terms of s 3(2) the
second respondent’s responsibility is said to be ‘within the
Province’s available resources’. However,
a public law obligation
does not necessarily give rise to a legal duty for the purpose of the
law of delict. See
Rail Commuters Action Group v Transnet Ltd t/a
Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
(CC) paras 79-81. But in the present
case s 9(3) of the Act puts the issue beyond doubt. It provides:
‘
9(3) The Minister [ie the second
respondent] is not liable for any claim or damages arising from the
existence, construction, use
or maintenance of any provincial road,
except where the loss or damage was caused by the wilful or negligent
act or omission of an
official.’
On behalf of the appellant it was submitted that the liability
excluded by the section was limited to a liability which could
notionally
arise in circumstances where the ‘existence,
construction, use or maintenance’ of a provincial road was the
responsibility of
a municipality or some other person and not that of
the Minister. This construction was founded on the definition of
‘official’ and various other provisions of the Act. I am not
sure
that this is correct. But what is quite plain is that a negligent
omission of an official in relation to the matters referred
to is
expressly excluded from the exemption contained in the section.
[12] The second inquiry is whether there was fault, in this case
negligence. As is apparent from the much quoted
dictum
of
Holmes JA in
Kruger v Coetzee
1966 (2) SA 428
(A) at 430E-F,
the issue of negligence itself involves a twofold inquiry. The first
is; was the harm reasonably foreseeable? The
second is; would the
diligens paterfamilias
take reasonable steps to guard against
such occurrence and did the defendant fail to take those steps? The
answer to the second inquiry
is frequently expressed in terms of a
duty. The foreseeability requirement is more often than not assumed
and the inquiry is said
to be simply whether the defendant had a duty
to take one or other step, such as drive in a particular way or
perform some or other
positive act, and, if so, whether the failure
on the part of the defendant to do so amounted to a breach of that
duty. But the word
‘duty’, and sometimes even the expression
‘legal duty’, in this context, must not be confused with the
concept of ‘legal
duty’ in the context of wrongfulness which, as
has been indicated, is distinct from the issue of negligence. I
mention this because
this confusion was not only apparent in the
arguments presented to us in this case but is frequently encountered
in reported cases.
The use of the expression ‘duty of care’ is
similarly a source of confusion. In English law ‘duty of care’ is
used to denote
both what in South African law would be the second leg
of the inquiry into negligence and legal duty in the context of
wrongfulness.
As Brand JA observed in the
Trustees, Two Oceans
Aquarium Trust
case, at 144F, ‘duty of care’ in English law
‘straddles both elements of wrongfulness and negligence’.
[13] In the present case the reasonable foreseeability of harm to
users of the road in consequence of potholes was not in issue.
Mr
George Hattingh, a consulting engineer who gave evidence on behalf of
the respondents, readily conceded that quite apart from
the damage
caused to vehicles by driving over large potholes, their presence in
the road was likely to cause drivers to swerve to
avoid them which
could result in collisions with other vehicles or pedestrians,
particularly in wet weather when a swerving vehicle
was likely to
skid. The circumstances of the appellant’s accident were admittedly
somewhat unusual but it is well established that
it is sufficient if
the general nature of the harm to the injured party was foreseeable;
it is not necessary that the precise manner
of its occurrence be
foreseeable.
[14] The crucial question, therefore, is the reasonableness or
otherwise of the respondents’ conduct. This is the second leg of
the negligence inquiry. Generally speaking, the answer to the inquiry
depends on a consideration of all the relevant circumstances
and
involves a value judgment which is to be made by balancing various
competing considerations including such factors as the degree
or
extent of the risk created by the actor’s conduct, the gravity of
the possible consequences and the burden of eliminating the
risk of
harm. See eg
Cape Metropolitan Council v Graham
2001 (1) SA
1197
(SCA) para 17. Where, however, a public authority is involved a
further consideration arises. It is this; a court when determining
the reasonableness or otherwise of an authority’s conduct will in
principle recognise the autonomy of the authority to make decisions
with regard to the exercise of its powers. Typically, a court will
not lightly find a public authority to have failed to act reasonably
because it elected to prioritize one demand on its possibly limited
resources above another. Just where the line is to be drawn is
no
easy matter and the question has been the subject of much judicial
debate both in England and other Commonwealth countries. See
eg
Stovin v Wise
[1996] UKHL 15
;
[1996] AC 923
(HL);
Gorringe v Calderdale
Metropolitan Borough Council
[2004] UKHL 15
;
[2004] 2 All ER 326
(HL);
Barratt
v District of North Vancouver
(1980) 114 DLR (3
rd
) 577
(SCC);
Brodie v Singleton Shire Council
[2001] HCA 29
;
(2001) 206 CLR 512
(HC
of A) paras 161-162. But whether the criterion to be applied is
ultimately one of rationality or some other principle is unnecessary
to decide. What, I think, is clear is that if in the actual
implementation of a policy or procedure adopted by the authority, or
for that matter in the course of its operations, foreseeable harm is
suffered by another in consequence of a failure on the part
of the
authority’s servants to take reasonable steps to guard against its
occurrence, a court will not hesitate to hold the authority
liable on
account of that omission. Indeed, as I read s 9(3) of the
KwaZulu-Natal Provincial Roads Act, whatever its precise ambit
may
be, there can be no doubt that omissions of this nature were intended
by the legislature to be excluded from the general exemption
embodied
in the section.
[15] It was common cause that the P164 was the subject of weekly
routine inspections. The evidence revealed that the pothole in
question
had been in existence for something like a year prior to the
accident. During this period it had been allowed to develop to a
stage
where it had attained the dimensions of a degree 3 or degree 5
pothole depending on which code was applied. No explanation was
forthcoming
as to why, notwithstanding the weekly inspections, it was
not repaired. The inference that arises is that it was either not
observed
in the course of the inspections or it was not reported. It
was not in dispute that the repair of potholes constituted ‘routine
maintenance’, as opposed to ‘normal maintenance’ (resurfacing
of roads) and ‘long term maintenance’ (rehabilitation of
roads).
According to the experts the repair of potholes was a priority, both
with regard to the safety of road users and the preservation
of the
structural integrity of the road. No evidence was led to establish
that by reason of the lack of funds the repair of potholes
was
neglected in favour of some other priority. Nor was there evidence to
suggest the existence of a policy to select some potholes
for repair
ahead of others and, if so, the basis upon which such a selection was
made. Mr Hattingh, the consulting engineer who testified
on behalf of
the respondents, expressed the view that the pothole in question was
of a low priority because of its location on the
barrier line. But
this was clearly an afterthought. No one from the Department
suggested that this was the reason why it had not
been repaired. In
any event, its very existence and the fact it had attained the size
it had demonstrated that vehicles drove over
it. According to the
appellant – and this was confirmed by the photographs – it was
possible to see if there was oncoming traffic
when coming down the
hill. In these circumstances although an offence, it would not have
been negligent for road users to drive on
or straddle the barrier
line when descending the hill. As previously indicated, the P164 was
not in a built-up area. The speed limit
was 100 kph. There were no
signs warning road-users of the existence of potholes. These were
only erected after the accident. No
rational reason presents itself
as to why the pothole was left unrepaired for so long; nor was one
advanced. In the circumstances
the inference of negligence on the
part of the respondents’ servants responsible for the inspection
and repair of potholes on the
P164 is irresistible.
[16] There remains the question of the appellant’s own negligence,
which the respondents pleaded in the alternative was a contributory
cause of the accident. When riding up the hill the appellant did not
see the pothole in question. This was, no doubt, because he
rode on
the left side of the group, ie the side closest to the left side of
the road. But once he commenced his descent he did observe
a pothole.
Nonetheless, he proceeded downhill at a speed which left little room
for error. A cyclist trundling along a suburban road
would normally
have no difficulty avoiding a pothole. But the appellant’s speed
was such that when he did see the pothole he was
unable to adjust the
path of his travel by only the few centimetres necessary to avoid the
pothole without losing control of his
bicycle. Being aware of the
existence of potholes, his speed in these circumstances was to my
mind excessive and amounted to negligence
on his part.
[17] The degree to which the respective fault of two parties
contributed to a single occurrence is always a difficult matter and
is essentially a matter of judicial judgment. The appellant described
the pothole which he first saw when coming down the hill, as
‘small’.
As I have indicated, its existence should have alerted him to the
danger. But the pothole which resulted in his fall
had been allowed
to grow to such a size as to be described as creating a dangerous
situation. Given that the road was inspected on
a weekly basis, the
failure to repair the pothole over such a long period is indicative,
I think, of a greater degree of negligence
than that attributable to
the appellant. In the circumstances an apportionment of 60 : 40 in
favour of the appellant seems to me
to be fair and equitable in all
the circumstances.
[18] The appeal is upheld with costs. The order of the court
a quo
is set aside and the following substituted in its stead.
‘
(1) The defendants are ordered to pay 60 per
cent of the plaintiff’s damages as may be agreed or proved.
(2) The defendants are ordered to pay the plaintiff’s costs, such
costs to include:
(i) the costs occasioned by the employment of two counsel;
(ii) The qualifying expenses of the following witnesses: Visser,
Bennett, Van Heerden, Rossouw and Grobbelaar.
The matter is adjourned
sine die
for the determination of the
quantum of the plaintiff’s damages.’
­­__________
D G SCOTT
JUDGE OF APPEAL
CONCUR:
MTHIYANE JA
NUGENT JA
MAYA JA
HURT AJA
1
The
second respondent is the MEC for the Department of Transport for
KwaZulu-Natal.