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[2018] ZANCHC 60
|
|
Loots v MEC for Transport, Roads and Public Works (587/2014) [2018] ZANCHC 60 (5 September 2018)
HIGH
COURT OF SOUTH AFRICA
[NORTHERN
CAPE DIVISION, KIMBERLEY]
Case
No: 587/2014
In the
matter between:
CATHARINA
ELIZABETH
LOOTS Plaintiff
and
THE MEC
FOR TRANSPORT, ROADS AND PUBLIC
WORKS
Defendant
Coram: Lever AJ
JUDGMENT
The plaintiff
in this action is an adult businesswoman who claims delictual
damages from the defendant arising out of a motor
vehicle accident
in which she suffered injuries. Although, the quantum and the merits
of plaintiff’s claim were separated
by agreement, the evidence
established that the injuries had far reaching consequences for the
plaintiff, who was in and out
of hospital long after the accident
had occurred.
The accident is
alleged to have occurred on the 10 April 2011. Plaintiff pleaded
that the accident occurred on a public road being
the R31 between
Hotazel and Kuruman, approximately three kilometres from Kuruman.
Plaintiff pleaded that the accident was caused
by her vehicle
hitting a pothole, whereafter she lost control of her vehicle which
then rolled.
Plaintiff
pleaded that the defendant had the duty to maintain the R31,
alternatively
that the defendant was under a legal duty to
ensure that the condition of the R31 was such that it could safely
be utilised by
road users.
Further alternatively
, that
appropriate road signs would warn users of the R31 of any dangerous
conditions on the road so that they might take appropriate
action to
avoid them.
Plaintiff
pleaded that the defendant was in breach of his legal duty in that:
he failed to repair the relevant pothole in accordance
with his
legal duty to maintain the road when he could reasonably have done
so; and he failed to put up any,
alternatively
adequate road
signs to warn motorists to be aware of potholes or any other unsafe
conditions on the road surface.
Further,
plaintiff pleaded that as a result of the defendant’s neglect
she hit the relevant pothole causing her vehicle
to roll which
resulted in the injuries she suffered.
Defendant
pleaded that he had no knowledge of the date of the accident or the
particulars of the vehicle plaintiff was driving
and put plaintiff
to the proof of those contentions. Defendant further denied the
contention that the relevant accident was caused
by a pothole in the
road. Defendant pleaded that the relevant accident was caused by the
negligence of the plaintiff. Defendant
pleaded that plaintiff was
negligent in one or more of the following respects: She travelled at
an excessive speed; she failed
to keep her motor vehicle under
proper control; she failed to apply her brakes adequately, timeously
or alternatively, at all;
she failed to prevent the accident when by
the exercise of reasonable care she could and should have done so;
she failed to exercise
the care expected of a prudent driver when
she could and should have under the circumstances; and she failed to
take cognisance
and abide by the general rules and regulations of
the road.
Defendant
further pleads that in the event of the court finding that he was
negligent in failing to repair the relevant pothole
then he pleaded
that the negligence of the plaintiff contributed to her damages and
that any award of damages should be apportioned
accordingly.
Defendant
admitted that the R31 is a public road. Defendant also admits that
he has a public duty and responsibility to maintain
the provincial
roads. However, defendant pleaded that such responsibility was
subject to human and financial resources. Defendant
further pleaded
that he in fact had a maintenance programme for the road in
question. Defendant denies the contention that he
failed to display
road signs regarding the condition of the road. Defendant also
pleaded that the speed limit along the R31 differed
according to the
condition of the road.
Defendant
denied the contention that he was negligent in failing to repair the
relevant pothole and also pleaded that plaintiff
did not comply with
the road traffic warning signs on that stretch of road and that
plaintiff failed to reduce her speed. Defendant
also pleaded that
neither he nor his employees acted wilfully or negligently.
Plaintiff’s
claim is not based on a positive act or action on the part of the
defendant or his employees acting within the
course and scope of
their employment, but rather a failure to act or an omission when
there can be said to be a legal duty to
have performed the
maintenance concerned or warned of the danger so that the plaintiff
herself could have taken appropriate action
to avoid the harm. A
positive act which might cause harm on the part of the defendant or
his employees would be
prima facie
wrongful. However, where
there is a failure to act, this is not the case.
The legal
position in respect of an omission was dealt with, set out and
restated by Scott JA in the Supreme Court of Appeal (SCA)
the case
of
McIntosh v Premier Kwazulu-Natal
1
.
The passage quoted is a lengthy one, but it is necessary to
quote it, at least to the extent that I have, because it
authoritatively
and succinctly sets out the legal position. The SCA
in the
McIntosh
matter, set out the legal position as
follows:
“
[
1
1
]
A
s
re
p
e
a
t
e
d
l
y
s
ta
t
e
d
b
y
t
h
i
s
C
o
ur
t
,
a
n
e
g
l
i
g
en
t
o
m
i
s
s
i
on
,
u
n
l
e
s
s
w
r
on
g
f
u
l
w
i
l
l
n
o
t
gi
v
e
r
i
s
e
t
o
d
e
l
ic
t
u
a
l
l
i
a
b
i
li
t
y
.
Mor
e
r
e
cen
t
l
y
i
n
Tr
u
stee
s
,
Two
Oceans
Aquarium
Tr
u
st
v
Kantey
&
Templer
(
P
t
y
)
Ltd
200
6
(3
)
S
A
1
3
8
(SC
A
)
[
als
o
r
ep
o
rte
d
a
t
[
2
0
0
7
]
1
A
l
l
S
A
2
4
0
(SCA
)
-
Ed
]
Bran
d
JA
,
a
t
144A-C
,
pa
r
agrap
h
10
,
exp
l
aine
d
th
e
requ
i
remen
t
o
f
wr
o
n
g
f
u
ln
e
s
s
a
s
f
o
l
l
o
w
s
:
"
Negligen
t
co
n
duc
t
manifest
i
n
g
itsel
f
i
n
th
e
for
m
o
f
a
positi
v
e
a
c
t
c
ausin
g
physic
a
l
d
a
mag
e
t
o
th
e
propert
y
o
r
pe
r
so
n
o
f
an
o
the
r
i
s
pri
m
a
fac
i
e
w
rongf
u
l
.
I
n
tho
s
e
case
s
,
wrong
f
ulnes
s
i
s
there
f
or
e
se
l
do
m
con
t
entio
u
s
.
Wher
e
t
h
e
ele
m
en
t
o
f
wr
o
ngf
u
ln
e
s
s
be
c
ome
s
les
s
str
a
igh
t
for
w
ar
d
i
s
wi
t
h
re
f
ere
n
c
e
t
o
l
iab
i
lit
y
fo
r
n
egl
i
gen
t
omi
s
sio
n
s
an
d
f
o
r
n
e
gli
g
en
t
l
y
c
a
u
s
e
d
p
u
r
e
e
c
o
n
o
m
i
c
l
o
s
s
(
s
e
e
e
g
M
i
niste
r
o
f
S
afet
y
an
d
S
ecurit
y
v
V
a
n
Du
i
venbode
n
2
00
2
(
6
)
S
A
4
3
1
(
SCA
)
(
[
2002]
3
Al
l
S
A
7
4
1
)
i
n
p
a
r
a
[
1
2
]
;
Goud
a
Boerd
e
r
y
B
K
v
T
r
ansne
t
20
0
5
(
5
)
S
A
4
9
0
(
S
C
A
)
(
[2
0
04
]
4
Al
l
S
A
50
0
)
i
n
par
a
[12])
.
I
n
t
h
es
e
i
n
stances
,
i
t
i
s
s
a
id
,
w
rongfuln
e
s
s
de
p
end
s
o
n
th
e
exis
t
enc
e
o
f
a
lega
l
dut
y
no
t
t
o
ac
t
n
e
g
li
g
e
n
tl
y
.
T
h
e
i
m
p
os
i
t
i
o
n
o
f
s
uc
h
a
l
e
g
a
l
d
u
t
y
i
s
a
m
at
t
e
r
fo
r
j
u
di
c
i
a
l
d
e
t
e
rm
i
n
a
ti
o
n
i
nv
o
l
v
in
g
c
r
it
e
r
i
a
o
f
p
u
bl
i
c
o
r
l
e
g
a
l
po
l
ic
y
c
o
n
s
is
t
en
t
w
i
t
h
co
n
s
t
it
u
ti
o
n
a
l
n
or
m
s.
"
T
h
e
learne
d
Judg
e
continue
d
a
t
144I
,
paragrap
h
12
;
"
.
.
.
wh
e
n
w
e
sa
y
t
ha
t
ne
g
lige
n
t
con
d
uc
t
.
.
.
c
o
nsis
t
in
g
o
f
a
n
omis
s
io
n
i
s
n
o
t
wr
o
ngfu
l
,
w
e
int
e
n
d
t
o
c
o
nve
y
t
ha
t
pu
b
li
c
o
r
l
e
g
a
l
p
o
li
c
y
c
o
n
s
i
de
r
a
t
i
o
n
s
de
t
e
r
m
i
n
e
th
a
t
t
h
e
r
e
s
h
ou
l
d
b
e
n
o
l
i
a
bi
l
i
t
y
;
t
h
a
t
th
e
p
o
t
e
n
t
ia
l
d
e
f
e
n
d
an
t
s
h
o
u
l
d
n
o
t
b
e
s
ubje
c
te
d
t
o
a
cla
i
m
fo
r
dam
a
ges
,
hi
s
o
r
he
r
neg
l
igenc
e
n
otwi
t
hstan
d
ing
.
I
n
s
u
c
h
even
t
,
th
e
que
s
tio
n
o
f
f
a
ul
t
doe
s
n
o
t
eve
n
aris
e
.
T
h
e
d
e
fend
a
n
t
e
njoy
s
imm
u
nit
y
aga
i
ns
t
liabi
l
it
y
fo
r
suc
h
con
d
uct
,
whet
h
e
r
negli
g
en
t
o
r
n
o
t
.
.
.
.
"
[
1
2
]
Th
e
se
c
on
d
in
q
ui
r
y
i
s
wh
e
th
e
r
th
e
r
e
w
a
s
f
au
l
t
,
i
n
t
h
i
s
c
as
e
ne
g
li
g
en
c
e
.
A
s
i
s
ap
p
ar
e
n
t
f
ro
m
th
e
mu
c
h
qu
o
te
d
dict
u
m
o
f
H
olmes
JA
in
K
r
u
ge
r
v
Coet
z
e
e
1
9
6
6
(2
)
S
A
42
8
(
A
)
a
t
430E-
F
[a
l
s
o
repor
t
e
d
a
t
[1966]
2
All
SA
4
90
(
A
)
-
Ed]
,
th
e
issu
e
o
f
negligenc
e
itsel
f
involve
s
a
twof
o
l
d
inquiry
.
Th
e
firs
t
is
;
wa
s
th
e
har
m
reasonabl
y
f
ore
s
eea
b
le
?
T
h
e
se
c
on
d
i
s
;
w
o
ul
d
t
h
e
dili
g
en
s
pa
t
erfa
m
ilia
s
t
ak
e
rea
s
onabl
e
s
tep
s
t
o
g
uar
d
ag
a
ins
t
su
c
h
oc
c
ur
r
en
c
e
an
d
d
i
d
t
h
e
de
f
e
n
da
n
t
fa
i
l
t
o
t
a
k
e
t
h
os
e
s
te
p
s
?
T
h
e
a
n
sw
e
r
t
o
t
h
e
se
c
on
d
i
n
q
ui
r
y
i
s
f
r
eq
u
en
t
l
y
e
xpres
s
e
d
i
n
ter
m
s
o
f
a
duty
.
T
h
e
fore
s
eeabil
i
t
y
requ
i
remen
t
i
s
mor
e
of
t
e
n
tha
n
no
t
a
ssume
d
a
n
d
th
e
in
q
uir
y
i
s
sai
d
t
o
b
e
simpl
y
w
hethe
r
th
e
defendan
t
ha
d
a
dut
y
t
o
tak
e
on
e
o
r
othe
r
step
,
suc
h
a
s
d
r
iv
e
i
n
a
partic
u
la
r
w
a
y
o
r
p
e
rf
o
r
m
s
o
m
e
o
r
o
t
he
r
pos
i
ti
v
e
a
c
t
,
a
nd
,
i
f
s
o
,
w
h
et
h
e
r
t
h
e
f
a
il
u
r
e
o
n
th
e
pa
r
t
o
f
th
e
d
ef
e
nd
a
n
t
t
o
d
o
s
o
amount
e
d
t
o
a
breac
h
o
f
th
a
t
duty
.
Bu
t
th
e
wor
d
"duty"
,
a
n
d
someti
m
e
s
eve
n
th
e
ex
p
r
e
s
s
io
n
"
l
eg
a
l
d
ut
y
"
,
i
n
t
hi
s
c
o
nt
e
x
t
,
m
u
s
t
n
o
t
b
e
c
on
f
u
s
e
d
w
i
t
h
t
h
e
c
o
n
c
e
p
t
o
f
"l
e
g
a
l
d
u
t
y
"
i
n
th
e
c
o
nt
e
x
t
o
f
wr
o
ngf
u
lne
s
s
wh
i
ch
,
a
s
ha
s
bee
n
i
ndi
c
ate
d
,
i
s
d
ist
i
nc
t
f
ro
m
t
h
e
is
s
u
e
o
f
neg
l
ige
n
ce
.
I
men
t
io
n
t
hi
s
b
e
cau
s
e
th
i
s
c
o
n
f
u
s
io
n
wa
s
no
t
on
l
y
a
pp
a
r
e
n
t
i
n
t
h
e
a
r
g
u
me
n
t
s
p
r
e
s
e
nt
e
d
t
o
u
s
i
n
t
h
i
s
c
a
s
e
b
u
t
i
s
f
r
e
q
u
en
t
l
y
enc
o
unt
e
re
d
i
n
r
e
po
r
te
d
c
a
ses
.
T
h
e
us
e
o
f
t
h
e
exp
r
es
s
io
n
"d
u
t
y
o
f
c
a
re
"
i
s
s
i
mil
a
rl
y
a
s
o
urc
e
o
f
c
onf
u
si
o
n
.
I
n
Eng
l
is
h
l
a
w
"d
u
t
y
o
f
c
ar
e
"
i
s
us
e
d
t
o
de
n
ot
e
b
ot
h
w
h
a
t
i
n
S
ou
t
h
A
fr
i
ca
n
l
a
w
wo
u
l
d
b
e
t
h
e
se
c
on
d
l
e
g
o
f
t
h
e
inqu
i
r
y
int
o
n
e
glig
e
nc
e
an
d
l
e
ga
l
du
t
y
i
n
t
h
e
cont
e
x
t
o
f
wro
n
gful
n
ess
.
A
s
B
r
an
d
J
A
ob
s
erve
d
i
n
t
h
e
Trustee
s
,
Tw
o
Ocea
n
s
Aquar
i
u
m
Trus
t
c
a
se
,
a
t
1
44
F
,
"d
u
t
y
o
f
c
a
re
"
i
n
E
n
gl
i
s
h
l
a
w
"
s
tr
a
dd
l
e
s
b
ot
h
e
le
m
en
t
s
o
f
wr
o
ng
f
u
l
ne
s
s
a
n
d
ne
g
l
i
ge
n
ce
"
.
[
1
3
]
I
n
th
e
presen
t
cas
e
th
e
re
a
sonabl
e
foreseeab
i
lit
y
o
f
har
m
t
o
u
s
er
s
o
f
th
e
roa
d
i
n
conse
q
uenc
e
o
f
poth
o
le
s
w
a
s
n
o
t
i
n
i
s
s
u
e
.
M
r
G
eo
r
g
e
H
a
t
t
i
ng
h
,
a
c
o
n
s
u
l
t
i
n
g
e
n
g
i
n
e
e
r
w
h
o
g
a
v
e
e
v
i
d
e
n
c
e
o
n
b
e
h
a
l
f
o
f
t
h
e
r
e
s
p
o
n
d
e
n
t
s
,
readil
y
con
c
ede
d
tha
t
quit
e
apar
t
fr
o
m
th
e
dam
a
g
e
c
ause
d
t
o
v
ehicle
s
b
y
driv
i
n
g
o
ve
r
l
arg
e
pothol
e
s
,
t
hei
r
p
r
e
s
e
n
c
e
i
n
t
h
e
ro
a
d
w
a
s
l
i
k
e
l
y
t
o
c
a
us
e
d
r
i
v
e
r
s
t
o
s
w
e
rv
e
t
o
a
v
o
i
d
t
h
e
m
w
hi
c
h
c
o
u
l
d
r
e
s
u
l
t
i
n
co
l
l
i
s
i
o
n
s
w
it
h
o
t
h
e
r
v
e
h
i
c
l
e
s
o
r
p
e
d
e
s
t
r
i
a
n
s
,
p
a
r
t
i
c
u
l
a
r
l
y
i
n
w
e
t
w
e
a
th
e
r
w
h
e
n
a
s
w
e
r
v
i
n
g
v
e
h
i
c
l
e
w
a
s
l
i
k
e
l
y
t
o
s
k
i
d
.
T
h
e
circ
u
mst
a
nce
s
o
f
t
h
e
app
e
lla
n
t'
s
a
c
cid
e
n
t
wer
e
a
d
mit
t
edl
y
s
o
mew
h
a
t
un
u
sua
l
b
u
t
i
t
i
s
wel
l
e
s
tab
l
ish
e
d
t
ha
t
i
t
i
s
sufficie
n
t
i
f
th
e
genera
l
n
a
tur
e
o
f
th
e
har
m
t
o
t
h
e
i
njure
d
par
t
y
wa
s
foresee
a
ble
;
i
t
i
s
no
t
nec
e
ssar
y
tha
t
th
e
p
recis
e
ma
n
ne
r
o
f
it
s
occurrenc
e
b
e
foreseeable
.
[
1
4
]
Th
e
crucia
l
q
u
estion
,
th
e
refore
,
i
s
th
e
r
e
asonable
n
es
s
o
r
otherwi
s
e
o
f
th
e
respond
e
nts
'
condu
c
t
.
Thi
s
i
s
th
e
se
c
on
d
l
e
g
o
f
t
h
e
n
e
g
l
ig
e
nc
e
i
nq
u
ir
y
.
G
e
ne
r
al
l
y
sp
e
ak
i
n
g
,
th
e
a
ns
w
e
r
t
o
t
h
e
i
nq
u
ir
y
d
ep
e
nd
s
o
n
a
c
onsider
a
tio
n
o
f
al
l
th
e
re
l
evan
t
circ
u
mstance
s
a
n
d
i
nvolve
s
a
val
u
e
j
udgmen
t
wh
i
c
h
i
s
t
o
b
e
mad
e
b
y
b
alancin
g
variou
s
competin
g
consideration
s
includin
g
suc
h
factor
s
a
s
th
e
degre
e
o
r
exten
t
o
f
th
e
ris
k
create
d
b
y
t
h
e
acto
r
'
s
con
d
uct
,
th
e
g
r
avit
y
o
f
t
h
e
p
o
ssi
b
l
e
cons
e
quen
c
e
s
an
d
th
e
bu
r
de
n
o
f
eli
m
inat
i
n
g
th
e
ris
k
o
f
h
arm
.
S
e
e
e
g
C
a
p
e
M
et
r
op
o
l
i
ta
n
Co
u
nc
i
l
v
Gr
a
ha
m
2
0
0
1
(
1
)
S
A
1
1
9
7
(SCA
)
[
als
o
r
e
port
e
d
a
t
[2
0
01
]
1
Al
l
S
A
2
1
5
(A
)
-
E
d
]
paragrap
h
17
.
Where
,
however
,
a
publi
c
authorit
y
i
s
involve
d
a
furthe
r
consideratio
n
a
rises
.
I
t
i
s
this
:
a
cour
t
whe
n
determinin
g
th
e
reasonablenes
s
o
r
otherwis
e
o
f
a
n
authority'
s
conduc
t
wil
l
i
n
pri
n
ci
p
l
e
re
c
og
n
is
e
t
h
e
au
t
ono
m
y
o
f
t
h
e
a
ut
h
or
i
t
y
t
o
m
a
k
e
de
c
is
i
on
s
w
i
t
h
r
e
gar
d
t
o
th
e
e
x
er
c
is
e
o
f
i
t
s
po
w
er
s
.
Ty
p
i
c
al
l
y
,
a
c
o
u
r
t
w
il
l
no
t
li
g
h
t
l
y
f
in
d
a
pu
b
l
i
c
a
u
th
o
r
i
t
y
t
o
h
a
v
e
f
ai
l
e
d
t
o
a
c
t
r
e
as
o
n
a
b
l
y
be
c
a
u
s
e
i
t
e
l
ec
t
e
d
t
o
p
rioritis
e
o
n
e
deman
d
o
n
it
s
possibl
y
limite
d
res
o
urce
s
abov
e
another
.
Jus
t
wher
e
th
e
lin
e
i
s
t
o
b
e
draw
n
i
s
n
o
e
as
y
matte
r
an
d
th
e
quest
i
o
n
ha
s
bee
n
th
e
subjec
t
o
f
muc
h
judicia
l
debat
e
bot
h
i
n
Englan
d
an
d
othe
r
C
om
m
onw
e
al
t
h
co
u
ntr
i
es
.
Se
e
e
g
St
o
vi
n
v
W
i
s
e
[
1
996
]
A
C
9
2
3
(H
L
)
;
G
or
r
i
n
g
e
v
C
a
l
de
r
d
a
l
e
M
et
r
o
p
ol
i
t
a
n
B
o
ro
u
g
h
C
ou
n
ci
l
[
2004
]
2
Al
l
E
R
32
6
(HL)
;
Ba
r
ra
t
t
v
D
i
st
r
i
c
t
of
N
o
r
t
h
Va
n
c
o
uv
e
r
(
1
98
0
)
1
1
4
D
L
R
(
3
r
d
)
5
7
7
(SCC
)
;
Br
od
i
e
v
S
ing
l
eto
n
S
hir
e
C
o
unc
i
l
(
2001
)
20
6
C
L
R
51
2
(H
C
o
f
A
)
p
a
ragrap
h
s
1
61-162
.
B
u
t
wheth
e
r
t
h
e
crite
r
io
n
t
o
b
e
applie
d
i
s
ulti
m
atel
y
on
e
o
f
ratio
n
alit
y
o
r
som
e
othe
r
pri
n
cipl
e
i
s
unnec
e
ssar
y
t
o
decid
e
.
W
h
at
,
I
th
i
nk
,
i
s
c
lea
r
i
s
t
h
a
t
i
f
i
n
t
h
e
a
c
t
u
a
l
i
m
p
l
e
m
e
n
t
a
t
i
o
n
o
f
a
polic
y
o
r
proc
e
dur
e
ad
o
pte
d
b
y
t
h
e
auth
o
rity
,
o
r
fo
r
th
a
t
matte
r
i
n
th
e
co
u
rs
e
o
f
i
t
s
opera
t
ions
,
f
orese
e
abl
e
ha
r
m
i
s
s
u
f
fe
r
e
d
b
y
a
n
ot
h
e
r
i
n
c
o
ns
e
qu
e
n
c
e
o
f
a
f
a
i
lu
r
e
o
n
t
h
e
p
a
r
t
o
f
t
h
e
a
u
t
h
or
i
t
y
'
s
s
er
v
an
t
s
t
o
ta
k
e
re
a
so
n
ab
l
e
st
e
p
s
t
o
g
ua
r
d
ag
a
i
n
s
t
i
t
s
oc
c
ur
r
en
c
e
,
a
c
o
ur
t
w
i
l
l
no
t
h
es
i
ta
t
e
t
o
h
o
l
d
t
h
e
au
t
h
o
ri
t
y
li
a
bl
e
o
n
a
ccoun
t
o
f
tha
t
omi
s
sion
.
In
d
eed
,
a
s
I
re
a
d
secti
o
n
9(3
)
o
f
th
e
K
waZulu
-
Nata
l
P
r
ovinci
a
l
Road
s
Ac
t
,
whate
v
e
r
it
s
pre
c
is
e
amb
i
t
m
a
y
b
e
,
ther
e
c
a
n
b
e
n
o
d
oub
t
th
a
t
o
miss
i
on
s
o
f
thi
s
n
a
tur
e
we
r
e
i
nten
d
e
d
b
y
th
e
L
egis
l
atur
e
t
o
b
e
exc
l
ude
d
fr
o
m
th
e
ge
n
era
l
e
x
empti
o
n
embo
d
ie
d
i
n
t
h
e
sect
i
on
.”
As can be seen
from the
McIntosh
matter, a determination must first be made
as to whether in the circumstances of the particular case, the
omission can be said
to be wrongful. In other words, whether there
was a legal duty on the defendant not to act negligently. The next
enquiry is to
determine whether there was ‘fault’ on the
part of the defendant. In other words, whether the defendant can be
said
to have been negligent. The question of determining fault has
two parts. Firstly, a determination of whether the harm was
reasonably
foreseeable. Secondly, would a
diligens paterfamilias
take reasonable steps to guard against such harm.
As can be seen
from the pleadings set out above, the defendant has,
inter alia
,
placed in issue the question of factual causation. The test to
determine factual causation is the
sine qua non
test.
Sometimes referred to as the ‘…but for test’. As
Jansen J in the matter of
Celliers v South African Railways and
Harbours
2
put it: “Would the collision have occurred but for the
negligence of the defendant?”
This question
has been considered by the then Appellate Division (AD) in the
matter of
International Shipping Co (Pty) Ltd v Bentley
3
.
The AD in that matter set out the position as follows:
“As has
previously been pointed out by this Court, in the law of delict
causation involves two distinct enquiries. The first
is a factual one
and relates to the question as to whether the defendant's wrongful
act was a cause of the plaintiff's loss. This
has been referred to as
'factual causation'. The enquiry as to factual causation is generally
conducted by applying the so-called
'but-for' test, which is designed
to determine whether a postulated cause can be identified as a causa
sine qua non of the loss
in question. In order to apply this test one
must make a hypothetical enquiry as to what probably would have
happened but for the
wrongful conduct of the defendant. This enquiry
may involve the mental elimination of the wrongful conduct and the
substitution
of a hypothetical course of lawful conduct and the
posing of the question as to whether upon such an hypothesis
plaintiff's loss
would have ensued or not. If it would in any event
have ensued, then the wrongful conduct was not a cause of the
plaintiff's loss;
aliter, if it would not so have ensued. If the
wrongful act is shown in this way not to be a causa sine qua non of
the loss suffered,
then no legal liability can arise. On the other
hand, demonstration that the wrongful act was a causa sine qua non of
the loss
does not necessarily result in legal liability. The second
enquiry then arises, viz whether the wrongful act is linked
sufficiently
closely or directly to the loss for legal liability to
ensue or whether, as it is said, the loss is too remote. This is
basically
a juridical problem in the solution of which considerations
of policy may play a part.”
In summary, in
the present circumstances, this court must first decide whether the
plaintiff has established if there was an omission
in relation to
the harm that forms the basis of her claim. Then, assuming that
plaintiff establishes such an omission, this court
must then decide
whether the omission on the part of the defendant was wrongful.
Then, this court must consider whether there
was fault on the
defendant’s part in the particular circumstances of the case.
Then this court must consider whether the
plaintiff has established
both factual and legal causation in relation to the harm she has
suffered. In respect of the question
of legal causation, whether as
a matter of public policy, the defendant should be held liable for
the harm in the circumstances
of the case. Assuming, that both of
those questions are answered in favour of the plaintiff, I will then
proceed to consider
the question of contributory negligence.
The evidence of
the plaintiff was to the effect that on the 10 April 2011, which was
a Sunday, she was driving along the road
from Hotazel to Kuruman.
She was on her way to Bloemfontein as she was taking her son and
daughter back to school. The vehicle
was a Landcruiser Bakkie and
while she drove, her daughter sat next to her in the middle and her
son sat next to the passenger
side door. She was not in a hurry and
she was well within time to complete her journey. As she approached
Kuruman and approximately
10 kilometres before Kuruman it started
raining. At this point of her journey the speed limit was 80km/h.
She was driving below
that speed due to the rain. Her windscreen
wipers were on and she had to concentrate on the road.
Plaintiff
testified that she always adhered to the speed limit and had never
had a speeding fine. Also, that she had both of her
hands on the
steering wheel at the time. She did not see any warning signs
advising her how she should be driving. There were
no road signs
warning her of potholes. Plaintiff did not see a pothole, but she
later learnt that it was the pothole that caused
her to lose control
of her vehicle.
Plaintiff
testified that she did not see the pothole concerned that at the
relevant time it was raining and that there were no
warning signs in
respect of potholes. Also, at the relevant point, there were no
further reductions in the speed limit.
Plaintiff gave
a description of her injuries which were serious. After the accident
she spent three months in hospital. Thereafter
there was a period of
rehabilitation where plaintiff had to learn to walk again. Since
then plaintiff has been back to hospital
almost annually for
operations and procedures related to the consequences of the
accident concerned.
Under
cross-examination, plaintiff stated that she had personally driven
the same stretch of road some six weeks to two months
before the
accident and had not observed a pothole on the relevant stretch of
road at that time. That she had been a passenger
on a journey over
the same stretch of road about a month before such accident. That on
this journey she had not observed potholes,
but it must be
remembered that she did not drive, she was just a passenger on that
journey. Plaintiff also testified that she
had not seen any
roadworks on the relevant stretch of road.
It was put to
the plaintiff in cross-examination that the defendant would lead
evidence to show that there were roadworks on the
relevant stretch
of road. However, defendant failed to adduce this evidence when he
presented his case. In fact, defendant’s
case was that repairs
to the R31 started at the other end of the road. There was no
evidence to show that at the relevant time
there had been any work
done on the section of the road where the accident occurred.
Under
cross-examination plaintiff was asked if she was wearing a seat belt
at the material time. Without hesitation and in a direct
manner she
admitted that she had not been wearing a seat belt at the material
time. In the context of the evidence that was adduced
at the trial
by both parties, plaintiff could easily have concealed this fact.
This is strong evidence of plaintiff’s inherent
honesty. Which
confirms my observations of her demeanour and manner in which she
gave her evidence. When she was challenged with
certain prior
statements or correspondence, she gave direct and credible
explanations in a proper manner for what appeared in
such
correspondence or prior statement. The plaintiff impressed me as an
honest and credible witness who did not embellish the
facts, which
she stated simply and directly. If something was not within her
knowledge she stated this directly, if she was relying
on what she
had been told by others, she also made this clear.
In any event,
even if I am wrong on my assessment of the plaintiff’s
explanation in respect of the correspondence and prior
statement, it
will be seen from what is set out below, that the evidence that
established the defendant’s omission, the
wrongfulness of such
omission, the negligence that resulted in the harm suffered by the
plaintiff and the evidence that established
the factual as well as
the legal causation in relation to the defendant, came from sources
other than the plaintiff.
In
cross-examination it was specifically put to the plaintiff that the
relevant stretch of road was maintained during this period,
that
there were no warning signs because there were no potholes on the
relevant stretch of road. That speed caused the accident.
That the
defence witnesses would give such evidence. It is noted that the
evidence adduced by the defendant did not deal with
these issues
directly and did not by any means establish these contentions.
It was also put
to plaintiff that the cause of the accident was speeding on a rainy
day in foggy conditions. The plaintiff did
not agree with this
contention. However, defendant did not lead any direct evidence to
establish such contention.
Plaintiff then
called Ms Susannah Elizabeth Myburgh who testified that she took the
photographs that the plaintiff handed in as
an exhibit on the day of
the accident. That such photographs were taken between 15H30 and
17H00 shortly after the accident occurred.
These are the photographs
that appear at pages 64, 66 and 67 of the plaintiff’s bundle
used in the trial. The said photographs
were also published in the
Kuruman Bulletin, a local newspaper shortly after the accident.
Ms Myburgh
testified that the pothole was so broad that it was not possible for
the person depicted in the photograph of the pothole
to straddle
such pothole. She also testified that the pothole had water in it.
That she did not see another pothole. That whilst
she was on the
scene she did not see any signs warning road users about the
presence of potholes. That she did not observe any
road works in the
region of the pothole.
Under
cross-examination, Ms Myburgh maintained that she did not know the
plaintiff. That the scene of the accident was not even
500 metres
from Dr Grobbler’s home, where she and her husband had been
visiting Dr Grobbler and his wife.
In
cross-examination it was put to Ms Myburgh that photographs can be
‘photoshopped’ meaning that they can be edited
or
manipulated. Ms Myburgh agreed that it was possible to photoshop the
photographs. It was then put to Ms Myburgh that it would
not be
possible to see if a photograph had been photoshopped. To this Ms
Myburgh did not agree and explained that the edges of
an image
inserted into or manipulated in a photograph would be pixilated.
That this would show up as a white line around the
image which had
been manipulated and that this was not the case with the photographs
concerned.
Ms Myburgh also
testified that when she took the photographs concerned it had
stopped raining. She also expressed the opinion
that the rain could
have contributed to the pothole.
The plaintiff
then called Sonja Grobbler to give evidence. She identified the
photographs in the plaintiff’s bundle and
she identified
herself in the photographs in which she appeared. She also testified
that the photographs were taken on the 10
April 2011. She testified
that the photographs were taken between 16H00 and 17H00.
Ms Grobbler
testified that her husband is a doctor and that on the day in
question they had been having a braai with Mr and Mrs
Myburgh. That
they lived approximately some 500 metres from the scene of the
accident and that they had lived there for approximately
22 years.
That on the day in question the plaintiff’s son and a friend
came to ask for help from her husband.
That her
husband immediately went to render assistance as a doctor.
Ms Grobbler
further testified that she has lived in Kuruman for some 26 years.
That she knew the road between Hotazhel and Kuruman.
That she
travelled the relevant stretch of road some three or four times a
day. That she can’t give a specific date when
she first
observed the pothole concerned, but that it had been there for at
least three weeks before the accident.
Ms Grobbler
estimated that the pothole was between 1 and 1.3 metres wide at its
widest point. That in depth the pothole was about
20 centimetres
higher than ankle height. That there was water at the bottom of the
pothole. She also testified that there were
no warning signs warning
of the presence of a pothole on the date in question.
Ms Grobbler
also testified that there were no road works in the vicinity of the
pothole on the date in question. That the pothole
in the photograph
was about 50 metres from the wreck of the vehicle and that this was
the only large pothole before the wreck.
That the relevant pothole
was repaired some one or two weeks after the accident concerned.
Under
cross-examination Ms Grobbler testified that she had met the
plaintiff once or twice before the accident. That she knew
her by
sight. She also confirmed that this was the only big pothole between
the turn-off and the wreck. Ms Grobbler also testified
that there
were tracks in the grass that led from the pothole concerned to the
wreck of the plaintiff’s vehicle. Ms Grobbler
also confirmed
that the pothole had been there for at least three weeks before the
accident and that there had been no roadworks
on that stretch of
road for a long time before the accident.
The plaintiff
then closed her case.
The defendant
then called two witnesses being Mr Jaco Roelofse and Mr Joseph
Hermanus Botha. Mr Roelofse gave evidence to the
effect that he was
presently employed by the Northern Cape Department of Roads and
Public Works and that from July 2011 he was
the Director of Road
Planning and Design. Before that date and at the time of the
accident he worked for John Taolo Gaetsiwe
District Municipality as
its manager of infrastructure development. His involvement in the
R31 repair project at the time of
the accident was as a technical
manager coordinating different stakeholders to address defects on
the road, that he was also
the project engineer and certified
payments.
Mr Roelofse
confirmed that the relevant stretch of road where the accident was
reported to have occurred was the R31. That the
R31 is a trunk road
maintained by the provincial Department of Public Works. That the
John Taolo District Municipality acted
as the managing agent in
maintaining certain of the provincial roads on behalf of the
provincial department.
That due to the
mining boom at the time there was a great deal more pressure on the
road system. That in 2010 there was a survey
conducted and in 2011
two maintenance contracts were entered into. This critical
maintenance was partially funded by certain
mines and partially
funded by the provincial department. That in this, his
responsibility was that of the project engineer, he
approved the
standards and design and he also issued the final certification for
payment of contractors.
Mr Roelofse
testified that the increase in mine related traffic placed a major
strain on the road infrastructure. That when two
heavy mine
transport vehicles passed each other on narrow roads this would
cause shoulder breaks and sometimes potholes. From
March 2011 there
was a trial section of the first 30 kilometres to widen the road.
Mr Roelofse
testified that priority would be given to fixing potholes and
shoulder breaks that the highest risk areas would be
dealt with
first. Edge breaks that had the effect of narrowing the width of the
road surface to three metres or less were given
first priority. He
was not able to identify where the photograph on page 66 of the
bundle was taken. The relevant road was one
of two that he travelled
on a daily basis. The speed limit on the relevant stretch of road
was 80km/h and it went down to 60km/h
when it entered the built-up
residential area. That at the time of the accident there were some
problems on the relevant stretch
of road with edge breaks and
drop-offs in the level between the gravel shoulder and the tarred
surface of the road.
Under
cross-examination Mr Roelofse conceded that given the condition of
the road as disclosed in the report that appeared on
page 5 of the
defendant’s bundle that an accident was foreseeable and that
was the reason for starting the project.
Mr Roelofse
testified that R9 million was budgeted for this project. R3million
was to be provided by the Provincial Department
and R3million by
each of Assamang and BHP mines totalling R9million.
Mr Roelofse
testified that at the time of the accident the width of the road was
designed to be 3.4 metres and that given its
utilisation, it should
have been 3.7 metres wide. That if there was an edge break of 40
centimetres or more which would make
the usable tar surface of the
road three metres or less wide, this would be the first priority to
fix.
Mr Roelofse was
then shown the photograph on page 67 of plaintiff’s bundle and
was informed that it was not disputed that
the photograph was taken
on the 10 April 2011 and it showed that such pothole existed on that
date and that it had not been repaired.
Mr Roelofse agreed with this
statement. He also agreed that from what appeared on this photograph
that such section of the road
was unsafe. Further, he also agreed
that no warning signs were evident from the said photograph.
Mr Roelofse
confirmed that the defendant was responsible for maintaining the
R31. He testified that the foreman was responsible
for going out and
inspecting the road surfaces.
Mr Roelofse
further testified that the three certificates discovered by the
defendant added up to R1.8million of the R9million
budget available.
Mr Roelofse was
informed that Ms Grobbler had testified that the pothole concerned
had been there for at least three weeks and
that this was
undisputed. Which would mean that the pothole had been present from
the 20 March 2011 up to the date of the accident
and that in this
time it had not been repaired by the department. To this he replied:
“Based on what you say, I would agree.”
Mr Roelofse was
shown the photographs on pages 66 and 67 of the plaintiff’s
bundle and asked based upon what he saw in such
photographs whether
that should have been a priority to repair. He agreed that it should
have been a priority to repair such
pothole. Mr Roelofse agreed that
in all probability the defect in the road shown in the photographs
caused the accident concerned.
In
re-examination Mr Roelofse was asked the leading question: “The
department did not have enough funds to fix the roads?”
To
which he replied, yes.
He reaffirmed
in re-examination that the pothole concerned should have been a
priority and he could not rule it out as being the
cause of the
accident.
Then defendant
called Joseph Hermanus Botha. His evidence was to the effect that at
the time of the accident he worked under Mr
Roelofse at the John
Taolo Gaetsiwe District municipality. He reported to Mr Roelofse on
the R31 maintenance project. Inspections
were carried out once or
twice per week. His work involved measuring the work done and
reconciling that with the claims for materials
in preparation for
certifying the work done. The certificates were signed by Mr
Roelofse. The first 30 kilometre stretch was
handed to the
contractor and the contractor was responsible for prioritising the
repair work. From the photographs placed before
the court he was not
able to recognise the stretch of road where the accident occurred.
Under cross-examination he confirmed
that maintenance at the
material time commenced on the first 30 Kilometres from Hotazel
towards Kuruman.
Ms Mamanyahu,
who appeared for the defendant, criticised the plaintiff because she
had not called her two children who were passengers
in the motor
vehicle at the time of the accident to give evidence in the trial.
Ms Mamanyahu did not argue that I should draw
an inference from such
failure of plaintiff to call the said children. In any event I can
only draw an inference unfavourable
to the plaintiff if a proper
basis for drawing such inference had been laid. On the evidence
placed before me no basis had been
laid for drawing any inference.
In the circumstances I will not draw any inference from the
plaintiff’s failure to call
the said children to give evidence
in this matter.
Ms Mamanyahu
also argued that the plaintiff’s witnesses were known to each
other and they were sympathetic to the plaintiff.
The facts do not
support this in the case of Ms Myburgh. In the case of Ms Grobbler,
she admitted that she knew the plaintiff
by sight. No other
relationship was established on the evidence before me. There was
also no basis established to call into question
either the
reliability or the veracity of Ms Grobbler’s evidence into
question. In my view Ms Grobbler’s evidence
was not tainted by
any relationship she might have had with the plaintiff.
On my
assessment of the evidence, I have accepted the following as
established facts on the probabilities revealed by the evidence:
There was a
pothole on the relevant stretch of road. This evidence emerged from
the evidence of Ms Myburgh and Ms Grobbler.
This was substantiated
by the photographs that formed part of the record and which were
taken on the same day as the accident.
The evidence established
that these photographs were taken at most just a few hours after
the accident. The defendant did not
put up any direct evidence to
counter any of the evidence adduced on behalf of the plaintiff on
these issues;
The pothole
was the cause of the plaintiff losing control of her vehicle
resulting in the accident. This emerged from the cross-examination
of Ms Grobler, where she testified that there were tracks through
the grass leading from the pothole concerned to the wreck
of the
plaintiff’s vehicle. Again, there was no direct evidence from
the defendant to counter this evidence. On the contrary,
the
evidence led by the defendant tended to support this conclusion.
Further, there is no reason to doubt the reliability or
the
veracity of Ms Grobbler’s evidence on this issue;
In argument
dealing with this issue Ms Mamanyahu, Counsel for the defendant,
referred me to the case of
Meyer & Another v The Premier of
the North West Province & Another
4
(Meyer’s case) and submitted that there was no evidence
that the pothole caused the accident. The important distinction
on
the facts between
Meyer’s
case and the present case
is the observation and testimony by Ms Grobbler of the tracks in
the grass leading from the pothole
concerned to the wreck of the
plaintiff’s vehicle. Although plaintiff herself did not
observe the pothole and Ms Grobbler
did not observe the accident,
the existence of the tracks through the grass leading from the
pothole to the wreck of the
plaintiff’s vehicle is strong
evidence that it was indeed the cause of the accident and the harm
that plaintiff has
suffered as a result thereof. On the
probabilities I have concluded that such pothole did indeed cause
the said accident.
The pothole
concerned caused the relevant portion of the tarred road surface to
be less than three metres wide. One of the defendant’s
witnesses, Mr Roelofse conceded this from the photographs that
formed part of the record. Mr Roelofse further conceded that
resulting from this fact, such pothole was a priority to repair.
That it was foreseeable that such pothole could cause an accident.
That in all probability, the pothole caused the accident;
There were no
warning signs on the relevant stretch of road warning of the
presence of potholes. This was the evidence of the
plaintiff, Ms
Myburgh and Ms Grobbler. This is substantiated by the photographs
that formed part of the record;
The plaintiff
adhered to the speed limit immediately prior to the accident. This
was the evidence of the plaintiff. There was
no direct evidence to
indicate otherwise and no basis was set out in cross-examination to
doubt this assertion by the plaintiff;
The failure of
the plaintiff to wear her safety belt was negligent and probably
contributed to the harm that she suffered; and
No other basis
for contributory negligence has been established.
On the evidence
before me, clearly there was a pothole which had not been repaired
prior to the accident. Also, I have already
found that on the
probabilities, the pothole was the cause of the accident. The
question that I now have to consider is the wrongfulness
of the
failure to repair such pothole on the part of the defendant. The
defendant already having conceded that he was responsible
for the
maintenance of the relevant potion of the public road concerned.
In determining
if there was ‘wrongfulness’ on the part of the
defendant, the first question that has to be dealt with
is, was
there a legal duty on the defendant not to act negligently. The
defendant had conceded in the pleadings that he had the
duty to
maintain the provincial roads. The evidence established that the R31
is a provincial road. The defendant is the political
head of the
department charged with maintaining the provincial public roads. A
budget is allocated and people are employed by
such department to
effect such obligation to maintain the provincial roads. In
exercising this obligation to maintain the provincial
public roads,
public and legal policy would place a ‘legal duty’ on
the defendant not to act negligently.
The next
question to be considered and determined is, was their ‘fault’,
in the present case ‘negligence’
on the defendant’s
part, in failing to repair the pothole concerned or erect signs
warning of the danger to road users
of such pothole.
There was a
project in which the defendant and two mines that utilised the road
had pooled their resources to repair the road
and deal with problems
on the road. This in itself is an acknowledgement that there were
problems on the R31.
Ms Mamanyahu,
for the defendant, submitted that the rain had an effect on the
pothole and that on the basis of
Cape Town Municipality v
Bakkerud
5
that the defendant was not negligent as the accident happened on a
Sunday and the repair crews were not on site. In this Ms Mamanyahu
seeks to imply that the danger was created in circumstances where
the defendant could not reasonably act. There are two problems
with
this submission. Firstly, it was put to the plaintiff that the
defendant’s evidence would establish that this section
of road
was repaired. Secondly, the evidence of Ms Grobbler that the
relevant pothole had been present for a period of at least
three
weeks. The evidence that the pothole had existed for at least three
weeks prior to the accident, was not in any way challenged
by the
defendant in the evidence adduced on his behalf. Furthermore, it is
inherently improbable that a pothole of the size and
magnitude of
the pothole concerned would come into existence overnight, even if
rain had an influence on the said pothole. In
these circumstances, I
cannot uphold this argument.
The evidence
showed that the relevant pothole posed a danger to users of the R31.
In the circumstances, the harm was reasonably
foreseeable. In my
view a
diligens paterfamilias
would have taken steps to guard
against the occurrence of such harm. It is clear that the pothole
concerned was not repaired.
The available evidence which was not
directly challenged shows that no warning signs were erected to warn
road users of the danger
the relevant pothole posed. Indeed,
defendant took the position that warning signs were not required as
the relevant section
of road had been repaired. On the evidence
before me this was demonstrably false.
In the plea
filed on behalf of the defendant the defendant pleaded that he had
neither the financial nor the human resources to
repair the pothole
concerned. The evidence showed that the department allocated
R3million to the project and that two independent
mines each
contributed R3million to the project, giving a combined budget for
the project of R9million. The evidence showed that
a contractor was
appointed that it was left to the contractor to prioritise the
urgent repairs. The evidence shows that at the
time that the
accident occurred, the repairs were being done to the first thirty
kilometres from Hotazel towards Kuruman. In
other words, from the
other end of the road to where the relevant pothole was located.
There was no
attempt to explain why that was the starting point. There was no
attempt to explain why the remainder of the road
apart from the
first thirty kilometres from Hotazel was not monitored for priority
repairs.
The evidence
showed that Mr Roelofse, a witness for the defendant, issued
certificates for only R1.8million. There was no attempt
to explain
how the remaining R1.2million that the defendant’s department
contributed to this project was utilised. Similarly,
there was no
attempt to explain how the R6million contributed by the mines was
utilised. The only evidence that there were insufficient
funds was
the mere say so of Mr Roelofse. In the light of the defendant’s
failure to explain or deal with the issues set
out in this paragraph
this carries little, if any weight. Further, if there was a crisis
in maintaining the said provincial road,
there was no attempt to
explain why emergency funds could not be obtained from the
provincial or the national treasury.
If cost was
really an issue, then at the very least the defendant was required
to erect adequate warning signs to allow road users
to adjust their
driving accordingly. The erection of two or three road signs would
surely not be beyond the budget of the provincial
department. In any
event, there was no evidence before the court to suggest this was
the case.
In the light of
all of these issues, I am forced to the conclusion that the
defendant’s conduct was unreasonable in the
circumstances. In
other words, defendant’s conduct in failing to effect the
repair of the relevant pothole or his failure
to erect appropriate
road signs warning of the danger posed by the said pothole was
negligent.
I now turn to
the issues of both ‘factual causation’ and ‘legal
causation’. In applying the ‘but
for’ test to the
facts of the present case it is inescapable to conclude that if the
pothole had been repaired or if adequate
warning signs had been
erected, the accident would not have occurred. If the accident had
not occurred the plaintiff would not
have suffered the harm that she
did. Accordingly, the question of factual causation must be decided
in favour of the plaintiff.
The ‘legal
causation’ entails a determination of whether there are public
policy grounds upon which the defendant
should not be held liable
for the harm suffered by the plaintiff. For example, was the harm
foreseeable, was there a
novus actus interveniens
responsible
for the harm suffered by the plaintiff or was the harm suffered too
remote from the wrongful act itself. On the facts
of this case,
there was no
novus actus interveniens,
the harm suffered by
the plaintiff was reasonably foreseeable and it cannot be said that
the negligent omission was too far removed
or remote from the harm
suffered. In other words, there is no reason not to hold the
defendant liable for the harm suffered by
the plaintiff. Thus, the
question of ‘legal causation’ must also be answered in
favour of the plaintiff.
The final
question to be considered is the question of contributory
negligence. Ms Mamanyahu for the defendant, persisted that
the
plaintiff was negligent in that she drove too fast in the
circumstances and drove recklessly. That plaintiff was also
negligent
in not wearing a seatbelt. Ms Mamanyahu maintained that I
should find the plaintiff negligent in both respects. That
accordingly,
I should reduce plaintiff’s claim by 50% for
driving too fast or recklessly in the circumstances and that I
should reduce
plaintiff’s claim by a further 20% for not
wearing a seatbelt.
There was no
evidence to show that plaintiff drove too fast in the circumstances
or was in any other way reckless in the manner
in which she drove.
The only grounds upon which I can find the plaintiff negligent in a
manner that would have contributed to
the harm she suffered, is that
on her own admission, she did not wear a safety belt at the material
time.
In debating
this issue with both Ms Stanton, for the plaintiff and Ms Mamanyahu,
for the defendant, I raised the issue that I
had no evidence
available to me on how the plaintiff’s failure to wear her
seatbelt contributed to the harm she suffered.
Which injuries may
have been directly caused by that failure or which injuries may have
been exacerbated by that failure. There
was some evidence to suggest
that the plaintiff was thrown clear of the vehicle at some point.
This too may have exacerbated
her injuries, or it may have saved her
from other injuries. Both Counsel agreed, albeit reluctantly, with
my suggestion that
the apportionment of damages arising from the
failure to wear a safety belt be reserved for the court that dealt
with the quantum
should I find for the plaintiff and such order had
already been made when I reserved my judgment herein.
The final
question to be considered is the issue of costs. Ms Mamanyahu raised
the issue of the costs of the postponement on the
26 June 2017 and
submitted that these costs should be paid by the plaintiff. The
difficulty that I have is that no evidence was
placed before me
regarding the cause of this postponement. In these circumstances, I
can only reserve the costs of the 26 June
2017 for the decision of
the court determining the quantum of the plaintiff’s damages.
In respect of the remaining costs,
there has been no basis
established to depart from the normal rule that costs should follow
the result and I will make a costs
order on that basis.
In the
circumstances, the following order is made:
The defendant
is liable to compensate plaintiff for the proved or agreed damages
she suffered arising from the accident on the
10 April 2011.
The plaintiff
contributed to the harm she suffered by not wearing a safety belt at
the material time.
The exact
apportionment of damages arising from this failure to wear a safety
belt, is reserved for the decision of the court
that determines the
plaintiff’s quantum of damages.
Save for the
costs of the 26 June 2017, the defendant is to pay the costs of this
action to date hereof.
The question of
the costs of the postponement on the 26 June 2017 is reserved for
the decision of the court determining the quantum
of the plaintiff’s
claim.
_____________________
Lawrence Lever AJ
Northern Cape
Provincial Division
Legal
Representation:
For Plaintiff: Ms
Stanton oio Engelsman Magabane Inc
For Defendant: Ms
Mamanyahu oio State Attorney
Dates of hearing:
18 September 2017;
20 September 2017; 21 September 2017 and 13 December 2017
Date of Judgment: 5
September 2018
1
[2008] 4 All SA 72
(SCA) at paras [11] to [14].
2
1961 (2) SA 131
(TPD) at 141F.
3
1990 (1) SA 680
(AD) at 700 to 701.
4
(729/10, 732/10)[2015] ZANWHC 21.
5
2003 (3) SA 1049
(SCA) at paras [28] to [30]
16
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