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2009
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[2009] ZAFSHC 136
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Devonport v Premier of the Free State Province and Others (A216/2008) [2009] ZAFSHC 136 (26 November 2009)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A216/2008
In the appeal between:
LESLIE IONE
DEVONPORT
(acting in her capacity
as mother and natural
guardian of her minor
sons: R S D and N H D Appellant
and
THE PREMIER OF THE
FREE
STATE
PROVINCE
First
Respondent
THE MEMBER OF THE
EXECUTIVE
COUNCIL
Second
Respondent
LESLIE IONE
DEVONPORT N.O.
Third Respondent
_____________________________________________________
CORAM:
MUSI, JP
et
VAN DER
MERWE, J
et
MOCUMIE,
J
_____________________________________________________
HEARD ON:
16 NOVEMBER 2009
JUDGEMENT:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
26 NOVEMBER 2009
_____________________________________________________
[1] This is an appeal,
with the leave of the trial court, against its order dismissing with
costs the appellant’s claims in
her personal capacity and her
representative capacity as mother and natural guardian of her minor
children, for loss of support
as a result of the death of her
husband, Mr Robin William Devonport (“the deceased”).
[2] The deceased passed
away as a result of injuries sustained when he fell whilst cycling on
the R26 road between Fouriesburg and
Ficksburg (“the road”).
It was admitted by the first and second respondents that at all
times relevant hereto
“…the
Free State Provincial Government was the sole body empowered,
entrusted and authorised to exercise control over
and maintain”
the road. For the sake of convenience the first and second
respondents will be referred to herein as “the province”.
[3] In her action against
the province the appellant essentially alleged that the death of the
deceased was caused by the negligent
failure of the province to
maintain the road or to exercise proper control thereover. The
allegation of negligence was denied
by the province. The province
however also joined the appellant in her capacity as executrix of the
estate of the deceased as
a third party, on the basis that if the
province is found to be liable to the appellant, the estate of the
deceased is a joint
wrongdoer in respect of the damages suffered, as
a result of alleged contributory negligence of the deceased.
[4] By agreement the
trial court was asked to only determine whether the defendant was
negligent as alleged and if so, whether the
negligence of the
deceased contributed to the incident. The court then also had to
determine the respective degrees of negligence
of the province and
the deceased.
[5] At the trial the
appellant presented the evidence of Mr Rodney Callaghan, Mr L de V
Roodt and Mrs Wendy Adams. The province
called Mr M C Brink as an
expert witness in respect of road cycling.
[6] The evidence of Mr
Callaghan that I consider material for the decision of the appeal can
be summarised briefly. Mr Callaghan
testified that he, the deceased
and others participated in a social road cycling tour organised in
the Eastern Free State. The
deceased was a keen and very experienced
cyclist. On Saturday morning 24 September 2005 at approximately
08h00 the group of cyclists
participating in the tour departed from
Fouriesburg and cycled on the road in the direction of Ficksburg.
The road is a tarred
road with a single lane in each direction. The
road appeared to be in good condition. Mr Callaghan did not have to
take any evasive
action as a result of the condition of the road in
the approximately eight kilometers travelled on the road before the
incident
referred to below took place. There were also no warning
signs in respect of the condition of the road. It was a sunny and
clear
morning with very good visibility. After the departure of the
group of cyclists, the group was quite spread out, with the deceased
and a friend of his, Mr Richard Adams, in front. The deceased cycled
close to the left edge of the road with Mr Adams next to
him on the
right hand side of the deceased. Mr Callaghan and a companion
decided to catch up with the deceased and Mr Adams.
This they
managed to do, whilst the deceased and Mr Adams were freewheeling
down a hill with a moderate gradient. The deceased
travelled at
approximately 45km/h. Just about when Mr Callaghan fell in behind
the back wheel of the bicycle of the deceased,
Mr Callaghan noticed
that the deceased turned his head to his right as he would do if
talking to the person on his right and at
that instant Mr Callaghan
saw that the front wheel of the bicycle of the deceased hit an
obstruction on the road surface. As a
result the deceased was thrown
off his bicycle and he landed on his head on the surface of the road.
This obstruction turned out
to be a deformation of the tar due to
failure of the road surface, resulting in a protrusion of tar forming
a prominent bulge and
projection on the road surface (“the
protrusion”). The clear implication of the evidence of Mr
Callaghan is that the
deceased never saw the protrusion. There is no
indication on the evidence of Mr Callaghan that the bicycle of the
deceased deviated
from its line of travel immediately before its
front wheel hit the protrusion. If anything the deceased may have
moved slightly
to the right as a result of the movement of his head
to the right at that speed.
[7] Ms Adams testified
that approximately 3 to 4 weeks after the incident she took
photographs that were handed in as exhibits at
the trial. It is
common cause that there is no material difference between what is
depicted on these photographs and the actual
situation of the road
and the protrusion on the day of the incident.
[8] Mr Roodt is a
professional engineer. He visited the scene of the incident on the
8
th
of April 2007 but by that time the failure of the road surface and
the protrusion had been repaired. He testified that in his
expert
opinion, according to the aforesaid photographs, the protrusion was
rounded and lacked sharp sides for definition, was of
the same
texture, colour and material as the background thereof and formed a
serious and dangerous hazard to cyclists. He pointed
out that
according to generally accepted norms of road maintenance the
protrusion would be classified as a degree five deformation.
A
degree five deformation is regarded as severe and dangerous. He
testified that the norm for a degree five deformation is a
change in
the road surface profile of 30mm or more from the original road
surface and that in his opinion, according to the aforesaid
photographs, the protrusion on the road surface constituted such
change in excess of 50mm.
[9] The trial court
accepted the aforesaid evidence of Mr Callaghan and this finding was
not seriously challenged on appeal. The
aforesaid evidence of Mr
Roodt was not disputed. Mr Brink, who according to the record gave
evidence in a fair and helpful manner,
dealt primarily with the
question of negligence on the part of the deceased.
[10] The trial court
nevertheless found that no negligence on the part of the province was
proved and that the deceased was
“…
the creator of his own
misfortune.”
It is this finding that
the appellant challenges on appeal.
[11] In applying the
well-known test for negligence to the facts of this case, three
questions should be asked, namely,
i) Was injury of the
kind in question reasonably foreseeable from the perspective of the
province?
ii) If so, would the
reasonable provincial authority have taken steps to guard against
that injury?
iii) If so, did the
province take such reasonable steps?
See the classical
exposition in
KRUGER
v COETZEE
1966 (2) SA 428
(A) at 430E – F. See also
McINTOSH
v PREMIER, KWA-ZULU NATAL AND ANOTHER
2008 (6) 1 SCA.
[12] It is not clear on
what exact ground the trial court found against the appellant. What
is clear though, is the case the province
presented at the trial.
Not only did the province not dispute the aforesaid evidence of Mr
Roodt, but in both cross-examination
by counsel for the province and
in the evidence of Mr Brink it was conceded in a forthright manner
that the protrusion did represent
a danger to cyclists. Counsel for
the province also fairly accepted that the protrusion could have been
repaired or warned against
before the incident, had the province been
so minded. The case for the province was that no such steps were
reasonably required
as it was not reasonably foreseeable that the
protrusion could cause injury or harm. This proposition in turn was
based squarely
on the allegation that the (admitted) danger caused by
the protrusion was so obvious and easily avoidable that injury as a
result
thereof was not reasonably foreseeable. For the reasons that
follow, I am unable to agree.
[13] First, I do not
think that this kind of reasoning can be applied in a case such as
this, where a public authority is entrusted
with the responsibility
of control and maintenance of a public road with public funds. The
logical conclusion of this argument
is that the bigger the danger in
a road, the more it would or should be apparent and therefore the
less need to repair or warn
against it. Once a hazard is recognised
by a public authority such as the province in these circumstances, it
cannot in my judgment
be heard to say that injury was not reasonably
foreseeable simply because the danger should be apparent to road
users. Whether
and to what extent in all the circumstances of a
particular case the authority also has a duty to take guarding steps
is of course
a different matter. As I already pointed out, it is not
contested by the province in this matter that if injury was
reasonably
foreseeable, it had a duty to take guarding steps.
[14] Second, in any
event, according to the evidence the protrusion was not particularly
conspicuous. The condition of the road
did not provide an implicit
warning of danger ahead. The protrusion to some extent blended in
with the background as explained
by Mr Roodt. The last-mentioned
aspect is borne out by examination of the relevant photographs. In
this regard, the presence
of some loose stones on the extreme left
hand side of the road in the immediate vicinity of the protrusion, is
immaterial.
[15] A reasonable
provincial government would in my judgment have realised that
cyclists such as the group in the present case would
use the road
from time to time. It would have also realised that some of these
cyclists reach relatively high speeds and do not
always keep a
perfect look-out and are therefore vulnerable to dangers such as the
protrusion. A reasonable provincial government
would in my view have
regarded injury of the kind in question as a reasonable possibility
that should be guarded against and could
be guarded against by the
simple and relatively inexpensive steps of repairing the particular
patch of the road or providing an
appropriate warning. I am
satisfied therefore that negligence on the part of the province was
proved.
[16] The next question is
whether the province proved contributory negligence on the part of
the deceased. I think that it did.
The deceased was a very
experienced road cycler. A reasonable person in the position of the
deceased would have realised that
a road cyclist is particularly
vulnerable to an obstruction in the road. The road bicycle is a
rigid machine, as it was referred
to in evidence. It has very thin
tyres that are pumped very hard and has no suspension. At a high
speed such as 45km/h an object
as small as a golf ball can cause a
fatal accident. A reasonable person in the shoes of the deceased
would therefore have kept
a particularly vigilant lookout and had he
kept such lookout he would in my judgment have observed the
protrusion in time and avoided
it by a simple manoeuvre.
[17] In apportioning the
blame, I believe that the greater part thereof should be placed at
the door of the province. The primary
factor contributing to the
incident is the failure of the province to remove or warn against a
danger that it was aware of or should
reasonably have been aware of.
For reasons already stated, there was also a marked degree of
negligence on the part of the deceased.
In all the circumstances of
this case I think that a 60:40 apportionment in favour of the
appellant is fair and equitable.
[18] The costs of the
appeal and the trial should follow the result. Pages 387 – 515
of the appeal record, however, contain
transcription of discussions
and mostly argument that should not have formed part of the record of
appeal, as was readily conceded
by counsel for the appellant. The
costs pertaining to these unnecessary portions of the appeal record
should therefore be disallowed.
[19] In the result the
following orders are issued:
1. The appeal succeeds
with costs, excluding the costs pertaining to pages 387 – 515
of the appeal record.
2. The orders of the
trial court are set aside and replaced with the following:
“
i) It is declared
that the injuries sustained by Robin William Devonport on 24
September 2005 on the R26 road between Fouriesburg
and Ficksburg,
were caused by 60% negligence on the part of the first and second
respondents and 40% negligence on the part of
said Robin William
Devonport.
ii) The first and second
respondents are ordered to pay the costs of the trial.”
________________________
C.H.G. VAN DER MERWE,
J
I
concur.
_____________
H.M. MUSI, JP
I concur.
_______________
B.C. MOCUMIE, J
On
behalf of the appellant: Adv. I. J. Zidel SC
Instructed
by:
Matsepes
Inc.
BLOEMFONTEIN
On
behalf of the first and
second
respondents: Adv. P. C. F. van Rooyen SC
Instructed
by:
The
State Attorney
BLOEMFONTEIN
/em