Devonport v Premier of the Free State Province and Others (1291/06) [2007] ZAFSHC 127 (15 November 2007)

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[2007] ZAFSHC 127
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Devonport v Premier of the Free State Province and Others (1291/06) [2007] ZAFSHC 127 (15 November 2007)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : 1291/06
In
the case between:-
LESLIE
IONE DEVONPORT
Plaintiff
(acting
in her capacity as Mother and Natural
Guardian
of her minor sons:
R
S D
and
NH D
and
THE
PREMIER OF FREE STATE PROVINCE
First
Defendant
THE
MEMBER OF THE EXECUTIVE COUNCIL
Second
Defendant
LESLIE
IONE DEVORPORT N.O.
Third
Party
_____________________________________________________
HEARD
ON:
30,
31 OCTOBER 2007 AND
1, 2 NOVEMBER 2007
_____________________________________________________
JUDGMENT
BY:
MABESELE,
AJ
_____________________________________________________
DELIVERED
ON:
15
NOVEMBER 2007
_____________________________________________________
[1] This
is an action for damages arising out of an incident which occurred on
24 September 2005 on the Bethlehem/Ficksburg road in
which Robin
William Devonport (the deceased) fell from his bicycle and sustained
injuries, which caused his death. The plaintiff
instituted the
action, both in her personal capacity and capacity as mother and
natural guardian of her minor children, for loss
of support arising
out of the death of the deceased. The first and second defendants
deny liability to the plaintiff. Defendants
have furthermore
launched third party proceedings in which the plaintiff, in her
representative capacity as executrix in the estate
of the deceased,
has been cited as a third party.
[2] By agreement between
the parties, the trial proceeded on the issue of negligence only.
[3] According to the
particulars of claim, the incident occurred when the bicycle ridden
by the deceased encountered a protrusion
of tar, forming a prominent
bulge and projection on the road surface. In consequence of
colliding with the aforesaid protrusion
, the deceased lost control
of his bicycle, fell to the ground and struck his head on the road
surface, thereby sustaining fatal
injuries.
[4] The
plaintiff alleged that the first and second defendants had a duty of
care to maintain, manage and control the road and to
warn the public
of the potential danger, but were in breach of their duty in that,
inter
alia
,
they failed to remove the protrusion from the road surface in order
to level the road and prevent harm to road users or failed to
warn
road users timeously, in particular cyclists, such as the deceased,
of the dangerous condition of the road.
[5] The
first and second defendants denied,
inter
alia
,
that the road condition was dangerous and that there was a duty of
care on them to warn cyclists of any danger.
[6] The
first and second defendants averred that should it be found that they
are liable, a contributory cause of the collision was
the negligence
of the deceased in that,
inter
alia
,
he failed to keep a proper lookout; he cycled at an excessive speed,
given the circumstances and failed to avoid the incident, when
by the
exercise of due and reasonable care, he could and should have done
so.
[7] Mr. Rodney Callaghan
testified on behalf of the plaintiff. He and the deceased have been
cycling together on several occasions
and have a wealth of experience
in cycling.
[8] The two of them were
part of nine other cyclists who were on a social cycling tour which
started in Bethlehem and was to proceed
up to Ficksburg. All of them
were in their cycling uniform, such as cycling helmets, clothes and
shoes. They stopped in Fouriesburg
for breakfast. Thereafter they
proceeded with their journey at approximately 08h00. The weather was
clear and the road in good
condition until they reached the area
where the incident occurred. There were no warning signs. They
cycled on the R26 road in
the direction of Ficksburg. The deceased
and other colleague of theirs, known as Richard Adams, cycled in
front of him and Pfeffer.
The two of them caught up with the
deceased and Adams as they cycled down hill. The four of them were
cycling at a speed of approximately
45 km per hour and were free
wheeling. He cycled close behind the deceased who was cycling close
to the edge of the left hand side
of the road. Richard Adams was
cycling on the right hand side of the deceased. Pfeffer was cycling
behind Adams. He and the deceased
were cycling next to the stones
which were lying along the edge of the road. The deceased kept a
distance of approximately 15 cm
from the stones while he himself kept
a distance of 30 cm. The deceased and Adams were talking to each
other as they cycled alongside
the stones. He saw the deceased
turning his head to the right to speak to Adams. Subsequent to that
he heard a noise and then saw
the deceased losing control of his
bicycle, falling to the ground and struck his head on the road
surface. He noticed thereafter
that the front wheel of the
deceased’s bicycle collided with a protrusion which was in front of
the deceased. He conceded under
cross-examination that it was
dangerous for the deceased to turn his head while he was cycling near
the stones at the speed of 45
km per hour.
[9] Louis de Villiers
Roodt testified in relation to the design of the road on which a
protrusion was located. He is a civil engineer
and specialises in
the design of roads. He holds honours degree in civil engineering
and masters degree in transport engineering.
[10] He testified that
the road is currently a single carriageway rural road, known as route
R26. The road runs between Bethlehem
and Ficksburg, bypassing
Fouriesburg. The road surface appeared to be in good condition, with
localised failures, typically occurring
in sections where the road is
in cut. The number of patches indicating past failures is relatively
low. The patching is related
to the mechanisms of failure, which is
a process of rutting and potholing in the wheeltrack, exacerbated by
water in the pavement
layers, due to high water tables cut. The
compression of material in the wheeltrack often leads to displacement
of material to the
side, forming a bump next to the rut or pothole.
The road presents itself as a typical, maintained major route, on
which it is safe
to travel at high speed and the driver expects to
drive with little interference and interruptions. Imperfections or
failures of
the road surface are difficult to perceive, as they are
static, often blend into the background, due to same colour, texture
and
being rounded and lacking sharp sides for definition. If these
failures are isolated and few, they are not expected. The driver
can
thus be confronted with a hazardous situation that is difficult to
see and recognise. He estimated the height of the protrusion
as 40
mm.
[11] Wendy
Adams confirmed that she took photos marked “A” at the scene of
the incident. She could not recall the date on which
the photos were
taken.
[12] After
the close of the plaintiff’s case, Martin Brink testified on behalf
of the first and second defendants. He was the only
witness who
testified on behalf of the defendants. He was called upon to
demonstrate, as an experienced cyclist, how a reasonable
cyclist, in
the position of the deceased, would have conducted himself on the
same road on which the deceased was cycling.
[13] He testified that he
cycled on the said road on 11 September 2007. While cycling down
hill, at the speed of 60 km per hour,
he noticed an object in front
of him at a distance of 100 metres. The height of the object was
approximately 40 mm. The object depicted
the same colour as the road.
He conceded, when questioned by the court, that a road user may
observe the objects in front of him
or her easily when the road is in
good condition as compared to the road in bad condition.
[14] In regard to the
evaluation of evidence of all the witnesses, the versions of
Callaghan in relation to the events of the tour
immediately prior to
and during the incident and Wendy Adams in relation to photos marked
“A” are undoubtedly accepted as true.
[15] Louis
de Villiers was called, to demonstrate, as an expert, the extent to
which the road could be said to be dangerous to the
road users,
particularly the cyclists. Although he pointed out certain incidents
on the road, such as patches, which may cause danger
to the road
users, he acknowledged that the road surface appeared to be in good
condition and presented itself as a typical route
on which it is safe
to travel at a high speed. From this acknowledgement, it cannot be
said that such a road was so bad that it
required necessary
attention. In my view, the road users could still use it, with care,
as always expected of them.
[16] Mr. Brink performed
his experiment on the R26 road after the road was repaired. As a
result he could easily observe objects
in front of him at a distance
of 100 metres. The deceased cycled on a bad road. Therefore, based
on Brink’s experiment, it cannot
be said that the deceased should
have observed objects in front of him at the distance of 100 meters.
In my view, Brink’s evidence
did not strengthen the defendants’
case.
[17]
9
The
test for negligence is clearly illustrated in a well-known matter of
KRUGER
v COETZEE
1966 (2) SA 428
(A) wherein Holmes JA stated that for purposes of
liability, culpa arises if a diligence
paterfamilias
in a position of the defendants would foresee the reasonable
possibility of their conduct injuring another in his person or
property
and causing him patrimonial loss and would take reasonable
steps to guard against such occurrences and the defendants failed to
take
such steps.
[18] It is for the
plaintiff to place before the court sufficient evidence that a legal
duty to repair the road or warn the public
should be held to have
existed and to prove that failure to repair or warn was blameworthy.
[19] Marais
JA, in
CAPE
TOWN MUNICIPALITY v BAKKERUD
2000 (3) SA 1049
(SCA) at 1060, stated that there can be no principle
of law that all municipalities
1
have at all times a legal duty to repair or warn the public whenever
and whatever potholes may occur in whatever pavements or streets
may
be vested in them. The learned judge said:
“
It is axiomatic
that man-made streets and pavements will not always be in the
pristine condition in which they were when first constructed
and that
it would be well-nigh impossible for even the largest and most
well-funded municipalities to keep them all in that state
at all
times. A reasonable sense of proportion is called for. The public
must be taken to realise that and to have a care for its
own safety
when using the roads and pavements.”
[20] The
judge stated further that a little used lane in which small potholes
have developed which are easily visible to and avoidable
by anyone
keeping a reasonable look-out, may not be repaired and public may not
be warned of their presence. However, a well-funded
municipality
which has failed to keep in repair a pavement habitually thronged
with pedestrians so densely concentrated that is extremely
difficult
to see the surface of the pavement or to take evasive action to avoid
potholes of a substantial size and depth, may well
be under a legal
duty to repair such potholes or to barricade or warn of them. (See
unreported judgment of
MANN,
JACK v THE PREMIER OF GAUTENG PROVINCE
,
Case No. 02/23860.)
[21] It
was argued on behalf of the plaintiff that the protrusion should have
been removed as it caused a hazard on the road, or the
road users
should have been made aware of its presence. Reliance was sought in
MANN,
JACK v THE PREMIER OF GAUTENG PROVINCE
,
supra
.
In this case the road was used regularly by milk lorries, school
bus, lorries delivering diesel and by farmers. Two potholes which
were the cause of the collision were next to each other and almost
straddled the road surface. They were three to four inches deep,
approximately three quarters of a metre wide and about two or three
metres long, making it impossible to drive that part of the road
without at least one set of a vehicle’s wheels having to go through
the potholes. Considering the volume of traffic on that road,
I am
of the view that the two potholes undoubtedly caused a hazard and
danger to the road users and were supposed to have been attended
to.
[22] In
the present matter, the protrusion was close to the edge of the road
surface. There is no evidence that it made it impossible
for road
users to travel that part of the road. Neither was there evidence
that the road was frequently used. In my view, therefore,
MANN,
JACK’S
-case
does not advance the plaintiff’s case.
[23] Mr.
Zidel SC, relied also in
ESTERHUIZEN
AND OTHERS v MEMBER OF THE EXECUTIVE COUNCIL, PUBLIC WORKS, ROADS AND
TRANSPORT
,
Case No. 1673/2004, unreported, in which case Van Coppenhagen J,
found that the height of 50 mm gravel shoulder which was next to
the
tar-edge constituted a danger to the motorists who must drive from
the gravel shoulder back to the tar edge which they deviated
from
unexpectedly. This case also does not advance the plaintiff’s
case, in my view, as demonstrated below.
[24] Evidence
was adduced in the above-quoted case that three years after the
plaintiff was involved in an accident, another motorist
experienced
the same problem as the plaintiff not far from the vicinity where the
plaintiff overturned. In my view, there was evidence
that the road
was used frequently and failure to repair it constituted a danger to
the motorists. In this regard, Scott JA, in
CAPE
METROPOLITAN COUNCIL v GRAHAM
2001 (1) SA 1197
(SCA) at 1204 C – D said:
“
The weather conditions prevailing
when the other failures occurred are unknown. It is also unknown
whether there were other similar
failures; ……. There were,
however, a number of minor or less severe slope failures which were
known to have caused injury to
users of the road and in one case the
death of a motorist. Several reports dealing with the stability of
the slope were obtained
from time to time by the appellant and its
predecessors from consulting engineers.”
[25]
The significance of occurrences of accidents caused by unexpected
objects on the road which justify bad condition of road was
also
pointed out by Beadle J, in
MURRAY
v BULAWAYO MUNICIPALITY
1952 (4) SA 575
(Southern Rhodesia, Bulawayo) at 585 G – H as
follows:
“
If a rut of the nature of the rut
in this case had constituted a “real and substantial danger to
traffic” one might have expected
in these circumstances to have had
some further evidence of accidents. Irrespective of this, however,
in my considered view, this
rut was not a real and substantial danger
to cyclists, and the lack of evidence of accidents does go to support
this view.”
[26] The road on which
the deceased collided with a protrusion is described as rural. There
were visible stones close to the edge
of the road, with a protrusion
of 40 mm in height around their vicinity. There is no evidence of
previous accidents on the said
road. Neither there is evidence of
frequent use of the road, either by the motorists or cyclists. It is
not known exactly for how
long was the protrusion on the road. There
is also no evidence whether or not Adams Richard, who was cycling
alongside to the deceased,
in front of Callaghan, did collide with
any object at the same spot where the deceased collided with a
protrusion. However, one
can safely conclude from the evidence of
Callaghan that Richard Adams did not experience any problem while he
was cycling alongside
the deceased. The result is that other
cyclists used the same road without difficulty.
[27] The
question now is whether it can be said that the officials of the
defendants were under a legal duty to remove a protrusion
or warn the
public of its presence under the circumstances described above. My
considered view is that the officials were under
no such legal duty.
[28] The deceased, an
experienced cyclist, was cycling down hill at a high speed, prior to
the incident. The weather condition was
good. He came around
visible stones, close to the edge of the road, with a protrusion of
40 mm in height around their vicinity.
He then cycled approximately
15 cm away from the stones, obviously to avoid harm to himself.
While still within a danger zone,
and while it was not safe to do so,
he moved his eyes from the road in front of him to look at his
colleague, Adams, with whom he
had been talking and subsequently
collided with a protrusion in front of him. Quite clearly, the
deceased, who was cycling at a
high speed, did not keep a proper
look-out even though he realised that he was cycling in a danger
zone. In my view, the deceased
is a creator of his own misfortune.
The result is that the plaintiff’s claim against the first and
second defendants cannot succeed.
[29] I
am fortified, in my view, by comprehensive and well researched
authorities which were referred to, in argument, by Mr. Van
Rooyen
SC, on behalf of the first and second defendants.
[30] In the result, I
make the following order:
1. The plaintiff’s
claim against the first and second defendants is dismissed.
The plaintiff is ordered
to pay costs.
___________________
M. M. MABESELE, AJ
On
behalf of the plaintiff and
third
party: Adv. I. J. Zidel SC
Instructed
by:
Mr.
D. Goldschmidt
Israel Sackstein
Matsepe Attorneys
BLOEMFONTEIN
On
behalf of the first and
second defendants: Adv.
P. C. F. van Rooyen SC
Instructed
by:
J.F. Botha
The State Attorney
BLOEMFONTEIN
/sp
9
1. Third
sphere of government after Provincial Government. Therefore, the
position of Provincial Government should be the same
as
municipalities.