‘Failed on two counts’ of duty of care – the road was not free of hazards, and there were no warning signs.
The Northern Cape MEC for Roads and Public Works has been ordered to pay 80% of a damages claim lodged by a South African National Defence Force (SANDF) member who was left a paraplegic when the vehicle he was driving overturned after hitting a pothole.
Judge Lawrence Lever said the MEC had a duty of care to maintain the relevant road in a way that kept it free of hazards for road users – and, if he could not, had a duty of care to ensure that a warning sign was appropriately placed to alert road users of the danger. Lever said the MEC had “failed on both counts”.
“In my view …the first defendant [the MEC] has a legal obligation to compensate the plaintiff [Motlatsi Mofoka] for the damage suffered,” Lever said in a judgment handed down in the High Court in Kimberley.
The parties agreed on 4 July 2017 that the issues of the merits and quantum be separated. This means the judgment did not include an order on the quantum of the damages claim.
Mofoka, who is now deceased, instituted the claim and was substituted as the plaintiff on 4 February 2021 by the executrix of his estate.
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Accident details
The damages claim arose from a motor vehicle accident on 7 February 2012.
Mofoka was driving on the R31 provincial road between Koopmansfontein and Danielskuil in a light delivery military vehicle with Warrant Officer (W/O) Frye. They were on their way from Postmasburg to Kimberley to attend a work-related meeting.
It was alleged the vehicle hit a pothole, causing him to lose control of the vehicle and suffer serious injuries that rendered him a quadriplegic.
Mofoka alleged the MEC was responsible for the maintenance and upkeep of this road and for keeping it in a safe and good condition.
He further alleged the accident was caused by the sole negligence of the MEC, or of officials acting in the course and scope of their employment, and that they were negligent in failing to comply with one or more of their positive duties.
These included failing to maintain and keep the relevant road in good repair, failing to display appropriate road signs in advance of such potholes, and warning motorists of the potholes in the road so that they could adjust their driving in a manner appropriate to suit the prevailing road conditions.
He claimed hese failures “created a potential risk of harm”.
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MEC says driver was at fault
The MEC admitted he is responsible for the maintenance of the road in question and that he owed motorists using this road a duty of care.
But he denied that any act or omission on his part, or on the part of his officials, caused this accident, or that it was caused by potholes in the road.
He claimed the accident was caused by Mofoka’s own negligence, including that he drove at an excessive speed, failing to keep proper control of the vehicle, failing to apply the brakes adequately, timeously or at all, failing to drive at a reduced speed, and failing to avoid the accident when he could and should have done so.
He alleged that Mofoka failed to exercise the care of a prudent driver, and failed to take cognisance of, or abide by the general rules and regulations of the road, or adhere and comply with road traffic warning signs erected along the relevant stretch of road.
He claimed that, in the circumstances, he was not liable to compensate Mofoka for any damages suffered and that his damages claim should be dismissed with costs.
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Apportionment of blame
The MEC said alternatively, if the court found him liable for any of the damages Mofoka suffered, that these damages ought to be apportioned in terms of the Apportionment of Damages Act.
Judge Lever said in assessing the apportionment of damages in relation to the respective degrees of negligence that can be attributed to the parties, it is clear that the main cause of the accident was the failure to maintain the road appropriately, and more specifically the failure to warn road users of the particular hazard in a manner that would have given them, including Mofoka, the opportunity to adjust their driving accordingly.
He said, in these circumstances, he would apportion 80% of the blame to these factors.
Lever said that on the evidence of Frye, Mofoka was driving at a speed of about 110km/h.
“Given the knowledge that they had about the poor condition of the road, also on the evidence of W/O Frye, this was not appropriate to the general condition of the road in question.
“On the probabilities, this speed was clearly a factor in the ability of the deceased [Mofoka] to control the vehicle he was driving after hitting the relevant pothole.
“In these circumstances, I believe 20% of the blame should be apportioned to the deceased [Mofoka],” he said.
Lever ordered the MEC to pay 80% of Mofoka’s costs.
This article was republished from Moneyweb. Read the original here.