High Court finds North West MEC liable for pothole accident damages

North West MEC for Public Works and Roads Gaoage Molapisi has been found by the High Court in Mahikeng to be liable for 100% of the damages “as may be proven or agreed” from the injuries to an engineer whose vehicle hit a pothole on a gravel road, lost control and collided with a tree.

Petrus Jacobs, who was driving his Ford Everest on the Sterkstroom gravel road between Klerksdorp and Ventersdorp on 27 April 2018 when the accident occurred, initially claimed R8.6 million in damages for past and future medical expenses, past and future loss of earnings, and general damages.

ALSO READ: ‘State of emergency’: MEC looks on as ambulance sinks in KZN pothole [WATCH]

However, following an agreement between the parties, the court granted an order separating the issues of merits and quantum, which meant the court only had to determine the issue of liability.

Jacobs suffered various fractures, bruising of the lungs, soft tissue injuries and injuries to his lungs as a result of the accident.

He claimed Molapisi is liable for the damages he suffered because he has a legal duty maintain the road in question, keep it in a state of good repair and upkeep, and ensure the safety of all road users.

Jacobs further claimed Molapisi was the sole cause of the collision in that he failed in his duty to perform routine maintenance and inspections on the road, such that areas of deterioration and potential danger were not identified timeously.

ALSO READ: Can you claim if a pothole causes a car accident?

The sole cause of the accident was Molapisi’s negligence, he claimed.

Molapisi denied liability and alternatively pleaded that the accident was caused by the sole negligence of Jacobs and was “contributorily negligent” for failing to keep a proper lookout, driving at an excessive speed and failing to avoid the accident when he could have done so.

Judgment

In a judgment handed down on Tuesday, Judge Sandiswa Mfenyana said the main issue in the matter is whether Molapisi is liable for the damages suffered by Jacobs, and if so, to what extent.

Mfenyana said the determination of this turns on the evidence of the expert witnesses but Molapisi opted not to call any experts or witnesses.

ALSO READ: Going potty? How to survive South Africa’s 25 million potholes…

She said the role of expert witnesses is to assist the court in making a determination of the issues before it.

Judge Mfenyana said ultimately the matter revolved around the condition of the road and the maintenance of the road in respect of road signage about its condition, potential hazard and speed limits.

She said the picture painted by Jacobs’s witnesses is that the road was in a state of disrepair, with no signs erected to warn road users of any hazard and speed limits.

The photographic evidence presented on behalf of Jacobs is proof of this fact, she said.

Mfenyana said Molapisi denied there were any potholes on the road and claimed Jacobs was the sole cause of the accident.

ALSO READ: Winning ecofriendly school project to fill potholes

She added that Molapisi’s stance is that there was no problem with the road at all but the evidence led on behalf of Jacobs belies this contention and Molapisi offered no evidence to sustain his contention.

Molapisi counts the potholes in his ‘no-potholes’ story

Mfenyana said the cross-examination of Jacobs’s witnesses was to a certain extent dedicated to the amount of potholes that could be identified in photographs, which is at odds with Molapisi’s pleaded case, which sought to deny the existence of any potholes on the road.

ALSO READ: Sanral unleashes war room against potholes: Here’s what you need to know

From the evidence led and the findings of the experts, she said it has been established that:

• There were numerous potholes on the road;
• There were skid marks from the last pothole depicted up to the point where Jacobs’s car hit a tree;
• Jacobs’s vehicle was in a fairly good condition;
• The tyres were fairly new, high profile and in good condition; and
• There were no visible warning signs erected on Jacobs’s route of travel.

“This evidence remains unchallenged as the defendant [Molapisi] opted not to call a corresponding expert to counter the evidence,” she said.

MEC negligent? Yes

Mfenyana said Thys Ingwerson, a farmer and Jacobs’s brother-in-law, who is familiar with the road and lives about 8km from where the accident occurred, testified to the pre-existing problems with the road.

She said Ingwerson stated that he had personally lodged complaints about the state of the road as he uses it on a regular basis and is a member of the Farmers’ Union in his area.

Mfenyana said Ingwerson also testified to the lack of warning signs on the road, the poor state of the road, and the condition of Jacobs’s vehicle.

She noted that Ingwerson said the condition of the road was fairly good up to the wetland, but various potholes were present thereafter that were obscured by the shade formed by the large trees on the sides of the road, and there were no warning signs on the road.

ALSO READ: Don’t fix our pothole mess, Tshwane cops tell AfriForum volunteers

Mfenyana said Ingwerson took photographs of the accident scene the day the accident happened, which were admitted into evidence and serve as proof of the facts he testified to, while his evidence also forms part of the accident report that was admitted into evidence by agreement between the parties.

“It can therefore not avail the defendant to disavow the facts contained therein, having admitted them to be so. Ingwerson’s evidence was not challenged.

“The defendant’s [Molapisi’s] version, as stipulated in its plea, is to deny any negligence on the basis that there were no potholes on the road.”

She rejected Molapisi’s plea in this regard.

Judge Mfenyana said the unavoidable conclusion, having established the existence of potholes and a link between them and the accident, is that Molapisi was negligent in failing to maintain the road and keep it in a constant state of repair.

She said there is no merit to Molapisi’s alternative plea that in the event the court determines that he indeed acted negligently, he then denies that this negligence caused the accident and pleads that Jacobs’s own negligence was the sole cause of the accident.

Driver negligent? No

Mfenyana said the next part of the inquiry was whether Jacobs in any way contributed to the accident by either failing to keep a proper lookout or driving at a speed that could be regarded as excessive in the circumstances, and in so doing, failed to avoid the accident when he could have done so.

ALSO READ: Municipality’s R39m fight against potholes

She said the only evidence available about the speed at which Jacobs was travelling was by forensic engineer Barry Grobbelaar, who was tasked with reconstructing the accident scene.

Grobbelaar testified that Jacobs was travelling at about 80km per hour shortly before the accident – and there is no evidence to contradict this.

The available evidence remains unchallenged, established this fact, and painted a clear picture of what happened on the day, she said.

This article was republished from Moneyweb. Read the original here