Legal potholes

Anyone living in Gauteng this summer can not have missed the growing number of potholes in the roads. The media has reported on numerous incidents of damage to vehicles. The Times[1] reports that more than a quarter of South Africa’s national and provincial roads are beyond repair, and that road specialists have warned that poor road conditions, including dangerous potholes spread across the country’s roads, could cost motorists a staggering R20-billion a year in accidents and damages.

Where does this leave the unfortunate road user, and his or her insurer?

Over-turning a judgment of the Pietermaritzburg High Court, the Supreme Court of Appeal held in McIntosh v Premier, KwaZulu-Natal (2008) SCA 62that a cyclist had a claim against the local authority for serious bodily injuries sustained when he fell from his bicycle while swerving to avoid a large pothole in the road which was under the management and control of the province. The SCA apportioned damages with the province being ordered to pay 60% of the plaintiff’s damages, the cyclist to be found to be 40% to blame.

The offending pothole was on an open road with a 100kph speed limit, and the cyclist was travelling at about 55kph downhill. The pothole was 400mm at its widest, 750mm at its longest, and 750mm at its deepest. Both sides acknowledged that the pothole in question fell into the most serious category of potholes, as rated by the Department of Transport, a category described as, “the defect is very prominent. A dangerous situation exists and damage will occur in all cases”.

The parties agreed that the pothole was at least three months old. Indeed, there was evidence to the effect that it could have been as old as a year. It was towards the centre of the road, and as it was not in the normal path of vehicles using the road, it would have increased in size relatively slowly.

The pothole would therefore have fallen into the most serious degree of pothole neglect for some considerable time before the accident, so much so that it would have been visible for about 60 meters.

The cyclist alleged that the local authority had been negligent in failing to ensure that the pothole was repaired before the accident, and long before it had grown to the size it had by that date.

The province, on the other hand, denied that it had been negligent, contending that it had taken various steps to ensure that the existence of potholes was brought to its attention and that they were attended to.

The legal principles applied by the Appeal Court were that a negligent omission, such as the failure to repair a pothole, would not give rise to delictual liability unless it was wrongful. Whether a negligent omission was wrongful would depend on the existence of a legal duty not to act negligently. The imposition of such a legal duty was a matter for judicial determination involving criteria of public or legal policy consistent with constitutional norms.

The court cited a 2006 judgment from the SCA:

“… When we say that negligent conduct …. consisting of an omission is not wrongful, we contend to convey that public or legal policy considerations determine that there should be no liability; that the potential defendant should not be subjected to a claim for damages, his or her negligence notwithstanding. In such event, the question of fault does not arise. The defendant enjoys immunity against liability for such conduct, whether negligent or not.”

In the McIntosh case, the province sought to evade liability by relying on a provision in the Provincial Roads Act that the Minister would not be liable for any claim or damages arising “from the existence, construction, use or maintenance of any provincial road, except where the loss or damage was caused by the wilful or negligent act or omission of an official.”

In weighing up the relevant legal provisions against the facts of the case, the SCA asked if there was negligence. This issue itself involved a twofold enquiry:

  • Was the harm reasonably foreseeable? and
  • Would the reasonable man take reasonable steps to guard against such occurrence, and did the province fail to do so?

The court found that the reasonable foreseeability of harm to others was not in issue.

The crucial question, therefore, was the reasonableness or otherwise of the province’s conduct.

The court considered the evidence that:

  • The road was inspected weekly;
  • The pothole had been in existence for about a year prior to the accident;
  • The pothole had been allowed to develop to such a size; and
  • The absence of any explanation as to why it had not been repaired.

Having done this, the court concluded that there was no rational reason why the pothole had not been repaired. In these circumstances, the inference of negligence on the part of the local authority was irresistible.

Of course, not every claim for damages arising from the existence of a pothole will be successful. The relevant provincial and other legislation will play a role, but at the very least one must establish negligence on the part of the local authority responsible for the road in question. As the SCA said in Cape Town Municipality v Bakkerud 2000 (3) 1049 SCA –

“A minuscule and underfunded local authority with many other and more pressing claims upon its shallow purse, and which has not kept in repair 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 well be thought to be under no legal duty to repair them or even to warn of their presence. A large and well-funded municipality which has failed to keep in repair a pavement habitually thronged with pedestrians so densely concentrated that it 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 otherwise warn of them. There can be no principle of law that all municipalities have at all times a legal duty to repair or to warn the public whenever and whatever potholes may occur in whatever pavements or streets may be vested in them.”

And what of the cyclist’s own negligence?

He had seen the pothole, but nevertheless proceeded downhill at a speed which left little room for error. On the basis of the SCA’s ruling we would surely not wish to find ourselves in the same position as the plaintiff in this case. Said Scott JA in the SCA:

“A cyclist travelling along a suburban road would normally have no difficulty avoiding a pothole. But the appellant’s speed was such that when he did see the pothole he was unable to adjust the path of his travel to avoid the pothole without losing control of his bicycle. Being aware of the existence of potholes, his speed in the circumstances was to my mind excessive and amounted to negligence on his part.”

So where does this leave the insurer who is obliged to compensate an insured who suffers loss as a result of the poor state of the roads, including an insured who causes an accident by swerving to avoid a pothole?

In terms of the doctrine of subrogation, an insurer has a right of recourse against the insured in terms of which it can recover and reimburse itself from the proceeds of any claim that the insured may have against a third party. In addition to that right of recourse, the insurer is entitled, in the name of the insured, to institute proceedings against any third party liable for the insured’s loss.

So where it can be established that a local authority can be held liable on the principles enunciated above, the insurer would be entitled to seek recourse from the local authority for any losses suffered by its insured.

Miles Carter is a Director in the Dispute Resolution Department of Commercial Law Firm Bowman Gilfillan

[1] 1 February 2009

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