Judge faults Western Cape Department for negligence after motorcyclist Christian van Staden loses leg in pothole crash; punitive costs awarded

The judge heard it was the department’s view that signs shouldn’t be erected, but that the pothole should rather be fixed, and it was her view that the lack of a warning was one reason the biker couldn’t be expected to have seen the hazard.

For most of the court hearing, the department denied that the pothole even existed – a strong reminder for anyone involved in a case that could lead to damages about how crucial it is to get good photographic and other evidence as soon as possible after the accident.

This case is about what should have been a pleasant New Year’s Day motorbike ride outside George in 2012. But things turned tragic when the bike rider hit a pothole, lost control of his bike and sustained such severe injuries that one of his legs had to be amputated.

But what particularly stands out about the case is that the Western Cape’s Department of Infrastructure, against which the biker, Christian van Staden, has made a claim for damages, denied right up to the very last minute that there was any pothole at all.

(The department is the provincial government body that sees to planning, building and maintaining public infrastructure, like roads and other public facilities, which is why Van Staden brought his claim against this body.)

It was only when one of the department’s own witnesses told the court she had seen the pothole, with her own eyes, that things changed. But this crucial evidence was given by a traffic officer in her testimony a year after the trial started.

Until that point, the department denied that the pothole even existed, putting up witnesses who gave evidence to the effect that there was no such obstacle on the road where the accident happened. And of course, until the existence of the pothole was established, it was always going to be an uphill battle for the biker to make his case for damages.

What this shows, among other things, is how important it is to collect irrefutable evidence as soon as possible after an event that could lead to a claim for damages.

Really good photographic evidence of the immediate site of the scene, and the wider area around it, is needed.

So is ensuring that witnesses who might be able to testify on various aspects of a claim, are found and interviewed. But collecting evidence is a complicated business involving careful consideration of what might become contested in the case, and so it’s a situation where specialist help can be invaluable.

Department’s practice is not to put up warning signs

Another discovery made during the course of the evidence was the fact that the department does not put up warning signs specifically for individual potholes. Many motorists might expect such signs to be routine, but that’s not how things are done, witnesses told the court.

Instead, the department takes the line that if there are problems on a road these problems must be fixed because, as one witness who works for the roads authority put it, notices don’t mend potholes.

That approach is in stark contrast to the opinion of an expert witness for the biker, and ultimately of the judge herself, Constance Noluthando Nziweni, who said that a ‘prudent’ road authority, was expected to warn road users of such dangers.

In this case, the danger was further worsened by the fact that the inside surface of the pothole was almost the same colour as the surrounding road, making it difficult to see. So a biker headed for the pothole wouldn’t have been able to take steps to avoid it.

And perhaps the most alarming feature of all was the fact that the pothole, already so bad at the beginning of January 2012 that it caused a severe accident, was only repaired in April of that year.

This fact, along with other evidence, caused the court to question whether there were sufficient checks on the road and whether the department was carrying out its duty properly, despite its claim to be thorough.

Witnesses said the pothole had begun to form weeks before the accident, and that it had caused concern among people who lived nearby and used the road daily. Then came Van Staden’s accident and photographic evidence of the pothole obtained afterwards by witnesses.

One such witness, Rina Bryston, testified that she took a photograph of the pothole on the day of the accident, using her cellphone. Her photo was later used by an expert witness to demonstrate the size of the pothole to the court.

Other photographs were taken the next day by Van Staden’s father, who used a professional camera borrowed from Van Staden’s wife. She told the court that she had seen the photographs that he took and she confirmed the date stamp on the pictures.

Yet officials of the department testified that they hadn’t seen any pothole there, and that there had been no complaint from the public about a pothole.

In fact, a witness who said road maintenance in the area was his responsibility, and that among other staff, he had four superintendents under him, told the court that he had personally carried out an inspection of this part of the road sometime later (but before the repairs in April) and had seen nothing.

Why should it be expected that the biker would have seen the pothole?

One of the issues dealt with by the judge was why it would be expected of Van Staden that he should have seen the pothole in the first place. She considered this question because of the suggestion by witnesses for the department that Van Staden was negligent both in not seeing the pothole and in then not taking evasive action to avoid an accident.

True, it was a sunny day, and the accident happened during broad daylight. But the judge pointed out that Van Staden didn’t use the road often. Thus, he didn’t know it well, and even when he’d used the road previously, he was driving a car.

Further, the pothole was difficult to spot because the inside of the hole was the same colour as the road. And, of course, very significantly, there were no warning signs to alert him to any problems.

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She also said that if the department’s own experts couldn’t spot the pothole over several months, it wasn’t logical to expect an ordinary motorist to do so.

Many motorists regard Western Cape roads as in uniformly good shape, but this case shows that this is not necessarily true.

An expert who testified for Van Staden said that the stretch of road where the accident took place was ‘in poor condition and required remedial action’. And the judge pointed out that even witnesses for the department had similar views.

Bi-monthly road inspections aren’t sufficient

She added, “[T]he evidence in this matter has starkly revealed that the bi-monthly inspections [by the municipality on behalf of the department] are insufficient to identify dangerous potholes.” And she quoted from Van Staden’s expert witness, whose evidence she had accepted, to the effect that the “authority failed to take proactive, preventative action when the defects first emerged.”

The expert also criticised the record-keeping of the department. This was a reference to evidence by a former staff member of the department. He was a supervisor of road maintenance whose team was just one among others all responsible for patching potholes.

Although this witness testified that there were logbooks to record each report on road maintenance, he added that the logbook on the road where the accident happened was “materially incomplete” and that he was thus unable to say exactly what maintenance work was done there.

Clearly, commented the judge, the maintenance system “was not as profoundly efficient as [the department’s witnesses] profess.”

She concluded:

It could be expected of a department such as this to take reasonable steps to guard against something like Van Staden’s accident, but in this case, these steps weren’t taken, and as a result “negligence has been proven.”

There is another sting in the tail: responding to argument by Van Staden’s legal team that punitive costs should be awarded against the department for the way they had handled the case, the judge had some scathing comments.

She said the department’s legal team had gone in for “ambush litigation”. They had also accused the court of unfairness but later couldn’t point to any basis for the claim, and had to withdraw the assertions.

Moreover, the team’s tactical decisions seemed to be “motivated by abuse of court process”, something that caused costs to run up. In particular, she pointed to the fact that “the existence of the pothole was not formally conceded until closing arguments.” It “beggars belief” that the department only discovered their witness knew about the pothole when she testified in court, said the judge.

Because of this “reprehensible conduct”, the court awarded legal costs on a punitive level against the department. And finally, because she had found the department negligent, her order was that the department is also liable for damages caused by the accident that Van Staden is able to prove.