CyclistS and potholeS – Legal duty of Province

Erick Badenhorst* of the law firm, Tatham Wilkes Attorneys in Pietermaritzburg, recently appeared on behalf of Adv McIntosh (“Appellant”) in his action against the Premier and the Department of Transport, KZN (“Respondents”).

The Appellant sued the Respondents for damages suffered as a result of severe injuries sustained when he fell from his bicycle while swerving to avoid a pothole in the road, alleging that they had been negligent for failing to ensure that the potholes were timeously repaired or signs were erected warning road users of the danger. Of particular interest was the fact that the Respondents inter alia took the point that it had insufficient budgeted funds to maintain the road infrastructure.  The Appellant was unsuccessful in the Natal Provincial Division of the High Court and leave to appeal was granted to the Supreme Court of Appeal (“SCA”).

On 29 May 2008 the SCA unanimously ruled in the Appellant’s favour, awarding him 60% of his proven or agreed damages plus costs.  The Respondents launched an application to the Constitutional Court and the parties are awaiting a directive in the near future as to whether the Respondents will be granted leave to appeal against the decision of the SCA.

For copies of the judgments, kindly contact the Knowledge Centre.

THE LAW SOCIETY OF SA & SOUTH AFRICAN ASSOCIATION OF PERSONAL INJURY LAWYERS v ROAD ACCIDENT FUND & THE MINISTER OF TRANSPORT, CASE 12209/2008

Erick Badenhorst was also involved in the above application. RAF was recently interdicted from implementing the direct payment system as per their advert of 21 July 2008, pending the outcome of the review proceedings. The order was granted in favour of the LSSA with attorney and client costs, including the costs of two counsels.

Members of the associated firms are welcome to contact him directly for any further details or information regarding developments in this regard.

* Thanks to Mr Badenhorst who contributed the information contained above.