Motorcyclist wins liability case after crash caused by ‘size-11 Croc’ pothole

The Western Cape department of infrastructure has been found liable for the proven damages suffered by a motorcyclist who hit a pothole and sustained leg injuries that necessitated amputation.

The Western Cape High Court made the finding on Monday after an action launched by Christian Jacobs van Staden.

The incident happened on New Year’s Day in 2012 under clear and bright weather conditions. Van Staden was riding his motorcycle towards George, on the main road between Blanco and George Airport.

Van Staden contended that while driving, without any fault or negligence on his part, but due to the negligence of the department in permitting the road to remain in an unsafe and dangerous condition unknown to him, he hit a pothole about as big as “a size 11 Croc shoe”, measuring 600mm by 500mm, and lost control of his motorcycle.

In its defence, the department initially contended that had a pothole been present at the location, the motorcycle would have safely cleared it.

The department acknowledged in its plea a duty of care to properly maintain public roads within its jurisdiction, including the road in question. This included a duty to ensure that these roads do not pose actual or potential dangers to road users.

The real controversy here is whether the plaintiff has established wrongfulness, causation and negligence on the part of the defendant. Thus the plaintiff bears the onus of proving both fault and causation

—  Judge Constance Nziweni

The department called several witnesses who were employees of the George municipality at the time to testify. Their evidence was led to substantiate the defendant’s denial of any failure or negligence regarding its duty of care in respect of the public road in question.

Van Staden and the department agreed that the merits of the matter should be separated from the amount claimed.

Judge Constance Nziweni said the trial related solely to the liability portion of the dispute. Nziweni said during the argument stage the department submitted that the existence of the pothole was no longer in dispute. She said the department’s concession drastically narrowed the issues in dispute.

“The real controversy here is whether the plaintiff has established wrongfulness, causation and negligence on the part of the defendant. Thus the plaintiff bears the onus of proving both fault and causation,” she said.

Nziweni ruled that the pothole constituted a “hidden trap for road users” and that the department had acted negligently by failing to identify, repair or adequately warn road users of the danger.

Expert testimony indicated that a pothole of that magnitude could not have developed overnight and would have taken weeks to form.

Lourens Steytler testified that at the time of the incident, he was 19 years old and working at a nearby farm and he witnessed the accident.

“He testified that he was on his way back to the farm. The motorcycle was travelling in the opposite direction to him, in the opposite lane. He then witnessed a lot of movement, a dust cloud and the motorcycle travelling across the island ending up in the embarkment,” Nziweni said.

Steytler testified that the pothole had been a point of discussion among him, his colleague and his mother

Steytler said his initial thought was that Van Staden had hit an animal or another vehicle.

“But he saw nothing and then he thought he had hit a pothole that was located just before Geelhout turnoff. The pothole had existed for a while before the accident. He testified that he travelled that route almost every single day,” the judge said.

Steytler testified that the pothole had been a point of discussion among him, his colleague and his mother

Rina Bryston, Steytler’s mother, testified that she was at home on the farm when she received a call from her son. She testified that when her son reported the accident to her, he referred to a “damn pothole”.

“It was her testimony that when her son showed her where the accident happened, she realised that the pothole involved was the same one they had complained about and had warned her children about several times.”

Bryston testified that because her children frequently drove her vehicle, she had warned them to avoid that specific pothole so they would not disrupt the wheel alignment due to its size.

Nziweni’s court found that the road was already known to be vulnerable to deterioration and pothole formation. Despite this, no warning signs had been erected and no effective steps taken to repair the hazard.

Nziweni further held that the risk of harm to motorists was foreseeable and that the department’s omission directly contributed to the accident and Van Staden’s injuries.

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