Durban - An R8 million negligence claim instituted by a young Warner Beach motor - cyclist severely injured in a motorbike accident five years ago is wallowing in a legal no man’s land.
The eThekwini Municipality and a roads contractor are arguing over which, if either of them, could be held responsible.
On Monday the contractor, Milling Techniks, went to the Durban High Court seeking to compel the city to produce the document which it claimed proved that the company, and not the municipality, might be held liable.
Listing dozens of attempts to get the document, the company’s financial director, Gregory Whittaker, accused the city of dragging it into “protracted and expensive high court litigation” when it could not produce “the so-called indemnity” it was relying on to oppose the claim.
The document it had provided after a recent final threat contained no such indemnity and was not the one the city had referred to previously in its court documents, he said.
Damian Opperman and his mother, Sharon, both of Warner Beach, instituted the court action against the municipality in 2012 for alleged negligence following his accident in November 2010.
According to the pleadings, Opperman was riding his 125cc bike along the R102 between Warner Beach and Doonside when he went into a “depression” caused by resurfacing of the road.
He was thrown off his bike, fracturing his skull and suffering other severe head, neck and facial injuries.
His bike was damaged beyond repair.
Opperman was taken to Kingsway Hospital, from where he was transferred to St Augustine’s in a deep coma. He was kept on a ventilator in the ICU.
He underwent surgery and intensive physiotherapy before being transferred to a rehabilitation centre a month later, where he spent another six weeks.
Still suffering from pain, he was claiming about R8 million for future medication and loss of earnings while his mother was claiming about R500 000 for out-of-pocket expenses.
In its pleadings, the municipality said Milling Techniks had been employed as an “independent contractor” through a tender process to do road rehabilitation.
It stated that “Annexure A” was a material portion of the written contract dealing with indemnity.
But Annexure A was never put up in the court papers and still had not been provided, Whittaker said.
The company further said it should not be held liable anyway because Opperman had failed to keep a proper lookout, had been travelling too fast and had not secured his crash helmet properly, if he had been wearing it at all.
The issue of the document was adjourned by consent on Monday until later this month to give the city one last opportunity to produce it. The main negligence case could not be set down for trial until this issue had been resolved.
The Mercury
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