Durban - A potholed road that caused a cyclist to lose control and suffer severe injury will cost the eThekwini Municipality R2.1 million in damages following a Durban High Court judgment late last week.
This is the second major claim against the city for injuries sustained by a road user hitting a pothole.
In this case, a Westville cyclist, businessman Ian Vowles, 66, hit the pothole while riding with a group in 2008.
He suffered a brain injury, a fractured skull, frontal lobe damage and severe facial and neck injuries. He was in a coma and was in hospital for a month, and also received psychiatric care.
His six-year-long battle for compensation ended last week when the
municipality was given the amount it would have to pay in damages. This included the cost of past and future medical expenses, loss of earnings, and general damages for pain, shock and suffering, as well as permanent disfigurement and disability.
On Monday, the city will have to respond in a separate case involving a 44-year-old motorcyclist, Scott Taylor, who was left paraplegic after hitting a pothole in Botanic Gardens Road 25 years ago.
In this case the city conceded liability in 2011 and agreed to pay 75 percent of Taylor’s claim – a potential R40m, exacerbated by hefty legal bills incurred by its alleged inaction over trial preparations.
Attorneys for Taylor say the city has not taken any steps to prepare for the trial, including not employing experts to examine their client, despite his making himself available on numerous occasions.
In an order by consent, the city agreed to respond to the allegations and detail plans for the trial preparation on Monday.
In Vowles’s case, however, his legal ordeal is over, as although in 2012 the city admitted liability for his accident – after initially denying it – and was ordered to pay 65 percent of his claims, the amount had not been decided.
On Wednesday, it was agreed that his damages amounted to R3.2m, of which the city will have to pay about R2.1m.
In his case Vowles argued that the municipality either knew, or ought to have known, that potholes in Kings Avenue, Westville, would have resulted in collisions or injuries to people using the road.
He argued that the municipality had a duty to:
* Regularly inspect the road surface.
* Maintain the road surface.
* Promptly repair the road surface when necessary.
* Promptly close excavations of the road surface.
* Warn road users of holes or excavations.
Vowles said the municipality was negligent and breached these responsibilities, which led to his accident at about 4.15am on April 15, 2008. While cycling in a group along Kings Avenue, with his lights on, Vowles hit a pothole which caused him to lose control of his bicycle. He was flung over the handlebars and sustained serious injuries, even though he was wearing a helmet.
Years later, Vowles is now happy with his settlement.
“I think it is fair. It took a long time, though. I really only did it in order for roads to be fixed and potholes to be covered so that another cyclist or driver does not get injured like I did.”
Although he said he had recovered well from the accident, he still struggled with loss of smell, occasional memory loss and loss of direction. The accident and these conditions were the reasons behind Vowles’s early retirement from his position of general manger of a packaging company.
He admits, however, that something good came of the accident – his move from retirement to leading charity organisation Headway, which assists survivors of acquired brain injury caused by strokes, near-drowning, motor and cycle accidents, assaults and even infections such as meningitis and encephalitis.
Vowles says he loves the new path he has taken as a result of the accident.
But it is not only the city that has faced legal action over potholed roads.
In 2008, in a similar case, the Supreme Court of Appeal ordered the provincial government to pay Pietermaritzburg advocate Alistair McIntosh, who was injured when he hit a pothole while cycling.