- A cyclist suffered serious injuries after falling into a hidden 6.2-metre culvert alongside a public cycle path.
- Authorities responsible for the route remain liable for 90% of the cyclist’s proven damages.
- The High Court dismissed an attempt to challenge the liability ruling.
Craig Button’s damages claim has cleared another hurdle in the High Court in the Western Cape. The court dismissed an application that sought to overturn a ruling holding public authorities responsible for most of the losses arising from a cycling accident involving a hidden 6.2-metre culvert.
Button was injured on 14 February 2020 when he fell from his bicycle while using a cycle path. The path had been constructed, owned, controlled and maintained by the authorities involved in the case.
Earlier this year, the court found the authorities jointly liable for 90% of the damages that Button may prove he suffered as a result of the incident. The trial dealt only with liability, leaving the amount of compensation to be determined later.
Hidden danger at the centre of the dispute
The MEC for Transport and Public Works and the Premier of the Western Cape asked the court for leave to appeal the judgment. They argued that the court had made several errors in reaching its findings and contended that another court could come to a different conclusion.
Central to the dispute was a concealed culvert next to the cycle path. The court previously found that the culvert was hidden by vegetation and that cyclists using the route would not necessarily have known it was there.
The authorities challenged findings that they had failed to engage properly with Button’s case, disputed the significance of the concealed hazard, and attacked parts of the evidence relied upon by the court. Judge N Mayosi rejected those arguments.
The judge found that Button’s case had consistently been that the authorities had a legal duty to protect cyclists using the path and had failed to take reasonable steps to do so despite the foreseeable risk of harm.
The judgment noted that the authorities did not specifically answer allegations that members of the public were not warned about the approximately 6.2-metre drop leading to the culvert below. During the argument, counsel for the authorities conceded that their plea contained only a general denial of that allegation.
Safety measures found wanting
The court also rejected arguments that the issue of a concealed hazard had not formed part of the case. Judge Mayosi found that the allegations concerning the failure to warn users about the culvert had always been part of the dispute and had been thoroughly explored during the trial.
Another issue concerned the safety measures in place at the site. Evidence before the court showed concerns about the handrail near the culvert and the absence of warning signs alerting cyclists to the danger. Witnesses testified that the handrail was not sufficiently effective to protect cyclists and that maintenance efforts focused on keeping vegetation off the path rather than warning users about the concealed drop.
The authorities also challenged evidence given by Andre van Blommenstein regarding how the accident probably occurred. Although he did not witness the fall, he testified about the likely sequence of events based on his experience as a cyclist and the position in which the bicycle was found.
Judge Mayosi found no fault with the court’s reliance on that evidence and concluded that it helped establish probable factual causation.
No realistic chance of success
After considering all eight grounds of appeal, the judge concluded that there was no reasonable prospect that another court would interfere with the original findings.
The application for leave to appeal was dismissed, and the authorities were ordered to pay the costs of the application, including counsel’s fees.
The result means the ruling holding the authorities liable for 90% of Button’s proven damages remains in place while the long-running damages claim moves closer to its next phase.
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