Posted on: February 18th, 2018 by Dawid Du Plessis

Imagine you are on your mountain bike on a provincial road on your way home after enjoying time on some favourite routes on a nearby wine farm. Back on the tar, travelling at around 55km p/h downhill on a road with a 100km p/h speed limitation, you suddenly see a large pothole and swerve to avoid it, but unfortunately fail in the manoeuvre and sustain serious injuries in the fall.
The scenario above reflects to some extent the facts in the matter of McIntosh v Premier, KwaZulu-Natal which ultimately ended up before the Supreme Court of Appeal. The cyclist claimed from the local authority for the injuries sustained on the road which was under the management and control of the province.

Provincial and municipal roads

The cyclist’s claim succeeded in that the court found that the local authority was, on the facts presented, indeed negligent. It had knowledge, for a long time already, of the existence of the very large pothole which according to its own policies was a size that posed a serious safety risk and nonetheless failed to apply its available resources to have it repaired. (The court subtracted liability for part of the claim due to contributing negligence on the side of the cyclist for travelling at a too high a speed while being aware of potholes in the area.) But, this will not always be the case, the court noting that attributing negligence to a local authority will depend on the circumstances of each case.

Mountain biking tracks on farms, in nature reserves

On the other hand, the position is quite different were the same scenario to play off on a private farm, conservancies, or nature route as these routes are usually entered after passing a sign to the effect that the rider is entering at his or her own risk. That, together with the inherent risks a rider is deemed to accept when enjoying MTB as a sport, means that a finding of negligence on the side of a property owner or even a race event host, is unlikely unless there were exceptional circumstances.

(Note that in this context, local authorities are liable for provincial roads, municipalities for municipal roads and SANRAL for the national roads.)

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