THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
Case no: 632/07

In the matter between:

ALLISTAIR POVL McINTOSH

APPELLANT

and

PREMIER OF THE PROVINCE OF
KWAZULU-NATAL

1ST RESPONDENT

MEC FOR THE DEPARTMENT OF TRANSPORT
FOR KWAZULU-NATAL

2ND RESPONDENT
____________________________________________________________

Coram:
SCOTT, MTHIYANE, NUGENT, MAYA JJA  et HURT
AJA

Date of hearing:
6 MAY 2008

Date of delivery:     29  MAY 2008

Summary:  Delict – cyclist falling in attempt to avoid pothole in road  - legal duty of
Province apparent from statute – additional considerations when weighing up
reasonableness of public authority’s conduct.

Neutral citation:   McIntosh v Premier, KwaZulu-Natal (632/07) [2008] ZASCA 62
(29 May 2008)

SCOTT JA/ ….

SCOTT JA:
[1] The appellant, a keen cyclist in his late forties, sustained serious bodily
injuries when he fell from his bicycle while swerving to avoid a large pothole in
a road under the management and control of the respondents.1 He
subsequently sued the respondents for damages in the High Court,
Pietermaritzburg, alleging that they had been negligent, inter alia, for failing to
ensure that potholes in the road were timeously repaired or signs were
erected warning road users of the danger. The matter came before Kruger J
who was asked to decide only the issue of liability and to defer the issue of
the appellant’s damages for later determination. At the end of the trial the
learned judge held, however, that the appellant’s fall was attributable solely to
his own negligence and dismissed the action with costs. The appeal is with
the leave of the court a quo.

[2] The circumstances in which the appellant came to fall off his bicycle
are largely common cause. On 21 August 2004 he and a group of friends
went cycling in the Kamberg area near Pietermaritzburg. They cycled in a
group – the appellant described it as a ‘bus’ – up a fairly steep incline on a
road referred to in evidence as the P164. This section of the road rises to the
top of a hill in the course of which there are a number of bends in both
directions. The centre of the road is marked with a barrier line comprising two
solid white lines with a broken white line between them. Shortly after reaching
the crest of the rise the appellant and two of his companions decided to ride
back in the direction from which they had come. They set off from the crest of
the hill, one after the other, with a short interval between the departure of
each. The appellant was the second to leave. He described the bicycle he
was riding as a ‘mountain bike’ which had been fitted out as a ‘road bike’ with
‘slick’ tyres. The bicycle had a speedometer. He said that as he descended
down the hill he attained a speed of about 55 kilometres per hour. He virtually
had the road to himself and he travelled about a metre from the centre line. As

1 The second respondent is the MEC for the Department of Transport for KwaZulu-Natal.

he entered a bend in the road to his right he began to converge on the barrier
line in order to negotiate the bend more easily. The road beyond the bend
curved to his left so as to afford him a clear view of oncoming traffic. He
observed an approaching vehicle but it was still a long way off. Suddenly he
observed a large pothole ahead of him on the broken line between the two
solid white lines. He said his path of travel was then such that he would have
struck the extreme left-hand side of the pothole. At that stage both he and his
bicycle would have been leaning to his right, ie into the bend. In an effort to
avoid the pothole he attempted to swerve to his left by shifting his weight to a
more upright position. In the process he lost control of the bicycle and the next
thing he remembered was lying on the grass on the other side of the guard-
rail with people helping him.

[3] Photographs taken a few days later show that the pothole extended
from the right edge of the left solid line (travelling downhill) to the right edge of
the right solid line.  It is common cause that its width was 400 mm at its
widest, its length was 750 mm at its longest and, its depth was 750 mm at its
deepest. Its depth was such that it had penetrated through the base course of
the road. A manual compiled by the CSIR entitled ‘Pavement Management
Systems: Standard Visual Assessment Manual for Flexible Pavements’, which
is used throughout the country, categorises potholes as falling into one of
three categories, namely degree one, three and five, the latter having a
diameter in excess of 300 mm and being the most serious. A manual
compiled
by
the
KwaZulu-Natal
Department
of
Transport
entitled
‘Maintenance Quality Standards’ classifies potholes as degree one, two and
three. The latter is described as follows: ‘The defect is very prominent. A
dangerous situation exists and damage will occur in all cases’.  It is common
cause that the pothole in question was a degree five pothole in terms of the
former manual and a degree three in terms of the latter. None of the experts
who testified had seen the pothole prior to its being patched. Based on the
photographs, however, there was general agreement that it was at least three
months old. Professor Visser, the chairperson of the South African Roads
Board, thought it could have been as old as a year. Significantly, Mr Donald
Robertson, a local farmer and frequent user of the road, testified that he knew

of the pothole and that it had been there for about a year before the accident.
The experts were also generally in agreement that by reason of the location of
the pothole, ie in the centre of the road and not in the normal wheel path of
vehicles using the road, it would have increased in size relatively slowly.
Given its size when measured on 29 August 2004, it follows that it would have
fallen into the categories of degree five and three respectively for some
considerable time before the accident.

[4] At an in loco inspection it was noted that the pothole would have been
visible to anyone coming down the hill at a distance of approximately 60
metres. By the time of the inspection, however, the pothole had long since
been repaired and the patch on the white line was readily visible. The two
witnesses who observed the pothole before it was patched both expressed
the view that it was not easy to see. The one was Mr Robertson, the local
farmer; the other was Mr Adrian Rall who took a series of photographs of the
scene on 28 August 2004. The latter explained that the light, chalky type dust
in the pothole and its position on the broken white line made the pothole
difficult to see until one was much closer than the 60 metres referred to. To
the extent one can judge from the photographs, they appear to confirm Mr
Rall’s evidence.

[5] To complete the picture, it is necessary to record certain other features
of the road. The speed limit was 100 kph. The radius of the curve where the
appellant fell was 100 metres. According to Mr Barry Grobbelaar, a
mechanical engineer and ‘accident reconstructionist’, the appellant’s speed of
55 kph was well within the limit at which the curve could comfortably be
negotiated. The road itself was 7.3 metres wide. Structurally, the relevant
section of the road was in a poor condition and the consultants appointed by
the Department to report on it had recommended that it be reconstructed.
Nonetheless Mr Marthinus van Heerden, one of the consultants involved,
expressed the view that from the users point of view the asphalt surface
would have appeared to be in a reasonable condition, save for the potholes,
and he said that he had no reason to doubt the appellant’s evidence that until
falling he had enjoyed a smooth ride down the hill.

[6] The respondents denied in their plea that they or their employees had
been negligent. They alleged that they had taken various steps to ensure that
the existence of potholes was brought to their attention and attended to.
These steps, it was alleged, included the setting-up of a call centre for
members of the public to report the existence, inter alia, of potholes, and the
establishment of a system of weekly routine inspections of all the roads under
their control and management. I interpose that with regard to the latter
assertion, Mr Howard Bennett, a former senior employee in the Department
who gave evidence on behalf of the appellant, confirmed that the P164 would
have had a person allocated to inspect it on a weekly basis. As far as the
actual maintenance work was concerned, it was alleged in the plea that the
defendants adopted two ‘streams of systems’. They were:

‘(i)
an internal maintenance team for the area concerned, manned by six employees of
the defendants;
(ii)
a Vulindlela programme, in terms of which maintenance work is contracted out to
emerging contractors, but is funded by the defendants.’

In addition and notwithstanding the aforegoing, it was alleged that the
respondents had ‘insufficient or inadequate funds set aside for the
maintenance of roads in and around the area concerned, namely Mooi
River/Rosetta/ Kamberg’.

[7] Much of the evidence adduced by the respondents was aimed at
establishing that there had been a significant underfunding for the
maintenance of roads in the KwaZulu-Natal province for a number of years
which had resulted in a serious deterioration of the road network. Mr Wayne
Evans, a senior official involved in the financial management of the
Department, testified that for the financial year 2004 to 2005 the cost of
maintaining the current road network was estimated to be R1.4 billion. The
current funding, awarded on a three-year basis, was R681 million leaving a
shortfall of R770 million. He said that this amount had been requested but the
amount allocated by the provincial cabinet following the recommendations of

the treasury was no more than R16m, leaving the Department underfunded
and under resourced. It appears that the road network of the province is
divided into four regions, each with its own local areas. The P164 is situated
in the Vulindlela local area. This area contains some 1700 km of road of which
1250 km are gravel and 460 km of asphalt. Mr Blake Mackenzie, the cost
centre deputy manager for the Pietermaritzburg  region and the person
responsible for the Vulindlela local area, testified that for the entire length of
asphalt  road there is only one ‘black top team’ whose function it is to attend
to the patching of potholes and the repair of surface damage. Formerly, he
said, there were three such teams. Subsequently, patching and surface repair
work was outsourced to an ‘emerging contractor’, Godide Construction, as
well as to other ‘formal contractors’. Nonetheless, the in-house black top
team, he said, remained over-extended.

[8] The work for this team (and the independent contractors) is planned at
weekly meetings. Ironically, at a meeting held on 12 August 2004 the black
top team was directed to effect surface repairs to the P164 from km 0 to the
end of the road (approximately 30 km) during the period 17 to 18 August
2004. The fact that the work was so programmed did not mean, however, that
it would be completed; it depended on the nature and extent of the work. In
the event, the team commenced work on Wednesday 18 August and during
the period 18 August to Friday 20 August repaired the damage to the road
surface between km 15 and km 16. The damage to the remaining sections of
the road, including the pothole in question which was at the 8 km mark, was
repaired some time after the weekend. (It will be recalled that the accident
occurred on Saturday, 21 August 2004.) Mr Sakhamuzi Mbedu, the leader of
the black top team, explained that the procedure he adopted when repairing a
road was to begin with what he perceived to be the most serious damage. If
no particular damage had been identified he would drive along the road
looking for the most serious damage to determine where to begin. This is how
it came about, he said, that work was commenced on the road between km15
and 16. He said that he did not recall the pothole in question, but if he had
initially ignored it, the reason would have been that because it was on the

barrier line and not in what would normally be the wheel path of vehicles using
the road, he would not have regarded it as a priority.
[9] The approach adopted by the court a quo was to determine the issue
of negligence solely in relation to Mr Mbedu’s conduct during the period 18 to
20 August 2004. It held that Mr Mbedu’s modus operandi of attending first to
what he considered to be the most serious damage to the road surface was
reasonable, as was his attitude that, although he could not recall the pothole
in question, he would not have attended to it immediately because of its
location on the barrier line, but would first have attended to the other potholes
which he considered to be the more serious. On this basis, the judge found
that because on the days in question the respondents must have had the
means of repairing the potholes on the P164, all the evidence adduced by the
respondents relating to their lack of funds was irrelevant and he accordingly
deprived the respondents of their costs in relation to that evidence.

[10] It is clear, however, from both the pleadings and the evidence adduced
on behalf of the appellant that the latter’s allegation of negligence on the part
of the respondents was not confined to Mr Mbedu’s conduct on the days
immediately preceding the accident. It was always the appellant’s case that
the respondents’ negligence lay in its failure to ensure that the pothole in
question was repaired long before 21 August 2008 and long before it had
grown to the size it had by that date. Indeed, counsel for the appellant did not
suggest that Mr Mbedu was negligent for commencing the work at the 15 km
mark, as opposed to any other area or at one or the other end of the road. In
approaching the issue of negligence as it did, the court a quo therefore clearly
erred. It accordingly becomes necessary to consider whether the appellant
succeeded in establishing negligence on the part of the respondents on the
grounds alleged in the particulars of claim in the light of the evidence as a
whole. As the alleged negligence is founded upon an omission on the part of
what in effect is a public authority it is desirable to deal first with the legal
principles involved.

[11] As repeatedly stated by this court, a negligent omission, unless
wrongful will not give rise to delictual liability. More recently in Trustees, Two

Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA)
Brand JA, at 144A-C, para 10, explained the requirement of wrongfulness as
follows:

‘Negligent conduct manifesting itself in the form of a positive act causing physical damage to
the property or person of another is prima facie wrongful. In those cases, wrongfulness is
therefore seldom contentious. Where the element of wrongfulness becomes less
straightforward is with reference to liability for negligent omissions and for negligently caused
pure economic loss (see eg Minister of Safety and Security v Van Duivenboden 2002 (6) SA
431 (SCA) ([2002] 3 All SA 741) in para [12]; Gouda Boerdery BK v Transnet 2005 (5) SA 490
(SCA) ([2004] 4 All SA 500) in para [12]). In these instances, it is said, wrongfulness depends
on the existence of a legal duty not to act negligently. The imposition of such a legal duty is a
matter for judicial determination involving criteria of public or legal policy consistent with
constitutional norms.’

The learned judge continued at 144I, para 12;

‘. . . when we say that negligent conduct . . . consisting of an omission is not wrongful, we
intend to convey that public or legal policy considerations determine that there should be no
liability; that the potential defendant should not be subjected to a claim for damages, his or
her negligence notwithstanding. In such event, the question of fault does not even arise. The
defendant enjoys immunity against liability for such conduct, whether negligent or not . . . .’

In the present case the second respondent is enjoined in terms of s 3(1) of
the KwaZulu-Natal Provincial Roads Act 4 of 2001 to administer the provincial
road network in accordance with national and provincial norms inter alia ‘to
achieve optimal road safety standards within the Province’ and to ‘protect and
maintain provincial road network assets’. In terms of s 3(2) the second
respondent’s responsibility is said to be ‘within the Province’s available
resources’. However, a public law obligation does not necessarily give rise to
a legal duty for the purpose of the law of delict. See Rail Commuters Action
Group v Transnet Ltd t/a Metrorail  2005 (2) SA 359 (CC) paras 79-81. But in
the present case s 9(3) of the Act puts the issue beyond doubt. It provides:

‘9(3)
The Minister [ie the second respondent] is not liable for any claim or damages arising
from the existence, construction, use or maintenance of any provincial road, except where the
loss or damage was caused by the wilful or negligent act or omission of an official.’

On behalf of the appellant it was submitted that the liability excluded by the
section was limited to a liability which could notionally arise in circumstances
where the ‘existence, construction, use or maintenance’ of a provincial road
was the responsibility of a municipality or some other person and not that of
the Minister. This construction was founded on the definition of ‘official’ and
various other provisions of the Act. I am not sure that this is correct. But what
is quite plain is that a negligent omission of an official in relation to the matters
referred to is expressly excluded from the exemption contained in the section.

[12] The second inquiry is whether there was fault, in this case negligence.
As is apparent from the much quoted dictum of Holmes JA in Kruger v
Coetzee 1966 (2) SA 428 (A) at 430E-F, the issue of negligence itself involves
a twofold inquiry. The first is; was the harm reasonably foreseeable? The
second is; would the diligens paterfamilias take reasonable steps to guard
against such occurrence and did the defendant fail to take those steps? The
answer to the second inquiry is frequently expressed in terms of a duty. The
foreseeability requirement is more often than not assumed and the inquiry is
said to be simply whether the defendant had a duty to take one or other step,
such as drive in a particular way or perform some or other positive act, and, if
so, whether the failure on the part of the defendant to do so amounted to a
breach of that duty. But the word ‘duty’, and sometimes even the expression
‘legal duty’, in this context, must not be confused with the concept of ‘legal
duty’ in the context of wrongfulness which, as has been indicated, is distinct
from the issue of negligence. I mention this because this confusion was not
only apparent in the arguments presented to us in this case but is frequently
encountered in reported cases. The use of the expression ‘duty of care’ is
similarly a source of confusion. In English law ‘duty of care’ is used to denote
both what in South African law would be the second leg of the inquiry into
negligence and legal duty in the context of wrongfulness. As Brand JA
observed in the Trustees, Two Oceans Aquarium Trust case, at 144F, ‘duty of
care’ in English law ‘straddles both elements of wrongfulness and negligence’.

[13] In the present case the reasonable foreseeability of harm to users of
the road in consequence of potholes was not in issue. Mr George Hattingh, a

consulting engineer who gave evidence on behalf of the respondents, readily
conceded that quite apart from the damage caused to vehicles by driving over
large potholes, their presence in the road was likely to cause drivers to
swerve to avoid them which could result in collisions with other vehicles or
pedestrians, particularly in wet weather when a swerving vehicle was likely to
skid. The circumstances of the appellant’s accident were admittedly
somewhat unusual but it is well established that it is sufficient if the general
nature of the harm to the injured party was foreseeable; it is not necessary
that the precise manner of its occurrence be foreseeable.

[14] The crucial question, therefore, is the reasonableness or otherwise of
the respondents’ conduct. This is the second leg of the negligence inquiry.
Generally speaking, the answer to the inquiry depends on a consideration of
all the relevant circumstances and involves a value judgment which is to be
made by balancing various competing considerations including such factors
as the degree or extent of the risk created by the actor’s conduct, the gravity
of the possible consequences and the burden of eliminating the risk of harm.
See eg Cape Metropolitan Council v Graham 2001 (1) SA 1197 (SCA) para
17. Where, however, a public authority is involved a further consideration
arises. It is this; a court when determining the reasonableness or otherwise of
an authority’s conduct will in principle recognise the autonomy of the authority
to make decisions with regard to the exercise of its powers. Typically, a court
will not lightly find a public authority to have failed to act reasonably because it
elected to prioritize one demand on its possibly limited resources above
another. Just where the line is to be drawn is no easy matter and the question
has been the subject of much judicial debate both in England and other
Commonwealth countries. See eg Stovin v Wise [1996] AC 923 (HL);
Gorringe v Calderdale Metropolitan Borough Council [2004] 2 All ER 326
(HL); Barratt v District of North Vancouver (1980) 114 DLR (3rd) 577 (SCC);
Brodie v Singleton Shire Council (2001) 206 CLR 512 (HC of A) paras 161-
162. But whether the criterion to be applied is ultimately one of rationality or
some other principle is unnecessary to decide. What, I think, is clear is that if
in the actual implementation of a policy or procedure adopted by the authority,
or for that matter in the course of its operations, foreseeable harm is suffered

by another in consequence of a failure on the part of the authority’s servants
to take reasonable steps to guard against its occurrence, a court will not
hesitate to hold the authority liable on account of that omission. Indeed, as I
read s 9(3) of the KwaZulu-Natal Provincial Roads Act, whatever its precise
ambit may be, there can be no doubt that omissions of this nature were
intended by the legislature to be excluded from the general exemption
embodied in the section.

[15] It was common cause that the P164 was the subject of weekly routine
inspections. The evidence revealed that the pothole in question had been in
existence for something like a year prior to the accident. During this period it
had been allowed to develop to a stage where it had attained the dimensions
of a degree 3 or degree 5 pothole depending on which code was applied. No
explanation was forthcoming as to why, notwithstanding the weekly
inspections, it was not repaired. The inference that arises is that it was either
not observed in the course of the inspections or it was not reported. It was not
in dispute that the repair of potholes constituted ‘routine maintenance’, as
opposed to ‘normal maintenance’ (resurfacing of roads) and ‘long term
maintenance’ (rehabilitation of roads). According to the experts the repair of
potholes was a priority, both with regard to the safety of road users and the
preservation of the structural integrity of the road. No evidence was led to
establish that by reason of the lack of funds the repair of potholes was
neglected in favour of some other priority. Nor was there evidence to suggest
the existence of a policy to select some potholes for repair ahead of others
and, if so, the basis upon which such a selection was made. Mr Hattingh, the
consulting engineer who testified on behalf of the respondents, expressed the
view that the pothole in question was of a low priority because of its location
on the barrier line. But this was clearly an afterthought. No one from the
Department suggested that this was the reason why it had not been repaired.
In any event, its very existence and the fact it had attained the size it had
demonstrated that vehicles drove over it. According to the appellant – and this
was confirmed by the photographs – it was possible to see if there was
oncoming traffic when coming down the hill. In these circumstances although
an offence, it would not have been negligent for road users to drive on or

straddle the barrier line when descending the hill. As previously indicated, the
P164 was not in a built-up area. The speed limit was 100 kph. There were no
signs warning road-users of the existence of potholes. These were only
erected after the accident. No rational reason presents itself as to why the
pothole was left unrepaired for so long; nor was one advanced. In the
circumstances the inference of negligence on the part of the respondents’
servants responsible for the inspection and repair of potholes on the P164 is
irresistible.

[16] There remains the question of the appellant’s own negligence, which
the respondents pleaded in the alternative was a contributory cause of the
accident. When riding up the hill the appellant did not see the pothole in
question. This was, no doubt, because he rode on the left side of the group, ie
the side closest to the left side of the road. But once he commenced his
descent he did observe a pothole. Nonetheless, he proceeded downhill at a
speed which left little room for error. A cyclist trundling along a suburban road
would normally have no difficulty avoiding a pothole. But the appellant’s speed
was such that when he did see the pothole he was unable to adjust the path
of his travel by only the few centimetres necessary to avoid the pothole
without losing control of his bicycle. Being aware of the existence of potholes,
his speed in these circumstances was to my mind excessive and amounted to
negligence on his part.

[17] The degree to which the respective fault of two parties contributed to a
single occurrence is always a difficult matter and is essentially a matter of
judicial judgment. The appellant described the pothole which he first saw
when coming down the hill, as ‘small’. As I have indicated, its existence
should have alerted him to the danger. But the pothole which resulted in his
fall had been allowed to grow to such a size as to be described as creating a
dangerous situation. Given that the road was inspected on a weekly basis, the
failure to repair the pothole over such a long period is indicative, I think, of a
greater degree of negligence than that attributable to the appellant. In the
circumstances an apportionment of 60 : 40 in favour of the appellant seems to
me to be fair and equitable in all the circumstances.

[18] The appeal is upheld with costs. The order of the court a quo is set
aside and the following substituted in its stead.

‘(1)
The defendants are ordered to pay 60 per cent of the plaintiff’s
damages as may be agreed or proved.

(2)
The defendants are ordered to pay the plaintiff’s costs, such
costs to include:

(i)
the costs occasioned by the employment of two counsel;
(ii)
The qualifying expenses of the following witnesses:
Visser, Bennett, Van Heerden, Rossouw and Grobbelaar.

(3)      The  matter  is  adjourned  sine die  for  the determination of the
quantum of the plaintiff’s damages.’

__________

D G SCOTT

JUDGE OF APPEAL
CONCUR:

MTHIYANE JA
NUGENT
JA
MAYA
JA
HURT
AJA
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

ALLISTAIR POVL McINTOSH AND PREMIER OF THE PROVINCE OF
KWAZULU-NATAL AND MEC FOR THE DEPARTMENT OF TRANSPORT
FOR KWAZULU-NATAL   CASE NO 632/07

From :
The Registrar, Supreme Court of Appeal

Date:
29 May 2008

Status:
Immediate

Please note that the media summary is for the benefit of the media and
does not form part of the judgment of the Supreme Court of Appeal

The SCA today upheld the appeal of a Pietermaritzburg advocate who
sustained serious injuries when he fell from his bicycle while attempting
to avoid a large pothole in a road controlled and managed by the
KwaZulu-Natal Department of Transport. At the time, Mr Allistair
McIntosh, a keen cyclist, was riding down a hill, with bends in both
directions, in the Kamberg area, near Pietermaritzburg. He testified that
while negotiating a bend in the road at a speed of about 55 kph he
suddenly became aware of a large pothole on the centre line. He could
see that the road was clear ahead and was then converging on the
centre line, leaning into the bend to his right. In his attempt to shift his
weight to a more upright position and so pass to the left of the pothole,
he lost control of his bicycle and fell.

The High Court, Pietermaritzburg found McIntosh to have been solely to
blame for his injuries. On appeal, however, it was argued that the
pothole had been in existence for about a year and had grown to such a
size and depth that according to the Department’s own maintenance
code it gave rise to a ‘dangerous situation’. The Department complained
that it had insufficient funds to properly maintain the road network in the
Province.

In delivering the judgment of the court, Justice Scott noted that the road
in question was the subject of weekly routine inspections but
notwithstanding these there had been no explanation forthcoming as to
why the pothole had not been repaired. He said that according to the
experts the repair of potholes was a priority, both with regard to the
safety of road users and the preservation of the structural integrity of
the road, yet the Department had failed to lead evidence to show that by
reason of the lack of funds the repair of potholes had to be neglected in
favour of some other priority. In these circumstances, he said, the
inference of negligence on the part of the Department’s officials was
irresistible.

McIntosh conceded in evidence that shortly after commencing his
descent down the hill he had observed a pothole in the road. The SCA
found that he had nonetheless proceeded downhill at a speed which left
little room for error and for this reason he had also been negligent. In
the result the court apportioned blame on the basis of 60 : 40 in favour
of McIntosh.

--- ends ---