This is a very important question we would like to discuss as part of the series on Car Insurance, road damage, potholes and the law. After an earlier blog post a visitor to the car insurance blog emailed a reply received from a road construction company. The wording is as follows:
“We refer to the above incident and advise that as our client, …Construction ….Pty, complied with the Contract Conditions with regard to the display of Disclaimer Boards and warning signage at the site of the incident, no liability or negligence can be attributed to them in this matter.
We suggest that you approach your own Insurers.”
We would however like to argue in this blog post that this answer is not the full truth – and that attention needs to be given to more aspects than the mere presence of disclaimer boards and warning signs.
Display of Disclaimer boards and Warning Signs
The display of disclaimer boards and warning signs can be regarded as standard practise at construction zones where road work is being performed. The display of these warning signs could even be part of the contractual agreement between the roads agency or municipal authority and the road construction company as referred to in the answer.
This does however not exclude the potential liability and the right of the vehicle owner to claim for damage caused by negligence in the construction zone. The negligent acts by a road construction company can not merely be excluded by warning signs in the construction zone – and needs to be analyzed on its own merits.
Reference to Case Law: CAPE METROPOLITAN COUNCIL v GRAHAM 2001 (1) SA 1197 (SCA)
We would like to refer to the above “Chapman’s Peak case” to illustrate how a warning sign on its own does not exclude liability. We would like to quote from the headnote from this court case to illustrate how warning signs have in this case been deemed insufficient to prevent harm to a motorist.
Facts from the case:
Chapman’s Peak Drive, linking Hout Bay in the north to Noordhoek in the south on the west coast of the Cape Peninsula, has been a major tourist attraction since its completion in 1922. On the Hout Bay side of the road there are two internationally recognised ‘falling rocks’ warning signs approximately three kilometres apart directed at traffic travelling towards Noordhoek and a similar sign near the commencement of the road on the Noordhoek side directed at traffic travelling towards Hout Bay.
On Sunday, 26 June 1994 the respondent suffered serious injuries when his vehicle was struck by a landslide from above a rock cut 1,5 km south of the lookout point. He sued the appellant, the local government body responsible for the management and maintenance of the road, for delictual damages.
At the trial the grounds of negligence upon which the respondent relied were confined to (a) the appellant’s failure to warn users of the road of the risk of harm from falling earth and rock, the contention being that the ‘falling rocks’ signs were inadequate, and (b) the appellant’s failure to close the road temporarily prior to the accident.
The decision whether or not to close the road was left to the assistant maintenance superintendent in charge of roads in the area. There was no policy as to when he was to close the road and no guidelines were laid down to assist him in reaching a decision. The assistant maintenance superintendent would merely take steps to close the road once a rockfall or landslide had rendered it unusable.
The Provincial Division held that the appellant was liable for the damage suffered by the respondent in consequence of the accident
Findings by the Supreme Court on Appeal
Held, that the appellant’s admission that it had been under a legal duty to take such reasonable precautions as circumstances permitted in order to avoid or minimise injury to users of the road had effectively been an acknowledgment that if it were found to have been negligent in failing to take such precautions its conduct would have been wrongful.
Held, further, as to negligence, that whether in any particular case the precautions taken to guard against foreseeable harm could be regarded as reasonable or not depended upon a consideration of all the relevant circumstances and involved a value judgment which was to be made by balancing various competing considerations. These considerations would ordinarily be (a) the degree or extent of risk created by the actor’s conduct; (b) the gravity of the possible consequences if the risk of harm materialised; (c) the utility of the actor’s conduct; and (d) the burden of eliminating the risk of harm.
Held, further, that, while it was no doubt true that most experienced drivers would have been aware that the risk of rockfalls and landslides on the road was generally intensified in wet weather, the appellant was in a far better position to assess that risk: not only did it have knowledge of the particular problems associated with the road, it also had or ought to have had knowledge of previous landslides and major rockfalls in wet weather, as well as of other incidents in which people had suffered injuries as a result of all forms of slope failure. In addition, the rainfall figures recorded at the Hout Bay weather station were readily available to it.
Held, further, that there would be times when the appellant would know or ought to know that by reason of the weather conditions or otherwise the risk of harm resulting from rockfalls or landslides had increased to such an extent that the ‘falling rocks’ sign no longer adequately conveyed to users of the road the true extent of the risk. It would then have had to decide whether the circumstances were such that the road ought to be closed. It was important to bear in mind when considering whether the appellant had been negligent that prophetic foresight was not required; the appellant had been obliged to do no more than act reasonably.
Held, further, as to the difficulties confronting the appellant when it had to decide whether to close the road (outcry from commuters) and, once having closed it, whether to reopen, that, although the alternative route linking Hout Bay to Noordhoek involved an additional journey of some 14 km, that was no more than an inconvenience and, while it might well be difficult to decide when to reopen the road, that was no justification for keeping it open in circumstances which required it to be closed.
Held, further, having regard to the problems associated with the road and its history of major slope failure, that the appellant had been negligent in failing to consider the information available and to consider the question whether the risk of major slope failure had increased to such an extent as to justify the closure of the road.
Held, further, however, that this did not necessarily mean that the appellant was liable. The issue was whether in all the circumstances the appellant’s failure to close the road prior to the accident had been unreasonable.
Held, further, as to the appellant’s contention that the possibility of a slope failure’s actually causing harm or serious harm to users of the road remained too remote to justify the extreme measure of closing it, that, while that might or might not be so in relation to the risk of harm resulting from minor slope failures, what was clear was that the risk of slope failures which had increased with the rain had included the risk of major rockfalls or landslides and that the possibility of serious harm being suffered could by no means have been regarded as remote.
Held, further, that in all the circumstances the risk of major slope failure and of harm to users of the road had increased to such an extent that by the morning of Sunday, 26 June, at the latest the ‘falling rocks’ warning signs no longer conveyed to the public the true extent of the risk of using the road and that by then it had become unreasonable for the appellant not to have closed the road. The appellant had therefore been negligent in failing to close the road prior to the accident.
Conclusion and Advice
Even though this might appear to be rather legal and technical, we could deduct from this case the following important guidelines:
– That the mere placement of disclaimer boards and warning signs will not exclude all liability for damage caused in construction zones.
– We still have to pay attention to all the facts and circumstances that has lead to the damage / consequence to determine whether there has been negligence.
– The non -placement of disclaimer boards or failure to erect warning signs would be a negligent failure – but a warning sign is only once component of the standard of reasonable care to be expected.
– We will ask the question whether a reasonable construction company would have done more to prevent the damage / consequence from occurring – and if it would have done more – then the conduct in question would be deemed negligent.
It is important to remember that an investigation into possible negligence will always consist of a value judgement – and an analysis of all the possible facts and circumstances present. It will be important for the person suffering the damage to collect evidence and provide as much detail as possible to the presiding office making such judgement!!