Posts tagged ‘Disgruntled Vehicle Owner’

Do disclaimer boards and warning signs exclude liability for damage from road works?

road construction signThis 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!!

When are road construction companies deemed negligent for vehicle damage?

constructionOn the Car Insurance Blog we are discussing the liability for damage from road construction and potholes. Claims by vehicle owners for damage as a result of potholes and road construction activity have increased significantly – and we have undertaken to discuss this in a series of blog posts.

Our objective in doing so is to provide important information and advice to vehicle owners not only on how to avoid such damage, but also on what is needed to seek redress for the damages suffered.

We have thus far addressed the following topics:

Car Insurance, road damage, potholes and the law
Negligence, the Reasonable Man and Car Insurance
Who is the reasonable driver when he drives near potholes?

In this blog entry we would like to discuss the negligence of road construction companies. This information will also overlap with regards to the liability of municipal authorities – but there will be significantly different approaches to seeking compensation for the damages suffered. We would like to pay a bit closer attention to the road construction companies in this blog post.

Negligence by road construction companies and vehicle damage

There is no arguing that road construction companies have in the past and will in the future be held liable for causing damage to vehicles driving in road construction zones. Many of these companies have been taken to court – and many claims have also been settled outside of the courts.

Even though these construction companies most likely have a strong focus on safety – people still operate the machinery – and humans do make mistakes! No road construction company will intentionally damage the vehicles of road users operating in their sphere of construction activity – but they might be deemed to have been negligent in causing damage.

Road construction negligence by conduct or failure

Road construction companies will not be judged to have been negligent only when doing something wrong, but also by failing to act in the appropriate manner when such reasonable conduct is required. It is important to reflect once more on the test for negligence:

In our law a person [including a legal person such as a construction company] is judged to be negligent where:

- He should reasonably have foreseen the possibility that the occurrence of the consequence or the existence of the circumstance in question; and
- He should reasonably have guarded against that possibility; and
- He failed to take the steps which he should reasonably have taken to guard against this.

This illustrates the basis of many of these instances of damage caused through negligence. Most often we will find that the construction company had an obligation to prevent a specific consequence from occurring – and failed to do so!

Damage from road construction activities

The Arrive Alive website and the Car Insurance Blog have received several requests for assistance from agitated vehicle owners who suffered damage from road construction activities and potholes. The damage suffered has occurred as a result of the following activities:

• Falling debris from construction vehicles
• Tyre damage from debris and construction materials on the road surface
• Vehicle accidents with other vehicles from improper management of traffic flow
• Accidents involving road construction vehicles
• Pedestrian accidents involving road workers and flaggers / pointsmen
• Damage from controlled [poorly controlled] explosions
• Vehicle paint damage from tar and other road construction liquids
• Windscreen damage from gravel and stones on the road surface
• Rock falls where road construction is taking place
• Damage from failure to close a man-hole or other dangers created during construction activity.

Construction companies operating in the field of road construction will be deemed as experts in their area of activity. They will be well aware of the above dangers, and can be expected to guard against these consequences.

Standard of reasonable care to be expected from road construction companies

We need to recognize that construction companies cannot be held responsible for every bit of damage and every small dent to the vehicles of all road users. The courts will have to find that there was indeed negligence in that the conduct from the construction company fell short of the reasonable standard of care to which this conduct can be measured!

How will the reasonable standard of conduct from road construction companies be judged?

As discussed in an earlier post, the courts will avoid taking an armchair approach. They will carefully scrutinize the conduct that brought about the damage with reference to the exact circumstances that existed at the time of the incident.

They will measure the conduct of the construction company to a reasonable standard – that of other construction companies in the same position. If another construction company would have foreseen the possibility of the consequence occurring – and have taken steps to avoid the consequence, then the failure to do so would be deemed to have been negligent. If other construction companies would have done no more – the construction company adjudicated would be held not to have been negligent.

The courts will also consider “industry standards” of reasonable conduct. These are universally accepted safety standards in the road construction industry. Without clear and justifiable explanation for not following these industry standards – the failure to implement and use these safety standards and guidelines, would result in the construction company deemed to have acted negligently in causing the damage!

It would also be important to consider the magnitude and nature of the risks with reference to other claims. If several claims have been instituted by several claimants this could point towards liability. If there are records of warnings about perceived dangers from road users – this could also count against a construction company that is under investigation!

May this provide our road users and construction companies with greater awareness of the standards of reasonable conduct required to avoid negligence! We will discuss a few examples from South African case law to illustrate how these scenarios were adjudicated in South Africa.

Who is the reasonable driver when he drives near potholes?

Who-is-the-reasonable-driverIn our discussions on potholes, road works, liability and car insurance we will often refer to the reasonable man in the test for negligence. We have indicated that we compare the conduct of a person to a certain standard of reasonable conduct to establish whether that person is indeed negligent. If his conduct does not measure up to that standard of reasonableness to be expected from the reasonable man, then such a person would be deemed to have acted negligently!

What does the law say about the reasonable man as a driver?

There is no complete definition offered in our case law – but we do find some interesting and important guidance. We would like to reflect briefly on this information:

In S v Burger the judge[ Holmes AJ] described the reasonable man as follows:

“One does not expect of a diligens paterfamilias [reasonable man] any extremes such as Solomonic wisdom, prophetic foresight, chameleonic caution, headlong haste, nervous timidity, or the trained reflexes of a racing driver. In short , a diligens paterfamilias [reasonable man]treads life’s pathway with moderation and prudent common sense”

Judge Van Den Heever also gave an illustrative description of the reasonable man in the case Herchel v Mrupe where he remarks:

“The concept of the bonus paterfamilias [reasonable man] is not that of a timorous heart always in trepidation lest he or others suffer some injury; on the contrary, he ventures out into the world, engages in affairs and takes reasonable chances. He takes reasonable precautions to protect his person and property and expects others to do likewise”

The Reasonable man when driving near potholes and road construction zones

The above descriptions are nice and informative – but how do we apply them to the driving behaviour to be expected when confronted with road construction and potholes?

When considering vehicle damage suffered as a result of these road conditions we will have to consider possible negligence on the part of the road construction company or municipality – as well as that of the driver.

In the absence of unique and clearly defined road rules for the reasonable driver we would like to use the above guidance to argue and describe the standard of driving behaviour we could expect from the reasonable driver:

The reasonable driver –

- Are aware of the risks on our roads and is not so cautious that he is too afraid to drive on these roads.
- He is alert and will take reasonable precautions to adjust his driving when confronted by road works and potholes.
- He is a licensed driver and has the necessary knowledge of the Rules of the Road and all the road and traffic signs.
- He obeys the Laws and Rules of the Road and the guidance provided by these signs or the guidance from temporary pointsmen directing him to slow down.
- He is a sober and alert driver – able to adjust his driving.
- He will not speed through construction activity and will keep a safe following distance from the vehicle in front.
- He will be alert to the dangers of driver distractions – and will avoid conversations on his mobile – especially when driving in construction zones and on roads with a high presence of potholes.
- Once he has driven on such a dangerous road, he will benefit from the experience – and be extra cautious when driving on this road again.
- He will remember that there are hidden threats and be cautious to avoid driving through big puddles of water -
- He takes reasonable safety precautions, which could include a reduction in speed, increase in following distance, driving with lights on etc.

Expectations of reasonable driving behaviour

It is important to recognize that there are no unfair expectations from the reasonable driver. He does not have to possess the trained reflexes of a racing or rally driver. He is not expected to have a spotless driving record and also makes the occasional mistake. He can also make the wrong decision in a sudden emergency.

When judging his conduct, our courts and insurers will avoid making armchair decisions – and will consider his conduct in the same circumstances and driving conditions at the time of the accident or damage.

They will also take into account the behaviour of other drivers at the time – and if it appears that many other also suffered damage in the construction zone or from the same potholes – it will be indicative that his driving behaviour was indeed reasonable and that no extra caution could have been expected from him in the efforts to avoid the danger.

Conclusion and Advice

The best way to avoid incurring liability or to be deemed to have driven negligently – is to drive with caution. The words that best describe the required conduct can be found in the phrase “prudent commons sense”.

We would like to urge all road users to be alert, vigilant and cautious behind the wheel. Rather be more safe than necessary. The roads are not the place to stand on your rights, to get aggressive and to be full of yourself.

Consider the consequences of accidents – not only financially -but also in terms time, effort and much more important – in terms of life and death!!

Also view:

Car Insurance, road damage, potholes and the law

Negligence, the Reasonable Man and Car Insurance

Negligence, the Reasonable Man and Car Insurance

Negligence-,-The-Reasonable-Man-&-Car-Insurance-LawDamage to our vehicles always coincides with the questions – “Whose faults is it?” Or “Who is to blame?” As we discuss damage from road works, potholes and the impact that this might have on our car insurance, we will most definitely be challenged by questions about fault and negligence.

We will read about the conduct of the reasonable man and discussions as to whether the conduct measured up to that of the reasonable man or not….This is why we would like to pause just for a moment and explain what is meant by references to fault, negligence and the test of the reasonable man.

Fault and Car Insurance
A very important aspect in establishing liability – or holding someone responsible for a specific event occurring or damage suffered, is to determine whether there was fault. There are mainly two types of fault -intention and negligence – and we would like to explain the difference between these types of fault through a few examples.

Intention: Intention is present when something is done “willingly and knowingly”. The perpetrator knows that what he is doing is wrong – and still continue to do so! In Car Insurance we will find this in cases of malicious damage to property and insurance fraud.

Example 1: Malicious damage to property: You and John has a fight and he want to get back at you. He takes a sharp object and scratches your car. We can see that he has the intention to commit the crime of malicious damage to property. He knows what he is doing is wrong – and continues inflicting the damage. We can also reflect on the example of someone placing a large rock in the road to cause damage to a vehicle and rob the occupants.

Example 2: Car Insurance fraud: You are in desperate need of money and decide to claim from your car insurer. You put your own car on fire and claim from the car insurance company. You know that you do not have a valid claim if you are guilty of arson – but you still submit the claim and thereby commit the crime of fraud.

Negligence: In car insurance claims from potholes and road works we will most likely find damage caused by the negligent behaviour of someone else. Negligence can be described as some kind of behaviour or conduct falling short of a particular standard. In our law we use an objective test to ascertain whether someone has acted negligently. This test is called the reasonable man test and the question is whether a person acted differently from what the reasonable person would have done in the specific circumstance.

Example1: Damage to your vehicle: As you drive behind a road works construction truck that is overloaded, small rocks fall from the truck on the road and bounces unto your windscreen. The truck driver or construction company had no intention of causing harm to you or damage to your vehicle. The conduct of the construction company in overloading the truck however fell short of the standard of conduct of a reasonable construction company and as a result is negligent in causing the damage.

Example 2: Unprotected man-hole: Municipal workers attending to road works fail to cover a man- hole on the pavement after the day of work. There do not leave warning signs or a barrier and an unsuspecting pedestrian walking at night fall into the man-hole and suffers injuries. Even though their conduct was not intended to cause harm, their conduct fell short of the standard of reasonableness and they are therefore negligent!

The Test of the Reasonable Man

In our law a person is judged to be negligent where:

- He should reasonably have foreseen the possibility that the occurrence of the consequence or the existence of the circumstance in question; and
- He should reasonably have guarded against that possibility; and
- He failed to take the steps which he should reasonably have taken to guard against this.

When we analyze specific examples of damage that has lead to vehicle damage, we will always refer to and reflect on the above test. This will be applied not only to the conduct of the municipal authority or road construction company, but also to the conduct of the road user/ driver.

It is important to remember that very often there will be negligence on the side of both parties. The court will then have to decide how to apportion this fault.

Example: A local municipality might have created a risk through road works and also have failed to protect this hazard through warnings or barriers. The driver driving into this hazard and suffering damage to his vehicle might however also have driven without his lights on at night time or was driving at an inappropriate speed. In such a circumstance the conduct of both parties would be deemed below the standard of reasonableness – and the court would have to decide how to apportion the blame/ fault /negligence.

Conclusion: We will strive to provide a few examples of how this test of reasonableness has been applied by our courts in deciding on liability for damage from road works, potholes and other road side damage.

Even though you might drive like the reasonable driver and be alert and cautious – You are sharing the road with many unreasonable and uninsured road users. We would like to urge our readers to use this Car Insurance Blog to find the correct car insurance and to protect themselves on the roads in a constant effort to avoid accidents and insurance claims!!

Car Insurance, road damage, potholes and the law

Car Insurance, road damage, potholes and the law
The Arrive Alive website received an interesting email last week from a disgruntled vehicle owner. Attached to the email was an invoice for the repair of damaged rims suffered by the vehicle owner driving near Paulpietersburg. This was made more interesting by the vehicle owner adding her banking details and demanding a deposit of funds for the damage suffered.

The Arrive Alive website and this Car Insurance Blog neither are responsible, nor have the funding to meet these interesting requests, but we can assist vehicle owners with some legal advice and point them in the right direction!

Car Damage and the Law

On the Car insurance Blog we will provide a short series of blogs on the liability for damage caused by road construction, negligence on the part of road authorities, pothole damage etc. As only few of our readers would have had the opportunity to read law, we would like to discuss this topic in a few separate blog posts in a manner that could be easily understood.

We would like to focus on some of the following interesting questions:

• Can I claim for damage caused by road construction?
• Can I claim for damage suffered as a result of unattended potholes?
• Can construction companies evade liability by merely adding warning signs?
• What is contributory negligence and why is this important when suffering damage?
• Why are road authorities sometimes held accountable and other times not?
• Where do we claim and what do we need to know about providing evidence?

How should we interpret the law and decisions on vehicle damage?

There are many aspects of the law that will require our attention. Unfortunately many of these could be quite technical – and we would like to discuss many of the different scenarios in a manner that is both simple, but correct!

This will require easy to understand references to aspects from the law of delict, the law of evidence and many other area of law. As part of the introduction we would like to glance across a few important aspects we should constantly be reminded of:

Decisions on liability are not “Armchair decisions”

It is highly unlikely that one circumstance or event would have the exact same characteristics to that of another. When going through a pot hole this might not only be a different pothole – but the damage might be at another time, driving at a different speed, in different road conditions etc….. and so we can go on….

Many of us who would have learnt too much –or rather too little – from programmes on television or the movies, tend to ask “Are they guilty?” or “ Who is to blame?/ Who is at fault?” etc. The law however is not that simple and does not offer a mere yes or no answer!

In case law we often find the remark from the presiding officer that he needs to guard against an “armchair approach”. The presiding officer/ judge would try to place himself/herself in the exact same circumstance with all the material facts considered before making a decision. It will be important for us as well not to make simplistic deductions from specific examples …but to remain objective and non-emotional when comparing the examples referred to with the damage to our own vehicles.

Evidence, Facts, Proof and Car Insurance

A wise man once remarked “Look after the facts…and the law will look after itself”. It is very important that we recognize the challenges in making a decision on fault or negligence. We need to consider how we will manage to prove that the negligent act [or failure to act] by another resulted in the damage suffered.
The law of evidence guides us to what the burden of proof would be and the importance of providing the necessary evidence to make a decision possible. There will be no finding of negligence and no finding on damages will be made without the necessary testimony by witnesses or provision of material facts. We will consider which evidence should be collected and which photos need to be taken.

Case Law and findings/ judgements made by the courts

In our legal system follow the previous judgements made by our highest courts in coming to a decision. We will make reference to interesting cases before our courts and focus on those important legal principles [ratio decidendi] within judgements providing the reasons why specific decisions were made.

Our objective in discussing the law and car insurance

We will strive to guide our readers to a greater understanding of their rights and the rights of road authorities, road construction companies etc. Through the examples provided our readers should gain a greater understanding on how to protect their interests.

Even though we would like to emphasize the importance of purchasing the correct car insurance product – we also need to be aware of our rights and how the law can protect us!!