On 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.