"In order to ascertain this aspect [of negilgence], what should be kept in mind is that delictual liability consists of two possible elements, namely intention or negligence. Another aspect that has to be considered, is whether there was a delictual action or conduct that may give rise to liability,” says local attorney Louise Dekker. Photo supplied.
Date: 26 November 2020 By: Pétria de Vaal
Serious damage can be caused to a vehicle if you hit a speed hump or pothole while travelling at speed. The Zoutpansberger reported last week about speed bumps without warning signs to alert motorists of their presence. If an investigation finds that the municipality was negligent, you will be compensated.
Two lawyers were consulted (one of whom would like to stay anonymous). What became clear was that, in order to be liable for the damages of another party, a person or institution must be delictually culpable (in other words, be responsible for an act of negligence).
A director of local law firm Kern and Dekker, Louise Dekker, gives some background regarding the law when members of the public suffer damage to their vehicles as a result of negligence. “In order to ascertain this aspect, what should be kept in mind is that delictual liability consists of two possible elements, namely intention or negligence. Another aspect that has to be considered, is whether there was a delictual action or conduct that may give rise to liability,” she says.
Both lawyers agree that determining when an action was performed unlawfully or negligently (commission) is easy, but sometimes the mere absence of performing a certain act (defaulting to do what is expected of you, or omissio) can also result in liability, and this is more difficult to ascertain (action through omittance).
“In our example, the municipality acted by erecting speed humps, but also acted (in this case unlawfully) by neglecting to put up warning signs,” Dekker says.
How do you test for an act of negligence? Everyone is aware of the reasonable man test, i.e. would a normal, average man in the street act in this manner? This measure is also called bonus mores. In other words, will the act be regarded as contra bonus mores or against the reasonable feeling of what is right in the eyes or morality of the community?
A municipality is, however, not a “man” but remains a legal entity. Fact is - the municipality was supposed to foresee that the unmarked speed humps might not be visible to road users.
Dekker emphasises the fact that another concept, namely “contributory negligence”, exists and illustrates this by means of an example: The driver of a vehicle has a legal obligation to drive in such a manner and at such a speed that a dangerous situation can be prevented. “If a driver hits a speed hump at, say, 120 km per hour, a court will have to determine to what extent (percentage) his own act of speeding contributed to the negligence (and the resulting damage). The claim will be reduced by the percentage of negligence of the driver (in this case also the owner of the vehicle),” she says.
“Damages should be claimed by the person suffering damages to the car,” Dekker continues. “If I borrow my brother’s car, then he has to claim. If the car is still the property of the bank, then one should determine who suffers the financial loss. This is usually the person to whom the loan [to buy the car] was granted.”
Dekker also adds that the next element that must be calculated, is whether a certain act or absence of an act gave rise to a person’s damages. In other words, a LINK or CAUSE between the action (or absence of action) and the damages suffered must be established. “An example here is: Should I drive over a speed hump without warning signs, and my car suffers an oil leak – without my being aware of it - and I continue driving. Eventually this results in a damaged engine. One would then ask: What is the causal link between the municipality’s negligence and the damage to my engine?
“Where motorists suffer damage to their vehicles, each case will be judged according to merit, as the facts for each incident will be different. The best is to obtain legal advice,” Dekker says. She continues by mentioning that the procedure to sue a municipality differs somewhat from the normal procedure that we are used to [in a civil suit]. You will have to inform the municipality of your intention to sue at least 30 days beforehand. The applicant must make his intention clear, in writing – stating what had happened, the damages suffered and why the municipality is being held responsible.
After the notice period has lapsed, the procedure will be the same as in any other claim for damages. Summons will be issued in terms of the applicable Act. The Act also sets out which format the summons should consist of. In the particulars of the claim, the above-mentioned elements will be set out and do not have to be proven at this stage. It provides for the explanation in paragraph format who the parties are and what happened.
Both lawyers clearly state that for claims of less than R200 000, the action must be brought to be heard in the [local] Magistrate’s Court. Claims bigger that R200 000 but smaller than R400 000 can be heard in the Regional Court or High Court, but for all claims bigger than R400 000, only the High Court (or Supreme Court as previously known) will have jurisdiction.
Any claim smaller than R20 000 can be heard in the Small Claims Court, which will be a much more informal, cheaper, and simpler procedure, and you can appear in your personal capacity as plaintiff.
The parties can now either agree to a settlement amount, or the municipality can choose to defend the matter. The municipality has a certain number of days to respond if they are going to defend. Normally, the municipality will hand the matter over to their insurers, who will either settle the claim or defend it on its behalf. If defended, a period will follow wherein a series of deliveries of formal documentation explaining every party’s situation will start. This will be in the form of requests and replies.
The applicant can then request a court date.
A pre-trial meeting will be held by the parties and their legal representatives. This is a compulsory step in all court matters. The reason for this is to minimise and simplify the matter when it is eventually heard, because some of the [technical] issues will already be cleared up and this can save a tremendous amount of time for everybody involved. At the hearing, the applicant will prove his case and the municipality’s witnesses will answer, after which the magistrate will give judgement.
The matter can also be kept out of court entirely, if a settlement can be reached before the matter is called. “If you have insurance to cover this kind of occurrence, it can simplify matters for everybody. Simply lodge your claim with your insurance company, and then the battle will be fought between the insurance companies of both parties. This procedure usually also results in a settlement agreement of some sort. The municipality is most likely to have its own insurance to cover claims of this kind,” concludes Dekker.
Mr George Raleshuku, Manager: Civil Engineering at the Makhado Municipality, recommended that when a motorist incurs damage to his vehicle, the following things have to be done: “Take photos of any damage while the car is still at the speed bump or pothole. Get a quotation and put in a claim at the traffic offices of the municipality,” he told the Zoutpansberger last week.
Most importantly, says Dekker, claims should be lodged within six months after an incident. "A person can, however, ask for condonation after this period, with an explanation why the claim has been lodged late," says Dekker.