During the recent floods experienced in Kwazulu-Natal, the town of Umdloti north of Durban experienced in particular catastrophic damage to residential property. It so happens that there was a large residential estate being developed in the immediate vicinity of where most of the damage occurred. Many residents have directed their anger at this new development as the principal cause of the damage to the town1.
Without suggesting any level of fault, the allegations raise an interesting point- is a contractor that is responsible for and in control of a building site obliged to take steps to guard against damage to property or injury to persons in the general public. If so, to what extent?
Our law provides a general civil remedy in terms of which, when the wrongful, negligent and unlawful conduct of a person causes damage to another, an innocent person may claim compensation as a result of that conduct. No legal relationship is required between the parties for this liability to arise. This, broadly speaking, is the basis for the law of Delict.
Accordingly, the short answer to our question is that a contractor does owe a duty of care to the public in general, which duty arises out of the law of Delict. How this duty is measured and whether the contractor discharges this duty is, ultimately, a question of establishing negligence in the circumstances. Simply put, if a contractor’s conduct causes damage to property or injury to persons and this conduct arose out of his negligence, then the contractor is liable.
The determination of negligence depends on the circumstances in each instance, but there are general principles that can be applied. Essentially, a contractor is required to take all reasonable steps necessary to prevent loss of life or damage to property against any risk that was reasonably foreseeable in the circumstances. In other words:
- to what extent did the contractor know, or ought reasonably to have known, that there was a risk to the public;
- what reasonable steps should the contractor have taken to prevent or mitigate this risk; and
- did the contractor in fact take these steps.
So, what does “reasonable” mean, in this context? The assessment must always be done with consideration of the skill, knowledge and experience that is inherently required of a person in that position. A contractor is assumed to have specific expertise that enable him to assess the consequences and risks inherent to the industry, which competence informs the appropriate standard of care expected of him.
For example, a contractor is not qualified, in general, to design temporary stormwater management plans during construction of a site. However, he would reasonably be expected to know that such interventions are necessary during construction, to satisfy himself that any designs provided are undertaken by an appropriately qualified professional and that these interventions are implemented properly.
An assessment of whether the contractor has a duty of care is established through a two-fold test:
1. What knowledge, skill and experience does the contractor possess; and
2. Given the above, was the risk to the public reasonably foreseeable?
Once the duty of care is established, it follows to determine whether this duty was discharged in the circumstances. It is important to bear in mind that, simply because a potential risk actually happens, does not automatically infer that the contractor was negligent. Ultimately, the inquiry requires a value judgement2
The reasonable steps are ultimately determined by considering the nature of the danger; the context in which the danger may arise; the degree of expertise available to the contractor; and the means available to the contractor to avert the danger3. The greater the risk, the more stringent the precautions and higher the standard of care that should be applied. A contractor working over a busy pedestrian thoroughfare must take more precautions to protect the public than a contractor building a shed on a remote farm.
Andrew Seymour
Andrew Seymour is an admitted practicing attorney as well as a Professionally Registered civil engineer (B.Sc. Civ Eng) and with over 17 years' experience working in the Built-Environment Industry.
This article is intended for information purposes only and should not be taken as formal legal advice.
For more information, contact us on info@seymours.co.za or 074 125 1622 to arrange a consultation.
www.msattorneysinc.co.za
Andrew Seymour °
B. Sc Civ Eng, LLB, Pr. Eng, AAArb Practicing Attorney of the High Court of SA