Can I get the Municipality to Pay for Damage caused by Potholes?
There are not many hazards on the road loathed as much as that of the dreaded pothole. Whether the pothole is small enough to swerve out the way of or big enough to simply shred your tyre no matter what decision you make, undoubtedly potholes are a constant point of contention within all communities in South Africa.
What makes matters worse is when the Municipality finally fixes that pothole the community has been complaining about, but since such complaint, ten new potholes have now formed. Potholes cause major delays in traffic as drivers slow down to try and avoid damaging their cars, some rather unsuccessfully, which inevitably means that some drivers will end up driving over potholes causing extensive and expensive damage to their vehicle.
The question then is can you claim the cost of the repairs to your vehicle from the Municipality or relevant Roads Agency?
Unfortunately, the answer is not so straight forward and can vary depending on the facts of each case. There are numerous considerations to take into account, such as how long the pothole has been present; whether the Municipality is aware of its existence; and whether the driver was aware of the pothole and its exact location.
Municipalities do however have a general legal duty to maintain its roads in a state of good repair and not place the legal burden on to drivers to have to take evasive action to avoid damaging their vehicles. Therefore, if you can show that the Municipality was aware of the pothole, but you were not, then you would be able to claim for the damages to your vehicle and personal body, if applicable.
However, if you were aware of the pothole, drove past (or through) it every day and still drive over it, then there may be an apportionment of damages premised on the principle of contributory negligence. Simply put, if you are aware of the existence of the pothole then you need to take the necessary care to avoid it. If you were speeding for instance, and that is the reason you hit the pothole, the blame may be apportioned between you and the municipality so that you could only be proportionally compensated for part of the cost of repairs.
In the event of a pothole suddenly appearing overnight, due to heavy rains, on an alleged well-maintained road, then the Municipality could also argue that they have fulfilled their legal duty to maintain the road and that they are therefore not liable. The fact is that it is unlikely that a pothole would develop on a road that was properly maintained. If the pothole developed because the road was in a state of disrepair, which is most often the case, then you would be able to claim from the Municipality for any damage to your car. The fact of the matter is if your car is damaged, through no fault of your own, you should claim the damages from the Municipality and not lose your no claim bonus.
By Herztberg Salant Attorneys
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