Road safety legal / litigation issues in South

Africa

Session 7: Slide 1 Copyright © 2016 H J S Lotter. All rights reserved.

Does undertaking an audit actually increase the possibility of litigation?

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No ….. because the audit process by its very nature adds safety to a road project or scheme

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Probability of occurrence

Consequences of occurrence

Frequent Probable Occasional Remote

Catastrophic Very high High High

Critical High High

Marginal High

Negligible

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Audit Team• Team Leader• Other Team

Members

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Assisting Audit Team• Observers• Specialist advisor (if required)

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• Local police• Maintaining authority• Specific road user group expert

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Purpose of Audits:• Minimise risk of accidents

and severity• Ensure schemes operates

as safely as possible• Reduce long term cost of

schemes• Ensure all road users

needs are met • Improve awareness of

safe design practices

Just how likely will you be involved in litigation?

Session 7: Slide 10 Copyright © 2016 H J S Lotter. All rights reserved.

“In a typical 40 year career as a municipal engineer, consultant, civil servant you are likely to be involved in providing evidence for at least one criminal/civil case or inquiry”

(GCA(UK) LTD)

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Role players

Client Project Manager

Audit Team Design Team

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Litigation judgements will basically be based on:• Concept of reasonable care• Compliance with best practice• Consistency of procedures• Experience/training• Documentation

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Ignorance is no excuse!

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Statutory duties of Road Authorities• SANRAL and National Roads Act• Kwazulu Natal Provincial Roads

Act No. 4 of 2001• Draft Western Cape Transport

Infrastructure Bill, 2008

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• National Road Traffic Act (1996)• National Road Traffic Regulations

(1999)

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What is best practice?

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• SANRAL Road Safety Audit Policy, Feb 2016• Road safety audit training through

SARF / University of Stellenbosch• DoT Policy and Road Map

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Potential for litigation for road authority or local authority• No road safety audit was

undertaken• Audit undertaken but no response

from client to report (ignored)• Audit undertaken but problem

and/or recommendations rejected

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• Audit undertaken but problem and/or recommendations rejected without implementing reasonable alternative mitigating measures• Audit undertaken by unsuitably

qualified/incompetent / inexperienced auditors

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Potential for litigation for designer• Design undertaken by unsuitably

qualified/inexperienced designers• Inadequate resources allocated

(including time)• Deviated from standard

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• Not avoided foreseeable risks and addressed the risk adequately in the design• Not given priority to measures to

protect all road users and workers

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Potential for litigation for auditor• Audit undertaken by unsuitably

qualified/inexperienced audit team/members• Inadequate resources allocated

(including time)• Missed identifying

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• Missed identifying any defects that could lead to collisions (high or very high risk issues)

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Reducing the risk of litigation for the road/local authority• Ensure you have an internal audit

policy (or adopted SA RSA Manual)• Ensure audits undertaken where

ever possible

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• Ensure the process for each audit is properly documented (including the exception report)• Ensure audits are undertaken by

suitably qualified and experienced auditors

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Reducing the risk of litigation for the auditor• Ensure the process for each audit

is properly documented• Ensure you keep abreast of latest

road safety developments (CPD)

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When does risk of litigation cease?

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• Long gap between litigation claims and related work• Claim could arises after you leaving

company for which work was undertaken?• Covered as long as company continues

paying its PII premiums• Exception: negligence (third party

litigation)

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• Liable when claim arises after retiring and/or cessation of road safety audit work?• Run-off period (6 years)• Potential for litigation > 6 years• In reality – schemes and/or

conditions change over time

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Questions?

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