I was trying to avoid a manhole in the street within the complex where I am staying and i hit the wall of one of the houses and badly damaged my car, can i sue the body coporate
Province: North West
i have reported the accident to the police,
Welcome, and thank you for your question.In order to enable me to assist, kindly provide further information on the following:1. Was the manhole cover removed? 2. If so, were there any temporary signs or markings to indicate the fact that work is being conducted, etc?3. How fast were you driving?4. Was the wall that you hit damaged?Yours faithfully,
1. No, the cover partly fell in the hole
2. There were no signs
3. I am not sure, but i believe the speed was 30-40 and I lost control whine i was trying to avoid the first house before i turn to the one i hit
4. Yes, badly so
From your description above, it seems that it is not necessarily a case of negligence where the body corporate was conducting maintenance work and failed to secure the area, but rather that the manhole cover was damaged or became faulty or misplaced by other means than the direct actions of the body corporate or its employees.If this is the case, the question of the body corporate's liability will have to be determined in terms of the body corporate's duty to maintain the common property (similar to a supermarket's duty to keep its floors clean and free from slippery objects or fluids). This duty is not absolute and its extent must be determined based on reasonableness. To determine whether or not the body corporate will be liable for your damage, on will have to look at the circumstances. If, for example, the manhole cover was dislodged during the course of the previous night and you had your accident early the next morning, it cannot be said that the body corporate was negligent. However, if the manhole cover has been faulty for some time or the body corporate knew about the problem and failed to do anything about it, it could be argued that the body corporate failed in its duty to maintain the common property.In circumstances where the body corporate negligently failed in its duty to maintain the manhole cover, or at least put up warning signs until it is repaired, you would have a claim against the body corporate for the damage to your vehicle. So would the owner of the property that was damaged.However, in certain circumstances, if it is found that had contributory negligence (for example driving in excess of the speed limit within the complex or a reasonable speed under the circumstances), a court, if the matter goes that far, may order that the damages be apportioned based on the degree of negligence of each party.I trust you find the above in order.Yours faithfully,
B.Comm; LL.B; LL.M.
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