Road safety legal/litigation issues in South Africa
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Delivered during the 2016 Southern African Transport Conference (SATC), held in Pretoria, South Africa.
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Road safety legal/litigation issues in South Africa
- 1. Road safety legal / litigation issues in South Africa Session 7: Slide 1 Copyright © 2016 H J S Lotter. All rights reserved.
- 2. Does undertaking an audit actually increase the possibility of litigation? Session 7: Slide 2 Copyright © 2016 H J S Lotter. All rights reserved.
- 3. No ….. because the audit process by its very nature adds safety to a road project or scheme Session 7: Slide 3 Copyright © 2016 H J S Lotter. All rights reserved.
- 4. Probability of occurrenceConsequencesofoccurrence Frequent Probable Occasional Remote Catastrophic Very high High High Critical High High Marginal High Negligible Session 7: Slide 4 Copyright © 2016 H J S Lotter. All rights reserved.
- 5. Session 7: Slide 5 Copyright © 2016 H J S Lotter. All rights reserved.
- 6. Audit Team • Team Leader • Other Team Members Session 2: Slide 6Copyright © 2015 H J S Lotter. All rights reserved.
- 7. Assisting Audit Team • Observers • Specialist advisor (if required) Session 2: Slide 7Copyright © 2015 H J S Lotter. All rights reserved.
- 8. • Local police • Maintaining authority • Specific road user group expert Session 2: Slide 8Copyright © 2015 H J S Lotter. All rights reserved.
- 9. 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
- 10. Just how likely will you be involved in litigation? Session 7: Slide 10 Copyright © 2016 H J S Lotter. All rights reserved.
- 11. “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)
- 12. Session 7: Slide 12 Copyright © 2016 H J S Lotter. All rights reserved.
- 13. Role players Client Project Manager Audit Team Design Team Session 4: Slide 13 Copyright © 2016 H J S Lotter. All rights reserved.
- 14. Litigation judgements will basically be based on: • Concept of reasonable care • Compliance with best practice • Consistency of procedures • Experience/training • Documentation Session 7: Slide 14 Copyright © 2016 H J S Lotter. All rights reserved.
- 15. Ignorance is no excuse! Session 7: Slide 15
- 16. 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 Session 7: Slide 16 Copyright © 2016 H J S Lotter. All rights reserved.
- 17. • National Road Traffic Act (1996) • National Road Traffic Regulations (1999) Session 7: Slide 17 Copyright © 2016 H J S Lotter. All rights reserved.
- 18. What is best practice? Session 7: Slide 18 Copyright © 2016 H J S Lotter. All rights reserved.
- 19. • SANRAL Road Safety Audit Policy, Feb 2016 • Road safety audit training through SARF / University of Stellenbosch • DoT Policy and Road Map Session 7: Slide 19 Copyright © 2016 H J S Lotter. All rights reserved.
- 20. 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 Session 7: Slide 20 Copyright © 2016 H J S Lotter. All rights reserved.
- 21. • Audit undertaken but problem and/or recommendations rejected without implementing reasonable alternative mitigating measures • Audit undertaken by unsuitably qualified/incompetent / inexperienced auditors Session 7: Slide 21 Copyright © 2016 H J S Lotter. All rights reserved.
- 22. Potential for litigation for designer • Design undertaken by unsuitably qualified/inexperienced designers • Inadequate resources allocated (including time) • Deviated from standard Session 7: Slide 22 Copyright © 2016 H J S Lotter. All rights reserved.
- 23. • Not avoided foreseeable risks and addressed the risk adequately in the design • Not given priority to measures to protect all road users and workers Session 7: Slide 23 Copyright © 2016 H J S Lotter. All rights reserved.
- 24. Potential for litigation for auditor • Audit undertaken by unsuitably qualified/inexperienced audit team/members • Inadequate resources allocated (including time) • Missed identifying Session 7: Slide 24 Copyright © 2016 H J S Lotter. All rights reserved.
- 25. • Missed identifying any defects that could lead to collisions (high or very high risk issues) Session 7: Slide 25 Copyright © 2016 H J S Lotter. All rights reserved.
- 26. 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 Session 7: Slide 26 Copyright © 2016 H J S Lotter. All rights reserved.
- 27. Session 7: Slide 27 Copyright © 2016 H J S Lotter. All rights reserved.
- 28. • Ensure the process for each audit is properly documented (including the exception report) • Ensure audits are undertaken by suitably qualified and experienced auditors Session 7: Slide 28 Copyright © 2016 H J S Lotter. All rights reserved.
- 29. 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) Session 7: Slide 29 Copyright © 2016 H J S Lotter. All rights reserved.
- 30. When does risk of litigation cease? Session 7: Slide 30 Copyright © 2016 H J S Lotter. All rights reserved.
- 31. • 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) Session 7: Slide 31 Copyright © 2016 H J S Lotter. All rights reserved.
- 32. • 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 Session 7: Slide 32 Copyright © 2016 H J S Lotter. All rights reserved.
- 33. Questions? Session 7: Slide 33 Copyright © 2016 H J S Lotter. All rights reserved.
Editor's Notes
- Note that this session is NOT meant to be legal advise!
- We said that audits are a proactive measure to reduce accidents (accident prevention). The fact that we use two people in an audit team is a further safety mechanism.
- The whole aim of audits are not only to detect any defects likely to result in a crash, but in particular we are focusing in reducing very high and high risk issues/problems on the network (reducing the severity of accidents when they occur, not necessarily the numbers of accidents)
- We are helping the road authority to reduce risk down to a tolerable region (medium risk on our matrix)
- Best practice recommends having a two-man team: A Team Leader and another Member - allows discussion to take place of the problems and recommendations and maximises the potential to identify problems.
- The Observers can join the Team to gain experience in carrying out Road Safety Audits. It is recommended that the number of observers be limited to not more than two (otherwise could be a distraction). Note they are generally not regarded as part of the actual Audit Team. Specialist advisors are invited to advise the team to consider particular complex features of a project, for example signals.
- A representative from the local police who is experienced in road safety and familiar with the area under review – they may be able to reveal operational safety issues being experienced at the site that are not necessarily apparent from the information provided to the auditors (for example, location of strong pedestrian desire lines across a route, or excessive demand for parking at certain times of the day that may adversely impact on safe turning manoeuvres into side roads). A representative from the maintaining authority who is familiar with traffic control devices – they may be aware of maintenance issues that restrict/prevent the implementation of safety measures the auditors may wish to recommend (for example the need to retain access for service vehicles within an intersection). Alternatively, the representative may need to be made aware of any issue that needs continued attention to prevent it becoming a safety issue (for example, vegetation close to or within the visibility splay of an access). An expert with experience of specific road user groups (for example, a representative from a local disability group to assess the suitability of facilities, such as adequate provision and location of dropped kerbs and ramps at an intersection).
- The three main role players in road safety audits are the Client, Auditor Team (represented by audit team leader) and Design Team (represented by design team leader). The Client is normally represented by a project manager that intervenes on his behalf. All three of these role players run the risk of litigation!
- Unless you have your own internal RSA procedures (for example SANRAL), you will be expected to follow the SA RSA manual, even if this is not statutory.
- Unless you have your own internal RSA procedures (for example SANRAL), you will be expected to follow the SA RSA manual, even if this is not statutory.
- NOTE – we are not looking at the client’s responsibility towards the designer/contractor or the designers/contractor’s responsibility Either with OR without procedures being in place (if common practice would suggest that others would have conducted audits under similar circumstances) No response, i.e. nothing on record to explain why whole report or individual recommendations were not implemented in design or construction
- We saw earlier that there were quite reasonable reasons for rejections problems and recommendations We will discuss the issue of competency later
- Internal audit policy should be cleared by legal department If funding is constrained – then audits should be undertaken on prioritised basis (according to internal policy or where there is non then best practice)
- If funding is constrained – then audits should be undertaken on prioritised basis (according to internal policy or where there is non then best practice)
- Ensures records are kept of decisions and reasoning!!! Client needs to decide for how long the records will be kept (for example 6 years)
- Keep notes of debate/discussion/deliberation, ESPECIALLY of those issues excluded from the audit report findings (problems)
- Keep notes of debate/discussion/deliberation, ESPECIALLY of those issues excluded from the audit report findings (problems)
- Keep notes of debate/discussion/deliberation, ESPECIALLY of those issues excluded from the audit report findings (problems)
- Keep notes of debate/discussion/deliberation, ESPECIALLY of those issues excluded from the audit report findings (problems)