By Sanette Viljoen

The short answer to this question is “yes”. In any case where you can prove that your damage was caused by the negligence of another, you are entitled to recovery of the damages. In this case the negligence lies in the fact that the municipality or authority whose responsibility it is to maintain that particular road, has a duty to maintain the road in a manner that will not cause you damage. If they neglect doing it in a way that can be reasonably expected of them and a road user suffer damages, he will have a claim.

Currently there are many such pending claims in South Africa and many cases of success where car owners successfully recovered damages from municipalities and provincial authorities.

It is important to understand that each situation will be judged on its own merits. Several factors are taken into consideration, e.g. how long has the pothole been there? Is there any contributory negligence on the part of the driver? Were there pothole warning signs? How fast was the person driving?

The norm will always be what the reasonable person would have done in the same circumstances. Nowadays there are many signs along the road with a warning that there will be potholes for the next 10 km. In such a case the driver’s own contributory negligence through not being careful will definitely be taken into account.

If a pothole was formed and you can prove that the municipality was aware of it or should reasonably have been aware of it, your claim will succeed because the municipality did not repair the hole within a reasonable time.

Damages included, apart from the general damage to your car, are consequential damage. Consequential damage would for instance occur where you are standing along the road in the middle of the night because of a pothole and are then robbed. The damages because of the robbery is then called consequential damages.

The sad story, however, is that many South Africans bear the burden of the damage themselves. The reason is the tremendous cost, time and trouble of taking on the municipality. Many road users find it simply not worth its while.