28 February 2017: With torrential rain in many parts of South Africa having led to numerous flooding events already, property owners need to be aware that they are potentially exposed to additional liability in such cases.
So says Johannes du Plessis, legal advisor at RBS (Risk Benefit Solutions Pty Ltd), adding that property owners are to some extent, held responsible for the flow of stormwater on their properties. “The reasoning is that, because urban tenements have been developed, the flow of water on the property is no longer natural. Therefore, if stormwater runoff from an individual’s property causes damage to a neighbour’s, it can be argued that this was due to negligence,” Du Plessis says.
Du Plessis adds that there have been such cases in South Africa in the past. “Some of the notable cases that are still referenced often include instances where water ran off a roof onto an adjoining property, and where a newly erected boundary wall had disrupted the natural flow of water on a neighbour’s property. In both of these cases, the property owners who had caused the flooding were held responsible for paying the damages that resulted,” he states.
From this, Du Plessis states that it is clear that every owner of an urban tenement has to make sure that the water on his own land is either adequately contained or diverted to the adjoining street. “At the same time, a property owner needs to be sure that he is not obstructing or altering the flow of water from his neighbour’s property.”
Du Plessis stresses that the prejudiced neighbour cannot hold the original developer responsible. “The court specifically places this liability against the property owner,” he says.
“According to the court, if it is impossible to discharge the water onto the adjoining street, the owner is still liable to take reasonable precautions to prevent injury to persons and damage to property on adjoining properties. Therefore, the property owner might still be liable for injury or damages to its neighbours if the property owner did not take reasonable precautions to prevent injury or damage to its neighbours.”
The types of damages recorded in events like these range from damage to structures to loss of assets and even physical injuries in certain cases.
According to Du Plessis insurers also expect homeowners to implement any possible measure for risk mitigation to make sure that water flow on their property is not the cause of damages.
“We generally see a significant spike in flooding claims at this time of year. In the case of flooding related third party claims against a property owner, an insurer might well refuse to pay for damages if it is found that the owner did not make every effort to control the flow of stormwater,” Du Plessis concludes.
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