A reader says his property was damaged by builders working for a developer on his neighbour’s plot and he wants to know who is liable for the cost to repair the problem.
He contacted the developer, who said it was not his concern and advised him to speak to the builder.
The reader feels the builders work for the developer and the developer is therefore liable for the damage.
See the reader’s question here.
The situation is probably a little more complex than it may appear to the reader.
When appointing a building contractor, it is done on the basis that he will take responsibility for the site.
The builder will carry out his contractual obligations and then return the site to the developer, assuming he has received payment.
The return of the site is an important aspect as a builder will generally have control of a site to such an extent that he has a so-called builder’s lien over the site to secure or ensure payment.
Thus, particularly in construction projects of considerable size, the parties will enter into contract with each other as to their respective rights and obligations.
It is not uncommon for the builder to accept responsibility for damages arising out of, for example, negligent acts.
The builder is often contractually bound to secure adequate insurance cover and even to indemnify the other instructing parties from any claims for damages.
A builder may, however, also stipulate that he is not responsible for damages in certain instances.
Thus, if the builder causes damages to the property while merely carrying out instructions that formed part of an engineering design or plan, the liability could well lie elsewhere.
The reader is not aware of any such conditions, but this matter could be resolved simply by approaching the builder and addressing the damages with him directly.
However, the builder may take a similar approach to the developer and tell the reader that he should seek recourse from the developer or some other third party.
Depending on the factual scenario, liability could be attributed to more than one party.
Should the parties involved not volunteer to repair the damage to the reader’s property, he could consider taking steps against more than one of them.
The Apportionment of Damages Act states that where it is alleged that two or more people are liable in delict to a third person for the same damage, they may be sued in the same action.
The act also states that if the court is satisfied that the wrongdoers have been joined in the action, the damages awarded against them should be proportioned in any way the court deems just, taking into account the degree in which each wrongdoer was at fault.
There is no indication of the nature and extent of the damage caused to the reader’s property.
This may become important should the reader have to consider the lengths to which he is willing to go to enforce any claim he may have for repairs or compensation.
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