We have encountered numerous incidents whereby a number of persons have been subjected to severe injury whilst engaging the use of stairways without handrails.
R.V. Davidson (unit owner) v Mount Regis Body Corporate
R3.5m for back injuries sustained to a unit owner when he slipped at the top of the exterior concrete stairs which had no handrail and to which it was established; he could have prevented or limited the extent of his fall; and resulting injuries had a handrail been in position.
G.S. van Dijk (visitor) v Fairmont Mews Body Corporate
R12.5m when vacating a unit owner’s townhouse on the 2nd floor lost her stepping and fell down the external twenty two (22) steps which had no handrail; following which event her seven month pregnancy had to be aborted. After surgery Mrs. van Dijk was advised that she would be unable to have children; she had been married for two years.
A.M Scott (visitor) v Seaview Estates Body Corporate
R6.6m when ascending an external staircase to the 2nd floor which had no handrail he slipped on the stairs; and falling backwards rotated sideways onto his knees; decapitating a knee cap.
After extensive surgery it was found that he was unable to participate in any prolonged sporting event and had endured severe pain which prevented him in engaging in his profession as a land surveyor for a period of two (2) years. Mr. Scott was 32 years old at the time of the incident. His sport was golf.
The absence and the necessity of handrails had been brought to the attention of the Trustees and Chairman some time prior to the incident; who had failed to implement the installation of the same.
The Body Corporate subsequently held the Trustees and Chairman in their personal capacity; liable for their negligence and consequently they were required to fund the claim in their personal capacity.
Submission of an Insurance Claim:
In each of the aforementioned incidences the Body Corporate; under the direction of their appointed Trustees; submitted an insurance claim on their Insurers for the costs of litigated compensation and legal preparation.
Insurance policies have a condition precedent to Insurers liability whereupon it is a general condition of the issued policy that the Insured (Body Corporate) comply with the requirements of the National Building Regulation (NBR) requirements which embrace the S.A Bureau of Standards (0400-1990) regulation MM3; copy of which is attached hereto.
In the given cases, none of the Body Corporates had complied with the requirements of the NBR or the requirements of the Sectional Titles Act 95 of 1986 and consequently it was required that each Body Corporate had to raise funds for payment of the respective law suits.
Liability of the Body Corporate:
In terms of the compliance of the NBR requirements of the above and the Sectional Titles Act 95 of 1986 §§ (15B-16) Ownership of Common Property (16)(4) stipulates:
‘any insurance of a section shall be deemed also to insure the undivided share in common property of the owner of the section; even if no express reference is made to such share’
together with
compliance of the Sectional Titles Act 95 of 1986 § 37 Function of Bodies Corporate rule 35 (n) stipulates that the Body Corporate will
‘comply with any law relating to the common property or any improvement of land comprised in the common property.
In breach of the above the Body Corporate in its total capacity as such; becomes liable for the resulting liability in breach of NBR requirements together with the respective prescribed sections of the Sectional Titles Act 95 of 1986 in this regard; as such bears to the pro rata proportion of the percentage quota share of each corresponding unit owner.
Specific liability of the Chairman & Trustees (in office at the time of an incident)
Specific liability will be incurred on behalf of the Chairman and/or Trustees of the Body Corporate in breach of the NBR requirements or the Sectional Titles Act 95 of 1986 compliance with any law relating to common property) in the event of injury to persons in consequence of:
negligence in the absence of the construction of a required handrail where such would be apparent to a
normally observant and intelligent person
persons living or coming upon such property who are elderly or physically handicapped and would be
entitled to the security and assistance afforded by a handrail
the requirement of a hand rail; constructed in terms of SABS (0400-1990) regulation MM3 specification (a
handrail required when six (6) or more steps constitute a stairway)
Liability of a ‘Managing Agent’:
We have on record examples whereupon ‘managing agents’ have been held liable for the consequences of not advising a Body Corporate of the requirements of the NBR board; together with the provisions of the Sectional Titles Act 95 of 1986 (as to the management of common property); being advised that, the word ‘agent’ commonly refers to ‘persons acting in the interests and on behalf of another’ whereupon that other have or should have knowledge of the requirements of the Sectional Titles Act 95 of 1986 as such relates to the management of a complex; unless by mandate the duties of the managing agent have been restricted to specific services only within the understanding of the word ‘agent’.
Liability of a Managing Agent or a Managing Agent working in association with an Insurance Broker or Agent:
In the event of a Managing Agent issuing ‘insurance certificates’ to a Body Corporate or a Managing Agent working in association with an Insurance Broker whereupon ‘certificates of insurance’ are issued to a Body Corporate or to the independent members of the Body Corporate; as opposed to the issuing of a ‘complete insurance policy wording’ then such Managing Agent is deemed to have a ‘more specific knowledge’ of the requirements and exclusions of the issued policy; and as such are obliged to bring to the attention of the Trustees and Members of the Body Corporate the exclusions of the NBR requirements as such apply to the installation of handrails in terms of SABS 0400-1990 regulation MM3 (copy attached)
In the absence of the above requirement the Managing Agent may be held liable by the respective Body Corporate for the legal consequences following upon any incident whereupon an insurance claim is repudiated by Insurers (Underwriters) as a result of the non-compliance of the requirements of SABS 0400-1990 regulation MM3.
Instruction to L&d Contractors:
Managing Agents are giving direct instruction to L&D Contractors (specialists in the field of handrail construction in terms of NBR requirements); instructing L&D Construction to conduct a ‘risk survey’ where it is known that external stair-casing is in excess of six (6) step risers and that a ‘risk survey report’ with photography; be submitted to the Trustees of a complex together with a quotation for the construction of handrails as required within the respective complex.
Compiled by
ROGER BENTLEY
Bentley Associates- Loss adjusters to insurers and Underwriters at Lloyds
In conjunction with Candace Bentley -Valuation and Risk Surveyors 084 512 6222
011 453 4725 Chartwell House, Cedar Lakes, Chartwell.
The services we offer would be to the advantage of the managing agents’ clientele and would exonerate any liability in this regard to which the Managing Agent or Trustees may be exposed.
PLEASE NOTE: The names of all parties concerned have been changed in order to protect their privacy and are thus confidential
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Documentation (i) copy of section MM3 SABS (0400-1990) staircase specification
SABS 0400.1990 MM3 PREVENTION AGAINST FALLING
(a) Any flight of steps which contains more than three risers shall have protection on each side provided by a secure wall, screen, railing or balustrade which shall be not less than 1 m high and so erected that any such wall, screen, railing or balustrade in any occupancy classified E2, E3, H1, H2 or H3 shall not have any opening that permits the passage of a 100 mm diameter ball: Provided that such. protection in any occupancy not being an occupancy classified E2, E3, H1,H2, H3 or H4, shall consist of at least a handrail and one other rail midway between such handrail and the stairtread.
(b) (i) Any flight of steps which contains more than five risers shall be provided with at least one continuous handrail extending the full length of such flight; provided that this requirement shall not apply to any building classified H4, or within individual dwelling units in occupancy classified H3.
(ii) such handrail shall be securely fixed to such wall, screen, railing or balustrade at a height of not less than 850 mm and not more than 1 m measured vertically from the pitch line to the upper surface of the handrail.
(iii) such handrail shall be of such a design and be so fixed that there shall be no obstructions on, above or near to it which may obstruct the movement of any hand moving along it.
(c) (i) Subject to paragraph (b)(i), any flight which is less than 1,1 m wide shall have a handrail on at least one side and where the width of any flight is more than 1,1 m, handrails shall be provided on both side6
of such flight.
(ii) such handrails shall comply with the requirements contained in paragraphs (b)(ii) and (b)(iii).
RE: Bentley & Associates Services:
Valuation and Risk Surveyors Division
Candace Bentley – 011 453 4725 or 084 512 6222
Range of services undertaken:
Handrail Compliance:
We offer a Handrail Inspection Service whereby we confirm via a report (including photographic representation) of handrail compliance / non-compliance supported by a quotation for handrail installation where relevant in respect of the SABS 0400-1990 (MM3 & SABS 1390) National Building Regulations Act.
This service is charged at a fee of R 475-00 per inspection, and is refunded should the contractor (L&D Construction) be awarded the quotation.
Building & Structural Valuations:
We conduct Building & Structural Valuations for sectional title as well as industrial valuations.
We pride ourselves in offering a set competitive rate for this service, R 2250-00 per valuation and a comprehensive and accurate report based on current building replacement costings and values is then submitted to you.
Risk Surveys:
Under the guidance of our senior Loss adjustor we offer Risk Surveys to Bodies Corporate in order to highlight various risk factors commonly found within complex’s/flats, such as incorrect disclaimer notices, fire prevention / hazards, visual liabilities etc.. this service is also offered at a set rate of R2250-00 per risk survey, and the completed report with photographs will be sent to yourselves.