An accident has occurred on our Estate!

(Edited 31 March 2025)

I am a homeowner and a Trustee in a Residential Estate. We needed to replace some roof tiles of the Estate's Community Centre, due to severe leaks. I appointed a roofing contractor who was recommended by many people on Facebook. Unfortunately, one of the contractor's workers fell from the roof and broke his leg.  I called a Health and Safety consultant, who has advised that we, the Trustees, are now accountable for this accident, civilly and criminally, and that for starters I need to pay all the injured party's medical expenses. Surely the contractor should be accountable, as the injured person is an employee of this contractor? 

You - the trustee - are liable

Bewildering as this may seem, you will be held liable. You became the ‘client’ (defined in the Construction Regulations as: “any person for whom construction work is being performed,”) when you appointed the roofing company, and have failed to comply with the Duties of the client (Construction Regulations,  Section 5).
Jacques Maree States: “The trustees have a duty to comply with health and safety requirements and to safeguard themselves and the body corporate against potential claims arising from any injuries or death caused as a result of construction work being performed at the scheme. Failure to comply with the provisions of the Occupational Health and Safety Act and the Construction Regulations may result in personal liability claims, stiff fines being imposed, or even imprisonment.”
 

An extension of this principle makes you liable for the actions of the resident home-owners as well. Even if they act without your knowledge. This is an extremely onerous responsibility on you and affects every trustee. There is relief, however, and it's neither complicated nor unaffordable.

What should I have done?
 
This nightmare could have been avoided, had you ensured your Duties of Client were complied with. SHeFiles can assist you with compliance, starting with a Health and Safety Specification and Baseline Risk Assessment. You need to be fully compliant with all OHS Act (Occupational Health and Safety Act) provisions, and you can not indemnify yourself against liability by having your contractor sign an Indemnity Form (you cannot contract yourself out of the law). To protect yourself against liability for the actions of the residents, you first need to have complied with, inter alia, the OHS Act "Duties of Client" and "Duties of Employer" (yes, you are seen as an employer in certain circumstances). Although this may seem complicated and foreign, its an "easy-when-you-know-how" scenario. Contact admin@shefiles.co.za and sleep easy tonight!

What happens now?
 
In this case, you may be charged with non-compliance and could be expected to fork out for the injured person's hospital bills and more. You may also be prosecuted for each transgression of the regulations, namely not performing a baseline risk assessment [CR 5(a)], not drawing up a Health and Safety Specification [CR 5(b)], not ensuring the contractor has the necessary competencies and resources to carry out the construction work safely [CR 5(h)]. These can carry a maximum penalty of R50,000 or imprisonment per conviction.
 

LEGAL REFERENCES

CR - Construction Regulations, 2014

OHS Act - Occupational Health and Safety Act 85 of 1993

bruce@shefiles.co.za