Disclaimer
The information contained in this article is provided for general educational purposes only and reflects the perspective of an insurance liability investigator and loss adjuster. It is not intended as legal advice and should not be relied upon as such. The Liability Mann and Ken Mann Loss Adjusters are not attorneys and do not provide legal opinions. Where legal advice is required, readers should consult a suitably qualified legal practitioner.
Introduction
When an accident occurs, one of the first questions people often ask is, “Who is liable?”
Whether it involves a fire spreading between neighbouring farms, a customer slipping in a shopping centre, damage caused by a contractor, or livestock escaping onto a public road, determining liability is rarely as simple as identifying who suffered the loss.
As liability investigators and loss adjusters, our role is not to decide legal disputes or determine who wins in court. Instead, our responsibility is to conduct an independent, objective investigation into the circumstances surrounding an incident, gather and preserve evidence, analyse the available facts, and provide insurers with a professional opinion to assist them in making informed decisions.
Understanding the basic principles of the South African law of delict helps explain why some claims succeed while others do not, and why a thorough investigation is essential before any conclusions are reached.
What Is the Law of Delict?
In simple terms, the law of delict is the branch of South African law that deals with civil wrongs. It provides the legal framework for determining whether one person or organisation may be held legally responsible for causing harm to another.
Unlike criminal law, which focuses on offences against the State, delict concerns compensation for harm or loss suffered by another party.
The purpose of a liability investigation is therefore not merely to establish that an unfortunate incident occurred, but to determine whether the legal requirements for liability may be present.
It is important to remember that not every accident results in legal liability. Accidents can occur despite everyone acting reasonably, and unfortunate outcomes do not automatically imply negligence.
The Difference Between an Accident and Liability
One of the most common misconceptions encountered during investigations is the belief that because damage occurred, someone must automatically be legally responsible.
This is not necessarily correct.
Consider the following examples:
- A severe storm causes a healthy tree to fall onto a neighbouring property.
- A driver suffers a sudden, unforeseeable medical emergency and loses control of their vehicle.
- Lightning causes an electrical surge that damages equipment.
Each of these incidents resulted in damage, yet determining liability requires a careful examination of the surrounding circumstances rather than assumptions based solely on the outcome.
Conversely, some incidents that initially appear to be unavoidable may reveal evidence of poor maintenance, ignored hazards, inadequate supervision or failures to take reasonable precautions once investigated.
The facts matter.
Why Insurers Investigate Liability Claims
Insurance policies providing liability cover generally respond when the insured becomes legally liable to compensate another person for damages.
For this reason, insurers need reliable, objective information before determining whether cover may apply and whether liability has been established.
A liability investigation assists insurers by answering questions such as:
- What exactly happened?
- When and where did the incident occur?
- Who was involved?
- What evidence supports each version of events?
- What documents are available?
- Were reasonable precautions taken?
- Is there evidence suggesting negligence?
- What factors contributed to the incident?
- Are there alternative explanations?
- What damages are being claimed?
The investigation provides insurers with factual information upon which legal and policy decisions may later be based.
The Role of a Liability Loss Adjuster
Many people assume a loss adjuster’s role is simply to assess the value of a claim.
While quantum is certainly important, liability investigations often involve far more extensive work.
A typical investigation may include:
- Visiting the incident scene.
- Photographing physical evidence.
- Examining damage patterns.
- Taking measurements.
- Interviewing witnesses.
- Reviewing contracts and agreements.
- Obtaining maintenance records.
- Considering weather information.
- Reviewing applicable legislation and industry standards.
- Consulting technical specialists where necessary.
- Preparing an independent report for the insurer.
Throughout the investigation, our objective is not to prove one party right or wrong, but to establish the facts as accurately and objectively as possible.
Understanding the Building Blocks of Delict
Although legal professionals ultimately determine how the law applies, liability investigations frequently consider the same fundamental questions that arise under the law of delict.
These include:
Was there conduct?
Did someone perform an act, or fail to act where there was a legal duty to do so?
Was the conduct wrongful?
Did the conduct infringe upon a legally recognised interest in circumstances where the law regards it as wrongful?
Was there fault?
Was the person negligent or did they act intentionally?
Did the conduct cause the damage?
Would the damage have occurred regardless of the conduct, or was there a direct connection between the two?
Were damages actually suffered?
Has the claimant experienced a measurable loss recognised by law?
These questions form the framework through which many liability investigations are considered.
Future articles in this series will examine each of these elements in greater detail.
Why Evidence Matters More Than Assumptions
One of the most important principles in liability investigations is that conclusions should never precede the evidence.
At The Liability Mann, our investigations are guided by objective evidence rather than assumptions.
Evidence may include:
- Scene observations.
- Photographs.
- CCTV footage.
- Witness statements.
- Maintenance records.
- Contracts.
- Weather reports.
- Technical expert opinions.
- Inspection reports.
- Physical measurements.
- Applicable legislation and standards.
Each piece of evidence contributes to building an accurate understanding of what occurred.
Agricultural Liability: A Unique Area of Expertise
Agricultural liability investigations often involve circumstances rarely encountered in urban environments.
Examples include:
- Fire spread between neighbouring farms.
- Livestock escaping through damaged fencing.
- Chemical spray drift affecting adjacent crops.
- Irrigation failures causing downstream damage.
- Contractor activities on agricultural properties.
- Falling trees.
- Farm road accidents.
These investigations require not only an understanding of liability principles but also practical knowledge of farming operations, seasonal conditions and rural environments.
Independence Is Essential
Perhaps the most important quality of any liability investigation is independence.
Our responsibility is not to advocate for any party involved in the incident.
Instead, we seek to establish the facts fairly, accurately and objectively, enabling insurers to make informed decisions supported by reliable evidence.
Objectivity benefits everyone involved.
A thorough investigation may identify circumstances supporting liability, but it may equally demonstrate that no legal liability exists.
In either case, the investigation provides clarity where uncertainty previously existed.
Looking Ahead
This article has introduced the purpose of the law of delict and its relevance to insurance liability investigations.
In the next article, we will examine the five essential elements of delict and explain how each one influences the investigation of liability claims from the perspective of a professional loss adjuster.
Understanding these principles provides valuable insight into why liability investigations require far more than simply determining that damage occurred.
They require careful analysis, objective evidence, and a disciplined investigative process.
Key Takeaways
- Not every accident creates legal liability.
- Liability investigations are evidence-driven, not assumption-driven.
- The law of delict provides the framework within which liability is assessed.
- Loss adjusters investigate facts to assist insurers in making informed decisions.
- Independence, objectivity and thorough evidence gathering are essential to every professional liability investigation.
The Liability Mann
Independent. Evidence-Based. Trusted.
Specialists in Insurance Liability & Agricultural Liability Investigations.
