We trust that it will never happen to you, but on the law of averages it cannot be excluded that at some stage or another you may be involved in a motor vehicle accident, in which event you need to know what to do and how to deal with the situation.
You need to take out comprehensive insurance to cover you against damages to your vehicle and most importantly, damage to the other vehicle/s which may be involved in a motor accident with your vehicle, which occur in consequence of your negligence, subject to the customary provisions that an amount of excess must be paid – an amount which constitutes a first contribution towards such damages, which you would have to pay to the panel beaters who would attend to the repair of the damage to your vehicle or in the event of your vehicle being a write off, towards the difference between the pre-accident and the post-accident values of your motor vehicle/s. Insurance cover to enable you to pay for the damage to the other vehicle/s involved in an accident with the vehicle driven by you, caused by your sole or contributory negligence is of extreme importance, as the other vehicle/s may be a vehicle/s of very high value and so the fact that your own vehicle may be of low value is not the consideration that needs to be applied in determining whether you need to have motor vehicle insurance.
It is of extreme importance to note that insurance contracts customarily provides that you may, under no circumstances, admit liability to the driver/s and / or passenger/s in the other motor vehicle/s, as such admission of liability would be a breach of your insurance agreement as it effects the rights of the insurance company to properly argue the true merits of the case.
Note that the law of subrogation applies if your vehicle is insured. This means that the insurance contract provides that your insurance company may institute legal action on your behalf or defend legal action brought by the other party/ies against you in your name (a type of cession). This enables the insurance company to take steps to recover payment for damages caused to your vehicle and / or defend legal proceedings against you for its own financial benefit. This includes that they would, if there is justification for a claim on your behalf, also recover the excess that you paid and to pay over to you such excess when your claim is successful and payment had been received. Remember to follow this up with the insurance company at all times.
It is the practice that most insurance companies have entered into what is termed a “knock for knock agreement”. The effect of this is that if both vehicles had been insured, no action will be instituted to recover damages – in such event your insurance company nevertheless has an obligation to endeavour to recover the excess paid by you if the other driver/s would have been negligent – remind your insurance company of this obligation – quite often such determination is made through a process of informal arbitration.
If you are not insured, then you are entitled to institute action to recover damages from the negligent driver/s and / or owner/s (if vicarious liability applies or if the owner/s is / are liable on the basis of failure to maintain vehicle/s) and must, of course, defend any legal proceedings brought against you if you were not negligent do not try and do this on your own – the law is too complicated for you to be able to deal with – appoint an Attorney.
The determination as to which of the driver/s of motor vehicles involved in an accident is liable, is determined in terms of the law of delict would requires, for the validity of a delictual claim, that there must have been an act (occurrence of accident), unlawfulness, causation between the act and negligence on the one hand and the consequent damages on the other hand and consequent damages. The most pertinent of these elements is the test of negligence, which is the reasonable man test – that negligence is the extent of deviation from the standard of a reasonable driver.
According to law, it is not always one driver who is liable for the totality of the damages sustained in an accident. More than one driver/s may be found to have been negligent to a degree, that degree being the extent to which a driver’s negligence deviated from the conduct of a reasonable driver, which is then apportioned as between the drivers. E.g., when two vehicles are involved, it may be established that negligence to the extent of 70% should be attributed to the one and 30% to the other.
Negligence is often based on e.g. a failure to keep a proper lookout, a failure to apply brakes timeously or at all, entering into the path of travel of another vehicle, a failure to have maintained the motor vehicle – e.g. brake failure which is attributed to failure to maintain and driving in such a manner that does not accommodate any anticipated brake failure, driving at a speed which is too excessive under the circumstances, failing to take avoiding action by e.g. swerving, a failure to keep a safe distance behind a vehicle and generally a failure to avoid a collision when through the exercise of reasonable care and skill, it could and should have been done.
The law acknowledges the concept of a situation in which a driver may be faced with a sudden emergency and takes action which, retrospectively viewed, was wrong, when such action, having regard to the sudden emergency situation, was nevertheless a reasonable step, under the circumstances, to have endeavoured to avoid the collision.
A Court, in determining who the negligent party/ies was / were would, under appropriate circumstances, apply the legal test that “the facts speak for itself”. This means that quite often a motor vehicle accident can be reconstructed to establish as to how it occurred, having regard to the nature and extent of the damages caused to the respective vehicles. As to which of conflicting versions as to how the collision occurred is true, can often thereby be objectively determined. When this is not obvious, the evidence of an expert is often utilized for this purpose.
Note that no driver/s or owner/s of a vehicle/s is / are liable to pay compensation for personal injuries. In the event that you and / your passengers have sustained personal injuries, you need to lodge a claim against the Road Accident Fund to recover damages which include past and future medical expenses, past and future loss of earnings and general damages when the injuries have been quantified by an expert to be serious – that being for pain and suffering, loss of amenities of life and the like.
Once a collision had occurred, you must be careful not to be controlled by the emotion of shock which is inevitable and to keep “a clear head”. This means that you must remind yourself not to admit any liability, though in you opinion you may have been the “guilty party” and then to take the following measures:-
At the scene
1. Often a driver/s drive/s away from the scene to avoid being implicated – remember to take a photograph of the registration number of such vehicle;
2. Call emergency medical services to attend to the treatment of any persons injured;
3. Attend, to the extent that you can and is able to do so, to the treatment of any injuries sustained by any person involved in the accident with whatever means at your disposal. To have an emergency medical kit in your motor vehicle and know how to utilize it, would be very useful for this purpose;
4. Call the SAPS to the scene of the accident;
5. Ascertain whether the other driver/s may have been driving under the influence of liquor – look at observable signs such as speech, gait, redness of eyes, slurred speech and the like and inform the Police of your observations in order that such driver may be taken for a test to determine whether there may be any criminal liability on the part of such other driver/s and of course, such intoxication may also be indirectly relevant to civil negligence determination, but remember that there is also required to be causation between negligence and
damages caused – in other words, even though a driver may have been intoxicated, that does not mean that his / her intoxication caused or contributed to damages caused – only an inference can be drawn under suitable circumstances.
6. Control other traffic on the road by putting out the warning signal which you should always have in your motor vehicle at appropriate places and / or arrange for an unofficial “traffic cop” to control the accident scene traffic;
7. Call breakdown services to remove the vehicles from the road;
8. Take full particulars of the other vehicle/s and its driver/s, namely registration number/s, full name/s of driver/s, ID number/s of driver/s, residential-, postal-, and e-mail address/es and fax numbers and details of insurance company, if applicable;
9. Record the full particulars of the owner/s of the other vehicle/s, obtain information as to whether the driver/s may have driven the vehicle/s under circumstances in which the owner/s thereof would be vicariously liable, such as an employee/s having driven within the course and scope of his / her / their employment with the owner/s. An owner of a vehicle may also be held liable, based on a failure, for example, to have maintained the vehicle properly
10. Look out for any persons who may have witnessed the accident and take the same particulars as you would take of the other driver as above, from those witnesses, to enable you to call them on your behalf as witnesses in the event
of a subsequent trial arising from the accident;
11. Make a note of any communications made to you or to others, by the driver/s and / or passengers in the other vehicle/s, including any admission of liability and record that in writing for evidential purposes at a subsequent trial;
12. Ascertain whether injuries may have been sustained by the driver and / or passengers in the other vehicle – obligation to report accident to the Road
Accident Fund;
13. Take photographs:-
13.1 of the scene of the accident (before the vehicles are removed from
where it landed up) from all directions;
13.2 the damages to each vehicle – a variety at various distances;
13.3 brake marks.
14. Take measurements of observable brake marks and distances from a fixed
point to each respective vehicle;
15. Make a note of weather conditions and the time that the accident occurred;
Thereafter
1. You must remember that you need to report the accident to a Police Station within 24 hours from the date of its occurrence – this is also important as insurance policies invariably require such reporting, failing which your claim may be justifiably rejected. Be very careful to accurately describe the occurrence of the accident when so reporting;
2. Contact your insurance company, if you are insured, to furnish you with the required claim forms and furnish them with any other information which they may require to institute a valid insurance claim and obtain directives from them as to the panel beater that you should obtain quotations from and submit those quotations to the insurance company as soon as possible. Also provide them with the photographs and measurements referred to above. Make sure that the information in the claim form as to how the accident occurred is absolutely accurate and do not speculate on what may have occurred – only provide the facts – it is not your task to determine which driver was the negligent driver;
3. Report the accident to the Road Accident Fund – obtain the necessary claims forms from the RAF as soon as possible after the accident occurred – this is an obligation which you have by law and is information which would be required by the Road Accident Fund to institute and defend legal proceedings in respect of the recovery of the damages flowing from personal injuries consequent to the occurrence of the accident;
In case you may be charged for culpable homicide (negligent driving which caused death) or reckless and / or negligent driving, you need to appoint an Attorney immediately and remember not to make any statement to the Police who is obliged, in terms of Judge’s Rules, to inform you that you are not obliged to make a statement – it is safer not to make a statement – in such event, whatever you say may be taken as evidence against you, being an admissible confession or statement.
No communications or statements that you have made if the Judges’ Rules had not been explained to you or the State did not comply with the legalities for recording a confession / statement, is admissible as evidence against you.
We trust this information will be useful to you. We suggest that you print this article and keep it in your motor vehicle as a reminder of what you need to do when an accident had occurred.
If you require an Attorney in respect of any aspect relating to a motor vehicle accident, you may phone our Paul Robbertse, tel. no. (011) 326-3248 and cell phone number 083-617-1361 to assist.
Disclaimer: This article is for information purpose only and does not constitute legal advice. Call on our attorneys for legal advice, rather than relying on the information herein to make any decisions. The information is relevant to the date of publishing.