That’s the warning from Johannes du Plessis, legal advisor at Risk Benefit Solutions (RBS).
He says that being held responsible for causing a vehicle accident could result in a driver being liable for tens of thousands of Rands in damages, and even more startling is the fact that drivers can be found liable for damages even when they had right of way.
An example of this, he says, is if the driver behind you is unconscious.
“The commonly held belief that a driver who crashes into the back of another vehicle is solely liable for the lead vehicle’s damages, is not entirely true,” says Du Plessis.
“There are a number of instances where the negligent driver can be exempted from liability. One of the most interesting examples is when the negligent driver claims to have been unconscious at the time of the accident.”
In order for a driver to be held liable for his actions, he must have acted voluntarily or negligently, he says. “A driver that is unconscious cannot act voluntarily or negligently, and therefore might not be liable for his conduct.”
Falling asleep at the wheel, fainting or getting a blackout, fit into the definition of unconsciousness, says Du Plessis.
“The responsibility to prove whether the driver really was in such a state, does not rest with the person who caused the accident. Legal precedent dictates that the plaintiff bears the onus to prove a voluntary and negligent act on the part of the defendant.”
Du Plessis says however that negligent drivers should not think that a defense of “I was sleeping” is a surefire way to escape liability.
“Legal precedent where drivers have been found to be not liable for damages as a result of being unconscious does exist, especially if the driver could or should have foreseen that he or she might experience unconsciousness while driving but drives anyway. But there are also other cases where such drivers have been found to be partially responsible for damages. The interesting thing to note here is that in many of the latter cases, the court ruled that the lead driver shared the liability for the accident.”
Du Plessis says that, according to legal precedent, the driver of the leading vehicle could be held responsible for damages in a rear-end collision.
“The leading driver has an obligation to drivers following him by keeping a proper lookout for vehicles behind him. If an accident like a rear-end collision occurs, the leading driver may be required to prove that he made sure the condition of the traffic allowed for his reduction in speed at that moment, that he had selected an opportune time to reduce speed and that he had reduced speed in a reasonable manner that did not unreasonably disturb the flow of traffic behind him.”
Again, he indicates that it can be difficult for the leading driver to definitively prove he was not at least partly responsible.
“To bust another myth, people who think that a driver with right of way cannot be held liable in the case of negligent actions of other drivers, are very much mistaken,” Du Plessis says.
He says that all road users are expected by law to react reasonably and prudently to avoid colliding with other vehicles. “If a negligent driver fails to stop at a red traffic light, other drivers are obliged to avoid colliding with the negligent driver’s vehicle insofar as is reasonably expected, while keeping their own vehicle under control.”
Losing control of one’s own vehicle while trying to avoid a negligent driver, or simply not reacting quickly enough could mean that one can be held liable.
“If a negligent driver collides with you, and you did not fulfil this obligation the court may decide that you have contributed proportionally to the accident. It follows that you may be liable for that proportion (30% for instance) of the total damages from the accident. If the collision causes a pile-up or any collateral damage, you will share the responsibility with the negligent driver to repay a proportion of those damages,” Du Plessis says.
According to the AA between 65% - 70% of the 11.4 million registered vehicles on our roads are uninsured, which means the majority of drivers on the country’s roads are placing themselves at financial risk if they’re involved in an accident.
Motor vehicle claims make up 50% of all insurance claims in SA, says Du Plessis.
One of the reasons that people sometimes use to rationalise why they do not have insurance, is that their cars are not valuable enough to justify the additional costs.
For them Du Plessis has some more bad news: “You may end up paying for the negligent driver’s damages simply because his car is nicer than yours.”
He explains that in the event that the court finds both parties proportionally liable, the owner of the cheapest car often gets the short end of the stick.
“Let’s say that the court finds the negligent driver liable for 70% of your old car’s damages, and you are in turn ordered to pay 30% of the damages to the negligent driver’s new sports car. If your damages equal R50 000, and his damages equal R200 000, it means that you owe the negligent driver R60 000 while he is only expected to pay you R35 000,” Du Plessis says.
Du Plessis says that even drivers who don’t want comprehensive insurance for their own vehicle, should still protect themselves from third-party claims. “Individuals should consult with their insurance brokers to ensure that they are properly covered by the correct insurance policy,” he concludes.