Car Insurance Law

There are always 3 sides to a story – the one side, the other side and the truth!! How does this impact on my expectations that my car insurance claim will be settled and the damages to my vehicle paid?

There is most often not a simple answer to this question.

We would like to share a request from a visitor to the Car Insurance Blog and the response received from Justice Project South Africa:

“WE WERE INVOLVED IN AN  ACCIDENT. OUR CAR IS NOT INSURED BUT THE PERSON WHO MADE A U-TURN IN FRONT OF US IS. HE SAID WE COULD CLAIM AGAINST HIM AND HE DID ADMIT ON THE ACCIDENT SCENE THAT IT WAS HIS FAULT AND HE DID NOT SEE US. WE SUBMITTED THE CLAIM AND NOW IT WAS DECLINED ( BELOW IS THE REPORT FROM THEM ) WE WOULDN’T BE ABLE TO SPEED AS WE DID STOP AT A RED TRAFFIC LIGHT AND THE ACCIDENT TOOK PLACE APPROX 40 METERS FURTHER – WE ONLY DRIVE A TOYOTA 13HUNDRED AND IT IS NOT A FAST CAR…. WHAT WOULD BE THE NEXT STEP – WE NEED OUR VEHICLE TO BE REPAIRED – WE DID NOT MAKE A U-TURN IN FRONT OF OURSELVES

“- Our client advises that he had indicated his intention to turn right and was stationery waiting for oncoming traffic to clear when the collision occurred

Should your driver have travelled at a reasonable speed he would have fore saw our client’s stationery vehicle and would have been able to brake and avoid the collision altogether.

A reasonable driver, keeping a proper lookout would have seen the stationery vehicle and attempted to avoid the collision, however based on the damages it is clear that your driver proceeded in the same direction and speed, resulting in the collision.”

Michelle

Justice Project South Africa

There are two completely conflicting stories here from what I can see and whilst this is not uncommon in cases where damages are claimed, the stark conflict in this case is remarkable. Let me explain:

Michelle says:

The driver of the other vehicle executed a U-turn which resulted in a collision. She also says that the driver of that vehicle stated that he did not see the other party approaching. This suggests that the other vehicle turned across her path and it was that event that lead to the collision.

The respondent says:

Their client’s vehicle was stationary and waiting for oncoming traffic to clear. They also say that he was indicating his intention to turn right and that Michelle’s vehicle simply drove into him.

My assessment

Without seeing the actual damage that was incurred and/or statements from both parties involved in this collision, it is very difficult to make a definitive assessment of the matter. However one has to bear in mind that there is such a thing as “right of way” and whilst this is not absolute, the simple use of an indicator does not imply that the party executing a manoeuvre has the right to do so without exercising due care. In fact, quite the opposite.

Now, if the damage sustained to the other party’s vehicle was solely to the rear of his vehicle, then it can be reasonably assumed that his vehicle was not crossing the roadway on which oncoming traffic was approaching and that Michelle’s vehicle simply failed to stop and drove into him – from his rear. However, if the damage was sustained to the side of that vehicle and to the front or front side of Michelle’s vehicle then it can reasonably assumed that the other driver did indeed turn across her pathway and this carries with it a number of implications.

It is incumbent on all motorists to drive with due care and attention, and this means that one must constantly be on the lookout for the actions of other road users and try to contemplate any actions that they may take which could present a hazard to themselves and you as a road user. All too few drivers take this into account and that is why we end up with so many crashes which could have been avoided if people were in fact driving as they should – defensively – instead of simply pointing a vehicle in a general direction and stepping on the accelerator. My statement is not meant to excuse the incorrect or delinquent behaviour of those who do not obey traffic laws and end up causing crashes, it is merely to point out that there is more to driving than simply putting fuel into a motor vehicle and steering it off in the direction you want to go.

However, when I see an argument like “should the driver have travelled at a reasonable speed…” coming out of whomever authored that response, it makes me wonder how “reasonable speed” is defined, as it would appear that the author thereof is implying that the speed of the oncoming vehicle was factually established as being unreasonable. The only way that this can be determined would be by either having evidence in the form of speed measurement equipment at the scene having determined that the vehicle was speeding at that time or by a forensic crash investigation revealing that it was unreasonable. I doubt very much whether either of these pieces of evidence are present and therefore find this statement to be accusatory and unfounded.

Just because someone puts their indicator on does not give them the right to simply proceed before it is safe to do so. To the contrary, the National Road Traffic Act makes it an offence to proceed without first checking that it is safe to do so when turning across the face of oncoming traffic – especially when one is proceeding against the flow of traffic.

U-turns are also prohibited at many intersections and where a solid white line exists in the roadway. If this crash occurred where either; road signs or markings were in place then the party who made the U-turn would be in further contravention of the National Road Traffic Act and/or Regulations. If there weren’t any such signs or markings, the requirement for due care and attention still applies and if it is not exercised, it constitutes negligence. This could equally be applied to a driver who drives into another vehicle if reasonable measures on their part were not taken to avoid the collision.

A charge of reckless or negligent driving (section 63 of the National Road Traffic Act) is a very serious matter and carries with it criminal implications. I would say that under the circumstances where this crash occurred, the traffic department or SAPS should have been called to attend the scene due to the apparent violation of traffic law having led to the crash. It is not clear if this was done and it looks like insurance and other details were simply exchanged. I also point out that both drivers were obliged to report this crash to the SAPS within 24 hours thereof and if this was not done by either or both parties then an additional offence has been committed.

The response to Michelle looks like some form of internet-based blog or other forum and I am going to say that this may not be the best place to litigate this matter. I would suggest that Michelle considers contacting a competent legal representative to handle this matter and/or enters into arbitration to get this matter resolved. From what I can determine from the response referred to, she is currently being stonewalled by an insurance company or law firm and they are attempting to use scare tactics to repudiate a claim against their client of what Michelle has said is true. Unfortunately, the conflicting versions of the facts now presents a conflict and the only way to resolve this would be by negotiation, arbitration or litigation or a combination thereof.

Clearly, Michelle feels aggrieved and therefore this matter must be resolved; but it is not going to happen if she tries to do so in the form of a blog or internet forum. I do warn however that this process may not be speedy and therefore would recommend that the two parties sit down and resolve this matter on a face to face basis so that repairs may be affected sooner rather than later.

Best Regards,

Howard Dembovsky

National Chairman – Justice Project South Africa (NPC)