Damage to our vehicles always coincides with the questions – “Whose faults is it?” Or “Who is to blame?” As we discuss damage from road works, potholes and the impact that this might have on our car insurance, we will most definitely be challenged by questions about fault and negligence.
We will read about the conduct of the reasonable man and discussions as to whether the conduct measured up to that of the reasonable man or not….This is why we would like to pause just for a moment and explain what is meant by references to fault, negligence and the test of the reasonable man.
Fault and Car Insurance
A very important aspect in establishing liability – or holding someone responsible for a specific event occurring or damage suffered, is to determine whether there was fault. There are mainly two types of fault -intention and negligence – and we would like to explain the difference between these types of fault through a few examples.
Intention: Intention is present when something is done “willingly and knowingly”. The perpetrator knows that what he is doing is wrong – and still continue to do so! In Car Insurance we will find this in cases of malicious damage to property and insurance fraud.
Example 1: Malicious damage to property: You and John has a fight and he want to get back at you. He takes a sharp object and scratches your car. We can see that he has the intention to commit the crime of malicious damage to property. He knows what he is doing is wrong – and continues inflicting the damage. We can also reflect on the example of someone placing a large rock in the road to cause damage to a vehicle and rob the occupants.
Example 2: Car Insurance fraud: You are in desperate need of money and decide to claim from your car insurer. You put your own car on fire and claim from the car insurance company. You know that you do not have a valid claim if you are guilty of arson – but you still submit the claim and thereby commit the crime of fraud.
Negligence: In car insurance claims from potholes and road works we will most likely find damage caused by the negligent behaviour of someone else. Negligence can be described as some kind of behaviour or conduct falling short of a particular standard. In our law we use an objective test to ascertain whether someone has acted negligently. This test is called the reasonable man test and the question is whether a person acted differently from what the reasonable person would have done in the specific circumstance.
Example1: Damage to your vehicle: As you drive behind a road works construction truck that is overloaded, small rocks fall from the truck on the road and bounces unto your windscreen. The truck driver or construction company had no intention of causing harm to you or damage to your vehicle. The conduct of the construction company in overloading the truck however fell short of the standard of conduct of a reasonable construction company and as a result is negligent in causing the damage.
Example 2: Unprotected man-hole: Municipal workers attending to road works fail to cover a man- hole on the pavement after the day of work. There do not leave warning signs or a barrier and an unsuspecting pedestrian walking at night fall into the man-hole and suffers injuries. Even though their conduct was not intended to cause harm, their conduct fell short of the standard of reasonableness and they are therefore negligent!
The Test of the Reasonable Man
In our law a person is judged to be negligent where:
– He should reasonably have foreseen the possibility that the occurrence of the consequence or the existence of the circumstance in question; and
– He should reasonably have guarded against that possibility; and
– He failed to take the steps which he should reasonably have taken to guard against this.
When we analyze specific examples of damage that has lead to vehicle damage, we will always refer to and reflect on the above test. This will be applied not only to the conduct of the municipal authority or road construction company, but also to the conduct of the road user/ driver.
It is important to remember that very often there will be negligence on the side of both parties. The court will then have to decide how to apportion this fault.
Example: A local municipality might have created a risk through road works and also have failed to protect this hazard through warnings or barriers. The driver driving into this hazard and suffering damage to his vehicle might however also have driven without his lights on at night time or was driving at an inappropriate speed. In such a circumstance the conduct of both parties would be deemed below the standard of reasonableness – and the court would have to decide how to apportion the blame/ fault /negligence.
Conclusion: We will strive to provide a few examples of how this test of reasonableness has been applied by our courts in deciding on liability for damage from road works, potholes and other road side damage.
Even though you might drive like the reasonable driver and be alert and cautious – You are sharing the road with many unreasonable and uninsured road users. We would like to urge our readers to use this Car Insurance Blog to find the correct car insurance and to protect themselves on the roads in a constant effort to avoid accidents and insurance claims!!