In our discussions on potholes, road works, liability and car insurance we will often refer to the reasonable man in the test for negligence. We have indicated that we compare the conduct of a person to a certain standard of reasonable conduct to establish whether that person is indeed negligent. If his conduct does not measure up to that standard of reasonableness to be expected from the reasonable man, then such a person would be deemed to have acted negligently!
What does the law say about the reasonable man as a driver?
There is no complete definition offered in our case law – but we do find some interesting and important guidance. We would like to reflect briefly on this information:
In S v Burger the judge[ Holmes AJ] described the reasonable man as follows:
“One does not expect of a diligens paterfamilias [reasonable man] any extremes such as Solomonic wisdom, prophetic foresight, chameleonic caution, headlong haste, nervous timidity, or the trained reflexes of a racing driver. In short , a diligens paterfamilias [reasonable man]treads life’s pathway with moderation and prudent common sense”
Judge Van Den Heever also gave an illustrative description of the reasonable man in the case Herchel v Mrupe where he remarks:
“The concept of the bonus paterfamilias [reasonable man] is not that of a timorous heart always in trepidation lest he or others suffer some injury; on the contrary, he ventures out into the world, engages in affairs and takes reasonable chances. He takes reasonable precautions to protect his person and property and expects others to do likewise”
The Reasonable man when driving near potholes and road construction zones
The above descriptions are nice and informative – but how do we apply them to the driving behaviour to be expected when confronted with road construction and potholes?
When considering vehicle damage suffered as a result of these road conditions we will have to consider possible negligence on the part of the road construction company or municipality – as well as that of the driver.
In the absence of unique and clearly defined road rules for the reasonable driver we would like to use the above guidance to argue and describe the standard of driving behaviour we could expect from the reasonable driver:
The reasonable driver –
– Are aware of the risks on our roads and is not so cautious that he is too afraid to drive on these roads.
– He is alert and will take reasonable precautions to adjust his driving when confronted by road works and potholes.
– He is a licensed driver and has the necessary knowledge of the Rules of the Road and all the road and traffic signs.
– He obeys the Laws and Rules of the Road and the guidance provided by these signs or the guidance from temporary pointsmen directing him to slow down.
– He is a sober and alert driver – able to adjust his driving.
– He will not speed through construction activity and will keep a safe following distance from the vehicle in front.
– He will be alert to the dangers of driver distractions – and will avoid conversations on his mobile – especially when driving in construction zones and on roads with a high presence of potholes.
– Once he has driven on such a dangerous road, he will benefit from the experience – and be extra cautious when driving on this road again.
– He will remember that there are hidden threats and be cautious to avoid driving through big puddles of water –
– He takes reasonable safety precautions, which could include a reduction in speed, increase in following distance, driving with lights on etc.
Expectations of reasonable driving behaviour
It is important to recognize that there are no unfair expectations from the reasonable driver. He does not have to possess the trained reflexes of a racing or rally driver. He is not expected to have a spotless driving record and also makes the occasional mistake. He can also make the wrong decision in a sudden emergency.
When judging his conduct, our courts and insurers will avoid making armchair decisions – and will consider his conduct in the same circumstances and driving conditions at the time of the accident or damage.
They will also take into account the behaviour of other drivers at the time – and if it appears that many other also suffered damage in the construction zone or from the same potholes – it will be indicative that his driving behaviour was indeed reasonable and that no extra caution could have been expected from him in the efforts to avoid the danger.
Conclusion and Advice
The best way to avoid incurring liability or to be deemed to have driven negligently – is to drive with caution. The words that best describe the required conduct can be found in the phrase “prudent commons sense”.
We would like to urge all road users to be alert, vigilant and cautious behind the wheel. Rather be more safe than necessary. The roads are not the place to stand on your rights, to get aggressive and to be full of yourself.
Consider the consequences of accidents – not only financially -but also in terms time, effort and much more important – in terms of life and death!!