Cape Town - Many road users are still under the mistaken impression that a driver who has right of way cannot be held liable for the negligent actions of other drivers.
This according to Johannes du Plessis, Legal Advisor at RBS (Risk Benefit Solutions Pty Ltd), an authorised financial services provider, who warns that all road users are expected by law to react reasonably and prudently to avoid colliding with another vehicle.
Du Plessis says: "As a result, responsible drivers could find themselves having to pay damages, even in cases where others had caused the collision.
“If, for example, a negligent driver fails to stop at a stop sign or red traffic light and drives into the path of other drivers with right of way, or engages in any other kind of negligent behaviour, other drivers are obliged to avoid colliding with the negligent driver’s vehicle insofar as is reasonably expected, and keep their own vehicle under control."
Still your fault!?
"If a negligent driver collides with you, and you did not fulfil this obligation, you may be held to have contributed proportionally, for example 30%, to the collision and you may therefore be liable for such proportion of the other party’s damages.
He adds: "In these cases, it may even be that you end up having to pay damages to the negligent driver, while the negligent driver owes nothing to you."
Du Plessis states that, according to legal precedent, if the negligent driver’s car is significantly more expensive than the other driver’s, the other driver could stand to be liable for the largest amount of damages.
You are liable
“Let’s say for example, that you now have to pay 30% of the negligent driver’s damages, and his damages equal R100 000, which means that you owe the negligent driver R30 000. The negligent driver, on the other hand, has to pay 70% of your damages, and your damages total R40 000, which means that he owes you R28 000.”
If you subtract the negligent driver’s liability of R28 000 from your liability of R30 000, you remain liable for the difference of R2000.
Du Plessis adds that, according to legal precedent, if an innocent third party is involved in the collision, for example, if you fail to reasonably avoid the collision and the negligent driver pushes your vehicle into an innocent party’s vehicle, that innocent party only needs to prove that you contributed 1% to the collision in order to claim 100% of his or her party’s damages from you.
“If you rent a vehicle from a vehicle rental company, whether or not the contract between yourself and the rental company states that your liability is limited to a certain amount, you remain liable to the third party involved in the collision.
"This is the case because an agreement between yourself and the rental company cannot deprive the third party of his or her rights without the third party agreeing thereto after the occurrence of the collision. If you purchase liability insurance on a vehicle rental contract, the vehicle rental company still has the option whether to claim from the insurance or not, and if they do not, you remain liable to the third party for the whole of his or her damages,” he says.
Adequate vehicle insurance
Du Plessis therefore stresses the importance of adequate and appropriate vehicle insurance. “Some motor vehicle insurance policies are only applicable to liability in respect of certain vehicles owned by the policyholder, and other may be worded as to insure your liability for any vehicle you drive. It is prudent that you consult an insurance broker to obtain the correct motor vehicle insurance policy.”
“In a country where motor claims cover more than 50% of all claims and the vast majority of road users still do not take out vehicle insurance, far too many people are unnecessarily exposed to risk of liability as a result of the negligence of others."