Answering the Question: Who is to blame for the Crash?

During the development of the Arrive Alive website and Car Insurance Blogs we are often approached by road users with the question – “Who is to blame for the crash/ collision?”

A road safety website provides information not only to encourage and advise on safer driving, but also to assist with information on what to do once an accident/ crash has occurred.

On the Arrive Alive website we find many pages of content which are closely related to this topic. We share advice from experts on car insurance, accident scene safety, collision investigation, information on vehicle telematics in crash analysis etc.

It is important to recognize that a very small number of collisions are investigated & scrutinized in the finest of details. It is only after collisions involving mass casualties [5 fatalities and more] where we find reference to a crash investigation team sent to the scene of the crash and analysis to be performed.

For the average road user this question is usually part of trying to find an answer as to who will have to pay for vehicle damage resulting from such a crash.

Too many South African vehicle owners do not have their vehicles comprehensively insured and are challenged with the hassles of trying to recover the damage to their vehicles from other uninsured drivers themselves!

In this section we would like to take a closer look at the question “Who is to blame for the crash?”

We do this by raising a few questions with our legal colleagues at RoadCover.

Who is to blame for the crash? Would you agree that this a complex question?

This is definitely a complex question with no definitive answer. The answer lies in the facts surrounding how the accident occurred. Every motor vehicle accident has its own unique set of facts and more often than not the drivers of vehicles involved in the accidents have different accounts of what/ who caused the accident.

Therefore one needs to take into account all the versions of the drivers involved and/or witnesses accounts of what or how the accident happened, photographs are very important pieces of evidence.

It is only, once enough information is collected regarding the circumstances of the accident that the determination can be made as to whose fault the accident was.

What do we mean when we talk about “apportionment of “blame” for road crashes?

When one apportions something like blame, what is being done is deciding how much of the blame regarding the cause of the accident each driver deserves or should be given.

Accident cases are often not in black and white and commonly there is more than one person at fault. Determining who is at fault is of extreme importance because by determining fault you are also determining who is liable to pay what percentage of the damages incurred. This is where apportionment of blame comes into play and something called contributory negligence.

With regard to contributory negligence, more than one person can be found to cause a motor vehicle accident. For example one person may be found 80% at fault and the other only 20% depending of the circumstances of the accident.

What are the variables that will determine such apportionment?

One can start by looking at the rules of our roads. Any type of blatant disregard for the rules on our roads will obviously play apart in determining fault.

Reference can also be given to case law (the law as recognised by the outcome of former court cases) in order to measure how blame could be apportioned.

Case law and past precedents provide a good reference to what the outcomes may be in similar scenarios.

However this is to a certain extent based on assumptions and therefore can be uncertain.

Which types of vehicle crashes /incidents would be the biggest apportionment of blame to the other driver and least to you?

The rule of thumb for the average driver is that the driver of the car that rear ends another is always at fault. Meaning that 100% of the blame would then be attributed to the driver who drove into the back of another vehicle. However it must be borne in mind that there are exceptions to this rule.

Another example would be if your car was hit whilst legally parked in a parking lot, it would then be easy to say that you are entirely blameless.

Some examples of how apportionment of blame would differ:

Example 1

If you as a driver of a motor vehicle overtakes a car in front of you and fail to return to your correct lane of travel in time, and as a result collide with another motor vehicle head on, the blame would be placed solely on you as the negligent driver.

Example 2

If a driver A skips a red traffic light at an intersection and as a result collides with driver B who had right of way at that point, then there would most likely be an apportionment of 80% to driver A and 20% to driver B.

This might seem absurd because clearly driver A was at fault when he disobeyed a red traffic light and should rationally receive 100% of the blame, however, one must always keep in mind that every road user has the duty to keep a proper look out when entering into an intersection and therefore some negligence can, and most probably will be attributed to driver B.

If your vehicle is not insured:

What are the options available to you to claim the damage from the other driver?

This is a good example of civil litigation and the law of delict.

If you would like to begin the process of suing the other driver for the costs of repairing your vehicle you will have to follow the rules of civil litigation. In this instance it is probably best that you approach an attorney to assist you with the process.

You would have to provide proof that the accident was not your fault, the accident must have been reported to the police station and you will have to provide at least 2 official quotes from different panel beaters regarding the costs of repair.

Do you need to work through a lawyer to seek redress – and why? Can a claim not be done via a small claims court?

You do not necessarily need to go through a lawyer to claim the damages of your motor vehicle but instead you may try and settle directly with the other driver. If the other driver does have insurance on his/her car and the accident was clearly his/her fault then their insurance should pay for the damages of your motor vehicle.

Alternatively, you may approach the small claims court if the damages to the car are under R 15 000.00 and the matter is relatively uncomplicated.

Does a magistrate have to make a finding on the apportionment or are there other ways to do this?

The only instance where the magistrate will make a finding on the apportionment of the accident is when the matter proceeds all the way to trial. The parties can themselves try and negotiate a settlement privately between themselves.

Would it always be best to contact a lawyer?

It is not always best to contact a lawyer because then the issue of legal fees becomes relevant. Not only do you have to worry about the costs of repairing your vehicle but you also have to consider the costs involved in appointing at attorney to act on your behalf. However if your claim for damages is for a relatively large amount then it would be in your best interest to contact an attorney to assist you with your claim.

If legal action is initiated, whether that be criminal or civil or through an insurer, it may be in your best interest to approach a lawyer.

How long would such a process usually take and which aspects would determine how fast/slow such a claim can be settled?

There are a variety of factors that influence the time it would take to settle a claim of this kind. Some of the factors that need to be considered are:

The cooperation of the other party
The complexity of the matter
The time it takes to set the matter down for trial
The time it takes to gather all the evidence needed

How are the fees of the attorney assisting with such a claim determined?

This differs from attorney to attorney as is usually based on the attorneys own fee structure.

It also depends on where legal action is initiated. Fees in the High Court differ from that in Magistrate Court. The amount claimed also will affect the fee structure.

Would you advise vehicle owners to avoid these hassles by rather getting insurance?

It is definitely in the best interest of all vehicle owners to get comprehensive car insurance to avoid the possibility of incurring extra costs of having to appoint attorneys and the long delays that come standard with the process of civil litigation.

Definition of Comprehensive Car Insurance:

Comprehensive cover

The highest level of car insurance cover, which usually covers you for:

injuries to other people
damage to other people’s property
accidents caused by your passengers or a driver named on your policy
the use of a trailer, while attached to your car
fire damage and/or theft
accidental damage to your own car
medical expenses, up to a stated limit
loss of or damage to personal effects in the car, up to a stated limit

Conclusion:

Unfortunately there will always be driver error, recklessness and lawlessness on our roads. Driving to the best of our ability is the best way to protect ourselves. We can however not always prevent someone from crashing into us and may at some stage suffer vehicle damage. Without car insurance cover we are forced to cover the burden to recover the cost of damage ourselves – a process that could be technical, timeous and an unnecessary hassle!

We would like to advise all vehicle owners to acquire car insurance, thereby rather leaving the question of “Who is to blame for the crash?” to the legal professionals employed by the car insurance companies!

[A word of appreciation to RoadCover and Kandi Rigney, Corne Van De Venter Attorneys]