Legal Liability: the line between fairness and true liability for third parties

2011-10-01 14:12
It has no bearing on the case study but our client’s truck was in impeccable condition – both in appearance and roadworthiness.

We have frequently referred to Third Parties, the number of vehicles in South Africa uninsured and the potential liabilities to Third Parties in the Motor Insurance industry.

If you refer to the photos alongside this article, this was a case study claim of ours that I have spoken about extensively. The raw facts are that our client exited a truck area and started to proceed right. Visibility to the right of the intersection was poor. A 3rd party VW Golf came around the corner from the right hand side and collided into the right rear of our client’s truck.

It has no bearing on the case study but our client’s truck was in impeccable condition , both in appearance and roadworthiness.

The 3rd party vehicle was uninsured and the driver of the 3rd party vehicle was not exactly in the prime of physical and youthful health. Also, with no bearing on this case study, there was a “pap sak’ in the car. All I am suggesting is that the 3rd party condition of vehicle and the physical appearance of the occupant appeared to be substantially poorer than our client’s so, as a generalization probability, we “appear to be substantially better off’.

In order to set the tone of the Third Party approach, this was the accusation of liability response we received in respect of the claim.

The driver of the 3rd party VW Golf

The driver of the 3rd party VW Golf

Sent: 23 February 2011 To: **** **** Subject: RE: Insurance Claim – Mr ******

No, the vehicle was not insured. The claim is being made against your client due to him being the cause of the accident.

Very interesting email I’m sure you’ll agree? If you refer to where the car hit the truck, even a casual glance will show that defensive avoidance could have prevented the incident! I think you will agree we are being blamed 100% – not 50%, 60% or 70% for causing this accident.

On the basis of our analysis and investigation, we rejected the Third Party Claim. The third party went to the small Claims court and apparently, as I write this, has won!

Our opinion is that we think this is wrong! I remind you that we are not allowed to defend our client in the Small Claims court as we normally do.
Another loss we recently had was the “classic’ truck turning right or left in a multiple lane intersection and the car adjacent crashing into the trailer/been bumped by the truck etc.

We have just lost a case where we believe , with the support of witnesses – we were not guilty. Obviously those that “count’ disagree! As a point, I once saw an Auto Carriers (AC) driver, to his credit, in a situation where if the car had hit the trailer, I personally would have defended him in court. The AC driver was impeccable.

The car potential third party was totally negligent.

The end reasult of the 3rd party VW Golf involved in the accident

The end reasult of the 3rd party VW Golf involved in the accident

Are truck drivers now perceived to be as “lawless’ as taxi drivers? Have the public tarred and feathered the entire trucking community because of all the “negative press and traffic’ reports?

Certainly, I am the first to admit there are terrible transgressions against Third parties by trucks (drivers) but I think we need some strong case law to set some beacons for Third parties and the truck’s liability , and here I have a request.

Can anybody send me any decent Case Law in this regard? I would really like us to collate some ammunition to address what I see as unfairness in the industry. The Case Law can set the record straight or be utilised to better understand the thoughts of the Courts.

Finally, to the driver and client of our vehicle in the first example above, you might have a claim blemish on our system but I am still proud to have you as a client!


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