I WRITE this piece in memory of the many people who died in various road accidents over the Heroes holiday. I write particularly about a seven-year-old little girl who died on the spot in a head-on collision on August 12, 2017 on the Masvingo Road en route to South Africa on a family holiday.
Rights: MIRIAM TOSE MAJOME
My thoughts go to her family as I still struggle with the haunting memory of her perfect lifeless little body lying as if in a restful sleep in a beautiful new white princess dress that her mother would have bought for her first communion if only the time had come. If only.
The more I think about the scourge of accidents on our roads and the unnecessary loss of life that will not abate I realise that we may have to go through this pain as a nation before we can finally learn that motor vehicles are nothing but killing machines and that we are doing something wrong.
That unless we introspect and each driver makes a personal pledge to change the way they drive we will continue to perish and kill other people in motoring accidents. Last week we looked at the various laid down procedures laid out in the Road Traffic Act Chapter 13:11 Section 70 about the required conduct at an accident scene.
We had a brief discussion regarding to insurance claims and the wisdom of not rushing to admit liability at an accident scene. We discussed the requirement to report all accidents major and minor to the police and the need to comply with the police and to give them accurate and honest information.
This week we will discuss establishment of blame and the implications and process of seeking compensation for losses incurred in accidents.
Establishing blame
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When an accident occurs there is need to establish its cause. Triggers of accidents are many and varied, but ultimately it comes down to the conduct and state of the drivers and what they could have done to avoid or prevent the accident. Road and weather conditions may be poor.
Tyres may burst, animals may just emerge onto the road, brakes may fail, motorists may fall ill or even lose consciousness while driving. Anything at all can happen, some situations are avoidable and some are unavoidable. Whichever way the cause of any accident has to be established to know what happened and apportion liability.
If the drivers are still alive and neither or any of them admits liability the matter will have to go for trial in a criminal court to establish liability in terms of the Road Traffic Act. One of the drivers will have infringed the rules and committed an offence. Driving offences are listed in Part III of the Act.
General offences include licence misdemeanours such as driving without a licence or falsifying information and driving whilst under a prohibition from driving.
More serious offences which contribute to accidents are exceeding speed limits, driving without due care and attention or reasonable consideration for others, negligent or dangerous driving, reckless driving, driving with prohibited concentration of blood, driving while under the influence of alcohol or drugs or both.
Other offences which will not necessarily contribute to an accident, but which impact on the general poor driving culture include forgery of documents, licence plates, licences, unlawful contact with or use of vehicles, throwing of articles at or from vehicles and interference with drivers.
Criminal trials to establish liability for any one of the driving offences which may have led to an accident happen at Magistrates Courts. The prosecutor represents the State because an infringement of any one of the road rules that leads to an accident is a crime against the State.
The driver against whom the fault is alleged and denies the charge has to defend himself. They can be represented by a lawyer or act for themselves. It is the prosecutor’s duty to establish the driver’s fault beyond a reasonable doubt.
This means the driver must be found guilty of reckless driving, driving without due care or speeding or any of the named offenses which directly caused the accident. If there is a death the driver will most likely be found guilty of culpable homicide because of their negligent or reckless driving.
They may not have intended to kill anyone but their actions will have resulted in death and loss of human life. If found guilty the driver is convicted and will have a criminal record. They may be imprisoned or fined or have a community service sentence imposed on them. The fine is paid to the State if the driver is found guilty. Hence, there is need to explore civil remedies for seeking compensation.
Compensation
Accident victims may well choose to sue the alleged perpetrator of the accident that caused loss of life or property and injury. Drivers can be sued in a civil court even if they gave been prosecuted in a criminal court.
A civil court may make its own findings and deal with the matter independently as it deems fit. It may well apportion blame where the criminal court gave an acquittal. The civil court will adjudicate the matter on a balance of probabilities wherein the criminal court would have adjudicated on a strict liability to establish guilt beyond a reasonable doubt.
Victims can pursue claims to compensate them the losses they incurred as a result of the accident. The costs people usually sue and claim for are medical bills, transport costs, vehicle repairs, vehicle hire costs among others. It is very important to keep all receipts in order to prove a claim for compensation.
Other compensation sought can be for the pain, loss, shock and suffering incurred. Victims can also sue for loss of income if the accident prevented them from going to work and earning the anticipated income claimed.
Accidents are very costly in terms of actual money spent in trying to fix things and get life back to normal. There are medical costs incurred apart from the trauma and life shattering changes in the event of a death or a serious injury.
A claim for maintenance for dependants can be made in the case of the accidental death of a bread winner. Where possible and worthwhile costs and losses incurred should be pursued. However loss of life is unquantifiable as life is irreplaceable.
Miriam Tose Majome is a lawyer and a teacher. She can be contacted on [email protected]
