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LIANILITY OF COMMON LAW WRONGDOER FOR PERSONAL INJURY IN ROAD ACCIDENTS

The Cape High Court has, most recently, handed down a judgment, in which one Humphreys was found guilty of 10 counts of murder. This finding arises out of a most horrific level crossing accident. Humphreys was behind the wheel of his motor vehicle  in August last year when 10 schoolchildren were killed and four were injured. He overtook a queue of cars waiting to cross the railway line in the Cape Town suburb of Blackheath and ignored a lowered boom. The vehicle driven by Humphreys carrying the schoolchildren was hit by an oncoming train.

This finding was handed down simultaneously with the onset of the December annual pilgrimage of motorists to resorts. This is the time when innocent members of the public loose their lives or suffer permanent bodily injuries in road accidents either as drivers, passengers or pedestrians.

The coming into operation of the Road Accident Fund Amendment Act on 1st August 2008, saw the doing away with the common law right of the victim to claim compensation by way of damages for personal injury against the wrongdoer in its entirety. In the case of Law Society of South Africa and Others v Minister for Transport and Another (CCT 38/10) [2010] ZACC 25; 2011 (1) SA 400 (CC) ; 2011 (2) BCLR 150 (CC) (25 November 2010)  the Learned Justices presiding in the Constitutional Court ruled the doing away with this common law right was not ultra vires our Constitution.

It is my respectful view that, having regard to the ever increasing frequency of lawless driving on our public roads where drivers pedestrians and passengers indulge in reckless conduct on our roads either intoxicated or conducting themselves with blatant and reckless disregard for and of the rules of our road, criminal sanctions are not enough to rid our country of this scourge. The imprisonment of an offender or the imposition of criminal sanctions on him, do not cure the permanent injuries of the innocent victims nor do they bring back to lives those whose lives are taken away from them in their prime. Moreover, I venture to suggest, that if those who decide to “drag race” with each other on public roads and in built up areas were to for the rest of their lives pay compensation to the families of the victims they have killed, and to the victims they have maimed, in addition to, and over and above, the criminal sanctions imposed on them, there would over a period of time evolve a less reckless code of conduct on our roads. Added to the above, if the employers of negligent truck drivers bus drivers and drivers of their own vehicles were held vicariously liable for the negligent acts of their employees, a more responsible attitude would evolve both in respect of the roadworthiness of their vehicles, and the qualities of the drivers they employ, are concerned. which ultimately will also result in fewer road accidents and more responsible and mature conduct on our roads.  

In the circumstances I call upon the organised profession to unify and use its considerable influence to bring about legislation giving the Road Accident Fund the right to claim directly from the wrongdoer amounts it is called upon to pay by way of damages in accordance with the present legislation in force. In addition  legislation  should be promulgated to re introduce the provision giving the victims and their families the right victims the right to claim from the wrongdoer damages for loss of life or injury in road accidents in a sum equivalent to that which cannot be recovered from the Road Accident Fund.
Yours faithfully

 

LESLIE KOBRIN
ATTORNEY JOHANNESBURG


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