Bizarre accident

[IzZzy]

Of course the employee can fight it. It's his right, but he'll be darn stupid to given the circumstances.
There's nothing to indicate that there was anything wrong with the vehicle. So saying the bakes could not have been serviced is just fishing.

In all likelihood he'll lose and then he'll have to cough up lawyer fees as well. So if he's smart, he won't be a hard-ass about it and pay for his mistake.

I wouldn't be so quick to make knee-jerk judgments when you don't have all the objective facts. By asking for the objective facts, you are not being "darn stupid", nor "hard-ass". He is perfectly entitled to enquire whether the company vehicle was properly serviced and maintained. Surely not being able to stop in time is all the indication you need?

And what about road conditions? How about visibility - was the morning sun in the employees eyes?

Was the OPs brake lights working? Was it on a blind corner?

Your keyboard strokes wash right through these pertinent questions in your rush to presume liability (not guilt), and 100% liability at that.

 

[ToxicBunny]

You should be out at the dam with all this fishing you are doing.

Me doing fishing?

You are the one who is just assuming a boat load... not me.

 

[ponder]

You'll see even arrive alive says "most international count 2". In the study material when you do your learners it says 3. I was too poor to buy mine

Just did a quick google and according to K53,

Light motor vehicles: 2 seconds

Heavy motor vehicles: 3 seconds

Motorcycles: 1 second

 

[KalMaverick]

There has been no indication that the vehicle has been properly and regularly serviced, so you cannot say there is nothing to indicate that there was anything wrong with the vehicle.

This is honestly getting ridiculous.

There is no indication that the vehicle has NOT been properly and regularly serviced, so you cannot say is something to indicate that there was anything wrong with the vehicle.

Let's just be honest here, OP has given his side of the story, has he left out information that could show that the employee is not at fault (ie was he riding the clutch and therefore no brake lights showing)? Very possible.

However taking what he has said into account here the employee is most likely at fault. Should he automatically charge the employee for it because "It's company policy"? No, I don't think saying it's "company policy" allows you to get away with murder.

If the employee really thinks he is not at fault then he should take it further, if not he should save everyone the trouble and pay up. A good boss will make it easier for him, though.

 

[FlashSA]

There has been no indication that the vehicle has been properly and regularly serviced, so you cannot say there is nothing to indicate that there was anything wrong with the vehicle.

Employee's vehicle has 5000km on (still new).

He was heading in a westerly direction on a straight road (sun had just risen behind him in the East). Conditions were clear and road surface dry. I was hard on the brakes otherwise I would have gone into the back of the vehicle in front of me.

 

[IzZzy]

There is no indication that the vehicle has NOT been properly and regularly serviced, so you cannot say is something to indicate that there was anything wrong with the vehicle.

Of course you can. It didn't stop in time. Why should something be patently indictable when the indication could be latent e.g. worn brake pads.

 

[ToxicBunny]

Kal, I Agree with you.

But just pointing out to Brendan_E that you can't just assume things. It doesn't work that way in a case of guilt or liability, without any info you can't make any assumptions in terms of vehicle fitness, road conditions, etc etc etc.. All we know is that a vehicle swerved out of the way at the last minute, and the employee rear ended him, and that the accident is at most a fender bender (given the panel beaters quotes)

I also agree, that the employee should pay has portion of the excess, but charging him for both excesses is not on, and i doubt it would fly in a CCMA case either.

 

[KalMaverick]

Of course you can. It didn't stop in time. Why should something be patently indictable when the indication could be latent e.g. worn brake pads.

I think you missed the point I was trying to make. Read the post again and the post I quoted.

We can imagine a million "what if" scenarios, it's ultimately pointless as we have only the information given by the OP.

But just pointing out to Brendan_E that you can just assume things. It doesn't work that way in a case of guilt or liability, without any info you can't make any assumptions in terms of vehicle fitness, road conditions, etc etc etc.. All we know is that a vehicle swerved out of the way at the last minute, and the employee rear ended him, and that the accident is at most a fender bender (given the panel beaters quotes)

I agree with you on this too.

I also agree, that the employee should pay has portion of the excess, but charging him for both excesses is not on, and i doubt it would fly in a CCMA case either.

Why not though? I might be missing something but how is it any different from any other accident?

B crashes into you. (Let's just assume he was negligent here, I know we can't automatically assume the employee is negligent)
B pays his excess.
You pay your excess.
You/insurer recover excess from B.
B paid two excess amounts.

Why should it be different with the OP's scenario (if we assume that it was the fault of the employee)? I'm not trying to be hardassed, just genuinely curious as to why it should be different.

 

[Brenden_E]

Kal, I Agree with you.

No you don't. LoL.

 

[ToxicBunny]

No you don't. LoL.

Of course I don't. You are right, I apologise for having my own brain and understanding the law somewhat better than you.

 

[IzZzy]

I think you missed the point I was trying to make. Read the post again and the post I quoted.

We can imagine a million "what if" scenarios, it's ultimately pointless as we have only the information given by the OP.

Yes, the point I am making is one cannot presume liability as a matter of fact. I am not dealing with the specific facts of this case.

 

[KalMaverick]

Yes, the point I am making is one cannot presume liability as a matter of fact. I am not dealing with the specific facts of this case.

Great stuff. Don't think I said anything to the contrary though.

 

[IzZzy]

Why not though? I might be missing something but how is it any different from any other accident?

B crashes into you. (Let's just assume he was negligent here, I know we can't automatically assume the employee is negligent)
B pays his excess.
You pay your excess.
You/insurer recover excess from B.
B paid two excess amounts.

Except that excess is something negotiated between you and your insurer, and your insurer doesn't recover excess from the other party, it recovers the amount of damages to your car that you have incurred.

The sole purpose of excess is to set a floor to any claims you may make against an insurer i.e. remove the administrative hassle of dealing with minor claims. The higher the excess, the lesser the premia.

Save for company policy, I do not see any reason in law why the employee would have to pay any excess, let alone both. It is a company expense (as the company is the insured party and the one making the claim).

 

[KalMaverick]

Except that excess is something negotiated between you and your insurer, and your insurer doesn't recover excess from the other party, it recovers the amount of damages to your car that you have incurred.

I may not understand correctly but does the insurer not recover the amount of damages including the excess form the negligent party and then pay the excess over to the insured?

We will also do our best to try and recover your excess from a guilty third party even though there is no legal obligation for us to do so. This is a service Budget offers to customers at no extra charge.

This is from budget insurance. If they bother recovering the excess then the insured is allowed to try and recover it in Small Claims court correct?

In which if the person was negligent would have to pay the amount of excess back right?

 

[ToxicBunny]

I may not understand correctly but does the insurer not recover the amount of damages including the excess form the negligent party and then pay the excess over to the insured?

In its simplest form you are correct. Although I've never been able to recover my excess, ever.

 

[KalMaverick]

In its simplest form you are correct. Although I've never been able to recover my excess, ever.

Went through small claims court?

The fact of the matter is the company is going to incur two excess amounts as a result (let's just assume here) of negligence on part of the employee.

 

[Rocket Raccoon]

So why should the employee have to pay the excess?

 

[IzZzy]

I may not understand correctly but does the insurer not recover the amount of damages including the excess form the negligent party and then pay the excess over to the insured?

In which if the person was negligent would have to pay the amount of excess back right?

I do not, with respect to Budget, agree and this is not the position under SA law as I know it. I pay a higher insurance premia because I chose not to have an excess payable. This is a decision I took and cannot bind people who crash into me. What is the position if I agree an excess of R50 000 in return for low insurance premia - does that mean over and above the damage the other negligent party caused, my insurer or I can recover an additional R50 000? This is absurd.

At best, once the insurer has recovered all of the amount paid out to you under the insurance contract, should it then return your excess to you. I.e. your excess is returned from the amount recovered by the insurer from the negligent party - otherwise the insurer profits twice.

That Budget statement is couched to avoid them returning your excess to you, and appear as if they are doing you a favour. Laughable, really.

I stand to be proven wrong, though. If I am wrong, I am increasing my excess to R50 000 and heaven help the person who crashes into me. Hell, I'll make it R100 000 as long as I have a cash buffer to settle my excess should it arise.

 

[KalMaverick]

So why should the employee have to pay the excess?

Because if he was at fault he caused damage to work property, an excess is the uninsured portion of the loss. A loss the company incurs as a result of the employees action.

For example, go to your workplace and throw the laptop out the window. Tell me if the employer is not going to recover the cost from you.

 

[IzZzy]

The fact of the matter is the company is going to incur two excess amounts as a result (let's just assume here) of negligence on part of the employee.

So what? In return for agreeing to pay an excess, the company's insurable premia is less. You expect the company to benefit twice? That isn't fair.