Wed | Jan 16, 2019

Overtaking accident claims not easily resolved

Published:Sunday | June 14, 2015 | 12:00 AM

I am a 29-year-old man who has been driving since I was 24. Quite recently, I had my first motor accident. It took place about 11 p.m. The other driver carelessly overtook my car. The front of my car was damaged from the impact. The other vehicle is company owned. The driver is an employee. How is the claim process likely to unfold? What is the most probable outcome? I took several photographs and videos of the damage to the two vehicles and the scene. How can these be used to prove that the other driver is to blame? During the process of collecting his particulars, he only gave me the certificate of fitness and registration details. He did not produce his driver's licence nor did he request or take any information from me, not even my name.

- NM, Kingston 5


I smell something very fishy about the accident. The other driver may have attempted to stage the collision. His motive? To blame you for what happened - which he did - and then try to collect money from your insurers for alleged soft-tissue injuries and to repair his employer's vehicle.

The plan was thwarted when you started to take photos. Call me a conspiracy theorist, but this is what I believe actually happened, even though you do not share my opinion.

Who is at fault for the accident? A report in last Wednesday's Gleaner said that Parliament started to debate the repeal of "the current 1938 Road Traffic Act" and its replacement by a new law. It also listed offences - old and new - for which fines may be paid to a collector of taxes.

The article focussed on the size of the fines, which is of great interest. An unsuspecting reader, however, is likely to overlook the fact that the number of offences will also be increased. One will be for careless driving where a collision occurs. The amount of the fine will be $25,000.

Careless driving is defined under Section 62 of the new law as driving "without due care and attention or without reasonable consideration for other persons using the road ... whether or not such driving results in a collision with a pedestrian, another vehicle or with property". Improper overtaking which does not result in a collision could in future result in a charge of careless driving.

Overtaking is discussed at length in two local bibles. One is the 45th anniversary edition of Cliff Hylton's The Jamaican Driver's Guide: Road Code Edition. The other is the third edition of The Jamaican Road User's Guide. These books say that the driver of the overtaking vehicle has primary duty to ensure that it is safe to overtake before doing so. Our courts apply similar rules.

According to Cliff Hylton, drivers who overtake should: "First, see that the road ahead is clear for a great distance to permit the car to complete the act of overtaking, and then to draw again to the left side".

The second is even more specific: "Make sure that you have at least a kilometre of unobstructed road ahead". It is evident, based on these general rules, that the other driver was at fault, not you. Your photos and the repair estimate should confirm this.

If I could predict the outcome of your claim, I would not be writing this column. I would be sitting instead under a coconut tree at my favourite beach hangout after having won the Super Lotto. If you are lucky, you and your insurers could fund the cost of repairing your vehicle and recoup those expenses from the insurers of the third party sometime in the future.

The worst case is that the insurers of the third party could, due to ignorance, blame you for the collision and refuse to reimburse the costs that you have incurred. I know of cases like yours, which appear to be fairly simple, that remain unresolved for long periods.

After you have identified the name of the insurers of the third party, share those details with your insurers. Discuss your concerns and explore what actions can be taken to avoid bottlenecks or settlement delays.

Lead the process to repair your car and get reimbursement from the insurers of the third party. Do not expect your insurers or the third-party insurers to do this for you. They have thousands of claims to handle. Yours could easily fall through the cracks.

n Cedric E. Stephens provides independent information and advice about the management of risks and insurance. For free information or counsel, write to: