QUESTION:
I WAS in an accident in June of this year. The other party was at fault. He lost control of his vehicle after hitting a pothole and struck the rear left fender of my car. The driver was not able to show me any papers for either the car or himself. I convinced him to go to the police station with me, but before reaching the station he said that he had no insurance. I made my report to the police. Because he didn't have any of the documents the officer gave him time to present them.
The driver told the officer that he was at fault and he would stand all damages to my car. I also made a report to my insurers, ICWI. I told the driver of the car the estimated cost of the repairs. It's now October and still no funds are forthcoming. It is very difficult to contact him and when I do, he has tons of excuses. What are my chances in court? My insurers say that this is my only course of action.
- D.S., Clarendon.
Answer: Even though you were the victim I have no evidence that the other party caused the accident. The facts are that his uninsured vehicle struck yours, he admitted fault and promised to fund the repair of your car do not necessarily make him legally responsible. Court action offers no guarantee that you will get money to fix it.
Road mishaps involving potholes are very difficult to resolve. Interests other than the drivers are also included. In the case of the urban areas of Kingston and St. Andrew, this can include the KSAC and the National Works Agency. In your parish it could be the local council or the NWA. According to the MP for my area, there are often disputes between the two bodies about which one is actually responsible for doing road repairs. All roads are not created equal. Money is made available to fix 'main' roads but 'residential' roads get no attention.
Another hurdle is that evidence is hard to come by in these types of accidents. Legal sources say that in order to prove a claim against the authorities, the following information will have to be obtained: how long the pothole existed; was it reported to the authorities; did one or both drivers know about the existence of the road defect; was it bad enough to be considered a road hazard; what was the size of the pothole. In order to prove that the other driver was to blame, it is necessary to show that he (or she) knew that the particular hazard existed before the collision and failed to exercise sufficient care.
SELF-INSURED ROAD REPAIR LIABILITIES
All the authorities I have named self-insure their road repair liabilities. This means that in the event that they fail to carry out their road repair/ maintenance duties and this causes an accident, they compensate victims out of their budgets. How much time passes between the date of the accident and when the claim gets paid is anybody's guess. Given the present state of our roads - which suffered severe damage during the past few weeks - it is most unlikely that either your council or the NWA will pay you one dollar, even if you successfully proved that they were the main cause of the collision in which your car was damaged.
Since the other driver was uninsured, I suspect that you will get absolutely nowhere if you were to prove in court that the other driver caused the collision. He appears to fit the description of what lawyers call "a man of straw." This means that he does not have the financial resources to pay any claims which a court may order him to make. In other words, you may win your case in court but end up having to find funds to fix your car and to pay your lawyer as well.
My advice: Try to find the money to fix your car. Forget the courthouse and the promises of the liar and lawbreaker who was driving the other car. Of course, you are under no duty to believe my opinion. In that case, put the question to an attorney.
Cedric E. Stephens provides independent information and advice about the management of risks and insurance. If you need free information or counsel to help you solve a problem write to The Financial Editor or contact Mr. Stephens directly at aegis@cwjamaica.com.
