Thu | Sep 29, 2016

Drivers are often 'salt' in single-vehicle accidents

Published:Sunday | February 28, 2010 | 12:00 AM

Cedric Stephens, Contributor
 

Question:
 
On July
12, 2009, I was driving from Kingston to Montego Bay. Five other employees of an NGO and I were travelling. While descending a hill in the pouring rain at about 30 kilometres per hour going towards Rio Bueno, the vehicle skidded while negotiating a corner. It overturned and came to rest in a ditch on the left-hand side of the road. The police theorised that oil and water on the road caused the incident.

All passengers received minor injuries. They were treated at hospital and released. Unluckily for me, the bones in my neck were misaligned. I was admitted to the Kingston Public Hospital. I was unable to work for almost two months. I also had to see a therapist. I couldn't sleep and had constant flashbacks of the accident. Driving, which I enjoyed so much, is now a thing of the past. I am scared to drive. In January 2010, I learnt that I was not entitled to any compensation because I was the driver of the vehicle. It was a 2004 Toyota Hiace 15-seat minibus that was comprehensively insured. I feel cheated. Can you help?

fabulous1974@hotmail.com.

Answer:

It appears to me - a layman - that even though the physical injuries that you suffered as a result of the accident may have healed, your psychological wounds have not mended. Your inability to drive after the mishap could be due to a condition called post-traumatic stress disorder. In all probability, it was triggered by your near-death experience. I suggest that you resume discussions with the therapist to try and resolve that problem. I believe it was caused directly by the event last year.

The advice that your employer's insurer and broker gave you is correct. Motor-insurance policies provide limited protection to the occupants of vehicles who are injured in single-vehicle accidents. Persons must meet three conditions to qualify for coverage. They have to show that their injuries arose because the owner and/or driver of the vehicle owed them a legal duty. Condition number two is that the passenger should demonstrate that the owner and/or driver was in breach of that obligation. The third proviso is to link the injury to the failure of the owner and/or driver to honour his legal duty. If these conditions are not met, injured persons will not be compensated. These terms make it very hard for drivers who sustain physical and psychological injuries in single-vehicle collisions to get compensation from the insurers of the vehicle that they were driving at the time of the accident.

The Motor Vehicles Insurance Act

The law that makes motor insurance compulsory - The Motor Vehicles Insurance (Third-Party Risks) Act - complicates your situation. It says in section (4): "The policy shall not be required to cover:

"(a) Liability in respect of death, arising out of and in the course of his employment, of a person in the employment of a person insured by the policy, or of bodily injury sustained by such person arising out of, and in the course of, his employment ..."

The legislation was intended primarily to protect third parties. So, if a driver was injured as a result of his own carelessness or through no fault of his own - as appears to have happened in your case - he or she is 'salt' in the absence of his or her employer's 21st-century human resource policies and procedures and personal accident insurance (PA).

PA insurance claims are triggered by accidents that cause bodily injury. Injuries are defined to include death, loss of limbs and eyesight. Benefits are tailored to represent X years' earnings or parts thereof. Medical expenses incurred as a result of accidents can be bought as an additional extra. Some employers buy PA insurance to protect persons who travel from time to time - locally or overseas - on company business. This type of coverage does not require injured persons to jump over the same type of legal hurdles that passengers of vehicles have to contend with before they can obtain compensation.

Find out if your employers had PA insurance in force. If that fails, ask them to reimburse your medical expenses, including the cost of therapy (past and future). Chances are, in the absence of insurance coverage, your employers will come to the conclusion that they have a moral obligation to you, given the circumstances of the mishap.

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 Business Editor or contact Mr Stephens directly at aegis@cwjamaica.com. You can also send him a text (SMS) message at 812-7233.