Negligence and the driver's duty of care

Question: A man ran across the road suddenly in front of my taxi. I am now being sued for damages. Am I liable? Last year, my car was totalled by a truck driver. He collided with my car as I was negotiating a corner and ran over the front of my car nearly killing me and a passenger. The police report found him negligent. My car was licensed and insured but my road licence was not renewed. Are the truck driver and/or his insurance company responsible to replace my car even though I did not have a road licence at the time of the accident?

- codalynwilliams@yahoo.com

HELPLINE: A pedestrian may recover damages for his injury if someone else's negligence caused or contributed to the injury. Negligence is a legal term. It means the failure to do, or not do, something that a reasonable person would, in a similar situation, in order to protect others from foreseeable risks.

The injured person or plaintiff must prove that the person at fault, in this case you or 'the defendant': 1) owed him a legal duty; 2) failed to fulfil that duty through conduct or action or by failure to act; and 3) caused an accident or injury as a result of the breach of duty.

The outcome of your case will depend upon a careful analysis of the facts of the accident, especially as they relate to each of these three things. The pedestrian seems to be saying that your vehicle struck him and that he is holding you responsible for his injuries. You, on the other hand, have not said that he was hit by your vehicle. Was he? Is it is also possible that the pedestrian may also be partly to blame since, according to you, "he ran across the road suddenly"?

The information you provided is very sketchy. For example: When did the accident occur? Was your vehicle insured at that time? Was the incident reported to your insurers? What was the speed of your vehicle? Was there a pedestrian crossing nearby? What was the nature of the third party's injuries? Did your vehicle suffer any damage?

In the event that you bought motor insurance -as is required by law - and, provided that you were not operating the vehicle in breach of the policy, your insurers should assume responsibility for defending the claim that was made against you and for compensating him - assuming that you were at fault.

reasonable care

You could be left 'holding the bag' if, on the other hand, you did not report the accident to your insurers, or if they concluded that you were operating the vehicle in breach of the terms of your policy when the accident occurred.

Recovery in a pedestrian-negligence case involving a motor vehicle will hinge upon the exact duty of care owed by those involved.

Drivers and pedestrians must adhere to the laws of the road and exercise "reasonable care". In many cases, it may seem obvious who was careless or negligent.

Courts look to a number of factors in applying the facts of each case to the elements of a negligence claim. A person who negligently operates a vehicle may be required to pay damages for personal and property damage caused by that negligence.

Here are some of the most common factors that can contribute to driver negligence:

An inattentive or preoccupied driver;

A driver's failure to observe posted speed limits;

A driver's failure to yield the right of way to pedestrians on pedestrian crossings;

Disobeying traffic signs or signals;

Failing to signal while turning;

Disregarding weather or traffic conditions;

Driving under the influence of drugs or alcohol.

Are you legally liable to the pedestrian? I do not have enough information to form an opinion.

The comments I made about negligence and the driver's duty of care can be applied to the other mishap between the truck and your vehicle. The fact that you did not have a valid road licence when the second accident took place is irrelevant.

The accident appears to have been caused by the negligence of the owner/driver of the truck. Those parties and/or their insurers - assuming that coverage was in force at the time of the accident - should compensate you for the damage to your vehicle and for any injuries that you and the passenger suffered as a result of the collision.

This is the best that I can do given the limited information you provided.

Cedric E. Stephens provides independent information and free advice about the management of risks and insurance.aegis@cwjamaica.comSMS/text message to 812-7233