You and Your Rights

Although involvement in a motor accident is always a traumatic experience, try to remember that nearly all accidents have legal consequences. For instance, a criminal charge of driving without a licence, drunken driving or culpable homicide may follow. Civil consequences may include claims for damage to property, or for personal injury, and may arise whether there is a criminal charge or not.

The law, furthermore, sets out clearly your duties if you are involved in, or contribute to, an accident on a public road in which any other person is killed or injured or suffers damage in respect of any property or animal. You must:

• Immediately stop your vehicle;

• Ascertain the nature and extent of any injury sustained by any person;

• If a person is injured, render whatever assistance that you are capable of;

• Ascertain the nature and extent of the damage sustained;

• Give your name and address to any person who has reasonable grounds for requiring them, the name and address of the vehicle's owner if it is not your own and the vehicle's registration number. If you do not give this information to the police or traffic officer at the scene of the accident, you must report the collision at a police station or at an authorised office of a traffic officer within 24 hours, with your driving licence. If you could not do so because of your injuries, you must report it as soon as is reasonably practicable. (Where details are recorded at the scene by a police or traffic officer, you should have a valid driving licence in your possession. Failure to produce this licence is an offence.);

• Not take any intoxicating liquor or drug having a narcotic effect unless, in the case of injury or shock, it is administered on the instructions of, or by, a medical practitioner. If you are requested by a police officer to submit yourself for examination by a medical practitioner, you may not take intoxicating liquor or a drug having a narcotic effect before the examination and before you have given the particulars and reported the accident as required in the preceding paragraph.

Stopping after an accident

A driver who fails to stop after an accident when required to do so by law is liable to be prosecuted and, if convicted, fined up to R36000, or sent to prison for up to nine years, or both. If you can prove that you did not stop because you were not aware of the accident, you may avoid prosecution. If not, the courts will presume that you were aware of the accident.

You do not have to stop or report an accident if, for example, you collide with a tree and damage only your own car, and injure nobody or only yourself. If, how-ever, you damage someone else's property - a vehicle, say, or an electric-light standard - you must stop and then report the incident at the nearest police station.

Your first duty after stopping is to 'ascertain the nature and extent of any injury sustained by any person', and to assist as much as possible. If you know nothing about first aid, don't do anything that might aggravate an injury. Rendering assistance includes ensuring that qualified help - such as an ambulance or a rescue unit - is summoned. Unless you yourself are obliged to go for help, you should remain at the scene until a police officer permits you to leave. You can be criminally charged for failing to render assistance.

When two cars are involved in a collision and nobody is injured, the drivers may decide to pay for their own repairs and to forgo a claim against each other. The police need not be called to the scene of such an accident, but it must be reported - by both drivers - at a police station within 24 hours. It is an offence not to report an accident in which another person's property has been damaged, or in which another person is injured, even if neither of the drivers intends taking legal action.

Summoning assistance

The course of action following an accident is dictated by circumstances. While it is important to ensure that other road-users are not endangered, it may be necessary to first staunch bleeding, or to remove someone from a vehicle that is on fire. If possible, a red reflective triangle or a flashing torch should be set up in the road at an appropriate distance behind and in front of the site of the accident - even in daylight - and the hazard warning lights of the vehicles involved should be switched on.

AMBULANCE Call an ambulance if anyone has been injured - or appears to be injured - or if anyone seems to be suffering from shock. The quickest way to call an ambulance is to telephone the South African Police Service or Flying Squad number (tel: 10111) or to ask a passing motorist to do this for you.

POLICE The police do not have to be called to the scene of an accident unless someone has been killed or injured, or if a state vehicle has been involved in the accident. In most accidents, however, it is advisable to have an independent police record of what happened. The police do not have to be present or take measurements and prepare a diagram. Usually, they will do so only if they suspect an offence may have been committed. A civil case for damages against the other driver will be more likely to succeed if it is supported by police records.

CLEARING THE ROAD When the injured have been taken to hospital or have been properly tended to, the drivers - if they have not been injured - can attend to the damaged vehicles. Remember, however, that when someone has been killed or injured in an accident in an urban area it is an offence to remove any of the vehicles involved from the positions in which they came to rest, except in the following circumstances:

• Where removal has been authorised by a traffic or police officer; and

• If the vehicle is causing 'complete obstruction of the roadway of a public road'. Even when a vehicle is causing complete obstruction, it may be moved only sufficiently to allow the traffic to pass, and then only after the person moving it has clearly marked its position on the surface of the road. If a vehicle must be moved before the police arrive, first mark its position with chalk or crayon, indicating the corners of the car and the position of its wheels. Ask the driver or an independent third party to confirm in writing the accuracy of the marks that you have drawn.

If you are the driver of a vehicle involved in an accident, remember that it is in your interest to wait until the police arrive, even if you consider yourself to be in the right. If you leave the scene before the arrival of the police, you may find later that they have been given a one-sided account of what happened by another party. This may show you in an unfavourable light, and the one-sided evidence may be difficult to refute later.

INSURANCE You are not obliged to reveal to anyone the name of your 'comprehensive' insurer, or even whether your vehicle is comprehensively insured or not - although this is usually done when both parties are comprehensively insured for settlement in terms of a knock-for-knock insurance agreement.

Making statements

Generally, the less said at the scene of an accident, the better. A seemingly innocent remark can subsequently be given a sinister twist during cross-examination in court and might even be interpreted later as an admission of liability. Furthermore, the standard motor-insurance policies usually prohibits any 'admission, offer, promise, payment or indemnity' being made by, or on behalf of, the insured motorist. A breach of this term may invalidate the policy. (See insurance claims.)

Never offer money to any person who is injured or who has suffered damage to property. If a motorist, for instance, collides with a cyclist, and pays for the repairs to the bicycle, it could easily be interpreted as an admission of guilt.

The worst time to try to evaluate the situation is probably just after the accident has occurred. Those involved are likely to be in an emotional or shocked state and unsure of the extent of damage or injury. Anyone who admits liability, or even appears to do so, could be taking on an obligation without realising its consequences.

If you have been involved in an accident you are under no obligation to make a statement to the police or to anybody else involved or present at the scene.

This rule applies equally at the scene of the accident and afterwards at the police station. You would be entirely within your rights to refuse to discuss an accident with a police officer.

When another driver is clearly at fault, you may decide to make a statement to the police - to exonerate yourself, perhaps, or to provide evidence on which the police could base a prosecution.

A witness to an accident, who was in no way involved and against whom no charge can possibly be brought, may also make a statement to the police.

If you agree to make a statement to the police, you may write it down yourself, using your own words to give an accurate account of what happened. Avoid vague or ambiguous phrases which can later be misinterpreted or misconstrued. The police might give the impression that the correct procedure is for the police officer to write down a statement at a motorist's dictation. This is not necessarily true, and a statement may sometimes become a summary of how the police, not the motorist, believe the accident occurred.

When the statement has been completed, the police officer will read it aloud, or ask you to read it out yourself. If you find it to be correct, you will be requested to sign it. Don't forget to initial any alterations you may make. Sign the statement only once you have satisfied yourself that it is accurate.

In certain circumstances, police have the authority to arrest a motorist at the scene of an accident - if they believe that he or she is under the influence of alcohol, for instance. (See alcohol and driving.)

Collecting and recording evidence

When deciding on damages or compensation after a road accident, a court or an insurer has to piece together from the evidence a picture of what happened. Witnesses may give conflicting accounts of the accident; there may be facts to be gleaned from skid marks, vehicle damage, glass on the road or similar evidence; and there will probably be a report by the police.

The most important witnesses to a road accident are often the drivers involved. If you have been involved in an accident try to record immediately after the event the salient points on which your claim for compensation or your defence may depend. It makes good sense to carry an insurance claim form with you; this will allow you to complete it on the spot, and record details while there is an opportu-nity to check their accuracy. Information which is additional to the standard requirements - such as statements by the other driver - can be noted separately.

NAMES AND ADDRESSES Note carefully the names and addresses of other people involved in the accident. All drivers concerned must provide this information. Check the registration number given with the number on the registration plates and licence disc.

Write down the registration numbers of cars at the scene of the accident if it seems that their occupants might be useful witnesses. Even if they leave before you have taken their names, or they refuse to give their names, they can be traced through the licensing authorities that issued the registration numbers of their vehicle.

Witnesses may be reluctant to give their names or addresses. However, a police or traffic officer may demand names and addresses of any person who may be able to supply evidence of an offence. Failure to comply with this demand can lead to arrest. A bystander may admit witnessing the accident, yet refuse to co-operate because of the inconvenience of being called to court as a witness. Try to identify the person in some way; a reluctant witness can be served with a subpoena and will then be obliged to give evidence or risk prosecution for contempt of court.

Do not spend time taking detailed statements at this stage. Instead, compile a list of all potential witnesses and decide who are most likely to be useful afterwards. Pedestrians who had a clear view of the road at the time and 'professionals' - bus, taxi or lorry drivers who drive for a living - may be particularly useful.

TRAFFIC Note the flow of the traffic at the time of the accident - whether the road was busy, and whether vehicles were moving fast or slowly.

WEATHER CONDITIONS Record the time of day and whether visibility was good or bad. If the accident occurred at night, note the proximity of street lights and other illumination. Note whether the road was wet or dry and whether it was raining at the time.

VEHICLES Note carefully damage which seems to have been caused by the accident. This may indicate the cause of the accident and can be useful when the cost of repairs is calculated later. Some motorists fraudulently claim that 'old' damage was in fact caused by the accident, in order to have it repaired at another's expense. Record damage which obviously existed before the accident, such as a missing bumper or a rusted dent on a part of the bodywork not affected by the collision.

PHOTOGRAPHS These should be taken as soon as possible after the accident, showing the position in which the vehicles came to rest. Take individual photographs of any features, such as concealed entrances or obscured road signs, which may be relevant, and carefully record the exact position from which each photograph is taken. The person who took the photographs may have to appear in court to give evidence of having taken them. Before engaging a professional photographer, therefore, make sure that he or she is prepared to appear willingly in court. However, it is by no means essential that a professional photographer take the photographs; you yourself, if you are in a fit state, may do so.