Dispute Resolution Law: “Accident” Does Not Mean No One Is to Blame

Duties of a reasonable driver:

Among the duties of a motorist are: to keep a proper look-out, drive at a reasonable speed, observe the rule of the road (keep to the left), allow for lateral movement, follow another vehicle at a safe distance and maintain his vehicle in a roadworthy condition.[1] These duties may seem obvious to the reader, but the high amount of accidents on the South African roads are an indication that a lot of motorists don’t go to the trouble of adhering to the most basic requirements a motorist is expected to follow.

The rule of the road:

Because the observance of the rule of the road – which requires traffic to keep to the left of the centre of the road – is of such importance, a motorist keeping to his side of the road is entitled to assume that approaching traffic will do likewise. Even when an approaching vehicle is on its incorrect side of the road, a driver on his correct side should assume that the former will return timeously to its correct side of the road. A driver who becomes aware of a dangerous situation must however still do everything in his/her power to avoid an accident, and if it is possible to avoid an accident by swerving to the opposite side of the road, given that there is no traffic coming from the opposite direction, must do it. However, very rarely, will a driver be acting unreasonably by remaining on his correct side of the road.[2]

A large number of accidents do, however, occur due to one vehicle overtaking another when it is not safe to do so. When the driver of a vehicle is about to overtake and pass another vehicle, it is the duty of the driver to keep a proper lookout to establish whether he/she can safely overtake.[3] If a driver overtakes another vehicle when it is not safe to do so, the onus cannot possibly be placed on traffic coming from the opposite direction to avoid an accident. It remains the duty of the overtaking vehicle to ensure that it is safe to do so, and should it come to the driver’s attention that he/she will not be able to overtake without colliding with traffic from the opposite direction, he/she must apply his/her brakes and get back in the lane in which he/she was originally driving as soon as possible.

Duties of a reasonable driver in a sudden emergency:

In deciding what the reasonable driver would have done in the position of a driver who is faced with a sudden emergency, allowance must be made for the inevitable time lag between observation and reaction, as affected by the agony of the moment, the element of surprise, and the likelihood of momentary indecision.[4]  The standard of care which a reasonable driver ought to exercise when driving in the ordinary course of events is, therefore, lowered when the driver is faced with a sudden emergency.

Where a Plaintiff is put in jeopardy by the unexpected and patently wrongful conduct of the defendant, it seems to be irrational to examine his/her conduct under a microscope and to try to envision what steps the Plaintiff could have taken to avoid an accident. To do so would be to ignore the penal element in actions on delict and to punish a possible error of judgement as severely as, if not more severely than, the most blatant disregard of the safety of others by the Defendant in overtaking a vehicle when it is not safe to do so.[5]

What constitutes prima facie proof of negligence?

When a motor vehicle drove on the incorrect side of the road and collided with an approaching vehicle, it has been held that negligence can be inferred from the nature of the accident, because the only reasonable inference was that the defendant’s driving on to the incorrect side of the road at the moment of the accident was due to his failure to exercise proper care. Proof that a vehicle was on the incorrect side of the road at the time of the collision is prima facie proof of the driver’s negligence.[6]

Lack of evidence by Defendant with regards to negligence:

If the Defendant fails to produce evidence to negate the inference of negligence, his failure to do so tilts the scale in the claimant’s favour and the latter is entitled to succeed against the Defendant. A driver’s inability to give an explanation because he is suffering from amnesia cannot operate in his favour and to the Plaintiff’s detriment. If there is no evidence to rebut the evidence led by the Plaintiff as to the Defendant’s negligence, the Plaintiff’s version must stand.


A large number of accidents would be avoided if motorists stuck to the rule of the road, and only overtook other vehicles when it was safe to do so. All motorists should be held to a high standard of care when driving. However, such a standard would be lowered if a driver was faced with a sudden emergency, caused by another driver’s negligent driving. A vehicle driving on the wrong side of the road, who causes an accident, can be held to be prima facie negligent. Should a party who was in an accident not be able to remember the accident, the other party to the accident’s version must stand. Hopefully, the dire consequences of causing an accident, will dawn on more people, and encourage them to exercise more patience when driving.

  • [1] Cooper W E: Motor Law, second edition, 1987, Juta & Co Ltd, p 53 – 54.
  • [2] Cooper W E: Motor Law, second edition, 1987, Juta & Co Ltd, p 84 – 85.
  • [3] Klopper H B: The Law of Collisions in South Africa, eight edition, Lexisnexis, p 53.
  • [4] Cooper W E: Motor Law, second edition, 1987, Juta & Co Ltd, p 92.
  • [5] Cooper W E: Motor Law, second edition, 1987, Juta & Co Ltd, p 92.
  • [6] Cooper W E: Motor Law, second edition, 1987, Juta & Co Ltd, p 100

This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us At DKVG Attorneys for specific and detailed advice.

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