Looking for liable party after crash

Thobela Bubesi doesn’t have a leg to stand on. This after the driver of a Thrifty rental car crashed into him at the intersection of Koeberg Road near the Brooklyn Garage, causing damage of R11 000 plus.

Mr Bubesi said he was driving home on the N2 heading towards the M5. “The driver of the Thrifty rental turned in front of me, although he told me he didn’t see me. But then he said he thought I was going to turn towards North Gate, so he did see me,” Mr Bubesi said.

“The driver phoned Thrifty and they arrived with another car. We signed the accident report and then we had to complete the third party document ‘so my car could be fixed’. I went to Thrifty’s airport branch where I spoke to Melissa who said they would submit the documentation to head office and they would fix the car in their panel shop. They would get back to me. But they didn’t. I’ve had my car fixed so I could take my kids to school on my way to work. I have never been in an accident before so I did not know what to do. I did not have time to read through the papers and signed where I was instructed to, including the third party contract,” said Mr Bubesi who noted the Johannesburg driver’s personal details and a photograph.

“Please help,” said Mr Bubesi who lives in Gugulethu and works in Milnerton.

Asked for comment, Thrifty Car Hire was less than helpful. When I called Isabel Alberts of Thrifty’s customer care she said she would forward the message to the claims department. She didn’t.

When I sent another message I was bombarded by emails saying; “Your ticket has been marked as resolved.”

But nothing had been resolved nor had anyone from Thifty contacted Mr Bubesi. Finally, I received a message from Thrifty’s claims administrator, Thembisa Bekezulu, one of the people Mr Bubesi dealt with previously. Her response: “(sic) I know that the TP’s name is Thobela Bubesi, its surprising because your client heard me very well the time I was explaining everything to him he even agreed to take my advice, please ask him to follow our renter, hence they were together on a scene and they do exchanged numbers so he’s the one who supposed to fix Thobela car not us”.

Well, what it means is that the driver of the rental car must pay for the damage caused to Mr Bubesi’s vehicle.

In English: the car rental company was not the driver and cannot be held liable. That was the gist of the third party agreement Mr Bubesi signed without reading it.

An industry expert who did not want to be named said they would have to check the contract the rental driver signed.

Liability cover, which this is, is not a standard feature of rental contracts.

If the driver did not have liability cover then Thrifty does not need to pay for damages.

“Mr Bubesi could pursue his claim against the driver, as Thrifty suggested.

“If Mr Bubesi has written confirmation from Thrifty (about fixing his car) he could ask for a review of the decision. If the Joburg driver has car insurance, then the liability cover he has with his own insurance may cover him,” the expert said.

Peter Nkhuna, senior assistant ombud at the Ombudsman for Short-Term Insurance (OSTI), said the office does not deal with third party liability disputes but he is familiar with them.

“Liability attaches to the person and not the vehicle. You cannot hold the vehicle liable, but only the person as the vehicle did not drive itself, the driver did. This is the case even if the vehicle is found to have been faulty. Someone will be held liable for the vehicle being on the road while in that condition.

“The first person who would carry liability for the collision would be the driver, if he was negligent. If the vehicle was being driven in the course of employment, the employer could also be held vicariously liable. By placing the vehicle and its driver on the road the employer would have created a risk for other road users and the public in general. The employer would therefore owe these parties a duty of care not to cause them harm. Any losses or damage resulting from this action of placing other road users and the public at risk, would create liability on the part of the employer.

“The third person who could also be held liable is any person responsible for the vehicle being in a roadworthy condition, where the vehicle itself had some or other fault which either caused the collision or contributed to its occurrence. The car rental company was not the driver and can therefore not be liable.

“The car rental was not the employer of the driver, and can therefore not be held vicariously liable. There is no basis to hold the car rental company liable,” Mr Nkhuna said.

Mr Bubesi, who doesn’t have insurance, will have to claim from the Johannesburg driver.