Reckless and Negligent Driving – Liable or Not?

“The Driver on the Highway is safe, not when he reads the signs, but when he obeys them.” – Aiden Tozer

Article by Nichole Turner (Senior Labour Advisor)

Introduction

MISA recently assisted a member who was charged with “reckless and negligent driving” after he wrote off his company vehicle.

The member presented the facts as follows: His child was ill, showing signs of high fever; at early hours of the morning (1am) the member elected to drive his company vehicle to a 24-hour pharmacy – the nearest one being 30km away – to get medicine to try to break the fever. Unfortunately, on the given evening, it was raining, with poor visibility, the vehicle aquaplaned on a puddle of water, causing the vehicle to spin out of control, flip and roll into a ditch on the side of the road. Luckily, the member was not badly injured but the company vehicle was a complete write off.

The question is, would this be a valid defense against charges of reckless and negligent driving?

Negligence in the Employment Context

MISA previously published an E-data article, addressing the difference between negligence and gross negligence, (you can read it here).

The courts have further set out a three-part test for negligence, following the matter of Kruger v Coetzee 1966 (2) SA 428 (A), applying the “reasonable person test,” asking would a reasonable person in the same position as the member have been able to:

• Foresee a reasonable possibility (of harm);
• Been able to have taken steps to prevent the damages; and
• In this instance, did the member fail to take these steps (identified above).

Moreover, in the matter of NUMSA obo Selepe v ORAWAB Investments (Pty) Ltd t/a Bergview Engen One Stop (2013) 5 BALR (MIBC) gross negligence was defined as the “Conscious and voluntary disregard of the need to use reasonable care… caus[ing] grave injury or harm to persons or property, type of extreme conduct”.

What do the statistics say?

The Arrive Alive website notes that driving in rain, amounts to adverse weather conditions that pose unique challenges on the road, which may lead to car accidents; they may lead to poor visibility, inability to steer the vehicle efficiently or to apply the brakes effectively. Reduced traction of the tyres due to wet roads can too lead vehicles to hydroplane.

The WHO (World Health Organisation) estimated 14 506 fatalities from car accidents, in South Africa during 2016.

Position of Trust

The most crucial aspect of an employment relationship is TRUST. An employee, who holds a position of trust (i.e. able to use a company vehicle, for personal use outside of the employment context); and specific actions or omissions that are negligent (i.e. driving a vehicle in the rain at 1am in the morning), bring about dire consequences for the employer (i.e. damage to the company vehicle), such relationship of trust may be weakened or even severed, when an employee fails to apply the standard of care and due diligence of a reasonable person.

Unfortunately, our member, in this instance further jeopardized the position of trust by changing aspects of his version of the events that transpired that night, on more than one occasion; leading the employer to believe that his story was not the true state of affairs. The employer motivated for the member’s dismissal.

The chairperson, however, weighing up the circumstances motivated and recommended for a sanction of a final written warning, valid for 12 months, the member was further held liable for the excess in accordance with the provisions of the MIBCO main collective agreement.

Clause 3.9 of the MIBCO main collective agreement provides “(9) Deductions in terms of damage to vehicles or property in terms of Clause 9.3 of Division A of this Agreement: Provided that the maximum deduction may not exceed 30% of the employee’s weekly/monthly earnings.”

Clause 9.3 of the MIBCO main collective agreement further provides: “(1) Damages to vehicles: Subject to clause 3.9(9) of Division A of this Agreement, in the event of damage to a vehicle, no employer shall deduct any excess amount incorporate in an insurance policy or damages from any employee who is required or permitted to drive a motor vehicle, nor shall any employer be permitted to deduct damages from any employee in the absence of insurance cover:

Provided that such excess amounts or damages maybe deductible if a formal hearing was conducted and the employee was found guilty of-

(a) having driven the vehicles under the influence of alcohol or drugs; and/or

(b) negligent driving; and/or

(c) reckless driving; and/or

(d) wilful damage to the vehicles; and/or

(e) having driven the vehicles with the permission of the employer.”

Conclusion

In light of the above, it is clear that the member was most likely negligent that night; driving at that time of the morning, in the dark and rain, was clearly not a good idea (especially without informing the employer of his intention to drive the company vehicle); given the above – we encourage our members to take care on the roads and to always obtain the permission from management before making use of a company vehicle!

When in doubt, remember MISA – Just a phone call or an e-mail away!

Kindly utilise the following e-mail addresses and links for assistance: 

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