During the 2016/17 festive season, we heard once again how the road traffic collision statistics climbed by more than 10% – exactly as ‘naysayers’ predicted and in contrast to the promises, threats, and promotions.
According to most recent statistics and as reported in a Road Crash Cost Report by the CSIR for the RTMC in 2016, the total cost of road traffic collisions on South Africa’s road network for 2015 amounted to an estimated R142.95 billion. That’s not peanuts! It’s about 3.4% of gross domestic product! This has huge implications for taxation, infrastructure, insurance and the management cost of road safety. But this is hardly the worst of it! About R60 billion goes to fatal collisions, R30 billion to major incidents and R31 billion to damage-only collisions.
But that’s only money. When you consider the real cost – the impact on lives – it looks substantially worse: in 2015 alone, over 13 000 people died, 62 000 were involved in major collisions and 1.4 million were in damage -only collisions. That’s more than 1.7 million people affected by crashes every year. These are huge numbers. Thinking that “you’ve been lucky thus far” or that “you have never been involved in an accident” and that this is enough consideration is a very flawed way of looking at your chances of becoming a victim, a suspect or a defendant in a crash-related matter. But the risk of crashes is not all you need to consider.
The total cost of road traffic collisions on South Africa’s road network for 2015 amounts to an estimated R142.95 billion.
Towards the end of 2016, Stan Bezuidenhout from IBF Investigation received more calls relating to what clients describe as irrational insurance repudiations than in the total 17 years he has spent as a Crash Specialist in South Africa. Stan tells some stories and seems to be able to string them up like beads. With facts immediately available, unnatural recall of specific details and a passion that is palpable, he gets animated when talking about this stuff. This man hates exploitation, bullies, and people who take advantage of others and he has sharpened his anti-bullying spear in martial arts, military intelligence and as a specialist reservist in the South African Police.
Stan eagerly starts with what seems to be his favorite story: “I had this one client call me. Her husband was a driver in a car registered in her name – a BMW M6. It was during one of the worst hailstorms to hit Joburg in several years and he lost control and spun out when he struck a puddle of water, she told us. When she called the insurance to claim she was apparently warned – actually told – that the car is expensive so there will likely be an investigation before the claim is paid. And sure enough, the insurer repudiated the claim. She challenged their finding and was promptly dismissed without much reply. That case is still ongoing, and the claim still hasn’t been paid. She has sought intervention by the Short-term Insurance Industry Ombudsman (STHO).
“After two reports by so-called experts and no further movements, she is now seeking legal advice and plans to proceed with criminal fraud charges against an expert hired by the insurer, who reported that all four of her tires was totally smooth – tires he personally saw and photographed not to be. The claim remains unpaid and it has already been more than a year since the loss.”
There’s more and Stan gives another example: “Another client approached me. He was driving down a two-lane road and the traffic on the left lane had started to back up. As he approached the end of the queue of vehicles in the left lane – driving in the right-hand lane himself – another motorist attempted to make a U-turn across his lane of travel, causing a collision that resulted in his vehicle rolling over. His car is a write-off and uninsured.
“Since the other motorist clearly acted illegally, he instituted a claim against her insurance. The insurance repudiated, seemingly without any establishment of facts, stating that their client claims another vehicle caused her to have to turn in front of him. The insurer suggested that he seek compensation from the (phantom) vehicle. When he compiled a letter, with our assistance, outlining all the road traffic and legal requirements the at-fault motorist violated and referring to an independent witness’ version of events, supplied on a sworn affidavit, supporting his version, the insurance simply wrote back, saying that they have stated their position and that he should seek legal advice.”
People typically think about road traffic collisions in terms of the only two aspects that affect them directly: the cost and loss associated with the crash event, the cost in money and the loss of lives or injury and the legal battle that might follow: Beyond this, most people – including major transport fleet operators who face enormous risk on account of either fleet size, miles covered or product transported – tend not to think about accidents much.
The typical risk mitigation strategy, when it comes to road crash risk, for both private and corporate vehicle owners and operator, includes some effort to prevent collisions, insurance to ensure that they suffer minimal losses and legal strategies to fight claims – if and when they arrive – typically only exploring strategies when the legal battle starts and often as much as two years or more after a collision. People actually spend less time worrying about how they would claim from others after an accident than they do about how they would protect themselves from claims emanating from them. And they totally ignore the risk of criminal charges until after their arrest or that dreaded first court appearance.
After years in court, many hours in the witness box and having washed more blood off his shoes and hands after attending crash scenes than most people actually have in their bodies. Stan sees the world in a completely different way. In his mind, the value of the loss is something no one can do anything about. He explains his way of looking at it like this: “When crashes happen, the damages will be there. The actual cost will be affected only by the make, model, parts availability and severity of damages. “This is the quantum. The quantum is hardly ever argued in courts unless someone blatantly lies about it. In almost every crash you know that there will be insurance claims. Insurance assessors will also confirm quantum. While repudiations do follow in some cases, seemingly now more than ever, the insurance claims process is pretty predictable. There’s nothing you can do to change it or affect it – where there is insurance. By the time a case heads to court, whether for civil or criminal purposes, the process is also predictable. There will be one party making an allegation and another opposing it and there will be some decision as to who is wrong or right, guilty or innocent, culpable or exonerated. The only part you can ever hope to control to your advantage, in anything from an insurance or civil claim through to a criminal case, is the evidence. And evidence wins more cases than anything else.”
Stan carries on and the rabbit hole gets deeper: “You see, if you submit an insurance claim, you will invariably be placing your trust in the system. In a court case, you might believe that the truth is all that is needed. But in either case, you are at a disadvantage the moment the crash happens. Those administering or managing the claim or the trial know much more about the system and the process than you do; not only about the law but also about the court, the mechanisms that affect and influence the trial or the claim and the many aspects that affect the one thing you might think comes naturally: your believability, your credibility.
“See, in an insurance claim or in a legal trial, everything you say can and will be used against you and those using it against you will drag you right out into the middle of their playing field – alone. Without any assistance, support, reassurances or due consideration, you will be treated like you are guilty until you can prove your innocence. That’s a very difficult and frustrating position to be in.”
Seriously? We’re wondering if Stan isn’t just trying to scare us. Surely it can’t be all that bad – can it? Surely, “the truth shall set you free?” Surely – if it comes down to “his word against mine,” all I need to do when filling in my insurance claim or when I go to court is tell the truth?
Stan doesn’t think so and he has another real-world example at hand: “One of my clients was involved in a collision. He submitted his insurance claim and waited for the pay-out. When his insurer called him and asked that he come in for them to discuss his collision, he had no reason to be suspicious or defensive and though that it was probably a normal process. He agreed to the ‘chat’ and arrived for the meeting; only to find that he was now surrounded by several people who seemingly wanted to interrogate him. He decided that he had nothing to worry about, he will simply tell the truth and has nothing to hide. One of the questions he was asked was whether he had had anything to drink.
“He answered that he did, he had one beer earlier in the evening. He had no reason not to be honest, after all. He came from a good family and he was taught to always tell the truth. The meeting eventually ended, and he was thanked for his time and sent on his merry way without any reason to believe that this was anything more than a ‘chat.’ He was shocked to receive a letter of repudiation later, confirming that he admitted – during an interrogation (of all things) – that he had consumed alcohol. His policy wording included that he was not allowed to operate his vehicle while under the influence of a drug. There was no stipulation of the extent of impairment, the specific drug or the amount consumed. Under this blanket repudiation clause, he now has to pay for the damages to his own vehicle.”
If you think this kind of stuff only happens to private people and that it is not an issue that plagues large fleet operators, think again. Stan has as many stories from the commercial transport sector as he does about private. He insists that there is a new trend in insurance. He explains it like this, “considering the number of insurance repudiation complaint cases I received during 2016, I am left wondering if insurance companies have not just become law firms. I am left wondering further if there are not insurers that would pay a claim only if they are absolutely certain that they would never win a court case if they repudiated. In addition, I wonder if they don’t simply select cases where they have the best possible chance of winning in a trial and litigate. I’m using that term because the typical series of letters that follow repudiation is more legally akin to pleadings and demands normally sent by lawyers than they would ever be if it were a service provider apologizing for being unable to assist in a particular case. I find the letters to be abrasive, full of legal jargon, dismissive, cold and abrupt, most of the time.
“That disturbs me to my core. You entrust your risk to a service provider, hand over your money and live in the belief that you are insured. When something happens and you claim you are sometimes subjected to nothing short of a paper-trial and treated like a suspect by some service providers. In the illegal U-turn case mentioned above and after supplying them with applicable legal, dynamics, and independent witness data, the final reply was actually just this: ‘Good morning, I’ve already provided you with feedback. I suggest that you seek further legal advice. Kind Regards.’ In his e-mail to the insurer, he’d asked their client to prove the involvement of the phantom vehicle and asked if the insurer had any details of it or the driver. All this was ignored and never commented on or replied to. Is this possibly a case where the insurer assumes that – because you are not insured yourself – you will not have the money to claim and should therefore not be able to fight a legal battle? Are insurers now also bullies? Or are they law firms, perhaps – after all?
So what does all this have to do with crash investigation training? We’re wondering if Stan has forgotten what we were supposed to be covering in this article. But he hasn’t. And he drops the other shoe like a solid-steel cowboy boot – rowel and all, right on the floor in front of us.
“See, if you’re involved in a collision and you want to go and tell anyone – from your insurance to a judge – how innocent you are or how the other person is guilty, you’d better have the physical evidence to prove it. Without physical evidence you’re selling snake-oil in most cases, if the other person’s version just sounds better as it comes out of their smooth lying mouth than yours, coming out of your dry, nervous one. You see – many cases start the same way – it goes like this: Screech, bang, oops, sorry…then the posturing starts at the scene and people try their best to go to trial on the side of the road. It’s so easy there because the tempers are flared, the cars are right there, the damages are visible, and everyone is in shock. It’s the perfect place for a trial but it never actually works that way and it practically never ends there.
“What happens next is that people part ways and go home. This is where they have time to consider their actions, the implications of their actions and the consequences they are likely to face. Then they start planning a variety of methods by which they can prove their innocence or your guilt. They talk to family and friends, convincing everyone of their version. With family and friends, they are very good and actually quite convincing. But the other party is not present. Family and friends are rooting for you and you can easily manipulate your version without any judgment. This is your story and you can tell it any way you like. It’s when you get to court that all those months or years, cementing your version with the support and understanding of friends and family, fall apart right in front of your face as the cross-examination starts. Suddenly, you are not able to tell your story in the way you saw it: there is now special attention given to evidence, the value of damages, approach angles, legal responsibilities, due care, keeping a proper lookout, taking steps to prevent the collision, things said at the scene and perhaps even a witness calling you a liar. This is when you might realize that you need help, but any help might be too little and too late.”
Stan explains that every crash case has the potential to be or to become a crime scene, and insurance claim, and insurance repudiation or a court case. In every case, in a perfect world, you could bring everyone to the original scene while the cars, debris, tire marks, and blood and guts are all still present. Perhaps – in this fantasy and idealistic world – you could even play a video and show anyone who wants to know, exactly what happened. But this is hardly ever the case. In most cases the people involved have never been in court, have never presented evidence, have never litigated, have never studied reference law and have never faced criminal charges or the threat of a civil judgment.
When the chips are down, you’re going to feel like you’re walking straight into the lion’s den, your memories will become foggy, your throat dry, your face flushed and your legs weak. You’ll have difficulty swallowing and you’re most certainly going to be under pressure. Alternatively, you’re so uninformed and naïve that you walk into court or a civil dispute full of confidence having no idea how it actually works, thinking you can just “smooth talk” your way through it. In all scenario’s your best weapon is, remains and will always be…. The best evidence. He who holds the best evidence steers the trial. Period.
Stan explains: “If you are involved in a road traffic collision and you end up on the wrong side of any form of dispute or litigation, the best possible position you can ever be in is to have the upper hand to have the most information, the best evidence. For this purpose, we released a book in 2015 called DIY Accident Investigation.
After almost two years on the market, hundreds of copies sold and provided in support of our physical training, we realized that no matter the value of the content, people are lazy to read. They prefer to acquire knowledge in keeping with their ‘one-minute world’. People are much more willing to sit in a classroom or in front of a screen and to learn from someone than they are to read and learn for themselves. In order to address this, we launched an online college in January 2017.
This allows us to now train people anytime, anywhere on practically any modern internet-connected device. We launched with 12 courses, covering everything the basic road user, fleet operator, police officer or private investigator should know in order for the best evidence to be collected at the scene of a collision and afterward. Covering topics like selecting the correct gear, using your cell phone for investigations, crime scene awareness and photography and ending with measuring and sketching crash scenes, this is the one course you’d want to explore as another tool in your risk mitigation package.
Now, for the first time in South Africa, you or anyone in transport can simply go to www.ibfusa.info and start a DIY accident investigation training course for less than the cost of a decent meal out with the family.
This training is designed to empower road users, fleet operators, and investigators at all levels. This training takes you through the maze of evidence collection and information gathering and places you in a position to collect the best evidence, even when time constraints force you to do a so-called ‘rapid-fire investigation’.”
“Gone are the days when insurance companies are simply going to bully you with ‘your word against mine’ arguments. No longer will you be forced to simply try to argue your innocence in a trial or to talk your way through the situation. With accident investigation training at this level, you will be in a position to collect the correct evidence, the correct way, for the correct reason, at the correct time. This should be the first strategy in crash risk mitigation: know more, have more and keep more than the other party.
From there, your lawyers, your insurance, prosecutors, magistrates, and even third parties will have to evaluate your collision not only on the quantum but also on merits, “Stan closes. We get it now. If you have better information, better intelligence or better facts, you are better equipped, and Stan’s online DIY accident investigation training is but one example of where your personal or commercial risk mitigation strategy should start. Stan and lawyers can perform better, with your proper investigation in hand. Well worth considering, we’d say. – IBF Investigations