Vehicle disrepair and third party liability

Road accidents, in most cases, are caused by fault. When this fault can firstly be attributed to the driver or owner of a vehicle, and can further be proven to be linked to the damages sustained by a third party, the responsible party will have a claim to

However, there are numerous examples where the cause of the liability may well be excluded in terms of the standard motor policy. Through our involvement in the heavy commercial vehicle insurance industry, we encounter many such claims. In these situations, expectations may remain unfulfilled, which may in turn result in mistrust and accusations against the insurer.

Let me expand by illustration.

A wheel comes off a truck on the highway. Damage to other road users consequently follows. The aggrieved parties claim and a review of circumstances then takes place whereby the third party liability insurer evaluates its liability.

To succeed in its claim against the insured, the third party must first show fault on the part of the driver or owner of the truck. In this illustration, the harm inflicted did not arise from irresponsible driving behavior. However, circumstances indicate the cause to be due to the neglect of the truck driver or owner in some manner.

The foundation for a successful legal liability claim is to show that the owner,

a) Had a duty to prevent the wheel from coming off the truck whilst in motion and from causing damage to any other party, but

b) Neglected to take the reasonable and necessary action to avoid such failure, as a result of which

c) The accident occurred, and

d) A loss ensued.


During the assessment of the factors outlined above, it may become obvious that the wheel detached due to inadequate maintenance, and such failure resulted from one or more of the following factors,

· The bolts on the wheel may not have been torqued properly

· Threads on the wheel bolts may not have been properly oiled

· Nuts may not have been properly oiled

· Corrosion on the wheel bolts or nuts

· Worn or stripped threads in the nuts and/or bolts.


It is as a result of demonstrating the lack of maintenance that liability is proven. And it is this same evidence that points to a general exclusion of motor insurance policies.

The exclusion in this case relates to the lack of efficient and effective maintenance to maintain the vehicle in a roadworthy condition.

Similar situations also arise from circumstances such as,

· Semi trailers swerving or detaching as a result of poorly maintained fifth wheel couplings or severed tow hitches

· Engine parts dislodging

· Faulty or broken air braking systems

· No brake linings

· Broken hubs

· Broken springs

· Broken or incorrectly coupled suzy pipes.


Frequently, brokers apply pressure on underwriters to settle the claims made against their clients by persistent third parties, but refuse to accept that the insured vehicles have not been adequately maintained. Once convinced that this policy exception of poor maintenance is in fact a precondition to the underlying liability, calls are made for the insurers to overlook such exclusions.

Were the underwriters to consent to these requests and disregard proper vehicle maintenance as a warranty or policy condition, in my view, they shall be complicit in the road accidents and tragedies which arise from these neglectful behaviours. This, alongside the waiver of alcohol exclusions, perpetuates poor conduct and exacerbates the carnage on our roads. And this is why we underwriters and brokers should stand together and collectively encourage due, proper and responsible risk management.