Fatal accident raises awareness about the need to be legally compliant
While 99.9% of the time you may never need to prove you are a legally compliant wheels operator, the day you’re involved in an accident you’ll be thankful you are, as one SATSA member recently found.
A fatal accident, which claimed the lives of five passengers – one in the operator’s vehicle, and four others in the other vehicle – has since been investigated and the operator completely exonerated.
Had he not been fastidious about being legally compliant, having all the correct documentation in place and the right standard operating procedures, it could have gone the other way – he would have been arrested for culpable homicide.
This is his account of what happened:
Because international guests were involved in the accident, it became a diplomatic incident. The result was that the vehicle had to be investigated. I (the tour operator) had to be on site throughout the investigation. The Ministry of Transport sent two forensic officers to oversee the forensic investigation, accompanied by the investigative officer.
Before they even checked the vehicle, they asked to see all the documentation. Did I have an operating license? Did I have copies of maintenance records? Where were the tracker reports and the driver’s license? They even inspected all my other vehicles’ documentation to ensure that they were also being maintained to the same standard and I hadn’t doctored this vehicle’s records or taken any short-cuts. My entire operation was scrutinised.
Finally, they investigated the vehicle thoroughly. They checked that the maintenance records corresponded with the condition of the vehicle and even went as far as an inspection of the tires. The driver’s recorded behaviour on the tracker – from the point of departure (where the driver picked up the guests) to the location of the accident, revealed that he was completely in the right and that he had driven responsibly.
Once the investigation was complete, the investigative officer asked the forensic officers present if everything was in order and whether charges would need to be laid against me. With everything 100% in place, they confirmed that we were not liable for the accident and that a charge of culpable homicide need not be laid against me or my driver.
For wheels operators, the case study offers useful guidelines on how to ensure you are legally compliant and prepared in the event that your vehicle is involved in an accident.
The operator in question confirms that as soon as this happens, a case must be registered for passenger liability insurance applications. If the driver / guide is involved and hurt, you also have to register with workmen’s compensation within seven days or you’ll be held liable for all their medical costs.
If your company is insured with SATIB, you benefit from immediate assistance. Through SATIB24 Crisis Call you have 24/7/365 access to a team of incident managers who will coordinate multiple resources to ensure the best possible outcome. This may involve remote medical advice, medical response teams, legal advice, guidance on media releases in the face of reputational damage, trauma counselling and security assistance to mention key factors.
By taking control of the incident SATIB help shoulder liability that you may incur if dealt with on your own. SATIB’s excellence in claims handling ensures the right information is gathered upfront, loss adjustors are appointed, and the claims process is as smooth as it can be. This understanding of your particular needs allows you to focus on your operation while SATIB handle the rest.
To stay on the right side of the law, wheels operators need to ensure that they have the following in place before they operate on South Africa’s roads:
1. Operating License: It is important that you have the correct Operating Licenses – either Charter or Tourism Licenses (or both depending on your service). Without an operating license, even if the wheels operator has passenger liability insurance, they would not necessarily be insured. Insurance only pays out if you are 100% legally compliant (depending on your insurance provider). Also ensure that you adhere to the requirements as listed on the Operating License Annexure.
2. Passenger Liability Insurance: The amount depends on your clientele and you will be best advised by your insurance company. SATSA minimum requirement is R1 million per seat.
3. General Public Liability Insurance: This is important even though it is not a legal requirement. If you are responsible for your passengers being in a public place, e.g. if you must change a tire, and something happens, you would be held liable. SATSA minimum requirement is R5 million.
4. Driver Requirements: If it’s a simple transfer, a driver will suffice. If you are touring, you will also need to have a guide that is registered for the specific area/province. Your driver requires a PDP and you need to ensure that up-to-date medical and next-of-kin records, a copy of the PDP and driver’s license are on hand.
5. Vehicle Roadworthy: Your vehicle is required to undergo a roadworthy at least once a year but that does not mean that you only have to maintain your vehicle once a year. It is your responsibility to ensure your vehicle is always roadworthy. Have a daily checklist in place with a reporting system to manage defects. Keep a logbook for each vehicle and document any maintenance that gets done on the vehicle, even if it has just gone for an oil change or a valet. Some customers insist on seeing the full maintenance history of your vehicle.
6. Tracker: Install a tracker so you can monitor and record driving behaviour such as speeding and harsh braking.
7. Standard Operating Procedures: Consider putting in place a Standard Operating Procedure manual which is a living document updated continuously. This should accompany employment contracts and should be trained on regularly. SATSA is in the process of drafting a Standard Operating Procedure template that might be of assistance. Keep an eye on our communication for this template
Although SATSA has minimum requirements for insurance, we advise you to purchase as much insurance as you can afford. In the words of SATSA stalwart Bill Harrop: “You insure what you can’t afford”.
In the instance of a critical/life-altering injury, the claim can be anything upwards of R30 million, considering the need to cover not just medical bills, but also loss of income, ongoing medical care, etc., and this potentially in a foreign currency.
We know that securing an operating license is a challenge and this might force some wheels operators to transport guests without the correct legal documentation. As you would have seen over the past three years, SATSA continuously lobbies the NPTR and Department of Transport to ease this process. However, not having your operating license places not only the operator at risk, but any customer, e.g. a hotel which has contracted the wheels operator. It also puts the country’s reputation at risk.