Desperate measures to protect lives and limbs in traffic accidents; a learned view

Posted: March 26, 2017 by PaanLuel Wël in Commentary, Contributing Writers, Opinion Articles, Opinion Writers

“Is it foreseeable that someone might get killed or hurt if one drives recklessly or a mechanically ill-propelled motor on a public road?”

Joseph G. Akech, Juba, South Sudan

Burnt oil tanker along the Nimule-Juba road, Sept 2016.jpg

Burnt oil tanker along the Nimule-Juba road, Sept 2016.jpg

March 26, 2017 (SSB) — Due to the rampant increase in fatal traffic accidents on major roads and cities in South Sudan, the writer dares to introduce a controversial but worthwhile idea with respect to the subject matter. This unfamiliar opinion comes at the backdrop of increasing rate of fatal accidents by reckless or negligent motorists. The Traffic Act, 2003 is inadequate and perhaps the legislators did not contemplate the current state of affairs – hiked in fatal traffic incidents.  Section 47(1) of the Act states that:

“any person who causes the death of another by driving a vehicle on a road recklessly or at a speed or in a manner dangerous to the public, or by leaving any vehicle on a road in such a position, manner or condition as to be dangerous to the public, commits an offence and shall on conviction be liable to imprisonment for a term not exceeding ten years.”[Sic].

This penalty is scarcely applied due to either desire to settle issues out of the court or inadequate investigation leading to a different and more lenient sentence, if any. In most cases, motorists have no respect for boda-boda riders or pedestrians. The number of casualties in Juba Teaching Hospital caused by negligent driving is shocking. However, in most modern cities around the world, accidents are expected in towns as they become crowded with vehicles and pedestrians. What is so incomprehensible with our case is the way in which cases are easily settled with an almost determined amount of cash to be paid in case of death or grievous bodily harm resulting from an accident.

To proceed, I will submit on two divergent but mutually reinforcing views. Firstly, that due to the nature and character of most traffic accidents in Juba city and major highways, traffic offenders should be prosecuted under penal laws as well as a civil suit for compensation at the discretion of the victim or his or her estate.

I know this will provoke an enormous discomfort within legal fraternity especially at the bench and the bar. I am aware that some may consider it so daft to place fatal traffic offenses under penal law. But I understand such perplexity. I am outraged by the rampant traffic accidents resulting in loss of lives or limbs. Such events cause irreversible social and economic agony in our society. To reduce such ramifications, we should introduce penal sanctions on fatal traffic offenses. Traffic accidents resulting in loss of life or limbs should be met with life-time imprisonment after ascertaining the facts leading to an accident.

As we’re told in jurisprudence, the law is made in time and space. South Sudan is free to make laws designed to curb a particular behavior. The Philippines for example enacted tougher laws to fight drug cartels. We can slightly depart from the traditional traffic laws where offenders are fined and compelled to compensate for their loss and adopt a more stringent legal framework for fatal traffic offenses.

I submit that the office of the Department of Public Prosecution (DPP) should investigate traffic accidents first to rule out that it was indeed an accident, not premeditated homicide. Drivers crash pedestrians even school children crossing on Zebra crossing points and still get jail free card upon payment of ‘blood money.’ This is outrageous! It is in the interest of public that the motorists who kill or cause grievous bodily harm (GBH) to others be adjudged under penal laws. I contend this way because a vehicle is a lethal machine capable of killing someone if so intended.

Due to the nature and frequency of traffic accidents, we cannot rule out that there is an ill motive or intention to kill using a motor vehicle. All motorists are judged as reasonably competent drivers regardless of whether they are learner drivers or driving under influence of alcohol. It is therefore not an excusable defense that one is a learner driver. The rationale for this is that if it were to extend to other professions, it would be like saying when you go to see a doctor on ill health; the doctor who sees you may be new and learning. No one expects the doctor who sees you to be a learner doctor. The law does not also excuse a negligent professional even if it is proved that they are learners. This is because the standard of care of professionals is judged by the standard of the profession.

The vehicle is considered a lethal machine that is capable of killing a human being if intended to cause death. The jail-free attitude of cash payment (blood money) is a correlative recipe for the rise in fatal accidents. It is a settled principle of law that drivers owe a duty of care towards other users of public roads. This duty of care requires that every driver must first be licensed after having acquired requisite training.

It is not enough to demonstrate a duty but that duty must be exercised according to a reasonable man standard as was held in a famous English case of Blyth v Birmingham Water Works Co (1856). So if I am a driver, I owe a duty of care to other road users and my duty of care (the way in which I drive on the road) is measured according to a standard of a reasonable man.  The competence of all motorists is judged according to a reasonable competent driver regardless of whether one is a learner driver or not.

The punishment should be harsh for drivers who kill or hurt others as a result of their inadequate training and where he or she is not licensed and or if driving the vehicle under the influence of alcohol.

In conclusion on this point, fatal traffic offenses should be probed by the Director of Public Prosecution (DPP) first to rule out criminal intent. If convicted the appropriate sentence should do be life sentence or at the very least some considerable custodial sentence. Recklessness is a form of criminal element although it is a less blame whorthy form of mental element of a crime. It is not therefore daft to prosecute fatal traffic incidences under penal laws. The rule that when in doubt, do not do it or quod dubitas ne feceris should be treated as directory and not prohibitive of departure from traditional practice in respect of traffic offences.

Secondly, and on the contrary, I argue that traffic accidents should be handled out of court, where possible and the aim being compensation of the victim. That such compensation should not carry with it punitive measures but only compensatory damages to take the victim to the position he or she was in before the accident or as is legally known restitutio ad integrum. That reparation should be adequately assessed to include loss of amenity and future earnings for most serious accidents.

However, this approach should aim for conciliation and mediation and more importantly psychosocial support to both victim and offender.  The later approach promotes conciliation and peaceful co-existence, a matter which is largely remote to legal proceedings and which is important for peaceful co-existence of the victim and his or her offender. Note however that mediation is now gaining prominence in most jurisdictions and we’re not exceptional to this new jurisprudential mechanism of dispute settlement.

Presently, most traffic cases are settled out of the court or tried by customary courts or its machinery of justice. Such approach is generally appropriate as long as it takes into account the circumstances under which the actions or omissions of the driver in question are properly investigated.  The out-of-the-court settlement could be seen as an alternative dispute resolution mechanism (ADR) insofar as it promotes conciliation and mediation between the victim or his/her family and the perpetrator. However, caution needs to be exercised to ensure that we distinguish accident from intentional killing.

The legal regime in force in South Sudan in respect to traffic regulation is primarily the Traffic Act, 2003.  This law is rather old and was promulgated by the then leader of SPLM/SPLA which law was ‘adopted’ with other generations of laws then in force. Since the crux of this article is not to evaluate the gaps in the instant law.

Of importance are the substantive parts of the Traffic Act, 2003 in relation to the gist of this article. Section 47(1) of the Traffic act provides for punishment not exceeding 10 years in cases of death resulting from dangerous driving. The Act does not provide for what to do in case of grievous bodily harm resulting from an accident.

Punishment of negligent motorists

As I stated above, it is my considered view that negligent motorists who acts or omissions result in loss of life or limbs should receive corresponding punishment. I dare say they should be prosecuted under penal laws and handed with life imprisonment if life was lost or if serious bodily harm was suffered, to be punished with considerable custodial sentences.

Once it is established that a driver killed or caused grievous bodily harm to some other person, the Public Prosecution Attorney (PPA) should take interest to investigate that the offender did not form criminal intent. It appears that once someone is killed or seriously injured in an accident, the police almost immediately conclude that it was an accident and the next thing that comes is the settlement through payment in cash or kind. Negligent or reckless motorists should risk being charged and convicted of manslaughter if no proper defense is adduced to justify that it was a mere accident from which the court may excuse the defendant of the offense of manslaughter.

Assessment of damages

Before I discuss damages which I think should apply to a case of traffic accident, it is proper to state that damages apply when the law provides for or if the defendant elects to sue for damages. In some cases, both damages and custodial sentence may be granted. The court should take interest in awarding damages to consider the loss of amenity, earning (both present and future) and the prolonged psychological state the victim and his family will have been put it by the accident. These considerations, though not materially altering the outcome, are useful in awarding damages to the victim or his/her estate.

In conclusion, frequent police training on crimes investigation is urgently needed to ensure capacity to investigate such incidents. This should be followed with facilitating the police force with requisite facilities and resources to undertake independent, timely and credible investigations into crimes. As the country embarks on wider law reform, that window of opportunity may be used to revisit Traffic Act, 2003 with view to providing for provisions to deal with fatal traffic incidences.

The author, Joseph G. Akech, a South Sudanese lawyer and a human rights activist, blogs on human rights constituency and have written several articles on constitutional law, human rights and criminal law. He can be reached via his email: josephgakech@gmail.com

The opinion expressed here is solely the view of the writer. The veracity of any claim made is the responsibility of the author, not PaanLuel Wël: South Sudanese Bloggers (SSB) website. If you want to submit an opinion article or news analysis, please email it to paanluel2011@gmail.com. SSB do reserve the right to edit material before publication. Please include your full name, email address and the country you are writing from.

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