Motorists on our South African roads are exposed on a daily basis to the very real risk of colliding with an animal. Road signs on our roads warn motorists against anything from penguins to hippos, cattle to porcupines, all which might be found crossing a road somewhere in the country.
Since this could happen to any of us, it’s good to know that there is in fact a legal duty on land owners towards road users to prevent livestock from straying on to the road, either by erecting and maintaining proper fencing and/or to keep any gates giving access to the road closed and locked.
But when a collision with an animal happens the owner of the damaged vehicle needs to do more than just prove that he/she collided with an animal belonging to someone else, or that the animal was the responsibility of another person to keep off the road. The owner of the damaged vehicle also needs to prove negligence on the part of the owner or person in control of the animal and who exercises control over the fence.
Simply put it’s not enough just to claim that the animal was in the road and therefore the owner of the animal was negligent. In addition, the owner of the damaged vehicle needs to prove negligence, such as the farmer leaving the gate open or failing to erect and maintain an adequate fence around the property on which the livestock is kept, that led to the animal being in the road.
So the next time a bull ends up on your bonnet, make sure that you gather as much possible evidence that can show negligence on the part of the owner of the animal, either by taking photographs of the open gate/broken fence etc. or getting the police to specifically note this in the accident report.
When the animal in question is a “wild” animal instead of livestock, and is kept by a game rancher with game fencing, the same test of negligence will apply. However, where wild animals are not fenced in, they have no owner and the owner of the damaged vehicle will have no one to claim from.
The following checklist can assist you in the unfortunate event of a collision with an animal:
- If necessary, first get medical attention for yourself and your passengers.
- Warn approaching traffic of the obstruction in the road.
- Notify the SAPS and local authorities.
- Make notes of any identifying features on the animal, such as ear-tags, branding etc. (to prove ownership of the animal).
- Identify and photograph any broken/neglected fences or open gates, and point them out to the police officials at the scene and make sure that they are noted in the accident report.
- Submit this information to your insurer and/or contact your attorney for legal advice as to claiming for damages suffered.