Who is to blame in a Pile-Up collision?

Intro
Traffic collisions are unfortunate fact of Malaysian driving conditions. Where the accident involves two vehicles, legal liability is fairly straightforward, but things get a bit more complicated when there is a pile-up collision. So who is responsible for damage to your car?

Basic Duty of Care

Usually there needs to be some form of relationship between parties for a suit, but often times where the actions of one fella can cause harm or loss to another, the law creates a relationship called a ‘duty of care’. If a party breaches that duty of care, then they will be liable.

When on the road, everyone has a duty of care to drive carefully and safely so as not to endanger other people. Basically, everyone from the lorry driver to the kapchai rider is responsible for driving safely and responsibly, failure to do so can result in either civil or criminal liability.

Now, let’s talk about rear-end collisions.

The Law 

The United Kingdom case of Brown & Lynn v Western SMT Co Ltd [1945] SC 31 provides the basis of the Malaysian legal position:-

...The following driver is, in my view, bound, so far as reasonably possible, to take up such a position, and to drive in such a fashion, as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated: but whether he has fulfilled this duty must in every case be a question of fact, just as it is a question of fact whether, on any emergency disclosing itself, the following driver acted with the alertness, skill and judgment reasonably to be expected in the circumstances….”

This law was adopted by Malaysian courts in the cases of DE COTTA v TAN HOCK LEE [1972] 2 MLJ 173 and ABDUL MOKHTI BIN HAJI AHMAD v IDRIS BIN IBRAHIM [1977] 2 MLJ 85.

If you are behind, the onus is on you to give yourself enough space and time to stop if the front car has to stop due to a reasonably anticipated occurrence.

So, in that situation the car that whacks the front is automatically in the wrong, right?

Not necessarily. While the driver of the rear car has a responsibility, but if it can be shown in court that the driver of the front had been driving recklessly or made a sudden stop in the middle of the road, some of the blame can be put on him.

So how does this all relate to pile-up collisions? Well, each driver owes a duty to the driver in front of them. That also means that each driver can sue the others

For example:

Let’s say you are driving in car B. You’re travelling behind car A and in your rear-view mirror you can see car C behind you. As you all drive along the road, a child suddenly runs across the street – car A jams his brakes and stops in the middle of the road. This forces you and car C to step on your brakes too.

Scenario 1:

In scenario 1, you manage to stop in time and not kena A’s car. Suddenly, C collides into your rear and the force of the impact pushes your car into A’s rear.

Here, you can sue driver C – because he didn’t keep a proper distance from your car. You can possibly sue car A, but it’s unlikely to be successful because he was forced by the emergency to make a sudden stop.

Scenario 2:

In this scenario, you did not stop in time and collided into the rear of car A. C then comes and slams into your rear.

Here, you will likely get sued by both driver A & C- first by A for failing to keep a safe distance from his rear, and by C for getting into an accident with A and obstructing his path.

Your lawyer will likely file a counter-claim against A and C. He’ll then try to argue that A shouldn’t have made a sudden stop, but this is unlikely to succeed because the he was forced to stop by the child. He might also argue that C should’ve kept a further distance from your car, which may succeed in lowering your liability – not extinguishing it entirely.

Simple enough, right?  It gets more complicated the more vehicles are involved.

Note as well, that things can change depending on the situation in your particular case, so remember to consult a lawyer if you get into an accident.

What to do if you are involved in a pile-up collision

First things first – breathe. 

Keep calm, turn off the engine and get out of your vehicle. Don’t shout or scream, just keep cool and check if the other drivers are okay. Then take photos of the vehicles before anyone has had a chance to move them. Remember to take photos of the damage to the vehicles and record the number plates of the vehicles involved. If the emergency services haven’t been called, then you should do so.

Conclusion

Of course, the best thing to do is not get involved in the first place. “But Asklegal, it’s an accident right, doesn’t that mean it’s out of your control?” 

Sure, to some extent, but there are definitely things YOU can do to lower your chances of being involved in an accident, or at least, lower your legal liability if the unavoidable happens.

The easiest and most effective way to lower your risk is to NOT tailgate. 

Don’t be the THAT who always needs to cucuk the buntut of the front car – even if you are in the right lane and the other driver is slow. Flash your lights and honk, while maintaining your distance if you really need to pass.

Otherwise, just be patient. Keeping your distance will give you more time to stop or evade if he gets into an accident.

Secondly, if there is a car following closely behind you and you can’t change lanes, then slow down gradually and increase the distance between your car and the car in front of you. This will give you more time to brake in the event of an emergency, and give the car behind you more time to brake as well.

At the end, remember that this isn’t a race to be won but in an accident – everyone loses.