Who has to suffer the loss of an uninsured vehicle hijacked at a dealership?

Many rather nasty and time consuming legal processes could have been prevented had the vehicle owners insured their vehicles. Some vehicle owners argue that they might save on funds payable for insurance premiums by driving carefully and protecting their vehicles from vehicle thieves. Some even argue that they can put away a monthly contribution in a separate account to settle any unforeseen claims…

But what if your vehicle is stolen where you are not the one in possession of the vehicle prior to the loss?

This is the scenario which lead to litigation in the Pretoria High Court recently!

Facts before the Court

• The vehicle owner took her Volvo to a dealership to fix the air conditioner soon after delivery.
• The driver from the dealership was 200m from the dealership, having fetched the vehicle from the agency that repaired the air conditioner, when the vehicle was hijacked.
• The vehicle, which was not yet fitted with a tracking device, was never recovered.
• The vehicle owner claimed the vehicle from the dealership – the dealership denied liability and argued that the car was not hijacked because of its negligence.
• Neither the vehicle owner nor the dealership was insured.

Question before the court:

Who was liable for the loss of a vehicle taken to a dealership for repairs but hijacked while in the dealership’s possession? Who has to bear the financial consequences of the loss of the hijacked vehicle?

Other facts before the court:

• There was a disclaimer posted at the dealership but the vehicle owner denied seeing this.
• The vehicle owner never was aware that she was agreeing to the disclaimer, which safeguarded the dealership against any loss incurred, when she signed the job card.

The vehicle owner argued that the dealership was negligent. Its driver should have realised it was a hijacking and should not have stopped. Also, the dealership should have sent two people to fetch the vehicle in case of an incident such as this, the vehicle owner argued.

Judgement focused on Negligence

Although the judge said the disclaimer should have been brought to the attention of the vehicle owner, the question remained whether the dealership was negligent regarding the hijacking or not.

The judge emphasized some important aspects about hijacking in South Africa:

• Hijacking is made more horrific, in the South African experience, as the threat of fatal violence accompanies this crime
• The victim of a hijacking in this country knows that his or her life is in great danger.
• It is self-evidently true that the life of a hijack victim is more valuable than the vehicle
• Although the reasonable motorist in this country was constantly aware of the possibility of being hijacked, the reasonable person had not undergone military training to enable him to meet the force of a hijacker.
• The driver did what was reasonable – left the vehicle behind to save his own life.
• A second driver would not have made any difference in the circumstances

The Judge concluded that neither the driver nor the dealership could be found to be negligent.

The unfortunate vehicle owner will hence have to suffer the financial loss of her hijacked vehicle….

Conclusion and advice

Hijacking is a harsh reality for vehicle owners in South Africa – and few are prepared and able to avert these challenges to vehicle ownership. There is no prior warning – and purchasing cover to protect from vehicle loss should not be delayed.

We would like to advise that the insurer be included in the process of purchasing a new vehicle. Insurance comparison and insurance decisions could be made before you sign on the dotted line to buy your vehicle.

Do not leave the dealership without peace of mind that your vehicle is insured!

Also View:

Avoiding Hijacking / Hijack Prevention Guidelines