The Zambian jurisprudence in liability case vis-a-vis Insurance law
Date
2013-05-09
Authors
Malilwe, Ian
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Abstract
It is a fact of life that human behaviour and conduct needs to be controlled for the sake of a peaceful society. Law generally, is designed to do just that. This paper will therefore look at how the branch of law on tort helps maintain and promote peace. As the law of tort is very wide, this paper will limit its discussion to Motor Third Party Liability and Employer's Liability. This is for the simple reason that it is the two branches of tort law which the Zambian population is more exposed to and which two branches, are quiet active in our court system. To further keep the discussion focused, the paper will predominately discuss mine accidents and the resultant liability court actions on one hand, and on the other, the commercial vehicles accidents, particularly those involving intercity passenger buses, and the liability court actions that follow. From the above discussion it is clear that one of aims of the law of torts is making the place we live in a better place, by dealing with those acts or deeds outside the province of Criminal and Penal laws. Liability Insurance's aim is also to ensure that the place we live in is a better one by offering financial planning solutions to the public at large, so that, the policy will pick up the financial obligations, for those found to be legally liable to third parties. These financial plans buy the unforeseen negligent or fortuitous events, from the insuring public by pooling of small premiums commensurate with the risk one wants covered. From these pooled funds, the fortunate many, make it possible for the Insurance Company to settle the financial exposure of the unfortunate few, small or large, through this risk transferring arrangement. Therefore we can say that, tort law deals with acts for which the tortfeasor is not liable for unless there are reasonably foreseeable and on the other hand insurance liability deals with reasonably foreseeable events but whose occurrence are uncertain or unknown. The common denominators are that they both deal with reasonable foreseeable accidents and both aim at ensuring a peaceful society for all. This therefore means that both tort liability and liability insurance deal with negligence, in that one determines how it arises while the other offers solutions through which a tortfeasor can absorb oneself from financial obligations that come with legal liability arising
therefrom.The paper will then endeavour to see what impact Liability insurance has on the law of torts vis a vis its deterrence objective. This paper is distinguished from Banda A. Ngoyi's directed research paper, University of Zambia, 2009 whose gist was the connection or nexus between insurance law and criminality with the following objectives:(i) To find out how Insurance Companies in Zambia handle indemnity insurance contracts;(ii) To ascertain how an insured person's criminal acts impact upon his claim in such contracts; and( iii) To underline the role of the Road Traffic Act in determining the liability of any offender who happens to be a motorist, with reference to claim under insurance policies. This paper is not concerned about criminal acts but unforeseen or fortuitous events of a defendant which shocks the conscious of mankind for being reckless or outrageous or for failing far below the expected standards of duty of care. The objectives are therefore to find out how:(i) Zambian courts treat reckless or outrageous behaviour in so far as it defeats the aim of tort to maintain and promote peace in the society:(ii) To ascertain whether Zambian court's award exemplary or punitive awards to deter these wrongdoers; and(iii) To investigate the impact of insurance liability settlement on tort liability damage awards and consequently how insurance liability settlements affect the deterrence aim of tort law.
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Insurance Policies-Zambia