Mahalapye woman sues Toyota for P7m over husband's death

Mbongeni Mguni | Friday May 24, 2019 14:08

 

Masego Philimon’s husband died after his Toyota Hilux single cab (2010 model) was involved in a head-on accident with a passenger bus.

Philimon’s husband was travelling alone at the time on the highway and road traffic investigators as well as witnesses said the vehicle had been driven straight into the bus, suggesting a suicide.

Five years later, however, Toyota contacted the widow as part of a recall of that particular make and model.

Philimon told Mmegi that she received a call from Broadway Motors, the dealership, who thought they were talking to her late husband. Unaware, the dealership asked her husband to return the vehicle as it was being recalled for factory faults.

“Broadway Motors Mahalapye called in 2017 asking us to return the car we had bought from them saying it had a factory fault.

“They told us the car was being recalled as it had no airbags and there was a fault with the spiral cables.

“That’s when we remembered that after the accident we had observed that the airbags had not deployed even though it collided with a bus,” she said.

Mmegi is informed that a technical study done on the vehicle after the accident showed that the steering mechanism locked, forcing the Hilux into the path of the bus.

The mechanism’s spiral cable was either faulty, incorrectly installed or non-existent, while the airbags were most likely absent from the vehicle, despite its specifications showing they were supposed to be installed.

Upon impact, no airbags deployed, the study allegedly shows.

The recall letter from Toyota reportedly identifies the spiral cable and airbags of this particular make and model as being faulty or non-existent. The recall letter asks owners of the vehicle to return it for replacement of the spiral cable and airbags.

Philimon took action against the dealership and later Toyota South Africa, after seeing the recall letter and the technical report.

Toyota offered the widow a settlement, but changed tune later saying her claim had come in too many years after the accident meaning any liability had elapsed.

In her court papers, Philimon who is represented by attorney Thata Noke, argued that her claim was delayed because she was only made aware of the faults in the vehicle when Toyota issued the recall in May 2017.

“They were not even aware the car was involved in an accident and that’s why they recalled it.

“Had they not called, I would have not been aware that the car had defects that possibly killed my husband. “I only became aware of the defects of the car when they informed me in 2017, years after the accident,” she said.

Philimon is arguing that the accident and death are a result of Toyota’s breach of duty and she wants P7 million in total compensation.

In its defence, Toyota South Africa says the claim elapsed because the plaintiff knew or ought to have known of the alleged wrong by July 2012. Toyota is leaning on the legal concept of prescription, which refers to the legal period within which a claim lies valid before elapsing.

According to its court papers, Toyota says even though the plaintiff claimed to have only known about the defects of the car when the dealer called her, the prescription of the claim started from the date of the collision.

“Prescription commenced to run against the plaintiff from the date when the wrong upon which claim for damages is based was first brought to the knowledge of the creditor or from the date when she might reasonably have expected to have knowledge of such which in this case was from the date of collision,” reads the company’s responding papers.

Toyota also claims Philimon’s husband had a role to play in the accident and thus there was a breach of care.

Judge Ranier Busang is set to pronounced judgement on the matter on August 23, 2019.