Q&A – 31 December 2018
Insurance denies claim, says I admitted liability
I met with a car accident whereby I drove past a stop sign, and a car ran into me. It was clearly my fault as I did not see the stop sign which was not all that visible. After the accident I was questioned by the police and I told them the truth. The insurance company is furious with me as I was supposed to ‘deny liability’, but I fail to understand how I could have not said the truth. The loss assessor who was appointed by the insurance company has also been using different pressure tactics like trying to convince me not to hire a lawyer and initially telling me I wasn’t covered. I have demanded a written response from the insurance company who are delaying writing to me, Please guide me on my legal rights?
FB, Dar
We assume you have a comprehensive insurance cover which should cover such accidents. Insurance companies do write on all their car stickers not to admit liability, but saying the truth to the police is absolutely important, and we do not see that as an admission. Even if it were an admission, it does not mean your claim can be thrown out like this. You have the option of writing to the Tanzania Insurance Regulatory Authority, which has a unit that handles such matters.
Alternatively, you can wait for the letter from the insurance company and proceed sue them.
You must remember that no matter how sweetly the insurance loss assessors speak to you, she/he works for the insurance company with an objective of reducing the claim to the minimum. These pressure tactics are also quite common as are statements like the claim is not covered to reduce your expectations.
Questioning by police
Can a police officer start asking a suspect questions without following some procedures? In other countries, there is a strict protocol to follow including informing the suspect their rights before one can be questioned. I ask this because one of my colleagues was arrested and was aggressively questioned without being told his rights.
FR, Dar
Questioning in criminal law is governed by the Criminal Procedure Act which states the following clearly and unambiguously in section 53: Where a person is under restraint, a police officer shall not ask him any questions, or ask him to do anything, for a purpose connected with the investigation of an offence, unless– (a) the police officer has told him his name and rank; (b) the person has been informed by a police officer, in a language in which he is fluent, in writing and, if practicable, orally, of the fact that he is under restraint and of the offence in respect of which he is under restraint; and (c) the person has been cautioned by a police officer in the following manner, namely, by informing him, or causing him to be informed, in a language in which he is fluent, in writing in accordance with the prescribed form and, if practicable, orally– (i) that he is not obliged to answer any question asked of him by a police officer, other than a question seeking particulars of his name and address; and (ii) that, subject to this Act, he may communicate with a lawyer, relative or friend.
A critical right is access to a lawyer or friend as the law does not want suspects to make statements without presence of some support for the suspect, which is their right whether or not the suspect is guilty or not.
Section 54 further states that (1) Subject to subsection (2), a police officer shall, upon request by a person who is under restraint, cause reasonable facilities to be provided to enable the person to communicate with a lawyer, a relative or friend of his choice. (2) A police officer may refuse under subsection (1) for the provision of facilities for communicating with a person being a relative or friend of a person under restraint, if the police officer believes on reasonable grounds that it is necessary to prevent the person under restraint from communicating with the person for the purpose of preventing– the escape of an accomplice of the person under restraint; or the loss, destruction or fabrication of evidence relating to the offence.
You can see from the above that there are cases where the police officer may deny the suspect from making a call to a friend or relative.
Liability of directors
My lawyer says that if I am a non-executive director, I cannot be held responsible for the actions of the company. Is that true? What can I do to protect myself?
FF, Dar
It is not true. Directors have a fiduciary duty towards the company and its shareholders. Additionally, it is untrue that the directors can walk scot free, even if in a non executive position, from the conduct of the company.
Infact even under the Companies Act, Income Tax Act, VAT Act, Tax Administration Act, National Security Act, Anti Money Laundering Act, to mention a few, directors can not only be held personally liable for the actions or inactions of a company but may also be imprisoned if they do not exercise reasonable diligence in their duties.
We recommend that you only be a director of companies with proper governance in place and get a director’s liability insurance which however will not cover you for any criminal actions although your legal fees may be covered.