CHAPTER ONE

GENERAL INTRODUCTION

This chapter provides evolution of the concept of road traffic accidents in the background to the study, discusses the problem that necessitated the research, the methodology employed, the objectives to be achieved and the significance and justification for the study, amongst others.

 BACKGROUND TO THE STUDY

With the advent of industrialisation mobility rate increases since the was a constant need for the movement of people and goods from one place to another as a result of geometric advancement in technology leading to an increased in the production of goods and services, hence the need to foster it transportation from the market place to the place of consumption. This led man in the constant urge to develop a faster mean of transportation to facilitate the movement of goods in the industrial era.^[1] As a consequence the advent of automobile emerge in Germany and France in the late 1800. Though American’s quickly came to dominate the automotive industries in the first half of the 20^th century.^[2] The first automobile was invented in form of horseless carriage with the speed of 5 miles per hours. This vehicle was owned by very rich people in the society so not everybody could afford them. The list of car owners increased when the MODEL T came in to being.^[3] Model T was relatively cheaper and off course affordable. The demand for cars became relatively high leading to an increase in production. This eventually led to an increased in the rate of accident and mortality rate. Such accidents had a negative impact on the economic and social life of the community at large.^[4] They became and increasing need to seek for a mechanism to redress this misfortune. This could be done by providing compensation for damages suffered by victims as such.

  In the 19^TH century, victims of motor accident could claim compensation based on the common law system of tort which enable a person who suffered injury as a result of someone else’s fault. To hold the party at fault liable so as to obtain compensation for the financial loss he has suffered. That is justice and equality in all aspects.^[5] An action under common law can only be brought against a party at fault, so the plaintiff is duty bound to proof that, the accident  wouldn’t have occurred but for the negligence act of the defendant.^[6] If it can be established that the victim was himself a party to be blame, the fact of contributory negligence arose. This may exonerate the defendant from liability hence he would not be compensated.^[7] In that same line of reasoning there exist several legal doctrines that can completely bar the plaintiff from recovery. Not only is the plaintiff duty bound to proof the defendant negligence conduct, he is required to adduce sufficient evidence that confirm to the orthodox principal of proximate cause.^[8]

It is worthy of note that, prior to the introduction of automobile, the negligence concept had already planted it root deep down social regulations. Hence, implementing this concept entails that ownership of a vehicle could result to a civil liability in the course of the accident.^[9] Nevertheless, the tort principle of common law with regard to compensation became defective. This is because it was difficult to proof that the defendant acted negligently or that he is at fault. In most cases accidents occur within a twinkle of an eye.^[10] There was also problem of deducing evidence before the court which required a witness to perceive, recall and most especially narrate accurately what had occurred in a split of second, have been described as “too tudious a task for a human being”.^[11]

Moreover, most victims of road accident are not compensated under the fault system. Thus, there was a great need to adopt a possible solution to better protect victims of motor accidents. That is why liability insurance was adopted in 1898 with the purpose that the owner of a car be held accountable for accidents resulting from the used of his vehicle. A motor vehicle was considered then as a “dangerous instrument”. This was because it causes loss and damages to human nature. As a consequence, the owner of the vehicle is held liable for all the damages resulting from the use of his vehicle.^[12]

In insurance, for instance, property insurance is consensually based, in which the insurer agrees on the consideration of a premium to indemnify the insured against a specific loss covered, which must be uncertain. In this regard the contract places obligations on the insurer in the event of an accident.^[13]Infact, the contract was between the insured and his insurer to the extent that whenever the policy was concluded the insured was RES Inter AliosActa.^[14] As such liability insurance policy did not cover third parties. This is because it was centered on the privity of contract doctrine there by binding only the driver and the insurer and did not extent to cover non-driver victims. Since they were not in themselves parties to the contract. This however was problematic because such third parties were equally victims of motor accident. The legislature, legislated further to provide policies that covers all the victims of a motor accidents thereby, providing compulsory motor insurance or third party liability insurance.^[15]

 The Royal Commission under the Road Traffic Act of 1930 was the first to introduced compulsory motor insurance in England.  France on it part, compulsory insurance was mandatory for all motorists in 1958 as per law No.208 of 27 February 1958 and Decree No.59-135 of 7 January 1959.^[16]

In Africa several countries incomporated compulsory insurance in their legislation. In Nigeria for example, this was made possible by the Motor vehicle (Third Party Insurance) ACT in 1948. In Sierra leone it was introduced by the Third Party Insurance Ordinance by 1949. However in Cameroon compulsory motor insurance was introduced by Law No.65-LF-O9 of 22 may 1965 to regulate insurance policies on third parties.^[17] The ideology behind the introduction of motor insurance was that circulation of vehicles on roads posed a great risks to road users. The consequences of which risks the car owner to the bearer.

Modern insurance developed only after the 19th century[18]. With the coming of the Europeans, they initiated huge projects that required lots of risks. These projects include the construction of bridges road and railway lines. Due to the amount of risk involved, need arose to develop a special insurance scheme and this led to the development of the modern insurance system obtained today. While English speaking Africa adopted English insurance pattern. French speaking Africa adopted French insurance patterns[19].

Until 1950, there were no indigenous insurance companies in Cameroon. Insurance contacts were mostly signed with the companies established in France and Britain. The companies appointed local agents to represent them. The first of these insurance companies was the Royal Exchange Assurance[20] which was based in Nigeria but later on moved to Cameroon in 1960. Also, in the Francophone parts of the country, insurance companies operating by 1953 were Groupement Français d’Assurance, later known as the Assureurs Conseils Camerounais; Agence de Compagnie Française later known as Société Camerounaise d’Assurance et de Réassurance and Assurance Générale de France now Chomas et Privat d’Assurance.[21]

With the advent of independence, the Cameroon government became involved in all spheres of economic life of the country. Thus legislation was passed to organise insurance companies in the country. The first of this legislation were Ordinance N°62-DF-036 of 31st March 1962 fixing the law applicable to the operation and organisation of insurance companies and Regulation N° 62-DF-437 of 18 December 1962 stipulating regulations relating to the investments of insurance organisation in the Federal Republic of Cameroon. However, some foreign companies were merged to form domestic companies but these companies maintained very close ties with parent companies either in France or Britain. This was the case with Assurance Mutuelles Agricoles du Cameroun (AMACAM) which was established in 1965. Originally it took the form of Mutual Company but later lost it character as a Mutual Society and operated more like a joint stock company.

Today, there are sixteen national or domestic insurance companies Axa Non Life Insurance Company, Axa Life Insurance Company, Société Africaine d’Assurance et de Réassurance (SAAR), Compagnie Nationale d’Assurance (CAN) now called la Citoyenne, SNAC Life Insurance Company, SNAC-Geacam Non-Life Insurance Company SA, Cameroon, Insurance Company (CAMINSUR), Satellite Insurance, Beneficial Life Insurance Company, Beneficial Non-Life Company, All Life Insurance Company, Compagnie Professionelle d’Assurance (CPA), Activa Assurance, Chanas Assurance, Guarantie Mutuelle des cadres (GMC) and Fond de Retraite Allucam. The government participate in at least 50% of the registered capital of the companies. The above insurance companies control the majority of the Cameroon insurance Market. Premium income of insurance companies operating in Cameroon is increasing at a very substantial rate[22].

Cameroonian law before 1989 reflected the fault principles as the legal basis of compensation of victims of road accidents. An injured person could only recover compensation if he proof that the defendant was at fault or acted negligently against him.^[1] The traditional fault system did not adequately addressed the victim demands to compensation which led to a tide of criticism from both judges and legal scholars.^[2] According to professor R.E KEETON and J.O’Connell “it provides too little, too late, unfairly allocation at wasteful cost and through means that provides dishonesty against the law”.^[3]  This is because, damages were usually allocated subjectively and discretionarily at the instance of the judges and courts. The court could minimise, moderate or exaggerate the amount of damage to be paid to the victims according to the whims and caprices of each judge. For this reason, insurance companies decried the fact that the total cost of compensation were usually very high as compare to the sum of money pad as the premium. This made dramatic change imperative.