ONE FOR THE ROAD
Ever heard of the doctrine of the last clear chance of avoidance? If you are one of those who has ever experienced it first hand, you may know it better as right of way’s irresponsible cousin. You know — the one that gets away with murder simply because they refuse to take any responsibility for anything.
At least that’s what it has become over here in the Philippines. And that’s why it needs to be amended or abolished altogether. Simply because it has been abused by irresponsible drivers who use it as a legal avenue to claim damages — even when it was clearly their own fault.
For example, when a car enters a main road, either from a side street or driveway; everywhere else on earth, it is incumbent on the vehicle entering and merging with moving traffic to make sure it can do so safely. What happens here in the Philippines, however, partly because of this last clear chance doctrine, is we wait for just enough space to get our nose in, and then make it the other car’s problem to stop because we know that the enforcers will always blame the car that hit us — regardless if we gave that car enough room to stop or not.
But that wasn’t how it was supposed to be.
In its original intent, the last clear chance doctrine was supposed to define who had the “last clear chance” to avoid the accident in a case where there’s negligence or fault on both sides. Investigators would look to see who could have prevented the accident if they had the opportunity to avoid it, even though the other vehicle may have negligently contributed to the situation.
The doctrine is based on the idea that the last one in a position to avert the harm, should bear the responsibility for the accident and the resulting damages. And I can agree with that. To a certain degree. There are situations (like when an aggressive driver chooses to deliberately ram a car that finds itself accidentally caught in the yellow box of an intersection) where that’s helpful. But this is no longer how the doctrine is being applied over here.
Over the last 20 years or so as a road safety advocate, I’ve had the opportunity to interview countless drivers, lawmakers, enforcers and insurance professionals on this very topic, and in my experience, the doctrine has almost always been misused exclusively by drivers who do not want to accept responsibility for their own negligent actions. In fact, in many ways, it actually incentivized these drivers to act negligently, knowing that they can still recover damages if the car that hit them had the last opportunity to avoid the accident because it shifts the burden of responsibility entirely, even if their negligence was minimal compared to their own.
This gets exponentially worse in accidents in the provinces, especially on a holiday when no courts are open, where one driver is automatically held liable for accidents that were predominantly caused by someone else (be it a drunk rider or undisciplined pedestrian) and is also charged with reckless imprudence resulting in injury, damage to property or death.
I’ve dealt with so many cases where the driver is imprisoned for several days until a judge can grant bail or they can agree to a settlement. And all because a drunk motorcyclist was traveling down the wrong side of the road with no lights.
This is why we need to revisit the law and either amend it in a way where it closes all loopholes, or just abolish it altogether to make people accountable for their own actions. You drive drunk? Guilty. Unlicensed? Guilty. Wrong side of the road? Guilty. Driving like a kamote? Guilty. The right way to do this starts by recognizing the right of way instead of giving so many last clear chances.