RECOVERING DAMAGES IN UBER RELATED ACCIDENTS IN KENYA: A CASE FOR SUING UBER

Introduction

This paper seeks to make a contribution towards one of the frequently asked questions which is whether Ride Share Companies such as Uber can be held financially liable for injuries sustained when one is involved in an accident involving an Uber or any other ride share vehicle in Kenya either as a passenger, bystander or another driver. It does that by presenting a case for how damages can be recovered from Uber related accidents in Kenya.

Emerging jurisprudence

The question as to whether Uber companies or any other ride share vehicles can be held financially liable for injuries sustained when one is involved in an accident involving an Uber either as a passenger, bystander or another driver may seem straightforward on the face of it but in actual sense it doesn’t seem to have a straightforward answer. In fact, the answer will be different depending on the jurisdiction in which such an accident occurs.

For instance recently in San Francisco, a six year old named Sofia Liu was crossing a San Francisco street on New Year’s Eve 2013 with her mother and brother when an Uber driver named Syed Muzzafar struck and killed her with his car. The driver was driving for Uber at the time, using Uber’s app on his mobile phone to find his next fare. Sofia Liu’s family sued Uber, but Uber while maintaining that Uber drivers are independent contractors and not company employees argued that it was not liable for the accident and refused to provide compensation to the Sofia Liu’s family because the driver was not transporting any passenger.[1] Eventually the family reached a settlement with Uber in the lawsuit stemming from the death of Sofia Liu.

In Kenya, suits against Uber and other Ride Share Companies have mainly revolved around the question of employment law on employer-employee relationships. However, the judiciary is yet to make a final determination on the issue which falls on whether or not an employer-employee relationship exists between the Ride Share Companies and their drivers. In Edward Mungai Waweru v Samson Ochieng Kagunda & another[2], the High Court held that the law would permit the recovery of damages by a person for torts committed by another where the relationship between them and the interest of the one in the conduct of the other was such as to render the situation analogous to that of an employee acting in the course and scope of his or her employment or where in the eye of the law the one was in the position of the owner’s servant.

Unfortunately, the Ride Share Companies have always maintained the position that their drivers are independent contractors and not employees. The Labour Relations Act[3] and Employment Act do not define the term independent contractor but Black’s Law Dictionary[4] defines the term as one who is entrusted to undertake a specific project but who is left free to do the assigned work and to choose the method for accomplishing it. Such a classification means that they are not employees of the Ride Share Companies and as such the companies cannot be held vicariously liable for the acts and/or omissions of their drivers.

Consequently, in the event that one is injured in an accident involving an Uber or any other ride share vehicle in Kenya, then such a person should file a personal injury claim against the owner of the motor vehicle seeking to recover from the vehicle’s insurance policy. This is due to the fact that all Ride Share Vehicles in Kenya are required to have a valid Passenger Service Vehicle (PSV) Insurance.[5] This current position seems to be unfair in the sense that, in as much as Uber for instance purports to connect individuals to each other for purposes of exchanging services, it draws quite a sizeable profit of 25% commission on each driver’s earnings[6] and seems to exercise some level of control over the underlying commercial transaction between the driver and the passenger. It only follows, that from whom much is given; in terms of commissions and profits made from the Kenyan market, then much ought to be expected, in terms of liability for torts committed by its drivers and safety of its passengers and road users mingling with Uber and other ride share vehicles in their day to day activities. More so, because the victims in such cases would be undercompensated if the drivers holding third party PSV insurance were the only ones held to be liable.

However, all is not lost, for such victims. Following the wrongful death suit filed by Sofia Liu’s family, the legislature in California passed an amendment to regulate ride share companies and require that they carry adequate insurance for their drivers. The amendment popularly known as the California Vehicle Code 5430[7]provides that ride share companies such as Uber should carry $1 Million insurance for death, personal injury and property damage. It also requires the companies to carry $1 Million in uninsured and underinsured insurance both covers applying from the moment a passenger boards until they exit the respective vehicle.[8]

Therefore, in a situation in which an uninsured vehicle negligently hits a ride share vehicle during a ride share ride, the passenger should be able to recover damages under the insurance cover while the driver should successfully claim damages for all his or her personal injury and property damage under the policy. However, as per the rider in the law, both the passenger and the driver can only claim from the policy if the driver was using the vehicle for ride share purposes; and not personal use. In the second scenario, the passenger will only claim from the driver’s personal insurance policy. Furthermore, in a situation where the at-fault driver does have insurance, then the claim is brought against his or her policy for all damages incurred, that is to say, damages to both the passenger and ride share driver as well as property damage to the ride share vehicle. In the event that the limits of the at-fault driver’s insurance are reached, the ride share company’s underinsured motorist coverage will then step in to cover any additional medical expenses incurred, so that those injured by negligent acts or omissions of the driver receive the maximum compensation possible. Lastly, if the driver at fault does not have insurance cover, then a successful claim can be made on the uninsured insurance cover policy that provides coverage when the policyholder is in an accident with someone who does not have insurance[9].

In Kenya, Uber for instance has partnered with insurance firms to provide protections similar to those afforded under the California Vehicle Code 5430. For instance, it has partnered with Jubilee Insurance such that drivers on Jubilee’s Enhanced Comprehensive cover shall get a personal cover of up to Kenya Shillings Five Hundred Thousand (Kshs. 500,000/=) for accidental death or permanent disability, passenger legal liability of up to Kenya Shillings Twenty Million (Kshs. 20,000,000/=) and third party property damage cover not exceeding Kenya Shillings Ten Million (Kshs. 10,000,000/=)[10]. It also partnered with First Assurance Company Limited to provide riders with personal accident insurance cover on every trip taken on the app[11].

Noble as this may be, there is no requirement on the part of owners of the vehicles to take up the comprehensive cover offered by Jubilee or the other insurance companies that Uber has partnered with. The same is still left to the discretion of ride share vehicle owners. In order to maximise on the benefits offered by the said covers, it is the recommendation of the author that a clause be included in the draft Traffic (Digital Hailing Service) Rules, 2020 aimed at regulating digitally hailed taxis that have penetrated Kenya’s public transport, making it mandatory for Taxi Hailing Services Providers such as Uber to take up insurance to cover accidental death or permanent disability, passenger liability as well as third party property damage. In line with the California Vehicle Code 5430[12], the Taxi Hailing Service Providers should also be required to take up uninsured and underinsured insurance covers with reputable insurance companies in Kenya.

Lastly, this paper hopes that Kenyan courts will have opportunities to build enough jurisprudence to make the determination that ride share drivers are employees of ride share companies and not independent contractors similar to the one made by the Superior Court of the State of California County of San Fransisco in The People of the State of Califormia v Uber Technologies Inc, A Delaware Corporation; Lyft, Inc., A Delaware Corporation; And Does 1-50, Inclusive[13].In that case the court ordered Uber and Lyft to classify their drivers as employees following a complaint filed by the Attorney General of California, joined by the City attorney of Los Angeles, San Diego and San Francisco in which their assertions were that Uber and Lyft have misclassified their ride-hailing drivers as independent contractors rather than employees in violation of the Assembly Bill No. 5 (2019-20 Reg. Sess) (A. B. 5) which is intended to ensure that all workers who meet its criteria receive the basic rights and protections guaranteed to employees under California Law.

Such a determination would have the attendant effect of making the Taxi hailing Service providers or Ride Share Companies vicariously liable for the acts and/or omissions of their drivers. Holding the said companies vicariously liable will ensure that victims have an opportunity to vindicate their rights against the entities that stand to benefit from the driver’s activities while shifting the burden of non-recovery away from the victim[14]. This will then impel the Ride Share Companies such as Uber, Bolt, SWVL and Little cab operating in Kenya to impose greater safety measures on the drivers, hold them professionally liable for their negligent acts and most importantly force the said companies to take out adequate insurance covers to guard against such risks.

Conclusion

In conclusion, this paper set out to discuss the question as to whether ride share companies such as Uber can be held financially liable for injuries sustained when one is involved in an accident involving an Uber; either as a passenger, bystander or another driver in Kenya. It established that the law in Kenya is not clear on the issue and victims are only left with the option of claiming against the insurance covers taken by the owners of the ride share vehicles. The paper borrowed heavily from an amendment made to Californian Law and makes an argument for inclusion of a clause in the draft Traffic (Digital Hailing Service) Rules, 2020 making it mandatory for the ride share companies to take up insurance that covers accidental death or permanent disability, passenger liability and third party property damage as well as uninsured and underinsured insurance covers. It relied heavily on the recent case from the Superior Court of the State of California County of San Fransisco in The People of the State of Califormia v Uber Technologies Inc, A Delaware Corporation; Lyft, Inc., A Delaware Corporation;as well as the case of Sofia Liu.

The major finding of this paper is that Taxi hailing Service providers or Ride Share Companies ought to be made vicariously liable for the acts and/or omissions of their drivers. Holding the said companies vicariously liable will ensure that victims have an opportunity to vindicate their rights against the entities that stand to benefit from the driver’s activities while shifting the burden of non-recovery away from the victim.

*LL.B (Hons) (Moi), PGD (KSL), LL.M (UON), MCIArb, Associate, Kipkenda & Company Advocates, Advocate of the High Court of Kenya.

[1] McPeak, Agnieszka, Sharing Tort Liability in the New Sharing Economy (December 12, 2016). Connecticut Law Review, Vol. 49, No. 1, 2016, University of Toledo Legal Studies Research Paper No. 2017-02, Available at SSRN: <https://ssrn.com/abstract=2776429>.

[2] [2017] eKLR

[3] No. 14 of 2007

[4] Garner, B. A., & Black, H. C. (1999). Black’s Law Dictionary. 7th ed. St. Paul, Minn.: West Group, 2252.

[5] Uber, ‘Vehicle requirements in Kenya’ 2020 <https://www.uber.com/ke/en/drive/requirements/vehicle-requirements/> accessed 30th August, 2020.

[6] Nation Beta, ‘City online app taxi drivers protest over reduced earnings’, 2019 < https://nation.africa/kenya/news/city-online-app-taxi-drivers-protest-over-reduced-earnings-186354> accessed 30th August, 2020.

[7] California Legislative Information, ‘Transportation network companies: insurance coverage’ (2013-2014) < https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201320140AB2293> accessed 30th August, 2020.

[8] Ibid.

[9] Mala Sharma, ‘Recovering Damages from Accidents involving Uber Drivers’, (American Bar Association, 9th December, 2019) < https://www.americanbar.org/groups/gpsolo/publications/gpsolo_ereport/2019/december-2019/recovering-damages-accidents-involving-uber-drivers/?q=&fq=(id%3A%5C%2Fcontent%2Faba-cms-dotorg%2Fen%2Fgroups%2Fgpsolo%2F*)&wt=json&start=0 > accessed 30th August, 2020.

[10] Business Daily, ‘Uber, Jubilee sign insurance deal’ 2018 < https://www.businessdailyafrica.com/corporate/companies/Uber–Jubilee-sign-insurance-deal/4003102-4724334-o8oyl8z/index.html> accessed 30th August, 2020.

[11] Uber Blogs, ‘Ride Uber with total peace of mind’ 2017 < https://www.uber.com/en-KE/blog/nairobi/ride-uber-with-total-peace-of-mind/> accessed 30th August, 2020.

[12] Supra Note 7

[13] California Department of Justice, ‘The People of the State of Califormia v Uber Technologies Inc, A Delaware Corporation; Lyft, Inc., A Delaware Corporation; And Does 1-50, Inclusive’ (2020) < https://oag.ca.gov/system/files/attachments/press-docs/2020-05-05%20-%20Filed%20Complaint.pdf> accessed 30th August, 2020.

[14] Alan O. Sykes, The Economics of Vicarious Liability, 93 YALE L.J. 1231, 1235 (1984) when reviewing the economic implications of vicarious liability versus personal liability he makes the argument that agents are often individuals of limited means, while principals are often wealthier individuals.

BP2O3145
JESSICA NJERI M’MBETSA
Associate, Advocate of the High Court of Kenya

Comments (2)

Josephat

Nice

Angela Mwadumbo

Quite insightful.

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