A birthday trip overseas turned into a holiday from hell for two women after they crashed their rental car.

Now neither woman is on speaking terms and one has been ordered to pay the other almost $3000 to cover an insurance shortfall and other costs.

The friends, Elaine* and Olive*, had planned the trip overseas to celebrate Olive’s birthday.

Olive booked a rental car in her name and arranged insurance cover for all drivers.

On the day of the crash, Elaine was driving but failed to give way and collided with a car approaching on her left.

Both cars were written off in the crash, which Elaine blamed on Olive’s “shortcomings as a navigator”.

Olive was reimbursed $6000 of the $8891 she had to fork out to cover the damage, leaving a $2891 shortfall – so she lodged a claim with the Disputes Tribunal.

The tribunal had to consider if the driver was negligent, if the hirer contributed to negligence and any amount payable.

Tribunal referee Elizabeth Paton-Simpson said Elaine “offered various excuses” as to why she failed to give way.

They included confusion with the road layout, lack of in-car maps, Olive’s shortcomings as a navigator and a suggestion she had “leaned forward” blocking Elaine’s view of the give-way sign.

“The driver bears the onus of proving contributory negligence. Since contributory negligence has not been proven, the driver must bear full responsibility for the collision and its financial consequences,” Paton-Simpson said.

Birthday bash

Paton-Simpson said anyone driving a rental car hired by someone else has a duty of care towards the rental company, the hirer with legal possession of the car, and other road users.

“The driver’s legal duty is to drive carefully and in compliance with the applicable road rules,” she said.

Paton-Simpson said none of the matters forwarded by Elaine as possibly contributing to the crash would have caused a collision if she had exercised due care.

“Rather, unfamiliar roads and obstructed views are extra reasons to slow down, take greater care, and stop at an intersection if necessary, rather than bowling on through.

“A driver must drive to the conditions.”

She said the give way sign should have been noted before Olive allegedly blocked Elaine’s view by leaning forward.

The tribunal said an instruction “drive straight through” could not override the legal duty to take care and obey road signs, and “could not reasonably be understood to mean without giving way”.

“A driver is in charge of the car and cannot delegate their legal duties to an informal navigator,” Paton-Simpson said.

She noted Elaine had driven through not one but two give-way signs as she crossed a major highway, and the crash occurred on the far side.

“I find it inescapable that the driver was negligent,” Paton-Simpson said.

When considering if Olive had contributed to the negligence, the tribunal said Elaine objected to Olive failing to warn her there was a major highway coming up.

“However, it is not clear whether [Olive], who was relying on her phone, knew this.

“The roads were unfamiliar to both of them, and [Olive] was not a professional or trained navigator.

“I am unable to find that [Olive] was negligent in this regard,” Paton-Simpson said.

She said Elaine’s main contention was that Olive failed to take out adequate insurance cover when she had trusted her to get full cover.

The tribunal said according to insurance documents, Olive had bought what appeared to be full coverage, and was not persuaded she was negligent.

“The driver bears the onus of proving contributory negligence. Since contributory negligence has not been proven, the driver must bear full responsibility for the collision and its financial consequences,” Paton-Simpson said.

In awarding Olive the insurance shortfall and cost of a police report, details of which weren’t specified in the decision, Elaine was instructed to pay Olive $2941.

The tribunal also settled an agreement that formed part of the claim, that Elaine return a borrowed phone and laptop bag to Olive, who then had to return an oven.

The parties agreed to return the following items by leaving them for the other to pick up from the gate of Olive’s home.

They also agreed not to talk further about matters which formed the claim.

*Names have been anonymised in keeping with tribunal rules around suppression.