Mary Banda has just scored an unexpected consumer victory. In the high court. Without a lawyer. But her joy - and that of anyone wanting to celebrate her win against a big corporation - may be short-lived. The judgment in the High Court in Johannesburg, which ruled that she doesn't have to pay for a luxury rental car she crashed, is being appealed.For the time being, though, the widowed beauty therapist is heaving a sigh of relief. Understandably so.When I wrote about Banda's sad tale a month ago, she owed R50, 000 in court postponement costs, faced her household goods being attached, and was staring down a R300, 000 damages claim.story_article_left1The odds were stacked against her: not only did First Car Rental (part of the Combined Motor Holdings group) have deep pockets to challenge her, she'd signed acceptance of the firm's waiver terms and conditions when she rented the Honda CR-V in 2011.The waiver - which all renters are obliged to agree to - excludes cover for accidents not caused by hitting something.So, despite having taken out the best waiver plan available, thinking she was "fully covered", Banda was still liable for damage sustained in "an accident not caused by physical contact with another vehicle, person, animal or object".Which means that when Banda swerved to avoid an animal on a road in the Free State, lost control of the car and crashed into a cliff face, she was had no cover.If she'd actually hit the animal (made physical contact) which caused an accident, she very likely would have had full cover.When Banda failed to make arrangements to pay off the R317000 First Car claimed she owed, it took her to court. Banda defended the action and when her lawyer died before the case went to trial in May this year, she represented herself.In a 13-page judgment handed down last week, Judge Motsamai Makume dismissed the claim.He based his findings on what he said was First Car's plea that "the damage was occasioned to the vehicle in circumstances where there was no physical contact with another vehicle, person, animal or object, alternatively as a result of driver negligence"."The question to be answered is ... is a hillside or the side of the road an object or not?" Makume said."The plaintiff argues that what the motor vehicle made physical contact with is excluded ... in other words, the insured motor vehicle did not make physical contact with an object. I posed a question to plaintiff's counsel: 'What then did the insured motor vehicle make contact with for it to sustain such serious damage?'mini_story_image_vright1"I could not get a clear, intelligible answer. Instead it was argued that if the motor vehicle had made contact with the cow or with another motor vehicle, then the damage sustained would have been covered."In my view, this explanation is not only absurd but flies in the face of what was intended by the parties," Makume said.First Car, however, said this week that the judge had quoted from an incorrect plea that its lawyer had originally submitted, but which had been amended two years before the trial.The company's strategy, development and marketing head, Melissa Storey, said the amendment had brought the wording of the exclusion into line with the rest of its statement of case - that the accident itself had not been caused by physical contact with another vehicle, animal or object."Our advocate made it clear to the judge that our case was that the accident had been caused by Banda losing control over the vehicle when she swerved, and it accordingly made no difference how the actual damage to the vehicle had been caused," said Storey."The judge, however, inexplicably and erroneously, quoted the old particulars of claim in his judgment ... He made a material and basic mistake in doing so."Storey said this had led to the judge confusing the issue of the wording of the clause, as he seemed to have based his judgment more on the fact that the damage was caused by contact with another object, which he described as being a cliff."The third mistake made by the judge is to equate the waivers set out in the rental agreement as being 'a typical short-term insurance contract' ... [while] the clear and unambiguous language of the terms and conditions specifically state otherwise," she said.The company's application for leave to appeal was filed on Wednesday.Banda, meanwhile, wants "other victims" to come forward to fight such exclusions, which are fairly standard across the industry.I asked Storey why such seemingly loaded contract terms existed in the first place."We are not out to get our customers; we merely need them to treat our cars like they would their own," she said.story_article_left2"The terms and conditions on this particular clause might seem broad, but we are unable to address each and every scenario that might transpire."She said most single-vehicle accidents had been proved to have "less plausible circumstances", which was why the industry treated them this way.But can't these clauses be written with more clarity and detail? For instance, if there are witnesses to a single-car accident, such cases are treated differently, but there's nothing about this in the fine print. Why?"It is impossible for us to highlight each and every eventuality in our terms and conditions ... [but] we are contemplating a revision to the terms and conditions, in an attempt to explain this clause in more detail. We will do so with the industry," said Storey.In Banda's case, the rental company's lawyer got it wrong (initially), the judge got it wrong (allegedly) and the customer got it wrong (sadly).If anyone wants a good reason to rewrite car rental contract terms, they need look no further.sub_head_start Contact Megan Power sub_head_endE-mail: consumer@sundaytimes.co.zaFollow Megan on Twitter: @Power_ReportTune in to PowerFM 98.7's 'Power Breakfast' (DStv audio channel 889) at 8.50am on Monday to hear more from MeganPlease note: Other than in exceptional circumstances, readers sending me complaints must be willing to be identified and photographed. ..