How a law from 1956 affects your car insurance claim in South Africa today

The Apportionment of Damages Act 34 which came into law in South Africa on 1 June 1956 still affects your car insurance claim today, and not in a particularly beneficial way.

In short, the law dictates that unless your vehicle was parked when you were in a car crash, you were partially responsible for the accident regardless of whose fault it was.

Consumer rights advocate Wendy Knowler therefore recommends that if you are in an incident where an insurance company must get involved, it’s best to claim from your own cover provider instead of trying to get a payout from the other driver’s insurer as this could see getting far less than what you are truly owed.

Not your standard claim

Speaking on The Money Show, Knowler explains that when you try to claim from another individual’s insurer it is not seen as a normal claim.

“You’re not the client of the insurance company, they are acting on behalf of their client and protecting their client from you having a legal claim against them for damages,” she said.

If you don’t have insurance, which applies to approximately two-thirds of the vehicles on the road, the only way to be compensated would be to claim from the other motorists’ insurer so you’ll have to take what you can get.

However, if you do have cover, it’ll be better to bite the bullet and go through your own insurance company. This will be quicker and you’ll get a full payout, minus the excess, of course.

Attempting to claim from the other driver’s insurer will bring into effect the Apportionment of Damages Act, and you will be on the hook for at least a portion of the other driver’s damages.

“As long as you’re behind the wheel and you’re moving, this law says that you had a responsibility to keep a proper lookout and to avoid accidents somehow… and therefore you are partly to blame, and so they apportion a percentage of the blame to you,” said Knowler.

In cases Knowler has been involved with before, the individual who claimed they were not at fault for the accident were still ascribed between 30-40% of the blame.

“[The other driver’s insurer] will accept that their client was maybe slightly more to blame, but they always apportion the blame to you,” said Knowler.

What happens thereafter is that the other party’s insurer will slash this 30-40% from the amount you are owed, and also force you to cover 30-40% of the expenses it accrued to repair its client’s vehicle and settle the case, leaving you with an insignificant payout.

Knowler referenced a recent case where an uninsured motorist asked her for help after being offered a measly R7,000 payout by another driver’s insurer, as the company deemed that the innocent motorist was at least 40% responsible for the accident.

Knowler reviewed all the evidence and got in contact with the insurer to negotiate a better deal, and the company conceded to reapportion the innocent motorist’s accountability to 20%, which saw the payout rise to R42,500.

This was much better than the initial offer, but not enough to cover the expenses surrounding the victim’s towing services and vehicle repairs.

“If you do have insurance, you don’t want to deal with that, you will rather get a full payout,” said Knowler.

“My message is, if you can afford insurance, please, please get your own insurance. If you already have insurance, no matter how not to blame you feel you are, the law is going to make you to blame to some extent unless your car was parked.”