Paying for someone else’s mistake

2015-04-14 15:00

If a driver jumps a stop sign and crashes into you, you could find yourself liable for damages, writes Maya Fisher-French

When Chantal’s car was written off by a driver who jumped a stop sign, she was confident the driver’s insurance would cover the full damages to her vehicle, as her own insurance was only for third party, fire and theft.

To her shock, not only was the insurance company not prepared to pay the claim, but considered her legally liable to cover some of the damages to the other vehicle, even though the accident was caused by the other driver.

This is due to rules set out in the Apportionment of Damages Act 34 of 1956 that stipulate how much liability each individual carries in the case of an accident. Contrary to common understanding, there is in fact no such thing as a complete right of way on a road in South Africa.

What this means is that a driver has the responsibility to take precautions when entering any intersection. The driver must also be seen to take evasive action to try to avoid any accident. In this case, the insurance company in question, OUTsurance, found that, based on relevant case law, the location of the damages, the accident scene and their client’s version of events, the apportionment was 60-40 in favour of Chantal.

However, due to the extent of damages to the other vehicle, this worked out to a negative offer, which would have meant Chantal would have had to pay OUTsurance for damages to its client’s car.

As a result, OUTsurance made the offer that each party bear their own costs.

As Chantal only has insurance to cover the costs of damages to another vehicle, she is in a situation where she has to find the money to buy a new car with nothing more than the cash she might expect to receive from a salvage company.

Marius Neethling, Santam’s personal lines underwriting manager, confirms that OUTsurance’s interpretation of the law is correct.

“There are instances where, even though the other person is legally liable against a Santam client, it is still determined that the Santam client contributed to the damage. When defending or settling a claim, we will take the Santam client’s percentage of the contribution to the damage into account,” says Neethling, basing his view on another scenario in which a driver jumped a red traffic light and collided with a Santam client’s vehicle.

“The liability aspect from the Santam client’s side could be where, under the circumstances, he or she could have done something to avoid the collision, but failed to do so – such as having swerved aside, as there was space and time to allow it.”

Neethling explains that, under the act, the value of the Santam client’s loss will be reduced by the percentage of his or her contribution to the loss or damage.

Although OUTsurance has subsequently increased its offer to 70-30, Chantal is still having to fund a significant portion of her losses.

Chantal’s story highlights the need for comprehensive insurance – not only because you can be held liable for other people’s driving mistakes, but because people are not always truthful or have a different version of events. Your insurance company will have more legal muscle to fight the dispute and argue the ruling on the apportionment of damages.

Natasha Kawulesar, head of the legal department at OUTsurance, says one of the difficulties in deciding on the apportionment of damages is that it often comes down to one driver’s word against another.

“Where we get different accounts of the event, we accept our client’s word over the other party if there is no independent witness.”

Whether you are fully insured or not, always make sure you get as much evidence about the accident as possible, even if you were the cause of the accident. If you jumped the stop sign, the other driver could be held responsible if he or she was speeding. If you were not responsible and are able to demonstrate you took evasive action, you may not be liable for any damages.

.?Take photographs of both the vehicles and the accident site from several directions.

.?Try to find someone who witnessed the accident – this person must be an independent witness.

.?Some insurance companies, such as Santam, have apps that allow you to capture the information and photographs, which can be sent to the insurer immediately.

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