Why Do Innocent Drivers Still Pay?

Third Party Motor Claims : Fair Payouts Often Need a Fight

Being involved in a car accident when you don’t have comprehensive motor insurance can be devastating enough. However, many South African motorists are completely unprepared for the harsh reality of third party insurance claims and the principle of “blame apportionment” that can leave them drastically out of pocket for their losses.

If you are involved in an accident and your vehicle is not comprehensively insured, you can make a claim against the other driver, provided you were not at fault. What most people do not realize is that generally, unless your vehicle was completely stationary at the time of impact, the other driver’s insurer will likely hold you partially responsible for the accident, significantly reducing any potential payout, often using “failure to keep a proper lookout resulted, or partially resulted, in the collision” as a reason.

 

The Harsh Reality of Blame Apportionment

Recent cases highlight just how problematic third party claims can become. Take the experience of JD Koekemoer from Midrand, whose case illustrates the challenges many South African motorists face when dealing with third party insurance claims.

Koekemoer was involved in what he describes as “the most South African of accidents” – a collision at an intersection with non functioning traffic lights. Despite treating the intersection as a four way stop, waiting his turn and proceeding when safe, Absa Insurance initially held him 30% responsible for the accident.

The insurer’s reasoning? “Failure to keep a proper lookout and thus avoid the collision” – a standard catch all phrase used to assign partial blame to third party claimants.

 

The Financial Impact

The financial consequences of blame apportionment can be severe. In Koekemoer’s case:

• Absa Insurance assigned him 30% blame for the accident
• They reduced his repair quote by R40,000 based on their own desktop assessment
• After applying the 30% blame apportionment, he was offered just R26,000
• This was nowhere near the actual repair costs for his Chery Tiggo and damaged bicycle (the bike alone required R19,000 in repairs)

This represents a large shortfall that would have left Koekemoer unable to properly repair his vehicle, despite being the innocent party in the accident.

 

The Legal Framework Behind Blame Splitting

Third party insurance claims in South Africa are governed by the Apportionment of Damages Act. Under this legislation, the burden of proof rests entirely on the third party claimant. As insurance companies explain it: “The driver claiming damages must prove the other driver was negligent on a balance of probabilities and provide proof that they could not have prevented the accident in any way.”

This creates an extremely high standard for third party claimants. Insurers routinely argue that even innocent parties could have done something differently to avoid the collision, leading to reduced payouts through blame apportionment.

 

What Our Risk Advisors Say

From a risk advisory standpoint, these cases highlight several critical issues with the current third party claims system:

Desktop Assessments vs Reality: Insurers often rely on desktop assessments that can significantly undervalue actual repair costs. In Koekemoer’s case, the insurer’s initial assessment was R40,000 lower than quotes from qualified panel beaters who had physically inspected the damage.

Presumption of Shared Blame: The law often allows payouts to be minimized by giving credence to moving vehicles bearing some responsibility for accidents, regardless of the actual circumstances.

Burden of Proof Challenges: This requires the third party to prove they could not have prevented the accident, which is a significant evidential burden.

 

The Power of Evidence

Koekemoer’s case took a positive turn because he had invested in a dashboard camera that recorded the entire incident. The footage clearly showed that he had kept a proper lookout and that the other driver had proceeded without a clear view of the intersection.

Armed with this evidence and professional advocacy, Absa Insurance eventually reversed their decision and covered the full costs of the accident “as a gesture of good faith.” The final settlement of just over R84,000 was R58,000 more than their original offer.

 

What This Means for You

If you are currently driving without comprehensive motor insurance or considering reducing your motor cover to save money, these realities should factor heavily into your decision:

Third Party Claims Are Unpredictable: Even when you are clearly not at fault, you may receive substantially reduced compensation due to blame apportionment calculations.

Legal Costs Can Mount: Challenging blame apportionment decisions often requires legal intervention or professional advocacy, adding to your costs.

Evidence Is Crucial: Without clear evidence like dashboard camera footage, proving your innocence becomes significantly more difficult.

 

Protecting Yourself: Practical Recommendations

Invest in Comprehensive Cover: While more expensive, comprehensive motor insurance protects you regardless of who is at fault and eliminates the uncertainty of third party claims. Take the opposite view – think of your potential financial risk if you are 100% at fault and you are not comprehensively insured. You would be legally responsible for damage to other cars and property (buildings etc.), including any injury expenses to people – this could cost millions of Rands and spell financial ruin.

Consider Installing a Dashboard Camera: This relatively small investment can provide crucial evidence in accident disputes and significantly strengthen your position in any claim.

Document Everything: In any accident, gather as much evidence as possible, including photos, independent witness statements and detailed incident reports.

Seek Professional Advice: A qualified Risk Advisor can help you understand your options and ensure you have appropriate cover for your circumstances. They act as the go between yourself and the insurer, ensuring fair and prompt claim settlements.

Do Not Accept Initial Offers: Third party settlement offers can be significantly below fair value. Having a professional in your corner can make all the difference in outcomes.

 

The Bottom Line

The third party insurance system in South Africa is heavily weighted in favour of insurers, who may use blame apportionment to minimize payouts even to innocent parties. While legal frameworks exist to protect your rights, the practical reality is that pursuing fair compensation requires evidence, persistence and often involves professional legal support.

If you are currently uninsured or if you do not have full comprehensive motor insurance cover, we strongly recommend reviewing your position with a qualified Risk Advisor who can explain your options and help you make an informed decision about the level of insurance protection you need.

Remember: insurance is about protecting yourself from financial disasters that could take years to recover from. Review your cover now. Don’t learn this lesson the hard way.

*This article was based on a recent article on News24 by Wendy Knowler