“I was in a motor vehicle accident recently and instituted civil action against the third party to cause the accident. At trial I won the case and the Magistrate found that the third party was in fact negligent and gave a judgement of 80%/20% in my favor. To my surprise I now owe the third party an amount of R25 000.00 even though the court ruled in my favor. How can I owe the third party any money if the judgment was in my favor?”
To correctly answer your question, one should start to explain the cause of action, i.e. the basis on which summons is issued followed by the explanation of the provision of the Apportionment of damages act.
With any motor vehicle collision whether you are claiming damages of your vehicle from a third party or whether you are claiming damages from the Road Accident Fund for general damages, the cause of action remains the same being that of a delict.
A Delict is defined as a term in civil law jurisdictions for a civil wrong consisting of an intentional or negligent breach of duty of care that inflicts loss or harm and which triggers legal liability for the wrongdoer; however, its meaning varies from one jurisdiction to another.
Thus, if one takes the example of a motor vehicle accident a delict will be a negligent breach of a driver’s duty of care (i.e. failure to stop at a stop sign) that inflicts loss (i.e. damage to your vehicle).
To determine liability the Courts will first establish liability i.e. who was at fault or who was negligent (cause of the accident) whereafter the court will determine the quantum (i.e. the amount of damage).
In order to establish fault, the court will rely on evidence by both drivers and/or witnesses who can testify to what happen at the time of the accident i.e. who had the right of way, was traffic regulated by a stop sign and so forth.
In all these types of claims the provision of the Apportionment of damages act will be pleaded by the other party, which entails that the court must also consider the negligence of the plaintiff when determining who was at fault and if found that the plaintiff’s negligence contributed to the accident to which extend such negligence contributed and that the damage suffered by the Plaintiff be reduced with the percentage negligence.
It is because of this legal principle that a claim for damage suffered by the Plaintiff may be reduced should the court be of the opinion that the Plaintiff contributed to the accident.
Taking the set of facts mentioned above into account in all likelihood the Court found that the Plaintiff’s negligence contributed 20% to the accident and rendered a judgment of 80%/20% in favor of the Plaintiff.
After finding in favor of the Plaintiff the Court then took this division of 20%/80% and applied that to the quantum (i.e. the amount of damages suffered by the parties).
This would have resulted and had the effect that the Plaintiff was entitled to 80% of his proven damages and the Defendant was entitled to 20% of his proven damages. Thus if the damages suffered by the Defendant was substantially more then the damage suffered by the Plaintiff a weird scenario would have transpired in that the Plaintiff would need to pay the defendant a certain amount.
This situation can be easily explained at the hand of the following example:
The Plaintiff is the owner of a Toyota corolla 2004 model, which is worth about R30 000.00 (replacement value), the Defendant is the owner of a New BMW 320I, which vehicle is worth about R450 000.00 (replacement value).
An accident occurs and both vehicles are damaged beyond reasonable repair and the court finds in favor of the Plaintiff and orders an apportionment of 80%/20%.
The Plaintiff is therefore entitled to an amount of R24 000.00, being 80% of his proven damages and the Defendant is entitled to an amount of R90 000.00, being 20% of his proven damages.
When one then applies the trite principle of set off, the Plaintiff will be liable to the Defendant for payment of the amount of R66 000.00, being the difference after the R24 000.00 owed to the Plaintiff was deducted.
This will render the situation that although the Plaintiff was successful in his claim at court, he is liable towards the Defendant.
You should approach an expert attorney if you decide to sue based on a motor vehicle accident in order to firstly establish if there is a risk in contribution and whether it will be in your advantage to sue.
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