Motor Collisions

While the Small Claims Courts eagerly sweep technicalities out the way, in order to keep matters simple, a technicality that cannot be avoided in collision claims is legislation known as the Apportionment of Damages Act (ADA).

Thus, a claimant believing himself completely innocent in a collision claim, may be surprised to find himself ruled partly to blame, even if only two percent, according to the ADA.

Example: X parks his car in the road, then opens the driver's door into the path of a car passing from behind, driven by Y, who smashes into the open door.

Y puts in a claim against X , for the damage to his car - a cut and dried case?

Not necessarily - the court may well rule that Y passed too close to X's car, making Y partly to blame.

If the apportionment is 98-2 against X, making X 98 percent to blame, it means X has to pay 98 percent of Y's damage.

Only the owner of a collision vehicle may claim for the damage to his vehicle, against the guilty driver.

Thus, in the above example, if Y was driving Peter's car, only Peter may claim for the damages. However, if Peter takes X to court, Peter will have to take Y with him as his witness, to explain how the collision happened.

If Y does take X to court, Y's claim will be dismissed, as it was not Y who suffered the damage, but Peter.

The application of the ADA is relatively simple if both drivers were the owners of the cars they were driving - the court simply decides who was how much to blame.

However, the ADA becomes complicated - for the layman - if either of the drivers was driving a car belonging to someone else, in which case the "Innocent Owner" principle applies.

Remember, only the owner of the vehicle may claim for the damage to his or her car.

If the owner was not driving when the collision happened, he is regarded as the "Innocent Owner".

Remember also that an innocent owner has the choice to claim his damage from either driver involved in the collision, or even from both jointly.

If the innocent owner takes both drivers to court, the court will rule who was how much to blame, and each will be liable accordingly to the innocent owner.

However, the ADA stipulates that even if such a driver is ruled only one percent to blame in a collision, he becomes 100 percent liable to the innocent owner.

Thus, if Peter in our example above decides to hold his virtually innocent friend "Y" liable, instead of "X" who was mainly to blame, "Y" has to pay Peter's damage in full, instead of only two percent of it.

• Here are some possibilities:

Scenario 1: involves the example above, with X and Y both driving their own cars - Y holds X responsible, for failing to first check if it was safe, before opening his door.

However, the court rules "Y" 10 percent to blame, for passing too close to "X". This means "Y" may only claim 90 percent of his damage from "X".

Scenario 2: In the same collision as in Scenario 1 above, the car "Y" is driving belongs to Peter.

Firstly, "Y" cannot claim for the damage to the car he is driving - only Peter, the owner, may.

Peter, as the innocent owner, may claim from either "X" or "Y", or from both jointly.

If Peter claims from "Y" only, the ADA makes "Y" 100 percent liable for Peter's damage, even though the court has only ruled him 10 percent liable.

Similarly, if Peter claims from "X" only, the ADA makes "X" 100 percent liable for Peter's damage, even though the court ruled "X" only 90 percent to blame.

Scenario 3: Peter holds both "X" and "Y" jointly liable for his damage.

Here, more fairly, the ADA does not interfere with the court's ruling, and if the ruling is 90-10 percent, so it shall be.

Scenario 4: "X" is driving Paul's car. Paul, as an innocent owner, may hold both "X" and "Y" jointly liable for his damage, and leave it to the court decide who pays how much. Paul may also hold either the one or the other liable.

If Paul picks on "Y" only, the ADA makes "Y" 100 percent responsible, even though the court ruled him only 10 percent liable.

Scenario 5: "X" is driving Peter's car, and "Y" Paul's, which makes both Peter and Paul innocent owners. Peter may hold both "X" and "Y" jointly liable, and leave the court to rule who is how much to blame.

However, if Peter holds either "X" or "Y" liable, whoever he picks on becomes 100 percent liable for his damage. The same applies to Paul.