By Sanette Viljoen
In South Africa about one million road accidents are reported each year. The majority of the accidents are due to human factors, with on average 40 people a day being fatally injured while at least 20 people are left permanently disabled. In many of these cases it is established that the collision was caused by the negligence of more than just the one driver.
For this reason, when it comes to summonses, attorneys like to advance the plea that not only his client was negligent but that the opposite party was negligent too. If the court then finds that my client was negligent, there must be an apportionment and that, for instance, my client was only 10% negligent.
Example: Driver A speeds over a yield sign where driver B could have avoided the collision had he driven faster. The court then finds that the person who ignored the yield sign is 90% liable and must pay 90% of the other person’s damages. The person who did not react fast enough is therefore 10% liable and must pay 10% of the other person’s damages.
This could sometimes be very unfair. If person A drives a vehicle that is worth R100 000 and person B drives one worth only R10 000, person A must then pay 90% of R10 000 and therefore pays only R9 000. Person B, who was only 10% liable, must now pay 10% of R100 000 and must therefore pay R10 000. His percentage of liability is much lower, but he pays much more damages. In such a case the court, to be just, will also apportion the cost of the trial according to the percentage of negligence.
The apportionment of damages could sometimes have distasteful consequences. So, before going to trial, the apportionment of damages must be given serious thought.