You were in an accident. You are confident the other driver was at fault. But when you approach their insurer — or a court — you discover they are arguing that you were partly to blame too. And if they succeed, your payout shrinks accordingly.

This is the Apportionment of Damages Act at work. It is one of the most important — and most misunderstood — pieces of legislation affecting car accident claims in South Africa. If you are pursuing a claim for vehicle damage, whether insured or not, you need to understand this Act, because it can significantly affect how much money you actually recover.

What Is the Apportionment of Damages Act?

The Apportionment of Damages Act 34 of 1956 is a South African law that governs what happens when more than one person is at fault for an accident. In plain language, it does two things:

It prevents a claim from being defeated entirely just because the claimant was partly at fault — which was the harsh old common law position, and
It allows damages to be reduced proportionally based on each party’s degree of fault.

Before this Act, if you were even 1% at fault for an accident, you could recover nothing. The Act replaced that all-or-nothing approach with a fairer system — one where your payout is reduced by whatever percentage of fault is attributed to you, but you are not shut out entirely (unless you are found 100% at fault).

The core principle in plain language: If both drivers share some blame for an accident, the damages are split according to each driver’s degree of fault. A driver who is 70% to blame pays 70% of the damages. A driver who is 30% to blame has their own claim reduced by 30%. Neither is completely excluded from recovering — unless one party was entirely responsible.

How Fault Is Determined

Fault under the Act is based on negligence — specifically, whether each driver failed to act as a reasonable person would have in the circumstances. South African courts apply the test from the landmark case Kruger v Coetzee 1966 (2) SA 428 (A), which asks:

Would a reasonable person in those circumstances have foreseen the possibility of causing harm?
Would a reasonable person have taken steps to avoid that harm?
Did the driver fail to take those steps?

If both drivers are found negligent in these terms, the court assigns a percentage of fault to each. There is no fixed formula — it is a discretionary assessment based on all available evidence. The court considers factors like speed, lane position, visibility, road conditions, traffic signs, and each driver’s version of events.

In insurance settlements, insurers apply similar reasoning when deciding what percentage of the claim they will pay. This is why the other driver’s insurer will often dispute liability or argue partial fault on your part — even in cases where you believe the other driver was entirely to blame. Reducing the percentage they accept reduces the payout they must make.

Real-World Examples: What the Numbers Look Like

The Act becomes most concrete when you see how percentage splits translate into rand amounts:

Scenario	How apportionment applies	What you actually recover
Other driver 100% at fault — you stationary, rear-ended or struck while parked	No apportionment. You bear no fault.	100% of your proven damages
Other driver 80% at fault — you were slightly speeding or failed to see them in time	Damages reduced by your 20% share of fault.	80% of your proven damages (e.g. repairs of R50,000 → you recover R40,000)
Other driver 70% at fault — disputed intersection, both had some responsibility	Damages reduced by your 30% share of fault.	70% of your proven damages (e.g. repairs of R50,000 → you recover R35,000)
Roughly equal fault — 50/50 split	Each party bears 50% of the other’s damages too.	50% of your proven damages
You were 100% at fault	No recovery. The other party may claim from you.	Nothing — and you may owe the other party

What apportionment looks like with mismatched vehicle values: Consider this real-world scenario — an insurer agrees their client was 80% at fault. The uninsured victim’s vehicle repairs cost R100,000. The insurer pays 80% of that — R80,000. But the insured vehicle’s damages total R1,000,000. The uninsured driver, being 20% at fault, now owes the insurer 20% of R1,000,000 — that is R200,000. After netting off, the uninsured driver is significantly out of pocket despite not being the primary cause of the accident. This is why apportionment matters enormously when vehicle values differ significantly — and why professional assistance makes such a difference in these situations.

How Insurers Use the Act in Settlement Negotiations

In practice, you will rarely see a formal court ruling on apportionment. The vast majority of claims are settled through negotiation with insurers before any court proceedings begin. But the Act’s logic runs through every insurer negotiation.

When the other driver’s insurer receives your third-party claim, one of the first things their assessor will look for is any basis to attribute partial fault to you. Common arguments insurers use to reduce their liability include:

You were exceeding the speed limit, even if only marginally
You failed to keep a proper lookout or take evasive action
You did not have your headlights on in poor visibility conditions
You changed lanes without checking your mirrors
You had a mechanical defect on your vehicle that contributed to the severity of the impact
The roads were wet and you were following too closely

These are not necessarily invalid points — but they are regularly raised as leverage, not because the insurer has evidence of fault, but because asserting partial fault reduces the settlement amount they must pay. Understanding this dynamic is what allows you to push back effectively.

Admitting fault at the scene hands the insurer their apportionment argument for free. A casual “sorry, I didn’t see you” at the accident scene, recorded in a police report or witness statement, can be used to support an argument for partial fault. This is why you should never admit fault at the scene, even when shaken. Fault is a legal and evidential question — not something to be resolved by a spontaneous apology at the roadside.

When Apportionment Does Not Apply (or Is Much Less Likely)

The strength of the apportionment argument varies significantly depending on the type of accident. Certain collision types make apportionment very difficult for the other side to sustain.

Rear-end collisions

South African courts have consistently held that the driver who strikes the rear of a vehicle travelling in front bears a strong presumption of negligence. In the absence of evidence to the contrary, the rear driver is presumed to have failed to maintain a safe following distance or proper lookout. Apportionment is possible but requires the rear driver to produce genuine evidence of your contributory fault — not just an assertion.

Stationary vehicle struck

If your vehicle was stationary — parked, stopped at a traffic light, or halted in traffic — and was struck by a moving vehicle, it is very difficult for the moving vehicle’s driver (or their insurer) to credibly argue you were at fault. Apportionment may still theoretically be raised, but the evidential burden on the other side is very high.

Clear right-of-way violations

When a driver clearly fails to yield at a stop street, ignores a red light, or cuts across traffic in violation of road rules, their fault is usually clear and quantifiable. These cases lend themselves to high fault percentages against the other driver, with less room for substantial apportionment against you — provided your own driving was reasonable.

Disputed intersections — higher apportionment risk

Intersection accidents where both parties claim they had the right of way are the most fertile ground for apportionment disputes. Both versions may be equally plausible without third-party evidence, making dashcam footage, CCTV, and witnesses particularly critical in these scenarios.

What Strong Evidence Does to Apportionment

Here is the practical reason why collecting strong evidence at the scene is not just about proving the accident happened — it is about protecting the full value of your claim against apportionment arguments. Our full guide on what evidence you need to win a car accident damage claim covers exactly what to collect and why each piece matters.

Consider the difference in practice:

Without dashcam footage or witnesses: The insurer can assert partial fault and push for a 70/30 or even 60/40 split. Without contradicting evidence, this argument has traction and your payout shrinks accordingly.
With dashcam footage showing the other vehicle ran a red light: There is no credible basis for apportionment. The footage shows exactly what happened. The insurer’s options reduce to accepting liability or contesting footage that will be shown to a court.

Strong, consistent evidence does not just win claims — it eliminates the space for apportionment arguments that quietly reduce what you recover. Similarly, a missing police report makes apportionment arguments much harder to counter — read our guide on what to do if you don’t have a police report if this applies to your situation.

What If You Believe the Apportionment Being Applied Is Unfair?

Insurers sometimes apply apportionment that is not supported by the available evidence, using it as a negotiating position rather than a genuine reflection of fault. If you receive a settlement offer that incorporates what you believe is an unjustified apportionment, you have options:

Request the insurer’s justification in writing. Ask them to explain what evidence supports their apportionment percentage. Insurers are required to act in good faith and must be able to substantiate their position.
Present your own evidence. Dashcam footage, witness statements, the police report, scene photographs, and a consistent written account of events all counter an unsupported apportionment claim. Understanding how the damage assessment process works will also help you identify where the insurer’s position may be challengeable.
Escalate to the Ombudsman for Short-Term Insurance (OSTI). The OSTI mediates disputes between third-party claimants and insurers. Filing a complaint is free, and their involvement often prompts insurers to reconsider positions that lack evidentiary support.
Pursue the claim through the courts. If negotiations fail, you can issue a letter of demand and proceed to the Small Claims Court (for amounts under R20,000) or Magistrate’s Court (for larger claims). The insurer’s apportionment argument must then be defended with actual evidence in front of a magistrate.

Professional help levels the playing field. Insurers negotiate apportionment every day. Most uninsured claimants do not. Having a claim recovery specialist on your side — one who understands how to challenge unsupported apportionment arguments with evidence and legal pressure — can make a substantial difference to the final amount you recover.

The Bottom Line

The Apportionment of Damages Act is not just a piece of legal theory. It is an active factor in almost every disputed car accident claim in South Africa. Understanding it means understanding why insurers argue partial fault even when the other driver seemed clearly responsible — and why your evidence from the scene matters not just for proving the accident, but for protecting every rand of your payout.

At MyLawSA, we help uninsured drivers recover car damage from the guilty party, and we know how to identify and challenge unsupported apportionment arguments. We work on a No Success, No Fee basis — if we do not recover money for you, you pay nothing.

Concerned about apportionment reducing your claim? Talk to us.
Contact MyLawSA for a free claim assessment. Tell us what happened, what evidence you have, and what the other driver’s insurer is saying — we’ll advise you on whether the apportionment being applied is fair and what your options are.

Useful links:
Apportionment of Damages Act 34 of 1956: gov.za
Ombudsman for Short-Term Insurance (OSTI): www.osti.co.za
National Road Traffic Act 93 of 1996: gov.za

This article is for informational purposes only and does not constitute legal advice. Always consult a qualified professional for advice specific to your situation.