# Social Category > General Chat Forum >  3rd Party Insurance Claim

## MadJan

I was in an accident, fault was not on my side.  The other driver did not stop at the yield sign and collided into me.  I am trying to claim from 3rd party but they are now applying the law of damages and delict, whereby they only pay 60% of the damages.  My damages amount to around R35 000.00.  They now say that i have to contribute to 40% of the damages as they say that i am liable for 40%.  After all of their calculations i am told that they will only pay me R5373.24.
Can anyone please help shed some light on this, don't i have any rights re this? Sadly i dont have vehicle insurance.

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## Dave A

:Hmmm:  Sounds like they're playing the blame apportioning game. But even then, there certainly seems to be a problem with their maths.

If you are confident you didn't contribute to the cause of the accident (other than unfortunatley being there), my suggestion:
Don't sign acceptance of their offer (that's all it is).
Respond by instructing an attorney to issue summons for the full quantum of your damages against the driver (and/or owner if the vehicle was being used for business) of the other vehicle.

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## AndyD

I've had four litigation cases in the last 20 years involving insurance companies and their refusal to pay the cost of damages to my vehicles by a third party who's their policy holder. It's the same dance each time, they make some rediculously low offer, I send them the quotations for repairs plus towing plus vehicle hire etc. They refuse to pay that amount because blah blah blah, I instruct my lawyer to deal with it and after the usual paperwork a court case is booked. All of the cases were settled in full and with legal expenses before the court dates arrived.

I get the impression they just like trying their luck or they play some kinda numbers game because a certain percentage of claimants aren't pissed off enough to drag them into court. 

Tell them to stick their offer where the sun don't shine and send them a lawyers letter.

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## KimH

Third Party claims are absolutely the pits!

A few years ago my Audi was parked - underground parking in CPT City Central, where I worked,. Somehow in a lot that was at only 30% capacity a woman managed to reverse into my car causing about 15k's worth of damage.  She was suitably apologetic and promised to take care of the repair costs personally, well till she received the quote of course.  She then referred me to her insurance company - a big name that I will not mention on here for obvious reasons.  I weighed up doing a 3rd party claim versus claiming off my insurance, I'm somewhat stubborn and decided that why should someone else's mistake cost me (a) the excess  (b) increase in policy and barreled ahead with a third party claim.  

After a month of being messed around by said insurance company (and driving around in a car that I'd only had for 3 months that was damaged) I placed a complaint on Hello Peter, needless to say my third party claim was resolved and a EFT made to my account for the damages within a week.

It bothers me that in SA we have to go to these lengths in order to get matters resolved, but that is a rant for another day.

Madjan, 35k is not a small number - try the Hello Peter option (but only if the insurance company is one that responds), if you still do not get a satisfactory outcome, contact an attorney and take it from there.

And please, as much of a grudge purchase that it is,... get insurance  :Smile: 

Good luck - let us know how it turns out.

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## Perform Computers

I get my ass handed to me every month with my insurance premium, but trust me, it's worth it for the day when you need it.

Get insurance. One day you'll thank us.

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## MadJan

Thanks guys i really appreciate the advice.  Have any of you heard of this law? "Law of Damanges and Delict"?  This is the info i found on the Insurance co's website

"They will decide what to pay you by applying the Law of Damages and Delict in accordance with which they could attribute a percentage of fault to you whereby offering to pay you less than your actual damage. For example if the other party skipped a stop street colliding with your vehicle, it could be said that you too did not take enough care in trying to avoid the incident, therefore they could offer to pay only 60% of your damage. This could result in a lengthily legal dispute between yourself and the other party’s insurance company"

In short this is what they had to say via email:
"Should we have to proceed with this further we will vigorously defend the action. 

We further confirm this being our final correspondence should you not accept our offer. We suggest you seek legal advice from your legal counsel"

I also called them and pretended to be a new client, they confirmed that they would pay out the 3rd party for damages and that there were no other special laws or clauses that i should know about.

I also asked that they send me that specific recording, but they obviously wont.  Do i stand a chance of getting them to sort this out, also who would pay for all legal expenses incurred?

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## Dave A

Starting to sound more and more like SA Eagle...

Seriously, you're going to wear yourself out trying to engage them yourself. 
Yes, there is the matter of apportionment.
No, they are not going to make a fair apportionment (if there is a case for it) without being bludgeoned to it.

You know they're screwing you. And there's only one profession equipped to fix it.

Hand it over to a lawyer.

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## MadJan

Thanks Dave,

I guess i will hand it over to an attorney, cos they really are screwing me over this.  I will keep you all updated so lets hold thumbs :-)

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## MadJan

What if i don't have an independant witness? does it make my case any weaker?

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## Dave A

It certainly doesn't help *not* having an independant witness. Just how much of a problem that might be depends on the other evidence.

Both the parties have to report the accident to the police. What is in those accident reports?
Where is the damage on the vehicles?
Who had right of way?

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## MadJan

hmmm....
we had right of way, the car that collided into us is a write off.....holding thumbs that this goes our way....seems so unfair though that we as the victims of this are made to look like we have to take such a huge portion of the blame....but looking on the bright side, i am seeing the attorney you recommende, Dave, on Thursday....will keep you posted :-)

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## Dave A

Hopefully you don't need it, but I wish you good luck anyway  :Smile:

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## MadJan

An update....engaged in an attorney, alas after paying a deposit, i am told that the insurance company would not budge, and to take it further would mean even most legal costs.... :-(
I am thinking of taking this up with Ombudsman....am i wasting my time? :-((

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## Dave A

Maybe you should reread posts 3 & 4.

I expect the lawyer is also at pains to ensure it's your decision, but nonetheless they should have a view on your prospects. What do they have to say?

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## MadJan

Well basically third party refuse to co-operate with the attorneys, the next step is to summon them to court, my attorneys have also advised that something like this could drag on for years, which would end up in high legal costs, i am just so afraid that i am going to really lose money here.  What if they still refuse? Do you think they would actually settle before the court date arrives....questions, questions, questions.......do i or dont i take this further....

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## rfnel

I second KimH's suggestion to use Hello Peter.  They've helped me deal with an insurance company in the past.  

What did the other party write in the accident report at the police station?  If it states that they had caused the accident, perhaps you can use that in your favour.  Someone crashed into my car a few years ago, and when we filled out the accident report, I made very sure that it stated that he caused the accident (and that he acknowledged the fact).

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## IanF

Can't you use the small claims court? Or is the amount too big?

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## tasch_a

Did you take any pics at all at the scene of the accident? I had an accident a few months ago and the only thing that saved me getting my excess back was the pics I took.

I also have a friend that does accident reconstruction. They normally deal with big companies, but if you want I can find out if there is anything else you could possibly do.

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## msmoorad

yesterday i was involved in a accident in Umbilo Road.
i had just turned into Umbilo Rd and was going to a store a few metres across the road from where i had turned into Umbilo Rd.
i checked to ensure no cars were approaching near me-all vehicles were at a distance.
i was moving slowly across to get to the left side-its a one way road.
suddenly i hear a hoot & next thing a vehicle hits me vary hard from behind
it was a black guy driving a company van-the owner is an Indian lady based at the main branch in Joburg.

my bakkie spun and hit a concrete light pole -where it stopped.
fortunately i just sustained a few minor bruises-my sister who was with me, banged her head against the back glass which shattered
her head is paining in the back-otherwise shes OK.

the driver of the van says its my fault-i did not indicate
-last thing i remember doing after the accident was turning off my indicators

anyway-police arrived & took down our details & then gave each of us the others details.
tow truck guys took his van away and they asked me what i want to do
i said im uninsured & unemployed
they said they can do a 3rd party claim against the company as its their drivers fault-he hit me from behind & i wont have to pay anything
since i was a bit shocked etc, i agreed & they towed my bakkie away to their place-Durban South Body Express.
they gave me and sister a lift home.

i contacted the owner-showing her pics
she says her driver says its my fault & she has made it clear to her drivers that they are responsible for any fines & accident damage etc
she says since im claiming its his fault, the matter has to be settled in court.

Durban South told me to get her insurance details & they will file the claim for me
she refuses to give me insurance details stating above reasons.

what do i do now?
i made it clear to Durban South that im not in the position to pay anything- they said "no problem, we will handle it"
now, after cooling down and asking family & friends-they advise that although my bakkie is damaged, its still drivable so i should take it away from there as they will charge me for storage etc
i have been trying all day to get hold of Hank-the guy from Durban South-who i spoke to
the secretary answers and says he is busy etc & will pass on the message...

please advise

im attaching pics- from the damage- u can see he must have been going very fast

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## Justloadit

My understanding has been that in any accident that you are hit from behind, immediately places the driver that struck you at fault, irrespective of the circumstances.

By law she has to give you the insurance details, however, get an attorney involved now to ensure that you have a trouble free process.
I suggest you also get to the panel beater personally, and do a one on one meeting, rather than doing it over the phone.

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## Dave A

> get an attorney involved now


Absolutely agree.

Under the circumstances, I suggest the following -
Report the accident at a police station and obtain the report number. 
Obtain 3 quotes to repair the vehicle.
Obtain the services of a lawyer.

The fact that the owner won't give you her insurance details is not an issue - the lawyer will merely proceed directly against the owner.
I'm sure the owner will refer your claim against her to her insurers in double quick time once it arrives.

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## msmoorad

thanks
have already reported at Phoenix police station on Wed evenening-it happened on Wed.
-going to panel beaters today
then will see about lawyers

again, money is the issue- would the lawyers accept my case & get their money out of this lady/her insurance co?

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## flaker

> thanks
> 
> again, money is the issue- would the lawyers accept my case & get their money out of this lady/her insurance co?


Legal issues are never an exact science. its impossible to predict the outcome. What i would suggest that whilst yo debate the issues, you should remove your vehicle from the panel beaters as it incurs storage charges. 

My bet is that the Durban South would not release the vehicle to you without the payment of towing charges, irrespective of what their tow truck driver told you. regretfully this is the harsh reality.

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## Dave A

> again, money is the issue- would the lawyers accept my case & get their money out of this lady/her insurance co?


Welcome to one of the downsides of not being insured. I regret to advise your wallet is about to suffer a series of nasty shocks - and legal fees might well end up being the least of them.




> What i would suggest that whilst yo debate the issues, you should remove your vehicle from the panel beaters as it incurs storage charges. 
> 
> My bet is that the Durban South would not release the vehicle to you without the payment of towing charges, irrespective of what their tow truck driver told you. regretfully this is the harsh reality.


That's really good advice. And unfortunately will probably be the first nasty surpise along the way.

Make no mistake this accident is probably going to cost you money. Hopefully when it's all done you'll be out of pocket for less than what you have saved in insurance premiums by being self-insured. With any luck it'll end being just the cost of a letter of demand, and perhaps the costs associated with issuing summons.

Don't go sliding into anything expensive now  :No:

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## Phil Cooper

This is in terms of Apportionment of Damages Act.

Insurers look at circumstances, and "guess" the degree of fault by each person. If we assume they will reach 70% / 30%, they will only pay you 70% of your loss, but will, in turn, deduct 30% of their client's damage.

It was rarely done, but one of the major Direct Insurers started doing this to minimise their payouts - and it has become pretty common in the Market now as "self defence". I would guess the Insurer concerned is one of the Direct insurers?

It is for this reason I advise my clients ALWAYS to claim under their policy if they have an accident.

If you claim through the Third Party Insurer:

- They will assess your car to minimise the claim, get you to sign a release form, and pay you cash in lieu of repairs. If more damage is subsequently discovered, tough - you have signed the release.

- Their priority is to THEIR client - they are in no rush to repair YOUR car. Can take VERY much longer.

- There is always this "Apportionment of Damages" sting in the tail, potentially. And that can hurt!

Rather claim, get your car fixed right, and then let your insurer recover the cost from the other Insurer. A reputable insurer will reinstate your No Claim Bonus after recovering. 

But at least you will get a properly fixed car!

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## msmoorad

> Legal issues are never an exact science. its impossible to predict the outcome. What i would suggest that whilst yo debate the issues, you should remove your vehicle from the panel beaters as it incurs storage charges. 
> 
> My bet is that the Durban South would not release the vehicle to you without the payment of towing charges, irrespective of what their tow truck driver told you. regretfully this is the harsh reality.


just experienced it
they charged me R2700!

they say that according to SATRA(which they claim to be a member of)- any distance under 40km- they can charge R2850

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## msmoorad

spoke to my friends wife-who is a lawyer-she said must bring all documents etc to her on Sunday-at her home.
hopefully that should get the ball rolling.

the guy at Durban South said most likely, the insurance estimator will write off my bakkie as its a 1999 model & the book value is around R22 000
that means Dur South will charge more than that amount to get it sorted out.
problem is- i wont be able to easily get another bakkie like this for R22 000.

anyways, went to another guy for a quotation-he says the insurance company cant write my vehicle off as its not covered by them-so they have to pay whatever it costs to repair my bakkie.
and he never give a printed quotation yet but says he wont charge as much as R22 000-more like R15 000

anyone can clarify this?
all this is making my head spin.

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## Dave A

> just experienced it
> they charged me R2700!


Yeah. Have a breakdown and you can get a tow that distance for well under R1k. But when it's a tow from an accident the rate sems to start at R2.5k plus  :Frown: 

Amazing  :No: 

I'm inclined to agree with that panel beater who reckoned the insurance company can't pull the "beyond economic repair" stunt. It'll actually be interesting to hear what you get out of the claim in the end.

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## msmoorad

another guy gave me more advice-
try to get 3 of the most expensive quotes
and see if they will pay me out in cash for the lowest of the 3

then take my vehicle & the money & go to one of the cheaper guys- that way i can get something out of it, as apart from the damage to the vehicle- its also causing a big inconvenience
with running & phoning around for quotes etc

keep the advice rolling- its a learning curve for me

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## flaker

Well, you have an attorney now. Good for you. Now some other realities. You seem to be so sure that it was the other party's fault. I write this, just so that you take Phil's advice in repairing your bakkie as best you can & at the least cost,that is, just in case this other scenario presents itself.  

You did say hat you had just turned into Umbilo road and you were making your way across the road. The other party will see it like this. I (the other party) was driving along Umbilo Road and suddenly this guy appears from nowhere in front of me trying to cut lanes and make his way to the left. This will also be your report to the police, that you were in fact cutting across and whilst you had ensured that the next lane you entered was clear, you suddenly heard a hooter & was hit from behind. 

Now there is that the possibility that the other drivers insurance might just ask you to cover the cost of repairs to their bakkie. It is just another scenario. 

I write this just so that you are equipped as you ponder your various moves. I would also suggest that you try to get a copy of the statement you made to the police to hand over to your attorney.

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## Dave A

> another guy gave me more advice-
> try to get 3 of the most expensive quotes
> and see if they will pay me out in cash for the lowest of the 3
> 
> then take my vehicle & the money & go to one of the cheaper guys- that way i can get something out of it, as apart from the damage to the vehicle- its also causing a big inconvenience


 :Hmmm:  Be careful of the counsel you keep. Some doors should not be opened, my friend.

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msmoorad (07-Apr-13)

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## msmoorad

> Be careful of the counsel you keep. Some doors should not be opened, my friend.


dont worry- i was just "thinking aloud"
not going to do that, as tempting as it seems.

and in response to flaker
yes, i thought of that too
just hope and pray it does not end up there
though, from all the feedback/advice i have been receiving, it seems unlikely that the other party can escape liability-seeing how its clear they hit me from behind.
if i had entered Umbilo Rd without checking for approaching vehicles, i would have been hit in the front left side-which is not the case.

and i was going slowly- enough time for approaching vehicles to see me and slow down if they need to.
it was raining- so slippery road could play a part.
irrespective of whether i did something wrong, he was also speeding- going really fast.
and if he were not doing that, he would have been able to stop in time or would have had the time to change lanes to avoid me.

another thing-owner says companys not responsible- only the driver and only he is responsible/liable to pay- if its decided in COURT , which is where she wants to go.
dont see how she can avoid it
it was company employee. driving company vehicle, during business hours and most likely doing company business.

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## Hermes14

> -last thing I remember doing after the accident was turning off my indicators


Why did you turn your indicator off?
If the traffic officer that arrived at the scene gets called to testify he is going to say they he could not find any evidence that the indicator was on.
Never touch anything until all the evidence has been captured & keep all looters away from the scene.
Here are a few pointers to note when you are involved in an accident.
Try and take as many photos of the accident scene as possible concentrating more on the vicinity than the vehicles itself, also try & capture as much footage of the debris, skid marks & anything else that that could provide evidence of what happened.
Take a photo of the other vehicles licence disk & number plate.
As soon as the first tow truck comes racing to the accident scene & stops right next one of the vehicles that he wants to tow, take a photo of it as well.
Try & capture his number plate as well as his company logo on his vehicle. (He will most probably try & get you to delete the photos of his vehicle with in the scene as he could be charged with destroying evidence)
If either you or your passengers are injured in the accident let the doctor that is examining you know that you are intending to claim for injuries as there is a form that he must fill in which the court will require.




> tow truck guys took his van away and they asked me what I want to do


 Due to the fact that you dont have insurance & if you were unable to drive the vehicle or get a friend to drive it for you, should have first asked him how much is he going to charge you & got him to tow the vehicle to either your house or a friends whichever is closer. The standard rate is about R650-00 I have talked tow truck driver down to R300-00 before.

The first thing I would do now if I was you would be to all the shops in the vicinity & ask them if they have any cctv cameras that might have captured the incident & try to trace anybody that might have witnessed the accident.

If you have an attorney advise him/her that if the matter goes to court you want to claim costs incurred from the accused party.
You might need a road accident reconstruction specialist (not a fly by night) to prove that the other party was negligent.
I have done road accident reconstructions before but I am not a specialist.
If you were in the Gauteng area I would have put you in contact with a friend of mine who is a specialist. The last time we spoke he still had 100% success rate on the cases he took on.
N.B.  dont be fooled by an orange light & a nice big badge on the side of his vehicle.
A lot of these guys who claim to be accident reconstruction specialist dont know their ass from their elbow.
If you do decide to employ an accident reconstruction specialist, ask him to show you a few accidents that he has investigated & for a few references as well if possible.

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## msmoorad

has anyone done an RAF claim on their own?
im thinking about it.

lawyers take too much money and if i use one,i dont think im going to get enough for 2 people!

the pain on my leg and the back of my head still persists

i told the police officer writing my Accident Report that i suffered only minimal injuries but still...
and since legally, im entitled to claim

although im hearing the RAF has become stricter & they ONLY pay when theres a fracture or a serious injury?
that does not seem correct as im also paying/contributing towards the tax/levy they impose on all vehicles at the petrol pump.

any input/advice?

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## Mangaliso

> Sounds like they're playing the blame apportioning game. But even then, there certainly seems to be a problem with their maths.
> 
> If you are confident you didn't contribute to the cause of the accident (other than unfortunatley being there), my suggestion:
> Don't sign acceptance of their offer (that's all it is).
> Respond by instructing an attorney to issue summons for the full quantum of your damages against the driver (and/or owner if the vehicle was being used for business) of the other vehicle.


I think Dave A, is correct.

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## Dave S

> I was in an accident, fault was not on my side.  The other driver did not stop at the yield sign and collided into me.  I am trying to claim from 3rd party but they are now applying the law of damages and delict, whereby they only pay 60% of the damages.  My damages amount to around R35 000.00.  They now say that i have to contribute to 40% of the damages as they say that i am liable for 40%.  After all of their calculations i am told that they will only pay me R5373.24.
> Can anyone please help shed some light on this, don't i have any rights re this? Sadly i dont have vehicle insurance.


In SA a yield sign, with a few exceptions, means you must yield "right-of-way" to a vehicle approaching from your right, and is very critical of which vehicle was in the intersection first. Many motorists seem to think that a Stop sign has a higher priority than a Yield sign, for instance, at a 4-way stop, where vehicles turning left have to yield, many people make the mistake of thinking that the vehicle at the yield can proceed before that vehicle at the stop, this is not the case, if the vehicle at the stop has stopped "for a period of not less than 5 seconds", this vehicle will have right-of-way over the yielded vehicle, the yielded vehicle does not have a "5-second rule" and the "wait time" is indefinite.

A "yield sign accident" is one of the most controversial of our motoring laws, and also the scenario where insurance companies have a fair chance of applying a "proportion" of damages. There are many factors that they will look at, 1. Which vehicle collided into which, in other words which vehicle was already in the intersection. 2. Which vehicle applied the brake first, in other words which driver saw the potential for an accident first and/or did either of the drivers fail to apply brake at all. 3. What were the approach speeds of the relative vehicles. They will make many more considerations to ensure the minimum payout to either party.

As the info you have included is very vague, it is impossible to say whether you would have the stronger case or not, best advice, seek an attorney who deals specifically with motoring law.

Good Luck...

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Dave A (12-Jul-13)

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## Santosh

> Sounds like they're playing the blame apportioning game. But even then, there certainly seems to be a problem with their maths.
> 
> If you are confident you didn't contribute to the cause of the accident (other than unfortunatley being there), my suggestion:
> Don't sign acceptance of their offer (that's all it is).
> Respond by instructing an attorney to issue summons for the full quantum of your damages against the driver (and/or owner if the vehicle was being used for business) of the other vehicle.


I had an accident 2 weeks back whereby i was proceeding through a traffic light controlled intersection with a green light when a vehicle turning right proceded to turn when i was halfway across, i tried swerving out of his way but he drove right into my vehicle.

I have no insurance and am in process of claiming form his who submitted me the below:
_
We have assessed the merits and came to the conclusion that there was negligence on both sides.



Most court cases based on similar incidents would be settled on an apportionment basis. This apportion can be 70/30% or 80/20%.



Even though a greater duty of care rests on the person turning right at a traffic controlled intersection, there is also a duty of care on the approaching vehicle.



Oncoming traffic does not incur an obligation to stop or slow down when a driver, who has signalled his intention to turn, directs his vehicle towards the middle of the road preparatory to doing so. He must however, keep such vehicle under observation and, as soon as it is clear that, despite the fact that the moment was inopportune, it intends to cross in front of him, he must take all reasonable steps that may be necessary to avoid colliding with it.



The damage to our clients; vehicle is R33 576.27



Your vehicle is a write off with a market value of R8 950.00. Salvage is calculated at 30%. Therefore the value of the vehicle is R6 265.00



1.         70% of your claim is R4 385.50

            30% of our damages is R10 072.88



            In this case you are liable for R5 687.38



2.         80% of your claim is R5 012.00

            20% of our damages is R6 715.25



            In this case you are liable for R1 700.25



3.         90% of your claim is R5 638.50

            10% of our damages is R3 357.63



            Our client is liable for R2 280.87



Purely based on the monetary values of the claim we are prepared to settle the matter on option 3. Please note that this offer is made without admission of liability and merely to settle the matter.



If you decide not to accept the offer, it will be withdrawn with immediate effect.



We enclose a release for your signature and when you return the release please enclose proof of your bank account.



Any action taken will be defended vigorously._

Kindly advise on how i should proceed with this.

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## Dave A

Hi Santosh,

What is the estimate to repair your vehicle?

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## Santosh

> Hi Santosh,
> 
> What is the estimate to repair your vehicle?


I was unable to get quotations from panel beaters as the car is stored by the towing company and panel beaters require the vehicle be brought in to quote.

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## Dave A

You're going to have to make a plan to get a repair quote, otherwise you're going to get screwed by a comparison of apples to oranges. Assuming the insurance company's valuation of your vehicle is correct, your only chance of getting a fair shake is to get apportionment based on repair costs which should put you on a more even footing.

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## Santosh

If am am correct, for example if the quote to repair is R15000 then 
90% of my claim is R13500.00
10% of their damages is R3357.63

They will be liable for R10142.37

But will they not claim on grounds of car book value for writing it off instead of quote to repair.

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## Dave A

> But will they not claim on grounds of car book value for writing it off instead of quote to repair.


Indeed! The question is whether the issue of "beyond economic repair" should come up before or after apportionment. 

Your counter-argument is that apportionment should be done on an apples for apples basis, i.e. cost of repair vs cost of repair. And certainly not on the apples for oranges basis the insurance company would prefer.

The only reason the issue of beyond economic repair comes up at all is because of the low value of your vehicle. After all, your repair cost is less than the other party's - why else should you not be entitled to repair your vehicle rather than "replace" it?

Now that an apportioned liability has been identified on an even basis, the insurance company can commence arguing for a reduction of their nett liability to you based on the value of the vehicle less salvage, reducing their liability from R10 142.37 (per your calculation above) to R6265 (value less salvage).

Hopefully an insurance or legal expert might weigh in on precedents for or against this argument (it's possible I might be barking up the wrong tree here), so please don't take this as "sound legal advice", merely an argument you might consider presenting to improve your position.

What might improve your prospects regardless is the figure remains low enough to take to small claims court...

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## Santosh

Thank you for the advice however they have sent me a reviewed offer after i submitted the towing and storage invoice whereby they have decided on appotionment payment but state the insurer is willing to pay full storage fees. They state the offer is valid for 2 days and will be withdrawn thereafter, however the release attachement states the offer is valid for 14 days. I have raised the option of submitting quotations for repairs.

Honestly, i am at my wits end. I work night shift and need my car to travel to and from work also i am sure they will opt for the salvage option if the repair costs are higher than book value.

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## stephderm

Hi - I hope this is in the right place - if not please forgive me and I'll take any advice!  I was recently involved in a fairly scary motor accident which was declared by the Police and all involved to be 100% NOT my fault.  I don't hold motor insurance however the other party's company has come back to me to say that the driver (who almost hit me head-on on the wrong side of the road) is claiming that he had a blackout and that the claim is not their problem and they won't be paying out.  Can this be right?  If so, what should I do now?  I have no vehicle, and no come-back it seems.  My 82 year old father was in the car with me - it is a right-off according to all the companies I contacted for quotes.  The insured driver has been paid in full it seems.  I have never had any kind of major accident before (trolley dings etc.) but I am at a complete loss and would so appreciate any assistance or advice.  Many thanks for your time - you seem like a good bunch of people.

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## Phil Cooper

In order for you to be able to claim against another driver, you have to be able to prove negligence on their side.

No negligence = no fault = no claim against them.

THAT is the problem with not carrying insurance. If the other driver is not at fault, you have no claim against them, and have to carry your own loss....

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stephderm (17-Dec-13)

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## stephderm

Thank you so much for your prompt reply and I do understand the importance of insurance - unfortunately it lapsed whilst I was in the UK.  What I am stuggling to understand is why the burden of proof is not on the driver at fault to prove that he had a black-out.  I'm not sure how he would go about this.  If he had a history of blackouts etc. it was clearly negligent of him to be driving at all.  If I need to bear the loss I will make it my life's mission to ensure that this young guy NEVER drives again.  My father and I were millimeters from death and we are both still shaken.

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## flaker

Hang on Stephderm. it appears from what you say that the other party is insured, but his company (insurance) refuse to pay your claim,saying that their client suffered a "black- out'. Get this in writing from them and take this letter to an attorney & instruct the attorney to issue a summons for your claim against the other party.
My sense is that the other driver's insurance will soon settle.

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stephderm (17-Dec-13)

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## stephderm

Thank you for you interest in this - I really appreciate all replies.  Yes, the other party is insured and in fact when we rang the claims department to query why we hadn't heard anything, they thought we WERE the insured party and confirmed that their claim had been settled in full. I feel that a great many at-fault drivers could 'claim blackouts' after the event - how is it possible to distinguish between a 'blackout' and falling asleep at the wheel? No mention of blackout was made at the scene.  Upshot, through no fault of my own, I am without a very useful and much loved little vehicle. Again, thanks for your advice.

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## sterne.law@gmail.com

He will have to prove a blackout.
If there is a history of blackouts then an element of negligence presents itself.

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stephderm (18-Dec-13)

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## stephderm

I don't know just how he would 'prove' a blackout -v- loss of concentration/falling asleep, DUI etc. If I were him, I don't think I would be too keen to have a history of causing a major collision due to blackouts on my driving record.  If he goes this route I will personally see to it that he never gets behind the wheel of a car again. (My car is a write off - his flipped and was only prevented from going down a steep ravine by a strategically placed tree - so we're not talking bumper damage).  I can't thank you all enough for your information and reassurance - it's new territory for me and I feel much more equipped to deal with what I imagine will be a protracted case.

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## Policy & Recovery Assist

Good day 

We have only joined the forum and seen your matter. We can act on your behalf. Should you still need help please email us. 
Pandrassist@gmail.com

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## EbieWatts

Hi All
I'm new, just registered as I was in a car accident 3 weeks ago and I need urgent advice or assistance.

The other driver skipped the red light and totalled my car. He has an insurance, I don't. I couldn't afford insurance and I can't afford the repairs to my car. To make matters worse, I live 50km from my work and I need to get to work every day. Thusfar I managed, but I can't borrow the car I'm using now for much longer.

I contacted his insurance and informed them of my claim, however, they responded with the following:
1. They are in the process of liquidation and will not be able to pay all claims; and
2. They will not be able to assist with my third party claim as their client did not follow policy procedures.

Please, I need urgent advice on this, if it's legal, if there's anything I can do, etc.

I also need to start a road accident claim with regards to back injuries and need some assistance with this. 

Please, if anyone can assist or knows of the types of lawyers who specialises in these cases and takes a cut off the pay out let me know urgently. I can't afford any legal costs.

Best Regards,
Ebie Watts

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## Phil Cooper

Hi

Have commented on your other posting

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## TDon

Hi, I am bringing up an old topic and need advice please. 

I was turning right at a 3-way intersection (I was in the front of the "traffic queue" and the traffic light had just turned green for me), when I was almost out of the intersection, a woman came speeding through the intersection on the left, through a red traffic light and side swiped the left side of my car. We stopped, swapped details and proceeded to report the accident at the police station, where she wrote and signed that she was completely at fault because she (her words) "was distracted and did not see the red light and drove straight through" She was not at the intersection or anywhere in sight when I was entering the intersection, she came from down the road.

We both have insurance and I thought I would try battle out a third party claim. I searched for panel beaters quotes and because second hand parts are not easily available for my car, new parts have to be bought and the total cost to repair the damages is R31341.31, the average value of my car is R31900.00 and the settlement amount I am being offered is R22330 and the release states "In consideration of payment without admission of liability". And I heard from the insurance that this woman's statement to them was that she was not at fault. This is a lie.

While I understand that it is not economical for them pay to repair my vehicle if the value is almost the same as the cost of repair, do you think I should accept this offer or should I post on Hello Peter or should I accept this offer and then try claim the balance from the woman herself in the small claims court?

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## cmes

Duplicate post remove to avoid confusion. Please see here http://www.theforumsa.co.za/forums/s...e-claim-please

Could someone please help with some advice.

Two months ago I was in a car accident where a Bakkie skipped the red light in front of me and (although i braked in attempt to prevent the collision) I collided into the side of him, writing off my car and badly damaging his. When my husband arrived on the scene, the driver of the bakkie apologized and said that he had not seen the red light. The accident was reported and both cars were towed away. After reporting it to our new insurance company, we were informed that there was an error when we changed insurers and the car was not covered. Thankfully the accident was on CCTV camera footage so we proceeded with a third party claim. For obvious reasons I will not mention the company's name, but it has been a nightmare ever since. For two months we have jumped through ever hoop they have thrown our way and finally they have sent us an offer of approximately R13 000 for a car that's retail value is R101 000. They used the excuse of "Apportionment of damages act" and claimed that I had been negligent therefore I was 30% responsible for the accident and 30% responsible for the damages resulting. They did not compensate for towing fees or medical costs which came to an additional +-R8000.

We sent a complaint to their supervisor stating that they can not possibly hold me 30% accountable as I did Brake and could not swerve to avoid the accident as I was in the middle lane of 3 lane traffic. They then came back to us and said they stick to their offer and even if we take them to court the court will make the same decision. Our next step is to contact a lawyer and directly sue the other driver for all costs involved however I just want to find out what people think before I waste more money that I don't really have on lawyers fees.

Could someone please help?

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## Derryn

Hi all I had an accident 05 Oct. Robots were not working at intersection but local traffic officer was directing traffic. I was heading north. The officer signaled for traffic from north and south to proceed whilst he had stopped traffic approaching from east and west. Suddenly a lady approaching from east came through the intersection and knocked into me. Damages to my vehicle +- R175000. Right front and door. Her vehicle full damages to front. Traffic officer won't give a statement. I bought the car Audi a6 only two weeks prior cash and didn't get around to insuring it. Other driver is insured but says they are finalizing their clients claims and will apply apportionment. Can anybody provide any advice

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## JohanvanderMescht

Can someone assist me with advise following a car accident please?

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## Diablo87

I had a a third party claim and these guys claim that I owe them even though I was travelling under the speed limit and have right of way. The other person came off a stop Street bumped me and made a 360 back to the stop Street.  I have the video and my tracking report shows I was under the speed limit, they gave me the following:


Calculation of the offer is as follows:



Your Damages:

Market Value                                                               R37 750.00

Less Salvage@ 45%                                                      R16 987.50

                                                                                     R20 762.50 x 60%

Subtotal                                                                        R12 457.50             







Our Damages                                                                

AS PER INVOICE                                         R71 186.68 X 40%

Subtotal                                                                           R28 474.67





Your Damages less our Damages

R12 457.50 R28 474.67

R -16 017.17

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## Madri

> Sounds like they're playing the blame apportioning game. But even then, there certainly seems to be a problem with their maths.
> 
> If you are confident you didn't contribute to the cause of the accident (other than unfortunatley being there), my suggestion:
> Don't sign acceptance of their offer (that's all it is).
> Respond by instructing an attorney to issue summons for the full quantum of your damages against the driver (and/or owner if the vehicle was being used for business) of the other vehicle.


Good Morning

I trust you are all well.

I am in a similiar situation with a third party claim. It was an intersection with two stop signs on left and right so oncoming traffic would have right of way. At the one stop there was a car and at the other stop there was a huge truck and behind it a lane of traffic waiting to cross the road. The guy that was behind the truck in a white toyota bakkie decided to pass the truck,  not looking at uncoming traffic from the other stop that wanted to cross the road or maybe turn, he did not even stop to check if there was traffic coming and he was driving with speed and then went in infront of me. 

I could not see anything else as the truck was to big and the buildings was in my way. I was under the speedlimit and I did check for cas crossing the road at the stops even though I had right of way because there was no stop for me. The only option I had was to go straight brake and pull my Handbrake.  I had no other option because have I done something else and swing out I would have hit the truck or the other car. 

The issue that I have is the my car is a write off and the bakkie only had little damage like the wheel and fendor, while my car was so badly damaged infront. Unfortunately I do not have insurance anymore on my car so I decided to cliam from them as if was due to their negligence. The Market value of my car is about R65 000, the quote for the damages is R45 000. I have been left without any transport for the past two months as it was my only car. I have received the offer from Old Mutual and they went, based on case law of Neuhaus v Bastion Insurance company, that you have to have a look out for all, which I do understand but I did, I am just not supernatural to see through a huge truck to know and to see oh wow a bakkie is coming from the righthand side. Now they have worked the offer out based on the 60/40 rule. They have taken the damages to calculate it at the end they are making an offer of R13 000 to me and writing my car off. 

I just do not feel it is fair. I have not asked for it to happen and I did obey the rules of the road. 

Could you please assist me in this matter? 

Thank you

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