However, you will only get money from the Fund if you did not cause the accident. If you and the other driver were equally to blame for the accident, you will only be paid half of your damages. In the event that both drivers were negligent then the Fund will take into account the Apportionment of Damages Act (No 34 of 1956). This Act allows the Fund to divide (also called apportion) the compensation so that it is a just and equitable amount that is awarded to the injured party.

If the accident was caused solely by your own negligence, you will not be entitled to claim from the Fund. This includes accidents where you were the only person and vehicle involved, for example if you drove into a pole.

You have to prove that somebody else was driving negligently before your claim will be paid. A driver will be negligent if you can prove on a ‘balance of probabilities’ that he or she did not drive the vehicle in a way in which a reasonable driver would have driven in the same circumstances.

In other words, if you suffered damages caused partly by your own fault and partly by the fault of another person, the court will reduce the amount of damages in its award equal to the percentage that it feels you contributed to the accident.

Sometimes it is not the driver of the vehicle who was negligent but rather the owner of the vehicle. Owners of vehicles should make sure that everything on the vehicle is working properly. If they do not and an accident happens because of this, then they are negligent. In this case, the driver has a third party claim.

Example:

Thami borrowed his employer’s car to take some people to the town. The car had bad brakes but Thami didn’t know about this. When Thami got to a stop street in the town he put on brakes, but the brakes didn’t work. As a result Thami crashed into a lorry in front of him. Three people in the car and the driver of the lorry were injured. These people can all make third-party claims, because the owner of the car was negligent for not keeping the car in a roadworthy condition.