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Claiming for damages to property which resulted from a motor vehicle accident

February 2018

#roadrules #claimingfordamages #smallclaimscourt #accidents #2018

Philip Swanepoel (BA Law, LLB, LLM)

Motor vehicle accidents can result in both personal injuries and damage to your property. One can claim from the Road Accident Fund for personal injuries (click here for more information on lodging a claim with the RAF), but a claim for damage to your property will have to be instituted against the third party whose negligence have caused the accident. A claim for such damages is done in accordance with the law of delict which aims to allocate loss to the person who bears liability for the said loss. The most common remedy in delictual claims is compensation.

The first important thing to note is that a claim for damages can only be instituted by the owner of the damaged vehicle since a mere driver of a vehicle will not have the necessary locus standi to institute such a claim. The claim should, on the other hand, be instituted against the negligent driver and not the owner of the motor vehicle which was driven negligently, unless the driver was an employee who was driving the vehicle as part of the course and scope of his or her employment. This is known as vicarious liability where the employer will be the appropriate person to claim damages from.

One must, before instituting a claim, first determine the full quantum of the claim. This should be done by a qualified motor vehicle assessor who can either be independent or affiliated with an auto body repair centre. The assessor should then determine the extent of the damage to your motor vehicle and then calculate what the fair and reasonable amount is for fixing it.

You can hereafter contact the party whose negligence have caused the accident. This can be done by serving a letter of demand on the other party in which you set out the reasons for you claim and the amount claimed. The other party can then either pay the quantum or challenge your demand if there is a dispute regarding the cause of the damage or the quantum of the claim. It is furthermore important to note that these complex disputes can often lead to litigation which is a very expensive (even if you are successful) and drawn out process. You should thus contact a lawyer if you want to claim from another party because of the complex nature of the delictual process. It is also advisable to instruct your attorney to try and negotiate a fair settlement deal in order to avoid the exorbitant costs associated with litigation.

Another alternative is going to the small claims court if the damage to your vehicle does not amount to more than R15 000 (click here to read more about approaching the small claims court). This is a cost effective, speedy and simple option since you do not need a lawyer to institute a claim in this court. It is important to note that companies cannot approach the small claims court and the decisions of this court can only be reviewed and not appealed.

This article aimed to just very briefly set out how one should approach a claim for damages to your motor vehicle after a road accident. It is clearly a complicated process which will cost you a lot of time and money. This is why it is best to insure your motor vehicle. Your insurance company will not only have your vehicle repaired after an accident, but they will in most cases also pursue the claim against the negligent party on your behalf in order to make sure that you are also indemnified from the excess payment which you might have to pay initially. A good insurance policy with a recognised and trusted insurance provider will thus save you both time and money.




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