Who pays for the damage to my car from an accident that wasn’t my fault?

If you are involved in a car accident in which you are not at fault, it’s reasonable to assume that you should not have to pay for the damage to your car, and that it would be up to the driver at fault, or the driver’s insurer, to do so. Unfortunately, however, it is likely that you will bear some of the burden, either in time and effort recovering costs directly or in going through your insurer.

An example of a type of accident in which the other driver is 100 percent at fault is if you have stopped at a red traffic light and a car goes into the back of you. How do you ensure that you are rightfully compensated?

A major problem in South Africa is that a large proportion of vehicles on our roads are not insured. For the purposes of this article, we will assume that your car is insured but the car of the driver who caused the accident (known as the “third party”) may not be. We will also assume that no one has been injured in the accident.

There are three avenues open to you: you can approach the third party directly; claim from the third-party’s insurer, if insured; or simply lodge a claim with your own insurer. Each option has its pros and cons, as explained below:

1.  Claim directly from the third party

According to Discovery Insure’s brochure on rights and responsibilities after a vehicle accident, if you did not cause the accident, you have the right to claim compensation from the driver who was at fault.

To claim directly, without involving an insurance company, you will need to take legal action through the courts. For a claim of less than R20 000, you can approach the Small Claims Court, where the costs are minimal and you do not need a lawyer to represent you.

However, if the claim is for a larger amount, you would have to take your case to the Magistrate’s Court or High Court, where you would need costly legal representation.

The process is long and arduous, even for a Small Claims Court claim: apart from providing evidence, including a police report and witness statements, you must first issue the guilty party with a letter of demand, and only if your claim is not settled in this way can you proceed in court. The whole process can take months, after which you may still not get compensated if the third party is unable to pay.

2.  Claim against the third-party insurer

Wynand van Vuuren, client experience partner at King Price Insurance, says that if the third party is insured, you have the option to claim directly from his or her insurance company.

“But even in these circumstances, where you take on the recovery directly with the third party or their insurer, just keep in mind that you still need to bring the accident to your insurer’s attention,” Van Vuuren says.

Ernest North, the co-founder and chief marketing officer of Naked Insurance, says that on paper this option might sound like a good idea, because by not claiming from your own insurer you may avoid paying your excess or spoiling your no-claim record.

“In reality, it will likely be a slow, administration-heavy process that could delay the repair of your vehicle or the recovery of the money you spent getting your car fixed,” he says.

You will need to prove that the other driver was responsible, submit supporting documents, provide evidence of the damage, and often obtain repair quotes.

“It is also important to remember that you are not that insurer’s client, so it’s not their normal claims process. Their role is to protect their own customer’s position, which means they may dispute liability or rule that some of the blame of the accident should be apportioned to you. In that case, they might claim repair costs from you or your insurer,” North says

North says that even if you don’t claim from your insurer, it is wise to notify them if another party was involved. “This ensures that your insurer can respond if the other driver, or their insurer, later gets in touch,” he says.

3.  Claim from your insurer

North says the safest and quickest route to get your vehicle repaired is to claim from your own insurer, whether the accident was your fault or not.

“Your insurer is there to protect you from unforeseen financial losses and it is usually best to let them do their job. The insurer will assess the damage, manage repairs and decide whether there is a reasonable prospect of recovering the costs from the third party or their insurer, absorbing the difference (less your excess) if it cannot recover the full cost of the repair,” he says.

The downside of this option is that you will need to pay your excess when the claim is processed, and if you are with an insurer that offers bonuses or discounts for not claiming, you may lose out on any no-claims benefits.

North says that if your insurer recovers the repair costs from the other party or their insurer, your excess can be refunded.

“If the at-fault party is not insured, recovering the excess is more challenging. Your insurer may still try to recover the cost of the claim directly from the at-fault driver, but this depends on whether the driver can be traced, liability can be proven, and if the person has the financial means to pay. If recovery is unsuccessful, you will usually remain responsible for the excess,” North says.

Insurers differ on whether, if they recover the claim costs and refund your excess, your no-claims status will be restored. The claim will nonetheless be recorded on your claims history.