THE LAW OF APPORTIONMENT OF DAMAGES IN SOUTH AFRICA: BALANCING FAULT AND COMPENSATION
In many civil claims, particularly those arising from motor vehicle collisions, personal injury matters, and delictual claims, where more than one party may have contributed to the damage suffered, South African law recognises that it would be unfair for one party to bear the full burden of liability where another party's conduct also played a role in causing the loss. This principle is governed by the Apportionment of Damages Act 34 of 1956.
What is Apportionment of Damages?
Apportionment of damages refers to the process whereby a court determines the extent to which each party's negligence contributed to the harm or loss suffered. Where a plaintiff is found to have been partly responsible for the damages they sustained, the amount recoverable from the defendant may be reduced proportionately.
The purpose of the Act is to ensure fairness by allocating responsibility according to the degree of fault attributable to each party.
The Traditional Position
Before the enactment of the Apportionment of Damages Act, the common law principle of contributory negligence applied. Under this approach, a plaintiff who was found to have contributed in any way to their own loss could be completely barred from recovering damages, regardless of the defendant's degree of fault.
This often led to harsh and inequitable outcomes. The Act was introduced to address these shortcomings and to allow courts to make more balanced determinations.
How Does the Act Operate?
The Act provides that where a plaintiff suffers damage partly as a result of their own fault and partly as a result of the fault of another person, the plaintiff's claim will not be defeated entirely. Instead, the damages awarded will be reduced in proportion to the plaintiff's degree of fault.
For example, if a court determines that a plaintiff suffered damages amounting to R100,000 but was 30% responsible for the incident, the plaintiff's award may be reduced by 30%, resulting in compensation of R70,000.
The court must consider all the circumstances of the matter and determine the relative blameworthiness of the parties involved.
Common Applications
The law of apportionment of damages frequently arises in:
In road accident matters, for instance, both drivers may have acted negligently. One driver may have exceeded the speed limit while the other failed to keep a proper lookout. In such circumstances, a court may apportion liability between the parties according to their respective contributions to the collision.
Joint Wrongdoers
The Act also regulates situations involving multiple wrongdoers. Where two or more persons jointly contribute to a plaintiff's damages, the plaintiff may institute action against one or more of the responsible parties. The Act provides mechanisms through which liable parties may seek contributions from one another according to their respective degrees of fault.
This ensures that liability is distributed fairly among all responsible parties.
Conclusion
The law of apportionment of damages plays a vital role in promoting fairness and justice within South African civil litigation. Rather than denying a claimant compensation merely because they contributed to their own loss, the law allows courts to allocate responsibility proportionately according to the degree of fault of each party.
If you have suffered damages arising from the negligence of another person, or if you are defending a claim where liability is disputed, obtaining legal guidance at an early stage can significantly affect the outcome of your matter.