When you've been in a car accident, the question that determines almost everything — your claim, your premium, your legal exposure — is a simple one: whose fault was it?
You might think the answer is obvious. The other driver ran a stop sign. They rear-ended you. They were on their phone. But the way insurance companies decide fault isn't about what's "obvious" — it's about what can be proven.
This guide pulls back the curtain on exactly how South African insurers determine liability, what evidence they actually weigh, and how you can make sure their decision goes in your favour.
Step 1: They Read Your Statement First
The very first thing your insurer does after you log a claim is read what you wrote. They're looking for:
- A clear, coherent account of what happened
- Consistency with the police report
- Consistency with the photographs
- Any admission of fault on your part
- Any details that contradict the other driver's version
If your statement is vague, rambling, or contradicts other evidence, your claim weakens immediately — even if the accident wasn't your fault.
This is why a properly drafted written statement is so important. AffidavitAssist helps you produce a structured, legally sound statement that holds up under exactly this kind of scrutiny. Read more: What is AffidavitAssist and How Can It Help You?
Step 2: They Examine the Photographs
Insurance assessors look at scene photographs the way detectives look at evidence — methodically, and with suspicion.
What they're looking for:
- Vehicle positions — Where did each vehicle come to rest? This often reveals direction of travel and impact angle.
- Damage patterns — Front-end damage on one car and rear damage on the other typically indicates a rear-end collision (and the rear-ending driver is almost always at fault).
- Skid marks — Tell the story of who was braking and how hard.
- Road markings — Was someone on the wrong side of the road? Crossing a solid line?
- Traffic signs and robots — Critical for proving who had right of way.
- Environmental factors — Wet roads, poor lighting, blind corners.
The more comprehensive your photo evidence, the harder it is for the other party to spin the story. This is exactly what VASA (Vehicle Accident Scene Assist) is built to capture — read more: What is VASA and How Can It Help You?.
Step 3: They Apply the Rules of the Road
South African insurers rely heavily on the National Road Traffic Act (Act 93 of 1996) and standard motoring conventions. Some of the principles they apply:
The "Rear-End Rule"
If you rear-end another vehicle, you're almost always at fault. The assumption is that you were following too closely or not paying attention. There are limited exceptions — like if the car ahead reversed into you.
The "Right of Way" Rule
At intersections without robots or stop signs, the vehicle on the right has right of way. At robots, the vehicle facing green has right of way. At stop streets, the first to arrive (and stop) has right of way.
The "Speeding Presumption"
If skid marks, damage patterns, or witness statements suggest a vehicle was speeding, that driver carries some or all of the fault — even if they technically had right of way.
The "Drunk Driving Presumption"
Any driver who was over the legal limit at the time of the accident is generally considered partially or fully at fault, regardless of other factors. South Africa's blood alcohol limits are set out in the National Road Traffic Act.
The "Reckless Manoeuvre Rule"
Sudden lane changes, illegal U-turns, overtaking on solid lines, jumping a red light — all of these typically establish fault, regardless of who hit whom.
Step 4: They Listen to Both Drivers (and the Witnesses)
Both insurers — yours and the other driver's — will collect statements from all parties involved. They'll specifically look for:
- Where each version agrees (these facts are likely true)
- Where they conflict (these become the "disputed facts")
- What independent witnesses say (this often resolves the disputes)
This is why witness details are so critical. A neutral third party who saw what happened can completely shift the determination. Without witnesses, it's literally one person's word against another's — and insurers will often default to shared liability (50/50) when they can't prove otherwise.
Step 5: They Check the Police Report
The police report carries significant weight, especially if officers attended the scene. Insurers look at:
- The case number
- Any traffic violations issued at the scene
- The officer's notes and observations
- Any breathalyser or other test results
If a driver was issued with a fine for a traffic violation that contributed to the accident — speeding, jumping a red light, reckless driving — that's often the deciding factor.
For more on the legal process after an accident, read: Motor Vehicle Accidents in South Africa: What You Need to Know and What You Need to Win.
Step 6: They May Send an Assessor
For more serious claims, your insurer (or the other driver's) will appoint an assessor — a specialist who physically inspects the vehicles, the scene, and the evidence. Assessors are trained to read damage patterns and reconstruct accidents.
If the photos and statements don't tell a clear story, the assessor's report often does.
Step 7: They Apportion Liability
Once everything is reviewed, the insurer assigns liability. The outcome is usually one of three things:
- 100% the other driver's fault — your claim is paid in full (less your excess)
- 100% your fault — your claim might be paid (if comprehensive), but your premium will likely increase, and the other party's insurer will pursue your insurer
- Split liability — fault is shared (e.g., 70/30, 50/50). Each insurer pays a proportion accordingly.
Split liability is more common than people realise. Insurers often use it as a "safe" option when evidence is unclear — which is exactly why clear, comprehensive evidence is so important.
What You Can Do to Tip the Scale in Your Favour
Insurers reward drivers who make their job easy. If your evidence is clear and your story is consistent, they'll typically rule in your favour. Here's how to set yourself up to win:
- Document the scene properly — use VASA to capture every angle, every detail
- Get witness contact details — they're worth their weight in gold
- Get a police case number — without it, your claim can stall
- Don't admit fault — let the evidence speak
- Submit a clear written statement — use Affidavit Assist to draft it properly
- Keep all documentation — receipts, repair quotes, medical reports
For a deeper look at common errors, read: The 7 Biggest Mistakes People Make After a Car Accident (and How to Avoid Them).
What If Your Insurer Decides Against You?
If your insurer concludes you were at fault and you disagree, you have options:
- Request a written explanation of how they reached the decision
- Submit additional evidence — photographs, witness statements, dashcam footage
- Escalate to the Ombudsman for Short-Term Insurance (OSTI) — a free, independent dispute resolution service
- Take the matter to court — for serious disputes
The Ombudsman is often the most accessible route for ordinary consumers, and they investigate insurer decisions independently.
The Bottom Line
Insurance companies don't decide fault based on who shouts loudest, who feels most wronged, or who tells the most emotional story. They decide based on evidence — photographs, statements, witness reports, police records, and physical damage analysis.
The drivers who consistently win their claims are the ones who walk away from an accident with airtight documentation. Not because they're luckier — because they're prepared.