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Motor vehicle collision matters do not only concern delictual liability on the part of a wrongdoer and the rights of an innocent party/claimant. The involvement of insurance companies in such matters have both legal and practical corollaries.

The case of Gareth Russel Blaauw v Katrina Gertruida Veenman (17170/2008) [2012] ZAWCHC 124 (the “Blaauw matter”) concerns a delictual action for damages arising out of a motor vehicle collision, where the Plaintiff alleged that the collision was due to the Defendant’s sole negligent driving, resulting in the Plaintiff’s motor vehicle being written off.

On evidence, the Defendant in the above matter was indeed found to be solely liable for the collision and was ordered to satisfy the Plaintiff’s claim for damages. However, the Plaintiff was wholly indemnified by his insurance company, who had settled the Plaintiff’s damages claim including additional charges. In its obiter dictum, the Court shed some light on this ostensible anomaly and held that, “[w]ith regard to the quantum of the Plaintiff’s claim it is common cause that the Plaintiff has been indemnified by his insurer (Santam) in terms of a policy of insurance for damage caused to his vehicle. But this payment by Santam of the Plaintiff’s damages is res inter alios acta (i.e. a thing done between others does not harm or benefit others) and may not in any way affect the question of the Defendant’s liability for the wrong done.” In view hereof, the Defendant remains legally liable due to his wrongful conduct causing loss to the Plaintiff’s patrimony albeit, in practical terms, that the Plaintiff has been restored/compensated for such loss by his insurance company. 

However, let us shift to the insurance company in view of the above Defendant’s prevailing legal liability.

The insurance company settled the damages claim of the Plaintiff in the Blaauw matter. Thus – would the insurers, as the indemnifying (outlaying) party, not have an ensuing entitlement to be recompensed for its expenditure?

The doctrine/principle of subrogation under the Law of Insurance answers wisely.
The Court in the case of Mcclain v H Mohamed & Associates (224/99) [2003] ZAWCHC 21 (5 June 2003) defines the doctrine of subrogation as, “the doctrine whereby an insurer which has indemnified its insured under a contract of indemnity insurance, is entitled to reimburse itself out of the proceeds of any claims that the insured may have against third parties in respect of the loss…”.
Put another way, the doctrine of subrogation provides that if an insurer pays a loss to its insured, due to the wrongful conduct of another, the insurer is subrogated to the rights of the insured and may institute action against the wrongdoer for recovery of its outlay. (This occurrence is in fact quite common in the insurance sector).
The Court in Nkosi v Mbatha (AR20/10) [2010] ZAKZPHC 38 (6 JULY 2010) further qualified the subject and held that the pre-requisites for this doctrine are: “Firstly, that payment or reinstatement has been made; secondly, a valid and subsisting policy exists between the insurer and insured and thirdly, that the assured must have had right to claim compensation from a third party.”

It appears that vehicle insurance companies are not passive indemnifiers serving their insured clientele in instances of collision damage. On the contrary, Insurance Law empowers the insurer to be active pursuers of their legal interests in much the same way as Delictual Law empowers an innocent claimant after suffering loss. After all, insurance companies are legal entities with rights/interests as you and I.

The doctrine of subrogation – your vehicle insurance company claims too.


Whitney Erin Maclons

LLB | LLM (Mercantile Law)

Litigation & Arbitration Department – Associate

Adriaans Attorneys

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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