WHAT ARE THE CONSEQUENCES OF THE NEW ROAD ACCIDENT FUND AMENDMENT BILL 2023

The Department of Transport published a draft Road Accident Fund Amendment Bill on 8 September 2023. The amendment bill aims to make a lot of changes to the way the RAF actually works, but one of the more contentious points is moving away from a compensation model to a “social benefits” model.

Should the draft bill come into effect as law, the rights of drivers, passengers and pedestrians to claim compensation for injuries which they have sustained in a motor vehicle collision will be severely prejudiced.  This article aims to highlight some of the more important restrictions on existing rights that the public should be aware of.

Loss of earnings

Loss of earnings are currently paid out to claimants in a lump sum. This amount is capped subject to inflation. However, under the new system, a claimant will receive annual payments that will eventually equate to the lump sum. The amount payable to victims will be subject to a periodic review of the RAF’s liabilities. If the claimant dies before the full amount is received, the payment will automatically stop, and heirs will not benefit.

A periodical re-assessment means that a claimant will have no certainty on whether future benefits will be payable.  Essentially, the loss of earnings compensation is put into place to put a claimant back in the financial position they would have been but for the accident and without a lump sum payment or a guaranteed annual payment, a claimant would have little or no chance of attaining financial rehabilitation.

General Damages

Currently, claimants receive compensation referred to as general damages, which is an amount of money awarded for pain and suffering for claimants that have sustained serious injuries.  The new system seeks to abolish the claim for general damages. It must be taken into consideration that by removing the claim for general damages, some victims may end up receiving no benefits from the RAF, even if they sustained serious injuries.

An example may be of a pensioner or an unemployed person who was rendered a paraplegic or quadriplegic, or who may have suffered an amputation or significant brain injury.  All these injuries have a severe impact on the victim’s activities of daily living and emotional well-being and have permanent and lasting consequences for the victim for the rest of his/her live, yet the victim will not be compensated for the pain and suffering he/she will suffer for the rest of their lives.

Medical expenses

Another major effect of the amendment which will have a direct impact on the public is that medical aids will no longer be able to be reimbursed for accident-related medical expenses which they pay out. This will drastically increase premiums for all medical aid members because the industry is forced to mitigate the risk of members not being covered by the Road accident Fund.

Other exclusions

The amendment bill adds a list of circumstances where claimants are explicitly excluded from receiving compensation. This includes zero liability on the fund where:

  1. The accident did not occur on a public road. Currently, a claimant is covered for negligent driving of a motor vehicle irrespective of where the accident took place. The draft bill proposes that in order for a claimant to qualify for compensation, the accident must have occurred on a public road. For example, injuries suffered by persons in a parking lot, driveway of their home or other private roads will not be covered.
  2. Hit and run accidents. Currently a claimant is covered if there is a hit and run accident. The bill seeks to abolish the so-called hit and run accidents and excludes claimants from claiming compensations where the motor vehicle is unidentified.
  3. Any driver, pedestrian, or cyclist is over the legally prescribed alcohol limit, regardless of who caused the accident, or was a pedestrian crossing a highway. This also excludes their dependents from claiming a loss of support, should they pass away as a result of the motor vehicle accident.
  4. The vehicle operator’s passenger liability insurance cover provides cover in relation to the passengers injured or killed in the motor vehicle accident.
  5. The motor vehicle accident occurred in circumstances where a producer, importer, distributor, or retailer is liable for the harm caused by, or arising from the driving of a motor vehicle involved in the accident, as is contemplated in section 61 of the Consumer Protection Act, 2008 (Act No. 68 of 2008).
  6. The motor vehicle accident occurred in circumstances where the motor vehicle was driven while filming a movie or an advertisement, or during drag racing, or during the performance of a stunt, or a similar event.
  7. The claimant is a not a South African citizen or direct permanent resident as defined in the Immigration Act, 13 of 2002 (as amended).

As highlighted above, should the proposed bill come into effect this will have dire consequences for the public as a whole. Therefore, the public is encouraged to participate by objecting to the proposed bill before 8 October 2023.  Objections can be made at https://dears.africa/have-your-say-on-the-road-accident-fund-amendment-draft-bill-2023/

Food delivery scooters and road accidents – can you claim from the RAF?

Road accidents involving food delivery drivers are far more common than you can imagine, with most cases reported to have resulted in serious injuries and death. Following the COVID-19 pandemic, with most people choosing to stay indoors, the food delivery industry expanded and presented more opportunities for players in the industry. It also created job opportunities in South Africa for both locals and immigrants. However, the successes in the industry have come with a surge in road accident statistics in the country.

It is trite that the function of the Road Accident Fund (the RAF) is to compensate for loss or damage wrongfully caused by the driving of motor vehicles (section 3 of the Road Accident Fund Act 56 of 1996 (“the Act)). If you were injured in a road accident whilst working as a food delivery driver, and the accident was not your fault, you can lodge a claim with the RAF. This is crucial as due to the nature of their work, many scooter drivers struggle with insurance claims and compensation enjoyed by other employers if they are involved in accidents.

The courts have adjudicated upon many cases involving scooter drivers’ accidents and such cases have proven that scooter drivers are one of the most vulnerable road users. For example, a plaintiff scooter driver testified that “he was on route to deliver a pizza on his scooter on the date of the accident…as he was nearing a slight curve in the road, he heard the engine of a vehicle roaring behind him. In the curve, the vehicle sped past him, forcing him to move further to the left of the road…he had no choice but to steer his scooter onto the gravel verge of the road…the plaintiff pushed out his right foot at which point the scooter went over him.” (Taylor v The Road Accident Fund 2021 JDR 2393 (ECG)).

The reverse is also possible for victims of accidents caused by scooter drivers. Scooter drivers can also be negligent by distracting other drivers and causing them to lose control of their vehicles or even collide with pedestrians. From the definition of the term “motor vehicle” for the purposes of third-party litigation under the RAF Act, it is apparent that a motorcycle or a scooter qualifies as a motor vehicle.  The definition of a motor vehicle accident is found in section 1 of the Act and is defined as any vehicle designed or adapted for propulsion or haulage on a road by means of fuel, gas, or electricity.

Depending on the nature of the claim, both the scooter drivers and other road users can claim from the RAF for General damages for pain and suffering; past and future hospital and medical expenses; past and future loss of income/ earnings capacity. Dependants of deceased victims can claim for past and future loss of support and funeral expenses.

The Constitutionality Dilemma of Regulation 7 to the Road Accident Fund Act, As Amended

The Constitution of the Republic of South Africa, in its supremacy status, requires all three arms of the State, (i.e., the legislature, the executive and the judiciary) to adhere to, and uphold all its principles. This article seeks to discuss the principle of separation of powers as enshrined in the Constitution, with regards to Regulation 7[1] to Road Accident Fund Act 56 of 1996, as amended.

The Road Accident Fund (“the RAF”) is a statutory body established by the Road Accident Fund Act (“the Act”) with the purpose of compensating individuals who get involved in motor vehicle accidents, and who qualify for such compensation in terms of the Act.

The Constitution establishes three arms of the State, namely the legislature, the executive, and the judiciary, and further articulates the various functions and powers that each arm has. The principle of separation of powers is implied by this constitutional arrangement, and it is a settled legal understanding that the said principle is entrenched in the Constitution.

The principle separates powers and functions amongst the three arms of the state, in order to ensure that each arm exercises limited power, and that there is no potential for abuse of same through checks and balances.  The legislature has powers and functions to enact legislation, the executive has the powers and functions to implement and enforce the legislation, and the judiciary has the powers and functions to interpret legislation.

  1. [1]  A claim for compensation and accompanying medical report referred to in section 24(1)(a) of the Act shall be in the form RAF 1 attached as Annexure A to these Regulations, or such amendment or substitution thereof as the Fund may from time to time give notice of in the Gazette.
  2. A claim by a supplier referred to in section 34(3) of the Act shall be in the form RAF 2 attached as Annexure B to these Regulations, or such amendment or substitution thereof as the Fund may from time to time give notice of in the Gazette.
  1. The particulars and statements referred to in section 22(1)(a) of the Act shall be furnished to the Fund in the form RAF 3, attached as Annexure C to the Regulations, or such amendment or substitution thereof as the Fund may from time to time give notice of in the Gazette.”

There are various exceptions to the principle of separation of powers. Even though legislation enactment falls solely within the province of the legislature as indicated above, it can delegate some of its legislative powers to State functionaries (ministers), to enact what is termed Subordinate legislation. Subordinate legislation are regulations crafted for, and are subject to, a particular legislation or Act of Parliament and they are created to expand on and echo the main Act.

In the case of AAA Investments v Micro Finance Regulatory Council, the Constitutional Court considered the provisions of section 15A of the Usuary Act to determine whether the power conferred on the Minister in section 15A either expressly, or by necessary implication, authorises the sub-delegation of the delegated power to exempt. Langa CJ held, “[t]he authorisation, I must stress, must flow from section 15A and not from the Notice. The power to delegate must exist prior to and independently of the manner in which the Minister exercises his powers.” Langa CJ rounded up by stating that “there is no express power for the Minister to delegate.”

In essence, the court in the above case held that for a Minister to sub-delegate their delegated powers, there must be an express empowering provision, or a provision from which necessary implication can be drawn from, in the main Act. Therefore, absent the express empowering provision, or the provision from which necessary implication can be drawn, in the main Act, the sub-delegation of delegated power is not allowed.

Provisions of regulations 7, and sub 3 in particular, purports to sub-delegate authority to publish and amend notices in the government gazette to the RAF, which powers rest with the Minister in terms of section 26(1)[2] of the Act.

[2]The Minister may make regulations regarding any matter that shall or may be prescribed in terms of this Act or which is necessary or expedient to prescribe in order to achieve or promote the object of this Act”

It seems that the Minister, through regulation 7, sought to sub-delegate their delegated power to the RAF, in so far as its wording permits for the RAF to publish and amend notices in the government gazette.

As discussed in the above case law that the Minister is unable to sub-delegate their delegated powers where the main Act has no express provision or by implication empowering them to do so. In this case there is no express provision in the Act nor by implication and therefore regulation 7 as it stands violates the principle of separation of powers and should be declared unconstitutional.

 

Author: Qiniso Sibisi | Candidate Attorney.

SHOULD RAF BE IMPOSING A REQUIREMENT ON FOREIGN NATIONALS TO PRODUCE STAMPED PASSPORTS AFTER FINALISATION OF THE MATTER?

The Minister published an amendment to the Regulations on 27 May 2022 which replaced the RAF1 claim form as previously published. However, this amendment has had further reaching effects than probably anticipated.

The effects of the amendment are going to be discussed hereunder the following headings:

A. At lodgement of the claim;

B. At trial;

C. After judgment

 A . At the lodgement of the claim

There are various articles written on this matter with many crying out that this regulation infringes on the rights of foreign nationals who are in South Africa and who are unable to lodge claims with the Road Accident Fund because of the requirement as set out in Section 6.1[1] of the new RAF1 claim form.

This matter is currently before the courts as brought by Adam Mudawo, a foreign national who was involved in a motor vehicle accident who is unable to file a claim with the Road Accident Fund as at the time of the accident his work permit had expired, and we await judicial guidance.

B. At trial

The courts have had to decide on whether the lack of proof that a Plaintiff was in South Africa legally exonerates the RAF from liability to compensate such Plaintiff for personal injuries sustained as a result of a motor vehicle accident. In the following cases, the presiding officers concluded as follows:

  • Madima AJ, in Rumbidzai vs RAF[2] found that the Road Accident Fund was liable to compensate Plaintiff even though her deceased husband was employed with no work permit, however, proposed that the compensation to be awarded, be subjected to a higher contingency deduction;
  • Mhlambi AJ in Lesaoana v RAF[3] ruled that the Plaintiff, a foreign national with no work permit, was entitled to compensation, however, he recommended that a higher contingency deduction be applied;
  • In Dlamini v Multilaterale Motorvoertuigongelukkefonds[4], the presiding officer found the Defendant to be liable to compensate an illegal taxi-driver, but recommended that a 30% deduction should be imposed on the award.

So, from the above Case law, the courts do not disqualify a Plaintiff for their entitlement to compensation merely because they are foreign nationals, who were in South African illegally at the time of the accident, however, suggests that a higher contingency percentage be applied.

C. After judgment and/or offer and acceptance

The following response was received from the Road Accident Fund to follow-up correspondence, enquiring why the capital of a foreign national was not included on the latest RAF payment list:

“…in terms of the RAF internal finance department … all foreign claimants must provide stamped passports, showing entry and exit dates into the country, to indicate that they were in the country legally at the time of the accident…Payment won’t be processed until we have received the abovementioned documents.”

Can the Road Accident Fund impose on a Plaintiff this regulation when the Plaintiff has obtained a judgment in the form of a court order or where an acceptance of offer has been signed?

The decision by the RAF’s internal finance department to extend this requirement, arising out of a regulation, to matters that have already been adjudicated and/or finalised is ambitious and their action borders on breach of a court order. This is an unfair requirement considering that the issue of liability to compensate would have already been decided, either by the courts or by RAF itself. The RAF has many opportunities to raise an objection to a claim for non-compliance:

  • At lodgment, the Fund could have notified the claimant of its objection in terms of Section 24(5)[5];
  • At issuing of Summons, the Fund could also have raised a Special Plea on non-judicio locus standi;
  • At trial, the Fund could have raised an issue at law that it is not liable to compensate the Plaintiff if they do not provide prove that at the time of the accident they were in South Africa, legally;
  • After judgment, the Fund could have appealed the judgment and/or applied for the variation of a court order and/or applied for the rescission of judgment.

The RAF did not choose any of these remedies and once compliance with the court order and/or a settlement agreement, is requested, they impose another hurdle for claimants to jump through.

The purpose of the Act was clearly not to discriminate between locals and foreign nationals as stated in Section 17(1)[6], the introduction of the amended RAF1 form, especially the requirement under paragraph 6.1 of the form is no longer enhancing the purpose of the Act, according to Section 26(1)[7], instead it is providing an exclusion of liability to the RAF. This amendment of the RAF1 claim form would have been better served through a legislative amendment to Section 17(1) of the Act, which requires a debate in Parliament of the proposed changes instead of introducing it as a regulation, where, the only requirement is that the interested parties should be offered the opportunity to comment with no requirement to account on whether the comments were considered and to what extent were they incorporated into the final amendment.

[1] Certified copy of claimant’s identity (if claimant is a foreigner proof of identity must be accompanied by documentary proof that the claimant was legally in South Africa at the time of the accident).

[2] 83879/14 [2015] ZAGPPHC 1071 (2 SEP 2015).

[3] 1135/2011 [2013] ZAFSHC 39 (7 March 2013).

[4] 1992 (2) ISA 802 (T).

[5] If the Fund or the agent does not, within 60 days from the date on which a claim was sent by registered post or delivered by hand to the Fund or such agent as contemplated in subsection (1), object to the validity thereof, the claim shall be deemed to be valid in law in respects.

[6] “the Fund…shall be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or … if the injury or death is due to the negligence or other wrongful act of the driver…”

[7] The Minister shall or may make regulations to prescribe any matter which in terms of this Act shall or may be necessary or expedient to prescribe in order to achieve or promote the object of this Act.

[2] 83879/14 [2015] ZAGPPHC 1071 (2 SEP 2015).

[3] 1135/2011 [2013] ZAFSHC 39 (7 March 2013).

[4] 1992 (2) ISA 802 (T).

[5] If the Fund or the agent does not, within 60 days from the date on which a claim was sent by registered post or delivered by hand to the Fund or such agent as contemplated in subsection (1), object to the validity thereof, the claim shall be deemed to be valid in law in respects.

[6] “the Fund…shall be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or … if the injury or death is due to the negligence or other wrongful act of the driver…”

[7] The Minister shall or may make regulations to prescribe any matter which in terms of this Act shall or may be necessary or expedient to prescribe in order to achieve or promote the object of this Act.At trial

FESTIVE ACCIDENTS & RAF CLAIMS: NOT EVERY ROAD ACCIDENT LOSS CAN BE RECOVERED FROM THE RAF

It is that time of the year where there is ordinarily a worrying rise in motor vehicle accidents. As expected, road accidents awareness campaigns by the Department of Transport and other relevant agencies are in full swing. It is therefore apt that the public be informed or reminded about some of the realities with regard to Road Accident Fund claims. There is a general perception that a victim of a road accident can recover all his or her losses from the Road Accident Fund (“the RAF” hereinafter). This is an incorrect perception. The only losses that can be recovered from the RAF are those provided for in the Road Accident Fund Act (“the Act” hereinafter). Therefore, any loss that is not provided for by the Act cannot be claimed from the RAF. A single motor vehicle accident can result in huge losses – all depending on the extent of the accident. For example, in a single motor vehicle accident there may be loss of life, serious bodily injuries, serious damage to the motor vehicle, serious damage to belongings – for example, expensive personal items, work items including documents and data, sentimental items, etc. In this example, not all losses can be recovered from the RAF. In some instances, a victim may have to recover his or her losses from their private insurer and/or the wrongdoer. With this, there comes timelines relating to the reporting of incidents and lodging your claims or even suing for recovery. It is, thus, crucial that people are made aware of what they can recover from the RAF and what they cannot. And, where they cannot, from where do they seek recourse.

Section 17 of the RAF Act stipulates that the “Fund is obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to himself or herself or the death of or any bodily injury to any other person, caused by or arising from the driving of a motor vehicle by any person at any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle…”. From this provision, it is evident that any claim for loss in terms of the RAF Act has to relate to bodily injury or death. In addition, such death or bodily injury has to result from the negligence or other wrongful act of the driver or the owner of the motor vehicle. Therefore, where you, the claimant, cannot prove negligence or some wrongful act, you cannot claim successfully from the RAF.

From the above, it is clear that any other losses other than those specified above cannot be recovered from the RAF. For these losses (damage to motor vehicles, items damaged or destroyed during the accident, etc), the victim will have to claim from his or her insurer or the common law wrongdoer. There are benefits to exploring the other available options, particularly because of time it may take to eventually receive your compensation from the RAF. Where the items are not insured or the claim is rejected, the victim will have to sue the common law wrongdoer. Where the victim successfully claims from their private insurer, he or she cannot subsequently sue the wrongdoer (except in limited instances e.g., where apportionment was applied by the insurer). Instead, the victim’s common law right to sue the wrongdoer gets transferred to the insurer who can then pursue a claim against the wrongdoer. In insurance law, this is referred to as subrogation. There are instances where, due to the nature and extent of injuries sustained in the accident, it is worthless to pursue a claim against the RAF. A good example would be where a victim only has a claim for insignificant past medical expenses and these are covered by the medical aid. The medical aid in question gets the right to sue the RAF for such expenses. In cases where the claim is rejected by the insurer or the vehicle/items are uninsured, and the victim cannot prove any negligence or wrongful act by the driver or owner of the vehicle, then there is no recourse for the victim. Thus, there are instances where a car accident victim may have no recourse for some or all his or her losses suffered as a result of a car accident.

It is therefore critical that victims of car accidents get expert advice on what losses suffered can be recovered from the RAF, and where there are losses that cannot be recovered from the RAF they get an insurance law expert to advise on how to go about getting recourse.

A REFLECTION OF LOSS OF SUPPORT BETWEEN SIBLINGS IN THE CONTEXT OF A ROAD ACCIDENT FUND CLAIM

Dependent children have the right to claim for loss of support from the Road Accident Fund, provided their parent passed away in or from a motor vehicle collision which was not their fault. In other words, the collision must have been partly or entirely caused by the negligent driving of someone else

Parents can also claim for loss of support from the Road Accident Fund following the passing of their children, provided the parents were indigent at the time of the collision. The test for indigency means to be in extreme need or want. It is therefore not sufficient that the parent lives on very little or nothing; the parent must be indigent, which is a step further.

This begs the question whether dependent siblings may have claims for loss of support against the Road Accident Fund, following the death of a sibling who was supporting them at the time of the collision? We cannot ignore that South Africa is marred by children headed households, in disadvantaged communities, where children (usually the older sibling) have the responsibility to support and maintain the family.

As the laws stands, our common law would need to be developed or the Road Accident Act amended, to provide for such a claim. Until such time, siblings are unfortunately not entitled to claim from the Road Accident Fund following the passing of a sibling who was supporting them at the time of the collision.

Festive Season Car Crashes: Who Can Claim From the RAF?

We have seen over the years that the number of accidents considerably increase. This is evident from the annual statistical reports by the Department of Transport. It is common knowledge that, in law, victims of the car accidents can claim for compensation from the Road Accident Fund, in terms of the Road Accident Fund Act. The reality that is not so widely publicised is that not every victim of the car accident is entitled to claim from the RAF. The Act specifically qualify certain victims for compensation. This legal position is critical, particularly for motorists – as it will become apparent below. In some instances, a motor vehicle accident victim will not be entitled to a “full compensation”. This legal position is more important to pedestrians and motorists. The facts and the prevailing circumstances of each case will determine whether a victim can claim at all or, they can claim but the claim will be “limited”.

For purposes of this piece, the most prominent provisions herein are Section 3 and Section 17 of the RAF Act. Section 3 explicates the objective of the Fund and states that the object of the Fund shall be payment of compensation in accordance with the Act for loss or damage wrongfully caused by the driving of motor vehicles. Section 17 elaborates on who qualifies for compensation under the Act and stipulates that the Fund or an agent shall be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury himself or herself or the death of or any bodily injury to any other person caused by or arising from the driving of a motor vehicle by any person at any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or the owner of the motor vehicle… This provision is therefore significant since the victim (claimant) must prove some wrongdoing on the part of someone else – i.e. if a motorist is the sole cause of the accident, s/he cannot successfully claim. Therefore, motorists should be extremely vigilant that they do not cause road collisions. If it does occur, it must not be their own doing. Thus, in single motor vehicle accidents, drivers seldom claim. In some instances, a victim may not be blamed wholly for the accident, and, in that instance, they will claim but their claim will be limited i.e. apportionment will be applicable. This is prominent in drivers’ claims and pedestrian claims. The applicable percentage of the apportionment is determined by various facts and factors – this is where witnesses; police docket; accident reports; witness statements and affidavits; Accident Reconstructionist report will come into play. Passengers are virtually always in an “safer” position because they merely need to prove 1% wrongdoing on someone else (it can be the driver or owner of the car they are being carried in or any other driver or pedestrian who contribute to the occurrence of the accident). Similarly, in loss of support claim cases, the victims (dependants) only need to prove the proverbial 1% wrongdoing. This may sound simple and easy to prove, there are cases where no wrongdoing can be pinned on anyone else and, as such, the dependants do not succeed with their claims.

In view of the foregoing, it is crucially important to take cognisant of the fact that not everyone can claim from the RAF just because they were the victims of car crashes. Some other factors that may determine the ability to claim include prescription, failure to source and submit necessary documentation, etc.

The Thespian’s Toe’s vs RAF

An injury to a person’s toes would not necessarily be regarded as a serious injury in a claim against the Road Accident Fund, unless you are a male thespian.

A thespian was a passenger in a motor vehicle collision as a result of which he suffered open right metatarsal fractures and a malunion of the right little toe metatarsal head.

A claim was thereafter instituted against the Road Accident Fund in terms of section 24 of the Road Accident Fund Act 56 of 1996.

In quantifying the claimant’s damages, he was referred to various experts, including an orthotist. Following an analysis of the claimant’s posture and movement, using the zebris FDM-T System, light was shed on the effects of the injuries suffered by claimant, more specifically his ability to perform his pre – morbid occupation, as a thespian.

According to The World of Biomechanics[1], the zebris FDM-T System consists of a treadmill ergometer with integrated, calibrated, measuring sensor matrix. The stance analysis measures the force distribution and posture. According to the claimant’s stance analysis, his body centre of gravity was displaced to the left side with the left leg taking 53% of his weight. This affected his sense of balance.

Furthermore, a gait analysis was performed on the claimant and it was concluded that the excessive outward rotation of his feet and excessive inward collapse of his medial gait line caused an inward collapse of his knees which resulted in an extra strain on his ankle, knee, hip and lower back. This affected the claimant’s ability to carry heavy loads, dancing, jumping and standing for long periods.

Even though the injuries were orthopaedic, it was the report of an orthotist which provided clarity on the extent to which the claimant’s pre-morbid occupation was affected. The matter was amicably resolved with the Road Accident Fund and the claimant was compensated for his loss of income and general damages.

When quantifying claimants’ claims, it is important that legal practitioners engage the relevant experts to assist the courts in articulating the effects of claimants’ injuries with certainty and clarity. This will assist in the speedy finalisation of matters.

[1] The World of Biomechanics 2021, The zebris FDM-T System for stance and gait analysis, viewed 18 October 2021 ‹https://www.zebris.de/fileadmin/Editoren/zebris-PDF/zebris-Prospekte-EN/FDM-T_Prospekt_en_120901_72dpi.pdf›

The Road Accident Fund Act: Who is Entitled to a Claim and What Can Be Claimed?

We have, over the years, become so accustomed to reading, hearing or even witnessing the firsthand aftermath of horrific motor vehicle accidents on South African roads, that we perhaps don’t immediately realise the full extent of the psychological, social and financial implications of these accidents on those directly or indirectly affected. These devastating effects often tend to have extremely negative consequences on the lives and livelihoods of the surviving victims and/or their families. In most instances the bodily injuries, the sequelae and associated trauma make it difficult for the victim to ever enjoy the life of normality they had prior to the collision.  It is therefore important for victims of motor vehicle accidents, or their dependent(s), to know if they are entitled to lodge a claim with the Road Accident Fund in the event of an accident occurring, and what type of damages they are entitled to claim for.

Liability of the Road Accident Fund

The Road Accident Fund is a creature of statute. It derives its powers and functions from the Road Accident Fund Act 56 of 1996, as amended. It, in essence, seeks to compensate victims of motor vehicle accidents or their dependents who suffer a loss or damage as a result of bodily injuries sustained or death arising from the wrongful and/or negligent driving of a motor vehicle within the borders of South Africa, irrespective of whether the identity of the driver, or indeed owner of such vehicle, has been established.

A claim is, however, lodged subject to the provision of the Act. More particularly, the Act, inter alia, stipulates certain requirements that must be adhered to and prescriptive time periods within which to lodge a claim, prior to any claim being acknowledged and validated.

Who can claim?

A claim can either be lodged in a personal or representative capacity, depending on who is lodging it and what form of compensation is being sought from the Fund. A claim lodged in a personal capacity is one which is submitted either by the actual victim of a motor vehicle accident who sustained serious bodily injuries, or a dependent of such victim in the event that the victim passed away as a result of and accident. To institute a claim in their personal capacity, the claimant must be 18 years or older and not have been declared mentally ill in terms of the Mental Health Act. An example of a dependent in this regard would generally be a surviving spouse of a deceased victim.

In contrast, a claim lodged in a representative capacity is made by a claimant on behalf of, and for, the benefit of another person. A simple example is where a claim is lodged on behalf of, and for the benefit of a minor child (below 18 years), resulting from bodily injuries sustained either by the minor during a motor vehicle accident, or resulting from the death of a parent as a result of a motor vehicle collision. In these instances, minors cannot claim personally because they do not have legal capacity and therefore require assistance of another person to institute such proceedings.

Claimable damages.

A claimant is only entitled to recover damages which have been proven, and which relate to the bodily injuries sustained from the motor vehicle accident. These consist of the following heads of damages:

  1. Past hospital. medical and related expenses;
  2. Future hospital, medical and related expenses;
  3. Past loss of earnings;
  4. Future loss of earnings and/or earning capacity;
  5. General damages.

The recovery of these losses or damages is subject to the provisions of the Act and requires extensive documentary evidence to succeed. The first four (4) heads of damages are referred to as “Special Damages” and relate to the quantifiable losses or damages which have either already been suffered by the claimant, or which will be suffered in the future. These would, for instance, include costs of medical treatment, services rendered, hospitalisation, or goods required as a result of the bodily injuries sustained. The claimant is also entitled to recover any unpaid salaries or overtime forfeited, which he/she may have lost as a result of being indisposed and/or unable to work as a result of an accident.

The other head of damages (“General Damages”) relates to the claimant’s pain, suffering, shock, disability, disfigurement, loss of amenities of life etcetera, which are a consequence of the injuries sustained from an accident. To qualify for this head of damages, however, the Act requires that the bodily injuries sustained must be assessed as serious in terms of the American Medical Association Guides, meaning that they must result in at least a thirty percent (30%) or more Whole Person Impairment. Where a claimant’s injuries do not meet this threshold, he/she may still qualify for general damages, subject to an application of the Narrative Test, which requires the injuries of the claimant to constitute one of the following conditions:

  1. Serious long-term impairment or loss of body function;
  2. Permanent serious disfigurement;
  3. Severe long-term behavior, disturbance or disorder; or
  4. Loss of a foetus.

The dependents of a breadwinner, who passes away due to the bodily injuries sustained from a motor vehicle accident, would also be entitled to claim for loss of support and for other related expenses, subject to the provisions of the Act. This is subject thereto that the breadwinner’s own negligence was not the sole cause of the collision.

 Conclusion

A claim against the Fund entails a complicated process and procedures to be followed. Hence, without proper knowledge and understanding of what is required, claimants may end up either submitting claims too late or incorrectly, resulting in those claims prescribing or being rejected by the Fund. They may also under settle their claims and be taken advantage of, resulting in the compensation recovered being substantially less than what they are entitled to. It is therefore extremely important to seek the service of a reputable attorney when carrying out this process. Adams & Adams has very successfully, for over 35 years, assisted victims of motor vehicle accidents in claiming compensation from the Fund and its predecessors, thereby enabling the recovery of the best possible compensation due to them from this insurance fund.

Article by Lindokuhle Gwala

Topics: Law of Delict | Personal Injury | Road Accident Fund

Does the Road Accident Fund Pay for Future Hospital and Medical Expenses

When lodging a claim with the Road Accident Fund (“RAF”), road accident victims (“claimants”) may claim compensation under different heads of damages, i.e. past loss of earnings, future loss of earnings/earning capacity, general damages, past hospital and medical expenses, future hospital and medical expenses, as well as loss of support claims. In some people’s minds, ‘payment of compensation’ would only occur when the RAF makes payments sounding in money. While it is true that paying compensation would require the RAF to pay successful claimants in money, this is not always the case when it comes to future hospital and medical expenses.

Section 17(4)(a) of the Road Accident Fund Act gives the RAF powers to furnish a successful claimant with a document in terms of which the RAF undertakes to compensate the claimant for accident-related future hospitalisation, treatment, medication, and/or similar expenses. This document is generally called the Section 17 undertaking, and it obliges the RAF to reimburse the successful claimant for reasonable hospital and medical expenses which the claimant will incur due to the accident-related injuries, for the rest of the claimant’s life.

Naturally, some road accident victims would prefer to receive money from the RAF, as opposed to a “piece of paper”. This has the effect of downplaying the importance of the undertaking. Therefore, it is important to understand that the undertaking is not just a piece of paper, but a very important document, which has its own benefits.

It may be beneficial for claimants to request that the RAF furnishes them with the undertaking, as opposed to undergoing the exercise of quantifying (“putting a Rand value to”) their claims for future hospital and medical expenses, for reasons that follow. The claimants and their legal representatives (where appointed) rely heavily on the medical experts’ findings and recommendations when quantifying the claims. At the time of preparing the reports, the medical experts may not be in a position to postulate the exact amount in respect of future medical expenses, as a result of the uncertainty of the future. Furthermore, the effects of claimant’s injuries may exacerbate and lead to complications which were unforeseen at the time of the preparation of the medico-legal report/s. Should this happen, it may possibly put the claimant in an unfortunate position if the RAF had paid or agreed to pay to the claimant a specified amount in respect of future medical expenses. Therefore, being in possession of the undertaking places the claimant in a much better position, as they would be able to use it in such circumstances.

In conclusion, it is vital to appreciate that the Section 17 undertaking does not place the successful claimant in a worse position than they would be if the RAF had made a payment sounding in money. Instead, the claimant may be in a better position if furnished with the undertaking, depending on the circumstances. Should claimants feel aggrieved when offered the undertaking as compensation, it is advisable to discuss such concerns with their legal representatives.

An opinion piece by Mzwakhe Poswa

Associate at Adams and Adams

30 August 2021