Motor Vehicle Accident FAQ

1. Do I have a claim?

In order to have a claim against RAF you need to prove two major things:

  1. That you are not solely responsible for the accident:

    You have to prove that your injuries are as a result of the negligent driving of a motor vehicle by another person. In order to prove this, it is of the utmost importance that you obtain the Accident Report (or at least the AR number) from the police station from which the police were who completed the accident report; witness statements; photographs of the damage to the vehicles and the accident scene etc. in order to prove liability.

  2. That you sustained injuries as a result of the accident, alternatively that you suffer a loss of support as a result of the death of a breadwinner in a road accident

2. After negligence is established, what then? How does the claimant get compensated?

The "compensation" claimed is divided into what are called: heads of damages. The various heads of damages will be addressed in detail, they are:

  1. Past Hospital and Medical Expenses;
  2. Past Loss of Earnings;
  3. Future Hospital, Medical and Supplementary Expenses;
  4. Future Loss of Earnings and Interference with Earning Capacity;
  5. General Damages, Loss of Amenities of Life and Disfigurement.

In the event of death of a breadwinner, the funeral expenses as well as loss of support for dependants can be claimed.

There will be an amount claimed under each of the heads of damages. The amounts are not cast in stone and can be changed or amended at any time before judgment or settlement.

The damages claimed is the amount of money it would take to place the claimant in the position that s/he would have been in had the accident not occurred and caused the plaintiff to suffer damages:

Past Hospital and Medical Expenses:

These are all the hospital and medical expenses incurred from the date of the accident until the date that the claimant is compensated. It is therefore very important that a claimant keeps all the accounts from the hospital, doctors, physiotherapists, psychologists, pharmacies etc and submits these to their attorney to add to the claim.

It is important to remember that a medical aid does have the right to be reimbursed for the amounts that they have paid in respect of the treatment administered to the plaintiff as a result of the accident. It is a contractual obligation between the plaintiff and his/her medical aid that the medical aid is reimbursed upon successful finalisation of claim against the RAF. The medical aid will usually send the plaintiff an undertaking that they must sign wherein the plaintiff undertakes to reimburse the medical aid upon successful finalisation of the claim. The medical aid has the right to reverse payment that they have made if the undertaking is not signed.

Past Loss of Earnings

The loss or decrease in earnings that have resulted from the accident is claimed under this head of damage. This includes all loss of earnings from the date of the accident to the date that the claimant is compensated. The plaintiff is usually requested to furnish his/her salary slips and tax documentation for a period (usually 3 years) prior to the date of the accident until the present date. The difference in earnings is then what is claimed.

Future Hospital, Medical and Supplementary Expenses

For this claim, the expertise of additional medico-legal experts is needed. The plaintiff will be sent to different experts depending on the type of damage/ injury that s/he has suffered as a result of the accident. For example, if the injury suffered involves the brain, a neurosurgeon or neurologist will be consulted along with other experts such as a psychiatrist, educational psychologist, clinical psychologist, occupational therapist etc. If an orthopaedic injury was suffered or a heart defect, then the corresponding expert will be consulted. The experts do not treat the plaintiff in any way; they assess the damages suffered and write a report thereon.

One must keep in mind that the RAF will also have the right to send the plaintiff to their own experts. There is therefore a chance that the plaintiff will be sent to two experts in every field.

In the reports by the respective experts, the treatment suggested in the future will be given, along with the prices of the treatment at present and the amount of time off work for this future treatment. This is what makes up the claim for future hospital and medical expenses.

On proving that the plaintiff does in fact have a claim for future hospital and medical expenses, the RAF will issue the plaintiff with an undertaking to reimburse the plaintiff in respect of treatment, accommodation in a hospital or nursing home, and/or medicine and equipment provided in connection with the injuries sustained in the accident, for the rest of his/her life.

At A Batchelor & Associates we have a panel of top medico-legal experts with vast experience in drafting reports and giving expert evidence in court.

Future Loss of Earnings and Interference with Earning Capacity

This too is based on the information obtained in the abovementioned medico-legal reports. An industrial psychologist's report also becomes important here. S/he will have to take into account where the plaintiff stands in his/her career at present and what his/her likely progression would have been had the accident not occurred. The difference here is what makes up this claim. These figures are also sent to an actuary for the same reasons as stated before.

The employer that the plaintiff was working for at the time of the accident may be consulted by the experts and attorneys in order to obtain relevant information about the plaintiff such as: the plaintiff's abilities, promotional prospects, retirement age, skills needed for the job etc.

This head of damage also takes into account how much time off work the plaintiff will need to attend medical treatment.

General Damage

This head of damage incorporates the compensation for pain and suffering, loss of amenities of life, disfigurement, loss of life expectancy and emotional shock. General damages are what we call a non pecuniary/non patrimonial (not financial) damages. But what amount of money can compensate the above? There is no expert who can put a value to these losses. The amounts awarded for general damages lies within the discretion of our very conservative courts. The amount claimed is based on what has been awarded by the courts in previous cases for similar injury/ insults, taking the age of the aggrieved person into account. There are actuarial calculations done annually which bring the past awards made by the courts for general damages, up to date.

Certain aspects that influence the amount claimed for general damages are: the type of pain the plaintiff went/ is going through/ will go through; whether further surgery can be expected, whether the plaintiff has debilitating scarring, is unable to fend for him/herself and has a decreased life expectancy etc.

Whether or not general damages will be applicable, please refer to the RAF Amendment Act section.

Loss of Support

If the breadwinner dies as a result of an accident, loss of support is claimed on behalf of his/her dependants. Loss of support is worked out by using an actuarial ratio of two parts to each parent and one part to each child. The deceased's income at date of death will therefore be divided as above, and these figures given to an actuary to calculate what the loss of support is for each dependant, taking inflationary increases etc. into account. The dependant's will be compensated up to the age when they can be expected to start working for themselves or when the breadwinner was suppose to retire, which ever comes first.

3. What is prescription and how can it affect my claim?

When a claim prescribes, the time period that one has to claim for damages comes to an end. In other words the claim is extinguished by prescription.

The Road Accident Fund legislation regulates that claims must be lodged with  the Road Accident Fund within 3 years from the date of the accident. However if neither the identity of the driver nor the owner of the vehicle that caused the accident is known (i.e. a so-' called "Hit & Run" claim), the claim must be lodged within 2 years.' Prescription however does not run against a minor/ mentally ill or incapacitated person.

NOTE: Seek legal advice and pursue your claim as quickly as possible.

4. How long does a claim usually take?

If one takes into consideration the time required to collect the medical records, obtain a medical opinion, draft and issue the summons, wait for the defendant's Plea, apply for a trial date and go to trial, one can see why a claim is a long process. One can expect a minimum of 18 months – 4 years from the date of lodgement of your claim on the RAF to the date of finalisation of your claim, depending on whether your claim is issued out of the Magistrate's Court or the High Court. (This depends on the amount that is claimed).

5.Is a lawyer required?

The RAF employs information officers at all branch offices of the Road Accident Fund. There are also appointed representatives in all the major government hospitals to assist individual claimants. It is therefore possible to claim against the RAF yourself. This is however not recommended. An attorney will be able to structure your claim to maximise your compensation recovered from the RAF by obtaining the relevant medico-legal opinions, documentation and information to prove your claim and make sure that you are compensated for the damages you have suffered as a result the accident, for the rest of your life. It must be remembered that you can only claim once from the RAF for the injuries that you have sustained in a particular accident. It is therefore, of the utmost importance that you are compensated fully.

More often than not, the RAF will provide you with an offer of settlement far below what your claim is worth. It is only with the assistance of an experienced attorney that you will know what your claim is worth and they ways in which you can make sure that you get compensated fully.

6. The Summons, Plea and Proving Liability and Quantum

The summons is a document which is served on the RAF by the Sheriff. The Particulars of Claim, which is annexed to the Summons, contains the details of the accident and gives details of the damages suffered as a result of the accident (heads of damages).

The Summons is usually responded to by an intention to defend followed by the defendant's Plea which is a response to the summons. The defendant will typically deny all allegations of negligence in the Plea. A trial date is then applied for where the plaintiff will have the responsibility (onus of proof) of proving the alleged negligence.

When preparing for trial, the plaintiff will have to prepare his/her evidence on:

  • liability – proving the negligence of the driver, and
  • quantum - how much should be paid by the RAF in compensation for the damages suffered.

The plaintiff always has the onus of proving, on a balance of probabilities, that the driver was negligent and that his negligence caused the plaintiff to suffer damages. Where a defendant raises a special defence such as consent, contributory negligence (where it is alleged that the plaintiff contributed in some way to the damage suffered) or prescription, the onus proof will then be on the defendant.

If the proof of liability is disputed between the parties, the parties can agree to only address the issue of proving liability at the first court hearing and if the plaintiff is successful to then return on a later date to prove how much compensation the defendant is liable to pay to the plaintiff ie. the quantum of the claim.

7. Preparing for Trial / Offer of Settlement

A trial is held in open court, meaning that the public has access to the hearing as well as the court documents. In the majority of claims against the RAF where liability is no longer in dispute and issues regarding the amount of compensation to be paid have been narrowed, settlement is often reached and the matter will not proceed to court. Be that as it may, cases are defended very strongly; there are constant lengthy negotiations between the parties in the period leading up to trial.

If a matter is settled, the offer will include an amount of money that the RAF will pay the plaintiff in compensation for his/ her injuries sustained in the accident and in addition, an offer will also be made to pay the plaintiff's legal costs incurred.

If an offer is made by the RAF the plaintiff should consider the following when deciding on whether to accept the offer or not:

  • Whether the amount of money offered is reasonable compensation for the damages suffered as a result of the accident;
  • Whether there is a good chance that the court will award more money if the matter is taken on trial;
  • If the offer is not accepted, the costs involved in running a trial should be weighed against the savings in accepting the offer;
  • The emotional strain in giving evidence in court, the terrorizing cross examination and risks involved in being cross examined;
  • The risk of losing the case and having to pay your legal costs and the defendant's costs;
  • The risks that the court may not be able to decide if the driver is negligent and caused the accident, thus ordering "absolution from the instance" effectively meaning that the plaintiff loses his/her claim, having incurred huge costs in the process.

8. What can I expect in terms of legal fees?

At A Batchelor & Associates our initial consultation is free. At the initial consultation we will advise you on whether or not you have a claim. If we are of the opinion that your claim is worth pursuing, we will accept the instructions on a contingency fee basis. This means that in the event of the claim not being successful, we will charge no fee (the so-called no win, no fee structure). If your claim is successful, we will deduct a fee on what we prove your claim to be worth.

9. Implications of the Amendment Act?

What are the amendments all about?

The Amendment Act introduces a number of serious limitations on the Fund's liability to pay for certain types of compensation.

What are the major changes introduced by the amendments?

The Amendment Act limits the Fund's liability for compensation in respect of claims for general damages (i.e. pain and suffering) to instances only where a serious injury has been sustained. The Amendment Act limits the Fund's liability in respect of medical expenses to one of two medical tariffs. The first (higher) tariff will apply in all cases where emergency medical treatment was provided. All medical treatment that cannot be defined as emergency medical treatment will be compensated on the lower tariff. This lower tariff is the Uniform Patient Fee Schedule for fees payable to public health establishments by full-paying patients, prescribed under section 90(1)(b) of the National Health Act, 2003 (Act No. 61 of 2003), as revised from time to time.

The Amendment Act limits the Fund's liability in respect of claims for loss of income to R 160 000.00 per year, irrespective of the actual loss.

The Amendment Act limits the Fund's liability in respect of claims for loss of support to R 160 000.00 per year, irrespective of the actual loss, in respect of each deceased breadwinner.

The Amendment Act introduces a new exclusion in respect of claims for secondary emotional shock. Secondary emotional shock refers to instances where the claimant did not personally sustain any physical injuries in the accident, but suffers from secondary emotional shock.

The Fund may issue a claimant with an Undertaking in terms of which the Fund will compensate the claimant for future medical and related expenses. The Amendment Act now entitles the Fund to pay the compensation to the claimant or directly to the medical service provider.

When is an injury considered to be serious or not? The claimant needs to be assessed by a specific medical practitioner who follows the process prescribed in the regulations.

If the injury resulted in 30 % or more Impairment of the Whole Person as provided in the AMA Guides, the injury shall be assessed as serious.

Another procedure allows for the medical practitioner to assess an injury as serious if the injury resulted in:

serious long-term impairment or loss of a body function;
permanent serious disfigurement;
severe long-term mental or behavioural disturbance or disorder; or
loss of a foetus.

The medical practitioner who performed the assessment must complete a serious injury assessment report (RAF 4).

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