Road Accident Fund Claims
What is a third party claim?
A Road Accident Fund claim, also known as a third party claim, is a claim which can be instituted to recover compensation on behalf of any person who suffered damage as a result of bodily injury, or death as a result of a motor vehicle collision.
Parties which can claim are:
- A party who sustains bodily injuries in a Motor Vehicle Accident.
- When a breadwinner of a family is killed then the widow and the children are the persons who suffered damage by way of the loss of support of the breadwinner.
- Where a minor is injured and has to receive medical treatment. In this case the parent would be the claimant in respect of the medical cost incurred because they are the person who had to pay for such costs and therefore has suffered damages
What is the Road Accident Fund?
The Road Accident Fund is a statutory body established by law to administer the system of compensation for damages suffered due to bodily injury or death caused by the negligent driving of a motor vehicle.
How is the Road Accident Fund Financed?
The Road Accident Fund is financed by a levy on all fuel consumed. The proceeds of this levy is paid into the Road Accident Fund.
Who may claim against the Road Accident Fund?
Any person who has suffered damage owing to bodily injury to him or herself or to the death or bodily injury of someone else, may claim compensation provided the following can be established.
- That their damages were caused by the driving of a motor vehicle.
- That such motor vehicle was negligently driven.
- That the bodily injury or death resulted from a motor vehicle collision.
Examples of people who may claim are:
- Pedestrian negligently knocked down by a motorist.
- Passenger in a motor vehicle negligently driven.
- Passenger or driver in a motor vehicle struck by another vehicle which was negligently driven.
Note: A person who is solely responsible for their own injury does not have a claim, however a person whose injuries were caused partly by his own fault and partly by the fault of another motorist is entitled to compensation.
Claims must be lodged with the RAF
Unidentified claims in which neither the owner or driver can be identified can still be instituted against the Road Accident Fund subject to certain restrictions.
What type of damages may be claimed?
The third party/claimant may only claim damages which arose from bodily injury.
Examples of categories of damages that arose from bodily injuries are:
1. Past & future medical & hospital expenses.
- Past & future loss of earnings
- Past & future travelling expenses to obtain essential medical treatment.
- The cost of medical treatment and medication.
- The cost of employing domestic servants, nurses or assistants as a result of the injury sustained.
- General damages (an amount for pain, suffering, inconvenience, disfigurement and loss of the amenities of life).
Examples of categories of damages arising from death:
- Loss of maintenance or support.
- Funeral costs (limited).
Note: Damage to property for example to a vehicle and clothing cannot be claimed from the Road Accident Fund and has to be claimed directly from the wrongdoer.
A consultation with us as soon as possible after the accident is strongly recommended. This allows the claimant to receive advice on all aspects relating to a possible claim and to enable us to begin the necessary preparatory investigations and comply with any requirements as soon as possible.
Who may submit your claim?
In terms of the Road Accident Fund third-party claims may only be submitted by the claimant themselves or their attorneys. If a claim is submitted by any one else the Road Accident Fund is entitled to refuse to pay any compensation.
Road Accident Fund claims are complexed field of Law and to ensure you recover everything you are entitled to we therefore recommend that your matter be dealt with by a specialist personal injury Law Firm such as ours.
Procedure to follow?
Within three years of the date upon which the collision occurred (two years in respect of unidentified claims) the claim must be lodged with the fund.
To be able to claim general damages, the injured party would further be required to undergo a serious injury assessment and lodge a serious injury assessment form within the above dates.
The claim must be lodged with the Road Accident Fund within three years of the date upon which the collision occurred. Summons must be served within five years of the collision occurring. Should the above times limit not be compiled with the claimant’s claim will prescribe and he will lose his right to claim any compensation whatsoever. In the case of an unidentified vehicle claim, this must be lodged with the Road Accident Fund within two years of the date upon which the claim arose to avoid prescription of the claim.
As a result in the case of an unidentified collision it is imperative that you make contact with our offices as soon as possible to avoid the possibility of losing your claim.
How long does a claim take?
The duration of such claims varies with each case. The amount claimed for injuries is largely based on a final medicolegal reports. Such reports only become available once the injuries have stabilised. Rehabilitation of the injured person is often a slow process and this is generally the greatest single cause of delay.
The cost of instituting the claim.
There will be significant disbursements incurred in respect of paying for medical specialists, Advocates fees and other disbursements. Should we be satisfied with the strength of the clients claim, our firm will cover these disbursements on behalf of the client and recover these costs once the claim has been finalised.
Our firm would normally, for these type of claims, enter into a contingency fee agreement (a no win no fee agreement) where our maximum fees are limited to a percentage, which is agreed on in advanced, of the payment received from the Road Accident Fund.
Quantum / Amount of Claim
In terms of the Road Accident Fund Act certain claims may be limited i.e. the amount that client can claim from the Road Accident Fund is limited. In such a case the claimant will have to recover his excess damages over the limit payable by the Fund directly from the owner or driver of the “guilty” vehicle.
Should you require any advice on instituting a Road Accident Fund claim or any other personal injury claim please feel free to contact us.
RAF Amendment Act
As of the 1st of August 2008 the Road Accident Fund Act was amended. This amendment has drastic consequences to all road users. As an example some of the draconian measures that this amendment has introduced include:-
(1) you would no longer be entitled to any amount for general damages, general damages being for example pain and suffering, disfigurement, loss of amenities of life etc. Unless you are seriously injured as defined. With serious injury being defined as a 30% long term bodily impairment.
(2) any claim for loss of income would be limited to a maximum of R160,000.00 a year irrespective of what you may have been earning prior to the collision.
(3) with regard to medical expenses (other than what is referred to as emergency medical treatment to stabilise you immediately after the accident), you would only be entitled to claim back medical expenses on the State Hospital Tariff.
(4) the Amendment Act takes away your common law right to sue the wrongdoer for that portion of the damages that the RAF does not compensate you for.
An example of the consequences of this new Act would be the following:-
If you as a pedestrian where knocked down by a drunken driver who was completely to blame and suffered significant injuries requiring you to be hospitilised for a number of weeks. However you eventually made a full recovery, you would not have any claim for general damages for pain, suffering, disfigurement, loss of amenities of life etc. You would not be able to claim back the medical expenses that you may have incurred in receiving treatment at a private hospital. You are obviously free to go to a private hospital but you will only be entitled to claim back on the State Hospital Tariff. Your loss of income will be limited to a maximum pro rata amount of R160,000.00 per annum and you would not be able to sue the wrongdoing driver for any of the damages that you have suffered.
The constitutionality of this piece of legislation was challenged by the Organised Attorneys Profession. On the 31st of March 2010, the Pretoria High Court ruled in the favour of the constitutionality of the provisions. On the 23rd of August 2010 the constitutionality of three of the amendments introduced by the RAF amendment act was argued before the constitutional court, namely the abolition of the common law right to sue for damages, the capping of annual loss of income at R160 000.00 a year and the setting of public sector tariffs for medical treatment. On the 25th of November 2010, Judgment was handed down. The court found that the capping of loss of income claims and the abolition of Common Law Right to sue the wrongdoer were constitutional and therefore the Amendment Act remains unchanged in this regard.
The Constitutional Court did however find that the tariffs set was inadequte and was unconstitutional so that an injured party will now be able to obtain private sector treatment and be reimbursed for the full costs.
At present there has been no constitutional challenge brought against the limiting of a persons right to claim general damages to only those cases where the injuries are "serious" as defined.
We therefore suggest that if you have been in an accident you make contact with us to establish the progress of the Constitutional Court challenge and to establish whether you would have a claim.
Other Forms of Personal Injury
Our firm is able to assist in any other form of personal injury including but not limited to medical malpractice, shootings, dog bites, injury on duty, aviation and locomotion accidents etc.
Summary - Cameron Stewart Malcolm and Premier, Western Cape Government No
Board Notice 83 of 2014 - Adjustment of statutory limit in respect of claims for loss of income and loss of support
Summary - Vanessa Da Silva vs The Road Accident Fund
Summary - Johanna Christina Pithey vs Road Accident Fund
Summary - Road Accident Fund vs Fonesca Rui Fernando Faria
Road Accident Fund vs Fonesca Rui Fernando Faria - The Supreme Court of Appeal Decision
Settlement secured after initial repudiation by Road Accident Fund
Publication for comments: Draft Road Accident Fund Benefit Scheme Bill, 2014
Publication for comments: Draft Road Accident Benefit Scheme Regulations
Road Accident Fund Transitional Provisions Regulations Published for Comment
25 April 2014 - Adjustment of statutory limit in respect of claims for loss of income and loss of support
31/07/2013 Statutory limit in respect of loss of earnings and loss of support raised
19/11/2013 commentary on the Road Accident Fund Benefit Scheme
Commentary of the draft Road Accident Benefit Scheme
08/02/2013 Road Accident Fund Benefit Scheme bill published for comment
1/11/13 RAF Abandons appeal and issues new directive
Prescription defeat for RAF/ APDOL V Road Accident Fund 2013 (2) SA
Road Accident Fund Act (56/1996) Accident Fund Amendment Regulations, 2013
15/05/2013 - Road Accident Fund Regulations Amended
Road Accident Fund (Transitional Provisions) Regulations, 2012
The Road Accident Fund 1st Amendment Regulations, 2012
The Road Accident Fund 2nd Amendment Regulations, 2012
Board Notice April 2012
Court accepts loss of support claim by hetrosexual unmarried partner against the Road Accident Fund
Slip and Trip Cases
Passengers Claims - R25 000.00 Cap Ruled Unconstitutional
The Road Accident Fund Act. Act 56 of 1996 as amended by Acts 19 and 31 of 2005
Constitutional Court Decision - 17 February 2011
The Road Accident Fund Amendment Bill 2011
Constitutional Court Decision - 25 November 2010
RAF Pre-Amendment Act Limited Claims Declared Unconstitutional
Road Accident Fund denies it being under a legal obligation to settle claims for amounts which are fair and reasonable
Court accepts loss of support claim for unmarried heterosexual partner against the Road Accident Fund
The Supreme Court of Appeal of South Africa - Judgment
Regulations 2008 - English
Regulations 2008 - Afrikaans
Non serious injuries
Draft list of non serious injuries published