What is a Road Accident Fund 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 to themselves, or bodily injury or death of another as a result of a motor vehicle collision. Parties who can claim are:
- A party who sustains bodily injuries in a Motor Vehicle Accident.
- When a breadwinner of a family is killed then the surviving spouse and the children are the persons who suffered damage by way of the loss of the financial 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 and the minor would be the claimant in respect of the bodily injuries he/she sustained.
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. Think of it as the insurance company for the wrong doing driver.
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. See other injury claims such as negligence:
- 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. (Although the compensation will be apportioned, in other words reduced).
Claims must be lodged with the Road Accident Fund
Unidentified claims in which neither the owner or driver can be identified can still be instituted against the Road Accident Fund but they are subject to certain restrictions, including that they have to be lodged within two years of the cause of action (normally the date of the collision) or the claim will prescribe. (The person will lose their right to claim)
What types of damages may be claimed?
The third party/claimant may only claim damages which arose from bodily injury or death.
Examples of categories of damages that arose from bodily injuries are:
- 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 a complex field of Law and to ensure you recover everything you are entitled to you should ensure 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.
Further, in respect of collision occurring from the 1st of August 2008, 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 time limit not be compiled with the claimant’s claim will prescribe and he will lose his right to claim any compensation whatsoever, although there are exceptions in identified claims for example if the claimant was a minor. 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. There are many exceptions to prescription dates so even if you feel your claim may have prescribed, please call us and we will happily advise you further at no charge.
How long does a claim take?
The duration of such claims varies with each case. One of the effects of the Road Accident Fund Amendment Act is that with effect of any accident occurring from the 1st of August 2008 onwards, a serious injury assessment has to be completed. This report may only be done once what is referred to as M.M.I (Maximal Medical Improvement) has been reached.
M.M.I is only reached once the medical practitioner believes that the patient has reached the stage that there will be no significant improvement for the next 12 months. This by itself can cause delays.
Further we can only proceed to trial on the issue of general damages once the Road Accident Fund has accepted the injuries as being serious, alternatively if they don’t accept the injuries as serious we can follow an appeal process.
Unfortunately the Road Accident Fund adopts the stance that by neither accepting nor rejecting the report they can delay the matter indefinitely, which means in the majority of the matters we will have to obtain a court order against the Road Accident Fund to compel them to make a decision to accept or reject the serious injury report so that the matter can proceed to trial.
Further, our experience has been that it is unfortunately extremely rare for a fair settlement offer to be made by the Road Accident Fund without the matter being set down for trial.
The cost of instituting the claim
There will be significant disbursements incurred in respect of paying for medical specialists, Advocates fees, CT Scans 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.
Road Accident Fund 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:
- you would no longer be entitled to any amount for general damages, general damages being a lump sum payment for things such as pain and suffering, disfigurement, loss of amenities of life etc. Unless you are seriously injured as defined.
- any claim for loss of income would be limited to a maximum cap, which is currently R215 320.00 a year irrespective of what you may have been earning prior to the collision. This figure is escalated annually to compensate for inflation. The above figure is correct as at the 31st of January 2014.
- 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.
Should you require any advice on instituting a Road Accident Fund claim or any other personal injury claim please feel free to contact us.