October 27, 2020
Three Judges will hear the case deemed the most important yet, dealing with the non-payment of claims by the Road Accident Fund as well as the plight of the cash-strapped entity. The full article can be read here
January 6, 2021

The merits implications of being a passenger, pedestrian or a driver in a motor vehicle accident claim

The Road Accident Fund (RAF) classifies claimants under different categories being drivers, passengers and pedestrians, this is not exhaustive but is what will be focused on below. This classification has implications for the merits in a claimant’s matter as each category has its own separate criteria in order to prove the merits of the claim.

The category whose merits may vary the most would be that of the driver as various factors play a role in considering the merits or whether there is in fact a claim or not. This article will focus mainly on the category of drivers but will also include a brief discussion of passengers and pedestrians as well.

Where the claimant was a driver..

Where the prospective claimant was a driver, the claimant’s claim may be apportioned in accordance with the proven negligence of the said claimant-driver up until 100%.

An apportionment of 100%, essentially means that the accident was 100% the driver’s fault, means that the claimant has no claim. Generally, to be able to institute a claim against the RAF where the claimant was a driver, it is an accepted requirement that the said driver must not have been the cause of the accident. This is so, because it is unjust for a person to cause an accident and then derive financial benefit thereafter.

Where the prospective claimant was a driver but not the cause of the accident, such person in theory, subject to other criteria, should have a claim. This scenario is where the apportionment becomes relevant, just because a person may not have caused an accident, does not mean that they may not have been negligent in some way or the other.

A further scenario for consideration occurs where a so-called ‘single-vehicle’ accident occurs. This type of accident can occur for one of numerous reasons such as for example, a gust of wind pushing a car off of the road, a driver loses control of his or her vehicle due to falling asleep, etc.

In such a case, there generally is no claim that can be instituted against the RAF. Other entities might be liable where for example a single-vehicle accident occurs as a result of a pothole and a claim is instituted against the Municipality responsible for maintaining the said road.

The reason for there being no claim against the RAF in the case of a single-vehicle accident is that the RAF Act requires that there be a negligent party involved in the accident. This means that for example, the wind can’t be blamed for causing an accident.

The Road Accident Fund effectively acts as an insurer. Therefore, in order to have a claim against the negligent driver, the accident must be caused by the negligent driver and not the claimants themselves.

Where the claimant was a passenger..

Where a person wanting to institute a claim against the RAF was a passenger in a motor vehicle accident, he, she or they generally will always have a claim whether it be a single or multi vehicle accident as such a person cannot have been in control of the vehicle and the negligent party can be either the driver of the other vehicle or the driver of the vehicle in which said person was a passenger.

Where the claimant was a pedestrian..

Persons wanting to institute a claim against the RAF where they were a pedestrian that was struck by a motor vehicle generally also do always have a claim. This claim and merits may be affected by the person wanting to claim’s own negligence however where, for example, they were ‘jay-walking’ or ran into a road negligently.

To conclude..

The different categories of claimants all influence the merits of a claim depending on which category a claimant may fall, their own negligence may have a minor or major impact on the merits of a claim.

It is therefore important to know the differences between the categories of claimants so as to not apply a blanket guideline over all of them regarding merits and what affects same.