Road Accident Fund
Personal injury arising our of a motor vehicle accident?
You still have a claim.
The Road Accident Fund is a statutory body established in terms of the Road Accident Fund Act with its sole purpose to compensate victims of road accidents who suffered damages arising out of personal injuries.
The type of damages claimable can be divided into pecuniary damages and non-pecuniary damages. Pecuniary damages implies all financial losses suffered as a result of the injury sustained. Therefore the claimant would be entitled to repayment of all past medical expenses, payment of future medical expenses as well as all past and future losses of income or maintenance if applicable. Non-pecuniary damages is also known as general damages and is a lump sum payment for all non-financial damages such as pain, suffering, loss of amenities of life, shock, disfigurement, scarring etc.
Before November 2008 and on condition that the personal injury was the result of negligent driving of a motor vehicle by a third party, the claimant would have been entitled to be compensated on proven pecuniary and non-pecuniary losses. Although this situation remains ideal it gave rise to abuse of the public fund in that any claimant claiming that it suffered a sprained muscle were in terms of the Act entitled to non-pecuniary damages.
Although forensic units were established by the Road Accident Fund, it remained hardly impossible to prove that a claimant did not suffer a damage if involved in a motor vehicle collision. As a result, a flood of claims had a disastrous financial implication to the Road Accident Fund and therefore the Act was changed essentially to save the Fund in November 2008.
In terms of the new Act all claimants, provided that their losses are the result of the negligent driver of the motor vehicle, would be entitled to claim all pecuniary losses with the proviso that loss of income whether past now are capped. It is important to understand, however, that it is not a salary or income cap but a loss of salary or income cap which at present stands at R 180 000.00 per year. This cap is quarterly reviewed and adjusted.
The biggest change in terms of the new Act is that non-pecuniary losses may only be claimed if the claimant is found to be 30% whole person impaired or more. This impairment refers to permanent impairment after the claimant has reached the stage of maximum medical recovery. A 30% WPI rating is very high and by illustration would be for instance blindness in one eye or a below knee amputation. But clearly claimants suffering a sprain or strain injury will no longer be eligible for compensation. It is for this reason that the general public believes that unless they have suffered a severe disabling injury they will not be able to compensate. This is not true.
As pointed out irrespective of the nature of the injury all claimants are entitled to claim pecuniary losses. The claimant should also be aware that a narrative test may also be applied if a rate of 30% WPI is not achieved. In terms of the narrative test, if there is serious and long-term mental or behavioural disorder, for a loss of a foetus or serious scarring and disfigurement, claimant must still be entitled to non-pecuniary damages.
It is therefore important that all claimants when considering a claim against the Road Accident Fund to consult a personal injury expert such as ourselves to ascertain whether the claimant will be eligible or not.
Why an Attorney?
The Road Accident Fund has gone on a drive of making the public aware that they can claim without the assistance of Attorneys. They go further stating that they will assist a claimant in claiming from the Road Accident Fund! This implies that the body who is obligated to pay the claim is going to assist that claimant in a claim. It is not necessary to point out the obvious conflict of interest. A claimant is not trained or experienced in knowing how to prove his case. As the Road Accident Fund is only obligated to compensate proven damages one can hardly see the Road Accident Fund assisting a claimant via appointing applicable medical experts at an enormous cost to prove its case against itself.
In illustration of the point, our firm has on two occasions taken over matters where the claimant pursued their claims against the Road Accident Fund in their personal capacities.
In the first matter the claimant was suffering a lower back injury. He was a medical practitioner at the time specialising in surgery. The Road Accident Fund's first offer and settlement to him was the amount of R 174 000.00. After our services were engaged the matter went to trial and the claimant was awarded R 2 800 000.00 as compensation.
In the second matter the claimant, a senior programme producer was involved in a motor vehicle collision suffering a moderate brain injury leading mainly to behavioural changes.
The claimant was first offered the amount of R 169 000.00 in settlement of the matter. After engaging our services, the Fund was ordered to pay the amount of R 2 700 000.00.
In addition to the experience required to assess the risk regarding the merits of the matter as well as the risk regarding the presence or not of long-term impairment attorneys are experienced in linking the claimants to the correct medical experts and in doing so carrying the financial burden brought about by litigation and costs of experts.
If our firm is satisfied with the offer, it is able to assess your claim and will accept instruction on the basis of only being entitled to fees on successful finalisation of a claim against the Road Accident Fund.