Road accident injuries: Do I have a claim?

Peter was involved in a car accident where a drunk driver jumped a red light and hit him side-on, totalling his car. Fortunately Peter managed to escape largely unscathed with only whiplash and some minor cuts and bruises. Yet Peter had to pay hospital and doctor costs for the check-up and wound treatment and now he wonders whether he can claim these expenses back from the Road Accident Fund (“RAF”)?

The RAF Act has been amended with the amendments substantially impacting on all claims arising from motor vehicle accidents which occurred after 1 August 2008, and resulting in many victims being unsure of whether they can claim from the RAF or not.

The RAF is obliged to compensate any person for any loss or damage which that person suffered as a result of a bodily injury to himself or from the death or bodily injury to any other person, caused by or arising from the driving of a motor vehicle, if the injury or death was caused by the negligence or other wrongful act of a driver or owner of the motor vehicle (or his employee while in the employment of his employer).

If applicable the following can be claimed from the RAF:

  • Hospital and doctors’ accounts (past and future expenses);
  • Loss of income/income capacity (past and future);
  • Funeral costs;  and
  • Loss of support (by a widow and/or minor children).

The above is classified as special damages (monetary loss).

If the past medical expenses were paid by a medical aid fund, the RAF will require that the medical aid fund (and not the injured person) be reimbursed. The RAF also does not pay future medical and hospital accounts/expenses but provides an undertaking that they will reimburse the injured person once the expenses have been incurred and paid for.

General damages (non-monetary loss) for pain, suffering, loss of amenities of life, disfigurement, etc. can only be claimed if the injury has resulted in a 30% or more Whole Person Impairment (WPI). However, if the injuries have resulted in less than 30% WPI, but has the consequences of:

  • Serious long term impairment or loss of a body function;
  • Permanent serious disfigurement;
  • Serious long term mental illness or impairment or severe behavioral disturbance or disorder;  or
  • Loss of a fetus,

the injured person can still claim general damages, provided the above can be proven.

Any assessment of impairment must be done by an accredited medical practitioner and the prescribed RAF 4 Serious Injury Assessment Report must be completed and submitted to the RAF.

The most significant change resulting from the amendments to the RAF Act, is that the RAF is no longer liable for the costs associated with a claim ie. the attorney’s fees and the costs of obtaining the doctors’ reports and the RAF 4 Assessment Report.

In cases where funeral expenses were not significant and where a medical aid fund has paid the medical expenses and there is no claim for general damages, it is unlikely that a claim against the RAF will be feasible. In this case of Peter, it therefore appears at first glance as if his claim will be extinguished by the costs of lodging a claim.

Importantly though, each and every injury is different and should be assessed individually on its merits by an attorney specializing in RAF claims to establish the merits of the case and whether it would be worthwhile to proceed given the prospects of success.

November 22, 2012
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