By Mthokozisi Maphumulo
It is a known fact that the festive period comes with an increase in the number of road accidents. There are various reasons for these i.e. a lot of travel happens during this period, a lot of drinking and driving, etc. Whilst some road accidents occur as a result of the victims’ own recklessness, it is equally important to bear in mind that thousands of other victims are affected without any (or very little) blameworthiness on their part. In our law, similar to many other jurisdictions, “qualifying victims” can successfully claim for compensation from the Road Accident Fund. The claiming process is not without difficulties and, as such, it is pivotal that the victims understand some basic components involved in the process. In light thereof, this article will seek to answer some questions such as the determination of the amount of compensation; costs involved in the claiming process; manner in which a victim can claim; possible time periods of the process; etc.
Qualifying victims and claiming options
Firstly, it is worth mentioning that to qualify for compensation under the Road Accident Fund Act, a victim must not be a sole cause of the road collision. If the victim contributed to the occurrence (but not entirely) then the blameworthiness will be apportioned accordingly and, the compensation amount will reflect the apportionment. Secondly, the victim must suffer bodily injuries, or the breadwinner (of the claimant) must have died in the accident (or as a result of the injuries sustained in the collision). Crucially, the deceased must have had a legal duty to support the claimant and the deceased must have, as a matter of fact, supported the claimant. Thirdly, the claim must be lodged within 3 years after the occurrence of the accident. In this regard, it may be sagacious to get the attorney to verify if the case may still be lodged. This is because, certain grounds may justify a delay in the lodging of the claim and thus warranting a condonation (though these are rare in RAF cases). To claim, a victim may adopt one of the two options – to claim directly with the RAF or to use legal representatives. It is not the intention of this article to explicate the pros and cons of each option but it might be worth specifying that the claiming success rate in represented claims is higher and these are finalised much quicker than direct claims. In law, however, both routes are available to the qualifying victims.
Duration of the process and what influences same
There is no fixed time within which the claim must be finalised – whether you are claiming directly or using a legal representative. Specific circumstances and factors relevant to each matter will dictate the reasonable duration. Plethora of factors such as the nature and extent of the injuries, the kind of medical experts required in the matter (and their availability), the availability of all the relevant quantification documentation, the cooperation and helpfulness of the relevant hospital(s), police station(s), ambulance services, etc. Before the claim is lodged with the RAF, there are a lot of pre-lodgement administrative processes that take place and, to swiftly lodge a claim, one needs to enjoy cooperation and efficiency of the aforementioned institutions – which is not always the case (for various varying reasons). Once the claim has been lodged, you cannot institute legal proceedings until the 120 statutory days (which equates to 4 months) have expired. At least on paper, the claim can finalise within the said 120 days, however, in practice, this does not happen. With the new proposed litigation strategy of the RAF, we may see some changes in this regard. Once the aforesaid days have expired, the legal proceedings can then be launched and a lot of exchange of court papers and legal processes are activated and, eventually, the matter ends up in court (or settled shortly before the court day). This whole process can take anything between 3 to 5 years to finalise. With that said, depending on the readiness of the matter (i.e. availability of the relevant documentation and helpfulness of every relevant role-player, etc), matters do finalise much quicker than the aforesaid estimated duration (some may take months while some may take a year or two).
Compensation amount and costs involved
The amount with which the victim is to be compensated with leans largely on personal/family circumstances of the victim. This implies that you may be involved in the exact same accident with a person and suffer more serious injuries than him or her, but s/he gets more monetary compensation than you. Factors such as age, actual/chances of recovery, nature and extent of injuries, educational history and background, the nature and demands of one’s employment, the actual amount of money (salary or business) that you have lost whilst treating the injuries, the actual amount of money used to treat the injuries related to the accident, etc. When the legal representatives prepare the victim’s claiming papers and/or court papers, they categorise the nature of compensation under various traditional heads of damages i.e. past medical expenses, future medical expenses, past loss of earnings, future loss of earnings (or capacity to earn), general damages and loss of support claims. The applicability of each head of damages is dependent on the peculiar facts and circumstances of each matter. The medical experts’ findings and recommendations have a greater influence in the determination of the compensation amount. With respect to costs, a victim may choose to either pay for the invoices as the matter progresses. Only a few have the financial muscle to finance RAF cases because the associated costs are exorbitant. Alternatively, you enter into a contingency agreement with the legal representative in terms of which, if the case is unsuccessful, the legal representative does not get paid but if the case is successful, they can take up to 25% of the capital amount. Importantly, the contingency agreements must accord with the Contingency Fees Act, failing which the agreement is unlawful and unenforceable.
No one plans for any accident and it is everyone’s wish that they do not occur, however, if the unfortunate happens, it is important that victims do have a basic understanding of how these cases are handled and the associated legal processes. It is common to have car accident victims impatient because of the duration that the process can take; some compare their compensation pay outs to others and end up suspecting foul play by their legal representatives, etc. Thus, the foregoing must clarify some of the grey areas and provide the necessary answers.
Mthokozisi Maphumulo is an Associate and Litigation Attorney at Adams and Adams
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