Question: What recent changes have been made to the RAF?
As of 1 August 2008 the RAF was amended. Some of the key changes include:
- General Damages cannot be claimed except for serious injuries
- General Damages include pain, suffering, disfigurement, loss of amenities of life, etc.
- Any claim for loss of income or support is limited to R160,000 per year
- Medical expenses are limited to the State Hospital Tariff
- The Amendment Act takes away the third party’s common law right to sue the wrongdoer for that portion of the damages that the RAF does not compensate.
Question: Would the RAF pay if the vehicle was not on a public road?
- Yes, section 17(1) states that the RAF will compensate third parties for injuries “… arising from the driving of a motor vehicle by any person at any place in the Republic.”
- In the case of Road Accident Fund v Mbendera and others, the Supreme Court of Appeal held that the word ‘road’ includes specially constructed roads and is not limited to ordinary roads generally accessible to the public. In this case the road was a specially constructed mine haul road.
Question: Does the RAF impose limitations on the type of vehicle it covers?
- There is no cover if the vehicle was not designed for road use.
- E.g. vehicles such as ride-on lawn mowers and some forklifts do not have these adaptions.
- In the case of Chauke v Santam Ltd 1997 1 SA the court ruled that an accident involving a forklift would not fall under the RAF because the vehicle had not been adapted for road use. It did not have lights, indicators or a hooter.
Question: Can the Third Party sue the negligent driver?
- Yes, if the claim is for material damage.
- The RAF only deals with injury and death and not material damage.
- Example, the negligent driver could be sued for the R657,074.63 damage she caused by negligently reversing into a passing Rolls Royce.
- The RAF Act states that it is, mostly, not possible to sue the negligent driver or vehicle owner for the injury or death they caused.
- Section 21 of the Act states: “No claim for compensation in respect of loss or damage resulting from bodily injury to or the death of any person caused by or arising from the driving of a motor vehicle shall lie against the owner or diver of the vehicle or against the employer of the driver.”
- Example: Since the RAF only compensates the third party for pain and suffering when it arises out of serious injuries, can the third party sue the negligent driver for the pain and suffering caused by less serious injuries? No, Section 21 excludes all third party claims for injury or death.
- There is however an exception, in that a third party can sue for emotional distress they suffered as a result of witnessing the harm caused to others.
- In Road Accident Fund v Sauls (2002), Magdelene Jackson suffered severe emotional distress after seeing her fiancé, Stephen Sauls being hit by a truck as he stood beside his car.
Question: Does the RAF pay if there was no fault?
- No, currently the RAF’s liability is built on a fault-based system. The negligence of the driver or the vehicle owner must be proven in order to claim against the RAF.
- Government is currently exploring the option of moving the RAF onto a no-fault basis.
- The advantages of moving onto a no-fault basis are:
- The legal process of claiming against the RAF would be simpler and cheaper.
- There would be compensation for the victims of road accidents even when the driver was not at fault.
Question: What constitutes a ‘serious injury’ in terms of the RAF?
- Serious injury means a moderate to severe limitation in a person's ability to function or perform daily life activities as a result of a physical, sensory, communication, intellectual or mental impairment. (Government Gazette, 29 May 2006.)
- Some lawyers define a serious injury as a 30% long term bodily impairment.
Question: Does the RAF cover Passengers?
- Yes, the RAF no longer draws a distinction between passengers in the negligent driver’s vehicle and other third parties.
Question: Does the RAF have right of recourse against the negligent driver?
The RAF has the option to make a recovery against either the negligent driver or, in some cases, the owner of the vehicle, if:
- The owner had knowingly furnished the RAF with false information. (Example: I wasn’t stoned when I mistook the road-closed-for-traffic-works sign for the back of a bus which I then overtook after carefully indicating.)
- The driver did not have a valid driver’s licence or was under the influence of drugs, alcohol.
- The owner allowed someone to drive the vehicle that did not have a valid driver’s licence or was under the influence of drugs, alcohol.
The amount of the recovery will not exceed the amount paid by the fund to the third party.
Question: Is there a prescription period for bringing claims against the RAF?
Yes, if the negligent owner/driver can be identified, then the claim must be lodged within three years of the collision. Where the negligent driver cannot be identified (e.g. hit and run) then the claim must be lodged with the RAF within two years.
Question: What damages does the RAF pay?
- The RAF does not pay for material damage (such as damage to the third party’s vehicle).
- The RAF will pay damages for:
- The death of the third party
- Serious injuries suffered by the third party.
- The definition of a third party is very broad and indicates that the RAF has an obligation to compensate not only the person who suffers the injury but also others who suffer as a result of the person who was injured.
- Dependents of an injured bread winner could claim compensation
- The quantum of damages is as follows:
- The claim for loss of income or support is limited to R160,000 per year
- Medical expenses are limited to public hospital rates
- The necessary cost of a burial or cremation
- The claim for pain and suffering is limited to serious injuries and even then the awards are fairly modest.
Question: What is the Road Accident Fund?
- When a negligent driver causes injuries to other people (referred to as the third party), the RAF, to some extent, acts as the negligent driver’s insurer.
- For example, when a vehicle is driven negligently, it could cause injuries to:
- The passengers of that vehicle
- The occupants of another vehicle which it collides with
- A pedestrian knocked down by the motorist
These third parties can make a claim against the RAF.
- The RAF is a statutory body established by law to administer the system of compensation for damages suffered due to bodily injury or death caused by negligent driving of a motor vehicle.
- The RAF is financed by a levy on fuel.