Without public liability insurance, passengers may have recourse to the RAF, writes Georgina Crouth.
Some transport companies don’t view insurance as a “nice to have”: they have reputations and property to protect. But few know that most public transport operates without any form of insurance so their passengers are at their mercy.
For financial reasons, few people have a choice in the service they use - especially when it involves taxis - so they don’t get to ask about the “terms and conditions” of transport, to check whether or not they are legal operators, if they have public operating licences and permits or if they even have insurance.
Chances are, they don't.
Treen Maistry recently mailed me about a bus crash she and nine of her family members were involved in: “We were travelling from Durban to Joburg by bus. Just past half way, we had an accident and got injured. We were then taken to a hospital in Benoni and got treated for our injuries and later discharged.
“Upon contacting the bus company, I was told they do not insure passengers or goods and we cannot claim from them. Aren’t all bus companies supposed to have passenger liability insurance?”
The truth is, with little enforcement and countless public transportation companies out there, many operators simply don’t bother to take out insurance. The thinking seems to be if there are injuries, the Road Accident Fund (RAF) must deal with those.
But the fund only pays out for physical injuries, not property, and passengers are using these services at their own risk so if their property is damaged or lost in a crash, there’s nothing they can do.
The RAF’s media desk clarified their mandate as such: “The Road Accident Fund provides compensation for injury and death, caused by or arising from the negligent driving of motor vehicles within the borders of South Africa.
“If loss or damage to property (such as personal belongings or vehicles) has been sustained as a result of a motor vehicle accident (sic), the RAF will not be liable and that loss or damage may be claimed from the driver or owner of the vehicle that caused the (crash) and/or their insurer, should they have a policy in place.
“Section 21 of the RAF Act does not permit injured persons or dependants of deceased breadwinners to claim from the guilty driver or his employer for bodily injury or death... unless the RAF is unable to pay any compensation or unless the person claims compensation in respect of loss or damage arising from secondary emotional shock, sustained by a person when that person witnessed or observed or was informed of the bodily injury or death of another person... The RAF would inform motor accident victims accordingly, if approached.”
In plain English then: injured crash victims and the dependents of dead breadwinners must approach the RAF because they won’t be able to sue the transport company or the driver.
But you might want to think carefully about making a direct approach to the RAF, personal injury attorney Gert Nel told me.
“Most taxis don’t have insurance. There’s no principal governance in place - that’™s something along with road traffic safety and policing road users that the Transport Ministry needs to address. The days when you had to drive around with discs are over.
“Some of these unscrupulous companies hide behind the RAF currently because the big claims are covered under the RAF Act. You can’t hold the driver liable - you have to go to the RAF first. The no-name brands don’t care - anyone getting on to that bus would be covered by the RAF, for injuries, but not their property. You have to look after yourself. Not everyone can afford to travel on a Greyhound bus.”
But be warned when approaching the RAF, Nel told me, because crash victims are encouraged by the fund to lodge their claim directly with the RAF, without the assistance of a legal practitioner - as in Maistry’s case. She was told this would “expedite” her claim and that she would save 25 percent in legal fees.
Personal injury attorneys might have bad reputations as “ambulance chasers” but they are invaluable to help victims navigate the red tape and ensure that victims receive the full compensation due to them.
“Section 19(c) of the RAF Act, as amended, does not provide for the RAF to step into the shoes of the legal representative and administrate a claim on behalf of a road crash victim. This not only creates a conflict of interest but is simply unlawful.
“Yet every government hospital has an RAF consultant that is usually not legally trained that actively touts direct claims. If you’re in an accident, and one of these agents approaches you, chances are that your claim will either prescribe or be under-settled. The RAF recently did an internal audit and it was found that in the past two years 9 000 direct claims prescribed in their own hands.
“These victims are under the impression that their claims are being administered but many of them have long since prescribed. The only way to interrupt prescription is to sue. And the only recourse these victims would have is to seek the advice of a legal practitioner.
“The RAF’s answer to prescription is to sue themselves or condone prescription, both of which are ultra vires, in other words falls outside what the law allows.
“These victims don’t even know summonses are being issued in their names and the courts are being misled on a major scale.
“The proposed Road Accident Benefit Scheme makes allowance for direct claims but under the current act, victims should protect their interest by engaging an attorney. The RAF say come to us directly, you’ll save 25 percent on attorney’s fees - statistically, if you are lucky enough, these offers are less than 75 percent of the true value of your claim.”
I asked the RAF to respond to Nel’s comments but their media desk failed to do so by my deadline.
At face value, Nel’s warning against a direct approach to the RAF might sound self-serving. However, in light of those 9 000 direct claims prescribing “in their own hands”, you might want to think twice about entrusting your claim with an agent without legal expertise.
Especially considering the vast expense you might incur as result of an accident, injury or loss of a breadwinner, which is not even quantifiable.
Wise up. Here’s how!
Know what you're in for: Check the transport company's terms of carriage. The luxury coach Treen Maistry and her family took said it was not responsible “whatsoever” for loss or damage to personal effects, property or luggage. They are by no means an exception: both Intercape and Greyhound - two of the country's biggest “luxury” coach services - have liability disclaimers to that effect on their websites.
Travel lightly: If you're taking public transport, leave your expensive devices or other treasured property at home - or ensure that they are covered by your household insurance, in case it gets damaged or stolen.
If you're involved in a crash: Seek legal advice from someone who's been recommended, not necessarily a firm with the biggest advertising budget.
* Georgina Crouth is a consumer watchdog with serious bite. Write to her at [email protected]. Check out more helpful consumer tips and advice at [email protected]
** Follow Georgie on Twitter: @askgeorgie
The Star