Festive season car crashes: Who can claim from the Road Accident Fund?
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By Mtho Maphumulo
WE HAVE seen over the years that the number of accidents considerably increase. This is evident from the annual statistical reports by the Department of Transport. It is common knowledge that, in law, victims of the car accidents can claim for compensation from the Road Accident Fund, in terms of the Road Accident Fund Act. The reality that is not so widely publicised is that not every victim of the car accident is entitled to claim from the RAF. The act specifically qualify certain victims for compensation. This legal position is critical, particularly for motorists – as it will become apparent below. In some instances, a motor vehicle accident victim will not be entitled to a “full compensation”. This legal position is more important to pedestrians and motorists. The facts and the prevailing circumstances of each case will determine whether a victim can claim at all or, they can claim but the claim will be “limited”.
For purposes of this piece, the most prominent provisions herein are Section 3 and Section 17 of the RAF Act. Section 3 explains the objective of the fund and states that the object of the fund shall be payment of compensation in accordance with the act for loss or damage wrongfully caused by the driving of motor vehicles. Section 17 elaborates on who qualifies for compensation under the act and stipulates that the fund or an agent shall be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury himself or herself or the death of or any bodily injury to any other person caused by or arising from the driving of a motor vehicle by any person at any place within the Republic, if the injury or death is due to the negligence or other wrongful act of the driver or the owner of the motor vehicle. This provision is therefore significant since the victim (claimant) must prove some wrongdoing on the part of someone else – i.e, if a motorist is the sole cause of the accident, s/he cannot successfully claim. Therefore, motorists should be extremely vigilant that they do not cause road collisions. If it does occur, it must not be their own doing. Thus, in single motor vehicle accidents, drivers seldom claim. In some instances, a victim may not be blamed wholly for the accident, and, in that instance, they will claim but their claim will be limited i.e, apportionment will be applicable. This is prominent in drivers’ claims and pedestrian claims. The applicable percentage of the apportionment is determined by various facts and factors – this is where witnesses; police docket; accident reports; witness statements and affidavits; Accident Reconstructionist report will come into play. Passengers are virtually always in a “safer” position because they merely need to prove 1% wrongdoing on someone else’s part (it can be the driver or owner of the car they are being carried in or any other driver or pedestrian who contribute to the occurrence of the accident). Similarly, in loss of support claim cases, the victims (dependants) only need to prove the proverbial 1% wrongdoing. This may sound simple and easy to prove, but there are cases where no wrongdoing can be pinned on anyone else and, as such, the dependants do not succeed with their claims.
In view of this, it is crucially important to take cognisant of the fact that not everyone can claim from the RAF just because they were the victims of car crashes. Some other factors that may determine the ability to claim include prescription, failure to source and submit necessary documentation, etc.
Mpho Maphumulo is the Senior Associate at Adams & Adams.
*The views expressed here are not necessarily those of IOL or of title sites.
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