RAF sued for under-settling

By Zelda Venter Time of article published Jun 17, 2015

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When she was 5 years old, Betty (not her real name) was on a pavement in eMalahleni, Mpumalanga, with her mom when a taxi knocked her down and reversed over her, causing permanent brain damage.

She received an under-settlement of R32 000 from the Road Accident Fund (RAF). Now, aged 12, she is to receive nearly R1.8 million, thanks to a determined lawyer.

Betty’s brain function is so impaired, she had to repeat Grade R twice and then failed Grade 1. She is in a school for children with special needs.

When she turns 18 she will be moved to a facility which will care for her for the rest of her life.

A few years ago, her mother, with the help of an attorney, instituted a damages claim against the RAF on her behalf.

The law firm received a settlement offer from the RAF for R40 000, which it accepted. Under the settlement, the child was held 20 percent liable for the accident, and therefore received only R32 000.

But the family’s new lawyer, Stephan Spruyt, said the settlement was unethical because, by law, a child younger than 12 years could not be negligent.

Another problem was that many people, such as Betty’s mother, were ignorant about what they should receive. “To them R32 000 sounds a lot, but they do not realise the long-term implications,” he said.

Spruyt said that under existing case law, if a minor was able to demonstrate there was a gross disparity between the settled value and the actual value of the claim, the court could set the settlement aside. For that reason, he had decided to sue again.

Lawyers acting for the RAF could not obtain the authority to renegotiate the matter when it served before court last week. The matter stood down for a while.

But advocate Stefan Maritz had secured R1.783m towards the child’s damages as confirmed by Pretoria High Court’s Deputy Judge President Aubrey Ledwaba by means of an order.

Spruyt said the RAF had an obligation to settle matters fairly and equitably. In Betty’s case, nothing had previously been done to investigate the child’s injuries, he said. No reports from experts had been obtained to ascertain the extent of her brain damage.

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