A truck crushed into a car which had four occupants where one of them died and the other three was taken to hospital under very critical condetions, the accident occurred at cnr Kliprivier and Vincent road in Soweto.459 Picture: Matthews Baloyi 11/11/2010

The Road Accident Benefit Scheme (RABS) policy will soon come into operation, paving the way for the transformation of the Road Accident Fund (RAF). RABS is aimed at reaching more victims in a shorter time, with a policy shift from a fault-based compensation system to a no-fault basis. The government hopes the new scheme will address disparities in access to treatment and benefits. High Court Reporter, Zelda Venter, spoke to role-players on what the scheme will entail

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The proposed Road Accident Fund (raf) legislation, which, once approved, will determine the procedure and how much road accident victims can claim against the fund, have been met with mixed emotions.

On the one hand, there is fear that the new system will not benefit the victims, while on the other there is a feeling that it is a perfect remedy to address the well-known financial woes of the RAF.

The legislation aims to replace the RAF fault-based compensation system with the Road Accident Fund Benefit Scheme (RABS) – a new, no-fault benefit system – which will absolve the affected driver from civil liability.

The cabinet has already approved the RABS policy, and yesterday was the deadline for comment on the draft bill. The Department of Transport published the RABS Bill on February 8 for public comment.

Once in force, the present legislation will be replaced by defined benefits to eligible victims on a no-fault basis, with no penalties for the injured person’s own negligence which might have contributed or caused the accident. Injury or death caused or arising from an accident anywhere in South Africa will be covered.

The present system requires claimants to prove that the accident was caused by the fault of another before they can qualify for compensation.

Under the new scheme, this will no longer be a requirement because accident victims will be able to qualify for benefits regardless of who caused the accident.

A government spokesman said the new scheme was aimed at addressing disparities in access to treatment and benefits.

Social inequality will be addressed because social standing will not determine the level of benefits. The government aimed to implement the new system as soon as the legislative process was completed.

The new system will provide victims with a set of defined benefits regarding payment for health-care services, income and family support, and funeral benefits.

According to Transport Minister Ben Martins’s comments in a recent Government Gazette, there is a need for an effective benefit system that is reasonable, affordable and sustainable in the long term.

He said the benefit scheme should optimise limited resources and facilitate timely and appropriate health care and rehabilitation to lessen the impact of injuries. The bill, he said, was aimed at providing financial support to reduce the victim’s income vulnerability.

The RABS is aimed at providing a scheme of structured and defined benefits to those badly affected by road accidents in accordance with social insurance purposes and not liability insurance purposes.

It will provide a benefit which will not cover the full extent of loss, because the purpose is to encourage an injured person to return to work, thus reducing the culture of dependency.

Martins said the bill was needed, among other reasons, to simplify claims procedures, reduce disputes and create certainty by providing defined, structured benefits. Another reason was that there was a need to establish administrative procedures for the expeditious resolution of disputes that may arise and alleviate the burden on the courts.

In terms of the RABS, payments will be made directly to medical service providers and beneficiaries.

The RABS’s benefits include medical and health-care services and income-benefit support, subject to thresholds – with income limited to R192 000, with only 75 percent of a 100 percent disabled victim’s income being paid.

Loss of earning capacity will depend on the degree of disability and actual income after the accident. It will also include a family support benefit, subject to prescribed thresholds, as well as R10 000 capped funeral cover.

Periodical payments of structured benefits or lump sum amounts (under certain conditions) will be paid to successful claimants.

No payments will be made for compensation for general damages, such as pain and suffering, loss of amenities of life or disfigurement.

Personal or private occupational insurance will be encouraged because it could supplement the limited benefits provided by the RABS.

It will also allow injured road users to have limitless access to emergency medical and appropriate health care.

The government said the process was designed to be simple and accessible, and it was expected that claimants would be able to administer their claims themselves, without the help of an attorney. The RABS would be able, from time to time, to review, revise and terminate the claimants’ benefits by reviewing a victim’s medical assessments.

Dr Eugene Watson, the RAF chief executive, said: “Under the RABS, the process will be streamlined as the benefits will already be outlined, and victims will be assisted to get back on their feet as soon as possible.”

DA Transport spokesman Ian Ollis said there were issues in the draft legislation that remained unclear. These included that it did not clearly indicate how the RABS would provide faster payment of claims than the RAF, and which benefits, if any, would be culled from those supplied by the RAF.

An RAF expert, who declined to be named, also expressed concerns.

“The introduction and implementation of the RABS is sugar-coated with the prospect of more victims having access to benefits based upon a no-fault system and the fact that you may supplement your claim with personal insurance.

“The truth is that most road users do not have the means to afford insurance.”

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HOW THE SCHEME WILL OPERATE

The Department of Transport answers some questions regarding the new Road Accident Benefit Scheme (RABS):

Q: In simple terms, how will the scheme operate?

A: The RABS will be funded by the fuel levy. Claimants will claim from the RABS, and the scheme’s administrator will assess claims for benefits and pay beneficiaries in terms of the act.

Q: Will the public benefit?

A: The

RABS will be a more reasonable, affordable, equitable and sustainable system of providing benefits for victims of road accidents.

Victims will receive medical attention and receive benefits much earlier than under the current system.

Q: Will claimants receive reasonable compensation?

A: The RABS will expand access to benefits by providing benefits on a no-fault basis.

Benefits will be prescribed and defined.

Q: Will the RAF be able to cope with the additional work, as there will no longer be an attorney acting on behalf of the victim?

A: The system will be administered by the Road Accident Benefit Scheme administrator.

The RABS will not be required to consider the relative fault of persons involved in the collision, as is currently the case.

With the current system, the exact portion of blame has to be established by the RAF before it can determine the amount of compensation due to a claimant.

The administrative burden on the RABS will, therefore, be reduced, because benefits will not need to be reduced by virtue of the extent of blame, if any, on the part of beneficiaries.

Q: How will it improve on the current system, and what will happen when claims lapse?

A: In terms of the provisions of the draft bill, the RABS is required to accept or reject claims within the strict time periods specified in the bill.

The RABS must accept or reject claims for health-care services within 30 days.

If a claim is rejected or if a response is not received, the claimant can lodge an appeal in terms of the provisions of the RABS Bill.

Q: How long will people have to lodge a claim?

A: Claims of health-care providers for medical treatment provided to injured persons must be submitted within 120 days of the service, or if it is claimed by the injured person, within one year of the injured person making payment to the service provider.

Q: How will medical assessments work? Will the accident victim have to pay upfront?

A: The RABS Bill provides that the RABS will pay for the costs of a medical assessment for the purposes of preparing a treatment plan for an injured person, for purposes of a temporary income benefit in terms of clause 36 and for a long-term income-support benefit.

Q: Will the RABS be accessible to people in remote areas?

A: The number of RABS offices and their placement will be determined as part of the implementation plan.

Q: How far is the RABS from implementation?

A: The RABS Bill was published for public comment and the period provided for public comment closes on June 10 (yesterday).

The Department of Transport will evaluate the comments before it is ultimately tabled as a bill.

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CONCERN OVER CLAIMANTS GETTING SHORT END OF STICK

Some members of the legal fraternity fear that the proposed Road Accident Benefit Scheme (RABS) will short-change claimants.

Last week, the Supreme Court of Appeal lashed out at the Road Accident Fund (RAF) for awarding a mother, whose two children suffered serious brain injuries, a mere R10 850.

A lawyer who took up their plight successfully turned to the Supreme Court of Appeal to confirm the setting aside of the settlement. This has paved the way for their case, with a claim estimated at R3.6 million, to start again.

Similarly, the Pretoria High Court was asked to set aside the settlement agreement between a Mamelodi West man, Mbazima Patrick Baloyi, 37, and the RAF.

After a car accident in 2008, Baloyi submitted his damages claim directly to a claims handler working for the RAF. He suffered back and neck injuries, an injury to his left arm and a blow to the head. In March 2009, the RAF entered into an agreement with Baloyi, paying him R45 000.

His lawyer, Pieter Coetzee, of Gert Nel Attorneys, asked the court to look at the claim afresh because they estimated that his client should receive in the region of R521 000 in damages. The court ordered the RAF to pay Baloyi R255 000 – over and above the R45 000 that was previously paid to him.

The RAF also undertook to pay all his accident-related future medical expenses as well as his legal costs.