Durban - If the horror of a car accident does not leave its victims scarred, the Road Accident Benefit Scheme will, say opponents of the bill before Parliament.
The Law Society of the Northern Provinces is fighting to prevent the bill’s passage because it does not fully compensate victims for their losses.
The latest legislation is intended to replace the fault-based system administered by the Road Accident Fund (RAF).
“Road accidents will be treated on a no-fault basis. This means everyone will be able to receive minimal benefit payments and no one will be excluded from claiming, even if the accident was their fault,” says the law society.
“Until now, if you caused an accident, you were excluded from claiming from the RAF, but victims who qualified to claim received much higher payments in compensation.”
The new scheme will “drastically decrease the amounts and benefits payable. They want to change the law, at the expense of the victim,” says Lindy Lagner, a representative of the society.
“Seriously injured victims won’t be able to adjust to their new circumstances.”
The RAF has a deficit of more than R100 million and is run inefficiently, says Lagner.
“They get R3 billion a month from the fuel levy. You have to ask: will it (the scheme) benefit the victim or the administrator?”
The department maintains a “no-fault scheme will create a new era of socio-economic balance” and remove the “unintended negative consequences” and financial burden on the families of the wrongdoer.
The Justice Project South Africa (JPSA) is also opposed to the change. This non-profit organisation tackles corruption and the abuse of power in law enforcement and educates the public on a wide range of road safety issues.
“We oppose the proposed Road Accident Benefit Scheme for a number of reasons, not least of which is that it indemnifies the person who causes injury or death,” says Howard Dembovsky, JPSA national chairman.
“This, in our view, is not helpful to road safety in that it subconsciously makes some people think there will be no consequences for their negligence.
“The monetary amounts for victims of road crashes are simply laughable and don’t put a person anywhere close to the financial position they would have been in if not injured in a road crash. That’s simply not right and goes against the grain of the purpose of insurance,” he says.
Eugene Watson, the chief executive of the RAF, says the fund is burdened by expensive and costly litigation, prolonged claims finalisation and high administrative costs.
“What’s clear is the RAF is not sustainable. Liabilities of more than R130bn (and) awaiting payments of R10.79bn, despite monthly income of almost R3bn, are symptoms of this reality. Under the scheme, fault will not be considered on the part of the claimant or others involved in a road accident,” says Watson.
The department sees the defined nature of the benefits as making them “transparent and easily understandable by a claimant”.
The focus will be on how the crash victim is immediately assisted. Structured payments will be made directly to claimants’ medical and health-care service providers.
But the law society takes issue with this. “This means medical practitioners and caregivers you are entitled to use when injured will no longer be your choice, but dictated.”
Lump sum settlements will fall away as the scheme will make monthly payments to beneficiaries, of up to R44 000 a year without having to prove a source of income.
Many people are unemployed or do part-time work, says Lagner. The amount is “poor compensation” for a lifetime of lost income.
The department says lump sum payments “are, in many instances, used to buy luxury vehicles, homes and holidays”.
Under the new scheme, says Watson, the “odds will be in favour of the survivor” and there won’t be a need for lawyers, as disputes will be referred to an appeal body.
Lagner counters: “They will be the judge, jury and executioner.”
Dembovsky thinks there are better options than the scheme. “Compulsory third party insurance, through proper insurance companies, is law in many countries. This caters for the needs of victims without indemnifying drivers and fleet owners from further civil litigation.
“It would have the effect of reducing the fuel price and putting things in the hands of professional insurance companies. It is time the current and proposed system were scrapped and compulsory motor vehicle insurance reintroduced,” he said.
But Road Safety Action Campaign founder Richard Benson has applauded the bill, saying it needs to be implemented because lawyers have pocketed huge sums.
“For years they have been paying huge amounts into their accounts. They made fortunes, much of it for themselves. If this could be handled by a new body, it would benefit the victims,” says Benson.
But he expects the bill to be delayed because lawyers are not happy about the proposed change.
“The fact is our country needs to cut down by 40 percent on road carnage to avoid losing billions on claims. This could benefit the ailing economy,” says Benson.
He favours speed limit reduction, increased police visibility and naming and shaming traffic offenders.
The Department of Transport was not available for comment.
- Sunday Tribune