Motor Vehicle Accidents

Third party claims

What a third party claim?

A third party claim is a claim by a person, or the dependants of a person, who received a bodily injury or who died as a result of a motor vehicle accident caused by the negligent driving of a motor vehicle. Third party claims are made to the Road Accident Fund, which then automatically steps into the shoes of the negligent driver who caused the accident and pays the injured person for any injuries suffered.

Who can get money from the Road Accident Fund

You can claim compensation from the Road Accident Fund if:

you are injured as a result of a motor vehicle accident caused by the negligent driving of a motor vehicle driven by another person;
you are the dependant of a person (the breadwinner) who was injured or died in a motor vehicle accident caused by the negligent driving of a motor vehicle by another person.’

You can claim if you were involved in an accident as a driver or a passenger or a pedestrian.

However, you will only get money from the Fund if you did not cause the accident. If you and the other driver were equally to blame for the accident, you will only be paid half of your damages. In the event that both drivers were negligent then the Fund will take into account the Apportionment of Damages Act (No 34 of 1956). This Act allows the Fund to divide (also called apportion) the compensation so that it is a just and equitable amount that is awarded to the injured party.

If the accident was caused solely by your own negligence, you will not be entitled to claim from the Fund. This includes accidents where you were the only person and vehicle involved, for example if you drove into a pole.

Negligence

You have to prove that somebody else was driving negligently before your claim will be paid. A driver will be negligent if you can prove on a ‘balance of probabilities’ that he or she did not drive the vehicle in a way in which a reasonable driver would have driven in the same circumstances.

However if the person who is claiming compensation from the RAF was partly to blame for the accident, then he or she would also be regarded as negligent in the circumstances. In this case the Apportionment of Damages Act says that if you suffered damages caused partly by your own fault and partly by the fault of another person, the court will reduce the amount of damages in its award equal to the percentage that it feels you contributed to the accident.

Sometimes it is not the driver of the vehicle who was negligent but rather the owner of the vehicle. Owners of vehicles should make sure that everything on the vehicle is working properly. If they do not and an accident happens because of this, then they are negligent. In this case, the driver has a third party claim.

Example

Thami Molefe borrowed his employer’s car to take some people to the town. The car had bad brakes but Thami didn’t know about this. When Thami got to a stop street in the town he put on brakes, but the brakes didn't work. As a result Thami crashed into a lorry in front of him.

Three people in the car and the driver of the lorry were injured. These people can all make third-party claims, because the owner of the car was negligent for not keeping the car in a roadworthy condition.

What you can claim for

If you are injured in an accident, you can claim for:

your medical expenses: money you paid for doctors and hospitals to treat you
compensation for pain, suffering and disfigurement (if your body is scarred by the accident)
loss of earnings, if you have not been able to work after the accident

Claims for loss of support

If the breadwinner in the family dies in an accident caused by someone else, then the dependants of that person can claim for loss of support.

A 'dependant' is someone who depends on someone else for food, clothes, shelter, and so on. You will only succeed with a third party claim as a dependant if the breadwinner had a legal duty to support you. For example, the widow of someone who dies could claim compensation for herself and the minor children of the deceased. But you wouldn't be considered a dependant of your friend who helps you with money every month.

Who do you claim from?

The claim is against the Road Accident Fund (RAF). The Fund has offices in Pretoria, Randburg, Durban and Cape Town. A third party claim is not against the negligent driver or the owner of the vehicle. The RAF ‘steps into the shoes’ of the driver/owner and pays on their behalf.

Using an attorney

Only an attorney can lodge a claim on your behalf if you do not do it yourself. A third party claim can be complicated so it is best to use an attorney to handle your claim. If the attorney thinks that the claim will succeed, they might ask you for a deposit to cover the first costs. If the claim is successful, you pay the attorney with some of your claim money. The RAF will also contribute towards the legal costs if your claim is successful. If the attorney thinks that the claim will not succeed, he or she will advise you not to go ahead with the claim. Then you only have to pay for the first consultation with the attorney.

At the first consultation with your attorney you should enquire about the legal costs involved. Don't wait until the end of the court case or settlement to consult with your attorney about how you are going to pay and how much it will cost you. If you think you cannot afford the legal costs involved, you should approach the Legal Aid Board to apply for legal aid. Your attorney can help you to apply. (See Applying for legal aid) You can also apply to the Law Society in your and the law society will recommend that a attorney handle the matter on a pro bono basis (in other words, for free).

The claims procedure

Time limits / Prescription periods

You must lodge the claim within three years from the date of the accident, if you know who caused the accident. If you don’t know who caused the accident you have two years to claim. Whatever the case, your claim must reach the Road Accident Fund in time, or you will lose the right to claim. If the attorney leaves the claim too late, and you did not cause any delays, then you can institute an action against the attorney for the not sticking to the time limits which resulted in your claim prescribing.

Preparing to consult your attorney

It will speed things up if you have certain details ready before you go to an attorney. These are:

your identity document (ID)
the registration number of the car that caused the accident
the police case number
details of the driver or the owner of the car
details of any witnesses to the accident, for example names and addresses, statements, and so on
a hospital patient number

If the claim is by a dependent of the breadwinner who was killed in an accident, the following documents will also be needed:

ID of deceased
Death certificate of deceased
Copy of inquiry, if available
Copy of latest payslip
Funeral expenses

Documents you will need

If the attorney agrees to take the case, then you can help the attorney to get some of the necessary documents:

medical report, or if a person was killed in the accident you must get an inquest record (this is a record of a court enquiry into someone's death).
a charge sheet from the police
all accounts, receipts and vouchers to prove medical expenses and hospital expenses
letter from the doctor - the doctor will say how much you will pay for medical expenses in the future, because of the accident.
a rough sketch (drawing) of the scene of the accident
the name of the police station where the accident was reported, the police case number and the police report
a letter from your employer to say how much money you lost through unpaid wages, this is known as a loss of earnings certificate
a power of attorney from you - this is a legal letter where you give permission for the attorney to make the claim on your behalf
written consent to the hospital - this gives your permission to the attorney and the Fund to look at your hospital records.
an affidavit from the person who is claiming
affidavits from witnesses (people who saw the accident), if there are any
salary advice slip and employment certificate from the employer if you suffered a loss of income as a result of not working while you were recovering or if you were permanently disabled by your injuries.

If you are claiming or are a witness, do not give a signed statement to anyone except your attorney.

What compensation can you get?

If your third party claim succeeds, you will be paid a certain amount of money by the Fund. The Fund pays 'special damages' and 'general damages'.

Special damages

This is money to pay for things that cost you money, for example:

hospital and medical accounts for treatment that you received since the date of the accident
hospital and medical accounts for treatment that you will need in the future (the RAF might undertake to ‘pay’ these costs in the future when you undergo medical treatment; you therefore pay up front and then claim from them)
wages / earnings that you already lost as a result of your injuries
wages / earnings that you will lose in the future as a result of your injuries
cost of someone to take care of you if you cannot do this yourself
financial support that you already lost because a breadwinner died
financial support that you will lose in the future because a breadwinner is dead
funeral expenses (if the dependants of someone who died in a motor vehicle accident are claiming)
travelling expenses

General damages

This is not money to pay accounts. This is money to try to make up for your suffering because of someone else's fault.

For example you can get general damages:

for pain and suffering;
for shock;
because you now have a disability as a result of the accident;
because your face or your body was badly scarred (disfigured);
because you cannot do things that you could do before the accident, like play sport or have children (loss of amenities of life);
because your life may now be shorter (shorter life expectancy).

If you were not in the vehicle which caused the accident, there is no limit to the damages you can claim from the Road Accident Fund.

Passengers in the car which caused the accident

If you or the breadwinner of your family were a passenger in the car which caused the accident, you cannot claim more than R25 000 in respect of special damages. Also, you may not be able to claim general damages.

If you were a casual passenger in the vehicle which caused the accident, for example, if you were just traveling with family or friends, or if you were hitch-hiking, the law says you can only claim special damages (hospital expenses, and so on), and you cannot claim for general damages (pain and suffering, and so on). But your claim is still limited to R25 000.

Only these kinds of passengers in the vehicle which caused the accident can claim special and general damages (limited to a maximum of R25 000):

if you were paying money to ride in the vehicle, for example a taxi or bus (conveyed for reward)
if you were in the vehicle because of the business of the owner (business passenger) and you were being transported as a passenger in the course of business of the owner.
if you were in the vehicle and were injured on duty in the course and scope of your employment
if you were a passenger getting a lift as part of a lift club

If your damages amount to more than R25 000, then you can sue the negligent driver or owner for the extra money. If you win, the driver or owner must compensate you with his or her own money.

But you cannot sue if the negligent driver or owner is your employer, and the accident happened when you were busy at work. This is because the Compensation for Occupational Injuries and Diseases Act says that you cannot sue your employer for damages if you are injured on the job.

edical expenses in the future, because of the accident.

a rough sketch (drawing) of the scene of the accident
the name of the police station where the accident was reported, the police case number and the police report
a letter from your employer to say how much money you lost through unpaid wages
a power of attorney from you
This is a legal letter where you give permission for the lawyer to make the claim for you.
a written consent to the hospital
This gives your permission to the lawyer and the Fund to look at your hospital records.
an affidavit from the person who is claiming
affidavits from witnesses (people who saw the accident), if there are any

An affidavit is a sworn statement. In the statement you write down everything that happened. At the end of the statement you sign and promise in front of an official called a Commissioner of Oaths that what you stated is true.

If you are claiming or a witness, do not give a signed statement to anyone except your lawyer.