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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 claim compensation 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 are a close relative of the deceased in respect of funeral expenses;
• You are under 21 years but you must have the support of a parent or legal guardian.

You can claim if you were involved in an accident as a driver or a passenger in a motor vehicle or motorcycle, or if you were 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.

What can you claim for?

Claims for bodily injuries

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

The RAF employes informaiton officers at all branch offices of the RAC to help people with their claims free of charge. However if you wish to use an attorney they will charge for their services. 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 should 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

Damages for loss and support are limited to R182 857 per year, in respect of each deceased breadwinner, in the case of a claim for loss of support.

Damages for loss of income are limited to R182 857 per year.

This amount of damages paid for loss of support and loss of income is regularly adjusted to keep up with inflation.

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).

The claim for general damages is limited to 'serious injuries'. A registered medical practitioner will assess claims for general damages for pain, suffering and disfigurement in the case of bodily injuries to see whether they fall into the catetgory of a 'serious injury'.

The RAF does not pay compensation for 'secondary emotional shock', for example, if you were not involved in the accident but you witnessed it. You do however still have a common law right to claim against the 'wrongdoer' in cases like this.

Passengers

Passengers injured in a motor vehicle or motorcycle accident can claim for special and general damages from the RAF and there is no limit (as in the past) to what they can claim.

How long does it take to process a claim?

An attorney can issue a summons after 120 days have passed since the claim was lodged with the RAF. This gives the person handling the claim 120 days to finalise all the investigations.

When a summons is serve on the RAF, the person handling the claim will usually ask your attorney for an extension of time which will be used to see if the claim can be settled without having to go to court. The time that it takes to finalise a claim often depends on how complicated the claim is and whether all the necessary information is available.

If the RAF decides to pay out a claim, they will make an offer to the attorney. The attorney has to get your consent before agreeing to the amount offered. If the offer is not accepted the matter will be negotiated or go to court. If the offer is accepted, a discharge form will be used which says how much is to be paid. You will have to sign the discharge form and only once the RAF has received this will it make the payment.

What is an Undertaking?

The RAF may issue you with an Undertaking which says it will compensate you for future medical and related expenses. These can be paid directly to you or to the medical service provider who is treating you.