RAF declares war on personal injury lawyers

The Bobroff issue was high profile and received significant media attention. Following the ruling of the Constitutional Court, the RAF sent out a statement to the press which effectively declared war on attorneys by urging the public to be weary of personal injury lawyers and to claim directly from the RAF.

The main cause of concern in Bobroff's legal battles with the state was the ruling of the North Gauteng High Court in favour of Juanne de la Guerre. This ruling was appealed at the Supreme Court of Appeal and then at the Constitutional Court.

RAF CEO, Dr Eugene Watson, says that the Constitutional Court ruling effectively set the president for the RAF's standpoint on direct claims.

"The judgment has provided much needed clarity on the so called common law contingency fee agreements and paves the way for road accident victims to pursue claims amounting potentially to millions of rand's against lawyers who assisted them to successfully claim from the RAF, but then charged fees in excess of what the law permitted," said Dr Watson.

"Future road accident victims should be more cautious in approaching personal injury lawyers and should rather claim directly from the RAF. This is indeed a major feat for the RAF and a great step forward for the rights of claimants."

Co-chairperson of the Law Society of South Africa (LSSA), David Bekker, does not dispute the fact that members of the public can claim directly from the RAF, but he warns that this can become a very involved process.

"One must note that claiming from the RAF is a complicated and technical process. For example, medical reports (RAF1 and RAF4) need to be completed by doctors, and paid for. Documents need to be obtained from the South African Police Service, and paid for. An affidavit explaining how the accident took place must be prepared and lodged with your claim, and medical records need to be obtained from hospitals and doctors, and paid for. In addition, you need to quantify your claim. That is, state in your claim form what you are claiming for various heads of damages such as pain and suffering, loss of amenities of life, disfigurement, disability and shock (general damages), loss of income, loss of earning capacity, future medical costs and past expenses (special damages)," says Bekker.

"To claim general damages for pain and suffering, loss of amenities of life, disability, disfigurement and shock, you need to lodge a serious injury assessment report (RAF4) from a suitably qualified medical expert who has assessed your injury as serious as provided for in the constitution." He adds that there are time limits that apply to a claim and if they are not complied with, the claim will be unenforceable.

An attorney specialising in personal injury claims has the knowledge and experience to assist claimants and to ensure that claims are properly calculated and submitted to the RAF in accordance with the Act and Regulations. Many attorneys specialising in personal injury cases will also incur and carry the costs necessary to prosecute the claim pending the finalisation. These attorneys will work on a contingency (no-win-no-fee) basis in terms of the Contingency Fees Act.

Therefore, attorneys have an important role to play in the personal injury claim process. But have they forced the public to become over cautious when approaching them on such matters. What effects has the Bobroff saga had on the legal industry's reputation?

"Attorneys are professionals who are regulated by a strong set of rules of professional conduct. Members of the public have the assurance that if their attorney acts unprofessionally or unethically in any way, their complaints to the relevant provincial law society will be investigated and the attorney will be called to account. In addition, claimants have the additional assurance that if their attorney is negligent in any way regarding the claims (if the claim prescribes), that all attorneys are covered for professional indemnity for this by the Attorneys Insurance Indemnity Fund (AIIF). If the attorney misappropriates moneys paid to a claimant by the RAF, the claimant is protected by the Attorneys Fidelity Fund (AFF), which protects the public against theft by attorneys. Between the strong regulatory frameworks and the protection provided by the AIIF and AFF, members of the public can confidently continue to use the services of attorneys," says Bekker.

He adds that claims lodged by attorneys to the RAF have declined over the years and that attorneys who specialised in that field have diversified into other fields, specifically in other aspects of personal injury law.

The Bobroff saga will have an effect on the way in which the public sees the legal industry, especially when it comes to RAF claims. But instead of releasing a statement which basically wants to completely cut out the legal industry from RAF claims, surely the RAF should be seeking engaging discussions with the LSSA on this issue. This was apparently done in September 2013, but obviously very little came out of that meeting. The RAF was contacted for comment on this article and did not respond. Please comment below, interact with us on Twitter at @fanews_online or email me your thoughts jonathan@fanews.co.za.