RAF removes right to claim compensation for personal injury following a motor accident

November 2010’s Constitutional Court confirmation of the amended Road Accident Fund (RAF) Act effectively removes the right to seek compensation for personal injury from the negligent owner or driver following a motor accident.

Since attorney fees were partly responsible for the need to cap RAF compensation amounts in the first place, November’s ruling will also “make the fund cheaper to administer while removing much of the legal conflict that has delayed and complicated compensation to date” says Ian Labram, Manager, Aura Motor at Guardrisk.

So, from now on, as with the Compensation for Occupational Injuries and Diseases Act in the workplace, the RAF is the beginning and end of all motor accident compensation claims.

In short, “people can only seek compensation for physical injury from the fund - though civil recourse remains available for damage to property and secondary emotional shock” adds Labram.

While case history is yet to establish just how successful parties might be in suing the fund for additional compensation in cases of shortfall, or indeed how long it might take, “the confirmed amendment at least brings clarity to what has been a contested issue for too long” says Labram

For example, it is now clear that both drivers and passengers can claim from the fund. In fact everyone injured on South Africa’s roads, whether they caused the accident or were the victim, or whether they are local or foreign, may claim from the fund.

That said, “for now the RAF still operates on a fault system, though may in future change to a no fault basis. Since this will remove the need for attorneys to prove fault it will also dramatically reduce the operating costs of the fund.”

Furthermore, only ‘serious injuries’, loss of earnings and medical expenses will be compensated by the fund. “The broken arms, bruised ribs and few days off work all covered by the first draft, are no longer considered by the amended Act” explains Labram.

That said the current drafts’ definition of ‘serious accident’ remains vague and will require suitable precedent before it is clearly understood, defined and applied.

As such, until the case history is in place “scope for confusion and fraud remain around how the RAF defines ‘serious injury’. As such it is not clear if the amendments will prevent false claims and weed out ghost victims” warns Labram.