The Road Accident Fund Amendment Act

What is the position of my claim under The Road Accident Fund Amendment Act?

The limitation of R 25 000.00 in respect of certain passengers claims arising from the sole negligence of the driver or owner of their vehicle has been abolished in respect of accidents which occurred after 1 August 2008 and they will therefore be treated the same as other claimants.  Thus passengers who sustain serious injuries in taxi accidents will thus be covered better.

1.  Passengers previously subject to limited claims (R 25 000.00 special and general damages) under Section 18 of The Road Accident Fund Act 56 of 1996 included the following passengers:

1.1  for reward or,

1.2  in the course of the lawful business of the owner of that vehicle; or

1.3   in the case of an employee of the driver of that motor vehicle, in respect of whom subsection (2) does not apply, in the course of his or her employment; or

1.4  for the purpose of a lift club where the motor vehicle is a motor car; or

2.  In the case of a person who was being conveyed in or on the motor vehicle concerned under circumstances other than those referred to in paragraph (a), (to the sum of R 25 000.00 in respect of loss of income or support and the costs of accommodation in a hospital or nursing home, treatment, the rendering of a service and the supplying of goods resulting from bodily injury to or the death of any one such person, excluding the payment of compensation in result of any other loss or damage thus only special damages).

3.  Claims previously excluded from liability such as passengers for reward on motorcycles and in single vehicle accidents, where the driver and claimant are members of the same household, or the driver is responsible for the maintenance of the claimant, are now included.

 

PAST MEDICAL EXPENSES

In respect of past medical expenses a distinction must be drawn between:

  1. non-emergency medical expenses
  2. emergency medical expenses, and
  3. alterations to buildings or premises / modification of motor vehicles.

Section 17 (4B) of the amended Road Accident Fund Act determines that non-emergency medical expenses shall be based on the tariffs for health services provided by public health establishments contemplated in the National Health Act 61 of 2003, meaning that the expenses will be paid at the uniform patient fee schedule tariffs applicable to public hospital rates by full paying patients, and not private rates.

Emergency medical treatment is described as the immediate, appropriate and justifiable medical evaluation, treatment and care required in an emergency situation in order to preserve the person’s life or bodily functions or both.

Section 17 (4B) (b) of the amended Road Accident Fund Act determines that emergency medical expenses:

  1. will be negotiated between the fund and such health care providers; and
  2. will be reasonable taking into account factors such as the cost of the treatment and the ability of the fund to pay;
  3.  In the absence of a tariff for emergency medical treatment the tariff’s applicable in paragraph (a) (non-emergency medical expenses) shall apply.

In terms of Regulation 5 (3) the costs of alterations to a building or premises as well as the modification of a motor vehicle shall be based on any reasonable quotation either submitted to or obtained by the Road Accident Fund.

 

FUTURE MEDICAL EXPENSES

In terms of Section 17 (4) (a) (ii) of the amended Road Accident Fund Act, the Road Accident Fund will be entitled to pay the costs in respect of future medical expenses to the claimant or directly to the medical service provider, on the same terms in respect of past medical expenses, that only state health care benefits/establishments will now be affected, thereby excluding private health care.

 

PAST AND FUTURE LOSS OF EARNINGS

According to Section 17(4) (c) of the amended act where a claim for compensation under subsection (1) includes a claim for loss of income, the annual loss, irrespective of the actual loss, shall be proportionately calculated to an amount not exceeding (i) R 160 000.00 per year in the case of a loss of income.  The amount of R 160 000.00 is the amount as of 1 August 2008 and is adjusted for inflation quarterly.  The current amount in respect of loss of earning is at 30 April 2015 is R 228 430.00.  The amount of the cap at the date of the cause of action is applied throughout and is not adjusted for inflation.  Nhambe v RAF 2010.  The annual loss is the loss in each year after actuarial discounts with contingencies being applied before application of the statutory cap.  SWEATMAN V RAF 2013 JDR (CPD)

An individual will have to engage in income replacement disability insurance to cover loss of earnings not recoverable from the Road Accident Fund or wrongdoer.

 

PAST AND FUTURE LOSS OF SUPPORT

According to Section 17 (4) (c) of the amended Road Accident Fund Act where a claim for compensation under subsection (1) includes a claim for loss of support, the annual loss, irrespective of the actual loss, shall be proportionately calculated to an amount not exceeding R 160 000.00 per year, in respect of each deceased breadwinner in the case of a claim for loss of support the exact provisions applicable in respect of loss of earnings as regards to the application of the cap to the retirement age etc. are applicable to the loss of support.

 

GENERAL DAMAGES

Only claimants who prove a 30% or more whole person impaired (WPI) as a result of the injuries sustained in the accident, will be entitled to general damages. Assessment of a serious injury shall be based on a prescribed method adapted after consultation with medical service providers and shall be reasonable in ensuring that injuries are assessed in relation to the circumstances of the third party and the assessment shall be carried out by a medical practitioner registered as such under the Health Professions Act No 56 of 1974.

To succeed with a claim for general damages the claimant will have to submit himself to an assessment by a medical practitioner in accordance with the regulations and only doctors who successfully complete a training course in the applications of the AMA guides may complete a serious injury assessment form.

The medical practitioner uses a process of elimination to assess whether the claimant’s injury is serious.

Step 1: If the injury meets the description of a “non serious” injury as published in the Government Gazette, then that injury will not be assessed as serious.

Any one, or any combination, of the following injuries, are for purpose of Section 17 of the Act, not to be regarded as a serious injury and no injury shall be assessed as serious if the injury meets the following description:

aa) any whiplash type or soft tissue injury to the neck or back;

bb) any sprain, strain, tear, crush or damage to any muscle or soft tissue;

cc) any sprain, strain, tear or damage to any ligament of any joint unless there is continuing instability to the joint;

dd) any lacerations, abrasions, cut, tear or damage to skin or soft tissue;

ee) any dislocation of a joint unless there is continuing instability of the joint;

ff) any complete or partial amputation of the little finger of either hand or both the right or left hand;

gg) fracture of any finger of either hand, or both the right and left hand;

hh) any complete or partial amputation of any one toe of either foot or both the right and left foot unless there is partial or complete amputation of the big toe;

ii) fracture of any toe of either foot, or both the right and the left foot;

jj) any damage to or loss of a tooth or any number of teeth;

kk) superficial burns to any part of the body;

ll) superficial injury to one or both eyes;

mm) fracture of the nasal bone or damage to the nasal cartilage;

nn) any scar or scars caused by any injury listed in items (aa) – (mm);

oo) any bruising or bleeding into the soft tissue as a result of any injury listed in items (aa) – (mm);

pp) any sequel in the form of pain or discomfort as a result of any injury listed in terms of (aa) – (mm);

qq) any mild or moderate form of depression, anxiety, or past traumatic stress disorder;

Step 2:Using the AMA guides, 6th edition, on whether the injury resulted in a 30% WPI, then it is to be assessed as serious.

Step 3 If the WPI is less than 30%, then it can still be assessed as serious, if it:

  1. resulted in a serious long-term impairment or loss of body function;
  2. constitutes a permanent serious disfigurement;
  3. resulted in a severe long-term mental or severe long-term behavioural disorder;
  4. resulted in the loss of a foetus;

The medical practitioner must complete a RAF 4 “serious injury assessment report”

Serious injuries are classified as diffuse brain injury, organic brain syndrome, loss of one or both eyes, loss of hearing, amputation of upper limb from wrist level, brachial plexus injury with moderate severe sensory and motor defects, amputation of a lower limb starting at the knee, paraplegia, quadriplegia and tetraplegia.