Archive for the Road Accident Fund Category

New Guidelines for Road accident Fund (Part 2)

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Part 2 The court found the abolition was justifiable and reasonable because it formed part of the scheme to set up a compensation regime directed at ensuring the Fund is sustainable, inclusive and capable of meeting its constitutional obligations towards victims of automobile accidents.   Limit on Settlement   The applicants contended the limit on damages for reduction of income or of dependants’ support infringed the right to property under section 25 (1) of the constitution. They asserted that the Amendment Act deprives victims of home in the shape of reduced damages for loss of earning ability or support. To be able to succeed they would need to demonstrate since the constitution just protects arbitrary deprivation of property, that the scheme was irrational. The court found that the scheme wasn’t irrational. It followed that the offending sections didn’t represent an arbitrary deprivation of property.   Regulation 5(1) as well as the Recommended Tariff In regulation 5 (1) the Minister has prescribed the tariff for statements to be paid by the fund for hospital and treatment is that medical other prescribed in the Uniform Patient Fee Schedule (UPFS) tariff. The applicants contended this was irrational, unreasonable and deprived innocent victims of a successful treatment in violation of section 12 of the Constitution.   The evidence before the court was apparent that the ordinance would make it impossible for road accident victims to get treatment in a private health care center. The tariff was discovered to be “completely insufficient and unsuited for paying damages for clinical treatment of road accident victims in the private health care sector”.   The evidence demonstrated that the execution of the UPFS tariff would conserve the fund no more than 6% of its total compensation statement. This is viewed as a comparatively meager economy against other persuasive factors, which suggested the tariff was unsuitable.   The court struck down Regulation 5(1) with retrospective effect. The Fund will consequently be liable for the price of health care needs for injury victims from the beginning of the act in August   2008. What would be the outcomes?   Road Accident FundThe ruling brings an end to the uncertainty caused by the constitutional challenge. The Amendment Act introduced farreaching and significant developments to the settlement scheme for road accident victims.   Persons whose earning capacity is compromised as a consequence of an injury might just regain the amount from the Fund which now stands at R180 000. The difference between what is recovered from the Fund, and what the person formerly earned might not be recovered from the wrongdoer.   The loss of a breadwinner will end in a claim for the amount no matter whether the breadwinner made considerably more than the amount. An instance of the issues which could appear would be where a deceased breadwinner earned R5000000 a year and has obligations commensurate with these gains. The family would need to readjust to reside in the amount.   No claims exist either against the Fund or against

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New Guidelines for Road Accident fund (Part 1)

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PART 1 The Constitutional Court has formally ruled on changes to the constitution regarding the damages and indebtedness on the part of  The RAF in 2010, and therefore, the new guidelines have been applied. The following report is a reason of the modifications made and how they’re likely to affect liability, claims and processes for particular parties.   The Abolition of Common Law Claims   Prior to the addition of the Amendment Act, a casualty of a road accident was entitled to claim from the Fund. In case that no claim lay against the fund, or its liability was restricted, the casualty kept a residual common law claim against the wrongdoer. Section 21 of the Amendment Act abolishes this issue to two exceptions. The foremost is if the Fund is not able to pay any damages. The second exception is in respect of claims for loss or damage caused by emotional shock sustained as a result of a claimant having observed, or being advised of the physical harm or death of another individual as a consequence of a motor accident.   The Court analyzed the reasoning supporting the abolition of the right of action from the driver personally. The Minister of Transport furnished an explanation to the effect that a system for the damages of road accident victims should be incorporated into a comprehensive social security system that provides disability, life and health insurance cover for all diseases and accidents. The government’s aim will be to replace the present system having a group of small nofault benefits, that’ll form a part of the broader social security net.   The tribunal approved that the retention of common law claims would have no impact on the financial viability of the Fund but remarked that it might not “sit well with a social security system that aims to provide fair settlement for all individuals regardless of the financial ability”. The common law losses would simply be recovered from those drivers or owners who’d be capable of paying damages or could actually manage the necessary insurance. In addition the right to sue would only be exercised by the ones that could manage to pay legal fees.   In the situation the Court found the abolition of common law claims is rationally related to the legitimate government function to make the settlement scheme fair.   Road Accident Fund  Court also analyzed the contention that the abolishment of common law rights is an infringement of the road accident casualty’s constitutional right to security of the individual. It accepted that when a man is injured or killed as a consequence of the negligent driving of an automobile, the victim’s right to personal security is badly compromised. In the situation the state has duties to road accident victims as well as the abolishment of the common law claim decreased the victim’s ability to safeguard and enforce the right to the security of individual. This could leave the abolition unconstitutional unless it’s justifiable. Continue to Part 2

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Constitutional challenge to the Act

Road accident fund

Road Accident Fund Amendments: constitutional challenge to the Act The widely anticipated constitutional challenge to the The RAF Amendment Act, 2005 (“the Amendment Act”) was started recently in the Pretoria High Court. The Law Society of South Africa, The South African Association of Personal Injury Attorneys, The Quad Para Association of South Africa and also the National Council for Persons with Physical Disabilities have applied for assorted parts of the Amendment Act to be declared invalid since they’re inconsistent with the Constitution. The applicants also seek to put aside a quantity of the brand-new Regulations since they’re either inconsistent with the Constitution or perhaps not authorised by the RAF Act.  The material modifications to the Act which are now being challenged are: The abolition of the claimant’s common law right to claim any damages not recoverable from the RAF from the negligent owner or driver of the vehicle that caused the injury, or the company of aforementioned negligent driver (Section 21 of the RAF Act). The basis of the challenge is the fact that this constitutes a breach of the right of road accident victims to security of the individual, the right to an appropriate and powerful remedy for those breaches of that particular right and also the duties of the State to safeguard, promote and fulfil those rights; the capping of loss of profit or loss of support claims (Section 17(4)(c)) that is also alleged to become a breach of the right to security of the individual. The Regulations being challenged are:   The best of road accident victims who’ve suffered serious injuries to claim damages for compensatory damages (Regulations 3(1)(b)(ii) and (iii)); The meaning within the ordinances of “serious harm” on the foundation the Minister of Transport is not authorised by the Act to define a significant harm (Regulation 3(1)(b)) the recommended process of evaluation of serious injuries which, with all the other regulations concerning healthcare, are alleged to become a violation of the right to healthcare when it comes to Section 27 of the Constitution (Regulation 3(1)(b)); The reasonableness of the tariff for other health care bills and crisis (Regulation 5 (2)) read together with the tariff put down in Notice R. 771 released by Gazette on 21 July 2008);; the establishment of an administrative appeal tribunal whose judgements are final and binding in the foundation it deprives victims of accessibility to court in contravention of Section 34 of the Constitution (Regulations 3(4) to 3(13) inclusive).   The application form, to the extent it’s successful, is going to be referred to the Constitutional Court for confirmation.   Whilst it appears certain the application will probably be opposed by the Minister, the applicants make some telling points. For example, they allege the victims of road accidents in South Africa are, as a consequence of the changes to the RAF Act, in a distinctively position, since they’re deprived of the damages which victims of crime, medi-cal or hospital negligence, athletic injury along with other accidents might have from the

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Take down of RAF Fraudsters

Road accident fund

The crack down in the alleged defrauding of, and corruption in,The Road Accident Fund (RAF) this week  led to the arrest of 17 people. The Gauteng police said last week their members, working in conjunction with the directorate of public prosecutions, began arresting suspects. By Sunday, police had arrested 17 alleged fraudsters acting as frontmen for emergency services and physicians, attorneys, police manager Henriette Bester said. This follows on remarks made by Transport Minister Dullah Omar, who was quoted as saying that all indicators pointed towards the truth that a staggering 25 per cent of annual fund claims – valued at R300 million – were deceptive. A whole chain of people were purportedly involved in claiming for fictional accidents or in adding additional, uninjured folks, onto actual injury claims. The majority of the socalled injury victims were jobless, illiterate people who were duped into supporting claim forms within the belief they were signing job applications, reported on Monday. RAF spokesman Themba Mhambi said more than 10000 fraud cases were being investigated in Durban only. Gauteng’s total numbered about 600, he added. Bester said the suspects had openly encouraged the manufacture of claims by recruiting members of the people – who were not injury victims – to lodge claims. Of the 17 suspects arrested, 15 had appeared in the Pretoria magistrate’s court by Sunday and nine had previously been released on bail. 2 more individuals were scheduled to appear in court on Monday, she said. The RAF, a government fund designed to assist individuals injured in accidents, is financed by other road users and motorists through a fuel levy. In August this past year the fund’s management instituted an audit to investigate allegations of fraud, corruption, insufficient financial control systems and poor corporate governance. The fund had suffered from both internal and external corruption, and fingers were pointed at fund management and at lawyers managing injury victims’ claims. In 2000, the Department of Transport reported that of 143 cases investigated, 56 per cent of what was due to injury victims was kept by unscrupulous attorneys. That same year, the fund fell deeper into debt once an operating loss of R771 million brought its total shortfall to R9,2 billion – 9,2 per cent greater than in 1999.

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Third party Claim (Part 3)

Road accident fund

The RAF doesn’t pay damages for ‘secondary emotional shock’, for example, if you weren’t active in the accident but you observed it. You do yet still have a common law to assert from the ‘wrongdoer’ in cases such as this.   Passengers   Passengers injured in an automobile or motorcycle accident can claim for general and particular damages from the RAF and there isn’t any limit (as within the past) as to the they could claim.   How much time does this take to process a claim?   After 120 days have passed since the claim was lodged with the Road Accident Fund A summons can be issued by an attorney. This provides the claim to the individual handling 120 days to finalise all of the investigations.   The individual handling the claim will generally request your lawyer for an extension of time that will probably be utilized to see whether the claim could be settled without needing to attend court, when a summons is serve on the RAF. Enough time it takes to finalise a claim frequently is dependent upon how complicated the claim is and whether most of the essential info is accessible.   They’ll make an offer to the lawyer, in the event the RAF determines to pay out a claim. The lawyer has to get your own approval before agreeing to the sum offered. The issue will probably be negotiated in the event the offer isn’t accepted or go to court. A release form will probably be used which says just how much is usually to be paid, in the event the offer is accepted. You’ll need to sign the release form and it make the payment just once the RAF has received this will.   What’s an Endeavor?   The RAF may possibly issue you with an Endeavor which says it’ll compensate you for future medi-cal and related expenses. These could be paid directly to you or even to the medi-cal service provider who’s treating you.

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Third party claims (Part 2)

Road accident fund

So what can you assert for?   Claims for physical injuries   If you’re injured within an accident, it is possible to claim for:   Your medi-cal expenses: money you taken care of hospitals and physicians to deal with you Damages for pain, putting up with and disfigurement (if body is scarred by the injury) your) loss of earnings, when you haven’t been able to really work after the injury. Claims for lack of support   Then the dependants of such individual has the capacity to claim for lack of support, in the event the breadwinner within the family perishes within an accident brought on by somebody else.   A ‘dependant’ is somebody who is dependent upon another person for food, clothing, shelter, etcetera. In the event the bread-winner had a legal duty to aid you you’ll only succeed with an alternative party claim as a dependent. For example, the widow of somebody who dies could claim damages for herself and the minor children of the dead person. However, you’d not be thought of as a dependant of your own buddy who makes it possible to with cash each month.   Who would you claim from?   The claim is from The RAF. The Fund has offices in Randburg, Pretoria, Durban and Cape Town. A third party claim is not against the negligent driver or the holder of the automobile. The RAF ‘steps in to the shoes’ of the driver/owner and pays for the kids.   Having legal counsel   The RAF employes informaiton officers at all division offices of the RAC to help folks by making use of their claims without any charge. However, if you want to utilize an attorney they’ll charge because of their services. They may ask you for a deposit to cover the initial costs, in the event the lawyer believes the claim will succeed. In case the claim is successful, the attorney is paid by you with a few of your claim money. In case your claim is successful the RAF will even contribute towards the legal costs. She or he should counsel you to not proceed with all the claim, in the event the lawyer believes the claim won’t triumph. Then you definitely just need to cover the very first consultation with all the lawyer.   At the very first consultation by means of your lawyer you need to check into the legal costs involved. Do not hesitate before the end of the lawsuit or resolution to talk to your lawyer about how much it’ll cost you and how you’re likely to pay. You need to approach the Legal Aid Board to submit an application for legal aid, if you believe you can’t pay the legal costs involved. Your lawyer can let you employ. (See Applying for legal aid) You’re able to also apply to the Law Society in your and society will advocate law the that a lawyer manage the issue on a pro bono basis (in other words, for free  

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Third-party claims

Road accident fund

Exactly what is a third party claim?   A third party claim is just a claim by someone, or the dependants of someone, who received a physical harm or who perished because of the motor vehicle accident resulting from the negligent driving of the motor vehicle. Third party claims are made to The RAF, which in turn automatically steps in the shoes of the negligent motorist who caused the injury and pays the wounded man for just about any injuries suffered.   Who are able to claim damages from The RAF? It’s possible for you to claim damages from The RAF if:   You’re injured because of the motor vehicle accident resulting from the negligent driving of the motor vehicle driven by another person; You’re the dependant of the person (the bread-winner) who had been injured or expired in a motor vehicle accident resulting from the negligent driving of the motor vehicle by another person.’ You’re a close relative of the dead person in respect of funeral expenses; You are under 21 years but you have to possess the support of the parent or legal guardian. It’s possible for you to maintain if you were involved within an accident for a driver or perhaps a passenger in a automobile or motor cycle, or in case you were a pedestrian.   If you didn’t cause the injury nevertheless, you’ll just get cash from the Fund. If you and the other driver were equally at fault for the injury, you’ll simply be paid 1 / 2 of your own damages. In case that both drivers were negligent then a Fund will simply take in to consideration the Apportionment of Damages Act (No 34 of 1956). This Act enables the Fund to split (also called apportion) the damages so that it’s a just and fair sum that’s given to the injured party.   You won’t have the right to claim from the Fund, in the event the injury was caused entirely by your own neglect. This consists of accidents where you were the sole individual and vehicle involved, for instance in case you drove into a post.   Neglect   It’s mandatory that you demonstrate that someone else was driving negligently before the time that your claim will probably be paid. A driver will probably be negligent if you’re able to demonstrate on a ‘balance of probabilities’ that she or he didn’t drive the automobile in an easy method in which a practical driver might have driven in the exact same conditions.   However, if the individual who’s claiming damages from the RAF was partially at fault for the injury, then he/she would even be thought to be negligent within the conditions. Within this case the Apportionment of Damages Act says that when you suffered damages caused partly by your own personal fault and partly by the fault of some other individual, the court will decrease the number of damages in its award equal to the percent it believes you contributed to the

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High Noon for the Road Accident Fund (Part 2)

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High Noon for the Road Accident Fund (Part 2)   “The other alternative is always to turn this fund around to match the requirements.”   Cooper said it had been a “very imperfect system” and it needed to be altered into a societal benefit system. “If we can turn across the fund, there will be no demand for Satchwell’s recommendations, where no one understands the actual price of the system indicated.”   A Financial Services Board report this week, however, said the tips of the 2002 Satchwell commission of inquiry “must certainly be discussed at ministerial level and bold conclusions must certainly be taken” to execute a fresh road mishap benefit scheme “as soon as possible”.   Within the routine study to the fund tabled in parliament, Jeff van Rooyen, the executive officer and registrar of short-term insurance at the Financial Services Board, said the RAF’s collected deficit stood at R23million by the end of March last year compared with R16million in the preceding year. It was stated technically insolvent last year.   “With no sign that the deteriorating tendency will subside… the truth is the RAF is certainly on the brink of complete bankruptcy and fiscal recovery seems hopeless,” Van Rooyen said.   Claims paid to individuals injured in road accidents rose 23 percent to R3,1-billion   last year, while provision for outstanding claims rose 32 percent to R23,8-billion. Interim measures to stabilise the fund promptly contain a weekly, rather than daily, payout, a fresh verification system, “a very serious highlevel audit and extensive forensic audit by external agencies”, freezing of contracts, a moratorium on offerings to sufferers and “stakeholder engagement”.   “We expect certain things will incite lots of controversy, therefore there’s a demand for public help to obviate pricey remedies,” Cooper described.   A bill proposing a dramatically decreased benefit scheme was thrown out of parliament this past year due to the effect it might have on inferior and badly wounded accident victims.   Following the Cape Town meeting, Dean Lester, the representative for the South African Association of Personal Injury Lawyers, welcomed efforts to improve relations with service providers. “Most large payments end in summonses against the RAF and are settled in the court measures,” he said, “because they’re constantly trying to underpay. To prevent this means literally retraining RAF staff to solve issues out of court.”   He warned that not an excessive amount of emphasis must be given to fraud while incompetence and mismanagement of systems and RAF staff were disregarded.

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RAF Amendment Act changes could hold serious implications for transporters

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Road Accident Fund Amendment Act Changes. The (RAF) Amendment Act, which took effect in August 2008, has created various challenges transportation for as well as confusion users most, and operators notably on the problem of thirdparty indebtedness. With no clarity or legal precedentsetting event since the Act took effect, transporters are lulled into a false sense of security without realising the serious implications the Act holds. Aon South Africa has warned an evaluation of the meanings of the RAF Amendment Act demonstrates the changes have farreaching meanings for transportation operators and South African road users. It is crucial that transportation providers carefully evaluate their threat within the aftermath of these changes. “The key changes within the RAF are that it now makes it the duty of every person to buy their very own proper additional cover in respect of revenue protection, medical costs and handicap, raising the question whether passenger liability insurance for the transportation provider is currently crucial. Some companies have even considered cancelling their cover within this regard to streamline costs. The decrease in premium would be insignificant,” describes Andre du Sart of danger advisors and insurance brokerage company Aon South Africa. Du Sart advocates that cover is kept for these reasons: The transporter could still be sued, incurring significant legal defence expenses. The transporter might be liable for damages for secondary emotional shock. Secondary emotional shock of somebody who’s not the third party, but has observed the injury, is not recognised under the changes. This might be somebody who sees the injury occur or somebody who learns about it after the event. This might have a deep effect on the lives of relatives, other copassengers, kids and other parties, or so the possibility of secondary emotional shock claims exists. The transporter will nonetheless be responsible in respect of property damage, I.e. clothes, personal effects, etc. The fund might be not able to pay. You may incur obligations beyond SA’s edges, in which case the Fund does not have any obligation. Thirdparty RAF claims are restricted to a prescribed amount of specific damages (medical costs of loss and gains) and to settlement only for serious injuries, under what used to be known as general damages. The RAF is creating a listing of injuries that’ll not be regarded as serious, that will probably be promulgated once the listing is finalised. Medical expenses under the RAF are restricted to a tariff for emergency treatment along with the reasonable price of treatment and hospitals (roadside transportation). ambulance assistance and. Passenger Liability cover pays future medical costs as they appear and they’re paid in full, I.e. are not susceptible to a tariff. Loss of income claims under the RAF is currently capped at R204 904 per annum, and this also applies for loss of support. “Superficially, it might seem the demand for cover is decreased, but the truth is the transportation operator could still be sued directly, entailing legal expenses and can still incur obligations where the RAF will play no buffer

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What is happening with the Road Accident Fund Constitutional Appeal

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Road Accident fund claims Seven road accident victims have joined the Law Society of South Africa in an application challenging the constitutionality and legality of a number of provisions of the Road Accident Fund Amendment Act and Regulations. As co-applicants Permission was granted by the Pretoria High Court yesterday for the seven to be accepted. Attorney Koenie Rantgen said as each of them had a case the seven had been picked as co-applicants. The main use is to be heard the following year. The seven were badly injured in road mishaps and they need to show to the court that they are prejudiced by the amendments to the Road Accident Fund (RAF) laws. They said the amendments refuse them specific rights to settlement that they would have received had They been wounded before August 1 last year when the changes in the law came into effect. A housewife who cannot properly take care of her child, two young males who are now quadriplegics, and also a young woman employed as a credit controller who might lose her eye due to facial injuries. They said that due to the negligence of their injuries were caused by the drivers who, their families are suffering physically, financially and emotionally. In their application to join the law society’s action, they raised the elements in which they considered the amendment act and new regulations would prove prejudicial to their personal circumstances. Six of the applicants don’t have medical aid and must go to provincial hospitals. Before August 1 last year, they might have been able to receive private health care. They said their jobs as providers, caregivers and breadwinners were being influenced by their injuries and that under the amendment act, they would receive significantly less compensation from the RAF than folks who had received the same injuries before the amendment came into effect. The amendment act also prevents them from pursuing a common-law claim against the insured and negligent driver who injured them. Before, claims that could not brought against the RAF could possibly be filed against the driver. The new legislation says victims might not maintain for general damages if their injuries aren’t regarded as ”serious” under the new guidelines. The guidelines also don’t take into consideration future complications or impairment

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