New Guidelines for Road Accident fund (Part 1)

Road accident fund


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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