How to Claim from the Road Accident Fund

Currently, according to the RAF, if you are found to be partly negligent, the Fund will reduce your claims by the percentage apportioned to negligence. For example, if they find you were 20% negligent, then only 80% of the assessed costs will be paid out, the rest will need to be paid by you.

The biggest problem with any claims made to the RAF relate to proving that you were not negligent. Your biggest concern is therefore to prove that you were not to blame in any way for the accident. If you are 100% not to blame, then your RAF claim is almost done and dusted. All you need to do is submit your forms, evidence and your case will be considered.

It sounds so easy doesn’t it, I am sorry to say it is more complicated than proving you were not at fault. The real strength of your case and payout is based on the evidence you submit so that the RAF can assess what renumeration to pay you out.

 

How easy is it really to submit a claim to the RAF?

 

Despite what the RAF says, the process is not as simple as they would like you to think. The RAF’s 3 step process of gather, complete and submit sounds easy enough, however you must take the process seriously and be as thorough as you can because your claim is weighed up by the supporting evidence you provide. And this evidence is left up to you to prepare, meaning you may not know which evidence will help or hinder your case.

While the RAF does pay millions out each month, many claims are rejected due to lack of evidence or contradictory evidence provided when submitting a claim. And while the RAF encourages people to make claims directly without a lawyer, we suggest you seriously weigh up the pros and cons of doing it on your own versus working with an attorney.

 

Time limits on RAF claims

Accidents

You must submit a claim within three years of the motor vehicle accident if you know who was responsible.

You must submit a claim within two years of the accident if you do not know who the responsible driver was, such as a hit-and-run accident.

 

Death of an accident victim

If you are the dependent of the deceased and you are 18 years old, claims must be submitted to the RAF within three years of the date of the accident or the date of death.

A minor cannot claim compensation for loss of support, until they are 18 years old; at which time they have three years to submit a claim.

In all loss of support claims arising from hit-and-run accidents, claims must be filed within two years of the date of the accident.

 

What can you claim for?

 

If you were injured, you can claim compensation for the following:

• Past and future medical expenses
• Past and future loss of earnings or support which is limited to a maximum amount of R160 000 adjusted quarterly for inflation since 2008, regardless of the actual loss incurred.
• General damages for pain, suffering and disfigurement in the case of bodily injury provided the victim suffered a serious injury only.

Note that the General damages category will change depending on when the 2019 draft Road Accident Benefit Scheme Bill comes into effect.

 

In the case of a death:

 

• A child, spouse or other person dependent on the income of a person killed in an accident may claim from the RAF for loss of support
• A close relative of the deceased who paid for the deceased’s funeral may claim for funeral expenses limited to the cost of creation or burial only

 

What you cannot claim for?

 

You cannot claim for damages to your motor vehicle.

A person may not sue the negligent driver for the portion of damages that the RAF does not compensate.

 

Is hiring an attorney necessary?

 

You do not have to use an attorney to make a claim to the RAF, the Fund employs Information officers at all branch offices of the Road Accident Fund to assist claimants free of charge. However, it is recommended to contact an attorney if your case is complicated, especially until the new RABS is passed into law.

If you do not have access to funds to get the advice of an attorney, there are various free legal aid services you could approach, but you will have to show that your income is below a certain level.

Free legal aid organisations include:

• Legal-Aid South Africa, an organisation that gets its mandate from the South African constitution
• Legal aid Non-Governmental Agencies (NGO’s) such as Pro Bono
• Pro bono (free) legal services by attorneys; administered by the Legal Practice Council
• Law clinics based at Universities provide free legal services such as;
  • Wits Law Clinic
  • University of Pretoria
  • University of Stellenbosch
  • North West University
  • University of Fort Hare
  • University of Free State
  • University of Venda
  • University of Cape Town
  • Rhodes University

 

We recommend that you carefully weigh up the cost of getting legal advice vs having your claim rejected, prior to lodging the claim with the RAF. Especially if your case is more complicated, getting legal advice may have a greater chance of success.

If your claim is rejected, you can challenge the decision by suing the RAF: many lawyers will consider instituting a lawsuit on your behalf on a contingency basis, what this means is you only pay them if you get a payout. You would need to agree with your lawyer whether an additional fee becomes payable or the % of money that is paid out in the lawsuit.

How does the RAF determine the value of a payout?

 

When determining the value of the amount to be paid to an accident victim, the RAF looks at a number of factors such as:

• If you were involved as a driver, to what extent were you responsible for causing the road accident
• The nature and severity of your injuries, and their likely consequences in the short and long term, as determined by medical experts
• Current and likely future medical costs associated with your injuries
• The extent of loss of income or support as a direct result of injuries sustained in a road accident.

Note that the RAF pays road accident victims general damages for pain and suffering only in cases of serious injuries.

Evidence you will need to provide in your claim

 

Medical expenses

 

The RAF says you can claim for all your proven past and future medical expenses and that these medical expenses must be directly related to the injuries sustained in the accident. They reiterate that only “proven medical expenses will be compensated.” This means you need to prove that:

• Your injuries were caused directly by the accident
• The expenses you incurred were due to these injuries
• Your injuries require future treatment

Below is a list of typical medical expenses related to accidents:

 

• Accident rescue services – any ambulance or other paramedic services
• Medical services (including doctors’ consultations, pathology tests, medication, etc.)
• Hospital and nursing services (including day clinics)
• Disability services (including wheelchairs, crutches, oxygen tanks, brail services, hearing devices, etc.)
• Rehabilitation services (including step-down facilities, physiotherapy, etc.)
• Transport costs for visits necessary to aid your rehabilitation
• Adaptations to the house, motor vehicle and the like to accommodate your injuries or disability

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How do you calculate future medical expenses?

 

When compiling a breakdown of medical expenses, the opinion of your medical professional/s is critical, because the RAF will consider all medical reports and recommendations from a professional such as a Medical Specialist, Surgeon or Physical therapist.

It is also important to note that once the case is settled by the RAF, you will receive an agreed lump sum (or monthly payout when the new bill comes into effect). This means you will no longer be able to claim any further funds. That is why calculating future medical expenses upfront is critically important.

When reviewing calculations for determining future expenses, we realise it is not an easy exercise. Simplifying this process by giving you one calculation would do you a gross injustice and you should seek the assistance of a legal advisor to ensure the calculations you use are 100% valid.

Past and future loss of earnings

 

As of 31 October 2018, the maximum amount that you can claim from the RAF for loss of income or earnings is capped at R276,928 per year (payable in a lump sum). Also, this value is adjusted on a quarterly basis for inflation.

 

Because the RAF needs to make an informed decision about the compensation you are due, your evidence at this stage is very important because the onus is on you to provide enough evidence of your income.

 

If you are employed and have a payslip, calculating loss of earnings is straight forward and would be calculated using evidence of at least three month’s payslips, prior to your accident.

 

Make sure you provide detailed evidence of your past earnings including:

• Employment history such as your employee contract
• Proof of income such as payslips for salaried employees
• Proof of overtime missed, here you need to prove that overtime would be available to you and that you had a track record of doing overtime in the past

Past loss of earnings calculation

 

Past: average monthly take home salary multiplied by the period of absence.

Future: average monthly take home salary multiplied by the period of absence plus inflation adjustment.

How to demonstrate loss of earnings if you are self-employed

 

If you do not have formal employment the process is a bit more complicated. If you have a bookkeeper or accountant, you can provide detailed profit and loss accounts for at least 3 years prior to your accident.

 

Startup companies that do not have sufficient history of earnings or informal businesses who operate without bank accounts or verifiable tax and business records, makes it difficult to provide enough evidence in a claim against the RAF for loss of earnings.

 

Your claim will also be affected by the way your business is structured: for example if you are in business partnership, the loss is linked to your share of the profits, not the business profits.

 

The upshot is this, if your claim is to succeed you must clearly demonstrate that the profitability of your business was, or is, negatively affected due to the injury sustained in the road accident.

The following documents will assist your claim:

 

• Personal tax returns
• Comprehensive financial statements prepared by a professional bookkeeper or accountant
• Copies of orders
• Invoices and receipts
• Bank statements
• Details of past and future contracts.

Claims which resulted in death for past and future loss of support

 

If you are the dependent claiming loss of support, the onus is on you to substantiate your claim with detailed records. You are entitled to claim for loss of support if the person killed in a road accident was the main income provider in your household, but only if it resulted from someone else’s negligence. If you are claiming after the RABS comes into effect, you will be able to claim regardless of who was at fault.

 

Note that claims are limited to a maximum amount of R160 000 adjusted quarterly for inflation. You are also entitled to claim for funeral costs.

Documents you will need to provide in your claim

 

• Certified copy of the deceased’s identity document
• Death certificate
• If the person died immediately, no medical report is required. If death happened after the accident date, you will need to submit the medical report from the treating medical practitioner
• Copy of post-mortem report if available
• Marriage certificate, if you are the spouse of the deceased
• An unabridged birth certificate, if you are the child of the deceased
• Financial statements, salary slips or income tax returns providing proof of the deceased’s income
• Proof of funeral costs

General damages

 

In law the intention of a general damages claim is to place the victim in the same position that he or she would have been had the accident not happened. Now you can imagine trying to put evidence together on your own for this one.

 

We set out to find out what and how you would provide evidence to support a general damages claim with the RAF.

 

Firstly, it is important to understand that general damages is only considered by the RAF if a serious injury has taken place directly as a result of a road accident and where the person involved was not 100% at fault.

So, what is a serious injury?

 

A serious injury is defined by the RAF as 30% bodily impairment, serious long-term impairment, permanent disfigurement or long-term medical disorder.

 

General damages is not a simple process because it is difficult to put a monetary value on pain, suffering, loss of quality of life and disability. In many ways determining this type of payout can be very subjective. That is why you need to provide as much evidence to support the “value” of your pain and suffering when submitting a general damages claim with the RAF. Remember that someone how say relies on their physical condition to earn their income, such as a professional sportsman or sportswoman may be given a larger payout than someone who works in a less physically demanding job such as an administrator.

 

Even our courts have difficulty quantifying the exact value to pay out for general damages with much legal angst going on each time a general damages case is heard.  Please use the help of free legal clinics for assistance when quantifying your claim, and consider these factors below;

• Previous claims paid out by the RAF for similar injuries – do research on the Internet and find any cases relating to similar claims and the monetary value that was awarded.
• Assessment of age, sex, status, culture, lifestyle – factors such as whether you are the breadwinner or were on track for a successful career or are young, are all considered. Where possible support your claim with how your life was prior to the accident. In today’s social media age photographs often demonstrate life, use these to show your life prior to the accident. Look for any awards given out by your employer, a promotion letter or two, or evidence that your entrepreneurial business had taken off. Even though this is subjective, rather provide as much detail as possible than too little.
• The nature of the injury suffered – the RAF will turn to similar cases and so you must provide as much detail and supportive evidence as stated under the medical section of this article.
• Factors considered with the degree of pain suffered, and pain expected to suffer, include evidence of;
  • Future surgeries required
  • Devastating scarring which has impacted life considerably
  • If the person is unable to fend for him/herself
  • If there is decreased life expectancy

 

Note: Note that the General damages category will change depending on when the 2019 draft Road Accident Benefit Scheme Bill comes into effect.

You have all the supporting evidence what next?

 

As mentioned, Step 1 is to gather evidence and submit the evidence together with your claim.

Step 2 is to complete the forms accurately

 

You must complete all the necessary official forms from the RAF and make sure they are legible.

 

First download the Claim Form the RAF website then:

• Print the form
• Take your time to complete it
• Check the form to make sure everything is accurate
• Sign it

So, what forms do you fill in?

 

RAF 1 – Claim for compensation and Medical Report (to be used for claims arising after 31 July 2008)

 

Fill in RAF 1 form for which provides basic information on your claim, the motor vehicles involved, details of parties involved in the accident, the date and place of the accident and the amounts claimed. It also contains a medical report to be filled in by the treating doctor. The evidence for medical expenses, loss of income or loss of support (past and future) should be presented as an affidavit and submitted with the form, as well as all medical records, invoices and statements.

 

RAF 3 – Accident Report Form (to be used for claims arising after 31 July 2008)

 

Besides the RAF 1 form, if you were a driver of the vehicle involved in the accident you must give details of the accident to the RAF, this form should be filled out within 14 days of the accident. You also need to ensure information of any witnesses to the accident is attached to this form. Where possible get an affidavit from any witnesses.

 

RAF 4 – Serious Injury Assessment Report

 

Besides the RAF 1 form, if you are claiming general damages this form must be completed by a medical practitioner.  The evidence for general damages should be presented as an affidavit and submitted with the form, as well as any reports or corroborating evidence.

 

Notification of Dispute

 

This form needs to be filled in if your claim was. Alternatively, you may wish to use an attorney who can do this on your behalf.

 

Lodgement Funeral Checklist

 

This form together with RAF 1 needs to be completed if you are claiming funeral expenses from the RAF.

Step 3: Submit your claim to the RAF

 

Submit all forms and documents together at your nearest RAF regional office, either by hand or registered post. We advise that you make copies of all paperwork in the event of your paperwork going missing.

 

Note: faxed documents require the originals to be furnished and email is not accepted.

What next?

 

Once your claim is processed, the RAF registers it on its claim system and commences with its investigations.

 

First, the RAF determines whether the claim is valid (i.e. was there a road accident, does it comply with statutory provisions, was it submitted in time, etc.) The RAF must obtain documentation and information from the insured driver, witnesses and the SAP confirming the description of the accident as given by yourself. Sometimes the RAF has to appoint an assessor to trace the insured driver or any witnesses.

 

Secondly, it looks at the merits of the case (i.e. the degree of fault, blame or negligence to be ascribed to the drivers of the vehicles and the claimant respectively).

 

Thirdly, once the merits have been confirmed, the RAF makes a decision to pay the claim or reject it.

 

Finally, the RAF determines the amount of damages or losses suffered to be paid out.

 

If the RAF decides to pay out a claim, it will do an investigation including:

• Verifying amounts that were provided by you from hospitals, doctors, pharmacies etc.
• Experts such as actuaries, medical specialists etc. can be appointed to assist in making valid financial decisions.

 

It is often in this stage where missing information hinders the process and that is why gathering and compiling the claim forms is a key part of your claim process.

 

If all information is available the claims handler will make an offer to the you or your attorney. After this process there can be a protracted negotiation where further experts can be appointed to assist, however if you can’t reach agreement with the RAF it may be necessary to go to court.

 

If you accept the offer from the RAF a form is issued which details the agreed amounts for you to sign thereafter payment will be made.

Speak to one of dedicated road accident fund attorneys.