The Undertaking does not cover the costs of any compensation to which you would be entitled in terms of the provisions of the Workmen's Compensation legislation, the Defence Force Act, 1957, (Act No 44 of 1957), or another Act of Parliament governing the said Force.
You must first submit all the specified accounts in respect of the costs which you have incurred to the office which initially handled your claim for consideration of their liability in terms of the provisions of the relevant legislation. If that office repudiates liability for any of the claims lodged, you may then proceed to lodge the repudiated claims with the Fund together with the letter of repudiation.
What are the steps taken from the time the attorney lodges a claim until its finalisation?
The RAF must obtain documentation and information from the insured driver, witnesses and the SAP confirming the description of the accident as given by the claimant. It can happen that the RAF must appoint an assessor in order to trace the insured driver or any witnesses.
Once the merits have been confirmed the RAF must make a decision whether it can pay the claim or whether the claim must be repudiated.
If the RAF decides to pay out a claim, it must conduct a quantum investigation to ascertain the correct amounts to be paid. This involves verifying amounts claimed as for treatment given by hospitals, doctors etc. At this stage experts such as actuaries, medical specialists etc. can be appointed to assist in making valid quantum decisions.
If all information is available the claims handler will make an offer to the claimant/attorney. This offer must be verified and agreed upon by another person with the correct mandate before it can be sent out. If the offer is not accepted negotiation can take place, which can lead to further experts being appointed. It can also lead to a court having to make a decision in the event of the parties not being able to reach agreement.
If the offer is accepted a discharge form will be issued which contains the amounts to which the parties agreed. Once the RAF has received the signed discharge form, payment can be made.
What is the attorney entitled to once the claim is finalised, given the fact that nothing is asked (charged) from the victim during the process of making a claim?
The RAF does not have any say as far as the amount payable by the claimant to the attorney is concerned. Some attorneys do charge their clients a deposit to cover expenses and some also require their clients to pay upfront for expenses as and when they occur.
The RAF makes a cost contribution to the attorney as far the attorney's dealings with the RAF isconcerned. The attorney can also serve a bill of cost on the RAF, which will lead to a bill being settled on party-party basis. It must be noted that this only covers the attorney's dealings with the RAF.
A claimant should discuss beforehand, with his attorney, how he would be billed. Some attorneys take a percentage of certain amounts paid out by the RAF, but once again, the RAF has no control over this.
Does the actual claimant (victim) have the right to know how much in total was paid to the attorney and to verify whether the "cut" that the attorney took is genuinely what is due to them?
The claimant does indeed have the right to know what amounts have been paid out. The claimant can ask to be furnished with a copy of the discharge form, which contains the details of the amounts agreed upon.
Implications of Amendment Act
| 1. What are the amendments all about and how do they affect me as a claimant? |
1.The amendment of the Road Accident Fund Act 56 of 1996 was necessary to ensure the future sustainability of the Fund. The Fund’s income, primarily derived from a fuel levy, does not keep pace with the value of claims lodged with the Fund. For this reason the Fund has over the years accumulated a deficit of over 20 billion Rand
2. The amendments introduce a number of limitations on the Fund’s liability to pay for certain types of compensation. It is expected that these limitations will improve the Fund’s financial position ensure its ability to pay claims in the future. |
| 2.What are the important changes introduced by the amendments regarding the liability of the Fund? |
1.Under the current act the claims of certain categories of passengers are limited to a maximum of R 25 000.00. The amendments have done away with this limitation and these passengers will in future be treated on an equal footing with all other types of claimant
a. The lifting of this cap has the effect that certain categories of passengers will enjoy better cover than what is currently the case
b. Clearly this amendment will place additional pressure on the Fund’s financial position but the amendment was necessary to ensure equal access by the public to the benefits provided by the Fund.
2. Clearly this amendment will place additional pressure on the Fund’s financial position but the amendment was necessary to ensure equal access by the public to the benifits provided by the Fund.The current act excludes claims by passengers, in a single motor vehicle accident, where the claimant is in law responsible for the maintenance of the driver, or where the claimant is a member of the same household as the driver. The amendments deleted this exclusion with the result that the Fund will in future entertain such claims.
3. The current act does not exclude claims for emotional shock. The amendments however introduced a new exclusion in respect of claims for secondary emotional shock. Secondary emotional shock refers to instances where the claimant did not sustain any other physical injuries in the accident. A typical example of secondary emotional shock would be where a claimant witnessess an accident without being involved in the accident. It is important to note that although the Fund’s liability is excluded in respect of this type of claim that the claimant retains his/her common law claim against the wrongdoer.
4. The amendments retain the claimants common law right to claim against the wrongdoer only in instances where the Fund is unable to pay any compensation and in instances of secondary emotional shock.
5. The amendments limit the Fund’s liability for compensation in respect of claims for non-pecuniary loss (genereal damages) to instances only where a serious injury has been sustained.
6. The current act provides that a claimant is entitled to party-and-party costs when the claimant accepts an offer by the Fund. The amendments deleted this entitlement.
7. The Fund may issue a claimant with an Undertaking in terms of which the Fund will compensate the claimant for future medical and related expenses. The amendments now entitle the Fund to pay the compensation to the claimant or directly to the medical service provider. The amendments also provide that claims lodged under the Undertaking shall not prescribe before the expiry of a period of five years from the date on which the cause of action arose.
8.The amendments limit the Fund’s liability in respect of medical expenses to one of two medical tariffs. The first (higher) tariff will apply in all cases where emergency medical treatment was provided. Emergency medical treatment is defined as all medical treatment necessary for “…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…” All medical treatment that can not be defined as emergency medical treatment will be compensated on the lower tarrif. This lower tariff is the Uniform Patient Fee Schedule for fees payable to public health establishments by full-paying patients, prescribed under section 90(1)(b) of the National Health Act, 2003 (Act No. 61 of 2003), as revised from time to time.
9. The amendments limit the Fund’s liability in respect of claims for loss of income to R 160 000.00 per year, irrespective of the actual loss.
10. The amendments limit the Fund’s liability in respect of claims for loss of support to R 160 000.00 per year, irrespective of the actual loss, in respect of each deceased breadwinner.
a. In terms of the amendments the Fund is required to adjust the R 160 000.00 limit on a quarterly basis, to counter the effects of inflation, by giving notice of the adjusted statutory limit in the Government Gazette.
|
| 3. What claims are affected by the amendments? |
1. All claims arising from accidents that occur on, or after, the date determined by the President in his promulgation notice will fall to be assessed in terms of the amendments.
2. Claims that arise from accidents that occur prior to the date specified in the President’s promulgation notice will be assessed in terms of the current act, i.e. the amendments will have no ipact on these claims.
|
| 4.What and who determines whether an injury is considered serious or not?\ |
1. This question is answered by a medical practitioner who assessess the claimant by following a process of elimenation prescribed in the regulations.
a. Firstly, the medical practitioner must have regard to a list of non-serious injuries. This is a list that may be published by the Minister of Transport, after consultation with the Minister of Health. If an injury appears on this list that injury may not be assessed to be serious by the assessing medical practitioner. Where no list has been published the assessing medical practitioner may skip this step and move on to the next step.
the injury, by the medical practitioner, in terms of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Sixth Edition (“the AMA Guides”). If the injury resulted in 30 per cent or more Impairment of the Whole Person as provided in the AMA Guides, the injury shall be assessed as serious.
c. The last step in the assessment process will only be followed where the injury is not listed on the list of non-serious injuries and where the injury did not result in 30 per cent or more Impairment of the Whole Person. In terms of this step the medical practitioner may assess an injury as serious if the injury resulted in:
(aa) a serious long-term impairment or loss of a body function;
(bb) permanent serious disfigurement;
(cc) severe long-term mental or severe long-term behavioural disturbance or disorder; or
(dd)loss of a foetus.
2. The medical practitioner who performed the assessment must complete a serious injury assessment report (RAF 4).
3. The claimant may lodge the RAF 4 with the separately after the submission of the claim at any time before the expiry of the periods for the lodgement of the claim prescribed in the Act and these Regulations.
|
| 5. Who pays for the serious injury assessment report? |
1. The Fund shall only bear the cost of the assessment if the claimant’s injury is found to be serious and the Fund attracts overall liability in terms of the Act (merits, prescription, etc.); or.
2. If the Fund decides that there is a reasonable prospect that a medical practitioner may assess the injury to be serious and the claimant lacks sufficient funds to obtain an assessment, the Fund may, at the Fund’s cost, at the request of the claimant, make available to the claimant the services of, or, alternatively, refer the claimant to a medical practitioner for purposes of an assessment.
|
| 6. What recourse exists if a dispute arises regarding the assessment of the seriousness of an injury? |
1. The amendments provide for dispute resolution where the medical practitioner has assessed an injury as “not serious” or where the Fund has rejected a serious injury assessment report by a medical practitioner in terms of which the injury has been assessed as “serious”.
2.A claimant wishing to lodge a dispute must do so within 90 days of being notified of the outcome of the assessment or being notified of the rejection of the serious injury assessment report by the Fund.
3. The dispute must be lodged, on the prescribed form (RAF 5), with the Registrar of the Heath Professions Council of South Africa (“the HPCSA”).
4. The dispute will be determined by an appeal tribumal appointed by the Registrar of the HPCSA and will publish its findings within 90 days from the date that the dispute was referred to the Registrar.
|
| 7.Who pays for the costs of the dispute resolution? |
1.The Fund shall bear the reasonable costs of the HPCSA.
2.The Fund shall bear the reasonable fees and expenses of the persons appointed to the appeal tribunal.
3.The claimant will have to bear the cost of his/her attorney in those instances where he/she is represented by and attorney/advocate.
|