Recent publications may have you thinking about claiming from the RAF without an attorney, but direct claims may not be the answer for you.
- Do you need to claim from the Road Accident Fund (RAF)?
- Do you have an attorney?
- Should you go the direct route and have the RAF assist you?
To aid you in making the right decision consider the following.
You may argue that it is costly to use an attorney to assist you with a claim against the RAF and that you can do better by going the direct route as per the RAF’s website.
However, it could just cost you more by not making use of the services of a reputable attorney, both in time and in money.
Claiming direct from the RAF
Section 19(c) of the Road Accident Fund Act 56 of 1996 (as amended) stipulates that a claim may be lodged by the injured party or by –
(i) Any person entitled to practice as an attorney;
(ii) Any person in the service of or a representative of the state or government or provincial, territorial or local authority.
The RAF does not qualify nor does it having the locus standi to claim on behalf of a victim in terms of the said Act.
Yet the RAF invites unsuspecting victims to engage them directly in Government hospitals and via their so called “RAF on the Road” campaigns.
“The RAF continues to implement various initiatives to meet the faces behind our files, as well as the families who have been adversely affected by motor vehicle accidents. Our objectives include, among others, to educate communities about the RAF, to make settlement offers, to assist with the status of claims, to issue medical undertaking certificates and to invite eligible community members to lodge claims directly with the RAF”
The Funds approach is to administrate the claim on behalf of the victim, effectively stepping into the shoes of the victim and/or attorney.
None of the people representing the RAF at these initiatives are medically trained and few are legally trained, yet they decide who is “eligible” or not to claim.
Having the RAF play judge and jury was never the intention of the legislature and these actions by the RAF smells foul of a prejudice, prejudice to the victim and prejudice to the taxpayer who contributes to the Fund and who expects to receive the widest possible cover should he or she ever have to experience the trauma of a life altering road traffic accident.
The RAF simply cannot attend to these claims on behalf of the victims. One of the administrative issues that will arise is prescription. Should prescription become a problem on these “direct” claims, they will be faced with the absurd situation of having to summons themselves in order to interrupt prescription.
Thousands of these claims have prescribed (fallen away) in the hands of the RAF, and those unsuspecting victims should engage an attorney on an urgent basis to investigate and advise on a course of action.
Further, even if the victims of direct claims are fortunate enough to receive an offer these offers are usually far from the true value of the claim, in fact in most instances does not even equate to 25% of what the claim should have been.
The RAF is quite happy to advertise that going to an attorney could cost you 25% of the value of your claim – doing the math it becomes evident that 75% of the true value is better than 25% of what the claim should have been.
Case in point are the following articles that illustrate that “going direct” definitely is the worst option you can take.
These headlines have appeared in the media:
- Direct claims to RAF a bad idea, warns law society (iol.co.za 15 December 2016);
- Dead-end for RAF claimants (iol.co.za 4 February 2017);
- Paralysed car smash victim get millions;
Stories of victims waiting for their payout only to realize their claims had prescribed and others suffering in pain while waiting, should make you think twice about going direct.
Why you shouldn’t claim direct from the RAF
According to the Law Society of South Africa (LSSA), victims claiming directly from the RAF are being short changed with hasty settlements. Many of these accident victims consider the settlement amount they are receiving to be a significant one, but it just might not be that significant without getting a second opinion, get legal advice.
In addition to not being compensated sufficiently, if the RAF doesn’t consider your case serious enough, they can reject your claim. Not having the necessary experience and expertise armed with an agenda not to compensate more often than not victims that would otherwise have been able to claim are turned away.
The RAF actively advertises for claimants to go directly through them, and they say that direct claims are settled quicker than if represented by an attorney.
And, according to the RAF, direct claims grew from 15% of new claims in 2011/12 to 35% in 2015/16.
The LSSA says that claims should be assessed individually, because unrepresented claims are processed quickly and without due diligence victims may find that some long-term injuries may be overlooked.
Just some of the documents you need to include with the RAF claim form are:
- An affidavit by the claimant
- An affidavit explaining how the accident took place
- An Officers Accident Report (OAR) including a police sketch plan and a witness statement
- Documents to prove loss of earnings e.g. salary advice slip
- Documentation to prove medical expenses
- Copies of hospital records
- Proof of marriage (if claim by spouse)
- Proof of earnings of all parties involved
In addition to these documents (but not limited to this list), you will also need to get and pay for the following information (if going the direct route):
- medical reports (a doctor will need to complete forms RAF1 and RAF4) to claim general damages for pain and suffering, loss of amenities of life, disability, disfigurement and shock you need to lodge a serious injury assessment report (RAF 4) from a suitably qualified medical expert who has assessed your injury as ‘serious’ as provided for in the Act and Regulations
- witness statements;
- photographs of the accident and injuries;
- medical records from the hospital and doctor;
- the documents from the South African Policy Service;
- all documents relating to income etc.;
These expenses may run into a few thousand rand, which expenses would be for the direct claimant.
The RAF will help you fill out the claim form, but you will have to find and pay for all the relevant documents and medical reports.
So it is a not as quick and easy as the RAF would have you believe, to lodge and settle a claim.
However, having an attorney to assist you will save you time and ensure a just settlement without the uncertainty on whether or not the RAF might have under settled your claim.
What does an attorney do for you that you can’t do yourself?
Attorneys have the expertise and know how to assist you with a personal injury claim.
An attorney will make sure that your claim is correctly documented and submitted to the RAF in accordance with the RAF Act and Regulations as to ensure substantial compliance (if not your claim will be rejected).
Road Accident Fund claims are complex, fraught with administrative pitfalls and are often a traumatic experience for anyone wanting to claim from the Road Accident Fund.
An attorney negotiates these administrative minefields on your behalf and ensures that the best possible outcome is obtained.
Having years of experience in the field of personal injury law, Gert Nel Incorporated Attorneys are compassionate and understand the fragile nature and circumstances of our clients.
Each individual client is assessed on instruction by Gert Nel Incorporated attorneys, by a panel of expert doctors, Occupational Therapists, Industrial psychologists etc. as to determine his or her specific needs.
The aim of any RAF claim is to secure the financial viability of a victim, to provide a financial and medical safety net, in the event of an accident having an adverse effect on the client’s life.
Gert Nel Incorporated Attorneys ensures that their clients have the peace of mind that once settled they would be financially independent and covered for any future accident related medical expenses.
It is crucial to start investigating a claim as soon as possible so that the attorney may thoroughly investigate the details and gather all the medical and related documentation required to comply with and lodge the claim.
Can you afford not to use an attorney with your RAF claim?
No, you simply cannot.
Most attorneys work on contingency, in other words a fee is only levied once the claim becomes settled.
At Gert Nel Incorporated Attorneys the costs and risks are born by the attorney and a fee is retained in accordance with a written fee agreement as required in terms of the Contingency Fees Act, only if the claim is successful.
For top results and peace of mind long after your claim with the RAF has become settled, Gert Nel Incorporated Attorneys will assist you with your claim against the Road Accident Fund, each step of the way.
Achieving the best possible settlement
Remember, with the guidance and expertise of an experienced attorney, you will obtain a better settlement than without one, and certainly also by not going direct.
It is your right to choose your own attorney to represent your RAF claim.
Do proper research and ensure that the attorney is registered and in good standing with your local Provincial Law Society.
Make sure you understand and are happy with the fee structure of the attorney as it will be the best investment you can make.
Gert Nel Incorporated has a national footprint and is able to attend to victims anywhere in the Republic.