Sunday Tribune

Accident payout cap under fire

Lawyers say victims will suffer from proposed changes, but fund says it can’t afford to carry on

- SHEREE BEGA, AARIF SAIB and NKULULEKO NENE

IF THE horror of a car accident does not leave its victims scarred, the Road Accident Benefit Scheme will, say opponents of the bill before Parliament.

The Law Society of the Northern Provinces is fighting to prevent the bill’s passage because it does not fully compensate victims for their losses.

The latest legislatio­n is intended to replace the faultbased system administer­ed by the Road Accident Fund (RAF).

“Road accidents will be treated on a no-fault basis. This means everyone will be able to receive minimal benefit payments and no one will be excluded from claiming, even if the accident was their fault,” says the law society.

“Until now, if you caused an accident, you were excluded from claiming from the RAF, but victims who qualified to claim received much higher payments in compensati­on.”

The new scheme will “drasticall­y decrease the amounts and benefits payable. They want to change the law, at the expense of the victim,” says Lindy Lagner, a representa­tive of the society.

“Seriously injured victims won’t be able to adjust to their new circumstan­ces.”

The RAF has a deficit of more than R100 million and is run inefficien­tly, says Lagner.

“They get R3 billion a month from the fuel levy. You have to ask: will it (the scheme) benefit the victim or the administra­tor?”

The department maintains a “no-fault scheme will create a new era of socio-economic balance” and remove the “unintended negative consequenc­es” and financial burden on the families of the wrongdoer.

The Justice Project South Africa (JPSA) is also opposed to the change. This non-profit organisati­on tackles corruption and the abuse of power in law enforcemen­t and educates the public on a wide range of road safety issues.

“We oppose the proposed Road Accident Benefit Scheme for a number of reasons, not least of which is that it indemnifie­s the person who causes injury or death,” says Howard Dembovsky, JPSA national chairman.

“This, in our view, is not helpful to road safety in that it subconscio­usly makes some people think there will be no consequenc­es for their negligence.

“The monetary amounts for victims of road crashes are simply laughable and don’t put a person anywhere close to the financial position they would have been in if not injured in a road crash. That’s simply not right and goes against the grain of the purpose of insurance,” he says.

Eugene Watson, the chief executive of the RAF, says the fund is burdened by expensive and costly litigation, prolonged claims finalisati­on and high administra­tive costs.

“What’s clear is the RAF is not sustainabl­e. Liabilitie­s of more than R130bn (and) awaiting payments of R10.79bn, despite monthly income of almost R3bn, are symptoms of this reality. Under the scheme, fault will not be considered on the part of the claimant or others involved in a road accident,” says Watson.

The department sees the defined nature of the benefits as making them “transparen­t and easily understand­able by a claimant”.

The focus will be on how the crash victim is immediatel­y assisted. Structured payments will be made directly to claimants’ medical and healthcare service providers.

But the law society takes issue with this. “This means medical practition­ers and caregivers you are entitled to use when injured will no longer be your choice, but dictated.”

Lump sum settlement­s will fall away as the scheme will make monthly payments to beneficiar­ies, of up to R44 000 a year without having to prove a source of income.

Many people are unemployed or do part-time work, says Lagner. The amount is “poor compensati­on” for a lifetime of lost income.

The department says lump sum payments “are, in many instances, used to buy luxury vehicles, homes and holidays”.

Under the new scheme, says Watson, the “odds will be in favour of the survivor” and there won’t be a need for lawyers, as disputes will be referred to an appeal body.

Lagner counters: “They will be the judge, jury and executione­r.”

Dembovsky thinks there are better options than the scheme. “Compulsory third party insurance, through proper insurance companies, is law in many countries. This caters for the needs of victims without indemnifyi­ng drivers and fleet owners from further civil litigation.

“It would have the effect of reducing the fuel price and putting things in the hands of profession­al insurance companies. It is time the current and proposed system were scrapped and compulsory motor vehicle insurance reintroduc­ed,” he said.

But Road Safety Action Campaign founder Richard Benson has applauded the bill, saying it needs to be implemente­d because lawyers have pocketed huge sums.

“For years they have been paying huge amounts into their accounts. They made fortunes, much of it for themselves. If this could be handled by a new body, it would benefit the victims,” says Benson.

But he expects the bill to be delayed because lawyers are not happy about the proposed change.

“The fact is our country needs to cut down by 40 percent on road carnage to avoid losing billions on claims. This could benefit the ailing economy,” says Benson.

He favours speed limit reduction, increased police visibility and naming and shaming traffic offenders.

The Department of Transport was not available for comment.

 ?? Picture BONGANI MBATHA ?? Home Affairs Minister Malusi Gigaba holds newborn baby Lubanzi, while the mother, Samkelisiw­e Ndlovu, holds her son’s birth certificat­e in the presence of health MEC Dr Sibongisen­i Dhlomo, during a visit at Prince Mshiyeni Memorial Hospital in uMlazi,...
Picture BONGANI MBATHA Home Affairs Minister Malusi Gigaba holds newborn baby Lubanzi, while the mother, Samkelisiw­e Ndlovu, holds her son’s birth certificat­e in the presence of health MEC Dr Sibongisen­i Dhlomo, during a visit at Prince Mshiyeni Memorial Hospital in uMlazi,...

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