UN­DER­STAND­ING Tourism Trade In­sur­ance

Tourism Tattler - - RISK -

Part 1 in this series cov­ered an in­tro­duc­tion to in­sur­ance, an out­line on the EC Di­rec­tive, the ba­sics of risk man­age­ment, and fi­nan­cial guar­an­tees. Parts 2 and 3 looked at li­a­bil­ity in­sur­ance, while Part 4 con­tin­ues the sub­ject of li­a­bil­ity with spe­cific ref­er­ence to the Road Ac­ci­dent Fund in South Africa.


What is the Road Ac­ci­dent Fund?

The Road Ac­ci­dent Fund is a pub­lic en­tity, which has been set up to pay com­pen­sa­tion to peo­ple in­jured in road ac­ci­dents or the de­pen­dants of peo­ple killed in road ac­ci­dents aris­ing from the neg­li­gent driv­ing of a mo­tor ve­hi­cle in South Africa.

Where does the Fund get its money from?

The Fund gets its money from a fuel levy in­cluded in the price of petrol and diesel, which is paid by driv­ers of mo­tor ve­hi­cles.

Is a lawyer re­quired?

The Fund em­ploys staff at all re­gional of­fices and at var­i­ous pub­lic hos­pi­tals to as­sist claimants free of charge. How­ever a claimant may still de­cide to em­ploy a lawyer. The lawyer will be en­ti­tled to charge a fee for pro­fes­sional ser­vices ren­dered.

Time pe­riod to make a claim

If the iden­tity of the of­fend­ing driver or owner is known, the claim must be lodged within three years from the date on which the claim arose. (This does not ap­ply to a claim of a mi­nor). If the iden­tity of the of­fend­ing driver or owner is un­known, the claim must be lodged within two years from the date on which the claim arose.

Who is en­ti­tled to make a claim?

1. A per­son who was per­son­ally in­jured (ex­cept a driver who was the sole cause of the ac­ci­dent).

2. A de­pen­dant of a de­ceased vic­tim.

3. A close rel­a­tive of the de­ceased in re­spect of funeral ex­penses. 4. A claimant un­der the age of 18 years must be as­sisted by a par­ent or le­gal guardian.

What can you claim for?

• Med­i­cal ex­penses (past and fu­ture);

• Funeral ex­penses;

• Loss of earn­ings or in­come if per­son is dis­abled (past and fu­ture) • Loss of sup­port for a de­pen­dant of a de­ceased vic­tim (past and fu­ture)

• Gen­eral dam­ages for pain, suf­fer­ing and dis­fig­ure­ment in the case of bod­ily in­jury. Note: (This is de­ter­mined af­ter ex­am­in­ing the ex­tent and sever­ity of the in­jury).

How is a claim made against the Fund?

• A claim must be made on the Claim Form, (Form 1 is to be used in re­spect of claims aris­ing prior to 01 Au­gust 2008, and RAF1 for 01 Au­gust 2008 on­wards) which is avail­able from of­fices of the Road Ac­ci­dent Fund.

• Ev­ery ap­pli­ca­ble para­graph must be fully com­pleted.

• The doc­tor that treated the in­jured per­son im­me­di­ately af­ter the ac­ci­dent must com­plete the med­i­cal re­port sec­tion in the claim form.

• The claim form must be signed by the claimant.

What doc­u­ments must be sub­mit­ted with the claim form?

In the case of in­jury the fol­low­ing doc­u­ments must be at­tached: 1. A cer­ti­fied copy of the iden­tity doc­u­ment of the claimant; 2. An af­fi­davit by the claimant;

3. The Po­lice re­port (OAR), po­lice state­ments and po­lice sketch plan;

4. Doc­u­ments to prove loss of earn­ings e.g. salary ad­vice slip; 5. Doc­u­ments to prove med­i­cal ex­penses;

6. Copies of hos­pi­tal records if avail­able;

7. A se­ri­ous in­jury as­sess­ment re­port (in re­spect of claims aris­ing af­ter the 31 July 2008) where gen­eral dam­ages are claimed. If the ac­ci­dent vic­tim is de­ceased the fol­low­ing ad­di­tional doc­u­ments are re­quired:

8. Iden­tity doc­u­ment of de­ceased;

9. Death cer­tifi­cate or post-mortem re­port;

10. Doc­u­men­tary proof of mar­riage (if claim by spouse);

11. Full unabridged birth cer­tifi­cates re­flect­ing the names of par­ents;

12. Proof of earn­ings of all par­ties in­volved;

13. Proof of rea­son­able funeral ex­penses.

The claim form and the ac­com­pa­ny­ing doc­u­ments must be hand de­liv­ered or sent by reg­is­tered mail to the Fund at the ad­dresses ap­pear­ing un­der the Con­tact De­tails at www.raf.co.za

Im­por­tant con­sid­er­a­tions:

• Prop­erty dam­age can­not be claimed from the Fund, it may be claimed from the of­fend­ing driver;

• An ac­ci­dent must be re­ported to the po­lice and the Fund by the driver/owner;

• Com­pen­sa­tion will be re­duced in re­la­tion to claimant's own neg­li­gence;

• Com­pen­sa­tion for a pas­sen­ger in the of­fend­ing ve­hi­cle is lim­ited to R25 000 in re­spect of claims aris­ing prior to 01 Au­gust 2008. • Com­pen­sa­tion re­ceived from the Com­pen­sa­tion Com­mis­sioner in a case where a per­son is in­jured on duty, is de­ductible.

• The Fund may re­quire a per­son to sub­mit to in­ves­ti­ga­tions and med­i­cal ex­am­i­na­tions;

• A claim may be ex­cluded in a case where a claimant un­rea­son­ably re­fuses or fails to co­op­er­ate with the Fund in the course of its in­ves­ti­ga­tion.

• There are cer­tain cat­e­gories of claims that the Road Ac­ci­dent Fund Act ex­cludes.

The Road Ac­ci­dent Fund Amend­ment Act, No19 of 2005, which came into ef­fect on the 1 Au­gust 2008 brought about the fol­low­ing changes to claims aris­ing af­ter 31 July 2008:

• The limit of R25 000.00 placed on the claim of a pas­sen­ger in the of­fend­ing ve­hi­cle, has been re­moved.

• Gen­eral dam­ages claims are sub­ject to an as­sess­ment by a reg­is­tered med­i­cal prac­ti­tioner, to de­ter­mine the sever­ity of the in­juries suf­fered and whether or not the in­jury is to be clas­si­fied as a “se­ri­ous in­jury “

• Dam­ages for loss of sup­port are capped at R219 820.00

(as at 30 April 2014) per year in re­spect of each de­ceased bread­win­ner. • Dam­ages for loss in­come are capped is capped at R219 820.00 (as at 30 April 2014) per year.

• The max­i­mum amount upon which claims for loss of in­come and loss of sup­port are cal­cu­lated (R219 820.00) is sub­ject to an an­nual in­fla­tion­ary ad­just­ment in line with the of­fi­cial CPI mea­sure.

• Emer­gency med­i­cal treat­ment costs are payable by the Fund in ac­cor­dance with a pre­scribed tar­iffs. (NHRPL tar­iff) • Non-Emer­gency med­i­cal treat­ment costs are payable by the Fund in ac­cor­dance with the Uni­form Pa­tient Fee Sched­ule for full pay­ing pa­tients

• The ex­clu­sion of claims by mem­bers of the same house­hold as the driver of the mo­tor ve­hi­cle has been re­moved, and such claims are now per­mis­si­ble.

• The ex­clu­sion of claims by fare-pay­ing mo­tor­cy­cle pas­sen­gers has been re­moved, and such claims are now per­mis­si­ble.

It is im­por­tant to note the ef­fect that the Road Ac­ci­dent Fund leg­is­la­tion has on the tourism in­dus­try in terms of le­gal ac­tion fol­low­ing a mo­tor ve­hi­cle ac­ci­dent. The abo­li­tion of the in­jured party's (pas­sen­ger / tourist / guest) com­mon law right to sue the wrong­doer (op­er­a­tor), means that fol­low­ing a mo­tor ve­hi­cle ac­ci­dent the se­verely in­jured tourist will only re­ceive lim­ited com­pen­sa­tion from the Road Ac­ci­dent Fund and will have no right of re­course against the wrong­doer.

As South Africa's pri­mary in­bound mar­kets em­anate from Euro­pean Union coun­tries and are sub­ject to the E.C. Di­rec­tive on Travel and Trade Act, agents will find them­selves even more ex­posed to risk. If an in­jured guest's dam­ages can­not be re­cov­ered against the lo­cal op­er­a­tor, their client will no doubt seek to hold them re­spon­si­ble in terms of said di­rec­tive.

This ar­ti­cle will be be con­tin­ued in the May 2016 edi­tion of the Tourism Tat­tler, and will ex­plain Per­sonal Ac­ci­dent and Pro­fes­sional In­dem­nity in­sur­ance - Ed.

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