Legal Talk: car accidents – claiming compensation

If you have been involved in a car accident and it is not your fault, you may wish to claim compensation for personal injury and/or damage to your vehicle. Kirstie Haslam, partner at DSC Attorneys, answers some common questions about what to do after a car accident.

Must I report a car accident to the police?

If someone was seriously injured or killed in a car accident, it must be reported to the police within 24 hours. If you fail to do this and you can't provide a reasonable explanation, you may be issued with a Written Notice to Appear in Court (J 534) or an Infringement Notice in terms of Administrative Adjudication of Road Traffic Offences Act (AARTO).

For legal and insurance purposes, it's advisable to report any car accident you're involved in to the police, even if nobody appears injured.

Generally, it's acceptable to wait until the first working day after an accident occurred before you do this. If you suspect the driver at fault may be intoxicated, however, contacting the police immediately is the only way to ensure that you'll be able to prove this.

How do I report a car accident?

You can report a car accident to any police officer at any police station. You must do so in person, and you must be able to provide proof of identity. If you were a driver in the accident, you'll also need to produce your driver’s license.

Should I see a doctor after a car accident?

If you've been involved in nothing more than a minor "fender bender", or another driver has scraped your vehicle, it might be unnecessary to see a doctor.

However, you should consult a doctor after being involved in any car accident that involves significant impact – even if you don't initially think you've sustained injuries. Immediately after a car accident, shock and adrenaline can prevent you from realizing you've been injured. It can also take time for swelling to occur and to cause symptoms.

Note that if you are injured but don't seek medical attention promptly, this could not only be detrimental to your health but could also strongly compromise the success of a personal injury claim.

How is fault determined in a car accident?

Proving fault in a car accident involves demonstrating that the driver responsible for the accident acted in a negligent or irresponsible manner. Examples of evidence for doing this include police reports, witness statements and photographs or videos taken at the scene of the accident.

When will the police investigate a car accident?

A car accident will be criminally investigated by the SAPS if a person has been killed, a person has been seriously injured, it appears that a serious offence has been committed, a vehicle of a national or provincial government department is involved, and/or a written complaint has been made by a victim or eye-witness that an offence has been committed.

What is pain and suffering in a car accident?

Pain and suffering refers to stress experienced as a result of your injuries. It can include physical pain, as well as emotional and psychological trauma. In general, the more serious your injuries, the greater the compensation you can claim for pain and suffering.

What evidence is needed for a personal injury claim?

Evidence to support a claim can take the form of medical reports, prescription receipts, medical bills, proof of lost wages and photographs of your injuries.

Who do I sue for my injuries?

Under South African law, you can't pursue another person for financial compensation in the case of a road accident. If you've been injured in a car accident for which you were not solely responsible, you can claim compensation from the Road Accident Fund (RAF).

Can I claim from the RAF if I was partly responsible for a car accident?

Any person involved in a car accident that was not entirely their fault can claim from the RAF. However, under the current dispensation, your role in causing the accident will be considered and will affect the compensation it's determined you're owed.

Who will pay my medical bills after a car accident?

You, or your health insurer, will likely need to pay your medical expenses until your RAF claim is successful. If your RAF claim is successful, the Fund may reimburse your medical expenses. It may also undertake to pay on-going expenses associated with your injury.

RAF payouts: 2017 at a glance

For some time, focus in the media has been on the RAF’s financial woes and alleged mismanagement. Nonetheless, the fund’s total revenue increased slightly, from R33.21 billion in 2016 to R33.34 billion in 2017. This is despite a 0% increase in the fuel levy, which is the RAF’s source of revenue.

The total compensation paid out by the RAF for 2017 amounted to R29.8 billion.

This is compared to R32.3 billion in 2016. The decrease is explained by two statistics:

  • There were 8% fewer successful claims than the previous year
  • The average value per claim dropped by 18%.

The average claim in 2017 was R117,059, compared to R143,127 in the previous financial year.

The RAF provides compensation in four main categories, for loss of income or support, medical costs, funeral costs and general damages.

Compensation for loss of support and funeral costs may be paid in cases where the breadwinner in a family has died in a road accident.

Details of total RAF payouts last year are as follows:

  • Total loss of income or support claims came to R13.5 billion; the average claim was R645,832 for loss of income and R368,164 for loss of support
  • Total RAF medical claims came to R2.1 billion; the average claim increased by 44% from R10,447 in 2016 to R15,030 in 2017
  • Claims for funerals costs amounted to R130 million, with an average payout of R15,264
  • General damages payouts for 2017 came to R7.9 billion; the average RAF claim for general damages was R390,004.

What affects the payout amount for a claim?

The value of a RAF payout will depend on several factors, such as:

  • The extent to which you were responsible for causing a road accident, if you were involved as a driver
  • The nature and severity of your injuries, and their likely consequences over 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.

When should I hire an attorney?

You should consider hiring an attorney if a car accident has resulted in serious personal injury or you feel that your insurance company is not providing you with fair compensation.

What kind of attorney do I need for a car accident claim?

If you or a close family member has been seriously injured in a car accident, contact a firm of attorneys that specializes in personal injury. The firm should have an established reputation and extensive experience in car accident and RAF claims. Also make sure it has sufficient resources, in terms of qualified personnel, to dedicate to your claim to ensure you get the compensation you deserve.

You may also prioritize finding a firm that operates on a contingency basis so that you can pursue a car accident claim without having to pay upfront legal fees.

The RAF is currently engaged in an active campaign to solicit so-called “direct claims”. In other words, they want to exclude attorneys from the claims process. This is hugely problematic. Not only will you not receive unbiased advice and assistance, but in many instances the RAF will allow your claim to prescribe or will offer you totally inadequate compensation. Once you’ve accepted an offer, however low, you have no further recourse against the RAF for proper compensation.


Amanda Ndlangisa

Source: W24