SUBMISSIONS PRESENTED BY BOVE ATORNEYS TO DEPARTMENT OF TRANSPORT ON THE PROPOSED ROAD ACCIDENT FUND AMENDMENT BILL 2014.
SUPPLEMENTARY SUBMISSIONS ON ROAD ACCIDENT FUND AMENDMENT BILL 2014 PRESENTED BY LESLIE KOBRIN OF BOVE ATTORNEYS JOHANNESBURG
I respectfully submit a supplementary memorandum on the aforementioned Bill for urgent consideration.
This submission related to Section 21 of the Act introduced in terms of the 2005 Amendment Act which came into effect on 1st August 2008 and Section 21 as it presently stands reads as follows:-
“Claim for compensation lies against Fund or agent only
21. When a third party is entitled under section 17 to claim from the Fund or an agent any compensation in respect of any loss or damage resulting from any bodily injury to or death of any person caused by or arising from the riving of a motor vehicle by the owner thereof or by any other person with the consent of the owner, that third party may not claim compensation in respect of that loss or damage from the owner or from the person who so drove the vehicle, or if that person drove the vehicle as an employee in the performance of his or her duties, from his or her employer, unless the Fund or such agent is unable to pay the compensation.”
It is my respectful submission that this section should be repealed so as to allow a victim of the family of a victim killed as a result of the injuries he sustained in the accident, to claim the amount of his claim which he is unable to recover from the Road Accident Fund from the wrongdoer. In other words to re-introduce the notion of claiming from the common law wrongdoer which was an integral part of the common Law until Section 21 as it now exists came into effect. My submission is justified by the following reasons:-
1. The ability of victims to claim sufficient compensation for injuries sustained in an accident is severely limited by the limitations in force in terms of the Act in respect of:-
1.1. general damages for non-pecuniary loss which can only be claimed for serious injuries subject to the constraints in the Act;
1.2. Loss of earnings and loss of support which have been capped.
2. The proposed RABS legislation will furthermore limit the amounts a victim can claim from the Fund or its successor in title;
3. The proposed amendment in terms of the Bill which is the subject of this supplementary memorandum will furthermore limit what can be claimed in respect of funeral expenses and medical expenses.
4. With the ever increasing number of road accidents resulting in increasing number of deaths and injuries in Road Accidents, with increasing numbers of accidents being caused by reckless drivers who drive on our roads with the knowledge that there is no civil sanction for such conduct, it is necessary for such individuals to know that in addition to criminal sanctions for their conduct there ought to be a further deterrent before embarking in such conduct.
5. In support of the submission in 4 above I quote two examples which readily come to mind. Had Mr Jub- Jub Marochane and Temba Tshabalala known that they could be called upon to compensate their victims who were permanently maimed and the families of those who were killed before they embarked on their race in their Mini Coopers they may have thought twice about commencing their adventure. Although imprisoned for their conduct, I respectfully submit that their incarceration does not serve as any relief to their victims and the families of those killed in the tragedy who will live with their affliction and grief for the remainder of their lifetimes. They should be made to financially contribute to the victims and their families for the reckless act.
6. The Second example is the case of Mr Humphries who transporting children to school reckless overtook vehicles and crossed a level crossing at an inopportune time should likewise be made to compensate his victims or their families.
7. There seems to be many more occurrences of serious accidents when employees of commercial enterprises are made to drive heavy duty vehicles which are in a state of disrepair and are not roadworthy resulting in injury to innocent members of the public. The owners of such enterprises should likewise be made to compensate the victims financially.
8. There are increasing numbers of bus companies whose proprietors cause their vehicles to transport passengers on our roads in un-roadworthy vehicles involved in accidents. They too should likewise be made to compensate their victims.
In conclusion it is respectfully submission that the aforementioned Section be repealed.
DATED AT JOHANNESBURG ON THIS 9TH NOVEMBER 2014
11th Floor South Wing
94 Pritchard Street
Tel: 011- 336-9581/ 2/3
Fax: 011- 336-9571
COMMENTS ON ROAD ACCIDENT FUND AMENDMENT BILL PUBLISHED FOR COMMENT AND INFORMATION ON 3RD NOVEMBER 2014
1. I have no objection to the incorporation of the definition of a medical practitioner and to the proposed definition of same subject to the provider that the medical practitioner so defined is deemed qualified to conduct a serious injury assessment of a claimant and to complete the statutory serious injury assessment Form (RAF 2 form),
2. I note that the proposed amendment to Section 15 of the Act is to bring the procedure of enforcing Court Orders and Settlement Agreements and taxed or agreed costs against the Fund as though it is an Organ of State in accordance with the State Liability Act Basically if the Fund does not implement its obligations in terms of a Court Order or agreement of settlement or in terms of a taxed bill of costs:-
2.1. The Claimant must wait 30 days from the date of the Order or agreement or taxed bill to see if the Fund makes payment.
2.2. If the Fund does not make such payment within that period the Claimant must serve the Order of Court together with a certificate by the Registrar that no appeal or review or rescission proceedings have been instituted or the Court Order and undertaking to pay the specified agreed amount of Costs or the Court Order and taxing Master’s allocator on the CEO of the Fund giving the Fund.
2.3. If the Fund fails to make payment within 30 days from date of service of the Order of Court or the Agreement or the taxed bill, then the Claimant can present a writ of execution to the Registrar who can issue same. The Sheriff must serve the writ and the Fund and make an attachment of movable assets.
2.4. The attached movable assets cannot be removed until the expiration of a further 30 day period if during such period the Fund does not bring an Application to Court for a stay of execution on the f=grounds that the execution of the writ is not in the interests of justice during that time. It is only on the expiration of that further extended period of time that the assets attached can be removed and sold in execution.
3. My comment is that whilst I appreciate that this amendment is brought in order to bring the execution provisions into line with the provisions of the State Liability Act, the said amendment is contrary to the provisions of the purpose of the Fund which is to ensure that road accident victims receive a just and speedy compensation for the injuries sustained in the accident. These provisions delay the entitlement of the Claimant to obtain his just compensation for a further period of at least 90 days from the date of the agreement or Order of Court and can have harsh implications for such victims.
4. Furthermore I cannot appreciate or contemplate how it can ever be I the interests of Justice for the Fund to seek a stay of an Obligation imposed on it in an Order of Court or which it has assumed in terms of a Court Order. The time has arrived for the Fund or its successors in title to employ competent Staff so as to ensure compliance by the Fund of its obligations. The Fund is an entity sui generis and is not in the same position as an Organ of State.
5. The amendments to Section 17 first of all empowers the Minister to prescribe a list of injuries which will be regarded as serious injuries which will automatically entitle the Claimant to be awarded general damages for non-pecuniary loss. This as I understand the amendment will result in the following:-
5.1. If the injury sustained is one on the prescribed list then it will be deemed automatically serious entitling the Claimant to be awarded damages for non -pecuniary loss.
5.2. If the injury sustained is not on the prescribed list it will only be regarded if:-
5.2.1. It in the opinion of a medical practitioner confers a whole person impairment of not less than 30% in accordance with the guidelines of the American Medical Association ; and or;
5.2.2. It in the opinion of a medical practitioner complies with the existing narrative test.
6. If my understanding as outlined above is correct I am happy with these amendments subject to the following caveat namely that:-
6.1. The regulations are amended simultaneously so as to provide that in any matter referred to the HPCSA Appeal Tribunal where the serious injury assessment has been rejected, the Tribunal must be obliged to:-
6.1.1. Furnish the Claimant or his Attorney of record with a copy of the submissions advanced to it in support of its rejection of the serious injury;
6.1.2. The Claimant must be afforded the right to comment on the submissions advanced by the Fund;
6.1.3. The Claimant and /or his representative must be afforded the right to be in attendance at the Tribunal hearing and to be afforded the opportunity of addressing the Tribunal in support of its contentions that the injury is serious.
7. I agree with and support the amendment entitling the Fund to make an offer of a costs contribution with the offer of compensation.
8. It is noted that a further amendment to Section 17 is to introduce one tariff of fees paid for medical expenses for non -emergency and emergency medical treatment of a victim following the accident based on the tariff for health care services provided by public health facilities. The Constitutional Court has already ruled that such a provision is ultra vires the Constitution in
LAW SOCIETY OF SOUTH AFRICA AND OTHERS V MINISTER FOR TRANSPORT AND ANOTHER (2010) JOL 26483 (CC)
9. I submit that the status quo in accordance with the above decision must remain.
10. The proposed amendment to Section 17 entitling a victim to be compensated for medical treatment in an accident within 30 days following the accident irrespective of the negligence or wrongful act of himself or any other person is welcomed.
11. A further proposed amendment to Section 17 is that funeral costs are payable irrespective of the negligence or wrongful act of himself or any other person but is limited to R10 000-00 and to the costs of:
11.1. Transporting the body;
11.2. Storing the body;
11.3. Embalming the body;
11.4. Cremating the Body;
11.5. The coffin or casket;
11.6. The grave;
11.7. Equipment required to lower the coffin in to the grave;
11.8. The funeral undertaker’s fee.
12. This amendment also obliges the Fund to cause to be published in the Gazette Annually the cap of R10 000.00 in order to counter the effect of inflation.
13. Whist the need to cap these costs may be necessary, I find the cap draconian and suggest it be withdrawn.
14. There is an amendment to Section22 to impose an obligation on any person injured in a motor accident other than the driver or the owner (ie a passenger or a pedestrian) to notify the Fund of the occurrence within 14 days if reasonably possible of the occurrence. Whilst I can understand the need for the Fund to be notified I think this provision will be impossible to implement. As an alternative I propose that an obligation be imposed on the Police or Traffic Officials on the Scene of the Accident or to which the Accident is reported, and the medical facility to which the inured or person killed is admitted following the accident to report the occurrence to the Fund.
15. Section 23 of the Act is amended so as to provide that a claim against the Fund for inquiries or death of a person injured in an accident must be lodged with the Fund within three years of the accident. This amendment does away with the claim having to be lodged within two years of the accident in a case of a “hit and run” and as such the amendment is welcomed.
16. Section 24 of the Act is to be amended by permitting the Fund to determine its own prescribed forms. I am ambivalent to this amendment provided that the forms are designed in such a way that the completion of the form is no more onerous that that presently in force given the illiteracy of the majority of our population.
17. Finally the remaining amendment of significance is that the Amendments will only apply to claims brought in terms of Section 17 from the date upon which this Bill comes into effect as an Act by proclamation of the Bill as an Act.
DATED AT JOHANNESBURG ON THIS 6TH NOVEMBER 2014
11th Floor South Wing
94 Pritchard Street
Tel: 011- 336-9581/ 2/3
Fax: 011- 336-9571
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