The Business Day
RAF Bill excludes driver’s liability for road accidents
High cost of accidents: The Black Lawyers Association has taken issue with proposals in the Road Accident Fund Benefits Scheme Bill to withdraw the right to sue a person responsible for a vehicle accident.
The proposed withdrawal of the right to sue for damages against a person responsible for a car accident has drawn opposition from the legal fraternity.
This would be irrespective of negligence or other wrongful conduct of the person responsible for an accident.
The contentious proposal is in the Road Accident Fund Benefits Scheme Bill.
“The problem with that approach is that it tends to insinuate that the purpose of the scheme is to protect the wrongdoer rather than the victim of the road accident,” the Black Lawyers Association said in a submission to the transport committee during recent public hearings on the bill.
It did not believe the withdrawal of the right to sue for damages would pass constitutional muster. “There is no basis whatsoever why a person who will intentionally assault or kill another human … will be spared from a civil claim for pain and suffering or loss of support by the victim or dependants of the victim,” argued association president Lutendo Sigogo.
The aim of the bill is to redress the financial unsustainability of the Road Accident Fund (RAF) by providing for a no-fault scheme for victims of accidents.
The bill excludes from liability the owners, drivers and employers of drivers involved in road accidents. But it will pay out benefits to road accident victims irrespective of the negligence or other wrongful conduct of the owner of a vehicle involved. The system of benefit payments is based on the determination of fault, which has to be established through a legal process.
During the 2016-17 financial year, the fund, which is financed by the RAF fuel levy, paid out R5.3bn in legal costs and incurred a loss of R35bn, including a provision for outstanding claims.
At the end of the 2016-17 financial year, the fund had actuarial liabilities for outstanding claims of about R180bn.
The bill has been a long time in the making as the recommendation for a no-fault system emerged from the 2002 report of the Road Accident Fund Commission chaired by Judge Kathleen Satchwell. It places a cap on annual income, does not provide for lump sum payments and does away with general damages — such as the loss of the amenities of life, disability, disfigurement and shock.
Abolishing the payment of general damages by the fund was also a source of strong opposition during the hearings.
The Law Society of SA shared the sentiments of the Black Lawyers Association. It supported the current system with the proviso that claims procedures and administration are made more efficient.
Rights groups including Section 27, the Legal Resources Centre, Lawyers for Human Rights, Consortium for Refugees and Migrants, the Southern Africa Litigation Centre and the Scalabrini Centre of Cape Town objected to the exclusion of undocumented migrants from the benefits of the fund.