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Claiming from RAF – should you lawyer up?

By Athenkosi Sawutana

A claim against the Road Accident Fund (RAF) can take up to five years before settlement. In trying to secure payment faster, should you appoint a lawyer rather than approaching the RAF directly?

Justmoney finds out if having a legal representative could help you receive what is due to you.

Do you need a lawyer?

When deciding whether to approach the RAF directly or appoint a lawyer, you must bear in mind that there is a risk of your claim being under-settled if you claim directly from the RAF.

But according to Cristelle Pretorius, an associate attorney at Batchelor and Associates, if you’re claiming for minimal things, such as funeral costs or past medical expenses, it’s advisable to approach the RAF directly.

She says such claims should not take long to settle and it would not make sense to incur legal fees if the claimed amount is small.

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However, in all other instances, it’s advisable to appoint an attorney. This ensures that your claim is properly investigated and appropriately quantified.

“As attorneys use the court procedure to further matters, there is pressure on the RAF to consider these matters as to avoid going to trial,” she says.

Kirstie Haslam, director of DSC Attorneys adds that if you’re represented, you are on a much stronger footing than someone who’s not. This applies not only to the prospects of receiving compensation but also to the amount of compensation you’re likely to receive.

“An unrepresented claimant is not necessarily able to deal with any technical objections or requirements raised by the RAF, with regards to the claim process itself,” says Haslam. 

Such a person will also not have the resources to undertake the detailed investigations required to prove their claim or to take the RAF to court if it’s not prepared to make a reasonable settlement offer, she explains.

According to the RAF, the amount you ultimately receive may be more sizeable where you have elected to lodge a claim directly.

The RAF points out that when you use the services of an attorney to lodge a claim, the attorney will recover fees for their services. These fees can be as much as 25% of the compensation paid by the RAF where a Contingency Fee Agreement was entered into.

The attorney will first recover their fees and disbursements from the payment received from the RAF before paying the claimant, says the RAF.

According to RAF, between 1 April 2018 to 31 March 2019, direct claims were settled in 649 days from lodgement, while represented claims were settled in 1,411 days from lodgement.

From 1 April 2019 to 27 June 2019 direct claims were settled in 581 days from lodgement, while represented claims were settled in 1,326 days from lodgement.

Why does it take so long to process claims?

According to Pretorius, the time taken to process your claim depends on the severity of the injuries and the complexity of the claim,

Your injuries must have reached Maximum Medical Improvement – meaning that the injuries have healed to the point at which further recovery or deterioration is not anticipated. 

“As a claimant only has one opportunity to claim we must ensure that the scope of the claimant’s injuries, the consequences, and the recovery thereof have been fully investigated in order to include a claim for future costs and damages,” says Pretorius.

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Pretorius says the RAF is inundated with claims and a delay in settling a claim also adds to the time it takes to process the claim.

Haslam also blames the court process as one of the contributing factors.

“Due to the mandatory court pre-trial processes as well as our congested court rolls, it can take several years to bring a matter to trial if a settlement can’t be reached in the meantime,” she adds.

She also points out that the nature of the medico-legal investigations which are required is complex and, in most instances, multi-disciplinary.

“You need a panel of medical experts with various areas of expertise,” she says.

What determines how much you receive?

Each claim can be divided into merits and quantum, says Pretorius. 

The merits concern who was liable for or who was negligent in the accident.

“If the negligent driver was found to be 90% liable and the claimant was found to be 10% liable, the RAF would only pay 90% of the claimant’s proven damages or quantum,” says Pretorius.

The quantum refers to the amount that is being claimed. It is made up of various categories of damages depending on the type of claim, but can include:

  • Past or future medical costs
  • Past or future loss of earnings or earning capacity
  • General damages (pain and suffering or loss of amenities of life)
  • Past or future loss of support
  • Funeral costs

Pretorius says that in the case of past medical costs or funeral costs, simple proof such as a receipt, statement, or invoice is accepted.

In respect to the other categories of damages, medical experts are appointed to assess the consequences of the injuries.

Expert research and mathematical calculations are used to determine the value of the loss of earnings or loss of support.

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