NON-PECUNIARY DAMAGES IN A ROAD ACCIDENT FUND CLAIM: HOW DO I QUALIFY?
A Road Accident Fund (RAF) claim for damages is likely to be available to you if you’ve been injured in a road accident that was not your fault. These could cover your past and future medical expenses, loss of income associated with the injury and compensation for pain and suffering.
Non-pecuniary damages or general damages can be described as damages suffered by a person that are not quantifiable in monetary terms. In the context of RAF claims, these are non-monetary consequences of injury caused by someone else’s negligence. Such damages are meant to acknowledge the pain and suffering faced by the plaintiff, including physical and emotional injuries. In Legodi v Road Accident Fund (50948/17) [2021] ZAGPPHC 566, Bhoola AJ summarizes that ‘General damages include a person’s physical integrity, pain and suffering, emotional shock, disfigurement, a reduced life expectancy, and loss of amenities’.
In terms of section 17(1) of the Road Accident Fund 56 of 1996 (as amended) (hereinafter referred to as ‘the Act’), the obligation of the RAF to compensate a third party for non-pecuniary loss shall be limited to compensation for a serious injury as contemplated in Section 17(1A). Therefore, claimants are only entitled to general damages from the RAF if their injuries sustained qualify as ‘serious’. An assessment prescribed in the Act’s Regulations must be performed by the medical practitioner in order to determine whether the claimant has suffered serious injuries.
Under RAF legislation, serious injury is defined as involving 30% or greater ‘Whole Person Impairment’. The examples of serious injuries can be traumatic brain injuries (TBI), paraplegias, quadriplegias, and in some cases, an above-the-knee amputation of a lower limb. The second test to determine whether a claimant is still entitled to compensation for general damages is called the ‘narrative test’. In terms of the narrative test, an injury also qualifies as serious if it has resulted in.:
● Long-term impairment or the loss of a body function;
● Permanent, severe disfigurement;
● A serious long-term mental or behavioral disturbance or disorder; or
● The loss of an unborn child.
The medical practitioner will then need to compile a Serious Injury Assessment Report (a RAF 4 report). This must confirm that your injury is serious enough to warrant compensation.
HOW IS THE CLAIM FOR GENERAL DAMAGES DETERMINED?
General damages are not quantifiable in monetary terms. Therefore, it can be difficult to determine an exact amount. The amount awarded should be fair and reasonable under the particular circumstances. The courts normally use prior awards in similar cases in order to award general damages. The courts have discretion to award an amount that is fair and reasonable under the particular circumstances. Courts are not necessarily bound by previous awards made in comparable cases, but may not deviate from the previous awards without proper justification. In the event that no directly comparable awards can be found, the courts will consider, inter alia, the age and gender of the claimant, the seriousness of the injuries, nature of the injury and expected future medical treatment when determining the amount to be awarded.
The RAF may compensate you for medical expenses, loss of income, and other accident-related expenses if you or a loved one is involved in a road accident. In order to ensure that you can receive the best possible compensation for your injuries, it is extremely important that you obtain excellent legal representation.
Article by Jean-Pierre van Zyl (LLB) – Candidate Attorney
For more information, Jean-Pierre may be contacted at jean@rgprok.com or 044 601 9900. www.rgprok.co.za
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Disclaimer
Nothing contained in this publication is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This publication is intended for educational and informational purposes only.
