Thank you for the privilege of again commenting on the RAF Amendment Bill.

The amendment seeks to exclude payment of general damages (pain and suffering, loss of amenities of life, impairment, disfigurement, disability and shock) to victims who have not suffered "a serious injury". A cap of R100 000.00 is imposed in respect of a victim who suffers a serious injury.

If one applies the proposed definition of "a serious injury" to the Road Accident Fund’s own current guidelines for the calculation of general damages, all but approximately 6 of the listed injuries will qualify for compensation. This means that more than 80% of road accident victims will be disqualified from receiving compensation for pain and suffering, loss of amenities of life, disability, disfigurement and shock.

The definition of "a serious injury" leaves much to be desired. The Minister is empowered to "prescribe" other serious injuries. No regulations have, as yet been produced. It is clear that the intention is to limit payment to those claimants with an objectively discernable catastrophic injury. Many injuries, which would not fall into the definition of "total disablement", can result in a claimant’s lifestyle and ability to earn being severely impaired. If the proposed amendment is adopted, thousands of seriously injured claimants will suffer.

The Bill proposes that "assessment of serious injuries" be based on a "prescribed method" adopted after consultation with "medical service providers". It is not clear whether these are the same "providers" as referred to in section 26.

What is of concern is the establishment of "provincial medical panels consisting of a representative of the Fund". To make assurance doubly sure, it is proposed that "the Fund set up a peer review panel to oversee assessments by panels…"

What is contemplated is the establishment of medical tribunals, controlled by a review panel "set up" by the Fund, the very body against whom the claim is made. In addition, amendments proposed to section 26 empower the Minister to further "make regulations regarding-

No indication is given as to the nature of the regulations, but it is assumed that these will attempt to prescribe in-house mediation and other procedures, which will exclude a claimant’s constitutional right to have access to the courts in order to enforce a right.

Such a system of assessing the "nature of an injury" cannot be perceived to be independent, impartial or fair.

The abolition of the Fund’s current statutory obligation to pay a successful claimant’s party and party costs in addition to the capital merely emphasises that the new system of dispute resolution intended by the Bill excludes claimants’ lawyers, claimants’ independent medical and other expert advisors and the courts. The constitutionality of this is questioned.

The proposed payment of general damages limited to R100 000.00 in a lump sum will not begin to address the immediate needs of those few accident victims who do qualify for the payment, particularly as the clear intention is to pay future loss of income by way of instalments over the rest of a claimant’s life (to age 65 or death). Both the lump sum payment and the instalments will be further subject to apportionment in the case of contributory negligence.

The Bill proposes that the Funds liability "to compensate the third party for future loss of income or support as contemplated in section 17(4)(b) shall not exceed R160 000.00 per year".

The Fund’s liability to compensate a claimant ceases upon the death of the claimant or when the claimant turns 65, whichever occurs first. In the case of loss of support it ceases when the deceased spouse would have turned 65 and/or if the surviving spouse should remarry or, in the case of a child, when that child attains the age of 21.

The wording of the proposed section indicates that the intention of the amendment is to pay future loss of income and support in instalments not exceeding R160 000.00 per annum. What is not clear is whether these annual payments will be spread over 12 months or paid quarterly or in one payment.

The common law tenet that loss of support cease on re-marriage is archaic and discriminatory, as is the current practice of applying a contingency deduction for re-marriage. In terms of the proposed legislation, many widows will find themselves in the position of never being financially able to resume a new life. In terms of the Bill, surviving dependents will be required to re-apply, every year, for loss of support and, if denied fair support, be obliged to institute proceedings, time and time again, in terms of whatever system is prescribed to attempt to enforce their rights, most likely without support from a lawyer. Re-marriage will not be a financially sensible alternative.

There are many circumstances where children, in terms of the common law, legitimately require support beyond the age of 21. For example, those children who are brain damaged, ill or for any physical reason will never be independent. It is discriminatory to prejudice those dependants. If a dependant loses both parents, such dependant will require assistance, year after year, to process annual claims for loss of support.

Similarly, the provision that loss of support terminate, when the breadwinner would have turned 65 is artificial. Many breadwinners do not have the luxury of retiring at some arbitrary, albeit, widely accepted "retirement" age.

As very few claimants will qualify for general damages, lump sum payments, in essence, will be done away with in terms of the Bill as presently drafted. The Portfolio Committee has already heard considerable evidence from a large cross-section of the public and stakeholders on this. Virtually every submission was against the payment of compensation in instalments.

The objections were broadly based on two grounds, namely, the Fund’s inability to administer claims and undertakings in terms of the current legislation and the devastating effect that the denial of lump sums will have on the lives of accident victims, particularly those who sustain serious, disabling injuries.

The right to claim future medical and related costs from the Fund is taken away from the claimant. Only the supplier or provider may claim. The Fund’s liability is further restricted to a "prescribed" tariff.

The proposed amendments, once again, impose huge additional, administrative burdens on the Fund. If the Fund has to review every claimant entitled to future loss of income annually (in addition to administering unsettled claims) and dealing with claims under the existing system (where there is already a substantial backlog which continues to grow) the additional cost to the Fund will be astronomical. Whatever savings the Fund hopes to achieve by eliminating attorneys from the system will be spent on medical panels, medical review panels and additional systems and staff.

In the case of passengers injured on duty, where under the current legislation their claims are limited to R25 000.00, claims from the Compensation Commissioner against the Fund will increase substantially, in respect of loss of income, past and future. Furthermore, it is apparent that the Compensation Commissioner will also be obliged to claim year by year in respect of future loss of income and support, thus materially increasing the administration functions of that office as well as the Road Accident Fund.

The stipulation that only providers can claim for costs incurred by a claimant will increase the volume of claims to be made on the Road Accident Fund dramatically. Instead of aiming at reducing administration the proposed amendments has the opposite effect.

A restricted element of no-fault compensation has been introduced with a provision to pay "emergency medical treatment" irrespective of negligence or wrongfulness on the part of any person. The definition of "emergency medical treatment" limits liability to "reasonable and appropriate emergency treatment by a prescribed provider of such service in order to stabilize the emergency medical condition".

The cap on passengers’ claims is removed and fixed compensation of R5000.00 is proposed for funeral expenses. Clearly the writers do not know what a funeral costs.

At present, the majority of taxi passengers do not qualify for any meaningful payment as they are denied general damages (as a result of the absence of a taxi permit) and many are unemployed and/or unable to prove loss of income.

In other words, currently, passengers in taxis in a single vehicle accident or one caused by the sole negligence of the taxi driver are unable to access even the limited compensation of

R25 000.00. The stringent limitation on general damages will exclude most passengers travelling in taxis, which do have valid permits. Those passengers in "illegal" taxis will remain excluded from claiming general damages, in any event.

If the intention is to eliminate the unfair discrimination against passengers then the requirement of a taxi permit should also be abolished.

The most exposed class of motorist will be the taxi driver/owner. In the case of a single taxi accident, each and every passenger will have a common law claim against the taxi driver and/or owner for the balance damages suffered not covered by the proposed legislation. Currently, there is very limited cover available for the taxi industry in respect of passenger liability. Under the proposed legislation, the cost of this limited cover is likely to become unaffordable. The cost of full cover will be prohibitive. Even in collisions involving more than one vehicle the negligent driver (albeit 1% negligence) will be exposed to substantial common law claims, both from passengers in the vehicle driven by him or her and from the occupants of the other vehicle.

Government has confirmed its intention to proceed with the taxi re-capitalization scheme. Without sufficient protection from the Road Accident Fund and/or private insurers, owners of "new" taxis will be vulnerable to having their vehicles (probably their major asset) being attached for sale in execution to meet judgments obtained for personal injuries suffered by road accident victims.

Bus and other private passenger transport companies will be exposed to substantial common law claims and will be obliged to try to obtain suitable liability cover to protect them from claims arising from the negligence of their employees (if such cover can be found at an affordable cost).

The road transport industry will be obliged to take out additional insurance in order to protect their businesses from insolvency arising from a second’s inattention on the part of an employee. The tourism industry will be even more exposed.

The additional costs for cover will have to be passed on to the end user in order for those industries to continue to trade. The ripple effect will be considerable.

All commercially active road users will have to protect themselves, financially, from the risk of injury in circumstances where it will not be possible to recover in terms of the common law. Currently, because of the cover in terms of the Act, such protection is relatively affordable. If the current legislation is passed the cost of replacing the protection lost from private insurers is likely to be beyond the reach of all but the extremely wealthy.