Road accident claims: An attorney’s response
The Durban attorneys who specialise in Road Accident Fund cases were none too pleased about some of the stuff the Fund bosses said about them last week in Consumerwatch.
Quick recap - I attended a media briefing hosted by the RAF in Durban last week - in particular they wanted to get a message to the more than 12 000 road accident victims in KZN who lodged a RAF claim four, five or more years ago, without resolution, two thirds of them via attorneys.
And the message was that they don’t have to go through their attorney to get their money - they must make direct contact with the RAF’s Durban office in the old Embassy building in the CBD as soon as possible to get their claims finalised and finally get a pay-out.
The Fund representatives stressed that road accident victims are in many cases far better off approaching the RAF directly because their cases are settled quickly - in around four months - and they get their full pay-out from the fund, without having to surrender a big chunk of it to their attorney.
It’s in the attorneys’ interests to drag out a case, the assembled journalists were told - they made more more fees that way.
Listen to Wendy's on-air segment below.
An attorney's take
Durban North-based RAF attorney Michael Friedman didn’t take kindly to the attorney bashing, saying the attorneys were a thorn in the Fund’s side in fighting for appropriate pay-outs for their clients.
Yes, he said, if you have a simple claim - a broken leg as a result of a car crash from which you will fully recover, for example, and you are due medical and hospital expenses and maybe a few months’ loss of earnings, but you don't qualify for what are known as “general expenses”, you could handle it yourself and it could be finalised fairly quickly.
Not so with complicated, serious injury cases involved permanent impairment and loss of earnings, he said.
As for those 12 000 people whose RAF claims haven’t been finalised four, five or more years down the line, here’s what Friedman had to say: "Their injuries might have been that serious that it takes a number of years to obtain all the various reports, and the RAF and their own attorneys are dragging their feet.
"I think it's a deliberate ploy on their part to delay matters. In fact, they could save a large amount of money that they pay out in legal expenses by settling claims earlier and not having to incur those costs of advocates on both sides when a case gets to court.”
It’s not in an attorney’s interests to drag a matter out, Friedman said. “It’s not in their interests. They’ve spent money in obtaining medico-legal reports. An attorney is going to do his utmost to settle a claim as soon as possible. The Fund’s own attorneys are attempting to delay matters as long as possible so they don’t have to pay.”
The attorney cautioned accident victims from assuming that the Road Accident Fund’s staff and attorneys would be representing them and their interests.
"Under-settled' claims
In the bigger cases, he said, a lot of the claims are ‘under-settled’ by the RAF, or the claim was allowed to prescribe.
The claimant’s attorney then sues the Fund, which has in many cases in Court raised the defence that they - the RAF - are not there to represent the claimant - in law they can only act for themselves; they cannot wear two hats; there is no mandate between them and the claimant; and the claimant represents themselves.
So the attorneys are saying, yes, it’s fine for road accident victims to lodge claims directly with the RAF in simple matters, but in the serious cases, especially involving long-term impairment and loss of earnings, they are better off going the lawyer route. Because proving your claim is not a simple matter.
In a brain injury case, for example, Friedman says, the attorney must obtain the clinical notes from all the various doctors, source radiological reports and hospital records, liaise with a neurosurgeon, obtain a neuro pscyhologist's report, involve an occupational therapist, then an industrial psychologist, and then the attorney must collect all the information relating to the claimant's earnings, and finally get an actuary’s input.
"And then calculate what they call contingencies to be applied to future loss of earnings..”
Bottom line - If you have a simple RAF claim - and bear in mind that minor road accident injuries such as whiplash and bruising doesn’t qualify anymore - then it’s a good idea to approach the RAF directly to lodge a claim.
But your injuries are serious, and especially if they are permanent, you’d do well to engage an attorney.