Fault base vs no fault

Proposals to reform the Road Accident Compensation legislation poses a challenge to the disability sector – and we need to stand up and be counted in order to protect our interests and our rights. Our constitutional democracy calls on us to participate in the shaping of new legislation especially where it impacts on the disability community and here’s an ideal opportunity: I urge all road accident victims who are now people with disabilities (PWD) to play a role in shaping their destiny.

The Proposed Amendment to the Road Accident Fund are briefly the following:
Removal of limitations of claims in respect passengers whose driver was at fault -the so called R25 000 claims;

Payment of emergency medical services within the so called “golden hour”, which is the period within which treatment must be provided to minimise or avoid loss of life or disablement;

  • Removal of liability for secondary victims
  • Removal of party to party costs?

Introduction of a cap on what could be claimed under general damages;

These proposals are not new, they were researched and articulated by Judge Satchwell in the Report on the Road Accident Fund Commission 2002.

The second process is to propose to Cabinet a new system mooted by the Report of the Road Accident Fund Commission (2002)(also known as the Satchwell Report). The thrust of this proposal is the efficacy of the fault based system and no fault system. The no fault system is where a victim of motor vehicle accident is entitled to claim irrespective as to who was wrong in causing the accident, and there are no victims who are excluded, as long as the cause of the accident is motor vehicle related and there are injuries.

The Satchwell Report is very strong in the support of a no fault based system and basing the processes in the social security sector rather than liability insurance. Amongst the features mentioned are:

  • Every one is eligible to claim - drivers, passengers and pedestrians;
  • There should be limit of benefits of what could be claimed;
  • Benefits should not be reduced by entitlements to accident insurance payments, retirement pension that an individual has taken;
  • No once-and-for-all lump sum payments in respect of economic loss damages. Funeral benefits and life enhancements benefits are the only exceptions;
  • Periodic payments in respect of loss of income, loss of earnings and loss of support.

The proponents of fault system raised the following issues to justify their points:

  • The system will be inefficient and expensive,
  • The reduction of benefits to innocent road accident victims is unfair;
  • Delinquent drivers will be subsidised by innocent victims and entitled to claim for their wrong doing;
  • Provides victim with control through legal representative over actions of RAF administrator;
  • Enforces the Law e.g. Road Accident fund Act through independent courts.

On the other hand the proponent of no fault system raised the following issues:

  • Litigation is expensive and excludes the poor;
  • Litigation is protracted while the victims benefit nothing until the finalisation of the case;
  • Substantial amount of funds meant for victims goes to lawyers, medical practitioners and other professionals;
  • Equity, reasonableness and sustainability is guaranteed.

My view is that the debate is centred around three issues: Discouragement; Replacement and Constitutionalism. The victims and people with disabilities must and should take the centre stage.

I’ll be looking at those three cornerstones of the debate in a future issue of Rolling Inspiration. In the meantime: ponder the issues and put up your hands!

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