The RAF was introduced to enable innocent victims, who have no recourse against uninsured or negligent motor vehicle drivers, to receive some type of compensation. However, over time, several issues arose with regards to the affordability and sustainability of the system, including long settlement delays and a disparity between the income of the scheme and its liabilities.
RABS aims to address many of the RAF's shortcomings by expanding access to include more people who are exposed to the daily risks associated with road transportation on a no-fault basis. It aims to optimise resources in favour of those with serious injuries; facilitate access to appropriate and timely medical care to decrease the impact of injuries sustained; and minimise the spend allocated to minor injuries.
One of the major benefits of the RABS is the no-fault-based system. This means that for the claimant to be successful there is no longer the need to establish that the damage or loss was a result of the claimant's own negligence. There are exceptions, such as the driver cannot be under the influence of alcohol or any illegal substance, the injury or death cannot be self-inflicted or arise from a hijacking/attempted hijacking of a vehicle, the vehicle driven cannot be stolen or unregistered and the driver must have a valid driver's licence. The claimant's recoverable damages may also be reduced by the extent to which the claimant's fault contributed to the accident.
This new system should be welcomed. Under the previous fault-based system, there were massive delays in compensation for victims as they had to prove fault on the part of the driver, resulting in a lengthy litigation process that increased costs for both the victim and the RAF.
The RABS aims for structured and defined benefits to the seriously injured. The idea behind this is to encourage the injured person to return to work by not providing a benefit to the full extent of the loss, but rather incentivise them to undergo rehabilitation.
The settlement of claims between the two systems also differs tremendously. The RABS will make payments on a monthly basis and not a lump-sum payment, as is the case currently under the RAF settlement structure. This should help to eliminate criticism that dogged the RAF of one-off payments that may overcompensate for minor injuries and under-compensate for serious injuries.
The RABS also pays health-care providers directly, not the victim, as is the case with the current system. The RABS offers an income support benefit to victims limited to R192 000 per annum, whereas under the old system, income and support was limited to R160 000 (although higher amounts have been awarded in court), irrespective of the actual loss.
Importantly, no payment will be made under this system for general damages such as pain and suffering, and disfigurement. Under the RAF, large amounts of public money went towards these non-financial losses, which could not be as accurately quantified as the actual monetary losses, such as medical expenses and loss of income.
A very welcome development is that benefits will now be available to all categories of road users (drivers, pedestrians, motorcyclists, cyclists and passengers) and no road user will be excluded from the system, whereas the old system had numerous exclusions, for example, members of the same household as the driver and paying motorcycle passengers.
Another important distinction between the two systems is the payment of legal costs. Under the old RAF Act the claimant was entitled to claim party-to-party legal costs if he accepted an offer from the RAF. Under the Amendment Act, the RAF does not contribute to the claimant's legal costs if the claimant settles with the RAF. To ensure payment of party-to-party costs, the claimant will have to issue summons against the RAF and if found liable to compensate the claimant, the RAF by virtue of Rules of Court, will have to contribute to the legal costs. This increased the RAF's legal bill tremendously. Under the RABS no legal costs will be entertained.
Even though the RABS does address many of the concerns of the RAF, personal and private occupational insurance will still be encouraged, as it is evident that with the limited benefits available, any shortfall will have to be covered by additional insurance.
Exactly how successful this new scheme will be remains to be seen, but whether the changes are welcomed by road users or not, it is the reality of the near future and all citizens need to understand how the RABS works in order to obtain the most out of the new system.
