NEW SECTIONS AND REGULATIONS OF THE RAF ACT SINCE 1 AUGUST 2008 CHALLENGED:

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1 CHALLENGED: Section 17(1)(b) 17(1A)(a) & (b) NEW SECTIONS AND REGULATIONS OF THE RAF ACT SINCE 1 AUGUST 2008 Explanation General damages: only payable for serious injuries 1. The assessment of a serious injury will be done in accordance with the AMA Guides, and must result in a 30% or more WPI (whole person impairment) before the third party will be entitled to general damages. 2. If the WPI is less than 30%, then it can still be assessed as serious if it: Resulted in a serious long-term impairment or loss of a body function Constitutes permanent serious disfigurement Resulted in a severe long-term mental or severe long-term behavioural disturbance or disorder Resulted in the loss of a foetus 17(4)(c) The annual loss of support/income will be limited to R ,00 per annum. The amount is adjusted quarterly to counter the effect of inflation. The amount of the limitation has increased as follows: 31 July 2008 R ,00 31 October 2008 to R ,00 (4,17%) 30 January 2009 to R ,00 (0,24%) 30 April 2009 to R ,00(1,19%) 31 July 2009 to R ,00 (2,2%) Total increases for one year : R12 806,00 (8%) 31 October 2009 unknown 17(4B)(a) 17(4B)(b) Past and future non emergency medical expenses will be limited to the Uniform Patient Fee Schedule ( UPFS ) (which is public hospital rates by full paying patients) approximately a 1/3 of private rates A higher rate is applicable for emergency medical treatment. The tariff for emergency medical expenses was published in Government Gazette nr on 21 July A third party is still not allowed to exercise his/her common law right to claim any damages from the owner or the driver of the motor vehicle, except if the RAF is unable to pay or for secondary emotional shock victims in terms of section 19(g). Regulation Explanation 3 Assessment of a serious injury (to qualify for general damages), including challenges of: 1. the list of non serious injuries to be published 2. the limit of 30% WPI

2 3. Use of the AMA Guides 4. Serious Injury report form (RAF4) 5. Appeal tribunal for any disputes arising from the RAF4 5(1) The rate at which non emergency medical expenses will be paid by the RAF in terms of Section 17(4B)(a) (the UPFS rate). 5(2) The rate at which emergency medical expenses will be paid by the RAF in terms of Section 17(4B)(b), and as published in the Government Gazette on 21 July (1) The claim must be lodged with the RAF branch closest to where the accident occurred or where the third party resides. 6(2) The RAF will be entitled to require the third party to submit him/herself to questioning or to furnish a further sworn statement to the RAF. Summons may not be issued before the third party has submitted him/herself to the questioning or has made the sworn statement, or both. 7 The new RAF1 (claim form), RAF2 (suppliers claim form), RAF3 (insured driver statement form) and RAF4 (serious injury assessment report form) which form part of the Regulations SECTIONS NOT CHALLENGED: 17(2) The provision that the RAF will pay the third party s party and party costs was removed from the act. Unless Summons is issued no costs will be recoverable from the RAF. 17(4)(a)(ii) The RAF can pay a service provider directly for services rendered in terms of an Undertaking. 18 (1) The limitation of R25 000,00 in certain passenger claims were removed. All passengers will now be entitled to unlimited claims. 19 (b) The exclusion of claims for passengers who were members of the same household or passengers conveyed for reward on motor cycles were removed, and these passengers will now be entitled to claim from the RAF. 19 (g) Emotional shock claims of secondary victims are excluded. APPLICATION LSSA AND 10 OTHERS / RAF AND MINISTER OF TRANSPORT TIMELINE 27 February 2009 Notice of Motion served on the Respondents 20 March 2009 Notice of Intention to Oppose filed by the Brugmans Inc, acting on behalf of the RAF 25 March 2009 Notice of Intention to Oppose filed by the State Attorney, acting on behalf of the Minister of Transport 25 March 2009 Record filed by the Minister of Transport 14 April 2009 Record filed by the RAF 8 April to 29 May 2009 Various Notices in terms of Rule 30A(1) were served on both Respondents calling for filing of further records 18 June 2009 Supplementary record filed by the Minister of Transport

3 20 July 2009 Brugmans Inc withdraws as the attorneys of record for the RAF and Bell Dewar Attorneys is appointed as the new attorneys of record 3 August 2009 Supplementary Record filed by the Minister of Transport 5 August 2009 Supplementary Record filed by the RAF 21 August 2009 Amended Notice of Motion and Supplementary affidavit filed on behalf of the LSSA 15 September 2009 Supplementary affidavit filed by the 4 th Applicant (the National Council for persons with physical disabilities in South Africa) 30 September 2009 The North Gauteng High Court grants leave to 7 intervening parties (all road accident victims) to join the LSSA and 3 others as co-applicants in the application against the Respondents 5 October 2009 Due date on which the Respondents were supposed to file their Answering Affidavits, which have to date hereof not been received 6 October 2009 Rudman Attorneys is appointed as the new attorneys of record for the Minister of Transport THE WAY FORWARD 1. The answering affidavits by both Respondents are still outstanding: a. The First Respondent (Minister of Transport) anticipates that it will file its Answering Affidavit by early b. The Second Respondent (RAF) suggested that it will file its Answering Affidavit by 29 January Once the answering affidavits have been filed the Applicants will file replying affidavits. 3. The parties will then approach the Judge President of the North Gauteng High Court to allocate a preferential date for the hearing of the application in light of the importance thereof to many stakeholders. 4. A date for the hearing of the application will hopefully be allocated toward the middle of If the Applicants are successful, the matter will be referred to the Constitutional Court for confirmation. a. Waiting period trial date in CC? IMPORTANT POINTS TO REMEMBER IN THE MEANTIME: Prescription For claims under the new RAF act, prescription will start playing a role: in unidentified claims from 31 July 2010 in identified claims from 31 July 2011 RAF4 form In claims for general damages, the RAF4 form must be lodged with the RAF before expiry of the: Two (2) year period in respect of unidentified claims Three (3) year period in respect of identified claims RAF branch for lodgement

4 Regulation 6(1) provides that the claim must be lodged with the branch nearest to the location where the accident occurred; or the claimant resides. Signing of the claim form The claim form can no longer be signed by a legal representative, but only by the third party Legal costs Summons will have to be issued on all matters to ensure that legal costs (both fees and disbursements) are recovered from the RAF. WHAT TO DO IN THE INTERIM 1. Which claims to take on? General damages (30% or more) Loss of support Loss of earnings 2. For clients not qualifying for a claim at present you can either: a. Take a formal instruction and ask the client to pay the disbursements to get the accident report and RAF medical report completed, lodge the claim and then wait to see what happens. b. Not take an instruction, but keep a database of such clients, and once the LSSA Application has been finalised, you can then consider whether you want on the instruction or not. 3. Keep prescription in mind for claims which will be held in abeyance. 4. Be frank with your client in respect of the limitations imposed on his/her claim as a result of the new act and the reduced compensation (if any) that your client will receive in terms of the new act. 5. A claim should be lodged with the RAF in terms of the old act (disregarding the amendment act) and in terms of the new act. 6. Write to the insured driver/wrongdoer and inform him that should Section 21 be declared unconstitutional, that your client will claim the balance of his damages from him. 7. Do not settle claims in which the quantum could be different if some of the provisions of the RAF act are found to be unconstitutional. Issue Summons and then wait for the outcome of the LSSA Application. WHICH INJURIES QUALIFY FOR 30% OR MORE IMPAIRMENT? Whiplash treated with medication and physiotherapy 0% Hip dislocation and relocation with good recovery 1% Rotator cuff injury 4% Migraine headaches after mild traumatic brain injury 4% Fracture of the middle finger 6% Hip fracture, surgery and 3,3cm shortening of the leg 12%

5 Disfigurement of the nose with scar on cheek 17% Amputation of two fingers 17% Midfoot amputation 18% C5 and C6 fractures with neck fusion levels C4 to C7 29% Amputation 3cm below the knee 29% Traumatic brain injury 35% T10 paraplegia 57% C4 Quadriplegia 97%