The preamble to the Bill states that its essence is to create a “reasonable, equitable and sustainable, effective benefit system which inter alia provides financial support to reduce the income vulnerability of persons affected by injury or death from road accidents. In our view, the Bill and the envisaged scheme which it seeks to establish are fatally flawed and fail to achieve any of these objectives.
On the contrary, it will result in extreme hardship on future victims of road accidents, particularly those who are most vulnerable in society, including children, widows and the poor.
“Reasonable” and “equitable” go hand in hand. There can be no rationale basis to suggest that it is “reasonable” or “equitable” to support condemning seriously injured children to a lifetime of abject poverty and suffering , with no prospect of achieving a reasonable standard of living; arbitrarily limiting the benefits payable to the widows and dependants of deceased breadwinners; further burdening our already failing public healthcare system by forcing victims without medical aid to use public hospitals; the total abolition of any claim for general damages for pain and suffering - not even for catastrophic injury. This contrary to the Satchwell Judicial Commission of Inquiry recommendations.
We have deep reservations about the Bill’s impact - particularly the drastic move to a “no fault” system for injuries and deaths arising from motor vehicle collisions.
How can it ever be acceptable that a drunk driver or a person that drives recklessly should be able to claim. This is morally reprehensible and can never be supported.
To make matters worse, section 35 totally removes any civil action for damages in respect of bodily injury or death of any person caused by or arising from a road accident against the owner or driver. This means that the guilty get off scot free and is totally unacceptable.
We are also opposed to the purposeful and calculated infringement on a victim’s right to legal representation and access to the courts. This is caused by both the exclusion of any right to recover legal expenses, as well as the extremely limited rights of internal appeal and review provided for.
Section 64 reads, “Unless otherwise provided in this Act, the Administrator shall not be liable to contribute to the costs of an injured person, claimant or beneficiary, including his or her medical and legal costs, to prepare and submit a claim or an appeal or to meet any requirement in this Act.”
The main reasoning appears to be the affordability of the RAF scheme as opposed to the new benefit scheme. How anyone can think that the new scheme will result in a cost saving is totally beyond us. The inclusion of all those drivers and owners who previously could not claim due to reckless, negligent driving or being under the influence of alcohol will substantially increase the number of claimants. The approximately 65 per cent of drunk drivers causing devastating or fatal injuries will now have equal access to claim benefits. This is wrong!
The ACDP also has major questions around the actuarial costing of this Bill - with RABS calculated at 136.7 cents per litre compared to the 169 cents per litre required for the RAF. As a simple exercise, almost every present claim involves two or more motor vehicles, except in the case of pedestrian claims.
This means that conservatively speaking, the amount of claims will in all probability double, when those previously excluded are now allowed to claim. The net result is that the injured innocent victims will be made to pay for guilty drivers’ actions with reduced compensation, and no claims for legal and medical advice in preparing claims.
In addition, it appears that the reasoning related inter alia to concerns that lawyers are charging too much, and are a drain on the present RAF. It is totally disingenuous to lay the blame for problems at the RAF solely at the feet of lawyers. Lawyers provide an essential service in preparing and lodging claims for litigants against the RAF. In contingency matters, legal firms have to carry extensive costs of experts in preparing medico-legal reports - which are only recoverable many years later.
If this is the case, then as the RAF, stop using private lawyers, and rather build the capacity of state legal services.
The fault rather lies largely with fraud and corruption, as well as with incompetence and incapacity when dealing with these claims.
Limited resources should rather be spent on improving the present system by eradicating fraud and corruption, and measures to prevent or reduce motor collisions. How is it justifiable that the RAF spent an estimated R500 000 per month hiring 300 chairs for their offices. This system will result in a substantial increase in the fuel levy - to the cost of all road users - should it be implemented.
The ACDP does not support this Bill. The right to claim due and proper compensation following a motor vehicle collision, particularly where one is not at fault, is a guaranteed constitutional right which cannot be sacrificed on the altar of government incompetence and maladministration.
ISSUED BY: STEVE SWART MP
4 December 2018