What is a loss of support claim?
When a family’s breadwinner (income-earner) responsible for taking care of them passes away or is injured to the extent that they can no longer earn an income, the dependants may suffer a loss of financial support. If the death or injury was wrongfully caused, the dependants may institute a loss of support claim to claim compensation.
How does one claim?
If a breadwinner passes away due to injuries suffered in a motor vehicle accident and he or she was legally obligated to provide financial support to a spouse or children at the time of the accident, those dependants may be able to claim compensation from the Road Accident Fund (RAF).
If the death was due to the negligence of another person resulting in personal injury, the dependants may hold the responsible party liable. They can then institute legal action against that party, who may have insurance or be represented by their employer or even the state in some cases.
If you are uncertain who is responsible, contact a personal injury attorney to give you advice on the claims process and help determine who is liable. Click Here To Learn About Claims Process
What are the requirements?
To be successful with a claim for loss of support the dependant needs to prove:
- The deceased (injured) had a duty or legal obligation to support the dependant;
- The deceased (injured) indeed supported the dependant at the time of his or her death (injury); and
- The dependant has lost the support due to the death (injury) of the deceased.
An example of a legal obligation would be a parent or guardian who is required to support his or her children. In the case of underage dependants, the claim would be made by the victim’s spouse or legal guardian on their behalf.
Spouses have a reciprocal legal obligation to financially support each other. There are recent cases where the court found that this also applies to life partnerships, so the dependant and the breadwinner don’t have to be married. In these circumstances, although it is not a requirement, it is advisable for partners in a relationship to have some sort of agreement in place as evidence of any financial commitments they have made to each other, which can help them prove their claims.
Are there limits to what can be claimed?
Loss of support claims against the RAF are subject to an annual earnings limit and is “capped”. In 2008, the limit was set at R160,000 per annum. This value is periodically adjusted for inflation and as at 30 April 2021 was set to R302 731 per annum. This means that if the income lost was R500 000.00 per year, the compensation would only be provided up to the maximum yearly limit. This limit has been put in place to help the RAF manage all their financial obligations.
Dependants’ claims may also be limited by taking into account their circumstances and age at which the financial obligation would have stopped. Legally a person is considered to be an independent adult and start earning their own income after age 18, however it is common for parents to assist their children financially for a few more years while studying and finding their feet.
Other factors that influence a claim include the deceased (injured person’s) income, age, earning potential and number of dependants. An attorney will be able to help you determine and prove your loss.
How do I prove my claim?
It is necessary to prove liability as well as the amount of a claim. This is often divided into two different phases, called merits and quantum. An attorney can assist you by instituting legal action and obtaining evidence, such as documents and expert reports, to support your case. To prove the quantum of a claim medico-legal experts such as Educational Psychologists, Industrial Psychologists, Forensic Accountants and Actuaries can provide their opinions to the court. They can make use of information such as family history, academic and professional qualifications, salary advices, bank statements and even maintenance orders.
If you are uncertain whether you have a claim or how to start, contact Paul du Plessis Attorneys for a free telephonic consultation at 012 809 1588 or send an e-mail to paul@pauldup.co.za
Written by Dané du Plooy