Road Accident Fund claims: What is a serious injury?
If you were injured due to the negligent driving of another person, you could claim compensation from the Road Accident Fund (RAF). The amount of compensation is influenced by the extent and severity of your injury. An injury can affect different aspects of your life, including your financial, medical, physical and emotional wellbeing. For more information on what you could claim see our article.
Financial loss and medical expenses can be based on career and employment history, bank statements, invoices, quotes and medical reports. But what about the emotional aspect of a claim?
General damages
In the past, general damages (also referred to as “claims for pain and suffering”), were easily awarded as part of a claim. The RAF paid compensation even in the event of light or temporary injuries. This however placed a serious financial burden on the RAF, as the purpose of the fund is to provide relief especially to those victims who suffer severe injuries and are affected for life. As a result the Road Accident Fund Act was amended to include certain requirements to determine when a victim would qualify for compensation.
The RAF compensates victims of motor vehicle accidents by way of “general damages” for pain and suffering only in the case of serious injury. If you have wondered what exactly counts as serious this article provides a brief explanation.
What are the criteria for a serious injury?
The RAF considers an injury “serious” based on guidelines provided in the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Sixth Edition. These guidelines, called the AMA Guides for short, provide criteria for determining an injured person’s so-called “Whole Person Impairment” (WPI). WPI is expressed as a percentage of the body.
The Minister of Transport set the threshold percentage for determining serious injury at 30%. This means that a road accident victim must be assessed as being 30% Whole Person Impaired to qualify for an award of general damages.
Who provides a serious injury assessment?
The assessment of a serious injury can be made only by an appropriate medical specialist. The specialist is required to base the assessment on the AMA Guides.
If an injury isn’t rated as 30% WPI in terms of the AMA Guides, the medical practitioner could alternatively apply a “narrative test” to determine whether the claimant may still be entitled to compensation for general damages.
In this case, an injury can be classified as serious if it has resulted in:
- Long-term impairment or the loss of a body function;
- Permanent, severe disfigurement;
- A serious long-term mental or behavioural disturbance or disorder; or
- The loss of a pregnancy or unborn child.
Examples of road accident injuries that are and aren’t considered “serious”
Some examples of injuries that may meet the 30% threshold are disabilities, amputations, permanent brain damage and paraplegia.
Certain common road accident injuries have, by regulation, been classified as not serious, unless there are complications. These include whiplash, sprains, torn ligaments, the loss of fingers or toes and superficial wounds. In other words, injuries that does not result in long term disability or permanent loss.
When should an assessment be done?
A provisional assessment can be made when a claim is lodged. In some cases, it may be difficult to know at the beginning of a claim whether there will be any serious disability and therefore an attorney specialising in personal injury cases will be best suited to assist you in claiming. There are also certain time-periods that have to be adhered to, to ensure that a claim does not prescribe (fall away).
Ideally an assessment can be made only after the victim has reached maximum medical recovery. In other words, the person’s injuries must have stabilised. They shouldn’t have notably improved or deteriorated for a period of several months prior to the assessment. Of course, a victim cannot be expected to have their claim drag on for years and therefore a court will look at history and extent of recovery to come to a fair conclusion.
A medico-legal expert can do an assessment and provide a report with their findings and prognosis based on their experience with similar injuries and the patient’s history of recovery.
Personal injury attorneys
An experienced personal injury attorney can assist you with claiming the maximum amount of compensation. If you need advice on a Road Accident Fund claim, feel free to contact Paul du Plessis Attorneys at 012 809 1588 or send an e-mail to paul@pauldup.co.za
Written by Dané du Plooy