Would you allow somebody who owed you money to have the sole power to decide:
- whether they owe you anything at all
- if so, how much they owe you
- and finally, the terms on which you will be re-paid?
Sounds nonsensical doesn’t it?
And yet this is exactly what the current RAF strategy boils down to. Road accident victims are being encouraged to submit their claims directly to the Road Accident Fund, which is the organisation against which they need to claim.
In some instances, victims are even being solicited to make direct claims where they already have competent legal representation.
The RAF’s interference in existing attorney and client relationships is highly irregular at best. At worst, it’s unethical and possibly actionable. However, that’s a topic all of its own.
The position of direct RAF claimants
The position of direct claimants is perilous.
The RAF is notoriously mismanaged and is under strong pressure to perform better. It is also facing severe financial constraints and a massive backlog of unpaid claims.
In this context, it’s clearly not in the RAF’s interests to:
- boldly and fearlessly advance each claimant’s case
- fully investigate and prepare the case, exploring every possible avenue to identify all potential losses
- be industrious in ensuring that the full extent of the claimant’s injuries are thoroughly investigated by all appropriately qualified medical specialists.
Soliciting direct claims from vulnerable patients
The RAF is know to approach injured claimants while they are still recovering in hospital and in a vulnerable state, in order to secure their “direct” claim.
It’s worth noting that the Legal Practice Council considers touting of this nature to be unprofessional conduct for attorneys.
Offering unfairly low claim settlements
The RAF may offer objectively inadequate compensation.
An accident victim who has made a direct claim may accept this type of settlement offer without independent, competent advice, in the mistaken belief that it represents the best possible outcome.
In recent years, claim settlement amounts have actually diminished as the number of direct claims has risen. For details, see our separate article on the dangers of direct claims.
Delaying claims until they’re prescribed
The RAF has been responsible for failing to finalise claims timeously, resulting in prescription (expiry) of these claims.
Lack of consequences for the RAF
Where unfair outcomes occur, the consequences for the relevant claims handler(s) are minimal or non-existent. It is then incumbent on the claimant to attempt to hold the RAF liable in terms of the common law.
This is a course fraught with its own difficulties (and which certainly couldn’t be embarked on without legal representation if there is to be any reasonable prospect of success).
What is most objectionable is the fact that the RAF is on record for expressly denying that it owes any duty of care to ensure the proper prosecution of a claimant’s claim.
How it differs to have independent legal representation
Consider how the situation differs if a claimant has suitable, independent legal representation.
All attorneys are professionally and ethically bound to:
- represent their clients to the very best of their professional abilities
- boldly and fearlessly advance their clients’ cases
- fully investigate and prepare each case, exploring every possible avenue to identify all potential losses
- refer clients for a range of medico-legal assessments, in each instance identifying and instructing the appropriate team of experts to fully canvas the long-term prognosis of each injury
- timeously prosecute each client’s case and secure the best possible outcome, taking all relevant circumstances into account.
Where an attorney falls short in carrying out his or her professional and ethical duties, a client has recourse against that attorney.
For example, a client can prompt statutory regulatory authorities to investigate and, if warranted, sanction the attorney.
A client may also institute civil action for the full recovery of any losses occasioned by the dereliction of duty, in which regard attorneys hold professional indemnity insurance cover.
Debunking the RAF’s argument that direct claims save costs
The RAF bangs the drum of claimants avoiding “exorbitant” legal fees when enticing direct claims.
This is a deliberately misleading mantra.
The overwhelming majority of attorneys charge a fee only for cases that are successful.
Further, even taking the payment of legal expenses into account, a claimant is bound to end with a damages award that exceeds what the RAF would be likely to pay out to them directly, by multiples.
Without question, the best position to be in when fighting against a vast parastatal such as the RAF is to have somebody with the requisite skills and experience doing battle for you and with your best interests at heart.
At DSC Attorneys, all our attorneys are highly experienced in personal injury law and offer many years of combined experience in handling Road Accident Fund claims.