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The Danger of Direct Claims

Road Accident Fund Attorney

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 it boils down to when you look at the situation with road accident victims being not only encouraged to submit their claims directly to the Road Accident Fund but further, in some instances being solicited to do so where they already have competent legal representation.

The RAF’s interference in an existing attorney & client relationship is highly irregular at best, unethical and possibly actionable at worst. This is however a topic all on it’s own. Let’s for now just look at a situation where, by whatever means, the RAF has seduced a claimant into submitting their claim directly (so-called “direct claims”).

In order to understand just some of the problems with direct claims, you first need to look at what the position is of a legally represented road accident victim.

An attorney is professionally and ethically bound (amongst a myriad of other duties) to:

  • Represent his/her client to the very best of their professional ability
  • Boldly and fearlessly advance their client’s case
  • Fully investigate and prepare the case, exploring every possible avenue to identify all potential losses
  • Refer the client 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 the client’s case to it’s eventual conclusion and to secure the best possible outcome taking all relevant circumstances into account

Where an attorney falls short in carrying out his/her professional and ethical duties, a client:

  • Has the option to have recourse to statutory regulatory authorities to investigate and, if warranted, sanction him/her; AND/OR
  • Can 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
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By contrast, the position of direct claimants is perilous:

The RAF will not:

  • Boldly and fearlessly advance the 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

In addition, in many instances the RAF will:

  • Often approach an injured claimant whilst he/she is still recovering in hospital and is in a vulnerable state, in order to secure their “direct” claim (it is worth noting that the Legal Practice Council considers touting of this nature to be unprofessional conduct, which is again an illustration of the higher standard of conduct demanded of an attorney)
  • Offer objectively inadequate compensation, which a claimant accepts without independent and competent advice and in the mistaken belief that it is the best possible outcome
  • Fail to finalise a claimant’s claim timeously, resulting in prescription (expiry) of their claim

Where this occurs, the consequences for the relevant claims handler(s) are minimal or in some instances non-existent. It is then incumbent on the claimant to attempt to hold the RAF liable in terms of the common law, which is a course fraught with it’s 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. Just one example of that is the matter of Khumalo v RAF – click on this link to read a copy of the RAF’s Plea to the Plaintiff’s Particulars of Claim (specifically paragraph 12) where this is explicitly set out.

The RAF will most often bang the drum of a claimant avoiding “exorbitant” legal fees when enticing direct claims. It’s a deliberately misleading mantra:- an attorney will in the overwhelming majority of cases only charge a fee if the case is successful, and further, even taking the payment of legal expenses into account, a claimant is bound to end with a damages award which 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.

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