Victims of the many accidents deserve to be compensated
The numerous accidents that occur on Kloof Nek Road in the City Bowl area, which include two extreme incidents within a year of each other, are making many people rightly concerned about their safety when using this road.
The Cape Jewish Chronicle spoke to Henry Shields of Shields Attorneys, a long-standing attorney whose areas of specialisation include personal injury claims (also known as delictual claims).
Aside from his legal knowledge, Henry also has experience driving extra-large tour buses, and he maintains that these accidents should not be happening at all. He explains that, “Large trucks and busses have a range of regular and emergency braking systems, designed to prevent constant use of the foot brake to control speed when travelling down a road with a descent of the kind we have on Kloof Nek Road. Constant use of the foot brake will burn it out. More than that, the amount of braking needed is minimal with the right gear selection technique. But this only happens if drivers are trained properly, and if vehicles are maintained in the way they should be. Unfortunately, South Africa is way behind in terms of driver training.”
Who pays compensation to the victim of a vehicle accident?
When a person is affected by an accident of this sort – through a physical injury or the death of a family member, or because of damage to one’s possessions, such as a car – the law makes provision for compensation. While money can never replace a loved one, it can certainly assist other family members to cope with the many costs that will arise, and to pay for other assistance they may need as a result of the accident.
Henry explains that the role of the Road Accident Fund (the RAF) is crucial in this regard. “The RAF is a fund administered by the State and funded through levies on petrol sales, and it caters for physical injury or fatalities arising from a motor vehicle accident. The total amount claimed as compensation comes from the Fund; a victim cannot sue the owner or driver of the vehicle that caused the accident for compensation,” he explains.
As regards damage to a vehicle or other possessions (material damages), one should sue either the driver of the vehicle or their employer or in some cases the owner of the vehicle.
The same applies to damage caused to buildings as a result of the accident. In the Kloof Nek Road accident cases, structural damage occurred to buildings and to the front gardens of some of them, so the insurance company that provides insurance cover to the building would be able to recover the cost of the repairs from the driver (unlikely because this person will probably not have the assets needed to pay out a claim like this), or from the driver’s employer or the owner of the vehicle. The claim in this instance could fall within the ambit of negligence on the owner’s part if the vehicle had not been suitably maintained, or the employer of the driver might be liable.
In addition, the City may claim for the cost of repairing or replacing traffic lights or road signs, or for the cost of repairing damage to the road surface or the pavement.
Who should start the process for putting in a compensation claim?
Considering the type of injuries a person could suffer in an event of this sort, the family of a victim should set the process in motion as soon as they can. According to Henry, “If it’s clear that the person is injured to such an extent that they cannot conduct their affairs, the attorney will apply to the High Court for the appointment of a curator ad litem to act on the person’s behalf. The costs involved in this will be covered by the RAF, so the family will not have to find the funds to pay for this process.”
Like many Capetonians, Henry believes that more should be done to prevent these sorts of incidents. A greater focus on driver training and on route planning by drivers of heavy vehicles, as well as on the maintenance of vehicles, is important, and certain vehicles should be banned from using a route like Kloof Nek Road.
Is the Road Accident Fund (RAF) effective?
Henry makes it clear that the RAF is a great system for compensating victims of road accidents. “The RAF, based on the petrol levy, does away with the uninsured vehicle as every vehicle is automatically insured,” he says, adding that is not insolvent, as some media reports have suggested.
“No one should abandon their right to put in a RAF claim,” Henry comments. “Litigation costs have become exorbitant but it’s affordable for all if it’s done on a contingent fee basis.” This means that the victim or their family does not have to pay the attorney themselves; payment of legal and associated costs, such as those relating to medical opinions and actuarial calculations, will be paid by the RAF.
“Unfortunately, claims take a long time to be settled, which is why people are sceptical about the RAF,” Henry explains. “But a RAF claim is not just the best way to go – it’s the only way. There are no other options”.
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