What are the biggest differences between RAF and RABS, and how will this impact road accident victims? Currently victims are excluded from claiming from the RAF if they are the sole cause of a road accident.
In terms of RABS everyone will be able to claim, but RABS drastically decreases the benefits claimable and removes lump sum payments for the seriously injured road accident victim.
The current RAF system of compensation is common law based which means that everyone enjoys the same rights under the Act.
|Indemnity and insurance based||Social benefit scheme|
|Provides lump sum compensation||Provides reviewable structured payments|
|Fault based system||“No Fault” based system|
|Allows for career pathing||No career pathing considered|
|Allows for general damages||No general damages|
|Settlement forms part of estate||Benefits forfeited upon death of the beneficiary|
|Loss of income||Income support benefit|
|Loss of support||Family support benefit|
|Medical costs||Health Care services|
|Funeral expenses||Funeral benefit (limited to R10 000.00)|
The RAF indemnifies the seriously injured victim.
RABS provides a limited structured benefit which is not aimed at full compensation. The RABS Administrator will provide a benefit which would not cover the full extent of the loss as the purpose is to encourage an injured victim to return to their workplace as to curb the culture of dependency.
The key selling points of the proposed Bill are that it is based on a “no fault” system and that there are structured benefits on offer. It is said that these two key changes would drastically reduce the administrative and financial strain currently experienced under the RAF dispensation.
A Closer Look
Closer scrutiny of the RABS Bill, however reveals the seriously prejudicial nature of the Bill having regard to the practical effect it would have on the typical South African road crash victim.
Consecutive commissions of enquiry into the compensation system held that no fault is unaffordable as it would just about double the government’s compensation bill.
Would no fault be appropriate for South African circumstances, do we really want to compensate the hijacker and habitual criminal?
No service level agreements had been secured with Private Health Services thus victims under RABS will be no better off than under the current system as far as medical care is concerned.
It would be premature to say that RABS will be more affordable as the tariff at which medical care will be provided for each and every road accident victim under a “no fault” system are not yet known.
If the tariff is similar to the tariff proposed under the Road Accident Fund Amendment Act, it is doubtful if Private Health would be interested in participating.
Victims that fall under the RABS Administration would be running the risk of being liable to pay the excess on medical and related accounts not covered by the yet to be published medical tariff.
Road accident victims currently enjoy access to immediate medical care and do not have to qualify under stringent rules to qualify for long term medical care as envisaged by the RABS Bill.
Rehabilitation, which includes vocational rehabilitation, is apparently a primary objective of RABS. The argument goes that rehabilitation is a just substitute for general damages. It should be kept in mind that only 16% of claims constitute serious injuries, requiring some kind of rehabilitation. From this percentage, only a small part would be suitable candidates for vocational rehabilitation. Seeing that such great emphasis is put on rehabilitation in the Bill, it appears that there might be a perception that rehabilitation will restore function, when in fact it facilitates the process of recovery from injury, yet will in only a few cases restore full function and be of little or no consequence to most road accident victims.
The question is, how does Government plan to achieve this goal when there are little or no supportive structures in place? Representatives of the RAF have made it clear that the functioning of RABS will not be dependent on the introduction of the National Health Insurance (NHI).
Vocational rehabilitation is an out-patient service, such facilities will have to be available and accessible wherever the claimants reside, thus many such facilities should be made available across the country, also in rural areas. The expected outcome of putting a person through such a programme is presumably that he or she would then secure and sustain employment? Considering that most seriously injured individuals will still have residual difficulties even after a lengthy and intensive period of rehabilitation and training, prospective employers will have to be sympathetic in order to accommodate these difficulties in the workplace. How many employers would be willing to allow certain accommodations, even though it may be “reasonable” when there is an abundance of able bodies out there?
No Fault System
Introducing a no fault system on top of the existing RAF system, would cripple the already struggling Government Health system. Private healthcare service providers would think twice about engaging the RABS Administrator under these circumstances (it is envisaged that the current RAF would be assimilated by the RABS Administrator) which would leave road accident victims with little or no chance of a meaningful recovery after a devastating road accident. If no fault is introduced at the current level of funding, it will result in an even larger deficit increased taxes and even result in the drastic reduction of compensation to keep it afloat. The latter will defeat the object of social security.
The RABS administrator would be able to review, revise and terminate the successful claimants’ benefits with a system of medical peer review. The fact that the administrator may withdraw benefits at any given time (considering budget constraints and changes in personal circumstances) would imply that the road accident victim would have no long-term financial security under the RABS administrator.
As officers of the Court and custodians of public interest, we are obliged to act against and ensure that the rights of all South African road users are protected, regardless of background, social status or age.
The obvious solution would be for Government to comply with their Constitutional duty to ensure the safety of road users and create a safe road transportation environment. All road users have a Constitutional right to movement and travel. Government should, rather than concentrate on the consequences of road accidents and its funding, focus on the dimension of the prevention of road accidents, especially under circumstances where South Africa has one of the highest road traffic accidents in the world.