In terms of Section 17(1) of the Road Accident Fund Act 56 of 1996 (as amended) (hereinafter referred to as “the Act”), the obligation of the Road Accident Fund to compensate a third party for non-pecuniary loss shall be limited to compensation for a serious injury as contemplated in Section 17(1A) and shall be paid by way of a lump sum.
Perhaps no single factor affects a personal injury settlement more than the type (and extent) of injuries you sustained in the accident. The difficult part of figuring out compensation for someone injured in an accident is how to put a monetary value on “pain and suffering”.
Non-pecuniary damages mean that a person may have suffered damages that are not quantifiable in monetary terms. However, compensation must still be provided for any harm suffered as a result of injuries sustained, including pain and suffering, disfigurement, emotional harm, permanent disabilities and loss of amenities of life. No set of facts or injuries will be exactly the same, and therefore the courts have discretion to award an amount that is fair and reasonable under the particular circumstances.
Categories of injuries
Soft Tissue Injuries
Injuries such as a sprained or strained back, neck, knee, or ankle are referred to as soft tissue injuries because they involve only muscles and other soft connective tissue. Soft tissue injuries are usually not permanent or dangerous regardless of how painful they may be. Should a claim ever get to court, it would be difficult for an injured person to prove clearly what the soft tissue injuries were.
Hard Injuries
Hard injuries are considered more serious and are awarded higher damages. Likewise, an injury requiring any physical repair or intrusive examination by a doctor, from stitching a wound to setting a bone to arthroscopic examination of a joint, increases the value of your case regardless of all other considerations.
Categories of hard injuries include:
Broken bones. If X-rays show that any bone has suffered even a minor break, including a chip or crack, the numbers in your case will immediately move higher. As with all other injuries, the more serious you can show the break to be (in terms of impact on your life), the higher you move up the compensation ladder.
Head injuries. Any time someone suffers a head injury, there is the possibility that the effects of the injury will be much longer lasting than is at first obvious. Insurers know that head injuries can last a long time and that symptoms can recur even after recovery seems to be complete. A head injury usually increases how much the claim is worth. And often it speeds up the negotiation process, because the insurer wants to settle before bigger bills related to the injury are incurred.
If you have suffered any kind of head injury, check your medical records for the description: concussion, a period of unconsciousness, however brief, or dizziness, disorientation, or nausea. Make specific mention of it in your claim even if other injuries seem more serious. And if you have any long-term effects such as continuing headaches or dizziness, report them to your doctor immediately, and emphasize in your claim that you are still suffering from the effects of your head injury.
Separations, dislocations, and ligament or cartilage tears. Whenever a doctor describes your injury with a name other than a sprain, strain, or bruise, the injury is considered more serious – and joint dislocation or separation gives the impression of great pain and delicate recovery, whether or not it was actually more serious than something called a sprain. The same thing is true for the word “torn” for a ligament or cartilage. A tear is considered more serious than a stretch or strain or sprain, even though the treatment and healing time may be exactly the same.
Wounds. If your injuries include any gash, tear, or cut serious enough to require treatment, this may increase the value of your claim.
Spinal disk or vertebrae injury. Movement or displacement of a spinal disk, or of the space between vertebrae, sounds more serious than “strained neck or back”. Insurance adjusters often award more compensation to claimants who describe neck or back injuries in specific medical terms rather than simply saying “strained”, even if it is exactly the same injury.
Criteria for regarding an injury as serious
The Road Accident Fund (RAF) considers an injury “serious” based on 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% WPI to qualify for an award of general damages. Examples of injuries that may result in a WPI rating of 30% or more, include: traumatic brain injuries, paraplegia, quadriplegia and, in certain instances, an above the knee amputation of a lower limb.
Who’s responsible for making a serious injury assessment?
The assessment of serious injury can be made only by an appropriate medical specialist.
The Narrative Test
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
- the loss of an unborn child.
A person will only qualify for general damages if:
- the injury sustained is not included in the published list of non-serious injuries
- the injury sustained resulted in a WPI rating of 30% or more
- the injury sustained resulted in any of the above four consequences envisaged in terms of the narrative test.
When the assessment can be made
The assessment can be made only after the victim has fully recovered – or reached maximum medical recovery – when the injuries have stabilised. They should not have notably improved or deteriorated for a period of several months prior to the assessment.
In the event that no directly comparable awards can be found, the courts will consider, inter alia, the following factors and circumstances when determining the amount to be awarded:
- age and gender of the claimant
- seriousness and permanence of the injuries
- nature of the injury and expected future medical treatment, as well as the duration thereof.
Claiming for serious injury
- If you’ve suffered a serious injury in a road accident that wasn’t solely your fault, it’s likely you’re entitled to claim damages from the RAF.
- These could cover your past and future medical expenses, loss of income associated with the injury and compensation for pain and suffering.
- To support your claim, you’ll need to be examined by a medical professional.
- The medical practitioner will then need to compile a Serious Injury Assessment Report (a RAF 4 report). This must confirm that your injury is serious enough to warrant compensation.
Simpsons Attorneys
Simpsons Attorneys Inc. was established in 1998 and is a vibrant and dynamic firm of attorneys in Cape Town specialising in personal injury law and family law. We operate on a no-win, no fee basis.
Personal injury claims stem from motor vehicle accidents, medical negligence, as well as product and public liability. Family law includes divorces, maintenance orders, parenting plans, relocation plans, domestic violence and protection orders.
As some of the most talented and specialised attorneys in the Cape Town area, we are proud to consider ourselves #AttorneyswithHeart – we will always take your personal needs into consideration, alongside your legal journey.
Find us at: www.simpsons.co.za
###
