The Million Rand Pinkie

The Road Accident Fund (RAF), seemingly being assisted by the media, has made every effort to attack attorneys specialising in personal injury law, in particular Road Accident Fund claims. We as a fraternity have sat back, shaking our heads at some of the ludicrous and generalised statements made and have trusted, that as long as we keep doing what we do with integrity – our service will speak for itself.

This is how we as a firm felt until we saw the episode of Carte Blanche which aired on Sunday, 12 July 2015. Enough is enough, and it is time that we fight back so the public can know the truth.

The episode dealt specifically with a case which they termed “The Million Rand Pinkie” – possibly the most ridiculous and rare example of claims which are in fact lodged. It almost seems that the insert was done to discredit the legal profession. Carte Blanche used two examples and presented it as the norm. This, while it is crystal clear that the attorneys on both sides did not act in the best interests of their clients, that their conduct was unprofessional, and that they should be reported to the Law Society.

• Yes, we can concede that as in every industry, you will come across the “bad apples” – to however provide the public with an impression that this is the norm, is dangerously misleading.
• A case such as this should never have gotten as far as it did. So what could have been done differently?
• At any stage before or after litigation ensues, the Road Accident Fund or their panel attorneys can make an offer to a Plaintiff which will place them at risk.
  What this means is that it is unlikely for you to beat the offer in court, which will result in an adverse order in respect of legal costs.
•  In such an instance an attorney will advise the client to seriously consider it. Now, we don’t know enough about the case, but certainly if the matter was eventually settled for R25 000.00, one can only assume that this was the first time the RAF or their representatives made any attempt to dispose of the matter. This is a step that can only be taken by the Defendant and certainly gives them the power to control litigation and curb unnecessary costs.
•  Further to this the courts, certainly in Cape Town, use what we have termed “the rule 37 pre-trial procedure”. This is a brilliant way to engage in case management before a matter can be certified as trial ready. A case such as the one referred to above would certainly not have made it to trial had there been earlier judicial intervention.

The Procedure

• Once a matter has been lodged with RAF, the attorney needs to take instructions from the client to determine the way forward and which experts to appoint for the purpose of medico-legal reports, this is done in order to prove the quantum of the client’s damages. Without the medico-legal reports the attorney will not be in a position to prove the damages and quantify the matter.
• In the event that the client confirms that his injuries are preventing him from going back to work, or that he is struggling to execute his pre-accident work, the attorney should appoint an Occupational Therapist and Industrial Psychologist. In the event that an attorney does not appoint the necessary experts, said attorney runs the risk of under settling the client’s claim, which could lead to the attorney being negligent.
• The summons and particulars of claim (POC) are normally issued and served before the attorney is in possession of all the medico-legal reports. The attorney is accordingly not in a position to quantify the matter at this stage and the amount claimed in the POC is an estimate. The right to amend these figures upon receipt of the medico legal reports is usually reserved in the pleadings. The purpose of issuing a summons at this early stage is to start the legal process as soon as possible as the wait for a trial date can be rather lengthy. It is in the best interests of your client to be ready for court in the event that settlement negotiations fail.
• Once the attorney is in possession of all the necessary medico-legal reports, a settlement proposal is sent to the RAF. In the event that the RAF does not want to settle, or the offer received from the RAF does not place the client at risk (i.e. a court of law will award a bigger amount to the client) – the attorney has no other option but to wait for a trial date from court. This could take several years as the courts are very full and although the attorney has applied for a trial date, he needs to wait for a date to be allocated by the court.

Delayed payments from RAF

• The RAF has advised that due to cash flow problems there are currently delays in payments. The RAF has approached the attorney firms to make arrangements for late payments. It could take up to 120 days for the RAF to pay the amount due, from the date the matter has been settled.
•  In terms of the RAF Act, the RAF only has 14 days to make payments. This is standard in the Act and no attorney is obligated to agree otherwise. In the event that the attorney does agree to the delayed payments, it will prejudice a client, as he will lose out on interest to which he is entitled in terms of the Act. The RAF needs to pay interest for every day the payment is late at a rate of 9% per annum.
•  Should the payment from the RAF be late, a warrant of execution against movable property must be sent to court for issuing. Once the Warrant of Execution has been issued, same is taken to the Sheriff who will attach movable property. In the event that the RAF still fails to pay, the attorney must give instructions to the Sheriff to remove the attached property in order to proceed with an auction. The Sheriff will provide the attorney with an auction date.
•  It is also possible to instruct the Sheriff to attach the RAF’s bank account. In the event that the RAF fails to pay, the attorney must instruct the Sheriff to remove the money (i.e. the Sheriff needs to go directly to the bank in order to get a cheque).

The role of an Attorney in RAF matters

Although the RAF also has a duty to not under settle matters and not to let matters prescribe, they do not adhere to this duty. There are many unfortunate Claimants who do not know how much damages they are entitled to due to the injuries they sustained in a motor vehicle accident (MVA). They do not have the funds to appoint the necessary experts and the RAF does not always appoint the proper experts.

• This results in direct Claimants at the RAF, who are often under compensated. In a series of on-going articles in the Sowetan, it has been made clear that the embattled RAF has forked out millions of rands to its lawyers to issue thousands of summonses against itself, which also lead the DA to lay fraud charges against the RAF. Read the article here.
•  Attorneys have a duty to make sure that they act in the best interest of their clients. The RAF, who should have the same duty, has a undeniable conflict of interest when representing a Claimant on the one hand as well as themselves on the other.
• Attorneys who specialise in RAF claims ensure that human rights are enforced, since every person has the right to access the courts, as well as the right to a fair trial. Attorneys ensure that these rights are enforced when they help Claimants claiming from the RAF by ensuring that they receive the compensation they entitled to.
•  Example: The RAF will make first offers (without any medico-legal reports) to the amount of ± R 20 000.00. Once an attorney has all his medico-legal reports and is in a possession to quantify the matter it is possible that some of these matters are worth over 1 million Rand.

At Simpsons our client’s interests remains our priority. We will keep our clients abreast of the process and will obtain their instructions before a settlement is accepted. We will do our utmost to ensure that a client understands why a case is settled for a specific amount. It does not seem that the RAF can say the same.   We have an untainted record and have assisted countless Plaintiffs who approached the RAF directly, yet either received no support, or were compensated unfairly.

Since we are pulling out examples, we deemed it fit to showcase our own most recent example and let the public decide who is really running up the RAF’s bill for legal costs.

This is a photo of one of our clients (we have her permission to show this).

Shocking right? Would you be more shocked if we told you the following?

This accident happened as far back as 2005.

The matter is set down for trial, ten years later, on 6 August 2015.

• At the time of composing this article we were a week away from trial, yet we have to date, never received an offer in this matter, despite the fact that merits are conceded (i.e. the RAF have accepted liability).
•  By 2013 the Plaintiff’s representatives had undertaken all investigations and favoured the RAF, including the CEO directly with our settlement proposals in an effort to curb the unnecessary and additional 2 years of legal costs, which bill they will now need to fit, not to mention the fact that this is clearly a seriously injured Plaintiff that needs the financial assistance that her claim will eventually provide.
•  The RAF’s response? “We want to appoint our own experts.” Yes, you understood it correctly: 8 years post-accident, and for the first time, they decided to send our client for medical assessment. Is this reasonable?
• We submit: Absolutely not!
  At the time that the trial was a week away, we contacted the RAF’s representatives again to find out what their intentions are, and why we still have no attempt at settlement. Their response? “You will get an offer and then there is no discussion – we will be running a trial if you don’t accept.

This has to beg the question whether this is an attitude that is conducive to a cost-curbing, settlement-driven environment, and who is really running up the legal bill?