Millions of South Africans travel every day as passengers: in a minibus taxi, a bus, a friend’s car, or an e-hailing trip. If you are hurt in an accident while you are the passenger, there is an important thing to know. You almost always have a claim against the Road Accident Fund, and your position is often stronger than that of the people who were driving.

Why passengers are in a strong position

The Road Accident Fund compensates people injured by the negligent driving of a motor vehicle. The key word is negligent. To claim, you generally have to show that someone drove negligently and that this caused your injuries.

As a passenger, you were not driving. That means the accident was almost never your fault, and you do not carry the blame that can reduce a driver’s claim. Whether the negligent driver was the one in your vehicle, the one in the other vehicle, or both, you were simply along for the ride, and the law treats you as an innocent victim.

The point that surprises people most

You can claim even if the only negligent driver was the driver of the vehicle you were travelling in.

Picture a single-vehicle accident: the taxi you are in leaves the road and overturns, and no other car is involved. Passengers often assume that because there was no “other” vehicle to blame, there is nothing to claim. That is wrong. The negligence of your own driver is exactly what the Fund exists to cover. You, as the injured passenger, can claim against the RAF for that driver’s negligence.

The same is true if your driver and another driver were both partly at fault. You do not have to untangle who was more to blame. You lodge one claim with the Fund, and that question is sorted out behind the scenes.

An old limit that no longer applies

For many years, passenger claims were capped and restricted in ways that ordinary claims were not. That passenger limitation was removed when the Road Accident Fund Amendment Act took effect in 2008.

So if someone tells you that “passengers can only get a limited amount”, they are describing a rule that no longer exists. As a passenger you now claim on the same basis as any other road accident victim.

What a passenger can claim

A passenger’s claim covers the same heads of damages as any RAF claim:

• Past and future medical costs flowing from your injuries. Future medical costs are usually covered by an undertaking, a document in which the Fund agrees to pay those costs for life as you incur them.
• Past and future loss of earnings, if your injuries have affected your ability to work. This is subject to a statutory cap that is adjusted from time to time.
• General damages for pain, suffering and loss of life’s amenities, but only where your injury is assessed as “serious” under the prescribed test.

The things that catch passengers out

Two practical points matter enormously, because they can quietly end an otherwise good claim.

• Time limits. RAF claims prescribe. You generally have three years from the date of the accident where the driver is identified, and a shorter two years where the driver cannot be identified (for example a hit-and-run). Do not wait.
• Evidence. Get the accident recorded. A police report (and a case or accident reference), the details of the vehicles and drivers, and the names of fellow passengers or witnesses all strengthen your claim. If you were hurt, get medical treatment and keep every record. The medical records are often what prove the claim later.

In short

If you were a passenger and you were injured, do not assume the claim belongs only to the driver, or that a single-vehicle accident leaves you with nothing. In most cases it is the opposite: as the innocent party, you are often the person with the clearest claim of all. The sensible step is to have it assessed before the clock runs down.

Sources: Section 17, Road Accident Fund Act 56 of 1996. The passenger limitation formerly in section 18 was removed by the Road Accident Fund Amendment Act 19 of 2005, in effect from 1 August 2008.

Tzvi Brivik (Author)
Director at Malcolm Lyons & Brivik Attorneys Inc.

Malcolm Lyons & Brivik has specialised in road accident claims since 1965. We assess your claim and take the appropriate steps to give you the best chance of the compensation you deserve, on a no win, no fee basis. If you were injured as a passenger, contact us.

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Telephone: +27 (0) 21 425-5570
E-mail: [email protected]

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