Law Blog - Michael de Broglio Attorney

The Sunday Times has an article today on the Road Accident Fund changes. It does quote me and some attorneys and importantly asks the question whether the changes are in the interests of accident victioms. They ask that you e-mail your opinion to tellus@sundaytimes.co.za

Posted by Michael de Broglio on Sunday 29-Mar-09

Sunday Times article

Comments

Maria Schalkwyk said...

on Monday 08-Jun-09 03:49 PM

Hi

I'd like to invite comments on my case. I was involved with in an accident on Friday where my left front wheel caught a big boulder that a resident erected in public space. The car went out of control and went over about six of these. Extensive damage to my car. I spoke to the owner who could not care a hoot. He says that people should rather walk in the street an not on his lawn. Surely this is contravening the city by-laws. What kind of recourse is there for offenders like this??

Leslie Kobrin said...

on Sunday 29-Mar-09 06:05 PM

The Editor
Sunday Times
Johannesburg PER E MAIL

Dear Sirs

CHANGES TO THE ROAD ACCIDENT FUND LEGISLATION

Your article on this topic appearing in your edition of today's date graphically described the iniquities of the recently enacted changes to the Road Accident Fund Act as to how they adversely impact on injured Road Accident victims. I could not resist the temptation of adding my own views to this issue.

Those who were in favour of bringing about these changes and who fought fearlessly and uncompromisingly to so were motivated by two contentious issues. Those were:-

1. The parlous financial situation of the Road Accident Fund which has been plaguing it since its inception. Now I have been closely associated with the Legal Profession for 42 years. I have been exposed to the position when the payment of compensation for injuries sustained in accidents was made by the Insurance Companies who obtained their premiums from motorists who were compelled to take out third party cover. For the last five years because of the direction the practice I am in has taken, I have had extensive experience with the Road Accident Fund. Without fear of contradiction I am able to state that the manner in which the Fund is administered is the primary cause of the financial crisis the Fund is in. I am able to furnish concrete examples as to how legal costs are incurred unnecessarily thereby increasing the burden of being able to provide an efficient compensation for victims, of how matters which should be settled soon after lodgment of claims are delayed until the doors of Court years later before settlement is achieved and of how the undertakings given by the Fund to make payment on established dates in terms of Court Orders are ignored, and of how movable assets of the Fund have had to be attached in execution and almost sold for victims to be paid their entitlement. We have most recently learned that as a result of sheer ineptitude and incompetence current claim files have been archived as closed files resulting in officials and Attorneys acting for the Fund have to wait four weeks to gain access to their own documents. It is respectfully suggested that a proper administration system with appropriate checks and balances be implemented to be administered by competently qualified and trained staff be seconded to conduct the business of the Fund to ensure the proper investigation and administration of claims will rapidly bring about a reversal of the present crisis.

2. Fund Officials in defence of their own ineptitude incompetence and inability have pushed the blame for the crisis on Attorneys who charge excessive fees and who steal from the Fund and their own Clients as a cause of the present problem. Now for the most part Attorneys who handle these matters act on behalf of victims who have limited resources with which to prosecute their claims with the result that the Attorney is obliged to provide the finance for these matters by advancing the costs of medico legal reports and examinations, of police reports medical records. In addition Advocates who are briefed to conduct the Trials of the actions look to the instructing Attorney to be paid their fees which are due for payment upon the rendering of the service. Without Attorneys providing this essential service many road accident victims will be denied their right to obtain payment of a just compensation for the injuries they have sustained in their accidents. There are, most unfortunately, few Attorneys who have and still continue to abuse the system and engage in criminal activity as illustrated above. However these are in the vast minority and those who have so indulged in the past have been swiftly and appropriately dealt with by their Law Societies, who will act swiftly fearlessly and uncompromisingly in protecting the integrity of the profession and the public. Thus the argument that unscrupulous Attorneys are to blame for the crisis is without foundation and devoid of truth.

Our new democracy created under our new dispensation for which many struggled and sacrificed their lives is based on the adoption of a constitution of which we should all be proud. Section 34 of our Constitution provides (and I quote verbatim) that:-
"34 Access to Courts. Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum."

Now I pose the following questions;

1. How can it be possible that victims who are seriously injured in a motor accident with irreversible consequences such as those illustrated in your article be restricted in not being able to obtain payment of the just compensation to which they are entitled by being denied the right to claim payment of the full extent of their loss of earnings and or support?

2. Why is a paralysed victim denied the right to claim payment for treatment in a private health facility at the cost he has actually incurred and find he is limited to claiming those costs at public hospital rates?

3. Why should the road accident victim be denied the right to claim compensation from the wrongdoer?

4. Why should a professional football player who is injured in a motor collision by having to undergo a below the knee amputation of a leg be denied the right to claim general damages for pain and suffering purely because a below the knee amputation of the leg is not regarded as a serious injury because of the arbitrary establishment of his general body impairment at less then 32%?

5. Why should a mother who witnesses her child being needlessly killed in a motor accident be denied the right to claim compensation for emotional shock and post traumatic stress syndrome caused as a result of the horror she has witnessed?

6. Do the questions I have posed not describe a denial of right to claim a just compensation guaranteed by Section 34 of our Constitution?

7. What do those who voted in favour of creating the changes to our Road Accident Fund Act intend doing about the continual lawless activities of taxi drivers who blatantly drive recklessly so that they can earn a living?

8. What do those who voted in favour of creating the changes to our Road Accident Fund Act intend doing about the unacceptable conditions of our roads full of potholes which remain unattended?

I hereby call upon:-

1. Our Parliamentarians at the earliest possible opportunity to bring about a situation whereby the present Road Accident Fund Act is repealed and is substituted for the contents of the Act as it existed prior to 1st August 2008, thereby avoiding the exceptionally high cost of having the legal challenges recently initiated decided by our Constitutional Court so as to allow the victims of Road Accidents to receive their just compensation in accordance with our constitution and in accordance with the stated mission of the Road Accident Fund;

2. Those in authority to immediately replace the present incompetent de motivated inept officials at the Road Accident Fund with those who are suitably qualified and trained to administer a system with appropriate checks and balances so as to ensure that victims are paid their entitlement swiftly without wasting unnecessary costs;

3. Those in authority to ensure that the current lawless and reckless conduct of our taxi drivers is brought to an end;

4. Those in authority to ensure the proper repair and maintenance of our public roads and highways.

Yours faithfully

LESLIE KOBRIN
BOVE ATTORNEYS