My son was involved in a road accident, but the RAF says it will only cover the hospital bills, what should I do?

The long answer

It may be possible to claim for the blow to your son’s head if your son is acting abnormally or strangely since the accident, even if the hospital scan didn’t show permanent injury. He may still have suffered a serious injury if he shows changes in personality and behaviour, or has difficulty remembering things, concentrating, understanding, following instructions, completing tasks or solving problems. These signs are known as cognitive impairment. 

The RAF pays two kinds of claim: special damages and general damages. 

• Special damages are paid for “pecuniary losses”, which means money spent on past and future hospital and medical bills, past and future loss of earnings, past and future loss of support, and funeral expenses.

• General damages (non-pecuniary losses) are paid as compensation for loss of amenities of life, pain and suffering, disability and disfigurement to persons who have suffered bodily injury in a motor vehicle accident.

General damages are only paid if an injury is considered serious. According to the RAF Amendment Act, a serious injury is one that results in 30% or more impairment of the Whole Person, as described in the American Medical Association Guides (AMA Guides). Whether an injury is serious or not is guided by the AMA Guides to the Evaluation of Permanent Impairment, or the Narrative Test, which includes long-term impairment of a body function, permanent disfigurement, or severe mental or behavioural disturbance. (my emphasis)

The AMA Guides distinguish between impairment and disability: impairment is a loss of function, while disability is the resulting limitation in a person's ability to perform daily tasks or meet societal expectations. The Guides focus on assessing permanent impairments.

• If an injury does not result in 30% or more Impairment of the Whole Person, the injury may only be assessed as serious if it:  

(i) resulted in a serious long-term impairment or the loss of a body function;

(ii) constitutes permanent serious disfigurement;

(iii) resulted in severe long-term mental or severe long-term behavioural disturbance or disorder;

So, in the case of your son’s injury, the RAF is saying that they will pay the special damages, which is the hospital bill, but they won’t pay the general damages, which is the blow to your son’s head, because it’s not a 30% impairment.

It would be vital to get an independent medical professional’s assessment of the injury’s impact on your son. He may have suffered a Traumatic Brain Injury (TBI). Even if a CT or MRI scan doesn't reveal a skull fracture or brain damage, other factors, including memory problems, headaches, dizziness, and changes in personality or behaviour can indicate a serious injury.  

 A "serious injury" cannot rely only on a visible injury that you can see on a scan but must include the impact on his quality of life and ability to function. The doctor’s assessment should consider your son’s condition before the accident, and how the injury has affected the way he is now. 

The doctor would have to fill out a Serious Injury Assessment Report. The RAF says that a claim for non-pecuniary loss (“general damages” or “pain and suffering”) will not be considered unless this report is duly completed and submitted. 

Wishing you the best,
Athalie