My child was hit by a car eight years ago and still experiences pain today. RAF said I can't claim compensation because the injury wasn't deemed serious. What can I do?

The long answer

Let’s look first at the timing of RAF payments:

As the mother of a minor child who has been injured in a road accident, you would have to lodge a claim within three years of the accident. 

But DSC Attorneys say that minors who are injured in road accidents can claim on their own behalf, once they turn 18. A minor has three years from the date of his or her 18th birthday to do this, before the claim lapses.

She would have to complete the following forms and submit them to the RAF offices:

RAF 1 form: It provides details of the minor and her parents, information about the motor vehicles and parties involved in the accident, the date and location of the accident and how much money is being claimed in damages.

RAF 3 form: It gives details of the accident and who was involved (the child and the drunk driver).

RAF 4 form: It is a serious injury assessment report by a qualified medical professional which is only needed when making a claim for general damages. 

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. (That should include corrective shoes to balance the one leg being shorter than the other.)

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). 

The AMA Guides distinguish between impairment and disability: impairment is a loss of function, while disability is the way a person's ability to perform daily tasks or meet the expectations of society has been affected by the accident. The AMA Guides focus on assessing permanent impairments.

The RAF also uses an alternative medical assessment called the Narrative Test when an injury scores under 30% on the AMA’s Whole Person Impairment test. The Narrative Test evaluates the victim's broader, real-world impairments, such as permanent severe disfigurement or long-term loss of bodily function, severe mental or behavioural disturbance, to assess whether a person has suffered a serious injury.

Doctors must use this test to complete the RAF 4 Form for general damages claims. The doctor must give a detailed report showing how the injury has significantly affected the person’s day-to-day life even if the injury has scored lower than 30%. The RAF says that a claim for non-pecuniary loss (“general damages” or “pain and suffering”) will not be considered unless this report is completed and submitted. 

Adendorff Attorneys say that these are some of the severe life-impacting injuries that the RAF would consider serious:

• Brain injuries

• Spinal cord or neck injuries

• Any kind of amputation

• Physical disability resulting from the accident, for example paraplegia, quadriplegia or tetraplegia etc.

• 30% whole-body impairment

• Permanent disfigurement

• Long-term mental disorder

• Permanent and disfiguring scars

What she might be able to claim: 

• Past and Future Medical Expenses: This includes all surgeries, physiotherapy, and treatments needed to address the shorter leg.

• General Damages: Compensation for her pain, suffering, and disability.

• Loss of Earnings: If the difference between the length of her legs and pain prevent her from working or limit her career options in the future

So, as your daughter’s leg is still painful, eight years later, besides being shorter than the other one, and her nose bleeds a lot, I think your first step should be to go back to the clinic doctor who was supposed to have booked an appointment at Tygerberg for her, and tell him that there was no appointment booked and that you were turned away. You need him to book an appointment again and make sure that it exists, so you can go back to Tygerberg.

A "serious injury" cannot rely only on a visible injury that you can see on a scan, but must also look at how the injury has affected your daughter’s quality of life and her ability to function. The doctor’s assessment should consider how the injury has affected her life and will continue to affect it. 

Wishing you the best,
Athalie