Cyclist safety is an on-going issue in South Africa with hundreds of cyclists in South Africa losing their lives in road accidents every year and many more are seriously injured.
This is according to Kirstie Haslam, partner at DSC Attorneys, who says that Road Accident Fund (RAF) claims for cyclists may provide accident victims or their dependants with compensation.
“Despite safe-cycling initiatives and interventions by local and provincial governments, road fatalities involving cyclists have risen steadily over the years,” she says.
The Automobile Association (AA) reported 252 deaths in 2010, with an estimated 800 more cyclists injured by motor vehicle accidents. By 2016, road deaths among cyclists had risen by almost 79% to 451 fatalities.
Current statistics are hard to find but Haslam points out that the litany of accident reports on online news platforms suggests cyclist safety remains a major concern.
“In South Africa, cyclists are considered legitimate road users subject to the same rules and regulations as motorists,” she explains.
As a result, she says that cyclists who sustain injuries as a result of an accident involving a motor vehicle may have the right to claim compensation from the Road Accident Fund (RAF).
“Cyclists can claim past and future medical expenses, as well as loss of earnings, arising from injuries sustained in an accident,” she adds. “If the injuries sustained meet the legally defined criteria of “serious” injuries, general damages for pain, suffering and loss of amenities of life may also be awarded.”
In addition, she says that dependants of a cyclist killed in an accident can claim compensation in respect of loss of support and to cover the costs of a funeral.
“The amounts that can be claimed for both loss of earnings and loss of support are subject to a statutory limit, which is periodically adjusted for inflation,” says Haslam.
She stresses that the RAF does not pay compensation for damages to property, such as a bicycle or any cycling equipment.
RAF claims are subject to time limits, known as prescription periods. Once these prescription periods have elapsed, Haslam says that claims can no longer be instituted.
Haslam points out that in South Africa, there are two prescription periods conceived for the following scenarios:
When the identity of the driver is known claims must be lodged with the RAF within three years of the accident. Thereafter, a two-year window kicks in, during which time litigation against the RAF has to be initiated through service of a summons.
When the identity of the driver is not known claims must be lodged within two years of the date of the accident. If required, court action must commence within three years thereafter (in other words, within five years in total after the date of the collision).
Claims against the RAF are fault-based. In order for a claim to succeed, it must be established that the other party was either fully or partly to blame for the accident. Only then is compensation available.
Haslam says that cyclists, like any other road users, have to obey the rules of the road and can be found at least partly at fault when they break the rules.
“Riding recklessly, three or four abreast, or ignoring stop signs and red lights are clear violations of traffic laws,” she adds. “In these types of incidents, cyclists involved in accidents may have a claim made against them.”
With regard as to whether pedestrians can claim RAF compensation if they are hit by a cyclist, the answer is no. “In terms of the Road Accident Fund Act 56 of 1996, bicycles are not deemed to be motor vehicles as they are not designed to be propelled by means of gas, fuel or electricity,” Haslam explains. “As a result, pedestrians involved in collisions with cyclists are not entitled to claim compensation from the RAF.”
Initiating a claim against the RAF is complex and time consuming. Haslam says that it involves collecting evidence and submitting documents to support the claim, a “make-or-break” process best handled by an experienced attorney.
She says that these types of claims typically advance to the point of litigation against the RAF, action that requires the services of a law firm, preferably one that specialises in personal injury claims.
“Even if court action is not required, tough negotiating skills are, therefore an attorney is best placed to negotiate a fair settlement on your behalf,” Haslam concludes.
For more information visit: www.dsclaw.co.za