Death Benefits and Loss of Support Claims under the Road Accident Fund

The death of a breadwinner due to a road accident is often devastating for surviving dependents, bringing about not only emotional grief but also significant financial hardship. In South Africa, the Road Accident Fund (“the RAF”) serves as a vital safety net for those who have lost a family member to a road accident, allowing dependents to claim compensation for the financial support they have lost. It is crucial to understand the nuances of loss of support claims to navigate this complex legal landscape effectively.

Understanding loss of support claims

A claim for loss of support arises when a breadwinner or an individual with the legal duty to provide financial support dies in road accident caused by the negligent driving of another party, known as the “insured driver”. The RAF compensates dependents such as spouses, children and parents for their proven past and future loss of support, which is the financial contributions that the deceased would have continued to provide if not for their unexpected death.

Loss of support is dived into two categories, being past loss of support and future loss of support. Past loss of support refers to the financial loss experienced from the date of the accident to the date of calculation of the claim. Future loss of support refers to the anticipated financial loss from the date of calculation of the clam until the time the deceased’s duty to provide financial support would have naturally ended, such as when a dependent reaches adulthood or a spouse remarries.

Legal requirements for a loss of support claim

To successfully prove a loss of support claim under the RAF, claimants must meet specific legal requirements:

Proof of negligence by the insured driver: It must be established that the deceased was not the sole cause of the accident. The claimant must prove at least 1% negligence of the part of the insured driver to hold the RAF liable for compensation.

Duty to support and financial dependency: The deceased must have had a legal duty to support the claimant financially. This duty typically arises from familial relationships, including spouses, children, or certain instances parents or siblings. The claimant must also demonstrate that they were financially dependent on the deceased at the time of death and that the death resulted in a significant loss of support.

Evidence required to substantiate claim: To successfully prove a loss of support claim under the RAF, claimants must gather substantial evidence, including:

• Death certificate: a certified copy of the deceased’s death certificate proving the death of the breadwinner;
• Proof of dependency in the form of financial records such as bank statements, invoices, and any other documentation demonstrating the claimant’s financial reliance of the deceased;
• Proof of relationship documentation proving the claimant’s relationship with the deceased such as marriage certificates, birth certificates and any other documentation proving a familial relationship to the deceased;
• Affidavits: in cases involving unregistered customary marriages, the surviving spouse must prove that they were married to the deceased, who had the legal duty to support them. The surviving spouse must provide six affidavits attesting to the marriage and the number of children born from the marriage – three from the spouse’s family and the other three from the deceased’s family.

Expert evidence: Actuarial assessments and medico-legal reports are also crucial in determining loss of support. These reports evaluate the deceased’s income at the time of death, potential future earnings and other relevant factors such as career progression and inflation, to accurately calculate the financial impact on the dependents.

Apportionment of damages

The principle of contributory negligence, provided for in the Apportionment of Damages Act 34 of 1956 does not apply to loss of support claims under the RAF. This is because claimants in a loss of support claim are considered “innocent third parties”. In in the recent case of C and Others v Road Accident Fund (Case no: 2018/027323) [2023] ZAGPJHC 349 (18 April 2023) the Court stated:

“The plaintiffs are innocent third parties claiming loss of support. It is trite that no question of apportionment of fault or damages can be contributed to them. They only need to prove on a balance of probability the proverbial 1% negligence on the part of the insured driver/owner who is guilty of some negligence which was causally connected to the collision.”

Challenges in Loss of Support Claims

There are several challenges that can complicate the process of proving a loss of support claim. In cases involving unregistered customary marriages, it may be difficult to prove the existence of the marriage. The Recognition of Customary Marriages Act 120 of 1998 recognises customary marriages as valid regardless of registration. However, as stipulated above, the RAF requires affidavits from both the deceased’s and claimant’s families. This requirement is aimed at preventing fraudulent claims but can be burdensome, especially when family members are uncooperative.

Furthermore, the RAF has introduced caps on the earnings considered for compensation, which significantly affects dependents of high-income earners. The cap limits the maximum amount claimable, potentially resulting in lower compensation than anticipated, and thereby impacting the financial stability of the deceased’s surviving dependents.

Conclusion

Loss of support claims under the RAF are a vital recourse for dependents who have lost a breadwinner due to a road accident. By understanding the legal requirements, gathering the necessary evidence, and navigating the complex claims process, dependents can seek the compensation they are entitled to. While the process involves various challenges, including family disputes and proving financial dependency, a thorough understanding of the legal framework and recent legislative changes can help claimants achieve a fair outcome. It remains essential for affected families to stay informed and seek professional legal guidance to ensure they receive the support needed to rebuild their lives after such a devastating loss.