The reality of motor vehicles accidents is that parties to the accident sometimes flee the scene of the accident without identifying themselves or their vehicles. Arguably, negligent drivers escape the scene in order to avoid liability for the ensuing damages.
The injured third party is, however, not left without recourse. A third party that has suffered damages as a result of any bodily injuries to himself or herself, caused by the negligent driving of an unknown motor vehicle and unknown driver, can claim damages from the Road Accident Fund (“RAF”).
As a point of departure, it is important to classify a claimant’s claim as either a “hit and run” or an “an identifiable accident”, in which the driver or the owner of the vehicle was identified (, since there are procedural differences between the two cases.
A claimant will be entitled to claim special damages and general damages (in the case of serious injury) from the RAF, only if they are able to meet the special requirements applicable to “hit and run” claims.
In a “hit and run” scenario, the third party must lodge their claim against the RAF within two years of the date on which the cause of action arose. This is significant to note, since a third party ordinarily has a period of three years to submit their claim, with the possibility of this period being further extended in certain circumstances. In the case of minors, for example, prescription only starts running upon their attainment of majority age, and the three-year period therefore only starts once they reach the age of 18. This is, however, not the case in a “hit and run” case – prescription starts running on the date of the cause of action and cannot be interrupted. The constitutionality of this differentiation has not, as of yet, been tested by the courts.
A claimant must furnish the RAF with proof that the injury arose from the negligent driving of the driver of the unidentified motor vehicle and not from their own sole negligence. Furthermore, the claimant must take reasonable steps to identify the identity of the insured driver. It is not sufficient for the claimant to simply report the matter to the police (although the claimant must report the matter to the police as soon as possible). In order to meet this requirement, a claimant can, for example, return to the scene of the accident and obtain the statements of eyewitnesses.
The claimant must also lodge a certificate probabilis causa litigandi. This certificate must be issued by an independent advocate or attorney, with at least ten years’ experience, after considering all the evidence available to both parties regarding the cause of the accident and the liability of the RAF. The certificate must state that there is a reasonable prospect of success on the side of the claimant.
A claimant may lodge their claim with the RAF by using the RAF1 Form. The claimant must submit the details of the accident, police report or case number, relevant medical and financial statements and all other relevant documents to the RAF.
The RAF has 120 days from the date of lodgement to investigate the claim. After this time period has lapsed, the claimant can institute legal proceedings against the RAF for recovery of the damages they suffered as a result of the motor vehicle accident.
The fact that a third party was injured by the negligent driving of an anonymous driver should, therefore, not bar the third party from recovering their damages. A third party must, however, act swiftly by approaching a lawyer timeously to assist them with their claim against the RAF.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your adviser for specific and detailed advice. Errors and omissions excepted (E&OE)