Can I claim from the RAF if the accident was partly my fault?

Yes. You can claim from the Road Accident Fund even if the accident was partly your fault, provided another driver was also negligent. Your share of the blame reduces the amount you receive in proportion. It does not wipe the claim out. If a court would find you 30% to blame, you recover 70% of your proven loss. The only person who cannot claim for their own injuries is someone whose own negligence was the sole cause, because nobody else's driving caused the harm. Your deadline is unchanged: lodge within three years of the accident, or two years if the other driver was never identified.

Two Acts do the work here. The Road Accident Fund Act 56 of 1996 makes the Fund liable to compensate anyone injured, or the dependants of anyone killed, as a result of the negligent driving of a motor vehicle by someone else. The Apportionment of Damages Act 34 of 1956 says that when the injured person's own fault contributed to the harm, the damages are reduced to the extent the court thinks just, having regard to each side's share of the blame. RAF claims are routinely settled on exactly that basis, and attorneys talk about "merits settled at 70/30" or "80/20" to describe it.

Why partial fault reduces rather than blocks the claim

The Fund stands in the shoes of the driver who caused the accident. Under the common law, if you sued that driver personally, the Apportionment of Damages Act would cut your damages by your share of the fault. The Fund's position is the same. What the Fund does not do is refuse to pay anything just because you contributed. That is a common fear, and it stops many people with good claims from lodging at all.

Separately from apportionment, the Fund has its own limits that apply to everyone regardless of fault. It pays general damages only for an injury assessed as serious under the prescribed assessment. It caps the loss of income it will pay at an annual amount that is adjusted from time to time. It usually pays future medical expenses by way of an undertaking rather than cash. These limits are about what the Fund pays, not about whose fault the accident was.

What counts as "your fault"

Anything a reasonable driver, rider, passenger or pedestrian would not have done, if it contributed to the accident or to how badly you were hurt. Common examples:

• Speeding, even where the other driver pulled out in front of you. The argument is that at a lawful speed you could have stopped.
• Not wearing a seatbelt or helmet. This usually does not cause the accident, but it can make the injuries worse, and a court can reduce damages for the part of the injury the seatbelt or helmet would have prevented.
• Drinking and driving, or riding with someone you knew had been drinking. A passenger who gets into a car with an obviously drunk driver can be found partly to blame for their own injuries.
• Crossing a road away from a crossing, or walking on a freeway at night in dark clothing.
• Using a phone, or failing to keep a proper lookout.
• Driving without a licence is a traffic offence, but on its own it does not make you negligent. The question is always what you actually did on the road.

The split is not a science. Two attorneys will argue for different percentages, and the Fund often opens with a much higher share against you than a court would find. Do not accept the first apportionment offered without asking why.

How it works step by step

1. Lodge in time. Fault does not change the deadline. Read How to claim from the Road Accident Fund for the lodging process.
2. The Fund investigates the merits. It looks at the police report, the sketch plan, witness statements and the damage to each vehicle to work out who did what.
3. The Fund takes a view on apportionment. It may accept full liability, offer a percentage, or deny liability entirely.
4. You respond with evidence. Photographs, an independent witness or a reconstruction can move the percentage a long way.
5. Quantum is assessed. Each head of damage is proved separately, then the apportionment is applied to the total.
6. Settlement or trial. Merits and quantum are often settled separately. A court can decide apportionment first and leave the amount for later.

A worked example

Kagiso is a 29 year old motorcycle courier. A car turns right across his path at an intersection without indicating and he hits its side. His right leg is broken in two places and he needs a rod inserted. He was travelling slightly over the speed limit and was not wearing his helmet, which was clipped to the bike. He has a head injury that his doctors say the helmet would have reduced.

The figures below are illustrative only, made up to show how apportionment works. They are not a prediction of what any claim would pay.

• The car driver's fault: turning across oncoming traffic without checking or indicating is clear negligence. Without it there is no accident.
• Kagiso's fault: the speed contributed to the collision, and the missing helmet contributed to the head injury. The Fund argues he was 40% to blame. His attorney argues 20%. They settle the merits at 70/30 in Kagiso's favour.
• Proven loss before apportionment: say past medical expenses of R118 000, past loss of earnings of R64 000, future loss of earning capacity assessed by an actuary at R350 000, and general damages, if his injury is accepted as serious, of a further amount. Suppose the total comes to R700 000.
• After apportionment: Kagiso receives 70% of that, R490 000, less any statutory limits that apply and any fees under his contingency agreement.

Had Kagiso decided that the helmet made a claim pointless, he would have received nothing. Instead he receives most of his loss. The RAF claim range calculator shows illustrative bands only and does not apply apportionment for you.

What to do this week

• Report the accident to the police if it has not been reported, and get the case number.
• Write down your own account now, including anything you did wrong. Your attorney needs the truth to manage the apportionment argument, and the Fund will find it anyway.
• Photograph the scene, skid marks, the vehicles and your injuries. Go back to the scene in daylight if you can.
• Ask every witness for a short signed statement with their contact details.
• Keep every receipt and sick note in one folder.
• Work out your lodging deadline. Our prescription checker will help.

Evidence to gather

• the police accident report, sketch plan and case number
• photographs of the scene, the point of impact, and the damage to each vehicle
• dashcam or CCTV footage from nearby businesses, requested within days before it is overwritten
• independent witness statements, particularly from anyone who was not in either vehicle
• your medical records, including any note on whether a seatbelt or helmet was worn
• proof of income and expenses, as for any RAF claim

Realistic timeline

Apportionment disputes add time. Where liability is admitted in full, a claim moves at the ordinary RAF pace, which is slow. Where the Fund disputes the merits, expect additional months for investigation, sometimes an accident reconstruction expert, and possibly a separate trial on the merits before quantum is dealt with. How long does a RAF claim take? sets out each stage.

Common mistakes and what they cost

• Not lodging because you assume fault bars you. The claim is worth a percentage of your loss, and that percentage is usually the majority.
• Hiding your own conduct from your attorney. If the Fund discovers it first, your credibility, and your percentage, suffer.
• Accepting the Fund's first apportionment figure. The opening offer is a negotiating position, not a finding.
• Treating a traffic fine as proof of fault. Paying a fine is an admission of the offence, not a legal finding on the cause of the accident, but avoid paying one for an offence you did not commit.
• Pleading guilty to a reckless or negligent driving charge without advice. A conviction is powerful evidence against you in the civil claim.
• Missing the two-year deadline for a hit and run. Fault arguments are irrelevant if the claim has prescribed.

Your rights and the Fund's rights

You have the right to: lodge and be given a claim number; dispute the Fund's view on apportionment; call your own witnesses and experts; have the merits decided by a court if you cannot agree; and recover a costs contribution if you succeed.

The Fund has the right to: investigate the merits before paying; argue that you were partly or wholly to blame; reduce the claim in proportion to your fault; apply its statutory limits on general damages and loss of income; and require you to attend examinations by its experts.

If you cannot afford an attorney

Lodging with the Fund yourself is free, and a claim with an honest apportionment issue is still a claim you can lodge on your own. The difficulty is that apportionment is argued on evidence and case law, and the Fund will have an attorney. Most people with a serious injury use an attorney on a contingency fee agreement under the Contingency Fees Act 66 of 1997, which must be in writing and caps the success fee at double the normal fee or 25% of the award, whichever is lower, excluding disbursements. Read How does no win no fee work in South Africa? first.

The Small Claims Court does not hear RAF claims. Legal Aid South Africa can be reached on 0800 110 110 and applies a means test. What does claims and compensation cost? explains what to expect from a fee agreement.

Frequently asked questions

People often ask whether the police report decides fault. It does not. It is important evidence, but the Fund and the courts decide fault on everything available. People ask whether a passenger can be found partly at fault. Rarely, but yes, for example by riding with a driver they knew was drunk or by refusing a seatbelt. Read Can I claim if I was a passenger in a car accident? for the passenger position. And people ask what happens when both drivers blame each other and there are no witnesses. Then the physical evidence decides: damage patterns, skid marks, and the geometry of the intersection. That is why the photographs you take this week matter so much.