Can I claim if I was a passenger in a car accident?

Yes. If you were a passenger and you were injured in a road accident, you can claim from the Road Accident Fund. You can claim even if the driver at fault was the driver of the car you were sitting in, and even if that driver is your husband, your sister or your friend. Passengers are in the strongest position of any category of road accident claimant.

Lodge within three years of the accident. If the vehicle that caused the accident was never identified, for example a hit and run, you have only two years, and that shorter deadline is strict. Use our prescription checker if you are unsure where your dates fall.

Why passengers are in a strong position

A driver who claims from the Fund has to show that someone else drove negligently, and their own driving is put under a microscope. A passenger does not have that problem. You were not driving. In practice, a passenger only needs to show that the accident was caused by the negligent driving of a road user, and it does not have to be the other vehicle.

That means:

• If the driver of your car caused the accident, you can claim.
• If the other driver caused the accident, you can claim.
• If both drivers were partly at fault, you can still claim.
• If it was a single vehicle accident, such as your driver losing control and hitting a tree or rolling, you can claim if that driver drove negligently.

An older limitation on what a passenger could recover from the Fund was removed when the Act was amended, so passengers are now compensated on the same basis as anybody else.

You are not suing the driver personally

This is the fear that stops most people, especially where the driver is a relative or a friend. The Road Accident Fund Act 56 of 1996 means the Fund pays the compensation, not the driver out of their own pocket. The driver does not lose their house because you claimed. Their name appears in the claim because their driving is part of the story, but the money comes from the Fund, which is financed by the fuel levy.

Your driver's cooperation does help. A statement from them describing what happened makes the merits much easier to prove. Ask early and ask politely.

Taxis, buses and e-hailing

Passengers in a minibus taxi, a bus or an e-hailing vehicle can claim on exactly the same basis. So can passengers in a bakkie, a company vehicle, or on the back of a motorcycle.

It does not matter that the driver had no licence, no insurance, or an unroadworthy vehicle. Those things may be offences, but they do not remove your right to claim. It also does not matter that you paid a fare or that you were getting a lift for free.

For taxi and bus accidents, the practical difficulty is usually evidence rather than law. Get the vehicle registration, the operator's name, the route, and the case number the police allocate. Try to get contact numbers for other passengers before everyone disperses at the hospital.

Where your claim can be reduced

Two things commonly cut a passenger's compensation.

Not wearing a seatbelt. If your injuries were made worse because you were unbelted, your compensation can be reduced to reflect your own contribution to the harm. It does not defeat the claim.

Getting into a vehicle you knew was dangerous. Knowingly riding with a driver who was clearly drunk, or in a vehicle that was obviously overloaded or unroadworthy, can be raised against you. Again, this is usually about reduction rather than refusal, and it depends heavily on the facts.

What you can claim for

The Fund covers injury losses, not property. Broadly you can claim past and future medical expenses, past loss of earnings, future loss of earnings or earning capacity, and general damages for pain and suffering where the injury is assessed as serious using the prescribed process. Your cellphone, your laptop and the clothes you were wearing are not covered.

Future medical treatment is usually dealt with by an undertaking, which is a written promise by the Fund to pay for qualifying treatment when you need it, rather than a cash sum now.

No one can tell you a figure at the outset. Our RAF claim range calculator shows illustrative bands only, to give you a sense of scale, and it is not a prediction of what you would receive. How much is a RAF claim worth? explains what actually drives the number.

What to do now

1. Get the police case number and the accident report. Report the accident to the police if that has not happened.
2. Get treated and make sure the hospital records reflect that you were a passenger and where you were sitting.
3. Write down the vehicle registrations, the driver's details and the names and numbers of witnesses and other passengers.
4. Photograph the scene, the vehicles and your injuries if you can.
5. Keep every medical account, receipt, prescription and sick note.
6. Get proof of your income: payslips, an employer letter, or bank statements if you are self-employed.
7. Lodge the claim. You can do this yourself, free, at an RAF office. See How to claim from the Road Accident Fund.

If a passenger who died in the accident was supporting you, you may have a claim as a dependant for the support you have lost, and whoever paid for the funeral can claim those costs.

If you cannot afford advice, Legal Aid South Africa can be reached on 0800 110 110.