Mungo Soggot
THE shortcomings of state-sponsored accident insurance were highlighted this week in a case in which a paraplegic told a tragic tale of her struggle against avaricious relatives while her lawyer slammed the state’s controversial pay-out practices.
Judge Neil MacArthur implored Renia Motloung, 30, who was turned into a paraplegic in a collision in 1991, to set up a trust for her damages payout. The judge heard evidence she had spent five months in hospital after the accident and had then returned to rural KwaZulu-Natal to live in appalling conditions with her impoverished family.
“You were abandoned by your husband and your parents take no interest in you. All they are concerned about is your disability grant from government,” he said.
Judge MacArthur, who has yet to make an award of damages, told Motloung through an interpreter: “I am aware of the problems you have had to try to educate yourself. I am going to award you a considerable sum … I’m sure you’ll agree you are the last person to be able to administer this money.”
When Motloung replied that she wanted to discuss the matter with her parents and with her uncle, Judge MacArthur said they “might not be the proper people to assist you”.
Judge MacArthur’s impassioned plea came after her counsel, Jurie Wessels, had, in summing up her predicament, focused on the state accident insurance fund’s controversial practice of giving some victims an undertaking to pay their medical expenses instead of a lump cash sum. In Motloung’s case, SA Eagle, representing the Multilateral Motor Vehicle Fund (MMF),has undertaken to reimburse her for 75% of her medical expenses. This means she has to find money to pay for them.
“All paraplegic cases are tragic, this one particularly so, not only as a result of the very unfortunate personal circumstances of the plaintiff, but also as a result of the position adopted by the defendant,” Wessels said.
Wessels took the unusual step of asking Judge MacArthur to compensate his client for the MMF’s approach by awarding her an unusually high award for pain and suffering. He is asking R3,7-million for medical expenses and R300 000 for pain and suffering – far more than the high-water mark of R175 000.
Lawyers and victims argue that “undertakings” hit poor people – they do not have the money in the first place to pay their stiff medical expenses. And Judge Richard Goldstone, now a Constitutional Court judge, took a similar view in a 1987 case involving an accident in which a man was turned into a paraplegic after hitting an armoured vehicle. He said there would presumably be many instances where an undertaking would be “rendered worthless” to a victim.
Willie Seriti, a practising attorney and convenor of the Black Lawyers’ Association’s committee on road accident insurance, said this week there were no policy guidelines on how the MMF chose to give an “undertaking”. He said the fund’s “undertakings” inevitably hit poor people, leading him to the conclusion that the policy was “administered racially”.
He also lashed out at the MMF’s practice of offering poor victims a small cash amount instead of the “undertaking”, knowing that they had no option but to take the discount lump sum.
MMFhead Willem Swanepoel shrugged off the accustions. He said only a very small percentage of accident victims were given “undertakings” and that most of these were white. He said “undertakings” were given when a victim’s medical prognosis was uncertain. Swanepoel said lawyers who demanded a lump sum clearly forced the MMF “to take a view”.
Malcolm Lyons, an attorney specialising in the field, who has frequently crossed swords with Swanepoel, told a different story. He said the vast majority of victims were given “undertakings”, and that most of these were black. As to whether “undertakings” were only given in cases where the victim’s prognosis was unclear: “What is unclear about the state and needs of a paraplegic?” he asked.
Lyons said a crucial problem with “undertakings” was that the fund was usually “obstructive and recalcitrant” over reimbursing victims, who often had to take the MMF to court. A client of his, Derek Gray, paralysed 14 years ago in a collision, fought the fund for his money in three separate cases. Lyons said that in the latest case this week, which concerned R50 000 of Gray’s expenses, the fund had spent about R250 000 in legal costs unsuccessfully challenging Gray.
l The Fund has recently been in the spotlight in a fierce battle between lawyers, accident victim lobby groups and Transport Minister Mac Maharaj over the future of state- sponsored accident insurance. Maharaj says the current system is too costly.
In a draft White Paper, Maharaj suggested that the fund a give damages to all accident victims. This would leapfrog the courts, dispensing with the need to prove negligence. The scheme hinged, though, on severely “capped” damages. The idea was spiked, but lawyers suspect Maharaj remains committed in principle to such a revamp.