ROAD-ACCIDENT FUND: SERIOUS INJURY CLAIMS AND JUDICIAL PRECEDENT: THE SUPREME COURT OF APPEAL HAS SPOKEN Road Accident Fund v Duma 202/2012 and Three related cases (Health Professions Council of South Africa as Amicus Curiae) [2012] ZASCA 169 (27 November

Abstract

The appeal is based on four cases against the Road Accident Fund (the Fund) that were instituted in the South Gauteng High Court, Johannesburg, for damages suffered as a result of motor-vehicle accidents. It was not disputed that the Fund was liable to compensate the four appellants as third parties for injuries sustained in the accidents. The only matter on appeal was the plaintiff’s entitlement to
general damages as contemplated by section 17(1) and 17(1A) of the Road Accident Fund Act 56 of 1996, read with the Regulations
promulgated under the Act. According to the Road Accident Amendment Act 19 of 2005 (which became effective on 1 August 2008) the Fund’s liability for general damages is limited to those victims who suffered “serious injury”. Unfortunately neither section 17(1) nor section 17(1A) provides any objectively determinable guidelines as to how to determine whether an injury is serious or not. Only the Regulations prescribe the procedure to be followed in order to determine whether the appellants indeed suffered “serious injuries” (Regulation 3). Regulation 3(1)(a) stipulates that a third party who wishes to claim general damages shall submit himself or herself to an assessment by a medical practitioner registered as a medical practitioner under the Health Professions Act 56 of 1974. Regulation 3(3)(a) determines
that a third party who has been so assessed shall obtain from the medical practitioner concerned a serious-injury assessment report, defined in Regulation 1 as a duly completed RAF4 form. This form read with Regulation 3(1)(b) requires the medical practitioner to assess the seriousness of an injury in accordance with three sets of criteria. The Fund has to accept only claims for general damages if a claim is
supported by a serious-injury report, duly filled in according to the method provided for in the Regulations. If the Fund is not satisfied, it must in terms of Regulation 3(3)(d) either reject the claim and give reasons for doing so, or direct that the third party submits himself or herself to a further assessment at the Fund’s expense by a medical practitioner designated by the Fund in accordance with Regulation 3(1)(b). If a claim does not comply with the prescribed procedures a claim for general damages is premature, as it is not for the court to decide whether an injury is “serious” or not. The judgment given in this appeal by Brand JA (Mhlantla, Leach JJA, Plasket and Saldulker AJJA concurring) overturned many previous cases judged by other courts including the four referred to. The clarification given by the Supreme Court of Appeal and the Road Accident Fund Amendment Regulations, 2013 that were published after the judgment, is significant and
should be taken cognisance of by any lawyer, medical practitioner involved in a RAF case or an individual approaching the Fund unaided by lawyers.