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Special Plea Regarding Jurisdiction Dismissed

Special Plea Regarding Jurisdiction Dismissed
November 1, 2011 gnuworld

The South Gauteng High Court (Johannesburg) handed down judgment on 13 October 2011 in the matter of Lester Crain Akaai v The Road Accident Fund.

The matter in question related to an action for damages against the Road Accident Fund in terms of the Road Accident Fund Act 56 of 1996 (as amended).  The only issue for determination was the Plaintiff’s entitlement to general damages for pain and suffering and loss of amenities of life, the issue of liability having been agreed and settled on the basis of a 70/30% apportionment in the Plaintiff’s favour, the Defendant having tendered an Undertaking in terms of Section 17(4)(a) of the Act in respect of future anticipated medical and related expenses and future loss of earnings/income having been settled on the basis of a capital sum payment.

The Defendant however raised a special plea relating to the question of whether the South Gauteng High Court had jurisdiction to deal with the question of general damages, based on an alleged failure on the part of the Plaintiff to comply with Regulation 3 of the Regulations to the Act (as amended).

Regulation 3 relates to the assessment of so-called “serious injuries” in terms of Section 17(1A).  The Court referred to the Regulation in question and noted that the mandatory “Serious Injury Assessment Report” underpinned a claim for general damages.  The Court held that the Plaintiff had indeed submitted to the relevant assessments by medical practitioners and duly completed so-called RAF4 forms were provided, in which the relevant practitioners assessed the Plaintiff’s injuries as constituting serious injuries in terms of the so-called narrative test contemplated in Regulation 3 (1)(b)(iii) of the Regulations.  The Court held that in terms of sub Regulation 3(d)(i) to (iii), if the Fund is not satisfied that an injury has been correctly assessed the Fund or an agent must reject the Serious Injury Assessment Report and furnish the third party with reasons for doing so, alternatively, direct that the third party submit him or herself, at the Fund’s costs, to a further assessment to ascertain whether the injury is serious.

In the matter at hand the Plaintiff’s experts had submitted their Serious Injury Assessment Reports (RAF4 forms) to the Defendant in mid 2009.  However, between March 2011 and June 2011, some two years after these reports were submitted, the Defendant rejected the serious injury assessment of the Plaintiff’s neurosurgeon as well as the Plaintiff’s plastic and reconstructive surgeon.  The Plaintiff contended that the Defendant’s rejection thereof did not comply with Regulation (3)(3)(d)(i) as they had not provided proper reasons for rejecting their assessments.

Referring to an earlier matter with identical facts and pleadings, the Court re-iterated that a dispute which the Road Accident Fund is entitled to raise must be a genuine one, and not merely an objection which has no medical and legal basis.  In the present matter the Defendant’s objection to the relevant reports was based on the fact that the Plaintiff had not yet reached Maximum Medical Improvement (“MMI”) and that the RAF4 forms were not properly completed.  The Court took the view that these reasons did not constitute a “sound and proper basis” for rejecting the Serious Injury Assessment Reports, for the following reasons:

(a)    The concept of MMI is irrelevant to the assessment of the Plaintiff’s injuries as they had been assessed as serious in term of the narrative test to which the concept of MMI had no bearing;
(b)    Additionally, in terms of Regulation3(3)(b)(ii), where MMI, as provided for in the so-called AMA Guides, in respect of a third party’s injury had not been reached, and where the period for lodgment of the claim, prescribed in terms of the Act and the Regulations, will expire before such improvement is reached, the third party is nevertheless required to submit him or herself to an assessment and lodge the claim and Serious Injury Assessment Report prior to the expiry period for the lodgment of the claim.

The Court further rejected the Road Accident Fund’s rejection of the Serious Injury Assessment Reports on the basis that the RAF4 forms were incomplete.  The Court consequently held that the Serious Injury Assessment Reports of the relevant practitioners must stand.

The Court went on to hold that it is more appropriate that a serious injury assessment of a claimant be carried out by medical practitioners that are skilled in each of the respective medical disciplines contemplated in Regulation 3(1)(b)(iii) of the Regulations and that depending on the specific complaints and injuries sustained by a claimant, more than one Serious Injury Assessment Report may be required to be submitted by different medical practitioners.  Consequently, the Defendant would, where more than one Serious Injury Assessment Report is submitted, be required to accept or reject each one of them individually.  The failure to do so in relation to any one of them, will result in such report being accepted.

The Court went on to hold that Plaintiff’s and Defendant’s experts were in agreement in relation to the serious nature of the Plaintiff’s injuries and that there was no basis for the matter to be referred to an Appeals Tribunal for it to make a determination, on the same documentation which was currently before the Court, on the question of whether the injuries sustained by the Plaintiff as a result of the motor vehicle collision constituted serious injuries or not.  There was consequently no dispute requiring referral to the contemplated Appeals Tribunal.

The Defendant’s special plea was accordingly dismissed and, the parties having agreed that in the event that the Court dismissed the special plea the sum of R200 000 would represent fair and reasonable general damages, the Court consequently awarded this sum under this head of damage.

For a full copy of the judgment of the South Gauteng High Court click here.

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