Archive | June 2011

Serious Injuries – The interrelationship between the AMA and Narrative tests

Dear Reader,

Welcome to the twenty first edition of Independent Actuaries and Consultant’s (IAC’s) monthly newsletter.

WE PROVIDE LOSS OF INCOME AND LOSS OF SUPPORT CALCULATIONS TO ATTORNEYS DEALING WITH MVA & OTHER DAMAGES CLAIMS.
WE ALSO PROVIDE FREE TRAINING SEMINARS ON THE RAF AMENDMENT ACT TO ALL OUR VALUED CLIENTS.

If you send us instructions you are entitled to the same.

Via this newsletter we will keep you updated of all the latest case law relating to motor vehicle accidents, the quantification of damages relating to personal injury claims and dates and venues of training seminars.

Today’s Newsletter

We will look at the decision made in relation to the application of the 3rd respondent in this matter, one Ntombiko Priscilla Sunduzwayo. She was injured in a motor vehicle accident on 9 April 2009. At the time, she was working at a bus terminal in Philippi, Cape Town, as a passenger-tout for long distance buses and taxis to the Eastern Cape. She was struck down by a motor vehicle while crossing a road and sustained severe injuries to her lower leg. As a result, she is unable to resume her work as a tout, an occupation which requires her to run about physically in search of potential passengers.

She contended that the consequences of her injuries on her quality of life renders it appropriate to characterise the injuries as ‘serious’ within the meaning of the proviso to s 17(1) of the Act and she proposed to claim compensation for general damages.

As she could not afford to pay the R 7 000.00 required for a serious injury assessment report she submitted a request to the Fund for financial assistance in respect of the required serious injury assessment on 4 September 2009. On 19 April 2010, after her attorney had made various follow up inquiries, the Fund refused the request for financial assistance. The Fund contended that it was liable to pay the costs of a serious injury assessment only in the event that the claimant had sustained serious injuries that resulted in not less than ‘30% permanent body impairment’. A telephonic enquiry by the applicant’s attorney obtained confirmation from the relevant functionary at the Fund who had been dealing with the matter that he had not considered the narrative test to ascertain the seriousness, or lack
thereof, of the injury. In the court papers the Fund stated that if a request for financial assistance in respect of a serious injury assessment is not sufficiently substantiated to establish a prima facie indication of a serious injury it will not fund further investigation into the seriousness of the injury or its consequences. It further stated that the so-called narrative test is there to cover those isolated and rare cases where the objective criteria of the AMA6 are not met. It is a fallback position.

The court stated that the narrative test falls to be applied as an integral part of any serious injury assessment and this is indeed confirmed by the content of part 5 of the RAF4 form, which gives effect to regulation 3(1)(b)(iii) of Road Accident Fund Regulations (2008). There is nothing in regulation 3(1)(b) which suggests that the narrative test should be applied only in ‘rare and isolated cases’. The functionary of the Fund who declined the third applicant’s request in terms of regulation 3(2)(b) gave no consideration whatsoever to the possible effect of the application of the narrative test and plainly did not consider that the narrative test fell to be applied together with AMA Guides as ‘a collective’ and not as a fallback procedure when the AMA guidelines has not been met.

The decision by the Fund to decline the third applicant’s request in terms of regulation 3(2)(b) of the Road Accident Fund Regulations (2008) was set aside.

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Now for some words of wisdom –
“The blessing of the Lord makes truly rich, and He adds no sorrow with it (neither does toiling
increase it)” – Proverbs 10:22 (AMP)

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