Parliament has now published draft legislation to deal with passenger claims in light of the Mvumvu judgement.
I expressed the opinion in my July newsletter (issue no.24) that if parliament does not enact some mechanism for passenger claims, where summons was issued in the Mag court and prescription has taken place, to be transferred to the High court, some claimants might not receive any benefit from a different compensation regime.
This is exactly what has transpired.
Based on the Oosthuizen judgement (again this is available under the judgement tab at the top of this page), as discussed in my July newsletter, there are two factors weighing against a claimant successfully transferring his claim where he has issued summons in the Mag court and prescription has taken place namely, “the high court can only exercise its inherent jurisdiction … when confronted with a case over which it already has jurisdiction” and “A high court may not use its inherent jurisdiction to create a right.” especially if prescription has extinguished part of a claim.
However, such a scenario would not be based on any fault or oversight on the part of the claimant or his attorney but it would be a case of “the appellant’s access to court being impeded by some lacuna in the law” and “Furthermore the appellant is … without remedy.” These two factors might convince the court that “it is a case in which it is necessary to fashion a constitutionally acceptable remedy because of the interests of justice”
What are your views on this?
Mngomezulu Judgement Analyzed – South Gauteng High Court, Case NO: 04643/10
The plaintiff, a 27 year old man, sustained injuries when he was the victim of a hit and run accident that took place on 8 August 2009.
The injuries suffered by the plaintiff were: compound right tib-fib fractures, a closed chest injury with lung contusion, a 30 cm laceration of the right thigh and a head injury with loss of consciousness.
The fund raised a special plea stating that the plaintiff did not comply with Regulation 3.
The court confirmed the decision in Louw (as discussed in last months newsletter) that the fund has to object to a plaintiff’s RAF 4 form within 60 days of receiving same failing which it is a valid claim.
In coming to its conclusion the court set down guidelines that will be of great value when dealing with serious injury matters in future. Some of them follow hereunder along with the paragraph reference to the judgement:
1. In terms of Sec 24(5) the fund must object to the Plaintiff’s RAF 4 within 60 days of receiving same. – Par 24
2. When claiming for a serious injury under the narrative test it is appropriate that an RAF 4 form be produced for each particular and applicable medical discipline that is called for by Reg 3(1)(b)(iii)(aa) – (cc):
Regulation 3(1)(b)(iii)(aa) speaks of long term impairment or loss of body function, typically falling within the area of expertise of an Orthopaedic Surgeon or an Occupational Therapist;
Regulation 3(1)(b)(iii)(bb) speaks to serious disfigurement typically falling under the area of expertise of a Plastic Surgeon;
Regulation 3(1)(b)(iii)(cc) speaks to long term or severely long term behavioural disturbance or disorder typically falling within the area of expertise of a Psychiatrist, a Psychologist or a Neuropsychologist. – Par 33 &34
3. Matters cannot be referred to the tribunal i.t.o. Reg 3(4) until such time that the tribunal is operational. – Par 41 & 50
4. For the rejection of a claimants RAF 4 form to have occurred in the prescribed manner the Defendant must substantiate the rejection with relevant, rational and sustainable reasons. When a Defendant furnishes generalised, vague and non-descript reasons, such rejection will not meet the requirements of Regulation 3 and therefore may not amount to a proper rejection or objection. – Par 47
5. When the defendant wishes to object to a claimants RAF 4 form on the basis of procedural grounds it must avail itself of Reg 3(3)(d)(i). – Par 49
6. When the defendant wishes to object to a claimants RAF 4 form on the basis of a difference of medical opinion it must avail itself of Reg 3(3)(d)(ii), substantiated by opposing expert reports. – Par 49 & 53
7. A plaintiff is not obliged to first be assessed in terms of WPI or AMA’s before the narrative test can be applied. – Par 51
8. The concept of MMI (maximum medical improvement) is irrelevant to the assessment of the Plaintiff’s injuries in terms of the narrative test. – Par 54
9. Regulation 3(4) can only be invoked following the processes contemplated by Regulation 3(3) and in particular, Regulation 3(3)(d)(i) and (ii). – Par 65
The court awarded the plaintiff R 600 000.00 in general damages.
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