Mngomezulu Judgement Analyzed – IAC Newsletter 24/2011, (October 2011)

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.

Image

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.

Sending us an Instruction

Our dedicated full time professional team receive instructions by any of the following means:

• Email : damagesclaims@iac.co.za, or
• Post : PO Box 1172, Cape Town, 8000
• Fax : 086 616 8308

Now for some fun –

Q: What do you throw to a drowning lawyer?
A: His partners.

Q: How many lawyer jokes are there?
A: Only three. The rest are true stories.

Advertisements

Tags:

2 responses to “Mngomezulu Judgement Analyzed – IAC Newsletter 24/2011, (October 2011)”

  1. Sasha Jungschlager says :

    When does the RABS(Road Accident Benefit Scheme) come into operation, and will it be applied retroactively to all outstanding claims on which summons has not gone out?

  2. Anonymous says :

    THE 60 DAY FALLACY

    There is a perception among attorneys (although in my view misplaced) that if the RAF do not respond to the RAF 4 Serious Assessment Report then RAF is liable for General Damages.

    Hence my subject text – “the 60 day fallacy” this is a misplaced conception and is in my view an incorrect interpretation of the Case Law.

    In the matters of Louw v RAF & Mngomezulu v RAF reference was made to the 60 day period to object (reject) the RAF 4 however in both decisions the Judges relied on Sec 24(5) of the RAF Act.

    Sec 24(5) of the RAF Act deals with Substantial Compliance i.e. RAF 4 should be Substantially Compliant with regards to :

    A qualified person must complete the form – i.e. a medical practitioner registered in terms of HPCSA;
    The Assessment must be done in accordance with the method(s) prescribed;
    The Impairment evaluation report (Annexure(s) A/B/C must be attached) should be filled in;
    The Report must be completed in all its particularity.
    This was listed on p. 19 par 49 (p. 18) in the Mngomezulu Matter, in the words of the judge “Reg 3(3)(d)(i) should be available to the defendant where it seeks to reject the serious injury assessment report on procedural but rational grounds” (my emphasis) – the judge then, in my view, in a preceding paragraph (p. 17 par 46) contradicts himself by stating that failure to object within the 60 days establish a duty on the defendant (RAF) to pay general damages.

    If this argument by the attorneys and the judge in the Mngomezulu matter is taken to its full conclusion then it means that in all pre amendment claims where RAF has not used Sec 24(5) the RAF will be liable in terms of Par. 8 for all and any amounts claimed without the RAF having the benefit to assess, investigating or validating the correctness of the amounts claimed – surely this could never have been the intention.

    To take this even further would negate Sec 19(a) if this line of argument is followed – any common law defences (COIDA – Sec 35(1) would fall by the way side because we did not object within 60 days as contemplated by Sec 24(5).

    The RAF 4 Serious Injury Report is a pre requisite for claiming General Damages (e.g. if you go to a bank to fill in a loan application the completion of the application does not guarantee you money you still have to meet certain criteria) – i.e. the report has to be submitted – it does not follow that submittance implies entitlement by claimant to General Damages because the Assessment must meet a certain criteria and the RAF is entitled to challenge the assessment in terms of Reg 3(3)(d).

    If the Assessment is incorrect or does not meet the set criteria the claimant is not entitled to Generals although the RAF 4 is compliant in terms of Sec 24(5).

    You should not forget that both these matters where the 60 days were applied is on Appeal, also that both the decisions were handed down in the South Gauteng High Court and as such only has persuasive authority for the time being.

    In the Nhlanhla matter the Court even allowed the Plaintiff to amend their claim to use the “narrative test” to claim General Damages and further reports were filed in support thereof, if the argument of Louw & Mngomezulu is followed then it means if the RAF has failed to object in terms of Sec 24(5) within 60 days an attorney can then use the narrative test file further reports without affording the RAF the opportunity to challenge the “additional assessment method” and or any of the reports filed.

    This would then in my view make Sec 3(3)(d) absolute – as all that has to happen is an attorney waits until the lapse of 60 days after filing a RAF 4 and on expiry use the alternative assessment method (the narrative) supplemented with additional reports and the RAF would be liable to pay – come to think of it the whole Appeal Tribunal Procedure would be a nullity.

    To argue because failure to respond within 60days to the RAF 4 Serious Injury Report/Assessment would entitle a claimant to General Damages is untenable.

    In conclusion failure to respond does not imply that the assessment is accepted.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

w

Connecting to %s

%d bloggers like this: