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.
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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