Archive | November 2011

The Serious Injury Appeals Tribunal

Dear Reader,

Welcome to the twenty fifth edition of Independent Actuarial Consultant’s (IAC’s) monthly newsletter.

AKAAI JUDGEMENT ANALYZED – SOUTH GAUTENG HIGH COURT, CASE NO: 10/04245

BlackWhite Professionals

In this matter the fund raised a special plea questioning whether the Court had the jurisdiction to deal with the issue of general damages as they alleged the plaintiff did not comply with regulation 3 of the Regulations to the Act.

In compliance with regulation 3(1)(a) the plaintiff submitted himself to an assessment by medical practitioners. Duly completed RAF4 forms were provided in terms of the narrative test.

In terms of regulation 3(3)(c) the Fund shall only beobliged to compensate a third party for non-pecuniary loss if a claim is supported by a serious injury assessment report and the Fund is satisfied that the injury has been correctly assessed as serious. However, in terms of sub-regulation (3)(d)(i) to (iii), if the Fund or agent is not satisfied that the injury has been correctly assessed, the Fund must:

“(a) reject the serious injury assessment report, and furnish the third party with reasons for the rejection, or

(b) direct that the third party submit himself or herself, at the cost of the Fund or an agent, to a further assessment… “

In terms of regulation 3(3)(e), the Fund must either accept the further assessment or dispute the further assessment in the manner provided in regulation 3(4)(a) to (c) which states:

“(4) If a third party wishes to dispute the rejection of the serious injury assessment report…, the disputant shall ─

(a) Within 90 days of being informed of the rejection or the assessment, notify the Registrar that the rejection or the assessment is disputed by lodging a dispute resolution form with the Registrar;

(b) in such notification set out the grounds upon which the rejection or the assessment is disputed and include such submissions, medical reports and opinions as the disputant wishes to rely upon; and …”

In terms of regulation 3(5) once the Registrar is notified that the rejection or
assessment is disputed the rejection or the assessment shall become final and binding.

The Registrar shall after receiving the notification from the other party or the expiry of the 60 day period refer the dispute to an appeal tribunal paid for by the Fund.

Amongst other objections the defendant had directed the plaintiff to submit himself to a further assessment, which he did. The alternate serious injury assessments obtained by the defendant confirmed the assessment of the plaintiff’s injuries as serious.

As indicated earlier, in terms of regulation 3(4), if a third party wishes to dispute the rejection of the serious injury assessment then the third party must lodge a notice of the dispute with the Registrar. The plaintiff did not dispute the assessment performed by the defendant’s experts and it, therefore, did not refer a dispute to the Registrar to be considered by an appeal tribunal.

The defendant contended that once it rejected the serious injury assessment reports of the plaintiff, the plaintiff was required to refer the dispute to the appeals tribunal.

The court held that in view of the agreement between the plaintiff’s experts and those of the defendant’s as to the seriousness of the injuries there was no dispute which requires referral to the appeals tribunal. The mere say so by the Fund that it rejects the serious injury assessment report/s of a claimant’s medical practitioners does not, in itself, create a dispute.

Accordingly, absent a dispute as to the seriousness of the injuries, there can be no basis upon which a referral to the appeals tribunal would be justified. The defendant’s special plea was rejected.

The plaintiff was awarded R200 000 in respect of general damages.

Interestingly, during argument, counsel for the Fund contended that the Act does not contemplate the establishment of one single appeal tribunal, but rather that an appeal tribunal is to be convened by the Registrar following procedural compliance by the claimant after rejection, by the Fund, of his or her serious injury assessment report. In other words an appeals tribunal will be constituted by the Registrar, from time to time, and as and when a dispute requires consideration.

This contention seems to be in conflict with the obiter statement made in the Mngomezulu judgement, as analyzed in my October newsletter, quoted here for your ease of reference.

“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”

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Now for some fun –

Ambulance chaser.

Did you hear about the lawyer hurt in an accident?

An ambulance stopped suddenly.

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