All views expressed are solely those of the writer.
Date: 5 March 2012
Subject: Concession of suppliers claims, what’s the impact on the main claim?
Daniels & Others v RAF & Others dealt with a concession on a Supplier claim and the RAF then denied liability on the Personal Claim
The argument by some is that because there was a 80/20% merits settlement on the Supplier Claim in favour of the claimant it must also be applied to his personal claim – the claimant being “stone cold drunk sitting(laying) in a dark unlit parking bay when the Insured driver drove over him, I would rather think either a “repudiation or 80% @ the claimant
Judge Binns-Ward never said that any liability concession on a supplier claim should also be applied to a personal claim, what he did say was that the RAF must for fill its mandate in terms of Section 4(1)(b) – p. 3 par 4 “In terms of s 4(1)(b) of the Act, the powers and functions of the Fund include investigation and settling” (my emphasis)
p.4 par 6 “Put otherwise, it would be at odds with the provisions of the Act for the Fund to settle a supplier’s claim and, in respect of the related third party claim, at the same time purport to assert that the statutorily insured driver or owner was not liable for the third party’s relevant damage” (underlining my emphasis)
p.36 par 64 “If the matters currently before us are anything to go by, it is apparent that the more efficient and timely investigation of claims would significantly reduce legal costs. The proper assessment of claims and the timely submission to claimants of competently assessed and reasonably calculated offers would place third party claimants against the Fund under appropriate pressure to settle, rather that litigate at risk of being found liable for unnecessarily incurred costs” (underlining my emphasis)
According to me, the argument that a concession on the suppliers claim is a concession on the main claim is an attempt to “circumvent” the onus of proof especially in cases like the above or where the matter really borders on a repudiation.
My response to such an argument would be along the following lines :
- The judgement is incorrectly read (interpreted) and never said or implied that any merits concession on a supplier claim will by default also be applicable to the personal claim
- The claimant was not a party to the settlement agreement with the supplier hence he/she is not entitled to claim any benefits from such an agreement
- The personal claim of the claimant is deemed to be a separate claim in terms of Sec 17(1)(a) or (b) and is thus subject to proof of all the elements required to establish liability against the RAF
- Finally the settlement by the RAF on the supplier claim was on a “without prejudice” basis and was based on financial considerations and is therefore not binding on any subsequent claim(s) following from the same incident or cause of action.
Name: Danie Weideman, Senior Partner
Date: 24 February 2012
Subject: A reply to the “Anti-Amendment” Stance Post
Jy kan vir “naamloos” laat weet dat ons het onlangs die geleentheid gehad om op eksepsie (die eiser het ge-eksipieer teen die spesiale pleite as synde dit nie ‘n verweer openbaar nie) die lyn deur te trek en te argumenteer dat elkeen van die uitsprake doodeenvoudig voortbou op die vorige (doctrine of precedent) sonder dat dit opnuut oorweeg word, selfs met uitgebreide nuwe argumente. Die eksepsie is voor Satchwell J geargumenteer en sy is terug geneem na haar kommissie se verslag en spesifiek waar haar kommissie voorgestel het dat algemene skade beperk word en dat die AMA Guides gebruik word as ‘n riglyne. Ons wag nog vir haar uitspraak maar het goeie moed dat sy sal afwyk van die vorige uitsprake, net soos Coetzee AJ gedoen het in Meyer v RAF waar hy keer op keer bevind dat hy nie saamstem met vorige benaderings nie maar deur stare decisis verplig word om dit te volg.
Wanneer ‘n regter vir my se dit maak nie saak as die beserings in die RAF4 beskryf word as # sternum, multiple rib #, onstabiele pelvis # en dit later blyk die besering is feitelik slegs sagteweefsel nek en rug beserings nie OMDAT latere regsmediese verslae van die eiser bewys die beserings in hul eie RAF 4 is verkeerd en dus is daar geen benadeling vir die Fonds nie dan moet ek in my spore stuit. As die Fonds binne 60 dae gereageer het op die RAF4 soos Louw et al se hulle moes dan sou geen van die latere verslae ter hande gewees het nie en die besluit deur die Fonds sou geneem gewees het op nalatige verkeerde inligting. Daardie besluit van die Fonds sou verkeerd gewees het en die Fonds sou ongetwyfeld deur dieselfde hof gebonde gehou word aan daardie besluit. Daar is geen denkbare logika in die benadering nie. Die RAF4 moet oorweeg word gebasseer op die inligting wat op die stadium van die indiening van die RAF4 beskikbaar was. Jy kan mos nie se dat elke daaropvolgende regsmediese verslag vul die RAF4 aan nie? En dit is presies wat die howe se geneigtheid is. Wat beteken dit vir die Fonds? Volgens die Louw 60 dae beslissing beteken dit dan dat die Fonds ‘n nuwe 60 dae periode begin elke keer as ‘n regsmediese verslag beteken word en elke keer opnuut geleentheid gegee moet word om te besluit of hulle wil verwys of verwerp? En wat as ‘n verslag binne 60 dae van verhoor beteken word? Beteken dit nou dat die Fonds outomaties geregtig is op ‘n uitstel? Dit is mos ‘n onhoudbare situasie! As jy in ‘n eisvorm se dis voertuig X wat die skade veroorsaak het en 3 jaar later vind jy uit voertuig X bestaan nie, kan jy voortgaan op ‘n ongeidentifiseerde basis? Beslis nie, die regspraak is duidelik, jou ongeidentifiseerde eis het verjaar. Hoe kan jy enige beserings wat jy lus het uitdink in die RAF 4 en later se dit maak nie saak nie want daar is regsmediese verslae wat die teendeel bevind? Dan sou die assessorsverslag wat se voertuig X bestaan nie mos ook voldoende wees om verjaring terugwerkend te stuit? Dit is so onlogies ek kan nie glo dat “a trained legal mind has been applied” nie.
Egter, ek is ongetwyfeld bevooroordeeld. Vir my is dit belangrik dat die Fonds beide finansieel en juries bly voortbestaan want sonder dit gaan ons erge sosiale probleme skep. My firma doen korttermyn versekeringswerk en ek weet watter impak ‘n skadebevinding het op ‘n onversekerde bestuurder, dit ruineer lewens. As die Fonds, soos daar al meer en meer aangedui word, gedwing word om Artikel 21 te gebruik gaan dit baie mense emosioneel en finansieel vernietig. Wanneer ek dan sien dat kollegas en andere doelbewus besluite neem wat na my mening kortsigtig is en die finansiele voordele wat daar gehoop was verkry kon word deur die wysigingswet negeer en dus dat die finansiele posisie van die Fonds nie verbeter nie maar net aanhoudende versleg dan kan ek nie help om ergelik te raak nie.
Date: 23 February 2012
Subject: The “Anti-Amendment” Stance of the South Gauteng HC
We have read the article “Appeal status of recent judgments in the South Gauteng HC” posted by our learned colleague wherein he expresses his opinion regarding the so called “anti-Amendment stance” of the South Gauteng High Court.
Although we note the contents of the article, and appreciate the valued input which our colleague undoubtedly gained as a result of his long-term experience as a well-known Defendant attorney, we differ on some of the statements made.
In our opinion it is irresponsible and unfair criticism against the Court and the specific cases mentioned in his article and we do not understand how a senior colleague will level remarks such as “bad law” and “it is clear to see that no original thought went into most of the comments made” without substantiating the reasons upon which he bases such assertions. To imply that certain Judges do not apply their own mind is a serious accusation especially where they are not given an opportunity to answer to same.
The difference between the matters in the South Gauteng High Court as opposed to the North Gauteng High Court, for example, lies, in our opinion, in the automatic separation of quantum and merits which occurs at the North Gauteng High Court as soon as merits are in dispute.
It seems that most of the issues which are disputed relate to quantum and that in the South Gauteng High Court, as opposed to the North Gauteng High Court, it appears that the parties must either agree on a separation or the Court must order same after hearing legal argument.
The fact of the matter is that it will ultimately lie with the SCA to determine whether these judgments do in fact constitute good or bad law. Furthermore, the “anti-Amendment stance” does not seem to be isolated to the South Gauteng High Court, as decisions which the Defendant might perceive as “anti-Amendment Act”, have occurred in other jurisdictions, notably the North Gauteng High Court (F T J Nhambe v RAF, Case No. 70721/2009) and the Western Cape High Court (C A Daniels and others v RAF and others, Case No. 8853/2010).
Date: 20 February 2012
Subject: MOKOENA v RAF – A summary
MOKOENA .v. RAF – CASE NR 38170/2010 (SGHC – JHB)
The Issues in the matter were as follows : (p. 5 par 8 continues on 6)
- Does a Medical Practitioner have to physically examine the claimant to complete the RAF 4?
- Can a Narrative be done without using the AMA Guide?
- Is an Occupational Therapist competent to complete the RAF 4?
- Must a RAF 4 be rejected within a reasonable or stipulated period?
Issue 1 :
- The judge in analogy to the matter of (Kubeka v RAF) gave interpretation to the word “assessment/assessing” and came to the conclusion it means “evaluate or estimate (p. 8 par 13 – 14)
- Rejection based on that “no assessment” due to no physical examination was not accepted by the court (p.8 par 15)
- Assessment does not mean physical examination, reliance & review of medical records will suffice for purposes of a “proper assessment” (p. 9 par 16)
- MMI was also addressed (p. 10 par 18 – 19) and the judge concluded with reference to the (Akaai matter) that failure to reach MMI is not a proper reason for rejection
- If General Damages is assessed on the Narrative Test MMI is irrelevant
My View on Issue 1
- The Judge has err, in my view, badly and our Attorneys (not knowing the AMA) failed to correct the judge and they should have argued :
- In terms of the HPCSA Act a Medical Practitioner cannot complete a report without examining or seeing the patient(or claimant);
- To allow this would breed “fraud” and negate Sec 17(1) by which a Third Party must proof a nexus between a bodily injury & mva
- Chapter 2 of AMA Guide – p. 20 Rule 7 clearly states that the medical examiner will follow a 3 step approach when doing an assessment;
- The 3 step process is explained under the heading “Preparing Reports” par 2.7a refers to the Clinical Examination – (p. 28 of AMA Guide);
- The judge also erred by stating failure to reach MMI would bar a claimant from claiming due to prescription setting in – he failed to consider Reg 3(3)(b)(ii)
Issue 2 :
- This is a contentious issue :
a. the Daniels matter stated the AMA & narrative is a collective assessment;
b. the Mngomezulu matter disagreed & said it’s not necessary
- The judge said the argument has no merit as the plaintiff is not relying on a 30% WPI but on the Narrative Test to claim Generals (P. 12 par 22)
- The claim is based on serious long term impairment or loss of body function (p. 12 par 22)
Issue 3 :
- Sec 17(1A)(b) – “The assessment shall be carried out by a Medical practitioner registered as such under the Health Professions Act” (p. 13 par 25)
- This issue should never have been raised and is the result of poor preparation
Issue 4 :
- Once again failure to respond within reasonable time – defendant (RAF) saw it fit to wait approximately one year to reject (p 15 par 30)
- To reject without any explanation after more than a year was male fide (p. 17 par 36)
- The RAF’s argument that the Regulations does not provide a time limit was rejected (p. 15 par 32) (reference to the Louw Matter & Kubeka matter was made – p. 16 par 34 & 35)
- Rejection was without any real evidence “has not provided one iota of medical evidence simply rejected in a conclusory manner” (p. 18 par 41b)
- Page. 19 par 42 summarizes the Courts’ intolerance with the persistent stance and the end result is punitive costs
From : Danie Weideman, Senior Partner at Lindsay Keller
Date : 16 February 2012
Subject : Appeal status of recent judgments in the South Gauteng High Court
As far as the string of judgments in the South Gauteng High Court is concerned I am advised by the RAF that it is the only division of the High Court that have taken such a strong anti-Amendment Act stance. Be that as it may, in respect of a number of recent judgments applications for leave to appeal have been launched. In this regard the following:
- Lebeko v RAF – Leave to SCA has been granted and the matter is well on its way;
- Kubeka v RAF – Leave to SCA has been granted and reduced time periods have been agreed to expedite the matter;
- Mokoena v RAF – Leave to SCA has been granted;
- Mngomezulu v RAF – the application for leave directly to the SCA is on the roll for 16 March 2012;
- Duma v RAF – the application for leave directly to the SCA is on the roll for the 29th February 2012;
- Mokwena v RAF – still waiting for a date to be allocated for the application.
In our opinion none of these matters constitute good law and we are confident that once the SCA has had opportunity to consider the issues surrounding the Regulations sanity will prevail. In fact, a careful analysis of these matters suggest that no original thought went into most of the comments made in the latter matters but that they all simply followed the Bekker AJ judgement in the Louw v RAF matter. In respect of the Louw matter the applications for leave to appeal (there were two, by the RAF and the firm that dealt with the matter originally in respect of the costs order) were both dismissed. As leave to appeal had at that stage already been granted in Lebeko the decision was taken not to petition on Louw but to argue the issues on the Lebeko and other matters. Counsel for the RAF is Wim Trengove SC, with him Steven Budlender and Reza Latib.
I have just finished reading Klopper’s article in the October issue of the De Rebus of 2011 – “The Nature and Conduct of “Serious Injury”A question then hit me : Is the RAF 4 a Claim Form or an Assessment Report?The question becomes relevant with regards to :
- Prescription and
- Can the RAF 4 be then lodged after the Sec 23(1) Prescription period?
Lodgement must first be understood as in the Third Party environment it holds a very distinct meaning and consequences, the term lodgement is only mentioned in the Act once under Sec 23(3) :
Notwithstanding subsection (1), no claim which has been lodged (my emphasis) in terms of Sec 17(4)(a) or 24 shall prescribe before the expiry of a period of 5 years from the date on which the cause of action arose
Sec 23(1) reads as follows :
Notwithstanding anything to the contrary in any law contained, but subject to subsection (2) and (3) the right to claim compensation (my emphasis) under Section 17 from the Fund or an agent in respect of loss or damage arising from the driving of a motor vehicle in the case where the identity of either driver or the owner thereof has been established, shall become prescribed upon the expiry of a period of three years from the date upon which the cause of action arose.(my emphasis)
The question now begging is there a difference between a right to claim and lodgement of a claim or does a right encompass lodgement or visa versa?
To answer this one has to realise that a victim’s right to claim starts on the date upon which the cause of action arose i.e. the accident date in the case of Injury Claims and in the case of a Loss of Support Claim (including Funeral Expenses) on the date of the victim’s demise
Lodgement on the other hand means “submit or hand in” in terms of Sec 24(1)(b) lodgement of a claim must be done in a very specific way i.e. by registered post or delivered by hand
In terms of Sec 23(3) a claim which was lodged will not prescribe before a period of 5 years has expired thus although the right to claim prescribes after 3 years from the date upon which the cause of action arose that right has to be lodged and be substantially compliant in terms of Sec 24 which simply means a claim form has to be handed in at a RAF Office within the 3 years
Once substantially complaint lodgement has taken place the claim does not expire upon a period of 5 years from the date upon which the cause of action arose
This means that a claim form can be amended any time before the expiry of 5 years as the right to claim has already been established
Under the Amendment Act, Act 19 of 2005 the only Claim form is the RAF 1 – on the form itself it is named “Third Party Claim Form” it is also the only form that makes provision for the claiming of General Damages thus once this RAF 1 has been lodged the claimant can amend this form or supplement it anytime within the 5 year period by submitting (lodging) any further documents reports or assessments (inclusive of the RAF 4)
The RAF 4 is not a claim form on the form itself it is named “Serious Injury Assessment Report” (my emphasis) thus one could even argue or equate it to a Medico Legal Report because is a Medico Legal Report not per se also an “assessment or further assessment” support for this contention could be found in Sec 17(1A)(a) & (b) where the sections talks about “assessment”
In terms of Reg 1 (x) of the 2008 Regulations a RAF 4 is defined as a “serious injury assessment report” in fact the word(s) that runs like a golden thread through the regulations is assessment and assessed never does the Regulations refer “claim form”
In terms of the prescription regulation – Reg (3)(b)(i) talks about ”the serious assessment report may be submitted separately after the submission of the claim at any time before the expiry of the periods for the lodge lodgement of the claim prescribed in the Act and these Regulations” this lends support to the fact that the RAF 4 is indeed not a claim or a claim form but an “assessment report”
This very regulation Reg (3)(b)(i) makes it even possible that this serious assessment report can be submitted separately does this not even further supports the fact that like a medico legal report the RAF 4 is indeed an assessment report or further assessment report
It is also noteworthy that Reg 7(1) of the 2008 Regulations only refers to the RAF 1 to be attached and that the accompanying medical report in terms of Sec 24(1)(a)
If we regard the RAF 4 as a serious assessment report which proofs the claimant’s right to General Damages already claimed in the RAF 1 then the 60 day period referred to in Se 24(1) cannot hold water as it is not an additional claim and is the judgments in the Louw .v. RAF & Mngomezulu .v. RAF wrong and can the RAF 4 be filed after the right to claim as envisaged in terms of Sec 23(1)but before the five year period indicated in Sec 23(3)