Van Zyl v Road Accident Fund (34299/2009)  ZAGPJHC 118 (11 June 2012)
The plaintiff was injured in a MVA on 2 August 2008. The period of three years specified for lodgement of a claim expired on 1 August 2011. The plaintiff’s claim was lodged on 8 January 2009. However the RAF 4 form was only served on 6 February 2012.
The defendant filed a special plea which states: ‘[t]he RAF 4 form may be submitted after the submission of the claim but before the expiry of the periods for lodgement of the claim as prescribed in the RAF Act’ and that the plaintiff’s claim for general damages ‘prescribed on 1 August due to the fact that the RAF 4 was not submitted within 3 years from date of accident’.
The question before the court was whether or not the claim lodged on 8 January 2009 constitutes a claim in respect of general damages or does such claim only arise once the ‘serious injury assessment report’ has been lodged.
The defendant argues that, without submission of ‘a serious injury assessment report’, no claim in respect of non-patrimonial loss can or does exist.
The court held that the claim envisaged by the Act is neither correspondent with nor one and the same as the serious injury assessment report. They are two documents prepared for different purposes. The claim notifies the RAF of the identity of the claimant, the motor vehicle accident, the identification of the insured motor vehicle, the injuries and the loss caused thereby and the computation of the compensation claimed. The report provides support in substantiation of the claim, it is evidence of the claim, it is not the claim itself.
The court further held that the Act stipulates only one procedure for presentation of the claim. Where the form RAF 1 is completed in full and then submitted, the ‘claim’ as intended by the Act has been lodged. Should there be any challenge to the validity of the claim, then the RAF has a period of sixty days within which to notify the claimant of any challenge to thereto. If the claim was challenged by reason of absence of the supposed prerequisite of form RAF4, then one would expect the RAF to have notified the claimant.
The court further held that the prescription periods provided for in the Act, namely the initial three years and the extension of two years, are both periods during which the form RAF 4 may be submitted to the RAF.
The court further held that the obligation of the RAF to compensate the claimant may only arise once the form RAF 4 (the serious injury assessment report) has been submitted. Notwithstanding, that no liability of the RAF may arise prior to submission of RAF 4 form, the claim may be valid in all respects.
Accordingly the claim for compensation in respect of non-patrimonial loss has not prescribed.
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Van Loggerenberg v RAF
In this case the plaintiff submitted a serious injury assessment form i.t.o. reg 3(3)(a) describing her injuries as a serious long term impairment or loss of a body function. The Dr’s handwritten notes stated that she had lost ¾ of her left index finger.
The defendant rejected her RAF 4 form 5 days before trial informing her that her injury does not constitute a 30% WPI as required i.t.o. the AMA guides and further that her RAF 4 form establishes no basis that the four elements of the narrative test has been satisfied.
The letter continued stating that if the plaintiff wishes to dispute the rejection she can do so by following the procedure set out in Reg 3(4) and 3(13).
Subsequently a special plea was raised that the plaintiff cannot claim general damages unless she complies with the act. The plaintiff did not respond, instead the plaintiff relied on the Louw matter, stating that the Fund had to reject the RAF 4 within 60 days of receiving it, failing which the claim for general damages is a valid claim.
The judge disagreed stating that neither the act not the regulations stated a time period within which the fund had to reject the plaintiff’s RAF 4 form.
The judge further stated that he is of the opinion that there should be a distinction between a claim for pecuniary and non-pecuniary loss in regards to the provisions of Sec 17(1)(b) of the act.
The judge went on to distinguish this case from the Louw matter on the grounds that in the latter case evidence was presented to the court in respect of the seriousness of the plaintiff’s injuries.
In closing the judge stated that the RAF 4 form should deal with the effects of the injury in detail where the narrative test is employed.
The special plea was upheld.