Overview:
The current assessment process for general damages in the Road Accident Fund (RAF) is facing significant challenges due to delayed and inconsistent claims assessments. These challenges have led to many cases being postponed indefinitely, often due to the RAF's failure to participate in trial proceedings, delayed decisions on the seriousness of injuries, and the occasional rejection of claims involving serious injuries.
By adopting a more stringent and timely approach to general damages assessments, claims would be finalised efficiently, which may result in fewer cases requiring litigation. The prolonged delays contribute to unnecessary litigation, which further burdens an already overwhelmed legal system. With delays sometimes stretching for years, the need for reform is now more urgent than ever.
Introduction:
Assessing general damages in the RAF claims process is one of the most challenging aspects of South African personal injury law. Unlike pecuniary damages, general damages compensate for pain, suffering, disfigurement, and loss of amenities of life, which are all difficult to quantify. As a result, the assessment process can be inconsistent, brings uncertainties and often leads to delays in compensation payouts.
In addition to this difficulty, courts lack jurisdiction to award general damages unless the RAF is satisfied that the injury has been correctly assessed. While the framework for assessment has been established through Regulation 3 of the Road Accident Fund Regulations (2008), implementing this framework has proven difficult in practice. The RAF often delays accepting or disputing the assessments and disputes claims without adequate reasons. This has further contributed to a large backlog at the Health Professions Council of South Africa (HPCSA) Appeal Tribunal and significant delay in finalising claims.
The challenges in the current system:
In theory, a Serious Injury Assessment Report (RAF 4 Form) must be completed by a qualified medical practitioner, after which the RAF reviews the assessment to determine whether the injuries qualify as serious. Regulation 3(3)(dA) states that the RAF must evaluate and make a decision within 90 days of receiving the RAF 4 Form.
However, in practice, the RAF often fails to meet this statutory deadline, which leaves claimants with uncertainty for months or even years. In some cases, RAF officials only communicate their decision in court on the day of trial, without having provided an official response beforehand. Even when rejections are issued, they are often vague and don't set out sufficient reasons for the rejection, which makes it difficult for the claimants to challenge them.
When a claimant disputes the RAF's rejection of their RAF 4 form, the matter must be referred to the HPCSA Appeal Tribunal. This process is designed to provide independent oversight, but due to significant backlogs, cases often take years to be heard. In fact, many cases that reach the Tribunal involve clear-cut serious injuries that should never have been rejected in the first place.
In cases that proceed to court, the RAF frequently fails to appoint attorneys or file expert reports on the seriousness of the injuries. As a result, the issue of general damages is often postponed, which results in claimants having to wait even longer for payouts. In most cases, claimants proceed with their expert evidence uncontested, but without the RAF's confirmation of seriousness, the court lacks jurisdiction to award general damages.
Another major issue is that some serious injuries are rejected without proper analysis, which gives rise to unnecessary disputes. This undermines the credibility of the RAF system and contributes to prolonged litigation.
Addressing the delays and improving the process:
Given the serious delays and inconsistencies in the current system, the RAF should adopt a more proactive role in ensuring that serious injury assessments are conducted promptly and fairly. Instead of waiting for disputes to escalate to litigation, or the HPCSA Appeal Tribunal, the RAF should implement the following measures:
- The RAF must strictly adhere to the 90-day statutory deadline. Claimants should not have to wait indefinitely for a decision.
- If a claim is rejected, the RAF should provide a detailed explanation, which must be supported by medical reasoning. This would allow claimants to challenge decisions effectively.
- The RAF's medical unit should ensure that assessments are based on standardised criteria, to reduce inconsistencies where similar injuries receive different outcomes.
- Instead of only providing a response on the day of trial, the RAF should engage with claimant's attorneys pre-emptively, to reduce the number of postponed cases.
Conclusion:
The prolonged delays in assessing general damages claims have created significant issues in the legal system. By improving adherence to deadlines, ensuring prompt communication, and applying consistent assessment standards to claims, the RAF can significantly reduce delays. These changes would bring much-needed efficiency to the system.
Reviewed by Nicolette Kock
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