Road Accident Fund v Fonesca Rui Fernando Faria

The respondent, while riding a bicycle, was injured in a motor vehicle collision on 26 January 2011 in Johannesburg. The Road Accident Fund (RAF) conceded liability for 100% of his proven damages. The respondent sustained head injuries (including a coma), shoulder injuries requiring surgery, fractured ribs, abrasions, scarring, and alleged psychological sequelae. Past medical expenses and future medical costs were settled, leaving only general damages in dispute. A serious injury assessment (RAF 4) by the plaintiff’s orthopaedic surgeon concluded that the injuries were serious under the narrative test. A further assessment by an RAF-appointed orthopaedic surgeon initially suggested otherwise, but a joint minute between the two experts later agreed that the injuries were serious. Despite this, the RAF formally rejected the RAF 4 assessment in terms of Regulation 3. The High Court nonetheless awarded general damages of R350 000, holding that the joint minute rendered further regulatory procedures unnecessary. The RAF appealed.

The appeal was upheld. The High Court’s order directing the RAF to pay R350 000 as general damages was set aside.

The case clarifies and reinforces the post‑2008 RAF legislative framework by confirming that the determination of ‘serious injury’ is an administrative decision of the RAF, not the courts. It resolves conflicting High Court decisions and establishes that even a joint minute between experts cannot confer jurisdiction on a court to award general damages without compliance with Regulation 3. The judgment is important for ensuring uniformity, legal certainty, and adherence to statutory dispute resolution mechanisms in RAF litigation.