Fookwe v Road Accident Fund

On 7 July 2015, the plaintiff, a self-employed businessman, sustained serious injuries in a motor vehicle collision, resulting in the permanent loss of most of the use of his right arm. He claimed compensation from the Road Accident Fund (RAF). The RAF conceded liability over seven years after the action was instituted. All heads of damages were settled except for past medical and hospital expenses, which the RAF disputed on various grounds including amounts paid by the plaintiff's medical aid scheme, Discovery Health, certain rejected claims, and claims rejected under an internal RAF directive regarding ICD codes.

• Whether the RAF is liable for past medical expenses already settled by a medical aid scheme, given section 19(d)(i) of the RAF Act and regulations 7 and 8 of the Medical Schemes Act.
• Whether the plaintiff is entitled to recover amounts rejected by the RAF due to illegible invoices, lack of causal link, or unregistered service providers.
• Whether the RAF's internal directive on ICD codes can retrospectively bar the plaintiff's claim for past medical expenses.
• Whether the RAF's internal processes for rejecting claims comply with principles of procedural fairness and the RAF Act.

The court ordered that the plaintiff is entitled to payment of the full amount claimed for past medical and hospital expenses: R301,071.79 (Discovery Health portion), R10,925.58 (rejected items allowed), and R161,828.17 (code-rejected items), together with costs. The order was made in terms of the draft annexed to the judgment, which also covered the settled heads of damages.

1. Section 19(d)(i) of the RAF Act does not render unenforceable a third-party claim where the claimant has undertaken to reimburse their medical aid scheme; such an undertaking does not constitute a champertous agreement and the RAF remains primarily liable. 2. The RAF's internal directives cannot apply retrospectively to affect pending claims and must comply with procedural fairness; failure to notify claimants of rejections based on internal codes cannot prejudice the claimant. 3. The RAF cannot, through internal directives, impose requirements beyond those prescribed by statute or regulation, and must not bypass the Minister's regulatory powers under the RAF Act.

The court noted the RAF's conduct during the trial as regrettable, including its late postponement request, the unexplained absence of its legal representative during closing argument, and its initial refusal to allow a draft order despite earlier agreement. The court also remarked on the vague nature of the RAF's ICD code directive and the failure to communicate rejections to the plaintiff, which deprived him of an opportunity to comply. The judgment affirmed the principle that internal RAF directives cannot override the statutory scheme and cannot be applied retrospectively.

This judgment reinforces and extends the principle established in Van Tonder v RAF and Abdool-Carrim that medical aid scheme reimbursement undertakings do not fall foul of section 19(d) of the RAF Act. It critically examines the RAF's practice of issuing internal directives that impose additional claim requirements without statutory authority, particularly regarding ICD codes. The case affirms that such directives cannot be applied retrospectively and that procedural fairness requires proper notification to claimants. It also underscores that the RAF Act does not permit two sets of rules—one by regulation and another by internal directive—and that the RAF's administrative powers cannot override the Minister's regulatory powers. This decision is significant for its strong stance against unlawful administrative practices by the RAF and its protection of third-party claimants' rights.