Road Accident Fund v Faria

On 26 January 2011, the respondent (Faria) was injured in a road accident while riding a bicycle. He suffered a head injury (comatose for 4.5 days), right shoulder injuries requiring surgery, four fractured ribs, and various abrasions. He claimed damages of R850,000 from the Road Accident Fund (RAF). The RAF's liability was established at 100%. Parties settled past medical expenses at R217,169.94, and the RAF gave an undertaking for future medical expenses. The remaining dispute concerned general damages. Dr De Graad (orthopaedic surgeon) completed a RAF 4 'serious injury assessment' form, concluding the plaintiff suffered a 'serious injury' based on the narrative test (permanent serious disfigurement and severe long-term mental/behavioural disturbance). Dr Swartz (RAF's expert) initially did not complete a RAF 4 form but later joined Dr De Graad in a joint minute confirming 'serious injury'. On 8 March 2013 (day before trial), the RAF rejected Dr De Graad's RAF 4 form in terms of Regulation 3(3)(d)(i). The high court (Weiner J) awarded general damages of R350,000, distinguishing the case from Road Accident Fund v Duma and holding the objections had fallen away due to the joint minute. The RAF paid the amount but later discovered it had done so mistakenly and appealed (while undertaking not to recover the amount and to pay costs).

• Whether the high court had jurisdiction to award general damages when the RAF had not been satisfied that the injury was 'serious' as required by the Road Accident Fund Act and Regulations
• Whether the RAF is bound by its own expert's determination that an injury is 'serious'
• Whether a joint minute between medical experts from both sides can bypass the prescribed administrative procedure for determining 'serious injury'
• Whether the procedural requirements in Regulation 3 of the RAF Regulations must be followed even when the RAF's own expert agrees the injury is serious
• Whether the appeal should be dismissed as moot given that the RAF had paid the amount and undertook not to recover it

The appeal was upheld. The order of the high court that the Road Accident Fund pay the plaintiff R350,000 as general damages was set aside. No order was made for recovery of the amount already paid, as the RAF undertook not to seek recovery and to pay the plaintiff's costs.

Under the Road Accident Fund Act 56 of 1996 as amended and the Regulations promulgated thereunder, the determination of whether an injury is 'serious' for purposes of claiming general damages is an administrative decision governed by prescribed procedures in Regulation 3, not a judicial determination. The RAF is not bound by its own expert's assessment that an injury is 'serious' and has the statutory right to reject such assessments and require compliance with the prescribed procedures, including referral to an Appeal Tribunal if necessary. A joint minute between medical experts does not confer jurisdiction on a court to award general damages; rather, the jurisdictional fact is that the Fund must be satisfied the injury is serious through the prescribed administrative process. Unless this jurisdictional fact is established, the court has no jurisdiction to entertain a claim for general damages. Where the Fund has rejected an assessment, the court should postpone the matter to allow completion of the prescribed procedures rather than award general damages.

The Court observed that the amendment Act and Regulations introduced 'two paradigm shifts': (i) general damages may only be awarded for injuries assessed as 'serious'; and (ii) the assessment is an administrative rather than judicial decision. The Court noted sympathetically that medical practitioners, lawyers and judges experienced in the field may have found it difficult to adjust to the new regime, observing that 'past legal practices, like old habits, sometimes die hard' and 'we are all on a learning curve'. The Court also observed that the fact that within two months the RAF's expert changed his view about whether the injury was serious indicated 'some uncertainty in the matter that may justify further exploration'. While expressing possible understanding of the trial judge's exasperation with the RAF's stance, the Court emphasized this does not justify departure from the legislative scheme. The Court provided guidance on when moot appeals should be heard, emphasizing that appeals raising important questions of law likely to arise frequently in future, affecting numerous pending cases, should be decided in the public interest to provide legal certainty and avoid continuing confusion.

This case is significant in South African law as it clarifies the procedural and substantive requirements for claiming general damages under the amended Road Accident Fund Act and Regulations post-2008. It establishes that: (1) The assessment of 'serious injury' is an administrative decision, not a judicial one; (2) The RAF is not bound by its own expert's determination of serious injury and may exercise its statutory right to reject such assessments; (3) Joint minutes between medical experts from opposing sides do not bypass the prescribed administrative procedure; (4) Courts lack jurisdiction to award general damages unless the Fund is satisfied the injury is serious through the prescribed process; (5) The determination must follow Regulation 3 procedures, potentially culminating in an Appeal Tribunal determination. The case resolves judicial discord in the high courts regarding these issues and provides legal certainty in an area of frequent litigation. It also demonstrates the court's willingness to hear appeals despite mootness between parties where important questions of law affecting numerous pending and future cases are involved.