It is well known within the field of third party law that should the Road Accident Fund reject a claimant’s serious injury the aggrieved third party may lodge a dispute resolution with The Health Professions Council of South Africa.
Such referral broadly places a third party’s hope to be compensated for general damages within the realm of independent medical examiners with supposed expertise in the appropriate area of medicine. The process might seem uncomplicated and to good effect but what door opens to a third party should these independent examiners get it wrong? The answer takes the form of a review application brought in terms of the Promotion of Administrative Justice Act, 3 of 2000 (PAJA) in terms whereof it is asked of a court to not only review but set aside the decision as made by these subordinate examiners.
Should an aggrieved third party wish to follow the PAJA review route the relevant application takes the form of a notice of motion accompanied by a founding affidavit and supporting documentation which needs to be lodged within 180 days of becoming aware of the Health Professions Council’s outcome.
Compiled by: Yolandi Vosloo (LL. B); source: https://www.lexisnexis.co.za/
Delict: motor vehicle accident
Van Der Walt v Road Accident Fund Appeal Tribunal and others
 JOL 45004 (GP)
Case Number: 18332 / 2018
Judgment Date: 06 / 06 / 2016
Country: South Africa
Jurisdiction: High Court
Division: Gauteng, Pretoria
Bench: N Janse van Nieuwenhuizen J
Personal Injury/ Delict – Motor vehicle accident – Third party claim – Serious injury – Assessment of – Rejection of claim – Review
The Road Accident Fund was established to compensate a person (“third party”) for loss or damage suffered as a result of the unlawful driving of a motor vehicle. Section 17(1) of the Act limits the payment of non-pecuniary loss to serious injuries, and section 17(1A) states that the assessment of a serious injury shall be determined on a prescribed method adopted after consultation with medical service providers. The present matter concerned whether the applicant suffered serious injuries as envisaged in section 17(1A). The Fund rejected her claim, disputing that she sustained serious injury.
Held that Regulation 3 of the regulations promulgated in terms of the Act pertains to the assessment of a serious injury for purposes of section 17(1A). If, after determining whether the injuries are serious or not, the Fund rejects a claim, the aggrieved third party may, in terms of regulation 3(4)(a), lodge a dispute resolution form setting out the grounds upon which the rejection is disputed and including such submissions, medical reports and opinions on which the disputant wishes to rely. The Registrar of the Health Professionals Council of South Africa (“the Registrar”) shall, in terms of regulation 3(8) refer the dispute for consideration by an appeal tribunal consisting of three independent medical practitioners with expertise in the appropriate area of medicine.
The furnishing of reasons for an administrative decision that adversely affects the rights of an individual is the cornerstone of fair administrative action. The appeal tribunal in this case had to consider whether the applicant’s injuries resulted in serious long-term impairment. It did not record any factual findings in respect of the long-term impairment the injuries would have on the applicant. No reasons were given for the conclusion that the applicant’s injuries would not lead to serious long-term impairment, rendering it impossible to determine whether the decision complied with the constitution imperative of fair and reasonable administrative decisions.
The review application thus succeeded.