Court ruling gives Free State man second bite at RAF

In 2019, the Road Accident Fund (RAF) dismissed a claim lodged by a Free State man who had been left permanently disfigured in the wake of a horrific crash, finding the injuries he had sustained were not serious enough. But now the courts have stepped in and given him another bite at the cherry, setting aside the fund’s decision and ordering that it reconsider his case.

The man suffered extensive facial injuries in a rollover collision on the road between Wesselbron and Odendalsrus in 2015, leaving him scarred and disfigured.

But in 2019, the RAF dismissed his claim for general damages, finding his injuries did not qualify as “serious” under the RAF Act.

He tried taking the decision on appeal but was again unsuccessful, and so turned to the Free State High Court in Bloemfontein. The case was heard unopposed – with no appearance from the fund – last November and the court handed down its ruling this month.

In coming to its original decision, the RAF relied on a report compiled by a Dr Moloto but the court wound up finding it was inaccurate and the matter, outside of its author’s expertise as an orthopaedic surgeon.

Acting Judge Collin Nekosie, who penned the ruling, pointed to evidence before the court of three other doctors – a Dr Kahn, a Dr Pienaar and a Dr Stevens.

Khan, an independent medical examiner, and Pienaar, a reconstructive surgeon, had both given evidence to the effect that his injuries should qualify as “serious”. And Stevens, a clinical psychologist, had told of how the man’s disfigurement had made him the subject of social rejection and stigmatisation and left him with post-traumatic stress disorder.

“The examination of Dr Moloto appears rather superficial, understandably so, because the injuries sustained by the applicant falls outside his area of expertise,” Nekosie said.

In order to qualify as “serious” under the RAF Act, an injury either has to have resulted in at least 30% impairment of the whole person or it has to meet what is known as the “narrative test”.

Nekosie found the man’s injuries qualified in terms of the latter.

“An injury qualifies under the narrative test as serious, if the injury results in a serious long-term impairment or loss of a bodily function, which constitutes permanent serious disfigurement, resulting in severe long term mental or severe long term behavioural disturbance or disorder, or resulting in a loss of a foetus,” he said.

“In view of the opinions by Drs Pienaar, Stevens and Kahn there is no doubt that [his] injuries are serious. There are long term physical and psychological consequences that [he] continues to suffer.”

The case was referred back to the RAF for reconsideration by a new panel.

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