Final day in the LSSA’s Constitutional challenge to the RAF Amendment Act (3 March 2010)
 On the point of the emergency medical tariffs, Adv Budlender submitted that even if there were not enough people who attended the meetings preceding the implementation of the tariff, the RAF published notices in five newspapers inviting interested parties to attend the scheduled meetings. It was further argued that the lack of attendance by interested persons did not amount to insufficient consultation and that at these meetings there were no recorded objections that were raised and the lack of objection amounted to agreement. Having regard to the period for lodging serious injury claim forms, counsel argued that the newly prescribed time periods will not affect the prescription periods of such claims and that should further injuries arise after lodgement of the serious injury claim form, the claimant should at that point lodge a further amended serious injury form. It was counsel’s further submission that maximum medical improvement of injured victims occurs within two years after the injury and that if such improvement does not occur, the claimant will then be assessed on that unimproved basis. Regarding the RAF forms, counsel for the Respondents argued that even though the forms require the claimant to provide personal details pertaining to banking and personal circumstances, this does not facilitate direct payment from the RAF to claimants, neither does this render the forms unconstitutional and that the purpose of requesting same is to prevent fraud against the RAF. Lastly on the point of remedy the court was asked to dismiss the whole application and grant the Applicants no relief at all, and further that the Respondents be awarded costs of the Respondents three counsel, against the First and Second Applicants only. Counsel argued that the First Applicant (Law Society of South Africa) and the Second Applicant (South African Association of Personal Injury Lawyers) only acted in the interest of their members and not the public, and should therefore pay the costs of the Respondents, if the Applicants are unsuccessful with the application. Counsel then put it to the court that should the court not oblige their request for dismissal of the application and should the court find the Amendment Act to be in some part inconsistent with the Constitution, that the court should not strike down the whole amendment but should rather make an order suspending the declaration of invalidity for 18 to 24 months. In closing counsel held that the greatest saving by the RAF in relation to the Amendment Act is achieved by the serious injury assessment and that this imposition is a key factor that will sustain the RAF financially. Adv JJ Gauntlett SC in his reply on behalf of the Applicants addressed the court on the abolition of the claimant’s common law right of recourse against the wrongdoer. He put it to the court that those persons with injuries that qualify as non-serious but who could suffer severe pain as a result of such injuries are saddled with, as counsel put it, a “double whammy” in that they are left with no remedy, as they cannot claim in terms of the Amendment Act nor in terms of the common law claim against the wrongdoer. Counsel summarised the Amendment Act as follows: 1. A claimant looses his/her common law right to claim against the wrongdoer; 2. If the claimant’s injuries qualify as non-serious, then in terms of the Amendment Act he/she does not have any recourse; 3. If the claimant’s injuries do qualify as serious, the claimant will have recourse limited to the imposed caps and new tariffs; 4. To protect oneself against insufficient compensation due to the R160 000 cap on loss of earnings, persons need to obtain sufficient top-up insurance. However this then puts children and students who do not have an income, in a precarious position as they won’t be able to obtain sufficient top-up insurance that covers them for personal injury in the likely event that they are not able to claim sufficient compensation under the Amendment Act. Adv Johan Trengove then dealt with two aspects in his reply on behalf of the Applicants, namely the narrative and AMA tests and the point of lodgement for claims against the RAF. Counsel reiterated that the record of meetings that were conducted preceding the implementation of the new tariffs do not show that the Minister of Health or health care providers were sufficiently consulted. He added that the Minister of Health realised that there were problems with the AMA Guides 6th Edition, and that the imposed test to determine what constituted serious injuries would not stand constitutional muster. For this reason, the narrative test was included, with the result that these two tests provide gateways and can be used as alternatives to claim general damages. These tests exclude many serious injuries that according to the tests do not amount to 30% whole person impairment. Adv Trengove added that on 1 August 2010 claimants with hit and run claims must decide whether they will take their chances with the narrative test or should they assess their claims in terms of the AMA Guide 6th edition. In closing, and in reply to the Respondents request that the First and Second Applicants must pay the costs of the application, Adv Gauntlett SC referred the court to a Constitutional Court decision where it was held that the party who brings the application should not be penalised merely because it is a body that may in future derive some financial benefit as a result of the court’s finding and that as long as the challenge on the Constitution is a genuine and non frivolous one, then that Applicant should not be made to bear the costs of such application. Fabricius AJ reserved judgement and was not in a position to give the parties a timeline of when judgment could be expected. Nicolette Koch Partner nicolette-k@adamsadams.co.za Carmel Buckham Candidate Attorney carmel-b@adamsadams.co.za |
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| 9/03/2012 | ||
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