THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No:  567/2013

Reportable
In the matter between:

ROAD ACCIDENT FUND

APPELLANT

and

FONESCA RUI FERNANDO FARIA

RESPONDENT

Neutral citation:
RAF v Faria (567/13) [2014] ZASCA 65 (19 May 2014)

Coram:
Maya, Shongwe and Willis JJA and Van Zyl and Mocumie AJJA

Heard:
5 May 2014

Delivered:
19 May 2014

Summary:
General Damages – Road Accident Fund Act 56 of 1996 as
amended, read with Regulations promulgated under the Act – ‘serious injury’
to be determined in accordance with procedure prescribed in Reg 3 of the
Regulations  - RAF not bound by the determination of a ‘serious injury’ by its
own expert - the high court wrongly awarded the plaintiff general damages.

ORDER

On appeal from: South Gauteng High Court, Johannesburg (Weiner J sitting
as court of first instance):
1 The appeal is upheld;
2 The order of the high court that the Road Accident Fund is to pay the
plaintiff the sum of R350 000 as general damages is set aside.

JUDGMENT

Willis JA (Maya and Shongwe JJA and Van Zyl and Mocumie
AJJA concurring):

[1] The appellant appeals with the leave of the South Gauteng High Court
(Weiner J). This case has to do with the substantive and procedural legal
requirements that follow consequent upon the rejection by the Road Accident
Fund (RAF) of the assessment by one of its own experts that an injury  which
had been sustained in a motor collision is ‘serious’. In this regard, there have
been discordant voices within the high court. Judicial dissonance in the high
court is antithetical to legal certainty, one of the pillars of the rule of law.1

[2] The issues arise from changes to the legislative scheme of the Road
Accident Fund Act 56 of 1996 (the Act), which took effect on 1 August 2008.
These changes were introduced by the Road Accident Fund Amendment Act
19 of 2005 (the amendment Act) together with Road Accident Fund

1 For a sterling account of the importance of legal certainty see Cassell & Co Ltd v Broome &
another [1972] AC 1027 esp at 1054C-D; [1972] 1 All ER  801 esp at 809f-g  (HL).

Regulations (the Regulations) promulgated in terms of the Act, as amended.2
In particular, the points in question are concerned with the RAF’s liability to
compensate a third party for general damages (or non-pecuniary loss as it is
referred to in s 17(1) of the amended Act) in circumstances where the victim
of a motor collision has suffered injuries which are described as ‘serious’ in
terms of s 17(1A) of the Act.

[3] The respondent in this appeal was the plaintiff in the high court. I shall
refer to him accordingly. Riding a bicycle at the time, he was injured in a
collision on 26 January, 2011. The collision involved a motor vehicle having
registration number SMN 449 GP driven by Ms J M Tladi. The accident
occurred on Klipriver Road, off Bellairs Drive, in Johannesburg. The RAF was
liable to compensate the plaintiff in terms of the provisions of the Act.

[4] The plaintiff suffered a head injury, having been comatose for four and
a half days. In addition, he sustained injuries to his right shoulder, which
required surgery; four fractured ribs on his right hand side; abrasions to his
back, shoulder and buttocks and abrasions to his knees, wrists and hands.
The plaintiff sued the RAF in terms of the Act, claiming damages in an amount
of R850 000.

[5] In its plea the RAF had disputed both the merits of the plaintiff’s claim
as well as the quantum of damages. At the trial, the RAF having had no
witnesses to dispute the version of plaintiff, was found by the high court to be
liable to pay the plaintiff 100% of his proven damages. There is no dispute
that the high court was correct in this regard.

[6] In respect of the quantum of damages suffered by the plaintiff, the
parties settled the claim for past medical expenses in an amount of R217
169.94. In respect of the claim for future medical expenses, the RAF gave the
usual undertaking in terms of s 17(4) of the Act. The only remaining issues in
dispute were: (a) the question of general damages for pain, suffering, loss of

2 GN R770, GG 31249, 21 July 2008.

amenities of life and (b) the issue of the loss of future earnings arising from
the plaintiff’s diminished working capacity and productivity. The plaintiff
decided to subsume the claim for damages for the loss of future earnings
under the claim for general damages.

[7] The plaintiff underwent a medico-legal assessment by an orthopaedic
surgeon, Dr De Graad on 30 April 2012. Dr De Graad prepared his medical-
legal report on 3 May 2012. In addition, on the same day, Dr De Graad
completed a so-called RAF 4 ‘serious injury assessment’ (SIA) form (the
significance of which form will appear later). In paragraph 4 of this RAF 4
form, he assessed the plaintiff’s impairment in respect of the rating of the
American Medical Association (AMA) as having a combined value for the
impairment of the plaintiff’s whole person (WPI) as 4%.

[8] In terms of paragraph 5 of the RAF 4 form, which relates to ‘serious
injury: narrative test’, Dr De Graad concluded, pursuant more particularly to
the provisions of subparagraphs 5.2 and 5.3 of the form, that the plaintiff’s
injuries had resulted in a permanent serious disfigurement, attributable to
extensive scarring and a negatively affected physical appearance at the right
shoulder, as well as a severe long-term mental or long-term behavioural
disturbance or disorder. As a result, Dr De Graad concluded that the plaintiff
had indeed suffered a so-called ‘serious injury’, the significance of which will
also appear later.

[9] The plaintiff attended a further medico-legal examination undertaken by
another orthopaedic surgeon, Dr G J H Swartz, who had been appointed by
the RAF. Dr Swartz did not complete an SIA form but incorporated in his
medico-legal assessment a reference to the AMA impairment rating,
assessing the plaintiff’s impairment rating for his whole person as 8%.

[10] Dr Swartz expressed the opinion in his report that the plaintiff did not
qualify for the ‘narrative test’ in terms of paragraph 5.1 of the RAF 4 form,
which relates to long-term impairment or loss of bodily function, but made no
assessment of the plaintiff’s permanent serious disfigurement or severe long-

term mental or behavioural disturbances in terms of subparagraphs 5.2 and
5.3 of that form.

[11] On 20 January 2013, however, Drs De Graad and Swartz prepared a
joint minute in terms of which they agreed that the plaintiff had suffered
disfigurement and psychological problems as a result of the scarring at his
shoulder and that, accordingly, the plaintiff had suffered a ‘serious injury’,
resulting in ‘serious long-term impairment’.

[12] On 8 March 2013, the day before the trial between the parties
commenced, the RAF’s attorneys sent a letter to the plaintiff’s attorneys in
terms of which the RAF rejected the RAF 4 form completed by Dr De Graad
‘in terms of Regulation 3(3)(d)(i)’ (ie of the Regulations pertinent to this case).

[13] On 11 March 2013, a neuropsychologist, Dr A Cramer also filed an
RAF 4 SIA report, pursuant to her assessment of the plaintiff on 26 October
2012. Dr Cramer, like Drs De Graad and Swartz, concluded in subparagraph
5.3 of the report that the plaintiff had suffered a ‘serious injury’, resulting in
‘serious long-term impairment’.

[14] In both the high court and this court the RAF relied strongly on the
following passage from Road Accident Fund v Duma and three similar cases:3
‘The decision whether or not the injury of a third party is serious enough to meet the
threshold requirement for an award of general damages was conferred on the Fund
and not the court. That much appears from the stipulation in reg 3(3)(c) that the Fund
is only be obliged to pay general damages if the Fund – and not the court – is
satisfied that the injury has been correctly assessed in accordance with the RAF 4
form as serious. Unless the Fund is so satisfied the plaintiff simply has no claim for
general damages. This means that unless the plaintiff can establish the jurisdictional
fact that the Fund is so satisfied, the court has no jurisdiction to entertain the claim
for general damages against the Fund. Stated somewhat differently, in order for the
court to consider a claim for general damages, the third party must satisfy the Fund,
not the court, that his or her injury was serious.’

3 Road Accident Fund v Duma 2013 (6) SA 9 (SCA) para 19.

[15] The trial judge distinguished the facts in the present case from those in
Duma. She emphasised that it was apparent to her that it was not in dispute
that the injuries sustained by the plaintiff were serious. She held that the
objections raised by the RAF had fallen away by reason of the joint minute
and therefore that:
‘It would be artificial to hold that simply because the defendant has objected to the
RAF 4 assessment that, irrespective of the basis therefor, the plaintiff must follow the
procedure set out in Regulation 3.’

[16] In her judgment, the trial judge said that:
‘It is common cause that both plaintiff’s doctors, being Dr De Graad and Ms Cramer
are medical practitioners, registered as members of the Medical and Dental Council.
Both of them, in completing the RAF 4 forms, completed their assessments based
upon the AMA or WPI and arrived at the decision that the plaintiff had reached MMI
and that the plaintiff’s injury was to be declared serious.
They both, therefore, have complied with the regulations and have submitted reports
in accordance with the decision in the Duma matter and in contrast to the plaintiffs in
such matter.
However, the defendant contends that the fund has demonstrated, by filing its
objection, that it is not satisfied with the claimant’s RAF 4 forms and it therefore
argues that it may direct that the claimant submit himself for a further assessment to
ascertain whether the injury is serious, by a medical practitioner designated by the
fund. A list of medical practitioners who had completed the requisite training course
and were therefore qualified to perform the assessments was handed to the Court,
by consent. Drs De Graad, Swartz and Ms Cramer appear thereon.
The distinguishing feature in this case (in contrast to the facts in the Duma decision)
arises as a result of the joint minute filed by the two orthopaedic surgeons, Dr De
Graad and Dr Swartz.’

[17] The high court thereupon made an order that the plaintiff be awarded
general damages in an amount of R350 000. The parties had agreed on this
amount in the event that the high court found that it could award general
damages. The issue in this appeal is whether it was competent, as a matter of
law, for the high court to have decided, as it did, to award the plaintiff general
damages in the circumstances of the case.

[18] Meanwhile, the RAF has paid the plaintiff the full amount ordered by
the court, including the sum of R350 000 which is in contention. The RAF did
so, on 27 March 2013. The RAF later discovered that it had mistakenly paid
this amount of R350 000 awarded by the high court for general damages. The
RAF, now accepts, however, that it would be unjust and inequitable to attempt
to recover this amount and has given its irrevocable undertaking not to seek
to recover it from the plaintiff. Moreover, the RAF has undertaken to pay the
plaintiff’s costs in the appeal. As between the parties themselves, the issue
has become moot.

[19] Unavoidably, the question has therefore arisen as to whether the
appeal should simply be dismissed for mootness in terms of s 16(2)(a)(i) of
the Superior Courts Act 10 of 2013 (the Superior Courts Act) as there is no
longer any issue for determination between the parties. Section 16(2)(a)(i) of
the Superior Courts Act provides that:
‘When at the hearing of an appeal, the issues are of such a nature that the decision
sought will have no practical effect or result, the appeal may be dismissed on that
ground alone.’

[20] Counsel for both parties accepted, however, that this case raises an
important question of law that are bound to arise again, especially in view of
the frequency with which the RAF is a litigant in the high court and the
pending cases awaiting judgment in this appeal: it is whether the Regulations
provide for the RAF to reject its own expert’s finding in respect of determining
a serious injury and to require that there should be compliance with the
procedures provided for in the Regulations in determining whether or not an
injury is ‘serious’.

[21] The issue is indeed, as Mr Budlender, counsel for the RAF has
submitted, a ‘crisp’ one. He relied on this ‘crispness’ to contend that the heavy
workload of this court would not be unduly burdened in frustration of the
mischief which s 16(2)(a)(i) of the Superior Courts Act was designed to

prevent.4 Moreover, counsel for the RAF correctly pointed out that a ‘live
issue’ raising important questions of law which is likely to arise frequently in
future has, for some time, been recognized by this Court as justifying the
exercise of a discretion to allow the appeal to proceed.5

[22] The present case deals with questions of law rather than fact. This is a
relevant consideration.6 It is not in contention that, as the RAF has claimed,
there are a number of cases which have been postponed pending the
outcome of this appeal. In Meyer v Road Accident Fund7 Potterill J expressly
disagreed with the correctness of Weiner J’s decision, holding it to be
inconsistent with Duma. Mr Zidel, who appeared for the plaintiff, accepted that
the issues raised by this case were of such a nature that the appeal should
indeed be decided upon its merits rather than be dismissed on account of its
mootness between the parties themselves.

[23] In the full context of the matter, it cannot be said that the appeal will
have no practical effect or result. On the contrary, it will have a practical effect
on innumerable instances of litigation involving the RAF as a litigant. In this
regard, Executive Officer, Financial Services Board v Dynamic Wealth Limited
& others8 has been instructive.9 It is in the public interest to hear the appeal,
which involves statutory interpretation, as there are a large number of similar
cases, both existing and anticipated, in which this issue will need to be

4 See, in this regard, ABSA Bank Ltd v Van Rensburg & another; In Re: ABSA Bank Limited v
Maree & another (228/2013) [2014] ZASCA 34 (28 March 2014) para 11.
5 See ABSA Bank Ltd v Van Rensburg & another; In Re: ABSA Bank Limited v Maree &
another (supra) para 8; The Merak S: Sea Melody Enterprises SA v Bulktrans (Europe)
Corporation 2002 (4) SA 273 (SCA) para 4; Coin Security Group (Pty) Limited v SA National
Union for Security Officers & others 2001 (2) SA 872 (SCA) para 8; National Rugby Union v
Gould 1999 (1) SA 432 (SCA) at 444J-445B and Sun Life Assurance Company of Canada v
Jervis [1944] AC 111 at 114; [1944] All ER 469 at 470g-471h (HL). See, by way of contrast,
Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA) para 10.
6 See Port Elizabeth Municipality v Smit (supra) para 10.
7 Meyer v Road Accident Fund [2013] ZAGNPHC 446 (4 December 2013) paras 7 to 9.
8 Executive Officer, Financial Services Board v Dynamic Wealth Limited & others 2012 (1) SA
453 (SCA) paras 43 and 44 and SA Congo Oil Co (Pty) Limited v Identiguard International
(Pty) Limited 2012 (5) SA 125 (SCA) para 6.
9 See also Sebola & another v Standard Bank of South Africa Limited 2012 (5) SA 142 (CC)
para 34 and MEC for Education, Kwazulu-Natal & others v Pillay 2008 (1) SA 474 (CC) paras
32-35.

resolved in the near future.10 If this Court fails to decide this appeal on its
merits, the prevailing confusion will continue unabated:  the question is bound
to arise again.11  We have also had the benefit of full argument on the
matter.12

[24] The considerations raised by both Mr Budlender and Mr Zidel justify
the exercise of a discretion against dismissing the appeal merely because it is
now moot between the parties.13 The merits of the appeal will, accordingly, be
considered.

[25] Subsequent to the judgment in the high court in this matter, the
Regulations were revised.14 Other than that, in terms of revised regulation
3(3)(dA), the RAF is given 90 days within which to (i) accept the serious injury
assessment report or (ii) reject the report or (iii) direct that the third party
submit to a further assessment and, in terms of revised subregulation 3(8)(a),
a time period for the referral of a dispute to the appeal tribunal is provided for,
the recent revision to the Regulations has no bearing whatsoever on the
issues to hand.

[26] In terms of s 17(1) of the Act, after its amendment by the amendment
Act, a third party (ie person in the position of the plaintiff) is entitled to
compensation for a non-pecuniary loss only for ‘a serious injury as
contemplated in subsection (1A)’. Subsection 17(1A), in turn, stipulates that

10 See R v Secretary of State for the Home Department, Ex parte Salem [1999] 2 All ER (HL)
at 47d-f; Executive Officer, Financial Services Board v Dynamic Wealth Limited & others
(supra) para 44; SA Congo Oil Co (Pty) Limited v Identiguard International (Pty) Limited
(supra) para 5 and Midi Television (Pty) Limited t/a eTV v Director of Public Prosecutions
(Western Cape) 2007 (5) SA 540 (SCA) para 4.
11 Ibid.
12 See Sebola & another v Standard Bank of South Africa Limited (supra) para 37; Midi
Television (Pty) Limited t/a eTV v Director of Public Prosecutions (Western Cape) (supra)
para 4. See, by way of contrast, ABSA Bank Ltd v Van Rensburg & another; In Re: ABSA
Bank Limited v Maree & another ((supra) para 12; Port Elizabeth Municipality v Smit (supra)
para 11; Western Cape Education Department and Another v George 1998 (3) SA 77 (SCA)
at 84E.
13 See Minister of Trade and Industry & another v EL Enterprises & another 2011 (1) SA 581
(SCA) para 2 and Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4)
SA 506 (SCA) paras 6 and 7.
14 GN R347, GG 36452, 15 May 2013.

the assessment of a ‘serious injury’ must be undertaken by a medical
practitioner by way of methods prescribed by the regulations.

[27] Subregulation 3(3)(c) provides that:
‘The Fund or an agent shall only be obliged to compensate a third party for non-
pecuniary loss as provided for in the Act if a claim is supported by a serious injury
assessment report submitted in terms of the Act and these Regulations and the Fund
or an agent is satisfied that the injury has been correctly assessed as serious in
terms of the method provided for in these Regulations.’

[28] Subregulations 3(1) and 3(a) to (c) require a third party who wishes to
claim general damages to submit an SIA report in the prescribed form to the
RAF. The SIA report must be made by a medical practitioner who must
assess whether the third party’s injury is ‘serious’ in accordance with certain
criteria:
(i)
in terms of subreg 3(1)(b)(ii) the third party’s injury shall be assessed
as serious if it resulted in 30% or more WPI as provided for in the AMA
guidelines;
(ii)
a ‘narrative test’ as provided for in terms of subreg 3(1)(b)(i1).

[29] A ‘narrative test’ is used where the conclusion is reached, in terms of
subregulation 3(1)(b)(iii), that the claimant has less than a 30% WPI, but the
injury nevertheless:
‘(aa)
resulted in a serious long-term impairment or loss of a bodily function;
(bb)
constitutes permanent serious disfigurement;
(cc)
resulted in severe long-term mental or severe long-term behavioural
disturbance or disorder; or
(dd)
resulted in loss of a foetus.’

[30] Subregulation 3(3)(d) provides that:
‘If the Fund [RAF] or an agent is not satisfied that the injury has been correctly
assessed, the Fund or agent must:
(i) reject the serious injury assessment report and furnish the third party with
reasons for the rejection; or

(ii) direct that the third party submit himself or herself, at the cost of the Fund or
an agent, to a further assessment to ascertain whether the injury is
serious, in terms of the method set out in these Regulations, by a medical
practitioner or an agent.’
During the course of argument, Mr Zidel fairly and correctly conceded that the
RAF has three options available to it if it is not satisfied with the assessment
of an injury. These are, as set out above: (i) accept the serious injury
assessment report or (ii) reject the report or (iii) direct that the third party
submit to a further assessment.

[31] In terms of subregulation 3(3)(e):
‘The Fund or an agent must either accept the further assessment or dispute the
further assessment in the manner provided for in these Regulations.’
The fact that this provision is preceded by subregulation 3(3)(d)(ii) which
provides that the further assessment is to be undertaken ‘by a medical
practitioner designated by the fund’ can only mean, as Mr Zidel was bound to
concede, that the RAF not only has a right, in terms of the Regulations, to
dispute the assessment of its  own medical practitioner (expert) but also has a
right to refer the dispute to the Appeals Tribunal provided for in the
Regulations.

[32] The dispute resolution procedure is provided for in subregulation 3(4),
read together with subregulations 3(5), 3(7), 3(8), 3(10) 3(11), 3(12) and
3(13). There is no other. The dispute resolution procedure in the Regulations
culminates in a determination by an Appeal Tribunal consisting of three
medical practitioners appointed by the Registrar of the Health Professions
Council. In terms of subregulation 3(13), the determination of the Appeal
Tribunal ‘shall be final and binding’. The dispute resolution procedure,
travelling all the way to the Appeal Tribunal, is not provided purely for the
benefit of a dissatisfied claimant. It avails to the advantage of the RAF as well.

[33] In Road Accident Fund v Lebeko15 this Court held that, in the absence
of the prescribed assessment having been made in terms of the Regulations,
the high court could not make an order for the payment of general damages.16
It was held that the high court ought to have postponed the hearing in regard
to the claim for general damages so that the procedures for which legislative
provision had been made in this regard could be completed.17 In similar vein,
Mr Budlender has correctly contended that this is what the high court ought to
have done in the present case. In view of the mootness of the issues between
the parties themselves, however, he has sought no order to this effect in
substitution of the high court’s order. He has asked simply that the high
court’s order relating to the award for general damages be set aside.

[34] The amendment Act, read together with the Regulations, has
introduced two ‘paradigm shifts’ that are relevant to the determination of this
appeal: (i) general damages may only be awarded for injuries that have been
assessed as ‘serious’ in terms thereof and (ii) the assessment of injuries as
‘serious’ has been made an administrative rather than a judicial decision. In
the past, a joint minute prepared by experts chosen from the contending sides
would ordinarily have been conclusive in deciding an issue between a third
party and the RAF, including the nature of the third party’s injuries. This is no
longer the case. The assessment of damages as ‘serious’ is determined
administratively in terms of the prescribed manner and not by the courts. Past
legal practices, like old habits, sometimes die hard. Understandably, medical
practitioners, lawyers and judges experienced in the field may have found it
difficult to adjust. As the colloquial expression goes, ‘we are all on a learning
curve’.

[35] Neither Duma nor Lebeko dealt with a joint minute, prepared by
experts from both sides, on the question of whether the injuries were ‘serious’
or not. As Duma makes clear, in terms of the amendment Act and the
Regulations, the position is now that ‘unless the Fund is so satisfied [ie that

15 Road Accident Fund v Lebeko (802/2011) [2012] ZASCA 159 (15 November 2012).
16 Para 27.
17 Para 28.

the injuries are ‘serious’] the plaintiff simply has no claim for general
damages’; that ‘unless the plaintiff can establish the jurisdictional fact that the
Fund is so satisfied, the court has no jurisdiction to entertain the claim for
general damages against the Fund’ and ‘for the court to consider a claim for
general damages, the third party must satisfy the Fund, not the court, that his
or her injury was serious’.18 These clear statements of law entail that a joint
minute of the kind in question does not, as in the past, enable the court to
take a shortcut to concluding that the injury was ‘serious’.

[36] The trial judge may have been exasperated by the stance taken by the
RAF. This does not justify a departure from recognising that, under the new
legislative scheme, the RAF is not bound by the views of its own expert. The
principle is not necessarily either abstract or ethereal: as Mr Budlender
correctly submitted, the fact that within a period of two months its own expert
changed his view that the injury was not ‘serious’ to one that it was, is
indicative of some uncertainty in the matter that may justify further exploration.
The high court wrongly decided to award the plaintiff a sum of money for
general damages.

[37] The following order is made:
1 The appeal is upheld;
2 The order of the high court that the Road Accident Fund is to pay the
plaintiff the sum of R350 000 as general damages is set aside.

_______________________
N P Willis
Judge of Appeal

18 Road Accident Fund v Duma 2013 (6) SA 9 (SCA) para 19.

APPEARANCES:

For the Appellant:
S Budlender (with him, P Ramano and E.
Webber)
Instructed by:
Routledge Modise Inc, Sandton
c/o Hutchison Attorneys, Bloemfontein

For the Respondent:

I J Zidel SC (with him, E Soares)
Instructed by:
Wolmarans attorneys, Randburg
c/o Van der Merwe & Sorour, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No:  567/2013
Reportable
In the matter between:

ROAD ACCIDENT FUND

Appellant

And

FONESCA RUI FERNANDO FARIA

Respondent

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME
COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal
DATE

19 May 2014
STATUS

Immediate

RAF v Faria (567/13) [2014] ZASCA 65 (19 May  2014)
Please note that the media summary is for the benefit of the media and
does not form part of the judgment.

Heard:

5 May 2014
Delivered:

19 May 2014

Today the Supreme Court of Appeal (SCA) upheld an appeal by the Road
Accident Fund against an award by the South Gauteng High Court of general
damages of R350 000.

The SCA found that under the new scheme established under the Road
Accident Fund Act 56 of 1996 as amended, read with Regulations
promulgated under the Act a ‘serious injury’ is to be determined in accordance
with procedure prescribed in Regulation 3 of the Regulations and that the
RAF is not bound by the determination of a ‘serious injury’ by its own expert.

More particularly, the SCA held that the amended Road Accident Fund Act,
read together with the Regulations, had introduced two ‘paradigm shifts’ that
are relevant to the determination of the appeal: (i) general damages may only
be awarded for injuries that have been assessed as ‘serious’ in terms thereof
and (ii) the assessment of injuries as ‘serious’ has been made an
administrative rather than a judicial decision. In the past, a joint minute

prepared by experts chosen from the contending sides would ordinarily have
been conclusive in deciding an issue between a third party and the RAF,
including the nature of the third party’s injuries. This is no longer the case.
The assessment of damages as ‘serious’ is now determined administratively
in terms of the prescribed manner and not by the courts.

The SCA concluded at the high court had wrongly awarded the plaintiff
general damages. It upheld the appeal and set aside the award for general
damages.