The October De Rebus has a very interesting article by Professor Hennie Klopper on the issue of serious injuries. Professor Klopper argues in his article that you do not have to lodge the serious injury form, within the same time frame as you have to lodge a claim. He says that prescription of claims against the Road Accident Fund is governed solely by section 23 for identified claims and regulation 2 for hit and run claims. Section 23(3) and regulation 2(1)(c) do not mention any other forms – such as the serious injury form as having to be lodged within the time frame. He says that regulation 3(3)(b)(ii) is in conflict with sections 23 and 24 as the (ii) regulation implies that one would have to lodge it within the normal time frames, whereas regulation 3(3)(b)(i) implies that it can be lodged at any time before a claim has prescribed as provided for in the RAF Act which would then get to the longer time frame that one gets after having successfully lodged the initial claim. He says that the apparent conflict has to be interpreted in the least onerous effect which would then allow for lodgement of the RAF Form 4 before the extended prescription periods of five years from the date of the accident. Essentially he is saying that the required lodgement of an RAF Form 4 is not a new claim, called a “serious injury” but it just amends the original claim if it did not contain general damages. In other words, if you put an amount in your original claim for general damages, his argument is that the lodging of the RAF Form 4 merely constitutes substantiation of the claim in a similar manner to lodging medico legal reports in a case later. He does say that one should be cautious and adopt the approach of the Attorneys Fidelity Fund and the Attorneys Insurance Indemnity Fund and lodge within the three-year period (or two years for hit and runs) just to be careful but if you are out of time, you should nevertheless proceed to lodge a claim, because the points he makes may well be upheld by a Court later.
As an aside, I noted that in one of my own matters, where we lodged the serious injury form with only one month to go, in terms of the normal period, that the Road Accident Fund raised an objection that MMI had not been reached and the form had been prematurely obtained. In other words, some 35 months after the accident, they are saying that we are lodging the form too early, and one must assume that standard letters of theirs in this regard could also be put before a Court as it may well indicate, to some extent, that they also support this view of Professor Klopper. Obviously, until there is some certainty on this issue, it would be prudent, as the Law Society recommends, to still try and lodge within the normal time frame.