General damage refers to a non-patrimonial loss. The assessment of non-patrimonial loss in monetary terms differs from person to person and is therefore viewed by some as subjective, since the loss is not patrimonial and the evaluation is complicated. Each case is determined on its own merit to arrive at an amount which may afford the injured person some comfort and solace for the hurt he or she has suffered and will continue to suffer. General damages is the compensation offered for pain and suffering and, or loss of the amenities of life.
The Road Accident Fund Act, 1996 (the Act) limits the RAF’s liability to compensate for general damages, only to those injuries which undergo an assessment process and through that process the injuries sustained are proven to be serious in accordance with the Act.
Regulation 3 to the Act sets out the requirement for a third party to submit himself or herself to an assessment by a medical practitioner in accordance with the regulations if a third party wishes to claim general damages from the RAF. The above-mentioned regulation makes it obligatory for a medical practitioner, defined as “means a person registered as such under the Health Professions Act, 1974 in accordance with these regulations”, to complete a medical assessment in order to ascertain whether a particular injury can be regarded as serious for purposes of the Act. Regulation 3 sets out, amongst others, the process, that must be followed by a medical practitioner to assess whether an injury is serious:
Consider whether the injury meets the descriptions in regulation 3(1)(b)(i) and is not to be regarded as a serious injury
If the injury does not meet the descriptions in regulation 3(1)(b)(i) the medical practitioner must assess whether the injury resulted in 30% or more Impairment of the Whole Person as provided in the AMA Guides, in which event the injury must be assessed as serious
If the injury meets the descriptions in in regulation 3(1)(b)(i) and is not regarded as a serious injury, however any complication arose from any one or any combination of the injuries, the third party is entitled to be assessed to determine whether the injury resulted in 30% or more Impairment of the Whole Person as provided in the AMA Guides, in which event the injury must be assessed as serious; and
If the third party is assessed and the assessment of the injury does not result in 30% or more Impairment of the Whole Person then the injury may only be assessed as serious if that injury is assessed as serious in accordance with the “narrative test” as set out in regulation 3(1)(b) to the Act.
