The recent judgment in Moss v Road Accident Fund, handed down by the Western Cape High Court, has reignited debate regarding the Road Accident Fund's (RAF's) liability to compensate accident victims for past medical expenses already covered by their medical aid.

If this sounds familiar, that's because it is. Recently, the same court in Rahldeyah Esack v the Road Accident Fund dealt with the same legal question raised in Moss: can a claimant’s right to compensation under the RAF Act 56 of 1996 be diminished by third-party payments? The court in Moss followed the earlier ruling in Esack, which held that the RAF is liable for a claimant’s past hospital and medical expenses, even if these were covered by a medical scheme.

The facts in Moss were that, in September 2017, the 77-year-old plaintiff sustained bodily injuries when he was struck by a vehicle while cycling. He claimed ZAR 34 286.59 in past medical expenses, of which ZAR 4 173.80 had been paid out of pocket, while the balance had been settled by his medical aid. The RAF opposed the claim, relying on its internal directives from 2022 and 2023, which instructed staff to reject past medical expense claims where the expenses had already been paid by a medical scheme. These directives were not formally introduced before the court. The defence was described as ill-conceived and procedurally inappropriate. Although the court declined to rule substantively on the legal issues raised by the RAF's directives, it noted that the directive touches on complex areas of law, including common and statutory law, champerty, subrogation, and medical scheme law, which it would not address in context of this judgment.

The court also remarked on the RAF’s litigation practices, observing that the fund had drastically reduced its reliance on external counsel and instead "overburdened" a handful of attorneys at the State Attorney’s office.

It noted with concern that counsel from previously disadvantaged backgrounds, who had historically relied on RAF work, were no longer being briefed, undermining transformation imperatives. It further highlighted the impact on practitioners who, through no fault of their own, were forced to juggle multiple RAF matters in a single day.

Ultimately, the court’s decision in Moss mirrored that in Esack, granting the plaintiff a full award for past medical expenses, regardless of third-party payments. It remains to be seen whether this approach in the Western Cape Division, at odds with a Full Bench decision of the Gauteng Division, will gain traction in other divisions.

Written by Raynold Tlhavani, Partner & Micaela Pather, Senior Associate from Webber Wentzel