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[2011] ZAGPJHC 142
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Akaai v Road Accident Fund (10/04245) [2011] ZAGPJHC 142 (13 October 2011)
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REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO
:
10/04245
DATE:13/10/2011
In the matter between:
AKAAI,
LESTER CRAIN
…....................................................................
Plaintiff
And
ROAD
ACCIDENT
FUND
.................................................................
Defendant
J U D G M E N T
KATHREE-SETILOANE, J
:
[1] This is an action for
damages against the Road Accident Fund in terms of the Road Accident
Fund Act 56 of 1996 (“the
Act”). The issue of negligence
and liability have been agreed and settled on the basis that the
defendant admits 70 percent
liability for the proven damages that the
plaintiff has suffered as a result of the accident. Future medical
expenses have been
settled by the parties on the basis of an
undertaking in terms of s17(4)(a) of the Act. Future loss of
earnings/income has also
been settled on the basis that the defendant
will pay the plaintiff an amount of R315 916.00. The only issue for
determination
therefore relates to general damages.
[2] The defendant, however,
raises a special plea which relates to the question of whether this
Court has the jurisdiction to deal
with the question of general
damages for failure of the plaintiff to comply with regulation 3 of
the Regulations to the Act, (as
amended). Regulation 3(1) provides as
follows:
“
3. Assessment of serious injury in terms of section 17(1A)
(1)(a) A third party who wishes to claim compensation for
non-pecuniary loss shall submit himself or herself to an assessment
by
a medical practitioner in accordance with these regulations.
(b) The medical practitioner shall assess whether the third
party’s injury is serious in accordance with the following
method-
The Minister may publish in the Gazette, after consultation with
the Minister of Health, a list of injuries which are for the
purposes of section 17 of the Act not to be regarded as serious
injuries and no injury shall be assessed as serious if that injury
meets the description of an injury which appears on the list.
If the injury resulted in a 30 percent or more impairment of the
Whole Person as provided in the AMA Guides, the injury shall be
assessed as serious.
An injury which does not
result in 30 percent or more Impairment of the Whole Person may only
be assessed as serious if that injury:
resulted in a long-term
impairment or loss of a body function;
constitutes permanent serious disfigurement;
resulted in severe long-term mental or severe long-term
behavioural disturbance or disorder; or
resulted in loss of a foetus.
The AMA Guides which must be applied by the medical practitioner
in accordance with operational guidelines or amendments, if any,
published by the Minister from time to time by notice in the
Gazette.
Despite anything to the
contrary in the AMA Guides, in assessing the degree of impairment,
no number stipulated in the AMA Guides
is to be rounded up or down,
regardless of whether the number represents an initial, an
intermediate, a combined or a final value,
unless the rounding is
expressly required or permitted by the guidelines issued by the
Minister.
The Minister may approve a
training course in the application of the AMA Guides by notice in
the Gazette and then the assessment
must be done by a medical
practitioner who has successfully completed such a course.”
[3] Underpinning the claim for
general damages is the mandatory “serious injury assessment
report” (“the report”),
which a claimant is
required to submit in terms of s17(1A) of the Act read with
regulation 3(3) which provides as follows:
“
(3)(a)
A
third party whose injury has been assessed in terms of these
Regulations shall obtain from the medical practitioner concerned
a
serious injury assessment report.
(b) A claim for compensation
for non-pecuniary loss in terms of section 17 of the Act shall be
submitted in accordance with the
Act and these Regulations, provided
that ─
(i) the serious injury
assessment report maybe submitted separately after the submission of
the claim at any time before the expiry
of the periods of the
lodgement of the claim prescribed in the Act, and these Regulations;
and
(ii) where maximum medical
improvement, as provided in the AMA Guides, in respect of the third
party’s injury has not yet
been reached and where the periods
for lodgement of the claim prescribed in terms of the Act and these
Regulations will expire
before such improvement is reached, the third
party shall notwithstanding anything to the contrary contained in the
AMA Guides,
submit himself and herself to an assessment and lodge the
claim and the serious injury assessment report prior to the expiry of
the relevant period.”
The serious injury assessment
report is defined in regulation 1(x) of the Regulations as a “duly
completed form RAF4”,
which is attached to the Regulations.
[4] In compliance with regulation
3(1)(a) of the Regulations, the plaintiff submitted himself to an
assessment by medical practitioners.
Duly completed RAF4 forms were
provided by the plaintiff’s medical practitioners in relation
to the nature of the injuries
sustained by him. They assessed the
plaintiff’s injuries as constituting serious injuries in terms
of the narrative test
contemplated in regulation 3(1)(b)(iii) of the
Regulations.
[5] In terms of regulation
3(3)(c) 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 in these Regulations. However, in terms
of sub-regulation (3)(d)(i) to (iii), if the Fund or agent is not
satisfied that
the injury has been correctly assessed, the Fund or an
agent must:
(a) reject the serious injury
assessment report, and furnish the third party with reasons for the
rejection, or
(b) 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 designated by the
Fund or an agent.
[6] In terms of regulation
3(3)(e), the Fund or an agent must either accept the further
assessment or dispute the further assessment
in the manner provided
in regulation 3(4)(a) to (c) of the Regulations which provide as
follows:
“
(4) If a third party
wishes to dispute the rejection of the serious injury assessment
report, or in event of either the third party
or the Fund or the
agent disputing the assessment performed by a medical practitioner in
terms of these Regulations, the disputant
shall ─
Within 90 days of being informed of the rejection or the
assessment, notify the Registrar that the rejection or the
assessment
is disputed by lodging a dispute resolution form with the
Registrar;
in such notification set out
the grounds upon which the rejection or the assessment is disputed
and include such submissions,
medical reports and opinions as the
disputant wishes to rely upon; and
if the disputant is the Fund or agent, provide all available
contact details pertaining to the third party.
[7] In terms of regulation 3(5)
once the Registrar is notified that the rejection or assessment is
disputed in the manner and within
the time period provided for in
sub
-
regulation
(4), the rejection or the assessment shall become final and binding.
The Registrar shall within 15 days of having been
notified of the
dispute in terms of sub-regulation (4) inform in writing the other
party to the dispute and provide copies of
all submissions, medical
reports and opinions submitted by the disputant to the other party
(sub-regulation (6)). After being
informed in terms of sub-regulation
(6), the other party may ─
(a) in writing and within 60 days notify the Registrar which
submissions, medical reports and opinions are placed in dispute; and
(b) attach to such notification
the submissions, medical reports and opinions relied upon.
(sub-regulations (7)(a) and (b))
The Registrar shall, in terms of
sub-regulations 8(a) and (b), after receiving the notification from
the other party or the expiry
of the 60 day period, referred to in
sub-regulation (6), refer the dispute for consideration by an appeal
tribunal paid for by
the Fund. The appeal tribunal consists of three
independent medical practitioners with expertise in the appropriate
areas of medicine,
appointed by the Registrar, who shall designate
one of them as the presiding officer of the appeal tribunal.
[8] The plaintiff’s experts
submitted their serious injury assessment reports (RAF4 forms) to the
defendant in mid-2009. However,
between March 2011 and June 2011,
some two years after these serious injury assessment reports were
submitted, the defendant rejected
the serious injury assessment of Dr
Scher (the plaintiff’s Neurosurgeon) and Dr Morare (the
plaintiff’s Plastic and
Reconstructive Surgeon). The plaintiff
contends that the defendant’s rejection of the serious injury
assessment reports of
Drs Scher and Morare did not comply with
regulation 3(3)(d)(i) as they had not provided proper reasons for
rejecting their assessments.
In
Smit
(as curator ad litem to Duduzile Ngobeni) v Road Accident Fund
,
case no: 09/47697, 29 April 2011, a matter which has identical facts
and pleadings to this matter, Claassens J, held that a dispute
which
the RAF is entitled to raise must be a genuine one, and not merely an
objection which has no medical and legal basis. In
that case,
Claassens J, found that the RAF’s objection was not supported
by a medical or legal basis, and was therefore purely
obstructive. He
accordingly dismissed the special plea.
[9] The defendant’s
objection to the serious injury assessment reports of Drs Scher and
Morare, in this matter, is that the
plaintiff has not yet reached
maximum medical improvement (“MMI”), and that the RAF4
forms were not properly completed.
I am of the view that these
reasons do not constitute sound and proper basis for rejecting the
serious injury assessment reports
of Drs Scher and Morare, for the
following reasons:-
(a) The concept of MMI is
irrelevant to the assessment of the plaintiff’s injuries as
they have been assessed as serious in
terms of the narrative test to
which the concept of MMI has no bearing. MMI is, in this regard, a
concept particular to the assessment
of impairment in terms of the
AMA Guides, which have no application to the assessment of injuries
in terms of the narrative test
contemplated in regulation 3(b)(iii)
of the Regulations.
(b) In addition, in terms of
regulation 3(3)(b)(ii) where MMI, as provided for in the AMA Guides,
in respect to a third party’s
injury has not been reached, and
where the period for lodgement of the claim, prescribed in terms of
the Act, and the regulations,
will expire before such improvement is
reached, the third party is required to submit himself or herself to
an assessment and lodge
the claim and serious injury assessment
report prior to the expiry period for the lodgement of the claim.
[10] Accordingly, the failure to
reach MMI is not, on a proper reading of Regulation 3(3)(b)(ii), a
good reason for rejecting a
serious injury assessment reports of Drs
Scher and Morare. Furthermore, the defendant’s contention that
it rejected the serious
injury assessment reports of Drs Scher and
Morare because the RAF4 forms were incomplete is also rejected.
Having perused the forms,
it is clear that when a question did not
apply to the plaintiff, then “N/A”, being the
abbreviation for “not
applicable” was inserted in the
blank space. This does not constitute a failure to properly complete
the RAF4 form. Accordingly,
I am of the view that the reasons which
were provided by the defendant for rejecting the medical assessments
reports of Drs Scher
and Morare do not constitute sound and proper
reasons, that are supported by any medical or legal basis. That this
is indeed the
case was eventually conceded to by the defendant’s
counsel, Mr Saint, during argument. The serious injury assessment
reports
of Drs Scher and Morare must accordingly stand.
[11] The defendant had also, in
terms of Regulation 3(3)(c) and (d) directed the plaintiff to submit
himself to a further assessment,
which he did. Not surprisingly, the
alternate serious injury assessments obtained by the defendant
confirm the assessment of the
plaintiff’s injuries as serious.
The defendant’s experts agree, in this regard, with plaintiff’s
experts on the
severity of the plaintiff’s injuries. This
appears clearly from the joint minutes between the plaintiff’s
and defendant’s
respective orthopaedic surgeons, and
occupational therapists. Critically, the joint minutes conclude inter
alia that:
(a) the plaintiff sustained a
right hip fracture dislocation, and “[t]his would be
considered a severe injury.” (Drs
Scher and Stein (Orthopaedic
Surgeons))
(b) “Thus impairment of
body function would be considered severe in Mr Akaai’s
case.” (Niewoudt and Keyser
(Occupational Therapists))
(c) “Ongoing sequelae from
injury suffered to the right hip, results in Mr Akaai suffering a
severe impairment, which does
affect all spheres of his life.
(Niewoudt and Keyser (Occupational Therapists)).
[12] It is significant that
although the defendant rejected the serious injury assessment reports
of Drs Scher and Morare, it did
not reject the serious injury
assessment of Ms Niewoudt, the plaintiff’s Occupational
Therapist. This then raises the following
question ─ is the
defendant required to raise an objection in respect of each
individual expert of the plaintiff or is one
objection adequate. The
narrative test contemplated in regulation 3 calls for an enquiry into
various aspects of the injuries
or impairment sustained by the
claimant in the motor vehicle collision,
including the loss of
bodily function (which falls within the domain of an orthopaedic
surgeon), serious disfigurement (which falls
within the domain of a
plastic or reconstructive surgeon), long term mental or behavioural
disturbance and disorder (which falls
within the domain of a
neurosurgeon, psychiatrist, psychologist etc,), and finally loss of a
foetus (which falls within the domain
of an obstetrician
gynaecologist).
[13] It would, in my view, be
inappropriate for one single medical practitioner to express himself
or herself, in terms of the narrative
test, on all aspects of the
injuries or impairment envisaged in regulation 3(1)(b)(iii). It
would, in my view, be more appropriate
that a serious injury
assessment of the claimant be carried out by medical practitioners
that are skilled in each of the respective
medical disciplines
contemplated in regulation 3(1)(b)(iii) of the Regulations. Depending
on the specific complaints and injuries
sustained by a claimant, more
than one serious injury assessment report may be required to be
submitted by different medical practitioners.
The defendant would,
where more than one serious injury assessment report is submitted, be
required to accept or reject each one
of them individually. Its
failure to do so in relation to any one of them, will result in such
report being accepted. Therefore,
having regard to the fact that the
serious injury assessment report of Ms Niewoudt, the plaintiff’s
occupational therapist,
was never rejected by the defendant in terms
of regulation 3(3)(c) and (d) of the Regulations, her report stands
as accepted.
[14] As indicated earlier, in
terms of regulation 3(4), if a third party wishes to dispute the
rejection of the serious injury assessment
report or if the third
party disputes the rejection or the assessment performed by the
medical practitioner then the third party
must lodge a notice of the
dispute with the Registrar, setting out the grounds upon which the
rejection or the assessment is disputed
and include such submissions,
medical reports and opinions as the disputant wishes to rely upon.
The plaintiff does not, in this
regard, dispute the assessment
performed by the defendant’s experts and it, therefore, did not
refer a dispute to the Registrar
to be considered by an appeal
tribunal.
[15] Mr Du Plessis, appearing on
behalf of the plaintiff, contends that in so far as the defendant’s
objection, as contained
in the special plea, is based on its failure
to refer the matter to an appeal tribunal, such tribunal has not yet
been established
and the defendant’s objections are thus
nothing more than a tactic to delay the finalisation of the
plaintiff’s claim.
[16] Mr Saint, appearing on
behalf of the defendant, countered this contention, by arguing that
the Act does not contemplate the
establishment of one single appeal
tribunal, but rather that an appeal tribunal, as contemplated in
regulation 3(8)(a), is to
be convened by the Registrar following
procedural compliance by the claimant after rejection, by the Fund,
of his or her serious
injury assessment report. In other words, it is
Mr Saint’s submission that an appeals tribunal will be
constituted/convened
by the Registrar, from time to time, and as and
when a dispute requires consideration. Nothing, however, turns on
this point other
than that it is the plaintiff’s complaint that
the Fund has, in numerous claims for non-pecuniary loss under the
Act, taken
special pleas relating to the claimant’s failure to
refer the dispute to the appeal’s tribunal in terms of
regulation
3(8) of the Regulations, when such tribunal has not been
established. Significantly, in this regard, we have yet to hear from
the
Fund whether “the appeals tribunal” or “an
appeals tribunal” ─ whichever is contemplated in the Act
─ has to date been constituted and established by the Fund, to
consider the disputes which have already been referred to
it.
[17] The defendant’s
primary contention is that once the defendant rejected the serious
injury assessment reports submitted
by the plaintiff, then the
plaintiff was required to refer the dispute, relating to the question
of the seriousness or otherwise
of the plaintiff’s injuries, to
the appeals tribunal for determination. The defendant stands by this
contention, notwithstanding
that all the plaintiff’s expert
medical practitioners, and those of the defendant’s as well,
are in agreement that
the injuries sustained by the plaintiff in the
motor vehicle collision constitute serious injuries. Having regard to
the agreement
between plaintiff’s experts and those of the
defendant’s in relation the serious nature of plaintiff’s
injuries
there is, in my view, simply no basis for the matter to be
referred to an appeals tribunal for it to make a determination, on
the
same documentation which is currently before this Court, on the
question of whether the injuries sustained by the plaintiff, as
a
result of the motor vehicle collision, constitute serious injuries or
not. To do so will delay the finalisation of the plaintiff’s
damages claim for non-pecuniary loss.
[18] Simply put, in view of the
agreement between the plaintiff’s experts and those of the
defendant’s as to the seriousness
of the injuries sustained by
the plaintiff as a result of the motor vehicle collision, there is no
dispute which requires referral
to the appeals tribunal. Hence, the
mere say so by the Fund that it rejects the serious injury assessment
report/s of a claimant’s
medical practitioners does not, in
itself, create a dispute. Its rejection must be founded on a sound
legal or medical basis, supported
by such submissions, medical
reports and opinions as the Fund wishes to rely upon. In the
circumstances, I am of the view that
in the absence of a dispute on
the question of the seriousness of the plaintiff’s injuries,
the plaintiff was not required,
in terms of regulation 3 of the
Regulations, to refer his claim for general damages to the appeal
tribunal. Accordingly, absent
a dispute as to the seriousness of the
injuries, there can be no basis upon which a referral to the appeals
tribunal would be justified.
The defendant’s special plea must
accordingly fail.
[19] The parties have agreed that
in the event that I decide the special plea in the plaintiff’s
favour, then the defendant
will pay the plaintiff an amount of R200
000 in respect of the general damages suffered by him. Having
considered the evidence
before me in respect of the serious nature of
injuries sustained by the plaintiff as a result of the motor vehicle
collision, his
ongoing pain and suffering, his loss of general
functioning in daily life, and his loss enjoyment of amenities of
life, I am of
the view that the payment of an amount of R200 000 in
respect of general damages is fair and just.
[20] In the result I make the
following order:
The special plea is dismissed with costs.
The defendant is ordered to pay
a capital amount of R525 916,00 to the plaintiff, in full and final
settlement of the plaintiff’s
claim. Payment shall be made
into the trust account of the plaintiff’s attorneys, details
as follows:
Raphael Kurganoff Trust Account
First National Bank, Rosebank Branch
Account Number: ….
Branch Code: ….
The defendant is ordered to
furnish the plaintiff with an undertaking in terms of
section
17(4)(a)
of the
Road Accident Fund Act, 56 of 1996
, for the costs of
the future accommodation of the plaintiff in a hospital or nursing
home or treatment of or rendering of a service
or supplying of goods
to him arising out of the injuries sustained by him in the motor
vehicle collision of 24 January 2009,
after such costs have been
incurred, and upon proof thereof, which undertaking shall be limited
to 70% thereof.
That the defendant will pay the
agreed or taxed party and party High Court costs of the action to
the 1
st
day of August 2011, such costs to include:-
the costs attendant upon the obtaining of payment of the capital
amount referred to in paragraph 1 above;
the preparation expenses of the
plaintiff’s experts Dr M.Scher, Dr M Shapiro, Dr S Braun, K.
Niewoudt, P Leibowitz and
Mr Whittaker, if any and as agreed or
allowed by the Taxing Master.
_____________________________
F
KATHREE-SETILOANE
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
Counsel for the
Plaintiff:
.....................
Mr
APJ Du Plessis
Attorneys for the
Plaintiff:
...................
Raphael
Kurganoff Inc
Counsel for the
Defendant:
...............
Mr
F.Saint
Attorneys for the
Defendant:
.............
Kekana
Hlatshwayo Radebe Inc
Date of
Hearing:
................................
1
August 2011
Date of
Judgment:
.............................
13
October 2011