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[2013] ZAGPJHC 63
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Faria v Road Accident Fund (2210/12) [2013] ZAGPJHC 63 (12 March 2013)
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IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO
: 2210/12
DATE
: 12/03/2013
In the matter between
RUI FERNANDO FONSECA
FARIA
.........................................................
PLAINTIFF
and
ROAD ACCIDENT FUND
….....................................................................
DEFENDANT
J U D G M E N T
WEINER J
:
BACKGROUND
1. In this matter, the plaintiff has sued the defendant under the
Road Accident Fund Act, 56 of 1996 (the Act), for damages sustained
as a result of a collision that occurred when the plaintiff was a
cyclist along Kliprivier Road. The collision was between a motor
vehicle with registration number SMN 449 GP, driven by one Ms Tladi
and a bicycle, which the plaintiff was riding at the time.
2. The plaintiff alleged negligence and claimed damages in the total
sum of R850 000.00, alleging that the plaintiff had suffered
the
following injuries;
2.1 a head injury (comatose for four and a half days);
2.2 right shoulder fracture requiring surgery;
2.3 four ribs fractured on the right side;
2.4 abrasions back, shoulder, buttocks.
2.5 abrasions knees, wrists, hands.
THE MERITS
3. The defendant has disputed both the merits and the quantum. At
the hearing, I was informed by the defendant’s counsel
that he
could not obtain instructions to concede the merits, but that the
defendant has no witnesses to counteract the version
of the plaintiff
and that they were accordingly unable to dispute his evidence. I
accordingly hold that the defendant shall be
100 percent liable for
any damages proved by the plaintiff.
QUANTUM
4. In respect of the quantum, the parties have now agreed the past
medical expenses in the sum R217 169.94. In regard to future
medical
expenses, the defendant will give an undertaking in terms of Section
17(4) of the Act.
5. The issues that then remain are the questions of general damages
and future loss of earnings in the sense that the plaintiff’s
working capacity and productivity have been diminished. The
plaintiff’s counsel has informed me that they will seek those
latter damages to be included in general damages in terms of the case
of
Deysel v Road Accident Fund.
1
DETERMINATION
OF SERIOUS INJURY
6. The question is whether or not this court can decide the issue of
general damages or whether the matter needs to be referred
to the
tribunal set up in terms of the Act and the regulations, in order for
the tribunal to determine whether or not this injury
is of a serious
nature. The court is empowered to decide the quantum, but not
whether or not the injury is serious, if disputed
by the defendant.
7. In this regard, the case of
Road Accident Fund v Duma and three
related cases
2
(Duma)
is instructive. The SCA held that a serious injury is to
be determined in accordance with the procedure prescribed in the
regulations
and it is not for the court to decide whether the injury
is serious.
8. As appears in
Duma
at [5]:
“
In terms of the Amendment Act in 2005, the all-important
limitation on the Fund’s liability for general damages was
introduced
as a proviso in Section 17(1) that ‘the obligation
of the Fund to compensate a third party for non pecuniary loss shall
be
limited to compensation for serious injury as contemplated in
subsection (1)(A)”.
9. The SCA went on to hold that Section 17(1)(A) provides that the
assessment of whether or not a particular injury meets the threshold
requirement of serious must be carried out by someone registered as a
medical practitioner under the Health Professions’
Act 56 of
1974 (
the HPA
) and on the basis of a prescribed method.
10. The Road Accident Fund Regulations of 2008 were promulgated on 21
July 2009. Regulation 3 prescribes the method contemplated
in
Section 17(1)(A) for the determination of serious injury. As a
starting point, it provides in Section 3(1)(a) that if a third
party
wishes to claim general damages “
he/she shall submit
himself or herself to an assessment by a medical practitioner in
accordance with these regulations”.
11. In terms of Section 3(3)(a), a third party who has been so
assessed shall obtain from the medical practitioner concerned a
“
serious injury assessment report”
. This report
is defined in Regulation 1 as “
a duly completed form RAF 4”
and attached to the regulations as annexure “D”.
12. The RAF 4 form itself read with Regulation 3(1)(b) requires the
medical practitioner to assess whether the third party’s
injury
is serious in accordance with three sets of criteria. Firstly, the
minister may publish a list of injuries which do not
qualify as
serious. Secondly, it would qualify as serious if it resulted in a
30 percent or more impairment of the whole person
(WPI) as provided
in the AMA guides, being Regulation 1 in the American Medical
Associations Guide to the Evaluation of Permanent
Impairment, 6
th
edition (
the AMA
). Thirdly, if an injury does not qualify as
serious in terms of the above regulations, it may be assessed as
serious under the
so-called “
narrative test
”
provided for in regulation 3(1)(b)(iii), if that injury “
resulted
in a serious long-term impairment or loss of body function, or it
constitutes permanent serious disfigurement, and so
forth”.
3
13. The regulations provide that the Fund will only be liable for
general damages if the claim is, firstly supported by a serious
injury assessment report submitted in terms of the Act and the
regulations, and, secondly, that the Fund accepts that the injury
has
been correctly assessed as serious. If not, the Fund can either
reject the third party’s RAF 4 form or direct that the
third
party submit himself or herself to a further assessment.
14. Regulation 3(4) provides that if the third party disputes the
Fund’s rejection of the RAF 4 form (under Regulation
3(3)(d)(i)),
or if either the third party or the Fund wishes to
challenge the assessment by the medical practitioner appointed by the
Fund
(under Regulation 3(3)(d)(ii)), the aggrieved party must
formally declare a dispute by lodging a prescribed dispute resolution
form RAF 5, with the registrar of the Health Professions’
Council within 90 days of being informed of the rejection, or
the
impugned assessment.
4
If this is not done, the assessment of the Fund’s designated
medical practitioner shall become final and binding.
5
15. If a dispute is declared there is an appeal tribunal set up with
three independent medical practitioners with appropriate expertise
in
the area of medicine in dispute. They are appointed by the registrar
of the Health Professions’ Council. The appeal tribunal
has
the final say and its determination is binding upon the parties
before them. The procedure to be adopted is set out in regulations
3(4) to 3(13).
16. In
Duma
, the court
a quo
had found that the RAF 4
forms were compliant with regulation 3 and, in any event, it was
apparent from the medical evidence presented
at the trial that the
plaintiff did indeed suffer serious injuries as contemplated by the
regulations. The court
a quo
had found as follows in regard
to the Fund’s rejection of the RAF 4 form,
“
Moreover, the Fund’s rejection was invalid for one or
both of two reasons and should thus be disregarded. The first reason
was that the Fund had failed to reject the RAF 4 form within a
reasonable time… The second was that since the Fund had given
insufficient or invalid reasons for its rejection, it did not
constitute a proper rejection in terms of Regulation 3(3)(d)(i).”
6
According to Brand JA at [15],
“The antecedent inquiry, so
it seems to me, is whether the High Court was right in deciding, for
either of the two reasons
given, that the Fund’s rejection of
the RAF 4 forms should be disregarded. If it were, the merits of the
rejection seem
to be of little consequence. Conversely, if the
rejections cannot be disregarded, the fact that the rejection was
without merit
would again be of little consequence. It is therefore
to that antecedent inquiry that I now turn”.
17. The court
a quo
had referred to
Louw v Road Accident
Fund,
7
where the period of 60 days referred to in terms of Section 24(5) of
the Act, would serve as a guideline for a timeframe within
which the
Fund will be able reject a third party’s RAF 4 form. The court
a quo also relied, in regard to the Fund providing
proper reasons, on
the reasons in the unreported decision of Claassen J in the SGHC, in
Smith and Ngobeni v Road Accident Fund
8
.
18. Brand JA, at [17] of
Duma
summarised Claassen J’s
reasoning as follows;
“
If the Fund does not dispute that the third party’s
injury is serious, the court can proceed to decide whether it is
serious
or not. If the court decides that question in the
affirmative, it can proceed to entertain the claim for general
damages. If
the Fund rejects the RAF form without any legal or
medical basis for doing so, that rejection is purely obstructive and
does not
raise a genuine dispute. In that event, the position is no
different from where the Fund raised no dispute at all.”
19. Brand JA held that the approach of the court
a quo
, in all
four cases referred to, was fundamentally flawed. At [19] of
Duma
he stated,
“
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 on the court. That
much appears from the stipulation in Regulation 3(3)(C) that the Fund
shall only be obliged to pay general damages if the Fund- and not the
court- is satisfied that the injury has been 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.”
20. Brand JA continued at [20],
“If the Fund rejects the RAF
4 form - with or without proper reasons - it means that the
requirement that the Fund must be
satisfied that the injury is
serious has not been met. In that event, the plaintiff cannot
continue with its claim for general
damages in court. The court
simply has no jurisdiction to entertain the claim. The plaintiff’s
remedy is to take the rejection
on appeal in terms of Regulation
3(4). It follows that the rejection cannot be ignored merely because
it was not raised within
a reasonable time.”
21. The court held that even if the Fund’s decision to reject
was only taken after the expiry of a reasonable period, the
rejection
still prevails. The court then dealt with the Fund’s decision
to reject the plaintiff’s RAF forms without
proper reasons. The
court held that same constituted administrative action. It was
therefore not open to the High Court to disregard
the Fund’s
rejection of the RAF 4 form on the basis that the reasons given were
insufficient or that they were given without
any medical or legal
basis, or that they were proved to be wrong by expert evidence at the
trial.
22. The court, at [25], held that the internal appeal processes must
be utilised. The court in the
Duma
matters was asked to
provide some guidance on the interpretation of Regulation 3(1) mainly
because the Fund has often been penalised
by the High Court for its
interpretation of the regulation, which was held to be wrong.
9
23. In all four cases on appeal, the Fund rejected the RAF 4 forms on
three grounds. One, that Dr Braude, a psychiatrist, had concluded
that the plaintiffs’ injuries were serious but did so without
physically examining them. Two, the AMA evaluation contemplated
in
Section 3(1)(b)(ii) was done by an occupational therapist, whom the
regulation does not contemplate as a medical practitioner.
Three, the
whole person impairment assessment, in terms of the AMA guide, must
have been conducted before an assessment in terms
of the narrative
test, laid down in Regulation 3(1)(b)(iii), can be done.
24. The SCA held that the court
a quo
had wrongly interpreted
Regulation 3(1). Brand JA went on to examine the grounds for this
decision. Firstly, in regard to the
physical examination of the
claimant for the purposes of the assessment, it was common cause that
Dr Braude, who had signed the
RAF 4 forms had not physically examined
the plaintiffs but relied instead on hospital records.
25. Regulation 3(1)(a) provides that the claimant shall “
submit
himself or herself to an assessment by a medical practitioner.
”
In finding that assessment as used in Regulation 3(1)(a) is not to
be equated with physical examination, the court
a quo
examined
the meaning of the words: “
assessment of an injury
”.
In this regard, Brand JA, at paragraph 29, held that:
“
My problem with this approach is, however, that it takes
the term ‘assessment’ out of the context of Regulation
(3)(1)(a).
This Regulation requires that the claimant must “submit
himself or herself to an assessment.” In my view it simply
cannot be said by any stretch of the imagination that a claimant, who
merely sent his hospital records to a medical practitioner
“submitted
himself” to an assessment by that practitioner.”
26. This is illustrated by the fact that if the Fund is not satisfied
it may direct that the claimant submit himself or herself,
in terms
of Regulation 3(3)(d)(i), “
to a further assessment, to
ascertain whether the injury is serious, by a medical practitioner
designated by the Fund.”
Therefore the medical records
being sent to a medical practitioner designated by the fund would
also not suffice. A physical examination
by the Fund’s medical
practitioner is necessary.
27. The court also held that a medical practitioner envisaged by
Section 17(1)(a) and regulation (3)(1) are those practitioners
that
are registered under the medical and dental profession.
10
In consequence it excludes health practitioners such as occupational
therapists, and others who are registered under other professional
bodies. The Fund, in the court’s view, rightly decided that
the occupational therapist did not qualify as a medical practitioner.
28. At [35], Brand JA dealt with regulation 3(1)(b)(iii). He
referred to the fact that Regulation 3(1) sets out the three criteria
referred to above:
“
it is clear from the Road Accident Fund form that Dr Braude
did not rely on the criteria formulated in 3(1)(b)(ii) but on the
narrative
test laid down in Regulation (3)(1)(B)(iii) as the basis
for his assessment that the plaintiffs’ injuries were
‘serious’.
The Fund’s contention was, however,
that he was not allowed to do so. On a proper interpretation of the
regulation, so
the Fund contended, a Whole Person Impairment
Assessment (WPI) rating of below 30 percent is a prerequisite before
the narrative
test can be performed. Since Dr Braude did not assess
the plaintiffs for WPI under the AMA guides at all, so the Fund
contended,
he could not have applied the narrative test.”
29. The court
a quo
had rejected the Fund’s contention
in this regard, on the basis that the regulations contemplated a
disjunctive test where
a claimant has to meet the requirements of one
or the other.
11
In other words, it is open to a medical practitioner to evaluate the
question of seriousness, either by way of the AMA/WPI test,
or by
way of the narrative test.
30. The SCA held, at [36], that Regulation 3(1)(b)(v) seems to favour
the interpretation contended for by the Fund, where it provided
that
“
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.
”
31. It was common cause in the
Duma
matters that the minister
had not, at such date, approved a training course. However, the
court held that the regulation clearly
shows an intention that, once
the course is approved, assessment should only be conducted by those
doctors who had successfully
completed the course.
32. The regulations indicate that all assessments require knowledge
of the AMA guides, which in turn leads to the inference that
the AMA
guides cannot be avoided by a medical practitioner by opting for the
narrative test. The court held further:
“
But a more weighty consideration in favour of the Fund’s
interpretation, as I see it, derives from the contents of the RAF
4
form itself, which is incorporated in the regulations as annexure D.
In broad outline the report is divided in five paragraphs.
Paragraph
1 requires the personal details of the claimant while paragraph 2
calls for the particulars of the medical practitioner
responsible for
the assessment. Paragraph 3 requires an indication of injuries
observed by the medical practitioner that cannot
be assessed as
serious because they appear on the minister’s list as
contemplated in Regulation (3)(1)(b)(i). Paragraph
4 then deals with
the AMA impairment Rating as contemplated in Regulation
(3)(1)(b)(ii), while paragraph 5 refers to the narrative
test in
Regulation (3)(1)(b)(iii). Of significance, in my view, is that
paragraph 4 really contains the nub of the report. If
paragraph 4
were to be left uncompleted the report would be of little substance.
In sum, the inevitable inference to be drawn
from the contents of the
report is that it was never intended that the assessment could bypass
the AMA/WPI test.
”
THE PRESENT MATTER
33. The rejection by the defendant of the RAF 4 forms in the present
matter is dated 8 March 2013, and therefore was only given
to the
plaintiff one day before the trial. Having regard to the decision in
Duma, the lateness of the rejection does not preclude
the Court from
dealing with the Defendant’s rejection.
34. The grounds upon which the objection is founded is that the
plaintiff’s RAF 4 form fails to comply with the provisions
in
terms of Regulation 3(3)(d)(i) of the Road Accident Fund Regulations
2008 in that:
"
The
plaintiff did not suffer long-term impairment and/or permanent
disability and/or loss of bodily function.
The plaintiff has
not reached his MMI at the time of completion of the RAF 4 form.
If
the plaintiff intends to dispute the rejection and/or objection he
is obliged to follow the procedures set down in regulation
3(4) to
(10) of the Road Accident Fund Regulations.”
35. The RAF 4 form was completed by Dr de Graad, plaintiff’s
expert medical practitioner, an orthopaedic surgeon. The assessment
of Plaintiff by Dr de Graad was completed on 30 April 2012. The
plaintiff submitted the RAF 4 forms of Dr de Graad in April 2012.
Dr
de Graad recorded that the plaintiff has reached MMI status and
further recorded that the plaintiff’s injury specifically
qualifies for permanent serious disfigurement and severe long-term
mental or severe long-term behavioural disturbance or disorder.
36. The plaintiff’s clinical psychologist, Ms Cramer, assessed
the plaintiff on 26 October 2011 and recorded that the plaintiff’s
injuries specifically qualify for severe long-term mental or severe
long-term behavioural disturbance or disorder and she set out
her
reasons for same. The RAF 4 form in this regard was served on the
Defendant on 11 March 2013.
37. Joint minutes were completed by Dr de Graad and Dr Swartz,
defendant’s expert orthopaedic surgeon, as well as by the
respective occupational therapists, the respective industrial
psychologists and the respective clinical psychologists.
38. Dr de Graad and Dr Swartz, the orthopaedic surgeons, recorded in
their joint minute 28 January 2013: “
his clavicle fracture
was complicated by infection. He had to have plastic surgery done
with a muscle flap. He has a disfigurement
as a result of the
injury. He has a psychological problem with the scar. This for him
was a serious injury resulting in serious
long-term impairment
.”
39. Ms Cramer and Ms Maluleke, the respective clinical psychologists,
record on page 2 of the joint report that: “
We jointly
recommend psycho-therapeutic treatment of his low mood and heightened
anxiety ... this would not be curative given the
largely organic
basis of his problems
.”
40. The plaintiff argues that based upon these joint minutes, the
defendant has accepted that the injury is of a serious nature.
Having
regard to such concession, can the defendant still object to the RAF
4 form and insist that the plaintiff follow the procedure
to have the
plaintiff assessed by its medical practitioner and injury declared
serious by the tribunal?
41. Dr de Graad recorded in the RAF 4 form that the plaintiff had
reached MMI status and that his injury specifically qualifies
as
permanent serious disfigurement, severe long-term mental or severe
long-term behavioural disturbance or disorder. Ms Cramer
recorded in
the RAF 4 form that the plaintiff’s injury specifically
qualifies as severe long-term mental or severe long-term
behavioural
disturbance or disorder.
42. Dr Swartz, the defendant’s medical practitioner, filed his
report on 29 November 2012. In his report, he stated that
the
plaintiff had reached MMI. He, however, having done the AMA test,
found that the plaintiff’s WPI was eight percent and
that he
did not qualify for the narrative test for serious long-term
impairment or loss of a bodily function.
43. The notice of objection filed by the defendant on 8 March 2013
sets out the basis of the defendant’s dispute and informs
the
plaintiff that his next step is to follow the procedure as set out
in the regulations, meaning that the plaintiff should refer
the
matter to the appeal tribunal.
44. 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 either
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.
45. They both, therefore, have complied with the regulations and have
submitted their reports in accordance with the decision in
the
Duma
matter and in contrast to the plaintiffs in such matter.
46. 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.
47. 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. As
I had set
out above, the defendant’s orthopaedic surgeon, Dr
Swartz,, previously in his report dated 29 November 2012, found that
the
plaintiff had not reached 30 percent WPI and that the plaintiff
did not qualify for the narrative test. He however did find that
MMI
had occurred in relation to his injuries.
49. Dr de Graad, on the other hand, found that the plaintiff had
reached MMI, that the plaintiff did qualify for the narrative
test
and that there was a serious injury. The Fund’s designated
practitioner, Dr Swartz has assessed the Plaintiff and, in
filing the
joint minute, had agreed that MMI had been reached and that the
injury was serious. In the joint minute the doctors
stated the
following,
“
Considering the following:
his
clavical fracture was complicated by infection. He had to have
plastic surgery done with a muscle flap;
he
has disfigurement as a result of the injury;
he
has a psychological problem with the scar. This for him was a
serious injury resulting in serious long-term impairment
.”
[emphasis added].
49. The two objections raised by the defendant in the notice of
objection were firstly that the plaintiff did not suffer long-term
impairment, or a permanent disability or a loss of body function.
The second point was that the plaintiff had not reached MMI
at the
completion of the RAF 4 forms.
50. In regard to defendant’s first objection, Dr Swartz now
agrees that the injury is one, in terms of the narrative test,
to be
declared a serious long term impairment. Accordingly the basis of
the first ground of objection has, in effect, been “conceded”
to be incorrect by the defendant’s expert, Dr Swartz. The
defendant’s second objection is factually incorrect. When
the
RAF 4 form was submitted, the plaintiff’s medical practitioners
stated that the plaintiff had reached MMI. Dr Swartz,
on behalf of
defendant agreed.
51. It appears that therefore the two points of objection fall away.
It would be artificial to hold that simply because the defendant
has
objected to the RAF 4 assessment, that, irrespective of the basis
therefore the plaintiff must follow the procedure set out
in
Regulation 3. In this regard, the facts in the
Duma
case are
distinguishable. The grounds of objection in the
Duma
case
were valid. In the present case, they are not, for the reasons set
out above.
52. Accordingly, the Court can accept the assessment of both the
plaintiff and defendant’s medical practitioners that this
is a
long term injury where general damages are applicable.
53. The Court therefore holds that the plaintiff can proceed to prove
its general damages.
54. The parties have agreed on the damages that plaintiff is to be
awarded and have prepared a draft order.
55. In the result, there will be an order in terms of the draft.
____________
Weiner J
Date of hearing: 11 March 2013
Date of judgment: 12 March 2013
Counsel for Plaintiff/Applicant: Adv E. Dos Santos Soares
Attorneys for Plaintiff/Applicant: Wolmarans Inc.
Counsel for Defendant/Respondents: Adv D. Mkhwanazi
Attorneys for Defendant/Respondent: MSM Inc.
1
Deysel v Road Accident Fund (2483/09) GSHC
(24 June 2011)
2
Road Accident Fund v Duma (202/12) and three related
cases
(Health
Professions’ Council of South Africa as Amicus Curiae)
[2012]
ZASCA 169
(27 November 2012).
3
Road Accident Fund v Duma and Three related matters, footnote 2
supra at paragraph 34.
4
Ibid at paragraph 9.
5
Ibid.
6
Ibid at paragraph 15.
7
2012 (1) SA 104
GSJ
8
Smith and Ngobeni v the Road Accident Fund (
47697/09) ZAGPHCJ (29 April 2009)
9
Road Accident Fund v Duma, footnote 2 supra at paragraph 27.
10
Ibid paragraph 33.
11
Ibid paragraph 36.