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[2016] ZAGPJHC 268
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M v Road Accident Fund (24261/2014) [2016] ZAGPJHC 268 (10 October 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 24261/2014
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
DATE:
10 October 2016
In the
matter between:
M., L. L.
obo
M. J. M.
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
SPILG,
J:
INTRODUCTION
1.
The plaintiff sues as
mother and natural guardian of her minor son who was injured in a
motor vehicle accident on 9 May 2011 when
the child was
5
years old. He is now 12 years old.
2.
As appears below the
Road Accident Fund (‘
the
RAF’
)
conceded liability prior to the institution of proceedings. An action
was instituted to recover damages in respect of the
sequelae
of the injuries
allegedly sustained as a consequence of the accident.
3.
The matter was placed
on the roll of 23 September for trial certification. This was during
the recess. The trial is set down to
commence on 21 October 2016.
4.
The defendant contended that
the matter was not trial ready since it had raised a special plea
which required prior adjudication.
The special plea is that the
plaintiff failed to comply with s
24(2)
(a) of the Road Accident Fund Act 56 of 1996 (“the Act”).
5.
The papers before me indicate that the child is
alleged to have sustained a severe head injury as well as orthopedic
injuries. The
claim is for R4.5million.
6.
In view of
the nature of the alleged injuries, the fact that there has been no
interim payment, the plaintiff being a single parent
who is
unemployed and therefore unlikely to provide financially for the
reasonable care of her child it was necessary that the
manner of
proceeding with trial certification has regard to the child’s
best interests. They are to be considered of
paramount
importance in all matters affecting him or her. This is expressed in
s 28(2) of the Constitution and repeated in s 9
of the Children’s
Act 38 of 2005.
[1]
7.
For a host of rather obvious reasons the child’s
interests are best served if it is feasible to resolve the special
plea in
good time before the allocated trial date, not the least of
which will be the avoidance of a possible postponement of the trial
even if the special plea were to be heard on the trial date and
dismissed.
8.
Moreover the issue is not simply one concerning
the merits of the special plea but the plaintiff in turn has
challenged the competency
of the defendant to have raised it. If the
plaintiff is correct then a matter that in fact should be certified
trial ready cannot
proceed.
9.
If the issues concerning the special plea could
be determined immediately then it was still possible to certify the
matter trial
ready for 21 October. Since last week was also during
the recess and I was not on duty for any other matters, I enquired
whether
the parties were amenable to my hearing the special plea.
Both parties were agreeable and filed heads of argument.
THE
ISSUES
10.
The defendant has sought to introduce a special
plea of non-compliance with s 24(2) (a)
of the Act.
The ground is that the medical report contained in the
RAF 1 claim form was not completed by the medical practitioner who
had treated
the child at the time of the accident or by the
superintendent of the hospital where the child received treatment and
no explanation
has been provided as to why they did not do so.
Instead Dr Morare completed the medical report section of the form.
11.
In turn the plaintiff takes issue on two grounds
with the competency of the Fund to raise the special plea. Firstly,
that the defendant
had failed to amend its existing plea as required
under Rule 28(1) of the Uniform Rules but simply introduced a new
plea which
included for the first time the special plea under
consideration. The other ground is that the Fund failed to object to
the validity
of the claim lodged by the plaintiff within 60 days of
its delivery as required by s 24(5) of the Act and had in any event
acquiesced
when admitting liability on the merits.
12.
In order to appreciate the challenge raised to
the special plea it is necessary to set out the chronology.
CHRONOLOGY
13.
The child was treated at Leratong Hospital for
the injuries sustained in the accident of 9 May 2011 and a claim was
lodged with
the Fund on 13 September 2013.
On
14 May 2014, the Fund made an offer of 100% settlement in respect of
liability. This was accepted on 20 May 2014.
14.
Subsequently on 7 July 2014 the summons was
served on the Defendant
On
14 September 2014 the Fund, then represented by Mohlala Attorneys,
served its Plea.
A
year later, on 9 September 2015 a notice of set down for trial was
served on Mohlala Attorneys.
15.
However on 31 May 2016 Mohlala Attorneys were
substituted by Dev Maharaj & Associates as the Fund’s
attorneys of record.
16.
On 5 August 2016, Dev Maharaj & Associates
served another Plea (which the plaintiff refers to as the ‘
Second
Plea’
), wherein the Defendant raised,
for the first time, an issue of non-compliance with section 24(2) (a)
of the Act. The Defendant
failed to withdraw the First Plea,
initially delivered by Mohlala Attorneys and on that basis the
Plaintiff did not replicate to
the second Plea.
17.
On 22 September 2016, the Defendant served the
Plaintiff with a Notice in terms of Rule 28(1) of the Uniform Rules
of Court, alleging
that the Plaintiff had not complied with the
provisions of S24 of the Act.
18.
On 26 September 2016 the Plaintiff’s
Attorneys in turn objected to the Defendant’s Rule 28(1) notice
on the basis that
it did not afford the Plaintiff enough time to make
use of the provisions of rule 28(8).
19.
The chronology suggests that the new attorneys
for the Fund simply tried to steamroller their special plea through
without proper
consideration for the rules and in a belated attempt
to stave off the trial date because the Fund had changed attorneys at
a very
late stage and did not seem to be properly prepared for trial.
This appeared to be borne out by the failure of the Fund to produce
any medico-legal report while the plaintiff had submitted all barring
that of the actuary. Counsel for the plaintiff argued that
the
special plea was a ruse to buy time.
20.
Appearances can be deceiving. The previous
attorneys engaged by the Fund were removed from its panel by the
court. The attorneys
however would not release their files. The only
pleading the Fund had was the originating summons served on them.
They were unaware
whether a plea had been filed.
21.
On receipt of instructions from the Fund Att.
Putsoane contacted the plaintiff’s attorneys on 24
May to advise
that his firm had taken over the matter and requested
information regarding the state of the pleadings. The person he spoke
to,
Ms Bongi, indicated that she would revert. The Fund’s
attorneys also sent an email to the plaintiff’s attorneys on
the following day confirming their appointment and formally requested
information about whether both the merits and quantum were
still in
dispute and whether a trial date had been applied for.
22.
The notice of substitution mentioned earlier was
served on 31 May 2016 together with rule 35(14) and 36(4) notices
which included
a request for all medical reports and hospital records
as well as the RAF 1 and 4 claim forms and statutory affidavit.
23.
The plaintiff responded to the rule 35(14) and
36(4) notices in early July. The documents supplied suggested that
the merits had
not been conceded and since there was no response to
the email sent on 25 May (which was dated 24 May) the Fund’s
attorneys
considered it prudent to raise the standard special pleas
and plead over on the merits, including a denial of liability. The
plea
itself also denied the averment contained in the summons that
the provisions of s 24 had been complied with.
24.
The defendant’s attorneys then
prepared an assessment report which was submitted to the responsible
handler at the Fund. One
of the issues picked up from the replies to
the various notices was that Dr Morare who signed the RAF 1 form was
not one of the
treating doctors identified in the hospital records.
25.
The Fund responded to the assessment report and
contended that it had objected to the claim. Its attorneys were
requested to amend
the plea. This resulted in the notice in terms of
rule 28(1) being served on the plaintiff which raised as a further
special plea
that she had not complied with the provisions of
S24(2)(a) of the Act.
26.
It is unfortunate that both sets of attorneys did
not communicate more regularly with one another. The
plaintiff’s attorneys
neither responded to their counterpart’s
request about the state of the pleadings or to take issue with the
second
plea as an irregular step. Similarly the defendant’s
attorneys did not follow up on their initial enquiry.
Plaintiff’s
counsel submitted that the defendant’s
attorneys ought to have inspected the court files. In my view that
does not answer
the failure on the part of the plaintiff’s
attorney to respond to the initial enquiries. An inspection of the
court file
would shed no light on whether the merits had been
conceded. Although one might ordinarily go to the court file
collegiality should
direct a more open exchange between attorneys; it
would certainly save time and unnecessary costs.
27.
In my view the defendant’s present
attorneys acted responsibly both in protecting their client’s
interests and in engaging
the plaintiff’s attorneys.
Unfortunately
both sets of attorneys treated their pre-trial conference as a
formality. It was no more than a necessary inconvenience
entailing
the ticking of a box to access the certification for trial readiness
procedure.
This
is to put the cart before the horse. The certification process is
intended to oversee trial readiness. It is not a substitute
for the
pre-trial conference provided for under the rules.
THE
ISSUES
28.
The issues are:
a.
whether the defendant’s Second
Special Plea is competent.
The plaintiff contends
that the rules required a formal amendment to the first plea and that
the rule 28 notice should not be accepted
as it was served with
insufficient time allowed for objection under the rules prior to the
trial date. It is also contended that
under s 28(5) the Fund is
precluded from raising an objection at this stage and that in any
event it had consented or otherwise
acquiesced to receiving a
defective claim form.
The defendant contended
that it had timeously objected to the claim on the grounds that the
plaintiff failed to comply with the
provisions of the Act. This was
however submitted from the bar on instructions received without the
production of the objection
itself.
b.
whether s24(2)(a) makes provision for a
non-treating doctor to complete the RAF1 form without the tender of
an explanation having
regard to the provisions of the section.
THE
STATUS OF THE SECOND PLEA
29.
In my view an attack on the regularity of the
second special plea does not preclude the defendant from relying on
the notice of
amendment to be construed by reference to the first
plea filed. Its substance is clear; it seeks to add another special
defence
to the case it has pleaded. The fact that in form it may be
construed as referring to a proposed amendment to the second plea and
not the first should not be allowed to preclude the raising of the
defence provided it is raised
bona fide
and there is not prejudice which may be cured by a suitable costs
order.
30.
This is not the type of case where a defendant is
deliberately ignoring the provisions of the Uniform rules of court by
filing a
second plea without notice of amendment. The circumstances
under which the second plea came to be filed have been set out and
the
plaintiff’s attorneys are not entirely exculpated since
they should have assisted by responding to the email enquiry. I am
satisfied that the failure by the plaintiff’s attorney was an
oversight.
31.
The reason for raising the want of compliance
with s 28(1) is that the hospital records reveal that the child was
treated for a
leg fracture but not treated for a head injury. At most
there was a doctor’s note that the child should be observed in
case
there were any neurological sequelae, but none were mentioned.
32.
It is evident that Dr Morare in completing the
RAF 1 form also confirmed that the hospital records did not indicate
any sequelae
associated with the head injury other than superficial
cuts and abrasions.
33.
In my view it is essential for the proper
scrutinising
of
claims that an opportunity is afforded to the Fund to investigate
whether the head injuries described in the hospital report
could have
resulted in the brain damage now contended for. A red flag has been
raised and the reason for it not being dealt with
sooner appears to
be due to the quality of the legal representation the Fund previously
had.
34.
That however does not end the enquiry. The
plaintiff contends that the defendant is precluded from belatedly
raising want of compliance
with formalities when lodging the claim
form by reason of the provisions of s 24(5) of the Act.
S24(5)
provides that:
‘
If the Fund
does not, within 60 days from the date on which a claim was sent by
registered post or delivered by hand to the Fund…as
contemplated in subsection (1), object to the validity thereof, the
claim shall be deemed to be valid in law in all respects
”
.
35.
The Defendant did not discover any document
indicating that it had objected to the claim. Att. Putsoane, who has
right of appearance,
however informed the court that his instructions
were that an objection had been served. He also advised that the
Fund’s
documentation was filed off-site and that he had a day
or two previously requested the Fund to obtain a copy. However there
was
a bomb scare which prevented the Fund’s officials from
accessing the storage facility. I indicated that the matter would be
postponed for two days so that the search could be resumed on the
following day.
36.
When the case resumed two days later the court
was informed that the file had still not been located. The
plaintiff’s attorney’s
position was that the claim form
was lodged by them with a covering letter from them and that no
objection had been received by
them.
37.
Having regard to the view I took of the matter I
decided that irrespective of whether there had been an objection
properly served
the defendant’s obstacle still remained the
letter it sent on 14 May 2014 advising that it had considered the
available evidence
giving rise to the claim and was prepared to
settle the issue of negligence on the basis that the insured driver
was solely negligent.
No offer was made in respect of quantum. The
letter continued that acceptance would only be effective when the
acceptance offer
is fully completed. It is common cause that the
offer was accepted.
38.
The letter goes on to say that “
If
this offer is made after prescription of the claim, it will not be
deemed to be a waiver of prescription and any purported “.
The
sentence is incomplete. It does not apply, but even if it did it is
difficult to appreciate how there could be a residual issue
if an
offer made in respect of both merits and quantum was accepted.
39.
There is also an earlier paragraph which advises
that the offer is limited to the aspect of negligence only and may
not be interpreted
or construed in a manner that would have the RAF
concede any other aspect of the claim and that to “
avoid
doubt, the RAF reserves all its rights in law with regard to all
other procedural and substantive aspects of the claim”.
40.
While the
caveat
may cover the adequacy of the information provided in the RAF4 part
of the claim form in respect of a serious injury assessment
report it
would be tantamount to approbating and reprobating if a claim is
admitted as to negligence since the acceptance of at
least the RAF1
portion of the claim is essential for the Fund to consider the claim
at all for purposes of admitting negligence.
41.
If I am wrong then it is necessary to deal with
whether the RAF 1 form was properly completed.
ADEQUACY
OF THE RAF 1 FORM BEING COMPLETED BY A NON-TREATING DOCTOR
42.
S 24(2)(a) of the Act provides that:
“
The medical
report shall be completed on the prescribed form by the medical
practitioner who treated the deceased or injured person
for the
bodily injuries sustained in the accident from which the claim
arises, or by the superintendent (or his or her representative)
of
the hospital where the deceased or injured person was treated for
such bodily injuries: Provided that, if the medical practitioner
or
superintendent (or his or her representative) concerned fails to
complete the medical report on request within a reasonable
time and
it appears that as a result of the passage of time the claim
concerned may become prescribed, the medical report may be
completed
by another medical practitioner who has fully satisfied himself or
herself regarding the cause of the death or the nature
and treatment
of the bodily injuries in respect of which the claim is made.”
43.
It is common cause that Dr Morare who completed
the RAF 1 form was not the treating doctor.
44.
It is also conceded by the plaintiff that no
attempt was made to ask the treating doctor to complete the form or
to have it completed
by the superintendent at the hospital. While the
issue of prescription did loom, it was not by reason of a refusal on
the part
of the treating doctor or superintendent that Dr Morare was
approached.
45.
The plaintiff’s attorney was given an
opportunity to set out in an affidavit the reasons advanced by Adv
Moshidi from the
Bar as to why the treating doctor and superintendent
were not contacted. An affidavit by Att. Nkeli confirmed the systemic
difficulty
experienced by the practice in which he is a director in
securing the completion of RAF 1 forms by the treating doctor or the
hospital
superintendent in hospitals in the Gauteng province.
46.
The attorney explained that hospitals in and
around Gauteng do not respond to requests to complete the RAF 1 form.
Moreover in some
cases it is impossible to have the form completed by
the hospital as the hospital did not retain the records or simply
does not
respond. The attorney gave the example of requests made to
the South Rand, Charlotte Maxeke and the Helen Joseph hospitals. In
some cases a request for payment of a fee was made and complied with,
but in all cases, emanating from October 2014 to January 2015
Att
Nkeli has yet to receive the hospital records.
47.
The
intention of s 24(2)(a) is clear. The Fund should be satisfied as to
the medical treatment that was received from the hospital
at which
the claimant was admitted pursuant to an accident. I have referred to
this in a previous RAF case as a primary source
of evidence
[2]
.
This aspect lay at the foundation of my criticism of the expert
evidence tendered and the failure of the Fund to properly investigate
the nature of injuries actually sustained in that earlier case.
[3]
48.
My attention was directed to the unreported
judgment of Alkema J in
Zuko Busuku v the Road
Accident Fund
[2016] 3 All SA 498
(ECM). With respect to the learned judge I do not see the purpose of
s 24(2)(a) and the mischief it seeks to address in quite the
same
way. At paras 24 the court said that
‘
It
follows that the hospital records may not substitute a duly completed
medical report
as the source of the
information
. The Act read with
the Regulations only recognize the duly completed medical report on
form RAF1 as the only source of the
information. If the
hospital records may constitute substantial compliance with
Regulation 7 read with section 24 of the
Act, as Mr Bodlani
submitted, then the words used in the Act and Regulations become
meaningless and are not given effect to.
And this is not
permissible under the law of interpretation of Statutes and it
offends the case law on the subject, including judgments
from the
Supreme Court of Appeal which are binding on this Court.’
(emphasis added)
49.
There is some distinction between that case
and the present. The court in
Busuku
was
concerned with a claim form that was not signed by any medical
practitioner but only had attached the hospital records. In the
present case a non-treating medical practitioner
completed the medical report after it is clear that he had considered
the hospital records. There is however a fundamental point of
departure. In
Busuku
the
court found that the fundamental consideration of the section was
directed at obtaining the signature of the treating doctor.
This appears also from para 25 of the judgment:
‘
The requirement
by section 24 (2) (a), namely that the medical report must be
completed by the medical practitioner who treated
the plaintiff,
strengthens the inference that the hospital notes may not substitute
the duly completed medical report under form
RAF1. ‘
50.
I have no difficulty in accepting that
direct evidence is sought in the form of a declaration. The question
is “
direct evidence of what?”
In answering this question I have a reservation regarding the learned
judge’s view as to the actual focus of the section.
It
seems to me that at the heart of s 24(2)(a) is the primary evidence
of the hospital records for otherwise it would not make sense
for the
superintendent to suffice, without more, as a satisfactory
alternative declarant to the treating doctor. It appears that
the
court’s attention was not directed to the significance of
allowing for the superintendent, or for that matter his or
her
representative, to sign. A superintendent would not have personal
knowledge of the treatment received by the patient.
Accordingly
the purpose of his or her signature or that of a representative at
the treating hospital, in satisfactory substitution
for that of the
treating doctor, must reside in the fact that the completion by such
person of the medical report section of the
RAF 1 form will
sufficiently vouch for the details supplied accurately reflecting the
contents of the treating hospital records.
Which
brings one back to the treating doctor. In a busy hospital treating
doctors are unlikely to recall the specifics of every
patient, they
may not be exclusively treating the same patient and may be rotated.
They are unlikely to have firsthand recall,
but they would be able to
confirm what they did, provided they have sight of the hospital
records. It is unnecessary for the purposes
of this case to consider
the further aspects dealt with in
Busuku
.
51.
But what must be done if the evidence
demonstrates a systemic frustration of the intention of the section
by those who are required
to complete the medical report portion of
the RAF 1 form? It seems to me that by parity of reasoning
substantial compliance will
suffice if the section is to remain in
the statute book while its implementation is frustrated in this way.
Practitioners cannot
be expected to bring compelling orders, much
less should lay persons who pursue their own claims.
52.
Accordingly substantial compliance in
circumstances where the Fund is entitled to condone strict
non-compliance (as evident from
s24(5)) is not necessarily confined
to where there is some deviation from the strictures of the
legislation but includes cases
where it is demonstrated that there is
a systemic impediment to the reasonable attainment of the objective
of s 24(2)(a) by the
hospital authorities and provided of course
there is no prejudice.
53.
There is a further difficulty created by the
draftsperson of the RAF 1 form. The form requires the treating doctor
to not only set
out the treatment received at the hospital but also
to deal with future medical treatment that the patient might be
currently receiving.
It is difficult to see how an intern who
might have been on duty in the emergency ward when the patient was
brought in by ambulance
would be able to complete this section. There
can be no assumption that the patient will continue to receive
treatment at the same
hospital, particularly in the case of motor
vehicle injuries which, precisely because transport is being used,
would suggest that
the hospital would not necessary be close to where
the patient resides.
54.
In the present case Dr Morare correctly set out
the medical treatment received at Leratong hospital which was
confined to the leg
fracture. He also confirmed the identity of the
hospital and that he was
summarising
the hospital records.
55.
The Fund
was able to confirm all these facts as far back as 2014 and no issue
was taken, despite three earlier special pleas, with
the adequacy of
Dr Morare completing the RAF 1 medical report section. As stated by
the Supreme Court of Appeal, the requirement
relating to the
submission of the form is peremptory while the prescribed
requirements regarding the completeness of the form are
directory as
evident from the continued practice adopted in this division by
practitioners.
[4]
56.
In the present case there has been substantial
compliance with the Act and as a fact the Fund has accessed the
hospital records
from which the identity of the treating doctor can
be established should he or she be required to give evidence or file
a report.
TRIAL
CERTIFICATION AND ORDER
57.
That however does not end the enquiry. The
question is whether the matter is trial ready. This depends on
whether the defendant
is prejudiced in its preparation for trial. The
court is conscious of the need for the Fund to properly examine
whether the head
injury claim with its sequelae as now contended for
was casually connected to the accident.
Adv
Mahomed and Att. Putsoane confirmed that this was indeed so. All the
defendant’s experts have examined the child and are
preparing
their reports which will be submitted within sufficient time for the
respective experts to hold their pre-trial meeting
before the trial
date.
58.
I wish to commend both sets of legal
representatives and the Fund for appreciating that this case involved
the rights of a child
and that as long as there was no prejudice
every one strove to attain the same objective, of ensuring that the
matter could be
trial ready.
59.
On 7 October I accordingly:
1.
Dismissed the special plea with costs
2.
Certified the case as trial ready, and by
agreement between the parties and the court’s sanction the
plaintiff is to provide
her actuary’s report by later the same
day while the defendant is entitled to file its further expert
reports, being
that of the occupational therapist, the neurologist,
the educational psychologist, industrial psychologist, clinical
psychologist
and actuary by 13 October. The joint minutes of
all the experts are to be filed by 18 October 2016.
__________________
SPILG
J
DATES
OF HEARING:
28 September, 5 and 7 October 2016
DATE
OF ORDER AND CERTIFICATION: 7 October 2016
DATE OF
JUDGMENT:
11 October 2016
FOR
PLAINTIFF:
Adv T Moshidi
Jerry Nkeli Attorneys Inc
FOR
DEFENDANT:
Adv S Mahomed and Att. T Putsoane (arguing respectively s24(2)(a) and
the background to the pleadings)
Dev Maharaj &
Associates
[1]
S 28(2) of the Constitution provides that:
A
child's best interests are of paramount importance in every matter
concerning the child
.
S 9 of
the Children’s Act reads:
‘
Best
interests of child paramount
In
all matters concerning the care, protection and well-being of a
child the standard that the child's best interest is of paramount
importance, must be applied’
[2]
Ndlovu v Road Accident
Fund
2014 (1) SA 415
(GSJ) at paras 114 and 120(a)
[3]
Ndlovu
at paras 101, 113- 114 and 120(a)
[4]
Pithey v
Road Accident Fund
2014
(4) SA 112
(SCA) at para 19