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[2012] ZASCA 159
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Road Accident Fund v Lebeko (802/2011) [2012] ZASCA 159 (15 November 2012)
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SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
CASE NO: 802/2011
Reportable
In the matter between:
ROAD ACCIDENT FUND
..................................................................................
APPELLANT
and
OUPA WILLIAM LEBEKO
.............................................................................
RESPONDENT
Neutral citation:
Road Accident Fund v Oupa
William Lebeko
(802/11)
[2012] ZASCA 159
(15 November 2012).
Coram:
Mpati P, Brand, Heher, Bosielo et Pillay
JJA
Heard:
21 August 2012
Delivered: 15 November 2012
Summary:
General damages –
Road Accident
Fund Act 56 of 1996
– Claim for non-pecuniary damages flowing
from injuries sustained in a motor vehicle collision – Limited
to ‘serious
injury’ – Reg 3 sets out prescribed
procedure for determination of ‘serious injury’ –
Plaintiff failed
to comply with
regulation 3
– Claim for
general damages postponed pending compliance with
regulation 3.
ORDER
On appeal from:
South Gauteng High Court,
Johannesburg (Mbha J, sitting as court of first instance):
1 The appeal is upheld with costs.
2 The order of the court below is set aside and replaced
with the following order:
‘
2.1 It is declared that the defendant is liable
for the plaintiff’s loss without any
apportionment.
2.2 The defendant is ordered to furnish the plaintiff
with an undertaking in terms of
s 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, to
compensate him 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 in the motor vehicle collision of 6 June
2009 after such
costs have been incurred and upon proof thereof.
2.3 The defendant is ordered to pay the costs of the
hearing on 2 August 2011.
2.4 The special plea is upheld with costs.
2.5 It is declared that the plaintiff has not yet
complied with
regulation 3.
0in
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2.6 The plaintiff is given leave to exercise his right
in terms of
regulation 3(4)
to appeal
against the Fund’s rejection of Dr Scher’s
serious injury assessment report within 90 days of the date of this
judgment.
2.7 The matter is postponed sine die for the
determination of:
2.7.1 the plaintiff’s claim for general damages;
and
2.7.2 liability for the remaining costs.’
JUDGMENT
PILLAY JA (MPATI P, BRAND, HEHER ET BOSIELO JJA
CONCURRING)
[1] With the leave of the South Gauteng High Court,
Johannesburg, the appellant (defendant in the court a quo) appeals
against the
order dismissing its special plea (with costs) and
awarding general damages to the respondent (plaintiff in the court a
quo). For
the sake of convenience, the parties will be referred to as
they were in the court below. The real issue in this appeal is how a
‘serious injury’ is to be assessed for the purposes of s
17(1A) of the Road Accident Fund Act 56 of 1996 (the Act).
[2] It is perhaps prudent to first set out, as briefly
as possible, the latest developments in South African law regarding
claims
for general damages resulting from injuries sustained in motor
vehicle collisions.
[3] In 2002, The Satchwell Commission report was
published. The commission was established to investigate the
financial and policy
difficulties encountered in implementing the
provisions of the Act. The report highlighted a number of issues.
These included the
disproportionate awards for general damages in
respect of pain and suffering, loss of amenities of life –
non-pecuniary damages
– as between road accident victims who
suffer long-term disability, on the one hand, and those who do not,
on the other.
It is clear from the investigation that the total of
general damages paid out to victims who sustained minor injuries and
did not
suffer any long-term disability far exceeded the total amount
paid out to those who sustained serious injuries, which resulted in
long-term disability.
[4] The commission’s recommendations were adopted
in the
Road Accident Fund Amendment Act 19 of 2005
. S 17(1) of the
Act reads:
’
17. Liability of Fund and
agents
(1) The Fund or an agent shall –
(a)
subject to this Act, in the case of a claim for compensation under
this section arising from the driving of a motor vehicle where
the
identity of the owner or the driver thereof has been established;
(b)
….
be obliged to compensate any
person (the third party) for any loss or damage which the third party
has suffered as a result of any
bodily injury to himself or herself
or the death of or any bodily injury to any other person, caused by
or arising from the driving
of a motor vehicle by any person at any
place within the Republic, if the injury or death is due to the
negligence or other wrongful
act of the driver or of the owner of the
motor vehicle or of his or her employee in the performance of the
employee’s duties
as employee: Provided that the obligation of
the Fund to compensate a third party for non-pecuniary loss shall be
limited to compensation
for a serious injury as contemplated in
subsection (1A) and shall be paid by way of a lump sum.’
S
17(1A) of the Act reads:
‘
(1A)
(a)
Assessment of a serious injury
shall be based on a prescribed method adopted after consultation with
medical service providers and
shall be reasonable in ensuring that
injuries are assessed in relation to the circumstances of the third
party.
(b)
The assessment shall be carried
out by a medical practitioner registered as such under the Health
Professions Act, 1974 (Act 56
of 1974).’
[5] It is clear that the obligation of the defendant to
make payment to a third party for non-pecuniary damages is dependent
on
an assessment of an injury in terms of a prescribed method. The
regulations pertaining to s 17 of the Act, including the prescribed
method of assessment were promulgated in GN R770,
GG
31249, 21 July 2008 (with effect from 1
August 2008). Regulation 3 is germane to this appeal and sets out the
procedure for the
required assessment. It provides for a three stage
assessment. Firstly the third party’s serious injury assessment
report
must be completed by a general practitioner and submitted with
the formal claim to the defendant. Thereafter the defendant is
required
to respond thereto either by accepting or rejecting the
assessment report.
1
The final stage arises when, within 90 days of being
informed of the rejection by the defendant, the third party declares
and refers
a dispute concerning the assessment of the injury to the
Registrar of the Health Professions Council who in turn refers the
disputed
assessment to the appeal tribunal as constituted in terms of
regulation 3(8)
(b)
and
(c)
.
2
[6] The relevant parts of regulation 3(1)
(a)
and
(b)
read:
‘
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:
(i) . . .
(ii) If the injury resulted in
30 per cent or more Impairment of the Whole Person as
provided in the AMA Guides, the
injury shall be assessed as serious.
3
(iii) An injury which does not
result in 30 per cent or more Impairment of the Whole
Person may only be assessed as
serious if that injury:
(aa)
resulted in a
serious long-term impairment or loss of a body function;
(bb)
constitutes
permanent serious disfigurement;
(cc)
resulted in severe
long-term mental or severe long-term behavioural disturbance or
disorder; or
(dd)
resulted in loss of
a foetus.’
As was alluded to by Mr Du Plessis, who appeared for the
plaintiff, the narrative test envisaged in regulation 3(1)
(b)
(iii)
takes into account the impact of an injury on body function (as
opposed to the impairment of a person), the impact of injury
on a
claimant’s work as well as the likelihood of further surgery,
rehabilitative treatment, future deterioration and complication,
past
experience and risks of relapse.
[7] On or about 6 June 2009, along Slovo Street,
Vosloorus, a collision occurred between the plaintiff and a motor
vehicle. The
plaintiff was a pedestrian at the material time.
[8] As a result of the collision, the plaintiff
sustained the following injuries:
(a) a compound fracture of the right femur; and
(b) a concussive brain injury.
As a result of these injuries, the plaintiff received
treatment in hospital. This treatment included surgery and the
necessary physiotherapy.
He was discharged from hospital on 7 July
2009.
[9] The plaintiff submitted a claim in terms of s 24 of
the Act to the defendant. He simultaneously submitted reports on a
RAF 4
form as contemplated by s 17(1A)
(a)
and
(b)
of
the Act read with regulations 3(1) and 3(3)
(a)
and
(b)
.
The reports were those completed by Dr C Morare (9 September 2009),
Dr J Scheltema (1 June 2011), Dr M A Scher (11 July 2011)
and Carlien
Hudson (19 July 2011).
[10] The RAF 4 form provides for the assessment of an
injury envisaged in both regulations 3(1)
(b)
(ii) and
3(1)
(b)
(iii). The latter entails an assessment of prospective
long term impairment(s) and which, over time, could vary or even be
corrected.
It clearly involves tests to establish whether the injury
has stabilised and that the MMI has been attained.
[11] On 8 February 2010, the plaintiff commenced action
against the defendant, even though the latter had not by then
responded
to the plaintiff’s claim. According to the
particulars of claim, the damages claimed were set out under the
following headings:
‘
(a) estimated past hospital and medical expenses
1 000.00;
(b) estiated future medical expenses 800 000.00;
(c) estimated past and future loss of earnings/
earning capacity/employability 2 000 000.00;
(d) general damages for pain and suffering; disability
and loss of amenities of life 1 000 000.00;’
As a result, the plaintiff claimed against the
defendant, as follows:
‘
(a) payment in the sum of 3 801 000.00;
(b) interest a tempore morae at the prevailing rate of
interest calculated from a date fourteen days after judgment to date
of payment;
(c) cost of suit.’
The defendant conceded the merits but took issue with
the quantum.
[12] In defending the action, the defendant entered a
special plea and pleaded over. The defendant specially pleaded that
the plaintiff
had not fully complied with regulation 3 and that the
issue of the alleged injury had not been finally determined in terms
of regulations
3(4) to 3(12). Regulations 3(4) to 3(12) provide for
the procedures to be followed by a third party who wishes to dispute
the rejection
of a serious injury assessment report(s). All the other
court procedures in preparation for the trial were eventually
complied
with and the matter was finally set down for trial. A full
minute of a conference held by the parties in terms of rule 37 of the
Uniform Rules of Court was filed.
[13] In a letter addressed to his attorney dated 9 March
2011, the plaintiff was formally informed that the defendant had
rejected
the assessment of the injury as set out in the RAF 4 form.
It did so on the basis that the plaintiff had not reached MMI by the
time of the submission of the RAF 4 form.
[14] On 15 March 2011, the plaintiff’s attorneys
replied to the letter of rejection and disputed the validity of the
defendant’s
rejection on the basis that its ‘right to
object’ had lapsed and that in any event the rejection ‘did
not comply
with regulation 3(3)
(d)
(i)’.
[15] On 16 March 2011, the attorneys for the defendant
wrote back to the plaintiff’s attorneys reiterating that the
plaintiff
is not entitled to seek an order for general damages in
that the plaintiff’s injuries had not been finally assessed as
serious
in terms of regulation 3. This letter suggested that the
defendant would argue either for the dismissal of the claim for
general
damages or for a postponement of this part of the claim until
such time that the process envisaged by s 17(1A) of the Act, read
with regulation 3, was completed viz – (a) a dispute had been
filed with the Registrar of the Health Professions Council
and (b)
the dispute had been determined by the appeal tribunal.
[16] On 14 July 2011, the defendant supplemented its
reasons for rejecting the plaintiff’s serious injury assessment
report
which had been completed by Dr Morare on 9 September 2009. The
defendant furthermore expanded on its reasons for the rejection by
indicating (a) that the assessment was less than the required 30 per
cent threshold, referred to in the regulations; (b) that the
assessment was completed only three months after the date of the
collision and this was insufficient time to properly assess whether
MMI had been reached and (c) that the report did not satisfy the
requirements of regulation 3(1)
(b)
(iii).
The defendant also drew the plaintiff’s attention to the
procedure set out in regulations 3(4) to 3(14).
4
[17] At the commencement of the trial on 2 August 2011,
the learned judge was informed by the parties that, in the event of
him
dismissing the special plea, he should then grant an order by
agreement between the parties. He dismissed the special plea and
granted the agreed order.
[18] In dismissing the special plea, the learned judge
found that the reasons given by the defendant in the letter of 21
July 2011,
for rejecting the plaintiff’s serious injury
assessment report(s), were unsound, irrelevant, irrational and
unsustainable
and therefore it could never be regarded as an
‘objection’ - (rejection). He accorded the same reasoning
to all the
other letters of rejection. It is clear from his approach
that he then regarded the defendant as having accepted the assessment
report(s) as correct. In particular he relied on the RAF 4 report of
Ms Carlien Hudson, a qualified occupational therapist because
it had
not been rejected by the fund. (This aspect is dealt with below).
Having done so, he entered, as it will become apparent,
the arena
reserved for the defendant and ultimately the tribunal and found that
the defendant had accepted that the injury was
serious.
[19] The high court subsequently granted leave to appeal
against paragraphs 1 and 2 of the order. It is these two aspects
which
form the subject of this appeal.
[20] Mr Du Plessis argued that the defendant’s
failure to respond to the claim within a reasonable time was
tantamount to
its acceptance of the correctness of the serious injury
assessment report(s) submitted with the initial claim and as such the
defendant
must be deemed to have agreed that the injury is serious
(as defined). This submission is misplaced in that the nature of the
inquiry
into the assessment may prove to be complex and as a result
may take time to investigate. Hence a delay in responding early. In
addition, the power to establish whether or not an injury is serious
lies ultimately with the tribunal (of experts) and not with
the
courts – agreement on whether or not the injury is serious,
cannot be assumed. If the court proceeds with the claim for
general
damages on that basis, it would be exceeding its powers.
[21] The regulations do not stipulate a time frame
within which the defendant should respond to a claim for general
damages. While
it is conceivable that delays might be prejudicial to
claimants, this does not justify a disregard for the prescribed
process.
It was open to the plaintiff to direct a written request to
the defendant for an expeditious response to the claim and in
particular
the issue of general damages.
[22] Alternatively, in light of the defendant being an
organ of state as defined in s 239 of the Constitution of the
Republic of
South Africa, 1996, it was also open to the plaintiff to
invoke the provisions of the
Promotion of Administrative Justice Act
3 of 2000
in order to compel a ‘timeous’ response.
[23] Similarly, Mr Du Plessis’ contention that
once the summons was issued, the matter was then subject to the
Uniform Rules
of Court and not to the processes which fall under the
Act (and the regulations), is unconvincing. This is so, precisely
because
the process of establishing whether a claimant is entitled to
general damages falls exclusively within the ambit of the defendant
and ultimately the appeal tribunal (subject, of course, to a court’s
power of review).
[24] Based on the approach adopted by the trial court,
Mr Du Plessis further argued that the defendant did not respond to
the assessment
report of Carlien Hudson, (an occupational therapist)
who had also completed the RAF 4 form, and consequently her report
remained
uncontested throughout the proceedings in the high court. He
contended that in such circumstances it was fair to assume that the
defendant accepted the findings in her report as correct. The
fundamental problem with this argument is that Ms Carlien Hudson
is a
professional assistant in a concern known as Anneke Greef
Occupational Therapist. The regulations require the RAF 4 assessment
report to be completed by a medical practitioner, registered as such
by the Health Professions Council of South Africa, which does
not
include occupational therapists. Carlien Hudson is therefore not a
medical practitioner and consequently the defendant need
not have
responded or reacted to that report. In the light thereof, it cannot
be relied upon to find that regulation 3 has been
complied with or to
infer that the defendant was satisfied that the injury assessment
report was properly submitted and that the
injury was correctly
assessed as serious.
[25] Mr Du Plessis further sought to persuade this court
that some agreement had been reached between the parties that the
injury
was a serious one. He relied on item 8.4 of the rule 37 minute
in support of this contention. The question and answer read as
follows:
‘
If the court should find
that MMI does not have a bearing on the narrative test, would the
Defendant admit that the rejection of
Dr Morare is incorrect?
Yes, obviously so.’
[26] It cannot, on any construction, be construed that
the defendant did or intended to agree that the injury in question
should
be regarded as serious in answering the question as it did.
All it did was to respond logically to the proposition involving a
possible finding of the court.
[27] At the time that the judgment was delivered in the
court below, the plaintiff had still not complied with the procedure
as
set out in regulation 3. The failure to do so by the plaintiff
meant that the defendant could not have been, and was not as yet,
satisfied that the plaintiff’s injury had been correctly
assessed. It was not for the high court to construe that, in the
circumstances, it could make an order for general damages absent the
prescribed assessment. The high court misdirected itself in
doing so.
Consequently, in the light of the plaintiff’s failure to
complete the process prescribed in regulation 3, the defendant’s
special plea should have been upheld.
[28] While the special plea falls to be upheld, it was
nonetheless dilatory in nature. Its success does not extinguish the
plaintiff’s
cause of action in respect of general damages but
has the effect of postponing adjudication until at least the
procedural aspects
complained of, have been complied with or
extinguished by the operation of the regulations. It is not unknown
for an offending
party to be granted leave so as to enable him or her
to comply with the prescribed procedure, even if a special plea (such
as this)
has been successful.
[29] The special plea took the form of an objection to
the plaintiff’s cause of action regarding its claim for general
damages,
in light of his failure to comply with the prescribed
regulations. The plaintiff’s right to claim general damages is
clearly
dependent on the acceptance or rejection of the RAF 4
assessment by the defendant or ultimately a determination by the
appeal tribunal.
[30] In upholding the special plea, it simply follows
that the claim for general damages is not ripe for hearing and has
the effect
of staying that part of the proceedings, pending the
determination of the dispute before another forum. This is covered by
rule
22(4) of the Uniform Rules of Court.
5
[31] At the commencement of this appeal counsel for the
defendant made an open offer in terms of which the appeal would be
postponed
in order to allow the plaintiff to still pursue his claim
for general damages by complying with the regulations – the
effect
being that the appeal would not be proceeded with and that the
plaintiff would presumably forego the advantage of a favourable high
court order. This offer was rejected.
[32] The right to claim general damages, however,
remains alive. In the circumstances, it is still open to the
plaintiff to pursue
such a claim provided that he fulfills the
prescribed procedural requirements. The order I propose to make is
the one agreed upon
by the parties.
[33] In the result, the following order is made:
1 The appeal is upheld with costs.
2 The order of the court below is set aside and replaced
with the following order:
‘
2.1 It is declared that the defendant is liable
for the plaintiff’s loss without any apportionment.
2.2 The defendant is ordered to furnish the plaintiff
with an undertaking in terms of
s 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
, to
compensate him 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 in the motor vehicle collision of 6 June
2009 after such
costs have been incurred and upon proof thereof.
2.3 The defendant is ordered to pay the costs of the
hearing on 2 August 2011.
2.4 The special plea is upheld with costs.
2.5 It is declared that the plaintiff has not yet
complied with
regulation 3.
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2.6 The plaintiff is given leave to exercise his right
in terms of
regulation 3(4)
to appeal against the Fund’s
rejection of Dr Scher’s serious injury assessment report within
90 days of the date of
this judgment.
2.7 The matter is postponed sine die for the
determination of:
2.7.1 the plaintiff’s claim for general damages;
and
2.7.2 liability for the remaining costs.’
R PILLAY
JUDGE OF APPEAL
APPEARANCES:
FOR APPELLANT: Adv. W Trengove SC with Mr Latib
Instructed by:
KHR Inc., Johannesburg
Moroka Attorneys, Bloemfontein
FOR RESPONDENT: Adv Du Plessis
Instructed by:
Raphael Kurganoff Inc., Johannesburg
Lovius Block, Bloemfontein
1
Regulation
3(3)
(c)
stipulates that the defendant (or an agent) shall be
obliged to compensate a third party for general damages if (i) the
assessment
report was properly submitted and (ii) it is satisfied
that the injury has been correctly assessed as serious in terms of
the
method provided for in the regulations.
2
Regulation
3(8)
(b)
and
(c)
reads:
‘
(a)
.
. .
(b)
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.
(c)
The Registrar may appoint an
additional independent health practitioner with expertise in any
appropriate health profession to
assist the appeal tribunal in an
advisory capacity.’
3
Regulation
3(1)
(b)
(ii) is predicated on the American Medical
Association’s Guides to the Evaluation of Permanent Impairment
6
th
Edition (AMA 6 assessment). It seeks to assess
permanent impairment only after Maximum Medical Improvement (MMI) is
determined.
4
Regulations
3(4) to 3(14) sets out primarily the procedures and time lines to be
observed in the event of a third party wishing
to dispute the
rejection of a serious injury assessment report or the fund (or
agent) disputing an assessment by a medical practitioner.
5
See
LTA Engineering Co Ltd v Seacat
Investments (Pty) Ltd
1974 (1) SA 747
(A) at 772E;
GK Breed (Bethlehem)
(Edms) Bpk v Martin Harris & Seuns (OVS) (Edms) Bpk
1984 (2) SA 66
(O) at 72A-C;
Parekh
v Shah Jehan Cinemas (Pty) Ltd and others
1980
(1) SA 301
(D) at G.