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[2021] ZAGPPHC 73
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Chairikira v Road Accident Fund Tribunal and Others (72371/2014) [2021] ZAGPPHC 73 (8 February 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 72371/2014
REPORETABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED
DATE:8/2/21
In
the matter between:
L
CHAIRIKIRA
Applicant
and
THE
ROAD ACCIDENT
FUND
TRIBUNAL
First
Respondent
THE
ROAD ACCIDENT
FUND
Second
R
espondent
THE
REGISTRAR
-OF
THE
HEALTH
PROFESSIONS
COUNSIL OF SOUTH AFRICA
Third
Respondent
JUDGMENT
D
S FOURIE, J:
[1]
The applicant seeks to review a decision of the first respondent
(“the
Tribunal”) determining whether injuries suffered by
the applicant resulting from a motor vehicle accident qualify as a
serious
injury in terms of Act 56 of 1996. The Tribunal found that
the applicant’s injuries do not qualify as serious and
therefore
she is not entitled to payment of general damages. The
application is opposed by the Tribunal as well as the third
respondent.
INTRODUCTION
[2]
The applicant was involved in a motor vehicle accident
on 26 July
2012 during which she sustained certain injuries (to which reference
will be made later). During December 2013 she lodged
a third party
claim against the second respondent and during 2014 she issued
summons for payment of damages, including a claim
for payment of
non-pecuniary loss or general damages as it is often referred to.
[3]
During June 2015 the issue of merits became settled.
During July 2016
the quantum also became settled, save for the claim for payment of
general damages which was rejected by the second
respondent.
[4]
During October 2016 the applicant disputed the second
respondent’s
rejection. She was thereafter informed by the third respondent that
her matter regarding this dispute had been
placed on the agenda for
consideration by the Tribunal on 18 March 2017. The Tribunal resolved
that “
her injuries have healed
reasonably well
and does not qualify for general body damages”.
Subsequent
to this decision the applicant decided to institute these review
proceedings.
LEGISLATIVE
FRAMEWORK
[5]
The RAF Act was amended with effect from 1 August 2008
to introduce
provisions which brought about a whole new dispensation in the
history of third party claims in this country. Of relevance
to this
application are the provisions relating to the Fund’s
obligation to compensate third parties for non-pecuniary loss
(general damages). The Fund's obligation in this regard is now
limited to a serious injury contemplated in section 17(1) and (1A)
of
the RAF Act.
[6]
Section 17(1A) provides as follows:
“
(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).
“
[7]
Section 26(1A) empowers the Minister to make regulations
regarding:
"(a)
The method
of assessment
to determine
whether , for purposes of section
17,
a
serious
injury has been incurred;
(b)
Injuries which are, for the purpose of section 17, not
regarded as
serious injuries.
(c)
The resolution of disputes arising from any matter provided
for in
this Act."
[8]
Pursuant to the above powers, the Minister promulgated
the Road
Accident Fund Regulations, 2008 which came into operation on 1 August
2008. Of relevance to this application are the provisions
of
Regulation 3. It prescribes the method of assessment for determining
serious injury. The relevant part of Regulation 3(1)(b)
reads as
follows:
“
(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% or more impairment of the Whole Person
as provided in the AMA Guides, the injury shall be assessed
as
serious.
(iii)
An injury which does not
result
in
30%
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.”
[9]
Regulation 3(3) provides,
inter alia,
that 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 and it shall be submitted to the Fund in accordance with the
Act and Regulations. It provides
further that the Fund shall only be
obliged to compensate a third party for non pecuniary loss if a
claim is supported by
a serious injury assessment report and the Fund
is satisfied that the injury has been correctly assessed as serious
in terms of
the method provided in the Regulations.
[10]
The manner in which an assessment may be disputed is set out in
Regulation 3(4). This involves a referral of the dispute to the
Tribunal. Regulation 3(11) provides for the powers of the Tribunal.
This includes a determination whether in its majority view the injury
concerned is serious in terms of the method set out in the
Regulations.
CASE
FOR THE APPLICANT
[11]
According to the applicant she sustained the following injuries:
(a)
a fracture of the medial malleolus of the right ankle;
(b)
a deep laceration wound in the right calf;
(c)
scarring and disfigurement;
(d)
post-traumatic stress disorder;
(e)
depression;
(f)
severe anxiety.
[12]
On 23 January 2014 Dr Enslin, an Independent Medical Examiner,
assessed
the applicant's injuries as required by Regulation 3(1). He
completed a Serious Injury Assessment Report and attached an addendum
thereto. According to him the injuries have not resulted in a 30%
Impairment of the Whole Person, but the applicant qualifies under
the
narrative test (Regulation 3(1)(b)(iii)). He is of the view that she
has suffered serious long-term impairment and serious
permanent
disfigurement. He also pointed out that the applicant has symptoms of
a post-traumatic stress disorder and that she should
be examined by a
Clinical Psychologist.
[13]
On 17 February 2016 Ms Francke, a Clinical Psychologist, assessed the
applicant’s psychological injuries in terms of Regulation 3(1)
of the RAF Act. She likewise completed a Serious Injury Assessment
form and furthermore compiled a detailed neuropsychological report,
in terms of which she qualified the applicant's psychological
injuries as serious.
[14]
According to Ms Francke the applicant suffers from symptoms
associated
with major depression, severe anxiety and post-traumatic
stress. She is of the view that the post-traumatic stress disorder is
a result of the accident in which the applicant was involved on 26
July 2012 and that “
the unique symptom presentation and
long-term symptomatology has its origin in the
trauma
related to this accident”.
[15]
She indicated in the Serious Injury Assessment form that according to
the narrative test these injuries resulted in “
severe
long-term mental or severe long-term behavioural disturbance or
disorder”
and she recommended (in her medico-legal report)
that the applicant “
needs urgent and adequate psychiatric
and psychological
intervention
for her
severe symptoms”.
[16]
A copy of the Serious Injury Assessment form, completed by Dr Enslin
as well as a copy of his addendum report attached thereto, were
served on the second respondent's attorneys on 25 March 2015.
Thereafter,
on 15 July 2016 the applicant's attorneys also served a
copy of the Serious Injury Assessment form completed by Ms Francke
together
with a copy of her medico-legal report. The respondent
rejected both assessments in terms of Regulation 3(3)(d)(i) in a
letter
dated 26 July 2016. No reasons were given why the assessment
by Ms Francke and her neuropsychological report were rejected.
[17]
On 19 October 2016 the applicant’s attorneys disputed the
rejection
of the Serious Injury Assessment reports in terms of
Regulation 3(4) of the Act. The applicant was then informed by the
third
respondent that the matter had been placed on the agenda for
consideration by the first respondent on 18 March 2017. On that date
the first respondent resolved that the applicant does not qualify for
general bodily damages. This decision was communicated by
the third
respondent to the applicant on 18 May 2017 and it reads as follows:
“
i.
Injuries: The claimant sustained
a
right ankle medial
malleolus
fracture and left tibia/fibula comminuted
fractures.
ii.
Right ankle fracture was treated conservatively and left tibia
fibula fracture was fixed with intramedullary nail.
iii.
Outcome:
Both of these fractures have healed
very well without any complications. Right ankle has not
developed
any osteoarthritis four years down the
prap.
iv.
Finding:
Panel considers that her
m1unes
have
healed reasonably well and does not
qualify
for
general
bodily damages.”
[18]
The applicant relies on the provisions of section 6(2) of the
Promotion
of Administrative Justice Act, No 3 of 2000 (“PAJA”).
In this regard it is contended that the Tribunal failed to take
into
account the Serious Injury Assessment form completed by Ms Francke as
well as her neuropsychological report which was attached
thereto. It
is further submitted that the first respondent did not furnish
adequate reasons for their decision to reject the claim
for payment
of general damages, more particularly in respect of the psychological
injuries suffered by the applicant.
[19]
This motivated the applicant's attorney to request further reasons as
well as the record of proceedings from the third respondent in
order to ascertain if Ms Francke's assessment and report was
considered at all. According to the applicant her attorney’s
“
did not have the courtesy
of a response
from the third respondent to date”.
It is therefore
also contended that the administrative action taken by the first
respondent was not procedurally fair as the applicant’s
case
was not considered fully and the action was therefore procedurally
unfair. It is specifically pointed out that the first respondent
failed to act reasonably due to the fact that they failed to consider
all the information submitted by the applicant’s attorneys
when
determining the seriousness of her injury.
CASE
FOR
THE FIRST
AND THIRD
RESPONDENTS
[20]
In their answering affidavit, dated 2 February 2018, the first and
third
respondents raised two points
in limine:
the
one is of non-joinder, stating that “
the first and third
respondents are not parties to the main action”.
The main
action refers to the action that was instituted by the applicant (as
plaintiff) against the second respondent (as defendant)
for payment
of damages. The other is that the reports upon which the applicant
relies “
are mere documents and not supported by evidence
...
(as) there are no confirmatory affidavits from the authors of the
reports”.
[21]
The first and third respondents also addressed the merits of this
application.
In paragraph 62 of the answering affidavit a general
explanation is given regarding the process which is followed by the
Tribunal
when considering appeals. It reads as follows:
“
The
analysis also includes a perusal of the prescribed
forms,
namely the RAF1, RAF4 and RAF5. The most significant of the three is
the RAF4. The Tribunal would also analyse
photographs,
actuarial
reports
(if available) and all
other reports from other health care professionals (e.g. occupational
who have performed a physical examination
of the third party) in
order to supplement the primary medical diagnosis and highlighted
the impact
of the injury
on the
third
party's daily activities.”
[22]
In paragraph 75 a further explanation is given regarding the
evaluation
process. It reads as follows:
“
The
Tribunal discusses each case and evaluates all clinical reports and
other related reports contained in each appeal. Included in
the discussions are matters relating to key findings and any
inconsistencies
between the clinical reports provided . The Tribunal
evaluates the data provided on the RAF 4 form and correlates it with
objective
clinical studies and reports provided by the various
specialists who examined the third party.”
[23]
With regard to the applicant’s appeal that was put before the
Tribunal,
the following explanation is given (par 80):
“
Prior
to the meeting as above, I together with other members of the
Tribunal were provided with
a
pack of documents, containing
among others, the applicant’s appeal application and its
supporting medical reports. The applicant’s
appeal application
included all the documents referred to in annexure ‘H’ of
the founding affidavit.”
[24]
Annexure “H” is a letter by the applicant’s
attorney
dated 15 October 2016 which was addressed to the third
respondent. The documents referred to include, among others, the RAF
4 form
(serious injury assessment report) completed by Dr Enslin
together with his addendum report, a report by Dr Liebenberg as well
as the RAF 4 form completed by Ms Francke together with a copy of her
neuropsychological report. It is then explained by the Tribunal
that
“
e all independently considered the content of the
application and analysed all the reports”.
[25]
It is denied by the Tribunal that the conclusions reached by Dr
Liebenberg,
Ms Francke and Dr Enslin “
regarding
the
applicant
qualifying
in terms of
the narrative test are correct conclusions”.
It is then
also alleged (in par 98.3) that the applicant in any event
"did
not refer the psychological injuries to the first respondent
according to annexure ‘H”’.
In addition thereto
it is further explained that:
“
The
irregularity of Ms Eidde Francke completing the serious in1ury
assessment did not influence our decision as the Tribunal. In
law,
there was no need to note a formal objection relating thereto.
We,
as
the Tribunal considered all
the relevant
factors
to
be
taken
into
account when making the
decision
...
the referral
of the dispute
was never about the psychological injuries that the applicant now
attempts
to
make
it
about. We, as the Tribunal
did not need to obtain
experts
in other
areas of expertise.”
(Paragraphs
102.2, 102.3 and 103.3.)
[26]
In response to an allegation by the applicant that the Tribunal
failed
to take a decision in respect of the alleged psychological
injuries as well as the serious injury assessment report completed by
Me Francke, the following answer is given (paragraph 106.2):
“
I
deny that a decision in law was required
to be taken in
respect of the
psychological injuries as well as the
serious injury assessment by Ms Eddie Francke”.
[27]
According to the answering affidavit the members of the Tribunal have
the necessary expertise to have made conclusions relating to whether
or not the applicant qualified for general damages under the
narrative test, that the Tribunal applied its mind and considered all
the relevant factors that ought to have been considered and
that
there “
is a rational connection between the decision we made
and the documents that were before us”.
It is then
contended that the applicant has failed to make out a proper case.
THE
RECORD OF PROCEEDINGS
[28]
According to the record of proceedings it appears that various
documents
had been made available for consideration by the Tribunal.
These documents include, among others, the following:
(a)
a letter by the applicant's attorneys dated 15 October 2016 (annexure
“H” referred to above) referring to certain annexures
attached thereto;
(b) the
RAF 4 form completed by Dr Enslin and his addendum report attached
thereto;
(c) a
medico-legal report by Dr Liebenberg (orthopaedic surgeon);
(d)
a medico-legal report by Dr Theron (orthopaedic surgeon);
(e)
a medical-legal report by Dr Gordon (plastic and reconstructive
surgeon);
(f) reports
by radiologists;
(g)
the RAF 4 form completed by Ms Francke together with her
neuropsychological
report attached thereto.
DISCUSSION
[29]
The main thrust of the argument presented on behalf of the applicant
is that the Tribunal failed to take into account the serious injury
assessment form completed by Ms Francke and her neuropsychological
report attached thereto. Therefore, so it was contended, the decision
taken by the Tribunal should be reviewed and set aside as
relevant
considerations were not considered and the action itself is not
rationally connected to the reasons given for it by the
Tribunal.
[30]
Counsel for the respondents wisely decided not to persist with the
points
in limine
for reasons which are quite obvious. In terms
of the provisions of section 17 of the Road Accident Fund Act it is
the second respondent
who is obliged to compensate a third party and
not the first and third respondents. It was therefore not necessary
to have joined
them as they had no interest in that litigation.
[31]
Second, the serious injury assessment reports as well as the
documents
attached thereto comprise the records of proceedings. These
are the documents which served before the Tribunal and which were
apparently
considered by the Tribunal without them having been
confirmed under oath. The same documents have now been put before
this Court
for consideration. Section 6(1) of PAJA provides that any
person may institute proceedings in a Court for the judicial review
of
an administrative action, i.e. the decision that was taken by the
first respondent. It is not the duty of the applicant to prepare
the
record of proceedings, neither was it necessary for purposes of this
application to ensure that the serious injury assessment
reports and
other reports attached thereto, are confirmed under oath. Put
differently, it is the manner in which the decision of
the Tribunal
was taken which should now be considered and not the correctness of
the reports. In the result I conclude that there
is no merit in the
points
in limine.
[32]
Returning to the merits, counsel for the Tribunal pointed out that a
Court, in review proceedings, cannot interfere with a decision simply
because it disagrees with it, as long as the purpose sought
to be
achieved by the exercise of public power was within the authority of
the functionary and is, viewed objectively, rational
(Pharmaceutical
Manufacturers
Association
of South Africa and
Another:
In
re:
Ex
parte
President
of
the
Republic
of
South
Africa
and Others
2000 (2) SA 647
(CC) at par
85). It was further submitted that the Tribunal, in performing its
functions, had considered all of the reports which
served before it,
including all of the documents referred to in annexure "H"
to the founding affidavit.
[33]
The first question to be considered is whether or not the serious
injury
assessment form (“RAF 4 form”) which was completed
by Ms Francke, a clinical psychologist, together with her
neuropsychological
report, were indeed part of the documents that
served before the Tribunal. According to the record of proceedings
these documents,
together with all the other reports referred to
above (par 28) were indeed part of the appeal record that served
before the Tribunal.
This also appears from annexure “H”,
to which these documents were attached, and which is included in the
record of
proceedings. This is further confirmed in the answering
affidavit where it is stated that the applicant's appeal application
“
included all the documents referred to in annexure ‘H’
of the founding affidavit.”
[34]
The allegation by the Tribunal that the applicant “
did not
refer the psychological injuries to the first respondent”
(the
Tribunal) and “
the referral of the
dispute
was
never
about
the
psychological
injuries
that
the
applicant
now attempts to
make”
is not correct. First, the serious injury assessment
report completed by Dr Enslin (with annexures thereto) as well as the
serious
injury assessment report completed by Ms Francke (and the
annexures thereto) were both served on the second respondent's
attorneys
of record on 25 March 2015 and 15 July 2016 respectively
(annexure “E” and “F” to the founding
affidavit).
Thereafter, on 26 July 2016 the second respondent’s
attorneys of record notified the applicant, with reference to the
reports
completed by Dr Enslin and Ms Francke, that her injuries had
not been correctly assessed and that the claim for payment of general
damages is therefore rejected in terms of Regulation 3(3)(d)(i).
[35]
Second, it is clearly stated in annexure “H”
dated 15
October 2016 which was addressed to the third respondent for purposes
of the appeal, that the applicant “
wishes to dispute the
Road Accident Fund's rejection of the serious injury assessment
report done by Dr Enslin and Dr Eidde Francke”.
Furthermore,
a copy of the serious injury assessment report completed by Ms
Francke, together with her medico-legal report, were
attached to this
letter.
[36]
Third, the applicant also filed a Notification of Dispute (RAF 5)
which
is part of the record of proceedings. In the annexure thereto
(paragraphs 9,10 and 11 thereof) reference is again made to the RAF
4
form completed by Ms Francke, her medico-legal report attached
thereto as well as the alleged psychological injuries suffered
by the
applicant. No doubt, it was made perfectly clear to all three
respondents that at all times the applicant also relied on
the
serious injury assessment form completed by Ms Francke as well as her
medico legal report attached thereto, for purposes
of the
appeal.
[37]
The next question to be considered is whether or not the Tribunal had
taken into account the contents of the serious injury assessment form
completed by Ms Francke as well as her neuropsychological
report
which was attached thereto? According to the answering affidavit it
is explained that “
we all independently considered the
content of the application and analysed all the reports”.
It
is also pointed out that it was not necessary to have obtained
experts in other areas of expertise. The deponent on behalf of
the
Tribunal then states (par 93.1) that “
I
further deny
that the conclusions reached by Dr Liebenberg ,
Ms
Eidde
Francke and Dr Enslin regarding the applicant qualifying in terms of
the narrative test are correct conclusions”.
[38]
At first glance it appears that there is
prima facie
evidence
indicating that the serious injury assessment form completed by Ms
Francke, together with her neuropsychological report
attached
thereto, were apparently considered by the Tribunal as part of “
all
the reports”.
It was further concluded, according to the
explanation given, that the conclusions reached by Ms Francke are not
correct and they
were thereafter supposedly rejected. If the
Tribunal was of the view that Ms Francke’s conclusions are not
correct
and should be rejected, what are the reasons for having taken
such a decision?
[39]
No reasons for the rejection are provided in the answering affidavit
or in the record of proceedings. The view that Ms Francke’s
conclusions are incorrect is a bald statement without any
explanation.
The Tribunal’s decision in this regard, as more
fully set out in annexure “A” to the founding affidavit,
only
relates to the orthopaedic injuries suffered by the applicant.
There is no reference whatsoever to her alleged psychological
injuries
or to the documents submitted by Ms Francke.
[40]
According to the Tribunal’s decision and reasons therefore
(annexure
“A”” to the founding affidavit) it
appears as if they were totally unaware of these alleged injuries, or
if they
were aware of it, that they failed to take it into account.
Furthermore, the fact that the Tribunal is of the mistaken view that
“
the referral of
the dispute was never about
the psychological injuries that the applicant now attempts to make”
creates the impression that they had never seen the RAF 4 form
completed by Ms Francke (and her medico-legal report attached
thereto), or that they never took the time to read these documents.
[41]
Was it necessary to have taken into account the alleged psychological
injuries as described by Ms Francke? According to the serious injury
assessment form completed by Ms Francke and her neuropsychological
report attached thereto, she qualified the applicant’s
psychological injuries as serious. In her opinion the applicant
suffers
from symptoms associated with major depression, severe
anxiety and post-traumatic stress, all as a result of the accident in
which
the applicant was involved on 26 July 2012. She then concluded
that according to the “
narrative test”,
these
injuries resulted in “
severe Jong-term mental or severe
long-term behavioural disturbance or disorder”
and that the
applicant “
needs urgent and adequate psychiatric and
psychological intervention for her severe symptoms”.
[42]
In
Mnqomezulu, Zamokwakhe Comfort v Road Accident Fund
(04643/2010 [2011] ZAGP JHC (8 September 2011)
Kgomo J said the
following with regard to this narrative test (par33):
“
The
narrative test
calls
for an
enquiry into various components of the persona including the
physical, bodily, mental, psychological and even aesthetic features
of an injured Plaintiff. It
is
inappropriate for
a
singe
medical expert to express himself or herself with any authority on
the point of
a
finding in
terms of the narrative test on all such facets of diminished
capacity. On the contrary, it
is
appropriate and desirable if not proper that a RAF4 form be
produced with regard to every particular and applicable medical
discipline
that is called for by Regulation 3(1)(b)(iii) in respect
of each claimant individually detailing his specific and individual
injuries
and/or complaints.”
[43]
I fully associate myself with this
dictum.
It would be
nonsensical and irrational to exclude other expert reports in other
fields of discipline (e.g. that of a Psychiatrist,
Occupational
Therapist, Clinical Psychologist, Educational Psychologist, etc),
under circumstances where a RAF 4 form, duly completed
by a medical
practitioner and filed in terms of the Regulations, are also
presented for consideration where necessary.
[44]
This approach is clearly contemplated by the formulation of the
narrative
test (Regulation 3(1)(b)(iii)), also read with, for
instance, Regulation 3(2)(b) where reference is made, not only
to a “
medical practitioner “,
but also to a
“
health care provider”
for purposes of collecting
and collating information to facilitate an assessment. Another
example is Regulation 3(8)(c) which provides
that the Registrar
(third respondent) may appoint an additional independent “
health
practitioner”
with expertise in any “
health
profession”
to assist the appeal tribunal in an advisory
capacity. The reason for this approach is quite simple and fairly
obvious: I think
it can safely be assumed that not all medical
practitioners in this country are also registered, for instance, as
Educational or
Clinical Psychologists. Therefore, other reports by
other experts practicing in other fields of discipline may also be
relevant
and necessary, if required, for purposes of an assessment in
terms of the narrative test.
[45]
In the present matter a RAF 4 form was completed by a medical
practitioner,
Dr Enslin (Regulation 3(1)(b)) who recommended that the
applicant should also be examined by a Clinical Psychologist for
purposes
of the narrative test. This was done and further reports
compiled by Ms Francke were also filed.
[46]
The conclusion reached by Ms Francke clearly falls within the ambit
of
Regulation 3(1)(b)(iii)(cc) or the narrative test as it is also
referred to. The opinion and conclusion of Ms Francke appear
to
be, at least
prima facie
and without deciding whether she is
correct or not, to be important and therefore relevant for purposes
of deciding whether or not
the applicant qualifies under the
narrative test for the payment of general damages, more particularly
in respect of the alleged
psychological injuries suffered by her. It
was therefore necessary, in my view, for the Tribunal to also have
considered the applicant's
alleged psychological injuries as
stipulated in the serious injury assessment form completed by Ms
Francke and further motivated
in her psychological report.
[47]
Finally, after having considered all the evidence, can it really be
said
that the serious injury assessment form completed by Ms Francke,
together with her neuropsychological report attached thereto, were
in
fact taken into account by the Tribunal? According to the evidence
presented by the deponent on behalf of Tribunal, this question
should, in my view, be answered in the negative.
[48]
In summary, the reasons for this conclusion are the
following: First,
there is no reference whatsoever to the alleged psychological
injuries suffered by the applicant in the Tribunal's
reasons for
their decision (annexure “A” to the founding affidavit).
Second, the suggestion that these injuries were
taken into account is
a vague bald statement without any factual support. There is no
indication in the record of proceedings or
elsewhere (save for the
bald statement itself) that it was indeed considered. Third, the
Tribunal’s denial now, long after
the decision was taken , that
the conclusions reached by Ms Francke are correct, is also a vague
bare denial, again without any
reasons given. Fourth, it is clear
that the Tribunal laboured under the incorrect impression that the
applicant “
did not refer the psychological injuries to the
first respondent”
(the Tribunal) and “
referral of
the dispute was never about
the
psychological
injuries”.
This mistaken view, twice
expressed, unfortunately creates the impression that the Tribunal was
totally unaware of those injuries
or that they never took the time to
consider the documents completed and filed by Ms Francke. This
impression is further strengthened
by the unsubstantiated and belated
denial that “a
decision in law was required”
with
regard to the psychological injuries as well as the assessment done
by Ms Francke.
[49]
In short, the objective facts and lack of reasons do not support the
vague, bald,
sketchy and to some extend contradictory explanations
now given in the answering affidavit regarding Ms Francke’s
assessment.
This manner of dealing with a relevant and important
issue is unacceptable. In my view, and for these reasons, this
ex
post facto
(afterwards) suggestion, given approximately 8 months
after the decision was taken, that the alleged psychological injuries
as explained
by Ms Francke were indeed properly considered, without
any written record thereof, can therefore, on the Tribunal's own
version,
safely be rejected as an incorrect or mistaken recollection
and conclusion about this issue (without suggesting any
untruthfulness
or dishonesty).
[50]
In conclusion, I am of the view that the applicant has made out a
proper
case for the review and setting aside of the first
respondent’s decision in terms of the provisions of section
6(2)(e)(iii)
of PAJA, as relevant considerations, such as the serious
injury assessment report by Ms Francke and her neuropsychological
report,
were not considered by the Tribunal.
[51]
Should the matter be referred back to the same Appeal Tribunal
consisting
of the same members? Taking into account the possibility
that these members might already have compromised themselves (without
deciding so) it is, in my view, preferable that the third respondent
should appoint a new Appeal Tribunal consisting of other members.
ORDER
In
the result I make the following order:
1. The
finding and decision of the first respondent (Tribunal) dated
18
March 2017, to the effect that the applicant's “
injuries
have healed reasonably well and does not qualify for general body
damages”
in terms of
section 17(1)(A)
of the
Road Accident
Fund Act No 56 of 1996
, are both reviewed and set aside;
of
section 17(1)(A) of the Road Accident Fund Act No 56 of 1996,
are
both reviewed and set aside;
2. The
third respondent is directed to appoint a new Appeal Tribunal to
consider
and decide whether or not a serious injury, as contemplated
by
section 17(1)(A)
of the
Road Accident Fund Act, read
with the
Regulations promulgated in terms thereof, has been suffered by the
applicant, taking into account at least all the documents
referred to
in the letter by the applicant’s attorney dated 15 October 2016
(annexure “H” to the founding affidavit),
as well as
those documents completed by Ms Francke (RAF 4 form and
neuropsychological report);
3. The
decision of the Appeal Tribunal referred to in paragraph 2 above
must
be taken by the Tribunal and conveyed by the third respondent to the
applicant’s attorneys of record, within 45 days
from date of
service of this order;
4.
The first and third respondents (not in their personal capacities)
are
ordered to pay the costs of this application, jointly and
severally.
D
S FOURIE
JUDGE
OF THE HIGH COURT
PRETORIA