Brief Summary

Road Accident Fund — Serious injury assessment — Plaintiff sustained serious injuries in a motor vehicle accident and claimed general damages from the Road Accident Fund (RAF) — The RAF accepted liability for 100% of the plaintiff's proven damages but disputed the assessment of the plaintiff's injuries as serious — The court held that the RAF's decision regarding the seriousness of the injuries constitutes administrative action under the Promotion of Administrative Justice Act, and the court lacks jurisdiction to entertain the claim for general damages unless the RAF is satisfied that the injuries were correctly assessed as serious.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an action for damages arising from a motor vehicle accident, brought in the High Court of South Africa, Gauteng Division, Pretoria. The plaintiff, Fezile Throne Yebe, sued the defendant, the Road Accident Fund (“RAF”), for compensation under the statutory scheme regulating road accident compensation.

The matter proceeded to hearing on the basis that no oral evidence would be led. The parties agreed to proceed by way of a stated case, with the primary factual and procedural issues emerging from the pleadings, the serious injury assessment process, and the parties’ pre-trial minute.

By the time the matter was argued, merits/liability had been settled on the basis that the RAF accepted 100% liability for the plaintiff’s proven damages. In addition, the parties had resolved the quantification of loss of earnings/earning capacity, and the RAF had undertaken to furnish an undertaking for future medical expenses under section 17(4)(a) of the Road Accident Fund Act 56 of 1996. The only remaining dispute concerned the plaintiff’s claim for general damages (non-pecuniary loss), specifically whether the court had jurisdiction to adjudicate that claim in light of the serious injury assessment regime under the Road Accident Fund Regulations, 2008.

2. Material Facts

On 11 July 2013, at Alrode South at the corner of Old Vereeniging Road and Kliprivier Road, a collision occurred between a minibus taxi (in which the plaintiff was a passenger, driven by Mr Themba Mahlangu) and a Freightliner truck (driven by Ntokozo Zondi). The plaintiff sustained bodily injuries in the collision.

The plaintiff alleged in his particulars of claim that the injuries included a fractured left ankle, fractured left knee, head injuries, and facial lacerations, and that these injuries resulted in pain and suffering, emotional trauma, medical treatment needs (past and future), loss of amenities of life, and loss of earnings or earning capacity.

It was undisputed for purposes of the proceedings that the RAF accepted liability for 100% of the plaintiff’s proven damages, and that the plaintiff’s claim for loss of earnings/earning capacity had been resolved in the amount of R986,560.00. It was also part of the resolved issues that the RAF would provide a statutory undertaking in terms of section 17(4)(a) for qualifying future medical-related expenses.

The dispute that remained concerned whether the plaintiff had satisfied the statutory precondition for general damages, namely that the claim be supported by a serious injury assessment report and that the RAF be “satisfied” that the injury had been correctly assessed as serious, or that the statutory dispute-resolution mechanism had been followed where the RAF was not satisfied.

The RAF contended that it had rejected the plaintiff’s serious injury assessment, and therefore that the High Court lacked jurisdiction to entertain general damages. The plaintiff contended, in substance, that the RAF had not properly rejected the serious injury assessment report in terms of the Regulations and/or that the RAF had admitted the injuries in the pre-trial conference minute of 26 January 2018.

A further material feature was that the RAF’s counsel submitted that the plaintiff had been referred for further assessment and that the RAF’s orthopaedic assessment did not regard the injuries as meeting the serious injury threshold. However, the court recorded that it was not furnished with the letter evidencing a prior rejection, and the plaintiff’s position was that a rejection had not been received. For purposes of deciding the jurisdictional point, the court accepted that the rejection was made on the trial date, notwithstanding the RAF’s contention that it was not a first-time rejection on that day.

3. Legal Issues

The central legal questions were whether the High Court had jurisdiction to adjudicate the plaintiff’s claim for general damages under the Road Accident Fund statutory scheme, given the serious injury threshold and the RAF’s asserted rejection of the serious injury assessment report.

This required determination of issues involving the application of law to fact and jurisdictional fact analysis, namely whether the legal preconditions in the Regulations had been met such that the court could entertain general damages, or whether the dispute had to be resolved through the Regulation 3 dispute mechanism (including referral to an appeal tribunal).

A subsidiary issue was whether the RAF had, through the pre-trial minute, made a binding admission of the plaintiff’s injuries in a manner that would effectively remove or neutralise the serious injury assessment dispute for purposes of general damages jurisdiction. This raised a question of interpreting the pre-trial minute and assessing whether any admission was unequivocal or conditional/ambiguous.

4. Court’s Reasoning

The court approached the matter through the framework created by the Road Accident Fund Regulations, 2008, which define and regulate the serious injury assessment process (including the RAF4 serious injury assessment report). The court noted that regulation 3(3)(c) provides that the RAF is only obliged to compensate a third party for non-pecuniary loss if the claim is supported by a serious injury assessment report and the RAF is satisfied that the injury has been correctly assessed as serious. Regulation 3(3)(d) requires the RAF, if it is not satisfied, to reject the report with reasons or to direct a further assessment at the RAF’s cost. Regulation 3(3)(dA) requires the RAF, within 90 days of receipt of the report, to accept or reject it or direct a further assessment.

Relying on the appellate authorities it cited, the court treated the RAF as having three choices upon receipt of a serious injury assessment report: accept, reject, or direct a further assessment. It further recognised that where a dispute is declared, regulation 3(8) provides for determination by an appeal tribunal, and that regulation 3(13) provides that the tribunal’s determination is final and binding.

The court applied the principle, drawn particularly from Road Accident Fund v Duma, that the decision whether the injury is serious enough to meet the threshold for general damages is conferred on the RAF and not on the court. On that approach, unless the plaintiff establishes the jurisdictional fact that the RAF is satisfied (or that the dispute has been resolved through the prescribed mechanism), the court has no jurisdiction to entertain the claim for general damages. The court further adopted the proposition, reflected in Duma and reiterated in Mphala v Road Accident Fund, that the RAF’s decision in this context constitutes administrative action under the Promotion of Administrative Justice Act 3 of 2000 (PAJA), and that delay or dissatisfaction with the RAF’s reasons does not permit a court simply to ignore the decision; the remedy lies in PAJA review and/or the internal appeal procedure created by the Regulations.

In relation to the timing of a rejection, the court accepted that regulation 3(3)(dA) uses peremptory wording (“must”) and that it is obligatory for the RAF to comply with the 90-day period. However, the court also accepted, by reference to Mphala, that failure by the RAF to act within the 90-day period does not create a deemed acceptance of seriousness, and does not convert an otherwise non-serious injury into a serious injury by default. The court therefore treated the RAF’s failure to reject within 90 days as not entitling the plaintiff, without more, to general damages adjudication in court.

On the facts, the court accepted (for purposes of the stated case) that rejection occurred on the trial date, noting that the RAF could not produce documentary proof of an earlier rejection. The court then applied the principle from Duma that a rejection cannot be disregarded merely because it was not taken within a reasonable time or because the court might not agree with its basis. Once seriousness is placed in dispute by the RAF, the court considered itself constrained by the statutory scheme: the High Court could not decide seriousness as a merits issue for general damages, because the scheme confers that role on the RAF and the designated tribunal process.

The plaintiff’s alternative reliance on the pre-trial minute was addressed through the law on pre-trial agreements. The court accepted that a pre-trial minute is consensual in nature and may bind parties, and it referred to authority indicating that parties are generally not entitled to resile from agreements deliberately reached at a rule 37 conference, absent special circumstances. However, the court analysed the specific content of paragraph 7.1 of the pre-trial minute and held that the purported admission was conditional (admitted only to the extent confirmed by hospital records or the RAF’s expert report, and subject to further conditions concerning the filing of counter-expert reports). The court concluded that an admission in a pre-trial minute must be unequivocal and not ambiguous, and it was not persuaded that the minute constituted a clear admission that removed the dispute about seriousness. On that basis, the pre-trial minute did not establish jurisdictional facts entitling the court to adjudicate general damages.

Having found that seriousness remained in dispute and that the statutory dispute-resolution route was applicable, the court concluded that it lacked jurisdiction to determine general damages and that the appropriate course was referral to the tribunal mechanism created by regulation 3(8), with the general damages issue postponed.

5. Outcome and Relief

The court made the draft order marked “X” an order of court. In substance, this included an order that the RAF pay R986,560.00 to the plaintiff’s attorneys in settlement of the agreed loss of earnings/earning capacity component, and that the RAF furnish an undertaking in terms of section 17(4)(a) in respect of qualifying future medical-related costs after they have been incurred and proved. The order also provided for the payment of the plaintiff’s taxed or agreed party-and-party costs on the High Court scale, including specified categories of expert-related costs and counsel’s fees, together with provisions regulating taxation notice, payment time periods, and interest in the event of late payment.

In relation to the unresolved component, the court ordered that the issue of general damages be referred to the tribunal in terms of regulation 3(8) for determination, and that the general damages issue be postponed sine die.

Cases Cited

Road Accident Fund v Farria (2014) 4 All SA 168 (SCA)

Road Accident Fund v Duma 2013 (6) SA 9 (SCA)

Mphala v Road Accident Fund (698/16) [2017] ZASCA 76 (1 June 2017)

Road Accident Fund v Lebeko (802/2011) [2012] ZASCA 158 (15 November 2012)

MEC for Economic Affairs, Environment and Tourism, Eastern Cape v Kruizenga 2010 (4) SA 122 (SCA)

Filta-Matrix (Pty) Ltd v Freudenberg and Others 1998 (1) SA 606 (SCA)

Shoredits Construction (Pty) Ltd v Pienaar NO and Others (1995) 4 BLLR 32 (LAC)

Legislation Cited

Road Accident Fund Act 56 of 1996 (including section 17(4)(a))

Promotion of Administrative Justice Act 3 of 2000

Constitution of the Republic of South Africa, 1996 (including section 239)

Rules of Court Cited

Uniform Rules of Court, Rule 37

Held

The court held that where the RAF places in dispute whether the plaintiff’s injuries meet the serious injury threshold for general damages, the High Court lacks jurisdiction to determine general damages unless the jurisdictional requirements of the statutory scheme have been satisfied (including the RAF’s satisfaction or completion of the prescribed dispute mechanism).

The court held that the RAF’s failure to reject a serious injury assessment report within the 90-day period prescribed by the Regulations did not result in a deemed acceptance of seriousness, and that a rejection could not be disregarded merely because of delay.

The court held that the relevant pre-trial minute did not constitute an unequivocal admission of the plaintiff’s injuries for purposes of resolving the seriousness dispute, because the recorded admission was conditional and ambiguous.

The court therefore referred the general damages dispute to the appeal tribunal contemplated in regulation 3(8) and postponed that issue sine die, while making the settlement order on loss of earnings/earning capacity, the section 17(4)(a) undertaking, and costs an order of court.

LEGAL PRINCIPLES

The serious injury threshold for general damages under the Road Accident Fund scheme is governed by the Regulations, under which the RAF must be satisfied that an injury has been correctly assessed as serious before it is obliged to compensate for non-pecuniary loss.

The RAF’s decision to accept, reject, or require further assessment of a serious injury assessment report constitutes administrative action and is subject to the remedies and controls of PAJA, including review in appropriate circumstances and the internal tribunal dispute-resolution process created by the Regulations.

A failure by the RAF to make a decision within the prescribed time period does not create a deemed acceptance of seriousness; delay does not, by itself, confer jurisdiction on the court to determine general damages.

Pre-trial minutes are consensual in nature and can bind the parties, but an admission relied upon to narrow issues must be clear and unequivocal; a conditional or ambiguous statement in a pre-trial minute does not necessarily resolve a jurisdictional dispute concerning the serious injury threshold.

Yebe v The Road Accident Fund (3833/16) [2018] ZAGPPHC 535 (15 March 2018)