About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2017
>>
[2017] ZASCA 188
|
|
Road Accident Appeal Tribunal and Others v Gouws and Another (56/2017) [2017] ZASCA 188; [2018] 1 All SA 701 (SCA); 2018 (3) SA 413 (SCA) (13 December 2017)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 56/2017
Reportable
In
the matter between:
THE
ROAD ACCIDENT APPEAL
TRIBUNAL
FIRST
APPELLANT
THE
HEALTH PROFESSIONS COUNCIL OF
SOUTH
AFRICA
SECOND
APPELLANT
PROF
G J VLOK
NO
THIRD
APPELLANT
DR
C F KIECK
NO
FOURTH
APPELLANT
DR
C LIEBETRAU
NO
FIFTH
APPELLANT
DR
R K MARKS
NO
SIXTH
APPELLANT
and
LARTZ
GOUWS
FIRST
RESPONDENT
ROAD
ACCIDENT
FUND
SECOND
RESPONDENT
Neutral
citation:
RAF
& others v Gouws & another
(056/2017)
[2017] ZASCA 188
(13 December 2017)
Coram:
Navsa,
Saldulker & Mocumie JJA and Tsoka & Makgoka AJJA
Heard:
14
November 2017
Delivered:
13
December 2017
Summary:
Interpretation
and application of
Road Accident Fund Act 56 of 1996
and Regulations
thereunder – primary purpose of Appeal Tribunal is to determine
a dispute concerning seriousness of injury
– Appeal Tribunal
does not have final say on question of link between the driving of a
motor vehicle and the injuries allegedly
sustained – causation
to be determined by court.
ORDER
On
appeal from:
Gauteng
Division of the High Court, Pretoria (Tuchten J
sitting
as court of first instance):
The
appeal is dismissed with costs including the costs of two counsel.
JUDGMENT
Navsa
ADP (Saldulker & Mocumie JJA and Tsoka & Makgoka AJJA
concurring.)
[1]
This appeal, with leave of the court below (Tuchten J), concerns the
ambit of the powers of the first appellant, the Road Accident
Appeal
Tribunal (the Tribunal). The question for determination is whether it
is within the Tribunal’s statutory remit to
finally determine
the nexus between the injuries allegedly sustained, on which a claim
for compensation is premised, and the driving
of a motor vehicle. The
appellants, which include The Road Accident Appeal Tribunal, The
Health Professions Council of South Africa
[1]
(HPCSA) and the four members who, at its instance, served on the
Tribunal, contend that it is indeed within the Tribunal’s
statutory power to make such a determination. The first respondent,
Mr Lartz Gouws, who is a claimant for purposes of s 17 of the
Road
Accident Fund Act 56 of 1996 (the Act), contends otherwise. The court
below, the Gauteng Division of the High Court, Pretoria
found in
favour of Mr Gouws. It is that decision against which the present
appeal is directed. The appeal turns on the interpretation
and
application of the relevant statutory provisions. The background is
set out hereafter.
[2]
Mr Gouws allegedly sustained injuries as a result of being struck by
a motor vehicle whilst walking in a parking area and being
flung over
two vehicles in the vicinity. The collision was said to have occurred
on 24 July 2010. On 16 August 2012 Mr Gouws lodged
a claim for
compensation with The Road Accident Fund (the Fund), a statutory
insurer, under s 17 of the Act. At this juncture,
it is convenient to
consider the circumstances under which the Fund, established under s
2 of the Act, is liable to compensate
a claimant.
[3]
In terms of s 17(1), the Fund, inter alia, is ‘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 . . .
caused by or arising from the driving of a motor vehicle
by
any person at any place within the Republic, if the injury . . . 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’.
(My
emphasis.) The proviso in s 17(1), following immediately on the
aforesaid quoted part, reads as follows:
‘
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.’ (My emphasis.)
Section
17(1A) reads 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
1074).’
(My emphasis.)
[4]
Consonant with s 17(1A), s 26 of the Act enables the Minister to
‘make regulations regarding any matter that may be prescribed
in terms of [the] Act, or which it is necessary or expedient to
prescribe in order to achieve or promote the object of [the] Act’.
The object of the Fund, set out in s 3 of the Act, is ‘the
payment of compensation in accordance with [the] Act for loss
or
damage wrongfully caused by the driving of motor vehicles’.
Sections 26(1) and 26(1A) provide:
‘
(1) The Minister may make
regulations regarding any matter that shall or may be prescribed in
terms of this Act or which it is necessary
or expedient to prescribe
in order to achieve or promote the object of this Act.
(1A) Without derogating from the
generality of subsection (1), the Minister may 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
purposes of section 17, not regarded as serious injuries;
(c)
the resolution of disputes
arising from any matter provided for in this Act.’ (My
emphasis.)
[5]
The prescribed method referred to in ss 17(1A), 26(1) and 26(1A) is
to be found in the Regulations promulgated under the Act
(the
Regulations).
[2]
Regulation
3(1)
(b)
dictates how an assessment of an injury in terms of s 17(1A)
(a)
of the Act is to be conducted by the medical practitioner concerned.
It provides as follows:
‘
(b)
The
medical practitioners
shall
assess whether the third party’s injury is serious
in accordance with the following method:
i)
The Minister may publish in the
Gazette, after consultation with the Minister of Health, a list of
injuries which are for purposes
of Section 17 of the Act not to be
regarded as serious injuries and no injury shall be assessed as
serious if that injury meets
the description of an injury which
appears on the list.
ii)
If the injury resulted in 30 %
or more impairment of the whole person as provided in the AMA
Guides,
[3]
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 serious long term impairment or loss of 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.’ (My emphasis.)
I
pause to note that both s 17(1) of the Act and Regulation 3(1)
(b)
,
in terms, limit the assessment by the medical practitioner to one
concerning the seriousness of the injury.
[6]
Prior to the submission of his claim, Mr Gouws’ injuries were
assessed by Dr M de Graad, an orthopaedic surgeon, who,
on his
behalf, completed the prescribed RAF4 form. At this stage it is
necessary to have regard to the relevant part of Dr de Graad’s
report submitted to the Fund in which she stated the following in
relation to his injuries:
‘
5. SERIOUS INJURY: THE
NARRATIVE TEST
5.1 Serious long term impairment or
loss of body function.
Shoulder replacement on the left
Artrodesis of the right thumb. Both upper limbs involved that is
restricting him from doing his
normal work.’
The
description set out above is one, ostensibly, within the ambit of
Regulation 3
(b)
(iii)
(aa)
.
[7]
On 18 October 2012 Mr Gouws’ claim for compensation in relation
to general damages was rejected by the Fund. The material
part of the
letter written to him on behalf of the Fund informing him of that
fact reads as follows:
‘
Be informed that the Fund
rejects your client’s claim for general damages on the basis
that:
Dr M de Graad assessed your client in
accordance with the prescribed assessment method and concluded that
the injury is not serious,
as evidenced by the Serious Injury
Assessment Report (RAF 4), we await your medico legal reports and
photographs of injuries.’
As
is clear from what is set out earlier, Dr de Graad, contrary to what
is set out in the aforesaid letter, did assess Mr Gouws’
injuries as being serious. Counsel on behalf of the Tribunal rightly
did not seek to justify the stated basis for the decision
rejecting
Mr Gouws’ claim. Simply put, the basis for the Fund’s
decision was fallacious. Mr Gouws understandably was
aggrieved by the
fund’s rejection of his claim on the basis set out above.
[8]
I interpose to state that in terms of Regulation 3(3)
(d)
the
Fund, if not satisfied that the injury has been correctly assessed:
‘
[M]ust:
(i) reject the serious injury
assessment report and furnish the third party with reasons for the
rejection; or
(ii) direct that the third party
submit himself or herself, at the cost of the Fund or an agent, to a
further assessment to ascertain
whether the injury is serious, in
terms of the method set out in these Regulations, by a medical
practitioner or an agent.’
Those
are the options open to the Fund. In the event of a further
assessment, Regulation 3(3)
(e)
provides as follows:
‘
The Fund or an agent must
either accept the further assessment or dispute the further
assessment in the manner provided in these
Regulations.’
There
was no further assessment but there was a rejection of the report. A
dispute arose. In the event of a dispute both the claimant
and the
Fund have a right to refer a dispute to an appeal tribunal. In
relation to these options and the dispute resolution provided
for by
way of an appeal process, see the decision of this court in
RAF
v Faria
2014 (6) SA 19
(SCA), paras 30-32.
[9]
The Regulations, in some detail, provide for an appeal process. This
is foreshadowed by s 26(1A)
(c)
of the Act, set out in para 4
above. Regulation 3(4) provides as follows:
‘
If a third party wishes to
dispute the rejection of the serious injury assessment report, or in
the event of either the third party
or the fund or the agent
disputing the assessment performed by a medical practitioner in terms
of the regulations, the disputant
shall:
a)
within 90 days of being
informed of the rejection or the assessment, notify the Registrar
that the rejection or the assessment is
disputed by lodging a dispute
resolution form with the Registrar;
b)
in such notification set
out the grounds upon which the rejection or the assessment is
disputed and include such submissions; medical
reports and opinions
as the disputant wishes to rely on; and
c)
if the disputant is the
Fund or agent, provide all available contact details pertaining to
the third party.’
[10]
The procedure set out in the preceding paragraph and further
procedures for the finalisation of an appeal process provided
for in
Regulation 3 were followed by Mr Gouws. On 22 February 2013, after an
exchange of correspondence with the Registrar of the
HPCSA
[4]
in relation to a prospective consideration by an appeal tribunal of
the dispute referred to it by Mr Gouws, his attorneys submitted
a
further ‘medico-legal’ report by Dr de Graad dated 19
February 2013, past hospital records, a radiological report,
consultation notes of a neurosurgeon, a letter from Dr Jonker, an
orthopaedic surgeon, clinical evaluation notes by Dr Julyan,
another
orthopaedic surgeon, theatre notes by Dr Julyan and further
consultation notes by a radiologist. The documents submitted
were all
directed at showing that the injuries sustained were serious within
the meaning of that expression provided for in Regulation
3(1)
(b)
.
The tests set out in Regulation 3(1)
(b)
(iii)
are popularly referred to as the narrative test.
[11]
On 21 July 2014, Mr Gouws was informed that the third, fourth, fifth
and sixth appellants had been appointed to determine the
appeal.
On
26 August 2014, Mr Gouws was informed of the outcome of his appeal.
The letter informing him of this, by the HPCSA, on behalf
of the
Tribunal, bears repeating in its entirety:
‘
We refer to
the above matter and hereby inform you that Road Accident Fund Appeal
Tribunal resolved at its recent meeting held on
01 August 2014 as
follows –
i.
He is
currently 50 years old of age. On 24 July 2010 he was in an accident
where he sustained soft tissue injury to his left forearm,
tenderness
in his chest.
ii.
There
is no indication that he had acute injury to his left shoulder or his
right thumb as well as the carpal tunnels.
iii.
The
committee took notice that he had various surgery procedures which
include a bicep tendon repair. Posterior bank card repair
and later
on an athetosis of first metal Carpal Phalangeal Joint of the right
thumb.
iv.
He
also had a posterior bank card repair as well as a coronary bypass.
v.
With
all the information available the committee cannot find a link
between his left shoulder and his right thumb as well as the
carpal
tunnels.
vi.
The
committee must take notice that he was a karate instructor and with
the information available the committee cannot bring the
accident to
his present condition as well as his surgeries he had.
vii.
With
all the information available the committees is of the opinion that
his injuries are not serious under the Narrative test.
We trust you find
the above in order.’
[12]
The powers of the Tribunal set out in Regulation 3(11) are clearly
directed at a determination of whether the injuries sustained
are
serious within the narrative test. For example, Regulations 3(11)
(a)
and
(b)
which are part of the overall powers of the
Tribunal, provide:
‘
(11) The
appeal tribunal shall have the following powers:
(a)
Direct
that the third party submit himself or herself, at the cost of the
Fund or an agent, to a further assessment to ascertain
whether the
injury is serious, in terms of the method set out in these
Regulations, by a medical practitioner designated by the
appeal
tribunal.
(b)
Direct,
on no less than five days written notice, that the third party
present himself or herself in person to the appeal tribunal
at a
place and time indicated in the said notice and examine the third
party’s injury and assess whether the injury is serious
in
terms of the method set out in these Regulations.’
In
term of regulation 3(11)
(g)
an appeal tribunal has the power
to:
‘
(g)
Determine
whether in its majority view the injury concerned is serious in terms
of the method set out in these Regulations.’
In
terms of regulations 3(11)
(h)
and
(i)
the Tribunal has
the power to:
‘
(h)
Confirm
the assessment of the medical practitioner or substitute its own
assessment for the disputed assessment performed by the
medical
practitioner, if the majority of the members of the appeal tribunal
consider it appropriate to substitute.
(i)
Confirm the
rejection of the serious injury assessment report by the Fund or an
agent or accept the report, if the majority of the
members of the
appeal tribunal consider it is appropriate to accept the serious
injury assessment report.’
[13]
As is apparent, the Tribunal took the view that Mr Gouws’
injuries were not causally connected to the collision referred
to
above. At this stage it is necessary to record that in terms of
Regulation 3(13) the findings of a Tribunal ‘shall be
final and
binding’. I consider it necessary at this stage to repeat what
is set out in para 11 above, namely, that in terms
of ss 3(11)
(a)
and
(b)
,
what is in contestation before an appeal tribunal is the correctness
of the medical practitioner’s assessment of the seriousness
of
the injuries allegedly sustained and consequently the correctness or
otherwise of the Fund’s rejection of the report.
[14]
Subsequent to the decision of the Tribunal being communicated to Mr
Gouws, his attorneys submitted further extensive documentation
to the
Tribunal in support of his contention that the injuries he sustained
were directly attributable to the collision described
above. The
Tribunal did not have regard to the further information supplied as
it had already made its decision. For present purposes
it is not
necessary to deal with the dispute concerning the nature and
consequences of the clinical observations made by medical
personnel
who attended to Mr Gouws soon after the collision and why invasive
shoulder surgery was only performed a few days later.
We are also not
required to deal with the persuasiveness or otherwise of all the
documentation in favour of, or against the view
that the injuries
were not sustained as a result of or connected to the collision.
Furthermore, in deciding this case the relevance
of Mr Gouws being a
karate instructor need not be determined.
[15]
For completeness I record that in her medico-legal report, Dr de
Graad said the following concerning the carpal tunnel syndrome
that
Mr Gouws complained of:
‘
Mild
carpal tunnel syndrome:
The carpal tunnel syndrome is not
necessarily related to the injuries. It is uncommon for men to
develop carpal tunnel syndrome.
One must thus give the patient the
benefit of the doubt and conclude that there is a nexus between a
carpal tunnel syndrome and
the injuries sustained. Provision must be
made for carpal tunnel release of both hands.’
That
conclusion does not appear to detract from the seriousness of the
shoulder injury which Dr de Graad had regard to in assessing
the
seriousness of Mr Gouws’ injuries.
[16]
Aggrieved by the Tribunal’s decision, Mr Gouws applied to the
court below for, inter alia, the following relief:
‘
1. That the
First Respondent’s decision of 1 August 2014 under reference
number RAFA/001125/2013 be reviewed and set-aside.
2. That the matter is referred back to
the Road Accident Fund Appeal Tribunal (First Respondent) for
reconsideration by a different
panel to be constituted by the
Registrar of the Third Respondent.
3. That the Road
Accident Fund Appeal Tribunal as appointed in paragraph 2 above, be
directed to
inter
alia
take
into account all relevant and available hospital records,
radiological reports, consultation notes, letters, clinical
evaluations,
theater reports and medical legal reports as appear from
this application of the Applicant and all such further documents that
may become available before the hearing of the appeal.’
[17]
Mr Gouws complained that the Tribunal had disregarded the documentary
expert evidence supplied by him, which accepted that
his shoulder
injury was related to the accident and that it resulted in serious
long term impairment. Furthermore, in his founding
affidavit, he
stated that if the Tribunal had been concerned about the nexus
between his injuries and the collision referred to
earlier, it had
the power, in terms of Regulations 3(11)
(a)
to
(e)
to obtain further information. Mr Gouws stated that he had no idea
why the fact that he was a karate instructor had been taken
into
account. In a supplementary affidavit, he stated that from the record
supplied in terms of Rule 53 of the Uniform Rules, there
appears to
have been no basis upon which the undisputed information supplied by
experts on his behalf was rejected. In his replying
affidavit Mr
Gouws complained that he had not been apprised that causality was in
issue and had therefore not been given an opportunity
to deal with
it. He also denied that the Tribunal has the power to consider
questions regarding the nexus between the injuries
and the collision.
[18]
Tuchten J, in adjudicating Mr Gouws’ application, had regard to
the methods to determine the seriousness of an injury
identified in
Regulation 3. The court below took into account the history of the
assessment by Dr de Graad of Mr Gouws’ injuries
and his appeal
to the Tribunal. The following appears at para 9 of the judgment of
the court below:
‘
The tribunal
thus found that the injuries which the applicant had suffered had not
been caused by the accident on 24 July 2010.
The applicant took the
decision of the tribunal on review. The applicant asks that the
decision of the tribunal be set aside and
the matter remitted for
consideration afresh. Whether the review should succeed is before me
for adjudication. It was common cause
between counsel that it was
implicit in the decision of the tribunal that the tribunal had found
that its jurisdiction extended
to the issue of causation.’
[19]
The court below considered the submission on behalf of the appellants
that it was implicit in terms of the Act and the Regulations
that a
determination with regard to causation was within the Tribunal’s
statutory remit. The following are the material parts
of the judgment
of the court below:
‘
Counsel
conceded that legal causation remained indeed for the court to decide
in due course but submitted that the question whether
medical
causation was established in a particular case had been entrusted in
first instance to the Fund and then to the tribunal.
Medical
causation, counsel said, was to be found in the interrelationship
between the injury and the pathology which gives rise
to it. But
counsel had difficulty in identifying the separate scopes, if any of
medical and legal causation in relation to the
present dispute. I do
not see any myself.
Furthermore, I think division of the
duty to decide causation between the Fund and the Tribunal on the one
hand and the court on
the other would potentially give rise to
intolerable confusion as to the boundaries of jurisdiction. To
compound the confusion,
this suggested role of the Fund and the
tribunal would only arise when the issue of a serious injury was
raised. In all other cases,
on the analysis of counsel for the
opposing respondents, the court would retain complete (ie not merely
partial) jurisdiction to
determine causation. It seems to me
improbable and unwieldy for certain aspects of causation arising in
certain categories cases
to be withdrawn from the jurisdiction of the
court while other aspects of other categories remain.
If counsel’s submission is
correct, then if a tribunal finds an injury or set of injuries to be
serious, on whatever ground,
then the Fund would be disabled from
arguing at the trial that the plaintiff had not established
causation. This could have far
reaching and even absurd consequences.
The courts have for
decades determined causation. Difficult questions arise in this
regard from time to time. In my view the courts,
duly informed by
expert evidence and argument, are better suited to make this
adjudication than the administrative decision makers
in question.
[20]
The court below concluded that there was nothing in the language of
the legislation concerned which empowered the Tribunal
to determine
whether the injuries assessed by it were caused by or arose from the
driving of a motor vehicle. It made an order
in the terms set out in
para 15 above and ordered the second appellant to pay Mr Gouws’
costs, including the costs of two
counsel.
[21]
It is against the order referred to in the preceding paragraph that
the present appeal is directed. Before us counsel on behalf
of the
Tribunal accepted that there was no express provision in the Act or
the Regulations that conferred on it the power to determine
finally
whether the injuries submitted to it for assessment were caused by or
arose out of the driving of a motor vehicle. Counsel
on behalf of the
Tribunal persisted with the position adopted in the court below,
namely that it was implicit in the legislation
that the Tribunal had
that power. In this regard, reliance was placed on the decision of
this court in
Johannesburg
Municipality v Davies & another
1925 AD 395.
It was submitted on behalf of the Tribunal that the
scheme of the Act and the Regulations was to ensure that deserving
and qualifying
claims are met. This, so it was argued, could only be
achieved if the cause and the extent of the injury or injuries
involved were
determined. Section 17 of the Act, so it was contended,
makes it clear that the injury for which a claimant is to be
compensated
must be caused by or arise from the driving of a motor
vehicle.
[22]
Furthermore, so it was asserted, Regulation 3(11)
(d)
,
which clothes the Tribunal with the power to examine pre- and
post-accident medical reports when it assesses the seriousness of
the
injury, supports the argument that it is implicit in the Regulations
that the Tribunal has the power to determine the connection
between
the injuries and the event allegedly giving rise to them.
[23]
A further argument on behalf of the Tribunal is that it is rightly
within the professional terrain of medical experts to determine
cause
and effect in relation to injuries. Support for this latter
contention was sought to be found in an article by M Slabbert
and H J
Edeling entitled ‘The Road Accident Fund and Serious Injuries:
The Narrative Test’.
[5]
The following are the quotes upon which reliance were placed. First,
where the authors take issue with the ‘loose’
use of the
word injury:
‘
Problems
arise in relation to the loose use of the word “injury”
where the context appears to relate to complications,
impairment or
disability. This can easily lead to confusion. In essence “injury”
refers to the physical damage that
occurs at the moment of the
accident, “complication” to the subsequent pathological
developments, “impairment”
to the long-term symptoms and
losses resulting from the injuries, and “disability” to
the effects of the impairment
on the various elements of the
individual’s life taking into account the circumstances.’
Second,
where the authors question the adequacy of the prescribed RAF 4
report form:
‘
Point 4
refers to the
AMA
Guides
rating which should be completed if the injury sustained does not
appear on the non-serious list of injuries. In point 4.1 the
doctor
is required to describe the nature of the motor vehicle accident,
despite the fact that he or she often has no knowledge
or limited
knowledge of what happened and he or she must therefore speculate. It
would be more relevant to ask the doctor whether
he or she is
satisfied that the injured was indeed injured in a motor vehicle
accident, and whether the injuries claimed for were
in fact caused by
the motor vehicle accident in question.’
[24]
The submissions on behalf of the Tribunal are superficially
attractive. After all, the proposition that the Act and Regulations
were designed to ensure that deserving and qualifying injuries are
compensated is unassailable. So, it seems to follow, and one
would
expect that the Tribunal ought to be able to decide finally whether
the injuries calling for assessment did indeed arise
out of or were
caused by the driving of a motor vehicle. However, one has to weigh
these submissions in light of the provisions
of the Act and the
Regulations and view them against first principles and policy
considerations.
[25]
In
Fedsure
Life Assurance Ltd & others v Greater Johannesburg Transitional
Metropolitan Council & others
[1998] ZACC 17
;
1999 (1) SA 374
(CC) and
Pharmaceutical
Manufacturers Association of South Africa & another: In re ex
parte President of the Republic of South Africa
& others
[2000] ZACC 1
;
2000 (2) SA 674
(CC), the Constitutional Court made it
clear that it is a fundamental principle of our law that public power
can only be exercised
within the bounds of the law. Repositories of
power can only exercise such power as has been conferred upon them by
law.
[6]
This is a description of
the principle of legality.
[26]
It will be recalled that even though counsel on behalf of the
Tribunal conceded that there was no express provision conferring
upon
it the power of finally deciding the question of causation, he
nevertheless submitted that such power, having regard to the
object
of the Act, could be implied in terms of
Davies
. The following
is the relevant dictum relied on:
‘
Here it may
be as well to remark that the rule that a power is to be implied to
do that which is reasonably incidental to what has
been expressly
authorised is no new rule of construction of statutes, it is merely
an example of a proper implication to draw.’
[7]
[27]
As stated above, the general rule is that express powers are needed
for the actions and decisions of administrators.
[8]
As pointed out by Professor Hoexter, implied powers may, however, be
ancillary to the express powers or exist either as a necessary
or
reasonable consequence of the express powers.
[9]
Furthermore, the author goes on to state that ‘a court will be
more inclined to find an implied power where the express power
is of
a broad, discretionary nature – and less inclined where it is a
narrow, closely circumscribed power’.
[10]
Where the administrative action or decision is likely to have far
reaching effects, it is less likely that a court will in the
absence
of express provisions find implied authorisation for it.
[11]
[28]
The Road Accident Fund Amendment Act 19 of 2005 (Amendment Act),
which came into effect on 1 August 2008 brought about significant
changes to the Act. It limited the Fund’s liability for
compensation in respect of claims for non-pecuniary loss (general
damages) to situations where a serious injury as defined in the Act
has ensued. That has been dealt with above, in brief, under
the
discussions of sections 17 and 26 of the Act and the Regulations. The
Amendment Act also, by way of the introduction of s 21,
abolished
certain common law claims which for present purposes we need discuss
no further. The Amendment Act also limited the amount
of compensation
the Fund is obliged to pay in relation to claims for loss of income
or for a dependent’s loss of support,
arising from the bodily
injury or death of a victim of a motor accident. These are
far-reaching changes expressly catered for in
the legislation.
[29]
The amendments in express terms referred to in the preceding
paragraph militate against importing the far-reaching suggested
powers of the Tribunal that will see it have the final word on the
question of causation. The power of the Minister to make regulations
in terms of s 26(1A)
(c)
,
namely, for the resolution of disputes arising from any matter
provided for in this Act, is the genesis for the power of the
Tribunal. Regulation 3 bears the title ‘Assessment of serious
injury in terms of section 17(1A)’. That subsection, as
discussed above, directs that the assessment of an injury shall be
based on ‘a prescribed method’. This, of course,
relates
first to an assessment by a medical practitioner and thereafter has
relevance in the appeal process, which is directed
at determining
whether the assessment by the medical practitioner was rightly made.
In this regard, both the Fund and the claimant
may be disputants.
[12]
[30]
In the present case, the Tribunal, an appellate body, purported to
have the power to decide finally upon the question of causation.
In
this regard the second to sixth appellants, in their answering
affidavit relied expressly on the powers conferred upon the Tribunal
by Regulation 3(13). The Fund was cited as a respondent in the court
below but did not participate in the proceedings in the court
below
or in this court. It appears that the Fund considered itself bound by
the Tribunal’s decision. Thus, it did not contend
that
it
ultimately had the prerogative to concede or challenge causation.
[31]
In paras 10 and 11 of its judgment, set out in para 19 above, the
court below reflected that the Tribunal adopted the position
that
it
had the power to decide on whether there was a nexus between the
injuries allegedly sustained and the driving of a motor vehicle.
In
para 10, Tuchten J noted that whilst counsel on behalf of the
Tribunal had conceded that ‘legal causation’ was
ultimately for the courts to decide, it was nevertheless submitted
that ‘medical causation’ was the preserve of the
Fund and
the Tribunal. The court below went on to state that counsel on behalf
of the Tribunal had difficulty in distinguishing
between ‘medical’
and ‘legal’ causation. As stated above, in para 11,
Tuchten J recorded that the division
of the ‘duty’ to
decide causation between the court on the one hand, and the Tribunal
on the other, would give rise
to ‘intolerable confusion as to
the boundaries of jurisdiction’.
[32]
In heads of argument filed in this court on behalf of the Tribunal,
it latterly appears to be suggested that the Tribunal is
entitled to
‘express an opinion’ on the nexus between the driving of
a motor vehicle and the alleged injuries. This
attempt to dilute its
earlier position is negated by the provisions of Regulation 3(13) on
which, inter alia, it had relied and
by the passive attitude of the
Fund. That Regulation makes ‘findings’ of the Tribunal
final and binding. In para 49
of its heads of argument the Tribunal
stated:
‘
The facts of
this matter, considered against the authorities referred to above,
indicate that the Tribunal was authorised and enjoined
to consider
and pronounce upon the link between the injury and the accident
relied upon.’
This
demonstrates confused thinking on the part of the Tribunal. When the
Tribunal ‘pronounces’ on causation it must
be considered
to arrive at a finding which would then, in terms of Regulation 3(13)
be final and binding. As set out in para 30
above, the Fund appears
to have considered itself bound by the Tribunal’s finding in
relation to causation.
[33]
The medical practitioner who conducts the initial assessment of the
seriousness of the injury is not, in making that assessment,
precluded from expressing a view on whether the injury was caused by
or arose from the driving of a motor vehicle. In the event
of the
medical practitioner casting doubt on whether there was a link
between the alleged injury and the driving of a motor vehicle,
the
Fund can decide whether to contest causation or to concede it. In
adopting a position on whether to contest causation, the
Fund is not
limited to the views expressed by the medical practitioner, but may
have or acquire other information to inform its
decision. In the
ordinary course causation is an issue that is ultimately decided by
the courts. A dispute between the Fund and
a claimant in relation to
causation has to be referred to a court for adjudication. When that
issue is decided by a court, it does
not follow that medical
practitioners are necessarily the only experts upon whom reliance may
be placed. Courts are not bound by
the view of any expert. They make
the ultimate decision on issues on which experts provide an opinion.
[34]
If, after the initial assessment by the medical practitioner, the
Fund exercises the option of a rejection of the report, a
dispute
arises in relation to the correctness of the assessment of the
seriousness of the injury by the medical practitioner and
where, as
far as the Fund is concerned, causation is not in issue, that dispute
is left to be dealt with by the Tribunal, which
will have the last
say on the matter, subject of course to whether that decision is
susceptible to judicial review. In the present
case, as described in
para 7 above, the Fund disputed the assessment of the injury on
fallacious grounds. The Fund did not inform
Mr Gouws that causation
was in issue nor did it independently adopt a position in relation
thereto. It wrongly abdicated that position
to the Tribunal. As
pointed out above, the contestation before the Tribunal could only be
in relation to the assessment by the
medical practitioner of the
seriousness of the injury and the finality of its decision is in
relation to that aspect.
[35]
The effect of what is suggested on behalf of the Tribunal is that the
jurisdiction of the court is ousted. The only challenge
to a decision
by the Tribunal in relation to causation on the suggested basis will
therefore be in the form of a review which,
contrary to the
suggestion on behalf of the Tribunal, will not be time or cost
efficient. One might rightly ask where the funding
for such an
exercise will come from and how it might impact on indigent persons.
[36]
Having regard to the authorities and principles set out in para 25
above, it is necessary to bear in mind that the power given
to the
Tribunal in terms of the legislation is narrowly circumscribed. It is
not of a broad discretionary nature, which would allow
for further
powers to be implied. The Tribunal cannot have the final say in
relation to causation. That power is not provided for.
[37]
Moreover, the power contended for is not a necessary or reasonable
consequence of the express powers of the Tribunal or of
the Fund. On
the contrary, if the contentions on behalf of the Tribunal are
upheld, it will be oppressive in relation to claimants
and, as stated
above, will deny them access to courts on an issue traditionally
reserved for adjudication by them. A finding against
the suggested
power does not enervate the provisions of the Act. The Fund maintains
the right to challenge or concede causation.
The Fund’s view
could be informed by information it has acquired or has at its
disposal at any time before or during litigation
and in this regard
is not restricted to only the medical evidence at its disposal. As
hinted at in para 12 of the judgment of the
court below, if the
submissions on behalf of the Tribunal were to be upheld the result
might well be that the Fund itself will
be stripped of its power to
decide the issue of causation in the event of an appeal tribunal
deciding causation against it.
[38]
The article by Slabbert and Edeling, referred to in para 23 above, on
which reliance was placed by counsel on behalf of the
Tribunal, takes
the matter no further. The authors’ criticism of para 4.1 of
the injury assessment report form (RAF 4) detracts
from the
submission that the Tribunal has the final say on causation. The
authors state that the medical practitioner is required
to describe
the nature of the motor vehicle accident ‘despite the fact that
he or she often has no knowledge or limited knowledge
of what
happened and he or she must therefore speculate’. One might
rightly ask how, in the absence of complete knowledge
or information,
the medical practitioners and, indeed, the Tribunal, can have the
final say on causation.
[39]
As stated above, Mr Gouws was given no notice that causation was an
issue that was going to be addressed by the Tribunal and
was not
afforded an opportunity to make representations, either on whether a
conclusion of the kind finally arrived at was justified
or on whether
a final decision on that issue was within the Tribunal’s
statutory remit.
[40]
It is up to the Legislature to decide whether to intervene and
detract further from the right of claimants, perhaps on the
basis of
affordability and ultimately in the interest of the public, by way of
further legislative amendments. In that event there
will no doubt be
careful scrutiny by affected parties of the constitutionality of such
provisions. Following on this judgment the
legislature, or the
Minister, may consider whether, for the purposes of greater clarity
regarding prospective disputes, including
those with greater
complexity than the present one,
[13]
legislative change is called for. That is an aspect beyond our remit.
Returning to the present case, in my view, principle and
policy
compel a conclusion against the Tribunal. The essential findings of
the court below cannot be faulted.
[41]
In light of the above, the following order is made:
The
appeal is dismissed with costs including the costs of two counsel.
___________________
M S Navsa
Acting Deputy President
Appearances:
For
the Appellant: L Kutumela
Instructed
by:
Gildenhuys
Malatji Inc., Petoria
Honey
Attorneys, Bloemfontein
For
the Respondent: F A Ras SC (with him M Tromp)
Instructed
by:
Johan
van de Vyver Attorneys, Pretoria
Symington
& De Kok Attorneys, Bloemfontein
[1]
Established in terms of s 2 of the
Health Professions Act 56 of 1974.
[2]
Road Accident Fund Regulations, GN
R770,
GG
31249,
21 July 2008.
[3]
American Medical Association’s
Guides to the Evaluation of
Permanent Impairment
,
Sixth Edition.
[4]
The Registrar of the HPCSA has the
responsibility to appoint members of the Tribunal and provide
administrative support to the
Tribunal. See definition of
‘Registrar’ in Regulation 1 and Regulation 3(8), which
reads as follows:
‘
(a) After receiving the
notification from the other party or the expiry of the 60 day
period, referred to in subregulation (6),
the Registrar shall refer
the dispute for consideration by an appeal tribunal paid for by the
Fund.
(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.’
‘
Registrar’
is defined in the Regulations as the ‘Registrar of the Health
Professions Council of South Africa established
in terms of section
2 of the Health Professions Act, 1974 (Act No. 56 of 1974)’.
[5]
M Slabbert and H J Edeling ‘The
Road Accident Fund and Serious Injuries: The Narrative Test’
(2012) 268
PELJ
15
2.
[6]
Paras 56-58 of
Fedsure
and paras 17-20 of the
Pharmaceutical
case.
[7]
At 402.
[8]
See also Cora Hoexter
Administrative
Law in South Africa
2 ed
(2012) at 43.
[9]
Ibid at 44 and the
authorities cited there, namely,
Lekhari
v Johannesburg City Council
1956
(1) SA 552
(A) at 567A and
Chonco
v Minister of Justice and Constitutional Development
2010 (4) SA 82
(CC).
[10]
Page 45.
[11]
Page 45.
[12]
See Regulations 3(4) and (5).
[13]
In the present case the dispute, as
it finally appears to have crystallised, after a finding by the
Tribunal, even though the
initial basis for the rejection by a
medical practitioner was erroneous, was whether the shoulder injury
assessed as serious
by the medical practitioner, was caused by or
arose from the driving of a motor vehicle. The seriousness of the
shoulder injury,
per se
,
does not appear to have been in dispute. Prospectively, questions
might arise about whether a differentiated assessment by a
medical
practitioner is competent in the event of a concern about whether
some of a number of injuries are related to or arose
from the
driving of a motor vehicle. The Act and the Regulations appear to
have been crafted on the basis of causation not being
in issue.