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[2016] ZAGPPHC 954
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Gouws v Road Accident Fund Appeal Tribunal and Others (26553/2015) [2016] ZAGPPHC 954 (2 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
D
I
VISION,
PRETORIA
CASE
NO: 26553/2015
In
the matter between:
LARTZ
GOUWS
Applicant
and
ROAD
ACCIDENT
FUND
APPEAL
TRIBUNAL
First Respondent
ROAD
ACCIDENT
FUND
Second Respondent
HEALTH
PROFESSIONS COUNCIL
OF
SOUTH
AFRICA
Third Respondent
PROF
GJ VLOK
NO
Fourth Respondent
DR
CF
KIECK
NO
Fifth Respondent
DR
C
LIEBETRAU
NO
Sixth Respondent
DR
RK
MARKS
NO
Seventh Respondent
JUDGMENT
Tuchten
J:
1
The applicant was involved in an accident allegedly caused
by or
arising from the driving of a motor vehicle. He decided to claim
compensation for his alleged injuries from the second respondent
(the
Fund). Under s 17(1) of the Road Accident Fund Act, 56 of 1996 (the
RAF Act), the Fund is liable, subject to the RAF Act,
to compensate
any person (the third party) for loss or damage sustained by the
third party in such circumstances.
2
Before the
substitution of s 17
of the RAF
Act
effected pursuant to Act 19 of 2005, the Fund was generally
liable to
compensate
a third
party for
both
pecuniary and non-pecuniary
loss.
But under
the new regime instituted
in 2005,
s
17(1) was
made
subject
to
a
proviso:
the obligation
of the
Fund to
compensate
a third
party for
non-pecuniary
loss is limited to compensation
for
"serious
injury"
as contemplated
in
s
17(1A).
[1]
3
There are
presently three
methods of
determining what
is and what
is not a
serious
injury for
purposes
of the
RAF Act.
They
are
identified
in
reg
3
of
the
Road
Accident
Fund
Regulations
(the
Regulations).
[2]
Firstly,
the
responsible minister may publish after consultation with the Minister
of
health,
a
list of
injuries
which
are for
purposes
of
section 17
of
the
RAF Act
not to
be
regarded
as
serious
injuries.
No
injury
shall be assessed
as serious
if that
injury
meets the description
of an
injury which
appears
on the
list.
Secondly,
if the
injury
resulted
in 30
percent or more
Impairment
of the
"Whole
Person as
provided
in
the AMA Guides",
the
injury
shall
be
assessed
as
serious.
Thirdly, an
injury which
does
not result
in 30
percent
or
more
Impairment
of the
Whole
Person may
only
be
assessed
as
serious
if
that
injury
resulted in
a
serious
long-term
impairment
or
loss
of
a
body
function,
constituted
permanent
serious
disfigurement,
resulted
in
severe
long-term
mental or
severe
long-term
behavioural
disturbance
or disorder
or
resulted
in loss of
a foetus.
4
The applicant's case is that his claim for compensation
for serious
injury should be assessed under the third basis. He alleges that his
injuries resulted in a serious long-term impairment
or loss of a body
function.
5
Reg 3(1) requires a claimant in the position of the
applicant to
submit himself to an assessment by a medical practitioner. The
applicant was assessed for that purpose by Dr de Graad.
She concluded
for this purpose that the applicant required a shoulder replacement
on the left and an arthrodesis of the left thumb.
At the time of his
accident on 24
July
2010, the applicant was a shiftboss at a mine. Dr de Graad believed
that the injuries restricted the applicant from doing his
normal
work.
6
Dr de
Graad's
findings
were
submitted
to the
Fund
in the
prescribed
manner in
what the
Regulations call
a
serious
injury
assessment
report. Under reg 3(d), the
Fund
itself
[3]
must
consider the assessment. Under
reg
3(d)(i), the
Fund
is
empowered
to
reject the
serious
injury
assessment
report.
That
is
what
the
Fund did.
7
A
third
party
in the
applicant's
position
who
disputes
the
rejection
of the
serious injury
assessment
report has
a right of
appeal
to
an appeal tribunal consisting of three
independent
medical
practitioners.
[4]
In
addition,
the Registrar of
the
third
respondent (the HPC) may
appoint an
additional independent
health
practitioner with appropriate
expertise
to
assist the
appeal
tribunal
in
an advisory
capacity.
8
The applicant duly lodged his appeal and the appeal was
adjudicated
at a formal level in accordance with the Regulations. The tribunal
upheld the Fund's rejection of the serious assessment
injury report.
It
did so not on the basis relied upon by the Fund but, having found
that the applicant was a karate instructor, as follows:
With
all the information available, the [tribunal] cannot find a link
between his left should and his right thumb as well as the
carpal
tunnels.
The
[tribunal] must take notice that [the applicant] was a karate
instructor and with the information available cannot bring the
accident to his present condition as well as the surgeries he had.
9
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.
10
I was not referred to any previous decisions in this regard. Counsel
for
the third to seventh respondents (the first and second
respondents abided) submitted that it was implicit in the legislation
to
which I have referred that the tribunal correctly treated
causation as falling within the tribunal's remit. 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.
11
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.
12
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.
13
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.
14
Finally, at the level of language, I find nothing in the legislation
which
enjoins the Fund or the tribunal to consider anything more than
whether the injuries identified in the serious injury assessment
report are or are not serious injuries for the purposes of the
legislation. In making the assessment, the Fund or tribunal, as
the
case may be, may be called upon to consider whether certain
consequences followed upon the injury
("resulted
in
a serious long-term impairment or loss of a body function, severe
long-term mental or behavioural disturbance or disorder or
loss of a
foetus"). But that is not the same as the question whether the
injury in question was caused by or arose from the
driving of a motor
vehicle.
15
The applicant has established that the decision of the tribunal was
affected
by the fact that the tribunal's decision was taken for a
reason not authorised by the legislation which empowered the tribunal
to act and that the tribunal took irrelevant considerations into
account in conflict with
ss 6(2)(e)(i)
and (iii) of the
Promotion of
Administrative Justice Act, 3 of 2000
. I therefore conclude
that the tribunal misconceived its jurisdiction and that the review
must succeed. Of course nothing that
I have said should be read as
confirming or rejecting the existence of a causative link between the
injuries found in the serious
injury assessment report to be present
and the driving of the motor vehicle which the applicant says caused
his injuries. That,
as I have been at pains to state, is a matter for
the trial court.
16
The applicant asks for the costs of two counsel. I think that the
novelty
of the issue raised justified the employment of both senior
and junior counsel.
17
I make the following order:
1
The decision of the first respondent of 1 August 2014 under reference
no. RAFA/001125/2013
is reviewed and set aside.
2
The matter is remitted to the Road Accident Fund Appeal Tribunal (the
first respondent)
for reconsideration by a different panel to be
constituted by the Registrar of the third respondent.
3
The tribunal constituted in terms of paragraph 2 above must take into
account
all relevant material including such further documents and
material which may be made available to it before the hearing of the
appeal.
4
The third respondent must pay the costs of this application including
the costs
consequent upon the appointment of both senior and junior
counsel.
___________________
NB
Tuchten
Judge
of the High Court
24
October 2016
For
the applicant:
Adv
FA Ras SC and Adv M Tromp
Instructed
by Potgieter Inc
Pretoria
For
the first and third to seventh respondents:
Mr
T Maodi
of
Gildenhuys Malatje Inc Pretoria
[1]
Section
17
(1)
provides:
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.
[2]
Published under Government Notice R770 in GG 31249 of 21 July 2008.
[3]
I omit the
reference
in the
legislation
to
an
agent
of
the
Fund,
something
of no
relevance for present purposes.
[4]
Reg 3(8)