Road Accident Appeal Tribunal and Others v Gouws and Another

• Jurisdiction: South Africa
• Judge: Navsa ADP, Saldulker JA, Mocumie JA, Tsoka AJA and Makgoka AJA
• Judgment Date: 13 December 2017
• Citation: 2018 (3) SA 413 (SCA)
• Docket Number: 56/2017 [2017] ZASCA 188
• Hearing Date: 13 December 2017
• Counsel: L Kutumela for the appellants. F Ras SC (with M Tromp) for the first respondent.
• Court: Supreme Court of Appeal

Navsa ADP (Saldulker JA, Mocumie JA, Tsoka AJA & Makgoka AJA A 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 B 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 C 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 D 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. E 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. F

[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 G 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: H

'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: I

'(a)

Assessment of a serious injury shall be based on a prescribed method adopted after consultation with medical service providers and shall

Navsa ADP (Saldulker JA, Mocumie JA, Tsoka AJA & Makgoka AJA concurring)

be A 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).' [My emphasis.]

[4] B 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 C 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) D 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)

E 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). F [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 G 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 per cent 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 per cent or more impairment of the whole person may only H be assessed as serious if that injury:

(aa)

resulted in a serious long-term impairment or loss of a body function;

(bb)

I constitutes permanent serious disfigurement;

Navsa ADP (Saldulker JA, Mocumie JA, Tsoka AJA & Makgoka AJA concurring)

(cc)

resulted in severe long-term mental or severe long-term A 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 reg 3(1)(b), in terms, limit the assessment by the medical practitioner to one concerning the seriousness of the injury. B

[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: C

'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.' D

The description set out above is one, ostensibly, within the ambit of reg 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 E 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 F assessment method and concluded that the injury is not serious, as evidenced by the Serious Injury Assessment Report (RAF4), 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 G 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 reg 3(3)(d) the Fund, if not H satisfied that the injury has been correctly assessed —

'must:

(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 I 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, reg 3(3)(e) provides as follows: J

Navsa ADP (Saldulker JA, Mocumie JA, Tsoka AJA & Makgoka AJA concurring)

'The A 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 B 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 Road Accident Fund v Faria 2014 (6) SA 19 (SCA) paras 30 – 32.

[9] The Regulations, in some detail, provide for an appeal process. This C is foreshadowed by s 26(1A)(c) of the Act, set out in [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 D 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 E 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...