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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE NORTH GAUTENG HIGH COURT, PRETORIA

(REPUBLIC OF SOUTH AFRICA)

Case Number: 52229/2011

Date: 04 December 2013

Not Reportable

Not of interest to other judges

In the matter between:

J.E. MEYER and ROAD.......................................................................Plaintiff

and

ACCIDENT FUND...........................................................................Defendant

JUDGMENT

POTTERILL J

1 The plaintiff instituted an action claiming damages from the defendant as a result of a collision that occurred on 27 June 2010 wherein the plaintiff as a passenger suffered bodily injuries. The defendant conceded the merits and accepted 100% liability of the Plaintiff’s proven or agreed damages.

2 The parties settled the issues of the past medical expenses and past and future loss of earnings. The defendant tendered an undertaking in terms of Section 17(4) of the Road Accident Act, 56 of 1996, as amended [the Act].

3 In dispute is whether the court has the jurisdiction to decide whether the injury is in terms of section 17(1) of the Act a serious injury. This is necessary as the plaintiff is only entitled to non-pecuniary loss i.e. general damages in a lump sum if the injury is a serious injury.

4 The common cause facts are the following:

4.1 The Plaintiff’s RAF4 prepared by Dr TJ Enslin was served timeously on the Defendant on 5 June 2012. In this report a whole person impairment of collectively 48% was indicated. The plaintiff is 73 years old.

4.2 The defendant took no action upon receipt of this serious injury report.

4.3 On 14 November 2012 the expert report of Dr Daan de Klerk is served on the defendant. Dr de Klerk is a neurosurgeon as well as a certified medical practitioner as required by the Act.

4.4 Once again no reaction is forthcoming from the defendant.

4.5 Almost a year after the service of the RAF4, on 9 May 2013, the defendant served notices in terms of Rule 36(2) and 36(9)(a) on the plaintiff. The plaintiff attended to the examination by Dr Rossouw on 20 August 2013. A report with the same date was compiled by Dr Rossouw. This report was never formally served on the plaintiff. Despite Dr Rossouw being a medical examiner in terms of the AMA guidelines, he failed to comment on whether or not the plaintiff complied with the serious injury assessment.

4.6 At trial on 23 October 2013 the plaintiff was informed orally by the legal representative of the defendant that the plaintiff’s RAF*+ was rejected. The plaintiff was made aware of the report by Dr Rossouw and requested the defendant to inquire telephonically from Dr Rossouw whether the plaintiff complied with the serious injury assessment. The Dr informed the attorney for the defendant that in terms of her neurological assessment alone the plaintiff complied with the serious injury assessment.

4.7 The trial stood down and the plaintiff received a formal rejection letter from the Fund dated the date of the trial, i.e. 23 October 2013. The plaintiff also received the joint minutes from Doctors de Klerk and Rossouw wherein the following is stated:

“That the injured sustained long term and permanent irreversible damage due to her brain injuries and would on a full motivation without doubt qualify under the serious long term impairment of loss of body function.”

4.8 The Fund rejected the RAF U on the following grounds:

“We further confirm the reasons for rejection as follows:

There are no supporting clinical studies to the ratings given on RafU - Neurological Impairment 33 Z - according to the scan 03/03/2011 ~ no signs of intracranial bleeding, age related changes were reported, there is no clinical records or proof of treatment received for Behavioural changes. According to Dr Weikovics the claimant was re-admitted twice but there are no hospital documents confirming the diagnosis and the treatment received. There are no clinical records confirming the diagnosis of double vision in the file. The Splenectomy - 3 % WPI and Pnuemovax is given immediately post operatively. ”

4 Section 17(1) of the Act reads as follows:

“17 Liability of Fund and agents (1) The Fund or an agent shall-

(a) subject to this Act, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of the owner or the driver thereof has been established;

(b) subject to any regulation made under section 26, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of neither the owner nor the driver thereof has been established,

be 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 to himself or herself or the death of or any bodily injury to any other person, caused by or arising from the driving of a motor vehicle by any person at any place within the Republic•, if the injury or death 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 employees duties as employee: 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 (IA) and shall be paid by way of a lump sum.

(1A) (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, 197U (Act 56 of 197U):

5 The Road Accident Fund regulations of 2008 were promulgated on 21 July 2009. Regulation 3 prescribes the method contemplated in Section 17(1)(A) for the determination of the serious injury.

“3 Assessment of serious injury in terms of section 17(1)(A)

(i) (a) A third party who wishes to claim compensation for non- pecuniary loss shall submit himself or herself to an assessment by a medical practitioner in accordance with these Regulations.

(b) The medical practitioner shall assess whether the third party’s injury is serious in accordance with the following method:

(i) Any one, or any combination, of the following injuries, are for purposes of section 17 of the Act, not to be regarded as a serious injury and no injury shall be assessed as serious if the injury meets the following description ~

(aa) any whiplash type or soft tissue injury to the neck or back:

(bb) any strain, tear; crush or damage to any muscle or soft tissue

(cc) any mild sprain, strain, tear or damage to any ligament of any joint unless there is continuing instability of the joint:

(dd) any lacerations, abrasion, cut, tear; or damage to skin or soft tissue, provided there is no resulting permanent serious disfigurement;

(ee) any complete or partial amputation of the little finger of either hand, or both the right and left hand;

(ff) fracture of any finger of either hand, or both the right and left hand;

(gg) any complete or partial amputation of any one toe of either foot or both the right and left foot unless there is partial or complete amputation of the big toe:

(hh) fracture of any toe of either foot, or both the right and left foot;

(ii) any damage to or loss of a tooth or any number of teeth;

(jj) superficial burns to any part of the body:

(kk) superficial injury to one or both eyes;

(ii) fracture of the nasal bone or damage to the nasal cartilage;

(mm) any scar or scars caused by any injury listed in items (aa) to (II), provided there is no resulting permanent serious disfigurement;

(nn) any bruising or bleeding into the soft tissue as a result of any injury listed in items (aa) to (mm);

(oo) any sequelae in the form of pain or discomfort as a result of any injury listed in items (aa) to (nn); and

(pp) any mi id or moderate form of depression, anxiety, chronic headaches or post-traumatic stress disorder;

Provided that, if any complication arises from any one, or any combination of the injuries listed in items (aa) to (pp), the third party shall be entitled to be assessed in terms of subregulations 3( 1)(b)(ii) and 3( 1)(b)(iii).

(ii) If the injury resulted in 30 per cent or more Impairment of the Whole Person as provided in the AM A Guides, the injury shall be assessed as serious.

(ii) An injury which does not result in 30 per cent 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.

(iv) The AMA Guides must be applied by the medical practitioner in accordance with operational guidelines or amendments, if any, published by the Minister from time to time by notice in the Gazette.

(v) Despite anything to the contrary in the AMA Guides, in assessing the degree of impairment, no number stipulated in the AMA Guides is to be rounded up or down, regardless of whether the number represents an initial\ an intermediate, a combined or a final value, unless the rounding is expressly required or permitted by the guidelines issued by the Minister.

(vi) The Minister may approve a training course in the application of the AMA Guides by notice in the Gazette and then the assessment must be done by a medical practitioner who has successfully completed such a course

6 The defendant relied on the matter of Road Accident Fund v Duma (202/12) and three related cases (Health Professions’ Council of South Africa as Amicus Curiae)[2012] ZASCA 169 SCA 9 (27 November 2012) that a court’s jurisdiction is ousted in determining whether an injury is serious.

The essence of the above judgment pertinent to the issue before me is to be found in paragraphs [18] and [19]:

"[18] Consideration of the High Court's judgments in the four cases on appeal and those upon which they rely, all seem to set out from the premise that it is ultimately for the court to decide whether the plaintiff’s injury was 'serious' so as to satisfy the threshold requirement for an award of general damages. Proceeding from that premise, these decisions assume that if the Fund should fall to properly or timeously reject an assertion to that effect by a third party, the rejection can be ignored. If the medical evidence before the court then shows that, on a balance, the plaintiff was indeed seriously injured the court can proceed to decide the issue of general damages."

[19] That approach, i believe, is fundamentally flawed. In accordance with the model that the legislature chose to adopt, the decision whether or not the injury of a third party is serious enough to meet the threshold requirement for an award of general damages was conferred on the Fund and not on the court. That much appears from the stipulation in regulation 3(3)(c)that the Fund shafi only be obliged to pay general damages if the Fund-and not the court-is satisfied that the injury has correctly been assessed in accordance with the RAF U form as serious. Unless the Fund is so satisfied the plaintiff simply has no claim for general damages. This means that unless the plaintiff can establish the jurisdictional fact that the Fund is so satisfied, the court had no jurisdiction to entertain the claim for general damages against the Fund. Stated somewhat differently, in order for the court to consider a claim for general damages, the third party must satisfy the Fund\ not the court, that his or her injury was serious", [my emphasis].

The court found that the Fund is an organ of State and any decision the Fund made is an administrative action as contemplated by the Promotion of Administrative Justice Act 3 of 2000 (PAJA). The court accordingly found:

“[19] (b) if the Fund should fail to take a decision within reasonable time, the plaintiff's remedy is under PAJA.

(c) if the Fund should take a decision against the plaintiff, that decision cannot be ignored simply because it was not taken within a reasonable time or because no legal or medical basis is provided for the decision or because the court does not agree with the reasons given.

(d) A decision by the Fund is subject to an internal administrative appeal to an appeal tribunal.

(e) Neither the decision of the Fund nor the decision of the appeal tribunal is subject to an appeal to the court. The court’s control over these decisions is by means of the review proceedings under PAJA."

On this basis the defendant argued that if the Fund denies that the injury is a serious injury the Court has no jurisdiction. This is so even if the medical evidence may conclude that there is a serious injury in terms of section 17. The reason is that the Fund is the client and the ultimate discretion is conferred on it. The plaintiff has a remedy and the matter must serve before the HPCSA in terms of regulation 3.

7 The plaintiff relied on the unreported matter of Rui Fernando Fonseca Faria v Road Accident Fund, Case No 2210/12, SGHC, wherein Weiner J on 12 March 2013, despite the Fund rejecting the injury as not being serious, found the injury to be serious in terms of the Act. Weiner J did it on the basis that the joint minute of the orthopaedic surgeons reflected “This for him was a serious injury resulting in serious long-term impairment.” The court then found that on the medical evidence (i.e. the joint minutes of the experts’) the basis of the first ground of the objection raised by the Fund was incorrect. The second objection was factually incorrect because when the RAF form was submitted, the plaintiff’s medical practitioners had stated that the plaintiff had reached MMI. The court then found as follows:

“[51] It appears that therefore the two points of objection fall away. It would be artificial to hold that simply because the defendant has objected to the RAF U assessment that, irrespective of the basis therefore the plaintiff must follow the procedure set out in Regulation 3. In this regard. the facts in the Duma case are distinguishable. The grounds of objection in the Duma case were valid. IN the present case, they are not, for the reasons set out above."

On behalf of the plaintiff it was thus argued that the facts of the Faria-matter and the matter at hand are practically indistinguishable. The Courts cannot effectively condone the defendant to act unreasonably; in doing so one is allowing the Defendant to object without sufficient grounds to do so. The approach in the Faria- matter is thus not only pragmatic but justiciable. The argument was made that the Fund is acting mala fide.

8 I agree with the plaintiff’s submission made that the judgment in the Faria-matter is pragmatic. I also agree that it resulted in speedy justice versus the same result being achieved via the longer procedure of the issue of a serious injury having to serve before the HPCSA in terms of regulation 3. I must however find that the distinction drawn between the Duma-matters and the Faria-matter is with respect laboured and artificial. The crux of the Duma-matter is that a Court’s jurisdiction to decide the issue of whether an injury is a serious injury is ousted when the Fund is not satisfied that the injury is serious. This is so even if the joint minutes of the experts reflect that the injury is serious, but the Fund is not so satisfied. The moment the Court pronounces on the joint minutes the court is making a finding that the injury is a serious injury contrary to the Fund’s satisfaction; jurisdiction which the court does not have. The matter must thus serve before the HPCSA in terms of regulation 3.

9 The Duma judgment did however not propose or endorse the Fund to play games with plaintiffs’ in litigation. In the matter before me the Fund displayed reckless disregard for its duty to inform the plaintiff whether they are satisfied that the injury is a serious injury in terms of the Act. They did not react to the plaintiff’s RAF U (serious injury report) Form timeously served on 5 June 2012. The Fund also did not did not react to the expert report of the neurosurgeon being a certified medical practitioner as required by the Act. This report was served on 1U November 2012. Almost a year after the service of the RAF U the defendant served notices in terms of Rule 36(2) and 36(9)(a) on the plaintiff. The plaintiff duly attended to the examination by Dr Rossouw. Dr Rossouw compiled a report but it was never served on the plaintiff. Dr Rossouw despite being a medical examiner as defined in the AMA guidelines expressed no opinion on whether the plaintiff had suffered a serious injury. On 23 October 2013 being the date of the trial the Fund informed the plaintiff that the defendant is rejecting the RAF k. The trial stood down for the Fund to produce a formal rejection letter. The Fund also informed the plaintiff that their expert did find the injury to be a serious injury as defined. It thus took the Fund from the service of the RAF U on 5 June 2012 to the morning of the trial, 23 October 2013 to indicate that it was not satisfied that it was a serious injury as defined. The Fund has the jurisdiction to decide whether it is a serious injury, has the jurisdiction do so with an inordinate delay and for no good reasons, but then the exercise of their discretion under those circumstances is exercised at the risk of costs on a punitive scale being awarded against them. It is not in the interests of justice to delay this decision until the morning of the trial. The only inferences that can be drawn is that the Fund is acting mala fide, grossly negligent or with a cavalier attitude. No court can condone the Fund’s contemptuous disregard for the opponent’s rights in obtaining finality- City of Tshwane v Ghani 2009 (5) SA 56 3 (T) at 570 D-H.

10 I accordingly make the following order:

Draft order marked “X” is made an order of court.

S. POTTERILL

JUDGE OF THE HIGH COURT

CASE NO: 52229/2011

HEARD ON: 28 October 2013

FOR THE PLAINTIFF: ADV. L. EAST

INSTRUCTED BY: Ivan Martens of Gert Net Incorporated

FOR THE DEFENDANT: ADV. M.l. THABETHE

INSTRUCTED BY: Azraa Janse van Vuuren of Mothle Jooma Sabdia Incorporated

DATE OF JUDGMENT: 4 December 2013

IN THE HIGH COURT OF SOUTH AFRICA

(NORTH GAUTENG HIGH COURT. PRETORIA)

On the 4th of December 2013 before the Honourable Potterill J

CASE NUMBER: 55559/11

DATE: 04 DECEMBER 2013

In the matter between:

J E MEYER..............................................................................................PLAINTIFF

and

ROAD ACCIDENT FUND...................................................................DEFENDANT

DRAFT ORDER

After having heard counsel and consideration of the papers, IT IS ORDERED THAT:

1. The merits are resolved on the basis that the Defendant shall pay 100% of the

Plaintiffs proven or agreed damages.

2. The Defendant shall pay to the Plaintiff the sum of R 853 491.08 (eight hundred and fifty-three thousand, four hundred and ninety-one Rand and eight cents) in respect of past and future loss of earnings as well as past medical expenses, of which R 588 795.21 (Five hundred and eighty-eight

thousand, seven hundred and ninety-five Rand and twenty-one cents) relates to past medical expenses.

3. In the event of the aforesaid amount not being paid timeously, the Defendant shall be liable for interest on the amount at the rate of 15,5% per annum, calculated from the 15th calendar day after the date of this Order to date of payment.

4. The Defendant shall furnish the Plaintiff with an undertaking in terms of Section 17(4)(a) of Act 56 of 1996 for payment of the future accommodation of the Plaintiff in a hospital or nursing home or treatment of or rendering of a service or supplying of goods to him resulting the injuries sustained by the Plaintiff in the motor vehicle accident that occurred on 27 June 2010, to compensate the Plaintiff in respect of the said costs after the costs have been incurred and upon proof thereof.

5. The Defendant shall pay the Plaintiffs taxed or agreed costs on an attorney- client High Court scale, subject thereto that:

5.1 In the event that the costs are not agreed:

5.1.1 The Plaintiff shall serve a notice of taxation on the Defendant’s attorney of record;

5.1.2 The Plaintiff shall allow the Defendant 7 (SEVEN) Court days from

date of allocatur to make payment of the taxed costs.

5.1.3 Should payment not be effected timeously, the Plaintiff will be entitled to recover interest at the rate of 15,5% per annum on the taxed or agreed costs from date of allocatur to date of final payment.

5.2 Such costs shall include but not be limited to the following:

5.2.1 The costs incurred in obtaining payment of the amounts mentioned in paragraphs 2 and 3 and 5 above;

5.2.2 The costs of and consequent to the employment of Counsel, including counsel’s charges in respect of reasonable preparation, her full day fee for 23 and 28 October 2013, as well as attendance at court on 04 November 2013;

5.2.3 The costs of all medico-legal, radiological, actuarial, accident reconstruction, pathologist and addendum reports obtained by the Plaintiff, as well as such reports furnished to the Defendant and/or its attorneys, as well as all reports in their possession and all reports contained in the Plaintiffs bundles, including, but not limited to the following:

5.2.3.1 Dr T Oeloefse;

5.2.3.2 DR TJ Enslin;

5.2.3.3 L Toerien;

5.2.3.4 R Gous;

5.2.3.5 Dr JW Callaghan;

5.2.3.6 Dr RL Dippenaar;

5.2.3.7 Dr D de Klerk;

5.2.3.8 M Pretorius;

5.2.3.9 Dr E Laubscher;

5.2.3.10 GRS Actuaries

5.2.4 Preparation, qualifying and reservation fees of the following experts:

5.2.4.1 DrT Oeloefse;

5.2.4.2 DR TJ Enslin;

5.2.4.3 L Toerien;

5.2.4.4 R Gous;

5.2.4.5 Dr JW Callaghan;

5.2.4.6 Dr RL Dippenaar;

5.2.4.7 Dr D de Klerk;

5.2.4.8 M Pretorius;

5.2.4.9 Dr E Laubscher;

5.2.4.10 GRS Actuaries

5.2.5 The costs incurred by and on behalf of the Plaintiff in, as well as the costs consequent to attending the medico-legal examinations of both parties.

5.2.6 The costs consequent to the Plaintiffs trial bundles and witness bundles;

5.2.7 The cost of holding all pre-trial conferences, as well as round table

meetings between the legal representatives for both the Plaintiff and the Defendant, including counsel’s charges in respect thereof;

5.2.8 The cost of and consequent to compiling all minutes in respect of pre-trial conferences;

5.2.9 The travelling costs of the Plaintiff as well as her daughter and husband, who are hereby declared necessary witnesses;

5.2.10 The costs consequent to the holding of an inspection in loco;

5.2.11 The costs consequent to consultations between the Plaintiff and her legal representatives.

6. The amounts referred to in paragraphs 2, 3 and 5 will be paid to the Plaintiffs attorneys, Gert Nel Incorporated, by direct transfer into their trust account, details of which are the following:

Bank

Account number:

Branch code:

REF:

7. The issue of general damages is postponed sine die.

8. The parties are directed to apply for a preferential hearing at the HPCSA. The HPCSA is directed to make a finding on the issue of general damages within 90 days of the granting of this order.

BY ORDER OF THE COURT

REGISTRAR OF THE HIGH COURT PRETORIA

GERT NEL INC

Plaintiffs’ attorneys Ref: GN4943

 

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