REPUBLIC OF SOUTH AFRICA

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO:  2010/38170

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

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                   DATE			        SIGNATURE

In the matter between:

MOKOENA, THABO RICHARD					               Plaintiff

and

ROAD ACCIDENT FUND						          Defendant
______________________________________________________________ 

J U D G M E N T
______________________________________________________________ 

MBHA, J:

INTRODUCTION

[1] 	The plaintiff claims damages from the defendant, as statutory insurer in terms of the Road Accident Fund Act 56 of 1996, as amended by the Road Accident Fund Amendment Act 19 of 2005 (“the Act”), arising from the bodily injuries he sustained in a motor collision that occurred on 28 November 2009.  It is common cause that the plaintiff sustained a fracture of the left index finger and a 3cm laceration of the scalp.

[2] 	The defendant has conceded liability to compensate the plaintiff in full for his proven damages.  The plaintiff’s claim for damages includes a claim for future medical expenses and general damages. The defendant has furnished an undertaking in terms of section 17(4)(a) of the Act in respect of the plaintiff’s future medical expenses. The only remaining issue for determination by this Court is whether or not the plaintiff is entitled to claim for general damages.  In this regard, the defendant has raised two special pleas, namely:

2.1	that the plaintiff has neglected to comply with section 17 of the Act read with Regulation 3, in that the plaintiff has neglected to prove per the prescribed method of assessment of serious injuries, that the plaintiff has sustained a “serious injury” as defined by the Act read with Regulation 3; and

2.2	that the plaintiff has failed to exhaust the processes and remedies available to the plaintiff in terms of Regulation 3 of the Act.

[3] 	The parties agreed to argue the special pleas as a point in limine.  After hearing argument, I made an order dismissing the special pleas with costs on the scale as between attorney and client.  I said reasons for my aforesaid order would follow in due course.  These are my reasons.

[4] 	Before I deal with the merits of the special pleas, it is important that I set out the chronology of events relevant to the determination of the issues at hand:

4.1	On 18 May 2010 the plaintiff lodged his claim with the Fund.  The plaintiff’s summons was subsequently delivered on 23 September 2010.

4.2 	On 21 October 2010 the plaintiff delivered a serious injury assessment report (RAF4 form) that was partly completed by Dr Braude, a psychiatrist, and partly by Ms Marks, an occupational therapist.

4.3     On 23 November 2010 the defendant delivered its special pleas.

4.4	On or about 7 October 2011 the defendant delivered a formal letter rejecting the plaintiff’s RAF4 form (“rejection letter”).

4.5	Between June 2011 and November 2011, the parties exchanged and delivered various medico-legal reports.  

OVERVIEW OF THE DEFENDANT’S CASE

[5] 	The defendant contends that it is only obliged to compensate a third party for general damages if the injury is assessed to be a serious injury based on a prescribed method contained in Regulation 3 of the Act.  Furthermore, the assessment must be made by a medical practitioner who completes the RAF4 form.  The defendant accordingly submits that:

5.1      Dr Braude did not assess or physically examine the plaintiff.

5.2	Dr Braude did not consider or provide a Whole Person Impairment rating (“WPI”) in terms of the AMA Guides.

5.3	As Dr Braude did not assess or examine the plaintiff’s injury, he could not comment on the aspect of the Maximal Medical Improvement (“MM1”) concerning the plaintiff.  In any event, MMI had not been reached by the plaintiff at the time of the RAF4 assessment.

5.4	The RAF4 form does not support any of the consequences set out in the narrative test.

5.5	Ms Marks an occupational therapist, completed the annexures relating to the WPI in terms of the AMA Guides and no consideration can be given to this assessment as an occupational therapist is not a medical practitioner as defined in the Act and as required by Regulation 3(1)(b).  Consequently, no assessment was made in terms of the AMA Guides.  Furthermore, the annexures referred to above were left blank.

[6] 	The defendant contends that the special pleas in essence rejected the plaintiff’s RAF4 form and that the plaintiff was obliged to refer the matter to the appeal tribunal on receipt of the special pleas if he wished to dispute the rejection.  The defendant contends further that Dr Braude, when completing the RAF4 form, had no regard to the medico-legal reports submitted during June 2011 to November 2011 and that the said reports cannot therefore support the findings in the plaintiff’s RAF4 form. 

[7]	In the circumstances, the defendant submits that the plaintiff’s RAF4 form falls to be rejected on both procedural and substantive grounds.

ISSUES TO BE DETERMINED

[8] 	The issues that must be determined by this Court are:

8.1	Whether a medical practitioner has to physically examine a claimant before a RAF4 form is completed;

8.2	Whether an assessment in terms of the narrative test can be conducted without doing a WPI assessment in terms of the AMA Guides;

8.3	Whether an occupational therapist is competent to complete a RAF4 form; and

8.4	Whether a RAF4 form has to be rejected within a reasonable and/or stipulated period.  

MUST A MEDICAL PRACTITIONER PHYSICALLY EXAMINE A THIRD PARTY PRIOR TO COMPLETING A RAF4 FORM?

[9] 	It is common cause that Dr Braude, who completed the plaintiff’s RAF4 form did not physically examine the plaintiff at the time he completed the said form.  In paragraph 4.6 of the RAF4 form, Dr Braude made the following entry:

“No physical examination done by me – refer to the Heidelberg and Natalspruit records annexed hereto”	

[10] 	Regulation 3(1)(a) of the Act states:

“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.”

The defendant accordingly contends that in terms of this Regulation, a third party who submits himself or herself to an assessment submits himself or herself to a physical examination.   In other words “assessment” as contemplated in Regulation 3 therefore means to physically examine.  The defendant submits that Dr Braude should have physically examined and/or interviewed the plaintiff prior to completing the RAF4 form on 20 October 2010.  Therefore, according to the defendant, the fact that the plaintiff has not been examined by the person completing the RAF4 form, is sufficient to non-suit the plaintiff.
  
[11] 	The defendant contends that Dr Braude’s reliance on the hospital records from Heidelberg and Natalspruit Hospitals, which only relate to the immediate and initial treatment of the plaintiff from the date of the collision on 29 November 2009 to the date of his discharge on 9 December 2009, was improper because no mention is made therein of the impairment, disability or functionality of the plaintiff’s injured finger or laceration to the scalp.  The defendant submits that the level of the impairment and the disability that an injury causes to an individual is the basis of whether an injury is considered to be serious or not in terms of the Act.

[12] 	In Kubeka v RAF Case No. 25663/2010 (South Gauteng High Court) the defendant similarly argued that “assessment” is to be construed as “physically examine” and consequently, the fact that the plaintiff had not been examined by the person completing the RAF4 form was sufficient to non-suit the plaintiff.  Coincidentally, in that case it is the same Dr Braude, as in casu, who completed the claimant’s RAF4 form and in which Dr Braude likewise recorded that no physical examination of the claimant had been conducted by him and that the reader of the form was to “…refer to the Natalspruit Hospital records annexed hereto”. 

[13]	Trisk AJ analysed in detail the word “assessing” as used in Regulation 3(1)(b)(v) and found that it was used in the context of the degree of impairment undergoing an assessment.  The learned judge said that  “Regulation 3(2)(a) contemplated the Fund as being the party liable for the costs of an assessment but only in the event of the third party’s injury being found to be serious and the Fund attracting overall liability in terms of the Act.  If the word ‘assess’ is to be given a meaning which is consistent regardless of the context within which it or its derivaties is or are found in Regulation 3, the only meaning which can be ascribed to it is…to evaluate or estimate the nature, ability or quality of…” 

[14]	Trisk AJ rejected the plaintiff’s argument that the same party who physically examines the third party or claimant must be the person who attends to the completion of the form and held correctly that, “assessment” cannot be construed as meaning “physical examine” because the words “physical examine” could easily have been used in place of “assessment”.  He referred to the Oxford Dictionary meaning of the word “assess” which is “… to evaluate or estimate the nature, ability or quality of …”.

[15] 	I am unable to fault the reasoning of Trisk AJ in this regard.  The mere fact that Dr Braude did not physically examine the plaintiff does not mean that the plaintiff’s claim should be rejected on the basis of no “assessment” being performed. Indeed the words “evaluate” and “estimate” which are used in the Oxford Dictionary, actually promote the interpretation that a doctor is likely to rely on other medical reports in assessing a claim.  To contend that “physically examine” is the same as “evaluate” and “estimate” is in my view, simply illogical.

[16] 	The fact that Dr Braude did not physically examine the plaintiff does not mean that he did not “assess” the plaintiff for purposes of the RAF4 form.  Rather, Dr Braude’s reliance and review of the relevant records both of Heidelberg and Natalspruit Hospitals and the notes of medical practitioners involved therein, all coupled with the clear photographic evidence of the plaintiff’s injuries confirm that a proper assessment was performed.

[17] 	Furthermore, the criticism that Dr Braude’s assessment was improper because he had no regard or sight of the medico-legal reports submitted during June 2011 to November 2011, presumably the reports of Dr Barlin, Dr White and Ms Marks at the time of the assessment is without merit.  Firstly, it was impossible for Dr Braude to have had sight of these reports which were prepared after the completion of the RAF4 form. Secondly, neither of the three experts contend that the plaintiff’s injuries are not serious; indeed, the opposite view is expressed by all experts including the defendant’s own experts, Prof Schepers, Dr Berkowitz and Ms Gattoo, the occupational therapist.  Thirdly, Dr Braude’s opinion that MMI was reached by the plaintiff has not been refuted.  Rather, Dr Barlin, Dr White and Ms Marks state that with certain treatment, the plaintiff’s condition may improve. Needless to say, this is not guaranteed.

THE MMI ARGUMENT RAISED BY THE DEFENDANT 

[18] 	The defendant avers that the plaintiff’s RAF4 form is fatally defective, inter alia, because Dr Braude indicated in the report that MMI was reached by the plaintiff at the time of the RAF4 assessment.  The defendant contends that Dr Braude could not have come to an informed opinion that MMI had been reached as he never examined the plaintiff’s injuries.  The defendant submits that MMI is a point in time where an injury stabilises. As such, a medical practitioner cannot determine if the injury has stabilised without physically examining the injury.  The defendant further submits that according to the hospital records, upon the plaintiff’s discharge from Natalspruit Hospital, he still had to apply dressings to the wound on his finger and this was clear indication that MMI had not been reached at that stage.

[19] 	In my view the defendant’s argument in this respect is simplistic and illogical.  If the defendant’s argument is to be believed, then nearly every plaintiff would have to wait for some time and possibly several years before he or she could legitimately file a RAF4 form because MMI has not been reached.  Indeed this is the case here.  For example, if the plaintiff had a probable chance of undergoing an osteotomy and fixation of a mal-united fracture of the left index finger, as Prof. Schepers suggests in his report, then the fixation operation would improve his medical condition from its present condition. If the defendant’s argument is to be accepted, then MMI would only be reached once the operation is performed, which could be several years down the line.  It follows that the plaintiff would be barred from bringing such a claim as it would be outside the three year period from the date of the accident and thus prescribed.  Clearly, the legislature could never have intended for these consequences to occur insofar as MMI is concerned.  In my view the fact that MM1 has not been reached, cannot be a basis to reject the plaintiff’s RAF4 claim form.

[20] 	The issue of MMI was also considered and analysed in the matter of Akaai, Lester Crain v Road Accident Fund Case No. 04245/2010 dated 13 October 2011, where Kathree Setiloane J held, at paragraphs [9] to [10], that on a proper reading of Regulation 3(3)(b)(ii), failure to reach MM1 does not constitute a proper reason to reject the RAF4 form.  Specifically, Kathree-Setiloane J held that the concept of MMI is irrelevant to the enquiry when the damages are being assessed on the narrative test.  In this regard, the concept of MMI is particular to the AMA Guides, which have no relevance under the narrative test.

THE AMA GUIDES ARGUMENT RAISED BY THE DEFENDANT

[21] 	
21.1 	The defendant contends that in terms of Regulation 3(1)(b), which prescribes a method by which a medical practitioner shall assess whether or not a third party’s injury is serious, the narrative test can only be applied to those injuries that have not resulted in 30% or more WPI and therefore, the WPI                      assessment has to be attained before the narrative test can be applied.  Furthermore, the conditions precedent for an assessment in terms of the AMA Guides have to be present before an assessment in terms of the narrative test can be applied, meaning that the MMI had to be reached before an assessment in terms of the AMA Guides or the narrative test is made.

21.2 	The defendant then submits that as Dr Braude failed to assess the plaintiff in terms of the AMA Guides, he therefore could not have applied the narrative test.  The defendant contends that the regulation does not provide for an assessment using the AMA Guides and the Narrative test in the alternative and that AMA Guides must be applied prior to the assessment in terms of the narrative test.

[22] 	In my view this argument has no merit.  Firstly, the plaintiff in this case is relying on the narrative test which is addressed in Regulation 3(1)(b)(iii) of the Act and is not relying on the AMA Guides.  Secondly, the plaintiff is not relying on a 30% WPI as the basis for his claim for general damages. Instead, the plaintiff’s basis for such claim is that he has suffered serious long-term impairment or loss of body function or loss of mobility and permanent serious disfigurement.  Clearly, the plaintiff’s claim is brought solely under the narrative test.

[23]  	I need to also mention that the AMA Guides, do not contain any provision for injuries to the head.  It follows accordingly that it would be impossible for a medical practitioner to fill in a form in regard to head injuries similar to those suffered by the plaintiff in this case.

[24] 	I accordingly find that Dr Braude’s omission to reference the AMA Guides or establish a percentage WPI is nothing more than a red-herring.  In my view it is irrelevant and does not in any way impact the plaintiff’s claim for general damages.

IS AN OCCUPATIONAL THERAPIST COMPETENT TO COMPLETE A RAF4 FORM?

[25] 	Section 17(1)(b) of the Act states that:

“The assessment shall be carried out by a medical practitioner registered as such under the Health Professions Act, 1974.”

The defendant submits that Ms. Marks, occupational therapist, is not a medical practitioner as defined in the Act and is therefore not competent to complete a RAF4 form.

[26] 	This argument cannot succeed.  Firstly, the plaintiff’s RAF4 form was completed by Dr Braude.  It is common cause that Ms Marks only completed an annexure to the RAF4.  Secondly, counsel for the defendant conceded that Ms Marks is properly registered with the Health Professions Council in terms of the Act.

WAS THERE TIMEOUS REJECTION OF THE RAF4 FORM BY THE DEFENDANT?

[27] 	The defendant submits that the special pleas that were raised and delivered on 23 November 2010, that is five weeks after the plaintiff’s RAF4 form was received, constituted sufficient indication that the defendant was not satisfied that the injury was correctly assessed as serious and accordingly rejected it.  The defendant contends further that it delivered a more detailed rejection letter on 7 October 2011 which letter reinforced the rejection contained in the special pleas.

[28] 	In support of this view, the defendant contends that the Act is silent on the time period that the Fund has to decide on a RAF4.

[29] 	In my view the contention that the special plea constitutes a rejection does not accord with the intention of the legislature.  If the legislature had intended a special plea to be a form of a rejection it would have expressly provided so.  
[30] 	As stated above, the rejection letter was sent to the plaintiff’s attorney on 7 October 2011, very close to the trial which commenced on 11 November 2011. Therefore, despite the defendant having been in possession of the plaintiff’s RAF4 form since October 2010, the defendant saw it fit to wait approximately one year before deciding to reject the plaintiff’s RAF4 form.

[31] 	The defendant filed its special pleas on 25 November 2010 and it is clear from the special pleas that they were of the view to reject the plaintiff’s RAF4 form, but without any reasonable explanation, if any explanation at all, wait almost a year to reject the RAF4 form.  The only logical deduction is that the defendant has chosen to wait until the eleventh hour to file the rejection letter in order to frustrate the plaintiff in pursuing his legitimate case.

[32] 	The defendant’s argument that Regulation 3 of the Act does not provide for a time limit within which to reject the plaintiff’s RAF4 form, also does not have any merit.

[33] 	In Louw v RAF Case No. 49084/2009 (South Gauteng High Court)  dated 12 August 2011, at paragraphs [81] and [82], Bekker AJ made it abundantly clear that the defendant is not at large to decide when it will give notice of its rejection of the RAF4 form and nor, for that matter, could it ever be either in the interests of justice or a function of the administration of justice to accommodate an open ended and indeterminate licence to reject a claim advanced by a party having entitlements under the Act.  Moreover, Bekker AJ further held that, in the absence of a specific time period having been provided in the Regulations for the notification of the rejection of the RAF4 form, a period of sixty (60) days constitutes a reasonable time for the defendant to deliver a notification of its rejection.

[34] 	Bekker AJ went even further and accepted the argument of the plaintiff that the sixty (60) day time period referred to in section 24(5) of the Act applies not only to the filing of the RAF1 claim form, but, by implication, should equally apply to the filing of the RAF4 form.  In this regard, Bekker AJ stated that such interpretation “accords with a purposive construction being placed on the relevant statutory provisions” and that the alternative interpretation would allow the “defendant to avoid and frustrate every claim against it indefinitely by simply not taking either of the said steps”.  

[35]	In Kubeka v RAF (supra) where a rejection of a RAF4 form was submitted almost a year after its submission, Trisk AJ held, at paragraph 18, that such a delay in furnishing a rejection is not only “unsatisfactory but also unacceptable”.  Trisk AJ further held that the defendant cannot rely on the proposition that Regulation 3 does not provide for a time limit within which the notification of rejection is to be furnished and agreed that sixty (60) days would be a reasonable time for the defendant to deliver notification of its rejection of a claim for general damages.  

[36]	I agree wholeheartedly with the findings and sentiments expressed in Kubeka (supra) and Louw (supra) and find that in this case the defendant’s conduct to submit a rejection letter until almost a year after the RAF4 form was submitted, and a mere few weeks before the trial, without any explanation whatsoever for such delay, was mala fide. I accordingly find that no proper rejection occurred with the consequence that the plaintiff is entitled to pursue his claim for general damages before this Court.

[37]	The second special plea is that the defendant has rejected the plaintiff’s RAF4 form because the plaintiff’s injury has not yet been finally determined to be a serious injury in terms of Regulation 3, that the plaintiff has failed to exhaust the processes and remedies available to him in terms of Regulation 3 and therefore the defendant is not obliged to compensate the plaintiff for general damages.  The defendant accordingly contends that the rejection letter is sufficient and competent as contemplated by the provisions of Regulation 3 (3)(d)(i).

[38] 	I have already found that the defendant acted mala fide in furnishing the rejection letter almost a year after the submission of the plaintiff’s RAF4 form.  In any event, the rejection letter fails to provide any true medical basis for its rejection of the plaintiff’s claim of a serious injury.  Instead, the defendant has simply regurgitated a litany of procedural issues yet fails to provide even one medical opinion as to why the plaintiff’s claim is not a “serious injury”.  With respect to the serious injuries themselves, the defendant’s attorneys simply conclude, without any medical basis therefor, that the injuries have not caused any serious long-term impairment or loss of body function, that the plaintiff has not reached MMI and the finding cannot be made that the injuries are permanent.  For example, no medical evidence is provided disputing the severe disfigurement of the plaintiff due to the lengthy and unsightly scar on his head.

[39] 	An identical issue arose before C J Claassen J in Abraham Matthys Smith and Duduzile Ngobeni v Road Accident Fund Case No. 47697/2009 dated 29 April 2011.  Claassen J held that no medical opinion was filed on behalf of the defendant and thus the plaintiff’s medical evidence was uncontested.  Claassen J said the defendant ought to raise a genuine dispute and as it had failed to do so, the court had jurisdiction to hear the question of general damages and that it need not be referred to a tribunal. 

[40] 	Significantly, Claassen J granted a punitive costs order against the defendant because he found that the defendant’s objection was purely obstructive and had no medical or legal basis.  Similarly in Mngomezulu v Road Accident Fund Case No. 04643/2010 dated 8 September 2011, Kgomo J held that the defendant should advance relevant, rational and substantial reasons why it was of the view that the injury had not been correctly assessed and that such objections must be genuine, rational and logical and should not be an objection which is either arbitrary or has no medical or legal basis.

[41] 	In casu, the defendant has attempted to reject the plaintiff’s RAF4 form without any real medical evidence whatsoever.  Indeed, the defendant has not provided one iota of medical evidence to contradict the viewpoint of Dr Braude in any way. Instead, the defendant simply rejected the RAF4 form in a conclusory manner.

[42] 	What is of great concern to me is that the defendant despite several clear and unequivocal judgments against it in this very Division, still persists with the same ill-conceived arguments that have already been rejected. At least six judgments have been granted against the defendant in respect of the very same argument that the defendant is proffering in this case. It is undisputed that the same firm of attorneys acting for the defendant in this case also acted in some of those cases. Yet the defendant continues to proffer the same argument which has already been discredited and found to be frivolous.  The attorneys acting for the defendant should be aware that they run the risk of a costs order de bonis propriis if they continue to file similar frivolous special pleas.  As a mark of my disapproval of the defendant’s conduct in this case, I have decided that a punitive costs order on the attorney and client basis is justified.

[43] 	After the dismissal of the special pleas, the parties conferred and informed me that general damages had been settled and that the defendant will pay the plaintiff the sum of R80 000,00 in respect thereof.  I was furnished with a draft order containing the terms of the settlement which I made an order of court.  The complete order accordingly reads as follows:

1.	The special pleas are dismissed with costs on the scale as between attorney and client.

2.	The defendant is ordered to pay to the plaintiff the sum of R80 000,00 (Eighty Thousand Rand).

3.	The defendant is ordered to furnish the plaintiff with an undertaking in terms of section 17(4)(a) of Act 56 of 1996 in respect of the plaintiff’s future medical costs within 14 days of this Order.

4.	The defendant is ordered to pay the plaintiff’s taxed or agreed costs of the action which costs are to include the costs of the following experts:  Dr C Barlin, Dr P D White and Ms R Marks, including any preparation and/or qualifying fees and/or costs of court attendance of such experts as the Taxing Master may allow.

						_____________________________
							           B H MBHA
						JUDGE OF THE SOUTH GAUTENG
						  HIGH COURT, JOHANNESBURG

COUNSEL FOR PLAINTIFF		:  DARBY F		

INSTRUCTED BY				:  NORMAN BERGER & PARTNERS 						   INC

COUNSEL FOR DEFENDANT		:  LATIB MR

INSTRUCTED BY				:  LINDSEY KELLER

DATES OF HEARING			:  09 -11/11/2011 			

COURT ORDER MADE ON		:  11/11/2011  

REASONS FOR JUDGMENT FURNISHED ON										:  15/12/2011