Application for judicial review of the HPCSA’s decision to reject a plaintiff’s claim for general damages
15 January 2021 | Lize-Mari Viljoen
General damages can be described as a plaintiff’s claim for any harm suffered as a result of injuries sustained including pain and suffering, disfigurement, emotional harm, permanent disabilities and loss of amenities of life.
In terms of Section 17(1) of the Road Accident Fund Act 56 of 1996 (as amended) (hereinafter referred to as “the Act”), the Road Accident Fund will only compensate a third party for general damages in the event of a serious injury as contemplated in Section 17(1A) of the Act.
The concept of a serious injury in terms of the Act is more often than not misunderstood by plaintiffs. It does not mean that the plaintiff did not get hurt at all or is not experiencing any pain. It only means that the injuries sustained by the plaintiff does not meet the requirements of a serious injury as contemplated in Section 17(1A) of the Act.
A person will only qualify for general damages if a medical practitioner registered in terms of the Health Professions Act indicated on the RAF 4 serious injury assessment report that:
- the injury sustained is not included in the list of non-serious injuries published by the Minister of Transport in the Government Gazette No 36452 of 15 May 2013 and
- the injury sustained resulted in a whole person impairment (WPI) rating of 30% or more or
- the injury sustained resulted in a serious long-term impairment or loss of a body function / permanent serious disfigurement / severe long-term mental or severe long-term behavioral disturbance or disorder / loss of a foetus as envisaged in terms of the narrative test.
In terms of Regulation 3(dA) promulgated in terms of the Act the RAF must accept or reject the plaintiff’s RAF 4 serious injury assessment report within 90 days from the date on which the RAF 4 report was submitted.
Disputing the RAF’s rejection of the RAF 4 serious injury assessment report in terms of Regulation 3(4) of the Act:
In the event that the plaintiff disputes the rejection of the RAF 4 serious injury assessment report, he or she may within 90 court days lodge an objection with the Registrar of the Health Professions Council of South Africa (hereinafter referred to as “the HPCSA”) on the prescribed RAF 5 dispute resolution form setting out the grounds upon which the rejection is disputed and attaching all submissions, medical reports and opinions he or she wishes to rely upon.
The Registrar of the HPCSA will appoint an appeal tribunal consisting of three independent medical practitioners with expertise in the appropriate areas of medicine to consider the RAF 5 form and supporting documents.
In terms of Regulation 3(13) the Registrar shall inform the interested parties of the findings and decision of the appeal tribunal, which findings will be final and binding.
Does this mean that it is the end of the road and the plaintiff has exhausted all available remedies?
Promotion of Administrative Justice Act 3 of 2000:
The Promotion of Administrative Justice Act 3 of 2000 (hereinafter referred to as “PAJA”) provides that everyone with the right to lawful, reasonable and procedurally fair administrative action. In other words, PAJA aims to assure that an administrative action that materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.
A decision by the appeal tribunal constitutes an administrative action and Section 6(1) of PAJA provides that any person may institute proceedings in a court or tribunal for the judicial review of an administrative action.
Grounds for judicial review in terms of Section 6(2) of PAJA:
According to Section 6(2) of PAJA a court or tribunal has the power to judicially review an administrative action if:
- the administrator who took it-
- was not authorised to do so by the empowering provision;
- acted under a delegation of power which was not authorised by the empowering provision; or
- was biased or reasonably suspected of bias;
- a mandatory and material procedure or condition prescribed by an empowering provision was not complied with;
- the action was procedurally unfair;
- the action was materially influenced by an error of law;
- the action was taken-
- for a reason not authorised by the empowering provision;
- for an ulterior purpose or motive;
- because irrelevant considerations were taken into account or relevant considerations were not considered;
- because of the unauthorised or unwarranted dictates of another person or body;
- in bad faith; or
- arbitrarily or capriciously;
- the action itself-
- contravenes a law or is not authorised by the empowering provision; or
- is not rationally connected to-the purpose for which it was taken;the purpose of the empowering provision;the information before the administrator; orthe reasons given for it by the administrator;
- the action concerned consists of a failure to take a decision;
- the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function; or
- the action is otherwise unconstitutional or unlawful.
Time frame within which judicial review proceedings must be instituted:
In terms of Section 7(1) of PAJA any proceedings for judicial review must be instituted without unreasonable delay and not later than 180 court days after the date on which any proceedings instituted in terms of internal remedies have been concluded, or, where no such remedies exist, the date on which the person concerned was informed of the administrative action, became aware of the action and the reasons for it or might reasonably have been expected to have become aware of the action and the reasons.
Important difference between appeals and reviews when dealing with decisions of the HPCSA:
It is important to note that in these instances we deal with a review application and not an appeal. For our purposes, the main difference between a review and an appeal is the following:
A court that needs to determine an appeal hears the matter afresh which means an appeal constitutes a hearing de novo (from Latin, meaning “from the new”). The court may overturn the decision of the court or the tribunal of first instance and declare its own decision to be the decision of that court or tribunal.
In the event of a review, the court’s powers are to some extent more limited. Where valid grounds for a review exist, the reviewing court may without doubt set aside the decision of the court or tribunal of first instance. The reviewing court will not declare its own decision to be the decision of that court or tribunal but is compelled to refer the matter back to the court or tribunal of first instance to consider the matter afresh subject to any directions imposed by the reviewing court.
It is clear that should a plaintiff be successful with an application to review the decision of the HPCSA, the reviewing court will set the decision of the HPCSA aside and refer the matter back to the HPCSA for reconsideration.
In the event that a different appeal tribunal finds that the plaintiff’s injuries do not qualify as serious, it will be extremely difficult to persuade a reviewing court that two different panels of medical experts erred in rejecting the plaintiff’s claim for general damages.