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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

Case number 16/06275

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED.

16/2/2018

In the matter between:

 MONDAY ALEX                                                                                                       Plaintiff

and

 ROAD ACCIDENT FUND                                                                                    Defendant

Summary: Road Accident Fund claim. Interpretation of section 24 of the Road Accident Fund Act. Compliance with the provisions of section 24. The RAF 1 form not completed by the hospital doctor who treated the patient. Substantial compliance even though the RAF 1 form not completed by the doctor who treated the patient.

JUDGMENT

Molahlehi, J

Introduction

[1] The plaintiff in this matter has instituted action proceedings claiming damages for the injuries allegedly suffered as a result of the vehicle collision which occurred on 6 December 2014. He was after that hospitalised at Chris Hani Baragwanath Hospital (hospital). The claim is made in terms of the Road Accident Fund Act (the Act),[1] which deals with the liability or otherwise of the defendant.

[2] One of the jurisdictional fact that needs to be satisfied in instituting proceedings under the Act is compliance with the provisions of section 24 (2) (a) of the Act. The plaintiff avers in paragraph 12 of the particulars of claim that he complied with the requirements of that section.

[3] The defendant has raised a special plea, contending that the plaintiff has not complied with the provisions of section 24 of the Act.

[4] It is common cause that the plaintiff submitted the RAF 1 form (the form) claim with the defendant wherein he claims damages arising from the accident. The form was completed by Dr. Hovis, a medical practitioner in private practice who did not treat the plaintiff at the time of the accident and subsequent thereto.   

[5] In completing the form, Dr. Hovis relied on the medical records of the hospital which were availed to him by the plaintiff's attorneys of record. In this respect, he states in his affidavit that:

"As per the instructions from the attorneys referred to above, I familiarised myself with the contents of person concerned (sic) hospital records from Chris Hani Baragwanath Hospital and fully satisfied myself regarding the nature and treatment of the bodily injuries he sustained, and attended to complete RAF 1 Form."

[6] In the letter dated 15 November 2016, the plaintiff’s attorneys of record state:

“The medical report was completed by Dr Hovis upon our request from our office due to the unreasonable delay by the treating doctor at Chris Hani Baragwanath Hospital to attend to the completion of the medical report despite our several requests for the hospital.”

[7] The respondent, in contending that the plaintiff’s claim does not comply with the provisions of section 24 of the Act submitted that the five months period from the time the powers of attorney were signed by the plaintiff on 17 December 2014 is not an unreasonable delay on the part of the hospital. It was further contended on behalf of the respondent that five months was not unreasonable because the prescription was not looming.

[8] The respondent’s attorneys criticized the plaintiff’s attorneys for failing to put enough effort in locating the doctor that treated the plaintiff at the hospital before completing the form.

[9] The explanation by the plaintiff for requesting Dr. Hovis to complete the form is contained in a letter addressed to the hospital. The hospital never responded to the letter requesting that the form be completed.

[10] The deponent to the answering affidavit, Mr. Chibuzo  the plaintiff’s attorneys of record, stated that they had attended at the hospital premises on several occasions seeking the assistance to have the form completed.

[11] According to the plaintiff’s attorneys, it was following the frustration and non-cooperation of the hospital that they approached Dr. Hovis, provided him with the medical record from the hospital and requested him to complete the form.

The issue

[12] The issue in this matter is whether the plaintiff failed to comply with the requirements of section 24, (2) (a) of the Act in that his claim form was not completed by the medical practitioner who treated him at the hospital after the accident, or the superintendent of the hospital.

[13] Section 24, (2) (a) of the Act reads as follows:

“(2) (a) The medical report shall be completed on the prescribed form by the medical practitioner who treated the deceased or injured person for the bodily injuries sustained in the accident from which the claim arises, or by the superintendent (or his or her representative) of the hospital where the deceased or injured person was treated for such bodily injuries: Provided that, if the medical practitioner or superintendent (or his or her representative) concerned fails to complete the medical report on request within a reasonable time and it appears that as a result of the passage of time the claim concerned may become prescribed, the medical report may be completed by another medical practitioner who has fully satisfied himself or herself regarding the cause of the death or the nature and treatment of the bodily injuries in respect of which the claim is made.”

[14] The approach to adopt when interpreting s 24 (2) (a) of the Act was stated by Petse JA in Pithey v Road Accident Fund,[2] as follows: 

“[18] I pause to say something about the primary purpose and objectives of the Act. It has long been recognised in judgments of this and other courts that the Act and its predecessors represent ‘social legislation aimed at the widest possible protection and compensation against loss and damages for the negligent driving of a motor vehicle.  Accordingly, in interpreting the provisions of the Act, courts are enjoined to bear this factor uppermost in their minds and to give effect to the laudable objectives of the Act. But, as the Full Court correctly pointed out, the Fund which relies entirely on the fiscus for its funding should be protected against illegitimate and fraudulent claims.”

[15] In paragraph 20 the SCA quoted with approval what was said in Multilateral Motor Vehicle Accident Fund v Radebe,[3] where Netstadt JA said:

“It is true that the object of the Act is to give the widest possible protection to third parties. On the other hand, the benefit which the claim form is designed to give the fund must be borne in mind and given effect to. The information contained in the claim form allows for an assessment of its liability, including the possible early investigation of the case. Also, it also promotes the saving of the costs of litigation. . . . These various advantages are important and should not be whittled away. The resources, both in respect of money and manpower, of agents and particularly of the fund are obviously not unlimited. They are not to be expected to investigate claims which are inadequately advanced. There is no warrant for casting on them the additional burden of doing what the regulations require should be done by the claimant. . . .’’

[16] As concerning the purpose of the form the court, in Pithey held:

“[22] . . .the purpose of the form is to enable the insurance company to "enquire into a claim" and to investigate it. It is designed to "invite, guide and facilitate such investigation". It follows, in my view, that, if an insurance company is given sufficient information to enable it to make the necessary inquiries in order to decide whether "to resist the claim or to settle or to compromise it before any costs of litigation are incurred", it should not thereafter be allowed to rely on its failure to make the inquiries.’’

[17] And about compliance with the purpose of section 24, the court said:

“[19] It has been held in a long line of cases that the requirement relating to the submission of the claim form is peremptory and that the prescribed requirements concerning the completeness of the form are directory, meaning that substantial compliance with such requirements suffices.  As to the latter requirement this court in SA Eagle Insurance Co Ltd v Pretorius reiterated that the test for substantial compliance is an objective one.”

[18] It is common cause in the present matter that the medical section of the form was completed by Dr. Hovis who is not a doctor who treated the plaintiff after the accident. The explanation for this is according to the plaintiff's attorney because the hospital failed to complete the form despite the request to do so.

[19] The respondent did not dispute the averment of the plaintiff's attorneys that they had requested the hospital to complete the form. It, however, contended that they did not afford the hospital reasonable time to complete the form and also prescription was not looming.

[20] It seems to me that there is no issue as concerning compliance with the peremptory requirements of the Act which concerns the submission of the form. The issue is about the directory requirement of the completion of the form. The authorities have in the later held that compliance is satisfied once it has been shown that there has been substantial compliance with the requirements. In this respect, the objective test is applied to determine substantial compliance.[4]

[21] About the issue of substantial compliance, both parties referred me to the unreported decision of Spilg J in Mphuti Lettie Limakatso obo Mojalefa Mphuti v  Road Accident Fund.[5] In that case, similar to the present, the court had to deal with a situation where the form was completed by Dr. Morare who was not the doctor who treated the child injured in the motor vehicle accident.

[22] The difference between the present case and that of Mphuti is that in that case there was no evidence of an attempt at asking the treating doctor or the superintendent at the hospital to complete the form. There is also no evidence that the treating doctor or the superintendent refused to complete the form.

[23] In dealing with the issue of a non-treating doctor completing the form, the learned judge said:

“50 . . . It seems to me that at the heart of s 24 (2) (8) is the primary evidence of the hospital records for otherwise it would not make sense for the superintendent to suffice, without more, as a satisfactory alternative declarant to the treating doctor. It appears that the court's attention was not directed to the significance of allowing for the superintendent, or for that matter, his or her representative, to sign. A superintendent would not have personal knowledge of the treatment received by the patient.

Accordingly, the purpose of his or her signature or that of a representative at the treating hospital, in satisfactory substitution for that of the treating doctor, must reside in the fact that the completion by such person of the medical report section of the RAF one form was sufficiently vouch for the details supplied accurately reflecting the contents of the treating hospital records.

Which brings one back to the treating doctor. In addition hospital treating doctors are unlikely to recall the specifics of every patient, they may not be exclusively treating the same patient and may be rotated. They are unlikely to have first-hand recall, but they would be able to confirm that theydid, provided they have sight of the hospital records."

[24] And in paragraph 53 the learned judge said:  

"53. There is a further difficulty created by the draftsperson of the RAF 1 form. The form requires the treating doctor to not only set out the treatment received at the hospital but also to deal with the future medical treatment that the patient might be currently receiving. It is difficult to see how an intern who might have been on duty in the emergency ward when the patient was brought in by ambulance would be able to complete this section. There can be no assumption that the patient will continue to receive treatment at the same hospital, particularly in the case of a motor vehicle injuries which, precisely because transport is being used, would suggested that the hospital would not necessarily be close to where the patient resides.”

[25] To emphasize what has already been stated earlier in this judgment, it has not been disputed that the plaintiff's attorneys did approach the hospital and requested that the treating doctor should complete the form. This includes attending at the hospital and making the same request. The hospital never responded to the request.

[26] In my view, the completion of the form by Dr. Hovis based on the hospital record that had been placed before him by the plaintiff’s attorneys of record amount to substantial compliance with the provisions of section 24 (2) (a) of the Act. It provides adequate information to assist the respondent to conduct its investigation and to determine whether the plaintiff has a valid claim against the fund. This includes calling the doctor who treated the plaintiff to verify the information contained in the form. Accordingly, the respondent's special plea stands to fail.

Order

[27] The defendant’s special plea is dismissed with costs.

 

 

                                               

E Molahlehi

High Court Judge;

Johannesburg

 

Representation:

For the Plaintiff: Adv M I E Ismail

Instructed by C H Oguike Attorneys

Defendant: Adv D Landman-Louw

Instructed by Lindsay Keller Attorneys.

Heard on:  15 November 2017

Delivered on:  16 February 2018

 

 

[1] Act number 56 of 1996.

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