Coughlan N O v Health Professions Council of South Africa & Others

Mr Justin Rothney Daniels was a pedestrian hit by a motor vehicle in a hit-and-run accident on 19 November 2009. He complained of lower back injury and a sore foot, and later presented at Tygerberg Hospital where he was diagnosed with a mild head injury. He exhibited aggressive and irrational behaviour which was initially attributed to substance abuse. The appellant, a curator acting on behalf of Mr Daniels, instituted a claim for damages against the Road Accident Fund (RAF). For the claim to succeed, Mr Daniels' injuries needed to be classified as 'serious' in terms of section 17 of the RAF Act, requiring an assessment showing a whole person impairment (WPI) rating of above 30% before applying the narrative test. Two psychiatrists, Dr Le Févre and Professor Zabow, independently assessed Mr Daniels as having a WPI exceeding 30%, indicating severe long-term mental and behavioral disturbance. However, the RAF obtained an assessment from Dr Kieck, a neurosurgeon, who disagreed and concluded that Mr Daniels had not suffered a brain injury but experienced severe psychotic episodes due to substance abuse. After two tribunals were set aside on review for irregularities, a third tribunal was constituted but concluded that Mr Daniels' injuries were non-serious according to the narrative test, largely based on Dr Kieck's opinion. The high court dismissed the third review application, and the appellant appealed to the Supreme Court of Appeal.

• Whether the powers conferred on the Road Accident Fund Tribunal are limited to determining the seriousness of the injury or extend to the issue of causation
• Whether in determining the seriousness of the injury, the Tribunal can consider the nexus between the accident and the resultant injury
• Whether the Tribunal was properly constituted with appropriate medical expertise
• Whether the Tribunal exceeded its statutory powers by making findings on causality
• Whether the high court misdirected itself by failing to decide all issues before it

1. The appeal succeeds with costs. 2. The order of the high court is set aside and substituted with: (a) The decision of the Tribunal that Mr Daniels' injuries were not serious and do not qualify in terms of the narrative test is reviewed and set aside. (b) The matter is referred back to the Tribunal which must comprise three psychiatrists and/or three psychiatrists and a clinical neuropsychologist for a decision on the seriousness of the injury. (c) The issue of the nexus between the Applicant's injuries and the accident is to be determined in the action proceedings already instituted under case number 4183/12. (d) The first, second and third respondents are to pay the applicant's costs jointly and severally, the one paying the other to be absolved.

The ratio decidendi is that the Road Accident Fund Tribunal's powers are narrowly circumscribed by legislation to determining the seriousness of injuries only, and do not extend to making findings on causation between the accident and the injury. Causation is a matter exclusively reserved for judicial determination by the courts. When assessing the seriousness of an injury, the Tribunal must confine itself to this assessment and not conflate it with causation issues. Any finding by the Tribunal on the causal nexus between an accident and injuries constitutes an excess of jurisdiction and is ultra vires. The Tribunal must be constituted with appropriate medical expertise relevant to the specific injury being assessed. A court hearing a matter must determine all issues placed before it for adjudication, particularly where the outcome has significant consequences for the parties and where appellate review may be sought.

The Court made obiter observations that had the Tribunal been properly constituted as agreed in the court order (with three psychiatrists and/or three psychiatrists and a clinical neuropsychologist), it would likely have reached an appropriate decision. The Court also noted that it was not in a position to definitively determine whether the Tribunal members met the prescribed requirements, but there was no evidence to suggest they did. The Court observed that there was no evidence that the court order of 19 November 2019 was communicated to the registrar, as it was evidently not complied with. The Court further commented that while Dr Kieck's report may have been relevant for assessing the physical aspects of Mr Daniels' injury, his conclusion regarding causality and psychiatric implications overstepped and should not have been determinative. The Court also remarked on the appropriateness of cost orders, noting that it saw no grounds for a cost order against the fourth to seventh respondents who acted under the auspices of the HPCSA.

This case is significant in South African jurisprudence as it clarifies the narrow scope of the Road Accident Fund Tribunal's powers under the RAF Act and Regulations. It reinforces the principle established in Road Accident Appeal Tribunal v Gouws that the Tribunal's mandate is strictly limited to assessing the seriousness of injuries and does not extend to making determinations on causation, which remains exclusively within the jurisdiction of the courts. The judgment provides important guidance on: (1) the proper constitution of tribunals according to the expertise required for the specific injury being assessed; (2) the distinction between assessing injury seriousness and determining causation; (3) the principle that courts should decide all issues placed before them to enable effective appellate review; and (4) the protection of claimants' access to courts on issues traditionally reserved for judicial adjudication. The case underscores that allowing tribunals to determine causation would be oppressive to claimants and effectively deny them access to justice. It also emphasizes the importance of compliance with court orders regarding the constitution of statutory tribunals.