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[2015] ZAWCHC 175
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Brown v Health Professionals Council of South Africa and Others (6449/2015) [2015] ZAWCHC 175; [2016] 2 All SA 62 (WCC) (23 November 2015)
THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 6449/2015
DATE:
23 NOVEMBER 2015
In
the matter between:
MOGAMAT
ISMA-EEL
BROWN
..........................................................................................
Applicant
And
HEALTH
PROFESSIONALS COUNCIL OF SOUTH
AFRICA
................................
1
st
Respondent
DR
APJ BOTHA
N.O
......................................................................................................
2
nd
Respondent
PROF
AA ADEN
N.O
......................................................................................................
3
rd
Respondent
DR
D IRSIGLER
N.O
.....................................................................................................
4
th
Respondent
DR
D.M. MANYANE
N.O
...............................................................................................
5
th
Respondent
THE
ROAD ACCIDENT
FUND
....................................................................................
6
th
Respondent
Coram
:
BOZALEK J
Heard:
2 November 2015
Delivered:
23 November 2015
JUDGMENT
BOZALEK
J:
[1]
The applicant applies to review a decision
by an Appeal Tribunal constituted under the auspices of the Health
Professionals Council
of South Africa, the first respondent, and
comprising of the medical practitioners who are the second to the
fifth respondents.
The decision was that the injuries which the
applicant sustained as a result of a motor vehicle accident in July
2010 are not ‘
serious’
,
as contemplated in Regulation 3(1)(b)(iii)(aa) of the Road Accident
Fund Regulations.
[2]
As further relief the applicant seeks a
finding that he has in fact sustained a serious injury as
contemplated in the aforesaid
Regulation, alternatively an order
remitting the matter back to an Appeal Tribunal constituted by first
respondent but comprising
different medical practitioners.
[3]
The application is opposed by the first to
fifth respondents whilst it would appear that the sixth respondent,
the Road Accident
Fund (‘RAF’), abides the decision of
the court.
BACKGROUND
[4]
The review application arises, generally
speaking, out of a new dispensation which has prevailed since July
2008 dealing with the
entitlement of a person who has been injured in
a motor vehicle accident to claim general damages from a statutory
insurer, namely,
the RAF. In a nutshell, general damages may now only
be claimed where a ‘
serious
injury’
has been suffered by the
claimant and where this has been either accepted by the RAF or proved
in the manner prescribed by regulation.
[5]
The rationale for the new dispensation and
a full description of the procedures which must be followed in order
to prove a ‘
serious injury’
are set out in paras [3 – 10] of
Road
Accident Fund v Duma and 3 similar cases
2013 (6) SA 9
(SCA) and it is unnecessary for me to repeat or
summarise that description.
THE
HISTORY OF THE APPLICANT’S CLAIM
[6]
The applicant was injured as a passenger in
a motor vehicle accident. On admission to hospital it was established
that he had sustained
a compression fracture to his C5 vertebrae and
damaged to the soft tissue of his cervical spine. On 28 July 2010 his
C5 vertebrae
was surgically repaired by means of a C5 corpectomy and
a C4-6 instrumented anterior fusion. He was discharged from hospital
after
some 5 days wearing a hard neck brace which he wore for
approximately 3 weeks. Thereafter he wore a soft neck brace for
another
month.
[7]
In December 2011 the applicant lodged a
third party claim form (RAF1) and, in July 2012, a serious injury
assessment report (RAF4
form) backed up by a medico legal report from
a neurosurgeon, Dr Z Domingo. A further such report, backed up by a
medico-legal
opinion from Dr T Le Roux, an orthopaedic surgeon, was
also lodged on behalf of the applicant. When nothing was heard from
the
RAF in response to these reports, summons was issued on behalf of
the applicant in February 2013 claiming damages, including the
sum of
R180 000.00 for general damages. Obviously, in order to be
awarded these general damages it was incumbent on the applicant
to
prove, in the prescribed manner, that he had sustained a ‘
serious’
injury as contemplated in sec 17 of the Act read together with the
Regulations.
[8]
In April 2013 the Fund directed the
applicant to submit himself to further medical assessment by Ms L
Pringle, an occupational therapist,
Dr R Marks, an orthopaedic
surgeon and Dr CF Kieck, a neurosurgeon. All of them examined the
applicant and furnished medico-legal
reports which concluded that the
applicant’s injuries were not serious. Finally, the applicant’s
attorney appointed
an occupational therapist, Ms M Stander, to
prepare a medico-legal report and this was duly submitted in order to
supplement those
of Drs Domingo and Le Roux.
[9]
In September 2013 the RAF advised the
applicant’s attorneys that it had accepted the report of Dr
Marks. In that report Dr
Marks evaluated the applicant’s WPI
(whole person impairment) at 4% and, under the ‘
narrative
test’
embodied in RAF 4 concluded
that the applicant was fit for all forms of work and by clear
implication, that he had not suffered
a serious injury. In a footnote
Dr Marks noted ‘
The narrative test
covers situations where mild or
moderate
objective impairment
may cause
significant disability
.
Good examples are a stiff ankle in a ballerina, loss of a little
finger in a concert pianist, or minor scars on the face or legs
of a
model’
.
[10]
In October 2013 the applicant’s
attorneys completed a RAF 5 notification of dispute challenging the
aforementioned assessment
relying also on a supplementary report by
Dr Le Roux containing his comments in respect of Dr Marks’
report.
[11]
The Appeal Tribunal (‘the Tribunal)’
was duly constituted and sat to consider the dispute on 13 October
2014. It found
that the applicant’s injuries could not be
regarded as serious. This decision was conveyed to the applicant’s
attorneys
in the form of the Tribunal’s resolution in the
following terms:
‘
1.
Injuries: Compression fracture of C5 vertebrae. Concussive head
injury
2.
Outcome: Neck pain. Cannot play soccer as used to.
3. Tribunal
Finding: The tribunal finds that the injuries are not serious.
There is only a small chance to develop adjacent
segment disease. The
narrative issues do not apply for future potential impairments. The
tribunal notes that normal activities
and sport and recreational
involvements have not been affected.’
[12]
In March 2015 the applicant’s
attorneys requested the first respondent to provide full reasons for
the decision in terms of
sec 5 of the Promotion of Administrative
Justice Act, 3 of 2000 (‘PAJA’) within 90 days of receipt
of the request.
No such reasons having been received within a month,
the applicant launched these review proceedings citing the following
main
grounds of review:
1.
the decision was taken arbitrarily or
capriciously and/or relevant considerations were not considered;
2.
the decision was not rationally connected
to the information before it;
3.
the decision was procedurally unfair in
that, despite the applicant’s request, the Tribunal/panel did
not include an occupational
therapist.
ANALYSIS
[13]
Before turning to consider the various
review grounds it is appropriate to rehearse the well-established
principles of our law relating
to the ambit of a court’s
discretion and powers on review, particularly in relation to the
distinction between a review and
an appeal.
[14]
In
Bato
Star
[1]
O’Regan J emphasised that:
‘
Although
the review functions of the Court now have a substantive as well as a
procedural ingredient, the distinction between appeals
and reviews
continues to be significant. The Court should take care not to
usurp the functions of administrative agencies.
Its task is to
ensure that the decisions taken by administrative agencies fall
within the bounds of reasonableness as required
by the Constitution.’
[15]
And at para [48] she stated further:
‘
In
treating the decisions of administrative agencies with
the appropriate respect, a Court is recognising the proper role
of the Executive within the Constitution. In doing so a Court
should be careful not to attribute to itself superior wisdom
in
relation to matters entrusted to other branches of government. A
Court should thus give due weight to findings of fact and policy
decisions made by those with special expertise and experience in the
field. The extent to which a Court should give weight to these
considerations will depend upon the character of the decision itself,
as well as on the identity of the decision-maker.’
[16]
Insofar
as the applicant alleges that the first respondent’s decision
was taken arbitrarily or capriciously questions of rationality
and
reasonableness come into play. In the Pharmaceutical matter
[2]
the Constitutional Court held:
‘
Decisions
[of administrative bodies] must be rationally related to the purpose
for which the power was given, otherwise they are
in effect arbitrary
and inconsistent with this requirement. It follows that in order to
pass constitutional scrutiny the exercise
of public power by
the executive and other functionaries must, at least, comply
with this requirement.’
[17]
However, Chaskalson P warned that:
‘
The
setting of this standard does not mean that the Courts can or should
substitute their opinions as to what is appropriate
for the
opinions of those in whom the power has been vested. As long as the
purpose sought to be achieved by the exercise of public
power is
within the authority of the functionary, and as long as the
functionary's decision, viewed objectively, is rational, a
Court
cannot interfere with the decision simply because it disagrees with
it or considers that the power was exercised inappropriately’.
[18]
Finally, in regard to the question of the
relevance or irrelvance of different factors in the decision-making
process the Supreme
Court of Appeal in
MEC
for Environment Affairs and Development Planning v Clairison’s
CC
stated as follows:
‘
[18]
We think it apparent from the extracts from her judgment we have
recited, and the judgment read as a whole, that the learned
judge
blurred the distinction between an appeal and a review. It bears
repeating that a review is not concerned with the correctness
of a
decision made by a functionary, but with whether he performed the
function with which he was entrusted. When the law entrusts
a
functionary with a discretion it means just that: the law gives
recognition to the evaluation made by the functionary to whom
the
discretion is entrusted, and it is not open to a court to
second-guess his evaluation. The role of a court is no more than to
ensure that the decision-maker has performed the function with which
he was entrusted. Clearly the Court below, echoing what was
said by
Clairisons, was of the view that the factors we have referred to
ought to have counted in favour of the application, whereas
the MEC
weighed them against it, but that is to question the correctness of
the MEC’s decision, and not whether he performed
the function
with which he was entrusted.
…
[22]
… The law remains, as we see it, that when a functionary is
entrusted with a discretion, the weight to be attached to
particular
factors, or how far a particular factor affects the eventual
determination of the issue, is a matter for the functionary
to
decide, and so long as it acts in good faith (and reasonably and
rationally) a court of law cannot interfere.’
THE
VARIOUS MEDICAL OPINIONS
[19]
Dr Z Domingo evaluated the applicant’s
whole person impairment (‘WPI’) at 11% and in his summary
concluded that
the applicant had sustained a significant cervical
spine injury with cervical fractures which required an instrumented
fusion of
his cervical spine. He concluded further that the applicant
would develop degenerative changes above and below the level of the
fusion, was likely to have on-going symptoms due both to the soft
tissue component of the injury as well as the anticipated
degenerative
changes, that he would require medical treatment for
pain control and that there was a significant chance of him needing
further
surgery. In his report proper he estimated that there was a
50% chance of the applicant requiring cervical spine surgery in
future.
This condition is also referred to ‘
symptomatic
adjacent segment disease
(SAG
)’.
[20]
Dr T Le Roux concluded his report as
follows:
‘
Alhoewel
die gevolge van die beserings wat tydens die ongeluk opgedoen is, nie
tot 30% WPI volgens die AMA gids aanleiding gegee
het nie, veroorsaak
hulle wel ernstige, langtermyn aantasting of verlies van ‘n
ligaamlike funksie soos item [5.1] vereis.’
[21]
Under the heading ‘
Funksionele
Inkorting
’ he stated:
‘
Weens
pyn en ongemak wat in sy nek ontwikkel:
Kan
hy net in ‘n sekere posisie lê.
Kan hy nie lank
met sy kop en nek in een posisie sit nie soos lees, televisie kyk,
lank in ‘n motor ry of lank ‘n motor
bestuur.
Kan
hy nie swaar voorwerpe optel of lank met sy arms voor hom uitgestrek
werk nie’
[22]
Dr Le Roux was also of the opinion that
there would be increased degeneration above and below the fused
vertebrae which would require
future treatment and he evaluated the
applicant’s WPI at 8%.
[23]
Dr R Marks, an orthopaedic surgeon,
evaluated the applicant’s WPI as 4% and, under the RAF 4,
narrative test, concluded as
follows:
‘
With
an excellent and functional outcome, mild symptoms and a full range
of movement, I regard him as fit for all forms of work
.
In general it is wise to avoid contact
sport after this kind of cervical injury, in spite of recent
literature that suggests that
this precaution is not necessary.
I do not identify
criteria to designate this injury as ‘serious’ in terms
of the narrative test. In my opinion he is
fit for any kind of work…
The prediction that he will suffer inexorable deterioration of
adjacent segments (ASD) is inaccurate,
…’
and proceeded to
furnish scholarly reasons for this conclusion.
[24]
Dr RA Kieck, a neurosurgeon, concluded in
his initial medico legal report that the applicant did not fall into
the category of fusion
patients prone to progressive degeneration ‘
as
he has got no pre-existing degeneration, he has a good fusion with a
normal sagittal balance of his neck and therefore the risk
of him
developing symptomatic adjacent degeneration which may need surgery,
must be very low and certainly not 50% as being stated
in the various
reports’
. He stated that he saw
no problem in the applicant going back to his previous job as a van
assistant.
[25]
In a supplementary report dealing with the
narrative test Dr Kieck stated that he found the applicant to be
‘
fully functional and able to do
whatever within certain limitations such as severe loading of his
neck or playing contact sport’
.
He concluded that he could not identify a loss or impairment of body
function which had a significant or severe consequence for
the
applicant presently or that might develop resulting in a significant
disability in the future.
[26]
Ms M Stander, an occupational therapist,
concluded that the applicant ‘
sustained
a serious and permanent injury to his neck that has long term
implications on his activity tolerance and activities of
daily
living. Degenerative changes may occur with probable surgery
anticipated from age 50+. Should this happen, pain will increase
and
his ADL’s (activities of daily living), including his work
would be increasingly affected. Considering all factors, he
is
considered capable of performing any semi-sedentary work with no more
than medium manual requirements with reasonable accommodation
until
normal retirement age. His current work falls within the category,
but not his job as a van assistant. He has been limited
in future
choices’.
It should be noted that
at the relevant time the applicant was working as a gardener/general
labourer.
[27]
Ms L Pringle, an occupational therapist
engaged by the RAF concluded that the applicant had ‘
made
a good recovery from a cervical injury’
… that ‘
slight tenderness
with extreme ranges of lateral flexion of his neck is not a
functional significance. Lateral flexion of the neck
is at best an
uncomfortable position for anyone …’
and that ‘
no functional impairment
has been identified in terms of the narrative test. He will be able
to perform any type of work that he
wants to. There are no
restrictions or accommodations applicable, nor is Occupational
therapy treatment recommended’
.
DISCUSSION
[28]
Thus there was an even divide between the
four medical specialists consulted, being two neurosurgeons and two
orthopaedic surgeons,
and the two occupational therapists, regarding
whether the applicant had suffered a ‘
serious
injury’
and no WPI evaluation of
the applicant exceeded 11%.
[29]
Having regard to the Regulations the result
was that the only basis upon which the applicant could be evaluated
as having suffered
a ‘
serious
injury’
was in terms of
Regulation 3(1)(b)(iii) which provides that:
‘
(
a)n
injury which does not result in 30 percent 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 bodily function ,
(bb) constitutes
permanent serious disfigurement;
(cc)
resulted in severe long term mental or severe long term behavioural
disturbance or disorder or…’
[30]
The
narrative test was discussed at length in a scholarly article
published in the South African Medical Journal in October 2013
[3]
.
There it is described as ‘
a
medical instrument prescribed by the Road Accident Fund which ‘stands
apart’ from the American Medical Association
(AMA) guides to
evaluation of permanent impairment’
and which cannot be defined or interpreted in terms of these. The
authors state that the Regulations do not provide any guidelines
to
the structure, content or criteria of the narrative test and that the
article is published by the HPCSA Appeals Tribunal as
a guideline to
the performance of the narrative test, as well as the required
structure, contents and criteria thereof.
[31]
The authors further explain that the need
for the narrative test arises where the injuries are found to have
resulted in less than
30% WPI according to the method of the AMA
guides and the medical practitioner nonetheless regards the injuries
as serious. They
explain that two reasons for the narrative test are
the failure of the AMA guides to take the ‘
circumstances
of a third party’
into account
properly or effectively and ‘
inherent
shortcomings of the AMA guides especially with respect to estimating
the life-altering impact of injuries that have resulted
in more
abstract and subjective impairments and suffering’
.
Commenting on the ‘
levels/degree
of changes in the ‘circumstances of a third party
’,
the authors state that a medical practitioner’s report:
‘
Should,
therefore, include comment by (such person) and/or the other relevant
experts, based on reported facts as well as application
of mindful
professional judgment, in relation to the level or degree of activity
limitations, participation restrictions and subjective
suffering,
i.e. the significance or otherwise of the changes to the life of the
injured person. Whereas it is not feasible to express
such opinions
in a rigid quantitative manner (eg a percentage rating of permanent
disability) it is both feasible and necessary
to express meaningful
semi-quantitative opinions using terminology, e.g. insignificant,
trivial, inconsequential, mild, moderate,
severe, intrusive,
overwhelming, devastating, significant’.
[32]
As Mr Maodi, who appeared on behalf the
respondents, submitted, these reports or opinions inevitably contain
a value judgment. This
of course applies not only to the medical
experts who examined and evaluated the applicant and applied the
narrative test but also
to the Tribunal which must in turn consider
these opinions and arrive at its own conclusions in regard to the
severity of the injury.
[33]
I turn to deal with the grounds of review
relied upon by the applicant. It was contended that the Tribunal’s
findings were
‘
incomprehensible’
in the light of the contrary medical opinions provided on behalf of
the applicant and that no reasons were furnished by the Tribunal
for
the rejections of these views; instead the Tribunal incorrectly
focussed on the prospects of the applicant developing adjacent
segmented disease in future. It was also contended that the
Tribunal’s finding that applicant’s normal activities and
sport and recreation involvement had not been affected was unfounded
and contradictory of its own finding.
[34]
The starting point is that the applicant
cannot make out a case for review of the impugned decision by
attempting to show that the
Tribunal’s findings were ‘
wrong’
for the simple reason that we are not here concerned with an appeal
and, secondly, at least half of the expert medical opinions
which
were obtained favoured the view which the Tribunal ultimately
adopted.
[35]
The applicant’s next complaint is
that the Tribunal provided no reasons for the rejection of the
findings of those experts
whose view it was that his injury was
serious. This is not correct, however. In his opposing affidavit the
presiding officer of
the Tribunal pointed out that Drs Domingo and Le
Roux based their findings of serious long term impairment only on the
risk of
deterioration and not actual evidence of permanent damage and
further that the factual narrative issues provided in those reports
did not meet the requirements of serious long term impairment
or loss of body function referred to in the narrative test;
similarly
that Ms Stander also relied on possible future degenerative changes
in reaching her finding. As the extracts from reports
of those
experts show, each of them did indeed rely, inter alia, on this
aspect of the applicant’s condition as contributing
towards his
‘
serious injury’
.
At the very least, however, the prospects of such future degenerative
change in the applicant’s condition was a disputed
issue when
the opinions of all the specialists were considered.
[36]
On behalf of the applicant Mr Bisschoff
also relied on two alleged misdirections on the part of the Tribunal.
Both of them have
to be gleamed from a critical reading of the brief
letter from the HPCSA dated 24 November 2014 setting out the
Tribunal’s
reasons for this decision. The first such
misdirection relates to the remark under the heading ‘
Outcome’
that the applicant cannot play soccer as he used to. However,
directly thereafter under the heading ‘
Tribunal
Finding’
it noted that the
applicant’s normal activities and sports and recreational
involvement had not been affected.
[37]
I do not consider that the Tribunal’s
decision and brief reasons as contained in its letter dated 24
November must be read
so critically and closely as to preclude any
other explanation for its findings or reasons. After the letter in
question was received
the applicant’s legal representative
wrote requiring full reasons within a period of 90 days but less than
a month later
launched the review proceedings without waiting for
these reasons. In the circumstances the first opportunity which the
first respondent
had to furnish full reasons came in its opposing
affidavit. These make it clear that it accepted that the applicant’s
physical
abilities, including his ability to play casual soccer, had
been limited by his injury. Nonetheless this factor, and others, did
not meet the requirement of serious long term impairment or loss of
body function referred to in the narrative test.
[38]
The
other misdirection relied upon by the applicant was the statement in
the brief reasons that ‘
the
narrative issues do not apply for potential future impairments’
.
To the extent that this means that future possible impairment could
not be considered as part of the narrative test, this is clearly
misconceived. However, the Tribunal stated its position in this
regard more clearly in the reasons it furnished in its opposing
affidavit, when it explained that it could not support ‘
a
diagnosis of serious long term impairment on the basis of future risk
only
’
[my
underlining]
.
In the circumstances of this matter this is not an irrational
position to hold. Apart from these considerations the question of
the
materiality of any alleged misdirection also arises since whether or
not an erroneous interpretation of the narrative test
or the law
renders the decision invalid depends on the materiality of the error.
As stated by Corbett CJ in
Hira
v Booysen
‘
Whether
or not an erroneous interpretation of a statutory criterion ….
renders the decision invalid depends on its materiality.
If, for
instance, the facts found by the Tribunal are such as to justify its
decision even on the correct interpretation of the
statutory
criterion, then normally (i.e. in the absence of some other review
ground) there would be no ground for interference’
.
[4]
[39]
Having regard to the preponderance of the
evidence on the question of the prospects of the applicant suffering
future degenerative
change, I consider that even if one accepts that
the statement of the Tribunal complained of was a misdirection, any
failure to
take into account the possibility of future degenerative
change in determining whether there was a serious injury is not a
sufficiently
weighty factor as to materially influence the Tribunal’s
decision as to the existence of a serious injury in the whole.
[40]
It was further contended on behalf of the
applicant that the Tribunal had failed to take into account various
relevant considerations
in reaching its decision. In making this
argument reference was made to various medical findings or prognoses
on the part of those
experts who concluded that the applicant had
suffered a serious injury. When these various examples are
considered, however, it
seems to me that this is merely a different
manner of stating that the Tribunal should have given more weight to
certain factors
and, possibly, less weight to others. As was
trenchantly pointed out
in Clairison’s
CC
where the original administrative
decision-maker is entrusted with the discretion to decide what weight
must be given to certain
factors it is not for the Court to
second-guess this and to substitute its opinion for that of the
decision-maker, even if it disagrees
with that functionary’s
assessment. To do so under the guise of relevance would be for the
Court to exercise a power of appeal
rather than a power of review.
[41]
Mr Bisschoff repeatedly emphasised that the
applicant’s functioning impairment interfered with his ability
to perform manual
work and to play soccer competitively. This
submission, however, takes the question of whether the applicant has
suffered a serious
injury as defined no further. In most cases where
there has been an appreciable WPI one would expect that this will be
reflected
in an impairment of the claimant’s ability to perform
certain physical functions. The question, rather, is at what stage
that impairment, although falling below thirty percent, nevertheless
has such far-reaching consequences for the claimant that his
injury
must nonetheless be seen as serious. In answering this question it is
useful to go back to the examples cited by Dr Marks,
namely, the
ballerina with a stiff ankle or the concert pianist who loses the tip
of his finger. These are, undoubtedly, extreme
examples but they
illustrate the point, namely, that one is looking for consequences of
an injury which take it appreciably beyond
the face value or WPI
assessment of the injury insofar as its consequences for the
applicant’s life, functioning or lifestyle.
[42]
The Tribunal was unpersuaded that such
consequences existed. Even were I clothed with appeal powers and
could substitute my decision
for that of the Tribunal, I can find no
decisive evidence which points unerringly, or even establishes on a
balance of probabilities,
that these consequences have been visited
upon the applicant. His physical impairment seem relatively limited
and appears not to
have had a significant effect on his career choice
or his recreational capacities or lifestyle. By way of example this
is not a
case of a middle-aged man manual labourer who is now
excluded from finding any work as a manual labourer as a result of
his physical
impairment. Nor is it a case of someone for whom playing
soccer was an extremely important component of his life and that has
now
been taken from him.
[43]
Mr Bischoff also launched an attack on the
first respondent’s approach to the correct application of the
narrative test based
on what its presiding officer stated in para
[65] of the opposing affidavit, namely, that although the AMA guides
and the narrative
test constitute two different tests of assessment
they are nonetheless related to each other. The deponent went on to
say:
‘
The
criteria under the AMA guides is always the starting point in the
performance of an assessment and would ordinarily give one
a good
indication as to the severity or seriousness of the injury, even
where the injury does not qualify as serious injury under
that
criteria.’
[44]
Applicant’s
counsel strenuously criticised this approach contending that it
amounted to a misdirection and was ‘
simply
wrong’
.
He submitted further that the narrative test was a completely
separate test and that for the first respondent to adopt an approach
where any regard was had to the result of the AMA guides test
revealed a fundamental flaw in its approach to the narrative test.
I
disagree. The Supreme Court of Appeal in Duma’s case ruled that
the first test i.e. the AMA guides test must first be undertaken
and
cannot be circumvented by immediately going to the narrative test. It
is also quite logical, in my view, that although the
narrative test
is separate that test cannot be applied in a vacuum and regard can be
had, as relevant background information, to
the outcome of the AMA
guides test. This viewpoint was shared by Pretorius J in
Maluka
v Road Accident Fund and others
[5]
when she stated in para [27] of her judgment:
‘
[27]
Although the applicant argues that the score of 14% WPI should have
been taken into account it cannot be disregarded as irrelevant.
The
narrative would have to be extreme to justify the Appeal Tribunal
finding that the applicant has suffered a ‘serious
injury’.’
For these reasons I
consider that this criticism of the first respondent’s approach
to the application of the narrative test
is unfounded.
[45]
Finally, the applicant raised a procedural
ground of review, namely, that no occupational therapist has been
appointed to sit on
the Tribunal and that its members therefore
lacked the necessary expertise to determine how the applicant’s
injuries impacted
upon his participation in all activities of daily
living, including work and participation in sport. For this reason,
it was contended,
they were in no position to reject Ms Stander’s
findings.
[46]
This
ground of review was not pressed in oral argument, understandably so.
In terms of Regulation 3(8)(b) the Tribunal must consist
of medical
practitioners with expertise in the appropriate areas of medicine.
The panel in question comprised a neurosurgeon, an
orthopaedic
surgeon, a family physician and a specialist physician. The first two
persons clearly have direct expertise in the
relevant area of
medicine, namely, a cervical spine injury. The latter two specialists
would, in the nature of their all-round
medical expertise, also be
qualified to deal with the issue in dispute. It does not follow from
Regulation 3(8)(b) that, should
the report of a particular medical
specialist or practitioner such as an occupational therapist serve in
front of them, the panel
is incomplete or improperly constituted
unless it too comprises an occupational therapist. Such an
interpretation or requirement
would be an example of what O’Regan
J referred to
Residents
of Joe Slovo Community, WC v Thubelisha Homes
[6]
when she stated:
‘
The
obligations of fair process imposed upon organs of State must be
approached with a clear eye on the purpose for which we insist
on
process. That purpose is to give affected parties an opportunity to
be heard on a decision before it is finally made. Fair process
improves the quality of decisions and establishes their legitimacy.
However, it should not result in unnecessary and prolix requirements
that may strangle government action.’
[47]
It also bears mentioning that the applicant
had a right to object to one or more of the appointments to the panel
in terms of Regulation
3(9)(c)(i). He chose, however, not to exercise
this right at least not in clear terms. Instead the applicant’s
legal representatives
were content to propose the appointment of an
occupational therapist adding the qualification that if this was not
done they trusted
that the Tribunal would accept the opinion of Ms
Stander. Needless to say this indirect attempt to fetter the
Tribunal’s
decision-making power was unjustified.
CONCLUSION
[48]
It follows from what I have said that I see
no basis to review the decision of the first respondent. Thus the
question of whether
the Court should substitute its own decision for
that of the Tribunal or remit the matter back to it does not arise.
It bears repeating
that the impugned decision was taken by a panel of
medical experts who considered all the medical reports before them,
at least
half of which supported the decision which they ultimately
took. That decision was, in so small part, a value judgment and it is
quite conceivable that even had there been no countervailing medical
opinions the Tribunal could justifiably have arrived at a
different
conclusion to that of the experts. For the Court to intervene in the
circumstances of this matter would be for it to
act as a court of
appeal, a role which is not the Court’s for sound
constitutional reasons. Doing so would incidentally tend
to undermine
the scheme of the legislative amendments to the RAF system and, if
widespread, would carry the potential to render
it unworkable. These
comments must not, however, be understood as suggesting that
decisions of the Tribunal in similar matters
are sacrosanct or immune
to review. Whether such decisions are sound, however, will depend in
each case on the particular circumstances.
There will, no doubt, be
cases where the conclusion whether to intervene is much more
difficult to make, particularly given the
inherent imprecision of the
concept of a ‘
serious injury’
.
[49]
In the circumstances the application for
review falls to be dismissed.
COSTS
[50]
There is no reason why costs should not
follow the result. The only qualification I add to this is that by
reason of the respondents’
filing their opposing affidavits
late there was a hearing on 28 June 2015 when the matter came up in
the unopposed court and was
postponed by agreement for hearing in
fourth division. In the circumstances I consider that the respondents
must bear the applicant’s
wasted costs arising out of that
hearing.
ORDER
[51]
The application is dismissed with costs
save for the costs occasioned by the postponement of the hearing on
28 June 2015 which costs
must be borne by the first respondent.
BOZALEK
J
APPEARANCES
For the
Applicants: Mr C Bisschoff
Instructed
by:
Sohn
Wood Attorneys
For the
Respondents: Mr T Maodi
Instructed
by:
Gildenhuys
Malatji Inc
c/o
Werksmans Attorneys
[1]
Bato
Staff Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) at para
[45]
[2]
Pharmaceutical
Manufacturers Association of South Africa and another: in re: Ex
Parte President of the Republic of South Africa
and Others
2000
(2) SA 647
(CC) at para [85]
[3]
The
Health Professionals Council of South Africa Serious Injury
narrative test Guidelines, by Drs HJ Heedling NB Mabuya, P
Engelbrecht,
KD Rosman, DA Barelle published in the South African
Medical Journal as SAMJ Vol 103 no 10 2013
[4]
1992
(4) SA 69
(A) at 93 G - H
[5]
Case
No 48032/2011 GPD
[6]
2010
(3) SA 454
(CC) at para [296]