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[2015] ZAWCHC 178
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JH v Health Professions Council of South Africa and Others (22407/14) [2015] ZAWCHC 178; 2016 (2) SA 93 (WCC) (25 November 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
In the matter
between
Case
No: 22407/14
DATE:
25 NOVEMBER 2015
JH
.........................................................................................................................................
APPLICANT
And
HEALTH
PROFESSIONS COUNCIL OF SOUTH AFRICA
......................
FIRST
RESPONDENT
Dr H EDELING
N.O
.....................................................................................
SECOND
RESPONDENT
Dr APJ BOTHA
N.O
........................................................................................
THIRD
RESPONDENT
Dr A LOUW
N.O
...........................................................................................
FOURTH
RESPONDENT
Dr E MUTASA
N.O
...........................................................................................
FIFTH
RESPONDENT
THE ROAD ACCIDENT
FUND SIXTH RESPONDENT
Coram
:
ROGERS J
Heard:
18 NOVEMBER 2015
Delivered:
25 NOVEMBER 2015
JUDGMENT
ROGERS
J:
[1]
The applicant is the
plaintiff in a pending action against the sixth respondent (‘the
RAF’) in which he claims damages
for injuries sustained in a
motor car accident on 18 September 2010. He was then aged 22. His
claim includes general damages, in
support of which he alleges that
he suffered a ‘serious injury’ as contemplated in the
proviso to s 17(1) of the
Road Accident Fund Act 56 of 1996
(‘the Act’). The RAF rejected the serious injury
assessment report submitted on his
behalf. The applicant notified the
first respondent’s Registrar that he disputed the rejection.
The second to fifth respondents,
being the doctors appointed by the
Registrar to serve on the appeal tribunal, considered and rejected
the appeal on 21 May 2014.
By way of the present application the
applicant seeks to have the tribunal’s decision set aside on
review. The application
is opposed by the first to fifth respondents
(for convenience I refer to them collectively as the respondents).
[2]
In the accident the
plaintiff suffered a fracture of the cervical spine. Initially he was
treated conservatively with a hard collar.
On 4 October 2010 he
underwent a discectomy and anterior fusion of the left C6/C7
vertebrae. Speaking very generally, his long-term
problems are neck
and shoulder pain and occipital headaches. There is also a
psychiatric dimension. As a teenager the applicant
had an episode of
depression. The accident triggered a further bout of depression. Each
bout of depression increases the risk of
further breakdown, a risk
which in his case is increased by the stress occasioned by his neck
injury.
[3]
The medical
practitioners on whose reports the applicant relied in his appeal to
the tribunal were: (i) Dr Burger, a general
practitioner, who
examined the applicant on 16 November 2011 and produced a report of
the same date; (ii) Dr Domingo, a neurosurgeon,
who examined the
applicant on 16 November 2011 and produced a report dated 10
September 2012; (iii) Dr le Fèvre, a
psychiatrist, who
examined the applicant on 16 July 2012 and produced a report dated 5
September 2012; (iv) Dr le Roux, an
orthopaedic surgeon, who
examined the applicant on 12 June 2013 and produced a report dated 15
October 2013.
[4]
On 6 March 2013 the
applicant was examined by Dr Steyn, an orthopaedic surgeon nominated
by the RAF. His report was also before
the tribunal.
[5]
The second to fifth
respondents are respectively a neurosurgeon, a physician, an
occupational physician and an orthopaedic surgeon.
[6]
The applicant’s
grounds of review are that (i) the tribunal acted arbitrarily
and capriciously; (ii) it failed to consider
relevant considerations;
(iii) its decision was not rationally connected to the
information before it; (iv) its decision
was procedurally
unfair. The last of these grounds was based on a criticism that the
tribunal rejected Dr le Fèvre’s
assessment despite the
fact that its members did not have psychiatric expertise.
Condonation
in respect of s 7(1) of PAJA
[7]
The applicant took the
view that the 180-day period specified in s 7(1) of the
Promotion of Administrative Justice Act 3 of
2000 (‘PAJA’)
for the bringing of the review application expired on 21 November
2014, being 180 days after the applicant’s
attorneys were
notified of the tribunal’s decision on 27 May 2014. The review
application was issued on 15 December 2014,
ie about three weeks
late. The applicant seeks condonation in terms of s 9(2) of
PAJA.
[8]
The 180 day-period
starts to run from the date on which the aggrieved party becomes
aware of the administrative action and the reasons
for it or might
reasonably have been expected to have become aware of the action and
the reasons for it. As will appear from the
next part of this
judgment, the applicant requested reasons but these were not
forthcoming and he launched the review application
without them. Had
reasons been furnished, the 180-day period would have been reckoned
from the date they were furnished and this
application would thus
almost certainly not have been out of time.
[9]
On the assumption that
the 180 day-period must, because of the institution of proceedings in
the absence of reasons, be calculated
from 27 May 2014, it was
nevertheless not unreasonable for the applicant and his advisers to
hold matters in abeyance pending the
anticipated receipt of reasons.
Furthermore, the applicant has explained that there were certain
difficulties in finalising the
papers when the file was transferred
from one attorney to another within the firm representing him.
Counsel was unexpectedly overseas
when the new attorney wished to
discuss certain issues.
[10]
The delay was not very
great. The respondents have not shown any prejudice. Although they
did not concede that condonation should
be granted, Mr Maodi, who
appeared for them at the hearing, did not address me on the issue. I
am satisfied that condonation should
be granted in the interests of
justice.
The request
for reasons
[11]
On 2 July 2014 the
applicant’s attorneys requested reasons for the tribunal’s
decision in terms of s 5 of PAJA.
The tribunal did not furnish
reasons within the 90-day period specified in s 5(2) or at any
time prior to the launching of
these proceedings. In oral argument Mr
Maodi sensibly abandoned the respondents’ contention that the
letter notifying the
applicant’s attorneys of the appeal
outcome contained reasons.
[12]
Section 5(3) provides
that if an administrator fails to furnish adequate reasons for an
administrative action
‘…
it must,
subject to subsection (4) and in the absence of proof to the
contrary, be presumed in any proceedings for judicial review
that the
administrative action was taken without good reason.’
[13]
Mr Branford, who
appeared for the applicant, submitted that unless the 90-day period
for furnishing reasons has been extended in
terms of s 9, an
administrator is precluded, in review proceedings, from adducing
evidence to show that the action was not
taken without good reason.
He argued that if it were otherwise an administrator could with
impunity disregard the duty to furnish
reasons.
[14]
I disagree. If an
extension is granted in terms of s 9 and reasons are furnished
within the extended period, the administrator
will not have failed to
furnish reasons within the meaning of s 5(3) and the presumption
created by that subsection would
not be operative. Section 5(3) deals
precisely with the position where review proceedings are instituted
against the backdrop of
an administrator’s failure to furnish
adequate reasons. The words ‘in the absence of proof to the
contrary’ mean
that the administrator may in the review
proceedings put up evidence to justify his or her decision. This does
not mean that the
administrator’s previous failure to furnish
reasons is without consequence. Firstly, his failure will trigger the
presumption
in s 5(3) and thus shift the burden of proof to the
administrator (see Hoexter
Administrative
Law in South Africa
2
nd
Ed at 482;
Bader v
SA Council for Social Services Profession & Another
[2015]
ZAGPPHC 318 para 17). Second, if the aggrieved party, on reading the
reasons contained in the answering papers, is satisfied
with them and
abandons the review, he would ordinarily be entitled to costs.
[15]
Mr Maodi conceded that
the respondents bore the onus of displacing the presumption created
by s 5(3). The presumption (that
the action was taken ‘without
good reason’) does not have its exact correlative in the
grounds of review set out in
s 6(2). Generally speaking, action
taken ‘without good reason’ would infringe the
constitutional requirement of
rationality (cf s 6(2)(i)), would
be arbitrary and capricious (s 6(2)(e)(vi) and would be so
unreasonable that no reasonable
administrator could have so acted
(s 6(2)(h)). There may be overlap with other grounds of review
as well but the onus does
not automatically shift in respect of all
grounds of review. For example, if an applicant complains of
procedural unfairness or
bias or bad faith, a failure to furnish
reasons would not result in the administrator bearing the onus of
disproving such complaints.
[16]
In the present case it
seems to me that, if the tribunal has discharged the burden of
proving that its decision was taken not without
good reason, it will
for all practical purposes have refuted all the applicant’s
grounds of review. The tribunal does not,
however, have to prove, as
Mr Branford suggested in argument, that the applicant did not sustain
a serious injury. In terms of
reg 3(3)(d)(i) the RAF must reject a
claimant’s serious injury assessment report if the RAF ‘is
not satisfied that
the injury has been correctly assessed’. It
is against this rejection that the claimant may appeal in terms of
reg 3(4).
The tribunal’s powers are set out in reg 3(11), one
of which is to confirm the RAF’s rejection of the claimant’s
serious injury assessment report. The tribunal could rationally and
properly have rejected the applicant’s appeal if it was
for
good reason not satisfied by the evidence placed before it that the
applicant had suffered a serious injury.
The
definition of ‘serious injury’
[17]
Certain injuries are,
in terms of reg 3(1)(b)(i), expressly excluded as serious injuries.
The applicant’s case is not excluded
by any of these. In terms
of reg 3(1)(b)(ii) an injury is serious if it has resulted in a 30%
or more ‘Impairment of the
Whole Person’ (‘WPI’)
as provided in the American Medical Association’s Guides to the
Evaluation of Permanent
Impairment. The applicant’s case does
not rise to this threshold. This leaves the so-called narrative test
in reg 3(1)(b)(iii),
of which items (aa) and (cc) are of potential
relevance, namely whether the injuries
‘
(aa) resulted
in a serious long-term impairment or loss of a body function’
or
‘
(cc) resulted
in severe long-term mental or severe long-term behavioural
disturbance or disorder’.
[18]
The words ‘serious’
and ‘severe’ in these items are not defined. They connote
a degree of impairment or
disturbance or disorder which cannot be
fixed by quantitative measure. The assessment requires a value
judgment though one to be
performed on the basis of a correct
interpretation of the words used in the narrative test. Dictionary
definitions of ‘serious’
in a context appropriate to the
narrative test include ‘having important or dangerous
consequences; critical’; ‘approaching
the critical or
dangerous’ while definitions of ‘severe’ include
‘inflicting great pain or distress; of
a serious or
considerable degree or extent; grave’; ‘unsparing;
pressing hard; hard to endure’.
[1]
In ordinary parlance the word ‘severe’ connotes to my
mind a greater intensity than ‘serious’. This contrast
is
reflected in the definitions in the
Shorter
English Oxford Dictionary
:
‘serious’ – ‘important; grave, having
(potentially) important, esp. undesired, consequences; giving cause
for concern; of significant degree or amount’; ‘severe’–
‘disagreeably intense, unpleasantly extreme;
causing hardship,
pain or suffering by its degree of extremity’. Since the
lawmaker chose to use ‘serious’ in
items (aa) and (bb)
and ‘severe’ in item (cc), it is reasonable to infer that
some difference of degree was intended.
The distinction may have been
drawn because impairment or loss of body functions was regarded as
more tangible than mental or behavioural
disturbances and disorders.
[19]
The purpose of limiting
non-pecuniary damages to cases of ‘serious injury’ must
have been to introduce a significant
limitation on the RAF’s
liability for general damages. In context, ‘serious’ and
‘severe’ should
not be regarded merely as ‘not
trivial’, since trivial cases are unlikely in the past to have
placed a significant
burden on the public purse. On a continuum from
trivial at one extreme to catastrophic at the other, descriptors
which come to
mind are mild, moderate, serious and severe. That which
is ‘serious’ must be more intense than ‘moderate’.
And that which is ‘severe’ must be more intense than
‘serious’.
[20]
Seriousness and
severity must take into account the victim’s particular
circumstances. While some impairments, disturbances
or disorders
might be serious or severe for whomsoever suffers them, others might
only attain these thresholds because of the victim’s
chosen
profession or pursuits (the ballerina’s toe or violinist’s
finger).
[21]
In the case of items
(aa) and (cc) the impairment, disturbance or disorder must be
‘long-term’. This does not present
a difficulty in this
case. The applicant’s current symptoms are likely to be
permanent.
[22]
The manner in which
pain is accommodated in the narrative test is not clear. Item (aa)
requires an impairment or loss of a body
function. Pain is not per se
the impairment or loss of a body function. Depending on its
intensity, pain may give rise to an impairment
of a body function.
The ability to concentrate, for example, could aptly be described as
a body function (a function of the brain)
and might be impaired by
pain. I rather doubt whether pain per se could be described as a
mental disturbance or mental disorder
though again it might,
depending on its intensity, cause a mental or behavioural disturbance
or disorder (for example, depression).
Review, not
appeal
[23]
Where the RAF’s
rejection of a claimant’s serious injury assessment report is
disputed, the lawmaker has entrusted to
the tribunal the function of
determining whether or not to uphold that rejection. There is no
appeal from the tribunal to this
court. The distinction between
appeal and review must not be blurred (
Bato
Star Fishing Pty Ltd v Minister of Environmental Affairs & Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 45). Bearing in mind the incidence of onus in this case, I
cannot set aside the tribunal’s decision if the tribunal
has
shown that it did not act arbitrarily, capriciously or irrationally.
The mere fact that I might on the merits have reached
a different
conclusion would not justify a finding that the tribunal acted
arbitrarily, capriciously or irrationally (
Road
Accident Fund v Duma and Three Similar Cases
2013
(6) SA 9
(SCA) para 19;
Brown
v Health Professions Council of South Africa & Others
Case
6449/2015 WCHC paras 13-18 and 40 (as yet unreported judgment of
Bozalek J dated 23 November 2015); cf
MEC
For Environmental Affairs & Development Planning v Clairison’s
CC
2013 (6) SA 235
(SCA) para 18). Appropriate respect for the administrative agency in
the present case is particularly apposite, bearing in mind
that one
is concerned with a question of medical judgment in regard to which
the members of the tribunal, unlike the court, have
qualifications
and expertise.
The
evidence before the tribunal
WPI scores
[24]
The WPI scores given by
the various doctors for the applicant’s injuries were as
follows:
·
Dr Burger –
6%;
·
Dr Domingo –
11%;
·
Dr le Fèvre
– 4% (spinal) and 0% (psychiatric);
·
Dr le Roux
– 9%;
·
Dr Steyn - 11%.
[25]
The applicant was thus
not close to the WPI threshold of 30%.
Reduced
mobility?
[26]
Dr Burger, who examined
the applicant in November 2011, noted ‘some impediment’
of cervical spine movement and range
of motion. He furnished the
degrees of various motions but did not indicate how far these
deviated from the norm.
[27]
Dr Domingo, who also
examined the applicant in November 2011, noted ‘a mild
reduction in his range of neck movements in all
planes’.
[28]
Dr Steyn, who examined
the applicant in March 2013, reported ‘mild restriction’
in neck flexion but full extension and
full left and right rotation.
[29]
Dr le Roux, who
examined the applicant in June 2013, stated that despite the C6/C7
fusion neck movement was normal.
Current
pain and neck stiffness
[30]
Dr Burger reported that
the applicant suffered neck pain and stiffness when required to sit
in a static ergonomic position or to
look up for long periods or to
rotate the head repeatedly. The applicant thus no longer had the
ability ‘to comfortably move
and maintain the neck in the
normal positions of posture that he could before the accident’.
This negatively affected his
‘general ability to lead a normal
life at a social, occupational and/or recreational level’. The
applicant was not,
at the time he saw Dr Burger, taking analgesics
for pain.
[31]
Upon examination by Dr
Domingo the applicant experienced ‘mild pain at the extremes of
movement’ but there was no point
of tenderness and axial
loading did not induce any pain. Dr Domingo recorded that the injury
had left the applicant with neck pain
and stiffness due to the
associated soft tissue injury of the neck and as a result of the
increased stresses placed on the levels
above and below the fusion.
The applicant complained of experiencing neck pain and muscle spasm a
few times a week, the pain being
mechanical in nature and worsening
with heavy physical work. Dr Domingo classified the neck pain and
spasm as ‘mild to moderate
in severity’, opining that the
applicant was ‘mildly disabled by his pain’. The
applicant did not complain of
headaches. Dr Domingo anticipated that
the applicant would require intermittent treatment every year with
analgesics and anti-inflammatory
medication and would need ongoing
physiotherapy. He reported that the applicant’s neck pain and
discomfort did not interfere
significantly with his studies (he was
then a student) or with playing golf or with his social activities.
The injuries had not
had a significant impact on the applicant’s
lifestyle though his lifestyle was likely to become ‘more
compromised over
the course of time’.
[32]
Dr Steyn recorded that
the applicant complained of ‘intermittent pain in the left
shoulder, on a daily basis’, the pain
being worse when he had
been studying for long periods with the neck in a slightly flexed
position. The applicant also reported
that he suffered occipital
headaches three to four times a week, each lasting about half a day.
Lifting heavy weights did not aggravate
his neck pain. The pain did
not interfere with his golf or disable him from performing his
work-related activities normally. Dr
Steyn considered that the
applicant would be able to continue working to his usual retirement
age in his chosen profession.
[33]
Dr le Roux, who saw the
applicant a couple of months later, reported that the applicant
complained of intermittent neck pain. It
sometimes felt as if a knife
was being pressed into his left shoulder. He struggled to sleep. When
he lay for long periods his
back became sore. Lengthy sitting, for
example in front of a computer or when doing laboratory work, brought
on neck and lower
back pain. Driving for long periods caused neck
pain but the injury not interfere with his golf. He also complained
of intermittent
occipital headaches. Dr le Roux considered that with
appropriate adjustments the applicant should be able to work as a
chemical
researcher and lecturer until normal retirement age. The
main adjustments would be that he should not sit with his neck in one
position for lengthy periods or lift and handle heavy objects. His
productivity, capacity for work and working hours might be negatively
affected by future degeneration.
Degeneration
and further surgery
[34]
Dr Burger did not
express an opinion on degeneration in adjacent vertebrae or the need
for further surgery. This is understandable,
given that he is a
general practitioner.
[35]
Dr Domingo stated that
the applicant would ‘almost certainly’ develop
‘accelerated degenerative changes at the
C5/C6 level’
(the vertebrae immediately above the fused C6/C7 vertebrae) and this
would result in his developing ‘increasing
symptoms’. He
referred to a medical article establishing that ‘symptomatic
adjacent segment disease occurs at a relatively
constant incidence of
2,9% per year during the ten years following an anterior cervical
fusion’ and that two-thirds of all
patients in whom new disease
developed would require further surgery. He concluded that the
applicant would over the next 40 years
(his working life) ‘develop
accelerated degenerative changes’ and had ‘a 50% risk of
requiring additional surgical
intervention’, namely ‘extending
the anterior fusion to the adjacent level’.
[36]
Dr Domingo did not
record any pre-existing problems in the vertebrae and discs
immediately above and below the C6/C7 fusion. (Among
the medical
records to which he had access were MRI and CT scans of the cervical
spine performed in September 2010.)
[37]
I pause here to observe
that the logic of Dr Domingo’s conclusion is not self-evident
from the premises. If the risk of adjacent
degeneration is a risk
which, if it eventuates, will manifest itself in the first ten years
and at a constant rate of 2,9% per
annum, I would have thought that
the likelihood of the risk eventuating over ten years would be 29%.
If two-thirds of the persons
in whom the risk eventuates require
future surgery, about 19% of persons similarly placed to the
applicant would eventually need
an anterior fusion of the adjacent
level. Furthermore, one would have thought that, if adjacent
degeneration had not in the applicant’s
case manifested itself
within the first two years, the period of future risk would only be
eight years, reducing the aggregate
risk to about 23%.
[38]
With reference to
adjacent neck structures, Dr Steyn noted a large osteophyte (bony
excrescence) extending from the
antero-inferior
margin of the C5 vertebra. The C5/C6
intervertebral discs and the C7/T1 intervertebral discs appeared to
be normal radiologically.
Dr Steyn observed that the medical research
referenced by Dr Domingo found that adjacent segment disease occurred
at a constant
incidence of 2,9% per annum during the first ten years
after surgery. The authors of the paper suggested that 25% of
patients who
undergo a cervical fusion develop adjacent disc disease.
(This appears more consistent with the stated incidence of 2,9% over
ten
years.) Dr Steyn added that the authors qualified this finding by
stating their belief that the adjacent disease ‘was the
result
of progressive cervical spondylosis at adjacent levels’ and was
not caused by the arthrodesis (the fusion) itself.
The article
contained a further finding that, in a group of patients under the
age of 50 who had few or no degenerative changes
at the adjacent
levels before the new disc herniation developed (in the present case,
the ‘new disc herniation’ was
caused by the fracture
sustained in the accident), only 9% developed adjacent disc disease.
The higher incidence of disc degeneration
was thus only applicable to
patients who already had degenerative disc disease prior to the
fusion.
[39]
Dr Steyn concluded that
while it was possible that the applicant would require extension of
the fusion in later years this was not
a probability.
[40]
Dr le Roux recorded
that there was spondylosis (degeneration) and a benign osteophyte at
the C5/C6 level. (Dr Domingo did not note
these features. Dr Steyn
mentioned the osteophyte but not the spondylosis.) Dr le Roux stated
that according to statistics there
was a 25% chance that following a
fusion a patient would develop adjacent spondylosis. (He did not
mention the source of this information
but it was presumably the same
research as Dr Domingo and Dr Steyn cited.) He considered that in the
applicant’s case it
was the C5/C6 level which had the greatest
chance of suffering degeneration, noting that there was already
spondylosis at that
level.
[41]
He concluded later in
his report that, if symptomatic spondylosis occurred at an adjacent
level, an extension of the fusion to the
C5/C6 level might be needed.
The likelihood that a fusion would have to be performed was 75% and
would take place at some stage
after the applicant turned 45.
[42]
The precise import of
this conclusion is not clear. If Dr le Roux is saying that the
applicant stands a 75% chance of having to
undergo a C5/C6 fusion at
some stage in the future, this does not appear consistent with the
research cited by Dr Domingo and Dr
Steyn. The more plausible
construction of Dr Le Roux’s report is an opinion that, if the
applicant develops degeneration
at the C5/C6 level (of which,
according to the earlier part of his report, there is a risk of 25%),
it is then very likely (75%
probability) that the degeneration will
eventually have to be treated with an extension of the existing
fusion. The 75% probability
is not explained though is not very
different from the two-thirds likelihood mentioned in Dr Domingo’s
report.
[43]
Included in the papers
is a radiological report by Drs Schnetler Corbett & Partners
dated 6 March 2013. This appears to be the
report with reference to
which Drs Steyn and le Roux made their observations regarding the
C5/C6 level. The report, apart from
noting the fusion, stated that
there was earlier spondylosis with a prominent anterior osteophyte at
the C5/C6 level. Disc space
above and below the fusion was, however,
well maintained with no signs of degenerative disc pathology
currently visible.
[44]
Although the reports
are not specific about the symptoms which are likely to be caused if
there is adjacent disease and an extended
fusion, it may be accepted
that the applicant’s pain and stiffness would be somewhat
greater.
Psychiatric
effects and risks
[45]
Dr le Fèvre
reported that as a teenager the applicant had a major depressive
episode precipitated by the termination of a
romantic relationship.
Anti-depressant medication was prescribed and he recovered. His
mental health was good for about eight years.
Soon after the accident
the applicant noticed a return of his depressive symptoms. He
consulted a psychiatrist and was put back
on anti-depressants. These
helped, and he was symptom-free when he saw Dr le Fèvre. (The
report does not indicate whether
the applicant has remained on
prophylactic anti-depressant medication.)
[46]
Dr le Fèvre
described the applicant’s depression as being ‘in
remission’ with no particular stress at present.
Because the
applicant had no psychiatric symptoms of note, he scored 0% WPI as
measured by the AMA Guides relating to mental and
behavioural
disorders.
[47]
Dr le Fèvre
stated that the accident had precipitated a Major Depressive Disorder
(MMD). As a rule, each MDD episode ‘worsens
the prognosis’.
The applicant is thus ‘at greater risk of another breakdown
than he would have been if he had not had
the accident’. Having
a damaged neck ‘could well be an added stress in precipitating
another relapse’.
The
doctors’ ‘serious injury’ conclusions
[48]
I have attempted fairly
to state the main factual findings of the various doctors. For
convenience I shall refer to the non-psychiatric
findings as
orthopaedic findings (ie the findings relating to neck pain,
stiffness, headaches and the risk of adjacent disease
and future
surgery). In the case of Dr Burger and Dr le Roux, their opinion that
the applicant had suffered a ‘serious injury’
in terms of
item (aa) of the narrative test was essentially a conclusion or value
judgment on their orthopaedic findings. In the
case of Dr Steyn, his
contrary opinion was similarly a conclusion or value judgment on his
orthopaedic findings.
[49]
Dr Domingo, apart from
recording his orthopaedic findings, noted the psychiatric findings of
Dr le Fèvre. He concluded that
the applicant would have
ongoing neck pain and discomfort and would probably require further
surgical intervention. In addition,
his risk of depression had
increased. This would impact on all aspects of his life. He was thus
of the opinion that the applicant’s
injury was severe and that
he would ‘continue to suffer permanent and serious long-term
impairment in respect of his work
and personal life’. This
seems to be a conclusion based on a mixture of orthopaedic and
psychiatric findings. However, his
formal conclusion in the
accompanying RAF4 form was limited to item (aa) of the narrative
test.
[50]
Dr le Fèvre,
apart from recording his own psychiatric findings, noted the
orthopaedic findings. He concluded that the applicant
met both items
(aa) and (cc) of the narrative test.
The
tribunal’s modus operandi and reasons
[51]
Prior to meeting on 21
May 2014 the members of the tribunal individually studied and
analysed the documentation relating to the
applicant’s case and
to the other cases they considered on that day.
[52]
Dr Edeling, the
neurosurgeon who made the main answering affidavit for the
respondents, set out the matters which the members of
the tribunal
noted and their views on those matters. Mr Branford submitted that Dr
Edeling could not testify about the independent
preparations
undertaken by the other members of the tribunal. Because only Dr
Mutasa made a confirmatory affidavit, Dr Edeling’s
evidence was
hearsay insofar as Drs Botha and Louw were concerned. I reject that
argument. The tribunal’s members are persons
of professional
standing. Unless the reasons given in the opposing papers justify a
finding that they could not have read all of
the material before
them, I have no reason to doubt that they prepared for the
applicant’s appeal in accordance with the
general modus
operandi described by Dr Edeling. Furthermore Dr Edeling’s
personal participation in the deliberations would
have enabled him to
conclude that his co-panellists were familiar with the various
reports.
[53]
According to Dr
Edeling, the members of the tribunal noted the key features of each
doctor’s findings. Except in regard to
the likelihood of
adjacent disease and future surgery, the tribunal in essence accepted
the orthopaedic findings of the various
doctors which, despite some
minor differences, were – unsurprisingly – broadly
similar. The tribunal was of the view,
however, that the conclusions
reached by Drs Burger, Domingo and Le Roux, to the effect that the
applicant’s injuries were
‘serious’ within the
meaning of item (aa), were not supported by the findings or by
further explanation.
[54]
In regard to the
likelihood of adjacent disease and future surgery, two of the
tribunal members, Dr Edeling and Dr Mutasa, had expertise
in the
field of spinal injuries and surgery. Dr Edeling said that both of
them were aware of scientific knowledge that, following
spinal fusion
surgery, the risk of extension of fusion in later years was less than
50%. Various studies found the incidence of
extension to range from
15% to 25%. The tribunal thus accepted Dr Steyn’s opinion that
the applicant’s risk of future
surgery amounted to a
possibility but not a probability.
[55]
Dr Edeling added that,
even if the risk of further surgery amounted to a probability, this
would not without more justify classifying
an injury as ‘serious’
for purposes of the narrative test.
[56]
In regard to Dr le
Fèvre’s psychiatric findings, the tribunal noted that
the risk of a relapse into depression amount
to ‘an
unquantified possibility’. They did not regard this as
satisfying the requirements of the narrative test.
[57]
Overall, the tribunal’s
finding was that the applicant’s injuries could not be regarded
as ‘serious’.
[58]
I do not regard the
tribunal’s views on the various reports or its ultimate
conclusion as irrational. The fact that four of
the five doctors
whose reports served before the tribunal concluded that the
applicant’s injuries were ‘serious’
does not in
itself justify a finding of irrationality. The tribunal, in this
instance made up of four doctors, was not only entitled
but obliged
to bring its own expertise and professional judgment to bear on the
case.
[59]
The complaint that they
did not have the benefit of examining the applicant is misconceived
because they accepted the general tenor
of the orthopaedic and
psychiatric findings. What was important in this case was the value
judgment to be passed on the orthopaedic
and psychiatric findings
which were broadly uncontentious. The same applies to the complaint
that the tribunal should not have
rejected the appeal without
directing that further medical reports be obtained (something which
it was entitled but not obliged
to do – the
Duma
case supra para
26). The material before the tribunal did not indicate that the
objectively verifiable facts regarding the applicant’s
condition were materially in dispute. Merely increasing the headcount
of value judgments on one side or the other could not have
assisted
the tribunal.
[60]
I think the tribunal
was justified in saying that the doctors who assessed the applicant’s
injuries as ‘serious’
under the narrative test did so
without providing adequate reasons or explanation. To be fair, it may
sometimes be difficult to
explain or provide reasons for why one
considers a stated set of symptoms and sequelae to be serious or
severe for purposes of
the narrative test but this simply highlights
the point that, once the factual findings are established, the
ultimate conclusion
is a value judgment. The tribunal’s value
judgment that the applicant’s injuries are not serious for
purposes of the
narrative test is no more an unreasoned conclusion
than that of the four doctors who expressed the opposite view.
[61]
However, I would in the
present case have expected the doctors who concluded that the
applicant’s injuries were serious to
have gone further than
they did in explaining their opinions. In regard to item (aa) of the
narrative test, the doctors needed
to explain what long-term
impairment or loss of body function the applicant had suffered as a
result of his injuries. As I have
already observed, pain in itself
does not constitute the impairment of a body function. The various
doctors considered that the
applicant would be able to work to normal
retirement age in his chosen career. The applicant’s only
leisure activity mentioned
in the reports is golf which he apparently
continues to enjoy without pain. The applicant’s pain, which
can be treated to
some extent with analgesia and physiotherapy and
the occasions for which can be reduced by manageable lifestyle
adjustments (such
as not holding particular postures for lengthy
periods), does not, as I read the reports, rise to the level of
seriously impairing
any of the applicant’s body functions (such
as concentration or physical activity of a kind in which he would
normally engage).
Dr Domingo, it will be recalled, described the
applicant’s neck pain and spasm as ‘mild to moderate’
and said
that the applicant was ‘mildly disabled by his pain’.
While neck mobility (which is a body function) has been adversely
affected, the negative effect appears to be relatively modest.
[62]
The tribunal’s
conclusion that the applicant did not face adjacent disc disease and
future surgery as a probability seems
to me to have been one that was
legitimately open to them. I have already noted that the
quantification of this risk by Dr Domingo
and Dr le Roux is not
self-evidently justified by the research to which they refer.
[63]
The tribunal did not
advert to Dr le Roux’s observation of existing spondylosis at
the C5/C6 level, a circumstance which may
place the applicant at
greater risk of adjacent disc disease. The fact that Dr Domingo, who
saw the MRI and CT scans performed
in September 2010, did not observe
the pre-existing spondylosis is puzzling. The radiological report of
6 March 2013, while recording
earlier spondylosis at the C5/C6 level,
stated that there were no signs of degenerative disc pathology
currently visible. It is
thus not clear that the radiological
evidence clearly pre-disposed the applicant to adjacent disc disease.
In any event, the medical
research cited in the various papers does
not appear to support Dr le Roux’s prognosis of a 75%
likelihood that the applicant
will have to undergo a C5/C6 fusion,
and the tribunal – whose members had read Dr le Roux’s
report – specifically
rejected that assessment of the
probability.
[64]
In any event, and even
if it were more probable than not that the applicant would face a
C5/C6 fusion at some stage in his life,
this would not in itself
justify a conclusion that his injury was ‘serious’ for
purposes of the narrative test. The
reports do not indicate that an
extension of the fusion would prevent the applicant from working or
pursuing his usual social pleasures.
The tribunal in terms rejected
the proposition that a probability of future surgery justified
classifying the injury as ‘serious’.
[65]
The tribunal was
criticised for rejecting Dr le Fèvre’s opinion despite
its absence of psychiatric expertise. (The
applicant’s
attorneys, I note in passing, did not object to the absence of a
psychiatrist when notified of the composition
of the tribunal.) I do
not think the criticism has traction in this case, for the simple
reason that the tribunal did not reject
Dr le Fèvre’s
opinion that the applicant’s second bout of depression (brought
on by the accident) placed him
at greater risk of depressive episodes
in the future or that neck pain and stiffness might be among the
stress factors which could
precipitate further depression. Accepting
these general psychiatric findings, the tribunal did not regard the
conclusion of serious
injury within the meaning of para (cc) of the
narrative test as justified.
[66]
Mr Branford submitted
that Dr Edeling, in summarising the tribunal’s deliberations
regarding Dr le Fèvre, spoke of
the risk of relapse into
depression on account of ‘the normal stresses of work,
relationships and getting on in life’
(the words used in the
penultimate paragraph of Dr le Fèvre’s report). This
indicated, so it was argued, that the
tribunal had overlooked Dr le
Fèvre’s statement earlier in the report that having a
damaged neck ‘could well
be an added stress in precipitating
another relapse’. I think this is too pedantic a criticism of
the tribunal’s reasoning.
Dr Edeling testified that the
tribunal’s members read and analysed all the reports. In regard
to Dr le Fèvre’s
report, the tribunal accepted, he said,
all the psychiatric findings. The report was only 3½ pages
long. I do not find it
at all plausible that the tribunal overlooked
the additional stresses caused by the neck injury.
[67]
It was not irrational
for the tribunal to consider that the unquantified possibility of
future depression did not rise to the level
demanded by the narrative
test. Para (cc) calls for a finding of ‘severe’ mental
disturbance or disorder which, as
I have explained, probably
indicates greater intensity than ‘serious’. Dr le Fèvre
did not quantify the likelihood
of future depressive episodes or say
how long such episodes were likely to last or how well future bouts
were likely to respond
to anti-depressant medication. He did not say
that the applicant’s position was such that he needed to be on
long-term prophylactic
anti-depressants. It may also be observed that
Dr le Fèvre did not say that he had received reports from the
psychiatrists
who treated the applicant as a teenager and following
the accident.
[68]
It needs to be
emphasised that the applicant is not precluded from recovering
pecuniary compensation for the sequelae and future
risks which have
been caused by the accident merely because his injuries are not
classified as ‘serious’. Subject to
appropriate proof at
trial, he will be entitled to recover damages in respect of future
medical expenses such as analgesia, physiotherapy,
future surgery,
treatment of depression and so forth, either in full or rateably
according to the risk. There may also be associated
pecuniary damages
in respect of future earnings. But in the absence of a finding of
‘serious injury’, he cannot recover
non-pecuniary
compensation.
Conclusion
[69]
In my view, therefore,
the respondents have discharged the burden of showing that the
tribunal’s rejection of the appeal was
not a decision made
without good reason. The applicant has not made out any other grounds
of review.
[70]
The application is thus
dismissed with costs.
ROGERS
J
APPEARANCES
For
Applicant Mr AD Branford
Instructed
by Sohn and Wood Attorneys
13th
Floor, Constitution House
124
Adderley Street
Cape
Town
For
1st – 5th Respondents
Mr T
Maodi Instructed by
Gildenhuys
Malatji Inc
GMI
House, Harlequins Office Park
164
Totius Street, Groenkloof
Pretoria
[1]
These are taken respectively from the
Longman
Dictionary of the English Language
and
the
Chambers 20
th
Century Dictionary.