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[2021] ZAGPPHC 254
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Mothibi v Health Professions Council of South Africa and Others (23432/18) [2021] ZAGPPHC 254 (12 April 2021)
REPUBLIC OF
SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
12
April 202
CASE
NO: 23432/18
In
the matter between:
K
L MOTHIBI
APPLICANT
and
HEALTH
PROFESSIONS COUNCIL OF S
A
FIRST RESPONDENT
THE
ACTING REGISTRAR OF THE HEALTH
PROFESSIONS
COUNCIL OF S
A
SECOND
RESPONDENT
THE
ROAD ACCIDENT FUND APPEAL
TRIBUNAL
THIRD RESPONDENT
THE
ROAD ACCIDENT
FUND
FOURTH RESPONDENT
JUDGMENT
MOGALE,
AJ
INTRODUCTION
[1]
This is a review application whereby the applicant is applying
for reviewing and
setting aside of the decision of the third
respondent dated 23 November 2016 stating that the injuries suffered
by the applicant
are non-serious in terms of
section 17(1)(a)
of the
Road Accident Fund, Act 56 of 1996
[2]
That the respondent be directed to re-appoint an appeal tribunal to
determine the dispute
reviewed and set aside in paragraph 1 and to
further reconsider all medical reports in respect of the applicant’s
injuries.
[3]
That the applicant be permitted to be present at the appeal tribunal
hearing, and
that the applicant be permitted to provide further
evidence pertaining to her injuries at the tribunal hearing if she
wishes to
do so.
APPEAL
TRIBUNAL FINDINGS
[4]
The application is brought after the appeal tribunal resolved at its
meeting held on 23
November 2016 stating as follows:
i.
The patient was involved in a motor vehicle accident in 2010 and was
assessed by Dr. Schutte who gave him a WIP of 17% based
on cervical
disc lesion radiculopathy and L4-L5 radiculopathy
ii. Dr. Oelofse did
an MRI scan of the neck and it shows extensive degenerative changes
in the neck.
iii. Looking at the
notes from the referring hospital, there is no evidence of acute disc
injury at the time of the accident. They
mention that the patient was
on ARV’s.
iv. The panel felt
that the patient had a degenerative cervical spine and lumbar spine
disease. The late document presented gives
evidence from other
experts who saw the patient 4 years after the injury. The clinical
Psychologist mentioned that there are no
psychometric answers because
of the low level of education. The Occupational therapist felt that
the dexterity of the finger was
impaired.
v.
The neurosurgeon said that there was a normal physical examination
but based on history, the patient had post-traumatic epilepsy
and has
been on Vellum. The Psychologist writes on the scale of seizures also
which shows on history.
vi. The issue of
seizures has not been proven and the patient was on Vellum and they
are not sure how long he has been treated and
there is no proof of
the patient being seen on an outpatient basis of any hospital over
the last four years for the epilepsy treatment.
In the absence of
proof of epilepsy, the tribunal feels that this injury is not
serious.
[5]
The provisions of
section 17(1)
and
17
(1)(A) of the Act and
Regulation 3
provide that a claimant may only claim general damages
against the Road Accident Fund where the claimant has suffered a
serious
injury.
Regulation 3(1)
(b) sets out the criteria which the
medical practitioner must apply to assess whether a third party has
suffered a serious injury.
Should the Road Accident Fund not be
satisfied that the injury has correctly been assessed as serious, it
must reject the report
or direct the third party to undergo a further
assessment. Should the third party not be satisfied with the
rejection of the third
party's serious injury assessment report, the
third party must declare a dispute and lodge such dispute with the
Registrar of the
HPCSA. The Registrar must then appoint a tribunal of
at least three medical experts to determine whether the third party
has indeed
sustained a serious injury.
ISSUES TO
BE DETERMINED
[6]
The crux of the review is to consider whether the appeal tribunal was
bound by the opinion of Dr. Oelofse
and Dr. Earle or whether they
could under the circumstances have formulated their own opinion.
SPINAL INJURY
[07]
The applicant submits that the respondents in their founding
affidavit attached a report dated
6 May 2014 whereby Doctor Oelofse
did an MRI scan of the neck and it shows extensive degenerative
changes in his neck. A radiological
examination report from NC
Radiology noted slight scoliosis to the right in the mid-cervical
spine. The Doctor continued to opine
that there are signs of
degeneration and disc pathology at the level of C5/6. With the
injuries to the thoracic or lumbar spine
in concern, the Doctor also
refers to the report of NC Radiology.
[08]
The appeal tribunal findings stated that "it felt that the
patient had a degenerative cervical
spine and lumbar spine disease'.
The applicant argued that the aforesaid feeling by the HPCSA is made
in contradiction of the report
by Dr. Oelofse. The applicant argued
further that the appeal tribunal seems to have rejected the report
without having the radiology
report of NS Radiology
[09]
The applicant submitted that HPCSA failed to utilize the provisions
in terms of Regulation 3(11)
of the Road Accident Fund Act and
failure to do so is unreasonable and arbitrary for the respondent to
not have utilized the empowering
regulations to obtain the radiology
report, based thereupon, to make an informed decision. Advocate
Jacobs for the applicant referred
the court to the
Supreme
Court of Appeal case RAF and Others v Gouws and Another
[1]
where
it was stated that the tribunal does not have the final say in
relation to causation between the driving of a motor vehicle
and the
injuries, the power is not provided for.
[10]
The respondent submitted that only one RAF4 was filled by Dr. J J
Schutte, a general practitioner
who found a 17% whole person
impairment rating which is insufficient to qualify the applicant for
having a serious injury. Dr.
Schutte recorded his findings as
follows: "will need spinal orthopaedic surgeon's opinion and
treatment on injuries to the
cervical and lumbar spine with sic
lesions C4/C6, L4-S1 both with radiolopathy. At the time of the
applicant’s treatment
at the hospital, radiology examinations
were ordered in relation to the applicant's skull, chest, shoulder
both arms, hip, pelvis,
and spinal (cervical, thoracic, and lumbar).
These reports were not provided and no explanation was provided by
the applicant.
[11]
The applicant consulted further with Dr. L F Oelofse (orthopaedic
surgeon) who recorded his findings
as per applicant submissions,
accordingly, the respondent argued that there are inconsistencies and
or contradictory to Oelofse
report.
i.
The appeal tribunal noted that MRA scan of the neck according to the
report
shows ‘extensive degenerative changes’ but from
the hospital records, there is no evidence of an acute disc injury at
the time of the accident.
ii.
Similarly, Dr. Schutte on the RAF4 Form highlighted that the
seriousness of
the spine injury in relation to C4 C6, L4-S1, but Dr.
Oelofse's opinion is that a serious injury is found on the head. Dr.
Earl
was appointed to examine the applicant and made no finding in
relation to serious injury on the head.
iii.
Dr. Oelofse’s opinion was that there were signs of degeneration
and disc pathology.
Even though Dr. Oelofse’s report deals with
the applicant's thoracic or lumbar spine, that was not classified as
being a
serious injury. The appeal tribunal consisting of various
doctors viewed this as being age-related having sight of the
applicant's
employment history.
iv.
Concerning the injury on the right shoulder, Dr. Schutte considered
the combined effect
of these injuries that the injury might respond
well to further conservative treatment. Dr. Oelofse's narrative
report shows that
the injuries are permanent and failed to show that
conservative treatment will not alleviate this injury and also failed
to show
that their injury was serious.
v.
Dr. Oelofse made a psychological trauma diagnosis for which he is not
an expert
on the field that the applicant suffered a post-traumatic
stress disorder. The findings of Mrs. Havenga, a counselling
psychologist
pointed out that some of the applicant's symptoms of
depression were present before the motor vehicle collision, as a
result of
childhood trauma and difficult relationships.
[12]
The applicant argued that, considering the evidence presented by the
applicant, according to
their conclusion, no serious injury finding
was established. As a result thereof, factually, there is a rational
basis why the
appeal tribunal would not accept and follow the opinion
expressed or noted by Dr. Oelofse.
EPILEPSY
[13]
The applicant submitted that the appeal tribunal failed to require
additional information for them
to conclude that "in the absence
of proof of treatment for epilepsy, the tribunal feel that this
history is not serious".
That the appeal tribunal's failure to
utilize the regulations which empower them to obtain information
renders the decision and
reasons proffered by the appeal tribunal
unreasonable and arbitrary.
[14]
The applicant submits that the respondent's reasons are clear that
they require additional information
to make an informed decision.
That the appeal tribunal's failure to utilize the regulations which
empower them to obtain the required
information renders their
decision or finding unreasonable and arbitrary.
[15]
That Dr. Earle (Neurosurgeon) provided a report to the appeal
tribunal and finds that "This
woman suffered a mild to moderate
traumatic brain injury. She does not present with any cognitive or
intellectual dysfunction,
but this injury has resulted in
post-traumatic epilepsy. These attacks are not fully controlled
yet”. The applicant
argued that it is evident that the
respondent contradicts the finding of the Neurosurgeon who physically
examined the applicant.
If the appeal tribunal was not satisfied with
the finding of the Neurologist, it was obliged to have utilized the
empowering regulations
to make an informed decision.
[16]
The respondent admits that on 13 November 2015, Dr. Earle noted a
finding of epilepsy which started
somewhere in 2011 during his
consultation with the applicant as a history provided to him. The
respondent argued that this history
provided to Dr. Earle contradicts
the history provided to Dr. Schutte and Dr. Oelofse and further that
Dr. Earle did not complete
the RAF4 form. The applicant consulted
with Mrs. Havenga on 04 November 2015 and noted some complaints of
epilepsy, the last episode
was reported in 2014 but to Dr. Earle, the
last episode was reported specifically on 16 October 2015 and 28
October 2015. Mrs.
Havenga made findings concerning depression, not
epilepsy. The applicant further consulted with Mrs. S Potgieter, an
occupational
therapist on 20 June 2014 where it was reposted to her
that the applicant suffers from epilepsy from being involved in the
accident.
This diagnosis cannot be accepted before the court as an
occupational therapist can never be an expert to issue a diagnosis
for
epilepsy. Lastly, the applicant consulted with Mrs. Van
Jaarsveld, an industrial psychologist on 20 June 2014 the same day
the
applicant consulted with Mrs. Potgieter, the episodes of epilepsy
were not recorded
[17]
The respondent argued that there are discrepancies relating to the
reporting of epilepsy, except
the reports by the abovementioned
experts, the applicant failed to submit additional information to
assist her in proving her case.
That the appeal tribunal members
consisting of an occupational therapist, specialist neurosurgeon, and
two orthopaedic surgeons
after considering the evidence presented by
the applicant concluded that there is no evidence of epilepsy.
[18]
The crux of the review is to consider whether the appeal tribunal was
bound by the opinion of
Dr. Oelofse and Dr. Earle or whether they
could under the circumstances have formulated their own opinion.
[19]
The applicant applies to this court to review and to set aside the
decision taken by the appeal
tribunal and that the HPCSA to
re-appoint a newly constituted appeal tribunal to determine the
dispute reviewed. The applicant
relies on the provisions of section
6(2) (c) (d) Promotion of Administration of Justice Act.
Advocate
Jacobs for the applicant abundant the application that the applicant
be present at the tribunal hearing and that the applicant
be
permitted to provide further evidence pertaining to her injuries at
the tribunal hearing if she wishes to do so.
[20]
Advocate Martin for the respondent argued that the appeal tribunal
was not bound by the opinion
of Dr. Oelofse and Dr. Earle and further
that they have powers to formulate their own opinion. The respondent
argued that the applicant
seeks a confusing relief. That the
applicant seeks an order that this court substitute the tribunal’s
ruling with one of
its own and according to provisions of section
8(c) (ii) of PAJA such occurs in exceptional circumstances. In
addition to the principle
of separation of powers, matters ought to
be remitted to an administrative authority
THE
LEGISLATIVE FRAMEWORK AND LEGAL PRINCIPLES
[17]
In terms of section 17(1) and 17(1A) read with Regulation 3, a
claimant may only claim general damages
against the Fund where he/she
has suffered a “
serious injury
". To qualify for
this head of damages, a claimant is required to submit to an
assessment by a medical practitioner in accordance
with Regulation 3.
[18]
Regulation 3(1) (b)
[2]
prescribes the criteria that such a medical practitioner has to apply
to assess whether a claimant had suffered “
serious
injury
”.
The consideration of a “
serious
injury
"
in terms of the Regulations, involves a two-tier process. The injury
is first assessed in terms of what is called the AMA
Guides
[3]
which
determines whether the injury is of such a nature that it constitutes
a Whole Person Impairment of at least 30%. If
the injury does not
qualify as serious under the AMA Guides, it may nonetheless be
assessed as serious in terms of what is called
the “
narrative
test
”
which assesses whether the injury resulted in a serious long-term
impairment or loss of a body function or constitutes permanent
serious disfigurement.
[19]
Should the Fund not be satisfied that the injury has been correctly
assessed as serious, it must
reject the report or direct the claimant
to undergo a further assessment.
[20]
Should the claimant not be satisfied with the Fund’s rejection
of the serious injury assessment
report, he or she must declare a
dispute and lodge such a dispute with the Registrar of the HPCSA. The
Registrar of the HPCSA then
has to appoint a Tribunal of at least
three medical experts to determine whether the claimant has sustained
a serious injury.
[21]
A procedure by which the Tribunal enquires into the dispute is
outlined in detail in the Regulations
and includes the following
features:
21.1 Both
sides may file submissions, medical reports, and opinions.
22.2.
The Tribunal may hold a hearing for the purpose of receiving legal
arguments by both sides and seek the recommendation
of a legal
practitioner in relation to the legal issues arising at the hearing.
22.3.
The Tribunal has wide powers to gather information, including the
power to direct the claimant to submit to a
further assessment by a
medical practitioner designated by the Tribunal; to do its own
examination of the claimant's injury, and
to direct that further
medical reports be obtained and placed before it.
[22] The
meaning of the words “
serious
”
and “
severe
”
was considered in
JH
v Health Professions Council of South Africa and Others
[4]
and
the court held as follows:
“
The
words 'serious' and 'severe' in these items are not defined. They
connote a degree of impairment or disturbance or disorder
that cannot
be fixed by quantitative measure. The assessment requires a value
judgment, though one to be performed based on a correct
interpretation of the words used in the narrative test. Dictionary
definitions of 'serious' in the context appropriate to the narrative
test includes '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'….
[23]
The purpose of limiting non-pecuniary damages of 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'.
[24]
I find that a Court can entertain any review process if it is
satisfied that the
internal remedies provided for in terms of PAJA
have been exhausted.
[25]
The main question is therefore whether a reviewing court can be
satisfied that a reasonable person
in the position of the appeal
tribunal on the evidence disclosed in the record and applying the
correct test in law, could have
reached a conclusion that the appeal
tribunal in fact reached.
[26]
The
courts are obliged to interpret legislation granting powers to the
administrators as requiring the power to be exercised reasonably
and
rational
ly.
Cora Hoexter
[5]
states that rationality is the first element of “
reasonable
”
administrative action as expressed in section 33(1) of the
Constitution. She explains the meaning of “
rationality
”
as follows:
“
This
means in essence that a decision must be supported by the evidence
and the information before the administrator as well as
the reason
given for it. It must also be objectively capable of furthering the
purpose for which the power was given and for which
the decision was
purportedly taken.
”
[27]
The applicant main contention is that the appeal tribunal failed to
exercise its
wide powers to gather information, including
the power to direct the claimant to submit to a further assessment
by a
medical practitioner designated by the Tribunal; to do its
own examination of the claimant's injury, and to direct that further
medical reports be obtained and placed before it and correctly
referred to the case of
RAF
and Others v Gouws and Another par 17
supra
were the facts of the case were as follows:
'Mr.
Gouws complained that the Tribunal had disregarded the documentary
expert evidence supplied by him, which accepted that his
shoulder
injury was related to the accident and that it resulted in serious
long-term impairment. Furthermore, in his founding
affidavit, he
stated that if the Tribunal had been concerned about the nexus
between his injuries and the collision referred to
earlier, it had
the power, in terms of Regulations 3(11)(a) to (e) to
obtain further information. Mr. Gouws stated that
he had no idea why
the fact that he was a karate instructor had been taken into account.
In a supplementary affidavit, he stated
that from the record supplied
in terms of Rule 53 of the Uniform Rules, there appears to have been
no basis upon which the undisputed
information supplied by experts on
his behalf was rejected. In his replying affidavit, Mr. Gouws
complained that he had not been
apprised that causation was an issue
and had therefore not been given an opportunity to deal with it. He
also denied that the Tribunal
has the power to consider questions
regarding the nexus between the injuries and the collision
“
The
court held
that the power
given to the tribunal in terms of the legislature is narrowly
circumscribed. It is not of a broad discretionary nature,
which would
allow for further powers to be implied. The tribunal does not have
the final say in relation to causation between the
driving of a motor
vehicle and the injuries, the power is not provided for”
[28]
In
Fedsure
Life Assurance Ltd & others v Greater Johannesburg Transitional
Metropolitan Council & others
[6]
(CC)
and
Pharmaceutical
Manufacturers Association of South Africa & another: In re ex
parte President of the Republic of South Africa
& others
[7]
the
Constitutional Court made it clear that it is a fundamental principle
of our law that public power can only be exercised
within the bounds
of the law. Repositories of power can only exercise such power as has
been conferred upon them by law. This
is a description of the
principle of legality.
[29]
The appeal tribunal had to consider whether the
applicant’s injuries resulted in a serious long-term
impairment
or loss of body function or constitutes permanent serious
disfigurement. It is the sequelae of the injuries and not
the
injuries per se that play a role in the determination thereof. The
report by Dr. Oelofse and Dr. Earle
discuss
the issue of spinal injuries and epilepsy and the respondent argue
that there are contradictions and consistency in the
reports of other
experts. The applicant argued that the respondent failed to examine
the applicant to ascertain the extent of injuries
sustained, ‘the
feeling’ by the appeal tribunal is made in contradiction of the
report by Dr. Oelofse
[30]
I find that the appeal tribunal failed to require additional
information, including the power to direct
the claimant to submit a
further assessment by an expert for them to exclude the possibility
of epilepsy. The respondent also failed
to use their powers to
examine or to physically assess the applicant alleged spinal injury
before making a finding that that “it
felt that the patient had
a degenerative cervical spine and lumbar spine disease’ without
having their own radiology report.
As a result, I conclude that the
appeal tribunal's failure to utilize the regulations which empower
them to obtain information
renders the decision and reasons proffered
by the appeal tribunal unreasonable and arbitrary.
[31]
Having regard to the authorities
and the principles set out above, I agree with the submissions by the
applicants that the power
given to the tribunal in terms of the
legislature is narrowly circumscribed. It is not of a broad
discretionary nature, which would
allow for further powers to be
implied. The tribunal does not have the final say in relation to
causation between the driving of
a motor vehicle and the injuries,
the power is not provided for.
[32]
The applicant has established that the decision of the tribunal was
affected by the fact that
the tribunal's decision was taken for a
reason not authorized by the legislature which empowers the tribunal
to act in terms of
the PAJA. The relief sought in prayer 3 of this
application is abundant.
I,
therefore, conclude that the tribunal misconceived its jurisdiction
and that the review must succeed
[33]
The following order is
made:
[33.1] The
reviewing and setting aside of the decision of the third respondent
dated 23 November 2016 stating that the injuries
suffered by the
applicant are non-serious in terms of
section 17(1)(a)
of the
Road
Accident Fund, Act 56 of 1996
is hereby granted.
[33.2]
That the respondent is directed to re-appoint an appeal tribunal to
determine the dispute reviewed and
set aside in paragraph 1 and to
further reconsider all medical reports in respect of the applicant's
injuries.
[33.2] The
respondent is to pay costs of the application
K
J MOGALE
ACTING
JUDGE OF THE
GAUTENG
DIVISION,
PRETORIA
Electronically
submitted.
Delivered:
This judgment was prepared and authored
by the Judge whose name is
reflected and is handed down electronically by circulation to the
parties/their legal representatives
by email and by uploading it to
the electronic file of this matter on CaseLines. The date for
hand-down is deemed to be 12 April
2021.
Date
of hearing: The matter was heard by way of video
conferencing or otherwise, the matter may be determined
accordingly.
The matter was set down for a court date of 15 March 2021.
Date
of judgment: 12 April 2021
Heard
on
: 15 March 2021
For
the Plaintiff
:
Adv H Martin
Instructed
by
: VZLR
INC ATTORNEYS
For
the Defendant
: Adv M Jacob
Instructed
by
: MBOWANE ATTORNEY
Date
of Judgment
: 12 April 2021
[1]
2017
(SCA) 188
[2]
Assessment
of serious injury in terms of
section 17(1A)
[3]
Defined
in
Regulation 1
as the American Medical Association's Guides to the
Evaluation of permanent impairment, Sixth Edition
[4]
2016(2)
SA 93 (WCC)
[5]
Administrative
Law in South Africa 1
st
Edition, page 307
[6]
1998
(ZACC) 17
[1998] ZACC 17
; ,
1999 (1) SA 374
CC
[7]
2002 (ZACC] 1, 2002(2) SA 674 CC