About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2019
>>
[2019] ZAGPPHC 122
|
|
Buthelezi v Health Professions Council of South Africa and Others (3039/2017) [2019] ZAGPPHC 122 (17 April 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
Case
Number: 3039/2017
17/4/2019
In
the matter between:
T.P.
BUTHELEZI
Applicant
(REF:
RAFA/00187/2016/DIP)
and
HEALTH PROFESSIONS COUNCIL OF SOUTH
AFRICA
First Respondent
THE; ACTING REGISTRAR OF THE HEALTH
PROFESSIONS COUNCIL OF SOUTHAFRICA
Second Respondent
THE
ROAD ACCIDENT FUND APPEAL TRIBUNAL
Third Respondent
THE ROAD ACCIDENT FUND
Fourth Respondent
JUDGMENT
KUBUSHI
J
INTRODUCTION
[1]
This opposed application for judicial
review concerns the decision of the third respondent, the Road
Accident Fund Appeal Tribunal
("the Tribunal"), in finding
that the injuries suffered in a motor vehicle collision by the
applicant are non-serious
injuries for the purposes of the Road
Accident Fund Act 56 of 1996 ("the Act") and the Road
Accident Fund Regulations
of 2008 ("the Regulations"). The
Tribunal is an independent panel constituted by the second
respondent, the Registrar
of the Health Professions Council of South
Africa ("the Registrar",) in terms of the provisions of
regulation 3 (8) of
the Regulations. The Tribunal's purpose is,
amongst others, to determine whether a person's injuries have been
properly assessed.
[2]
At issue in these proceedings is whether
the applicant is entitled to review the Tribunal's decision on the
grounds raised in her
judicial review application.
[3]
All the respondents except the fourth
respondent, the Road Accident Fund ("the Fund",) are
opposing the application.
THE RELIEF SOUGHT BY THE APPLICANT
[4]
In her judicial review application, the
applicant seeks an order in the following terms:
4.1
reviewing
and setting aside the decision of the Tribunal dated 4 August 2016,
to the effect that the injuries suffered by the applicant
are non
serious in terms of s 17 (1A) of the Act and its Regulations;
4.2
that
the Registrar is directed to re-appoint a new Tribunal to determine
the dispute reviewed and set aside in paragraph 1 and to
further
reconsider all medico-legal reports that served before the Tribunal
in respect of the applicant’s injuries, including
the report of
Lindiwe Grootboom (Neuro-psychologist), that was received by the
first respondent, the Health Professions Council
of South Africa
("the HPCSA") subsequent to the hearing on August 2016;
4.3
that
the applicant be permitted to 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;
4.4
that
the HPCSA be ordered to pay the costs of this application, only in
the event of opposition.
[5]
In essence, the applicant seeks that the
Tribunal's decision be reviewed and set aside and that the matter be
referred back to the
HPCSA for consideration afresh before a newly
appointed Tribunal which does not consist of any of the members who
took the initial
decision.
[6]
Before I deal with the individual
grounds of review, I pause to briefly set out the relevant factual
matrix leadin9 to the institution
of this application and refer to
the salient provisions of the Act and the Regulations pertaining to
the issues raised respectively
by the parties.
FACTUAL
BACKGROUND
[7]
The applicant's claim for compensation
for non-pecuniary loss was formally lodged in terms of s 17 of the
Act read with the Regulations
with the Fund. Dr JJ Schutte completed
the RAF4 form and found the applicant to have a whole person
impairment ("WPI")
of 10%. He, however, found the applicant
to have serious long term impairment in terms of the narrative test.
The Fund formally
rejected the applicant's claim. The applicant
declared a dispute and the matter was referred to the HPCSA for
further adjudication.
[8]
In notifying the HPCSA and the Registrar
of the dispute pertaining to the rejection, the applicant also
provided the Registrar with
the RA· Fs form and all
medico-legal reports, necessary to assess the applicant's injuries. A
further report of a neuro-psychologist,
Lindiwe Grootboom
("Ms
Grootboom") was provided to the
Registrar after the other expert reports had been filed.
[9]
The matter served before the Tribunal on
4 August 2016 and the applicant's injuries were found not to qualify
as serious injuries.
The decision and outcome reached by the Tribunal
was communicated to the applicant's attorneys of record on 28
September 2016.
In rejecting the claim the Tribunal concluded as
follows:
"i.
24 years old female who was involved in a Motor vehicle accident on
the
27
th
of June 2009.
ii.
The patient was a passenger in a
bakkie, had a head on collision and was transferred with an ambulance
to Witbank hospital.
iii.
At the time she was a Grade 10
learner and she was treated for head injuries and GCS at the time was
15/15.
iv.
She had a C4-C5, C5-C6 disc
lesion with headache and right ankle, degeneration neck injury,
fracture of the right tibia. She is
now scared to get into a car
again.
v.
X-rays were normal and was
discharged on the same day.
vi.
She was also referred to
Neuropsychological further assessments.
vii.
The experts that saw Dr Schutte
completed the RAF4 form then seen by the Orthopaedic surgeon.
vii. Also
seen by the Occupational and two Industrial Psychologists.
ix.
The WPI came to 10% and having been evaluated, the medical facts;
this rated as not
serious injury under the Narrative test."
[10] It is not in
dispute that the decision of the Tribunal constitutes administrative
action and
is thus susceptible to review in terms of the provisions
of the Promotion of Administrative Justice Act
[1]
("PAJA"). Being not satisfied about the outcome of the
Tribunal, the applicant has approached this court for relief to
review and set aside that decision.
THE LEGISLATIVE FRAMEWORK
[11] In terms of
ss 17 (1) and 17 (1A) of the Act, read with regulation 3 of the
Regulations, a claimant
may only claim general damages against the
Fund where she/he has suffered "serious injury". In order
to qualify for this
head of damages, a claimant is required to submit
'an assessment by a medical practitioner in terms of regulation 3
certifying
that she/he has been seriously injured.
[12] The criteria
of assessment applied by the medical practitioner in determining
whether the claimant
suffered serious injury or not is set out in
regulation 3 (1)
(b)
[2]
.
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.
[13] The Fund
must be satisfied that the injury has been correctly assessed as
serious in terms of
the method provided in the Regulations. Should
the Fund not be satisfied, it must reject the report or direct the
claimant to undergo
further assessment by an independent medical
practitioner.
[14] Should the
claimant not be satisfied with the Fund's rejection of the serious
injury assessment
report, the claimant must declare a dispute by
lodging a prescribed dispute resolution form with the Registrar
within ninety (90)
days of the rejection. The dispute is adjudicated
by the Tribunal which the Registrar constitutes by the appointment of
three independent
medical practitioners with expertise in the
appropriate area of medicine.
[15] A procedure
by which the Tribunal enquires into the dispute is laid down in
substantial detail
in the Regulations and includes the following
features:
15.1
Both
sides may file submissions, medical reports and opinions.
15.2
The
Tribunal may hold a hearing for the purpose of receiving legal
argument by both sides and seek the recommendation of a legal
practitioner in relation to the legal issues arising at the hearing.
15.3
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.
[16]
It is common cause, in this instance, that the applicant's injury did
not qualify as serious
under the AMA Guides, that is, her injury did
not constitute an WPI of more than 30%. As such, she had to be
assessed in terms
of the narrative test in order to qualify for
compensation for non-pecuniary loss.
THE
GROUNDS OF REVIEW
[17]
The judicial review application is
premised on the provisions of PAJA on the grounds that the action was
materially influenced by
an error of law (s 6 (2)
(d)
of PAJA) and/or because irrelevant
considerations were taken into account or relevant considerations
were not considered (s 6 (2)
(e)
(iii) of PAJA) and/or that it
amounts to arbitrary action (s 6 (2)
(e)
(vi) of PAJA) and being procedurally
unfair.
[18]
The said grounds have been further
developed in the applicant's founding and replying affidavits and
summarised in her heads of
argument as follows:
18.1
That the Tribunal did not utilise the
provisions available to it in terms of the Regulations and in
particular the members of the
Tribunal did not perform an examination
of the applicant or called the applicant to be present at the hearing
nor did it refer
the applicant for a further investigation and/or
physical examination by another expert in order to assess the
applicant's injuries
in terms of the narrative test.
18.2
That the Tribunal did not properly
consider all expert reports that served before it and that the
decision reached is merely an
overall view which did not take into
account the negative impact that the injuries have on the applicant
and that the Tribunal
failed to address the applicant's serious long
term impairment as contained in the reports.
18.3
That the composition of the Tribunal did
not include a neuro psychologist, an occupational therapist or
industrial psychologist
and
was as
such unable to properly consider all
the relevant information provided to it.
18.4
That the Tribunal materially misdirected
itself by not taking proper heed to the opinions expressed in the
expert's reports, which
led to materially unreasonable decision,
alliteratively,
that
there was a failure to properly apply the narrative test.
18.5
That the decision of the Tribunal is
arbitrary as it failed to assess the applicant's injuries in relation
to her individual subjective
circumstances.
[19]
When the parties appeared before me the
grounds of review were condensed into two points, namely, error of
fact and error of law.
I shall now deal with these grounds of review
in turn.
Error of Fact
[20]
The applicant's submission in this
regard is that the Tribunal's failure to consider the report of Ms
Gootboom, the neuro-psychologist,
is an error of fact which
constitutes an unfair procedure and irrational decision. The report,
according to the applicant, was
served timeously on the HPCSA, that
is, two months before the hearing and should as such have been
considered by the Tribunal.
[21]
In support of this submission counsel
for the applicant referred me to an unreported judgment of the
Gauteng Division, Pretoria
in
May v
Health Professions Council of South Africa
&
Others,
[4]
where the following is said:
"[34] In this instance
the Appeal Tribunal clearly made an error of fact when not taking the
claimant's shoulder
injury into consideration when deciding whether
general damages should be awarded and thereby Ignored relevant
facts."
[22]
The Tribunal's argument is that the
report of Ms Grootboom did not serve before the Tribunal, a fact not
denied by the applicant.
What, however, the Tribunal is contending
for is that firstly, the report was submitted outside of the
regulated timeframe of ninety
(90) days and did not form part of the
applicant's submissions to the Tribunal; secondly, the report having
not served before the
Fund when it rejected the applicant's claim it
could not have been considered by the Tribunal; thirdly, having had
sight of the
report, subsequent to the decision it made, the Tribunal
is of the opinion that the report would not have, in any event,
affected
the decision it made.
[23]
The question is whether Ms Grootboom's
report should have been considered by the Tribunal and whether such
failure to consider that
report renders the Tribunal's decision
reviewable as an error of fact.
[24] It is common
cause that when the Tribunal sat to decide the applicant's dispute
they were in
possession of only the following documents: the RAFS
dispute referral form; the RAF4 serious injury assessment report
completed
by Dr Schutte; the medico-legal reports by Dr Oelofse dated
18 October 2013, Dr Rita van Biljon an occupational therapist, Dr AC
Strydom an industrial psychologist and consultation notes, casualty
patient evaluation form prescription and hospital notes. Ms
Grootboom's report did not form part of those documents.
[25] Material
error of fact has been found to be an independent ground of review in
the judgment in
Pepcor Retirement
Fund
&
Another
v Financial Services Board
&
Another
[5]
,
a judgment to which I have been
referred to by the applicant's counsel. In that judgment, the
Registrar of the Pensions Funds when
approving the transfer of
business of one pension fund to another pension fund was found to
have been ignorant of the correct funding
levels which had resulted
from misstatement by the actuary.
[26] The court in
that judgment was aware that in classical administrative law in South
Africa, material
error of fact was not an independent ground of
review. The Court, however, took cognisance of the doctrine of
legality, a principle
that has been introduced into our law by the
Constitution as a founding value, and came to the conclusion that due
to that principle
material error of fact had to be an independent
ground of review.
[27] In accepting
that material error of fact had to be an independent ground of review
the court
stated the following:
'[47] In my view a
material mistake of fact should be a basis upon which a court can
review an administrative
decision. If legislation has empowered a
functionary to make a decision, in the public interest, the decision
should be made on
the material facts which should have been available
for the decision properly to be made. And if a decision has been made
in ignorance
of the fact material to the decision and which therefore
should have been before the functionary, the decision should . . . be
reviewable . . . The doctrine of legality which was the basis of the
decision in
Fedsure,
[6]
SARFU
[7]
and
Pharmaceutical
Manufacturers
[8]
requires that the power conferred on
a functionary to make decisions in the public interest, should be
exercised properly, i.e.
on the basis of the true facts; it should
not be confined to cases where the common law would recognise the
decision as
ultra vires.'
[28] The approach in
Pepcor,
recognising
error of fact as a ground of review, was endorsed as the correct
approach in two other judgments of the Supreme Court
of Appeal,
namely,
Chairman, State Tender Board
v Digital Voice Processing (Pty) Ltd; Chairman, State Tender Board v
Snell Digital (Pty) Ltd
&
Others
[9]
.
In that judgment the court, relying
on
Pepcor,
found
that the decision by the tender board to blacklist a company on the
ground that it had submitted inaccurate information in
its
application form pertaining to the date when its directors were
appointed, was based on an error of fact. In that judgment,
when the
tender board made its decision it laboured under the mistaken
information that the directors were appointed after the
closing date
of the tender whilst in fact the directors were appointed prior to
the closing date of the tender. As such, it was
found that the tender
board made its decision on the basis of incorrect facts. The decision
was as a result set aside.
[29] Even though the
decision in
Chairman, State Tender Board
was eventually set
aside on the basis of irrationality and unlawfulness it is, however,
important to note that the court in arriving
at its decision
recognised material error of fact as an independent basis for setting
aside an administrative decision. In that
regard, that court held as
follows:
'[36] The STB erred
factually when it concluded that the second & sixth respondents
had been appointed
on 11 February 2000, after the tender had been
submitted. If the STB had taken its decision based on the proper
facts it could
not have concluded that the respondents had made
fraudulent misrepresentations to it. Its factual error was material
as it was
the direct cause of the decision to blacklist the
respondents.'
[30] On the facts
in
Pepcor,
the court noted that the Registrar was misled on a
fact material to his decision. The converse to this statement is that
had the
Registrar been aware of the correct facts regarding the
funding levels he would have perhaps come to a different decision.
Does
it mean, therefore, that failure by the Tribunal, in this
instance, to consider the report of Ms Grootboom led to a material
error
of fact, in the sense that the Tribunal was misled in its
decision by the non-disclosure of the information in Ms Grootboom's
report
and that should the report have been available to the
Tribunal, the Tribunal might have, perhaps, reached a different
decision?
[31]
Pertinent to the above question is
whether the report of Ms Grootboom contained material facts. It is
said that a fact is material
if firstly, it is determinative of the
outcome of a decision, as such, a judicial review based on error of
fact can only be taken
when an excluded fact or included fact is
determinative of the outcome, which means that, the fact excluded or
included must be
shown to have the effect of changing the outcome;
secondly, if the relevant decision has been made in ignorance of the
true facts
material to the decision.
[10]
[32]
Would the information in Ms Grootboom's
report have changed the outcome of the Tribunal?
[33] The genesis
to this question should be the initial report of the medical
practitioner who did
the nc;1rrative test and as contained in the
RAF4 form. It is common cause that the RAF4 form was completed by Dr
JJ Schutte. Dr
Schutte, when doing the narrative test, concluded that
acute symptoms still exist which will affect the applicant's
employment,
social skills and enjoyment of life. He in that regard
deferred to the following experts: the orthopaedic surgeon's opinion
and
treatment on injuries to the cervical spine and the right leg;
psychological treatment on severe post- traumatic stress and the
neurologist's opinion on head injuries.
[34]
As already stated, the reports of Dr
Oelofse, an orthopaedic surgeon, Dr Rita van Biljon, an occupational
therapist and Dr AC Strydom,
an industrial psychologist, were made
available to the Tribunal. The three experts, who physically examined
the applicant, were
agreed that she qualifies for compensation under
the narrative test.
[35]
The applicant was also referred to a
neuro-psychologist, Ms Grootboom, for a neuro-psychological and
clinical assessment to establish
the nat1,Jre and extent, if any, of
functional, cognitive and emotional impairment resulting from the
motor vehicle collision as
well as how this may impact on the
applicant's future cognitive, social, emotional and occupational
functioning. In compiling her
report, Ms Grootboom took cognizance of
the opinion of Dr Schutte in regard to the serious injury assessment
report.
[36]
It is worthy to note that although the
assessment by Ms Grootboom was done after the assessment of Dr
Oelofse and Dr Strydom, it
does not appear as if she was provided
with their reports, as such, she, in her report defers to: a
neuro-surgeon or neurologist
to assess the severity and
sequelae
of the head injury; an occupational
therapist for final comment on employability and to assess and
address deficits which are impacting
on her vocational abilities;
and,· to an orthopaedic surgeon to assess and comment on the
impact of the applicant's orthopaedic
injuries on her future
employability and on the future management of the applicant's
orthopaedic injuries.
[37]
Ms Grootboom finally concludes as
follows in her report:
"In conclusion significant
neuropsychological test results may be most consistent with the pre
morbid conditions, although
mild to moderate concussive symptoms
(PCS) such as headaches, nausea, dizziness and forgetfulness m y be
exacerbating her neurocognitive
functions.”
[38]
It does not appear
as if the applicant was referred to a neurologist or a neuro
surgeon as there is no report in that respect.
As such, it is my
finding that Ms Grootboom's findings in regard to -
38.1 firstly, the applicant's
neurocognitive difficulties which may have contributed to her failure
to obtain
Matric, as well as to her ability to perform her duties as
a cashier with accuracy and efficiency, and subsequently in
unemployment
and loss of financial independence and self-reliance;
38.2 secondly, the
neuropsychological
sequelae
(attention and memory deficits)
which may compromise her functioning when performing sedentary tasks;
and
38.3 lastly, the
sequelae
of the applicant's chronic pain and discomfort, emanating from
her reported injuries which, may have resulted in her inability to
continue her occupation as a cashier and with significant impact on
her earning capacity and general functioning;
are,
in my opinion, inconclusive and have no bearing on the applicant's
entitlement to claim for non-pecuniary damages in terms
of the
narrative test. These findings are dependent on the findings of the
other experts whose reports served before the Tribunal.
Of concern is
that there is no report by a neurology expert to confirm Ms
Grootboom's findings. The findings are, therefore, in
my view,
immaterial and could not have had any effect on the decision of the
Tribunal. Put differently, Ms Grootboom's findings
do not have the
effect of influencing the Tribunal's outcome.
[39] For
instance, in her report, Ms Grootboom opines that: unless a head
injury of significance (moderate
to severe head injury) is diagnosed
by a neurology expert, it is unlikely that the applicant's deficits
are entirely attributable
to the accident under discussion; and that
should a mild head injury be diagnosed (which is the opinion of the
report writer),
it is highly possible that the neuropsychological
test results would mostly reflect the applicant's premorbid
functioning with
reduced attention and memory span, perhaps,
exacerbated further by the effects of the head injury.
[40] It is,
therefore, my finding that failure by the Tribunal, in this instance,
to consider the
report of Ms Grootboom did not lead to a material
error of fact. Although the Tribunal was misled in its decision by
the non-disclosure
of the information in Ms Grootboom's report, but,
even if the report was available to the Tribunal, the Tribunal would
not have
reached a different decision.
Error
of Law
[41] The
applicant raised two grounds on which the Tribunal's decision is
susceptible to review on
this point. The first is that the Tribunal
misdirected itself when it pronounced itself on the casual link
between the injuries
sustained by the applicant and the accident. The
second ground is· that the Tribunal misdirected itself in
incorrectly interpreting
the test applicable to the assessment of
serious injuries. I shall deal with the two ground in turn.
[42] Relying on
the judgment in
The Road Accident
Appeal Tribunal & Others v Gouws
&
Another
[11]
,
the applicant contends that it was
wrong of the tribunal to pronounce itself on the casual link between
the injuries sustained by
the applicant and the accident, as such
pronouncement can only be made by a court. This reason for the
rejection of the RAF4 form
by the Tribunal was also not one of the
reasons proffered by the Fund when it rejected the RAF4 form.
[43]
The issue in
Gouws
was whether the shoulder injury
assessed as serious by the medical practitioner was caused by or
arose from the driving of a motor
vehicle.
[44]
When dealing with the issue of causation
where the Tribunal had rejected the RAF4 form on the basis that the
injury sustained was
not serious, the court in
Gouws
expressed itself as follows:
'[33]
… In the event of the medical practitioner ca ting doubt on
whether there was a link between the
alleged Injury and the driving
of a motor vehicle, the Fund can decide whether to contest causation
or concede it. In adopting
a position on whether to contest
causation, the Fund is not limited to the views expressed by the
medical practitioner, but may
have or acquire other information to In
inform its decision. In the ordinary course, causation is an issue
that is ultimately decided
by the courts. A dispute between the Fund
and a claimant in relation to causation has to be referred to a court
for adjudication...
[34]
. . . In the present case, as
described in para 7 above, the Fund disputed the assessment of the
injury on fallacious grounds. The
Fund did not inform Gouws that
causation was in issue nor did it independently adopt a position in
relation thereto. It wrongly
abdicated that position to the Tribunal.
As pointed out above, the contestation before the Tribunal could only
be in relation to
the assessment by the medical practitioner of the
seriousness of the injury and the finality of its decision is in
relation to
that aspect.
[35]
The effect of what is suggested
on behalf of the Tribunal is that the jurisdiction of the court is
ousted. The only challenge to
a decision by the Tribunal is relation
to causation on the suggested basis will therefore be in· the
form of a review which,
contrary to the suggestion on behalf of the
Tribunal, will not be time and cost efficient.
[36]
Having regard to the authorities
and principles set out in para 25 above, it is necessary to bear in
mind that the power given to
the Tribunal in terms of the legislation
is narrowly circumscribed. It is not of a broad discretionary nature,
which would allow
for further powers to be implied. The Tribunal
cannot have the final say in relation to causation. That power is not
provided for.
[37]
Moreover, the power contended for
is not a necessary or reasonable consequence of the express powers of
the Tribunal or of the Fund.
On the contrary, if the contentions on
behalf of the Tribunal are upheld, it will be oppressive in relation
to claimants and, as
stated above, will deny them access to courts on
an issue traditionally reserved for adjudication by them. A finding
against the
suggested power does not enervate the provisions of the
Act. The Fund maintains the right to challenge or concede causation.
.
. As hinted at in para 12 of the judgment of the court below, if
the submissions on behalf of the Tribunal were to be upheld the
result might well be that the Fund Itself will be stripped of its
power to decide the issue of causation in the event of an appeal
tribunal deciding causation against it.'
[45]
In paragraph 15 of the Tribunal's
answering affidavit the following is stated:
'15. At our
meeting held on 4 August 2016, we considered the applicant's appeal,
and after deliberations,
resolved that the applicant's injuries are
not serious injuries under the narrative test, and that there was no
nexus
between certain injuries and the accident'
[46]
It is on the basis of this paragraph
that the applicant argues that the Tribunal misdirected itself,
rendering its decision susceptible
to review. I can say no more than
what is referred to in the passages quoted from
Gouws.
The Tribunal having pronounced
itself on the question of causation indeed misdirected itself and on
this point its decision is reviewable
and should be set aside.
[47]
The decision of the Tribunal is affected
by the fact that the Tribunal's decision was taken for a reason not
authorised by the legislation
which empowered the Tribunal to act and
that the Tribunal took irrelevant considerations into account in
conflict with ss 6 (2)
(e)
(i)
and (iii) of PAJA
[12]
.
The Tribunal as such misconceived its jurisdiction and the review
stands to succeed.
[48]
Even if I am wrong on the first point, I
do think that even on the second ground the Tribunal has misdirected
itself in that it
relied on the objective test instead of the
subjective test when it considered the seriousness or otherwise of
the applicant's
injury.
[49]
What is at issue here is whether the two tests, namely the AMA Guides
test and the narrative
test can be conflated and used in conjunction
with each other. I do not think so.
[50]
The applicant in support of her argument
on this point referred to paragraph 54 of the unreported judgment of
the Gauteng Local
Division in
Mngomezulu
v Road Accident Fund
[13]
,
wherein the following is stated -
'[54] ... The narrative
test calls for an enquiry into various components of the
persona
including the physical, bodily, mental, psychological and
aesthetic features of an injured Plaintiff which may also take into
consideration
the likelihood of further surgery, lengthy
rehabilitation treatment, future deterioration and complications as
well as the risk
of relapse.'
[51]
In this instance, it is my view that the
premise for adjudicating the dispute was incorrect. In paragraph 51
of the answering affidavit
the Tribunal clearly states that:
'51. It is
significant to note that although the AMA Guides and the narrative
test constitute two
different tests of assessment, they are however
related to each other. The criteria under the AMA Guides is always
the starting
point in the performance of the 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 under that criteria. This makes an assessment under the
narrative
test easier and more objective, as it is informed by
information already gathered in an assessment under the AMA Guides.'
This
is clearly wrong.
[52]
The AMA Guides test relates to an
objective assessment of the injuries sustained by the applicant
whereas the narrative test is
a subjective test, which specifically
focuses on the subjective personal circumstances of each individual
claimant. In using the
objective assessment as a premise in
adjudicating the dispute, I think the appeal Tribunal misdirected
itself. It is on that basis
that I am of the view that the appeal
Tribunal's decision is not procedurally fair and ought to be set
aside.
ANCILLARY RELIEF
[53]
In prayer 2 of the notice of motion the
applicant seeks an order that the Registrar be directed to re-appoint
a new Tribunal to
determine the dispute reviewed and set aside and to
further reconsider all medico-legal reports served before the
Tribunal in respect
of the applicant's injuries, including the report
of Ms Grootboom.
[54]
The second ancillary relief is contained
in prayer 3 of the notice of motion in which the applicant seeks an
order that she be permitted
to be present at the newly established
Tribunal; and that she be permitted to provide further evidence
pertaining to her injuries
at the Tribunal hearing if she wishes to
do so.
[55]
I do agree that the matter should be
remitted back for reconsideration before a newly appointed Tribunal.
But, I do not think that
I should be prescriptive as to how the new
Tribunal should conduct the dispute resolution. The powers of the
Tribunal are succinctly
set out in regulation 3 of the Regulations
and it is for that Tribunal to decide on how it should carry out
those powers and not
for this court to direct it.
[56]
Brand JA in
Duma
[14]
was very explicit when he described the nature of the appeal in the
Tribunal; and this is what he said -
'The appeal created by the Regulations appears
to be 'an appeal in the wide sense', that is, a complete re-hearing
of and fresh
determination on the merits with additional evidence or
information if needs be.'
[57] The
Tribunal, in the words of Brand JA in
Duma,
is entitled:
'In the exercise of its wide investigative and
fact finding powers, the appeal tribunal can establish for itself
whether or not
to assess the injury as serious, whatever the reasons
of the Fund might have been.'
[15]
CONCLUSION
[58] I have,
therefore, to conclude that the decision of the Tribunal is
susceptible to review and
ought to be reviewed and set aside. The
matter should be remitted back for a reconsideration of the
applicant's injuries on the
basis of the narrative test.
THE
ORDER
[59]
In the circumstances, I make the
following order -
1.
The
decision of the third respondent of 4 August 2016, under reference
number RAFA/00187/2016/DIP, is reviewed and set aside.
2.
The
matter is remitted to the first respondent for reconsideration by a
different Road Accident Fund Appeal Tribunal (panel) to
be
constituted by the Registrar of the Health Professions Council of
South Africa.
3.
The
first respondent is ordered to pay the costs of this application.
E.M. KUBUSHI
JUDGE OF THE HIGH COURT
Appearance:
Applicant's
Counsel
: Adv W. R. Du Preez
Applicant's
Attorneys
: VZLR INCORPORATED
Third
Respondent's Counsel
: Adv N. Felgate
Third
Respondent's Attorneys
: KM MMUOE ATTORNEYS.
Date
of hearing
: 5 December 2018
Date
of judgment
: 17 April 2019
[1]
Act 3 of 2000.
[2]
"3. Assessment of serious Injury
in terms of section 17 (1A)
(1)
(b)
The medical practitioner
shall assess whether the third party's injury is serious in
accordance with the following method ...
(iii) an injury which does not result in 30% or more impairment of
the whole person may only be assessed as serious If that Injury:
(aa) Resulted In a serious long-term impairment of all loss of body
function;
(bb) Constitute permanent serious disfigurement."
[3]
AMA Guides Is defined In regulation 1 as the 'American Medical
Association’s
Guides to the Evaluation of Permanent
Impairment,
Sixth Edition.
[4]
(1996/2016) [2017] ZAGPPHC 739 (28 November 2017) at para 34.
[5]
[2003] 3 All SA 21 (SCA).
[6]
Fedsure Life Assurance Ltd & Others v Greater Johannesburg
Transitional Metropolitan Council & Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC).
[7]
The President of the Republic of South Africa and Others v South
African Rugby Football Union and Others 2000 (1) SA 1 (CC).
[8]
Pharmaceutical Manufacturers Association of South Africa &
Another: In re ex parte President of the Republic of South Africa
&.Others2000 (2) SA 674 (CC).
[9]
2012_(2) SA 16 (SCA).
[10]
Minister of Horne Affairs & Others v Somale Association of South
Africa & Another 015 (3) SA 545 (SCA).
[11]
(056/2017) [2017) ZASCA 188 (13 December 2017).
[12]
See Gouws v Road Accident Fund Appeal Tribunal and Others
(26553/2015) [2016] ZAGPPHC 954 (2 November 2016) at para 15.
[13]
(04643/2010) [2011] ZAGPJHC 107 (8 September 2011).
[14]
Road Accident Fund v Duma and Three Similar Cases
2013 (6) SA 9
(SCA) at para 26.
[15]
Road Accident Fund v Duma above.