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[2019] ZAGPPHC 289
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Potgieter obo M v Health Professions Council of South Africa and Others (27004/2017) [2019] ZAGPPHC 289 (31 May 2019)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
YES/
NO
(2)
OF
INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
CASE
NUMBER: 27004 / 2017
31/5/2019
M
POTGIETER obo M
Applicant
And
HEALTH
PROFESSIONS COUNCIL OF SOUTH AFRICA
First
Respondent
THE
ACTING REGISTRAR OF THE HEALTH
PROFESSIONS
COUNCIL
Second
Respondent
THE
ROAD ACCIDENT FUND APPEAL TRIBUNAL
Third
Respondent
THE
ROAD ACCIDENT
FUND
Fourth
Respondent
JUDGEMENT
M
Snyman, AJ
Relief
sought
[1]
The applicant seeks an order reviewing
and setting aside a decision of the third respondent
("the
Appeal Tribunal" or "Tribunal')
that
the injuries suffered by the minor child as a result if a collision
in which he was involved, did not qualify as a serious
injury as
contemplated in Regulation 3 of the Regulations issued in terms of
the
Road Accident Fund Act 56 of 1996
, as amended (“the
Regulations”).
An
order referring the matter to a newly constituted Appeal Tribunal and
costs are also sought.
Brief
Background
[2]
After
having submitted a claim against the Fund the applicant instituted
action against the Road Accident Fund
(“the
Fund”)
on behalf of her minor
child under case number 60398/2014 for the injuries sustained after
the child was involved in a motor vehicle
collision on 10 May 2011,
at the time, 2 years old.
[3]
At
the time of the decision by the Tribunal in 2017, the child was 8
years old and in primary school.
[4]
Applicant
inter alia
claimed
for "non-pecuniary damages" (also referred to as "general
damages") suffered as a result of the injuries
sustained.
Legal
Framework
[5]
In
order to claim for and be compensated for any non-pecuniary damages,
the minor child had to be examined by a medical practitioner
who must
then complete a Serious Injury Assessment Form (RAF 4) indicating
that the person claiming, suffered from a Whole Person
Impairment
(WPI) as set out in the Regulations of more than 30%, alternatively
on a narrative test, suffered from a serious injury
as prescribed.
[6]
The
applicant obtained and submitted the RAF 4 forms as contemplated in
section 17
and read with
Regulation 3
of Act, to the Fund.
[7]
Regulation
3
prescribes the method contemplated in
section 17(1A)
for the
determination of "serious injury".
[8]
As
a starting point
regulation 3(1)(a)
, stipulates that a third party
who wishes to claim general damages (referred to in the Regulations
as "non-pecuniary damages)
"shall
submit himself or herself to an assessment by
a
medical practitioner in accordance
with these Regulations".
[9]
Regulation
3(3)(a)
requires that a third party who has been so assessed,
"shall
obtain from the medical practitioner concerned
a
serious injury assessment report".
This is defined as a duly completed
RAF 4 form.
[10] The
RAF 4
form
itself, read with
regulation 3(1)(b)
, requires the
medical practitioner to assess whether the third party's injury is
"serious" in accordance with three sets
of criteria:
(a)
In
terms of
regulation 3(1)(b)(i)
, the Minister may publish a list of
injuries which do not qualify as serious. In 2013 such a list was
published when the rules
were amended. If the third party's injury
falls within that description, it shall not be assessed as serious.
(b)
Regulation
3(1)(b)(ii)
provides that the third party's injury must be assessed
as "serious" if it "resulted in 30 % or more
Impairment
of the Whole Person as provided in the AMA Guides",
which is defined in
Regulation 1
as the "American Medical
Association's Guides to the Evaluation of Permanent Impairment, Sixth
Edition".
(c)
If
an injury does not qualify as "serious" (i.e not reach a 30
% impairment) in terms of
regulation 3(1)(b)(ii)
, it may nonetheless
be assessed as serious under the so-called "narrative test"
provided for in
regulation 3(1)(b)(iii)
, if that injury:
(i)
resulted in a serious long-term
impairment or loss of a body function;
(ii)
constitutes permanent serious
disfigurement;
(iii)
caused
severe long-term mental or severe long-term behavioural disturbance
or disorder; and
(iv)
the
loss of a foetus.
[11] In
terms of
regulation 3(3)(c)
, the Fund is only liable for payment of
general or non-pecuniary damages if: -
a)
a
claim is supported by a RAF 4 form submitted in terms of the Act and
the Regulations; and
b)
the
Fund is satisfied that the injury has been correctly assessed as
serious in terms of the method provided for in the Regulations.
[12] If
the Fund is not satisfied that the assessment was done correctly it
must, either: -
a)
reject
the third party's RAF 4 form and give its reasons for doing so; or
b)
direct
that the third party submits himself or herself to a further
assessment at the Fund's expense by a medical practitioner designated
by the Fund in accordance with the method prescribed in
regulation
3(1)(b).
[13]
Regulation 3(4)
provides for an appeal process should the third party
dispute the Fund's rejection of the RAF 4 form (under
regulation
3(3)(d)(i))
or if either the third party or the Fund wishes to
challenge the assessment by the medical practitioner designated by
the Fund
(under
regulation 3(3)(d)(ii)).
[14] The
aggrieved party must formally declare a dispute by lodging a
prescribed dispute resolution form
("RAF 5") with the
registrar of the Health Professions Council within 90 days of being
informed of the rejection or the
impugned assessment.
Regulation
3(5)(a)
then goes on to say that if this is not done within the time
period prescribed or such longer period as may be granted on
condonation
by the Tribunal, the rejection of the RAF 4 form or the
assessment by the Fund's designated medical practitioner, as the case
may
be, shall become final and binding.
[15]
If a dispute is declared as prescribed,
Regulation 3(8)
provides for the determination by an Appeal Tribunal
of three (3) independent medical practitioners with expertise in the
appropriate
area of medicine, appointed by the registrar of the
Health Professions Council.
[16] In
terms of
regulation 3(13)
, the determination by the Appeal Tribunal
is final and binding. A procedure by which the Appeal Tribunal
enquires into the dispute
is laid down in detail by
regulations 3(4)
to
3
(13). It includes
inter alia ,
the following features:
a)
Both
sides may file submissions, medical reports and opinions.
b)
The
Appeal 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.
c)
The
Appeal Tribunal has wide powers to gather information, including the
power to direct the third party to submit to a further
assessment by
a medical practitioner designated by the Tribunal; to do its own
examination of the third party's injury; and to
direct that further
medical reports be obtained and placed before it.
[17] What
is clear from the forgoing, and taking into consideration the purpose
of the Appeal Tribunal i.e.,
to ascertain whether the serious injury
assessment was done correctly in order to qualify for a claim for
general damages, is an
assessment by the Tribunal of the medical
expert's findings.
[18] From
the Regulations it is clear that the RAF 4 form must be completed by
a medical practitioner. In
Duma
v RAF,
[1]
the Supreme
Court of Appeal found that a person not so registered as a medical
practitioner may not complete a valid RAF 4 serious
injury report. It
is however not a requirement of the Regulations that the RAF 4 form
be completed by an expert in the specific
field of assessment. The
result is that a general practitioner may complete the form and
conclude that the claimant suffered a
serious brain injury without
the assessment having to be done by a Neurosurgeon, Neurologist or a
Psychiatrist.
[19]
The
Appeal Tribunal on the other hand, as stated above, must consist of
medical practitioners in the relevant field of expertise.
This can
only mean that the expertise must be ascertained having regard to the
injuries sustained by the claimant.
[20]
The
logic behind this seems clear. The Appeal Tribunal must consist of
medical experts in the relevant field in order to assess
the
correctness of the conclusion of the medical practitioner completing
the RAF 4 form as the person completing the form need
not be such
expert.
[21] What
is furthermore clear, is the fact that the panel consists of experts
in the particular medical
field. These experts are not experts in the
assessment of fact, but may report on what they find. One would
therefore expect that
a medical practitioner will, in his expert
report or in the RAF 4 serious injury report, indicate that there are
signs of previous
injuries, surgical procedures, scaring, fractures
according to physical observation, X-ray reports, et cetera.
[22] The
medical practitioner completing the RAF 4 form and the Appeal
Tribunal is called upon to, as medical
experts, give an opinion on
the seriousness of the injury by assessing the current condition of
the claimant. The medical practitioner
completing the RAF 4 form is
more often than not, the expert who will testify on behalf of one of
the parties. In that sense he/she
is an expert is in the true sense
of the word.
Finding
by Tribunal
[23]
The Tribunal made the following finding:
i)
"This
80 year old patient was involved in a motor vehicle accident,
10/05/2011. He sustained abrasion to the scalp, contusion
above lived
here and right elbow, injury to right thumb as well as superficial
haematoma left forehead.
ii)
He
was seen by Dr Oelofse, this who indicated 10% of whole person
impairment, due to head injury as well as injury to right thumb.
It
is noted that a shocked tissue mass was present on X-rays of right
thumb with no indication of fractures all obvious injuries
to thumb.
iii)
D
r
J Earle (neurosurgeon), 05/08/2015, indicates a mild traumatic brain
injury.
iv)
taking
all the evidence into account, it is resolved that patient's injuries
be classified as non-serious."
[24] The
decision however, contains a number of factual inaccuracies. The
patient was at the time of the
accident 2 years old. The distinct
impression obtained from the letter quoted above as well as the
answering affidavit is simply
that the tribunal did not apply its
mind properly to the matter facts of the matter.
[25] A
question that immediately arises, is whether the tribunal in fact
properly investigated the matter
referring to a two-year old child
injured, as an 80-year old patient. No explanation is given in the
papers that it might simply
have been a typing error, counsel for the
respondents correctly so, did not venture any answer not contained in
the papers. There
was however no answer in that respect from the
papers.
Injuries
sustained and expert evaluations
[26] The
applicant submitted one serious injury report (RAF 4 form) Dr
Oelofse, an Orthopaedic surgeon after
an evaluation on 11 March 2013.
As already indicated he is properly qualified to complete such a form
even in respect of injuries
not falling within his field of
expertise.
[27]
In his report, he classified the injury
in terms of the AMA guides as 10% whole person impairment (WPI). He
however continues stating
that on the narrative test the patient
suffered a serious long-term impairment loss of bodily function
[28]
He indicates in paragraph 4 of the
assessment report, that the patient was a passenger in a car sitting
in the rear middle. He continues
stating that the patient was treated
at the casualty department, x-rays were taken and he sustained an
abrasion of the scalp, contusion
above the left ear, a contusion to
the right elbow, a superficial haematoma on the left forehead and was
treated symptomatically.
This is confirmed by the RAF one form,
treated by the treating medical practitioners at the it does
hospital. The serious injury
the report continues that he received
trauma counselling and add to fits afterwards and was hospitalised
for observation.
[29]
In paragraph 4.3 it is specifically
indicated that the child's nightmares and his parents have difficulty
in waking him when it
happens. And indicates that he has difficulty
sleeping and that his right thumb is skewed resulting in difficulty
in handling heavy
objects.
[30]
His diagnosis post-concussion syndrome
in a soft tissue injury of the right thumb.
[31]
The applicant also filed two further
reports, one by Dr Earle, a Neurosurgeon and the second by Me
Grootboom, a Clinical Psychologist.
In the report of the neurosurgeon
he refers to the report by Dr Oelofse.
[32]
He concludes that "overall they
suffered no more than a mild traumatic brain injury from which one
does not expect intellectual
or cognitive deficits".
[33]
He continues
to
then note the events after the
discharge of the child. He suffered two episodes of fits afterwards
and was hospitalised for observation
only. Details of the episodes
were not available.
[34]
He also indicated that the child at
present suffers from nightmares and these parents have difficulty in
waking him when it happens.
He has difficulty sleeping, waking a lot
during the night. He also indicated that he suffers with
concentration impairments.
[35] But
is furthermore confirmed by Or Earle is that the child's right thumb
appeared skill. He indicated
that he found it difficult in handling
heavy objects. The report of Dr Earle was completed in 2015, at the
time a Grade R scholar.
[36]
In conclusion he stated that although
the child suffered a mild traumatic brain injury he had early fits
which different from very
early concussive convulsions and must be
regarded as an increased risk factor for developing post- traumatic
epilepsy. He placed
him in the 5 to 7% tending to reach a normal
population within the next 2 to 3 years. The doctor could not find
any intellectual
cognitive deficits. I must state that it is not
expected of a neurosurgeon to make such findings as this field of
expertise are
more in respect of the physical injuries sustained. The
report of Dr Earle is more than two years after that of Dr Oelofse
and
the same symptoms are still found in respect of the left thumb of
the patient.
[37]
Non-pecuniary damages are ever claimed
in respect of the impact .the injuries have on that individual's
life. More often than not
it is found that a severe brain injury
resulted in a very small impact on the person's life after the
injuries. The opposite is
also through. As a rule of thumb one can
hardly then state that because it is a mild a minor injury the person
did not suffer a
serious injury i.e. the sequentially I suffered a
lot of the serious nature. it is this impact on the person's life
which is sought
to be compensated by non-pecuniary all general
damages.
[38]
The assessment of the Psychologist is
therefore of paramount importance having regards to the impact the
injuries might have on
the patient's quality of life and be
indicative of the seriousness of the injury as a result.
[39]
In a report she also refers to the minor
still struggling with his right thumb, still being skewed. From the
test results she concluded
that it indicated a borderline impaired
ability for the right-hand but average manual dexterity for fine
motor skills in the left
hand this suggests that the minor is still
suffering from residual symptoms from the soft tissue injury to his
right hand as the
diagnosed by the Orthopaedic Surgeon.
[40]
She concludes that from the collateral
information and the interview as well as test results it seems the
minor is not experiencing
any emotional symptoms of significance.
[41]
Nearly 2 years after the reports the
Tribunal concludes that the child did not suffer any serious injury
in spite of the report
of Dr Oelofse.
[42]
The tribunal did not enquire further
reports, comment, evidence or submissions by the applicant or even
arranged for an evaluation
by one of the members of the panel or an
independent medical practitioner.
[43]
Of importance is the fact that in all
the reports of further reports are required by educational
psychologists and the like. Those
of not been supplied nor requested.
Constitution
of the tribunal
[44]
Furthermore, the Registrar of the Health Professions Council must
appoint 3 experts in the relevant
field of expertise, as set out
above. To those members so appointed he/she may appoint one further
advisor.
[45] The
Registrar appointed 3 Orthopaedic Surgeons and a Neurosurgeon. It is
not indicated who are the
3 appointed members of the Tribunal and who
is the advisor. The injuries suffered by the minor are not, according
to the hospital
record provided and those documents submitted to the
Tribunal, Orthopaedic in nature, but is a head and brain injury.
[46] On
the face of it and having regard to the requirement that the members
of the Tribunal must be appointed
from experts in the relevant field,
the Tribunal is not correctly constituted.
Review
[47] The
applicant relies
inter alia
on an error of law, an error of
fact as well as a failure on the part of the Tribunal to apply the
narrative test correctly on the
available evidential material.
[48] I am
furthermore of the view that the failure by the Tribunal to properly
evaluate the patient, especially
in the light of the fact that the
tribunal did not itself conduct any examination or assessment, it can
hardly be said that the
patient did not suffer a serious injury.
[49] The grounds for
review are cast in wide terms and are adequate to conclude that the
decision is reviewable.
Conclusion
[50] I therefore find
that the Tribunal was not correctly constituted, being more than 3
members and that
the tribunal did not properly assess the matter.
[51] As a result, the
application must succeed.
Order
[52] The
decision of the 3
rd
respondent dated 27 February 2017 that
the applicant's minor child did not suffer as serious injury as
contemplated in
section 17(1A)
of the
Road Accident Fund Act, 56 of
1996
, as amended as read with the Regulations issued thereunder, is
reviewed and set aside;
[53] The
2
nd
respondent is directed to re-appoint a new tribunal,
properly constituted as set out in
Regulation 3(8)
, i.e, consisting
of only 3 members and if needs be, one advisor, and in the
appropriate fields of expertise;
[54] The
re-constituted Tribunal is ordered to allow the applicant to be
represented at the hearing and
make submissions and provide such
further evidence, documents as she wishes to;
[55] The
first respondent is ordered to pay the costs of the application.
BY
ORDER
M
SNYMAN, AJ
Counsel
for Applicant:
Adv PA Venter
Applicant's
Instructing Attorneys:
Van Zyl Le Roux Inc
Counsel
for First Respondent:
Adv MC Makgato
Respondents'
Instructing Attorneys:
Ramushu Mashile Twala Inc
[1]
Duma v RAF
2013 (6) SA 9
(SCA)