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 296
|
|
Mokhemisa obo M v Health Professions Council of South Africa and Others (33540/2017) [2019] ZAGPPHC 296 (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: 33540 / 2017
31/5/2019
CP
MOKHEMISA 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, the applicant instituted an action against
the Road Accident Fund
("the
Fund' )
on behalf of her minor child
under case number 66120/2015 for the injuries sustained after the
child was involved in a motor vehicle
collision on 9 March 2013, at
the time 5 years old and already in grade R.
[3]
The
applicant claims on behalf of her minor child who was born during
2007. In 2013, the year of the accident, the minor child was
6 years
old. At the outset it should be noted that a child is only obliged to
attend school the year he/she turns 7. Grade R is
the preparatory
year that a child is obliged to attend before starting school in
Grade 1. A child is therefore obliged to attend
Grade R in the year
he/she turns 6 years old. The minor was, according to the
Psychologist's report on which the Tribunal relies
already in grade
R, the year before the accident. The importance hereof will become
clear hereunder.
[4]
The
applicant
inter alia
claimed
for "non-pecuniary damages" (also referred to as "general
damages") suffered as a result of the injuries
sustained by the
minor child.
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.
[23]
In Zeffertt and Paizes The South African
Law of Evidence
[2]
the learned authors, citing an English judgment of National Justice
Compania Navierasa v Prudential Assurance Co Limited 1993 (2)
Lloyd's
Reports 68 at 81, set out the duties of an expert witness, as
follows:
"1.
Expert evidence presented to the Court should be, and should be seen,
to be the independent
product of the expert uninfluenced as to form
or content by the exigencies of litigation;
2.
An
expert witness should provide independent assistance to the Court by
way of objective, unbiased opinion in relation to matters
within his
expertise
. . .
An
expert witness should never assume the role of an advocate;
3.
An
expert witness should state the facts or assumptions upon which his
opinion is based. He should not omit to consider material
facts which
could detract from his concluded opinion;
4.
An
expert witness should make it clear when
a
particular question or issue falls
outside his expertise;
5.
If
an expert opinion
is
not
properly researched because he considers that insufficient data
is
available, then this must be stated
with an indication that the opinion
is
no more than
a
provisional one. In
cases
where an expert witness who
has
prepared a report could not
assert
that the report contained the truth,
the whole truth and nothing but the truth without
some
qualification, that qualification
should be stated in the report.
"
[24] In
the matter of Schneider N.O.
[3]
the court found that the duty of a expert is the following:
"In short
,
an expert
comes
to court
to give the court the benefit of his or her expertise
.
Agreed, an expert
is
called by
a
particular party,
presumably because the conclusion of the expert, using his or her
expertise,
is
in
favour of the line of argument of the particular party.
But
that does not absolve the expert from providing the court with
as
objective
and unbiased opinion. based on his or her expertise,
as
is
possible
.
An expert is not a hired gun who dispenses his or her expertise for
the purposes of a particular case.
An expert does not
assume
the role
of an advocate, nor give evidence which
goes
beyond the
logic which is dictated by the scientific knowledge which that expert
claims to possess."
[my
underlining]
[25]
In the matter of Mathebula v RAF
[4]
Meyer, J stated that "an expert is not entitled, any more than
any other witness, to give hearsay evidence as to any fact,
and all
facts on which the expert witness relies must ordinarily be
established during the trial, except those facts which the
expert
draws as a conclusion by reason of his or her expertise from other
facts which have been admitted by the other party or
established by
admissible evidence".
Wepener, J in Nicholson v Road
Accident Fund
[5]
quoted a passage in S v Gouws
[6]
,
which stated that "the prime function of an expert seems to me
to be to guide the court to a correct decision on questions
found
within his specialised field. His own decision should not, however,
displace that of the tribunal [court] which has to determine
the
issue to be tried".[my insert]
[26]
In court proceedings an expert is there
for the court and not for one of the parties. The basis for the
expert's opinion and report
relates to a specific set of facts either
provided to him by the relevant party or upon the finding by court.
[27]
Should there be a dispute of fact, the
court should enquire from the relevant expert whether his/her opinion
would change, should
the court make a certain finding in respect of
the disputed set of facts. As such the experts gives guidance to the
court as to
what the opinion would be should a certain finding be
made on the facts. It is the duty and purpose of a Court after having
heard
the direct evidence as well as the opinion evidence of the
experts based on the facts before court.
[28]
It is therefore hardly surprising that
the Supreme Court of Appeal in the matter of
The
Road Accident Fund Appeal Tribunal and Others v Gouws and Others
[7]
concluded that it is not within the
jurisdiction of the tribunal to assess causality.
[8]
[29]
At paragraph [33] of the
Gouws
judgement, the Supreme Court of
Appeal clearly states that the medical practitioner who conducts the
initial assessment of the seriousness
may express a view on whether
the injury was caused by the collision. Such a view is clearly based
on the information made available
to him at the time, but he cannot
make a finding of fact so as to state that the injury sustained
during the relevant collision
did not contribute to the current
injury or sequelae.
[30]
I am of the view that the Tribunal is in
no better a position than such an expert. The Tribunal in this matter
did not receive any
representations from the Fund, did not call for
any evidence to be placed before them or any representations to be
made, did not
themselves examine the claimant or had the claimant
examined by an independent expert.
Finding by Tribunal
[31]
The Tribunal relied on a report of a
psychologist, not a medical practitioner, who referred in that report
to a letter from a Grade
R teacher of the minor during 2012, without
even having regard to the content of the letter or the letter being
before thern.
[32]
The Tribunal found that having regard to
the content of the letter to the effect that the child has
pre-existing problems, he did
not suffer a serious injury. As a
result, they made a finding that the condition of the minor or
injuries sustained are not causally
connected to the collision in
which the minor was injured.
Constitution
of the tribunal
[33]
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.
[34]
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.
[35] 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
[36]
The applicant relies
inter
alia
on an error of law, an error of
fact, as well as on a failure on the part of the majority of the
Tribunal to apply the narrative
test correctly and properly on the
available evidential material.
[37]
The grounds for review are cast in wide
terms and are adequate to conclude that the decision is reviewable.
Conclusion
[38]
I found that the Tribunal was not
correctly constituted, being more than 3 members.
[39]
This Tribunal made findings of fact and
causality which it could not and furthermore that the Tribunal
consisted of experts, even
if correctly constituted, who are not
experts in the relevant field of expertise.
[40]
The Tribunal made findings of fact
and/or causality which is not in law authorised or capable of doing.
[41]
As a result, the application must
succeed.
[42]
Mr Hugo for the respondent submitted
that, should I conclude that the Tribunal could not make the findings
in respect of causation,
I should set aside the decision and refer
the matter to the court for determination of the causality.
[43]
I am of the view that, attractive as it
may be, the court cannot make a finding without the Tribunal first
dealing with the matter
properly.
Order
[44]
The decision of the 3r d respondent
dated 28 October 2016 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;
[45]
The 2nd 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;
[46]
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;
[47]
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 M Hugo
Respondents'
Instructing Attorneys:
Mbowane
Attorneys
[1]
Duma v RAF
2013 (6) SA 9 (SCA)
[2]
The South African Law of Evidence
2ed, at 330; also referred
to by Legodi, J in
Nonyane v RAF
(3126/2016)[2017) ZAGPPHC
929 (10 November 2017) at para (6); see also
Twine and Another v
Naidoo and Others
[2018] 1 All SA 297
(GJ) para [18) (per Vally,
J)
Bee v RAF
2018
(4) SA
366
(SCA) par (22)-(23] (minority judgement of Seriti, AJ)
[3]
Schneider NO
&
Others v AA
&
Another
2010
(5) 203 WCC
[4]
Mathebula v RAF
(05967/05) [2006] ZAGPHC (unreported)
[5]
Nicholson v Road Accident Fund
(11453/2007) 2012 SGHC
(unreported)
[6]
S
v Gouws
1967 (4) SA 527 528D
[7]
The Road Accident Fund Appeal Tribunal and Others v Gouws and
Others
2018 (3) SA 413 (SCA)
[8]
Paras [31], [33], [34], [35] and [36]