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[2019] ZAGPPHC 327
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Fray v Health Professions Council of South Africa and Others (16102/17) [2019] ZAGPPHC 327 (29 July 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number:
16102/17
In
the matter between:
ANTONIO
TRIPACHES FRAY
Applicant
and
HEALTH PROFESSIONS
COUNCIL OF SOUTH
AFRICA
First
Respondent
THE REGISTRAR OF THE
HEALTH PROFESSIONS
COUNCIL OF SOUTH
AFRICA
Second
Respondent
THE ROAD ACCIDENT FUND
APPEAL TRIBUNAL
Third
Respondent
THE ROAD ACCIDENT
FUND
Fourth
Respondent
JUDGMENT
POTTERILL
J
[1]
The third respondent, the Road Accident Fund (“RAF”)
rejected the plaintiff, AT Fray’s
(“Fray”) claim
for general damages due to the injuries not constituting a serious
injury in terms of the definition
as set out in Regulation
3(1)(b)(ii) and (iii) which provides as follows:
“
3.
Assessment of serious injury in terms of Section 17(1)(A)
(1)(b) The medical
practitioner shall assess whether the third parties injury is serious
in accordance with the following method:
(iii)
An injury which does not result in thirty percent 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;”
[2]
Fray then declared a dispute and the issue of whether the injuries in
fact did constitute a serious
injury was referred to the Road
Accident Fund Appeal Tribunal, the first respondent (“the
Appeal Tribunal”).
It was common cause that the injuries
to Fray did not result in a 30 % or more impairment of the whole
person and that the injury
accordingly had to be assessed in terms of
the so-called narrative test. The Appeal Tribunal rejected the
injuries as constituting
a serious injury in terms of the narrative
test and Fray is thus asking this court to review and set aside this
finding of the
Appeal Tribunal in terms of the Prevention of
Administrative Justice Act, Act 3 of 2000 (“PAJA”).
[3]
The review is brought in terms of s6(2)(d) in that the decision was
materially influenced by an error
of law and/or that in terms of
s6(2)(e)(iii) irrelevant considerations were considered or relevant
considerations were not considered
and/or that the decision amounted
to arbitrary action constituting procedural unfairness in terms of
s6(2)(e)(iv).
The
function and powers of the Appeal Tribunal
[4]
The Appeal Tribunal functions are set out in Regulation 3.
Regulation 3(8)(b) stipulates that
the Tribunal shall consist of
three independent medical practitioners with expertise in appropriate
areas of medicine. One
of these practitioners functions as the
Tribunal’s presiding officer. Regulation 3(11) sets out
the powers of a Tribunal.
Its main function is set out in
Regulation 8(11)(h) and (i):
“
(h)
To confirm the assessment of the medical practitioner or substitute
its own assessment for the disputed assessment
performed by the
medical practitioner, if the majority of the members of the Tribunal
consider it appropriate to substitute;
(i)
To confirm the rejection of the serious injury assessment report by
the Fund or accept the report,
if the majority of the members of the
Tribunal consider it appropriate to accept the serious injury
assessment report.”
[5]
Fray’s main bone of contention with the Appeal Tribunal’s
decision is that the Appeal Tribunal
did not invite Fray to attend
the hearing of the appeal. The Tribunal accordingly did not
examine Fray. The Tribunal
also failed to call for additional
evidence. These points are raised because in terms of
Regulation 3(11) the Appeal Tribunal
has the following powers:
“
(11)(a)
Direct that the third party submit himself/herself at the costs of
the Fund or
an agent for further assessment to assess whether there
is serious injury in terms of the methods set out in this regulation
by
the legal practitioner designated by the Appeal Tribunal;
(b)
Direct, on no less than 5 days written notice, that the party present
himself/herself in the presence
of the Appeal Tribunal at a place and
time indicated in the said notice and examine the third party’s
injury and assess whether
the injuries is serious in terms of the
method set out in these regulations;
(c)
Direct that further medical reports be obtained and placed before the
Appeal Tribunal by one or more
of the parties;
(d)
Direct the relevant pre- and post-accident medical, health and
treatment record pertaining to the third
party to be obtained and
made available to the Appeal Tribunal;
(e)
Direct further submissions to be made by one or more of the parties
and stipulated timeframe in which
the further submissions must be
placed before the tribunal.”
The facts before the
Appeal Tribunal
[6]
Fray has the onus to put the necessary documentation as proof that he
has in fact suffered a serious
injury before the Appeal Tribunal.
Fray submitted the following documents:
1.
RAF5 form;
2.
RAF4 form completed by Dr. J.J. Schutte;
3.
The rejection letter; and
4.
Four colour copies depicting the injuries of Fray; and
5.
A report by Prof. J.F. Jooste.
[7]
On the RAF4 Dr. Schutte set out that in terms of the narrative test
Fray did suffer a serious injury
as follows:
“
The extent of
his serious injuries may lead to future medical/surgical
treatment/procedures.
Acute symptoms still
exist.
All of this will
affect his possible employment, social life and general enjoyment of
life.”
[1]
Under the heading
”
Discussion”
Prof J.F. Jooste reached the
conclusion that Fray had reached maximum medical improvement.
Fray had been left with severe,
serious, permanent disfigurement as a
result of the accident. On the RAF4 form under the heading
“
Serious injury: the narrative test”
Dr.
Schutte marked 5.1 reading “
Serious long-term impairment or
loss of a body function”.
[8]
The Appeal Tribunal concluded that there was assessment by only a
plastic surgeon with the outcome and
diagnosis being scars. The
reported problems related to cosmetic disfigurement. These
scars are from an injury of the
laceration of the left knee and
sacral region that according to the WPI he suffered a 5 % and the
question in fact was whether
in terms of the narrative test he
qualified for cosmesis. The Appeal Tribunal’s decision
was a “
Non-serious musculoskeletal injury”
.
[9]
In this application Fray attached a letter to Honey Attorneys from
Prof. Jooste which was not before
the Appeal Tribunal, in which he
concludes that it is very difficult to quantify the seriousness of a
scar as people’s circumstances
differ widely. However in
utilising the method prescribed in the AMA Guidelines of Table 13-8
he would classify the physical
extent of the scars as mild
abnormalities/1 to 10 %. In determining the interference with
Fray’s ability to assume
normal roles or activities of daily
living he found Fray to have moderate abnormalities/11-20 %.
Reasons
for the review application
[10] In the
founding affidavit the main reason for the bringing of the review is
that the predominant injuries of Fray
relates to the severe scarring
of his left knee and sacral area. It is in fact stated that
what “
fathoms
Fray”
[2]
is why he was not requested to appear in front of the Tribunal.
The panel members of the Tribunal did not have the benefit
of
examining Fray before coming to an opinion. For the first time
in this affidavit Fray sets out that his self-esteem and
bodily
injuries has severely been affected and has left him self-conscious
with a lack of confidence and with a negative self.
He does not
wear long trousers anymore as people constantly stare at his scare
which in turn “
reignites
all the bad memories that I have of the accident.”
[3]
Fray is
struggling to cope with the reality that his scars are a permanent
burden to his physical appearance. Yet the Appeal
Tribunal
found him not to be deserving of receiving compensation for pain and
suffering. The fact that the Appeal Tribunal
did not talk to
Fray to establish the impact of his injuries severely prejudiced Fray
and also denied him his right to a fair administrative
action.
[11]
Annexure “F”, setting out that Fray suffers from serious
permanent disfigurement as a result
of the accident is to be
ignored. This was not in front of the Appeal Tribunal and
cannot now
ex post facto
influence this court. Although
the Tribunal has the power to call Fray to assess him, there is no
duty on the Appeal Tribunal
to do so. On the documents before
the Appeal Tribunal there was also no reason as to why they should
have called Fray, i.e.
insufficient information or glaring
contradictions alerting the panel to invoke their power to call
Fray. It is further apposite
to state that Fray appears to be
relying on the psychological effects of the accident however failed
to provide any proof of such
psychological deficits to the Appeal
Tribunal or RAF. The facts before this court cannot render a
decision of the Appeal
Tribunal to be set aside and is accordingly to
be ignored. Furthermore, Fray submitting that the panel needed
to consist
of a plastic surgeon flies in the face of Fray’s own
documentation which does not rely on the evidence of a plastic
surgeon
who completed the prescribed RAF4 form, but a general
practitioner. Where reliance is heavily placed on the scarring
as the
sequelae of the accident it would be logical for such plastic
surgeon to complete the required forms.
[12] On
this ground of review the court can accordingly not find that the
actions and decision of the Appeal Tribunal
constituted arbitrary
action or was procedurally unfair or that they took irrelevant
considerations into account or disregarded
relevant considerations.
[13] A
party cannot introduce new evidence, annexure “F”, the
letter from Prof. Jooste, as evidence
in support of a review.
It is an abuse of process to introduce evidence which was not before
the Appeal Tribunal and it requires
no further discussion.
[14]
For the first time in the heads of argument the point is made that
the reasons provided by the Appeal Tribunal
was not adequate.
This also requires no further address as it is not set out in the
founding affidavit as a ground for review.
[15]
Fray relied on a ground of review as that the Appeal Tribunal was
influenced by an error in law. Fray
has failed to identify the
provision of the law that erroneously influenced the decision of the
Appeal Tribunal. If reliance
is placed thereon that the Appeal
Tribunal incorrectly applied the narrative test, this argument has to
be dismissed. The
fact that the Appeal Tribunal did not get the
subjective views of Fray is most certainly not a mistake in law.
[16] I am
accordingly satisfied that the application for review should be
dismissed with costs. I accordingly
order same.
__________________
S.
POTTERILL
JUDGE
OF THE HIGH COURT
CASE
NO: 16102/17
HEARD
ON: 20 June 2019
FOR
THE APPLICANT: ADV. M. JACOBS
INSTRUCTED
BY: Honey Attorneys
FOR
THE 1
ST
AND 2
ND
RESPONDENTS: ADV. L.M.
MAITE
INSTRUCTED
BY: Moduka Attorneys
DATE
OF JUDGMENT: 29 July 2019
[1]
Page 11 of the Rule 53 record
[2]
Paragraph 7
[3]
Paragraph 13.5