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[2018] ZAGPPHC 440
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Vilane v Health Professions Council of South Africa and Others [2018] ZAGPPHC 440 (14 February 2018)
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED.
CASE NO:54182/2016
14/2/2018
In
the matter between:
NN
VILANE
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
RANCHOD
J:
[1]
The applicant sustained injuries in a
motor vehicle accident on 17 February 2013 as a passenger. She was 15
years old at the time
and a scholar in grade 8.
[2]
The applicant seeks the review and
setting aside of a decision by the third respondent (the Tribunal)
which was communicated to
the applicant's attorneys in a letter dated
9 February 2016 to the effect that the injuries sustained by the
applicant are non-serious
in terms of
s17(1A)
of the
Road Accident
Fund Act 56 of 1996
and the regulations framed thereunder (“the
Act” and "the regulations" respectively). Where I
refer to the
first to third respondents collectively they will simply
be called 'the respondent's for the sake of convenience.
[3]
The applicant further seeks an order
that the second respondent be directed to appoint a new appeal
tribunal "to determine
the dispute reviewed and set aside in
paragraph 1 and to further consider all medico-legal reports that
served before the Tribunal
in respect of the Applicant's injuries".
[4]
The applicant submitted an RAF4 form
(Serious Injury Assessment Report) completed by Dr JJ Schutte to the
fourth respondent (the
RAF) as she was claiming,
inter
alia,
non-pecuniary loss. The
requirement for the completion of an RAF4 form is in terms of the Act
and the regulations.
[5]
Dr Schutte determined that the
applicant's Whole Person Impairment (WPI) was 15% which was below the
threshold of 30%. However,
in accordance with the serious injury
narrative test he determined that the applicant had a serious
long-term impairment or loss
of a body function.
[6]
The RAF rejected the assessment and the
applicant thereafter appealed to the third respondent.
[7]
The second respondent constituted the
appeal tribunal comprising of four medical specialists, viz.: -
a)
Dr J. Sager (Orthopaedic Surgeon;)
b)
Dr R. Melville (Neurosurgeon);
c)
Dr M. Hannah (Orthopaedic Surgeon;) and
an additional member; and
d)
Dr J.P Driver Jowett (Orthopaedic
Surgeon.)
[8]
The tribunal met on 16 December 2015 to
consider the appeal and resolved - as set out in the first
applicant's letter dated 9 February
2016 to the applicant's attorneys
that -
"Right elbow doesn't
constitute a serious injury.
Does not qualify for general
damages".
[9]
The applicant contends that the letter
did not provide substantial reasons for the conclusion or how such
decision was reached by
the tribunal.
[10]
The applicant contends further that the tribunal 'failed to consider
all medico-legal reports
in respect of the applicant's injuries and
did not take the narrative test or serious long-term impairment or
loss of a body function
into account when deciding the matter.'
[11]
The applicant says the Tribunal failed
to exercise any of the options available to it i.e. –
-
to have regard to
all expert reports, and/or;
-
direct that the
applicant be assessed by another expert, and/or;
-
follow a proper
procedure of a hearing in order to decide the issues in dispute.
[12]
In the result, so it is submitted -
'the Tribunal materially
misdirected itself by not paying proper heed to the opinions as
expressed in the expert reports filed of
record which lead to a
materially unreasonable decision in respect of the finding under
review,
alternatively
there was a failure on the part of the
majority to properly apply the narrative test on the available
evidential material an that
they were therefore materially influenced
by an error of law and/or fact
alternatively
the decision made
in the circumstances amounted to arbitrary action and is procedurally
unfair hence the decision of the Tribunal
stands to be reviewed and
set aside.'
[13]
Dr Mourad Hanna deposed to the answering
affidavit on behalf of the respondents in which, although he makes a
number of legal submissions,
firstly raises a
point-in-limine
in which he challenges the authority
of the respondent’s attorney to depose to the founding
affidavit on behalf of the applicant.
The
point-in-limine
cannot be sustained as the
respondents did not avail themselves of the procedure laid down in
Rule 7(1) of the Uniform Rules of
Court
[1]
.
[14]
Subsequent to the filing of the record
by the respondents in terms of Rule 53, the applicant delivered a
supplementary founding
affidavit. In it the applicant says the
tribunal applied the incorrect test to determine whether the
applicant qualified for non-pecuniary
loss. "The question that
should have been addressed is not whether the injury is serious but
whether the injury resulted in
a serious long-term impairment of a
body function. The issue was not considered by the Tribunal."
[15]
Dr Hanna, who was the chairman of the
tribunal that considered the applicant’s case, says the
tribunal considered all the
documents before it, including all the
medico-legal reports. It is not clear at all on what basis the
applicant alleges that the
tribunal did not consider the medico-legal
reports.
[16]
Section 17(1) of the Act provides that
the obligation of the RAF to compensate a party for non-pecuniary
loss-
16.1
'shall be limited to compensation for
a
serious injury
as contemplated in
subsection (1A) . . . .'
16.2
Subseciot n 17(1A)(a) provides for the-
'Assessment of a
serious injury
. . . .'
16.3
Regulation 3(1)(b) provides -
'The medical practitioner
shall
assess whether the third party's injury is
serious ....'
16.4
Regulation 3(1)(b)(ii) provides that
where the WPI is more than 30%-
'it shall be assessed
as
serious.'
16.5
Regulation 3(1)(b)(iii) provides that
where the WPI is less than 30% (as is the case in this matter before
me) an injury-
'may only be
a
ssessed as
serious if that injury:
(aa)
resulted in a serious long-term impairment or loss of a body
function;
(bb)
... .' (My underlining).
[17]
It is clear from the wording of the
relevant sections of the Act and the regulations that an assessment
must be made whether an
injury is serious. The tribunal said the
injury to the right elbow did not constitute a serious injury. It
said it considered the
clinical and medico-legal reports of the
applicant's specialists as well as that of Dr Vlok, who provided a
medico-legal report
for the RAF, in conjunction with the RAF4 form.
It applied the narrative test to assist to determine 'whether the
injury has resulted
in a serious long term impairment or loss of
body function.' The tribunal says that in making the assessment it
also took
into account the circumstances of the applicant.
[18]
Hence, the submission that the tribunal
applied the wrong test is without merit.
[19]
The applicant sustained the injuries in
February 2013.
19.1
Dr Oelofse, an orthopaedic surgeon,
examined the applicant on 6 November 2013 and said the applicant has
a loss of function in her
right elbow and is unable to carry even
light objects. He was of the view that the injury could lead to
osteoarthritis and that
the applicant would be an unfair competitor
in the open labour market in future.
19.2
Dr Andre Vlok, also an orthopaedic
surgeon, examined the applicant at a much later date, i.e., on 16
February 2015. It appears that
the applicant informed him that apart
from her current injury to the right elbow she had sustained a
previous supracondylar fracture
of the same elbow when she was nine
years old. She had a closed reduction done of the fracture and
reportedly had no problems with
the elbow following this injury. Dr
Vlok's conclusion is that there is presently a loss of 15 degrees of
full extension of the
right elbow. The range of movement in her right
wrist and shoulder
was,
however,
found to be normal. He concluded that the loss of 15 degrees of
extension was not of any functional significance and did
not require
any further treatment. He also stated that while the applicant did
complain of intermittent discomfort in the right
elbow there was no
apparent cause for it and it should be treated conservatively. Dr
Vlok was of the
view
that
the prognosis of the elbow injury was good and that it was extremely
unlikely that she will develop degenerative changes in
the right
elbow requiring treatment or injury. The latter view appears to have
been based on the X-ray report which states that
there is no evidence
of any degenerative changes in the elbow and apart from the loss of
extension of the elbow she has made a
very good functional recovery
from the injury. He says from an orthopaedic perspective the
applicant will be able to do 'medical'
engineering work until
retirement age. The reference to 'medical' engineering is no doubt an
error as the applicant had told all
the experts who had interviewed
her that she wanted to pursue 'mechanical' engineering studies in the
future. As far as playing
netball is concerned, Dr Vlok was of the
view
that
she can resume playing but it is possible that she will probably not
be able to return to playing at the same she would have
been able to
had the accident not occurred.
19.3
The occupational therapist Elna Kingsley
evaluated the applicant on 24 February 2015 and concluded that she
has suffered a loss
of amenities in that she experiences pain on an
occasional basis in the right elbow, feels self-conscious about the
scars on her
right elbow and right knee and has not been able to
participate in netball since the accident due to the right elbow
pain. Ms Kingsley
is of the opinion that the applicant has suffered a
loss of earning potential but that her work capacity is expected to
improve
with successful treatment although she may be restricted in
terms of choices of work. She concludes that it is not advisable for
the applicant to perform medium to heavy work in future as she could
develop osteoarthritis in her right elbow joint.
19.4
The occupational therapist Ms Gale Vick
who assessed the applicant on 16 February 2015 concludes in her
medico-legal report that
the results of the tests conducted on the
applicant indicate that the applicant should be able to meet the
physical demands of
light to occasional medium range physical work.
According to Vick the applicant’s physical capacity is expected
to improve
when she reaches full maturity. She reports that although
the applicant reported pain in her right elbow and both wrists her
pain
did not impact on her overall performance and opines that the
applicant tends to overstate her pain. According to Vick the pain
and
discomfort in her right elbow and both wrists does not impact on the
applicant's ability to work.
19.5
As I understand the industrial
psychologist Dr AC Strydom's report, the applicant would not be able
to attain a degree in mechanical
engineering as she has a below
average level of reasoning ability and she is likely to experience
some difficulty fully comprehending
complex logic and subtle shades
of meaning. She is of the view that the applicant has the ability to
complete mechanical subjects
at an FET institution.
19.6
The industrial psychologist Dr LA Fourie
concluded that the applicant is potentially slightly limited in terms
of her career options.
He is also of the opinion that, taking
cognisance of the applicant's socio-economic circumstances and her
relatively poor academic
performance, she was not likely to have
completed grade 12 or would only have completed it at a low level.
[20]
These were in essence the findings of
the various experts. However, in view of the elbow injury, it is
apparent that the views of
the orthopaedic surgeons are of importance
as well as that of the occupational therapists. As I said, Dr Vick
examined the applicant
at a much later stage than Dr Oelofse. At that
later stage there was no evidence of degenerative changes in the
right elbow.
[21]
There are certain differences of opinion
between the experts of the applicant and those of the RAF. The appeal
tribunal included
three orthopaedic surgeons. Dr Hannah says the
tribunal considered,
inter alia,
all
the medical reports and came to the conclusion that they did. The
tribunal considered the various opinions and came to its own
conclusion. It is not for this court to second-guess the opinions of
the experts.
[22]
The applicant says the tribunal failed
to exercise its option to direct her to be assessed by another
expert, or hold a hearing
(presumably where the applicant can be
present) founds grounds for review. The relevant statutory provisions
do not provide that
the tribunal
must
have the applicant assessed by
another expert or
must
hold
a hearing. It is an option (a choice) that it may elect to exercise
depending on the circumstances of a case. It determined
that in this
case it was not necessary.
[23]
In all the circumstances the submission
that the tribunal did not pay proper heed to the expert reports which
led it to a materially
unreasonable decision alternatively , that it
was materially influenced by an error of law and/or fact
alternatively that the decision
amounts to arbitrary action and is
procedurally unfair cannot stand up to scrutiny.
[24]
This being a review application, it
would be apposite to set out the distinction between a review and an
appeal and the ambit of
a court's discretion and powers on review. In
Bato Star
[2]
O'Regan J emphasised that:
'Although the review functions of
the Court now have a substantive as well as a procedural ingredient,
the distinction between appeals
and reviews continues to be
significant. The Court should take care not to usurp the functions of
administrative agencies. Its
task is to ensure that the decisions
taken by administrative agencies fall within the bounds of
reasonableness as required by the
Constitution.'
[25]
The learned Judge stated further at
paragraph [48]:
'In treating the decisions of
administrative agencies with the appropriate respect, a Court is
recognising the proper role of the
Executive within the Constitution.
In doing so a Court should be careful not to attribute to itself
superior wisdom in relation
to matters entrusted to other branches of
government. A Court should thus give due weight to findings of fact
and policy
decisions made by those with special expertise and
experience in the field.
The extent to which a Court should give
weight to these considerations will depend upon the character of the
decision itself, as
well as on the identity of the
decision-maker.'(My emphasis.)
[26]
In so far as questions of reasonableness
and rationality are concerned it was held by the Constitutional Court
in
Pharmaceutical Manufacturers
Association
[3]
that:
'Decisions [of administrative
bodies] must be rationally related to the purpose for which the power
was given, otherwise they are
in effect arbitrary and inconsistent
with this requirement. It follows that in order to pass
constitutional scrutiny the exercise
of public power by the executive
and other functionaries must, at least, comply with this requirement.
The setting of this standard
does not mean that the Courts can or
should substitute their opinions as to what is appropriate for the
opinions of those in whom
the power has been vested. As long as the
purpose sought to be achieved by the exercise of public power is
within the authority
of the functionary, and as long as the
functionary's decision, viewed objectively, is rational, a Court
cannot interfere with the
decision simply because it disagrees with
it or considers that the power was exercised inappropriately.'
[27]
The Supreme Court of Appeal dealt with
the question of relevance or irrelevance of different factors in the
decision-making process
in
MEG for
Environmental Affairs and Development Planning v Clairisons
CC
[4]
:
'18 . We think it apparent from
the extracts from her judgment we have recited, and the judgment read
as a whole, that the learned
judge blurred the distinction between an
appeal and a review. It bears repeating that a
review is not
concerned with the correctness of
a
decision made by
a
functionary, but with whether he performed the function with which
he was entrusted.
When the law entrusts a functionary with a
discretion it means just that: the law gives recognition to the
evaluation made by the
functionary to whom the discretion is
entrusted, and it is not open to a court to second-guess his
evaluation. The role of a court
is no more than to ensure that the
decision maker has performed the function with which he was
entrusted. Clearly the court
below, echoing what was said by
Clairisons, was of the view that the factors we have referred to
ought to have counted in favour
of the applicant, whereas the MEC
weighed them against it, but that is to question the correctness of
the MEC's decision, and not
whether he performed the function with
which he was entrusted.
…
22. The law remains, as we see it,
that when a functionary is entrusted with a discretion, the weight to
be attached to particular
factors, or how far a particular factor
affects the eventual determination of the issue, is a matter for the
functionary to decide,
and so long as it acts in good faith (and
reasonably and rationally) a court of law cannot interfere.'
[28]
The case law that I have referred to
shows that the mere fact that I might on the merits have reached a
different conclusion would
not justify a finding that the Tribunal
acted arbitrarily, capriciously or irrationally.
[29]
It is also to be borne in mind that a
medical expert's evaluation of the injuries as serious for purposes
of the narrative test
is a
value
judgment - be it that of the third party's expert or that of a member
of the tribunal.
[30]
The application is dismissed with costs.
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Applicant :
Adv. E.P Van Ransburg
Instructed
by:
Van Zyl Le Roux Inc.
Counsel
on behalf of First to Third Respondent:
Adv I.P Ngobese
Instructed
by :
Moduka Attorneys
Date
heard
:
6 September 2017
Date
delivered:
14 February 2018
[1]
Rule 7(1) provides:
'Subject
to the provisions of subrules (2) and (3) a power of attorney to act
need not be filed, but the authority of anyone acting
on behalf of a
party may, within 10 days after it has come to the notice of a party
that such person is so acting, or with the
leave of the court on
good cause shown at any time before judgment, be disputed,
whereafter such person may no longer act unless
he satisfied the
court that he is authorised so to act, and to enable him to do so
the court may postpone the hearing of the
action or application.'
[2]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others 2004(4) SA 490 (CC) at para [45]
[3]
Pharmaceutical Manufacturers Association of South Africa and
another: in re: Ex Parte President of the Republic of South Africa
and Others 2000(2) SA 647 (CC) at para [85]
[4]
MEC for Environmental Affairs and Development Planning v Clairisons
CC (408/2012)[2013] ZASCA 82 at paras [18] and [22]