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[2017] ZAGPPHC 1311
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M and Another v Health Professions Council of South Africa and Others (28001/2016, 2825/2016) [2017] ZAGPPHC 1311 (28 April 2017)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 28001/2016
2825/2016
In
the matter between:
M
APPLICANT
and
M
J
APPLICANT
AND
HEALTH
PROFESSIONS COUNCIL OF SOUTH
FIRST RESPONDENT
AFRICA
THE
REGISTRAR OF THE HEALTH PROFESSIONS SECOND RESPONDENT
COUNCIL
OF SOUTH AFRICA
THE
ROAD ACCIDENT FUND APPEAL TRIBUNAL THIRD
RESPONDENT
THE
ROAD ACCIDENT FUND
FOURTH RESPONDENT
JUDGMENT
TLHAPI
J
Introduction
[1]
These are opposed applications in which the applicants seek the
following orders:
1.
The review and setting aside of the decisions of the second
respondent which
determined that the injuries sustained by the
applicants were not serious within the meaning of
section 17(1A)
of
the
Road Accident Fund Act 56 of 1996
and its regulations
2.
‘That the first respondent be directed to appoint a new Appeal
Tribunal to
determine the disputes reviewed and set aside in
paragraph 1 and to further reconsider on all medico-legal reports
that served
before the Tribunal in respect of the applicants’
injuries and in addition and in respect of the second applicant that
the
reports of Dr Hoffman and Rital van Biljon be considered;
The
review applications are in terms of the
Promotion of Administrative
Justice Act, 3 of 2000
,
sections 6(2)(d)
;
section 6(2)(e)(iii)
and
section 6(2)(e)(vi).
The decision in respect of the first applicant
was taken on 30 September 2015 and in respect of the second applicant
on 28 August
2015.
Since
both applications were heard on the same day this judgment deals with
the applications in respect of both applicants.
FACTUAL
BACKGROUND (M)
[2]
The applicant instituted a claim for compensation for non-pecuniary
loss and presented
an RAF4 form to the fourth respondent, completed
by Dr J.H.S Van Zyl (Orthopaedic Surgeon) who had to assess whether
the applicant
had suffered serious injury, basing such assessment on
the AMA Impairment Rating and on the Narrative test.
[3]
After the fourth respondent rejected the RAF4 as not representing a
serious injury
an Appeal Tribunal was appointed to evaluate and
assess all the medico-legal records from Doctor AC Strydom
(Industrial Psychologist);
Ms Rita van Biljon (Occupational
Therapist); Dr H.B Enslin (Orthopaedic Surgeon)
[4]
The Tribunal consisted of a panel of experts, Doctors, N Mabuya
(Occupational Medicine);
JR Ouma (Specialist Neurosurgeon); Prof
Ngcwelane (Orthopaedic Surgeon) Prof JH Flemming (Occupational
Surgeon). Their decision
that the applicant’s injuries did not
qualify as serious was communicated to the applicant’s
attorneys on 30 September
2015. The applicant contended that the
decision of the tribunal was procedurally unfair because it failed to
mention the reports
which served before it and no reasons were given
for their decision. The Tribunal failed to address the long term
impairment as
opined in the expert reports in that they failed to
apply the Narrative Test to the facts presented in such reports
[5]
In the record of proceedings availed in terms of
rule 53
the
resolution of the tribunal was recorded as follows:
“
The
tribunal members looked as the clinical facts presented before them
by the various reports of the medical experts, including
that of the
treating occupational therapist, the psychologist’s report and
came to a conclusion that this case is not serious
and that it does
not qualify both under the AMA rating system as well as the narrative
test”
[6]
Criticisms levelled against the tribunal were that:
-
It did not receive submissions for the fourth respondent;
-
Failed to consider medical reports presented and the applicants long
term serious disfigurement; and it failed to call for a separate
assessment;
-
No reasons were given for the findings; thereby making it difficult
to assess the reasoning behind the conclusion arrived at based on the
expert medico-legal reports before it;
-
Despite the absence of contradictory evidence, the tribunal arrived
at a conclusion that the injuries were not serious;
[7]
The RAF 4 completed by Dr van Zyl recorded the following :
-
That applicant a grade 11 pupil was involved in a motorbike accident,
admitted to hospital treated with analgesics, x-rayed, traction
applied to right leg and wrist -plate and screws, POP, hip-bruising,
laceration to the right eye. On examination it was recorded that the
radius and femur fractures had healed; he recorded the applicant’s
other symptoms and complaints and his diagnosis;
-
He had concluded that the applicants Whole Person Impairment was 10%,
and that on the narrative test that the applicant suffered from a
serious long term impairment;
-
Multiple injuries- he has plate & screws in-situ in the right
wrist R.O.M deficit & weakened right hand grip;
-
He cannot carry heavy medium to heavy objects; in general it
interferes
with his ADL’s
-
He was a serious contender on the sports field regarding Gold,
Cricket
& other recreational sports and was unable to compete
anymore;
-
Due to his injuries … he failed Gr 11 at school…..
[8]
It was contended that neither the opinion or the reasons for the
opinion of Dr Enslin
were gainsaid by the tribunal. Having identified
the injuries sustained and the sequalae of the applicant relating to
the right
knee, right wrist, right shoulder, right femur as recorded
in his medico legal report concluded, by engaging the narrative test,
that the applicant suffered serious long term injury and loss of
function and qualified to be awarded general damages and his findings
were:
-
The applicant has reached Maximum Medical Improvement but the
injuries
will be felt for years to come;
-
The long term effects of the injuries sustained by the Applicant have
left the Applicant with serious and long-term consequences;
-
The applicant’s prospects as an excellent sportsman have been
negatively impacted upon;
-
The applicant has limitations in respect of his earning capacity. He
will not be able to make a living from sport and will have to perform
administrative work tasks and his work speed could slow down
as he
ages;
-
The applicant’s long term prognosis is limited
-
There is 60% possibility that he could develop arthritis in his right
wrist joint;
-
The probabilities are that the applicant would have to undergo
further
surgical treatment and long term treatment relating to the
injuries sustained and effects of the sequalae reported,
[9]
It was contended further that the tribunal’s decision was
unreasonable in that
the opinions of Elna Kingsley (occupational
therapist), who relying on the same information as Dr Enslin did,
concluded that the
applicant would be restricted to ‘medium
categories of work; the injuries to his right wrist, right hip and
knew restricted
his capacity to work. Therefore, his choices of work
were limited and that his work capacity would improve with proper
treatment.
Dr Strydom (Industrial Psychologist) also relying on the
same medical reports and the applicant’s sequalae opined that
the
he could not function at the capacity he did pre-morbid, the
accident had delayed progression in the work’s environment. The
applicant had as a result become less competitive in the work market.
[10]
It was common cause that the appeal tribunal had not received any
input from the fourth Respondent
(‘the Fund’) despite an
invitation to do so, therefore the only reports available were those
presented by the applicant.
The second respondent was therefore
obliged to appoint a panel of experts who participated in an advisory
capacity. The answering
affidavit was deposed to by the chairperson
of the appeal tribunal, Dr Nomonde Buyisiwe Mabuya. It was averred
that there was no
need to call for additional reports. They concluded
that the applicant’s Whole Person Impairment did not reach the
30% mark
and were therefore, not serious injuries under the Narrative
Test.
[11]
Before the sitting each member of the tribunal is said to be availed
with a pack in respect of
all individual files to be considered at
the meeting. This will consist of the RAF4, all the medico-legal
expert reports, including
hospital, photographs, actuarial reports,
relied upon by them of evaluate each case. They are expected to
independently analyse,
evaluate and formulate their individual views
on all the facts before them relating to the serious injury before
the scheduled
meeting. It was explained that each member would have
worked on the different files for at least 16-20 hours and each file
is allocated
30 minutes for consideration. In as far as the record is
concerned what is recorded is what was communicated to the applicant.
There are no minutes of the deliberations or recordings and no
transcript of such deliberations was available.
[12]
It was contended that the content of the medico-legal reports, the
Regulations and AMA Guides
played a role in the determination of the
seriousness of the injuries. The applicable rules were dealt with in
the answering affidavit
and these shall be dealt with below. The
medico legal reports were revisited, analysed and reference was had
to key findings and
inconsistencies in the reports dealing with the
applicant’s condition. It was denied that the applicant had
failed to apply
the Narrative test or any of its powers or
obligations when considering the reports. It was contended that the
applicant had elected
not to institute PAJA proceedings and decided
to launch the application without seeking reasons for the decision of
the tribunal.
The main findings of the tribunal are to be found from
paragraph 63-69 of the answering affidavit. They unanimously found
that
the applicant’s injuries have not resulted in significant
change to his personal circumstances. It was contended that the
applicant could not second guess the tribunal’s unanimous
conclusions as mentioned in the affidavit.
[13]
It was contended in reply that the tribunal paid scant attention to
the reports and that it was
not entitled to advance additional
reasons as it did for its decisions.
M
J
[14]
The applicant was walking on the side of the road when he was hit by
a motor vehicle. He was
seen by Dr Oelofse who after examination
recorded the following in the RAF4 form:
-
In terms the AMA results he recorded that the applicant suffered a
WPI of 20%; and
-
On the Narrative Test that he suffered :
-
A serious long term impairment
-
The patient is candidate for long term medical and surgical
intervention;
-
He will need long term rehabilitation by means of physiotherapy and
Biokinetics;
Further
medico-legal expert reports by Dr Hoffman (Plastic Surgeon) and Rita
van Biljon (Occupation Therapist) both recording the
negative impact
the injury had on his future working ability.
[15]
The tribunal consisting of Dr Szabo (Orthopaedic Surgeon); Dr J Reid
(Neurologist); Dr J Crosier
(Orthopaedic Surgeon) recorded the
following:
“
The
medico legal report states that there is mal-union of the fracture
with 25 degree angulation and early medical compartment
osteoarthritis therefore the Tribunal is unanimous that the claimant
has non-serious musculoskeletal injuries”
Also
in this instance it is contented that the decision of the tribunal
was irrational and unreasonable, and that is amounted to
an error of
law or fact and was procedurally unfair.
[16]
The supplementary affidavit highlighted further observations in the
medico-legal reports which
did not serve before the tribunal, that of
Dr Hoffman as articulated in paragraphs 15 and 16 and that of Rita
van Biljon paragraph
17. The applicant presented these reports on the
basis that the tribunal was empowered to call for additional medical
reports and
had failed to do so. Some of their findings were:
DR
HOFFMAN
-
Scarring over the knee which will not benefit from surgery;
-
The scarring of the left lower leg will not benefit the scar
prevention;
-
Ant attempt at revision might cause complications as the applicant
had already contracted sepsis once;
-
He defers to the opinion of a clinical psychologists with regards to
the applicants acceptance of the fact that the scars will permanent;
RITA
VAN BILJON
-
When the applicant returned to work his employer accommodated him to
perform light jobs until his early retirement due in May 2011;
-
The applicant has been experiencing intermitting left lower leg pain
since the accident which impacts on his ability to lift and carry
weight while maintaining an acceptable biochemical alignment;
-
The osteoarthritis in the applicant’s knee affects his ability
to assume dynamic positions such as squatting and crouching
frequently as any frequent adoption of his positions will contribute
to further degeneration;
[17]
The analysis by the tribunal of the reports are dealt with paragraphs
63-38 and this was the
basis of their finding that the applicant did
not suffer serious injuries as contemplated in the Regulations.
[18]
The answering affidavit at paragraph 42-44 also deals with the
process engaged by the panel in
arriving at its decision as explained
in paragraph 11 above.
THE
LAW
[19]
Compensation by the fourth respondent (‘the Fund’) for
non-pecuniary loss suffered
by a third party in collisions is
provided for in
section 17
(1) and
17
(1A) od the Road Accident Fund
Act 56 of 1996 (the Act’) and its Regulations. According to the
Act and its regulations compensation
is allowed only in the event of
a serious injury being identified. The third party is required to
submit to be assessed by a medical
practitioner recognized by the
first respondent and the method of assessment is one prescribed in
the Act and regulations. The
assessment takes the form of a physical
examination. The gathering of information is objective and in that it
is sourced from medical
expert reports and the RAF4 and from personal
circumstances obtained from the third party. It is common cause that
the initial
assessment was disputed and the appeal tribunal was
constituted in terms of the of the regulations and there was no
objection to
its composition.
[20]
Compensation is awarded to those having suffered serious injury as
prescribed by the Act and
a serious injury results where there is a
Whole Person Impairment (‘WPI’) of 30% or more as
determined according to
the method in the Ama Guides (‘the Ama
Guides (American Medical Association’s Guide to the Evaluation
of Permanent
Impairment). The rating can only be done once the third
party has reached the maximum medical improvement status, (‘MMI’),
which is recovery at a stage where further “medical or surgical
intervention cannot be expected to improve the underlying
impairment’. The third party must have reached permanent
impairment.
[21]
The alternative assessment in the Narrative test is used in order to
evaluate the injuries of
the third party and where the injury does
not reach the 30% or more mark. Here the ‘Impairment of the
Whole Person’
is assessed as a serious injury where (a) it is a
serious long term impairment or loss of body function; (b)
constitutes permanent
serious disfigurement; (c) resulted in a severe
long-term mental or long term behavioural disturbance or disorder; or
(d) resulted
in loss of foetus.
[22]
The appeal tribunal has various powers, which include and subject to
the terms and method set
out in the regulations, to call the third
party for further assessment; to direct that the third party present
him/herself for
further examination by the tribunal; to direct that
further medical reports be placed before the tribunal and further
submissions
be made; determine that in its majority view the injury
was serious; confirm and accept or reject the initial assessment or
substitute
its assessment. The findings of the tribunal are final and
binding, Regulation 3(13).
RATIONALITY
AMND REASONABLENESS
[23]
An administrative decision is reviewable under PAJA where the
decision taken by the decision-maker
was irrational and unreasonable.
Where the court is faced with this determination it is not its
function to substitute the decision
of the decision-maker with its
own, but its function is to determine whether the process and the
decision flowing from the facts/evidence
before it, were related ,
i.e that the decision served the purpose for which the authority to
make such decision was given and,
that the procedure was a fair one.
These trite principles have been stated in various matters before our
courts
: Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC) para 45;
Pharmaceutical
Manufactures Association of South Africa and Another
in re:
Ex
Parte President of the Republic of South Africaand Others
2000
(2) SA 647
(CC) at para 85. In
Albutt v Centre for the Study of
Violence and Reconciliation and Others
2010 (3) SA 293
(CC) at
para 51 the following was stated:
“
..But,
where the decision is challenged on grounds of rationality. Courts
are obliged to examine the means selected to determine
whether they
are rationally related to the objective sought to be achieved. What
must be stressed is that the purpose of the enquiry
is to determine
not whether there are other means that could have been used, but
whether the means selected are rationally related
to the objective
sought to be achieved. And if, objectively speaking, they are not,
they fall short of the standard demanded by
the Constitution”
[24]
It was submitted that the decision was arbitrary, not reasonable or
justified on the evidence
disclosed. The discretion exercised by the
decision maker should be discerned from the record and from an
evaluation of the facts
on record. With regard to applicant Maraz it
was argued for the respondents that the applicant proceeded to launch
the application
without first seeking reasons and that these were
provided in the answering affidavit and that it was those reasons to
which this
court should look in order to determine whether there was
a rational connection between the conclusion or decision on the
material
made available. It was further submitted, that the decision
must be viewed in light of the reasons provided in the answering
affidavit.
In
Brown v The Health Professions Council of South
Africa and Others
case 6449/2015 (WCC)
[2016] JOL 34788(WC)
it
was stated that the brief reasons given in a letter communicating the
decision ‘must not be critically read so as to exclude
any
other explanation to its findings. This seems to suggest that the
respondent in this matter would be justified in giving extensive
reasons in the answering affidavit. In Brown supra the court took
into consideration that the applicant did not give the respondent
an
opportunity to give reasons, having asked for such reasons to be
provided within 90 days and had launched the application in
less than
a month of such letter and without waiting for the reasons within the
time frames provided.
[25]
In National Lotteries Board v South African Education and Environment
Project
2012 (4) SA 504
(SCA) at paragraph 4, Cachalia JA stated:
“
The duty to give reasons
for an administrative decision is a central element of the
constitutional duty to act fairly and the failure
to give reasons,
which include proper or adequate reasons,
should
ordinary render the disputed decision reviewable. In England, the
courts have said that such a decision would ordinarily
be void and
cannot be validated by different reasons given after wards -even if
they show the original decision may have been justified.
For
in truth the latter reasons are not true reasons for the decision but
rather an ex post facto realization of a bad decision”
(my
underlining)
[26]
In my view there is no merit in the suggestion that the applicant
launched an application before
seeking reasons as it was procedurally
required to do and should therefore be satisfied with the reason sin
the answering affidavit.
What is important is for this court to
determine the connectivity between the means chosen to achieve the
decision. The key is
to determine whether the reasons given in the
answering affidavit tally with those in the record as given in terms
of Rule 53 of
the Uniform Rules of Court. What the court is required
to do, is not to test the correctness or not of the decision, or to
substitute
the decision, but to see from the record if the tribunal
applied its mind to what it was empowered to do in light of the
information
before it. Otherwise not engaging in this exercise would
open flood gates to having reasons being supplemented in an answering
affidavit where they were not given in the record.
[27]
It is my view, that if the record is silent on the reasons then the
contention of the applicant
that the findings in the medico-legal
reports remain uncontested should stand. However, if in the record
there are reasons as explained
in the answering affidavit or related
to the explanation in the answering affidavit then the criticism by
the applicants has no
merit.
M:
Although the record mentions Dr Van Zyl, it recorded that there were
no submissions. It does however acknowledge in its finding
that there
were various expert reports by the occupational therapist and t6he
psychologist without mentioning their names and it
excluded
mentioning that the applicant was again seen by an orthopaedic
surgeon. Having regard to paragraph 11 above, I come to
the
conclusion that it is important for the record to correctly reflect
in column 3 that the applicant provided additional reports
and to
mention the experts by name and to give reasons in column four why
the tribunal was of the view that regardless of such
reports, on the
Narrative Test the injury remained non-serious that is, which aspects
of those reports were rejected. The applicant
was seen and examined
by two Orthopaedic surgeons Drs Van Zyl and Dr Enslin and the panel
had two orthopaedics Drs Ngcelwane and
Flemming. There is no
indication in the record were availed to the panel a mere 7 days
before the scheduled hearing, this probably
was at short notice.
MJ:
There was only one report, that of Dr Oelofse which served before the
tribunal. The subsequent reports were filed after the
tribunal had
taken a decision and it was not appropriate to request that the
applicant’s case be considered by the panel
in light of fresh
medico-legal reports being present. The tribunal was
functus
officio
.
I
shall therefore concentrate on Dr Oelofse’s report. Where the
WPI is below 30% and in terms of the regulations the applicant
is
afforded a second opportunity for assessment according to the
narrative test. In the RAF4 and according to the Narrative Test
there
was long term impairment and it was recommended that there be further
assessment for the applicant. No reasons were given
by the tribunal
why this aspect of Dr Oelofse’s recommendation was not accepted
as warranting a further assessment. In the
notice of motion the
applicant calls for further and alternative relief. I am of the view
that in light of Dr Oelofse’s recommendation
and in the
interests of justice it is appropriate to order that the reports of
Dr Hoffmann and Rita van Biljon be considered for
purposes of
assessing the injuries of the applicant.
In
view of the above reasons the decisions of the third respondent are
reviewed and set aside.
[28]
In the result the following order is given;
It
is ordered:
1.
That the decisions of the second respondent dated the 28 August 2015
and 30 September
2015 are reviewed and set aside.
2.
In respect of the first applicant M and for determining the injuries,
the first
respondent is directed to reappoint a new Appeal Tribunal
to determine the dispute reviewed and set aside under paragraph 1
above
to reconsider all the medico-legal reports that served before
the Tribunal, in respect of the injuries of M.
3.
In respect of the second applicant M J and for determining the
injuries, the
First respondent is directed to reappoint a new Appeal
Tribunal to determine the dispute reviewed and set aside under
paragraph
1 above and to reconsider all the medico-legal reports that
served before the Tribunal together with those of Dr Hoffmann and
Rita
van Biljon.
4.
The second respondent is ordered to pay the costs of both
applications.
TLHAPI
VV
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON:
28
APRIL 2017
JUDGMENT
RESERVED ON:
28
APRIL 2017
ATTORNEYS
FOR THE APPLICANT:
VAN
ZYL LE ROUX INC
ATTORNEYS
FOR THE RESPONDENT:
GELDENHUYS
MALATJI INC