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
>>
2016
>>
[2016] ZAGPPHC 171
|
|
Le Roux v Road Accident Fund Appeal Tribunal and Others (41191/2012) [2016] ZAGPPHC 171 (4 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
4/4/16
CASE
N0:41191/2012
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between:
J
O
LE
ROUX
APPLICANT
and
THE
ROAD ACCIDENT FUND APPEAL TRIBUNAL FIRST
RESPONDENT
THE
ROAD ACCIDENT
FUND
SECOND RESPONDENT
THE
REGISTRAR OF THE HEALTH PROFESSIONS
COUNCIL
THIRD
RESPONDENT
JUDGMENT
RANCHOD
J:
Introduction
[1]
The applicant in this matter applies to review and set aside a
decision by an Appeal Tribunal constituted by the Registrar of
the
Health Professions Council of South Africa, the third respondent. The
Tribunal comprised of four members. The decision was
that the
injuries which the applicant sustained as a result of a motor vehicle
accident on 17 October 2008 are not 'serious', as
contemplated in
Regulation 3(i)(b)(iii)(aa) of the Regulations promulgated under the
Road Accident Fund Act 56 of 1996
in the Government Gazette 31249
dated 21 July 2008 (the Regulations).
[2]
The applicant's notice of motion dated 17 July 2012 was amended by
notice dated 11 September 2012 by the addition of a new first
paragraph and the inclusion of an additional phrase in the
alternative prayer. The first and third respondents filed a notice to
oppose the application but did not file an opposing affidavit nor was
it opposed during the hearing. In the result the application
was
granted as well as the application for condonation for the late
filing of the application to amend.
[3]
In terms of the new first paragraph the applicant seeks a declaratory
order to the effect that the findings of Dr J.D Erlank
(a plastic and
reconstructive surgeon) as set out in his medico-legal report and in
the Serious Injury Assessment Report (the RAF4)
completed by him have
not been rejected by the second respondent (the Fund), are not
affected by the appeal proceedings before
the Tribunal and remain
valid for purposes of the applicant's claim against the Fund
including the findings that the applicant's
permanent brain damage
and forehead scar with the accompanying high pain levels, qualify as
serious injuries.
[4]
The applicant also seeks a finding that the RAF4 submitted to the
Fund on 21 October 2011 (as supplemented by the medical report
of Dr
Erlank and the further RAF4 completed by him) is accepted.
[5]
The applicant seeks the following relief
in
the
alternative
:
'1.
That the first and third respondents provide applicant's attorney
with the names of the medical practitioners who determined
his
dispute.
2.
That the matter be considered
de nova
before a
re-constituted tribunal panel (of whom at least one should be a
plastic surgeon) in terms of Regulation 3(8).
3.
That the applicant'1-; attorneys be informed who the persons are who
have been appointed to the re-constituted panel in accordance
with
Regulation 3(9)(a).
4.
That the Tribunal's resolution (decision) be substituted with one in
the following terms:
(a)
The Applicant is directed in terms of Reg 3(11)(c) to provide
further medical reports to the appeal tribunal (with copies
to the
RAF), as envisaged in par 3-4 of the letter of the Applicant's
attorney of record to the appeal tribunal (dated 2011- 11-28)
and par
7-9 of the Applicant's 'Notification of Dispute Annexure RAF5 Form'.
(b)
The Applicant is directed in terms of Reg 3(11)(e) to make further
submissions to the appeal tribunal (and the RAF is also invited
to do
so), within 7 days after submission of the further medical reports
contemplated above.'
[6]
On 21 September 2015 the applicant launched an interlocutory
application to supplement his notice of motion in the main review
application by the addition of a new prayer which reads as follows:
'1.
Reviewing and setting aside the rejection of the serious injury
assessment report by the second respondent (dated 11 November
2011),
which is attached hereto as annexure "B".
2.
Ordering the second respondent to consider de nova (in accordance
with the applicable provisions), whether the assessment that
the
injury is serious, is correct, with due consideration of all the
serious injury assessment reports furnished to it by the applicant
and such further assessment to which it might direct that the
applicant should submit himself'.'
[7]
In his affidavit in support of the application to supplement the
notice of motion, the applicant states as follows:
'5.
The further alternative prayer concerns the unacceptable way in which
the second respondent dealt with the question of the seriousness
of
my injuries.'
[8]
In so far as the applicant seeks the review and setting aside of the
decision of the Tribunal on the basis of alleged flaws
in the
decision of the Fund (the second respondent) is concerned, it is
misconceived. The Appeal Tribunal considers and decides
an appeal
independently of the decisions taken by the Fund. It conducts its own
assessment of the injuries sustained by an applicant
and its decision
is final and determinative of the applicant's claim. The Tribunal is
unencumbered by the considerations or position
taken by the Fund in
rejecting the applicant's SIA Report. This is apparent from
Regulation 3(11) which provides:
'(11)
The appeal tribunal shall have the following powers:
(a)
Direct that the third party submit himself or herself, at the cost of
the Fund or an agent, to a further assessment to ascertain
whether
the injury 1:s serious, in terms of the method set out in these
Regulations, by a medical practitioner designated by the
appeal
tribunal.
(b)
Direct, on no less than five days written notice, that the third
party present himself or herself in person to the appeal tribunal
at
a place and time indicated in the said notice and examine the third
party's injury and assess whether the injury 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...'.
[9] The
review application is opposed by all the respondents.
Background
[10]
Prior to the promulgation of the Regulations a claimant seeking
compensation for injuries sustained in a motor vehicle accident
could,
inter alia,
claim general damages, which is a claim for
non-pecuniary loss.
[11]
The new dispensation ushered in by the
Road Accident Fund Amendment
Act 19 of 2005
and the regulations which came into effect on 1 August
2008 deal with the entitlement of a person who has been injured in a
motor
vehicle accident to claim damages from a statutory insurer,
namely, the Fund. General damages may now only be claimed where a
'serious
injury' has been suffered by the claimant and where this has
been accepted by the Fund or proved in the manner prescribed by
regulation.
[12]
The rationale for the new dispensation and a full description of the
procedures which must be followed in order to prove a
'serious
injury' are set out in paras [3] - [10] of
Road
Accident
Fund
v
Duma
and
3
similar
cases
2013(6)
SA
9
(SCA).
The eligibility for general damages is to be
determined with reference to the American Medical Association Guides
(the AMA Guides)
to impairment rating for all human organ systems.
The threshold of impairment to qualify for general damages is 30%.
The threshold
is not a requirement of the AMA Guides. It has been set
in
Regulation 3(1)(b).
[13]
The question whether a third party has suffered 'serious injury' must
be determined in the manner prescribed by the Regulations.
Section
17(1)
provides that a third party is entitled to compensation for
non-pecuniary loss only if he or she suffered 'serious injury as
contemplated
in subsection (1A)'. The concept of 'serious injury'
accordingly bears the meaning contemplated by
s 17(1A).
Section
17(1A)
states that the assessment of a serious injury 'shall be based
on a prescribed method' and 'shall be carried out by a medical
practitioner'.
These provisions must be read with
Section 26(1A)
of
the Act, which provides that the Minister may make regulations
regarding 'the method of assessment to determine whether ...
a
serious injury had been incurred' and 'the resolution of disputes
arising from any matter provided for in this Act'. The Act
gives no
substantive and objectively determinable content to the concept of
'serious injury'. Re1ulation 3 prescribes the method
by which it must
be determined and provides a dispute resolution mechanism. The
procedure includes the following requirements:
13.1
A
third
party
who
wishes
to
claim
for
compensation
for
a
non
pecuniary
loss
is
required
to
submit
to
an
assessment
by
a
medical
practitioner
[1]
.
13.2
Regulation 3(1)(b) prescribes the criteria the medical practitioner
must
apply in the assessment of whether a third
party has suffered serious injury.
13.3
A
third
party
whose
injury
has
been
assessed
as
serious
is required to obtain a Serious Injury Assessment
Report
(the SIA report) from the medical practitioner concerned
[2]
.
13.4
The
Fund
is only
required
to
compensate
a
third
party
for
non
pecuniary
loss
if a claim
is
supported
by a
SIA
Report
and
it is
satisfied that the
injury
has been correctly
assessed
as
serious in accordance with the prescribed method
[3]
.
13.5
If
the
Fund
is
not
satisfied
that
the
injury
has
been
correctly
assessed
as
serious,
it
must
reject
the
SIA
report
or
direct
the
third
party to undergo a
further
assessment
[4]
.
13.6
If
the
third
party
i
s
not satisfied
with
the
Fund's
rejection
of
the SIA report, he or she may lodge a dispute with the
Registrar
of
the
Health
Professions
Council
of
South
Africa
(the
Registrar)
within 90 days
[5]
.
13.7
Once
a dispute has been declared, the Registrar constitutes an
appeal
Tribunal
of
three
medical
experts
to
determine
whether
the third party does have a serious injury
[6]
.
13.8
The
Tribunal
determines
the
dispute
and
its
determination
is final and binding
[7]
[14]
The scheme of the RAF Act and Regulations is therefore quite clear.
It
is
for the Fund and, thereafter, the Tribunal to determine whether
an
injury is 'serious'. There
is
no
provision
for
a
further
appeal
and
a
court
may
only
entertain the matter to
the
extent permitted by PAJA
[8]
.
The
criteria for assessing the seriousness
of
the
i
njury.
[15]
The criteria to be applied 'by the Fund and the Tribunal in assessing
the seriousness of the injury are set out in Regulations
3(1)(b)(ii)
and (iii) as follows:
'(ii)
If the injury resulted in 30 per cent or more Impairment of the Whole
Person as provided in the AMA Guides, the injury shall
be assessed as
serious.
(iii)
An injury which does not result in 30 per cent or more Impairment of
the Whole Person may only be assessed as serious if that
injury:
(aa)
resulted in a serious long-term impairment or loss of a
body function;
(bb)
constitutes permanent serious disfigurement;
(cc)
resulted in severe long-term mental or severe long-term behavioural
disturbance or disorder; or
(dd)
resulted in loss of a foetus.'
[16]
The test in Regulation 3(1)(b)(iii) is referred to as the narrative
test. It is not intended to be the primary assessment
method
and not intended to allow the Whole Person Impairment (the WPI) test
to be bypassed. Rather, the narrative test may only
be used after the
WPI test has been completed
and
the claimant has not achieved the 30% rating which would
automatically
result
in a finding of serious injury
[9]
. The
test is no more than a 'safety net' to
ensure
that deserving cases falling below the 30% threshold are nevertheless
classified
as serious
[10]
.
[17]
The difference between the narrative test and the WPI assessment is
that the former is inherently open to more disagreement
and debate.
It does not involve a precise measurement of impairment which
can be reduced to a percentage, as is the case
with the WPI test.
Rather, it requires an expert opinion of whether a given injury is,
for example, 'serious' or 'severe' and whether
the impairment is
'permanent' or 'long-term'.
[18]
The applicant's SIA report returned a WPI score of less than 30%. The
applicant therefore relies on the narrative test.
The
applicant's grounds for review
[19]
The applicant raises the following grounds of review:
19.1
The
tribunal was not properly constituted in terms of Regulation 3(8)(b)
and
therefore
its
decision
must
be
declared
null
and
void
[11]
19.2
The
tribunal
failed to
apply
its
mind
properly to
the
factual information
and
legal
principles
applicable
to
the
assessment
when
it
failed to
consider
evidence
regarding
the
narrative
test and therefore disregarded the provisions of regulation
3(
1
)(b)(iii)
[12]
.
19.3
.
The tribunal
failed to apply its mind
when
it dismissed the appeal without obtaining additional medical
reports
[13]
19.4
The
tribunal failed to apply
its
mind when
it
proceeded to dismiss
the
appeal
despite
there
being
no
other
evidence
to
contradict the applicant's
RAF4
forms
by Dr Enslin
and
Dr Erlank
and
therefore,
the
tribunal
did
not
dispute the assessment by Enslin
and
Erlank
on
rationally
relevant grounds
[14]
19.5
The
tribunal
failed
to
apply
its
mind
and
acted
unreasonably,
when it
made
its
decision
without
affording
the
applicant
an opportunity to make further
submissions
in
terms of Regulation 3(11)(e), given the circumstances of the case
[15]
19.6
The
decision
by
the tribunal
was
procedurally
unfair
in
that the Registrar ignored the applicant's request to be
furnished
with the names of the
medical
practitioners
appointed
to
determine
the
dispute and thus deprived
him
of the opportunity to exercise his right
to
object to the appointment of any practitioner, as provided for in
Regulation 3(9)(a) and 3(9)(b)
[16]
The
distinction between an appeal and a review
[20]
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
[17]
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.'
[21]
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.'
[22]
In so far as questions of reasonableness and rationality are
concerned
it
was
held
by
the
Constitutional Court in
Pharmaceutical
Manufacturers
Association
[18]
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 'pas exercised
inappropriately.'
:
[23]
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 Clairson's
CC
[19]
'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 whim
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 factc13 we have referred to
ought to have counted in favour of the application,
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.'
[24]
The case law that I hav.t 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.
[25]
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.
The
History of the Applicant's claim
[26]
The applicant was injured in a motorcycle accident on 17 October 2008
when he sustained a minor head injury, a soft tissue
injury to his
neck, an injury to his left and right knees, an injury to both his
left and right wrists, a soft tissue injury to
his upper and lower
back, a laceration on his forehead and a rib fracture. He was taken
by ambulance to the Midmed Hospital where
he was stabilised. The
laceration on his forehead was sutured, neck collar fitted and an
ultrasound of his abdomen processed. He
received conservative
treatment and was sent home. In other words, he was not admitted to
hospital on the day of the accident.
He was only admitted several
days later on 22 October 2008 until 26 October 2008 for treatment of
generalised pain.
According
to Dr D.A Birrell (who chaired the Tribunal and who deposed to its
answering affidavit in this review application) it
appeared that
since then, there was no evidence of (or none was supplied) that the
applicant had any notable treatment. It appears
from the record that
the applicant had seen Dr Anton de Munnik a few days after his
discharge from hospital. Dr Munnik issued
a medical certificate
certifying that he had treated the applicant on 29 October 2008 for
'evaluering na motorfietsongeluk, (evaluation
after motorcycle
accident) 17 Oktober 2008' and recommended sick leave/light duty for
the period 17 October 2008 until 11 November
2008 for 'herstel'
(recovery).
[27]
The applicant duly lodged a RAF1 claim form with the Fund.
[28]
In September, 2011 Dr T.J Enslin completed a serious injury
assessment report (Form RAF4) and a medico-legal report titled
'Narrative Test'. These were lodged with the RAF, which rejected the
serious injury assessment.
[29]
The applicant's attorneys duly lodged a RAF5 form, declaring a
dispute, with the Registrar in terms of Regulation 3(4). In
the
covering letter dated 28 November 2011 the applicant's attorneys
state in paras 3-5:
'3. You
are kindly referred to the content of the document attached as
annexure to the RAF5 form (page 8 to 11). You will note
that we make
the submission that before the appeal tribunal can consider this
dispute, the medico-legal examinations by the experts
recommended by
Dr. Theo Enslin who performed this serious injury assessment, should
first be completed. Our reasons appear from
pages 8 to 11 to this
bundle of documents.
4.
We have already rrranged for medico-legal examinations to be
conducted by the following experts:
4.1
Dr JD Erlank, plastic and reconstructive surgeon.
4.2
Mrs Eidde Francke, clinical and neuro-psychologist.
4.3
Dr Hans Enslin, orthopaedic surgeon.
4.4
Mr PC Diedericks, industrial psychologist.
4.5
Ms Liesel Keyser, occupational therapist.
5.
We shall provide you with the medico-legal reports as soon as same
come to hand.
[30]
The Registrar acknowledged receipt of the dispute notification in a
letter dated 30 November 2011 and thereafter in a letter
dated 7 May
2012 informed applicant's attorneys that the Tribunal will consider
the matter on 25 May 2012 and mentioned the names
of medical experts
appointed to determine the appeal. They were four orthopaedic
surgeons, a neurologist, an occupational therapist
and an industrial
psychologist. As will be apparent later, ultimately the Tribunal
consisted of only four members.
[31]
One of the grounds for review of the Tribunal's decision is that the
applicant's attorneys were not informed of the names of
the medical
experts on the Tribunal. However, in a supplementary affidavit the
applicant confirmed that the information '' as indeed
supplied in a
letter to his attorney who accepts, said counsel during argument,
that it reached his office but did not come to
his attention - which
is something that the respondents cannot be faulted for. Nothing
further needs to be said about that issue.
[32]
Almost six months after the letter of 28 November 2011, on 14 May
2012, the applicant's attorney addressed a letter to the
Registrar to
supplement the previous letter. Attached to the letter was a
medico-legal report and a further RAF4 form - both compiled
by Dr JD
Erlank. The applicant contends that Dr Erlank's report proves that he
has sustained permanent brain damage, and the scarring
of his
forehead and accompanying high pain levels qualify as serious
injuries.
The
Tribunal's decision and its reasons
[33]
The Tribunal was duly constituted and sat to consider the dispute on
25 May 2012. It unanimously found that the applicant's
injuries could
not be regarded as serious. This decision was conveyed to the
applicant's attorneys in the form of a resolution
in the following
terms:
'The
Tribunal are (sic) unanimous that this patient does not qualify under
the narrative test as a serious injury. They (sic) do
not regard the
scarring of the forehe7_d as significant.
Dr
Shahzad has pointed out that there is no evidence in the
documentation received whatsoever that this patient sustained a head
injury and he does not qualify as a 5% Whole Person Impairment
because of this.
The
left knee injury is also of a minor nature and all-in-all this
patient does not qualify as a serious injury under the narrative
test.'
[34]
In the answering affidavit, Dr Birrell, explains that in arnvmg at is
decision the Tribunal considered all the medico-legal
reports and
X-ray reports that were placed before it, as well as the hospital
records from Midmed Hospital and the Medi-Cross Middleburg
Medical
Centre. The Tribunal noted the injuries as stated in its resolution.
It also noted that the lacerations were sutured, a
7eck collar
applied and ultrasound of the applicant's abdomen was processed. The
Tribunal noted that the applicant was treated
conservatively and
discharged on the same day and thereafter admitted to Midmed Hospital
on the 22 to 28 October 2008 where he
was treated for general pain.
No evidence of further treatment after this was produced.
[35]
The Tribunal noted that the applicant was examined by Dr Theo Enslin,
a General Practitioner, on the 22 September 2011, who
completed an
RAF4 Form and compiled a medico-legal report. According to Dr Enslin,
the applicant, on assessment of the upper and
lower extremities, had
reached a 4% WPI; further that he had unsightly scars of a
disfiguring nature on the forehead and that he
therefore suffered a
permanent serious disfigurement. No mention is made of a brain
c1-
head injury. However, Dr Enslin does go· on to state that
the applicant sustained a minor head injury in the accident on 17
October 2008 and recommends that he be evaluated by a
neuropsychologist for the sequlae following the head injury, as well
as
by a clinical psychologist. The basis for concluding that the
applicant suffered a head injury is not clear.Dr Enslin circled
5.2 of the RAF4 Form to show that the applicant qualified for general
damages under the narrative test in that he sustained permanent
serious disfigurement. However, when the Tribunal compared Dr
Enslin's report with that of Dr Erlank, the plastic and
reconstructive
surgeon who examined the applicant on 6 February 2012,
it concluded that Dr Enslin's finding that the scarrings were a
permanent
serious disfigurement could not be sustained. Dr Erlank had
said in his report that the applicant's scars could be improved by
30%. Consequently, the Tribunal did not find the applicant's scars to
constitute a serious injury.
[36]
Dr Erlank concluded his report by stating that the applicant
qualifies under the narrative test, because of his brain injury.
Dr
Birrell says the Tribunal had great difficulty in accepting this
conclusion for a number of reasons. Firstly, no diagnosis had
been
made that the applicant suffered a brain injury and nor was there any
evidence whatsoever to show this. Secondly, Dr Erlank
is only a
plastic surgeon and is therefore not qualified to make an assessment
regarding brain injury.
[37]
The Tribunal also disagreed with Dr Enslin's evaluation of the
applicant's soft tissue injury to the spine. Dr Enslin reported
that
the applicant had neck pain 'now and then'. In the opinion of the
Tribunal, this did not result in a 2% WPI in that part of
his
injuries.
[38]
Dr Enslin was of the view that the accident resulted in negative
effects on the behavioural and psychological condition of
the
applicant. However, he added that post-traumatic stress could be a
contributing factor and recommended that the applicant be
evaluated
by
inter alia,
an industrial psychologist and a clinical
psychologist. Dr Birrell says no medico-legal reports from such
experts were submitted
by the applicant. I will revert to this aspect
when I deal with the applicant's contention that the Tribunal should
have waited
for these reports which, it was informed, the applicant
was obtaining.
[39]
One of the experts on the panel was Dr Shahzad, a neurosurgeon (a
specialist in head and brain injury) who pointed
out
during the Tribunal meeting that there was no evidence in the
documents before the Tribunal to show that the applicant
had
sustained a head injury. Neither Dr Enslin nor Dr Erlank provide a
basis for saying the applicant suffered a head or brain
injury. It is
to be noted that Drs Enslin and Erlank conducted their examination of
the applicant in 2011 and 2012 respectively.
The Tribunal
inter
alia
had the applicant's medical records of the
date of the accident in 2008.
[40]
Dr Birrell goes on to say that none of the X-ray reports submitted by
the applicant showed any fractures. In fact, the X-ray
report of Dr
Deon Eksteen taken on the day of the accident showed no noticeable
fractures of the skull base and skull roof, as
well as no visible
facial bone fractures.
[41]
Normally, says Dr Birrell, decisions are made by consensus. Where
there is no consensus amongst the three Tribunal members
appointed in
terms of Regulation 3(8)(b), taking into account advice from the
additional member(s) acting in an advisory capacity,
the matter is
referred back for further information. It did not deem it necessary
in this instance.
[42]
In my view, the Tribunal's decision, based on the information before
it cannot be said to have been irrational or unreasonable
or that it
failed to apply its mind to the facts before it. The fact that Drs
Enslin and Erlank concluded that the applicant's
injuries were
'serious' does not in itself justify a finding of irrationality.
[43]
The
question
arises
however,
whether
the
Tribunal
failed
to take
into
account
relevant
considerations
by
deciding
not
to wait for the
medico-legal
reports
that
applicant's
attorney
said
he
was
obtaining
before
it
made
its
decision.
The
applicant contends that
the
Tribunal's
decision
was
unreasonable
in
that
no
reasonable
tribunal
could
have
exercised
its
discretion to
disregard
the request. In
so
far
as
the
ground of unreasonableness
is
concerned,
it
was
held
in
Trinity
Broadcasting
(Ciskei)
v
/CASA
[20]
:
'In
requiring reasonable administrative action, the constitution does
not,
in
my
view,
intend
that
such
action
must,
in
review
proceedings,
be
tested
against
the
reasc11ableness
of
the
merits
of
the
action
in
the same way
as
in an
appeal.
In
other words,
it is
not
required that the action
must
be
substantively
reasonable,
in
that
sense,
in
order
to
withstand a review.
Apart
from that being too high a threshold,
it
would
mean
that
all
administrative
action
would
be
liable
to
correction
on
review
if
objectively
assessed
as
substantively
unreasonable:
cf
Be/
Porto
School
Governing
Body
&
Others
v
Premier,
Western
Cape
&
Another
[2002
(3)
SA 265 (CC) at 282-3 para [46]]..
As
made clear in
Bel
Porto,
the
review
threshold
is
rationality.
Again,
the
test
is
an
objective one
....
Rationality is, as has been shown above, one of the
criteria
now laid down in s 6(2)(f)(ii)
of
the Promotion of Administrative Justice Act.
Reasonableness
can,
of course, be a relevant factor,
but
only where
the
question
is
whether
the
action
is so
unreasonable that no
reasonable
person
would
have
resorted
to
it'
[21]
.
[44]
When he submitted Dr Erlank's report under cover of his letter dated
14 May 2012 the applicant's attorney did not attach any
of the other
expert reports alluded to in his letter of 28 November 2011, nor was
it indicated that the balance of the reports
were to follow. Instead,
the attorney said the following:
'We
refer to previous correspondence herein and attach hereto a copy of a
medical legal report by Dr. JD Erlank as well as a further
RAF4 form,
completed by Dr. JD Erlank. You will note that Dr. Erlank comes to
the conclusion that the injury was a serious injury
on the grounds of
a serious long term impairment or loss of body function as well as on
the ground of a permanent serious disfigurement.
You
are requested to 'inform us of the names of the medical practitioners
appointed to determine the dispute as well as the date
upon which the
appeal tribunal will decide the dispute.'
[45]
The distinct impression created is that that was the only report
being submitted. In my view, to now claim that the Tribunal
should
have waited for the further reports is opportunist/..;.
[46]
Applicant
says
further
that
the
Tribunal
failed
to
exercise
its
investigative powers,
when
it
opted
not
to
call
for
further
evaluations and
did
not
examine
the
applicant
which
it
had
the
power
to
do
in
terms
of
the
Regulations
[22]
.
It
is
to
be
noted
that
these
are
powers
-
not
obligations-
which
the
Tribunal
may
exercise
in
its
discretion
based
on
the
facts
of
each
case.
[47]
In this case before me the Tribunal
did
not
think
it
necessary to direct that
further
submissions
be
made
but rather adopted the view that the applicant's case can be decided
on the available medical evidence which was supplied by
the
applicant
himself.
In
JH
v
Health
Professions
Council
[23]
Rogers J held:
'23
Where the RAF's {the Fund's] rejection of a claimant's serious injury
assessment report is disputed, the lawmaker has entrusted
to the
tribunal the function of determining whether or not to uphold that
rejection. There is no appeal from the
tribunal
to this court. The distinction between appeal and
review must not be blurred...'. Appropriate
respect for the
administrative agency in the present case is particularly apposite,
be 1.ring in mind that one is concerned with
a question of medical
judgment in regard to which the members of the tribunal, unlike the
court, have qualifications and expertise.'
[48]
I turn then to the contention that the panel was irregularly
constituted in that more than three medical practitioners were
appointed and, further, that the medical practitioners appointed did
not have the expertise in the appropriate areas of medicine
as
contemplated in Regulation 3(8)(b) and (c) which provides:
'(b)
The appeal tribunal consists of three independent medical
practitioners with expertise in the appropriate areas of medicine...
(c)
The Registrar may appoint an additional independent health
practitioner with expertise in any appropriate health profession
to
assist the appeal tribunal in an advisory capacity.'
[49]
The tribunal consists of three medical practitioners and an
additional health practitioner, who is not a medical practitioner,
who may be appointed in an advisory capacity to assist the Tribunal.
Dr Birrell says the Tribunal constituted of three orthopaedic
surgeons, a neurosurgeon and an industrial psychologist. Seven
experts were originally appointed to the Tribunal but three of them,
Dr Close, Dr Sekele and Dr Blignaut could not attend the meeting and
their apologies were noted. Dr De Graad, an orthopaedic surgeon
was
then appointed on the panel. In my view Regulation 3(8)(b) should be
read to mean a minimum number of members as opposed to
a maximum. The
appointment of more than three experts can in any event only serve to
benefit an appellant as' his or her case would
be decided by a wider
pool of experts. In the
JH case (supra)
the Tribunal comprised
of four experts.
[50]
Another contention of the applicant is that the panel did not include
a plastic and reconstructive surgeon to determine whether
disfigurement on the forehead was serious. It is apparent from Dr
Birrell's affidavit that the issue of disfigurement was assessed
by
the Tribunal on Dr Erlank's report. In terms of Regulation 3(8)(b)
the Tribunal must consist of medical practitioners with 'expertise
in
the appropriate areas of medicine'. The panel in question consisted
of three orthopaedic surgeons, a neurosurgeon, and an industrial
psychologist. In
Brown
v Healtl1 Professions
Council of South Africa
case No 6449
/
2015
(Western Cape Division) Bozalek J said at para 46:
'It
does not follow from Regulation 3(8)(b) that, should the report of a
particular medical specialist or practitioner such as an
occupational
therapist serve in front of them, the panel is incomplete or
improperly constituted unless it too comprises an occupational
therapist. Such an interpretation or requirement would be an example
of what O'Regan J referred to in Residents of
Joe
Slovo
Community, WC
v
Thubelisha Homes
2010(3) SA 454 CC at para 296 when she stated:
'
... the obligations of fair process imposed upon organs of State must
be approached with a clear eye on the purpose for which
we insist on
process. That purpose is to give affected parties an opportunity to
be heard on a decision before it is finally made.
Fair process
improves the quality of decisions and E..'.. tablishes their
legitimacy. However, it should not result in unnecessary
and prolix
requirements that may strangle government action.' (Footnotes
omitted).
I
respectfully align myself with this view.
[51]
The applicant submitted his claim and dealt with his appeal in a
rather haphazard fashion. Dr Enslin had recommended that medico-legal
reports be obtained from several medico-legal specialists. Instead of
first obtaining the reports, the applicant's attorneys submitted
Dr
Enslin's report to the Fund. When the Fund rejected the applicant's
serious injury assessment, he obtained a report from Dr
Erlank and
submitted it to the Registrar with another RAF4 form. An RAF4 form,
according to the Regulations is to be submitted
to the Fund. As
I understand the Regulations there is no provision for multiple RAF4
forms to be submitted tolf1e Fund. Nor
is there provision for
submitting an RAF4 form directly to the Tribunal via the Registrar;
it may only be submitted to the Fund,
which then has the opportunity
to accept or reject the RAF4 assessment. It is against a rejection by
the Fund of the assessment
that the claimant may appeal in terms of
Regulation 3(4). Submitting the RAF4 directly to the Tribunal would
amount to the Tribunal
being asked to be the determinant in the first
instance and not as an appeal tribunal. Accordingly, the application
for a declaratory
order in paragraph 1 of the amended notice of
motion has no merit and must be refused.
[52]
It was on the basis of all the evidence before it that the Tribunal
arrived at its decision. That decision,' in my view, is
rationally
connected to and supported by the evidence that
was placed before the
Tribunal.
The Tribunal's decision is also reasonable in the
circumstances. The has accordingly failed
to make out a case
for the relief sought applicant
[53]
The application for review falls to be dismissed with costs.
_________________________________
RANCHOD
J
JUDGE
OF THE HIGH COURT
Appearances:
Counsel
on behalf of Applicant : Adv L Kok
Instructed
by:Christo Botha Attorneys Inc.
Counsel
on behalf of first and third Respondents : Adv Maodi
Instructed
by :Gildenhuys, Lessing
: Malatji Inc.
Counsel
on behalf of third Respondent: No appearance
Attorneys
for third Respondent : Lindsay Kellar
Date
heard: 26 November 2015
Date
delivered: 4 April 2016
[1]
Regulation 3(1)(a)
[2]
Regulation
3(3)(a)
[3]
Regulation
3(3)(c)
[4]
Regulation
3(3)(d)
[5]
Regulation 3(4)
[6]
Regulation 3(8)
[7]
Regulation 3(13)
[8]
Promotion of Administrative Justice Act 3 of
2000
.
See
Road Accident Fund v Duma and three Similar Cases 2013(6) SA 0 (SCA)
at para l
9(e)
[9]
Duma and Three Similar Cases, supra at paras 34-37
[10]
Law Society of South Africa and Others v Minister of Transport and
Another, 2010(11) BCLR 1140 (GNP) at paras 63-65
[11]
Page 339-341 para 5-9 of
the
applicant's Replying Affidavit
[12]
Page 10,
para
9.2 of the applicant's Founding Affidavit
[13]
Page 11, 12 and 13
of
the Applicant's Founding Affidavit
[14]
Page 12,
para
14
of
the applicant's Founding Affidavit
[15]
Page 13
&
14,
para
15.3
Applicant's
Founding Affidavit
[16]
Page 13,
para
15.2
of
the Applicant's Founding Affidavit
[17]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others 2004(4) SA 490 (CC) at para [45]
[18]
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]
[19]
MEC for Environmental Affairs and Development Planning v Clairison's
CC (408/2012)
[2013]
ZASCA
82
at para
[18]
and [22]
[20]
2004(3)
SA
346 (SCA) at para
[20]
[21]
Section
6(2)(h)
[22]
Regulation 3(
3>
11)
inter
alia
provides:
The appeal tribunal shall have the following powers:
(a)
Direct that the third party submit himself or herself, at the cost
of the Fund or an agent, to a further assessment
to ascertain
whether the injury is serious, in terms of the method set out
in these Regulations, by a medical practitioner
designated by the
appeal tribunal.
(b)
Direct, on no less than five days written notice, that the third
party present himself or herself in person to the appeal
tribunal at
a place and time indicated in the said notice and examine the third
party's injury and assess whether the injury
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 that relevant pre- and post-accident medical, health and
treatment records pertaining to the third party be obtained
and made
available to the appeal tribunal.
(e)
Direct that further submissions be made by one or more of the
parties and stipulate the time frame within which such
further
submissions must be placed before the appeal tribunal.
(f)
Refuse to decide a dispute until a party has complied with any
direction in paragraphs (a) to (e) above.
(g)
Determine whether in its majority view the injury concerned is
serious in terms of the method set out in these
Regulations.
(h)
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 appeal tribunal consider it appropriate
to
substitute.
(i)
Confirm the rejection of the serious injury assessment report by the
Fund or an agent or accept the report, if the majority
of the
members of the appeal tribunal consider it is appropriate to accept
the serious injury assessment report.
[23]
2016(2) SA 93 (WCC) at para [23]