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[2015] ZAGPPHC 502
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Hamilton v Road Accident Fund (60581/14) [2015] ZAGPPHC 502 (19 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION.
PRETORIA)
DATE: 19 JUNE 2015
CASE NO: 60581/14
IN THE MATTER BETWEEN
OLEBILE
HAMILTON
...........................................................................................................
MOILWA
And
ROAD ACCIDENT
FUND
..........................................................................................
First
Respondent
HEALTH PROFESSIONS COUNCIL OF
SA
......................................................
Second
Respondent
THE MINISTER OF
TRANSPORT
.........................................................................
Third
Respondent
DR F J D
STEYN
......................................................................................................
Fourth
Respondent
DR Z
DOMINGO
.........................................................................................................
Fifth
Respondent
DR R K
MARKS
..........................................................................................................
Sixth
Respondent
PROF. G J
VLOK
....................................................................................................
Seventh
Respondent
JUDGMENT
LEGODI J
[1] A victim of road accident, one Mr
Olebile Hamilton Moilwa has approached this court seeking for relief
as follows:
“ BE PLEASED TO TAKE NOTICE that
the Applicant intends to make application to this court for review of
the following administrative
action:
1. The decision and finding by the RAF
Appeal Tribunal (the Fourth, Fifth, Sixth and Seventh Respondents) on
14 February 2014 that
“the injuries will not affect the
applicant’s employability as a taxi driver and that there are
no serious consequences
according to the narrative test” and
thereby the rejection of the claimant’s serious injury
assessment lodged in terms
of the
Road Accident Fund Act 56 of 1996
and its Regulations;
2. And claims an order in the following
terms:
2.1 That the decision of the RAF Appeal
Tribunal (Fourth to Seventh Respondents) dated 14 February 2014 and
communicated to the
Applicants Attorneys on 28 February 2014 be
reviewed and set aside;
2.2 That the matter be remitted to the
RAF Appeal Tribunal for consideration, alternatively, that the above
Honourable Court substitutes
or varies the decision of the RAF Appeal
Tribunal;
2.3 That the First Respondent be
ordered to pay the costs on a scale as between attorney and client,
alternatively that such Respondents
which oppose this application be
ordered to pay the costs thereof;
2.4 Further and/or alternative relief.
”
[2] The application is opposed by the
Road Accident Fund and the Health Professions Council of South Africa
(First and Second respondents
respectively). The
Registrar of the second respondent
appointed members of the Appeal Tribunal to consider an appeal
against the decision taken in
terms of
Regulation 3.
[3] The Fund found that the applicant
did not suffer serious injuries making the Fund liable to compensate
the applicant for general
damages. In terms of
Regulation 3(3)(c)
, the Fund is only
liable for general damages if the claim is supported by a serious
injury assessment (RAF4 form), submitted in
terms of the Act and the
Regulations. The Fund ought to be satisfied that the injuries have
been correctly assessed as serious
in terms of the method provided
for in the Regulations.
[4] The RAF 4 form must be completed in
terms of
Regulation 3(1
)(b) which requires the medical practitioner
to assess whether the third party’s injury is serious in
accordance with three
sets of criteria. In terms of
Regulation
3(1)(b)(ii)
, the third party’s injury must be assessed as
serious, if it resulted in 30% or more impairment of the whole person
as provided
for in the AMA Guide. The AMA Guide is defined in
Regulation 1
as the American Medical Association
Guides to the Evaluation of Permanent
Injury, Sixth Edition. If an injury does not qualify as serious in
terms of
Regulation 3(1
)(b)(ii), it may none the less ‘be
assessed as serious’ under the so called “narrative test”
in terms of
Regulation 3(1)(b)(iii).
It will be so none the less be
assessed as serious if that injury resulted in a serious long term
impairment or loss of a bodily
function, constitutes a permanent
serious disfigurement, resulting in severe long term mental or severe
long term behavioral disturbance
or disorder, or resulting in a loss
of a foetus.
[5] The applicant in his appeal to the
Appeal Tribunal submitted the following information; RAF1 form, RAF4
form, and affidavit
in support of narrative test, the medico legal
reports by Drs Oelofetse and Gantz, the photographs depicting the
applicant’s
injuries and his hospital records.
[6} The decision of the Tribunal is
contained in a letter dated the 28 February 2014 and the reasons for
the decision, are summed
up as follows:
“(i) The patient is 34 year of
age. He sustained the following injuries which included the right
femur fracture, metatarsal
fracture as well as facial injuries.
(ii) According to information, the
fracture healed. The scaring will always be with him but not
affecting him.
(Hi) The injuries will not affect his
employability as a taxi driver and the committee is unanimous that
there are no serious consequences
according to the narrative test".
[7] Two doctors completed the RAF4
forms. That is, Drs Gantz and Van Zyl. The applicant’s injuries
were found to have less
than 30% impairment on the whole of his
person. Dr Van Zyl rated the injuries at 10% and Dr Gantz at 9%.
[8] According to the applicant, Dr Van
Zyl found that his injuries resulted in a serious long term
impairment of loss of a bodily
function and that they constitute
permanent serious disfigurement. Dr Gantz on the other side differed
with this view. In paragraph
37.3.4 of of the founding affidavit,
the applicant contends as follows:
“The decision, in my humble
opinion, which the Appeal Tribunal was faced with was therefore who
was right and who was wrong,
Dr Van Zyl or Dr Gantz?”
[9] The applicant has brought its
review application in terms of PAJA. The grounds of review are
articulated as follows:
“40.
RELEVANT CONSIDERATIONS NOT CONSIDERED
-
SECTION 6(2)(e)(iii)
PAJA
40.1 The RAF Appeal Tribunal’s
rejection of my appeal is based upon a finding by them that my
injuries cannot be typified
as serious long-term impairments under
the narrative test.
40.2 It is apparent from the
medico-legal reports and RAF 4 form attached to this application
(which were available to the RAF Appeal
Tribunal) that this
conclusion reached by them is incorrect, in particular, as certain
relevant opinions of this expert were not
considered.
40.3 I refer the above Honourable Court
to what was already stated above and my legal representatives will
also present the necessary
oral argument in this regard at the
hearina of the matter
THE DECISION NOT RATIONALLY CONNECTED
TO THE EMPOERING PROVISIONS OR
THE PURPOSE FOR WHICH IT WAS TAKEN -
SECTION 6(2)(f)(ii)(aa)
and (bb) of PAJA
41.
41.1 The empowering provision is
Section 17(1)(A)(a)
of the Act which states:
"Assessment of a serious injury
shall be based on a prescribed method adopted of the consultation
with medical sen/ice providers
and shall be reasonable in ensuring
that injuries are assessed in relation to the circumstances to the
third party’’.
[My underlining]
41.2 The narrative test as introduced
by the Regulations is directly aimed at ensuring that the individual
circumstances of the
third party, being me, are considered. This is
the purpose of the hearing and the purpose for which the decision is
made.
41.2 It is evident from the ruling
itself and the reasons as already set out hereinafter, that the
narrative test and/or my personal
circumstances were not considered
properly or at all. The decision therefore cannot be said to be
rationally connected to the purpose
set out in
section 17(1A)(a).
THE DECISION NOT RATIONALLY CONNECTED
TO THE INFORMATION BEFORE THE RAF TO APPEAL TRIBUNAL -
SECTION
6(2)(f)(ii)(cc)
OF PAJA
42.
As already stated the Appeal Tribunal
failed to take into consideration all the information before them and
specifically the RAF4
form completed by Dr. Van Zyl and the report by
Dr.
Oelofse.
THE DECISION NOT RATIONALLY CONNECTED
TO THE REASONS FORWARDED BY THE RAF APPEAL TRIBUNAL -
SECTION
6(2Hf)(in(dd)
of PAJA
43.
41.3 Again the above contentions are
relevant In particular the fact that no reasons were given or
consideration as to how Dr. Gantz
constantly contradicted himself. No
reasons are given why the Appeal Tribunal failed to take into
consideration the RAF4 form completed
by Dr Van Zyl. No reference is
made thereto at all.
41.4 No reasons are given why the
Appeal Tribunal failed to take into consideration the report by Dr.
Oelofse in its entirety. No
reference is made thereto at air.
[10] In paragraph 59 of the answering
affidavit, Dr Gert Jacobus Vlok who chaired the Appeal Tribunal
alluded to the fact that it
is significant to note that although the
AMA Guides and the narrative test constitute two different tests of
assessment, the criteria
under the AMA Guides is always the starting
point in the performance of an assessment and would ordinarily give
one a good indication
as to the severity or seriousness of the
injury, even where the injury does not qualify as serious injury
under that criteria.
According to him, this makes an assessment under
the narrative test easier and more objective, as it is informed by
information
already gathered in an assessment under the AMA Guides.
He indicated that this is the process followed when considering
appeals.
[11] In doing so, the Tribunal
discusses case and evaluates all clinical reports and other related
reports contained in each aspect.
Included in the discussion are
matters relating to key findings and any inconsistencies between the
provided clinical reports.
The tribunal evaluates the data provided
on the RAF4 form and corrolates it with objectives clinical guides
and reports provided
by various specialists who examined the third
party.
[12] The Tribunal also considers how
specific findings relate to the conclusion of the diagnosis and the
MM1 status. It refers to
the current abilities of Activities of Daily
Living (ADL) and any validated deficiencies or supplementary reports
obtained from
other health care professional, if any, who also
examined the third party. The Tribunal considers and deliberates on
how individual
ratings were combined or adduced to create a final
number of rating to explain why certain ratings were disregarded in
the final
analysis due to involve measurements and test results.
[13] Before the Tribunal, the
information was that the applicant had sustained a laceration of the
face, right foot injury and right
femur fracture. He consulted with
Dr Van Zyl on 16 February 2012, virtually two years after conclusion
for the purposes of compiling
a serious injury assessment report
(RAF4 form). The applicant apparently complained about a blocked
nose, difficulty in breathing
through the nose, social problems
regarding the scar on the nose, right foot and leg pains, inability
to run like before. The injury
on the face was described as 5cm
highly visible facial scar, healed right femur fracture and right
foot pes cavas deformity. Dr
van Zyl assessed the applicant’s
WP1 at 7% in respect of the facial scar, and 3% in respect of the pes
cavas deformity, which
resulted in total WP1 of 10%. He assessed the
healed right femur at 0%. In terms of the narrative test, he
concluded that the applicant
sustained serious disfigurement and
serious long term impairment.
[14] The X-Ray report dated 16 February
2012 and compiled by Dr De Beer of Burger Radiologist Incorporated,
shows a deformity of
the right orbit due to old fractures. The report
also recorded the presence of depression with old blow out fracture
of the floor
of the orbit, deformity of the right maxillary and
widening of the right maxillary synchondrosis. Insofar as the right
femur is
concerned, the X-Ray report recorded the deformity of the
femur shaft due to an old commuted fracture of the proximal and mid
shaft
of the femur. A good bony consolidation is reported. Regarding
the right foot, it is recorded that there is pe$ cavus deformity
with
severe metatarsal prumus varas hallux valgus deformity. The 2nd
metatarsal bone is recorded as relatively shorter than 1 in
3rd
metatarsal-bone possibly due to previous trauma and no deformity of
the foot bones noted.
[15] On the other hand, Dr LA Oelofse
(Orthopaedic Surgeon) who examined the applicant on the 6 December
2012 states in his report
that the applicant sustained an injury to
the face, which resulted in secondary problems concerning his
eyesight, nose and asymmetry
of the face. Dr Oelofse deferred to the
opinion of Ear, Nose and Throat Specialist, Ophthalmologist and
Maxilla Facial Surgeon.
In his report, he also recorded that the
applicant has a scar over the upper leg and thigh where the internal
fixation was placed
and that the movements of the knee and hip joint
are within normal limits but with tenderness on palpation. The right
leg longer
than the left leg. He then concluded by stating that the
fracture of the femur neck is healed with the pin protruding into the
soft tissue. He recommended removal of the internal fixation. As for
the right foot injury, Dr Oelofse mentions in his report that
the
applicant is tender over the mid tarsal joints, has loss of sensation
over the mid foot, and the movements of an ankle joint
are mildly
restricted. He diagnosed fractures of the 1st metatarsal joint with
injury to the mid tarsal joints. He recommends local
seroid
injections, physiotherapy and removal of internal fixation and
arthrodesis of the mid tarsal joint. In his report Dr Oelofse
provides a list of the applicant’s current discomforts and work
duties and then concludes by stating that the applicant’s
current loss of productivity as a taxi driver was at 30%.
[16] The applicant was further examined
by Dr Gants (Orthopaedic Surgeon) on 20 May 2013. In his report he
records that there are
2 scars on the nose.
There is one on the centre of the nose
and other on the right side, measuring about 2cm the scar on the
right side of the nose causes
a step in the skin.
Although it is unsightly, it is well
healed. He also noted a lump on the right leg, mid atrophy of the
right muscles, healed but
noticeable scars caused by the surgical
performed on the right femur. He mentions the presence of a mild
dorsal elevation of the
taras, which gave the impression of a pes
cavas. There was however, no cavas mainifestations of pes cavas, such
as clawed toes
and high medical longitudinal orch. Dr Ganzt then
concluded that the applicant sustained facial lacerations, committed
fracture
of the right femur and fractures at the neck of the 3rd and
4th metatarsals of the right foot. In his opinion, the facial scars
do not constitute disfigurement. The right femur fracture is reported
to be solidly united in good position. He too recommends
removal of
the fixations on the femur due to the fact that some are protruding
slightly and most likely restricted range of movement.
He states that
apparently mild cavas of the foot is more a dorsal prominence of the
tarsus, rather than a real elevation of the
medical longitudinal.
Regarding the complaint by the applicant of the pain on the dorsal
aspect of the tarsus, probably related
to the dorsal enlargement at
this level, Dr Gantz states that it does not appear as serious, long
term impairment or loss of body
function. He then concludes by
assessing the applicant’s WP1 at 9% and states that his
injuries do not constitute serious
long-term impairment or loss of
body function or disfigurement.
[17] The Tribunal was also provided
with photographs depicting the scars on the bridge of the nose as
well as the foot. All the
scars are well healed. The photographs of
the foot were found not to be indicative of a cavas foot.
[18] Based on all of the above, the
Tribunal came to the conclusion that the right femur fracture was
well healed with normal alignment.
The metatarsal fractures were
found to be healed. I am unable to find evidence justifying contrary
conclusion by the Tribunal in
this regard.
[19] The Tribunal noted that there are
conflicting reports regarding the pes cavas, which would be part of a
pre-existing condition
and as Dr Ganzt puts it, ‘the prominence
of the metatarsals dorsally’. Dealing with the applicant’s
scars, the
Tribunal had regard to the AMA Guides 6th Edition at page
166. Table 82 deals with scars and lesions. According to those
ratings,
the scars and skin lesions are only significant if they
interfere with some ADL’s and require topical or system
medication.
Having considered all of these, the Tribunal came to the
conclusion that the applicant’s scars to not require any such
treatment
and do not interfere with ADL’s. As a result it was
concluded that the applicant’s injuries did not qualify as a
serious
injury either under the AMA Guides or the narrative test. I
am satisfied that no evidence to suggest that in taking the decision,
the Tribunal committed any of misgivings quoted in paragraph 9 of
this judgment, bearing in mind that the proper approach is whether
or
not the decision by the Tribunal is correct or whether the court
would have arrived at a different conclusion to that of the
Appeal
Tribunal.
[20] Consequently the application is
dismissed with costs.
M F LEGODI
JUDGE OF THE HIGH COURT
FOR THE APPLICANT: ADV. H DU TOIT
INSTRUCTED BY: JO VAN DER WESTHUIZEN
CAMPBELL ATTORNEYS
Ground Floor Wooepecker Place
Hillcrest Office Park PRETORIA,
Tel: 086 100 1129 Ref:
JVW/acs/M012/0001
FOR THE 2nd, 4th to 7th RESPONDENT:
ADV M E MANALA
INSTRUCTED BY: GILDENHUYS MALATJI
INC.
GMI House
Harlequins Office Park
164 Totis Street
Groenkloof, PRETORIA
Tel: 012 428 86 00
REF: Malatji/T Maodi/bgt/01732765