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[2012] ZAWCHC 145
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Geel v Road Accident Fund (20964/2011) [2012] ZAWCHC 145 (6 August 2012)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No: 20964/2011
Before: The Hon Mr Justice Binns-Ward
In the matter between:
MICHELLE GEEL
…............................................................................................................
Plaintiff
and
THE ROAD ACCIDENT FUND
….......................................................................................
Defendant
JUDGMENT DELIVERED: 6 AUGUST 2012
BINNS-WARD J:
The matter in issue between the parties is the meaning of the term
‘
medical practitioner
’ in s 24(2)(a) of the
Road Accident Fund Act 56 of 1996 (‘the Act’).
Section 24 of the Act regulates
the procedure in respect of the
lodging of claims against the Fund for compensation in damages for
the consequences of death
or bodily injury wrongfully caused by the
driving of motor vehicles.
1
The provision requires the claim to be submitted on a prescribed
form. The prescribed form incorporates provision for a medical
report.
Section 24(2)(a) of the Act provides:
The medical report shall be completed on the prescribed
form by the medical practitioner who treated the deceased or injured
person
for the bodily injuries sustained in the accident from which
the claim arises, or by the superintendent (or his or her
representative)
of the hospital where the deceased or injured person
was treated for such bodily injuries: Provided that, if the medical
practitioner
or superintendent (or his or her representative)
concerned fails to complete the medical report on request within a
reasonable
time and it appears that as a result of the passage of
time the claim concerned may become prescribed, the medical report
may be
completed by another medical practitioner who has fully
satisfied himself or herself regarding the cause of the death or the
nature
and treatment of the bodily injuries in respect of which the
claim is made.
In terms of s 24(4)(a), any claim form which is not completed in
all its particulars shall not be acceptable as a claim under
the Act.
The medical report section of the prescribed claim form submitted by
the plaintiff was completed by a chiropractor. The chiropractor
set
out his qualifications in the place provided in the form as ‘
Doctor
of Chiropractic
’. There is no allegation on the pleadings
that the chiropractor in question is not duly registered and
entitled to practise
as such in terms of the applicable legislation.
The completed medical report recorded that the plaintiff had
sustained ‘
fairly severe
’
2
injuries to her neck and back. The details of the injuries sustained
were described in the report as follows: ‘
Cervical whiplash
associated with cervical vertebral subluxation complex. Thoracic
subluxation complex associated w/rib subluxation
as well as
intercostal sprain/strain and costo-chondral inflammation. Lumbalgia
with paraspinal sprain/strain and SI joint sprain
’. The
report described the treatment given to the plaintiff to date as
‘
Chiropractic manipulative therapy involving manual and
instrument adjusting preceded by an exam and consultation.
Rehabilitative
exercises and stretches. Electronic muscle
stimulation
’. It stated the treating chiropractor’s
opinion that permanent disability in the form of chronic neck and
low back
pain was to be expected, and predicted that the plaintiff
would require to undergo one to two chiropractic manipulative
therapy
treatments per month indefinitely, at a currently estimated
cost of R400 per treatment.
The Fund has taken the point that a chiropractor is not a ‘
medical
practitioner
’ within the meaning of s 24(2)(a) of the
Act and that, in consequence, the plaintiff’s claim is not
acceptable
in terms of the Act. It is common ground between the
parties that if the point has been well taken the claim would since
have
been extinguished by prescription, and the defect would thus
not be amenable to rectification. The effect of this is that if the
Fund’s construction of the statutory provision were to be
upheld, so too should its special plea of prescription;
aliter
if the point is bad.
Mr
Liddell
, who appeared for the Fund, placed emphasis on the
definition of ‘
medical practitioner
’ in the
Concise Oxford Dictionary. It is to the effect that medical
practitioner means ‘
physician or surgeon
’. It is
well established, however, that while dictionary definitions often
afford useful guidance, lexical research is
by no means
all-determining when it comes to the construction of statutes. The
meaning to be given to words is always dependant
on the context of
their employment.
3
Of greater moment in deciding the meaning and ambit of the term
therefore is the assessment of the its use in the context of
the
provision in question, as well as the role of that provision within
the apparent scope and object of the Act itself –
matters to
which I shall turn presently.
Mr
Liddell
also stressed that the Health Professions Act 56
of 1974 defines ‘
medical practitioner
’ as a
person registered under that Act. He pointed out, correctly, that
chiropractors do not qualify for registration under
Act 56 of 1974,
falling instead to be registered in terms of the Allied Health
Professions Act 63 of 1982. As to these considerations
it has to be
said firstly, that there is no principle in respect of the
interpretation of statutes that enjoins the application
of the
meaning of an expression in one statute to its import in the quite
different context of another statute with unrelated
subject matter.
As I shall demonstrate, it is evident in any event that when the
legislature intended a narrow or especially
defined meaning to be
given to the term ‘
medical practitioner
’ in the
Act it did so expressly. Secondly, a comparative consideration of
the relevant provisions of Act 56 of 1974 with
those of Act 63 of
1982 does not support the distinction that counsel sought to draw;
certainly not for the purposes of construing
s 24(2)(a)
of the
Road Accident Fund Act.
Act
56 of 1974 provides for the registration of practitioners in a
number of health professions. A person may practise in any of those
professions only if he or she is duly registered by one of the
applicable professional boards established in terms of that Act.
The
Health Professions Act does not, however, purport to be the sole
repository of the regulation of persons entitled to diagnose
and
treat ‘physical or mental defects, illnesses or deficiencies
in humankind’. That much follows expressly from
the
qualificatory reference in
s 17(1)(b) of the statute to other legislation regulating
‘
health care providers
’.
4
The qualification allows that categories of health care practitioners
not covered by the Health Professions Act may be authorised
by other
legislation to diagnose and treat such conditions. A chiropractor may
be registered as a ‘
practitioner
’
5
in terms of the Allied Health Professions Act 63 of 1982.
Chiropractic falls within the meaning of the term ‘
allied
health profession
’ within that Act.
6
In terms of s 1(2)(a) of Act 63 of 1982 (a provision inserted in
terms of s1(r) of the Chiropractors, Homeopaths and Allied
Health
Service Professions Act 50 of 2000) –
‘
a practitioner may-
(i) diagnose, and treat or prevent, physical and mental
disease, illness or deficiencies in humans;
(ii) prescribe or dispense medicine; or
(iii) provide or prescribe treatment for such disease,
illness or deficiencies in humans’.
It is no coincidence, in my view, that the wording of s 1(2)(a)
of Act 63 of 1982 follows almost exactly that used in s 17(1)(b)(ii)
and (iv) of Act 56 of 1974.
7
The result is that there is no difference in principle between the
authority of a practitioner registered under either statute
to
diagnose and treat physical illness or ‘deficiencies’.
The suitability of a practitioner to diagnose and treat a
particular
illness or condition will, of course, depend on the practitioner’s
particular discipline or speciality, and the
pertinence thereof to
the given condition.
The Fund is a statutory body with juristic
personality established in terms of s 2(1) of the Act. The
object of the Fund
is ‘
the
payment of compensation in accordance with th
[e]
Act for loss or damage wrongfully
caused by the driving of motor vehicles
’.
8
It is thus an ‘
organ of state
’
within the meaning of paragraph (b)(ii) of the definition of the
term in s 239 of the Constitution.
9
The proper functioning of the Fund has significance within the
context of the state’s duty, in terms of s 7(2) of
the
Constitution,
10
to protect, promote and fulfil the rights in the Bill of Rights,
especially the rights to human dignity, security of the person,
access to health care services and social security. This much has
been confirmed in the recent jurisprudence of the Constitutional
Court, and indeed also of this court; see
Law
Society of South Africa and Others v Minister of Transport and
Another
2011
(1) SA 400
(CC);
2011 (2) BCLR 150
at para.s 56-101,
Mvumvu
and Others v Minister of Transport and Another
2011
(2) SA 473 (CC)
,
2011 (8) BCLR
792
at para. 20,
Road Accident Fund and Another v
Mdeyide
2011 (2) SA 26
(CC);
2011 (1)
BCLR 1
at para.s 4 and 125-126, and
Daniels
and Others v Road Accident Fund and Others
[2011]
ZAWCHC 332
(28 April 2011) at para.s 14-16.
In
A
etna Insurance Co v Minister of
Justice
1960 (3) SA
273 (A),
at 285E-F, it was stated about
the Act’s original predecessor on the statute book that
its
very reason for existence was
‘
to
give the greatest possible protection . . . to persons who have
suffered loss through a negligent or unlawful act on the part
of the
driver or owner of a motor vehicle’
. The pertinence
of that observation to the various manifestations of the statutory
bodies responsible under the successive statutory
instruments for
the compensation of road accident victims and their dependants has
been acknowledged by the highest courts on
repeated occasions over
the intervening years.
11
(
The relevant legislative history since 1942
is related in
Law Society of South
Africa and Others v Minister of Transport and Another
supra,
at para. 17-21.) In
Engelbrecht
v Road Accident Fund and Another
[2007] ZACC 1
;
2007 (6) SA 96
(CC);
2007 (5) BCLR 457
(CC), at para. 23, the
Constitutional Court confirmed that the legislature’s primary
concern in enacting the Act remained
the same as it had been in
respect of all the preceding statutes, beginning with the Motor
Vehicle Insurance Act 29 of 1942.
These considerations bring forcefully to the fore for the purpose of
the current matter the enjoinder in s 39(2) of the
Constitution
that legislation must be interpreted to promote the spirit, purport
and objects of the Bill of Rights.
Having set the backdrop it is time to examine the purpose of
s 24(2)(a) of the Act. The purpose is clear, and it is matter
on which there is no excuse for uncertainty or doubt by the
defendant, for it has been the subject of judicial exposition in
previous litigation to which the Fund has been party. See, for
example,
Road Accident Fund v Klisiewicz
[2002] ZASCA 57
(29
May 2002), in which Howie JA emphasised the that it was
function of the Fund in terms of the statutory scheme to investigate
and settle compensation claims under the statute and to defend
matters only ‘when litigation is responsibly contestable’.
Howie JA’s remarks in this regard were cited and endorsed (per
Maya JA) in
Madzunye
and Another v Road Accident Fund
2007 (1) SA 165
(SCA) at para.s 17-18. Thus the information to
be provided by a claimant on the prescribed claim form, including
the medical
report, is plainly to furnish the Fund with the basic
material upon which to investigate the merits of the matter and
assess
the amount of compensation to be paid; and the requirements
of s 24 - including the 120 day moratorium afforded in terms of
s 24(6)
12
- are directed to those ends. The health care professional best
qualified to give firsthand information in respect of the nature
of
the injuries sustained by a claimant and the treatment therefor
already given, or to be anticipated, is the practitioner who
has
been involved in treating the claimant as a patient. That is the
evident rationale for the Act’s requirement that the
medical
report accompanying the submission of the claim has to be completed
by the treating practitioner if that person is available.
‘
Chiropractic
’
is ‘
a system of complementary
medicine based on the diagnosis and manipulative treatment of
misalignments of the joints, especially
those of the spinal
column
’.
13
A chiropractor is a person qualified and registered to practise in
this system of medicine. It is apparent from the discussion
earlier
in this judgment that the statutory regulatory scheme in place in
this country recognises the function of a chiropractor
as a health
professional permitted to diagnose and treat medical conditions.
Practitioners, whether they be registered under
Act 56 of 1974, or
Act 63 of 1982, engage in the diagnosis and treatment of bodily
ailment. Practitioners registered under either
of the statutes
include categories of professional persons who are appropriately
qualified and legally authorised to diagnose
and treat the
plaintiff’s particular malady, as it has been described in the
claim form. The ordinary meaning of ‘
medicine
’
in the relevant sense is ‘
the
science or practice of the diagnosis, treatment, and prevention of
disease
’.
14
Thus to speak of practitioners registered under either of the
statutes as ‘
medical
practitioners
’ does no violence
to the ordinary connotation of the etymological components of the
term. It also shows that accepting
that the term ‘
medical
practitioner
’ in the context of
s 24(2)(a) of the Act includes a chiropractor does not entail
unduly stretching the meaning of
the words.
Can it be said then, in the face of the purpose and scope of the
road accident compensation scheme provided in terms of the Act,
that
a person like the plaintiff, who sustains a spinal injury in a motor
vehicle accident, must seek treatment from a practitioner
registered
in terms of Act 56 of 1974, rather than from a chiropractor
registered as a practitioner in terms of Act 63 of 1982,
in order to
put him or herself in a position to be able to submit a claim in a
form compliant with s 24(2)(a) of the Act?
The Fund’s
argument enjoins an affirmative answer to the question. In my
judgment the absurdity of such an answer is patent.
Any
interpretation predicated on a positive answer would do nothing to
advance the achievement of the recognised objects of the
legislation. It would also serve to thwart, rather than to advance,
the promotion and fulfilment of the basic human rights at
which the
legislation is directed. These considerations by themselves justify
the rejection of the construction of s 24(2)(a)
contended for
by the Fund.
But there is yet a further reason to hold against the point taken by
the defendant; for when it is required that the medical
practitioner
involved must be one registered in terms of Act 56 of 1974, the Act
says so expressly. Thus, the serious injury
assessment contemplated
in terms of s 17(1A) of the Act has to be ‘
carried out
by a medical practitioner
registered as such under the
Health Professions Act, 1974 (Act 56 of 1974)
’.
15
(Having regard to the nature and purpose for such an assessment, the
circumscription of the term in that context is understandable.
The
definition of ‘
medical practitioner
’ in the Road
Accident Fund Regulations, 2008,
16
viz. ‘
'medical practitioner' means a person registered as
such under the Health Professions Act, 1974 (Act 56 of 1974)
’,
is pertinent only in respect of regulation 3, which regulates the
procedural aspects of serious injury assessment. In
any event, as Mr
Engers
SC, counsel for the plaintiff, rightly pointed out in
his heads of argument, a definition in subsidiary legislation cannot
be
used to ascribe a contextually inappropriate meaning to a word
used in the principal legislation.
17
)
There is a well established presumption that the legislature is not
given to internal inconsistency, or superfluity in the wording
of
statutes.
18
If it had been intended that the term ‘
medical
practitioner
’ should, without exception, bear the narrow
meaning contended for by the Fund, the circumscription of the term
in s 17(1A)
of the Act would have been superfluous. In my view
there is nothing to displace the presumption that it is not. On the
contrary,
the circumscription serves an evidently distinguishing
purpose.
In the result the following order will issue:
The defendant’s special plea of prescription is dismissed
with costs
.
A.G. BINNS-WARD
Judge of the High Court
Hearing: 31 July 2012
Judgment 6 August 2012
Plaintiff’s counsel: Keith Engers S.C.
Defendant’s counsel: Reuben Liddell
Plaintiff’s attorneys Kantor-Fialkov
Claremont
c/o Bernadt Vukic Potash & Getz
Cape Town
Defendant’s attorneys Riley Incorporated
Wynberg
c/o Robert Charles Inc
Cape Town
1
See
s 3 of the Act for the object of the statute.
2
The
prescribed form calls upon the medical practitioner completing it to
grade the injuries sustained by the claimant as ‘
minor
’
,
‘
fairly severe
’
or ‘
severe
’
,
as the case might be.
3
See
e.g.
City of Johannesburg v Engen
Petroleum Ltd and Another
2009 (4) SA
412
(SCA) at para. 10,
Seven
Eleven Corporation of SA (Pty) Ltd v Cancun Trading No 150 CC
2005 (5) SA 186
(SCA) at para.
24Monsanto
Co v MDB Animal Health (Pty) Ltd (formerly MD Biologics CC)
2001 (2) SA 887
(SCA) at para. 9; and
Fundstrust (Pty) Ltd (in Liquidation) v
Van Deventer
1997 (1) SA 710
(A) at
726H - 727B. In
Fundstrust
,
at the passage cited, Hefer JA observed ‘
Recourse
to authoritative dictionaries is, of course, a permissible and often
helpful method available to the Courts to ascertain
the ordinary
meaning of words (
Association of
Amusement and Novelty Machine Operators and Another v Minister of
Justice and Another
1980 (2) SA
636
(A) at 660F
-
G).
But judicial interpretation cannot be undertaken, as Schreiner JA
observed in
Jaga v Dönges
NO and Another; Bhana v Dönges NO and Another
1950
(4) SA 653
(A) at 664H, by 'excessive peering at the language to be
interpreted without sufficient attention to the contextual scene'.
The
task of the interpreter is, after all, to ascertain the meaning
of a word or expression in the particular context of the statute
in
which it appears (
Loryan (Pty)
Ltd v Solarsh Tea and Coffee (Pty) Ltd
1984
(3) SA 834
(W) at 846G ad fin). As a rule every word or expression
must be given its ordinary meaning and in this regard lexical
research
is useful and at times indispensable. Occasionally,
however, it is not.
’
4
Section
17(1)(b) of Act 56 of 1974 provides:
(1) No person shall be entitled to practise within
the Republic-
(a)…
(b
) except in so far as it is authorised by
legislation regulating health care providers
and sections 33, 34
and 39 of this Act, any health profession the practice of which
mainly consists of-
(i) the physical or mental examination of persons;
(ii) the diagnosis, treatment or prevention of
physical or mental defects, illnesses or deficiencies in humankind;
(iii) the giving of advice in regard to such
defects, illnesses or deficiencies; or
(iv) the prescribing or providing of medicine in
connection with such defects, illnesses or deficiencies,
unless he or she is registered in terms of this Act.
5
In
terms of s 1(1) of Act 63 of 1982, as amended, ‘
practitioner
’
is defined as meaning ‘
a
person registered as an acupuncturist, ayurveda practitioner,
chiropractor, homeopath, naturopath, osteopath or phytotherapist,
in
terms of this Act
’
.
6
See
s 1(1) of Act 63 of 1982, as amended.
7
See
note 4, above for the text of s 17(1)(b) of Act 56 of
1974.
8
See
s 3.
9
The
Constitution of the Republic of South Africa, 1996.
10
See
also s 28(2) of the Constitution in respect of the rights to
access to health care services and social security.
11
See
e.g.
Law
Society of South Africa and Others v Minister of Transport and
Another
supra,
at para 40;
Mvumvu
and Others v Minister of Transport and Another
supra,
at para 20 and
SA
Eagle Insurance Co Ltd v Van der Merwe NO
1998 (2) SA 1091
(SCA) at 1095J – 1096A.
12
Section
24(6) provides:
No claim shall be enforceable by legal proceedings
commenced by a summons served on the Fund or an agent-
(a) before the expiry of a period of 120 days from
the date on which the claim was sent or delivered by hand to the
Fund or the
agent as contemplated in subsection (1); and
(b) before all requirements contemplated in section
19 (f) have been complied with:
Provided that if the Fund or the agent repudiates in
writing liability for the claim before the expiry of the said
period, the
third party may at any time after such repudiation serve
summons on the Fund or the agent, as the case may be.
13
The
Concise Oxford English Dictionary
,
10
th
ed.
revised.
14
Ibid;
sv ‘
medicine
’
.
15
Compensation
for general damages (‘non-pecuniary loss’) is provided
in terms of the Act only to claimants who can
prove that they have
sustained ‘
serious injury as
contemplated in subsection (1A)
’
.
Section 17(1A) of the Act provides:
a) Assessment of a serious injury shall be based on
a prescribed method adopted after consultation with medical service
providers
and shall be reasonable in ensuring that injuries are
assessed in relation to the circumstances of the third party.
(b) The assessment shall be carried out by a medical
practitioner registered as such under the Health Professions Act,
1974 (Act
56 of 1974).
(The current claim antedated amendments to the Act
which introduced the limitation to the right to claim compensation
for general
damages to ‘serious injury’ cases.)
16
Published
in GN R770 in GG 31249 of 21 July 2008.
17
Cf.
e.g.
Amalgamated Engineering Union of
SA v Minister of Labour
1965 (4) SA 94
(W) at 96D and
Chief Registrar of Deeds
v Hamilton-Brown
1969 (2) SA 543
(A)
at 547H.
18
See
e.g.
S v Weinberg
1979
(3) SA 89
(A) at 98D – G and
NST
Ferrochrome (Pty) Ltd v Commissioner for Inland Revenue and Others
2000 (3) SA 1040
(SCA), at para. 12.