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[2012] ZAWCHC 281
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Geel v Road Accident Fund (20964/2011) [2012] ZAWCHC 281 (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:
[1]
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.
[2]
Section 24(2)(a) of the Act provides:
The medical report
shall be completed on the prescribed form by the medicai 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.
[3]
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 coynplex 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.
[4]
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.
[5]
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 weir 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.
[6]
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 ,A6t 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.
[7
]
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 fails within the meaning of the term ‘
allied,
health profession
9
within that Act.
6
In terms of s l(2)(a) of Act 63 of 1982 (a provision inserted in
terms of sl(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, illriesVor deficiencies in
humans’.
It
is no coincidence, in my view, that the wording of s l(2)(a) of Act
63 of 1982 follows almost exactly that used in s 17(I)(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 nnder 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.
[8]
The Fund is a statutory body with juristic personality established
in terms of s 2(-l) 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 ;6f 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- (I) SA 400 (CC); 2011 (2) JBCLR 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
Mdevide
2011.(2) SA 26 (CC); 2011 (l).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-
[9]
In
Aetna 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
Engelhrecht
v
Road Accident Fund and Another
2007 (6) SA 96
(CC); 2007
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 .l 942. .
[10]
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.
[11]
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
medicai
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:
[12]
‘
Chiropractic
’
is ‘
a system of complementary
medicine based on the diagnosis and manipulative treatment of
misalignment of the joints, especially
those of the spinal column'.
13
A chiropractor is a person , qualified arid 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 plaintiffs 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
6
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.
[13]
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.
[14]
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(1 A) 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
)
[15]
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 si7(1
A) 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.
[16]
In the result the following order will issue:
The
defendant’s special plea of prescription is dismissed wit
costs.
Hearing:
31 July 2012
Judgment
:
6 August 2012
Plaintiff’s
counsel: Keith Engers S.C.
Defendant’s
counsel: Reuben Liddell
Plaintiffs
attorneys: Kantor-Fialkov .
Claremont
c/c
Bemadt 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 Biologies CC)
2001
(2) SA 887
(SCA) at para. 9; and
Funds
trust (Pty) Ltd (in Liquidation) v Van De venter
1997
(1) SA 710
(A) at 726H - 727B. In
Funds
trust,
at
the passage cited, Hefer JA observed
1
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
at
660F-G), But judicial interpretation cannot be undertaken, as
Schreiner JA observed in
Jaga
v Donges NO
and
Another; Bhana v Ddnges 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
(Lorvan
(Pty) Ltd v Solarsh Tea and Coffee:(Pty) Ltd
1984
ft) 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:
(I) No person
shall be entitled to practise within the Republic-
...
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(l)(b) of Act 56 of 1974.:
8
See
s3
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 Minister of 'Transport and Another,
supra,
at para 20 and
SA Eagle
Insurance Go Ltd
v
Van der Merwe NO
1998
(2) SA’ 1091 (SCA) at 1 095J - 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 writingdiability for the claim before the
expiry of the said period the third party may
!
at any time after such repudiation serve summon on the Fund of the
agent, as the case may be.
13
The
Concise Oxford English Dictionary
,
10
th
ed.
revised.
14
Ibid;
sv
1
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 of1974).
(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. .