Jacobs v Health Professions Council of South Africa and Others (30396/2016) [2017] ZAGPPHC 934 (14 December 2017)

IN THE GAUTENG DIVISION OF THE HIGH COU RT, PRETORIA

Not reportable

Not of interest to other judges

Revised.

14/12/2017

CASE NO: 30396/2016

In the matter between:

J J JACOBS Applicant

and

HEALTH PROFESSIONS COUNCIL

OF SOUTH AFRICA First Respondent

THE REGISTRAR OF THE HEALTH PROFESSIONS

COUNCIL OF SOUTH AFRICA Second Respondent

THE ROAD ACCIDENT FUND APPEAL TRIBUNAL Third Respondent

THE ROAD ACCIDENT FUND Fourth Respondent

JUDGMENT

LOUW, J

[1] The applicant was involved in a motor vehicle accident and instituted a claim against the fourth respondent (the Fund) in terms of the Road Accident Fund Act 56 of 1996 (the Act). The applicant claimed for non­ pecuniary loss, i.e. for general damages, which in terms of s 17 of the Act is limited to compensation for serious injury as contemplated in s 17(A) of the Act. The method of assessment is prescribed in regulation 3 of the regulations published in terms of the Act.

[2] The applicant submitted his claim for general damages to the Fund in the prescribed form (RAF4) which was completed by Dr. Vic Oelofse, an orthopaedic surgeon. He found that the applicant had a whole person impairment of 9°/o and that, according to the narrative test, the applicant had sustained a serious long-term impairment which could cause loss of body function. n his report, he states that the plaintiff sustained an injury to the lumbar spine and that there are signs of affection of the L4-5 facet joint. Although the changes were not very prominent on the applicant's X­ rays, he believed that the condition would with time just deteriorate. He therefore believed that the applicant's accident caused serious long term impairment with loss of lumbar spine function.

[3] The Fund rejected the assessment by Dr. Oelofse. The applicant thereafter lodged an appeal to the third respondent (the tribunal) in terms of regulation 3(4) and provided the second respondent (the registrar) with all the information necessary to assess the

applicant's injuries for referral to the tribunal. Subsequently, a report by Ms. Rita van Biljon, an occupational therapist, was also provided. The registrar then sent a letter to the applicant's attorneys in which they were advised that the matter was scheduled

for hearing by the tribunal on 18 September 2015. The registrar also indicated who had been appointed as expert members of the tribunal for the hearing, being two orthopedic surgeons and one neurosurgeon.

[4] On 19 November 2015, the registrar addressed a letter to the applicant's attorneys informing them that the tribunal at its meeting

held on 18 September 2015 had resolved that the applicant "had sustained a soft tissue injury to his back. The radiological reports that are furnished to us show minimal radiological changes in lumbar spine after such a long period of accident. To have a straight leg rising test positive in both legs one has to have a serious lumbar spine changes in the spine and that is not the case here. The panel finds no reason for general damages.”

[5] In terms of regulation 3(11), the tribunal has wide investigative and fact-finding powers. It can establish for itself whether or not to assess the particular injury as serious, whatever the reasons of the Fund might have been. The nature of the appeal has been described as "an appeal in the wide sense, that is a complete re-hearing of and fresh determination on the merits with additional evidence or information if needs be."[1]

[6] In the present application, the applicant applies for an order reviewing and setting aside the decision of the tribunal that the injuries suffered by the applicant are not serious and for an order directing the first respondent to re-appoint a new appeal tribunal to determine the dispute and to consider all medico- legal reports in respect of the applicant's injuries which served before the tribunal. It is contended in the applicant's founding affidavit that the tribunal misdirected itself by not paying proper heed to the opinions expressed in the expert reports which were filed, which led to a materially unreasonable decision, alternatively that the tribunal failed to properly apply the narrative test on the available evidential material and that it was therefore influenced by an error of law and/or fact, alternatively that the decision amounted to arbitrary action and is procedurally unfair.

[7] It appears from the record which was filed by the first to third respondents that the tribunal was provided with a further medico-legal report by Dr. D A Birrell, who, like Dr. Oelofse, is an orthopaedic surgeon. It appears from Dr. Birrell's report that he examined the applicant on 25 February 2015. He states in his report that he was provided with the report of a radiologist, Dr. Spies, of 15 January 2014 of the applicant's lumbar spine. The opinion expressed by Dr. Birrell in his report is that, based on the evidence of the report of X-rays taken in January 2014, he was satisfied that the applicant most certainly does not qualify as a serious injury under the narrative test. He further states that there is absolutely no indication from the applicant's clinical notes, nor on his examination of the applicant, nor on the X-rays that any serious and notable injuries occurred to the applicant's lumbar spine and that it was questionable whether the applicant actually sustained any sort of lumbar injury.

[8] Pursuant to the filing of the record, the applicant filed a supplementary affidavit which was deposed to by his attorney. The

supplementary affidavit correctly states that it is clear that Dr. Oelofse and Dr. Birrell have diametrically opposed views not only regarding the effect which the applicant's lumbar injury might have on his lumbar functioning, but also in respect of the effect his injury might have on his personal circumstances. The two doctors differ from each other on whether or not the injury sustained by the applicant prevents the applicant from continuing to work as a taxi driver. The supplementary affidavit further states that Dr. Birrell ignored the early disc lesion at L5-Sl which, in the main, led Dr. Oelofse to diagnose problems with the applicant's lumbar spine and led him to extensively discuss the future treatment of the injury and the effect which it might have on his circumstances.

[9] It is submitted in the supplementary affidavit that the tribunal failed to address the diametrically opposed views expressed by Dr. Birrell and Dr. Oelofse. In this regard, the supplementary affidavit points out that the tribunal did not examine the applicant's injuries for themselves; that it did not apply any of the dispute resolution mechanisms contained in the regulations and which fall within its powers to utilise; and that the tribunal's failure to utilise its powers renders its procedure unfair and the exercise of its discretion irrational and arbitrary. It was further submitted by counsel for the applicant that the tribunal erred in not calling for additional evidence and by placing the applicant at a procedural disadvantage by not giving him the opportunity to meet Dr. Birrell's contention that he had not sustained any injury and by not giving the applicant the opportunity to address the issue, thereby failing to apply the principle of audi alteram partem.

[10] The first to third respondents' answering affidavit was deposed to by Dr. IKhan, who was appointed as a member and the presiding officer of the tribunal to consider and adjudicate the applicant's appeal. It appears from the affidavit that the tribunal gave proper attention to all the medico­ lega l reports provided to it, including the report of the occupational therapist, Ms. Van Biljon, whose opinion it was that, with the recommended treatment, the applicant should be able to execute the work functions of a taxi driver. The following is stated in the affidavit:

"63. Having studied the X-ray reports and the medico-legal reports filed in the matter, the tribunal found no objective evidence of serious, or neurological fallout or that the applicant's mild symptoms would ever worsen as suggested by Dr.Oelofse.

64. In light of the above mentioned observation, the tribunal agreed with the opinion of Dr. Birrell that the applicant is unlikely to require any surgical intervention. His condition was expected to respond to conservative treatment.

65. The tribunal also noted that occupational therapy opinion was that with the recommended treatment, the applicant should be able to do most activities of daily living, as well as work functions.

66. There was no evidence whatsoever to suggest that the injuries sustained by the applicant had any significant negative impact on his personal circumstances, as to warrant classification of the injuries sustained as serious in terms of the narrative test.

67. The tribunal was unanimous that the injuries sustained by the applicant have not resulted in serious long-term impairment as contemplated by the regulations."

[11] It is explained in the answering affidavit that in circumstances where, as in the present matter, the tribunal is able, given its expertise and experience, to assess the seriousness of an injury on the basis of the reports furnished, it can do so without exercising the powers in regulation 3(l )(a) to (c). Where the tribunal is of the view that oral submissions are necessary, it directs the parties to prepare same and provides time frames for submission thereof. This is a discretion exercised by the tribunal on a case by case basis. It is further stated in the answering affidavit that the mere fact that the tribunal did not agree with some of the views expressed by Dr. Oelofse does not render the tribunal's decision unreasonable or a misdirection.

[12] It is clear from the answering affidavit that the tribunal fully considered the opposite views of Dr. Oelofse and Dr. Birrell. It also considered the radiological reports, including the most recent report dated 12 March 2015 of Scribante and Partners who found a mild loss of disk height at LS-57, mild facet jo int arthrosis and no spondylolisthesis or spondylosis. It is to be expected that there will sometimes, or possibly often, be differences of opinion between the medico-legal reports which serve before the tribuna l in a particular matter. Having regard to the tribunal's expertise, it is in my view not improper for the tribunal, after considering all the evidence before it, to decide with which of the medico-legal reports it agrees or disagrees and to make a finding without calling for further evidence or submissions.

[13] n my view, the evidence presented in the first to third respondents' answering affidavit shows that the manner in which the tribunal dealt with the applicant's appeal was not procedurally unfair as contended by the applicant. In terms of the regulations, the tribunal was entitled, applying its own expertise, to adjudicate the appeal without calling for further evidence or submissions. It also cannot be said that the decision of the tribunal was irrational. The applicant did not request the tribunal to provide the reasons for its decision. The reasons were provided in the first to third respondents' answering affidavit. The test for rationality only requires a rational connection between the reasons and the decision. The test is not whether the decision is correct in relation to the reasons. It is not required that a decision of an administrative body be perfect or, in the court's estimation, the best decision on the facts.[2] I agree with the submission by first to third respondents' counsel that the question is not whet her the tribunal was correct, but whether it acted unreasonably. In my view, it did not. The members of the tribunal properly applied their minds to the expert reports provided to them before coming to their unanimous decision.

[14]In the result, the application is dismissed with costs.

Counsel for applicant: Adv. E P van Rensburg.

Instructed by: Van Zyl le RouxInc, Pretoria.

Counsel for first to third respondents: Adv. M Musandiwa.

Instructed by: Gildenhuys Malatji Inc, Pretoria

[1] Road Accident Fund v Duma and Three Similar Cases 2013 (6) SA 9 (SCA) para 26

[2] See Bato Star Fishing (Pty) ltd v Minister of Environmental Affairs 2004 (4) 490 (CC)