Jent v Road Accident Fund Appeal Tribunal and Others (39375/18) [2020] ZAGPPHC 256 (8 June 2020)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED.

CASE NO: 39375/18

8/6/2020

In the matter between:

GAUTA JOSIA JENT

Plaintiff

and

ROAD ACCIDENT FUND APPEAL TRIBUNAL

First Respondent

THE ROAD ACCIDENT FUND

Second Respondent

THE REGISTRAR OF THE HEALTH PROFESSIONS

COUNCIL OF SOUTH AFRICA

Third Respondent

JUDGMENT

MALUNGANA AJ

Introduction

[1] This application is about the review and setting aside of the decision taken by the Health Professional Council of South Africa in holding that the applicant’s injuries are not serious pursuant to RAF Act, 56 of 1996 (“the ACT”) read with the regulations promulgated under the Act which came into effect on 1 August 2008. Amongst other reliefs sought by the applicant in the notice motion are as follows:

1.1 That the third respondent be directed to re-appoint a new Appeal Tribunal to determine the dispute so reviewed, and set aside;

1.2 That the applicant be permitted to be present at the future appeal tribunal hearing; and be allowed to provide

further evidence pertaining to his injuries at such hearing if he wishes to do so;

[2] The application is opposed, and the third respondent has filed its answering affidavit contending that the applicant has not made out a case in its founding affidavit for a relief sought in the notice of motion. The third respondent also avers that it is not competent for a court to grant the applicant a right to be present at the future appeal tribunal under the 2008 Regulations.

Brief factual background to the dispute

[3] The applicant, a 46 years old male was involved in a motor vehicle collision on 1 July 2013 and sustained injuries to the right femur and knee, and to the lumber spine.

[4] As a result of the injuries sustained, the applicant submitted his claim for compensation to the Road Accident Fund in terms of the provisions of the Act. Subsequently he instituted action in the High Court of Bloemfontein for the recovery of damages allegedly suffered.

[5] On 25 February 2015 his legal representatives referred him to Dr.J.J Schutte for purposes of examination and assessment of his injuries. A serious injury assessment report (RAF4) was then issued, according to which his injuries were considered to have met the requirements of ‘The Narrative Test’(Serious long-term impairment or loss of a body function). The said report is shown in annexure “B” of the founding affidavit.

[6] I interpose to mention that his injuries did not result in a 30% Whole Person Impairment and is not listed as a non-serious injury in the AMA guides. His Whole Person Impairment (WPI) was rated at 15%. These results meant that he would be entitled to a claim for general damages against the Fund in terms of s 17(1) of the Act. The Road Accident Fund, however, rejected the Serious Injury Assessment Report in terms of Regulation 3(3) (d)(i). A copy of the Rejection is shown in annexure “C” to the founding affidavit.

[7] The effect of the above rejection meant that the matter should be referred to the Health Professional Council of South Africa (the second respondent) to be assessed by the Road Accident Fund Appeal Tribunal, the third respondent. On 19 September 2017 the applicant was duly notified by the Registrar of the consideration of the matter set down for the 20 October 2017.

[8] On 14 November 2017 the third respondent informed the applicant’s legal representatives of its decision to the effect that it held the view that the applicant did not suffer serious impairments from the accident in 2013. The correspondence informing the latter of the Appeal Tribunal ‘s decision is shown in annexure “K”. It is this decision that is sought to be impugned in this case.

[9] The relevant portions of the decision reached by the Fund’s Appeal Tribunal on 20 October 2017 read as follows:

“We refer to the above matter and hereby inform you that Road Accident Fund Appeal Tribunal resolved at the meeting held on the 20 October 2017 as follows:-

i. That the patient was involved in a motor vehicle in 2013.

ii. The patient sustained fracture of the right femur which was treated by open reduction internal fixation, soft tissue injury to the lumber spine.

iii. It is the opinion of the panel that the patient did not retain serious impairments from the accident in 2013.

iv. Therefor, the patient does not qualify under the narrative test.

Parties’ contentions

[10] The applicant contends that the Appeal Tribunal has not provided its reasons on how it took the impugned decision. He alleges that the third respondent either acted arbitrarily, or capriciously as contemplated in section 6 of PAJA. According to him the decision taken was the result of the fact that the Appeal Tribunal took into account irrelevant considerations or failed to take into account relevant considerations. Furthermore, had the Appeal Tribunal properly considered the matter, it would and should have reached only one conclusion that the applicant’s injuries were serious for the purposes of the Act and the Regulations.

[11] The respondent contends that the Appeal Tribunal’s decision confirms that the first respondent’s rejection of the RAF4 was a correct decision. It also criticized the applicant’s reliance on Dr.Oelofse’s medico-legal report without providing an affidavit in confirmation thereof arguing that it amounts to hearsay evidence rendering it inadmissible opinion.

[12] According to the third respondent, the report by Oelofse dated the 31 January 2018, did not serve before the Appeal Tribunal and therefore the tribunal did not have sight thereof on issuing the ruling. The respondent also cited a number of errors on the report, including but not limited to the paucity of the clinical records whilst compiling the addendum report. It denied that the irrelevant considerations were taken into considerations as alleged by the applicant, and that the tribunal failed to exercise its discretion and fulfil its function.

Relevant documents before the appeal tribunal

[13] In terms of Regulation 3(11) the appeal tribunal has wide powers, including but not limited to gathering information, direct that a third party should submit himself or herself in person to the appeal tribunal to assess whether the injury is serious in terms of the criteria set out in the Regulations.

[14] It is common cause that the medico-legal reports by Dr. L.F Oelofse, the orthopaedic surgeon; Mrs S. Moagi, the occupational therapist and Mrs S Van Jaarsveld, the industrial psychologist as well as the RAF4 by Dr.J Schutte were served before the appeal tribunal for the assessment of the seriousness of the injuries that the applicant sustained in terms of the method prescribed in Regulations.

[15] It is instructive to have regard to some of the findings made in the respective reports referred to above. According to Dr Oelofse, the applicant was found to have sustained a serious long-term impairment or loss of a body function, which findings translate to serious injury qualifying the applicant on ‘the narrative test of the AMA guide. These findings accords with the RAF 4 report completed by Dr. Schutte whose report was rejected by the first respondent.

[16] On 31 January 2018 Dr. Oelofse re-examined the applicant and compiled an addendum report shown in annexure “E”. Although this report was not, as I understand, placed before the tribunal during the assessment, Dr Oelofse opines that the applicant’s complaints remain mainly the same since 2016 consultation. He experiences pain in his lumber spine which has become progressively more debilitating and pronounced, resulting in a decrease in his physical abilities and an increase in discomfort. Lumber spasms have increased in frequency and severity which has resulted in the decrease in his abilities. The applicant also complained of that he cannot sleep in one position for a long period of time and wakes up frequently during the night to change positions.

[17] Physical examination of the applicant revealed restrictions in the movement of lumber spine with severe pain experienced by the applicant in all directions. There is moderate pain on palpation over the lumbosacral region T10-S1, palpable and painful muscle spasms in the gluteal muscles as well as the para-spinal and thoracic spine muscles.

[18] Mrs Success Moagi, the occupational therapist, found that the applicant’s physical capacity has been curtailed. He will struggle to perform activities which places excessive strain on his right lower limbs. Mrs Moagi also opines that his residual strength is suitable for sedentary to light activities.

[19] The Industrial Psychologist, Mrs Susan van Jaarsveld, opines that should the applicant lose his current employment, he will struggle to secure an alternative employment as he would have to compete with more able bodied individuals in the open labour market.

[20] The clinical examination of the applicant conducted by Dr. Schutte resulted in a 15% of ‘whole person impairment’ falling short of 15% of the threshold of 30% to qualify for serious permanent impairment in terms of the American Medical Association Guides (AMA guides). Dr. Schutte concluded that the applicant’s injuries met the narrative test criteria despite the WPI rating of 15%.

Applicable legal principles

[21] In terms of section 17(1) of the Act, the Fund is liable to compensate a third party for general damages – or non-pecuniary loss- to instances where he or she suffered ‘serious injuries’ within the meaning of section 17(1A).

[22] The legal effect of the decision reached by the appeal tribunal meant that the applicant is not entitled to claim general damages or non-pecuniary loss from the Fund. In T.P Buthelezi v Health Professions Councils of South Africa and Others, Case Number 3039/2017 ZAGPTC (17 April 2019), paragraph 52, Kubushi J dealt with the two tests involved in the assessment of serious injuries, and said the following:

“[52] The AMA Guides test relates to an objective assessment of the injuries sustained by the applicant whereas the narrative test is a subjective test, which specifically focuses on the subjective personal circumstances of each individual claimant. In using the objective assessment as a premise in adjudicating the dispute, I think the appeal Tribunal misdirected itself. It is on that basis that I am of the view that the appeal Tribunal’s decision is not procedurally fair and ought to be set aside.”

[23] Section 17(1A) of the Act provides that the assessment of a serious injury must be done in terms of the prescribed method in the Regulations promulgated in 2008 under the Act. It follows that the applicant whose injuries are assessed and found to be serious in either of the tests, can claim for general damages (non-pecuniary loss) against the Road Accident Fund.

[24] Section 17(1A) (a) specifically provides:

“Assessment of a serious injury shall be based on a prescribed method adopted after consultation with service providers and shall be reasonable in ensuring that injuries are assessed in relation to the circumstances of the third party.

[25] In terms of subsection (1A)(c) “The assessment shall be carried out by a medical practitioner registered as such under the Health Professions Act, 1974.

[26] The legal position has been succinctly stated by the Supreme Court in Road Accident Fund v Duma and Three Similar Cases 2013(6) SA 9 (SCA) par.19c, that ‘the third party must satisfy the fund, not the court, that his or her injury was serious.”

[27] It flows from above that the applicant has to establish the jurisdictional fact that the Fund is satisfied that the injuries sustained are serious before he could claim general damages, otherwise the court cannot consider a claim for general damages. The decision of the Fund or appeal tribunal as an organ of the state is an administrative decision in terms of section 239 of the Constitution, and it is therefore not subject to an appeal to the court.

[28] That brings me then to the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”). PAJA was enacted to give effect to the rights contemplated in section 33(1) and (2) of the Constitution which provides that everyone has the right to administrative action that is lawful, reasonable and procedurally fair and that everyone whose rights have been adversely affected by administrative action has the right to be given written reasons.

[29] Section 6 of PAJA gives the Court power to judicially review an administrative action if:

38.1 The action itself is not rationally connected to:

i. the purpose for which it was taken;

ii. the purpose of the empowering provision;

iii. the information before the administrator;

iv. the reason given for it by the administrator

[30] Does the mere fact that the Tribunal is entitled under Regulation 3(11)(g) to ‘determine whether in its majority view the injury concerned is serious in terms of the method set out in the Regulations’ take away the right of the third party to submit further information for reconsideration? No. The appeal tribunal can direct that further medical reports be obtained and placed before the appeal tribunal by one or more of the parties in terms of Regulation 3(11)(c). Moreover, in terms of section 3(3) of PAJA, administrative action which materially and adversely affect the rights or legitimate expectations of any person must be procedurally fair. Subsection 2(b) provides that:

“(b) In order to give effect to the fair administrative procedure, a person affected must given:

(i) adequate notice of the nature and purpose of the proposed administrative action;

(ii) a reasonable opportunity to make representations;

(iii) a clear statement of the administrative action;

(iv) adequate notice of any right of review or internal appeal, where applicable; and

(v) adequate notice of the right to reasons in terms of section 5.

[31] In terms of subsection 3, an administrative may, in his discretion, also give a person affected by the decision an opportunity to “(a) obtain assistance and, in serious or complex cases, legal representation; (b) present and dispute information and arguments; and (c) appear in person.”

[32] It is evident from the above that the courts have control over the decisions of the appeal tribunal or the Fund by means of review mechanism. However, the Court cannot substitute its own decision on the merits of the applicant ‘s appeal to the tribunal unless the Court finds that the tribunal did not act reasonably and that the findings of the tribunal were not rational under the circumstances. As stated in Duma’s case supra, the applicant must satisfy the Fund, not the Court. The court went on to say that: ‘There is no reason to think that medical practitioners employed by the claimants are in a better position than those employed by the Fund to evaluate medical records. Conclusions based merely on the interpretation of these records, would therefore be of little

assistance to the Fund than the submissions of records themselves… The predictable results is that in the end even deserving claimants whose injuries were prima facie serious – like those of the plaintiff in Kubeka , who broke his neck – are compelled to follow the long route through an internal appeal. I therefore conclude that regulation 3(1) requires a medical practitioner to physically examine a claimant.’

[33] From the reading of the medico-legal reports served before the tribunal, there appears to be prima facie evidence that the applicant’s injuries constitute serious injuries in terms of the ‘narrative test.’ It can therefore not be gainsaid that the applicant had legitimately expected the outcome of the assessment by members of the appeal tribunal to be along the lines reached by his own experts. Moreover, both Dr. Oelofse and Dr Schutte have reached a similar conclusion that he sustained a serious long-term impairment or loss of a body function. It is further apparent that, despite these findings, the members of the appeal tribunal have elected not to physically examine the applicant when assessing the seriousness of the injuries in terms of the Regulations.

[34] In a written heads of argument, the third respondent submitted that the applicant did not show sufficient, if any, grounds justifying substitution of the ruling. Furthermore the respondent has argued that the relief sought by the applicant to be present at the another appeal tribunal is not competent under the 2008 Regulation. As stated above the court cannot substitute the ruling of the appeal by its own ruling, unless it can be shown that the tribunal acted unreasonable and its findings were irrational. In the present case the appeal tribunal assessed the matter without conducting physical examination of the applicant, against the findings reached by the medico-legal experts who physically assessed the applicant. One begins to wonder what criteria was employed in the assessment by the tribunal in the context of the Regulations. I align myself to the view that the decisions of the administrative bodies must be rationally related to the purpose for which the power was given, otherwise they are arbitrary and inconsistent with the requirement. See Pharmaceutical Manufacturers Associations of South Africa & Another: In re: Ex parte President of South Africa & Others [200] ZACC1[2000] ZACC 1; , 2000 (2) SA 674 (CC) at par 85. In our constitutional dispensation, the applicant has the right to expect more from administrative bodies such as the appeal tribunal, and that right includes adequate reasons justifying its conclusion. It cannot be over emphasised that the reasons to be provided should be rationally connected to the facts.

[35] For all of the above reasons, I find that the applicant has succeeded in persuading me that the matter be remitted to a newly constituted appeal tribunal for proper assessment of the injuries in terms of the Act and the Regulations.

[36] In the circumstances, the order I make is as follows:

1. The decision of the third respondent of the 20th October 2017 is reviewed and set aside;

2. The matter is to be reconsidered and the decision of the appeal tribunal conveyed to the parties within 30 days of the granting of this order;

3. The first respondent is to pay the costs of this application.

PH Malungana

Acting Judge of the High Court

Gauteng Division, Pretoria

APPEARANCES:

For the Applicant:

Adv Jacobs

Instructed by:

VZLR Inc

bhauna@vzlr.co.za, marna@vzlr.co.za

For the 1st & 3rd Respondents: Adv Hugo

012 111 0413

Instructed by:

Mbowane Attorneys Inc

Tel: 012 430 2285

Fax: 012 430 2227