Lourens v Health Professions Council of South Africa and Others (76385/2016) [2018] ZAGPPHC 494 (29 June 2018)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

(3) REVISED

Case No.: 76385/2016

29/6/2018

JACQUES LLEWEL YN LOURENS

Applicant

RAFA/002111/2015

and

HEALTH PROFESSIONS COUNCIL OF First Respondent

SOUTH AFRICA

THE REGISTRAR OF THE HEALTH

Second Respondent

PROFESSIONS

THE ROAD ACCIDENT FUND APPEAL

Third Respondent

TRIBUNAL

THE ROAD ACCIDENT FUND

Forth Respondent

JUDGMENT

Senyatsi AJ

[1] This application concerns reviewing and setting aside the decision of the Third Respondent dated 26 May 2016 that the orthopaedic injuries suffered by the Applicant are non-serious in terms of section 17(1A) of the Road Accident Fund Act 56 of 1996 and the regulations promulgated in terms thereof.

[2] The reason for the decision, that the injuries suffered by the Applicant are non­ serious is that the narrative test, according to the Third respondent, was not properly motived.

[3] The Applicant duly submitted a claim for compensation for non-pecuniary loss in "RAF4" form. The RAF4 form was completed by Dr M.A. Scher, an orthopaedic surgeon, following an assessment done by him on the 15 January 2014, in respect of injuries sustained by the applicant in the collision.

[4] Dr Scher found that the Applicant has a Whole Person Impairment ("WPI") of 6%. He further found that the Applicant, according to the narrative test, suffers from serious long-term impairment of a body function.

[5] The Applicant suffered the following injuries in a motor collision:-

[5.1] A right femur shaft fracture and

[5.2] A blunt trauma to the left knee with a fracture to the head and

[5.3] a mild ligament complex sprain.

[6] The Applicant contends that when the Third Respondent considered the report, it failed to properly apply itself by not referring the Applicant to a further medical examination and simply considering the language used in Dr Sher's report when he found that the Applicant would probably suffer from serious long-term body function.

[7] The Respondent contends that as injuries sustained resulted in below the 30% or more, impairment of the WPI as provided in Regulations' guide, the Applicant was not entitled to compensation for non-pecuniary damages.

[8] The question that needs to be determined by this Court is whether the Third Respondent applied itself rationally when assessing the appeal brought before it based on the medical report of Dr Sher, the occupational therapist and industrial psychologist and whether its administrative decision was rationally taken.

[9] In order to determine the issue before this Court, it is imperative to restate what the legal principles provide. Section 17 of the Road Accident Fund Act, provides as follows:-

"(1) The Fund or an agent shall-

(a) subject to this Act, in the case of a claim for compensation under this section arising from the driving of a motor vehicle where the identity of the owner or driver thereof has been established;

(b) subject to any regulation made under section 26, in case of a claim arising from the driving of a motor vehicle where the identity of neither the owner nor the driver thereof has been established,

be obliged to compensate any person (the third party) for any loss or damage which the third party has suffered as a result of any bodily injury to any other person, caused by or arising from the driving of a motor vehicle by any person at any place within the Republic, if the injuries or death is due to the negligence of or wrongful act of the driver or the owner of the motor vehicle or of his or her employee in the performance of the employee's duties as the employee:

Provided that the obligation of the Fund to compensate a third party for non­ pecuniary loss shall be limited to compensation for a serious injury as contemplated in subsection (1A) and shall be paid by way of a lump sum.

(1A) (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)."

[10] Assessment of serious injuries is regulated by section 17(1)(A) of the RAF Act which provides as follows:-

"(1)(a) A third party who wishes to claim compensation for non-pecuniary loss shall submit himself or herself to an assessment by a medical practitioner in accordance with these Regulations.

(b) (ii) If the injury which does not result in 30 per cent or more Impairment of Whole Person as provided in the AMA GUIDES, the injury shall be assessed as serious.

(iii) Any injury which does not result in 30 per cent or more Impairment of the Whole Person may only be assessed as serious if that injury:

(aa) resulted in a serious long-term impairment or loss of a body function;

(bb) constitutes permanent serious disfigurement;

(cc) resulted in severe long-term mental or severe long-term behavioural disturbance or disorder; or

(dd) resulted in loss of foetus."

[11] In considering the meaning of the words "serious" and "severe" in JH v Health Professions Council of South Africa and Others[1] , the Court held as follows:-

"[18] The words 'serious' and 'severe' in these items are not defined. They connote a degree of impairment or disturbance or disorder which cannot be fixed by quantitative measure. The assessment requires a value judgment,

though one to be performed on the basis of a correct interpretation of the words used in the narrative test. Dictionary definitions of 'serious' in the context appropriate to the narrative test includes 'having important or dangerous consequences; critical'; 'approaching the critical or dangerous' while definitions of 'severe' include 'inflicting' great pain or distress; of a serious or considerable degree or extent; grave'; 'unsparing pressing hard; hard to endure.' In orderly parlance the word 'severe' connotes to my mind a greater intensity than 'serious'. This contrast is reflected in the definitions in the Shorter English Oxford Dictionary: 'serious' - 'important'; grave, having (potentially) important, esp. undesired, consequences, giving cause for concern; of significant degree or amount, 'sever'- disagreeably intense, unpleasantly extreme; causing hardship, pain or suffering by its degree or extremity'. Since the lawmaker chose to use 'serious' in item (cc); it is reasonable to infer that some difference of degree was intended. The distinction may have been drawn because impairment or loss of body functions was regarded as more tangible than mental or behavioural disturbance and disorders.

[19] The purpose of limiting non-pecuniary damages of costs of 'serious injury' must have been to introduce a significant limitation on the RAF's liability for general damages. In context, 'serious' and 'sever' should not be regarded merely as 'not trivial', since trivial cases are unlikely in the past to have placed a significant burden on the public purse. On a continum from trivial at one extreme to catastrophic at the other, descriptors which come to mind are mild, moderate, serious and severe. That which is 'serious' must be more intense than 'moderate'. And that which is 'severe' must be more intense than 'serious'."

[12] It is trite law that the appeal tribunal's decision constitutes administrative action which can be reviewed in terms of Promotion of Administrative Justice Act, 3 of 2000.[2] The Supreme Court of Appeal in RAF v Duma and three similar cases[3] held that:-

"[24] Recognition that the Fund's decision to reject the Plaintiff s RAF 4 forms constituted administrative action, dictates that until that decision was set aside by a Court on review or overtumed in an internal appeal, it remained valid and binding.[4] The fact that the Fund gave no reasons for the rejection; or that the reasons given are found to be unpersuasive or not based on proper medical or legal grounds, cannot detract from this principles. The same holds true for the respondents' arguments that it appeared from the medical evidence presented by them at the trial that the Fund was wrong in deciding that their injuries were not serious. Whether the Fund's decisions were right or wrong is of no consequence. They exist as fact until set aside or reviews or overturned in an internal appeal."

[13] It is also trite that this Court can entertain any review process if it is satisfied that internal remedy provided for in terms of PAJA have been exhausted.[5]

[14] The law is settled that administrative decision must be taken on accurate factual basis.[6] In elaborating this principle, the SCA in Dumani v Nair and Another[7] held as follows:-

"[29] I tum to consider the law. Material error of fact was first recognised as a ground of review by this Court in Pepcor where the following was said in para 47:

'In my view, a material mistake of fact should be a basis upon which a Court can review an administrative decision. If legislation has empowered a functionary to make a decision, in the public interest, the decision should be made on the material facts which should have been available for the decision properly to be made. And if the decision has been made in ignorance of facts material to the decision and which therefore should have been before the functionary, the decision should... be reviewable at the suit of, inter alios, the functionary who made it, even though the functionary may here been guilty of negligence and even where a person who is not guilty of fraudulent conduct has benefited by decision. The doctrine of legality which was the basis of the decisions in Fedsure, Sarfu and Pharmaceutical Manufacturers requires that the power conferred on a functionary to make decisions in the public interest, should be exercised properly, i.e. on the basis of the true facts; it should not be confined to cases where the common Jaw would categorise the decision as ultra vires.

But the Court went on in the immediately succeeding paragraph, paragraph 48, to say:

'Recognition of material fact as a potential ground of review obviously has its dangers. It should not be permitted to be misused in such a way as to blur, far less eliminate, the fundamental distinction in our law between two distinct forms of relief; appeal and review. For example, where both power to determine what facts are relevant to making a decision, and the power to determine whether or not they exist has been entrusted to a particular functionary (be it a person or a body of persons, it would not be possible to review and set aside its decision merely because the reviewing Court considers that the functionary was mistaken either in its assessment of what facts were relevant, or in concluding that the facts exist. If it were, there would be no point in preserving the time-honoured and socially necessary separate and distinct forms of relief which the remedies of appeal and review provide."

[15] In review proceedings , the reviewing court is not entitled to substitute its own view as to what the finding should have been.

Where the power to make findings of fact is conferred on a particular functionary- an ‘administrator’ as defined in PAJA- the material-error-of-fact ground of review does not entitle a reviewing Court to reconsider the matter afresh.

[16] An error of law which has a material impact on the decision renders the decision subject to review in terms of section 6(20 of PAJA.

[17] The Courts are obliged to interpret legislation granting powers to the administrators as requiring the power to be exercised in a reasonable and rational manner. In emphasising this principle, the Constitutional Court in Affordable Mediciners Trust and Others v Minister of Health and Another[8] held that:-

"[73] In the Pharmaceutical case, this Court, in the context of the exercise of all public power by members of the executive and other functionaries, explained the scope of the rationality standard as follows:

'Rationality in thus sense is a minimum threshold requirement applicable to the exercise of all public power by members of the Executive and other functionaries. Action that fails to pass this threshold is inconsistent with the requirements of our Constitution and therefore unlawful. The setting of this standard does not mean that the Courts can or should substitute their opinions as to what is appropriate for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionary's decision, viewed objectively, is rational. a Court cannot interfere with the decision simply because it disagrees with it or considers that the power was exercised inappropriately. A decision that is objectively irrational is likely to be made only rarely but, if this does occur, a Court has the power to intervene and set aside the irrational decision."

[18] In Bel Porto School Governing Body and Others v Premier, Western Cape and Another[9] the Constitutional Court held that an administrative decision taken by functionary must be justifiable and be a rational decision taken "lawfully and directed to a proper purpose". In terms of section 6(2)(f)(ii) of PAJA, rationality is a ground of review.

[19] The requirements in review is not whether the appeal tribunal was correct in its conclusion but whether the appeal tribunal's decision was so unreasonable that no reasonable person should have reached it.[10] The Court is also not required to second-guess the evaluation of the functionary in making an administrative decision, but simply to ensure that functionary has performed the function with which he was entrusted.[11]

[21] In exercise of their powers, the functionaries of administrative decision must act within the scope of empowering statutory provision and for the purpose envisaged by the legislation.[12] The power to be exercised must not be misconstrued.

[22] The appeal tribunal has in my view, acted irrationally and did not utilise the powers of investigation accorded to it by the Regulation

3911). It also acted unreasonably by ignoring the reports of occupational therapist and industrial psychologist on the grounds

that those experts were not medical practitioners.

[23] Consequently, the decision taken that the injuries were not serious stands to be reviewed and set aside.

ORDER.

The following order is made:

(a) The decision of the Third Respondent that the orthopaedic injuries suffered by the Applicant are non-serious in terms of section 17(1A) of the Road Accident Fund Act 56 of 1996 and its regulation is hereby reviewed and set aside.

(b) The Second Respondent is directed to refer the matter to a newly constituted Tribunal for the determination of the injuries;

(c) The Fisrt Respondent is odered to pay the costs of this application and party scale.

M.L. SENYATSI

ACTING JUDGE OF THE HIGH COURT OFSOUTH AFRICA

GAUTENG DIVISION, PRETORIA

FOR THE APPLICANT : ADV. VAN RENSBURG

INSTRUCTED BY

: VZLR INC.

TEL- 012 435 9444

FOR THE RESPONDENTS : NO APPEARANCE

INSTRUCTED

: MODUKA ATTORNEYS

TEL- 012 753 3282 / 012 940 1951

DATE FOR HEARING : 24 APRIL 2018

DATE FOR JUDGMENT : 29 JUNE 2018

[1] 2016 (2) SA 93 (WCC)

[2] See Road Accident Fund v Dum, a Road Accident Fund v Kubeka, Ro ad Accident Fund v Meyer, Road Accident Fund v Mokoena 2013 (6) SA 9 (SCA)

[3] supra

[4] See Onderkroal Estate (Pty) Ltd v City of Cape Town 2004 (6) 222 (SCA) para 26

[5] See Section 7(2)(a) of PAJA

[6] Pepcor Retirement Fund and Another v Financial Service Board 2003 96) SA 38 (SCA)

[7] 2013 (2) SA 274 (SCA)

[8] 2006 (3) 247 (CC) at para 73

[9] 2002 (3) SA 265 (CC)

[10] See Dumani v Nair (supra

[11] See MECfor Environmental Affairs and development planning v Clairison's CC 2013 (6) SA 235 (SCA

[12] See Fedsure Life Assurance Ltd v Greater Johannesburg transitional Metropolitan Council [1998] ZACC 17; 1999 (1) SA 374 (CC)paras [58]- [59].