Mabaso obo KM v Health Professionals Council of South Africa and Others (75676/16) [2018] ZAGPPHC 735 (1 October 2018)

IN THE HIGH COURT OF·SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 75676/16

NOT REPORTABLE

NPT OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

N P MABASO obo KM

Applicant

and

HEALTH PROFESSIONALS 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

COLLIS J

[1] This is an opposed application for judicial review of a decision taken by the third respondent, which ruled that injuries that the applicant sustained in a motor vehicle collision on 11 October 2009 are non­ serious for purposes of the Road Accident Fund Act 56 of 1996, read together with its Regulations.

[2] Pursuant to being involved in a collision, the applicant instituted a claim against the Motor Vehicle Accident Fund ("the Fund') in terms of the Road Accident Fund Act No 56 of 1996 ("the Act').

[3] The applicant, inter alia, claimed for non-pecuniary loss ("general damages'), which claim in terms of the provisions of the Act is limited to compensation for serious injury.[1]

[4] The applicant submitted an RAF4 form (Serious Injury Assessment Report), completed by Dr Schutte, to the fourth respondent as she was claiming acting in her representative capacity as the mother and natural guardian on behalf of her minor child, inter alia, non-pecuniary loss.

[5] As per the Notice of Motion the applicant seeks the reviewing and setting aside of the decision of the third respondent dated 20 May 2016 to the effect that the injuries suffered by the applicant are non-serious in terms of section 17(1A) of the Act and the Regulations framed thereunder.

[6] In addition, thereto, the applicant seeks an order that the second respondent be directed to appoint a new appeal tribunal "to detennine the dispute reviewed in paragraphs 1 and to further reconsider all medico-legal reports that served before the Tribunal in respect of the applicant's injuries."

[7] The applicant further seeks that the first respondent be directed to pay the costs of this application.

[8] As mentioned, Dr J.J. Schutte completed the RAF4 form and determined that the applicant's whole person impairment ("WPI") was 10%, which was below the threshold of 30%. Dr J.J. Schutte, according to the narrative test, determined that the applicant suffers from long term impairment which could cause loss of body function.[2]

[9] The fourth respondent ("RAF') rejected the applicant's RAF4 form[3] setting out the assessment.

[10] On 2 March 2016, the applicant requested dispute-resolution in terms of Regulation 3(4) of the Regulations made in terms of section 26 of the Act against the RAF's decision to reject the serious injury assessment report.

[11] The applicant attached, inter alia, the reports by the following experts to her appeal:[4]

[11.1] RAF5 Form, Referral of Dispute;

[11.2] Notice of Objection;

[11.3] RAF4 Form completed by Dr J J Schutte;

[11.4] Medico-legal report by Dr Oelofse;

[11.5] Medico-legal report by Dr Earle;

[11.6] Medico-legal report by Lida MOiier;

[11.7] RAF1;

[11.8] Identity Document

[11.9] Birth Certificate; and

[11.10] Hospital records.

[12] The RAF did not make any submissions regarding the applicant's appeal. The second respondent constituted the Appeal Tribunal in terms of Regulation 3(8) to consider and adjudicate the applicant's appeal application. The appeal tribunal comprised of the following experts, to wit:

[12.1] Dr J Reid (neurologist);

[12.2] Dr Szabo (orthopaedic surgeon);

[12.3] Dr A J Lamprechts (orthopaedic surgeon);

[12.4] Dr J Crosier (orthopaedic surgeon).

[13] The tribunal met on 20 May 2016 and was satisfied that it was provided with enough medical reports to enable it to consider the applicant's appeal, without the need to call for further oral or written submissions.

[14] The tribunal's position was communicated to the applicant's legal representative under letter dated 21 July 2016 wherein the following findings was recorded, under the heading:

"Injuries : 11 years' old child (five years at the time of accident) head injury with LOC, temporal laceration - minor head injury

· Tribunal non-serious musculoskeletal injury."

[15] The applicant contends that the Tribunal failed to properly consider that the applicant suffered a mild traumatic brain injury with residual symptoms in the form of headaches, as stated in the report of Dr J. Earle.

[16] The applicant further contends that the Tribunal did not consider all expert reports that served before the Tribunal on 20 May 2016 that it reached its decision which only took into account the applicant's musculoskeletalinjury and furthermore, that it failed to consider that the applicant's injuries may affect his schooling and future studies and employment. The applicant also contends that the Tribunal failed to provide reasons as to why the applicant did not qualify under the narrative test.

[17] In the result, so it submitted that the Tribunal materially misdirected itself by not paying proper heed to the opinions expressed in the expert reports filed of record, which led to a material unreasonable decision in respect of the finding under review, alternatively, there was a failure on the part of the majority to properly apply the narrative test on available evidential material and that they were therefore materially influenced by an error of law and/or fact, alternatively, the decision made in the circumstances amounted to arbitrary action and was procedurally unfair. Hence, the decision stands to be reviewed and set aside as being unlawful and to be referred back to the Registrar for determination of the dispute by a newly-constituted tribunal.

[18] Subsequent to the filing of therecord by therespondent in terms of Rule 53, the applicant delivered a supplementary founding affidavit. In it, the applicant states that the Appeal Tribunal found that the minor child suffered "minor head injuries" which it depicts to be a non-serious musculoskeletal injury wherein the nature of the injury was not stated. Furthermore, that the medico-legal reports placed before the Appeal Tribunal had diagnosed the minor child as suffering from a traumatic brain injury and not from musculoskeletal injuries.

[19] In taking the decision of an appeal tribunal on review, it entails an enquiry which is not one whether the Appeal Tribunal was correct in its conclusion but whether the Appeal Tribunal's decision is so unreasonable that no reasonable person could have reached it.[5]

[20] The point that the Appeal Tribunal's actions were arbitrable is a point that the Appeal Tribunal would have acted arbitrarily if it were to be found that the Appeal Tribunal's decision could not be justified on the acceptable evidence. The main question to be answered by a court is whether a reviewing court can be satisfied that a reasonable person in the position of the Appeal Tribunal on the evidence disclosed in the record and applying the correct test in law could have reached the conclusion that the Appeal Tribunal in fact reached.[6]

[21] When the law entrusts a functionary with a discretion, the law gives recognition to the evaluation made by the functionary to whom the discretion is entrusted and it is not open to a court to second guess his evaluation. The rule of a court is no more than to ensure that the decision-maker has performed the function to which he was entrusted.[7]

[22] The weight or lack of it that must be attached to the various considerations that go to making up a decision, is that given by a decision-maker. The court will merely require the decision-maker to take the relevant considerations into account and will not prescribe the weight that must be accorded to each consideration. The decision­ maker is entitled, and ought to take into consideration all matters which a reasonable man would take into consideration in order to arrive at a fair and just decision in all the circumstances of the case. The weight that the decision-maker accords to particular factors or how far it will allow any particular factor to affect its eventual determination is a matter to be decided in the exercise of the discretion entrusted to it and, so long as it acts bona fide, a court of law cannot interfere.

[23] When a value judgment has to be made, it does not follow that the decision and evaluation lay within the sole and subjective preserve of a person who has made the value judgment. There may be differences of opinion in relation to whether or not objective criteria had been established or are present, but this does not mean that the decision becomes one of subjective determination, immune from objective scrutiny.[8]

[24] Section 17(1) of the Act provides that the obligation of the RAF to compensate a party for non-pecuniary loss:

24.1 "shall be limited to compensation for-

(a)serious iniury as contemplated in subsection (1A)..."

24.2 Subsection 17(1A)(a) provides for the-

"Assessment of a serious iniury' ;

24.3 Regulation 3(1)(b) provides-

"The medical practitioner shall assess whether the third party's injury is serious....... .... ."

24.4 Regulation 3(1)(b)(ii) provides that where the WPI is lessthan 30%­

"it shall be assessed as serious".

24.5 Regulation 3(1)(b)(iii) provides that where the WPI is less than 30%:

"an injury may only be assessed as serious if that injury:

(aa) resulted in a serious Jong term impairment or loss of a bodily function;

(bb)....... .. ..... ... ..... " (emphasis added)

[25] In the present matter, it is common cause that the plaintiff's WPI is less than 30%. Apparent from the wording of the section quoted above and the Regulations that an assessment must be made as to whether the injury is serious or not.

[26] The Tribunal, in making its assessment, had considered the clinical and medico-legal reports of the applicant specialists, as well as that of Dr J J Schutte, who provided a medico-legal report for RAF4 and who also completed the RAF4 Form. It applied the narrative test as catered for under paragraph 5 of the RAF4 Form.

[27] The assessment under the narrative test calls for a value judgment conducted in the context of the circumstances of the third party by persons with relevant expertise and experience.

[28] In the present matter, the applicant was involved in an accident in 2011.

At the time, he had a brief loss of consciousness at the scene. His GCS was 15/15 and he was seen by a doctor at the scene. He received

medication for pain. The laceration on the left temporal area was cleared and sutured. X-rays were done and revealed no fractures.

He was then transferred to the neurological ward for observation where he spent two days in hospital. He was then discharged to the care of his parents.

[29] In view of this, the serious injury on the narrative test was rejected. The Tribunal found that the applicant suffered non-serious musculoskeletal injury.

[30] In reaching this conclusion, the Appeal Tribunal took into account:

[30.1] Some of the injuries and sequelae mentioned by Drs Schutte, Oelofse and Jaap Earle;

[30.2] Considered the conflicting reports of Dr L Oelofse and Dr J Earle insofar as the injury was concerned on considered that most patients who suffer musculoskeletal injury respond well to conservative treatment;[9]

[30 .3] That the minor's condition was expected to improve with successful treatment;

[30.4] Took into account that the accident deprives the claimant from returning to school; and

[30.5] Took into account that the minor's injuries did not result in significant life-altering consequences for the minor.

[31] In relation to the injuries of the plaintiff, the expert reports elicited the following:

[31.1] At the time of the assessment conducted by Dr Schutte on 26 January 2009, he recorded that the plaintiff complained of chronic headaches and that he could not play, run and climb with friends at school. The doctor concluded that the minor child suffered serious long term impairment or loss of bodily function. Furthermore, that the extent of his serious head injury may lead to future medical treatment and that associated symptoms still exist, which may affect his schooling, future studies and employment, social skills and general enjoyment of life.

[31.2] Dr Oelofse, orthopaedic surgeon, in his medico-legal report diagnosed the applicant to have suffered a traumatic brain injury. Upon examination, he found that the applicant complained of chronic headaches which started after the accident. These occur on a daily basis, which the applicant is taking over the counter medicines (tablets) to alleviate. These tablets, however, do not relieve the headaches completely. Dr Oelofse examined the applicant on 26 January 2015.

[31.3] Dr Jaap Earle, a neurosurgeon, diagnosed a mild traumatic brain injury. he examined the applicant on 12 August 2015 and also

stipulated in his report that the applicant suffers from daily headaches. Dr Earle concluded that the headaches experienced by the applicant are bound to occur in any type of brain injury. The doctor further concluded that he could not find any intellectual or cognitive deficiencies and that the applicant has returned to school and is doing well and that the applicant's educational, working life or longevity has not been decreased.

[31.4] Ms Lidia Muller, the educational psychologist, examined the applicant on 11 August 2015. Upon her assessment, Ms Moller concluded

pre-accident that the applicant would have been able to complete Grade 12 and had the ability to complete a degree (NQF7.) He would

have been able to find employment in his professional field of study. Post-accident, the applicant presents with learning difficulties. His behaviour and emotional functioning pos -accident further strains his ability to learn and to perform according to his average

post-accident potential. His average intellectual ability and problems in the area of learning and study skills will make his scholastic progress and scholastic performance lower. The expert concluded that the accident under discussion caused learning, memory and emotional problems. The applicant might, as a result, only find employment with a matric qualification (NQF4). His matric results will be lower and he will need support to reach and complete matric. Career opportunities are limited post-accident compared to pre-accident. It is significantto note that Dr Earl's assessment took place prior to Ms Moller and, as such, he did not have the benefit of her report.

[32] The respondents, in their opposing affidavit, set out that they had regard to all the hospital records placed before them and, in

particular, the conflicting reports of Dr Oelofse and Dr Jaap Earle insofar as the injuries are concerned.[10] The respondents, except for concluding that the applicant's experts gave conflicting reports in the injury of the applicant, failed to stipulate the nature of the conflicting reports.

[33] The Tribunal concluded that the impact of the injuries did not result in significant life-altering consequences to the applicant's personal circumstances. The Tribunal, in drawing this conclusion, failed to take cognisance of the opinion expressed by Ms Lidia Moller, made reference in paragraph 31.4 supra.

[34] The Tribunal further concluded that, given the nature of the injury, the condition of the applicant is expected to improve with successful conservative treatment. The Tribunal, with respect, fails to stipulate what conservative treatment it would recommend and over what period, which will result in the improvement of the applicant's condition.

[35] The Tribunal, as a body, task to take an administrative decision is required to give not only reasons for its decision so concluded but those reasons must be adequate and properly motivated.

[36] All that the Tribunal resolved in its meeting held on 20 May 2016 was that the applicant sustained a non-serious musculoskeletal injury and, from this decision, it is apparent that no regard was had to any of the sequelae sustained by the applicant as a result of the accident. More so, that Regulation 3(1)(b)(iii) (aa) is the basis on which the applicant relies in the present matter.

[37] It is for this reason that I cannot conclude that the Tribunal paid proper heed to all expert reports presented before it (including the expert report of Ms Moller). The failure by the Tribunalto have considered the opinion expressed by Ms Moller in relation to the sequelae of the accident to the applicant resulted in the decision reached by the Tribunal to be unreasonable.

[38] Inrelation to the court's discretion and powers on review, in Bato Star,[11]

O'Regan J emphasised that:

"Although the review functions of a court now have a substantive as well as a procedural ingredient, the distinction between appeals and reviews continues to be significant. The court should take care not to usurp the functions of administrative agencies. Its task is to ensure that the decisions taken by administrative agencies fall

within the bounds of reasonableness as required by the Constitution."

[39] The learned judge stated further, at paragraph [48]:

"In treating the decisions of administrative agencies with the appropriate respect, a court is recognising the proper role of the executive within the Constitution. In doing so a court should be careful not to attribute to itself superior wisdom in relation to matters entrusted to other branches of government. A court should thus give due weight to findings of fact and policy decisions made by those with special expertise and experience in the field. The extent to which a court should give weight to these considerations will depend upon the character of the decision itself, as well as on the identity of the decision-maker."

[40] For the above reasons alluded to, I conclude that the decision of the Tribunal, dated 20 May 2016, is to be reviewed.

ORDER

[41] In the result, the following order is made:

[41.1] the decision of the third respondent, dated 20 May 2016, to the effect that the 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 Regulations is hereby set aside;

[41.2] the second respondent is directed to, within one month hereof, re-appoint a new Appeal Tribunal to determine the dispute reviewed and set aside and to further reconsider all medico- legal reports that served before the Tribunal in respect of the applicant's

injuries, including the report of Ms. Lidia Moller;

[41.3] that the applicant be permitted to present at the Appeal Tribunal hearing further evidence pertaining to his or her injuries if the applicant wishes to do so.

[41.4] the first respondent is ordered to pay the costs of the application.

C J COLLIS

JUDGE OF THE HIGH COURT

Appearances:

Counsel for the applicant:

Adv E P van Rensburg

Attorney for the applicant:

VZLR Inc

Counsel for the respondents:

Adv R Schoeman

Attorneys for the respondents:

Ramulifho Inc

Date of hearing:

14 June 2018

Date of judgment:

01 October 2018

[1] Section 17(1) and 17(1A) (a) of the Act

[2] Annexure "A", founding affidavit, pp 14- 20

[3] Annexure "B", founding affidavit, pp 21 - 22

[4] Answering affidavit para 12, p 154

[5] Dumani v Nair and Another 2013 (2) SA 274 (SCA) [22]

[6] JH v HPCSA and Others 2016 (2) SA 93 (WCC)

[7] MEC for Environmental Affairs and Development Planning v Clairison's CC 2013 (6) SA 235 (SCA)

[8] Democratic Alliance v President of the Republic of South Africa and Others 2013 (1) SA 248 (CC) paras (33]-(34]

[9] Opposing affidavit para 44 p 166

[10] Opposing affidavit para 44 p 166

[11] Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4} SA 490 (CC} at [45]