May v Health Professions Council of South Africa and Others (1996/2016) [2017] ZAGPPHC 739 (28 November 2017)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case number: 1996/2016

Date:28 November 2017

Not Reportable

Not of interest to other judges

Revised

In the matter between:

S G MAY APPLICANT

And

HEALTH PROFFESSIONS COUNCIL

OF SOUTH AFRICA FIRST RESPONDENT

THE REGISTRAR OF THE HEALTH

PROFESSIONS COUNCIL FOR SOUTH

AFRICA SECOND RESPONDENT

THE ROAD ACCIDENT FUND APPEAL

TRIBUNAL THIRD RESPONDENT

THE ROAD ACCIDENT FUND FOURTH RESPONDENT

JUDGMENT

PRETORIUS J,

(1) In this application for review, the applicant requests the following order:

“1. Reviewing and setting aside the decision of the 2nd respondent dated 26 August 2015 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;

2. That the 2st respondent is directed to re-appoint a new Appeal Tribunal to determine the dispute reviewed and set aside in paragraph 1 and to further reconsider all medico-legal reports that served before the Tribunal in respect of the applicant's disfigurement."

And the relevant costs order.

PARTIES:

(2) The applicant is an indigent person who was involved in a motor vehicle accident on 6 July 2009.

(3) The first respondent is the Health Professions Council (HPCSA) of South Africa, a juristic person established in terms of section 2 of the Health Profession Act.[1]

(4) The second respondent is the Registrar of the HPCSA, as representative of the first respondent.

(5) The third respondent is the Road Accident Fund Appeal Tribunal, appointed by the second respondent to determine whether a person's

injuries warrant a 30% whole person impairment rating and/or, if such injuries qualify a person under the narrative test.

(6) The fourth respondent is the Road Accident Fund ("RAF"), who is an opposing party in the action instituted by the applicant. The outcome of this application will have a direct and substantive effect on the action between them, where the applicant claimed for general damages.

THE LEGISLATIVE FRAMEWORK AND LEGAL PRINCIPLES:

(7) The matter is subject to the new regime set out in the Road Accident Fund Act[2], and the Regulations promulgated in terms of the Act.

(8) In terms of section 17(1) and 17(1A) of the Act and Regulation 3, a claimant may only claim general damages against the Road Accident Fund, the fourth respondent where he or she has suffered a "serious injury". A third party who wishes to claim for compensation for non­ pecuniary loss is required to submit to an assessment by a medical practitioner in accordance with Regulation 3.

(9) Regulation 3(1)(b) prescribes the criteria that such a medical practitioner has to apply to assess whether a third party had suffered serious injury. Should the RAF not be satisfied that the injury had correctly been assessed as serious it must reject the report or, direct the third party to undergo a further assessment.

(10) Should the third party not be satisfied by the rejection of the third party's serious injury assessment report, the third party must declare a dispute and lodge such a dispute with the Registrar of the HPCSA. The Registrar of the HPCSA then has to appoint a Tribunal of at least three medical experts to determine whether the third party has indeed sustained a serious injury.

(11) The Tribunal's finding is final and binding. There is no appeal to the High Court. In RAF v Duma and three similar cases[3] the SCA made it clear that the High Court may only become involved to the extent that the provisions of the Promotion of Administrative Justice Act[4] ("PAJA") permits.

(12) The criteria to be applied by the RAF and the Tribunal in assessing the seriousness of the injury are set out in Regulation 3(1)(b)(ii) and (iii) which provides:

"3 Assessment of serious injury in terms of section 17(1)(A)

(1)(b) The medical practitioner shall assess whether the third party's injury is serious in accordance with the following method:

(iii) An 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 Joss of a body function;

(bb) constitutes permanent serious disfigurement;"

(13) In terms of section 6(2)(d) of PAJA[5] an administrative action may be reviewed if "the action was materially influenced by an error of law".

(14) Section 6(2)(f)(ii) of PAJA[6] provides:

"(f) the action itself-

(ii) is not rationally connected to-

(aa) the purpose for which it was taken;

(bb) the purpose of the empowering provision;

(cc) the information before the administrator; or

(dd) the reasons given for it by the administrator;"

Section 6(2)(h) of PAJA[7] provides:

"(h) the exercise of the power or the performance of the function authorised by the empowering provision, in pursuance of which the administrative action was purportedly taken, is so unreasonable that no reasonable person could have so exercised the power or performed the function;"

(15) Cora Hoexter: Administrative Law in South Africa[8] states:

"This means in essence that a decision must be supported by the evidence and information before the administrator as well as the reasons given for it. It must also be objectively capable of furthering the purpose for which the power was given and for which the decision was purportedly taken."

(16) In Democratic Alliance v President of the Republic of South Africa and Others[9] the Constitutional Court held that the principle of legality requires rational decision making - both the process by which the decision is made and the decision itself must be rational.

(17) In Minister of Home Affairs and Others v Scalabrini Centre and Others[10] it was set out in paragraph 65:

"… rationality entails that the decision is founded upon reason - in contra-distinction to one that is arbitrary - which is different to whether it was reasonably made."

(18) The test to determine whether an injury is serious, is explained as follows in HB Klopper: The Law of Third Party Compensation[11], the learned author set out that "Pain and suffering include the pain, general discomfort and shock resulting from the bodily injury of a person and encompass both past and future pain and suffering as well as psycho-symptomatic experiences of pain after the amputation of a limb and pain and suffering resulting from medical procedures rendered necessary as a result of the bodily injury" and "Loss of amenities of life refers to the loss of a claimant's drive and capability to actively participate in the normal activities of life, recreation and social events which the claimant was accustomed to or participated in prior to the injury. This includes sexual urge and ability, infertility, loss of prospects or marriage, loss of general health, change of personality, loss of mental faculties, neurosis, insomnia, loss of life expectancy and the general anguish of having to cope with a disability."

(19) The circumstances which have traditionally been taken into account is the nature and extent of the claimant's disability; the activities, enjoyment, recreation and sport which the claimant enjoyed prior to the injury; the age, sex, social status, physique and general health of the claimant prior to the injury.

(20) To ascertain whether a claimant qualifies under the narrative test the following has to be determined: the objective nature of the third party's injuries; whether these injuries, objectively considered, resulted in an impairment of a body function; whether the impairment is of a long term nature, the objectively determined personal circumstances of the third party and the influence, objectively speaking, the injuries as determined, has on the third party's personal circumstances.

(21) Furthermore, the amount of pain and suffering which the third party endures as a result of the injuries, which have caused long term loss or impairment of a body function, leading to a loss of amenities, must be determined.

(22) In JH v Health Professions Council of South Africa and Others[12] Rogers J explained the difference in meaning between "serious" and "severe" in paragraph 19 as follows:

''The purpose of limiting non-pecuniary damages to cases of 'serious injury' must have been to introduce a significant limitation on the RAF's liability for general damages. In context, 'serious' and 'severe' 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 continuum 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'."

THE FACTS:

(23) The applicant's claim for compensation for general damages was submitted to the RAF. Dr JJ Schutte completed the RAF4 form on 23 August 2013. He found that the applicant has a whole body impairment ("WPI") of 5%. However, he had found that the applicant, according to the narrative test, has a serious long term impairment which could cause loss of a body function.

(24) On 27 February 2015 the applicant requested dispute resolution in terms of Regulation 3(4), after the finding by Dr Schutte was rejected. The appeal lies to the Appeal Tribunal, the third respondent. In Duma's case[13], Brand JA described the appeal in paragraph 26 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". The Appeal Tribunal is entitled "in the exercise of its wide investigative and fact-finding powers, …(2) establish for itself whether or not to assess the injury as serious, whatever the reasons of the Fund might have been". The Appeal Tribunal has thus an almost unfettered discretion.

(25) The appeal of the applicant was heard by the Appeal Tribunal on 26 August 2015 and the Appeal Tribunal came to the following conclusion:

"Skeletal injuries to the right left upper arm and elbow are warranting further treatment in terms of pain killers, physiotherapy and rehabilitation top of the line.

The injuries are not serious and do not qualify for general damages."

(26) From the record that had been filed by the Respondents it is clear from the form used that under "DATE OF NOTIFICATION OF DISPUTE" it was set out that:

"RAF 4 Form was completed by Or JJ Schutte.

Dr Oelofse - Orthopeadic Surgeon.

Rita Van Biljoen - Occupational Therapist.

Dr AC Strydom - Industrial Psychologist."

(27) Under the heading "DATE OF DEFENDANT SUBMISSION/MEDICAL REPORTS/OPINION RECEIVED" the following was noted: "Joint minutes between Orthopaedic Surgeons". It is thus clear that there was no report from the fourth respondent's orthopaedic surgeon, Prof van der Jagt, for the Appeal Tribunal to consider.

(28) The Appeal Tribunal made no mention of the injury to the left shoulder, although it was dealt with by Dr Schutte when completing

the RAF 4 form as follows:

"Current symptoms and complaints: Painful L shoulder, upper arm loss of sensation."

His diagnosis was:

"1. Malunited humerus fracture L arm;

2. Injury L shoulder with residual symptoms."

His final opinion on the form was: "Will need orthopaedic surgeon opinion on L shoulder, elbow and arm".

(29) In the joint minutes compiled by Dr Oelofse and Prof van der Jagt on 3 November 2014, the left shoulder injury was diagnosed by Dr Oelofse according to the joint minute as:

“a. Biceps tendonitis of the left shoulder

b. Rotator Cuff impingement

c. Post traumatic osteo-arthritis of the glenohumeral joint"

He further made provision for the following treatment:

"Arthroscopy and debridement of the subacromial area

(Estimated Cost: R60 000)

Provision should be made for the following should the claimant develop end-stage osteo-arthritis in her shoulder over her total lifespan.

*Shoulder Replacement

(Estimated Cost: R100 000)"

Prof van der Jagt indicated no surgical intervention.

(30) Both doctors recommended conservative treatment with physiotherapy and medication. Dealing with the narrative test the two orthopaedic surgeons once more did not agree and found:

"Prof Van Der Jagt states that she does not qualify under the narrative test 5.1 Serious long term impairment and loss of a body function

Dr Oelofse states that the claimant does qualify under the narrative test 5.1 Serious long term impairment and loss of body function"

These diverse findings should have alerted the Appeal Tribunal to investigate the matter of the left shoulder of the claimant further

(31) Dr Oelofse dealt with the claimant's productivity and found that it had been impaired due to the injuries she had sustained. She is unable to do any lifting and has already lost her job once due to the injury and her injuries caused her to be an unfair competitor in an open labour market. Prof van der Jagt's report was obviously not considered by the Appeal Tribunal. Only the joint minutes were considered and the Appeal Tribunal failed to deal with the claimant's shoulder injury at all when dealing with the appeal.

(32) The decision by the Appeal Tribunal was conveyed to the applicant on 14 October 2015. This decision constituted administrative action. This is susceptible to review in terms of the provisions of PAJA[14].

GROUNDS OF REVIEW:

ERROR OF FACT:

(33) In Pepcor Retirement Fund and Another v Financial Services Board and Another[15] Cloete JA held that administrative action must be taken on an accurate factual basis. A mistake of fact renders an administrative

action subject to review.

The Supreme Court of Appeal cautions in paragraph 32:

"Judicial intervention has been limited to cases where the decision was arrived at arbitrarily, capriciously or ma/a tide or as a result of unwarranted adherence to a fixed principle or in order to further an ulterior or improper purpose; or where the functionary misconceived the nature of the discretion conferred upon him and took into account irrelevant considerations or ignored relevant ones; or where the decision of the functionary was so grossly unreasonable as to warrant the inference that he had failed to apply his mind to the matter: Johannesburg Stock Exchange v Witwatersrand Nigel Ltd and Another1988 (3) SA 132 (A) at 152C - D; Hira and Another v Booysen and Another1992 (4) SA 69 (A) at 938 - C. There are decisions in other jurisdictions, however, which go further."

(34) In this instance the Appeal Tribunal clearly made an error of fact when not taking the claimant's shoulder injury into consideration

when deciding whether general damages should be awarded and thereby ignored relevant facts.

SECTION 6(2)(h) OF PAJA[16]:

(35) The argument by the applicant is that no reasonable person, in the position of the Appeal Tribunal, with the relevant facts to consider, would have come to the conclusion that the Appeal Tribunal did.

(36) The test is clear as explained in Duma's case[17] whether the Appeal Tribunal's decision is so unreasonable that no reasonable person would have reached it. The question that must be answered, in the present circumstances, is whether this court is satisfied that a reasonable person, in the position of the Appeal Tribunal, on the evidence before it, could have reached the conclusion that it had reached. The decision maker, in this instance the Appeal Tribunal, had to take into consideration all matters which a reasonable person would have done, having the same information at its disposal at the time the decision was taken.

(37) If the record is studied it is apparent that the Appeal Tribunal did not examine the claimant, nor studied Prof van der Jagt's report, but relied solely on the RAF 4 form completed by Dr JJ Schutte, Dr Oelofse - claimant's orthopaedic surgeon, Rita van Biljoen - occupational therapist and Dr AC Strydom - industrial psychologist and the joint minutes of the orthopaedic surgeons. It is inconceivable that with such evidence the Appeal Tribunal did not deal with the seriousness of the injury to the left shoulder.

(38) The industrial psychologist found, inter alia:

"Ms May is regarded a less competitive and vulnerable employee in the open labour market.

The employer rated her performance as average and there is no promotion due to her.

Ms May in all probability would not be able to reach similar pre­ morbid performance levels now and her current earnings plus normal inflationary increases may be regarded as her career ceiling.

Lower earnings in the future could not be excluded and would purely depend on the job she would be able to secure, as such position should fall within her residual work capacity.

Periods of unemployment between job would become a reality should she Jose her current position for any reason."

This report clearly indicates that the applicant has lower expectations due to her injuries, in the open labour market.

(39) The joint minute by the orthopaedic surgeons indicated that the applicant had received treatment for a left shoulder injury together with the upper arm and elbow injury, as set out above. The Appeal Tribunal explains this lack of dealing with the shoulder injury in the answering affidavit that "the hospital records make no mention of a shoulder injury". There is no indication that the Appeal Tribunal had considered the shoulder injury at all or enquired as to what the position was. The Appeal Tribunal simply chose to ignore any information relating to the shoulder injury.

(40) The argument by applicant's counsel is that no reasonable person in the position of the Appeal Tribunal could have come to the conclusion that the applicant was not seriously injured. There is no dispute that the applicant is experiencing pain in her left shoulder, experiences pins and needles in her 2nd to 5th fingers, that she experiences pain when lifting her arms and has discomfort sleeping on her left side. She cannot straighten her arm and her arm gets very painful when leaning on her elbow.

(41) It was never disputed that she is an unequal competitor in the labour market. This is in contrast to the findings of the Appeal Tribunal where they concluded that her injuries did not lead to significant changes in her personal circumstances and them ignoring the daily pain and discomfort she suffers.

(42) The Appeal Tribunal has the right to examine a claimant or to appoint an expert to do so, but in this instance they chose to ignore the shoulder injury. Further examination and investigation may have resulted in a different conclusion. If the Appeal Tribunal had followed the finding in Duma's case[18] and had "a complete re-hearing of and fresh determination on the merits" the result would in all probability have been different.

(43) Counsel for the first respondent conceded, during argument, that the Appeal Tribunal_ had not considered all the information it should have, when making a decision, although it had the information at its disposal.

(44) I cannot but find that the Appeal Tribunal's administrative action was procedurally unfair as set out in section 6(2)(c) of PAJA[19]. It was not rationally connected to the information before the administrator and the reasons given for it by the Appeal Tribunal as set out in Section 6(2)(f)(ii), (cc) and (dd) of PAJA[20].

(45) It is clear that the Appeal Tribunal, with the information at its disposal, and existing of three expert orthopaedic surgeons, took a decision that no reasonable person, under the circumstances, could have taken that the injuries were not serious in terms of the narrative test and did not qualify for general damages. It was incumbent on the Appeal Tribunal to clarify the situation regarding the shoulder injury. It chose not to do so and therefor I find that the administrative action was so unreasonable that no reasonable person or body could have taken the decision that it took.

(46) In the result I make the following order:

1. The decision of the second respondent dated 26 August 2015 that the injuries suffered by the applicant are not serious injuries in terms of section 17(1A) of the Road Accident Fund Act 56 of 1996 and its regulations, is set aside;

2. The first respondent is directed to appoint a new Appeal Tribunal, consisting of different members to the members who had made the decision on 26 August 2015 to determine the dispute afresh and to consider all medico-legal reports that previously had served before the Appeal Tribunal in respect of the applicant's injuries and to obtain additional information, if necessary, as to the seriousness of the applicant's injuries;

3. The first, second and third respondents are ordered to pay the costs of this application, the one to pay the other to be absolved.

_____________________

Judge C Pretorius

Matter heard on: 8 November 2017

For the Applicant: Adv EP van Rensburg

Instructed by: Van Zyl Le Roux Inc

For the Respondents: Adv T Maodi

Instructed by: Gildenhuys Malatji Inc

Date of Judgment: 28 November 2017

[1] Act 56 of 1974.

[2] Act 56 of 1996

[3] 2013(6) SA 9 (SCA) at paragraph 19

[4] Act 3 of 2000

[5] Supra

[6] Supra

[7] Supra

[8] 1ST Edition, page 307

[9] 2013(1) SA 248 CC at paragraphs 33 - 34

[10] 2013 (6) SA 421 (SCA)

[11] 3rd Edition, pages 152 – 160

[12] 2016(2) SA 93 (WCC)

[13] Supra

[14] Supra

[15] 2003(6) SA 38 (SCA) at paragraph 47

[16] Supra

[17] Supra at paragraph 22

[18] Supra

[19] Supra

[20] Supra