Motloung v Health Professions Council of South Africa and Others (9939/2018) [2020] ZAGPPHC 81 (26 February 2020)

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: YES/NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

CASE NUMBER: 9939/2018

26/2/2020

In the matter between:

TP MOTLOUNG

Applicant

and

HEALTH PROFESSIONS COUNCIL OF

SOUTH AFRICA

First Respondent

THE ACTING 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

AVVAKOUMIDES. AJ

INTRODUCTION:

1. This is an application for judicial review of the Third Respondent's decision of 28 July 2017 to the effect that the Applicant's injuries sustained in a motor vehicle collision on 17 August 2012, are not serious injuries as contemplated in terms of Section 17(1) of Act 56 of 1996, read together with Regulation 3 published by way of Government Gazette dated 21 July 2009.

2. The Applicant complied with the provisions of the Act and the accompanying regulations by submitting a RAF form and the Fourth Respondent accepted that the Applicant had substantively complied with the relevant legislative framework.

3. The Fourth Respondent rejected the Applicant's RAF-4 form by way of letter addressed to the Applicant's attorneys dated 29 January 2016 and in response the Applicant's attorneys declared a dispute in terms of Regulation 3(4), addressed to the First and Second Respondents. Pursuant to the declaration of a dispute the Third Respondent (the Tribunal) was constituted to consider the Applicant's appeal.

4. The Tribunal took a decision on 28 July 2017 and communicated such decision to the Applicant on 7 August 2017, concluding therein that the injuries sustained by the Applicant were "non-serious".

THE TRIBUNAL:

5. The Tribunal is constituted by the First Respondent in terms of Regulation 3(8) of the Act to consider and determine an appeal of a decision taken by the Fourth Respondent in terms of Regulation 3(3) in rejecting a claim for general damages.

6. In Road Accident Fund v Duma, Road Accident v Kubeka, Road Accident Fund v Meyer and Road Accident Fund v Mokoena 2013 (6) SA 9 (SCA) at 24, the court held the following:

"Whether the Fund's decisions were right or wrong it is of no consequence. Hey exist as a fact until set aside or reviewed or overturned in an internal appeal.''

The Tribunal is the final arbiter on whether a claimant qualifies to recover general damages from the Fourth Respondent or not, with no further appeal process against the decision of the Tribunal. Thus, once the Fourth Respondent has rejected a claim for general damages, irrespective of its reasoning, a claimant's only appeal remedy lies with the Tribunal.

7. In terms of Regulation 3(8)(b) the Tribunal ought to be comprised of three independent medical practitioners, with expertise in the appropriate areas of medicine, who are vested with wide-ranging powers in the exercise of its functions. In Duma it was held that the appeal created by the regulations is "an appeal in the wide sense"; that is a complete rehearing of and fresh determination on the merits with the procurement of additional evidence or information if needs be.

8. The specialist nature of the Tribunal and the importance thereof was discussed in Koyabe and Others v Minister for Home Affairs and Others 2010 (4) SA 327 (CC) at 37, as follows:

"Internal administrative remedies may require specialised knowledge which may be of a technical and/or practical nature. The same holds true for fact-intensive cases where administrators have easier access to the relevant facts and information. Judicial review can only benefit from a full record of an internal adjudication, particularly in light of the fact that review in courts do not ordinarily engage in fact-finding and hence require a fully developed factual record."

9. Regulation 3(10) empowers the Tribunal to convene a hearing and to hear legal argument, while Regulation 3(11) provides the Tribunal with the powers to direct a claimant to submit himself at the cost of the Fourth Respondent or an agent to further assessment in order to ascertain whether an injury is serious by a medical practitioner designated by the Tribunal. The Tribunal may also call upon a claimant to appear in person before the Tribunal and to be examined by members of the Tribunal. More importantly, the Tribunal may direct that all the medical reports be presented to the Tribunal and further medical reports be obtained. The aforesaid is not an exhaustive list of the Tribunal's powers but, in my view, the most important for purposes of this judgment. The Tribunal has thus both a broad discretion and wide-ranging powers within which to exercise its function which is pivotal to a fair outcome for a plaintiff claiming general damages.

THE REVIEW:

10. The process of a review entails an inquiry which is not aimed at whether the Appeal Tribunal was correct in its conclusion but whether the Tribunal's decision is so unreasonable that no reasonable person could have reached the same decision under the prevailing

circumstances. See Dumani v Nair and Another 2013 (2) SA 274 (SCA) at 22. The Applicant submitted that the Tribunal's decision failed to take cognisance of material facts and without the Tribunal exercising its powers in terms of Regulation 3(11) in order for it to provide a substantive basis for its otherwise arbitrary rejection of the injuries as "non-serious". This decision, the Applicant submits, is so unreasonably arbitrary that no reasonable person could have come to the same decision under the circumstances.

11. The decision of the Tribunal is the following:

"Pre-accident age and circumstances:

M.49Yrs. Upholstery/general worker/Grd 6. Pedestrian MVA

Post-accident circumstances:

Unemployed

Injuries:

Bimalleolar # left ankle ORIF. Laceration left side head. Laceration over left clavicle. Both wounds sutured. # Neck and humerus. ORIF. United. Good position.

Reported problems:

Headaches. Painful ankle. Painful shoulder.

Examination/assessment findings:

Some reduction of shoulder movements (Dr Paul Menge). Dr OElofse: Good ROM shoulder, moderate restriction ROM ankle and shoulder = fractures healed and no complications noted.

Outcome diagnosis:

Left ankle and humeral fractures united with minimal residua

WPI:

Not recorded.

Narrative test/disability :

Does not qualify

Appeal Tribunal Decision:

Non-serious musculoskeletal injury.”

12. The review is brought and premised on the provisions of the Promotion and Administrative Justice Act, 3 of 2000 (PAJA) on the following grounds:

11.1 A decision was by an error of law, as contemplated in Section 6(2)(d); and/or

11.2 Irrelevant considerations were taken into account or relevant considerations were not considered, as contemplated in Section 6(2)(e)(iii) of PAJA; and/or

11.3 The decision amounts to an arbitrary action, as contemplated in Section 6(2)(e)(vi) of PAJA; and/or

11.4 The decision was procedurally unfair.

13. The Tribunal did not examine the Plaintiff and neither did it call for any additional evidence or information.

14. The Tribunal conducted the appeal based solely on documentary evidence comprised almost entirely of reports by other medical professionals.

THE FINDINGS OF DR OELOFSE:

15. Dr Oelofse, an orthopaedic surgeon, examined the Applicant on 17 November 2015 and concluded that the Applicant's injuries qualify under the narrative test as a serious long term impairment or loss of a bodily function. This report was provided to the First Respondent on or about 29 May 2017 and considered by the Tribunal.

16. Dr Oelofse listed the Applicant's injuries as follows:

16.1 Head injury;

16.2 Left humerus injury;

16.3 Left ankle injury.

17. On the injury to the left humerus, Dr Oelofse recorded that the Applicant sustained a humerus neck fracture requiring surgical intervention and the Plaintiff remains with constant pain in his shoulder joint, aggravated by most activities such as working above shoulder height or carrying heavy items. Dr Oelofse further diagnosed a united proximal humerus fracture with painful instrumentation in situ, restricted range of shoulder movement, bicep tendinitis and rotator cuff tear. Dr Oelofse further expressed opinion that conservative treatment will not be effective and that he envisages surgical removal of the instrumentation and arthroscopic acromioplasty and rotator cuff repair, followed by physiotherapy, biokinetics and rehabilitation. Lastly Dr Oelofse opined that, even with successful treatment, the Applicant will always have weakness in his left shoulder.

18. The Applicant submits that the Tribunal ignored Dr Oelofse's diagnosis of bicep tendonitis and a rotator cuff tear and the consequential effect thereof on the Applicant and that the Tribunal simply mentioned injury with regard to its effect on the range of motion in the particular shoulder.

19. On the injury to the left ankle Dr Oelofse recorded that the Applicant suffered bi­malleolar fractures which repeated by surgery and plaster of Paris. The Applicant had to mobilise on 2 crutches for a period of 6 weeks and continued to experience pain which progressively became worse with walking, standing, climbing stairs and squatting. Dr Oelofse further recorded that the Applicant has consistent and nagging pain in the left ankle when weight is placed on the left leg, aggravated by long periods of mobility during the night and during inclement weather. The ankle swells at times and the Applicant walks with a slight limp, struggling to climb stairs without assistance.

20. Upon clinical examination Dr Oelofse found moderate swelling of the ankle with painful palpation over the instrumentation and pain over the anterior, medial and lateral joints. Dr Oelofse further expressed descent from the findings of the radiological report of 17 November 2015 suggesting that the Applicant has no complications. Instead Dr Oelofse indicated that, radiologically, the Applicant had an external rotation pronation mechanism injury as well as a tear of the distal syndesmosis with widening of the distal tibia-fibular joint.

21. Dr Oelofse further expressed opinion that the Applicant sustained a pronation external rotation injury of the ankle, meaning that there was a fracture of the medial and lateral malleoli and also of the syndesmosis between the distal tibia and fibula. Dr Oelofse stated that, intra-operative, this pronation external rotation injury should have been detected and repaired and the Applicant should have had reconstruction and reduction performed on the distal syndesmosis ligament.

22. Dr Oelofse further opined that, due to the widening and subluxation of the distal tibia-fibula joint, the Applicant now has a chance of developing post-traumatic osteo-arthritis of the ankle joint. It is for this reason that Dr Oelofse qualified the Applicant under the narrative test with a serious long term impairment or loss of a body function. This is, in my view an important qualification which I will deal with more fully hereunder.

23. The Applicant submitted that the Tribunal made passing mention of the Applicant's injuries in the decision and ignored Dr Oelofse's diagnosis and opinion and failed to mention how the Tribunal arrived at its decision. Moreover, the Tribunal failed to mention Dr Oelofse's diagnosis of a pronation external rotation injury of the ankle and the consequential probability of the Applicant developing post-traumatic osteo-arthritis of the ankle joint which formed the basis of Dr Oelofse's opinion on the narrative test.

24. Having regard to the Tribunal's decision it is not clear as to what consideration the Tribunal gave to the Applicant's pronation external rotation injury of the ankle. It is also not clear why the Tribunal disagreed with the findings of Dr Oelofse in this regard.

25. Dr Oelofse envisages that the Applicant's injuries or impact upon his work capacity and that the Applicant will require to be accommodated by his employer in a light/sedentary environment for the rest of his working career and will require intermittent sick leave for treatment. Furthermore, the Applicant's productivity will increase with successful treatment however the degeneration progresses will affect the Applicant's productivity negatively. The Applicant will also struggle to perform manual work, given the nature of his pre-morbid employment, and has restricted range of motion in his left shoulder and ankle joints.

26. Dr Oelofse is of the opinion that the Applicant will most probably work until the age of 55 and based on Dr Oelofse's opinion of the Applicant's post-morbid productivity, the Applicant submits that the Tribunal make no mention of the significant impact that the Applicant's injuries will have on his productivity, future employment prospects and premature retirement.

27. The Third Respondent's answering affidavit, in response to the effect of the injuries upon the Applicant's productivity and future employment, merely states that it has noted and considered the content of Dr Oelofse's report, citing therein certain of Dr Oelofse's findings but failing to express reasons why Dr Oelofse's findings were rejected by the Tribunal.

28. In doing so, the Applicant submits that the Tribunal's inability, or failure to explain its decision to reject Dr Oelofse's findings is arbitrary.

PROCEDURAL FAIRNESS:

29. Section 6(2)(c) of PAJA provides for the review of administrative action on the ground that the administrative action taken was procedurally unfair. In Hoexter, Administrative Law in South Africa, 2nd ed,. Chapter 7, it is pointed out that procedural fairness is a principle of good administration where context is all important.

According to Hoexter; "the content of fairness is not static but must be tailored to the particular circumstances of each case". Administrative action must not be tainted by errors of fact or law and this is intrinsically linked with procedural fairness. In Pepkor Retirement Fund and Another v Financial Services Board and Another 2003 (6) SA 38 (SCA) at 47, the court held that:

"... 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 a decision has been made in ignorance of facts material to the decision and which therefore should have been before the functionary, the decision should (subject to what is said in para [10] above be reviewable ... "

30. The Applicant referred to the decision in May v Health Professions Council of South Africa and Others 2017 ZAGPPHC 739 at [34] in which the court, applying the reasoning in Pepkor held the following:

"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".

Thus, the Applicant submitted that the failure to invoke the powers afforded to the Tribunal by Regulation 3(11) amounts to an error of fact alternatively, constitutes procedural unfairness. The failure to take into account the expert opinion of Dr Oelofse who had examined the Applicant and had established the ledger and prognosis of the Applicant's injury to the ankle and the sequelae thereof, is an error of fact and procedural unfairness.

31. Furthermore, the Tribunal's failure to comment on or further investigate the Applicant's pronation external rotation injury and the consequential impact of this injury on the Applicant's productivity, despite the evidence and opinion of Dr Oelofse, is tantamount to ignoring material facts by the Tribunal in making its decision. In Duma the court highlighted the benefit of physical examination of a claimant which is within the power of the Tribunal, as follows:

"Conclusions based merely on the interpretation of these records, will therefore be of little more assistance to the Fund than the submission of the records themselves. Self-evidently the legislative authority did not regard the submission of medical records in itself as sufficient to provide the required measure of control. What is more, superficial assessments like those that were encountered in the four matters on appeal, that were made without even examining the claimants are not likely to attract the Fund's confidence. "

32. The Applicant submitted that where the circumstances and facts of a particular case require it, there is a duty upon the Tribunal to exercise its powers in the discharge of its function in order to reach a rational decision. In support of this submission the Applicant relied on the decision in Democratic Alliance v Public Protector; Council for the Advancement of the South African Constitution v Public Protector ZAGPPHC 132.

33. The Third Respondent's submission is that the Tribunal consisted of 4 medical experts who each, independently, evaluated the reports and findings and considered all the documents submitted. Each member of the Tribunal had an opportunity to express their expert medical opinion on the findings in the medical reports whereafter a debate ensued between such members and the Tribunal furnished a unanimous decision that the Applicant did not qualify under the narrative test.

34. The Third Respondent submitted that it is clear from its answering affidavit that all the reports and findings were considered and that the ground for review based on the Tribunal not having done so is incorrect.

35. In addition the Third Respondent submitted that the Applicant's medico-legal report prepared by Dr Oelofse was so prepared more than three years after the collision. Thus, the Third Respondent submitted that the Applicant had failed to comply with the applicable regulations and therefore the review must fail. The Third Respondent does not explain why the Road Accident Fund did not take this point when it rejected the claim for general damages or on appeal before the Tribunal. Nevertheless, this argument is flawed. In Van Zyl v Road Accident Fund 2012 ZAGPJHC 118, Satchwell J at para [49] stated the following:

"It is also difficult to see how the provisions of section 24(5) could result in the RAF being debarred from challenging the validity of the claim on the grounds that the form RAF4 has not been attached. As I discussed below, the injury assessment report RAF4 may be submitted separately from the claim form RAF1. The period well in excess of 60 days may lapse where a claim has been submitted but no serious injury assessment report has been presented. The RAF would be incapable of either challenging the validity of the claim by reason that no RAF4 is attached thereto (since Regulation 3(3)(i) permits such absence) or doing so within 60 days (since RAF4 may be properly submitted more than 60 days after the claim)".

36. Furthermore the Learned Judge in Van Zyl stated the following:

"[70] Professor Klopper has suggested that the provisions of subregulation 3(3)(b)(i) indicates that the report can be lodged at any time before a claim has prescribed - 'indicating the extended periods that follow on the lodging of a claim' ie three years extended by two years (on lodgement of a claim). I can see no reason why this should not be the case. Once a claim which complies with the provisions of section 24 has been lodged within the time period stipulated in section 23(1) ie three years after this accident, then a further period of two years lapses before the claim prescribes. During the initial three year and the extended two year periods, there is no reason why substantiating documentation such as the 'serious injury assessment report' may not be submitted.

[71] Certainly, there is nothing in the regulation which supports the defendant's argument that the claim for general damages prescribes if the report is not submitted within three years. There is nothing in the regulations dealing with prescription. Indeed one would not expect there to be any reference to prescription. The act has already dealt with prescription - the claim (ie RAF1 and medical report) must be submitted within three years and, once this is done, the claim shall not prescribe until a further two year period has elapsed. The regulations cannot override the act. "

37. The Third Respondent submitted that the four members of the Tribunal did take into account all the reports before them and unanimously came to the conclusion that the Applicant's injuries did not constitute serious injuries. The Third Respondent however was unable to show that the decision of the Tribunal (quoted above) was accompanied by reasons for the decision arrived at and this is where the First Respondent's argument fails.

38. The Third Respondent relied on the decision in LJ Venter v The HPCSA and Others (Gauteng Division Pretoria), case number 96671/2016 wherein Fabricius J stated the following at paragraph [6]:

"I too, have read all medical reports and the affidavits obviously. It is clear that the Tribunal came to its own conclusion on the basis of its expertise and experience. In Vilane v Health Professions Council and Others, case number 54182/16, dated 14 February 2018, Ranchod J held at par. [21], that it is not for this Court to second- guess the opinions of experts in this context. I agree. The Regulations, and particularly regulation 3(11)(a), (b), (c), (d) and (e), give the Tribunal certain powers which it may exercise, depending on the facts. It is clear that a Court should give due weight to such decisions as the Tribunal makes. It should not easily substitute its own opinions as to what would have been more appropriate. In any event, I am not concerned with the correctness of the decision, but whether or not the Tribunal performed its functions in good faith, reasonably and rationally."

39. The reliance upon the case of Venter is, in this case, misplaced. This is not a case where a judge "second guesses" the experts. It can hardly be argued that, given the report of Dr Oelofse, and his comprehensive description of the injuries and what lies ahead for the Applicant was considered rationally. The Tribunal simply came to the conclusion that the Applicant's injuries are not serious. There is an obligation upon the Tribunal to furnish reasons for the decision it arrived at. This the Tribunal did not do.

CONCLUSION:

40. Having considered the documents filed and the arguments for the Applicant and the Respondents I believe that the Applicant has made out a proper case for the relief sought. Consequently I make the following order:

40.1 The decision of the Third Respondent dated 28 July 2017 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 reviewed and set aside.

40.2 The Second Respondent is directed to reappoint a new Appeal Tribunal to determine the dispute reviewed and set aside in paragraph 38.1 above and to further reconsider all medico-legal reports in respect of the Applicant's injuries.

40.3 The Applicant is permitted to be present at the Appeal Tribunal hearing and the Applicant is permitted to provide further evidence pertaining to her injuries at the Tribunal hearing if she wishes to do so.

40.4 The First Respondent is ordered to pay the costs of this application.

G.T. AVVAKOUMIDES

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

Representation for Applicant: Adv Bester

Instructed by:

VZLR Attorneys

Representation for Respondents: Adv R.T. Schoeman

Instructed by:

Ramulifho Attorneys