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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case number: 48032/2011

Date: 11 June 2014

In the matter between:

SYLVESTER TREVOR MALUKA.........................................................................................Applicant

And

ROAD ACCIDENT FUND.............................................................................................First Respondent

HEALTH PROFESSIONS COUNCIL OF SA........................................................Second Respondent

MINISTER OF TRANSPORT.....................................................................................Third Respondent

DR DA BIRREL..........................................................................................................Fourth Respondent

DR A SHAZA.................................................................................................................Fifth Respondent

DR D LEKALAKALA.................................................................................................Sixth Respondent

DR M DE GRAAD...................................................................................................Seventh Respondent

MS S MOSES..............................................................................................................Eighth Respondent

JUDGMENT

PRETORIUS J,

[1] This is an application for the review of the finding of the Road Accident Tribunal (comprising the Fourth to Eighth Respondents). The finding was received on the 16^th July 2012, in terms of which the Applicant was found not to be entitled to claim for general damages in terms of the Road Accident Fund Act. It was deemed that the Applicant did not sustain a serious injury and therefore did not comply with the so-called narrative test on which he had relied in his appeal.

[2] The plaintiff suffered injuries in a motor vehicle accident. He contends that the injury should be treated as a “serious injury”. A “serious injury” is defined by the Road Accident Fund Act 1956 of 1996 (“The RAF Act”) and the 2008 Road Accident Regulations. Regulation 3 (1) (ii) (iii) provides:

“(ii) If the injury resulted in 30 per cent or more Impairment of the Whole Person as provided in the AMA Guides, the injury shall be assessed as serious.

(iii) an injury does not result in 30 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 body function; and if that

(bb) constitutes serious permanent disfigurement; and if that

(cc) …”

[3] The applicant is subject to the new regime as he was involved in a motor accident after 1 August 2008. He can only claim for general damages if he had suffered a “serious injury” in terms of section 17 (1) and (1A) of the Act and the Regulations.

[4] Section 17 (1) (A) provides:

“17. Liability of Fund and agents.—(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 the driver thereof has been established;

(b)  subject to any regulation made under section 26, in the case of a claim for compensation under this section 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 himself or herself or the death of or 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 injury or death is due to the negligence or other wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the performance of the employee’s duties as 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”

[5] The respondent is thus only required to compensate a third party for non-pecuniary loss if his claim is supported by a serious injury report and if the respondent is satisfied that the injury has been correctly assessed as serious. In the event that it is found to be a serious injury the applicant will qualify to claim general damages.

[6] In the guideline published by the Health Professions Council of South Africa Appeal Tribunals in the South African Medical Journal as Health Professions Council of South Africa Serious Injuries Narrative Test Guideline SAMJ Vol 103 No 10 (2013) HJ Edeling set out which criteria will be considered to decide whether injuries have resulted in significant life changing sequelae:

“In determining changes in individual circumstances the following individual circumstances should be taken into consideration:

- Basic and advanced activities of daily living (conveniently set out in the AMA Guides 4, page 3 – 4;

- Personal amentities such as sporting and other recreational activities;

- Life roles such as parent, child, sibling, spouse, spouse, father, friend, breadwinner and mental supervisor, caregiver etc;

- Independence or degree of dependency;

- Educational status and capacity;

- Employment status and capacity.”

[7] The applicant’s case was considered and rejected by an independent Appeal Tribunal constituted by the Health Professions Council of South Africa. The Tribunal consisted of three orthopaedic surgeons and a neurosurgeon. The expertise of these medical specialists is not in dispute and is common cause.

[8] The finding by the Tribunal was that the applicant had not suffered serious injuries. It is further common cause that the decision of the Appeal Tribunal is a decision governed by the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).

[9] In Road Accident Fund v Duma and Three Similar Cases 2013 (6) SA 9 (SCA) at paragraph 19e the Supreme Court of Appeal decided:

“Stated somewhat differently, in order for the court to consider a claim for general damages, the third party must satisfy the Fund, not the court, that his or her injury was serious. Appreciation of this basic principle, I think, leads one to the following conclusions:

(a)  Since the Fund is an organ of state as defined in s 239 of the Constitution and is performing a public function in terms of legislation, its decision in terms of regs 3(3)(c) and 3(3)(d), whether or not the RAF 4 form correctly assessed the claimant's injury as 'serious', constitutes 'administrative action' as contemplated by the Promotion of Administrative Justice Act 3 of 2000 (PAJA). (A 'decision' is defined in PAJA to include the making of a determination.) The position is therefore governed by the provisions of PAJA.

(b)  If the Fund should fail to take a decision within reasonable time, the plaintiff's remedy is under PAJA.

(c)  If the Fund should take a decision against the plaintiff, that decision cannot be ignored simply because it was not taken within a reasonable time or because no legal or medical basis is provided for the decision, or because the court does not agree with the reasons given.

(d)  A decision by the Fund is subject to an internal administrative appeal to an appeal tribunal.

(e)  Neither the decision of the Fund nor the decision of the appeal tribunal is subject to an appeal to the court. The court's control over these decisions is by means of the review proceedings under PAJA.” (Court’s emphasis)

[10] I have to agree with counsel for the first respondent that the only function this court has is to consider whether the applicant has established a ground of review in the present circumstances. This is not an appeal where the court can consider the extent of injuries and whether the Tribunal had made the correct decision in this regard.

[11] The criteria for assessing the seriousness of an injury are set out in Regulations 3 (1) (b) (ii) and (iii) as set out above.

[12] In MEC for Environmental Affairs & Dev Planning v Clairison’s CC 2013 (6) SA 235 (SCA) at paragraph 18 the Supreme Court of Appeal once again set out the function of a court in a review application as:

“It bears repeating that a review is not concerned with the correctness of a decision made by a functionary, but with whether he performed the function with which he was entrusted. When the law entrusts a functionary with a discretion it means just that: 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 role of a court is no more than to ensure that the decision-maker has performed the function with which he was entrusted.” (Court’s emphasis)

[13] The purpose of the current scheme, due to the amendments to the Road Accident Fund Act and Regulations in 2008 is to implement the recommendations of the Satchwell Commission where it was found in the Commission report, V2 p 1150, paragraphs 36.186 to 36.187 that:

“It is essential that bold steps be taken to ensure that the proposed road accident benefit scheme is relieved of the burden of paying compensation or benefits which are neither financially nor morally justifiable.

It appears that the only real merit in awarding compensation for pain and suffering or loss of amenities or enjoyment of life it to provide victims who have sustained catastrophic injuries and/or life changing impairment with the finance which provides for lifestyle changes and leisure pursuits in ways which cannot be expected of a road accident benefit scheme. For this reason any such benefits should be known as ‘life enhancement benefits’.” (Court’s emphasis)

[14] This was confirmed in Road Accident Fund v Lebeko Oupa William   [2012] ZASCA 159 (15 November 2012) at paragraph 3:

“total of general damages paid out to victims who sustained minor injuries and did not suffer any long-term disability far exceeded the total amount paid out to those who sustained serious injuries, which resulted in long-term disability.”

[15] The applicant lives in a four bedroomed house with a kitchen and sitting room. His family gets water from a tap in the yard. The applicant had to repeat grade 11 as he lost a lot of time out of school due to his injury. He than passed grades 11 and 12. At present he is not computer literate and does not have a driver’s license.

[16] Due to his injury he cannot reach his back with his right hand. He cannot carry a bucket with water in his right hand and cannot perform heavy gardening or heavy maintenance. The occupational therapist found that the deformity of the right arm with shortening of the humerus prevents him from playing soccer or performing heavy domestic chores.

[17] When the applicant’s serious injury assessment report was rejected, the applicant declared a dispute, which resulted in the Registrar of the Health Professions Council of South Africa, the second respondent, to constitute a Tribunal, consisting of at least three medical experts to determine whether the applicant has a serious injury. The Appeal Tribunal’s finding is final and binding and there is no appeal. A neurologist and occupational therapist were appointed in terms of Regulation 8 (c) to assist the Tribunal.

[18] The Whole Person Impairment (WP1) test is to apply rigorous and precise assessment to the various body functions concerned. In Law Society of South Africa and Others v Minister of Transport and Another 2010 (11) BCLR 1140 (GNP) at paragraph 6.9 Fabricius AJ held:

“The 30% WPI threshold in the AMA 6 (“the impairment of the whole person”), on the other hand, can be used by those victims who obviously suffered a serious injury, and who wish to substantiate their claim for general damages with reference to an objective medical assessment, and one which has the advantage of minimising the potential for disputes. The narrative test then presents an opportunity for those who believe that the injury may not be assessed as 30% WPI under the AMA Guides, but that the injury resulted in serious consequences to them, so that they should nevertheless qualify for general damages. First respondent therefore contends that, viewed as a collective, the three-part test is the best possible assessment method it could have chosen.” (Court’s emphasis)

[19] If the score in such an assessment is 30% or more, it is regarded as a serious injury. In the present instance, Dr F Booyse, the orthopaedic surgeon who assessed the applicant, scored 14% WPI and the applicant will not qualify for general damages on the WPI scale, as the score is far below the required 30%. He can only rely on the narrative test, once it had been established that he does not qualify according to the WPI test.

[20] In the present application for review the applicant does not rely on the WPI test, but on the narrative test.

[21] In RAF v Duma (supra) at paragraphs 34 to 37 the Supreme Court of Appeal held:

“In sum the inevitable inference to be drawn from the contents of the report is that it was never intended that an assessment could bypass the AMA/WPI test.”

[22] To determine whether an injury is serious according to the narrative test requires an expert opinion to determine whether an injury is serious or permanent. The narrative test, according to the applicant, was applied in the present instance due to the fact that he will be exposed to a serious long term impairment and loss of body function. This is not a borderline case where the narrative test can be used to push the WPI closer than 30%, as the WPI only indicated a 14% impairment.

[23] The Tribunal was composed of three orthopaedic surgeons and a neurosurgeon. The main complaint by the applicant is that the Tribunal did not avail itself of the provisions of regulation 11 by directing further assessments or by examining the applicant or obtaining further medical reports or directing the applicant to make further submissions.

[24] The narrative test requires an expert opinion, therefor four experts were appointed to the Tribunal in this instance.

[25] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) Ngcobo J held at paragraph 265:

“The complaint must be directed at the method or conduct and not the result of the proceedings. And the reasoning of the decision-maker must not be confused with the conduct of the proceedings. There is a fine line between reasoning and the conduct of the proceedings, and at times it may be difficult to draw the line; there is nevertheless an important difference. Determining whether the commissioner has committed a gross irregularity will inevitably require the reviewing court to examine the reasons given for the award. In doing so the reviewing court must be mindful of the fact that it is examining the reasons not to determine whether the conclusion reached by the commissioner is correct but whether the commissioner has committed a gross irregularity in the conduct of the proceedings.” (Court’s emphasis)

and further:

“The right to a fair hearing before a tribunal lies at the heart of the rule of law. And a fair hearing before a tribunal is a prerequisite for an order against an individual and this is fundamental to a just and credible legal order.”

[26] The complaint by the applicant is that the medical experts on the Tribunal acted irrationally or unreasonably in concluding that the applicant’s injuries did not pass the narrative test. It must be mentioned that in these matters a reasonable decision maker can reach a range of outcomes.

[27] Although the applicant argues that the score of 14%WPI should not be taken into account it cannot be disregarded as irrelevant. The narrative would have to be extreme to justify the Appeal Tribunal finding that the applicant had suffered a “serious injury”. The Tribunal set out the reasons for their finding that the applicant had not suffered a serious injury in the answering affidavit.

[28] Although Dr Booyse, the orthopaedic surgeon, reported that at the time of assessment the applicant was complaining of pain in the proximal arm and shoulder with associated reduction in flexion, extension and abduction, the Tribunal noted that the muscle power in the shoulder and forearm was reported as normal (5/5).

[29] Dr AG Terblanche, the radiologist, reported on 27 September 2010 that the x-ray showed a malunited fracture proximal humeral metaphysis with angulation, which is quantified by Dr Booyse as 42°. The gleno-humeral joint space, A – C joint and acromio- coracoid were reported as normal, which resulted in the Tribunal concluding that the fracture was extra-articular. An ultrasound of the shoulder, done almost two years after the accident, showed the rotator-cuff and supra-spinatus muscle to be intact and there was no impingement on dynamic examination.

[30] The information before the tribunal showed that a previous fracture had healed after conservative treatment and good union had taken place. The x-ray and ultrasound showed that the shoulder and A – C joints were normal with no signs of a rotator cuff tear or impingement.

[31] The tribunal did not agree with dr Booyse’s opinion regarding a corrective osteotomy, as the tribunal found that the shoulder is a non-weight bearing joint and there is no need to correct the angulation. An operation would not improve the biomechanics of the shoulder and could result in worse complications, such as a frozen shoulder. These findings by the Tribunal are not challenged by the applicant in the replying affidavit.

[32] The addendum report compiled by Dr Booyse did not set out any facts which could be considered as facts that could be used to support his conclusion regarding the narrative test. The tribunal did not agree with Dr Booyse that a shoulder replacement would become necessary in time. The applicant’s career preferences of traffic officer or paramedic were considered and the conclusion was that he would be an equal competitor in the open labour market.

Procedurally unfair:

[33] The applicant challenges the decision of the Tribunal as procedurally unfair, irrational  and that the Tribunal failed to take into consideration the powers it could exercise in terms of Regulations 3 (10) and (11).

[34] Section 6 (2) (c) of the Promotion of Administrative Justice Act, Act 3 of 2000 provides:

“6 Judicial review of administrative action

(1) …

(2) A court or tribunal has the power to judicially review an administrative action if-

(a) …

(b) …

(c) the action was procedurally unfair;”

[35] According to the applicant the Tribunal should have investigated the appeal by calling for collateral information to assess the injury to the applicant’s shoulder in relation to his personal circumstances. The applicant states that the failure by the Tribunal is irrational and procedurally unfair. In Pharmaceutical Manufacturers Association of SA and Another: In Re Ex Parte President of the Republic of South Africa and Others [2000] ZACC 1; 2000 (2) SA 674 (CC) Chaskalson P held:

“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.” (Court’s emphasis)

[36] In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others [2004] ZACC 15; 2004 (4) SA 490 (CC) O’Regan J held in paragraph 48:

“[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. A decision that requires an equilibrium to be struck between a range of competing interests or considerations and which is to be taken by a person or institution with specific expertise in that area must be shown respect by the Courts.” (Court’s emphasis)

[37] The fact that there can be no appeal in these matters was reiterated in Road Accident Fund v Duma (supra):

“The Court’s control over these decisions is by means of the review proceedings under PAJA.”

[38] In MEC for Environmental Affairs v Clairison’s CC 2013 (6) SA 235 (SCA) the court found in paragraph 22:

“[22] What was said in Durban Rent Board is consistent with present constitutional principle and we find no need to reformulate what was said pertinently on the issue that arises in this case. The law remains, as we see it, that when a functionary is entrusted with a discretion, the weight to be attached to particular factors, or how far a particular factor affects the eventual determination of the issue, is a matter for the functionary to decide, and as he acts in good faith (and reasonably and rationally) a court of law cannot interfere.” (Court’s emphasis)

[39] The tribunal applied its mind in this instance, as set out in the answering affidavit. Cogent reasons were given for the decision as the Tribunal had considered all the information placed before it to determine the seriousness of the injury. The Tribunal did not deem it necessary to call for further investigations as the experts were satisfied that they could reach a decision with the information available to them. It must be mentioned that the applicant failed to seek reasons for the decision at the time that the finding was made available. In terms of section 5 of Promotion of Administrative Justice Act he could have requested the reasons for the finding from the Tribunal.

[40] In this instance the court has to take cognisance of the finding by the Supreme Court of Appeal in Minister of Environmental Affairs and Tourism And Others v Phambili Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism and Others v Bato Star Fishing (Pty) Ltd 2003 (6) SA 407 (SCA):

“The essential message of this judgment is that it is not the function of a Court to sit in appeal on decisions to grant fishing allocations, or to constitute itself as an authority as to how to make such allocations. That, however much it is denied, is what the respondents are asking us to do.”

and in Bato Star Fishing (Pty) Ltd v Minister of Enviromental Affairs and Others (supra) further:

“In determining the proper meaning of s 6(2)(h) of PAJA in the light of the overall constitutional obligation upon administrative decision-makers to act 'reasonably', the approach of Lord Cooke provides sound guidance. Even if it may be thought that the language of s 6(2)(h), if taken literally, might set a standard such that a decision would rarely if ever be found unreasonable, that is not the proper constitutional meaning which should be attached to the subsection. The subsection must be construed consistently with the Constitution and in particular s 33 which requires administrative action to be 'reasonable'. Section 6(2)(h) should then be understood to require a simple test, namely that an administrative decision will be reviewable if, in Lord Cooke's words, it is one that a reasonable decision-maker could not reach.” (Court’s emphasis)

[41] It must be emphasized that the Tribunal made its decision on the expert reports provided to it by the applicant. The applicant’s assertion that the Tribunal failed to take into consideration the contents of the reports before it or that the Tribunal’s decision is not rationally connected to the information set out in the reports is patently incorrect. I find that the Tribunal’s decision was rational and cannot be faulted in this regard.

[42] The complaint of procedural unfairness must be examined. The applicant avers that the tribunal should have called for more information and legal submissions in terms of Regulations 3 (10) and 3 (11).

[43] These regulations provide:

“(10)  (a)  If it appears to the majority of the members of the appeal tribunal that a hearing for the purpose of considering legal arguments may be warranted, the presiding officer of the appeal tribunal shall notify the Registrar to this effect in writing, stating reasons.

…

(11)The appeal tribunal shall have the following powers:

(a) Direct that the third party submit himself or herself, at the cost of the Fund or an agent, to a further assessment to ascertain whether the injury is serious, in terms of the method set out in these Regulations, by a medical practitioner designated by the appeal tribunal.

(b) Direct, on no less than five days written notice, that the third party present himself or herself in person to the appeal tribunal at a place and time indicated in the said notice and examine the third party’s injury and assess whether the injury is serious in terms of the method set out in these Regulations.

(c) Direct that further medical reports be obtained and placed before the appeal tribunal by one or more of the parties.

(d) Direct that relevant pre- and post-accident medical, health and treatment records pertaining to the third party be obtained and made available to the appeal tribunal.

(e) Direct that further submissions be made by one or more of the parties and stipulate the time frame within which such further submissions must be placed before the appeal tribunal.

(f) Refuse to decide a dispute until a party has complied with any direction in paragraphs (a) to (e) above.

(g) Determine whether in its majority view the injury concerned is serious in terms of the method set out in these Regulations.

(h) Confirm the assessment of the medical practitioner or substitute its own assessment for the disputed assessment performed by the medical practitioner, if the majority of the members of the appeal tribunal consider it appropriate to substitute.

(i) Confirm the rejection of the serious injury assessment report by the Fund or an agent or accept the report, if the majority of the members of the appeal tribunal consider it is appropriate to accept the serious injury assessment report.”

[44] It must be stressed that there is no obligation on the Tribunal to request additional information, but it can be requested should the Tribunal require it. In this instance three orthopaedic surgeons and a neurologist considered all the reports and found that the applicant had not suffered a “serious injury” or “a serious long-term impairment”. They did not deem it necessary to act in terms of Regulations 3 (10) and 3 (11).

[45] I cannot find that the Tribunal acted procedurally unfair, as four experts had considered the reports and did not require any further information as they were satisfied with the reports remitted by the applicant. The applicant did not apply or indicate that further investigation was required having regard to all the facts. The submission that the members of the Tribunal acted in a procedurally unfair manner is dismissed.

Reasonableness and rationality:

[46] Did the Tribunal act reasonably when finding that the injuries the applicant had sustained were not serious as provided for in the Act and Regulations?

[47] To determine reasonableness the court has to consider the Tribunal’s decision with reference to the record of proceedings. This decision should not not be measured by the decision the court would or could make, or to require that it must be perfect. The court cannot substitute its own views on the merits of the applicant’s appeal to the Tribunal, unless the court finds that the Tribunal did not act reasoanble and that the finding of the Tribunal was not rational under the circumstances.

[48] In Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others (supra) O’Regan J held a paragraph 45:

“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.” (Court’s emphasis)

[49] In Calibre Clinical Consultants (Pty) Ltd and Another v National Barganing Council for the Road Freight Industry and Another 2010 (5) SA 457 (SCA) Nugent JA found:

“[59] On the second count - whether the decision was one that was so unreasonable that no reasonable person could have made it - there is considerable scope for two people acting reasonably to arrive at different decisions. I am not sure whether it is possible to devise a more exact test for whether a decision falls within the prohibited category than to ask, as Lord Cooke did in R v Chief Constable of Sussex, ex parte International Trader's Ferry Ltd⁶²  - cited with approval in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Others - whether in making the decision the functionary concerned 'has struck a balance fairly and reasonably open to him [or her]'.” (Court’s emphasis)

[50] The Tribunal considered all the information submitted by tha applicant. The Tribunal supplied the reasosns for its finding in the answering affidavit,. These reasons were not challenged by the applicant in the replying affidavit. If I apply the principles as set out in the above dicta to the applicant’s argument that the decision of the Tribunal was not reasonable or rational, then this ground of review cannot succeed.

[51] The applicant has failed to convince me on a balance of probabilities that the finding by the Tribunal should be reviewed and set aside for the reasons I have set out.

[52] The following order is made:

1. The application is dismissed;

2. The applicant to pay the costs, including the costs of the two counsel in respect of the first respondent.

_____________________

Judge C Pretorius

Case number : 48032/2011

Heard on : 28 May 2014

For the Applicant : Adv Strydom

Instructed by : Schutte De Jong

For the 1^st Respondent : Adv Budlender

: Adv Ramano

Instructed by : Routledge Modise INC

For the 2^nd ,4^th – 8^th Respondent : Adv Matou SC

Adv Seleka

Instructed by : Gildenhuys & Malatji INC

Date of Judgment : 11 June 2014

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