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[2013] ZAGPJHC 201
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Ndlovu v Road Accident Fund (39302/10) [2013] ZAGPJHC 201; 2014 (1) SA 415 (GSJ) (8 August 2013)
Links to summary
REPORTABLE
SOUTH GAUTENG HIGH COURT,
JOHANNESBURG
CASE NO: 39302/10
DATE:08/08/2013
In the matter between:
NDLOVU
..................................................................
Plaintiff
and
THE ROAD ACCIDENT
FUND
............................
Defendant
JUDGMENT
SPILG, J:
THE ISSUES
1. The plaintiff was a
self-employed truck driver who transported goods between Gauteng and
Kwa-Zulu Natal. He claims over R6 million
as a result of injuries
sustained in a motor vehicle accident which occurred on 14 July 2006.
The main portion of the claim is
dependent on the plaintiff
demonstrating that he suffered significant neuropsychological
impairment as a result of a head injury
which he avers was sustained
in the accident. The plaintiff alleges that the extent of the head
injury is supported by the length
of time he claims to have been
unconscious. It is alleged that the plaintiff lost his business as a
consequence of the neuropsychological
sequelae attributable to subtle
brain damage.
The plaintiff also
sustained injuries to the chest, lumbar spine and allegedly to his
lower limbs, which had the effect of preventing
him from continuing
to drive a truck and, if he is found still able to continue operating
a trucking business, would require him
to incur the extra cost of
employing a driver.
2. On 3 June 2010 the
defendant accepted that the accident was caused entirely by the
negligence of the insured driver.
3. Four key factual
issues determine whether the plaintiff is entitled to a substantial
damages award for loss of earnings and earning
capacity (“loss
of income”) as well as for general damages. They are;
a. whether the plaintiff
sustained a head injury and lost consciousness as a result of the
accident;
b. if so, then the extent
to which any resultant brain damage may have affected his ability to
operate his transport business;
c. whether the plaintiff
sustained the chest, lumbar spine and lower limb injuries in the
accident;
d. if so, then the extent
to which these injuries preclude him from driving a truck.
4. The orthopedic
surgeons appointed by the respective parties were in agreement that
the soft tissue injuries to the lumbar spine
and chest resulted in
permanent impairment of the lumbar spine and sterno-manubrial joint.
They were also agreed that these injuries
alone were sufficient to
prevent him from driving.
The key issue therefore
remains whether the plaintiff sustained the alleged head injury with
resultant loss of consciousness and
whether this has resulted in
neuropsychological impairment rendering him incapable of operating
his business. If he can still operate
the business then the loss of
income would be the cost of engaging a truck driver. If the plaintiff
is unable to run a business
then he will have lost the entire net
income stream that his business would have been expected to generate.
5. In so far as medical
and similar expenses are concerned the Fund has agreed to provide an
undertaking under section 17(4) of
the Road Accident Fund Act 5 of
1996 (“the Act”). I should add that the plaintiff did not
claim any past medical, hospital
or similar expenses.
6. Aside from oral
testimony, the parties agreed that the evidential material before the
court comprises;
e. The hospital records
of the Groote Schuur trauma unit where the plaintiff was admitted and
the Road Accident Fund (“RAF”)
claim form submitted by
the plaintiff including the medical report, but only to the extent
that they are what they purported to
be, and not as to truth of
content;
f. Two pages of the
plaintiff’s bank statement as correctly reflecting the
entries recorded;
g. The expert reports of
both the plaintiff’s and the defendant’s two orthopedic
surgeons and two clinical psychologists
including the minutes of
their respective joint meetings. They were admitted as reflecting
both what they had been told and their
opinions based on the
information they identified. It is the court’s function to
weigh them and make a finding should they
differ.
7. The oral testimony
consisted of the evidence of the plaintiff, his daughter Ms Ngobo,
the industrial psychologist appointed by
the plaintiff and, after the
plaintiff closed his case, the defendant’s industrial
psychologist. Obviously the industrial
psychologists’ expert
reports and joint minute were presented into evidence. In addition
the plaintiff called for the notes
of the defendant’s
industrial psychologist upon which he then cross-examined. This was
entered into evidence as an exhibit.
8. There were a number of
other expert medical reports contained in the court bundle. They did
not constitute real evidence, but
were amongst the documents which
could be referred as being what they purported to be. Extracts from
some were relied upon in the
expert medico-legal reports which were
admitted into evidence.
9. I proceed to the
factual enquiry concerning the head injury and its alleged effect on
the plaintiff’s ability to continue
operating his own business.
THE HEAD INJURY
10. It is appropriate to
commence with the contents of the documents which the experts claimed
to have considered and also the contents
of their opinion on whether
the plaintiff sustained a head injury and its alleged
neuropsychological consequences.
11. On 2 April 2008 the
Fund received the plaintiff’s claim form together with the
medical report required under sections
17(1) and 24(1) of the Act
read with Regulation 3(1) promulgated under it. It will be recalled
that the accident had occurred two
years earlier.
12. The following details
were provided regarding both the nature of the claim and its
quantification;
h. At that time the claim
was for just over R2 million made up of general damages of R1.45
million and past and future medical expenses
of R894 000;
I. There was no separate
claim for loss of earnings. The plaintiff crossed a line through the
entire series of questions relating
to employment with the notation
N/A and did not indicate deriving income from any other source.
However I will assume in the plaintiff’s
favour that any claim
for loss of income could not be quantified at that time.
13. These particulars
appear to have been completed on 24 July 2007 although the form was
submitted later in April 2008. The reason
appears to be that the
medical report was only signed at the end of March 2008.
14. The person completing
the medical report is a Johannesburg doctor whereas the plaintiff had
been treated at the time of the
accident by the Groote Schuur
hospital trauma unit in Cape Town. However a record from the trauma
unit where the plaintiff was
received after the accident is attached
and identified in the bundle as constituting the “Hospital
records”. It is
a four page document. The first page was
completed by the doctor on admission. The second and third pages
include anatomical diagrams
on which injuries are noted and in
addition the condition of the clothing is also noted. The final page
deals with the patient’s
problems, plan of action, any
specialist referral, X-Rays , interventions and management or
medication courses that were directed.
15. A comparison between
the Johannesburg doctor’s report of March 2008, which I will
refer to as the “RAF medical
report”, and the trauma
unit records completed on the night of the accident (14 July 2006)
reveal the following discrepancies;
j. Firstly, the RAF
medical report states that the plaintiff sustained a head injury and
suffered loss of consciousness. The presence
of both features is
highly relevant to support a case relying on the type of
neuropsychological sequelae claimed to have arisen
in this case. The
report states;
“
1. Head injury-
loss of consciousness- wound left posterior region. Developed memory
loss”
However the Groote Schuur
trauma unit’s records indicate that the plaintiff was
conscious, was not in shock and did not require
resuscitation.
Furthermore the
anatomical diagram prepared by the unit, records only two injuries
and none are to the head. It was also recorded
that his clothing was
normal, without any blood stains or damp. It is common cause that the
plaintiff was discharged within the
day.
k. Secondly , in regard
to other injuries the RAF medical report states that the plaintiff
sustained four further injuries; to the
chest (identified as a pain),
lumbar spine (resulting in backache), twisted right ankle and
deformed left arm resulting from a
fracture;
By contrast the trauma
unit records identify only two injuries, neither requiring an
anesthetic and both being described as moderate.
The first was a
closed tissue injury to the thorax cage and the other a dislocation
of the upper arm. On the anatomical diagram
there are a number of
indistinct notes relating to the left and right side of the chest and
also a note which reads “deformed”
referring to the left
upper arm. The history section of the report notes that the plaintiff
suffered chest and left arm pain. However
no anesthetic was required
for any of the injuries.
16. I turn to the
various experts’ comments on these reports and information
which they obtained from the plaintiff when
they consulted with him,
or which they gleaned from the reports of other experts. I am
satisfied that after hearing evidence, including
that of the
plaintiff, each recordal of what he had told them is accurate. The
statements he made to the experts are materially
contradictory in
regard to two critical aspects of the case; firstly as to when he was
rendered unconscious and secondly as to
whether and for how long he
was able to run his business after the accident.
The contradictions are
sought to be explained by reference to his apparent memory
difficulties. This will be considered later.
17. Although the
defendant disputed in its pleading that the plaintiff had sustained a
head injury, none of the defendant’s
experts raised the issue
save for Ms Fakir, an industrial psychologist. She however stated
quite properly that she would defer
to the opinion of a neurosurgeon.
While the clinical
psychologists did not openly question the RAF medical report
regarding the head injury, they agreed that there
were some
contra-indications which brought into question whether the plaintiff
had lost consciousness and they too deferred to
the opinion of a
neurosurgeon. I will return to this.
Despite the psychologists
deferring to the opinion of a neurosurgeon, none was called to
testify although there are two reports
from neurosurgeons contained
in the bundle of documents. I have already indicated their nominal
status.
18. All the experts
called claimed that they either had at their disposal or had
consulted the hospital records. By way of illustration,
a
neurosurgeon appointed by the defendant (but not called) consulted
with the plaintiff on 20 March 2013 and noted that from the
records
at his disposal only a blunt chest trauma and a soft tissue injury to
the left arm had been mentioned and then added that
the plaintiff
reported that he also sustained a laceration on the occiput. The
other neurosurgeon who had been appointed by plaintiff
and had
interviewed him in August 2011 simply adopted the statements made to
him by the plaintiff and then claimed that the documents
at his
disposal revealed a head injury in the form of a left parietal
laceration, with loss of consciousness and also mentioned
a soft
tissue injury to the ankle. None of these were reflected in the
trauma unit records yet no attempt was made to identify,
let alone,
resolve these discrepancies.
19. Only Ms Fakir, the
defendant’s industrial psychologist, persisted in questioning
whether the plaintiff sustained a head
injury in the accident. This
was based on the plaintiff’s disclosure to her that he had
continued to operate his transport
business up to a period of eight
months after the accident. She considered this to be inconsistent
with the claimed neuropsychological
sequelae both clinical
psychologists and the plaintiff’s industrial psychologists said
they would have expected if the plaintiff
had sustained a head injury
rendering him unconscious as alleged- in their opinion this would
have rendered him unable to run a
business. In their defence, they
had taken the plaintiff at his word that he carried on his business
for a very short time after
the accident.
20. A court is entitled
to expect that, as professionals giving objective testimony, the
experts would have pointed out and dealt
with the anomalies between
the trauma unit records and the RAF medical report. The failure of
those to do so suggests that only
the latter was read, possibly since
they had no reason to question the veracity of a qualified medical
practitioner’s report.
Nonetheless one is entitled to expect
greater diligence from medical experts.
21. The court therefore
had before it the expert opinions and joint minutes of all the
psychologists, only one of whom questioned
the existence of a head
injury, and two others ( who assumed that there was a head injury)
who questioned whether the plaintiff
had immediately lost
consciousness as a result.
22. I now turn to the
viva voce evidence presented regarding the head injury. The plaintiff
described that he sustained a scalp
laceration of some 5-7 cm in
length although it was not deep. He also pointed to a scar on his
head which he testified was the
relevant injury. The defence did not
challenge this evidence. In fact there was no cross-examination at
all on the point, not even
a reference to the trauma unit overlooking
such an injury, nor was it put that the defendant’s industrial
psychologist would
dispute his evidence. It is only when Ms Fakir
testified that the issue was raised for the first time.
23. In her evidence Ms
Fakir initially challenged whether the plaintiff had in fact suffered
a head injury. She based her opinion
on his statements to her that he
had continued to run his business some eight months after the
accident. However when Mr Ancer
for the plaintiff put it to her that
the plaintiff had shown the relevant scar to the court, she accepted
that the plaintiff had
sustained the head injury. Nonetheless she
persisted that the sequelae of the head injury did not affect his
ability to run a business
for some eight months after the accident.
She persisted with her opinion that this was inconsistent with the
neuropsychological
deficits expected from a head injury with
resultant concussion.
24. All the witnesses
before the court therefore acknowledged that the plaintiff sustained
a head injury. Only the trauma unit records
fail to mention a head
laceration or concussion. However the trauma unit’s records
were not admitted into evidence as to
truth of content and for this
reason do not constitute admissible evidence as to the facts
contained in them. In any event the
plaintiff was not given an
opportunity to deal with its content nor did the defendant attempt to
cross-examine on it as available
material. The plaintiff would
clearly be prejudiced were the court to elevate the trauma unit’s
records beyond their agreed,
but limited, status.
25. Without real evidence
that can be subjected to testing through cross-examination, the court
finds on a balance of probabilities
that the plaintiff did sustain a
head injury, having regard to the admissible evidence that was
presented, which included the unchallenged
ipse dixit of the
plaintiff.
LOSS OF CONSCIOUSNESS
26. The next issue is
whether the plaintiff lost consciousness as a result of the head
injury and if so for how long. The neurosurgeons
were not called.
That left the clinical psychologists.
Their joint minute reads:
“
There are
questionable indications of possible loss of consciousness although
we give final deference to neurosurgical experts”
27. The reason for
defendant’s clinical psychologist expressing her reservations
is to be found in the following passage of
her medico legal report
pursuant to an assessment conducted in April 2011;
“
He does not
report any retrograde amnesia and remained conscious following impact
as he recalls details of being trapped in the
vehicle, but says he
lost consciousness thereafter, only coming to in hospital; a day
later. This is not the typical presentation
of a post-traumatic
amnesia associated with a brain injury which more typically results
in immediate loss of consciousness.”
The details he recalled
were that the steering and dashboard were crushed into his chest
causing him to breathe with difficulty.
He also recalled getting
himself out of the vehicle but of nothing further until the following
day.
The only other
explanation the defendant’s clinical psychologist could
proffer regarding the possibility of post traumatic
amnesia required
the existence of a particular set of medical facts which were not
raised in any of the reports or records and
can therefore safely be
discounted.
28. The plaintiff’s
clinical psychologist assessed the plaintiff a year later in April
2012. On this occasion he claimed that
his last recollection was
“just before the accident impact and his next recall was waking
up in hospital the morning of the
following day”.
She also mentioned the
anomaly that the hospital records did not record the presence of a
head injury and then continued that the
documents perused were
unclear (presumably meaning the RAF medical report). She added that
the expert medico-legal reports perused
as well as the plaintiff’s
own personal account indicated that he lost consciousness and had no
recall from the time of impact.
The last observation however is
contradicted with the detail the plaintiff provided to the
defendant’s clinical psychologist
the year before.
29. Since the clinical
psychologists did not present oral evidence, but as indicated earlier
their reports are to constitute their
evidence, the court is required
to draw conclusions from their joint minute and medico-legal
reports. I am satisfied from the
contents of these documents, and in
particular the cited excerpts to which I have referred, that the
plaintiff’s clinical
psychologist conceded that the plaintiff
had told her counterpart a year earlier that he could recall events
which occurred immediately
after impact and until he got out of the
vehicle. That being so, her opinion is flawed by the incorrect facts
she had been given
while that of the defendant’s clinical
psychologist is not. As neither testified, the criticism leveled
against the defendant
for not putting a version does carry the same
prejudicial difficulties as arose in relation to the head injury.
Moreover I read
the joint minute as an acceptance by the plaintiff’s
clinical psychologist that the plaintiff could not have provided such
specific details of events immediately after the accident unless he
had indeed recalled them.
30. Accordingly the
opinion of the defendant’s clinical psychologist stands unless
the plaintiff was able to challenge it
in evidence. He could not.
This leaves only the argument that the deviation in recollection is
based on memory loss.
31. A final aspect of the
joint minute relates to the following note:
“
We concur that
the neuropsychological challenges he presents with, are in line with
the expected changes following a mild to moderate
head injury”
It is evident from the
plaintiff’s experts that loss of consciousness was a material
fact in accepting the finding of a mild
to moderate head injury. The
plaintiff’s case is that he was unconscious from the time of
the accident until the following
morning and, at least in their
reports, this was accepted by his experts. It is equally evident from
the reports of the plaintiff’s
experts that if the plaintiff
had not lost consciousness or had only been unconscious briefly then
they could not draw such a conclusion
and would have had to look
elsewhere for the cause, or limit the effect of the head injury.
Unfortunately as with so
much regarding a head injury which is alleged to cause some form of
brain damage without visible signs
on an MRI or similar instrument,
the mere fact that it is not physically observable does not mean that
there has not been neuropsychological
damage. Nonetheless the
converse must also be carefully considered; namely that the patient’s
claims as to what occurred
may result in conclusions being drawn on
assumed but incorrect facts.
32. In his evidence
before court the plaintiff testified that he recalled the collision
which occurred during the night but lost
consciousness and did not
know what happened to him from the moment of the accident until he
woke up the following morning at Groote
Schuur. He was not cross
examined on this at all, not even by reference to the version he gave
to the defendant’s clinical
psychologist.
33. On the admissible
evidence before me, the plaintiff has discharged the onus of
demonstrating that he sustained a concussion.
The question of its
length is another matter dependent on the experts’ opinions
since the plaintiff is not qualified to know
whether he simply slept
for most of this period due to fatigue or shock, whether he was
sedated at the scene or the like. Accordingly
the plaintiff’s
statement as to the period he was unconscious is mere speculation
unless bolstered by expert testimony.
34. I am also not
prepared to accept that he lost consciousness immediately. His
recollection of the events immediately after the
accident amount to a
statement against interest and irrespective of whether it was put to
the plaintiff or not, the parties agreed
that the contents of the
clinical psychologists’ reports constitutes evidence before me
and the plaintiff did not attempt
to clear it up in his evidence. As
indicated earlier, the plaintiff’s experts base their opinion
regarding extended concussion
on his say-so. I have found that he was
able to recollect in detail what occurred immediately after the
accident. The plaintiff’s
legal representatives sought to
discount this on the basis of his alleged memory loss. I do not
accept this explanation as no expert
has suggested that the plaintiff
creates events; only that he forgets them. My observations regarding
the plaintiff’s reliability
and credibility are dealt with
elsewhere in the judgment.
LOSS OF INCOME
35. The question remains
whether the head injury and period of unconsciousness had
neuropsychological consequences which manifested
themselves, as the
plaintiff’s psychologists contend, in an inability to run a
business.
Since the experts also
looked to subsequent events in order to draw conclusions it is
appropriate to test their opinion in two ways;
I. by considering the
facts upon which they drew their conclusions. If the facts are
incorrect, which is part of the judicial function
to determine, then
a fortiori the opinion is flawed, possibly fatally;
m. by considering
whether the plaintiff in fact ceased operating his business shortly
after the accident or not, and if not
whether there is an
explanation offered which might account for the proven facts not
supporting the experts’ opinions.
Both methods of testing
involve a consideration of the accounts given by the plaintiff to the
experts and it is for the court to
find on the proven facts the
length of time the plaintiff continued to operate his business after
the accident.
2. In the most profound
way all the plaintiff’s psychologists based their opinion of
the neuropsychological sequelae by reference
to the plaintiff’s
ability or otherwise to continue working after the accident. Because
there is a divergence regarding what
he told them it is necessary,
when weighing up the conclusions drawn by the experts, to first
establish whether the factual underpinning
for their opinion is
correct. It is a decision the court must make on a balance of
probabilities based on the evidence placed before
it.
3. In order to appreciate
the divergent versions upon which each expert relied it is
appropriate to record the information which
the plaintiff furnished
to them, or on which they relied pursuant to the consultations he
held with the orthopedic surgeons, regarding
the work he claimed to
have performed after the accident, for how long and the reason
advanced for ceasing to work.
4. Prof Fleming, the
defendant’s orthopedic surgeon, noted in his report of November
2010, pursuant to an examination conducted
earlier that month, that
the plaintiff’s partial temporary disability “is
difficult to assess as the patient employs
other people to drive his
trucks. Under the heading “ Occupation in the Future” the
following is stated” The
patient can continue to employ others
to drive his trucks. I do not believe he himself will be driving
trucks in the future.(emphasis
added). Under the heading “Final
Comment” the surgeon recorded “ He can continue to employ
others to drive his
trucks”.
5. Despite these
statements and despite the plaintiff’s initial industrial
psychologist claiming to have been provided with
Fleming’s
report when compiling her assessment in February 2012 she accepted,
without demur, the plaintiff’s statement
to her that he
attempted to work for a month after the accident but could not cope
after which he attempted without success to
secure work at other
companies where the distances to be travelled were much shorter. She
accepted the plaintiff’s statement
that he had completed four
trips post-accident but could not cope and ceased working as a
contractor in 2006 after one month and
“has not worked since”
. The plaintiff’s industrial psychologist concluded that he
only earned R12 500 per month
as opposed to a pre-accident income of
R37 333 pm.
6. The plaintiff then
told a number of other experts that he returned to driving a truck
after a month but when he found that he
could no longer drive the
distances employed someone else to do so. That person was dismissed
for stealing petrol and another person
was engaged. However the truck
then broke down and was not repaired. Nonetheless on each occasion
there generally was some deviation
from the previous version. In the
one case the plaintiff claimed that the person to whom he was
contracted to deliver the goods
then found their own driver who
continued to drive his vehicle until it broke down. Unlike the
version given to Fleming as far
back as November 2010, these
subsequent versions mentioned only one truck.
7. The report of the
defendant’s occupational therapist noted that while the
plaintiff claimed that his business had only
utilised one truck he
told her that it was sold in Kwa-Zulu Natal to another truck owner
because he only had one driver whom he
dismissed after the truck had
broken down. In the report the plaintiff apparently claimed that as
at the date of the interview
in May 2011 he was still waiting to
receive the outstanding monies from the sale.
8. I have referred to the
plaintiff’s responses given to Ms Fakir, the defendant’s
industrial psychologist. He informed
her that he had in fact operated
the business for another eight months, seven of which with a driver
whom he employed to drive
the truck.
It is evident that this
version has some significant elements in common with the version
given to the plaintiff’s neuropsychologist
but not the other
experts. In fact in February 2013 the plaintiff is reported to have
told a managing psychologist much the same
version up to the stage
where the first driver was dismissed for stealing diesel. After that
point the version given is that the
second driver was engaged until
April 2007 at which stage the truck was involved in an accident and
could no longer be driven,
rendering the plaintiff unemployed since
May 2007. The report of Dr Kasumba, a specialist surgeon, records
that during an examination
conducted in December 2007 the plaintiff
described himself as a self-employed truck driver but because of the
pain he endures it
was very difficult to work effectively and this
affected his income. Obviously the contents of these reports remain
untested as
to truth. Nonetheless it demonstrates that the plaintiff
has difficulty in accounting for when and why he ceased working or
operating
his business.
9. I turn to the evidence
tendered by the plaintiff in court. He claimed that he had resumed
work a month or two after the accident
even though he did not
consider being fit enough. He said that most of the time was spent at
the offices of a Mr Manfred Rhim with
whom he had a long standing
agreement of over ten years to transport goods to certain
destinations in Kwa-Zulu Natal. The plaintiff
then drove for a few
weeks but found that he could not maintain his pre-accident work
rate. He also earned very little because
his turn around time had
slowed considerably and he was only able to drive once or twice. He
therefore engaged a driver to work
for him at about R5000 to R6000
per month. However the driver stole diesel from him and was
dismissed. Another driver was employed.
This driver only lasted two
or three weeks because he had failed to note where he was to effect a
delivery in Richards Bay and
when it was realised that the truck was
not roadworthy it was left there. The truck had a bearing knock which
resulted in engine
problems and required bearings, pistons and rings.
The plaintiff and his wife then approached Mr Rhim and explained that
he would
only be able to resume managing his business after receiving
proper treatment. He said that at the time he did not appreciate the
extent of his injuries. The plaintiff became very vague when asked
why the truck was not repaired, bearing in mind that his brother
was
a mechanic. He however persisted that he only operated the business
for a period of some two months post- accident.
10. In my view the
plaintiff appreciated that if he had the money to repair then there
was no reason why the truck was not returned
from Richards Bay with
his brother’s assistance and at the very least sold, if his
predicament was as claimed. The brother
was not called to testify
even though available.
11. There are material
contradictions between the versions given to the court and the
various statements the plaintiff is recorded
to have made to the
experts. To contend that this is not because the plaintiff is
untruthful does not fully answer whether his
evidence can be
accepted.
12. In my view the
starting point is that, at the least, the plaintiff’s evidence
cannot be accepted because it is unreliable.
However the plaintiff
also failed to give an adequate explanation for not producing his
other bank statements when there was no
reason he could not have
obtained them on being requested to do so by his own attorney. It is
clear that at the very least the
plaintiff was able to conduct his
business for another eight months after the accident engaging a truck
driver and that his previous
ability to run a fleet of ten taxis had
not deserted him to the extent that he was unable to operate one
vehicle whose driver need
only be given the necessary delivery note
to find the way.
Since the plaintiff’s
reasons for being unable to utilise the truck within two months of
the accident is therefore rejected,
so too are the opinions of the
experts who materially relied on that version to draw their
conclusions.
13. Mr Ancer however
contended that the discrepancies are rather attributed to the
plaintiff’s loss of memory.
I do not hold such a
benevolent interpretation of his evidence. The plaintiff showed an
astuteness that does not sit well with someone
who is purely
forgetful or, as his daughter put it, lacks confidence. Perhaps most
importantly the plaintiff could not satisfactorily
explain why he did
not produce any bank statements which would readily demonstrate his
income and expenditure from the time of
his accident until 2010, when
according to him the account was closed. This would have been well
after the claim was lodged and
the action instituted (in May 2008).
14. The plaintiff only
produced two bank statements which were clearly favourable to him as
they were for the period from April
2006 to 30 June 2006 and
reflected a closing balance of R80 000. Moreover his explanation
about not being able to procure
the subsequent, or even earlier, bank
statements, when he expressly stated that his new attorneys had asked
him to do so well before
his account was closed makes no sense. The
explanation as to how come only these two were located, and then at
his home, also makes
little sense. The court was most concerned about
the possibility that the plaintiff was withholding evidence and only
producing
what suited him. This is reinforced by his attempt to
present his left eye blindness as originating from the accident
although
it was in fact due to diabetes. So too the ankle injury and
certain other ailments which were not persisted with at trial. The
plaintiff’s evidence was unreliable and in material respects
contradicted by earlier statements he had made.
I therefore conclude that
the plaintiff continued to operate his business for a significant
period after the accident, and certainly
much longer than two months
as testified. This means that the factual underpinning of the opinion
of the plaintiff’s experts
is erroneous. Such a material fact
is fatal to the conclusions they drew; none contended that but for
the brief period that he
continued to operate the business there were
enough other facts from which the conclusion could be drawn that his
executive functioning
was impaired to the degree that he could no
longer run his transport business.
16. I have considered the
same issue from a different perspective by drawing on the plaintiff’s
industrial psychologist’s
expert report. She relied on the
plaintiff’s statement that he worked for one month after the
accident and did not engage
anyone else. She accordingly did not have
to consider his demonstrable earnings for the period of at least 8
months post-accident,
while engaging someone else to drive on a
regular basis over approximately 7 of those months to and from
Richards Bay on what may
have been up to three trips per month (as
his income levels went up to R45 000 per month when engaging another
driver which may
suggest even more trips than he had been able to
make pre-accident).
17. The industrial
psychologist also did not establish from the plaintiff the nature or
content of the actual executive functions
that his business entailed.
She was also not present in court when the plaintiff explained how
his business operated.
18. The question then
remains: What is the value of her testimony when she had not
established the nature of the tasks he was performing
as proprietor
and when she had relied on his statement to her of stopping his truck
operations two months after the accident, and
not eight months later
as I have found.
19. The answer is very
little, unless there was evidence she gave based on what he
subsequently had conceded in the witness box.
I have already pointed
out that she was not in court when he testified. She was also not
informed during her testimony by counsel
that the plaintiff had
explained how his business operated; she was only asked whether he
could run a ten fleet taxi operation
post-accident to which she said
“no”. The court enquired what her response would be if
his business comprised a truck
with a driver who had to wait for
another company’s bakkies to deliver the goods or merchandise
and presumably a delivery
note after which the driver would
transport the load to the designated place where the delivery note
would presumably be handed
over for signature. She accepted that
these comprised simple executive tasks.
20. The plaintiff’s
industrial psychologist’s report was compiled in April 2012. It
focused on the plaintiff’s
employability as a driver and did
not concern itself with his ability to operate his own business. This
overlooked his statements
contained in the earlier reports of the
other experts and the industrial psychologist’s own recordal
that he was an owner-
driver. In considering the plaintiff’s
occupational prospects she nonetheless only focused on his ability to
drive a vehicle
as an employee. This appears from her conclusion that
he was no longer capable of successfully obtaining work as a driver
and unlikely
to obtain any other employment. She envisaged a clerical
job as the only other possibility but that he would be unable to
obtain
employment. She found that he was effectively unemployable.
21. Pertinently, there
was no discussion at all regarding whether he could run his own truck
operation while employing a driver.
She simply noted that: “
Post-accident, it is thus likely that Mr Ndlovu would not be able to
secure and sustain employment
and it should be considered that the
accident and its sequelae have rendered him unemployable” .
22. It is also surprising
that no consideration was given to his prospects as the owner of a
trucking business since she recorded
that he had been a taxi owner
from 1981 to 1996 after which he had sold all the taxis and then
commenced in that same year to
operate his own trucking business.
Accordingly the plaintiff’s industrial psychologist omitted to
investigate or otherwise
deal in her report with the plaintiff’s
prospects as a truck operator employing a driver in his stead.
23. Shortly before the
trial in a subsequent report of 25 March 2013, the plaintiff’s
industrial psychologist referred to
a number of the further reports
she had received and which suggested that even pre-accident the
plaintiff might have been suffering
from eye-problems, diabetes and
hyper-tension. Her report attempted to shore this up by considering
that even if this was the case
the plaintiff would have continued
managing his business while appointing a driver. She then calculated
the cost of engaging such
a person which would have reduced the
plaintiff’s income but for the accident by the cost of
employing a driver, approximately
R8 000 at the time and that
with reduced driving stress he would have been able to carry on
longer to age 70. It was accepted
that normal retirement age is 65.
24. However the
plaintiff’s industrial psychologist did not ask the plaintiff
during their interview about the actual activities
he had performed
when he operated the trucking business nor did she take the
opportunity to query the material discrepancies between
the version
he told her on the one hand and Fleming or others on the other.
Accordingly her assessment was based on assuming that
as a fact the
plaintiff failed to continue his business because he had been
severely compromised by the accident and the following
sequelae which
she noted;
severe
neuropsychological difficulties and chronic pain which had “a
severe negative effect on Mr Ndlovu’s functioning
and
productivity”;
below expected limits
with regard to working memory, sequential processing ability,
auditory memory and executive functioning;
“ which according
to the clinical psychologist are associated with a mild concussive
head injury and the results suggest
subtle cognitive difficulties
which seem to be inconsistent with his premorbid levels of
functioning and that depression and
a general anxiety disorder are
likely to further compromise his cognitive functioning.” In
particular as indicated by
the clinical psychologist “impairment
in Mr Ndlovu’s executive functioning, as well as his memory
and reasoning
abilities suggest that his judgment may be impaired
and he may not have the necessary decision making capacities to
manage
his own business.”
25. The plaintiff’s
industrial psychologist then concluded; “Taking into account Mr
Ndlovu’s physical, neuropsychological
and cognitive
difficulties, his long absence from the labour market, as well as
other non-accident related problems eg. his age
and level of
education, it is likely that Mr Ndlovu is unemployable in any
capacity”.
As stated earlier, she
was completely unaware that the plaintiff had in fact continued his
operation for effectively 8 months still
performing subcontract work
for Mr Rhim. This would suggest that the two incidents of
forgetfulness the plaintiff claimed had
occurred were isolated. The
ease with which the plaintiff’s industrial psychologist was
prepared to say that he could not
run a business after two months
without first establishing what in fact was required of him or
mentioning what he had told other
experts and failing to pick up that
Fleming referred to the plaintiff continuing to operate a fleet of
trucks in November 2010
makes her opinion of doubtful value to the
court.
26. There is a further
facet. The industrial psychologist was asked if the plaintiff’s
failure to mention that he had engaged
two other drivers or that the
truck’s bearings had seized could be attributed to memory loss
and not malingering. She answered
in the affirmative. This is outside
her field of expertise and more significantly this court declines to
accept that memory loss
accounts for the following contradictions;
that he had operated a
truck for 8 months after the accident as opposed to only one month;
that the truck he used
in the business was involved in an accident as opposed to its
bearing seizing;
that he had sold the
truck as opposed to his brother, a mechanic, considering repairing
the vehicle and looking to replace bearings
and pistons or the
whole engine and that the vehicle remains where it was left in
Richards Bay;
that the vehicle was
abandoned in Richards Bay sometime in September 2006 when his told
a number of experts that he had still
been operating the vehicle in
April 2007.
27. The methodology
adopted by the plaintiff’s industrial psychologist did not
bring into question the anomalies already inherent
in the version she
was given and which she should have queried, if only from Fleming’s
report which had been given to her.
Moreover her opinion looked only
at the plaintiff’s ability to work as a driver employed by
another, a significant omission
for an expert who should have been
aware from the facts before her that the plaintiff was operating his
own business and had previously
operated a fleet of 10 taxis.
28. The plaintiff’s
expert then attempted to shore up the deficiencies in her methodology
and analysis in court. The principal
failures of not establishing the
facts regarding the plaintiff’s post-accident work activities,
when there existed significant
contradictions and when she limited
the occupational opportunities open to the plaintiff despite his
pre-accident business, does
not leave the court with sufficient
confidence in her conclusions to warrant acceptance.
29. On the other hand Ms
Fakir who was called by the defendant had been informed by the
plaintiff that far from only receiving a
total income post-accident
of R12 500 (made up of a handful of trips over a month
altogether before he could no longer work),
his business had in fact
been operating for a period of 8 months post-accident . I am
impressed with Ms Fakir’s methodology
and the fact that she
asked pertinent question. Despite being the youngest of the experts,
Ms Fakir displayed both a willingness
to explain by reference to
specific data and an objectivity that was open to making concessions
where the issue was outside her
field of specialty despite her own
reservations.
30. I have concluded
therefore that the plaintiff’s head injury and resultant loss
of consciousness did not impair his ability
to continue running his
transport business. However the admitted sequelae of the orthopedic
injuries meant that he had to employ
someone to do the driving.
Furthermore I agree with Mr Fakir’s conclusion that “ Mr
Ndlovu’s pre-accident employment
records displays his
entrepreneurial skills together with having continued his business
after his accident for a period of eight
months, while having to hire
drivers up until April 2007.”
31. I am also satisfied,
for reasons set out earlier that the plaintiff’s business could
have continued and that the reason
he was unable to continue with the
business is that his truck broke down. Since there is no explanation
given as to why he did
not repair it, bearing in mind that his
brother is a motor mechanic and that his bank account indicated that
he had the financial
resources to attend to it, the loss of his
business is unrelated to the sequelae of the accident and the
sequelae did not inhibit
his ability to continue operating his
trucking business as he had sufficient executive skills to do so.
32. Until the mid-1990s
the plaintiff operated a fleet of ten taxis. He sold the business and
commenced operating a truck to transport
goods for a transport
company owned by Mr Rhim, although not as an employee but more as an
independent sub-contractor. At the time
of the accident the plaintiff
earned on average a rounded figure some R 37 400 per month.
The evidence was that most of
the running costs and major overhaul
costs were the responsibility of the main contractor. This was not
seriously challenged.
33. By reason of the
accident the plaintiff could not return to work immediately and I
will assume that he did not earn any income
and would have been
unable to engage a driver for the balance of that month. Accordingly
he is entitled to damages of half a month’s
income for the
balance of July 2006 of R 18 700
34. The plaintiff was not
frank with the court and did not provide his bank statements that
would readily have established his income
since July 2006. In
Burger
v Union National South British Insurance Company
1975 (4) SA 72
(W) at pp74-75
the
court distinguished between cases where the plaintiff could have
produced evidence to remove uncertainties, but neglected to
do so and
cases where the available evidence nonetheless failed to or was
unlikely to assist further in assessing quantum.
35. The plaintiff elected
to disclose very little to the court and adopted the extreme position
of an all or nothing approach attributing
every physical and other
disability (such as having sight in only one eye, sustaining an ankle
injury, suffering from diabetes
and hypertension) to the accident. He
did not attempt to deal with the relative impact that the injuries
actually sustained in
the accident had on his ability to continue
running the business and attract custom based on then existing
business relationships,
particularly with Mr Rhim, whose offices he
frequented regularly after the accident. The plaintiff also gave
materially contradictory
versions of how and over what period he
continued operating the business and why he stopped operating.
36. These factors
effectively preclude the court from considering any nuanced approach
that may have resulted in a gradual degradation
of income.
Nonetheless the abysmal failure of meaningful cross-examination
ultimately inures to his benefit – I am unable
without proper
challenge to discount the effects of plaintiff’s other
infirmities on his ability to have continued the business
operations
or the length of time he would otherwise have been able to continue
driving. I am only prepared to take into account
that the unrelated
disabilities relating to sight and the ankle, and in part
hypertension, would have impacted on his ability
to drive albeit at a
much later stage had the accident not occurred. I also will not
discount these unrelated infirmities fully
from possible inception,
but rather provide for an equal risk contingency at a much later
stage post-accident until ordinary retirement
age.
37.
Accordingly from August 2006 the plaintiff is entitled to damages
representing only the cost that would have been incurred in
engaging
a driver, being an amount of R8000 per month as at August 2006
values.
38. The plaintiff is
impaired as a result of other afflictions and injuries unrelated to
the accident. The loss of sight in the
left eye, the ankle injury and
hypertension may well have reduced his lifespan behind the wheel,
necessitating the engagement of
a driver in any event. For this
reason the calculation cannot be simply limited to the extra cost of
employing a driver. However
the failure to cross examine on these
issues places the court in an invidious position. It is necessary to
adopt a more robust
approach and accept that the plaintiff managed to
continue driving with the ankle injury and blindness in the one eye.
Nonetheless
these ultimately would have taken their toll particularly
on long haul driving.
39. Since the calculation
is based on resolving imponderables and that it lay in the
defendant’s hands to properly cross-examine
I will only assume
that the plaintiff would have been obliged to engage a driver when he
was between 60 and 65 years of age if
the accident had not occurred.
I have applied a 50% contingency that, if the accident had not
occurred, for each year between age
60 and 65 the plaintiff may have
been unable to drive the truck for business purposes. This evens out
the risk of that eventuality
over the 5 year period.
40. I am mindful that the
plaintiff would have a less stressful work career and accept that he
would have continued to operate the
business for some five years
beyond normal retirement age, taking his retirement age to 70 years,
against which a contingency would
be necessary for nor surviving to
that age. Nonetheless I cannot assume that the situation would have
been any different but for
the accident as his other unrelated but
significant injuries and conditions, including hypertension, would in
all probability have
necessitated the plaintiff engaging a driver at
some stage before even reaching age 65.
41. The calculation
therefore need only be based on the loss of income occasioned by the
cost of employing a driver as from 1 August
2006 until the plaintiff
attains the age of 65 years.
42. The contingencies are
determined as follows in respect of ;
the accrued loss up to
the end of July 2013 and reckoned from August 2006 (which therefore
does not affect the R18 700
for July 2006), at 5%;
the prospective loss
from 1 August 2013 until the plaintiff attains the age of 60 is at
10%;
the prospective loss as
from the date plaintiff attains the age of 60 until the age of 65
is at 50%;
43. The usual contingency
figure for prospective loss is said to be 15%. I have reduced it to
10% because the source of the loss
is readily identified, the
plaintiff has already survived to age 56 and the period covered by
the contingency is both imminent
and of short duration since the five
year period will commence some four years from now.
44. All other actuarial
calculations are to be in accordance with the actuarial assessment of
G Jacobson contained in his report
and to be produced to this court
for final verification within two weeks of this order;
GENERAL DAMAGES
45. The plaintiff was 49
years old at the time of the accident. The accident impacted
adversely on him.
46. Firstly the physical
pain and discomfort of the lower back and chest injuries cannot be
understated. In the future he may require
operative procedures for a
lumbar fusion and acromioplasty for his right shoulder.
47. He suffers from
chronic back pain, severe headaches up to three times a week and
chest pain. He also suffers from foot pain,
left eye blindness and
changes to his sense of taste, but these are unrelated to the
accident. He is unable to sleep peacefully,
has reduced energy levels
and remains anxious when driving a vehicle. Overall he suffers from a
general reduction in mobility.
48. This is attested to
by the evidence of his daughter, Ms Ngobo. Although she was still at
school at the time of the accident
and lived at her mother’s
residence, she went to live with the plaintiff since the early part
of 2007. She referred to his
pre-morbid personality as that of a
powerful and enthusiastic man but that since she started staying with
her father his personality
had changed in that he lacks confidence
and is depressed.
49. The clinical
psychologists are agreed that the plaintiff suffers mild to moderate
symptoms of depression and also anxiety. These
conditions have
affected his quality of life and interpersonal relationships. The
experts are also agreed that his depressive state
and anxiety
compromise his cognitive functioning.
50. It is not my
intention to set out the details, suffice that they are significant
and the experts recommend psychotherapy which
is expected to
alleviate these sequelae to some extent.
51. It is readily
understandable that a man who was able to build up a business, where
he operated 10 taxis, with little more than
a standard 7 education
can find the physical impairments of his orthopedic injuries
affecting his self-esteem. Moreover his low
mood is also subject to
the ongoing pain and discomfort he experiences consequent on the
other orthopedic injuries.
52. As indicated earlier
there are other injuries unrelated to the accident, including his
left eye blindness and ankle injury which
are debilitating, create
frustration and may require further medical intervention.
53. The most difficult
task is determining the further extent of the neuropsychological
sequelae considering that the court did
not have the benefit of any
probative cross-examination. I have already found that irrespective
of the existence or otherwise of
any neuropsychological impairment
they did not affect the plaintiff’s ability to run his business
remained unaffected. This
was adequate when enquiring into loss of
income based on whether he still possessed adequate entrepreneurial
skills to continue
his business post-accident.
54. However the testing
undertaken by the experts, shorn of their incorrect assumptions
regarding the period of loss of consciousness
and for how long he
continued operating his business after the accident, still reveals
that he is forgetful and has poor concentration.
He was also found to
have a very poor memory. The experts are also agreed that his
depressive state and displays of anxiety compromise
his cognitive
functioning. Although none of the experts suggested that the
plaintiff was malingering, the court cannot ignore the
contradictory
versions given by him and the failure to provide bank statements when
they were readily available.
55. The psychologists do
not appear adequately equipped to make that call nor did they suggest
in what way, if at all, their tests
may include measures to expose
malingering. More importantly the experts have not indicated what
yardstick they used to test faculties
such as memory retention and
concentration when the plaintiff appears to have left school at only
standard 7. No attempt was made
to try and correlate what would be
the expected responses of a person who did not get beyond standard 7
nor did they explore whether
the reasons for leaving were unrelated
to his scholastic ability.
56. In the result, having
found a head injury and some loss of consciousness, I am prepared to
accept that there has been some impairment
to his faculties but not
to the extent contended for.
57. Taking all the
various components making up general damages I consider that awards
involving medium to severe brain injury to
be inappropriate. The
sequelae of the plaintiff’s head injuries are more subtle than
that. This case is far less severe than
that of Roe v Road Accident
Fund 2010 ZAGPJHC 19 where my brother van Oosten J awarded R650 000
where there were multiple
fractures and other internal injuries
resulting in the claimant being hospitalised for a period and
returning to theatre from time
to time.
58. Cases such as Naude v
Road Accident Fund 2013 ZAPGJHC 25 only dealt with orthopedic
injuries and awarded R200 000 for general
damages. In Mvundle v
Road Accident Fund 2012 ZAGPPHC 57 an amount of R200 000 was
awarded where the plaintiff suffered a
head injury but did not lose
consciousness and also sustained a neck injury as well as to the one
shoulder, lower back and eye.
The medical experts indicated that the
plaintiff sustained certain neuropsychological impairments such as
poor concentration and
slow work-tempo. This may be the closest
approximate case on certain of the elements but not all. I also had
regard to Malela v
Road Accident Fund 2012 ZAGPPHC 344.
59. In my view an amount
of R300 000 is appropriate for general damages.
LEGAL REPPRESENTATION
60. I have carefully
considered the advisability of raising in a judgment concerns with
regard to the lack of professionalism on
the part of some of those
engaged on behalf of the Road Accident Fund. It is not possible to
identify whether the failures are
on the part of Fund officials,
employees, the legal representatives they engaged or a combination.
61. Since the lack of
professionalism is not isolated it is advisable to say something
about the failure of proper engagement by
the Fund and also the
effect it has on the ordinary judicial process.
62. At the time of third
party insurance, claims would be processed by the large short term
insurance companies. They would undertake
their own investigations
and promptly engage attorneys for large or otherwise contentious
claims. As far as I recall as a junior
advocate extensively engaged
in these matters, the insurance companies and their legal
representatives acted with diligence and
cases that were not settled
were well prepared by the time they reached court and were hard
fought.
63. In the present case
the accident giving rise to the claim occurred in 2006. The Fund
received the claim in April 2008. The plaintiff
subsequently alleged
that he was no longer employable and had earned in the region of R33
000 per month for a two month period
prior to the accident. Bank
statements for this period were produced as well as a letter from a
Mr Felix who succeeded Mr Rhim,
the person for whom the plaintiff had
subcontracted as a truck driver, advising of the amount paid to him.
In 2010 summons was
served and a substantial claim for loss of income
was made on the basis that the plaintiff was unable to run his
business and was
unemployable.
64. Despite knowledge of
a large claim supported only by bank statements for a two month
period prior to the accident as proof of
either past or future loss
of earnings the Fund made no enquiries of their own before rejecting
the claim. If they had enquired
one would have expected to find bank
statements up to the date of such enquiry.
65. Even when attorneys
were engaged by the Fund nothing was done to obtain the plaintiff’s
bank statements in order to assess
the sequelae of his injuries on
his income stream. So too in regard to any pre-existing conditions
–particularly as the medical
report suggested that there were.
66. The defendant did not
question the failure to produce the post-accident bank statements and
it is evident that neither the Fund
nor its attorneys had bothered to
call for them at any relevant stage.
67. Perhaps equally
glaring was the failure to consider the discrepancies between the
trauma unit records and the RAF medical report
completed two years
later by another doctor. This, despite at least one expert’s
report expressly mentioning the conflicting
versions and another
expert already disputing in her report that the plaintiff sustained a
head injury or concussion. Even the
issue of whether the plaintiff’s
loss of income but for the accident would not in any event have been
affected by the unrelated
blindness in the one eye, the other
possible effects of diabetes, his hypertension and ankle injury was
completely ignored, despite
the plaintiff clearly not relying on
them as being accident related. Cross-examination was either sparse
or non-existent on issues
having a significant impact on quantum even
though the issues came to be challenged when the defendant’s
witness was led.
As indicated earlier the hospital records did not
mention a head injury or concussion yet the defendant did not
cross-examine on
this aspect.
68. The failure to
properly prepare therefore is all too evident. In short, there was no
documentation sought in order for a fair
assessment of the claim to
be made nor was there any effective cross-examination on the
inconsistent versions given by the plaintiff
as to his post-morbid
income, whether but for, or because of, the accident. The failure to
put in issue the trauma unit records
or to meaningfully consult with
one’s own witnesses about it, and in particular Ms Fakir, is
incredulous. I am satisfied
that these failures were not based on a
conscious decision but rather on neglect and lack of diligence
possibly due to inexperience
on the part of counsel who appears to
have been brought in at a late stage. However that is no excuse for
the attorneys.
69. In the result, the
court had to constantly guard itself against going further than
clarification because of the lack of diligence
and professional
skill with which the Fund and its legal representatives conducted the
present litigation. A court is only able
to make a determination on
the facts which the parties have elected to produce before it or to
have tested through cross-examination.
70. A court’s
decision cannot be based on speculation or reservations gathered from
documents which, although placed before
it, were not admitted as to
truth of content; nor were they used in the present case to test the
veracity of the plaintiff’s
testimony and the author was not
called to testify. Moreover a court cannot itself go beyond obtaining
clarification of the evidence
placed before it. On the authorities,
it should not transcend this line and open up an avenue of enquiry
not raised by opposing
counsel nor should a court descend into the
arena and engage in a process of questioning, even if its object is
directed at the
pursuit of truth, as this may otherwise be perceived
as demonstrating bias or may imperceptibly cloud the judge’s
assessment.
71. In an ordinary civil
trial a court therefore should not supplant inadequate or
non-existent cross- examination by a legal representative
with its
own line of questioning save to the extent of obtaining clarification
and possibly enquiring from counsel whether a failure
to question on
an issue placed in dispute in the pleadings means that it has been
conceded. In the Jones’ case, cited in
the following paragraph,
the English Court of Appeal also considered it acceptable for a court
to question a witness in order to
clear up a point that has been
overlooked, but this may have to be weighed against the
undesirability of it possibly leading to
a protracted line of
questioning.
72. By way of
illustration: In Jones v National Coal Board
[1957] EWCA Civ 3
;
[1957] 2 AllER 155
(CA)
at 159a-b, cited in
S v Rall
1982 (1) SA 828
(A) at 832B – D,
the court said of our
adversarial system:
'In the system of trial
which we have evolved in this country, the judge sits to hear and
determine the issues raised by the parties,
not to conduct an
investigation or examination on behalf of society at large, as
happens, we believe, in some foreign countries.
Even in England,
however, a judge is not a mere umpire to answer the question "How's
that?" His object above all is to
find out the truth,
and to do justice according to law; and in the daily pursuit
of it the advocate plays an honourable and necessary role. Was it
not . . . Lord Greene, M.R., who explained that justice is best done
by a judge who holds the balance between the contending parties
without himself taking part in their disputations? If a judge, said
Lord Greene, should himself conduct the examination of witnesses,
“he, so to speak, descends into the arena and is liable to have
his vision clouded by the dust of the conflict.”
. . .
So firmly is all this
established in our law that the judge is not allowed in a civil
dispute to call a witness whom he thinks might
throw some light on
the facts. He must rest content with the witnesses called by the
parties . . . So also it is for the advocates,
each in his turn, to
examine the witnesses, and not for the judge to take it on himself
lest by so doing he appears to favour one
side or the other . . .. .
. The judge's part in all this is to hearken to the evidence, only
himself asking questions of witnesses
when it is necessary to clear
up any point that has been overlooked or left obscure;’
The reference to Lord
Greene is taken from Yuill v Yuill
[1945] 1 All ER 183
(CA) where at
189b-c the Master of the Rolls also raised concerns if there was
prolonged questioning by the court.
Insofar as the calling of
witnesses is concerned in Rowe
v Assistant
Magistrate, Pretoria
1925 TPD 361
at 369 the court said:
‘
In a civil action
the parties lay before the court what evidence they think is
necessary to support their respective cases, and
if, on determining
the case, a magistrate or judge
is unable
on the evidence before him to come to a decision, or finds it
difficult to decide where the truth lies, I do not think
he ought to
take upon himself the right of calling a witness who had not been
called by either of the parties in order to make
his task easier, or
in his view, to do justice between the parties.’
73. While the court’s
role when dealing with issues involving a protected constitutional
right in circumstances where the
objectives of affording impecunious
litigants access to justice, and possibly a court’s function
when called on to reach
a just and equitable determination under
socio-economic legislation (such as sections 4(6) and (7) of the
Prevention of Illegal
Eviction from and Unlawful Occupation of Land
Act 19 of 1998), may yet be tested, such considerations play no role
in the present
case.
74. It is not my
intention to adversely affect the reputation of anyone; inexperience
is by definition the lot of all of us at the
commencement of a
career. The purpose of raising the lack of professional skill
required for a case of this nature is directed
at those managing the
Fund and its resources and the Registrar of the Court will be
requested to forward this judgment to the Fund’s
Chief
Executive Officer.
EXPERT EVIDENCE
75. The basis for
receiving expert evidence and how it is weighed is clear enough. The
concern in the present case has been the
failure of most of the
experts to draw attention to the factual anomalies regarding the
extent of the injuries, or obtain sufficient
clarity before embarking
on providing a prognosis or formulating an opinion. An opinion is of
little value if the material facts
relied upon are flawed.
76. The format used by
specialists in compiling a medico-legal report is likely to cater for
the type of medical reports required
under Rule 36(8). This type of
report is prepared pursuant to a medical examination requested and
undertaken under sub-Rules (1)
to ((5). In terms of sub-Rule (8) it
must comprise a full report of the results of the examination and of
the opinions formed.
77. The purpose and
function of a medical report under Rule 36(8) differs from the expert
summary that must be delivered under Rule
36 (9). In particular
sub-Rule (9)(b) does not require a full report but it does insist on
the summary containing both the facts
and data relied upon and, if
not a matter of straightforward logic, a summary of the process of
reasoning adopted from which the
conclusion reached, and constituting
the opinion, is derived. See Coopers (SA) (Pty) Ltd v Deutsche
Gesellschaft fur Schadlingsbekampfung
mbH
1976 (3) SA 352(A)
at
371B-372.
78. The unnecessary time
and cost that would be incurred in preparing an expert summary in
addition to an existing and detailed
medical report has resulted,
certainly over the years that I was in private practice, in the
salutary practice of accepting that
the medico legal report can also
backup as an expert summary for the purpose of Rule 36(9) (b).
79. The present case
exposes two difficulties that may be the product of more recent
trends particularly in fields where providing
expert medico-legal
reports have become an industry in itself. The first is that
psychologists’ reports in particular tend
to be lengthy. This
is not necessarily due to the number of tests performed, but rather
because large tracts of text are repeated
in the same document. This
is valueless and only increases the number of pages a judge is
required read. The second is that the
source of the primary facts is
not identified, leading to either a confusion of fact and reasoning
or, as in the present case,
a failure to distinguish between the
empirical data contained in the treating hospital records (of the
Groote Schuur trauma unit)
and those from either secondary or
potentially non-objective sources. The expert’s failure to draw
this distinction may allow
secondary source information to slip in as
fact even though it might have been based on an unsubstantiated
conclusion drawn without
underlying factual support; in short such
evidence, if placed before the court would, properly analysed,
constitute inadmissible
hearsay.
80. If the patient is the
source of the information regarding the injury and the facts he or
she supplies differ from those recorded
by the hospital or doctors at
the time of the accident or other primary source documents then this
should be clearly stated.
In the present case the
experts should have requested the doctor who compiled the RAF medical
report to submit the hospital or other
medical records upon which he
relied. In the circumstances of this case the hospital records were
self-evidently the source documents
demonstrating the injuries
sustained in the accident and their immediate sequelae. These
records would have readily provided the
empirical data upon which the
experts could then have based their opinion.
81. There remains a need
for the expert’s report to distinguish between the primary
extrinsic data used and the patient’s
comments. This is
necessary in order to maintain the requisite distinction between
opinion evidence, which is receivable (and which
may also include
reasons as to why the patient’s say-so is supportable based on
the practitioner’s field of expertise),
and an untested version
which amounts to an assumption. In the latter type of case it should
be clearly identified as such, and
not masquerade as factual
evidence, particularly where the very purpose of obtaining expert
testimony may have been to test the
veracity of the plaintiff’s
allegations.
82. The need for medical
experts to identify originating source data and at least identify or
raise concerns regarding their effect
on quantum if there are
discrepancies is also apparent when considering how a failure to do
so may result in prejudice, particularly
for the plaintiff. In this
case the RAF medical report does not qualify as a source document
evidencing the injuries or their immediate
sequelae since it was
prepared two years after the accident by someone other than the
trauma unit doctors
83. The prejudicial
consequences of a medico-legal report failing to comply with the
basic requirement of identifying the underlying
facts and their
sources arises because in practice there can be a significant
difference in the consequences where a court does
the best it can
with available evidence and cases where the court finds that the
plaintiff has not been frank with it or with the
experts.
84. In the first
mentioned situation a court will utilise a contingency factor to
cater for the risk of a symptom or an event being
causally related,
or eventuating in the future. In the latter case the court may reject
the evidence because it was presented as
a fact that was subsequently
shown to be incorrect, and not as an opinion thereby precluding the
court from adopting a contingency;
in short, a matter of irresoluble
imponderables is converted by the expert into a factual issue of true
or false. The expert is
not there to bolster the case of the attorney
who elects to make use of his or her services but to identify the
imponderables and
if possible weigh their likelihood of eventuating
or having eventuated.
85. Accordingly much will
depend on how the experts distinguish between objective originating
data on the one hand and the patient’s
say-so or
unsubstantiated hearsay on the other. A court will readily be able to
do the best it can and apply contingency factors
in the first type of
case. However if it rejects the plaintiff’s version or
considers that available evidence has been suppressed
it is entitled
to reject the version and adopt an alternative conclusion with or
without applying a contingency factor (compare
Harrington NO v
Transnet Ltd t/a Metrorail
2010 (2) SA 479
(SCA) at 494B-C).
86. In this regard it is
worth repeating the distinction drawn between the situation where a
court will do the best it can with
the available evidence (which is
the norm when it quantifies damages and also when it considers the
sequelae, provided causation
of the underlying injury has been
established), and cases where available evidence has not been
produced and if produced would
have resolved outstanding
uncertainties.
The distinction was set
out by
Colman J in
Burger
v Union National South British Insurance Company
1975 (4) SA 72
(W) at 74G -75B:
“
Causation
is one thing and quantification is another, although I readily
concede that it is not always possible to distinguish clearly
between
them in cases like the present one. It has never, within the range of
my knowledge and experience, been the approach of
our Courts, when
charged with the assessment of damages, to resolve by an application
of the burden of proof such uncertainties
as I have referred to.
I
am not dealing with a case in which the plaintiff could have called
evidence to remove the uncertainty, but neglected to do so
.
I am referring to cases like
Turkstra Ltd
.
v
Richards
,
1926
T.P.D. 276
, in which the plaintiff has laid before the Court such
evidence as was available, but that evidence has necessarily failed
to remove
uncertainties with regard to matters bearing upon the
quantum of damage. The Court, in such
a case, does the best it can with the material available. If it can
do no better, it
makes the "informed guess" referred to by
HOLMES, J.A., in Anthony and Another v Cape Town Municipality
,
1967
(4) SA 445
(AD)
What
the Court will not do in such a case is to select, from the
range of possibilities presented by the evidence, the possibility
which is least favourable to the plaintiff because he bears the
onus
,
and has not proved that a more favourable possibility ought to be
preferred.”(
my emphasis)
The
judgement goes on to set out in great detail the method of
quantifying damages and its full import should not be considered
by
reference to this extract alone. The
ratio
was endorsed in
Blyth
v van den Heever
1980 (1) SA 191
(A) at
225A-B and more recently in
De Klerk v ABSA
Bank Ltd and Others
2003 (4) SA 315
(SCA)
at para 33.
87. In order for a
comprehensive medico legal report to continue being accepted as
complying with Rule 36(9) in modern practice,
and for the plaintiff
not to be potentially prejudiced by a failure to distinguish
assumptions from fact and opinion it appears
that the following
should also appear from its contents;
j. A clear distinction
between the primary source data relied upon, secondary sources and
the plaintiff’s say-so.
The primary source would
inevitably be the treating hospital’s records from the time of
the accident until discharge (including
paramedics’ records
where relevant). While it may also include follow ups, subsequent
surgical and medical intervention,
scripts and other actual
treatment, the originating source document upon which all else is
likely to be tested is the records of
the treating hospital from
admission until discharge. The medico-legal reports should therefore
clearly state whether the origins
of the symptoms and other sequelae
relied upon by the plaintiff self-evidently appear from the treating
hospital’s records.
Obviously if the patient was not admitted
to a hospital or otherwise received medical attention before
admission then the treating
doctor’s records would also
constitute the primary source records, similar to the paramedics’
records if any.
k. The medico-legal
report should also clearly indicate whether the patient’s
assertions are accepted or merely assumed. If
the expert accepts the
patient’s contentions as to the injuries sustained and when, or
their sequelae, or as to other relevant
assertions in cases where
they are not self- evident from the primary documents then such
acceptance itself constitutes opinion
evidence; as such the expert
should qualify himself or herself as capable of providing such
opinion and set out the process of
reasoning, on medical grounds
within the expert’s field of expertise, upon which the
conclusion to support the patient’s
assertions is made.
In this way a clear line
can be drawn between opinion evidence on the one hand and the
acceptance of the plaintiff’s mere
say-so on the other. Unless
the distinction is made between the plaintiff’s untested
assertions and an expert opinion of
whether they can be medically
supported, and if so whether on primary source documents or not, the
report will impermissibly encroach
on the judicial function of
determining fact.
QUALIFYING FEES
122. I have already
indicated my profound disappointment in the quality of some of the
expert’s reports. A court should be
able to rely on their
diligence and their objectivity by raising concerns when anomalies
arise. The purpose of their opinion is
to provide professional
objective assistance to the court, not the attorneys or parties who
appoint them (see generally Schneider
NO v AA and another
2010 (5) SA
203
(WCC) at 211E-214B). I do not wish to go further at this stage.
However a time may come when a court will consider that an expert’s
lack of care, skill and diligence will have adverse costs
consequences upon the successful litigant, or will direct that the
expert
is limited in what may be recovered from the instructing party
(particularly where there is a contingency fee arrangement and this
may constitute an additional disbursement reducing the ultimate award
received).
123. In the present case
the court was obliged to take far longer than it ought to in weighing
the evidence because of significant
oversights on the part of a
number of the experts.
124. I will however allow
the qualifying fees and expenses of certain experts only, as many
were engaged but save for a few were
not utilised. The plaintiff
should not be entitled to the benefits, despite not calling them when
they may have been of greater
assistance to the court as appears from
the contents of some of the reports mentioned earlier.
125. The qualifying fees
and expenses of the following experts are allowed;
Dr E Schnaid
L Grootboom
E Rossouw
G Jacobson
ORDER
88. I make the following
order;
The plaintiff is
awarded general damages of R300 000;
The defendant is to
provide an undertaking regarding the incurring of future hospital,
medical and similar expenses under
section 17(4)
of the
Road
Accident Fund Act 5 of 1996
;
Past and future loss of
earnings and earning capacity to be calculated as follows;
Damages in an amount
of R18 700 for loss of earning capacity in July 2006;
Damages representing
the cost that would have been incurred in engaging a driver as
from 1 August 2006 until the Plaintiff
attains the age of 65,
being calculated in an amount of R8000 per month as at August 2006
values;
The contingencies are
to be determined as follows in respect of ;
the accrued loss as
at the end of July 2013, and which is to ignore the R18 700
for July 2006, at 5%;
the prospective loss
from 1 August 2013 until the plaintiff attains the age of 60, at
10%;
the prospective loss
as from the date plaintiff attains the age of 60 until the age of
65, at 50%;
All other actuarial
factors regarding the value of R 8 000 from time to time
during the above period and their present
day value in respect of
prospective loss are to be in accordance with the actuarial
assessment of G Jacobson contained in
his medico legal report and
to be produced to this court for final verification within two
weeks of this order;
The plaintiff is
entitled to the costs of suit including the costs of two counsel;
The defendant is to pay
the qualifying fees and expenses of:
Dr E Schnaid
L Grootboom
E Rossouw
G Jacobson
DATES OF
HEARING: 10-12/4/2013
DATE OF JUDGMENT AND
ORDER 8/08/2013
REVISED: 12/08/2013
LEGAL REPRESENTATIVES:
FOR PLAINTIFF: Adv B
Ancer SC
Adv J Frank
Attorneys: T L Sijovu
Inc.
FOR DEFENDANT: Not
disclosed