Robertson v Road Accident Fund (A5060/2012) [2014] ZAGPJHC 99 (4 April 2014)

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[2014] ZAGPJHC 99
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Robertson v Road Accident Fund (A5060/2012) [2014] ZAGPJHC 99 (4 April 2014)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appeal
Case No: A5060/2012
Court
A Quo
Case
No: 14826/2001
DATE:
04 APRIL 2014
In
the matter between:
ROBERTSON,
DEIDRE THERESA
…................................
Appellant
AND
ROAD
ACCIDENT
FUND
...............................................
Respondent
JUDGMENT
MANAMELA
AJ
Introduction
[1]
This is an appeal against a decision of the Honourable Mathopo J of
this division
(the trial court) in respect of a claim by the
appellant for damages arising out of injuries sustained in a motor
vehicle accident
on the 17
th
of January 1998 on the
Allandale Road, Midrand, Gauteng Province. The trial court made no
award in respect of the appellant’s
claim for loss of earnings
or loss of earning capacity, as it concluded that she did not sustain
a significant brain injury with
any long term or permanent
sequelae
entitling her to such damages. However, she was awarded an amount
of R450 000 in respect of her claim for general damages. She
is
evidently dissatisfied with both aspects of the trial court’s
decision and launched this appeal  with leave of the
trial
court.
[2]
Through the appeal she contends that, the trial court erred in making
the aforesaid
findings , as due to her injuries and the
sequelae
of those injuries, she has been severely compromised in all
spheres of her life with a substantially reduced earning capacity, as

she cannot fulfil  her dream of becoming a school teacher. Due
to her injuries or the
sequelae
of those injuries, she
contends it will be difficult for her to complete the studies for a
teachers’ qualification; will
take her longer to complete the
studies and even after becoming a teacher she will have difficulties
functioning as a teacher.
She submits that an award in an amount of
R10 075 499.00 for loss of earnings /earning capacity
should be made. In respect
of her claim for general damages, she
contends that, the
sequelae
of her injuries marked a
watershed change in all spheres of her life with permanent disorders
and severe physical limitations and
discomfort, which justified an
award in an amount of R1 200 000, instead of the amount of
R450 000 awarded by the
trial court.
[3]
On the other hand, the respondent prays for a dismissal of this
appeal and supports
the trial court’s findings. As part of  its
opposition to this appeal, the respondent adds that, although the
trial
court dismissed the appellant’s claim for loss of
earnings, only on the basis that she did not suffer a brain injury
with
adverse effect on her career, the trial court could have arrived
at the same outcome by finding that the appellant’s career

would have been the same without the injuries sustained in the
accident. It is apposite to record my
en passant
mental note
[even at this early stage] that, the trial court’s decision did
not reject the appellant’s claim on the
latter basis, but only
on the  basis of absence of a significant brain injury. As far
as the respondent is concerned, there
are a number of factors
unrelated to the accident which caused the appellant not to study or
qualify as a teacher and would have
affected the functioning of the
appellant as a teacher. In fact, the respondent holds the view that,
even today the appellant still
has the ability to do so and the fact
that she is not a teacher is due to causes unrelated to the accident.
[4]
The grounds of this appeal virtually cover almost every possible
contour of the evidential
landscape of this matter. Consequently, the
heads of argument filed on behalf of both parties run into hundreds
of pages and they
refer to almost every aspect of the matter in a
record comprising of over five thousand pages. The appellant’s
explanation
in this regard is that, the lack of brevity is
precipitated by the trial court’s findings and conclusions, and
the respondent’s
persisting opposition to the appeal. I must
say that, I do not necessarily find this explanation adequate and
further lament that,
the prolixity was evidently contagious to this
judgment, which although not criss-crossing every issue raised in
argument, was
required by these circumstances to go the distance.
Therefore, I am employing headings and subheadings [as a
remedy].
Appellant’s
Personal Background and the Accident
[5]
The appellant was born in 1971 and  was around 27 years old when
she was involved
in the accident. She emigrated to Scotland in March
1999 together with her daughter, Kaitlyn and her husband Kevin
Robertson, although
they were not yet married at the time. Her son
Kieran was born in Scotland in 2001, the same year she got married to
his father
[Kevin Robertson]. The appellant was born in Zimbabwe
although she later lived  and schooled - in the environs of
Johannesburg
and Durban. She was active in sports and participated in
athletics, netball, gymnastics, tennis and swimming at school.
She
also captained the second and first teams in netball whilst in
grades 11 and 12.  However, her matric results did not match
her
high-level athleticism and in 1989 she obtained an aggregate matric
symbol of E1 [40 – 49%], which is a matric pass without

exemption.
[6]
At the time of the accident she was  a key accounts consultant
in the marketing
department of an entity called International SOS
based in Sandton, Johannesburg.  She had started there as a
secretary working
for  two executives.  As key accounts
consultant, her job entailed a lot of liaison with key clients,
marketing and advertising
on behalf of  customers, and other
administration duties.
[7]
A month after arriving in Scotland, she became a customer service
advisor in the debt
recovery department of an entity called Scottish
Power.  Her work entailed making telephone calls to customers in
arrears
on their gas and electricity accounts, and making
arrangements with them for repayment. Although, the appellant
described this
as difficult stressful work, she is later described by
one of her superiors from this entity as “
a
very hardworking, assured and positive member of my team, with very
bubbly personality…
”;
shows “
great
initiative and …excellent telephone manner...
”
and “
will
fit into any environment, or role she may be given.
”
[1]
This superior’s  accolades continue with a report that
“
Deidre
is very committed to her job, and at times has turned up for work
when clearly she is so unwell she should be at home.
”
[2]
[8]
She left Scottish Power and stayed at home for 10 months after the
birth of
Kieran. Thereafter, she joined a financial institution
called Merchants Limited in December 2001 and worked there until June
2003.
Her work entailed dealing with customer’s bank
accounts, cancelling direct debits and attending to customer queries
or requests.
She had never done this kind of work before, but arose
to become an unofficial senior assisting others doing similar work.

It is interesting to note though that, just like it was the case with
SOS International and Scottish Power, here too she dealt
with
customers and performed other general administrative duties.
[9]
She then decided to become a teacher and attended classes at
Kilmarnock College to
obtain a Scottish Qualifications Certificate
issued by the Scottish Qualifications Authority (Scottish Highers) in
order to gain
admission to a university degree. This was a
switch from an earlier expressed career ambition of becoming a sports
physiotherapist.
Also it is notable that, a teacher’s
qualification would have been her second attempt at a tertiary
qualification after previously
studying for a national diploma in
pharmaceutical marketing through Technikon South Africa. She
emigrated before completing the
latter course and available evidence
suggests that she did not do well on this course.
[3]
However, she obtained good  marks in her Scottish Highers.
[10]
She was accepted at the University of Paisley (now University of West
Scotland) for a teaching
degree and was due to start her studies  in
September 2004.  However, when she applied for childcare
assistance or childcare
grant, she was turned down. It is a source of
critical contention between the parties whether this was the sole or
one of many
reasons the appellant did not continue with her studies.
However, she later enrolled with Open University of Scotland for a
degree
and turned in two assignments for which she obtained very
excellent marks, but she again discontinued her studies. This also
has
a bearing on the issues to be determined in this appeal and I
deal with both these issues  later.
[11]
In 2005 she applied for a job at the East Ayrshire Council and
described herself in the job application
as someone without any
medical condition that could affect her work performance and that she
did not have a health problem or disability
which she considered had
a substantial or long term adverse effect on her ability to carry out
her activities.
[4]
She also
stated her previous duties and responsibilities as a youth worker,
among others, as “
plan,
participate in and supervise activities for youth group members,
liaise with members of the youth group, encourage and implement

positive behaviour.
”
[5]
The statements in the job application were to become a source of
great contention between the parties, as the respondent argued
that,
this is indicative or even confirmation of the absence of frontal
lobe deficits and the appellant’s experts stating
that, it is
rather a confirmation of the appellant’s denial of her current
accident-compromised status.
[12]
Be that as it may, her application above was successful and in June
2005 she became a classroom
assistant at Kilmarnock Academy, where
she worked until August 2009, when she was transferred to Shortlees
Primary School, also
in Kilmarnock, due to a reshuffling exercise by
the authorities linked to the economic recession. As Shortlees she
was assigned
to the arts and social studies departments. Her work
was equally split between administrative work [for the two
departments]
and classroom duties, involving lower ability children
with learning and behavioural difficulties in first and second years
of
school. One of her colleagues, Ms Joan Dunachie painted a picture,
so to speak, of the working environment of a classroom assistant
in
her affidavit tendered by agreement at the trial court. She, among
others, stated that,  in general, “
classroom
assistants are the eyes and ears of the teachers in these
classrooms…
”
and  the required traits for an effective classroom assistant to
include patience in the extreme; immense tolerance
for and
understanding of the children’s learning and intellectual
disabilities; effective communication skills; ability to
control
one’s temper; ability to effectively co-operate with the
teachers and to effectively carry out their instructions,
and an
ability to assist in the classroom without being disruptive to the
teacher.
[6]
There are further
traits, attributes and challenges stated by the teaching staff in
affidavits and testimonials on the appellant,
to which I will devote
attention  a little later. For now, suffice to add that, the
respondent consider the reporting on  the
appellant to be proof
that she  is coping  and functioning  very well in her
job despite , her reported shortcomings
or deficits, which deficits
have so far not attracted any formal complaints at the workplace and
disciplinary enquiry by the employer.
The trial court agreed with
this submission and naturally, it would enjoy further attention
below.
[7]
[13]
Against a backdrop of the overall contention that, she wanted to be a
teacher rather than a classroom
assistant, the appellant [in terms of
experts’ reports and their testimony; her testimony and that of
her husband and mother]
painted a picture of serious deterioration in
her functioning at home, work and overall, since the accident due to
what is considered
a brain injury. In this regard, the appellant
complains that she is not who she used to be before the accident and
suffers from
a number of psychological or neuropsychological deficits
resulting from the injuries sustained in the accident, other than
physical
limitations. On the other hand and primarily through expert
opinion, the respondent disputes the extent or the severity of the
brain injury and the link between such injury and the deficits,
alleged by the appellant. In general, the link between the
appellant’s
alleged deficits and the accident.
[14]
The accident occurred when the motor vehicle driven by the appellant
collided with another vehicle
(the insured vehicle) as mentioned
above. She sustained injuries to the head (concussion and deep
laceration on the forehead);
the pelvis (bruising of the right
anterior iliac crest region); right ankle; left wrist (a fracture and
dislocation) and right
elbow (laceration). Her injuries are common
cause between the parties. She was taken to the Carstenhof Clinic
(the hospital) after
the accident and was discharged after spending a
week there. Whilst in hospital, she underwent surgery on her left
wrist and had
an air-cast on the right leg and plaster of Paris on
the left arm when she was discharged. She later reported that she
could not
remember much of what happened whilst in hospital, despite
the fact that her hospital records state that there was no loss of
consciousness;
she had conversations with the medical and nursing
staff, and even reported the events or activities there to her
mother.
[15]
After her discharge from hospital she was unable to work for about
eight weeks and was unable
to fulfil some of her personal, maternal,
and household obligations or duties. She was scarred; continued to
experience pain and
had other difficulties due to the injuries. I
will later deal in more details with the appellant’s complaints
or difficulties
relevant to the issues to be determined herein.
Damages
for Loss of Earnings/Loss of Earning Capacity
[16]
She sued for damages on the basis of the negligence of the insured
vehicle. The respondent conceded
full liability and admitted claims
in respect of past hospital and medical expenses.
[8]
The trial court had to determine  the issues relating to loss of
earnings/earning capacity and general  damages. In preparation

and proof of her claims, she was examined, observed and/or tested by
various experts regarding her injuries and the probable
sequelae
of
those injuries. Naturally, the findings, opinions and testimony of
these experts were extremely critical for the decision of
the trial
court and remain critical for this court’s decision on appeal.
[17]
Because the appellant’s claim - in the main - is on the basis
that the brain injury [or
its
sequelae
] or the accident
adversely affected her career prospects and therefore her earnings or
earning capacity, I deem it necessary to
deal with the injuries from
the accident, both physical or orthopaedic injuries, and specifically
the brain injury under separate
headings. I do so through an analysis
of the expert opinions as expressed in the reports or testimony
before the trial court. I
will be very selective in this regard and
will deal with only those views I regard as necessary for the
decision to be made. I
have already described the enormous
paper-load.
(a)
Orthopaedic Injuries
[18]
In no chronological order, the appellant was seen by Professor SL
Biddulph, Dr MBE Sweet and
Mr C MacLeod, orthopaedic surgeons she
employed  at different stages in this matter. Through an
instruction of the respondent,
Dr AF Pienaar examined the appellant.
In a joint minute of orthopaedic surgeons, Biddulph and Pienaar
agreed that, she sustained
a complex injury to her left wrist and
soft tissue injuries of the cervical spine and right ankle from the
accident. They also
agreed that, the appellant’s complaints of
pain and loss of function of the left wrist, cervical symptoms and
pain and stiffness
of the right ankle, were symptoms compatible with
the
sequelae
of the injuries sustained. They recommended a
variety of medical treatment and agreed that the appellant would be
able to work
as a teacher or in a similar position until age 65 from
an orthopaedic point of view. Biddulph also told the trial court
that,
the appellant would not have a problem working on a computer
keyboard once her wrist is stiffened in the suggested position of
function. He further said that, despite the failure of the operations
on the wrist, suggested measures [once implemented] would
correct the
problem with excellent results. He  suggested medical
interventions which could bring relief or reduce the pain
she is
experiencing, including the headaches.
[19]
The orthopaedic surgeons forecasted that there was a risk of future
cervical surgery of not higher
than 10% within 10 years from the time
of the accident. Assuming she has surgery, they agree that her
recovery period will be 8
weeks. Regarding her wrist she has had an
unsuccessful arthrodesis and shortening of her ulna by MacLeod.
[9]
The recovery period following the aforesaid procedures was recorded
in the joint minutes of orthopaedic surgeons as 8 weeks. There
may be
further attempts at those procedures. However, Biddulph told the
trial court that, the loss of movement after the stiffening
of her
wrist is permanent, although the movement will or should become pain
free.
[20]
Ms C Kirchner, an occupational therapist for the appellant told the
trial court that, she had
observed that the appellant limps when she
walks and climbs the stairs in an altered way. Overall, she suggested
that, as a result
of her ankle injury, the appellant will need to
modify her work format to preclude extensive standing, regular
climbing of stairs,
walking long distances and walking for long
periods over uneven terrain. Mr L Linde, an industrial psychologist
called as a witness
for the appellant,  thinks the wrist  [and
head] will affect her ability to become a teacher or to function as a
teacher
and may even lead to a reduction of her earning potential as
a teacher due to reduction in her working hours or early retirement.

According to him there will be a 15% permanent disability after the
arthrodesis of the left wrist has been conducted.
[10]
His views are at variance with those of Biddulph and other
orthopaedic surgeons stated above and they will be dealt with further

below.
(b)
Brain Injury: Severity and Sequelae?
[21]
Plentiful  time was spent at the trial court on whether the
appellant sustained a brain
injury and if so, the severity of the
brain injury and the
sequelae
of the brain injury. Other than
the resultant reams and reams of paper making up the record, the
arguments before this court also
lasted for an entire  day,
significantly on this issue. This is indicative of the nature and
extent of the task facing this
court in the determination to be made.
Firstly, it has to be determined whether the appellant suffered a
brain injury. Secondly
and perhaps intertwined with the first, the
severity of such brain injury. Thirdly, whether the brain injury
caused or is causing
the appellant’s complaints or deficits?
Finally, the impact, if any, of the deficits on her  ambition to
become a teacher
and function as a teacher. These are merely my
mental guiding notes for purposes of reaching a decision herein and
no real significance
should be attached hereto, more than to the
ultimate decision made.
[22]
As a point of departure on the aspect of brain injury,  regard
could be had to the three-legged
potjie
coined by Mr BR
Mallinson, a neuropsychologist for the respondent. He said that, to
arrive at an opinion that a person has a brain
injury of any
significance or neuropsychological deficits involves three legs,
being, medical data; collateral data and test data.
At least two of
the three legs of the
potjie
have to be established. Let us
look then at the medical data of the neurosurgeons first;  the
collateral data and thereafter
the neuropsychological test data.
(aa)
Neurosurgical and Other Expert Opinions
[23]
An ideal scenario in a damages lawsuit is one where medical experts
are in unison or strives
towards that  end, but unfortunately
experts’ opinions are often divergent on issues and this
matter is no exception.
Drs HJ Edeling, G Marus and FD Snyckers
delivered reports and extensively testified as neurosurgical experts
before the trial court.
Edeling was the appellant’s witness and
Snyckers, the respondent’s. Marus’ situation wasn’t
that straightforward.
He was initially retained by the appellant, but
ended up being called as a witness for the respondent and this -
correctly so,
I must add - caught the attention of the trial court,
especially the embedded connotation thereof.
[11]
Professor VU Fritz, a neurologist delivered a report for the
respondent, but was not called to testify. In the filed joint minutes

Marus, Snyckers and Fritz considered her brain injury to be a mild
concussive brain injury and Edeling, a mild complicated concussion
or
moderate concussion.
[24]
Marus was the first of the above neurosurgeons to see the appellant
14 months after the accident.
His opinion was that she only had a
concussion as she was fully conscious at  the hospital with a
reading of 15/15 on the
Glasgow Coma Scale (the GCS) and no sign of
significant damage to the brain on the CT scan. However, he accepted
at the trial court
that, a diffuse brain injury would not show on a
scan and also that her brain was not working at some stage when she
was in hospital.
He attributes this  to both posttraumatic
amnesia (PTA) and  administration of the drug Pethidine. He
accepted that on
the reporting she may have had PTA suggestive of a
brain injury that could be classified as moderate and if such finding
is made
it is probable that there will be permanent organic
sequelae
.
To me he appears to be sticking to his guns [so to speak] of a mild
concussion and doesn’t think there is proof for anything
else.
[25]
Ostensibly unhappy with Marus’ opinion, but only seven years
after the accident, the appellant
instructed Edeling after a
neuropsychological assessment by Ms MJ Adan, a counselling
psychologist or neuropsychologist.
Edeling spent several days
before the trial court and explained to the trial court that, there
are two systems of classifying head
injuries. The GCS, which is a
tool used to determine the degree of a person’s consciousness,
usually upon admission to hospital,
and PTA.  Edeling’s
view is that, if one goes according to the convention of PTA, he
would classify the appellant’s
brain injury as a moderate
concussion, but if he employs GCS it would be a mild complicated
brain injury.  In the first hour
and a half or two hours [being
a period of more than the required one hour, but less than four
hours] before she got the first
Pethidine injection after the
accident, there was absolute amnesia only attributable to the head
injury. This he stated is borne
by the hospital records and the
appellant’s own reporting. From there onwards, the amnesia
could be attributed to the head
injury and the medication. About the
fact that the appellant was reportedly conscious and well aware of
her environment following
the accident, Edeling’s testimony was
that, she was in PTA and was not registering her memories, as PTA
originates a moment
prior or few moments prior to loss of
consciousness.
[26]
What makes the head injury complicated, according to Edeling, is the
deteriorating loss of consciousness,
which is indicative of the
complication. He said that, the complication was caused by a
secondary deterioration. He explained that,
his first diagnosis was
mild complicated brain injury, but another way of looking at it is
moderate brain injury using the Bryan
Jennett PTA model (Jennett
model). His opinion is partly based on the hospital records and on
what he labels compelling evidence
or statements of the appellant and
her mother. According to him, even with the rejection of the evidence
or reporting of the mother,
the appellant has reported PTA to all
examiners. The trial court was to later make adverse findings around
these and I will turn
to that later.
[12]
Suffice  to record  that, Edeling’s diagnosis is
mild complicated brain injury or tentatively moderate brain
injury.
[27]
Snyckers’ testimony was also very long. He stated that, she
sustained a mild brain injury
as borne by her  GCS of 15/15.
According to him, there had been a minor primary diffuse internal
injury and a relapse probably
on the basis of blood flow disturbances
as a result of the blunt head injury or blunt concussion injury.
However, under cross examination
he confirmed his reported opinion of
a concussive brain injury.
[28]
Therefore, Marus and Snyckers [and as minuted, Fritz too] considered
her brain injury to be a
mild concussive brain injury and Marus is
noncommittal on moderate and also suggests diffuse brain injury,
whereas Edeling remained
on a mild complicated concussion or moderate
concussion. When Edeling was told that, his views seem to be at
variance with views
of other eight medical doctors that  she did
not suffer anything but a minor head injury, he seemed unfazed. He
attributed
the visibly [at face value at least] lopsided contest in
expert views to his consideration of contemporaneous literature on
the
subject, which he said his counterparts have ignored, despite his
invitation for a discussion or consideration.
[29]
Other experts like Dr D Shevel, the psychiatrist for the appellant
opined  that, she sustained
a mild concussion injury, but did
not believe that permanent neuropsychiatric
sequelae
are
usually associated with this type of head injury and that none were
apparent at the time of his observations. Prof M Vorster,
a
psychiatrist for the respondent agreed that, she had a mild
concussive head injury, because she had PTA.
[30]
However, according to Edeling, there is very little statistical
significant difference between
mild complicated brain injuries,
moderate brain injuries and severe brain injuries in relation to long
term disability.  The
likelihood of having disability is very
similar between mild complicated, moderate and severe as individuals
can have the same
outcomes although initially classified as moderate
or severe.
[31]
My conclusion from the above is that  the neurosurgeons [and the
other medical experts]
hold the views that, the appellant sustained a
brain injury of a mild or a mild complicated nature and to determine
the significance
of this injury, one has to  consider the
collateral data and thereafter the test data in order to establish
the three legged
potjie
. Next is the collateral data.
(bb)
The Appellant’s Complaints and Functioning after the
Accident
[32]
The appellant has a number of complaints regarding her condition and
functioning in life and
she attributes these to the accident.
These are some of her complaints. She struggles physically and
mentally, particularly
with fatigue halfway through the day. She
continuously experiences headaches, sore neck and difficulty in
walking, particularly
due to problems with her right ankle, when she
is on her feet a lot. She lost her motivation and was concerned she
is going to
fail her Scottish Highers and to perform her duties. She
cannot participate in the sporting activities she did prior to the
accident.
She continues to experience pain and her memory hasn’t
been good since the accident as she forgets things to do. She is
impatient;
becomes very irritable; experiences mood swings; struggles
to sleep at night; finds it very difficult to concentrate and becomes

overwhelmed by her problems.
[33]
However, it may be apposite to point out that, when she testified,
the trial court was impressed
and found her to be lucid, coherent,
clear and the trial court did not get an impression that she has
memory problems. The trial
court stated that, there was no impression
that there is anything wrong with her.
[13]
This is  denied   and reference is  made to the
fact that  appellant actually required a moment or timeout
for
her to gather herself when she made her first appearance before the
trial court. On appeal, I do not have the benefit of all
these live
moments beyond  the confines of the transcript, which obviously
doesn’t reveal much in terms of human emotions
and
impressions.
[14]
[34]
Her husband told the trial court that, her personality has changed
completely since the accident.
He confirmed and gave examples in
respect of her  forgetfulness about things to do and stated
that, she  is in denial
about this. . She has become reliant on
him and the children, post-accident. They (him and the children) also
assist her with household
chores. Her social life and their sexual
life have also become negatively affected. At work she struggles as
the work is physically
demanding on her, but she does not let anyone
at work know, but when she gets home “
the berries came
down
”. She runs out of steam quickly, struggled and was
stressed during her studies for the Scottish Highers and he assisted
her,
especially in preparation for the examinations.
[35]
Mrs Cathleen Francois, the appellant’s mother, was also a
witness before the trial court.
According to her the appellant
did not remember much from when the accident occurred and on her stay
in hospital. Since the
accident she started becoming aggressive about
small things; her personality and outlook on life changed. She did
not concentrate
and her memory was very bad. She suffers from
terrible headaches and cannot conduct proper conversations, as she
loses herself
through a sentence.
[15]
She confirmed that the appellant spoke about becoming a teacher.
[36]
Further from the expert reports and
viva
voce
evidence
before the trial court, affidavits  by the appellant’s
former colleagues were handed in as part of the evidence.
I have
already dealt with some of the aspects of the one by Dunachie, the
classroom  assistant.
[16]
Ms Stephanie Jane Lightbown, a teacher at the Kilmarnock Academy
noted that the appellant struggled physically; fatigues during
the
day and walks with a measure of difficulty. She continued that, she
easily annoys others at times; becomes confrontational
about small
and immaterial things; is unable to apply adequate temper control
under certain circumstances and is forgetful. However
she regards her
as an outstanding classroom assistant. The other classroom assistants
and teachers
[17]
echoed most
of  Lightbown’s statements and added  that, the
appellant’s mood is unpredictable; has equally
balanced good
and bad days; complains about headaches; has adopted note-taking for
her pending work instructions; fatigues and
has problems with those
that do not pull their weight. Mrs Mclean from her current employer
Shortlees Primary informed Linde [the
industrial psychologist] that
she rates the appellant 9 out of 10 in terms of her work performance.
Ms Pauline Margaret Middleton
was appellant’s boss at
International SOS before her emigration to Scotland. She confirmed
that she generally got on well
with the appellant and described her ,
among others, as really good; bright; vivacious; with high energy;
willing to do the work;
with good original skills and worked very
hard. Further, she stated that, the appellant had good organising
skills and  work
ethic.
[18]
However, according to Middleton, the appellant’s fundamental
drawback was the fact that she had no emotional maturity.
[37]
Other than part of Dunachie’s affidavit above, I also referred
to the testimonial from
Scottish Power and her job application to
East Ayrshire Council in which she  described herself as having
no medical or health
conditions or limitations.
[19]
All these constitute collateral data regarding whether or not she
has had a brain injury of significance which left her with

permanent disabilities or adversely affected her functioning
resulting in loss of earning capacity/loss of earnings.  I will

defer my analysis of the aforesaid until I have dealt with other
aspects relating to the determination of [the severity of] a brain

injury. Next is a consideration of the neuropsychological findings or
test data.
(cc)
Neuropsychological Findings and Other Expert Opinions
[38]
Further from being examined and interviewed by the neurosurgeons and
other experts  mentioned
above, the appellant saw Ms M Adan
(neuropsychologist); Professor MD Lezak (a neuropsychologist) and Mr
L Linde (industrial psychologist),
all of them on behalf of the
appellant.  Mr BR Mallinson (neuropsychologist); Mr DS
Ormond-Brown (neuropsychologist) and Ms
A Jamotte (an industrial
psychologist)  on behalf of the respondent.
[39]
All of the above experts delivered reports, but only some of them
testified before the trial
court. Their findings, comments and
opinions will be dealt with below, to the extent deemed relevant, to
the appellant’s
complaints  and the observations or
views of those around her at work and home, as stated above.
[40]
Other than testifying that  the degree of severity of a
brain injury is not indicative
or conclusive on disabilities, Edeling
said that from a mild uncomplicated brain injury one would not as a
matter of probability
expect permanent disability, whereas with a
mild complicated brain injury there would be a probability of a
greater than 50% of
permanent disability. He explained that,  this
is the reason why neuropsychologists measure the degree of
disability. On the
other hand,  his counterparts  Snyckers
and Marus, and  Fritz, the neurologist opined that, based on the
severity
of her brain injury, neuropsychological abnormalities were
not expected. Before I move on, it may be apposite to also reflect
Edeling’s
explanation about the apparent anomaly of him  a
neurosurgeon relying on a neuropsychological study to find support
for his
findings on brain injury. He said that, there is reciprocity:
the diagnosis of a brain injury is a neurological function and is

made by a neurosurgeon or neurologist, but the measurement of the
degree of
sequelae
falls into the neuropsychologist’s
field and the detection of
sequelae
falls into everybody’s
field. I understand that to mean that, all expert opinions on
possible
sequelae
to the brain injury are relevant and perhaps
should be seen as adding to the medical data of the three legged
potjie
.
[41]
I have already mentioned that,  the neuropsychologists’
[and other  experts’]
opinions and findings are dealt with
on the basis of the appellant’s reported complaints. I present
those opinions and findings,
to an extent possible, in two groupings,
one for the appellant and the other for the respondent, under a
named alleged deficit
or complaint.
Memory
problems
[42]
Adan confirmed that, the appellant had since their first interview
complained about her memory.
She added that, the appellant is
forgetful at work; depends on the teachers reminding her their
instructions and had adopted a
compensatory technique of making
notes. According to Lezak, her memory problems are related to her
executive functioning, particularly
in what she refers to a
prospective memory. Lezak says this is not diagnostic of frontal lobe
damage, but a feature of it. Edeling’s
accepted that, memory
impairment can be caused by other factors, other than brain damage.
[43]
Therefore, the appellant’s experts’ views are that, she
has a prospective memory
problem as she forgets what to do next,
which is a feature of brain injury and other factors, although  not
diagnostic of
it. To deal with this, appellant has adopted a
compensatory technique of making notes.
[44]
On behalf of the respondent, Snyckers confirmed that she said t she
did not have this problem
before the accident, but only from about a
year after the accident. His view is that, because her memory
impairment is increasing,
it is suggestive of a progressive illness
which may be related to a factor unrelated to the accident, because
the damage to the
accident is fixed, whatever damage there is.
However, he conceded  that forgetfulness may also result from
brain injury if
it is serious enough, bearing in mind his mild brain
injury diagnosis. Mallinson said that, he did not notice the lack of
memory
when he interviewed or tested her. He opined that, memory
difficulties may be due to pain from her orthopaedic injuries,
although
memory difficulties are  most common symptoms of brain
injury. Just like Snyckers, he finds the fact that she  is
getting
worse  not consistent with brain injury and also thinks
that something else  is causing or aggravating the situation.
[45]
Therefore, the respondent’s experts regard whatever memory
problems the appellant is experiencing
to be  either due to pain
from orthopaedic injuries or brain injury or another cause or
progressive illness. They think that,
the memory problems should have
stabilised or plateaued two years after the accident if it was due to
the accident rather than
continuously getting worse.
Headaches
[46]
From an orthopaedic point of view, Biddulph for the appellant
attributed the cervical pathology
to be the cause of lot of pain and
headaches. However he thinks  with regular physiotherapy and
adopting a good spinal posture
and balanced pain medication, the pain
and the headaches would be reduced, even without surgical
intervention.
[47]
Snyckers thinks the headaches have nothing to do with brain injury,
but are partly post traumatic
headaches and partly due to neck pains.
He accepted that a headache is a very uncomfortable situation and the
associated pain can
affect concentration and interpersonal
relationships, everything, including sleeping ability. Mallinson
accepted that her headaches
may be due to  brain damage and
would impact her functioning, provided her reporting is correct.
Ormond-Brown expressed the
same view as Snyckers and Mallinson -
albeit on memory problems – that, the headaches shouldn’t
be getting worse so
many years after the accident unless something
[like medication overuse or psychological stress], other than head
injury is the
cause.
[48]
Although expressing a purely psychiatrist’s view, Vorster
conceded under cross-examination
that, it is possible for the
appellant to still be presenting with pain and consistent headaches
from the accident after 12 years.
However, Ms S Arblaster, a
rehabilitation case manager and witness for the respondent testified
that, the appellant reported the
severity of her headaches to be at 5
on a scale of 1 to 10, with 1 being mild and 10 severe. It is worth
noting that, Arblaster
saw the appellant around 2008 after she had
already been seen by most of the experts. In sum, the respondent’s
experts’
view is that the headaches are not caused by the brain
injury, but are partly post traumatic headaches and partly due to
neck pains
or possibly medication overuse or psychological stress.
Lack
of or Inadequate Sleep
[49]
The appellant also reports not getting enough sleep, although some of
her reporting suggests
she was never a good sleeper
[20]
,
in the first place, and has a habit of going to bed late.
[21]
[50]
According to Edeling - although he conceded that this is outside his
area of expertise –
the four hours of sleep is very little for
normal people. Linde, the appellant’s industrial psychologist
agreed with the
proposition made to him at the trial court that,
marital problems could contribute to severe stress and probably
depression. You
will sleep badly as a result, he said.  Adan’s
view is that, bad sleeping habits are not diagnostic of head injury,
but it is something head injury victims complain a lot about and that
being tired due to lack of sleep affects cognitive abilities,

concentration and attention. Therefore, the summarised view of the
appellant’s experts on this is that, lack of sleep may
be due
to marital problems or brain injury and that sleeping few hours is
not normal. I must confess; I foresee a predicament here.
If the
appellant’s marital problems cause her lack of sleep; what
caused the marital problems? Aren’t we possibly going
to end up
going round in circles, in that, the lack of sleep could be said to
have caused the marital problems in the first place?
I will move on.
[51]
On the other hand, the respondent’s expert view expressed in
the main by Snyckers is that,
headaches or pain associated with
headaches can affect sleeping ability. Arblaster told the trial court
that  the appellant
said she goes to bed around 23h00 or 23h30
daily, which may have something to do with the four hours of sleep
regarded  by
Edeling above  as few for normal people.
[22]
I understand the respondent’s view to be that, the
sleeping problems originate from her pain, which I evidently is

accident related, but not necessarily due to brain injury. It may
also possibly be due to her sleeping habits.
Pain
[52]
I have already stated Biddulph’s attribution of pain and
headaches to the cervical pathology
and suggested regular
physiotherapy, good spinal posture and a balanced pain medication for
relief.
[23]
This -in my view -
seems to extend beyond orthopaedic matters.
[53]
I have also stated Mallinson’s view that,  the chronic
pain is due to orthopaedic
injuries [the terrible pain in her arm]
and terrible headaches she is experiencing.
[24]
He referred to these as a pain syndrome  congruent with her
difficulties. According to him her pain and depression feed off
each
other. As stated above albeit in respect of the headaches, Vorster
agrees that it is possible to experience pain 12 years
after the
accident and  that ongoing pain can cause mood disorder or mood
swings, which is possible even without a brain injury.
Fatigue
[54]
From my analysis of the evidence, I think fatigue is factually linked
to the other appellant’s
complaints, like lack of sleep and
pain discussed above, and depression still to be discussed below.
Therefore, some level of repetition
may prove unavoidable here.
Edeling’s view on this is that, fatigue is a common symptom of
depression.   A person
with a normal functioning brain has
a certain amount of mental endurance against fatigue, but one with a
brain injury becomes fatigued
more quickly, Edeling testified. He
also ventured that, the appellant may be suffering from burn out,
unless there is another disease
that can explain her tiredness.
[55]
On the respondent’s side Ormond-Brown stated that, fatigue is a
non-specific sign, as it
could be due to brain injury, orthopaedic
injuries, impaired sleep pattern or a number of other potential
causes. Arblaster testified
that, in her experience people with brain
injury will often sleep during the day, due to excessive fatigue and
as the appellant
does not sleep during the day it is suggestive of
fatigue that is manageable, and not posing a problem for her at work.
Therefore,
I understand the respondent experts’ view to be
that, the appellant’s fatigue is not necessarily due to a
brain
injury and does not have a negative impact of her functioning
at work.
Depression
and Lability
[56]
There were reports that, the appellant was at some stage depressed,
especially after the birth
of her second child and immigration to
Scotland.
[57]
Starting with a neurosurgical view on this, Edeling testified that
her problems were neurological
consequences of brain damage and were
probably aggravated to a certain extent by depression, but not
primarily due to depression.
He agreed with a proposition that,
despite her depression she is still able to perform her duties
adequately. Lezak’s view
is that, she is depressed and
emotionally labile. In her view [which is shared by Adan], the other
experts who probed the appellant
earlier than her (i.e. Lezak), only
did so about the accident and pain, and this is the reason for her
appearing depressed, but
if they had changed the topic, she would
have brightened up. Linde also confirmed that one of his tests
revealed severe depression.
In sum, the view from the appellant’s
experts is that, she is depressed and emotional labile, although
depression was
a secondary factor to her problems.
[58]
For the respondent, Snyckers confirmed that, brain injury can cause
depression, although  he
is not the right expert to say whether
it has or has not. Mallinson agreed that depression can be caused by
brain damage and so
can labile mood and headaches. Ormond-Brown
accepted that, she has a labile mood due to her unpredictable
functioning in daily
life. Again from  a psychiatrist point of
view, Vorster testified that, when she interviewed the appellant, she
did not present
with a labile mood, but intermittent depression, due
to a combination of factors, including her disability and inability
to take
part in sport, emigration and the birth of her second child.
Further, Vorster agreed that, marital problems would add to
depression,
but that the depression will get better with the use of
anti-depressants, but may relapse due to compounding factors. In
summary
the respondent’s view here is that, she was depressed
at intervals and this may be due to presence of a brain injury or
other
causes or a combination of causes, including marital problems.
The views on her labile mood are divergent.
Mood
disorder, Impulsivity, Irritability and Loss of Self Control
[59]
Adan agreed that, impulsivity is to a degree a personal trait and not
diagnostic of brain injury.
She also believes that, there are mood
changes or psychosocial changes in the appellant’s life because
of the accident.
[60]
On the other hand, Mallinson’s view is that, the fact that she
was irritable, her mood
fluctuated and had memory difficulties, as
well as, having good days and bad days, are indicative of the
presence of pain, because
if it was brain injury it would have been
more consistent. He further reported that he only identified a degree
of impulsivity
on tests of planning ability. In his opinion
impulsivity does lead to poor planning, but when you have frontal
lobe injury, the
person lacks the capacity to plan, so the
impulsivity interferes with it, it would just be generally poor.
However, he ultimately
agreed that depression [he regards depression
as the same as mood disorder] can be caused by brain damage, like
labile mood and
headaches. Snyckers’ opinion is that
impulsivity is classically a consequence of frontal lobe damage.
Further, fluctuating
mood, temper and irritability can be caused by
brain injury, although it is not the only cause, Snyckers testified
before
the trial court. However, he finally deferred to the
psychiatrists on whether mood disorders and mood swings are the
typical consequences
of brain injury.
[61]
Ormond-Brown agreed that, pain and distress caused by her kind of
injuries can certainly lead
to a mood disorder. However, even though
she demonstrated changes in mood and personality since the accident,
he does not think
that the accident is the exclusive cause and thinks
her taxing lifestyle contributes to her emotional problems. To him it
is therefore
a matter of degree of contribution.
[62]
Vorster told the trial court that, mood disorder can result in
neuropsychological deficits, which
are secondary to the mood
disorder, and are reversible deficits. Regarding the fact that, she
is said to have good and bad days,
Vorster said this could be generic
social stress, tiredness or chronic pain, as she has only been
depressed at intervals, but does
not have a mood disorder. Regarding
the appellant’s loss of self-control, Osmond-Brown opines that
she has self-control with
her outburst, as it is directed to those
not pulling their weight.  In his view executive dysfunction is
random loss of control.
[63]
Therefore, under these complaints, the appellant’s view is that
whilst impulsivity may
be a personal trait, the accident has resulted
in the appellant experiencing mood changes or psychosocial changes.
The respondent’s
views are on the one hand, that irritability
and fluctuating moods are due to pain or distress or brain injury or
other causes,
including her very busy lifestyle, but these are
reversible deficits.
Marital
Problems
[64]
A lot has been said already about this above and it may be apposite
to state here that, according
to the appellant and her husband, their
marital problems have disappeared since the intervention of or advice
by Lezak.
[25]
[65]
However,  other experts have expressed views on this and except
those already  referred
to above the following are further views
on the appellant’s marital problems.  Just to confirm
before that, Linde agreed
that marital problems could contribute to
severe stress and probably depression and that, the affected person
would as a result
sleep badly.  Adan agreed that marital
problems could lead to depression, but not sure whether this could
lead to loss of
energy. However, considering that, Lezak attributes
the source of the marital problems to the appellant’s reported
abnormalities,
then there is again potentially  a never-ending
circle of which came first or which caused what. Was the appellant’s

depression and lack of sleep the cause of her marital problems or
were they caused by the marital problems. I will deal with this

generally below.
[66]
Vorster agreed that, marital problems would add to depression, but
that  the depression
will get better with the use of
anti-depressants, but may relapse due to compounding factors. Again
here we have the merry-go-round
of opinions, so to respectfully speak
, due to the reference to the depression and compounding factors.
Stress,
Pressure and Being Overwhelmed
[67]
The appellant mentioned  being overwhelmed by her problems, and
some of the experts have
observed or detected this through their
tests on her. She mentioned this as the other reason for her
discontinuation of her degree
studies.
[68]
Edeling’s testimony on this was that, people with executive
dysfunction do not handle stress
or pressure very well, as their
ability to handle stress and pressure is impaired, just like it is
the case with their ability
to function in an unstructured situation.
As stated above, Linde agreed that marital problems could contribute
to severe stress
[and probably depression] and you will sleep badly
as a result.
Dizziness
[69]
According to Edeling, because her dizziness started from the time of
the brain injury and was
not present before the brain injury, then it
is caused by brain injury as the neuropsychologists agreed that there
were no psychiatric
or psychological problems before the accident.
Inability
to conduct complete conversation
[70]
I have referred above to the appellant’s mother saying  that,
since the accident the
appellant is unable  to conduct proper
conversation and I added that this did not escape the attention of
the trial court,
and was actually rejected this description of the
appellant.
[26]
Mallinson
also rejected this and testified that he did not notice any inability
to conduct complete conversation when he
interviewed her, but agreed
that if it is there, it is unsuitable for a primary school teacher.
Concentration
[71]
Adan agreed that concentration and attention can be affected by
various factors such as fatigue,
motivation, depression, anxiety,
stress or irritation. She agreed that, the appellant’s display
of lack of concentration
during testing is partly due to carelessness
and partly due to lack of motivation on her part. However, Kirchner
testified that,
there is nothing wrong with her concentration from a
functional point of view. Although I appreciate the sincerity in
this, I nevertheless
regard this as contradictory as both experts are
for the appellant.
Conclusion:
alleged deficits or complaints
[72]
The evidence above points the cause of the appellant’s
complaints to be attributable to
various causes, either singularly
[being one cause] or jointly [being a combination of causes].
However, even where one expert
suggests a single cause for a
particular complaint, there will be a contending view suggesting
another cause or a combination of
other causes by another expert or
experts. The causes are said to be either related to the accident in
the form of brain and orthopaedic
injuries or unrelated to the
accident. In some instances, the available expert opinion seems
wavering and includes words like “
suggestive
of
”;
[27]
“
a
feature of
”
[28]
or “
common
symptom of
”
or “
common
with
”
[29]
and do not even disclose as bases facts or data upon which the
opinions or conclusions are based. The result is bald statements
with
less probative value or less persuasiveness for purposes of a
determination to be made herein.
[30]
[73]
Examples of complaints caused by a combination of factors are the
following. Memory problems
are said to be a feature of brain injury
or caused by pain from the orthopaedic injuries; suggestive of a
progressive illness from
a cause unrelated to the accident or there
is another aggravating factor. Headaches are said to be caused by
pain; something like
medicine overuse or psychological stress or they
are partly posttraumatic headaches and partly due to neck-pains.
Depression and
mood swings and dizziness are said to be due to a
brain injury and other causes like, pain; her taxing lifestyle;
emigration or
the fact that she is now unable to partake in sport and
other amenities of life.
[74]
There are no complaints or alleged deficits which according to the
expert views expressed above
are exclusively due to brain injury or
her orthopaedic injuries from the accident. Therefore, subject to the
further expert views
below, my preliminary view is that, the
appellant’s complaints or alleged deficits are not due to a
brain injury. I defer
- for a moment - my view on whether they are
due to the orthopaedic injuries from the accident.
Other
Aspects of the Appellant’s Functioning and Cognitive abilities
[75]
As stated above, of real significance in this matter is not whether
the appellant sustained a
brain injury, but whether she sustained a
brain injury of significance to warrant any long term or permanent
sequelae
which
adversely affected the appellant’s dream of becoming a school
teacher. I have already expressed [in this regard] a preliminary
view
above.
[31]
Together with that,
there is also a second basis of the determination, being whether the
appellant’s career would have been
the same without the
injuries [be they brain-related or otherwise] sustained in the
accident?  I am of the view that, a determination
of both bases
could be done through a critical assessment of  how the
appellant  functions in the theatre of life
[32]
[being at home, work and in life generally]. Below are views of the
different experts on how she is functioning under the circumstances.

These views are significantly based on what is stated above regarding
the appellant’s complaints or alleged deficits.
(aaa)
Edeling (appellant’s neurosurgeon)
[76]
Edeling accepted that neuropsychological
sequelae
resulting
from a significant brain injury will be noticed in the first year
after the accident and then improve over the next year
and then
become stable.  However, he explained the reason for the
persistence of the appellant’s problems to be that,
her
neuropsychological and neuropsychiatric disorders are the result of
organic
sequelae
of her brain injury aggravated by psychogenic
factors. He did not elaborate on the psychogenic, but  relied on
Adan’s
conclusion that there is at least some organic component
and  on Linde’s report of impairment of executive mental
function.
He concluded on this aspect by stating that,  the
presence of subtle deficits [on tests] of an organic nature is a very
important
qualitative finding.
[77]
On the appellant’s functioning, Edeling agreed that, she is
still able to perform her duties
adequately, despite her  problems.
Regarding what she stated about her abilities in the letter to the
East Ayrshire Council
in 2005 that, she did not have any deficit of
cognitive or physical nature that could hamper her employment as a
classroom assistant,
he accepted that, if the contents of the letter
were true, it would be contrary to a person who has executive
dysfunction. I find
this to be critical regarding the determination
on brain injury or the impact of the accident on the appellant’s
functioning.
The trial court concluded on this as follows:
“
In
my view I accept the correctness of the letter as properly
descriptive of the plaintiff’s abilities. The letter and
together
with the description of her work and her daily functioning
suggest that she does not have any frontal lobe injuries.
”
[33]
[78]
When made aware that five other medical specialists [Marus, Snyckers,
Fritz, Vorster and Shevel]
hold a view that, there are no
sequelae
of any significance after having regard to her cognitive functioning,
he stated that, his views are supported by Lezak’s
and Adan’s.
According to him should the five had considered the test findings of
Adan, Lezak and Mallinson, as well as, the
affidavits from the
Scottish teachers, they would have come to a different opinion. He
added that he probed deeper than them and
got the evidence that her
personality completely changed from the accident. However, he
conceded that he came to the conclusion
that there has been watershed
event in her life in 2005 already and not on the basis of the report
by Lezak and admitted that his
opinion is based on the narrations of
the mother and the appellant. Just like the trial court did, I deem
this to be a critical
concession for this matter and the
determination to be herein, particularly due to the value and import
of Edeling’s evidence
for the appellant.
[34]
(bbb)
Lezak (appellant’s neuropsychologist)
[79]
According to Lezak, the appellant sustained between a complicated
mild and mild moderate brain
injury. She stated that, her conclusions
are based on the effects of the injury; pain experienced; stress due
to deficits and her
resultant functioning. Further, Lezak accepted
Mallinson’s three-legged
potjie
for determining neuropsychological deficits discussed above.  in
so far as neuropsychological tests are concerned and  stated

that, in her opinion the tests by Adan and Mallinson, although
appropriate, were insufficient as they did not test fully for
executive
disorder.
[35]
This affected the interpretations and ultimately the opinions
expressed by the two. She stated that, her tests results revealed

lack of planning, problem in self-monitoring and self-correcting,
which she regards as indicative of some form of executive
dysfunction.
The trial court rejected Lezak’s evidence as
unreliable and I associate myself with this finding. In as much as,
she is a
well-renowned neuropsychologist, her conclusion that the
appellant would have been a beggar in the United States of America is
a summation of her testimony and indeed sustainable.
[36]
If this was indeed a probable postulation, her remedial suggestions
to the appellant and her husband about their marital problems
would
not have been successful and the appellant wouldn’t have kept
any jobs, raised kids and had the successes she had in
life.
(ccc)
Adan (appellant’s neuropsychologist)
[80]
Adan also subscribes to the three-legged
potjie
.
She regarded the appellant’s behaviour during testing, like
rushing into tasks, poor planning, taking no pride in the neatness
of
her work, laughing when making mistakes and showing no interest in
improving the quality of her performance, as an inappropriate

behaviour for someone at her level of intelligence and therefore
indicative of her executive difficulties. She also regards her
use of
techniques like fingers in calculation or loud reading of words as
indicative of a subtle executive dysfunction.  These,
among
others, and including her excellent results [from Adan’s
tests], are indeed unpersuasive for a finding of executive
deficits,
as correctly found by the trial court.
[37]
In fact, the trial court found – correctly so, I must add -
that the results overall suggest her cognitive functioning was
not
impaired or that she did not have any frontal lobe deficits.
[38]
(ddd)
Snyckers (respondent’s neurosurgeon)
[81]
I stated above that, Snyckers regards her increasing memory
impairment as suggestive of a progressive
illness, which he said may
be related to a factor unrelated to the accident, because the damage
to the accident is fixed, whatever
damage there is. He confirmed - to
an extent – Edeling’s view that classification of a brain
injury is not conclusive
regarding the probable resultant disability,
when he testified that severe head injured people sometimes
completely (100%) recover
and mild head injured people sometimes pose
with permanent and ongoing problems. He deferred to the appropriate
experts on this.
One of the impressive attributes of the opinions
expressed by [and evidence of] Snyckers is the absence of
supererogatory in the
constant deference to other appropriate medical
experts.
[39]
(eee)
Mallinson (respondent’s neuropsychologist)
[82]
Mallinson’s view that her difficulties could be associated with
the symptoms of concussive
brain injury should it be shown that a
concussive brain injury of sufficient severity occurred, is already
well known. His further
view is  that her difficulties are due
to a mood disorder and the presence of pain. Also her steadily
decreasing memory suggests
the presence of a psychological overlay.
[83]
According to him there was enough medical data confirming mild to
possibly moderate brain injury,
although he is aware that the three
neurosurgeons say there is mild and mild complicated or moderate
brain injury. He hung on to
the original view by Snyckers
et
al
that,
she sustained a concussive brain injury. He attributed her problems
to a mild brain injury or a pain syndrome or depression
or a
contribution of all three. The other factors are pain [which he
agrees is accident-related] and depression partly related
to the
accident, partly to other difficulties like mental problems and at
some stage even immigration. He however conceded that
her problems
are accident-related, but stated further that if they are related to
the brain injury the prognosis is very poor;
if they are related to
the pain, once the pain is eased the problems would ease; if related
to depression, once depression is eased
so would the problems.
He does not believe her head injury is severe enough to warrant the
problems she experienced, although
the problems may have some
relation  to brain injury. According to him, the deficits
are not severe enough to compromise
her significantly in  life.
She is functioning well at work and although he does not consider her
a malingerer, she
regards her as catastrophising her difficulties and
thinks that the litigation may have influenced her to perceive her
condition
as deteriorating. Regarding the affidavits by the Scottish
teachers, Mallinson’s comments were that, their content
suggests
to him that the appellant does not have a specific frontal
lobe dysfunction. The trial court’s finding of no frontal lobe

deficits was “
fortified
”
by among others, Mallinson’s results
[40]
and I add to that Mallinson’s testimony. Mallinson from the
beginning held that, he would accepts that the appellant’s

deficits are due to a brain injury if it is shown that she suffered a
brain injury of sufficient severity.
(fff)
Ormond-Brown (respondent’s neuropsychologist)
[84]
Ormond-Brown also subscribed to Mallinson’s three-legged
potjie
and regarding establishment of two legs of the
potjie
as an
absolute minimum requirement. He did not seem to accept that the
appellant succeeded in establishing two legs. He testified
that he
did not find any sign of significant cognitive problems with the
appellant.  She performed well on many of his tests
and there
was no indication of organic brain dysfunction. Further, her tenacity
made him  conclude that, she does not have
significant deficits,
as according to him people with significant executive deficits are
typically apathetic and a-dynamic and
do not have a drive. However,
he accepted Snyckers’ view that in some instances people with
mild brain injuries have permanent
neuropsychological deficits.
Therefore, in his opinion the court need to look at the
evidence available and the information
on the patient’s
functioning in daily life, which he deems to be of critical
importance and the neuropsychological tests.
[85]
Further, Ormond-Brown testified that Lezak’s argument regarding
executive impairments is
an overstatement, although he is not
questioning anybody’s results, but the interpretation of the
results. The trial court
agreed with Ormond-Brown’s views that,
“despite a demanding, draining and straining job, the plaintiff
is doing exceptionally
well…
”
[41]
Equally, I found no reason to arrive at a different finding from the
aforesaid.
(dd)
Conclusion on brain injury, severity and its
sequelae
[86]
It is trite that, the diagnosis of a brain injury and its
sequelae
is
an issue beyond the lay expertise of the court. Inherently, the court
depends on the views of the expert witnesses to guide it
through the
contours of evidential landscape often of a complicated and
scientific nature in which even the contending parties,
may just like
it is the case with the court, have no technical ability to navigate.
However, the court’s quest to find its
way through analysis of
expert opinion and testimony is made more challenging and perhaps
even impossible, where expert witnesses
overlook their
impartial role and become embedded in their stance to the claims or
defences of the party which secured their place
in the matter.
[42]
As a result, the expert view  becomes nothing more than his or
her master’s voice and the expression “
he
who
pays the piper calls the tune
”
becomes
a very sad reality. I dare say that, this is very unhelpful
[43]
to
the role of the court and is the opposite of what expert testimony is
about.
[87]
Back to this matter. It is clear from the above that, the views of
the notably eminent medical
professionals are very divergent on the
issues in hand and there is little common ground on the issues. The
trial court made some
adverse findings in respect of the evidence of
some of the witnesses and its credibility, and was [as a result]
accused of discarding
expert evidence
[44]
,
but  I think the trial court  was within reason in arriving
at its findings as it did.
[45]
Although,
I deem as correct the submission  by the respondent’s
counsel that, unlike the trial court, this court doesn’t
have
the benefit of “…
being
steeped in the atmosphere of the trial…
”
[46]
,
I  nevertheless regard this court as well equipped  to
assess and analyse factual evidence and all stated above for
a
determination on the severity of the appellant’s brain injury.
[88]
It is common cause that
the
appellant has sustained a brain injury. The disagreement is on the
degree of severity of the brain injury. The dominant appellant’s

expert view is that it is a mild complicated brain injury and the
respondent says it is a mild brain injury. The appellant was

subjected to neuropsychological testing and observations and still
those did not yield unanimity of the severity or the s
equelae
to the brain injury. Edeling says the
classifications of brain injury are not really that material. They do
not have the capacity
to predict the degree of disability, only the
likelihood of some disability, but also said that, from a mild
uncomplicated brain
injury one would not as a matter of probability
expect permanent disability, whereas with a mild complicated brain
injury there
would be a probability of a greater than 50% of
permanent disability.  He says this is why the
neuropsychologists measure
the degree of disability.
[89]
I have referred above to Drs. Venter, Oosthuizen, Miller and the
casualty doctors, who appear
not to have found anything significant
with the appellant’s head injury. The opinions of
Dr
Marus,
Shevel and Fritz, as well as, Prof Vorster were dealt with. They also
did not consider the appellant to have suffered
anything, but a
minor head injury.
[47]
I
do not accept Edeling’s explanation that his interpretation of
the contemporaneous literature on the subject justifies
his solitary
stance. Further, in my opinion he has only adduced enough
evidence to confirm a mild brain injury on the basis
of PTA in the
first hour and a half or two hours before administration of Pethidine
which he stated is borne by the hospital records
and the appellant’s
own reporting. From there onwards, he had stated that, the amnesia
could be attributed to the head injury
and the medication. In my
opinion, Edeling did not sufficiently explain his diagnosis of a
complicated brain injury and therefore
I am left with a similar
diagnosis as most of the experts: mild brain injury. It is therefore
my finding that, the appellant has
sustained a mild brain injury.
[90]
Ormond-Brown’s view is that, the court needs to look beyond the
classification offered
by GCS and PTA, and consider the other
evidence available and the information on the patient’s
functioning in daily life,
which he regards as critically important
and the neuropsychological tests. This - in my opinion - accords with
what Edeling said
about the relative immateriality of the
classification of brain injuries. The functioning in life of a person
is critical in this
regard.
[91]
I think the neuropschological tests have already been given
sufficient consideration although
they may still be referred to
below. Although the appellant’s functioning has been discussed
particularly when dealing
with the affidavits by the Scottish
teachers and Middleton above, as well the appellant’s
complaints and her family’s
reporting, it may be apposite to
look into the opinions specifically regarding her functioning as a
classroom assistant and possible
functioning as a teacher. This will
be on the basis of the expert evidence, which in my view,
will assist in finally
determining whether the brain injury or the
accident [the second basis] resulted in permanent disability or
sequelae.
It should be borne in mind that, the second
basis of the appellant’s loss of earnings or loss of earning
capacity damages
claim was  that, she would have become a
teacher, but for the accident.
(c)
Qualifying and Functioning as a
Teacher?
[92]
The appellant initially stated that her ambition was to be a sports
therapist, but later amended
her papers and claimed for loss of
earnings due to the accident having prevented her to qualify and
become a teacher. Therefore,
what has to be determined is twofold,
being firstly, whether the appellant can still qualify or would have
qualified to be a teacher
and secondly, whether she can function as a
teacher mindful of my findings above about brain injury.
(aa)
Qualifying as a teacher
[93]
The appellant’s husband testified that he was discussing their
future with her when she
decided on teaching. She needed to improve
her grades to get into university and she enrolled and studied for
the Scottish Highers.
He testified that, during the studies she would
constantly go over her work and he assisted her in preparation for
exams. He knew
it was too stressful for her and was worried that she
was going to be disappointed, but she was adamant and to a certain
degree,
very stubborn. He said that, the pressure she had during her
years of studying was related to the actual work and exams, but not

her family life. The latter was organised. The kids would go to a
child minder and she therefore had time for her studies. After

passing, she applied for child care support and it was not granted,
but according to him  that was not a major factor.
He
thinks they were both relieved as he knew that she was not going to
study further.  According to him, she did not try further
to
pursue her studies, but it is now established that this was
incorrect.  He did not encourage her though because of what
she
had been through when she did her Scottish Highers.  However,
the decision was hers and he would have supported her.
She told
him she will not manage another four or five years.
[94]
The evidence reflects that, despite her decision above, she later
enrolled for a correspondence
course with Open University and
excellently passed two assignments. She notably kept this secret from
her husband and this - in
my view -casts doubt on whether he really
supported her decision to pursue her studies in the first place and
also whether money
wasn’t really the issue. After all she now
opted for a correspondence course which allowed her to study whilst
working or
whilst caring for her children or whilst doing both. She
explained to the trial court that, she did not want him to talk her
out
of it, but this in my view is not congruent with an
always-supportive husband in this regard.  Ultimately, she then
decided
to do the “
next best thing
” and became a
classroom assistant.
[95]
Further, the appellant and her husband mentioned that she was
overwhelmed by the studies and
the experts gave their analysis or
interpretation with those testifying or opining as her experts
concluding that, her cognitive
disabilities and not finances
influenced her decision to quit her studies.
[96]
Fortunately, there is an agreement amongst all four
neuropsychologists that she had the potential
pre-accident to
complete her qualification in teaching, but that is as far as the
unanimity  goes.
[97]
Adan had contradictory views on this. In one view she testified that,
the appellant has the ability
to pass her examinations and in another
stated that, she does not think the appellant could cope with the
amount of work required
of her to finish the year and she would be
overwhelmed thereby. She also thinks the appellant still has residual
cognitive capacity
to complete a degree with greater effort in the
consolidation and integration of the course material, with possible
failures and
delay. Edeling’s view is that, the findings of
Adan and Lezak confirm that, the appellant cannot attain a teachers’

qualification. Linde said he had expected her not to complete her
degree studies and was therefore not surprised when she stopped
and
mentioned being overwhelmed.  According to him, this is in line
with what was reported by Lezak and Adan, and which he
predicted.
According to him the studies are at a higher level and appellant is
better suited to function at the current level
[as a classroom
assistant], where she is even getting good reports, and she would run
into problems the moment she tries going
higher.  However, Linde
conceded to the proposition that, she may have been overwhelmed by
juggling studying with work, kids
and housework.
[98]
Mallinson’s view is that, the fact that she was accepted at
university is indicative of
her ability to succeed with university
study in education and the only reason she did not pursue this was
due to her inability
to finance day care for her child. This and her
passing whilst able to do her house work and care for the children is
not consistent
with the presence of significant frontal lobe
deficits, he opines. Ormond-Brown is retrospective in his analysis
and testified
that, her mediocre performance in her diploma in
pharmaceutical marketing studies, strongly suggests that, she did not
have what
it takes to complete a lengthy course of study and
therefore, her failure to become a teacher has nothing to do with the
accident.
However, he also said that her Scottish Highers are
indicative of a high average ability and this is indicative of an
intact executive
functioning. Finally, according to Arblaster the
appellant told her that, the reason why she did not pursue her
studies is because
she could not afford child care costs whilst
studying because she was refused a grant and nothing was mentioned
about not coping
with the required level of study.
[99]
In my view both the refusal of a child care grant [in other words
financial considerations] and
the anticipated pressures of the
studies played a role in the appellant  deciding not to continue
with her studies. I do not
deem it necessary at this stage to decide
whether the pressures emanated from the brain injury or the accident.
Suffice it
to state that, in my opinion if it wasn’t for
the aforesaid factors she would have studied further and based on her
academic
performance in the Scottish Highers, the two Open University
assignments and the expert opinions, she would have obtained a
teachers’
qualification. However, there is still a question to
be answered: would she function as a teacher though?
(bb)
Functioning as a teacher
[100]
It seems to be an accepted view amongst the experts in this matter
that, the acid test is how the appellant functions
in the theatre of
life.
[48]
[101]
Edeling [evidently relying on the neuropsychologists Lezak and Adan]
thinks that, the appellant can only work
in an environment where
there is a sufficient level of instruction and supervision to
accommodate or compensate for her deficits,
as she applies her
retained intellectual potential. Her function as a classroom
assistant is in a structured and supportive environment,
but as a
teacher she would have to organise and impose her own structure.
Her adopted compensatory strategy to deal with
her problems is a
typical consequence of frontal lobe brain injury and affected people
can function in a structure imposed and
maintained by others, but
their ability to structure and organise their own lives is deficient.
He opines that, her Scottish Highers
may be proof that she has the
capacity to get good results at a university level, but do not prove
the capacity to do a job, which
is the most important factor or the
ability to conduct a marriage or to bring up children. The latter
group tests extensive mental
function adequately, than university
tests, he adds.
[102]
Lezak is of the view that, her impairment is sufficient to prevent
her from becoming a school teacher, but the
impairment does not
prevent her from taking care of herself or do routine household work
or function in the classroom with the
teacher’s support and
guidance and at home.  She denies that the appellant’s
deficits are subtle, as according
to her they show up at home, work
and on neuropsychological assessment. Her overall view is that, the
appellant is probably performing
at her highest level as a classroom
assistant and is not capable of becoming a school teacher functioning
independently. Someone
has to provide some structure and at home it
is provided by her husband and to some extent the kids. As stated
above, Lezak’s
view is that, if  the appellant was in
America,  she would be a beggar, surviving on social
welfare.
[49]
[103]
Adan’s view is that, even if she completes the degree, she
would struggle to work as a primary school teacher
in classes of 20
to 30 kids and would fit into a home schooling environment with a
limited number of kids. I have already referred
to her view that,
the appellant is unreliable on multitasking due to subtle
frontal lobe difficulties and uses compensatory
techniques or aids to
help her cope with her work and home responsibilities. She thinks the
appellant needs continuous support
from the other teachers to
continue working as a classroom assistant. She also believes that,
due to her age it may be difficult
for her to enter the teaching
environment.
[104]
On the other hand, Mallinson opines that Lezak may have reached a
different conclusion if she had interviewed
the teachers at the
appellant’s place of work instead of only the appellant and her
family. According to him the affidavits,
especially the affidavit of
Ms Lightbown suggest that, she is coping very well at work.  He
asks why the problems have - to
date - not proven severe enough to
come to the attention of the authorities in the form of disciplinary
proceedings. He also holds
the view  that, although she uses
compensatory techniques for her problems, she has proven that she can
function as a teacher
in primary school by doing Scottish Highers,
working for many years as a classroom assistant and getting good
reports about her
performance, despite her difficulties.  She
has performed her job in real life and he thinks she can function as
both classroom
assistant and teacher. Ostensibly from his knowledge
as a former teacher, he confirmed his view in the joint minutes that,
she
has a potential to teach despite her ankle, but she will need to
avoid extensive period of standing in the classroom and modify
her
work format to permit her to sit from time to time.  He believes
there are opportunities to sit as a teacher.
[105]
Ormond-Brown testified in this regard that, for him a person with
executive impairment will be disorganised in
functioning and with a
complete inability to take on a number of activities at the same
time: multitasking. For him multitasking
cannot be simply measured by
psychometric tests, but the ability to cook a meal, see the kids do
their homework and plan tomorrow’s
activities in daily life as
an example. In his opinion, she is able to function as a classroom
assistant and works with the most
demanding children with learning
difficulties, attention deficits and behavioural problems. Regarding
her adopted strategy of making
of notes to augment her memory
problems, he thinks this is indicative of lack of serious executive
impairment, as when one has
such impairment you do not adopt a
strategy.
[106]
The occupational therapists agreed that, the injury to the
non-dominant wrist will not preclude her from pursuing
a teaching
position in the classroom or work similar to what she previously has
done, or aspired to, having regard to her educational
potential. They
also agreed that, she does have the potential to teach despite the
ankle injury, but like as suggested by Mallinson
she will need to
avoid extensive periods of standing in the classroom and modify her
work format to permit her to sit from time
to time. They concluded in
unison that, “
no early retirement is expected as a
consequence of the injuries sustained in this accident.
”
[107]
Further from his  doubts about her qualifying as a teacher,
Linde’s view is also that, she will find
it difficult to
function at the level expected of a teacher, due to among others, the
head and wrist injuries. He also thinks that,
this may even lead to a
reduction of her earning potential as a teacher due to reduction in
her working hours or early retirement.
He ultimately expresses a view
that, the combination of her difficulties will decrease her work
capacity to such a degree that,
it will not be worth entering the
field of teaching and better for her to qualify for an administrative
half a day position.
However, he
suggests that, she must not be taken out of her work environment for
therapeutic reasons, which will give her some sense
of self-worth.
[108]
Arblaster believes that even if the appellant is found to have
cognitive impairments as alleged she would be able
to continue to
work as a classroom assistant. According to her, teachers have it
better as they sit during lessons and classroom
assistants are often
on their feet. Also, the teachers are assisted by classroom assistant
in sport activities or by other teachers
with special interest in
sport, just like it is the case with a music teacher for other
teachers with no music abilities. She regards
the work of a teacher
as sedentary and light in nature and disagreed with the view that,
the appellant is likely to find herself
severely handicapped in the
labour market. In her view, the fact that she was able to return to
her work after the accident and
change jobs contradict the aforesaid.
Further, under the Disability Discrimination Act any discrimination
on the basis of a person’s
disability is outlawed in the United
Kingdom. She also dismissed a view that the appellant has to work 25
hours on the basis that,
the appellant has been able to work fulltime
jobs after the accident.
(d)
Conclusion: Loss of Earning Capacity
[109]
I have already found that, the appellant has suffered a mild brain
injury. However, despite this mild brain injury,
she has been able to
find new job opportunities and retain those jobs without being
subjected to any form of censure or discipline
for years, and she is
actually getting accolades for her contributions and performance. She
was also able to pass her Scottish
Highers and Open University
assignments with very good marks, whilst playing her part in raising
her children even at their demanding
young ages. She is reportedly a
good mother and a good wife, which is indicative of playing her
requisite household roles. All
of these with no reported
interruptions in the appellant’s work life except for the one
week when she was detained in hospital
and eight months thereafter
when recuperating after the accident
[50]
;
one month after she emigrated to Scotland
[51]
and ten months after the birth of her son.
[52]
In short , the appellant has managed to function in various roles
since the accident, including as a classroom assistant and based
on
the expert testimony referred to above, it is my view that she would
be able to qualify and function as a teacher, if she so
chooses. I
express those views quite mindful of the fact t that she has some
difficulties from injuries sustained from the accident,
notably her
wrist which has already had a number of surgical interventions
without much success. As a teacher she would require
the full extent
of her wrist and other injured limbs, and to deal with the persistent
headaches and the pain therefrom. Available
evidence though,
indicates that  these problems are not permanent or that they
benefit from  the suggested medical interventions
and therefore
would not result in diminished or lost earnings or earning capacity.
I therefore find that, the appellant did
not sustain a
significant brain injury with any long term or permanent
sequelae
entitling
her to damages for loss of earnings or earning capacity and even that
the appellant’s career would have been the
same without the
injuries sustained in the accident. For greater certainty, I also do
not regard the orthopaedic injuries from
the accident as preventing
the appellant from qualifying and functioning as a teacher or
continuing to function as a classroom
assistant, bearing in mind the
findings made in respect of general damages below.
General
Damages
[110]
I agree with the reasons of the trial court regarding its assessment
of the fair and reasonable award in respect
of general damages. It is
correct that, the submissions made in this regard are premised upon
the conclusion or opinion that, the
appellant has sustained a mild
complicated brain injury or even a moderate brain injury or a brain
injury of significance.
[53]
This is even more evident from the categories of previous awards
[made in other judgments] counsel for the appellant referred to.
They
range from those involving “Severe diffuse brain injury, soft
tissue injury to neck….significant neurocognitive
and
neurobehavioral deficits…
”
[54]
;
“Severe primary head injury and secondary brain injury…
”
[55]
;
“extensive head injury and multiple orthopaedic injury…
”
[56]
to “Severe brain injury, fractured skull, various
fractures…”
[57]
.
Therefore, once the finding is that there is no brain injury of any
significance or relevance to the appellant’s complaints,
we are
only left with the orthopaedic injuries to her left wrist; soft
tissue injuries of the cervical spine and right ankle and
their
sequelae,
mainly in the form of pain and the discomfort arising therefrom. I
have already indicated that, these would benefit or alleviate
from
suggested medical interventions or practices.
[111]
I therefore deem the  award of R450 000.00 made by the trial
court to be a fair and reasonable amount in
respect of the general
damages and do not deem any interference warranted against the
backdrop of the evidence adduced herein.
I associate myself fully
with the basis and other considerations by the trial court in
reaching its conclusion in this regard.
[112]
Therefore, with no success on both the aforesaid heads of claims, the
appeal must suffer the same fate.
[113]
I therefore propose that the following be ordered:
a)
The appeal is dismissed  with costs.
K
MANAMELA
Acting
Judge of the High Court of SA: Gauteng Local Division, Johannesburg
E
J FRANCIS
Judge
of the High Court of SA:
Gauteng
Local Division, Johannesburg
I
agree
N
P MNGQIBISA-THUSI
Judge
of the High Court of SA:
Gauteng
Local Division, Johannesburg
I
agree and it is so ordered
APPEARANCES
:
For the
Appellant

:           Adv. GJ
Strydom SC
Instructed
by

:           Savage
Jooste and Adams Inc,
Johannesburg
For the
Respondent

:           Adv. JJ
Wessels SC
Instructed
by

:
Brugmans Incorporated
Johannesburg
[1]
Third
paragraph of a letter by Mr. Alex Tait, Team Manager, Scottish
Power, Glasgow [page 4423].
[2]
Ibid
at
paragraph 4.
[3]
She
passed six courses or modules over a period of about six years
[pages 4354-6].
[4]
Application
for employment for a classroom assistant [page 4392]
[5]
Ibid
[at
page 4393].
[6]
Affidavit
deposed to in June 2008 [pages 4443-7].
[7]
Paragraphs
43, 70, 95,105 and 107 of the judgment of the trial court [pages
4995 -5055].
[8]
Paragraph
2 of the trial court’s judgment [page 4996].
[9]
Dr
Macleod performed the arthrodesis in 2008 and later the procedure to
shorten the ulna. According to Dr Biddulph he should have
performed
both procedures at the same time to be successful, and this has left
the appellant with a bad joint unable to rotate
and therefore to do
a few activities like picking up things, carrying plates and trays.
Further surgical procedures have to be
performed on the wrist.
[10]
Linde
agreed she would be able to work as a teacher until the age of 65
albeit with assistive devices.
[11]
The
trial court held that, it is not hard to find the reason why Marus
was not called as an expert on behalf of the appellant,
as it is
“palpably obvious that he did not think she had a significant
brain injury with
sequelae
”
[paragraph 60 of the trial court’s judgment; page 5026].
[12]
The
trial court held that, Edeling’s opinion is wrong because it
is based on the unreliable reporting of the appellant’s
mother
[paragraphs 86, 87 and 88 of the trial court’s judgment; pages
5034-5],
[13]
Paragraphs
115 and 117 of the trial court’s judgment [page 5045-6].
[14]
R
v
Dhlumayo
& Another
1948
(2) SA 677
(A) at 705-6 and
Ndlovu
v
AA
Mutual Assurance Association Ltd
1991
(3) SA 655 (E).
[15]
This
is similar to the reporting on which Edeling based some of his
opinion, especially for existence of a moderate brain injury

referred to above.
[16]
Paragraph
12 above.
[17]
Mr
Alexander Steel Reidford (principal teacher), Ms Annette Ainsworth
(classroom assistant), Ms Linda Crosbie (classroom assistant)
and Mr
George Kerr (deputy principal) [pages 4448 -4466].
[18]
Middleton
did not state whether this was before or after the accident.
[19]
Paragraph
11 above.
[20]
See
paragraph 51 below.
[21]
Ibid.
[22]
Paragraph
50 above.
[23]
Paragraph
46 above.
[24]
Paragraph
44 above.
[25]
This
was the evidence of both the appellant and her husband, and
confirmed by Lezak.
[26]
Paragraph
35 above and paragraph 117 of the trial court’s judgment [page
5045].
[27]
Paragraph
44 above.
[28]
Paragraph
43 above.
[29]
Paragraphs
44 and 54.
[30]
See
Coopers
(South Africa) (Pty) Ltd
v
Deutsche
Gesellschaff fur Schadlingsbekampfung Mbh
1976
3 SA 352
(A) 371F-H.
[31]
Paragraph
74 above.
[32]
Reportedly
a coinage of Marus. See paragraph 100 and its accompanying footnote
48 below.
[33]
Paragraph
103 of the trial court’s judgment [page 5041].
[34]
Paragraph
94 of the trial court’s judgment [pages 5037-8]
[35]
This
is in direct conflict with the acceptance of Edeling of Mallinson’s
findings as stated in paragraph 78 above.
[36]
Paragraph
98 of the trial court’s judgment [page 5039].
[37]
Paragraph
104 of the trial court’s judgment [page 5042].
[38]
Paragraph
109 of the trial court’s judgment [page 5043].
[39]
Ruto
Flour Mills Ltd
v
Adelson
(1)
1958 4 SA 235 (T).
[40]
Paragraph
109 of the trial court’s judgment [page 5043].
[41]
Paragraph
112 of the trial court’s judgment [page 5041].
[42]
See
Stock
v
Stock
1981
3 SA 1280
(A) 1296E.
[43]
Ibid.
[44]
Paragraph
3.6 of the appellant’s heads of argument on appeal.
[45]
See
Motor
Vehicle Assurance Fund
v
Kenny
1984 4 SA 432
E.
[46]
Paragraphs
3 and 4 of the respondent’s heads of argument on appeal. See
further footnote 14 above.
[47]
Paragraphs
29 and 78 above.
[48]
Paragraphs
77,79,83,84 and 85 above.
[49]
Paragraph
79 above.
[50]
Paragraphs
14 and 15 above.
[51]
Paragraph
7 above.
[52]
Paragraph
8 above.
[53]
Paragraph
130 of the trial court’s judgment [page 5051].
[54]
Torres
v
RAF,
Corbett & Honey, The Quantum of Damages,
Vol VI, A4-6.
[55]
Cordera
v RAF, Corbett & Honey, The Quantum of Damages,
Vol VI, A4-51.
[56]
In
an unreported decision of this division by the Honourable
Foulkes-Jones AJ in
Garroch,
EM
versus
Road
Accident Fund
,
Case Number: 2003/2558.
[57]
In
an unreported decision also of this division by the Honourable Ancer
AJ in
Monamodi,
RR
versus
Road
Accident Fund
,
Case Number: 2005/11760.