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[2015] ZAGPJHC 248
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Matabane obo M v Road Accident Fund (2014/31190) [2015] ZAGPJHC 248 (30 October 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2014/31190
DATE:
30 OCTOBER 2015
In the matter
between:
MATABANE: NTSWAKI
LORRAINE, on behalf of:
[M……..]
[T………]
[A…….]
.....................................................................................................
Plaintiff
And
ROAD ACCIDENT
FUND
......................................................................................................
Defendant
JUDGMENT
ADAMS AJ:
[1]. The
plaintiff, Ms Matabane, claims delictual damages on behalf of her
minor son, [T…….] [M……]
(‘T……..’),
from the defendant, the Road Accident Fund, arising from personal
injuries sustained by him
in a pedestrian vehicle collision which
occurred on the 6th March 2011 along Geba Street, Kagiso (‘the
collision’).
[T……..], whose date of birth is the
[2….] [S…….] [2……], was 4 years
old then and
he sustained in essence a fracture of the left femur.
[2]. Prior
to the commencement of the trial, the issue of the merits /
negligence was conceded in full by the defendant,
who accepted
liability for 100% of the damages suffered by the minor child as a
result of the injuries sustained by him in the
collision.
[3]. As far as
future hospital and medical expenses are concerned, the parties
agreed that the defendant would furnish the
plaintiff with a
statutory Undertaking in terms of the provisions of section 17 (4)
(a) of the Road Accident Fund Act number 56
of 1996 (as amended)
(‘the Act’), and I am required to make an order to that
effect by agreement between the parties.
Plaintiff is not claiming
past hospital and medical expenses as the minor child was admitted to
and treated at the Leratong Provincial
Hospital seemingly at no
charge.
[4]. This means
that the only two issues which remain unresolved between the parties
are the general damages and the future
loss of earnings / loss of
income earning capacity / loss of employability of [T……….].
[5]. As far as
general damages are concerned, there is, in addition, a preliminary
issue which requires my attention. This
relates to whether or not
this matter is ripe to proceed before me on the Fund’s
liability to compensate [T……..]
for general damages.
[6]. At
the commencement of the trial and on a direct enquiry by me, I was
informed by Ms Khanyile, Counsel for the defendant,
that her
instructions were that the Road Accident Fund is rejecting the
Serious Injury Assessment Form RAF 4 of the plaintiff.
Plaintiff has
in fact lodged two Forms RAF 4, one by Dr G M Fredericks dated the
1st October 2013, and the other by a Dr Ntlopi
Mogoru dated the 9th
September 2015. In his response, Mr Sevhukwama, Counsel for the
plaintiff, informed me that it is the plaintiff’s
view that she
is entitled to proceed on the issue of the general damages and to
prove the quantum of this head of damages in view
of the fact that
defendant has not rejected plaintiff’s Serious Injury
Assessment Report, the implication being that the
Fund accepts that
the minor child suffered a serious injury which qualifies him for
general damages. Ms Khanyile submitted that
it is the plaintiff who
had the duty to refer the matter to the Appeals Panel of the Health
Professions Council of SA (‘the
HPCSA’) in view of the
fact that defendant has served a Form RAF 4 of its own, in terms
whereof T…….’s
was assessed not to be a serious
injury which would qualify him for general damages, implying a
rejection by the Fund of plaintiff’s
Form RAF 4.
[7]. I must just
mention that in the minutes of the pre – trial conference held
between the parties on the 14th September
2015 it is recorded that
the defendant reserves its right to refer general damages to the
HPCSA. Defendant has also raised a Special
Plea which essentially
places in dispute T……’s entitlement to claim
general damages.
[8]. By the time the
trial commenced, the defendant had not as yet formally rejected the
plaintiff’s Forms RAF 4. In other
words, defendant had not, in
response to the service on it by the plaintiff of her Serious Injury
Assessment Report Form RAF 4,
delivered written notice of its
rejection of the said report, although it clearly intended doing so.
By the same token the Fund
had also not yet accepted the plaintiff’s
Serious Injury Assessment Reports, which incidentally were served on
the defendant
on the 30th September 2015 and on the 2nd October 2015
respectively. In terms of both these reports, the one by Dr
Fredericks and
the other by Dr Mogoru, T……. qualifies
for general damages in terms of the ‘narrative test’.
What the
Fund did do was to serve on the 5th October 2015 on the
plaintiff its own Serious Injury Assessment Form RAF 4 by a Dr M G
Mashaba
dated the 14th September 2015. In this report Dr Mashaba
expressed the view that T…….. does not qualify for
general
damages. He assessed the Whole Person Impairment at 0%.
Applying the narrative test, he found that T………
still
does not qualify.
[9]. In these
circumstances, it is clear that the defendant does not accept that
the plaintiff suffered a serious injury as
defined in the Act and the
regulations promulgated in terms thereof. Nor does the defendant
accept the Forms RAF 4. The question
is however whether the
regulations require of the defendant to specifically reject by notice
a Serious Injury Assessment Report
Form RAF 4.
[10]. At this
juncture I need to take one step back and deal with the applicable
legislative framework. In that regard, I will
be guided in the main
by the judgment of the SCA in the matter of: Road Accident Fund v
Duma & 3 Others,
2013 (6) SA 9
(SCA)
[11]. Pursuant
to s 26 of the Act, the Road Accident Fund Regulations of 2008
were promulgated by the minister through
publication in Government
Gazette 31249 of 21 July 2008. Regulation 3 prescribes the method
contemplated in s 17 (1A) for the determination
of ‘serious
injury’. As a starting point it provides in reg 3 (1) (a) that
a third party who wishes to claim general
damages ‘shall submit
himself or herself to an assessment by a medical practitioner
in accordance with these Regulations’.
In terms of reg 3 (3)
(a) a third party who has been so assessed, ‘shall obtain from
the medical practitioner concerned a
serious injury assessment
report’. This report is defined in reg 1 as 'a duly completed
form RAF 4, attached hereto as annexure
D’.
[12]. The
serious injury assessment report is also referred to as the RAF 4
Form, which itself, read with reg 3 (1) (b), requires
the medical
practitioner to assess whether the third party's injury is 'serious'
in accordance with three sets of criteria.
[13]. In terms
of reg 3 (3) (c), the Fund is only liable for general damages 'if a
claim is supported by a serious injury assessment
report submitted in
terms of the Act and these Regulations and the Fund is satisfied that
the injury has been correctly assessed
as serious in terms of the
method provided for in these Regulations'.
[14]. If the
Fund is not so satisfied, it must, in terms of reg 3 (3) (d), either:
(i) Reject
the third party's RAF 4 form and give its reasons for doing so; or
(ii) direct that the
third party submits himself or herself to a further assessment at the
Fund's expense by a medical practitioner
designated by the Fund in
accordance with the method prescribed in reg 3 (1) (b).
[15]. As
to what then happens, reg 3 (4) provides that, if the third party
disputes the Fund's rejection of the RAF
4 form (under reg 3 (3) (d)
(i)) — or if either the third party or the Fund wishes to
challenge the assessment by the medical
practitioner designated by
the Fund (under reg 3 (3) (d) (ii)) — the aggrieved party must
formally declare a dispute by lodging
a prescribed dispute resolution
form (RAF 5) with the registrar of the Health Professions Council
within 90 days of being informed
of the rejection or the impugned
assessment. Regulation 3 (5) (a) then goes on to say that if this is
not done, the rejection of
the RAF 4 form or the assessment by the
Fund's designated medical practitioner, as the case may be, shall
become final and binding.
[16]. If
a dispute is declared, reg 3 (8) provides for it to be determined by
an appeal tribunal of three independent
medical practitioners with
expertise in the appropriate area of medicine, appointed by the
registrar of the Health Professions
Council. In terms of reg 3 (13)
the determination by the appeal tribunal is final and binding. A
procedure by which the appeal
tribunal enquires into the dispute is
laid down in substantial detail by regs 3 (4) to 3 (13).
[17]. At
par [19] the court in Road Accident Fund v Duma & 3 others,
2013
(6) SA 9
(SCA), has this to say:
‘In accordance
with the model that the legislature chose to adopt, the decision
whether or not the injury of a third party
is serious enough to meet
the threshold requirement for an award of general damages was
conferred on the Fund and not on the court.
That much appears from
the stipulation in regulation 3(3)(c) that the Fund shall only be
obliged to pay general damages if the
Fund – and not the court
– is satisfied that the injury has correctly been assessed in
accordance with the RAF 4 form
as serious. Unless the Fund is so
satisfied the plaintiff simply has no claim for general damages. This
means that unless the plaintiff
can establish the jurisdictional fact
that the Fund is so satisfied, the court has no jurisdiction to
entertain the claim for general
damages against the Fund. Stated
somewhat differently, in order for the court to consider a claim for
general damages, the third
party must satisfy the Fund, not the
court, that his or her injury was serious. Appreciation of this basic
principle, I think,
leads one to the following conclusions:
(a)
Since the Fund is an organ of State as defined in s 239 of the
Constitution and is performing a public
function in terms of
legislation, its decision in terms of regulations 3(3)(c) and
3(3)(d), whether or not the RAF 4 form correctly
assessed the
claimant’s injury as ‘serious’, constitutes
‘administrative action’ as contemplated
by the Promotion
of Administrative Justice Act 3 of 2000 (PAJA). (A ‘decision’
is defined in PAJA to include the making
of a determination.) The
position is therefore governed by the provisions of PAJA.
(b)
If the Fund should fail to take a decision within reasonable time,
the plaintiff’s remedy is under
PAJA.
(c)
If the Fund should take a decision against the plaintiff, that
decision cannot be ignored simply because
it was not taken within a
reasonable time or because no legal or medical basis is provided for
the decision or because the court
does not agree with the reasons
given.
(d)
A decision by the Fund is subject to an internal administrative
appeal to an appeal tribunal.
(e)
Neither the decision of the Fund nor the decision of the appeal
tribunal is subject to an appeal to
the court. The court’s
control over these decisions is by means of the review proceedings
under PAJA’.
[18]. In
the circumstances of this matter and notwithstanding the fact that no
formal notice of rejection had been served
by the defendant on the
plaintiff, I am of the view the Fund has rejected by implication the
plaintiff’s Form RAF 4. This
means that the requirement that
the Fund must be satisfied that the injury is serious has not been
met. In that event the plaintiff
cannot continue with its claim for
general damages in court. The court simply has no jurisdiction to
entertain the claim. The plaintiff’s
remedy is to take the
rejection on appeal in terms of regulation 3 (4).
[19].
Even if I am wrong in that there has been no rejection by the
defendant of the Form RAF 4, this would still not
mean that I can
deal with the general damages. The fact of the matter is that by all
accounts, the defendant has not accepted the
Form RAF 4. This does
not mean that the Fund can avoid and frustrate plaintiff’s
claim against it indefinitely by simply
not taking a decision either
way. As was pointed out in the Duma matter (supra), the solution is
to be found in s 6(2)(g) read
with s 6(3)(a) of PAJA. These sections
provide that if an administrative authority unreasonably delays to
take a decision in circumstances
where there is no period prescribed
for that decision, an application can be brought ‘for judicial
review of the failure
to take the decision’.
[20].
For these reasons, I am of the view that the plaintiff’s
general damages and the quantification thereof
are not ripe for
adjudication by this court. It needs to be referred to the Appeals
Tribunal of the HPCSA in terms of reg 3 (8).
I therefore intend
postponing the issue of the general damages.
[21].
This leaves me to adjudicate only the one remaining head of damages,
that being the future loss of earnings of
T………
the facts:
[22]. On
the 6th of March 2011 T………. was busy crossing
Geba Street in Kagiso when he was knocked
down by a bakkie. At no
stage did he lose consciousness, and he was removed from the scene of
the accident by the driver of the
bakkie and taken to the Leratong
Provincial Hospital.
[23]. On
admission to the Leratong hospital, he was examined by a doctor, who
found that he had a swollen left thigh.
The left thigh was deformed
and he had reduced range of motion. He underwent x – rays and a
left femur fracture was diagnosed.
He was admitted and received
conservative treatment, specifically traction and analgesics.
Importantly, on clinical examination
his Glasgow Coma Scale was
assessed to be 15/15. Small abrasions were also found on the right
hand, however these were very minor
and of no significance at all.
[24].
T…… did not suffer a head injury in the collision. In
all of the hospital records and clinical notes
not once is any
mention made of a head injury.
[25]. On
the 25th of March 2011 it was reported in the hospital records that,
with reference to the fractured left femur,
there was good alignment
and good formation of callus. Instructions were then given by the
doctor to continue traction. On the
19th April 2011 T……
was seen by a physiotherapist. He presented with weakness in the
quads and was limping when walking.
[26]. On
the 5th of May 2011 he was seen by a doctor and discharged. He was
therefore hospitalised for a period of 2
months from the 6th of March
2011 to the 5th of May 2011. He was discharged with medication. His
mother had to carry him on her
back from the hospital. During his
stay in hospital he did not undergo any operation or any other
surgical intervention.
[27].
Post – accident the minor child reportedly walks with a left
sided limp and his left leg is shorter than
his right leg by about
2mm as per the scanograms. This, according to the defendant’s
expert, Dr Mashaba, is an insignificant
shortening if one has regard
to the guidelines contained in the AMA 6 Guides, which attaches
significance to a shortening of the
lower limps only if same exceeds
1cm. T……. also has some difficulty walking on occasion
particularly if he is tired,
and he falls when he attempts to run
because of the approximately 10° angulation of the femur.
the evidence
[28].
Plaintiff’s occupational therapist, Ms Robyn Hunter, saw and
assessed T…….. on the 6th December
2013. She described
him as friendly and motivated, and she found that there were no
problems with his concentration and motivation.
During her
assessment, he was able to attend to tasks with minimal prompting and
redirection.
[29]. On
clinical observation of neuromuscular functioning, Ms Hunter found
that he did not demonstrate gravitational
insecurity. His balance was
good and he demonstrated good dissociation and rotation during the
equilibrium reaction test. His protection
extension was a bit
delayed, but present in front, back and sideways directions. This
appears to fly in the face of the complaints
reported by the
plaintiff to the experts that T……. trips when walking
and running.
[30]. It
is instructive to note that nowhere in her report is any mention made
by Ms Hunter of the fact that T………
walks with a
limp.
[31]. On
the whole the uncontested and unchallenged evidence of Ms Hunter, as
well as the contents of her medico –
legal report, paint a
picture of a little boy who appears normal except for the fact that
he demonstrated difficulties in the performance
of postural stability
tasks and gross motor tasks, ‘possibly due to the injury’.
He also demonstrated poor visual perception.
The difficulties she
found were mainly of a neuropsychological nature and not arising from
physical problems. She concluded that
his injury may have a negative
impact on his ability to perform medium – to very heavy tasks
in the future. She readily conceded
that it is difficult to determine
what caused the difficulties relating to the poor visual perception
and poor gross motor and
fine motor bilateral skills.
[32].
Plaintiff’s Specialist Urologist, Dr Gecelter, testified that,
when he examined and assessed T…….
on the 24th October
2013, he established that he sustained a soft tissue injury of his
urethral site and a mild urethral stricture,
which he says were
accident related. T…….. should be assessed regularly
for the next 5 years by an Urologist. Dr
Gecelter remarked that on a
contingency basis T…….. will develop a urinary tract
infection once per year and should
be treated accordingly. According
to Dr Gecelter, T…… will require further investigation
including urodynamic studies.
Dr Gecelter noted that T……..
may further require a cystoscopy and correction of any narrowing of
his urethra.
[33]. Ms
Sepenyane, an Educational Psychologist, assessed T………
on the 20th January 2014. She gave
evidence that his mother reported
that he is content and easy going. His general behaviour includes
being trustworthy, unwilling,
and aggressive and show resentment. He
was also reported to be forgetful. The following complaints were
reported by the mother
to Ms Sepenyane:
1. He struggles
with sitting, standing, and walking for a period of time.
2. He
experiences recurrent headaches.
3. He
suffers from painful lower back.
4. He suffers
from painful hip.
[34].
Ms. Sepenyane concluded that based on his performance during a number
of tests conducted by her, it is clear that
from a neurocognitive
point of view he is functioning significantly below expectations in
some areas for a child of his age and
he would thus be expected to
struggle within an academic setting.
[35].
Ms. Sepenyane argues that his current cognitive backlog suggests that
he would find it difficult to attain a Grade
12 level of education
within the mainstream environment. She is of the view that although
he is performing adequately at school
at present, his performance is
likely to deteriorate as he progresses through the higher grades in
which the outcomes and content
of the curriculum becomes increasingly
complex.
[36]. Ms
Sepenyane concludes that T……..’s current
cognitive deficits, emotional difficulties and
problems with
attention and concentration could be as a result of, or at least
exacerbated by, the accident in question. I have
a difficulty with
this conclusion in view of the fact that, by all accounts, the child
did not suffer a head injury which could
have resulted in brain
damage. Ms Sepenyane herself accepts in as many words that there was
no injury of the head. She nevertheless
makes the bold and very bald
statement that the accident aftermaths have caused significant
deterioration in his cognitive function.
In my view, there is no link
established between the neurocognitive fall out and the accident. Ms
Sepenyane’s attempts at
explaining a connection between the
accident and the cognitive deficits on the basis that the child might
have suffered a blow
to the head which may have caused a brain
concussion, is sheer conjecture and pure speculation without any
factual basis. Her further
conclusion that T…….’s
emotional well-being has been affected by the accident is also
without foundation, and
not supported by the objective evidence and
the findings of the plaintiff’s occupational therapist.
[37]. I
therefore cannot accept her evidence that, as a result of the
accident, T…… has experienced a
loss of amenities in
life, specifically in terms of his educability or future
employability.
[38].
According to Ms Sepenyane, T……...’s emotional
well-being has been slightly affected by the
accident in question. He
is satisfied, happy and has a good nurturing family. He however has
inferiority feelings, feelings of
inadequacy, helplessness and not
willing to explore. Again, I am of the view this sweeping statement
by Ms Sepenyane is without
basis and does not accord with the
findings by Ms Hunter based on her observations of the child.
[39]. Ms
Sepenyane does surmise that these difficulties may be emanating from
physical unfitness post – accident;
he struggles with sitting,
standing, and walking for a period of time because of the painful hip
and lower back. This suggests
that he may not be able to perform as
any other child of his age; and this may cause emotional blockage. I
similarly have a difficulty
with this conclusion, which again flies
in the face of the findings by the occupational therapist, who found
T………
to be motivated and keen.
[40]. Dr
Mogoru, who was incorrectly qualified by the plaintiff in a notice in
terms of Rule 36 (9) (a) & (b) as
an orthopaedic surgeon,
confirmed in his evidence that he is a General Practitioner trained
in the AMA 6 Guide. Surprisingly, T………..
was at
no stage assessed and examined by an Orthopaedic Surgeon. I therefore
did not have the benefit of a report by an Orthopaedic
Surgeon.
[41]. Dr
Mogoru testified that he conducted a physical examination of T………,
and his findings were
incorporated into his report. His examination
of the lower limbs revealed full range of movement in all directions
with no tenderness.
He reported limb length discrepancy but
symmetrical with good contours.
[42]. Dr
Mogoru confirmed that the scanogram report indicated a shortening of
the left femur by approximately 5mm. This
is due to previous oblique
fracture of the mid shaft of the left femur with bone remodelling and
callus formation. There is mild
anterior angulation of the fracture
site of approximately 10°. During his evidence Dr Mogoru
expressed the view that whilst
the 5mm limb length shortening may
seem insignificant it may later on translate into a lot of lower back
pain.
[43].
With regard to future medical expenses Dr Mogoru recommended
conservative treatment involving medical consultation
with a GP and
pain medication. T…….. reported to have never been
completely pain free since the accident. According
to Dr Mogoru the
injuries sustained have a good prognosis.
[44]. Dr
Mogoru commented on the impact of the injuries on T……’s
future work capacity. He concluded
from his findings that no
permanent disability has resulted from the injuries.
[45].
The evidence of the plaintiff’s industrial psychologist, Dr
Mohapi Malaka, was that during his formal assessment
of T……….
on the 12th November 2013, the plaintiff reported to him the
following health problems post-accident:-
1. He is
forgetful.
2. His left leg
is shorter than his right leg.
3.He cannot run.
4.His left leg is
painful when it is cold or cloudy.
5.He trips when he
is running and walking.
6.He struggles to
climb stairs.
[46]. Dr
Malaka, after having reviewed the available reports, notably the one
by the Educational Psychologist, Ms Sepenyane,
concluded that pre –
morbid the minor child would have attained a grade 12 qualification
and gone on to obtain a 2 –
year post matric certificate or
diploma. This, according to Dr Malaka, would have enabled him to
enter the labour market after
attaining the diploma / certificate as
a semi – skilled worker progressing to ultimately reach his
ceiling at the Patterson
band level C4/C5.
[47].
Having regard to the accident, Dr Malaka is of the view that the
child would now only be able to attain Grade
12. He bases this
conclusion on the reports by all of the experts in the matter, and
concludes that [T……..] sustained
injuries resulting in
severe long – term mental and / behaviour disturbance /
disorder. The conclusion is based primarily
on the findings by the
plaintiff’s Educational Psychologist, Ms Sepenyane, that the
child’s neurocognitive deficits
are accident related. I have
already indicated that I do not accept these findings by Ms Sepenyane
for the simple reason that there
is no evidence before me that the
child suffered a head injury which could have resulted in brain
damage, which in turn would have
translated into neuropsychological
fallout. Dr Malaka also attempted to convince me during his testimony
that, having regard to
the mechanism of the accident and the fact
that it resulted in a fractured femur, there is a possibility of an
undiagnosed head
injury, which would not have been picked up by the
medical staff at the hospital due to the serious injury to the leg.
This, in
my view, is speculative in the extreme.
[48]. He
also gave opinion evidence that the physical injury could have
resulted and would result in emotional and motivational
issues for
the child. I am of the view that this aspect of the matter is
overstated by Dr Malaka. The occupational therapist found
that the
child was motivated. His report cards from school indicate that he is
doing well and that the teachers are satisfied with
his progress. I
therefore do not accept that because of the injuries sustained in the
accident, which in the bigger scheme of things
are relatively minor,
would have caused the child to fall from attaining a diploma to just
passing matric. There is no logic in
this argument.
[49]. It
is possible that, because of the nature of the orthopaedic injury and
its sequelae, the child is compromised
from the point of view of his
choice of employment. So, for example, the occupational therapist
says that he may not be able to
perform work of a medium to very
heavy physical nature. However, I am not persuaded that the injury
would have had any effect on
his scholastic and educability capacity.
[50].
Plaintiff herself also gave evidence. In my view, she overstated the
difficulties experienced by T……..
She repeated in
essence the complaints reported by her to the experts during the
examination of T……. Her evidence
was that before the
accident, her son was ‘fast’ in that he understood
concepts with ease and was able, from a physical
point of view, to
run and move fast. After the accident, so her evidence went, he had
become ‘slow’ from an academic
point of view as well
physically. Whilst I accept that the plaintiff was bona fide when
giving evidence, I have difficulty in accepting
her narration in view
of the evidence of her own occupational therapist. And if one has
regard to the school reports of the minor.
All the same, I do not
have any evidence before me of a brain injury and any suggestion of a
drop in intellectual ability has not
been proven to be linked to the
injuries sustained by the child in the accident.
[51]. On
behalf of the defendant, Dr Mashaba, a Serious Injury Assessment
Practitioner, told the court that, in his
view, the injury sustained
by the child is not of a serious nature. He had assessed the WPI at
0% and had found that the child
does not qualify for general damages
in terms of the ‘narrative test’. The 2mm left leg
shortening he regarded as insignificant,
because with reference to
the AMA 6 Guides, this would have fallen within the normal limits. In
terms of the AMA 6 Guides, a lower
limb shortening of less than 1cm
is not remarkable. As far as the angulation of the femur bone is
concerned, he was of the view
that it was not so acute that it made
it serious. He readily conceded however that at 10°, it would be
a serious deformity.
He was not able to dispute the finding in the x
– rays on behalf of the plaintiff that the angulation was 10°.
AN ANALYSIS OF THE
evidence
[52].
This is the conspectus of the evidence which I must evaluate. As I
indicated above, most of the facts in this
matter are common cause
either by virtue of it having been agreed upon between the parties or
by the fact that the evidence presented
on certain issues were not
disputed and is therefore unchallenged.
[53]. In
a nutshell, the main dispute relates to whether there would have been
a difference between the pre –
morbid scholastic / career path
of T……... and the post – morbid path. Even on
this aspect there appears to
be little difference relating to the
underlying premises for the projections. The difference lies in the
conclusions reached from
these premises.
[54]. As
regards the evidence of the expert witnesses on behalf of the
plaintiff, I have already alluded to the difficulties
I have with the
evidence of Ms Sepenyane and that of Dr Malaka.
[55]. I
should base any inferences which I intend drawing and any conclusions
which I intend reaching on all the facts
placed before me. In S v
Harris,
1965 (2) SA 340
(A), at page 365B-C the AD said the
following:
‘In the
ultimate analysis, the crucial issue of appellant’s criminal
responsibility for his actions at the relevant
time is a matter to be
determined, not by the psychiatrists, but by the Court itself. In
determining that issue the Court –
initially, the trial Court;
and, on appeal, this Court – must of necessity have regard not
only to the expert medical evidence
but also to all the other facts
of the case, including the reliability of appellant as a witness and
the nature of his proved actions
throughout the relevant period’.
[56]. In
S v Gouws,
1967 (4) SA 527
(EC) 528D Kotze J (as he then was) said:
‘The prime
function of an expert seems to me to be to guide the court to a
correct decision on questions found within his
specialised field. His
own decision should not, however, displace that of the tribunal which
has to determine the issue to tried’.
[57].
The difficulty which I have, and which I have alluded to above,
relates to the absence of a factual basis on which
the plaintiff’s
experts based their opinions.
[58]. An
expert witness should provide independent assistance to the court by
way of objective, unbiased opinion in
relation to matters within his
expertise. He should state the facts or assumptions upon which his
opinion is based.
[59]. In
Schneider NO & Others v AA & Another,
2010 (5) SA 203
(WCC),
Davis J said at 211J – 212B:
‘In short, an
expert comes to court to give the court the benefit of his or her
expertise. Agreed, an expert is called by
a particular party,
presumably because the conclusion of the expert, using his or her
expertise, is in favour of the line of argument
of the particular
party. But that does not absolve the expert from providing the court
with as objective and unbiased an opinion,
based on his or her
expertise, as possible. An expert is not a hired gun who dispenses
his or her expertise for the purposes of
a particular case. An expert
does not assume the role of an advocate, nor gives evidence which
goes beyond the logic which is dictated
by the scientific knowledge
which that expert claims to possess’.
[60]. I
am of the view that Ms Sepenyane and Dr Malaka transgressed
principles set out in the above quoted passages.
Both of them
conclude that the accident in question caused neurocognitive fallout
relative to the child without explaining how
this could possibly have
happened in the absence of a head injury. To make matters worse, they
also argue that even the orthopaedic
injuries were likely to result
in psychological and emotional difficulties, which in turn would
cause the child to drop from attaining
a 2 year diploma or
certificate to just a Grade 12 qualification.
[61]. In
Michael and Another v Linksfield Park Clinic (Pty) Ltd and Another,
2001 (3) SA 1188
(SCA) at paras 36 and 37 the following is said:
‘[36]
That being so, what is required in the evaluation of such evidence is
to determine whether
and to what extent their opinions advanced are
founded on logical reasoning. That is the thrust of the decision of
the House of
Lords in the medical negligence case of Bolitho v City
and Hackney Health Authority
[1997] UKHL 46
;
[1998] AC 232
(HL (E)). With the
relevant dicta in the speech of Lord Browne-Wilkinson we respectfully
agree. Summarised, they are to the following
effect.
[37]
The Court is not bound to absolve a defendant from liability for
allegedly negligent
medical treatment or diagnosis just because
evidence of expert opinion, albeit genuinely held, is that the
treatment or diagnosis
in issue accorded with sound medical practice.
The Court must be satisfied that such opinion has logical basis, in
other words
that the expert has considered comparative risks and
benefits and has reached ‘a defensible conclusion’.’
[62].
What is required of me is to determine to what extent the opinions
advanced by the experts were founded on logical
reasoning, viewed in
the light of the probabilities. I have already indicated why I found
the evidence of Ms Sepenyane and Dr Malaka
on behalf of the plaintiff
to be unacceptable.
[63]. In
considering a matter a court is also to keep in mind that direct
evidence of facts are of great value when
determining an issue. In
that regard, an aspect which weighs heavily on my mind is the reports
by the teachers at T………’s
school,
suggesting that he is coping swimmingly with no major problems
reported. Furthermore, when he was assessed by the Occupational
Therapist, Ms Hunter, T………. was observed by her
to be friendly and motivated, entering the assessment area
willingly
and independently. ‘His concentration and attention did not
appear to be problematic and he was able to attend
to tasks with
minimal prompting and redirection’.
[64].
When all is said and done, the sum total of the injuries sustained by
the child in the accident was a fractured
femur. He has not received
any further treatment since being discharged from hospital, although
there are complaints relating to
difficulty with walking and running.
How then, one can ask, would this translate into such a dramatic
limitation and reduction
in earning capacity on the scale suggested
on behalf of the plaintiff by her experts? Accordingly, I am of the
view that an evaluation
of their evidence indicates that the opinions
of Ms Sepenyane and Dr Malaka are not founded on logical reasoning.
[65].
The opinion of the defendant’s expert, Dr Mashaba, cannot be
disregarded. His evidence was logical and reasoned
and accord with
the realities in this matter. For example, a 2mm shortening of the
left leg is insignificant.
[66]. In
these circumstances, I am of the view that on the probabilities the
educational and career paths and the earning
capacity of T……..
have not been affected at all by the accident and that he would enter
the labour market at a similar
time and level as pre –
accident. His career path and earning potential is, in my view, most
definitely not affected in the
manner suggested by Dr Malaka.
[67]. I
therefore find it unnecessary to do an actuarial calculation based on
the projections of Dr Malaka with a view
to quantifying the loss of
earnings.
[68].
The only question remaining is whether I should award to plaintiff a
globular sum on the basis that his capacity
to earn an income had
been curtailed as a result of the injuries sustained in the accident.
Dr Mashaba, on behalf of the defendant,
expressed the view that
T………’s earning capacity has not been
affected. He does however defer to an occupational
therapist.
[69]. Dr
G M Fredericks, a Disability & Impairment Practitioner, who
examined and assessed T………
on the 1st October
2013 found his standing posture to be slightly abnormal and the left
thigh obviously deformed (i.e. enlarged
and protuberant). T………
reported to him that he often trips over his own left leg when
attempting to run during
play activities and that other children
often tease him because of this.
[70]. By
the time T……….. was seen by Dr Mogoru on the 9th
September 2015 the complaint that he
falls when he runs appears to
have resolved. There was no such complaint to Dr Mogoru, whose
opinion in relation to a possible
future loss of income is based
exclusively on the reported neuropsychological difficulties.
Importantly, in his report he says
the following: ‘Fractured
femurs have a good prognosis with patients returning to pre –
fracture level of functionality’.
[71].
The occupational therapist, Ms Robyn Hunter, concluded that T……..’s
injury may have a negative
impact on his ability to perform medium –
to very heavy work tasks in future. She however give very little
further details
in support of the statement. Furthermore, she
expressed the view during her evidence that T…………’s
orthopaedic problems are treatable and may improve with the correct
rehabilitation.
[72]. A
classic case where the so-called 'lump sum approach' was adopted is
that of Audi v Rondalia Assurance Corporation
of South Africa Ltd,
1974 (2F3) QOD 479 (E), where a 25 year old factory hand suffered a
left hip fracture and faced the prospect
of future hip-replacement
operations. In 1974, the learned judge awarded the plaintiff
R5,000.00 'for the loss of income which
he is likely to suffer in the
future as a result of his injuries'. The learned judge also made the
following remarks:
'It seems to me that
this is not a case in which the plaintiff has been able to prove
actual future loss, which can be quantified
on an actuarial basis. .
. It seems likely that he can continue in his present employment
until retirement age, except for periods
of about two weeks per annum
when he will be off work due to pain, and the periods when he will be
away from work for the hip operations
and the removal of the internal
fixation. He may well lose employment if he has to be away from work
from time to time for the
two hip-replacement operations, but this
seems unlikely if he has been a good and faithful workman up to then.
However, his increasing
disability and consequent lack of mobility
may well endanger his prospects of keeping his job as well as
impairing his chances
of advancement and, as already noted, will
limit his ability to improve his position by finding other
employment.'
[73].
Applying these principles to the present case, I am of the view that
there is no evidence before me which indicate
that T……’s
disability is of such a nature that it would limit or interfere in
any other way with his income
earning capacity in years to come.
[74]. In
the result, I find that no loss of earning capacity or future loss of
income has been suffered by the minor
child.
COSTS
[75].
This is possibly a matter in which an appropriate cost order can only
be made once the final quantum of the plaintiff’s
claim has
been established. That, in turn, would depend on whether the minor
child qualifies for and is entitled to be awarded
general damages.
[76].
However, the injury in this matter is fairly serious and probably
justifies the fact that action had been instituted
in the High Court.
Also, the issue of the merits was only conceded shortly before the
commencement of the trial.
[77]. In
the premises, I intend granting to the plaintiff cost to date.
order:
Accordingly, I make
the following order:
1.The defendant
shall furnish the plaintiff with an Undertaking as envisaged in
section 17 (4) (a) of the Road Accident Fund Act
number 56 of 1996,
to pay 100% of the cost of the future accommodation of T….. in
a hospital or nursing home or treatment
of or rendering of a service,
or supplying of goods to him arising out of the injuries sustained by
him in the motor vehicle collision
which occurred on the 6th March
2011, after such costs have been incurred and upon proof thereof.
2. The
defendant shall pay the plaintiff’s taxed or agreed party and
party costs on the High Court Scale, which costs
shall include the
costs attendant upon the obtaining of the medico – legal
reports and joint minutes, if any, and as allowed
by the Taxing
Master.
3. The aspect
of the plaintiff’s general damages is postponed sine die.
L ADAMS
Acting Judge of
the High Court
Gauteng Local
Division, Johannesburg
HEARD ON:
26th, 27th and 28th October 2015
JUDGMENT DATE:
FOR THE PLAINTIFF: 30th October 2015
Adv Sevhukwama
INSTRUCTED BY:
Mokobane
Incorporated
FOR THE
DEFENDANT: Adv Khanyile
INSTRUCTED BY:
Maribana Makgoka Incorporated