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[2016] ZAGPJHC 262
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D obo D v Road Accident Fund (01470/2013) [2016] ZAGPJHC 262 (16 September 2016)

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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: YES
CASE
NO: 01470/2013
In the
matter between:
D. J. C.
J. A.
obo D. J.
B. ,
K.
C.
L.
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
SUMMARY
Delict –
negligence – motor vehicle accidents – damages claim
under the
Road Accident Fund Act 56 of 1996
, as amended – 5
year old minor’s claim for loss of earning and earning capacity
– head injury – mild to
moderate severe – expert
witnesses – conflicting opinions – diverseness –
approach of court – defendant
not bound by its own expert
witnesses’ opinions but failure to proffer counter-expert on
factual evidence – actuarial
calculations unopposed.
J
U D G M E N T
MOSHIDI,
J
:
INTRODUCTION
[1] The
plaintiff, in her representative capacity and mother of the accident
victim, has instituted action against the defendant
for damages as a
result of a motor vehicle accident which occurred on 30 October
2004.  In the accident, the plaintiff’s
minor daughter, K.
C. L. B.t, then aged 5 (“
K.
”), sustained certain
injuries, including a head injury, superficial abrasions and limb
abrasions. More about the injuries
later.
THE
ONLY ISSUE FOR DETERMINATION
[2] At
the commencement of the trial, the defendant had already accepted
liability for 100% of the plaintiff’s agreed or proven

damages.  In addition, the defendant had also agreed to pay to
the plaintiff the sum of R700 000,00 (seven hundred thousand
rand) in
respect of general damages, and agreed to furnish to the plaintiff an
undertaking or certificate in terms of
section 17(4)(a)
of the
Road
Accident Fund Act 56 of 1996
, as amended (“
the Act
”).
The certificate was in respect of the plaintiff’s claims for
past and future medical, hospital and related
expenses.
Consequently, the only remaining issue in dispute is the plaintiff’s
claim for loss of future earnings and
earning capacity.
[3] I
must at the outset observe that, in determining the disputed issue
during the trial, the Court gained the distinct impression
that the
manner in which the litigation was conducted by the defendant, left
much to be desired. As a consequence, the trial lasted
slightly
longer than necessary. In the end, it turned out that the defendant’s
main gripe was the severity of the head injury
sustained by K.  as
well as the
sequelae
thereof.  More about this aspect
later below.
THE
EVIDENCE OF K.
[4] The
plaintiff led the evidence of some six witnesses.  When she
testified, K.  was 17 years old.  At the time
of the
accident (October 2004), she was 5 years old and in Grade R but
currently she is in Grade 11.  Pursuant to the accident,
she
“
repeated
” Grade 3, but no other grades.  She
had no recollection at all about the accident save that it occurred
when she was
about to cross the road.  The first memory after
the accident was when she woke the following morning, and attempted
to wake
up from her bed to go to the bathroom, but could not walk,
and collapsed.  In the accident she sustained injuries to her
knees,
her left shoulder and the whole of her left side of her face.
She also said her left eye was swollen which she could not open.

Her current health problems included that she developed a short
temper, mood swings, poor short-term memory, and that she “
blanks
out
” occasionally.  This occurs when her mother
screams at her, and her mother would then shake her to come around.

It also happens at school from about when she was in Grade 5.
K.  also complained about poor concentration levels, headaches,

and low energy levels.  Her marks at school were currently about
50% and lower.
[5] In
cross-examination, K.  recalled attending various assessments by
the defendant’s experts and the instance of the
defendant. In
particular, she remembered the consultation she had with Ms M
Olivier, the defendant’s occupational therapist
(“
Olivier
”).
The assessment was carried out on 22 April 2015.  In this
regard, it was put to K.  that according to
Olivier’s
report, K.  “
did not report any overt anxiety or mood
swings …
”.  K. responded,
inter alia
,
that she did not remember conveying such information to Olivier.
K. was also cross-examined on whether she repeated or in
fact Grade
3. The response was that her mother kept her back from proceeding to
the next grade since her pass mark was not too
good.  K. could
not recall when exactly her short temperedness commenced, however,
the blackouts started when she was in Grade
5.  K. undertook to
make an attempt to look for her school reports in substantiation of
her evidence that her school marks
had dropped.  I must later
below comment about the nature of the cross-examination of K.?
THE
EVIDENCE OF K. ’S MOTHER
[6] K.’s
mother, also the plaintiff (Mrs C J D. J.) (“
the
plaintiff
”), gave extensive evidence, and was also
cross-examined.  Her evidence extends over some 28 pages of the
record of proceedings.
She became unemployed since January
2016. She was previously employed as a debt collector by a firm of
attorneys for about 4 years.
She held qualifications in
financial management, business management, and marketing management.
At the time of her evidence, the
plaintiff was studying towards a BA
degree fulltime.  Her husband is self-employed as a carpenter.
[7] On
her arrival at the Baragwanath hospital after the accident on 30
October 2004, the plaintiff found K.  already badly
injured.
She could not readily recognise K.  due to the injuries
especially the scarring on her face, which was swollen.
K.’s
left eye was swollen closed.  The plaintiff was unhappy that K.
was discharged from the hospital immediately
without any form
of medication.  That very same evening, the plaintiff went to a
pharmacy where she bought bandages and pain
medication, which she
used to attend to K.’s injuries at home that night.  K.
started vomiting which became unbearable
the Sunday thereafter.
[8] When
the medication prescribed by a private doctor could not help, and the
swelling on her face did not subside, and K.  could
still not
walk, the plaintiff took her to the Coronation hospital (now Rahima
Moosa) where she was referred for certain scans.
After the
accident, K.  could not attend her Grade R graduation ceremony.
[9] In
regard to the
sequelae
of the injuries, as opposed to
pre-accident, the plaintiff testified that:  prior to the
accident, K. attended a day-care
at the Feed My Hands Day-Care Centre
(“
the day-care centre
”), from the age of 2½
onwards.  She was an active, busy, talkative child.  She
was plaintiff’s ‘
angel and joy
’.  K.
was remarkable and catched up on everything. She had an excellent
vocabulary and could easily comprehend instructions.
She had perfect
listening skills, there was no negative feedback from the day-care
centre.  This was confirmed by a school
teacher, as well the
Grade R teachers in whose care K.  was prior to the accident.
The accident in question occurred
when K.  was almost completing
Grade R.
[10] The
plaintiff, however, testified that post-accident, there was a drastic
and palpable change in the personality of K. .
As a
consequence, the plaintiff was called to the school, and asked what
went wrong with K. .  The teacher/s complained that
K.  stared
at them but could not register.  She blanked out.  K. would
not talk at all, was no longer sociable and
behaved like a recluse.
Her school marks lowered.
[11] In
reference to K. ’s school results from Grade 1 to Grade 7, at
Elridge Primary School, the plaintiff testified that,
although K.
passed Grade 3, the teachers advised that it would be better to
keep K.  back as she would encounter difficulties
in Grade 4.
K. performed better in Grade 3, the second time.  Whilst in the
process of repeating Grade 3, for the reasons
stated above, and at
age 9, K.  was admitted at the Coronation hospital (now Rahima
Moosa).  There, the plaintiff requested
a psychologist to
evaluate K. . The doctors advised that K.  should be given
medication and referred to a remedial school,
instead.  However,
the plaintiff declined the medication, and could also not afford the
cost of a remedial school. This was
in 2008.
[12] In
2010, K.  was admitted again at the Rahima Moosa hospital. This
was after K.  had fainted twice at school.
The plaintiff
testified that K.  had in fact had fits, and was vomiting and it
was thought that she had developed epilepsy.
[13] The
plaintiff and her husband (Mr D. J.) had two further children, namely
K. (aged 11) and K. (aged 4), (“
K.
”).  K.’s
school performance was very good.  She was a top grade achiever,
and always obtained various diplomas
in all seven subjects from Grade
1 up to Grade 5.  K. was extremely clever, and her school had no
problems at all with her.
The plaintiff’s aspirations for
her children’s career were that they should obtain the highest
possible qualifications.
For example, K.  aspired to do
psychology.  However, the school teachers advised against this
since K. ’s grades
were too low.  The plaintiff conceded
that she attended the various medico-legal assessments with K. , and
that the latter
responded to the various questions asked by the
experts honestly and to the best of her ability. The plaintiff
testified that the
high school informed her that it was impossible to
now obtain K.’s school reports.
[14] In
cross-examination, the plaintiff remained adamant, persistent, and
indeed, extremely knowledgeable about the circumstances
of her child,
pre-accident, and thereafter. This was expected of any mother who
cared for the best interests of her child. I must
point out that at
that stage of the speculative cross-examination, I gathered the
impression that the cross-examination was no
longer concentrated at
the severity or otherwise of the head injury. Instead, it was
something else.  This was the common
cause fact that, when at
eight months of age, K.  was involved in a separate motor
vehicle accident, during which she suffered
no notable injuries.
In this regard the plaintiff was referred to the medico-legal report
of her own specialist psychiatrist,
Dr Z Mahomedy, dated 9 February
2015.  In the report, Dr Mahomedy recorded that:
“
Medical
records of Coronation hospital indicate that Ms Bezuidenhout suffered
with prolonged neonatal jaundice. She was a pre-mature
baby at 34
weeks with a birth weight of 2,5 kg.
”
The
report of Dr Z Mahomedy also referred to K. vomiting and had
infections, and have been in another motor vehicle accident, when
K.
was eight months old.  The plaintiff testified that the
above condition of K.  was unrelated to the present
accident in
any manner. The same applied to the hospital notes that K.  had
stress due to “
family issues
”, which was disproved
by a CT scan of the brain.  The further cross-examination of the
plaintiff revealed that:
K.’s younger sister, K.,
received certificates of excellence at school which could be proved
by documents; that K.  was
very active prior to the accident in
question, interacted well with other children, was a bubbly child,
laughed, played a lot outside
her home, and was talkative. However,
all of this changed after the accident, resulting in K.,
inter
alia
, no longer watching TV, no longer being remarkable at the
day centre, and not returning to school after the accident where she
was in Grade R.  In regard to K.’s other younger sister,
K., the plaintiff testified that this child was a busy baby.
In
the motor vehicle which occurred when K. was eight months old, K.
was not injured at all.  The plaintiff’s
in-laws
took care of K. when the accident happened, and the plaintiff was
unsure whether K.  was hospitalised after this 2008
accident.
[15]
Possibly the two most important and relevant witnesses to testify for
the plaintiff, and in regard to the defendant’s
alleged
defences, were Dr C M Lewer-Allen, a neurosurgeon (“
Dr
Lewer-Allen
”),
and Ms M A Gibson (“
Gibson
”),
a neuropsychologist. It must be recalled that the defences of the
defendant on the disputes issue, was that the head injury
was not
serious (mild); that the injuries sustained by K. when she was eight
months old could still have certain
sequelae
in K.
’s present complaints; and that the stress based on “
the
family issues
”,
could also be a contributory factor.
[16]
First, Dr Lewer-Allen.  Not only did Dr Lewer-Allen prepare a
report after he assessed K.  during February 2015,
but he also
compiled a joint minute with his counter-part, Dr Jaap Earle (Dr
Earle) on 17 April 2016.
[17] The
divergence in the opinions of Dr Lewer-Allen, and Dr Earle, was based
firstly, on whether there was a head injury, and
if so, whether it
can be classified as mild or moderate.  Secondly, whether such
head injury could have any detrimental effect
on K.’s further
career progression, and earning capacity. In arriving at the
conclusion that K.  has in fact suffered
a significant head
injury which would affect her future career progression, and earning
capacity, Dr Lewer-Allen, properly also
deferred to the expert
opinions of neuropsychologists and educational psychologists.
[18] The
conclusion of Dr Lewer-Allen, when he testified, was based on the
following aspects of the evidence:  that according
to the
plaintiff and K., K.  could not recall anything about the
accident even the morning thereafter when she woke up in
bed at home;
K. ’s teacher in the year following the accident, in Grade 1,
observed absence seizures; that K. had to re-do
Grade 3 for reasons
advanced by the plaintiff; that K.  was referred for an
assessment at the Coronation hospital during August
2008 (the year in
which she repeated Grade 3), and which assessment revealed that K. ’s
IQ fell within the borderline range,
and that she would benefit from
psychiatric medication to alleviate concentration and attention
deficits, and a recommendation
that K.  be placed in a remedial
school instead; that K.  was also admitted to the Rahima Moosa
Mother and Child Hospital
during April 2010 after she had fainted at
school for the second time, where she was admitted overnight for
observation followed
by a diagnosis of epilepsy; that the diagnosis
made in the casualty department would amount to the classification of
the severity
of the head injury as probably moderate; Dr Lewer-Allen
unequivocally criticised the classification of the severity of the
head
injury on the basis of the hospital records only (as opposed to
Dr Earle’s opinion), since such basis excluded any reference
to
the long-term
sequelae
, such as neurocognitive and
neuropsychological deficits;  in the opinion of Dr Lewer-Allen,
the reliable degree of the severity
of brain injury is to be measured
against the severity of the neurocognitive and neuropsychological
deficiencies ultimately proven
to be present after maximum medical
improvement, and his opinion is endorsed by the following:  the
AMA Guides to Impairment
Rating; NHS Personnel in the UK by NICE;
Dr Lewer-Allen opined that the severity of a brain injury should be
divided into
(a) the severity of the injury or injury diagnosis, as
against (b) the severity of the outcome, or outcome diagnosis; Dr
Lewer-Allen
contended for the formal neuropsychological assessment in
order to determine the outcome diagnosis, at the time of his
assessment
of K. , Dr Lewer-Allen had at his disposal the reports of
Ms Gibson, and that of Dr R Hovsha, a clinical psychologist (for the
defendant); and finally, in evidence-in-chief, Dr Lewer-Allen
confirmed his assessment of the extent of the brain injury sustained

by K.  during the accident, as a significant one.
THE
JOINT MINUTE OF THE NEUROSURGEONS
[19]
Prior to dealing with the cross-examination of Dr Lewer-Allen, it is
useful to refer to the contents of his joint minute with
Dr Earle.
The joint minute noted the history of K. having sustained a head
injury pursuant to the motor vehicle accident in question;
although
it was agreed that it was unclear whether K. was unconscious or not
at casualty, it was noted that according to the hospital
records, K.
had no recollection of the accident a day thereafter.  The
experts also noted and recognised the casualty
department’s
diagnosis of the severity of the head injury was interpreted as being
mild (Dr Earle) or mild to moderate (Dr
Lewer-Allen).  Finally,
the experts agreed that the psychometric report, which was done some
four years post the accident,
was done apparently because of K. ’s
poor academic performance.  The psychometric assessment
determined that K.  was
in fact performing below her age group,
and had decreased concentration levels.
THE
CROSS-EXAMINATION OF DR LEWER-ALLEN
[20] I
revert to the cross-examination of Dr Lewer-Allen. Numerous questions
and versions were put to him.  However, at the
end thereof, he
remained adamant and well-steeped in his opinion.  In the
opinion of Dr Lewer-Allen, the abrasions meant that
the skin was
rubbed until it became raw, and that is what was recorded in the
casualty department of the hospital; the emotional
assessment on
which the defendant based some of its contentions, was carried out in
2008, which was some four years pursuant to
the accident; the
investigations in April 2010, which resulted in the prescription of
epilepsy medication, occurred some 6 years
after the accident; the
running nose symptoms displayed by K. , created the possibility that
it may have been caused by a base
of skull fracture;
[21] In
his assessment of K., and during the interview, Dr Lewer-Allen, at
paragraph 5, p 6 of his report, noted as follows:
“
The
plaintiff was fully conscious and orientated.  She appeared to
have a blunted affect and she did not strike a rapport with
the
interviewer.  She was however dominated by her mother in the
interview and her answers appeared guarded.
”
The
cross-examination delved into this aspect. Dr Lewer-Allen testified
that his observation of K. in court (as he was in court
during the
plaintiff’s evidence as well as K.’s evidence), while she
was giving evidence was that she was also not
readily forthcoming and
pervasive.  In regard to K. not recalling the accident, he
testified that this showed that K.  was
not fully conscious.
If she did not have such memory, it meant that the brain was not
functioning normally.  She suffered
a moderate brain injury.
However, in his view, and based on certain literature, the loss of
consciousness/post-traumatic amnesia
is not the crux of the enquiry,
a patient can have brain damage without any loss of consciousness.
In short, the severity
of a brain injury cannot be determined by
merely looking at the loss of consciousness and the Glasgow, Coma
Scale (“
GCS
”).  One has to look at the
outcome of the maximum medical improvement after the incident.
At the conclusion of
his cross-examination, he also answered certain
questions put to him by the court.
[22] Ms
Gibson testified.  Not only did she corroborate substantially
the opinion of Dr Lewer-Allen, but she went further.
For
example, for her view, and based on the tests, the assessment,
collateral information, and the fact that K. physically injured
her
head, justified the conclusion that K.  sustained a serious
brain injury, with permanent
sequelae
.  More about this
later.
[23] Ms
Gibson also prepared a joint minute with clinical psychologist (with
special interests in neuropsychology) Dr R Hovsha (“
Dr
Hovsha
”), of the defendant.  In the joint minute,
there was agreement:  that K. would probably have been of
average intellect,
if not for the accident; a strong factor in K. ’s
background, is that her parents were supportive and both had made
positive
progress in their occupations; whilst Ms Gibson expressed
the view that K.  had the potential to complete matric and
progress
to tertiary education and be fully employable, Dr Hovsha
deferred to Ms Gibson in this regard; it was also agreed that the
head
injury was assessed as minor on the statutory medical form, but
agreed that the assessment of head injury is a complex matter in
this
case because (a) K.  was only 5 years of age when injured, (b)
brain injury can occur even in the absence of evidence
of loss of
consciousness and (c) that even if there is loss of consciousness and
more specific indication of brain injury, the
outcome of the brain
injury is highly individual and variable.  It was also agreed
that the best assessment of the outcome
of brain injury is long-term
post-morbid functioning.  More significantly, it was agreed that
in the case of K., there were
numerous neurocognitive deficits
consistent with brain injury identified.  These included,
auditory attention, concentration
and mental tracking, working
memory, sustained attention, recall, mental control, motor speed,
initiation of activities, self-monitoring
and learning, as well as
dyscalculia as found by Ms Gibson. It was further agreed that K.
presented with personality and
behavioural changes consistent
with traumatic brain injury, and that neuropsychological tests
profile were consistent with at least
moderate diffuse brain injury,
or brain injury involving the left, temporal and frontal lobes.
The joint minute noted the
reports of continuing difficulties, such
as headaches, blackouts and dizziness. Indeed, the concluding
paragraph of the joint minute
was also crucial. For therein it was
agreed that the neuropsychological difficulties presented by K.
post-accident, are permanent,
and that as a sub-adult, are
likely to continue to manifest in abnormal or slow brain development,
in particular with regard to
executive functioning, and the ability
to cope with abstract conceptional information, as well as more
complex academic demands.
It was agreed that the identified deficits
will have specific effects on K.’s functioning, educability and
employment. More
relevant too, it was agreed that K. is likely to
find educational limits early (i.e. she is unlikely to pass Grade 12)
and she
will therefore be excluded from many areas of study and
development, and that K.  is likely to be trained for employment
at
a low level.  Finally, and of some relevance here, it was
agreed that K.  has suffered substantial loss of amenities.
[24] In
cross-examination, Ms Gibson testified that:  there was no
evidence of a connection between the 2008 motor vehicle
accident, and
the accident under discussion.  She gave credible reasons for
this view; in regard to the alleged family social
and stress issues,
there was no basis of any unusual family circumstances, and that
family stresses are endemic by nature, all
have them; it is possible
that K.’s mother may not have recognised the neurocognitive
deficits that Ms Gibson found on testing
if they had been present
before 2004, but with a child of 5 years, the best source of
information about the functioning of the
child, is the mother.
[25] In
reference to Dr Earle’s opinion as expressed in the joint
minute, namely that K.  sustained a mild traumatic
brain injury,
which is of no significance at all, Ms Gibson disagreed, but instead
agreed with Dr Lewer-Allen.  She was adamant
that the most
likely cause of K.’s problems now is the brain injury.  In
her view, a neuropsychologist has as much authority
and capability to
diagnose brain injury.  She criticised the reliance on hospital
records only without reference to the long-term
consequences of the
injury. In her respectful opinion, Dr Earle omitted to look at this
case in its entirety.  For example,
Dr Earle ignored the poor
performance at school post-accident, the 2008 assessment, as well as
the later assessments which were
carried out.  It is impossible
to conduct similar tests pre- and post-accident, as it is not
possible to have a pre-accident
assessment.  That both she and
Dr Hovsha conducted the same tests, and came to the same conclusion
that there is no
nexus
between the collision and the present
profile of K..  In fact, there was no disagreement between the
two neuropsychologists.
This question of non-disagreement
between the experts is significant in the light of the submissions
made on behalf of the defendant
in the written heads of argument, as
discussed later.  This is so, based on the several joint minutes
presented in this case.
[26] Ms
Gibson, on the contentious issue of whether or not K.  was ever
unconscious, testified that it is very difficult to
assess a 5 year
old child’s level of consciousness in the circumstances of this
case. It is necessary to have regard to what
occurred before and
after the accident.  A normal electroencephalography (“
EEG
”)
shows electrical functioning of the brain at a certain point in time
only.  It is an adjunct test to assist the clinician
to make a
diagnosis.  The EEG does not exclude epilepsy, as conceded by Dr
Earle in his report.  The diagnosis of epilepsy
is a clinical
one.  A normal computed tomography (“
CT
”)
scan, similarly to an EEG, does not exclude the diagnosis as further
investigation is required to identify the problem.
A major
function, as a neuropsychologist, is to investigate the severity of a
brain injury where the first indication of a more
severe injury
follows later.  The role of a neurosurgeon is more significant
when the brain injury is apparent at the outset.
The “
absences
”
ascribed to K., appeared to be some form of epilepsy and not caused
by the so-called family stress issues as the defendant
seemed to
suggest.  There would be no cause for a referral for a CT brain
scan for family stresses.  The family stresses
contended for by
the defendant, would make no difference to her conclusion about the
severity of K. ’s brain injury.
THE
EVIDENCE OF DR Z MAHOMEDY
[27] I
deal briefly with the report of the psychiatrist, Dr Mahomedy. It is
again significant for the observation made about the
defendant’s
manner of conducting the litigation, and the final conclusion
reached, that, in the third day of the trial, the
defendant agreed
that the report of Dr Mahomedy be handed up unopposed, as evidence of
the contents thereof.  As a consequence,
it became unnecessary
for the plaintiff to call the witness.  In her report, Dr
Mahomedy recorded that K.  had symptoms
suggestive of epilepsy,
which prompted her to carry out a more specific enquiry in order to
determine further symptomatology.
The doctor recorded that K.
“
blanked out
” at some stage of the
assessment when K.  just stared into space and was obviously
unaware of her surroundings. After
calling her repeatedly, K.
appeared to “
come back
” into the
discussion.  As a consequence, Dr Mahomedy concluded that K.
met the criteria for a diagnosis of mild
neurocognitive
disorder due to traumatic brain injury.  Dr Mahomedy also
diagnosed K.  with the following diagnosis according
to the
Diagnostic and Statistical Manual of Mental Disorders V (American
Psychiatric Association):  depressive disorder due
to another
medical condition with major depressive-like episodes; mild
neurocognitive due to traumatic brain injury with behavioural

disturbance; head injury; and post-traumatic epilepsy.  Indeed,
the unchallenged report of Dr Mahomedy remained a significant
factor
in favour of the plaintiff.
THE
EVIDENCE OF DR O GUY
[28] Dr
Odette Guy, a speech and language expert, testified for the
plaintiff.  The essence of his evidence, in brief, was
that:
K.  presented with a speech, language and communication profile
that had areas of inadequate and limited functioning;
the discourse
difficulties noted, are often detected in children who have suffered
injuries prior to the age of 6 years; discourse
difficulties often
become increasingly evident, as the demand increases; and that, the
high level of language limitations, and
cognitive linguistic
expressive language concerns, would correspond with the findings of
Ms Gibson.  The cross-examination
of Dr Guy was uneventful.
This was not surprising in the absence of counter-expert evidence.
In my considered view,
the same observation should apply to the rest
of the plaintiff’s expert witnesses.  These included, Ms
Lindah Möller,
educational psychologist; Ms Mariana Olivier,
occupational therapist; Ms Christa du Toit, industrial psychologist;
and Mr Wim Loots,
actuary.  There were joint minutes of the
industrial psychologists (and an addendum); the neuropsychologists;
educational
psychologists; neurosurgeons; and actuaries.
[29] The
only witness for the defendant was neurosurgeon, Dr Earle. He
assessed K.  on 21 September 2015.  As stated above,
Dr
Earle also compiled a joint minute with Dr Lewer-Allen on 17 April
2016.  Dr Earle testified on his report, assessment,
and
findings.  In his view:
“
This
child suffered a very mild brain injury from which no ill-effects are
expected or could be demonstrated.
”
The
report went on to state that:
“
The
fact that she is not doing well at school although she has only once
failed is not accident-related neither are blank spells
which could
be a form of petit mal and not the grand mal attack that one gets
with brain injury.  She should then be able
to complete her
schooling as she would have done without any injury whatsoever and
her poor schooling which she reports is not
due to the accident.
By the same token she should eventually follow the career of which
she would have been capable of in
any case.
”
[30] From
both his report and evidence, it was plain that Dr Earle’s
opinion is in direct contrast with those of both Dr Lewer-Allen
and
Ms Gibson on the nature and extent of the head injury.  He was
persistent that K.’s injury is a very mild brain
injury, which
is so minor with no significant
sequelae
of whatsoever
nature.  His opinion was based on the casualty department
hospital records and his interview with the plaintiff
and K.. He
opined that in regard to the “
casualty diagnosis
”
that there are two components. These are that, a patient’s
level of consciousness (GCS) and post-traumatic amnesia.
In his
opinion, K.’s GCS was normal in the casualty ward of Chris Hani
Baragwanath hospital.  Whereas Dr Lewer-Allen
used the Russel
criteria in determining post-traumatic amnesia, Dr Earle preferred
the World Health Task Force criteria.
In terms of the latter
criteria, post-traumatic amnesia of less than 24 hours equates to a
mild brain injury, which is applicable
in the instant matter.
He disagreed that the outcome diagnosis is the correct manner to
diagnose the severity of a head injury.
A pre-accident similar
report must be available, but there almost never is such pre-accident
similar report. It is extremely incorrect
to base conclusions on
causation on the basis of these reports.  Once more, the opinion
is in conflict with the opinions of
Ms Gibson and Dr Lewer-Allen.
THE
CROSS-EXAMINATION OF DR EARLE
[31] In
cross-examination, Dr Earle made certain concessions.  For
example, he agreed with the general proposition that the
outcome
diagnosis is important to consider what the effects of a head injury
are.  He also agreed with the general proposition
that an expert
witness is expected to table the facts or assumptions on which
his/her opinion is based, and that an expert is not
expected to stray
outside his/her field of expertise, and ignore other relevant and
collateral information.
[32] It
was not in dispute that at the time of his assessment of K. , Dr
Earle had available to him only, the EEG carried out at
his clinic;
the RAF1 and MMF1 forms; the Chris Hani Baragwanath hospital records;
a 2008 psychometric report; Coronation hospital
records relating to
K.  shortly after her delivery in the neonatal ward, and a 2009
note in regard to a urinary tract infection.
Dr Earle, however,
admittedly, did not make reference to any other medico-legal reports
in this matter which were available to
him at the time of his
assessment. These reports included plaintiff’s expert reports
of Dr Lewer-Allen; Ms Gibson, Mr Lindah
Möller, Dr Mahomedy; Dr
Guy; Ms Mariana Olivier; and Ms Christa du Toit. In addition, Dr
Earle did not have reference to the
reports of the defendant’s
experts, which were also available at the time of his assessment of
K..  Further in addition,
the report of the defendant’s
educational psychologist, Dr Gumede, became available subsequently
but Dr Earle again had no
regard thereto.  Dr Earle testified
that the above reports were not given to him by the defendant’s
attorneys.
He also did not enquire about other sources of
information relevant to this case, or available at the time when he
compiled his
joint minute with Dr Lewer-Allen. Dr Earle, conceded in
cross-examination that he in fact failed to take into account
material
facts in his reports. He also conceded, significantly too,
that from the information at his disposal, it can be accepted that
the
normal EEG obtained at his rooms does not include the probability
of brain complications, and that on the basis of the notes and

reports available, to him, K., as a new born baby, had not developed
a systematic condition that could have led to secondary brain
damage.
He also conceded that there were various levels of consciousness
stretching from between comatose, on the one hand, and
fully
consciousness, on the other hand.
[33] For
his view that K.  was certainly fully awake and aware when she
arrived at hospital, Dr Earle said that the source
of the recordal
were the hospital records, only.  He did not make the entries on
any of those hospital records. He relied
solely on the author or
authors of those records.  He made assumptions in this regard,
and it is common cause that the author
or authors of the records did
not testify in the trial.  It is equally clear that Dr Earle,
for reasons not explained by him,
refused to make other crucial
concessions which he was expected to make in the circumstances of
this case, in particular, that
he failed, as an expert witness, to
consider certain vital information for the purposes of his report.
[34]
Again, for his view that, K.  suffered no more than a very mild
brain injury only with a facial abrasion and a normal
skull X-ray, Dr
Earle conceded that he relied completely on the correctness and
reliability of the casual ward’s hospital
records for his
opinion.  In his opinion, a skull X-ray is a simple routine
procedure when minors are injured in motor vehicle
accidents, and
that, it is not reasonable to opine that this is any indication of
the severity of the brain injury sustained.
Once more, for the
view that K.  suffered a mild traumatic brain injury with no
significant intellectual or negative deficits
at all, Dr Earle
confirmed that he relied on the hospital records.
[35]
Again on two crucial aspects, Dr Earle conceded not considering these
aspects.  The first is that K.  was at the
time of the
accident in Grade R from which the plaintiff received no negative,
but only positive feedback from the teachers. The
second aspect is
that, Dr Earle equally omitted to consider the available and
collateral information in regard to K.’s performance
and
functioning post-accident on the occasion when the Grade 1 teachers
called her mother to school in 2005, and enquired what
since went
wrong with K. .  It will be recalled that at this enquiry, the
teachers reported that K.  had blank-outs which
they never
observed before the accident; that K.  became a recluse, and no
longer sociable; that her school marks in Grade
3 dropped to
unsatisfactorily levels; that K. was referred to the Coronation
hospital, in 2008; that her mother was hugely concerned
about her
lack of progress or regression at school, and the medical doctors
recommended certain medication and placement in a remedial
school;
and that K.  was again referred to the Coronation hospital two
years later, i.e. in 2010.  Indeed, there are
other omissions of
vital information by Dr Earle.  Finally, Dr Earle was referred
in cross-examination to the reports of other
expert witnesses, who
were all in agreement about the severity of the brain injury (not
mild) sustained by K..  He, however,
maintained that other
explanations should be sought for K.’s fall outs and prior
performance.  He was not prepared to
concede that K.  may
fall into the 4% of patients who suffer mild brain injuries, on his
own criterion, and are left with
significant
sequelae
.
[36]
Prior to dealing with the actuarial or actuarial evidence, and the
evaluation of the entire evidence, it is necessary to deal
with some
legal principles applicable to the evidence of expert witnesses, in
particular, the evidence of Dr Earle.
SOME
APPLICABLE LEGAL PRINCIPLES
[37] The
general trite principles are briefly that, an expert witness is
employed to assist the court in deciding issues in which
the court
does not have the ordinary and requisite expertise; the opinion of an
expert witness must be well-grounded and reasoned;
the determination
of the probable value and weight of an expert witness’s
evidence, is not always about credibility; and
that judicial officers
should be careful not to allow the opinion of an expert witness to
take the place of their own finding of
fact.  In the present
matter, the difficulty is compounded by the existence of conflicting
expert opinions, i.e. that of Dr
Earle on the one hand, and the
opinions of Dr Lewer-Allen and Ms Gibson, on the other hand, as to
the extent of the head injury.
In addition, a large chunk of Dr
Earle’s opinion seemed to be based on either hearsay evidence
or the omission to have had
regard to relevant information.
[38] The
case of
Buthelezi v Ndaba
2013 (5) SA 437
(SCA), concerned the
differences in opinion between medical experts in the determination
of whether the operating surgeon was negligent
or not.  At para
[14] of the judgment, Brand JA, said:
“…
It
is true of course, as the court a quo accentuated in its judgment,
that the determination of negligence ultimately rests with
the court
and not with expert witnesses.  Yet that determination is bound
to be informed by the opinions of experts in the
field which are
often in conflict, as has happened in this case.  In that event
the court’s determination must depend
on an analysis of the
cogency of the underlying reasoning which led experts to their
conflicting opinions.
”
See also
Medi-Clinic v Vermeulen
2015 (1) SA 241
(SCA) at paras [4] and
[5], and
Schneider NO and Others v AA and Another
2010 (5) SA
203
(WCC) at 211E. In regard to the undesirability of an expert
witness relying on hearsay evidence, see
Nicholson v Road Accident
Fund
2012 JDR 0672 (GSJ) at para [4].
THE
APPLICATION OF THE LEGAL PRINCIPLES
[39] In
applying the above legal principles to the facts of the present
matter, it is clear that the opinion of Dr Earle was not
founded on
logical reasoning, for a number of reasons as alluded in regard to
both his evidence-in-chief and cross-examination.
Dr Earle was
unreasonably inflexible and rather dogmatic in his views.  I
almost gained the distinct impression that he was
partisan which
affected partly his credibility. As stated before, his opinion was
based on limited information, and he omitted
to have reference to
material, collateral and available information.  He relied on
the contents of the hospital records, which
were not proven in
evidence.  He was driven in cross-examination to make certain
significant concessions which militated against
the acceptance of his
opinion on the disputed issue of the extent of the head injury.
It was difficult to accept that the
head injury, even of mild nature,
cannot have negative effects on a minor of 5 years old.  The
evidence demonstrated that
K.’s mother was extremely distraught
at the fact that K.  was discharged from hospital on the same
day of the accident.
This could only point to the inadequacy
and unreliability of the hospital records, as proved later.  Dr
Earle’s opinion
was clearly not well-grounded, logical,
reasonable and properly reasoned. This is not a matter of the court
simply preferring one
expert opinion to the other. However, on the
other hand, the views of Dr Lewer-Allen and Ms Gibson were not only
complimentary,
but were also well-founded, logical and
well-reasoned.  Ms Gibson, in particular, impressed as a
knowledgeable and experienced
expert witness in her field of
expertise.  She was objective and unbiased in her opinion. The
criticisms levelled by the defendant’s
counsel against Ms
Gibson’s opinion, as well as Dr Earle’s criticism of the
neuropsychologists, educational psychologists,
speech and language
expert, and plaintiff’s psychiatrist, were all without merit,
in my view.  These experts all considered
the question whether
there could be another plausible explanation for K. ’s
fall-outs, but then concluded by majority that
the fall-outs is as a
result of the brain injury.  There is authority for the
proposition that, in circumstances such as the
present, the opinion
of a neurologist, such as Dr Earle, may be overlooked or rejected by
the court. I conclude therefore that
the plaintiff has proved, on a
balance of probabilities, that K.  has suffered a significant
head injury caused by the accident
in question.  I can put it no
higher than a mild to moderate head injury.
[40] I
now turn to the quantification of the plaintiff’s claim for
loss of earnings and earning capacity, as well as the applicable

contingencies deductions to be applied thereto.    Mr
W Loots testified for the plaintiff.  He, as an actuary,

prepared an actuarial report on 15 April 2016.  He had been
provided with the joint minutes of the industrial psychologists
dated
11 June 2015 and 17 June 2015, as well as a second addendum joint
minute dated 18 June 2015.  In addition, Mr Loots
prepared a
further report on 3 June 2016.
[41] In
short, in regard to the pre-accident earnings information under the
headings, “
SCENARIO 1
” and “
SCENARIO 2
”,
respectively, are in accordance with the information contained in the
joint minute of the industrial psychologists.
The post-accident
earnings information on which Mr Loots based his calculations,
accords with the contents of the addendum joint
minute of the
industrial psychologists.  Mr Loots demonstrated results for
contingency deductions of 20% to the pre-accident
earnings scenario,
and 30% to the post-accident earnings scenario, alternatively, 25% to
the pre-accident earnings scenario, and
35% to the post-accident
earnings scenario.  The cross-examination of Mr Loots was
uneventful.  More about his calculations
later below. The
defendant’s actuary was not called to testify since she was
reported to be on maternity leave.  In
addition, in closing
argument, and in its heads of argument, the evidence and calculations
of Mr Loots were not seriously challenged,
save to the extent of the
divergence expressed in the original actuarial joint minutes.
In any event, the defendant’s
actuary, as mentioned, did not
testify.
[42]
Based on Mr Loots’ quantification, it was contended on behalf
of the plaintiff, that it will be just and fair to both
parties for
the court, to accept, for quantification purposes, that it is equally
likely that the plaintiff (K.), pre-morbidly,
would have attained a
degree as it is that she would have attained a diploma. On the same
basis, it was submitted on behalf of
the plaintiff that it will also
be fair to both parties for the court to accept, for quantification
purposes, that it is equally
likely that the plaintiff, post-morbidly
may now attain a Grade 12 (matric), without exemption as it is that
she may attain only
Grade 11.
[43] The
calculations of Mr Loots, as encapsulated in Scenarios 1 and 2, were
presented as follows:
Scenario 1A (CDT)

R 4 402 389,00
Scenario 1A
(HTK)

R 4 279 373,00
Scenario 1B
(Dipl/Grade 12)

R 4 126 976,00
Scenario 2A
(CDT)

R 7 320 863,00
Scenario 2A
(HTK)

R
7 194 868,00
Scenario 2B
(Degree/Grade 12)
R 7 038
274,00
R34 362 743,00
÷
6
=
R  5 727 123,83
[44] The
average of the above calculation is about R5 727 123,83 (five million
seven hundred and twenty seven thousand one hundred
and twenty three
rand and eighty three cents only), since it is not readily plausible
to choose between the various scenarios.
[45] It
was also submitted on behalf of the plaintiff that Mr Loots’
above calculations should be used with the illustrative
contingencies
of 25% for pre-accident, and 35% for post-accident.  The
illustrative contingencies are indeed on the high side,
in
particular, in respect of the pre-accident scenario.  This, the
court debated with Mr Loots during his evidence. To him,
the value of
the contingency is important, and more particularly, the difference
between the pre-accident, and the post-accident
contingency.
The higher contingencies are more conservative.
However, upon a careful consideration of all
the circumstances of
this case, I am of the view that the calculations are justified and
fair.  The amount of R5 727 123,83
ought to be awarded to the
plaintiff in respect of loss of earnings and earning capacity.
In this regard, the epilepsy condition
of K., and the tender age,
remain significant factors, to say the least.
[46] I
revert to the manner in which the defendant ran the litigation, as
alluded to above.  The defendant raised the three
basic
defences, (a) that the head injury is insignificant, (b) that the
previous accident contributed to the present
sequelae
, and (c)
that “
family issues and stress
”, contributed to
K.’s post-accident problems.  All these defences had no
merit at all, and not proved.  As
a consequence, the plaintiff
was compelled to call almost all of her witnesses, during which the
so-called defences faded away,
one after the after, in the face of
the credible expert evidence.  During the course of the trial,
the report of one of the
plaintiff’s witnesses, Dr Mahomedy,
was eventually admitted without the need for her to testify.  It
may indeed be so,
as contended for by the defendant’s counsel,
that the defendant was not bound by the views of its own experts.
However,
to challenge the plaintiff’s evidence, to compel the
plaintiff to call all of her available witnesses, and thereafter, to

present no countering factual and expert evidence, was not reasonable
in the circumstances. I mention these issues simply since
they have a
bearing on the costs of the trial.  In my view, and in the
exercise of my discretion, a costs order on the scale
as between
attorney and client will be justified.
ORDER
[47] In
the result the following order is made:
47.1
The draft order annexure “X”, as amended, initialled and
signed by the court, and
attached to this judgment, is hereby made an
order of court.
47.2
It is specifically clarified that the defendant shall pay the costs
of suit on the scale as between
attorney and client.
__________________________________________
D
S S MOSHIDI
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
COUNSEL
FOR THE PLAINTIFF
J F GROBLER
INSTRUCTED
BY

LEVIN VAN ZYL INC
COUNSEL
FOR THE DEFENDANT        MS N
MABENA
INSTRUCTED
BY

NINGIZA HORNER ATTORNEYS
DATE OF
HEARING

7 JUNE 2016
DATE OF
JUDGMENT

16 SEPTEMBER 2016