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[2016] ZAGPJHC 314
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N v Road Accident Fund (07245/2015) [2016] ZAGPJHC 314 (15 November 2016)
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REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
07245/2015
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
N
S
N
P
laintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
KATHREE-SETILOANE
:
[1]
The plaintiff sues the defendant for damages arising from injuries
which he sustained in a motor vehicle collision, which occurred
on 27
September 2013. The merits of the claim have been settled. The only
issue for determination is the quantum of plaintiff’s
claim.
[2]
The defendant has agreed to furnish the plaintiff with an undertaking
in terms of
s 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
in
respect of his future medical expenses. It has also agreed to pay the
plaintiff the sum of R500 000.00 in respect of general
damages for
pain and suffering, loss of amenities of life, disfigurement and
disability. The only issue that remains for determination
in so far
as the quantum of plaintiff’s claim is concerned is damages for
loss of earning capacity.
[3] The plaintiff
presented the court with expert reports of the following expert
witness:
Dr
Frey (orthopaedic surgeon); Ms Rice (neuropsychologist); Prof Chait
(plastic surgeon); Ms van der Walt (occupational therapist);
Dr
Shevel (psychiatrist); Mr Peverett (industrial psychologist); Mr
Munro (actuary). The contents of the expert reports of the
orthopaedic surgeon, occupational therapist, plastic surgeon and the
actuary were admitted by the defendants. The defendant did
not rely
on any medical experts and called no witnesses in support of its
case. The expert reports of Ms Rice (neuropsychologist)
and Mr
Peveritt (industrial psychologist) were in contention and they gave
testimony at the trial in support of the plaintiff’s
case.
[4]
It is common cause that the plaintiff sustained the following
injuries from the accident: head injury with loss of consciousness;
left eye injury; cervical spine injury; lower back injury; fracture
of the right femur, fracture of the left tibia plateau; and
fracture
of the left ankle. He had surgery to his right femur and left tibia.
Open reduction and internal fixation of the right
femur with an
interlocking nail was performed and his tibia was fixed with plates
and screws. Since the accident, the plaintiff
has alteration in
mental status and cognition He also suffers headaches, memory loss,
lack of attention, mood changes and is depressed.
It is furthermore
common cause that the plaintiff will be unable post-accident to do
physically demanding work as this will place
stress on his back and
legs. He would, in this regard, struggle to walk and stand frequently
and would not cope with climbing stairs,
step ladders or work at a
level below the knees. He is best suited to doing sedentary to
light work with basic and familiar
cognitive demands, provided he is
able to secure such employment. His current work abilities are not
conducive to working as a
supervisor or invigilator due to his
mobility restrictions and his cognitive difficulties. This will make
it difficult for him
to compete equally on the open labour market for
appropriate employment.
[5]
The only issue in dispute concerns the question of whether the court
can accept the expert opinion of the plaintiff’s
neuropsychologist, Ms Rice, in relation to the nature and severity of
any head/brain injury which he sustained as a result of the
collision, in the absence of evidence from a neurosurgeon or a
neurologist on that aspect.
[6]
Ms Rice’s qualifications are not in dispute. She is a
registered Clinical Psychologists with the Health Professional
Council of South Arica (HPCSA). She holds a specialized Masters of
Arts degree in Neuropsychology as well as a Masters of Science
degree
in Psychology from the University of Witwatersrand (Wits University).
Her MA (Neuropsychology) allows her to perform highly
specialized
work for people experiencing neuropathology, including traumatic
brain injuries and other neurological deficits or
diseases.
[7]
Ms Rice is only registered as a clinical psychologist with the HPCSA,
yet she has practiced as both a neuropsychologist as well
as clinical
psychologist for the past four years. Ms Rice’s testimony for
this state of affairs is broadly this. In anticipation
of the HPCSA
promulgating regulations recognizing neuropsychology as a separate
discipline, Wits University and the University
of Cape Town (UCT) had
each offered a Masters of Arts degree in neuropsychology. Ms Rice was
one of six students who was accepted,
and read, for this degree in
2012 at Wits University. The HPCSA had, however, failed to promulgate
the anticipated regulations.
Both Wits University and UCT,
nevertheless, permitted students to complete the degree, provided
that they also completed the requirements
for a clinical psychology
degree. This additional requirement enabled successful graduates to
register with the HPCSA as clinical
psychologists yet practice as
neuropsychologists. Currently, graduates with a Master’s degree
in neuropsychology are still
unable to register as neuropsychologists
because the regulations are yet to be promulgated.
[1]
Ms Rice is also an accredited member of the South African
Neurological Association (SACNA).
[8]
Miss Rice testified that Neuropsychology is recognised as a
specialist discipline in many areas of the world, including the
United States, the United Kingdom, Europe, Australia and New
Zealand. Neuropsychologists assist in the diagnosis and
treatment
of brain related problems such as memory, attention
deficits, impaired reasoning, visio-spatial functioning and the like.
Neuropsychologists
are often able to match certain problems to
certain areas of the brain, for example frontal lobe damage which is
likely to lead
to problems with the higher order of brain
functioning. She explained that although she had deferred to a
neurosurgical and/or
neurological opinion regarding the nature and
severity of the plaintiff's brain injury, her vigorous training as a
neuropsychologist
qualified her to assess the nature and severity of
such an injury. She said that in her experience, it was not unusual
for a neurosurgeon
to alter the assessment of the nature and severity
of brain injury, based on a neuropsychologist's opinion. She listed
the common
indicators of brain injury severity to include the
impairment of a patient’s level of consciousness as measured by
the Glasgow
Coma Scale (GCS) and the duration of a patient’s
post-traumatic amnesia.
[9] Ms Rice assessed the
plaintiff as having sustained a mild concussive head injury as a
result of the collision. Her evidence
was that she able to assess the
nature and severity of this injury by evaluating the plaintiff’s
reported symptoms and complaints
after the collision as well as other
collateral information such as hospital records. She testified that
the hospital records provided
evidence of a head injury as they gave
an initial GCS score of 15/15 on arrival at hospital on 27 September
2013. This was in keeping
with a mild head injury. The hospital
records also indicate that on examination at the hospital, the
plaintiff was found to have
right upper eyelid and multiple scalp
lacerations, which were sutured. This indicated to her that he
had suffered a blow
to his head. She said that there was also
evidence from the hospital records of brief post traumatic amnesia
which would indicate
that the plaintiff did sustain a concussive
brain injury,
which is a physical injury to the
brain that causes a disruption of normal functioning.
In this regard, she testified that:
‘
1.e.1
[The plaintiff] reported that he can remember the impact, but he
claimed to have been rendered unconscious thereafter.
1.e.2 His first memory
after the accident was allegedly of being stuck in the car, which was
seemingly a short while after
the collision.
1.e.2.1
The duration of the primary PTA implies a mild concussion.
1.e.3 After coming to his
senses, [the plaintiff] remembers being in severe pain and that his
left ankle was trapped under the clutch
and/or brake. He remembers
his wife being extricated from the car and he vaguely remembers the
paramedics cutting him out of the
car with the Jaws of Life. His
memory of events in the car and the ambulance is patchy and hazy.
1.e.3.1
The duration of secondary PTA implies a mild concussion.’
[10]
Ms Rice emphasized that her deference to a neurosurgeon or
neurologist in her medico-legal report, had one been available,
related only to the nature and severity of the brain injury and not
to the sequelae or consequences thereof. She maintained that
although
traditionally it is accepted for neurosurgeons and neurologists to
diagnose the nature and severity of brain injury, she
was also
trained to diagnose a mild head injury and to assess its functional
impact, where such dis-function is suspected. She
said that a mild
brain injury is often initially diagnosed by evaluation of the of the
symptoms that a person reports after sustaining
the injury. The
assessment, she testified, is comprised of a wide range of tests that
objectively measure specific brain functions.
Testing includes a
variety of different methods for evaluating areas like attention
span, orientation, memory, concentration, language
(receptive and
expressive), new learning, mathematical reasoning, spatial
perception, abstract and organizational thinking, problem
solving,
social judgment, motor abilities, sensory awareness, and emotional
characteristics and general psychological adjustment.
[11] In response to a
question, from counsel for the defendant, relating to the absence of
neuroimaging, she responding by stating
that
due
to the diffuse and subtle nature of mild brain injury, it is common
for typical neuroimaging (CT scan or MRI’s) to show
no evidence
of injury. In this regard, she said that the limitation of brain
imaging technologies is that they often cannot detect
mild injury,
and hence such imaging is not essential for the diagnosis of a mild
brain injury.
[12]
Ms Rice also took into account the plaintiff’s pre-morbid
functioning as well as his functioning at the time of the interview
in order to determine the impact of the injury on their functioning.
She said that there was no history of psychiatric illness
or
significant psychological problems prior to the accident. On the
basis of his educational and occupational history, as well
as his
neuropsychological test profile, she said he was of average
intellectual abilities pre-morbidly. She noted that the plaintiff
failed standard 8, but said that this was due to insufficient focus
on his schoolwork and did not reflect lowered intellectual
abilities
pre-morbidly.
[13]
Ms Rice testified that despite the classification of the nature and
severity of the plaintiff’s head injury as mild,
the plaintiff
suffered neurocognitive difficulties as a consequence thereof. In
particular, she testified that the predominant
pattern of the
plaintiff’s test results indicated frontal lobe involvement and
executive dis-function. In particular, she
found that his memory,
attention, concentration, multitasking, processing and reasoning
skills had been negatively affected. She
said that there was also
evidence of poor verbal and visual learning and memory, as well as
construction difficulties and reduced
visual and spatial awareness.
She said that the plaintiff’s concussive head injury would have
contributed to these deficits
or difficulties.
[14]
In relation to the emotional and behavioural impact which the brain
injury has on the plaintiff, she said that he is objectively
depressed, has a mood disorder (chronic mild-to-moderate depression
with features of post-traumatic stress disorder) due to his
general
medical condition (multiple orthopaedic injuries with ongoing pain
and physical deficits, as well as unsightly scarring).
[15] In relation to the
plaintiff's employment capacity and anticipated future loss of
earning capacity, Ms Rice testified that
his occupational functioning
seems to have been affected by his cognitive and emotional symptoms,
as well as his pain and physical
status. She said that based on his
cognitive difficulties, he will likely be more restricted to
repetitive work. She concluded
that overall his capacity for
employment has been negatively affected by the accident, and that he
is no longer an equal competitor
on the open labour market.
[16]
It is undisputed that Ms Rice is a clinical psychologist with the
added qualifications and expertise as a neuropsychologist.
She is an
accredited member of SACNA.
It
requires accredited members to have both a neuropsychology degree as
well a clinical, educational or counselling psychology qualification
and to be registered with them for a continuously for two years
before they can be accredited to practice neuropsychology. These
additional requirements are required pending the promulgation of a
register for neuropsychologists.
[2]
T
aking
into account the presence of indicators and symptoms consistent with
a mild brain injury in the plaintiff as well as the the
hospital
records, I find that Ms Rice was had sufficient information before
her to assess the nature of severity of the plaintiff’s
brain
injury as well as the sequelae thereof, and that there was no need
for the plaintiff to adduce the expert opinion of a neurosurgeon
or
neurologists. Crucially, the defendant has failed to lead any
countervailing evidence of a neurologist or neurosurgeon to suggest
otherwise. I am accordingly satisfied that Ms Rice is appropriately
qualified to provide the court with an opinion on the severity
and
nature of the plaintiff’s brain injury as well as the sequelae
thereof for the purposes on assisting the court to arrive
at a
finding in relation to the plaintiff’s loss of earning capacity
as a result of the collision which he was involved in.
[17]
The plaintiff testified as to his educational history, work history
pre and post - accident as a machine operator and supervisor
as well
as an invigilator. Prior to the accident, the plaintiff worked as a
supervisor at Tech Lighting and Electrical (the factory),
which was
in the business manufacturing conduit pipes. He started working
at the factory in 2004. He was promoted from the
position of machine
operator in the trunking department to that of supervisor overseeing
the work of approximately sixty machinists
who worked under him. He
reported to the production manager. His job demanded both physical
and cognitive skills. It entailed large
amounts of walking and
standing to monitor and oversee the work of the machinists who were
scatted across different areas in the
factory. It also entailed
bending and crouching repair faulty machines. In addition, it
required him to record the daily productivity
of the machine
operators, as well as the presence of faulty machines. He said that
these tasks required concentration and ability
to remember
information. And that his failure to report a faulty machine would
have drastic consequences for the daily productivity
and could result
in receiving a written warning.
[18]
The factory went into liquidation about a month before the collision.
When the plaintiff was made aware that the factory was
going into
liquidation he looked for alternate employment. He applied to the
University of South Africa (UNISA) for a contract
invigilator post.
His was called for an interview on 5 October 2013 but was
unable to attend due to the injuries which he
sustained in the
accident. In May 2014, the plaintiff managed to find employment as a
machine operator at a factory in Port Shepstone,
KwaZulu Natal. He
was required to work at night, but was unable to manage due to the
pain he experienced. He was therefore only
able to work for two days
and had to give up the job and return to Johannesburg.
[19]
The plaintiff was fortunate in that UNISA employed him in a contract
invigilator post in October 2015. He was contracted to
invigilate
three times a year during examination periods only. He worked as an
invigilator during the October/November 2015 and
May/June 2016. His
contract ends in December 2016. He described the challenges
associated with the job of an invigilator as follows:
The students
write their examinations in large examinations halls, which
accommodate approximately 300 students per examination
session. The
invigilators are, therefore, required to do large amounts of walking
and standing.
[20]
He said that he was fortunate thus far because he has been
accommodated by being allocated register duty, where allows him
to be
seated at the table for the first part of the examination. He said
that before the examination begins, students are required
to enter
their details on tear sheets which are collected by the invigilators,
and handed to the invigilator on register duty.
This
invigilator then checks the eight- digit student no on the tear sheet
against the student number in the attendance register.
If the student
number on the tear sheet corresponds with the number on the register,
the student is marked present on the register.
The register has a
sticker with a corresponding student number. The register invigilator
is required to paste the sticker onto
the blank examination script
which is then handed to the student. Once the register invigilator
has completed the registration
process, he or she joins the other
invigilators in monitoring the students writing the examination. This
part of the job entails
walking around the hall. The plaintiff
testified that while he is coping currently with the invigilator job,
he is not sure that
he would cope in the future due to his mobility
restrictions and memory and concentration difficulties.
[21]
Mr Peveritt, the industrial psychologist quantified the plaintiff’s
earning capacity “but for the accident”
and “having
regard to” the accident. Mr Peverett testified that but for the
accident, the plaintiff would have
continued to be remunerated as a
supervisor of six machine operators until liquidation of the factory
in December 2013. He
said that it was probable that the
plaintiff would have sought alternative employment in a similar
capacity in his field of experience
as he had worked in that field
for nine years without interruption and had progressed from the
position of machine operator to
that of supervisor responsible for
overseeing a sixty workers. Mr Peverett concluded that given the
plaintiff’s work history,
it was probable that the plaintiff
would have continued along the same lines until retirement at age 65.
Significantly, Mr Peverett
had not indicated that the plaintiff would
have received any further promotions, but had assumed that the
plaintiff would have
continued working in the capacity of supervisor.
[22]
Having considered the medical reports of the orthopaedic surgeon, Dr
Frey, the neuropsychologist, Ms Rice and the occupational
therapist,
Ms van der Walt, Mr Peveritt concluded that having regard to the
injuries which the plaintiff sustained in collision,
and the
behavioural and cognitive sequelae flowing therefrom, the plaintiff
had been rendered functionally unemployable in the
formal employment
sector. Importantly, in this regard, he took into consideration the
opinion of Ms van der Walt, the occupational
therapist, that the
plaintiff’s current work abilities did not match his work as a
supervisor or invigilator due to his mobility
restrictions and his
cognitive difficulties. Ms van der Walt is of the opinion that the
plaintiff is less competitive on the open
labour market and that he
will find it difficult to re-enter employment.
[23]
In relation to his employment as an invigilator, Mr Peverett
testified that he would probably lose his job in a period of less
than five years due to his mobility and cognitive difficulties, in
particular his concentration, memory and attention deficits
which
could lead to dismissal for reasons of competence or incapacity. Mr
Peverett said that once the plaintiff loses his part
time job as an
invigilator, the best that he can hope for would be to secure
earnings in the informal sector earning between R0
and R6000,00 per
annum. Again, no serious challenge was presented to the Mr
Peverett’s testimony in cross examination.
[24] On consideration of
the expert evidence of the plaintiff’s medical experts, which
remains unchallenged, I find that the
plaintiff has been rendered
functionally unemployable within the formal sector (corporate and
non-corporate) Future employment
based on his experience and accessed
competence as a machine operator will be confined to work of a
technical, physical and manual
nature which he is physically no
longer able to do. From a neuropsychological point of view, the
plaintiff no longer presents with
the ability to supervise others or
learn a suitable alternative form of sedentary work at his
pre-accident level of functioning.
Accordingly, and in view of the
defendant’s admission of the plaintiff’s actuarial
calculations which are based on
the unchallenged evidence of Mr
Peverett (the industrial psychologist) I award the plaintiff an
amount of R2113 210,00 for loss
of future earnings. I applied a 10%
contingency on future income (uninjured) as the plaintiff has a
stable background which is
demonstrated by the fact that he remained
with the same employer for 9 years and received a promotion. I also
applied a 30% contingency
on future income (injured) as he is likely,
due to his cognitive and physical deficits, to lose his income as an
invigilator in
the coming five years. He is also likely, for the same
reason, to lose any income that he may receive working in the
informal sector.
Costs
[25] The plaintiff seeks
a punitive costs order against the respondent on the grounds that:
(a) The defendant had no
expert reports of its own, but refused at roll-call to admit the
plaintiff expert reports and to argue
the matter on the basis of
these reports;
(b) The defendant
declined to do so and continued to do.
(c) The reports of the
orthopaedic surgeon, the plastic surgeon, the occupational therapist,
the psychiatrist and the actuary were
uncontroversial yet the
defendant failed to admit them on the Friday, 12 August 2016, at roll
call;
(d) The real issue that
the defendant wished to place in dispute was the qualification of Ms
Rice, the neuropsychologist, to express
an opinion in regard to any
brain damage suffered by the plaintiff, in the absence of the report
of a neurologist or neurosurgeon;
(e) On Friday after (12
August 2016) the plaintiff arranged for the neuropsychologist; the
occupational therapist and the industrial
psychologists to attend
court on the Monday, 15 August 2016;
(f) Soon thereafter, on
that same afternoon, the defendant’s attorney advised the
plaintiff’s attorney that the defendant
was prepared to admit
all the plaintiff’s expert reports;
(g) On Monday morning,
the plaintiff’s attorney called the defendant’s attorney
to confirm this, but defendant’s
attorney informed her that the
defendant persisted in its denial of all the plaintiff’s expert
reports;
(h) The plaintiff’s
attorney then arranged for the plaintiff’s remaining experts
(apart from the actuary and plastic
surgeon) in respect of whose
evidence plaintiff’s attorney believed there could be
meaningful dispute, to be present
(i) Mr Frey, the
orthopaedic surgeon was informed that he had to testify and he was
compelled to cancel all the operations which
he had scheduled for
Monday, 15 August 2016;
(j) The matter was
allocated to me for trial on Monday, 15 August 2016;
(k) The defendant
admitted for the first time on Monday morning, outside my chambers,
that it was prepared to admit the reports
of the orthopaedic surgeon,
the occupational therapist and the plastic surgeon;
(l)
Unfortunately Ms Van der Walt, the occupational therapist, had
already driven from Pretoria to be at court in Johannesburg,
and Mr
Frey, the orthopaedic surgeon, had cancelled his surgery for the day.
[25]
The defendant has, in my view, approached this trial and conducted it
in an imprudent manner. Despite several requests by the
plaintiff’s
legal representatives that the plaintiff’s uncontested reports
be admitted into evidence, this admission
never came until the
morning of the commencement of the trial and after two of the experts
had already cancelled all appointments
for the day, and presented
themselves at court. The defendant also insisted on the evidence of
Ms Rice and Mr Peverett being led
despite when these opinions being
unmet by corresponding experts. What’s more, is that the
defendant’s challenge to
their testimony was uneventful and
left their evidence materially unchallenged. The defendant’s
conduct, in my view, warrants
the grant of a punitive costs order
against it, in order to prevent the plaintiff from being out of
pocket, particularly, in relation
to the fees of the expert
witnesses.
[26]
The court does, however, recognise that the defendant’s
attorney was frequently absent from the courtroom during the
trial,
despite being obliged to be present. In fact, on at least two
occasions the court had to demand his presence in court,
and even
then he absented himself the very next morning. I consider it fair
and just, in the circumstances, that the plaintiff’s
attorney
be disallowed his fees for, the first day of trial and, half of the
second day of trial.
[27]
In the result, I grant judgment for the plaintiff against the
defendant as follows:
1.
The Defendant is liable for 100% of the
Plaintiff’s proven damages.
2.
The Defendant shall pay the Plaintiff the
amount of R500 000.00 in respect of general damages for the
Plaintiff’s claim arising
out of a motor vehicle accident which
occurred on 27 September 2013.
3.
The Defendant shall pay the Plaintiff the
amount R2113 210,00 in respect of loss of earning capacity for the
Plaintiff’s claim
arising out of a motor vehicle accident which
occurred on 27 September 2013.
4.
The Defendant shall furnish the Plaintiff
with an undertaking in terms of
section 17(4)(a)
of the
Road Accident
Fund Act, 56 of 1996
, for the costs of the future accommodation of
the Plaintiff in a hospital or nursing home or treatment or rendering
of a service
to him or supplying of goods to him arising out of the
injuries sustained by him in the motor vehicle collision which
occurred
on 27 September 2013.
5.
Payment of the amounts set out in
paragraphs 2 and 3 above shall be made within 14 days of date of
judgment into the Plaintiff’s
attorney’s account, the
details of which are as follows:
Name of account holder:
Raphael and David Smith Incorporated Trust Account
Bank
Name:
First National Bank
Branch Name:
Rosebank
Account
Number:
[…]
Type of
Account:
Trust Account
Branch
Code:
253305
6.
The Defendant shall pay the Plaintiff’s
taxed or agreed party-and-party costs on the scale as between
attorney and client.
The Plaintiff shall, in the event that the costs
are not agreed, serve the notice of taxation on the Defendant’s
attorneys
and the Plaintiff shall allow the Defendant 7 court days to
make payment of the taxed costs.
7.
The costs shall also include the
costs of the Plaintiff’s experts being CT Frey, Diagnostic
Radiological Services, Jessica
Rice, Professor Chait, Wilma van der
Walt, Dr DA Shevel, Marc Peverett, and Munro Consulting.
8.
The costs shall also include the
reservation/qualifying fees of Jessica Rice, Marc Peverett, Dr CT
Frey and Wilma van der Walt.
9.
There is no contingrncy fee agreement
between the Plaintiff and the Plaintiff’s attorneys.
10.
The Defendant’s attorney of record
shall not recover its fees from the Defendant for the full day
on the 15
th
of August and half a day on the 16
th
of August 2016.
_____________________________
JUDGE
KATHREE-SETILOANE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION,
JOHANNESBURG
Counsel
for the Applicant/ Plaintiff:
Adv I Smith
Instructed
by:
Raphael & David Smith Inc
Counsel
for the Respondent/ Defendant:
Adv Magano
Instructed
by:
Pule Incorporated
Date
of Hearing:
15 August 2016 to 19 August 2016
Date of
Judgment:
15 November 2016
[1]
www.sacna.co.za
() (accessed on
8 November 2016). Accordingly to the South African Clinical
Neuropsychological Association, neuropsychology is
a highly
specialized field, and any person conducting a neuropsychological
assessment is required to be a registered Clinical,
Counselling or
Education Psychologists.
[2]
www.sacna.co.za
(above)