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[2019] ZAGPJHC 15
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Smit obo Nkosi v Road Accident Fund (30440/2014) [2019] ZAGPJHC 15 (31 January 2019)
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REPUBLIC OF SOUTH AFRICA
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
YES
/ NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED.
CASE NO:
30440/2014
In the matter between:
ADV
ABRAHAM MATTHYS
SMIT
Plaintiff
(obo BUSISIWE NONHLANHLA NKOSI)
and
ROAD
ACCIDENT
FUND
Defendant
J U D G M E N T
MASHILE,
J
:
INTRODUCTION
[1] On 21 June 2012,
Busisiwe Nonhlanhla Nkosi, then a 22 year-old young lady collided
with a white Toyota Venture motor vehicle with registration number
[….] driven by Nkosana Radebe while crossing Stretford
Street
on foot in Orange Farm. In consequence of the collision, Busisiwe
sustained bodily injuries. Believing that the collision
was caused by
the negligent driving of Nkosana Radebe, she instituted a delictual
claim against the Defendant in terms of the
Road Accident Fund Act 56
of 1996
, as amended. The head injuries with which this Court is
concerned have been captured in the particulars of claim as scalp
wound
left temporal, abrasions on right brow and cheek and laceration
to scalp. The hospital notes recorded her GCS as 15/15 and it was
noted that brain scan detected nothing abnormal
[2] When the matter served
before this Court, the Defendant had conceded liability up
to 80% of
Busisiwe’s proven damages. To that end, on the 11
th
of June 2016, the Deputy Judge President ordered that:
2.1
Liability
be finalised at 80%/20% in favour of Busisiwe;
2.2 The Defendant would provide
an Undertaking in terms
of
s17(4)(a) of the RAF Act;
2.3 The defendant would
pay R300 000 as an interim payment; and
2.4 Costs would be paid by the
Defendant.
[3] The Deputy Judge
President further declared Busisiwe incapable of managing her affairs
and made provisions for a trust to be created. He also postponed the
remaining issues pertaining to
quantum
to an undetermined
date. The Defendant was not satisfied that Busisiwe’s injuries
were so serious to deserve compensation.
For that reason the
parties agreed that Busisiwe be referred to the Appeal Tribunal for
assessment of her injuries to determine
whether or not she would
qualify for such damages. The Tribunal conducted the assessment and
in a letter dated the 7th of August
2017, found that Busisiwe’s
injuries were not serious.
[4] On 19 April 2018,
during the parties’ pre-trial conference, they agreed and
noted
that the Plaintiff intended to bring application for review of the
decision of the Tribunal. In this regard, they recorded
that the
issues of the Defendant’s obligation to compensate the
Plaintiff for non-pecuniary loss (as meant in
s17(1)(b)
of the
Road
Accident Fund Act 56 of 1996
) and any subsequent determination of an
amount for compensation for a serious injury were separated from all
other issues and/or
heads of damages and was postponed sine die. The
main issue before this Court is, as such, now loss of earning
capacity “having
regard” to the accident.
[5] According to the
Plaintiff thee issue of the gravity of the brain injury and/or any
other injury insofar as it relates to non-pecuniary loss is
immaterial. However, the issue of the
sequelae
of a brain
injury and/or any other injury insofar as it relates to pecuniary
loss is material. In other words, it is not the severity
of the
injuries that she sustained but the impact that such injuries have on
her ability to earn a living. Insofar as the orthopaedic
injuries are
concerned, the Plaintiff submitted that the impact thereof on
Busisiwe’s past loss of earnings is acknowledged
since recovery
from pure orthopeadic injuries, fractures of vertebrae and pelvis
together with associated disability and pain,
led to a period of
unemployment.
[6] The Plaintiff further
submitted that the impact thereof on Busisiwe’s future
loss of
earnings will depend on adequate medical treatment. In the event that
she receive medical treatment, the effect thereof
can either be
minimal or can be taken into account by way of contingencies. It
follows that the opinion of any Occupational Therapists,
based on
orthopaedic injuries, cannot be significant as it will neither
contribute nor undermine Busisiwe’s future employability.
The
Plaintiff conceded that physically Busisiwe retains a residual
capacity to be employed in a sedentary or light physical occupation
or even in a capacity that requires medium physical strength.
[7] The parties secured
various expert reports. These reports form part of the
documentary evidence before this Court. Where a report has been
updated, I shall mention the updated version only. The following
are
the reports:
7.1 Dr C Barlin, an Orthopaedic
Surgeon, dated 17 April 2018;
7.2 Dr Sulman & Partners,
Radiologists, dated 17 April 2018;
7.3 Dr D Irsigler, a General
Practitioner who completed the RAF4;
7.4 Dr H Edeling, a Neurosurgeon
whose report is dated 12 April 2018;
7.5 Ms M Adan, a
Neuropsychologist whose report is dated 19 April 2018;
7.6 Ms G Bales, a Clinical
Psychologist whose report is dated 4 April 2018;
7.7
Ms
A Reynolds, an Occupational Therapist;
7.8 AM Kellerman, an Industrial
Psychologist;
7.9 Algorithm Actuary;
[8] The defendant obtained
the following reports:
8.1 Dr MG Mashaba who completed
the RAF4;
8.2 Milpark Radiology
Radiologist;
8.3 Ms M Magoele, an Occupational
Therapist;
8.4 Ms L Modipa, a
Neuropsychologist;
8.5 Mr T Tsiu, an Industrial
Psychologist;
8.6 Dr A Mazwi, a Neurosurgeon.
[9] In addition to the
reports mentioned above, some of the experts of the respective
parties who were engaged to write on the same subject put together
and signed joint minutes. These too form part of the
documentary evidence before this Court. These joint minutes were
signed between the occupational therapists, industrial psychologists,
and neuropsychologists. Ms Bales, Dr Edeling, Ms Adan and Dr
Kellerman testified on behalf of the Plaintiff
POINTS
IN LIMINE
[10] The Defendant made a ‘big
song and dance’ about the outcome of the investigation
of the
Tribunal concerning Busisiwe’s head injury that it was not
severe. The Defendant contended, as a point in limine,
that the
finding of the Tribunal should be accepted as correct by this Court
and that it must override the evidence of Dr Edeling.
The objective
of doing so was to render the evidence of Dr Edeling inconsequencial.
Perhaps this is the appropriate stage at which
to address and dispose
of the points in limine.
[11] The argument of the Defendant
seems to suggest that loss of earnings cannot be suffered in
circumstances where the injured party did not sustain severe
injuries. If this is correct then the Defendant’s
argument
is totally misguided. The position is that the injured party
is compensated for the
sequelae
that injury has on him or her
regardless of the gravity of the injury. In short this Court will
have to decide on the
sequelae
that the head injury had on
Busisiwe. The decision of the Tribunal that Busisiwe has sustained
minor injuries and that as such
she is disqualified for a claim for
general damages is discrete from that concerning her entitlement to a
claim for loss of earnings.
[12] The second point
in limine
pertains to what authority the decision of the Appeal Tribunal has on
loss of earnings with particular reference to reasons to
a finding
that Busisiwe did not qualify for an award on non-pecuniary loss. The
answer to this second issue ought to lie in the
fact that decisions
of the Tribunal and Appeal Tribunal may be subjected to a review by
the High Court. Accordingly, the High Court
cannot be bound by
decisions of the Tribunal or the Appeal Tribunal, which it can either
confirm or overturn. See,
Road Accident Fund Appeal Tribunal and
others v Gouws and another
[2018] 1 701 (SCA) where it was stated
that the Appeal Tribunal is not the final arbiter on such matters and
that its powers are
intently delineated.
EVIDENCE OF PLAINTIFF’S WITNESSES
[13] The first witness of the Plaintiff
was a clinical psychologist, MS J BALES. Her testimony was
that she
found Busisiwe to be suffering from different features of depression.
Busisiwe’s moods vacillated, she was irritable
AND had moments
of outbursts. Busisiwe was not physically as active as before the
accident. She isolated herself from the family
and friends. She
resented being asked where she was going by her mother. Busisiwe
slept rather more often relative to the period
before the accident.
Her thought processes were noticeably sluggish. Ms Bales further
stated that Busisiwe was disinterested during
the examination.
Busisiwe told her that pain disturbs her sleep.
[14] Busisiwe had enrolled for N4 but
could not cope as a result of lack of concentration. Ms Bales
found
Busisiwe to be aware of her physical injuries. Ms Bales’
further testimony is that she found her depression to have
increased.
She surmised that her depression was probably caused by unemployment.
She showed signs of cognitive impairment, severe
impairment in
self-esteem. Busisiwe has drifted into severe depression. Her
attention level was inconstant. Both Busisiwe
and her mother advised
her that she was not active like before anymore.
[15] When cross-examined, Ms Bales
conceded that the head injury may not have been the only source
of
her depression and that lack of employment could well be one of
the contributory factors. She was silent when it was suggested
to her
that Busisiwe did well at school because she registered and passed N4
and that the memory deficit could not have been significant
as such.
During N5, she passed two modules and failed another two. She agreed
that it is difficult to reduce neurocognitive deficit
to a brain
injury. It was put to her that the tearing of Busisiwe that she
observed could have been due to the death of her father
in October
2017 or brain injury or both. Her response was that the behaviour was
first noticed in July 2016 well before her father’s
death
and again in April 2018. This, she thought isolated brain injury as
the source of the tearing.
[16] It was put to Ms Bales that
Busisiwe as a twenty-six year old lady felt that her mother was
undermining her and was too invasive to her space. Her mother, on the
other hand, read this as something else. It was noted that
Busisiwe
sat in court and was seemingly very alert and looked not bored. Ms
Bales conceded that Busisiwe’s search of words
during her
interview with her could have been lack of vocabulary because she is
not English speaking. Ms Bales struggled to give
specific symptoms
that are cause by brain injuries. Ms Bales stated that she did not
ask Busisiwe why she was sleepy and tired
during the consultation.
[17]
Dr Edeling is a neurosurgeon. His credentials were not challenged.
first time he consulted with
Busisiwe was in October 2015. He notes
that Busisiwe did not have any pre-existing pathology. Her injuries
were fractures of the
Pelvis and lumber spine and multiple soft
tissue injuries. He also records that Busisiwe sustained a head
injury with facial injuries.
The head injury led to a ‘
complicated
traumatic brain injury of severe degree’, brought about by
subsequent developments
that occurred to Busisiwe but left unattended by the hospital
personnel.
[18] Stratford clinic records that
Busisiwe lost consciousness as a result of the injury to her head.
The level of consciousness as measured by GCS read 15/15. Dr Edeling
testified that GCS is used to determine the level of consciousness
and not brain functioning. He testified further that Busisiwe may
have been conscious on arrival at the hospital but she would
have
been very ill. For that reason, GCS ought to be used in conjunction
with other tools to achieve maximum results. Dr Edeling
could not
assist on the question why the Stretford Clinic records state that
Busisiwe was unconscious after the accident.
[19] CT brain Scan, testified Dr
Edeling, cannot detect brain injury. For a patient to be referred
for
CT Brain Scan, three prerequisites must be satisfied. Busisiwe was
referred but the Chris Hani-Baragwanath Hospital records
do not state
why she was referred. Dr Edeling stated that the referral should
serve as indication that the treating doctor was
concerned about the
head injury albeit that he did not record his reasons. The scan
detected nothing abnormal on the brain but
Dr Edeling said that with
contusional brain injury the scan should have been repeated after two
to three days. Dr Mazwi, the Defendant’s
neurosurgeon,
initially said that there was no brain injury but changed his mind
after seeing the Stretford Clinic records and
referral to CT scan by
doctors at Chris Hani-Baragwanath Hospital.
[20] Dr Edeling further said that the
hospital staff did not monitor the patient. Observation should
have
been four hourly for 24 hours. Post traumatic amnesia suggests
moderate brain injury. The post traumatic amnesia should have
been
for 1 hour but with Busisiwe it was 18 hours suggesting that it
progressed to moderate. Thereafter, it stabilised and remained
there.
Dr Edeling thinks that Busisiwe suffered a secondary brain injury,
which came after the primary injury having been caused
by other
factors subsequent to the initial blow to the head. He also recorded
memory problems in 2015 when he consulted with Busisiwe.
Dr Mazwi
also consulted with her in 2016 but did not notice this but states
that he did not have Busisiwe’s medical records.
[21] Dr Edeling consulted with her
again in 2018 and repeated his observations as per his report
of
2015. The brain injury had stabilised and had become permanent. He
also noted that her depression had worsened. When cross-examined,
Dr
Edeling stated that the report from the Health Professional Council
of South Africa (“HPCSA”) that she sustained
a mild brain
injury could not be trusted because the Council incorrectly refers to
the report of Dr Reed instead of Dr Barlin.
It was also put to him
that since the reasons for her referral to brain scan are not
stipulated, he was speculating on why she
was, notwithstanding her
head injury.
[22] Dr Edeling pointed out during his
cross-examination as well that no daily neurological hospital
records
were noted between the date of admission until date of discharge,
which was seven days later. He also testified that frontal
lope
injury can lead to depression.
[23] Ms Adan is the neuropsychologist
of Busisiwe. She testified that she consulted with Busisiwe
in 2015.
Pre-morbid information was volunteered by Busisiwe. Ms Adan confirmed
that she has seen Busisiwe’s National Senior
Certificate. The
reading of her matric results depict Busisiwe as a student who was
not high performing pre-morbidly. She gave
a detailed account of the
accident. Busisiwe also gave her post-morbid account of her symptoms.
Ms Adan stated that Busisiwe told
her that she tires quickly. She was
also able to tell Ms Adan that she was cognitively impaired since the
accident.
[24] Psychosocially, her life style has
changed. The pain that she experiences affects her mood.
Ms Adan
observed spasmodic tearfulness during her assessment of Busisiwe. She
is of the opinion that these symptoms are the lingering
repercussions
of the accident. Ms Adan testified further that she found Busisiwe
difficult to comprehend long questions. Busisiwe
became easily upset
during the interview especially when discussing the accident.
Busisiwe has visual reconstruction and perception
deficits. Her brain
can take so much and no more.
[25] Insofar as comprehension is
concerned, she could remember only eight of twenty-two. Busisiwe’s
level of concentration reduced as she was given more tasks to do.
Thus, she would score quite high on the first task and yet low
on the
second time around. Ms Adan understood this to be related to
Busisiwe’s memory defects, which will affect arithmetic
problems. She needed a physical object with which to work to carry
out tasks.
[26] It was put to her during
cross-examination that Dr Edeling found no evidence of neurological
abnormalities.
Her response was that Dr Edeling’s finding was
that physically there was no neurological injury but thought the
treating
doctors should have detected it had they done the correct
things.
[27] It was noted that her average pass
mark for matric was 45% and that the mark was consistent
with her
performance post-morbidly. The reliability of Ms Adan’s method
of testing Busisiwe’s post-morbid performance
came under
spotlight. Ms Adan thought that there were many factors with
previously disadvantaged students to be considered. It
was put to Ms
Adan that Busisiwe’s post-morbid performance reflects exactly
who she is within that community. Ms Adan in
response stated that her
full academic record was required to get a true picture of her
performance. It was then suggested to her
that she could not have
concluded as she did because she had insufficient information. As
matters stood on the date of the trial,
Busisiwe’s matric
results remained the only pre-morbid tool with which her post
accident performance could be assessed.
[28] Persistence of headaches,
dizziness and other related conditions do not exclude presence of
neuropsychological problems. Ms Adan noted that her depression has
worsened since the death of her father. Ms Adan was steadfast
that
the death of her father notwithstanding, the primary cause of
Busisiwe’s depression was the head injury. Pain affects
mood
and anxiety, which give rise to depression. It was put to Ms Adan
that the reading of the GCS was 15/15 on arrival at hospital
but yet
there is talk of loss of consciousness. She could not reconcile
unconsciousness and the GCS reading. All that she
could say was
that unconsciousness was reported by Busisiwe herself.
[29] The next witness to testify on
behalf of the Plaintiff was Dr Kellerman, an industrial psychologist.
She stated that all pre-morbid information was furnished by Busisiwe
herself. Busisiwe told her that she was productively employed
earning
an amount of R2 000.00 per month before the accident. She
attained matric level of education prior to the accident.
Dr
Kellerman testified further that Busisiwe was an average student if
her matric results are anything to determine this. She also
stated
that Busisiwe’s results ought to be understood against the
background that matric curriculum changed in 2008. The
change
probably account for the apparent drop in performance of many
students.
[30] Under cross-examination, Counsel
for the Defendant put it to Dr Kellerman that according to
records,
it is apparent that Busisiwe did not complete N5 because of poor
performance and lack of funds. Her pre-morbid performance
shows an
average student and that is consistent with her post-morbid results,
which culminated in her failing N5. Concerning Busisiwe’s
employment, it was further put to Dr Kellerman that Busisiwe quit her
employment because she could not cope with the challenges
that came
with the job. She could not manage after the accident mainly due to
her orthopaedic injuries and not her intellectual
capacity.
[31] Busisiwe’s mother, Ms T E
Nkosi, testified that her daughter grew under her watchful eye.
Busisiwe has not lived anywhere else with anyone except at her
current home with her mother. She described Busisiwe as a loving
and
lovable child. Mrs Nkosi was told by Busisiwe’s friend that
Busisiwe was a dancer. She was personally aware that Busisiwe
modelled and sang in church. Busisiwe was also very keen on gym and
running. However, she has not been to the gym place to experience
what or how they were performing.
[32] Mrs Nkosi’s evidence was
also that she checked Busisiwe’s school work regularly.
She
could not remember, even once, being called for any problems caused
by Busisiwe at school. Busisiwe began work in 2010 having
completed
matric in 2008. When Busisiwe collided with the vehicle, she was on
her way to work. She started by assisting her mother
as a domestic
worker working for one Mr Reineke. Thereafter, she worked for Jumbo
Cash & Carry for which she worked for 1 year.
Her work consisted
mainly of sticking barcodes onto hair wigs and was, on the face of
it, happy at work.
[33] Mrs Nkosi then described how she
came to learn of the accident. She received a telephone message
that
her daughter had been involved in a motor vehicle accident and that
she had been taken to Chris Hani-Baragwanath Hospital.
On arrival at
the hospital, she found Busisiwe with a bandage around her neck, body
and had an open wound on her head. Busisiwe
was lying down surrounded
by paramedics. At that time, she could not speak to her until 14h00.
She was awake and surrounded by
doctors. She could only tell her that
she loved her and that God is great whereupon Busisiwe told her that
she too loved God.
[34] Mrs Nkosi’s observation of
Busisiwe in hospital was that she had bruises on her face and
it was
swollen. Her eyes could not focus and were blinking like a
malfunctioning lamp. Mrs Nkosi could not tell at that moment
whether
or not Busisiwe could see her because the blinking of her eyes was
rather abnormal. Busisiwe stayed in hospital and remained
in the same
condition for approximately four weeks. She could not walk after
discharge from hospital and had to be washed, dressed.
Mrs Nkosi
continued to testify that she had to devote her entire time on
Busisiwe until she could fully recover somewhat.
[35] Post accident, Busisiwe is now
irritable, becomes angry easily, cries and complains of pain.
Busisiwe went back to work but she ultimately stopped because she
could not stand for long, which the job at Jumbo Cash & Carry
required. She was subsequently trained by Shoprite Supermarket and
presented with a certificate as proof of her training. Thereafter,
she was called by Shoprite Checkers where she was given work to pack
and display bread. She was then moved to the kitchen. Mrs
Nkosi
further stated that one day Busisiwe came back complaining of
terrible headaches, saw feet and backaches.
[36] When the short-term work at
Checkers Supermarket ended, she was never called again. She sent
her
curriculum vitae
to different companies hoping to secure
employment but none of them responded. She stopped the gym because of
her orthopaedic injuries.
However, she still sings. She continues to
assist with home chores but gets tired too quickly. She spends most
of her time in her
room reading the bible. Busisiwe does not look as
happy as she did previously. She worries that she is the only one
among her siblings
who is unemployed. As a result, she thinks that
she is useless. Mrs Nkosi did not know why Busisiwe failed N5.
[37] Under cross-examination, Mrs Nkosi
confirmed that Busisiwe may not have been a top student but
emphasised that she never repeated a standard until she completed
matric. She further confirmed that Busisiwe completed matric
in 2008
and that in 2009 she was neither at school nor working. She clarified
that Busisiwe worked for Lilly who was a tenant inside
the Jumbo Cash
& Carry Supermarket. Lilly sold wigs inside the supermarket and
Busisiwe was her employee. Busisiwe stayed for
a further three weeks
recuperating from her injuries after her discharge from hospital. She
returned to her previous job for a
week. She then left as she could
not cope because the work was to draining.
[38] When Busisiwe went back to school,
she started well but experienced difficulties as a result
of
headaches and fatigue. While she studied, she also slept for most of
the time. She performed well for her N4. During N5, she
gathered that
she was not the same anymore as she lost her school material
continually. Mrs Nkosi could not comment on Busisiwe’s
statement to the psychologist that she stopped schooling because of
financial difficulties. This concluded the case for the Plaintiff.
EVIDENCE OF THE DEFENDANT’S WITNESSES
[39] The Defendant began its case by
calling Mr Tsiu, an Industrial Psychologist. His testimony and,
as
such, his report was of less significance. This was largely because
he had only seen the report of Dr Mashaba and not those
other experts
when he consulted with Busisiwe. For that reason, his report lacks in
many respects. This explains why after reading
the reports of all the
other experts especially those of the Plaintiff, he revised his
opinion. He now recognises that Busisiwe
has neuropsychological
deficits.
[40] He stated that Busisiwe will be
less competitive compared to her peers. He noted that the
neuropsychologists
differ insofar as the Ms Adan records significant
neuropsychological deficits whereas the defendant noted that they are
less noteworthy.
The difference according to him is the degree of
severity of the neuropsychological
sequelae
. He testified that
to reach his conclusion, he merged the two opinions of the
neuropsychologists. He conceded that had he seen
the reports of
Mesdames Adan and Kellerman and Dr Edeling he would have acknowledged
the existence of neuropsychological
sequelae
. He concluded
that Busisiwe will never match her uninjured counterparts and that
will express itself in late entry to jobs and
sustainability of work.
[41] Dr Mashaba testified on behalf of
the Defendant. He is a medical general practitioner. He purported
to
give evidence as a head injury expert but had to concede that he was
not as qualified as a neurologist or neurosurgeon. Dr Mashaba
confirmed that a mild brain injury can lead to serious brain
sequelae
. However, a mild brain injury can never lead to a
severe brain injury. He stated that Busisiwe was awake albeit that
she was somewhat
disorientated. That said, she could still give a
good account of herself.
[42] He saw Busisiwe in 2016 around the
same period as Dr Adan but did not notice what the latter
has noted
in her report. Regarding what Dr Edeling recorded, he said that it
was possible as Busisiwe might have still been in
the process of
convalescence. Dr Mashaba disagreed that the accident represents a
seminal moment in the life of Busisiwe.
In 2016, when he
consulted with her, he did not find the symptoms recorded by Dr
Edeling to be enduring.
[43] Had Busisiwe’s condition
deteriorated, her GCS would have dropped. The CT scan would have
detected it as well. Dr Mashaba was quick to add that this would not
have excluded injuries such as concussion. Dr Mashaba was
adamant
that there was no reason for a second CT scan. Protocol dictates that
it is only if there is a negative occurrence after
the first scan
that a second scan becomes necessary. They failed to call the people
who compiled the medical records and it is
therefore hard to know why
certain measures were adopted or excluded. The size of Busisiwe’s
laceration on her head did not
appear compatible with the resultant
brain injury. Besides, Busisiwe’s injury was not captured as a
severe brain injury.
[44] Ms Magoele testified as the
Defendant’s occupational therapist. Her testimony was that
her
impression of Busisiwe as she walked into her office was that she was
normal, neat and independent. She came on her own and
was alone in
the consulting room. Ms Magoele’s superficial assessment of
Busisiwe was that Busisiwe did not have any cognitive
deficits.
Furthermore, Busisiwe did not shed a tear drop during consultation.
She also did not exhibit any signs of memory blanks.
She conducted
neuropsychological tests. The impression that she got was that
Busisiwe experienced headaches that were not major.
[45] Insofar as Busisiwe’s
functional capacity is concerned, she said that Busisiwe can do
sedentary low level work. Radiological orthopaedic findings appeared
normal. She complained of pain on the date of consultation.
The
question of brain injury did not arise at the time of consultation
with her. Ms Magoele also said that from her consultation
with
Busisiwe she would have determined whether or not she required to
conduct tests that were neurocognitive.
PLAINTIFF’S ASSERTION
[46] The Plaintiff contends that a
claim for loss of earning capacity has been demonstrated on a
balance
of probabilities. This Court has been implored to accept the evidence
of Busisiwe’s mother that the accident brought
about a turning
point in the life of Busisiwe and that her testimony is buttressed by
all the experts witnesses of the Plaintiff.
According to the
Plaintiff, the Defendant has failed to challenge the evidence that
the Plaintiff’s expert witnesses have
levied before this Court.
In the circumstances, concludes the Plaintiff, Busisiwe must be
compensated for the loss occasioned by
the change in her post
accident life.
DEFENDANT’S ASSERTION
[47] Conversely, the Defendant argues
that the Plaintiff has not succeeded to establish on a balance
of
probabilities that Busisiwe has suffered loss of earning capacity.
The Defendant disputes that the head injury sustained by
Busisiwe
slipped from a mild head injury to a moderate to severe brain injury
that resulted into the
sequelae
described by the expert
witnesses of the Plaintiff. Busisiwe’s pre and post-morbid
conditions remain the same such that no
loss attributable to the head
injury can ensue.
ISSUES
[48]
A starting point here should be a clarification of the fact that this
Court is only concerned
with the
sequelae
of the head injury.
The gravity of the head injury or lack thereof is at this stage
immaterial as it could be a subject of review
of the decision of the
HPCSA. Those introductory remarks lead this Court to set
out what the issues are. Firstly, what
requires determination
is whether or not Busisiwe suffered a head injury that developed into
a
complicated
traumatic brain injury of a severe degree as described
by Dr Edeling. Secondly,
if she only sustained a mild head injury, do the alleged
sequelae
owe their genesis to
the brain injury? If the answer to the aforesaid question is
positive, this Court must decide on the award
that it must make given
the contents of the expert witnesses of both parties.
LEGAL POSITION
[49] It is trite that while experts are entitled to make
assumptions, they should avoid basing their opinions on conjecture
or
speculation for once they do so they place their evidence at risk of
being disallowed. Expert witnesses ought to confine their
testimony
to their respective disciplines but at times and under suitable
conditions may venture outside their area of expertise.
If it becomes
necessary to step out, they should then and there declare. See,
S
v Adams
1983 (2) SA 577
(A) at 586A-C and
S v Van As
1991
(2) SACR 74
(W) at 86c-e.
[50] It is noteworthy
to point out that Busisiwe’s failure to testify renders the
probative value of Dr Edeling’s
evidence and virtually all the
experts weak. In this regard, it could be instructive to refer to
S
v Mthethwa
(CC03/2014)
[2017] ZAWCHC 28
at
[98]
where the following was said:
“
The
weight attached to the testimony of the psychiatric expert witness is
inextricably linked to the reliability of the subject
in question.
Where the subject is discredited the evidence of the expert witness
who had relied on what he was told by the subject
would be of no
value.”
ANALYSIS OF THE EVIDENCE
[51] Central to finding whether or not
there was a brain injury is the evidence of Drs Edeling and
Mazwi,
neurosurgeons for the Plaintiff and Defendant respectively. All the
opinions of the other expert witnesses of the Plaintiff
premise their
conclusions on the belief that there has been a head injury of severe
magnitude. If that opinion diminishes, so too
should their opinions.
Dr Edeling first consulted with Busisiwe in 2015. He diagnosed a mild
to moderate brain injury which slipped
into a moderate to severe
injury with devastating consequences due to lack of adherence to
required standard of observation by
hospital personnel of patients in
the position of Busisiwe.
[52] Mazwi on the other hand saw
Busisiwe for the first time in 2016 and diagnosed no serious head
injury. However, it should be noted that when he changed his opinion
later he specifically stated that he did not have advantage
of
Busisiwe’ medical records, which Edeling had. After the
production of Dr Edeling’s report citing the sources on
which
it was based, Dr Mazwi simply accepted them. He then proceeded to
discard his initial opinion and fully adopted that of Dr
Edeling. It
is notable that he did this without ascertaining or interrogating the
sources or even calling for a second
consultation with
Busisiwe. His opinion is therefore no different from that of Dr
Edeling.
[53] The source documents on which Dr
Edeling relies are the Chris Hani-Baragwanath Hospital records
and
those from Stretford Clinic. The latter records state that Busisiwe
fell unconscious and refer to her as the source of that
information.
Busisiwe did not testify and one is left to wonder whether or not she
knows what the state of unconsciousness is.
In circumstances where
her description of such condition is challenged, the hospital records
from Chris Hani-Baragwanath showing
that her GCS registered 15/15 and
therefore well awake on arrival, the Plaintiff should have done more
to demonstrate this on a
balance of probabilities. Moreover, she was
taken for brain scan and nothing abnormal was detected. According to
Chris Hani-Baragwanath
Hospital, Busisiwe was properly monitored
until she was fully conscious of her surroundings and discharged to
convalesce at home.
[54] Busisiwe’s mother gave a
full account of her pre-morbid condition. She was socially active,
an
average student at school but never repeated a grade. She
participated in the gym, dancing and singing. The accident, she
testified
robbed her of that active life. She is now withdrawn, sits
in her room reading bible most of the time when at home. Her
performance
at school has deteriorated. This, is evident from her
failure of N5. Dr Edeling and virtually all the experts of the
Plaintiff
take this to be the sequelae of the brain injury.
[55] Busisiwe sustained a scalp
laceration measuring 4 centimetres at the parietal region around
which the scalp was swollen. Dr Reid, a neurologist, classified the
head injury as a minor head trauma. Dr Edeling, a neurosurgeon,
categorised it as a moderate brain trauma. There is no injury that
suggests a massive or even a moderate thump to Busisiwe’s
head
that could have resulted in what Dr Edeling testified probably
started as a mild to moderate brain injury which developed
into a
‘complicated traumatic brain injury of severe degree’.
The Plaintiff has done nothing to exclude her orthopaedic
injuries as
the source of the
sequelae
with which she now presents. It is
evident that her unemployment, the direct cause of which is
attributable to her orthopaedic
injuries, is responsible for her
leaving her position as a merchandiser. Ms Bales does not exclude her
unemployment as part of
the causes of her psychosocial problems.
[56] The laceration referred to in the
medical records did not even cut as far as Busisiwe’s
skull.
The obvious question is how could such an injury have turned out to
be what Dr Edeling makes it. The only addition to the
Chris
Hani-Baragwanath Hospital records is a note that Busisiwe had slipped
into unconsciousness on the side of the road where
she had collided
with the vehicle. The source of the unconsciousness is said to have
been Busisiwe herself even though the note
is said to have emanated
from Stretford Clinic. I have already aired my views on Busisiwe’s
alleged unconsciousness in the
preceding paragraphs. It is not known
and no attempt was made to have the author of the record from
Stretford Clinic to come to
court to clarify the circumstances under
which it was written. The contents of the Stretford Clinic records
must therefore be regarded
with great circumspection especially in
circumstances where Busisiwe did not testify. See, the Mthethwa case
supra.
[57] I am mindful of Dr Edeling’s
criticism of the HPCSA. I need to note in that regard though
that his
criticism relates in the main to how it was constituted when it
evaluated Busisiwe’s injuries. In the second place,
it concerns
what the purpose of HPCSA generally is when it sits to make these
kind of assessments. Counsel for the Plaintiff has
correctly stated
that it is totally irrelevant that the HPCSA has classified
Busisiwe’s head injury as minor because it is
Busisiwe’s
sequelae
for which she must be compensated. The HPCSA
classification is, however, material in another context and that is
whether or not
Busisiwe is entitled to general damages. This Court is
sitting to determine the
sequelae
of Busisiwe’s head
injury and not the seriousness of her orthopaedic and/or brain
injuries. I will discuss the
sequelae
of the head injury later
in this judgment.
[58] As I understand, Busisiwe stopped
working because of her orthopaedic injuries but not of
sequelae
flowing from her brain injury. She was successfully trained at
Checkers at the end of which she received a certificate. The fact
that she was not called again at Checkers does not seem to have
anything to do with her mental faculties. The work at Lilly’s
Wig where she worked as a merchandiser required physical strength,
which she apparently does not have since the collision.
[59] Her post-morbid school results are
consistent with Busisiwe’s pre-morbid performance.
Her matric
average pass was 45%. She passed N4, which is an equivalent of
matric, without any obvious glitches. She struggled to
obtain similar
results in N5. Unlike matric and N4, N5 is more challenging and I
take judicial notice that the pass mark is 50%.
Her failure of N5 is
thus understandable having regard to her average performance
previously. It must be logical to think that
had the accident
affected her academic performance, she would not have passed N4.
[60] Dr Mashaba professed to testify on
the head injury while simultaneously acknowledging that he
was
neither a neurosurgeon nor a neurologist. To the extent that he
purported to be giving evidence as a head injury expert, I
will
disregard his evidence. However, his evidence is relevant to the
orthopaedic injuries, which are not the concern of this Court.
Virtually all the experts take their queue from the neurosurgeons,
Drs Edeling and Mazwi in this case. If their evidence and reports
are
rejected, it follows that there will be no place for the opinions of
the other experts because they all assumed that the diagnosis
of the
neurosurgeons is correct.
[61] I need to point out that
neurologically Dr Edeling diagnosed nothing of significance about
Busisiwe. The primary source documents to which Dr Edeling would have
had regard consist in hospital records at time of accident
and what
he was told by Busisiwe. I have already stated that this Court will
not place significant emphasis on the contents of
the medical records
from Stretford Clinic mainly because Busisiwe is the source of their
contents besides, they were not there
initially but emerged after Dr
Edeling had compiled his report. The question is where were these
records and why did they not form
part of the Chris Hani-Baragwanath
Hospital records from onset?
[62] In any event, the claim of
unconsciousness is not a matter that was objectively established
but
it was rather what Busisiwe herself said. There is no indication that
Dr Edeling probed what Busisiwe meant when she said she
fell
unconscious. The only proper examination tests conducted at Chris
Hani-Baragwanath Hospital revealed that she was conscious
and that
the CT Scan detected nothing abnormal. These findings are consistent
with the hospital’s classification of the head
injury as minor
but totally at odds with a brain injury that is said by Dr Edeling to
have now become a complicated brain injury
of severe degree.
[63] Dr Edeling has insinuated that the
Chris Hani-Baragwanath Hospital personnel were negligent
by not
monitoring Busisiwe constantly. He pointed to the hospital records as
the basis of his allegation. The onus of proving the
case on a
balance of probabilities lies with the Plaintiff. Surprisingly, the
Plaintiff called none of the hospital personnel who
compiled the
records to state why they did not note certain things which are,
according to Dr Edeling, the norm under these circumstances.
[64]
Having found no justification for a permanent neurological
complications and no brain injury
of significant magnitude, Dr
Edeling firstly, claims that the moderate brain injury that he had
diagnosed became a ‘
complicated
traumatic brain injury of severe degree’, brought about by the
negligence of hospital personnel. Secondly, Dr
Edeling then takes a
leap
into
other experts’ disciplines to find
that Busisiwe’s recollection was fragmented, disoriented,
confused and dreamlike to justify his diagnosis. I do not think
that
it was for Dr Edeling to venture into such areas. His was to diagnose
whether or not there was a brain injury. This is unacceptable
because
Busisiwe did not sustain the injury that Dr Edeling says she suffered
and this is evident from the Hospital medical records.
See, the Adams
case
supra
.
[65] If the
sequelae
described by Dr Edeling and the other experts are a
fact in the life of Busisiwe then there exist no link between them
and the
head injury. The origins of the
sequelae
might well be
the repercussions of the orthopaedic injuries. The Plaintiff has done
nothing to eliminate the probability that their
foundation might be
the orthopaedic injuries notwithstanding their lack of seriousness.
It is apparent from the papers of the Plaintiff
that the
sequelae
are attributed to the alleged ‘complicated traumatic brain
injury of severe degree’ as described by Dr Edeling. Failure
to
establish a causal link between the Plaintiff’s neurocognitive
deficits and the orthopaedic injuries means that the Plaintiff’s
claim must fail.
[66] The slipping
of the moderate brain injury into a ‘complicated traumatic
brain injury of
severe degree’ mentioned by Dr Edeling is
speculation. Dr Mashaba’s testimony in this regard is that
Busisiwe stabilise
dafter a few days even though her detention was
prolonged for further observation. The fact that the nursing
personnel and doctors
at Chris Hani-Baragwanath Hospital did not
record that there was a setback in her recovery process should, in
the absence of any
evidence to the contrary, serve as indication that
nothing serious developed from the head injury.
[67] I have already mentioned earlier
in this judgment that Dr Mazwi’s sudden change from classifying
the head injury as minor to agreeing with virtually everything that
Dr Edeling puts forward in his report is extremely disappointing
and
disquieting. The least that Dr Mazwi could have done upon being
presented with opinion different from his own was to consult
once
again with Busisiwe to verify the further information with which he
was being presented. Thus, the fact that Drs Edeling and
Mazwi agree
in their joint minute is for purposes of this Court, regrettably
irrelevant
[68] The finding of this Court is that
the head injury did not slip into what Drs Edeling and Mazwi
describe
as a ‘complicated traumatic brain injury’. I cannot
burden this Court by analysing the opinions of the other
experts in
circumstances where their views entirely derive from the fallacious
findings of the neurosurgeons. This conclusion obviously
renders it
pointless to consider what award should be made to the Plaintiff.
Against that background, it is apparent that the claim
must collapse
as a result of which I make the following order:
The claim is dismissed with costs.
________________________________________
B A MASHILE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION,
JOHANNESBURG
APPEARANCES:
For the Plaintiff:
Adv. A Lamplough
Instructed by: C N Sweetnam Attorneys
For the Respondent:
Adv. K T T NTSEWA
Instructed by: Maribana Makgoka Inc.
Date of Hearing: 17 May 2018
Date of Judgment: 31 January 2019