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[2019] ZAGPJHC 148
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M M obo E M v Road Accident Fund (16/33039) [2019] ZAGPJHC 148 (12 April 2019)
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JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE NUMBER: 16/33039
HEARD: 19 and NOVEMBER 2018
12 APRIL 2019
In
the matter between:-
M,
M obo E
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
HERTENBERGER,
AJ:
[1] This is an action instituted
against Defendant by the Plaintiff as a result of a motor vehicle
accident, which is alleged to
have resulted in the Plaintiff’s
minor daughter suffering injuries. The matter now before
me deals with the merits
and quantum, though limited to the loss of
earnings. The parties have agreed that the core of the matter
to be determined
is whether the accident upon which this claim is
founded resulted in an injury to the brain, which caused epileptic
seizures some
years after the accident occurred. The expert
evidence tendered in the matter was based on reports and in some
instances
on the
viva voce
evidence of selected experts.
The Defendant did not produce any expert reports nor any other
independent evidence and chose
to proceed simply upon evidence made
available by the Plaintiff. All discovered reports were
accepted and agreed by the parties.
[2]
The common cause facts in this matter are briefly as follows: The
Plaintiff’s minor daughter, E who was 6 years old at
the time
of the accident was hit by a vehicle driven by Nkata Kekana whilst
crossing the road as a pedestrian. E was taken
to Chris Hani
Baragwanath Hospital’s casualty department. The first
treating physician reports the injuries as: “superficial
injury
to the upper lip, abrasion to nose and epistaxis and abrasion to
knees”. No loss of consciousness was reported and
the GCS
[1]
is recorded as 15/15. She was discharged on the same day and
given mouthwash and Panado, after a medical examination along
with
X-rays were done. No follow-up visits took place. In
December 2014 E first began experiencing epileptic seizures.
Two other events are important for the purposes of determining the
liability of the Defendant in this matter: In 2012 (the exact
date is
not recorded) E was involved in yet another pedestrian motor vehicle
incident in the presence of her father. On the
28
th
of February 2013 at 9 years of age E was treated for an arm injury
sustained whilst playing. The arm was place in a backslab
and
she was discharged. In 2015 E began suffering epileptic
seizures and further she experiences approximately 3 attacks
of
headaches in a week.
[3] I am tasked with determining
whether the epileptic seizures are a result of the 2010 accident or
whether any other intervening
event caused them, and if so, .
[4]
The Plaintiff led four witnesses, one being E’s father, whilst
the other 3 where expert witnesses ie. a Clinical Psychologist,
an
Educational Psychologist and a Neurosurgeon respectively. As
already stated the parties agreed to accept all the experts’
reports tendered by the Plaintiff. For the sake of completeness
it is recorded that reports by the following experts were
also
provided: Orthopaedic Surgeon, Opthalmologist, Ear Nose and Throat
Surgeon, Industrial Psychologist, Algorithms Consultants
&
Actuaries.
[5] The last witness, to testify was
the Neurosurgeon, Dr L F Segwapa. I deal with his evidence
first because the other experts
are leaning on his findings in
support of their own. Dr Segwapa’s testimony was short,
but crisp and to the point.
He told the court that even in the
event of a mild head injury, there was a 3% chance of developing a
post traumatic injury within
3 years and whilst the risk of such
injury developing after the initial 3 years was much less, it could
not be excluded.
Upon cross-examination Dr Segwapa was
questioned about the incident of the arm fracture in 2013 and an
attempt was made by Counsel
for the defense to connect a (new)
possible head injury to this incident. In my view, this attempt
failed. There was
no attempt by the Defendant to bring the 2012
incident into this context.
[6] Clinical Psychologist with a
special interest in Neuropsychology, ms H Matlou, whose evidence in
chief consisted mainly of a
confirmation of what is contained in her
report was the first witness to be called. In her view the
areas of concern highlighted
in her testing of E are identified as
Cognitive, Psychological, Physical and Scholastic functioning.
In arriving at her conclusion
that the aforesaid functions have been
compromised by the 2010 incident she ran a battery of tests and also
considered the report
of the Neurosurgeon. Whilst she was
criticized for basing the biographical and pre- and post-accident
functioning of E on
the reports of the cousin who accompanied her to
the consultation, it was not challenged that E’s mother had
corroborated
the cousin’s reports in a telephonic conversation
with this witness. Again an attempt was made to imply that the
two
subsequent incidents (2012 and 2013) had somehow caused the
current condition and further that E had always been an above average
student and that this has not changed. The witness was
convincing in her conclusion that there is no doubt that E is and
always was an intelligent girl, however her ability to achieve her
full potential post-accident has been hampered by the emotional
and
physical effects, such as headaches, seizures and her insecurities
and emotional difficulties, including the fear of a reoccurrence
of a
similar accident. The aforesaid, coupled with the demands of
the neurocognitive skills in the higher grades, will put
her at a
distinct disadvantage, which would not have been the case had the
2010 accident not occurred.
[7] An Educational Psychologist, Ms A
Naiker, testified that her assisting Psychometrist, L Moseamedi,
assisted her in the assessment
of E, which was conducted in Xhosa,
being E's first language. This dispelled the concern raised by
the defense under cross-examination
that there was a
language-barrier, which may have adversely affected the outcome.
Ms Naiker did not have the benefit of complete
academic records in
respect of E, despite having requested these from various sources.
She however stated that despite this,
she could utilize the family
constellation and developmental milestones to compare the pre- and
post-accident level of schooling
and cognitive potential. From
the post-accident academic reports, E appears to be an above average
student in all subjects
but for Economic Management Sciences.
Upon testing, her intellectual abilities reflected a superior range
of intellectual
functioning. Having regard to further testing, it
appears that her Potential and Educational Functioning post-accident
is lower
than prior to the accident. Problems that have arisen
post-accident include situational anxiety and a fallout of
neurocognitive
functioning as a result of the accident.
[8] The court heard evidence of E’s
father, mr M in respect of the 2012 motorvehicle accident. No
medical records exist
in respect of the accident and the father
testified that there was no significant impact at the time of the
collision. The
clinic simply provided “ointment”
and “Panado”. The court had no reason to doubt the
evidence of
mr M. No evidence was placed before the court to
disprove his evidence and accordingly the court accepts his version
of the
events.
[9] I cannot find any evidence
that supports a view on the balance of probabilities that the
epilepsy developed as a result
of the arm injury nor the second road
accident and further no evidence was produced that could convince me
that any other factors
could have caused the epilepsy. Dr
Segwapa in his evidence clearly illustrated that there was sufficient
reason to believe
that the epilepsy resulted from the head trauma
sustained as a result of the accident in 2010 in which E sustained a
direct trauma
to the face. Counsel for the Defendant did not
succeed in illustrating that there was an intervening cause, which
resulted
in the late on-set of epilepsy. In the absence of
expert evidence on the part of the Defendant, I must accept the
conclusion
of the
[10]
Accordingly I find that the Plaintiff’s claim on the merits and
quantum limited to loss of earnings must succeed.
[10] In the result the following order
is made:
(1) the Plaintiff’s claim in
respect of the merits succeeds;
(2) the Defendant is ordered to pay
the amount due in respect of the loss of earnings as determined by
the actuarial calculation
to the Plaintiff;
(3) Costs of suit, including the cost
of experts on the party party scale, as taxed or agreed;
(4) Interest at a rate of 10,5% on the
amount in (2) above from the 14
th
day after the date of
this order to date of final payment;
(5) Interest at a rate of 10,5% on the
amount in (3) above from the 14
th
day from the receipt of
the Taxing Master’s Allocatur to date of final payment;
R HERTENBERGER
ACTING JUDGE OF THE
GAUTENG LOCAL DIVISION
JOHANNESBURG
APPEARANCES
COUNSEL
FOR PLAINTIFF: ADV N MABENA
PLAINTIFF’S
ATTORNEYS: N.T MDLALOSE INCORPORATED
COUNSEL FOR DEFENDANT: ADV NA MOHOMANE
DEFENDANT’S
ATTORNEYS: MALULEKE, MSIMANG & ASSOCIATES
[1]
Glasgow Coma
Scale