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[2017] ZAECPEHC 42
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G.E.B v Road Accident Fund (2477/2015) [2017] ZAECPEHC 42 (5 September 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, PORT ELIZABETH)
Case No.: 2477/2015
Date Heard: 26-30 June
2017
Date Delivered: 5
September 2017
In
the matter between:
G.
E. B.
Plaintiff
and
ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
EKSTEEN
J:
[1]
The
plaintiff, an adult woman, was injured in a motor vehicle collision
which occurred on 21 December 2012 in the vicinity of Rocklands
on
the road between Uitenhage and Port Elizabeth. She has
instituted action against the defendant for the recovery of damages
which she has suffered as a consequence of the injuries which she
sustained in and as a result of the collision. The defendant
has admitted its liability to the plaintiff and the only issue in
dispute between the parties is the quantum of the plaintiff’s
damages.
[2]
The
plaintiff claims damages in the amount of R1 955 000 which
is made up of:
(a)
Future
medical expenses R155 000;
(b)
Past and
future loss of earning capacity R1 000 000; and
(c)
General
damages R800 000.
[3]
Prior to
the commencement of the trial the defendant indicated its intention
to provide to the plaintiff an undertaking in terms
of the provisions
of section 17(4)(a) of the Road Accident Fund Act, 56 of 1996 (the
Act) in respect of the claim for future medical
expenses. It
further conceded that the injuries which the plaintiff sustained in
and as a result of the collision are “serious
injuries”
as contemplated in section 17(1) and (1A) of the Act. What
remains for decision is accordingly the quantum
of the plaintiff’s
claim for past and future loss of earning capacity and general
damages.
Background
[4]
The
plaintiff is currently 40 years of age and resident in the tiny
hamlet of C. where she has been resident since her childhood.
She was married in 1999 and although the marriage persists her
husband has deserted her and there is no contact between them.
Two children, boys, were born of the marriage and they reside with
her in C..
[5]
On the day
of the accident she was together with one of her children, D., and a
friend in a taxi travelling from Uitenhage to St
Albans when the
collision occurred. The injuries which she sustained in the
collision remained in dispute on the pleadings.
Shortly before
the commencement of the trial agreement was reached in respect of the
majority of the injuries sustained by the
plaintiff which I shall
canvas below. Whilst it was common cause between the parties at
the hearing of the matter that the
plaintiff had indeed sustained a
mild traumatic brain injury in the collision there remained a
considerable dispute relating to
the sequelae of the brain injury
which has a material impact on both of the quantification of the
claim for loss of earning capacity
and general damages. This
dispute lies at the heart of this matter.
The
agreed facts
[6]
Each party
gave notice of their intention to call an orthopaedic surgeon who had
examined the plaintiff and prepared a report setting
out a summary of
the evidence which they would give in respect of the injuries.
Prior to the commencement of the trial a
joint minute was prepared by
the orthopaedic surgeons Dr Oelofse, on behalf of the plaintiff, and
Dr Aslam, on behalf of the defendant.
The orthopaedic surgeons agreed
that the plaintiff had sustained a severe degloving injury of the
scalp, approximately 30 cm in
length, fractures of both mandibulas
and an injury to the right shoulder.
[7]
They were
agreed that the degloving injury had been treated very efficiently by
means of debridement and suturing by a plastic surgeon.
A
conspicuous, but camouflageable scar is still visible on her
forehead. The orthopaedic surgeons were agreed that the fact
that plaintiff had sustained such a severe injury to the scalp could
indicate that there may have been an underlying traumatic
brain
injury. Dr Oelofse in his initial report, recorded that whilst
he would defer to the opinion of a neurologist or a
psychologist he
was of the view that the plaintiff exhibited symptoms of a traumatic
brain injury. In these circumstances
the orthopaedic surgeons
recorded their acknowledgment that both Dr Oelofse and Ms van Zyl, an
occupational therapist, believed
that the patient presented to both
of them with possible cognitive and behavioural deficits which ought
to be investigated.
Dr Aslam, on the other hand, was of the
opinion that he did not find such symptoms or signs.
[8]
The
fractures of the mandibulas were treated by means of an internal
fixation by Dr Gopal, a maxillofacial surgeon.
The
orthopaedic surgeons acknowledged that the plaintiff had complained
to both Dr Oelofse and Ms van Zyl about painful mastication
and that
she could not open her mouth as wide as before. Whilst the
orthopaedic surgeons were of the view that the injury
had been
effectively treated they defer to the opinion of a maxillofacial
surgeon regarding this injury.
[9]
In respect
of the right shoulder injury Dr Oelofse noted signs of a
possible Brachial Plexus lesion
when he
examined the plaintiff. When Dr Aslam examined the plaintiff,
sometime later, there were no signs of such an injury.
They
were, however, in agreement that there was a possible contusion of a
Brachial Plexus which has fully recovered in the interim
and that no
further treatment was envisaged. Notwithstanding their view in
respect of the possible Brachial Plexus contusion
the orthopaedic
surgeons were in agreement that there was also a possible Rotator
Cuff injury and that treatment for this injury
should be considered
in the future. They postulated that there was approximately a
30% possibility that the plaintiff may
require such treatment in
future.
[10]
In view of
their agreements relating to the injuries sustained in the collision
and the recovery process thereof the orthopaedic
surgeons were agreed
that from a purely orthopaedic perspective the plaintiff was able to
do any type of work for which she had
been trained and that she ought
to be able to continue doing so until the normal retirement age.
They did, however, caution
that one should endeavour not to put too
much physical strain on her shoulder joints.
[11]
Dr Gopal, a
maxillofacial and oral surgeon, examined the plaintiff and notice was
given by the plaintiff of the intention to call
Dr Gopal. Dr
Gopal recorded that there could be no doubt that the patient has
suffered a considerable amount of pain and
discomfort associated with
the injury to the mandibles. This has resulted in functional
restrictions and will have lasting
adverse effects on her social
life. Dr Gopal concluded that she had made a good recovery from
the serious injury sustained,
however, she still has signs and
symptoms that can be directly attributed to the accident. The
passage of time has so far
yielded much improvement, but she may
require further treatment. These opinions expressed by Dr Gopal
were admitted at the
hearing.
[12]
Dr
Apostolis, a plastic surgeon, examined the plaintiff with particular
reference to the unsightly scar on her forehead. He
recorded
that she had made a good recovery from the injury, however, she still
has a few associated symptoms that can be directly
attributed to the
accident. The scar to her forehead is of great psychological
importance and all full thickness skin incisions,
cuts or lacerations
are permanent. Plastic surgery and the passage of time will
make the scar less obvious with the play
of light and shade across
it, however, although not serious, it is still a permanent
disfigurement of some importance.
[13]
Each party
engaged an industrial phycologist to express views in respect of the
effect of the injuries on the plaintiff’s
earning capacity.
Upon receipt of the joint minute prepared by Dr Oelofse and Dr Aslam
and the agreements reached therein,
the industrial psychologists, Mr
Whitehead and Mr Shapiro met in a further endeavour to narrow down
the issues. They agreed
upon the plaintiff’s probable
premorbid career path, but for the accident.
[14]
In this
respect it is common cause that the plaintiff passed Grade 10 and at
the time of the accident she was employed by her father’s
business in an administrative capacity. She performed the roles
of a bookkeeper and paymaster. The industrial psychologists
were agreed, that in all probability, she would have continued in her
father’s employ until he retired. I interpose
to record
that the uncontested evidence is that her father will retire in
2019. The industrial psychologists were further
agreed that
upon his retirement she would have secured a similar work, or the
kind of work which she had performed earlier in her
lifetime,
typically at a basic-skilled level, in a more informal employment
market. She would have experienced some upward
career mobility
whilst remaining at a basic-skilled level over her career and would
retire at the age of 65.
[15]
With regard
to her probable premorbid earnings it is common cause that she was
earning an amount of R1 500 per month at the
time of the
accident. They postulated that she would have continued to earn
a salary, with annual increases to the value
of the consumer price
index, until the end of 2019, when her father would have retired.
They are in agreement that after
the retirement of her father she
would, in all probability, have found alternative employment, for
example as a domestic worker,
for three days a week earning R150 per
day during the first year of such employment. In the second
year it is postulated
that she would have worked for three to five
days a week earning R150 per day. Her earnings would thereafter
have increased
in a straight line to the middle point between the
medium and upper quartile of the basic-(un)skilled employee earnings
scale as
per Robert Koch’s:
Quantum
Yearbook of 2017
,
where it would have peaked at the age of around 45 years.
Thereafter she would have received annual increases to the value
of
the consumer price index plus one percent to two percent until her
retirement age at 65. She may also have qualified for
an annual
bonus to the value of a thirteenth check on occasion. It was
suggested that it would have been realistic to assume
that this would
have occurred approximately 50% of the time.
[16]
The
industrial psychologists were not in agreement in respect of the
probable post morbid career path, having regard to the collision.
Their divergent opinions in this regard are to be found in the
dispute between the parties relating to the sequelae of the mild
traumatic brain injury. The parties were in agreement at the
hearing that in the event that I find that the plaintiff did
sustain
the sequelae postulated by Mr A., a clinical psychologist, then it is
accepted that the plaintiff would be unemployable
in consequence of
the collision. In the event, however, that I find the opinion
of Dr Kieck, a neurosurgeon, to reflect the
position correctly, then
there would be a possibility that the plaintiff may in future be
employable in some capacity.
The
TBI
[17]
Mr A.
conducted a clinical neuropsychological evaluation of the plaintiff
at the request of her attorneys. He records that
she was 36
years old at the time of the accident and was seated behind the
driver in a taxi with several other passengers, including
her son
D.. A good friend of hers was killed in the collision but she
and her son survived despite several injuries.
All of this is
confirmed by the plaintiff in her evidence.
[18]
She was
taken by ambulance to the Uitenhage Provincial Hospital. The
hospital records of the Uitenhage Provincial Hospital
were handed in
by consent at the hearing. They reveal that she was admitted
with head injuries, including the 30 cm degloving
injury to the right
side of her scalp, bilateral fractures of the mandibles and heavy
facial bleeding. A Glasgow coma scale
(GCS) assessment was,
however, recorded as 15/15 but with a swollen face. She
experienced severe jaw pain and morphine was
administered. She
was sent for x-rays of her head and right shoulder. An
ambulance transfer to Livingstone Hospital
was requested but the
transfer was delayed for about five hours. She underwent an
open reduction and internal fixation procedure
of her mandible ten
days after the collision and was discharged on 1 January 2013.
[19]
The
plaintiff advised Mr A. that she had no medical history of
consequence prior to the accident and was always in robustly good
health and performed well in sport. There is no history of
mental problems in the family either. These contentions
are not
in dispute. Since the accident, however, she reports numerous
and serious physical and mental health concerns.
These include
daily severe headaches, depression, pain when chewing or brushing her
teeth, severe pain in the right shoulder/arm,
poor concentration,
absentminded forgetfulness and chronic fatigue. Due to these
persisting consequences of the injuries
sustained in the accident she
is unable to or limited in performing tasks of daily living, such as
doing and hanging laundry, carrying
goods from the shop or making use
of public transport. She reports insomnia, mostly due to pain
in her right shoulder, but
on the other hand she is also chronically
fatigued and sleeps excessively. She experiences elevated
anxiety levels and has
become withdrawn and reclusive only
socialising with family members. She has stopped drinking
alcohol after the accident
but is smoking excessively in order to
calm her nerves. She cries easily and frequently and she
struggles to control her
anger. She is terrified when
travelling in a vehicle and she reports panic attacks.
[20]
The
majority of these symptoms were confirmed by the plaintiff in her own
evidence. She described her regular headaches which
she says
manifest behind the scar on her forehead. She acknowledged the
pain which she still experiences when chewing food
and states that
she is only able to eat soft foods. The pain in her right
shoulder, she says, still persists and contributed
largely to her
terminating her employment at the time. She testified that she
had noted a change in her personality and that
she struggles with
concentration. This manifests in her inability to work with
money and the mistakes which she makes when
attempting to do so.
She testified to the chronic fatigue which she has experienced daily
since the accident and acknowledges
her forgetfulness. The
plaintiff testified that she has withdrawn from all social activities
and does not want to be with
people. She avoids public
transport as she becomes anxious when entering a vehicle. Her
levels of anxiety are elevated
when she is in the presence of
people. She avoids shopping centres and other places of public
gathering and states that she
becomes anxious, begins to quiver and
feels hot when being in such an environment. Mr A. records that
the plaintiff’s
head was clearly severely impacted, sustaining
multiple injuries which I have recorded earlier and her face was
accordingly severely
swollen.
[21]
I pause to
record that my observation of the plaintiff in the witness box
records with her account of anxiety in public places.
While I
have no doubt that her responses were honest she appeared anxious
throughout and at times, particularly under cross-examination,
totally bewildered.
[22]
The
plaintiff’s father, G. B., testified that she was employed by
him in 2005 and remained in his employ at the time of the
accident.
After the accident she returned to work for approximately three
months, but she was unable to cope. Her left
arm did not
function and she tended to drop things. He formed the
impression that she sometimes did not understand when spoken
to and
if he reprimanded her she simply cried. At times when he
addressed her she simply did not respond. This was
markedly
different to the personality which she exhibited prior to the
accident.
[23]
Plaintiff’s
cousin, N. H., testified that she resides in Uitenhage. The
SAPS informed her of the accident on the same
day that it occurred.
She rushed to the hospital to see the plaintiff. Initially she
was unable to see the plaintiff
as medical staff were attending to
her in casualties. After about fifteen minutes she was
permitted to see her, still in
the casualty department.
Plaintiff, she says, lay on a bed with her eyes closed. Her
face was severely swollen.
Ms H. called her by name but got no
response. She called out three times before plaintiff
acknowledged her. Initially
plaintiff did not recognise her and
just stared at her. When she did speak she seemed confused.
The nurses requested
Ms H. to keep the plaintiff awake, but, Ms H.
says that plaintiff appeared to fall asleep every now and then.
She says plaintiff
“came and went”. Ms H. again saw
her some three days later, still in hospital. On this occasion
plaintiff
was not confused and did recognise her. She spoke to
the plaintiff about their previous meeting in casualty at the
Uitenhage
Hospital, but plaintiff had no recall of it and knew
nothing of the conversation they had had.
[24]
Ms H. has
not seen much of plaintiff after these events, however, plaintiff
stayed with her during the trial. She says that
plaintiff is
different now and very forgetful. She related her experience
the day prior to her evidence where plaintiff had
put her money away,
but had forgotten where she had put it.
[25]
Reverting
to the evidence of Mr A., he states that plaintiff’s first
recollection at the scene of the accident, which he postulates
would
have been approximately half an hour after the impact, was of
paramedics busy cutting open the wreckage. His enquiries
from
her led him to conclude that her post-traumatic memory is not dense,
only with intermittent registration of details.
He concluded
that she starts registering details continuously only from the
afternoon of the second day when she was informed that
her close
friend had died in the accident.
[26]
These of
course are conclusions that Mr A. drew from his interview with the
plaintiff. The plaintiff’s evidence, however,
provides
support for this conclusion. She confirmed in her own evidence
that her first recall was of the paramedics being
at the motor
vehicle. She states, however, that she thereafter “passed
out” again and only regained consciousness
when she was lying
on a stretcher next to the road. She recalls that stitches were
administered to her head injury at the
Uitenhage Hospital, but she
does not have a continuous recall of the events which occurred
there. By way of example, I have
recorded earlier that the
hospital records reveal that x-rays were taken. She has no recall of
having been taken to x-rays at the
Uitenhage Hospital. She
states that she has intermittent recall of the events there and that
she “passed out”
again in the hospital. When she
regained her consciousness her aunt, and her cousin who had been
advised of the accident
and who had rushed to the hospital, were with
her. Her evidence and the recordal of Mr A. accord with the
evidence of Ms
H..
[27]
In this
respect the hospital records reveal that pain medication was
administered to the plaintiff and Mr A., fairly in my view,
acknowledged that this medication may play in a role in accounting
for loss of memory at the time. Mr A. acknowledges too
that the
clinical records are inconclusive and he conceded during
cross-examination that the theoretical classification of the
seriousness of the head injury was of a mild traumatic brain injury
which generally would not predict long-term sequelae.
In his
view, however, the theoretical classification is a poor predictor of
long-term functional impairment and he formed the opinion
that her
reported symptoms are suggestive of more serious long-term sequelae
of brain injury. He accordingly carried out
an extensive
battery of psychological tests. These led him to conclude that
she revealed significant impairments regarding
her executive
functions. These functions, he postulated, were probably at
least average before the accident and a significant
decline could be
demonstrated on the assessment. Various indicators which he
found in his battery of test results supported
suspicions of damage
to especially the “frontal” brain structures. In
this respect her cognitive slowing was
readily apparent and her
planning tested poorly. People who plan poorly on these two
tests, he states, often struggle with
social orientation and can
easily feel confused and “lost”, possibly contributing to
the plaintiff’s severe anxiety
in lesser known environments.
No CT brain scan was, however, done and actual structural damage was
accordingly not demonstrated.
[28]
In respect
of her emotional problems demonstrated by his test results, he
records that they appear more of a problem than one would
normally
associate with a mild traumatic brain injury. Her emotional problems,
he opined, are clearly serious enough to be regarded
as contributing
to her being significantly impaired. This he concludes is
manifested by her experience with elevated anxiety
and panic attacks
and her apathy and depression with hypersomnia as well as her poor
control over her volatile emotions.
[29]
Mr A. found
sufficient evidence in his test results to support claims of a
significant post morbid decline in global intellectual
performance.
He concluded that she suffered from a major neurocognitive disorder.
[30]
Mr A.
expressed the view that the prognosis regarding her neurocognitive
disorder is poor. He opined that the combination
of physical
and neurocognitive injuries sustained causes functional impairment
severe enough to render the plaintiff unfit for
any employment.
It appears reasonable, he opined, considering her perceived premorbid
cognitive potential and emotional and
personality profile, that she
had potential to continue in her relatively non-demanding employment
until retirement, were it not
for the accident.
[31]
Dr
Crafford, a psychiatrist, also testified on behalf of the plaintiff.
He recounts the same symptomology set out in the evidence
of Mr A..
He expressed his agreement with the conclusions reached by Mr A. and
opines that interventions may alleviate, but
not restore significant
functioning.
[32]
Dr Kieck, a
neurosurgeon, expressed a contrary view. His reasoning appears
from his report, which he read into the record
and confirmed as
correct. He records that the plaintiff had a period of
post-traumatic amnesia/unconsciousness but she came
around in the
car, realising that she was trapped and she had a laceration to her
scalp. He thereafter records that she was
extracted from the
car by the paramedics and taken to the Uitenhage Hospital where
x-rays were done and the laceration to the scalp
sutured. Dr
Kieck proceeds to record the transfer of the plaintiff to the
Livingstone Hospital and then proceeds to state:
“
It
is clear that she had a short period of post-traumatic
amnesia/unconsciousness but she came around in the car …
At Uitenhage hospital her Glasgow Coma score was assessed at 15.
No concern was expressed about a brain injury. After
initial
assessment and management she was transferred to Livingstone Hospital
and referred to the maxillofacial and plastic surgeons
for management
of her scalp scar laceration and bilaterial mandibular fracture.
Again no concern was expressed about a brain
injury and she was not
referred to a neurosurgeon according to the notes. She also did
not have a CT brain scan. …
With these parameters
then of someone with a short-lived period of post-traumatic
amnesia/unconsciousness and then with a Glasgow
Coma score of 15 on
admission to hospital with no concern expressed about a brain injury
and not being referred to a neurosurgeon
for a CT brain scan one can
conclude that she had at most suffered a very mild traumatic brain
injury. One can further conclude
that from such an injury she
will have no neurocognitive or mental and behavioural sequelae.
… She volunteered no
cognitive abnormalities of functional or
behavioural problems. On the neurological examination she was
normal. One
can therefore conclude as one would expect she had
no neurocognitive or mental behavioural sequelae from this at most
mild traumatic
brain injury. One can further conclude that this
injury will have no further consequences for her with regard to these
functions.”
[33]
It will
immediately be apparent that there is considerable factual difference
between the history recorded by Dr Kieck and that
recorded by Mr A..
The history recorded by Mr A. in respect of the series of cognitive
and functional behavioural problems
find support in the evidence of
the plaintiff herself and that of her father. Sadly Dr Kieck’s
recordal of the factual
position conveyed to him gives rise to
concern. I shall refer, by way of illustration only to two
issues canvassed in evidence.
[34]
Dr Kieck
recorded in his report that he had asked the plaintiff why she had
not visited a general physician or an orthopaedic surgeon
with regard
to her symptoms and that she did not answer him. In this regard
the following exchanges occurred in cross-examination:
‘
Q:
Two paragraphs down you said “When asked why she had not
visited specifically
a general physician or an orthopaedic surgeon
with regard to these symptoms she did not answer me” --- That
is correct, she
did not give me a reason for that.
Q:
Well did she not answer or did she not give you a reason? ---
No, she did not
answer, she just looked at me.
Q:
What specifically did you ask her with regard to a general physician?
--- I asked
her whether she had seen a physician and whether
she has seen an orthopaedic surgeon for these complaints.
Q:
What is a physician in Afrikaans? --- “Internis”.
Q:
Did you ask her “Het jy ‘n internis gesien”? ---
‘n Spesialis.
I would have used the word “spesialis”.
Q:
This is not correct when you say that you asked her why she had not
visited a general
physician, that is not what you asked her. ---
No, “hoekom het sy nie ‘n spesialis gesien nie”.
Q:
Did you ask her whether she had seen an orthopaedic surgeon?
--- That is
correct.
Q:
Did you use the words, what words did you use in Afrikaans for
orthopaedic surgeon?
--- ‘n Beendokter, ‘n
ortopeed.
Q:
And you said “’n spesialis of ‘n ortopeed”?
Is that correct?
Are those the words you used? ---
I did not write it out in full, but I would have asked her why she
did not see a
doctor for the diabetes and a doctor for, an “ortopeed”
for the bone.’
[35]
Later, this
exchange occurred:
‘
Q:
Now if we can just go back to the point of not having seen a
specialist physician or orthopaedic
surgeon. The plaintiff’s
evidence was that she has been to the clinic and that she receives
her medication for her
diabetes from the clinic, but you did not ask
her about that? --- I do not know whether we went into
it, but obviously
I would accept that she receives her tablets
somewhere and most probably from the community health clinic.
Q:
Her evidence was that you asked her why she has not been to see a
doctor about her
problems and she said to you that she does not have
money. Is it not possible that she said that to you? --- I have
not recorded
it, but she could have said it …’
[36]
In the
light of these exchanges I consider that there is good reason to
question the reliability of the facts recorded in Dr Kieck’s
report.
[37]
Similarly,
an exchange occurred between counsel and Dr Kieck in respect of his
recordal in his report that the plaintiff had advised
him that she
had completed Standard 9. The following exchange occurred:
‘
Q:
… [I]f I can just take you to … page 127 of the
record, the second last
paragraph you said “She said that
she completed standard 9”, her evidence was that she passed
standard 8 and
did standard 9, but failed. I do not think that
much turns on that, but is it possible that there was a
misunderstanding
there? --- Well I wrote here that she
passed standard 9.
Q:
That she passed or that she did standard 9? What exactly did
you write if I may
ask? --- “Gebore in Uitenhage.
Grootgeword in C.. Standerd 9 en toe het sy gaan werk”.
Q:
And you just wrote “standerd 9”. So you did not write
there that she passed.
--- Well if she had failed I would
have written it.’
[38]
Again this
exchange brings into question the reliability of Dr Kieck’s
recordal of the factual account given to him during
the interview
with plaintiff. Where there is a dispute between the evidence
of the plaintiff, as supported by the evidence
of her father and
cousin and recorded by Mr A. and the factual position which Dr Kieck
records as having been communicated to him
I accept the evidence of
the plaintiff, her witness and Mr A.. In this respect Dr
Kieck further relies on the fact
that the plaintiff did not
“volunteer” any cognitive abnormalities or functional
behavioural problems. It is
apparent from the evidence of Dr
Kieck that he did not consciously endeavour to illicit from her
information relating to features
which may be indicative of such
shortcomings.
Prima
facie
,
and having regard to the plaintiff’s level of education, I
think that it is improbable that she would, of her own,
have
appreciated the relevance of problems for purposes of her examination
by a neurosurgeon.
[39]
It seems to
me that the opinion of Dr Kieck is based largely on the following:
1. His conclusion that the plaintiff did not
endure any period of
unconsciousness other than the initial period, which he considers to
have terminated whilst still in the vehicle
and prior to the arrival
of the paramedics; 2. the GCS score attributed to
the plaintiff at the Uitenhage Hospital
and Livingstone Hospital and
the absence of any concern expressed about a brain injury when
assessed in the hospital which, in
turn gave rise to there being no
CT brain scan. Therefore, he concludes, that she had at most
suffered a very mild traumatic
brain injury and that one can conclude
that from such an injury she will have no neurocognitive or mental or
behavioural sequelae.
[40]
His
conclusion relating to the initial period of unconsciousness is not
supported by the evidence of the plaintiff which is set
out earlier.
Her account is consistent with the observations of Ms H. and with her
account to Mr A.. I have already
found that their account is to
be preferred.
[41]
In
addressing Dr Kieck’s second ground for his conclusion Mr A.
referred in his evidence to a presentation done by Dr H J
Edeling, a
neurosurgeon to the South African Neuropsychological Association in
August 2014. Therein Dr Edeling recorded:
‘
The use of unsatisfactory
definitions leads to the frequent repetition of assertions in court
with irrational conclusions, such
as “The GCS was 14/15.
Therefore the patient sustained a mild brain injury. From this
grade of brain injury no
sequelae would be expected. Therefore
the poor school performance and cognitive impairments found by the
psychologists have
nothing to do with the head injury.”
Diagnosis based on the patient’s
neurological status at a single point in time, typically upon the
arrival at the emergency
department, is wholly inadequate in
diagnosing the nature, components and/or degree of TBI.”
[42]
Mr A.
expressed the view that Dr Edeling is highly regarded in the field of
traumatic brain injury and is widely published.
This view was
not challenged in cross-examination. Mr A. stated further that
in his own experience he has found, in a very
small percentage of
cases of mild traumatic brain injuries, that significant cognitive
impairments do manifest.
[43]
When
challenged with this view by Dr Edeling under cross-examination Dr
Kieck suggests that Dr Edeling’s statement is misleading.
While acknowledging Dr Edeling’s qualification as a
neurosurgeon he sought to cast aspersions on Dr Edeling’s
qualification
to express these views. In this regard the
following exchange occurred between myself and Dr Kieck:
“
COURT:
What is the expertise of Dr Edeling? --- Dr Edeling was
a
neurosurgeon. He stopped practising many years ago. Dr
Edeling has been in medico-legal work now for many years.
COURT:
But he was a neurosurgeon? --- Ja he is still
registered
as a neurosurgeon, and Dr Edeling has got no research expertise, he
does not consult, he does not see any patients,
he is purely involved
in medico-legal work.”
[44]
This
criticism was never suggested to Mr A. under cross-examination.
Moreover a perusal of the law reports reveals that Dr
Edeling’s
evidence has frequently been accepted in our courts (compare for
example in
Hall
v Road Accident Fund
2013 (6J2) QOD 126 (SGJ).) Under cross-examination Dr Kieck was
constrained to acknowledge that notwithstanding the theoretical
classification of head injuries and the expectation that most
patients would recover fully from a mild traumatic brain injury there
is a small percentage who do suffer from persisting symptoms long
after the event. He was constrained too to acknowledge
that he
had not recognised this phenomenon in his report.
[45]
Dr Kieck
contends that there are two syndromes that should be considered.
One syndrome is the neurocognitive mental behavioural
syndrome
because of organic brain injury. The second is a post
concussional syndrome. He testifies that in the vast
majority,
96-99% of the cases, the patient will recover and have no further
post concussional symptoms. He explained that
the initial
symptomology of the post concussional syndrome arises from a
neurometabolic cascade of psychological abnormalities
from the head
injury. These symptoms he states are non-specific and do not
arise from structural damage to the brain.
Dr Kieck sought
support for his view in guidelines by the American Medical
Association and in particular a passage which records:
“
Patients
with persistent post-concussive symptoms generally have non-injury
related factors which complicate their clinical course.
Post-concussive syndrome is a relatively rare sequelae of mild
traumatic brain injury seen in 1 to 5 % of all mild traumatic brain
injuries.”
[46]
He proceeds
to explain this as follows:
“
When
it says complicate their clinical course by that it means that you
have a mild traumatic brain injury and the vast majority
makes a full
recovery, and now there is this group which do not make, this very
small group which do not make a full recovery,
so that is what then
complicates the course of this individual.”
[47]
On a
careful consideration of the full conspectus of Dr Kieck’s
evidence it seems to me that the distinction which he seeks
to draw
is immaterial. On his own evidence there is a small percentage
of patients who will not recover from a mild traumatic
brain injury
because of the post concussional syndrome which complicates the
course of their recovery from the brain injury.
He did not
carry out any tests at all and he is unable to say that the cognitive
deficits found by Mr A. do not exist. He
is further unable to
say that the plaintiff does not fall within the small group which do
not make a full recovery. What
is, however, indisputable is
that the plaintiff was a perfectly normal adult prior to the
collision. A dramatic change occurred
at the time of her injury
and today, some five years after the event she has not recovered.
She now exhibits demonstrable
neurocognitive deficits and behavioural
problems.
[48]
In the
circumstances I consider that the evidence of Mr A. is unassailable.
The approach adopted in the report by Dr Kieck
seems to me to be
precisely the reasoning which Dr Edeling has cautioned against.
The attack upon the expertise of Dr Edeling
is, in my view,
unconvincing. Whatever the standing of Dr Edeling may be the
ultimate conclusion of the evidence of Dr Kieck
amounts to an
acknowledgement that there are certain patients who have sustained
only a mild traumatic brain injury and yet do
not make a full
recovery. I accept therefore the conclusions reached by Mr A.
in respect of the plaintiff’s current
condition and the
prognosis for further recovery.
Loss
of earning capacity
[49]
As set out
earlier the plaintiff has been resident in C. for all of her adult
life. Employment opportunities in C. are extremely
limited and
unemployment is rife. The plaintiff has a modest education
which too is recorded earlier herein. After
leaving school she
worked at a local sawmill for approximately two years. This
employment terminated when the sawmill closed.
The evidence is
unclear as to precisely when this occurred and there is no
information as to her earnings in this position.
Later, again
at an undisclosed time, she obtained employment as a domestic
worker. She worked five days a week and earned
R750 per month.
This she states was insufficient remuneration and therefore she
resigned this position after approximately
one year. He father
is a subcontractor to SAFCOL and conducts a fire watch. He has
four people in his employ working
shifts in a fire watch tower.
During 2005 he employed the plaintiff in an administrative capacity
at a remuneration of R1 500
per month. At the time of the
collision she was still so employed. Her main function was to
maintain contact with the
fire watch staff whose duty it was to
report immediately upon sighting smoke in the forest. In
addition she was employed
as a cleaner and bookkeeper and assisted
with the payment of salaries.
[50]
The
anticipation that her father will retire in 2019 gives rise to the
necessary inference that her employment would have come to
an end in
any event in 2019. She testified that it was her intention
thereafter to seek alternative employment.
[51]
The
plaintiff’s loss of earnings since the collision and her future
loss of earning capacity has been calculated actuarially
by Munro
Forensic Actuaries. The assumptions upon which the calculations
are based are not in dispute and both parties rely
for purposes of
their argument on the computation by Mr Munro. I have recorded
earlier that the industrial psychologists
were in agreement in
respect of the plaintiff’s premorbid career path, but for the
collision.
[52]
In respect
of her post-morbid career path, having regard to the collision, the
undisputed evidence is that she attempted to return
to work in 2013
for a period of three months and continued until June 2013. In
June 2013 she terminated her employment as
she testifies that she was
unable to continue with her obligations in consequence of the
sequelae of her injuries. She has
remained unemployed since
leaving her position in June 2013. In the period prior to her
return to work during her recuperation
after the accident, she
received no income.
[53]
By virtue
of my acceptance of the conclusions arrived at by Mr A. the parties
are in agreement that the calculation of future loss
of earning
capacity should be approached on the basis that the plaintiff is now
unemployable.
[54]
On an
acceptance of these assumptions Munro Forensic Actuaries
calculated the plaintiff’s loss of earning capacity as
follows:
Capital
value of loss of income:
Past
loss of earnings
R 97 200
Future
loss of earning capacity
R604 100
Total
R701 300
[55]
In arriving
at these figures no contingencies have been applied and the limit
placed upon the claim in the Act has no impact on
the calculation.
What remains in dispute in respect of these claims is the contingency
consideration to be taken into account.
I have recorded the
plaintiff’s employment history earlier herein. In the ten
years after leaving school (1996-2005)
she was employed in total, for
three years. Her salary in the two years which she spent at the
sawmills is not disclosed
and for the remaining year she worked as a
domestic worker at an income of R750 per month. Her father
acknowledged in his
evidence that he effectively created the position
in which he appointed her in order to assist her at the time.
He
is scheduled to retire in 2019, whereafter the plaintiff would,
but for the accident, have been required to fend for herself.
[56]
During
argument the parties were in agreement that Munro Forensic Actuaries
had in the calculation of past loss of earnings not
had regard to the
three months that she returned to employment. An amount of
R4 500 must accordingly be deducted from
the R97 200
calculated in respect of past loss of earnings. The parties
were further in agreement during argument that
it would be
appropriate that a 5% contingency deduction for the ordinary risks be
subtracted from the amount arrived at.
The plaintiff’s
claim for past loss of earnings accordingly amounts to R88 065.
[57]
In respect
of the future loss of earning capacity Mr
Frost
,
on behalf of the defendant, argued that the evidence establishes that
the plaintiff’s father has continued to support her
to the
extent of R1 000 per month. This he contended should be
deducted from her loss of earning capacity. During
the debate
at the Bar, however, he conceded, correctly in my view, that whereas
the payment is not made in accordance with her
contract of employment
such a contribution constitutes
res
inter alias acta
and is to be ignored.
[58]
The sole
issue which stands between the parties in respect of future loss of
earning capacity, save for the medical aspect dealt
with earlier
herein, relates to the contingency deduction to be made from the
calculation. On behalf of the plaintiff Mr
Niekerk
acknowledged the somewhat patchy employment history but suggested
that the plaintiff was in a position to obtain employment in
other
centres outside of C. if she chose to move elsewhere. He
accordingly proposed that a contingency deduction of 20% should
be
made from the calculation. Mr
Frost
,
on the other hand, argued that a contingency deduction of 40% should
be made from the calculation.
[59]
The
contingency deduction to be made must necessarily depend upon the
facts of each case. The plaintiff’s residence
in C.,
where there is a very considerable dearth of employment
opportunities, coupled with her employment history, suggests that
there is a very considerable prospect that she may not have found
alternative employment when her father retires. It is,
of
course, true that she may have moved to another centre in pursuit of
employment opportunities if she chose to do so. Her
history,
however, suggests that the lure of employment opportunities did not
in the past attract her to other larger centres.
Her
established support base, particularly her father, is seated in C..
I think that recognition should be given to this
consideration too in
assessing the probability that she may have sought and find
employment elsewhere. On a consideration
of all these factors I
consider that it would be appropriate to reduce the calculation in
respect of future loss of earning capacity
by 30%. The
plaintiff should accordingly be awarded an amount of R490 910 in
respect of future loss of earning capacity.
General
damages
[60]
In
determining general damages the court is called upon to exercise a
broad discretion to award what it considers to be fair and
adequate
compensation having regard to a broad spectrum of facts and
circumstances connected to the plaintiff and the injuries
suffered by
her including their nature, permanence, severity and the impact on
her lifestyle.
[61]
Watermeyer
JA, in
Sandler
v Wholesale Coal Supplies Ltd
1941 AD 194
at 199 stated as follows:
“
The
amount to be awarded as compensation can only be determined by the
broadest general considerations and the figure arrived at
must
necessarily be uncertain, depending upon the judge's view of what is
fair in all the circumstances of the case.”
[62]
The legal
position remains unchanged. There is no hard and fast rule of
general application requiring a court to consider
past awards.
Such awards are seldom on all fours with the facts of the case under
consideration. (Compare
Road
Accident Fund v Marunga
2003 (5) SA 165
(SCA) 169G-H.) On a consideration of
these general principles I have endeavoured to assess what I consider
to be a
fair compensation. The injuries which the plaintiff
sustained and the sequelae thereof are set out above. I have
had
regard thereto in endeavouring to assess a reasonable
compensation for general damages. Mr
Niekerk
has referred me to a number of previous decisions including
Vukeya
v Road Accident Fund
2014 (7B4) QOD 1 (GNP);
Currie
v Road Accident Fund
2008
(5J2) QOD 201 (SE); and
Hall
v Road Accident Fund
supra
.
Mr
Frost
similarly referred me to a number of decisions including
Minister
of Police v Dlwathi
2016 (7G3) QOD 11 (SCA);
Bikawuli
v Road Accident Fund
2010 (6B4) QOD 17 (ECB) and
Vand
der Hoeck v Road Accident Fund
2010 (6D5) QOD 1 (GNP). Whilst there are certain similarities
between some of these cases and the present, each of these
decisions
differ on the facts, and the considerations raised therein, from the
present. They serve nevertheless as a guide
to the general
trend in the value of awards made. To the extent that guidance
may be derived from these matters I have given
careful consideration
to them.
[63]
On a
consideration of all the facts in the present matter and the awards
previously made in similar matters I have concluded that
an award in
the amount of R500 000 would represent fair compensation.
[64]
The
plaintiff is accordingly entitled to damages in the sum of:
(a) R88 065 as and for past loss of earnings, (b)
R490 910 as and for loss of earning capacity; and (c)
R500 000 as and for general damages.
[65]
In the
result, I make the following order:
1.
The
defendant is ordered to furnish the plaintiff with an undertaking in
terms of section 17(4)(a) of the Road Accident Fund Act,
56 of
1996,in respect of the payment of the costs of the future
accommodation of the plaintiff in a hospital or nursing home, or
the
treatment of, or the rendering of a service or the supply of goods to
her as a result of the injuries sustained by her in the
motor vehicle
collision which occurred on 17 June 2007and the sequelae thereof,
after such costs have been incurred and upon proof
thereof.
2.
The
defendant is ordered to pay to the plaintiff the amount of
R1 078 975.
3.
Interest
shall accrue on the aforesaid amount at the rate of 10,5% per annum
calculated from a date fourteen days after the date
of this order to
the date of payment.
4.
The
defendant shall pay the plaintiff’s taxed party and party
costs, such costs to include the reasonable and necessary qualifying,
preparation fees and expenses, and the attendance fees, including the
costs of the joint minutes, if any, of the following expert
witnesses:
4.1
Dr Oelofse
4.2
Ms Ansie
van Zyl
4.3
Mr Willem
A.
4.4
Dr Crafford
4.5
Mr
Whitehead
4.6
Alex Munro
4.7
Dr Gopal; a
nd
4.8
Dr
Apostolis.
5.
The
plaintiff, her father and Ms H. are declared necessary witnesses.
6.
The
defendant shall be liable for interest on the taxed costs at the
legal rate of 10,5% per annum calculated from a date fourteen
days
after allocatur to the date of payment.
J
W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Plaintiff:
Adv D Niekerk instructed by McWilliams & Elliot Inc, Port
Elizabeth
For
Defendant:
Adv A Frost instructed by BLC Attorneys, Port Elizabeth