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[2019] ZAECPEHC 80
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Kesa v Road Accident Fund (2295/2013) [2019] ZAECPEHC 80 (4 December 2019)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.:
2295/2013
In
the matter between:
NOMAWETHU
KESA Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
NTSEPE
AJ:
1.
This is an action wherein the Plaintiff sues in her personal and
representative capacity for damages
which arose from the death of her
husband (the deceased) on 19 August 2010, allegedly, from injuries
that he sustained in a collision
between him and a motor vehicle on 8
November 2009 (the collision).
2.
The defendant is defending the action and denies that the deceased
died as a result of the injuries
sustained by him in the collision.
3.
By agreement between the parties the only issue before me is
causation. The separation of causation
from the remaining issues was
duly ordered as envisaged by Rule 33 (4).
4.
The Plaintiff had the duty to begin; she testified in support of her
claims and also called Professor
Ian Bruce Copley, a neurosurgeon, on
her behalf.
5.
The Plaintiff’s evidence was mostly formal in nature and can be
summarised as follows:
5.1
she married the deceased in January 2000 and lived with him;
5.2
he was involved in the collision on 8 November 2009, had sustained
injuries,
was hospitalised as a result of the injuries he sustained
in the collision and he spent two weeks in intensive care and a month
in hospital thereafter;
5.3
prior the collision the deceased was a sportsman who played soccer
for his ‘work’
team and enjoyed exercising. However, this
changed after the collision as he could no longer exercise. In fact,
he had attempted
gym once after the collision but returned home with
chest pains;
5.4
his temper had changed after the accident; he was easily angered,
stubborn and
frustrated by his circumstances;
5.5
on 19 August 2010, the Plaintiff was at home with the deceased and
the deceased
had taken the refuse bin out, returned feeling week,
laid in bed complaining of chest pains, struggled to breath and died.
She
had not expected him to die on that day.
6.
The second witness, Professor Copley testified that the deceased died
as a result of an “
acute
myocardial infraction
” due to a
combination of altered metabolism and chronic stress following the
injuries sustained in the collision.
7.
At the close of the Plaintiff’s case, the Defendant sought
absolution from the instance.
The test for absolution is simply
whether the Plaintiff has placed evidence before me upon which this
court, applying its mind
reasonably to such evidence, could or might
find in her favour. (See:
Gascoyne
v Paul and Hunter
1917 TPD 170
at 173
and
Gordon Lloyd Page and Associates v
Rivera
2001 (1) SA 88
(SCA) at 92 H-J).
8.
The functions of an expert witness have been set out in
Glenn
Marc Bee v The Road Accident Fund
(093/2017)
[2018] ZASCA 52
(29 March 2018) at paragraph 22 as follows:
“
22.
Expert witnesses are required to lay a
factual basis for their conclusions and explain their reasoning to
the court. The court
must satisfy itself as to the correctness
of the expert’s reasoning.
23.
The facts on which the expert witness
expresses an opinion must be capable of being reconciled with all
other evidence in the case.
For an opinion to be underpinned by
proper reasoning, it must be based on corrects facts. Incorrect
facts militate against
proper reasoning and the correct analysis of
the facts is paramount for proper reasoning, failing which the court
will not be able
to properly assess the cogency of that opinion.
An expert opinion which lacks proper reasoning is not helpful to the
court.
(See also Jacobs v Transnet Ltd t/a Metrorail
[2014]
ZASCA 113
;
2015 (1) SA 139
(SCA) paras 15 and 16; see also Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft Für
Schädlingsbekämpfung
mbH
1976 (3) SA 352
(A) at 371F”.
9.
The import of expert testimony was also succinctly set out in the
Gentiruco AG vs Firestone SA (Pty) Ltd
1972 (1) SA 589
(A) 616 H as follows:
“
The true and
practical test of the admissibility of the opinion of a skilled
witness is whether or not the court can receive ‘appreciable
help’ from that witness on the particular issue”.
10.
Regrettably this Court received no help, appreciable or otherwise,
from Professor Copley neither in the form
of his reports nor in his
viva voce
evidence.
He was a poor and unreliable witness who appeared uncertain of the
content of the medical records to which he was
referred by Counsel
for the Plaintiff. He hesitated to give commentary on aspects of the
medical records which he was called upon
to give expert commentary on
and simply appeared unsure when giving the said commentary and/or of
his role before this Court.
11.
He conceded that his reports lack various facts or information upon
which he expressed his opinion; in particular,
he testified that some
of the information upon which he based his opinion was obtained from
the report of a Dr Kellerman. However,
he was unable to state which
facts or information he had borrowed from Dr Kellerman’s
report.
12.
His report and his
viva voce
evidence
are in generalised terms and do not in any way assist this court in
the determination of the issues.
13.
Significantly there are simply no clearly established facts
informing, a clear and correct reasoning, leading
to a cogent
opinion. Professor Copley could not illustrate what facts were before
him at the time he formulated his opinion as
set out in his report,
nor could he set out the source of those facts with any clarity.
Seemingly he sought, as an afterthought,
to rely on the Plaintiff’s
viva voce
evidence which is impermissible; an expert witness must, at the time
of formulating his expert opinion, have knowledge of the facts
and
factors informing his opinion and those facts must be reflected in
his reasoning.
14.
Not only did Prof Copley concede that his report was factually
incorrect with regard to the deceased being
“
wheelchair
bound
”, and that a cardiologist
was better suited to assist the court on the cause/s of the heart
attack that claimed the deceased’s
life; his opinion was
furthermore devoid of any verifiable reasoning and as such was
incapable of being tested. Professor Copley’s
testimony can be
compared to shifting goal posts and was characterised by his standard
response that the causes were “multifactorial”.
His
evidence/opinion cannot be said to be cogent, it is thus unreliable
and is inadmissible.
15.
Plaintiff’s Counsel argued that the facts forming the basis of
Professor Copley’s evidence are
on record in the medical
records before this court. This submission ignores the very
purpose for which expert reports, summaries
and evidence are
required. It is not sufficient to simply have facts or medical
records; such facts and/or medical records
must be considered by a
person holding certain expertise and such person must give a reasoned
opinion thereon which is not the
case herein.
16.
What then remains is the evidence of the Plaintiff which does not and
cannot assist in establishing a
prima
facie
case on causation. I do not
deem it necessary to set out the legal requirements or elements of
causation as set out in the
literature and in the decided law in
these circumstances; suffice to state same have not been,
prima
facie,
established by Plaintiff. In
the circumstances, this court could not find in the Plaintiff’s
favour on the remaining
evidence.
17.
In the premises I make the following order.
(a)
The Defendant is granted absolution from the instance, on the issue
before me, with costs.
_________________________
N NTSEPE
Acting
Judge of the High of South Africa
Appearances
:
Counsel
for the Plaintiff:Adv L Schubart (SC), instructed by Goldberg &
De Villiers Inc
Counsel
for the Defendant: Adv P Jooste, instructed by Friedman Scheckter
Date
heard:
3 December 2019
Judgment
delivered: 4 December 2019