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[2021] ZAGPPHC 23
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Frantzen v Road Accident Fund (18518/10) [2021] ZAGPPHC 23 (22 January 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
22
January 2021
CASE NO: 18518/10
In
the matter between:
M.A.L.
FRANTZEN
PLAINTIFF
and
ROAD
ACCIDENT FUND
DEFENDANT
This
judgment is issued by the Judge whose name is reflected herein and is
submitted electronically to the parties/their legal representatives
by email. The judgement is further uploaded to the electronic file of
this matter on Caselines by the Judge or his/her secretary.
The date
of this judgment is deemed to be 22 January 2021.
JUDGMENT
COLLIS
J
INTRODUCTION
(1)
On 8 April 2007, the plaintiff Mr. Merik
Antoinette Ludo Frantzen was involved in an accident. As a result of
the collision he has
instituted a personal injury claim against the
defendant.
(2)
As per his Particulars of Claim, and specifically
paragraph 5 thereof the plaintiff alleges as follows:
“
As gevolg van
die nalatigheid van die versekerde bestuurder en die ongeluk het die
Eiser die volgende beserings opgedoen:
5.1 ‘n
Sagte-weefsel besering van die nek en rug.”
(3)
On 12 May 2020 the proceedings commenced. At the
hearing the parties informed the court that the issue the court was
called upon
to determine is the causation between the accident of 8
April 2007 and the plaintiff’s current movement disorder.
(4)
It was further agreed between the parties, that
this issue is to be determined separately from all remaining issues
and in terms
of Rule 33(4) the court ordered such a separation.
(5)
In short it was the plaintiff’s case that
the onset of dystonia was as a result of the collision which occurred
on 8 April
2007, which has resulted in severely debilitating effects
which the plaintiff alleges he should be compensated for by the
defendant.
The defendant holds the opposite view.
ONUS
(6)
The plaintiff carried the
onus
to establish on a preponderance of probabilities, whether the
plaintiff’s dystonia was factually caused by the positive act
or commission of the insured driver as a result of the collision
which occurred on 8 April 2007. Differently put, whether there
is a
causal link between the collision which occurred on 8 April 2007 and
the resultant harm.
(7)
Causation
as one of the five elements of delictual liability gives rise to two
distinct enquiries. The first is a factual enquiry
into whether the
negligent act or omission caused the harm giving rise to the claim.
If it did not, then it follows that this is
the end of the matter. If
it did, then the issue of legal causation comes into play.
[1]
(8)
In the decision De Klerk v Minister of Police
[2019] ZACC 32
par 24 the ‘but for’ test is ordinarily
applied to determine factual causation.
(9)
In the
case of ‘positive’ conduct or commission on the part of
the defendant, it must be demonstrated that ‘but
for’ the
action (
negligent
driving by the insured driver
),
the harm (
dystonia
)
would not have occurred.
[2]
(10)
The
plaintiff must as a result convince the court that it is more
probable than not, but for the collision the harm (dystonia) would
not have occurred.
[3]
(11)
In the present matter the opinion expressed by
the various experts who testified will be instructive.
(12)
As to the field where medical certainty is
virtually impossible the following was stated at paragraph 15 in the
Life Healthcare
decision regarding statements made by experts:
‘
Judges
must be careful not to accept too readily isolated statements by
experts especially when dealing with a field where medical
certainty
is virtually impossible. Their evidence must be weighed as a whole
and it is the exclusive duty of the court to make
the final decision
on the evaluation of expert opinion.’ In Michael & Another
v Linksfield Park Clinic (Pty) Ltd &
Another
[2002] 1 All SA 384
(A);
2001 (3) SA 1188
(SCA) paras 36-37, the court said:
‘
That being
so, what is required in the evaluation of such evidence is to
determine whether and to what extent their opinions advance
is
founded on logical reasoning. That is the thrust of the decision of
the House of Lords in the medical negligence case of Bolitho
v City
and Hackney Health Authority
[1997] UKHL 46
[
[1997] UKHL 46
;
1998] AC 232
(HL(E))’.
The court further
expressed the view that:
‘
The court
must be satisfied that such an opinion has a logical basis, in other
words that the expert has reached a defensible conclusion.’
(13)
It is therefore against this background that the
plaintiff’s case will be assessed and the conspectus of
evidence presented
before this court evaluated.
ISSUES
NOT IN DISPUTE
(14)
By agreement between the parties, the following
issues remain common cause between them:
14.1
The
locus standi
and
date of birth of the plaintiff;
14.2
Compliance with the statutory requirements by the
plaintiff;
14.3
It was further common cause that the accident
which occurred on 8 April 2007 was the sole cause and as a result of
the negligence
of the insured driver.
(15)
In the
present matter the plaintiff did not testify. The parties were in
agreement that the facts giving rise to this dispute, are
those facts
as recorded in the defendants’ neurosurgeons report prepared Dr
Percy Miller dated 27 April 2020, and more specifically
those facts
recorded under paragraphs 1.1 to 1.6 of the report.
[4]
I will in due
course return to those facts where necessary for the purposes of this
judgment.
EVIDENCE
(16)
On behalf of the plaintiff’s case, only Dr
Johannes Albertus Smuts testified. In a summary form the witness
testified as follows:
16.1
He qualified as a General Medical Practitioner in
1984 and obtained his qualification as a Neurologist in 1993. Soon
after qualifying
he did a fellowship in America in Electro Psychology
and it was during this time that he started using the Botox drug for
the management
of dystonia.
16.2
When he started his practice in 1995 his practice
evolved into a movement disorder practice and he continued to
practice in this
field until 2012.
16.3
As to the membership which he holds, he testified
that he is a member of the South African Neurology Association, he is
a member
of the Pain Association of South Africa and he used to
previously hold membership of the International Movement Disorder
Society.
16.4
During 1988-2004 he was also President of the
Dystonia Society of South Africa.
16.5
He
examined the plaintiff in order to compile a medico-legal report on
16 February 2009 some two years almost after the accident
in question
had occurred. Pursuant to such examination he compiled a report which
was marked as Exhibit A1 before this court.
[5]
He also later
complied two other further reports, which were marked as Exhibit A2
and A3 respectively.
16.6
During his initial examination of the plaintiff,
he reported to him that shortly after the accident he developed
spasms of his neck
but was able to return back to work although he
could no longer work for longer than two hours. Standing presented a
major problem
to him. Following these spasms, he received injections
from an orthopaedic surgeon and he also received sessions from a
physiotherapist.
16.7
Around January 2008 he had his “first
attack” of spasms which left him unable to control his
voluntary movements. Several
experts of various disciplines were
thereafter consulted and when the plaintiff returned to Dr Smuts,
during April 2008, he observed
that the plaintiff had a persistent
abnormal position of his neck and some continuous movement at the
corner of his mouth.
16.8
Upon his examination of the plaintiff during this
session he concluded that the plaintiff as a result of the impact had
sustained
an injury around the cervical region of the spinal cord.
Furthermore, that it seems that the impact of the accident is related
to the pain syndrome and from the history given it is clear that
there is a temporal relationship (link) between the accident and
the
onset of pain symptoms.
16.9
In his report Dr Smuts as such concluded, that
based on the history obtained from the plaintiff and his clinical
observations, that
the movement disorder is a form of tardive
dyskinesia which resulted from medication used to treat the cervical
problem as a result
of the collision. In respect of his first report
compiled, the doctor no longer had any clinical notes available to
consult.
16.10
On 18
February 2016, Dr Smuts examined the plaintiff for a second occasion.
Pursuant to this examination he compiled a report, which
report was
handed into the record and marked as Exhibit A2.
[6]
16.11
At his disposal when he consulted the plaintiff
he obtained collateral information from the plaintiff and also had at
his disposal
medico-legal reports from a physiotherapist and two
neurosurgeon reports.
16.12
On examination, Dr Smuts observed that the
plaintiff’s attack currently happened about twice a week and
that it is often triggered
by menial activities. At the time the
plaintiff was on no medication as he was of the view that it could
precipitate or aggravate
the attacks.
16.13
In his second report, Dr Smuts opined that
given the fact that the plaintiff still presented with a long
duration and the persistent
nature of the disorder, that he as such
suffered from a post traumatic dystonic disease which has rendered
him severely impaired.
16.14
He thus diagnosed the plaintiff with a condition
known as paroxysmal kinesigenic (meaning short and repetitive)
dystonia.
16.15
On
28 January 2020, he examined the plaintiff for the third time and
compiled Exhibit A3 pursuant thereto.
[7]
In this
report he observed that the plaintiff’s attacks are unaltered
and that his functioning is severely compromised.
16.16
During this examination he diagnosed the
plaintiff to be suffering from paroxysmal dyskinesia (which are rare
disorders) and which
may have a primary origin mostly genetic or
present as secondary to underlying causes such as due to lesions of
the central nervous
system.
16.17
In this report Dr Smuts opined that proof of a
link or not to the accident, is in his opinion more than the stated
facts. It will
remain pure speculation.
(17)
During cross-examination Dr Smuts conceded the
following:
17.1
In many cases dystonia is a very rare condition
and it does not have a specific and clear cause (Idiopathic);
17.2
In some instances, it may be caused by genetics
or classic dystonia which does not have a clear cause. Another
classification is
acquired dystonia such as those induced by serious
brain trauma and the ganglia;
17.3
That the onset of dystonia can start rather
spontaneous;
17.4
That when he examined the plaintiff on the second
occasion, he should have diagnosed the plaintiff to have presented
with paroxysmal
non kinesigenic dystonia (slow and persistent
movement) and that his diagnosis made in his second report was
incorrect.
17.5
When confronted with his conclusion that the
plaintiff’s dystonia onset was caused by the collision, he
conceded that it was
probable, but equally he could not exclude the
probability that the plaintiff already had dystonia;
17.6
He opined that where symptoms of dystonia present
closer to the trauma being inflicted, a causal relationship can be
easily established.
17.7
The witness also conceded that reading the same
literature and examining the same patient can only assist to a point.
Beyond that
point it now becomes a legal and statistical question and
not a medical question.
17.8
He also conceded that in the event that the
accident was to be eliminated it does not necessarily follow that the
dystonia will
disappear.
(18)
This then the evidence presented by the
plaintiff.
(19)
Dr Percy Miller, a Neurosurgeon was the first
witness to testify on behalf of defendant. He first examined the
plaintiff 27 April
2020 in anticipation of the impending trial.
Pursuant to his examination he compiled a report the contents of
which he confirmed
when he took the witness stand. The said report
was handed into court and marked as Exhibit B. During his testimony
Dr Miller testified
as follows:
19.1
On his clinical examination of the plaintiff he
could not find that the probabilities point that the 2007-accident is
the cause
of the dystonia suffered by the plaintiff. Differently put,
if the accident did not occur, this would not have resulted in the
plaintiff having presented with dystonia later on. The plaintiff in
question had several accidents prior to his 2007 accident, and
has
also had four (4) other accidents since the 2007 accident.
19.2
That in his practice he has not come across a
case where a patient who suffered a whiplash injury during the
collision, presented
with dystonia later on. He has been in practice
for over 40 years and have seen thousands of patients over the years.
This
is more likely to occur where a patient sustained a head
injury as oppose to a whiplash injury.
19.3
In the case of the plaintiff he was diagnosed
with idiopathic dystonia, i.e. where the cause of the dystonia is
unknown.
(20)
On 6
May 2020, Dr Smuts and Dr Miller met and compiled a joint minute
pursuant to such meeting. The said minute was handed into
the record
and marked as Exhibit C by the court.
[8]
As per this
minute, the experts were in agreement as to the clinical history of
the plaintiff and also the accident history. They
were further in
agreement that there existed some uncertainty about the medical
treatment offered to the plaintiff in the initial
stages after his
collision. They further agreed on the clinical diagnosis of dystonia
and that the cause of the dystonia does not
relate to his brain
injury. They however held divergent views as to whether the accident
in question brought about the onset of
the dystonia.
(21)
In their joint minute, Dr Miller considered the
onset of dystonia, following a cervical spine injury as being a
highly improbable
clinical existential situation. Furthermore, he
raised concern with the finding made by Dr Smuts in his first
medico-legal report
wherein he concluded that any link between the
accident and the onset of dystonia remained speculative, whereas at
the time when
he compiled his third report, he concluded that the
association between the two is now well established. Dr Smuts in
contrast opined
that rarity of a condition cannot be the only ground
on which causal relationship is excluded, and even where a causal
relationship
between the trauma and onset of dystonia is unclear, it
cannot be dismissed.
(22)
During
cross-examination, Dr Miller agreed that he is a Neurosurgeon and as
such not an expert on dystonia, such as Dr Smuts. He
referred this
court to articles
[9]
written by Dr
Jankovic which was considered by himself and Dr Smuts when
considering the link between movement disorders after peripheral
trauma. In terms of these articles the author has adopted the
following criteria for a diagnosis of peripherally induced movement
disorders:
22.1
the injury must have been severe enough to cause
local symptoms persisting for at least two weeks or requiring medical
intervention
within two weeks or requiring medical evaluation within
two weeks after the peripheral injury;
22.2
the onset of movement disorder must have occurred
within a few days or months (up to a year) after the injury; and
22.3
the onset of movement disorder must have been
automatically related to the site of the injury.
(23)
In the very same article the author also
recognises that even where the whole criteria is present in a
patient, this does not prove
that the movement disorder is caused
solely by the trauma and that other factors may play a role in its
pathogenesis.
(24)
The
defendant also presented the evidence of Dr Tony Birrell, an
Orthopaedic Surgeon who examined the plaintiff on two occasions.
Pursuant to his examination of the plaintiff he complied two reports,
which contents he confirmed before the court.
[10]
He testified
that he had been in practice for almost 50 years and over these years
he has never come across a patient having presented
with pure
whiplash with dystonia.
(25)
During cross-examination he confirmed having seen
patients who suffered from spastic torticollis (a form of dystonia)
arising from
whiplash but conceded that it occurs in very few
occasions and that patients usually recover well with treatment.
ANALYSIS
(26)
Now, as I interpret the conspectus of the
evidence presented before this court, what is common between the
parties, is that the
2007- accident was not the first collision that
the plaintiff was involved in and during this accident, the plaintiff
sustained
a mild whiplash injury.
(27)
This injury the experts were
ad
idem,
should be described as mild as the
plaintiff following the accident was able to exit his vehicle and
exchanged notes with the other
driver. Approximately 30 minutes
thereafter he began feeling nausea and went to hospital, but he was
not admitted.
(28)
Thereafter and intermittently in the days and
months that followed, the plaintiff started experiencing, pain and
discomfort, stiffness
of his neck for which he called in the
interventions of experts of other disciplines.
(29)
It is common cause that he presented with
dystonia only approximately ten (10) months after this collision,
which dystonia as per
his own expert was spontaneous and could have
been pre-existing and genetic prior to the 2007-accident.
(30)
The onset of the dystonia approximately ten (10)
months following the trauma is, as I understand the evidence of Dr
Smuts, but one
of the criteria which the doctor places reliance upon
and which time delay he considers as the norm, rather than an
exception.
(31)
In applying the above criteria and the whiplash
injury sustained by the plaintiff; post-accident the plaintiff would
have presented
with only post-whiplash dystonia, whereas in the case
of the plaintiff he however suffers from a more generalized type of
dystonia.
Thus, on the criteria formulated by Dr Jankovic, it does
not appear as if the onset of movement disorder is related to the
site
of the injury, i.e. his neck.
(32)
Furthermore, the articles relied upon by Dr Smuts
and also counsel for the plaintiff and having regard to the criteria
as formulated
by Dr Jankovic on the evidence presented, is not on a
balance of probability proof of the cause-and-effect-relationship
between
peripheral injuries and subsequent movement disorder of the
plaintiff. The three legs of the criteria as formulated by Dr
Jankovic
it appears is not even all present as in the case of the
plaintiff.
(33)
Dr Miller as mentioned, was of the view that
there was no causal relationship between the plaintiff’s
whiplash injury and
the onset of the dystonia with which the
plaintiff now presents. He held the view, that if there was, it would
be a very rare phenomenon.
(34)
Dr Miller held the view, that the plaintiff
having presented with the onset of dystonia only (10) months after
the 2007-accident,
it could hardly be said that there was a causal
temporal connection between the two.
(35)
Furthermore, the dystonia that the plaintiff
presented with, was not only focussed on his neck, but was also
facial, ophthalmic,
laryngeal, truncal, brachial and thus is makes it
exceedingly unlikely that this dystonia is related to whiplash injury
as the
plaintiff presented with a more generalized type of dystonia.
Premised on the above, Dr Miller was sceptic of the criteria as set
out in the articles written by Dr Jankovic and as argued by counsel
for the defendant, it is more probable that the onset of the
dystonia
is not connected to the 2007-accident.
(36)
The plaintiff carries the onus and must prove a
factual causation on a preponderance of probabilities. Differently
put, the plaintiff
must convince this court, that it is more probable
than not, but for the 2007-accident, the harm (dystonia) suffered by
him would
not have occurred.
(37)
The initial diagnosis made by Dr Smuts, his own
expert, in his first report and later in his subsequent reports,
clearly shows that
this
onus
carried by him, on the condition he presented with, is not as
conclusive as to what brought about his dystonia and it must as a
result then follow that the 2007-accident could not be said to have
been the
condictio sine quo non
for
his dystonia. His condition having regard to the testimony of his own
expert could have been brought on by genetics, or it could
have
occurred even without the 2007-accident. This condition it was also
conceded to by Dr Smuts could just as well have been purely
coincidental.
(38)
Furthermore, Dr Smuts having made the concession
that in the present matter expert opinion can only be placed reliance
upon to a
point and beyond that point given the rarity of the
dystonia it then becomes a statistical and legal question as opposed
to a medical
question, is furthermore indicative of the probabilities
being rather against the plaintiff as opposed to pointing in favour
of
the plaintiff.
ORDER
(39)
Therefore, in respect of the issue this court was
called upon to determine:
39.1
In terms of rule 33(4) of the Uniform Rules of
Court, the court finds that no causal link could be found between the
collision which
occurred on 8 April 2007 and the dystonia with which
the plaintiff was subsequently diagnosed.
39.2
The defendant being the successful party is as a
result awarded the costs of the proceedings, including the costs of
counsel.
C.J.
COLLIS
JUDGE
OF THE HIGH COURT
Appearances
Counsel
for the Plaintiff : Adv. J.S.M.
Guldenpfennig & Adv M. Upton
Attorney
for the Plaintiff : Van Der Merwe
Attorneys
Counsel
for the Defendant : Adv. A.B. Rossouw
Attorney
for the Defendant : Mothle Jooma Sabdia Inc.
Date
of Hearing
: 12-13 May
2020; 22 July 2020
Date
of Judgment
: 22 January 2021
Judgment
transmitted electronically.
[1]
Lee v Minister of Correctional Services
2013 (2) SA 144
9 (CC) para
38.
[2]
Lee judgment supra para 41; Mashongwa v Passenger Rail Agency of
South Africa
2016 (3) SA 528
(CC) para
65.
[3]
Life Healthcare Group (Pty) Ltd v Suliman
2019 (2) SA 185
(SCA) para
16.
[4]
[4]
Defendant’s Medico-Legal Report Volume 2 p152-190
[5]
Plaintiff’s Medico-Legal Reports Volume 1 p 43-52
[6]
Plaintiff’s Medico-Legal Reports Volume 1 p 53-57
[7]
[7]
Plaintiff’s Medico-Legal Report Volume 1 p 58-62.
[8]
Index Joint Minute p 22-29.
[9]
Neurology 1994; 44-2006-2014 from the Parkinson’s Disease
Centre and Movement Disorder Clinic, Department of Neurology,
Baylor
College of Medicine; Houston TX.
[10]
Defendant’s Medico-Legal Reports Volume 1 p 1-53.