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[2021] ZAGPPHC 284
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Mfo v Road Accident Fund (95928/2016) [2021] ZAGPPHC 284 (11 May 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
CASE No. 95928/2016
In the matter between:
MFO,
YOLISWA
APPLICANT
and
THE ROAD ACCIDENT
FUND
RESPONDENT
JUDGMENT - LEAVE TO
APPEAL
MAHOMED, AJ
The applicant applies for
leave to appeal against a judgment I handed down on 16 March 2021,
wherein I dismissed the claim against
the Road Accident Fund. In my
judgment, the evidence before me did not establish a causal link
between the injuries complained
of and the accident.
1.
On the trial date, I was to determine only the quantum to be awarded,
the merits
had been conceded and an undertaking to pay future medical
expenses was accepted.
2.
The claimant relied essentially on hospital records and on reports of
experts
whom she consulted, approximately 6 years after the accident
occurred.
3. In
this application, Advocate Leopeng, appeared for the applicant and
addressed
me only in respect of the alleged head injuries.
4. Counsel
submitted that the court should accept the medical literature of Dr D
S Bell, which essentially, states that head injuries in minor
children manifest later into adolescence and adulthood.
5. He
submitted that the applicant’s experts, Murirewa, a clinical
psychologist
and Dr Leeuwen, an educational psychologist, both
conducted tests and their results indicated deficits in cognition and
a decline
in scholastic performance, after the accident.
6. Counsel
submitted further, that the hospital records reflect “hit head”
and accordingly the claimant did suffer an injury to her head.
7. I
reserved judgment and considered counsel’s submissions and the
literature
he referred to me, as was accepted in
Pinane
v
RAF 7702/06[2007]
ZAGPHC
379,
where the minor child sustained a head injury and was
hospitalised for a few weeks.
JUDGMENT
8.
The
neurosurgeon’s
diagnosis
of
a
mild
concussion
lacked
logical
reasoning.
9.
In
L
S
Michael
v
Linksfield
Park
Clinic
(Pty)
Limited
[1]
,
the
Supreme
Court of
Appeals at 36, stated,
“
what is
required in the evaluation of such evidence is to determine whether
and to what extent their opinions advanced are founded
on logical
reasoning.”
10. In
this matter, the neurosurgeon, Dr Okoli’s diagnosis is, as
follows:
“
Acute Clinical
Evidence of Brain Injury:
The claimant reports
that she had no direct recall of the accident
and only
came to her senses after the accident and when she was lying the
floor of the bus.
This suggests she had brief altered
awareness or post traumatic amnesia. She had no secondary
neurological deterioration.”
10.1.
He stated that her amnesia lasted about two minutes.
10.2.
He recorded that she was asleep at the time of the accident.
10.3.
He further recorded that from a neurosurgical perspective, she
can
secure a job in the open labour market.
11.
I was not persuaded that the plaintiff suffered amnesia of a nature
that could
result in such serious long- term fallouts, as reported by
the clinical psychologist.
12.
I considered the plaintiff’s account of events after she found
herself
on the floor of the bus, she reported she walked out the bus
unassisted, waited on a grassy patch for an ambulance to take her and
her mates to a hospital. She relayed a clear account of her visit to
the hospital and her stay at the accommodation for two days
where she
and her mates awaited their bus to return home.
13. The
hospital did not record any treatment for a head injury and her GCS
reading
was at normal on admission. She was not place under
observation either.
14. The
neurosurgeon assessed her whole person impairment for the head injury
at 4%. However,
he qualified her for general damages based on the
report of the clinical psychologist.
15.
The
plaintiff consulted a clinical psychologist 5 years and 10 months
after
the
accident. He conducted a series of tests and reported she suffered
long term psychological and behavioural fall outs because
of the
injuries she sustained in the accident.
16.
It
is unnecessary to repeat the list of fallouts, they appear in my
judgment.
[2]
However, it is
noteworthy that, he “estimated” she was of average
intelligence before the accident and his test results
reflected that
she was
of
a below average intelligence. He opined the decline must be due to
the
accident.
17.
He
further reported that her performance at school had deteriorated.
18.
His
does not report having read any school reports, nor has he recorded
having read the educational psychologist’s report.
19.
He
relied solely on the plaintiff’s say so. He did not obtain or
refer to any collateral evidence on her psychological condition
or
her behaviour.
20.
His
report includes a comment by the plaintiff, “she failed in her
final year because she chose difficult subjects.”
[3]
21.
The
clinical psychologist concluded that the results of his tests, are
“in line
with the
neurosurgeon’s diagnosis of a mild concussion.”
22.
He
estimated that her amnesia may have been for five minutes and he
assessed her whole person impairment for her psychological and
behavioural fallouts at 15%.
23.
I am of the
view the clinical psychologist report failed to present a pre and
post
-accident condition to support the alleged fallouts.
24.
He did not
link the fallouts he detected in his test results to the alleged
injuries arising out of the accident. Mr Leopeng argued
that if there
were problems before the accident, the school reports would have
noted them. However, none of those reports were
available as
evidence.
25.
It is trite
that a court is not bound by the opinions of experts. Their opinions
serve
as
a
guide
to
assist
a
court
in
areas
in
which
the
court
has
no
expertise.
A court is
obliged to bring its own mind to bear on the proven
facts, that
is, looking at “the conspectus” of the evidence before
it.
26.
In
my judgment
[4]
, I referred to
RAF v
SM
[5]
,
where
the SCA on similar facts
accepted
the evidence of an expert for the RAF, whose opinion was, that
symptoms of a mild concussion resolve themselves within
a few weeks
to
6
months, and any long-term effects are due to “non accident
related”, causes.
27.
The
report from the educational psychologist also failed to demonstrate a
pre- and post-accident comparative.
28.
He
compiled a report on limited information.
29.
He compiled
a report based on two school reports prior to the accident and
a statement
of results of only three subjects, post-accident.
I must add
that
this
court has not seen the actual report, the subjects scores were
included
in
the expert reports.
30.
No school
reports were before this court and no reasons were given as to
why they
were not in the evidence.
31.
On my
analysis of the scores in reports before the accident I noted a
decline in performance. However, the plaintiff passed the
remaining
last term after the accident and therefore passed grade 9.
32.
Reports for
grades 10 and 11 were not available to him or to this court.
In
any
assessment of the impact of head injuries on minor children, school
reports serve as valuable objective evidence for assessment.
33.
A statement
of results of only three subjects in grade 12 was included in the
evidence.
34.
The scores
for the three subjects were good to very good and demonstrated, on
the probabilities, that the plaintiff was doing well
post- accident,
given that the final year at school usually involves more work and
complexity
in content.
35.
The
educational psychologist report was compiled through the reports by
the plaintiff, only limited school reports and certain tests.
36.
In my view
the report is incomplete and cannot be relied upon to demonstrate a
decline due to the injuries in the accident.
37.
There was
no evidence from collateral sources either on her emotional and
psychological
condition.
38.
It is
noteworthy that the plaintiff has two children, lives with her father
and
siblings,
her mother is away at work and visits only once a month, and she
is
unemployed.
39.
Neither of
the psychologists considered the possible impact of those
responsibilities
and burdens on the young plaintiff.
39.1.
On this point, I must also mention that counsel agreed that his
grounds of
appeal at paragraph 1.6 of his notice is incorrect. He did
not quote the judgment correctly.
40.
I stated in my judgment that having looked at the conspectus of the
evidence
before me, I am of the view the plaintiff failed to prove
that the injuries she suffered are because of the accident. She
failed
to prove the causal link/causation and accordingly the claim
is dismissed.
41. The
test for leave to appeal, is whether another court would on the
evidence
arrive at a different finding. I am not persuaded that
another court will arrive at a different finding on the evidence in
this
case and accordingly the application must fail.
I
make the following ORDER,
1.
Leave to appeal is refused.
2.
No order for costs.
MAHOMED,
AJ
Date
of Hearing:
4 May
2021
Date of
Judgment:
11 May 2021
Appearance for
Applicant: Adv Leopeng
Instructed
Godi Attorneys
012 323 1304
[1]
2001(3) SA 1188 (SCA) at 36
[2]
Judgment paragraphs 39-40
[3]
Judgment paragraph 54.1 ffg
[4]
Paragraphs 59.3 - 60
[5]
(2070/2018)
[2019] ZASCA 103
(22 August 2019)