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[2021] ZAGPPHC 382
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Van Tonder N.O v Road Accident Fund (4032/2013) [2021] ZAGPPHC 382 (30 May 2021)
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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION
PRETORIA)
Case No: 4032/2013
REPORTABLE: YES
/ NO.
OF INTEREST TO OTHER
JUDGES: YES / NO.
REVISED.
DATE:30/05/2021
In
the matter of:
Adv
Van Tonder
N.O.(M.
P.
Mofokeng)
Plaintiff
and
Road
Accident
Fund
Defendant
JUDGMENT
Maumela
J.
1.
In this case the Plaintiff,
M. P.
Mofokeng,
approached this Court claiming general
damages in the amount of R 800 000.00. He was a passenger in a motor
vehicle on the 3
rd
of August 2009. At that time, he was 25 years old. At the time he
litigated, he was about 36 years old.
2.
The Defendant accepted liability to pay 100% of
the Plaintiff’s proven damages on the 15
th
of October 2014. In that regard, the Defendant has already
compensated the Plaintiff for his loss of income/earning capacity.
3.
It is pointed out that a closer scrutiny of
the HPCSA report provides clarity on the extent of the seriousness of
the sequelae sustained
you to the resultant brain injury, while on
the other hand, Dr. H.J Edeling’s report is informative
concerning the nature
or rather the degree of the injury, which in
his report is described as brain injury. The phrase “at least
moderate”
is not defined in Dr. H.J Edeling’s report, and
that omission necessitates the intervention of this Court to decide
on the
proper meaning of the phrase.
4.
It is pointed out that Dr. H.J Edeling’s
opinion is founded on the Plaintiff’s subjective version of the
events after
the accident. The Defendant argues that this version
which was provided by the Plaintiff cannot constitute
prima
facie
facts upon which an objective
expert’s opinion can be formulated. On page 18 of Dr. H.J
Edeling’s report, it is recorded
that this version was founded
on the Plaintiff’s own recollection of the events after the
accident. In that regard, Plaintiff
recollected that he lost
consciousness at the scene of the accident and was left with only a
fragmented recollection of the subsequent
events. This is the
material information required for a determination on the degree or
extent of severity of the brain injuries,
that is, whether the injury
is mild, moderate, severe or serious.
5.
According
to the initial ‘duration of coma method’ of
classification, individuals with mild brain injury regain
consciousness
in less than half an hour and individuals with moderate
brain injuries regain consciousness after more than half an hour.
[1]
It was submitted that in the absence of the hospital records
[2]
and the brain scans within the appropriate time window of 2 to 5 days
after the accident attesting to the duration of the Plaintiff’s
unconsciousness after the accident, the Plaintiff cannot provide the
prima
facie
facts
upon which a proper expert opinion can be formulated on the
period of his unconsciousness if any after the accident.
6.
According to the initial duration of coma
method of classification, individuals with mild brain injury regain
consciousness in less
than half an hour and individuals with moderate
brain injuries regain it in more than half an hour. The Defendant
argues that the
Plaintiff who was in physical and emotional distress
after the accident, cannot be expected to recall events as they
happened almost
6 years after the accident, when taking into regard
the date of assessment written on the report by Dr. H.J Edeling. The
state
is the 3
rd
of November 2009. The Defendant contends that any opinion based on
such a report will be based on mere speculation.
7.
It
is trite that courts can only rely on the facts that have been
verified. In the case of
MV
Pasquale della Gatta; MV Filippo Lembo; Imperial Marine Co v
Deiulemar Compagnia di Navigazione Spa
[3]
;
See also Michael & another v Linksfield Park Clinic (Pty) Ltd &
Another
[4]
paragraphs
34-40;
CFRoad Accident Fund v S M
[5]
,
at paragraph 2:
the
SCA held that:
“
[T]he
court must first consider whether the underlying facts relied on by
the witness have been established on a prima facie basis.
If not,
then the expert's opinion is worthless because it is purely
hypothetical, based on facts that cannot be demonstrated even
on a
prima facie basis. It can be disregarded. If the relevant facts are
established on a prima facie basis, then the court must
consider
whether the expert's view is one that can reasonably be held on the
basis of those facts.
In
other words, it examines the reasoning of the expert and determines
whether it is logical in the light of those facts and any
others that
are undisputed or cannot be disputed. If it concludes that the
opinion is one that can reasonably be held on the basis
of the facts
and the chain of reasoning of the expert, the threshold will be
satisfied.”
8.
This Court can be in a better position to
rely on the expert’s opinion only if they are founded on the
probable facts which
weigh much to the greater possibility. The
Defendant submits that in the event where the Court disregards the
expert report of
Dr. H.J Edeling, the Plaintiff will qualify for less
in terms of general damages and as will appear below, in the region
of mild
brain injuries. This is so because the HPCSA report which is
admitted by the Defendant does not describe the degree or nature of
the brain injury, except its sequelae, leaving everyone wondering
about the degree or nature of the brain injury.
9.
The
hospital records contradict Dr. H.J Edeling’s finding regarding
the degree or nature of the Plaintiff’s brain injury.
In the
records, it is noted that the Plaintiff had GCS (Glasgow Coma Scale),
level of 15/15, recorded on arrival at hospital more
than 2 hours
after the accident. This is consistent with a mild primary diffuse
(concussive) brain injury by the initial GCS method
of
classification.
[6]
It is
recorded, shortly thereafter that the Plaintiff was declared fit and
discharged to go home. There were no further neurological
observations found, which is the missing information which would
provide a proper foundation or rather
prima
facie
facts
for Dr. H.J Edeling to formulate his opinion.
10.
The Defendant submits that at the least,
the phrase refers to the word “minimum”, which suggests
that the Plaintiff’s
injuries should be regarded as
mild-moderate brain injury as against moderate-severe brain injury.
The Defendant’s view is
premised on the fact that the minimum
moderate brain injury is closer to the mild brain injury than the
severe brain injury. The
Defendant submits further, that the other
expert’s report in the Plaintiff’s case should not be
given due consideration
as they mainly depended on Dr. H.J Edeling’s
opinion which was not founded on the
prima
facie
facts upon which a proper and
reliable opinion can be formulated.
11.
The Defendant submits that the issue of the
sequelae from the injuries sustained needs to be understood against
the background provided
above. It views that the Plaintiff the
general sequelae of the scars which the Plaintiff suffered cannot
embarrass him overly as
they did not appear on his face and can be
easily covered with clothes. It also argues that the mental fatigue,
inattentiveness,
difficulty with the retrieval of memories,
impairment of logical reasoning and disinterest in driving shall not
impact his life
seriously. Defendant submits that the Plaintiff can
deal with all the sequelae through proper medical treatment.
12.
It
is trite law that in considering general damages, one is concerned
with the consequences of the injuries which cannot be calculated
with
certainty in terms of the number or the figures. The Defendant argues
that this Court has a vast judicial discretion to exercise
after
consideration of the relevant facts. The Defendant raises the point
that the reports tendered by the Plaintiff are very stale,
so much so
that they may mislead the Court. The said reports date back over more
than the 2 year period that is conceived to be
the normal years up to
which reports written by expert can still be considered to be
reliable.
[7]
13.
In
the case of
NG
vs Road Accident Fund,
[8]
reliance on an expert’s opinion that was stale was abandoned
because of the risks that come with the reports in that they
may
mislead the Court regarding the real sequelae from the injuries
sustained. The date of the 26
th
of July 2012 is recorded as the date of assessment on the first page
of each report. The report by Dr. Kaplan shows the date of
26 July
2012. This is almost seven years before. The report by Dr. Cathy
Angus’s, a clinical psychologist, was dated the
14
th
March 2012, which is 7 (seven) years before. His second report is
dated the 19
th
of January 2015 which is almost 4 years before. The report by Dr.
Anton H. Van den Bout, an Orthopedic surgeon, is dated
the 20
th
of October 2015 which is almost 4 (four) years before the time of
consideration.
14.
The report by Dr. H.J. Edeling,
(Neurosurgeon), is dated the 03
rd
of November 2015. This is almost 4 (four) years later Dr. Leon, a
(Psychiatrist) on the 5
th
of July 2016, was almost 3 (three) years before, Dr Liezel Vander
Merwe (ophthalmologist) on the 27
th
of
January 2016, which is almost 3 (three) years. The report by
Ida-Marie Hattingh, (speech/language pathologist and Audiologist),
is
dated the 11
th
of May 2015 which is almost 4 (four) years later and that of Rialette
Gous, (speech/language pathologist and Audiologist), on the
21th of
May 2015 which was almost 4 (four) years before the determination of
the sequelae. It is apparent that all the reports
are notably stale,
having been off time by periods ranging from 3, 4 to 7 years.
15.
The Defendant raises the point that to
date, there is no report from any radiologist submitted by the
Plaintiff to prove any fracture
that he may have sustained if any. It
states that this is suggestive of the point that Dr. Kaplan’s
recommendation was ignored,
at best by the Plaintiff, and for reasons
not known. Seemingly, instead of upholding Dr. Kaplan’s
recommendation on the basis
of which the Plaintiff was supposed to
undergo the same x-ray processes, the Plaintiff ignored that and
opted for another expert
opinion by Dr. H.J Edeling of the same
medical territory or jurisdiction and who for unknown reasons did not
recommend the X-ray
process.
16.
The whole of the Plaintiff’s case
pertaining to the injuries and their respective sequelae comprise of
the above facts. The
Defendant questions how the Plaintiff arrived at
an amount of R 800 000-00 given the lack of proof of fractures
and serious
injuries capable of taking long-term effects on the life
of the Plaintiff. The injuries sustained can be best analyzed in the
light
of the reports from the HPCSA and Dr. Edeling where it concerns
the issue of brain injury.
17.
As indicated before, on page 18 of Dr. H.J
Edeling’s report, there is a record noted which was drawn from
the Plaintiff’s
own recollection of the events after the
accident that he lost consciousness at the scene of the accident and
he only had a fragmented
recollections of the subsequent events. For
the court to be able to determine the degree of the brain injuries in
terms of whether
they were mild, moderate, severe or serious, it has
to rely on this material information required also for purposes of
determining
the extent of the relevant sequelae.
18.
The Defendant contends that their reports
compiled by Dr. H.J. Edeling ought to be disregarded based on the
fact that they have
gone stale and therefore cannot be considered to
be founded on
prima facie
facts
in which the court can rely. It emphasizes that it will be better to
rely on reports by expert’s opinion which are founded
on the
probable facts which represent greater possibility. If the court were
to disregard the report by Dr. H.J. Edeling, that
was a result in the
Plaintiff qualifying for general damages at a lesser amount than what
was claimed.
19.
The Defendant points out that in the event
where the Court disregards the expert report by Dr. H.J Edeling, the
Plaintiff will qualify
for a lesser amount to be paid as general
damages. That is demonstrated below in submissions pertaining to mild
brain injuries.
This is so because the HPCSA report which is admitted
by the Defendant does not describe the degree or nature of the brain
injury
suggested in the report by Dr. H.J. Edeling. As such,
questions still remain unanswered regarding the degree or nature of
the brain
injury.
20.
This is compounded by the fact that the
hospital records reveal a contrary scenario as compared to the
findings by Dr. H.J Edeling
which are contained in his finding
regarding the degree or nature of the Plaintiff’s brain injury.
In the records, it is
noted that the Plaintiff had GCS (Glasgow Coma
Scale) at the level of 15/15 which was recorded on arrival at
hospital. That was
more than 2 hours after the accident. The
Defendant points out that this is consistent with a mild
primary diffuse
(concussive) brain injury derived from the initial
GCS method of classification.
21.
The phrase “at least moderate”
was not defined by the expert in his report and now it is for the
Court to arrive at
the proper meaning to it. The Defendant argues
that a proper definition of the phrase
“at least
moderate”
would indeed be determinative of
whether the brain injuries are of a particular degree or not.
In
the amended pages of the particulars of claim dated the 12
th
of October 2019, it is recorded that the Plaintiff sustained the
following injuries:
20.1. A head injury with brain injury;
20.2.
A fracture to the cranium;
20.3. A deep scalp laceration;
20.4.
Multiple soft tissue injuries over the body and
20.5. A contusion
to the chest.
22.
At the same time, after the Defendant rejected the general
damages, it appears from the (HPCSA) report dated the 29
th
of July 2019, in which the Plaintiff’s injuries were recorded
as follows:
21.1. Head injury;
21.2. Multiple abrasions;
21.3.
Contusions; and
21.4. Lower back injury.
23.
It is recorded in the letter that the Plaintiff’s soft
tissue injuries will have all healed well
before
29 July 2019 although there is no absolute certainty about that. It
was also noted that
the Plaintiff had a traumatic brain injury
with the cognitive defects/communication difficulties which were
noted as serious. Amongst
others, the HPCSA on its general approach
report which is material for the adjudication of the issues at hand,
does not find that
the Plaintiff sustained a fracture to the cranium.
This issue is one that required further scrutiny.
24.
The Defendant also points out that it appears from Dr. H.J.
Edeling’s report that Dr. Kaplan, the first appointed
neurosurgeon
for the Plaintiff who has diagnosed the Plaintiff’s
head and brain injuries and filled the RAF form has recommended that
investigation by the skull x-ray should clarify whether there was a
depressed skull fracture or not. The point made in Dr. Kaplan’s
recommendation was ignored at best by the Plaintiff and for unknown
reasons.
25.
The Defendant points out that in the report of the second
appointed Neurosurgeon, Dr. H.J Edeling, dated 04
th
of
November 2015 that the fracture was not confirmed. According to Dr.
H.J Edeling, the Plaintiff sustained the following injuries:
24.1.
Multiple abrasions and soft tissues injuries, notably left shoulder,
left chest and left thigh;
24.2. Head injury with left parietal
deep scalp abrasion; and
24.3. Traumatic brain injury of at least
moderate degree.
26.
The Plaintiff did not undergo an x- ray. As a result, he
cannot prove sufficiently that he sustained
any
fracture to his head as a result of the accident. At the same time,
proof of the injuries sustained constitutes a major basis
of the
claim brought by the Plaintiff. It is for that reason that the
Defendant questions how the Plaintiff arrived at the amount
of R
800 000-00 as compensation that should be paid without having
proved the fractures he claims through the technology involving
x-ray.
27.
The Defendant does not dispute that the
Plaintiff
suffered general sequelae of the scars but it contends that such
scars cannot be highly embarrassing to the Plaintiff
because they do
not appear on his face and therefore can be easily covered with
clothes. It submits that the mental fatigue, inattentiveness,
difficulty with the retrieval of memories, impairment of logical
reasoning and disinterest in driving, all make for the sequelae
that
were caused by the accident. However, it is contended that the
Plaintiff can cope with them with proper medical treatment.
28.
It is undisputable that the reports
submitted on behalf of the Plaintiff are so stale that they may
mislead the Court. As will appear,
they are all far from 2 years,
which is conceived to be the normal years for the reliable expert
reports. It is for the Court to
take all relevant factors into
consideration in arriving at a decision in the amount to be awarded.
29.
It
is also trite law that while courts are free to exercise their
discretion, in awarding damages for injuries sustained, they have
to
rely on precedents as guidelines. As such, previous awards only serve
as a guideline. The Court should in the exercise of its
discretion
take into consideration the guideline on how to approach the issue at
hand as held in
De
Jongh V Du Pisanie No
[9]
at
Paragraph [65] at 477D – G where it was held: “
The
effect of the aforementioned perceptible tendency towards higher
awards for general damages is again, however, not capable of
being
determined with mathematical precision. It is not certain precisely
when the tendency began and when it will end. It has
quite possibly
span class come to an end already. An award from the past to which a
court refers could therefore have been made
after taking the tendency
into account. If the earlier decision which serves as a standard had
been made after having regard to
the tendency towards higher awards,
the allowance of a further increase in awards can hardly be justified
on the grounds of the
same considerations without any additional
reason. In addition, then said tendency clearly does not require the
multiplication
of earlier awards by a predetermined or determinable
factor. In the end the tendency is only one of the considerations
that the
court is justified in taking into account when it, in the
exercise of its discretion, refers to awards, especially in older
cases,
as a guideline.”
30.
In
the case of
Hurter
v Road Accident Fund and Another
[10]
,
the Plaintiff seeks general damages in the amount of R500,000.
Hurter, a 20-year-old with a brain injury more severe to the current
Plaintiff’s as well as lacerations to the lower lip and facial
fracturing was awarded R500,000 in 2010.
31.
In
the unreported judgment in
Van
der Linde v Road Accident Fund
,
an unreported judgment of Modiba J
[11]
,
R380,
000 was awarded to the Plaintiff in respect of general damages for a
permanent spine injury at C5/6 and for psychological
trauma
after taking into account several comparable authorities at
paragraph 44 of the judgment where awards ranging
between R310,000
and R331,000 were made in the 2018 Rand value, hence the higher
award. Unlike the Plaintiffs in the compared authorities,
Van der
Linde had psychological sequelae.
32.
In
M.N
vs Road Accident Fund
[12]
,
handed
down by MODIBA, J on the 21 February 2019, at para 27, the Plaintiff
who sustained a mildly severe traumatic brain injury
as assessed at
casualty level, with a mildly severe outcome diagnosis brain injury
with the majority of any intellectual challenges
being accounted for
on psychiatric grounds rather than by organic brain injury and the
psychological challenges, which are due
to the accident, which may
remain entrenched despite treatment was awarded an amount of R370,000
as an appropriate award for general
damages.
33.
The Defendant submits that the degree of
the Plaintiff’s brain injuries should be considered to be mild
in light of what stands
written on the HPCSA report. Consequently,
the Defendant submits that a fair and reasonable compensation should
be determined based
on the above factors. Therefore, the Defendant
submits that in this case, what would be a fair and reasonable
compensation for
the Plaintiff’s general damages would be at an
amount between R350 000.00 and R500 000.00, having taken the totality
of the
Plaintiff’s case into consideration.
COSTS.
34.
The general principle concerning costs is
that the losing party in the matter carries the costs of the
successful party except in
the case of exceptional cases. The
Defendant views that in this case none of the parties should carry
the cost of the other for
purposes of the 8
th
of October 2016. It is trite that the Court has a discretion with
regard to the payment of costs. The Defendant suggests that the
costs
awarded should be on a party and party scale.
35.
At the end, the Court has a huge discretion
to decide the issue of costs and that is to be only if it was
appraised of all the relevant
facts of the particular case to warrant
the particular costs. It is submitted that the costs should be in a
party and party scale
and for each party to carry each cost for the
date of the 16
th
September 2019 as the postponement on that day was at the instance of
the Court and not the parties.
36.
The Plaintiff requested a cost order which
is different from what is suggested by the Defendant. The Defendant
proposes that the
order be to the effect that each party pays its own
cost for purposes of the 8
th
of October 2019.
37.
It is not disputed that Plaintiff was
involved in an accident which he sustained injuries. It is only the
extent of the injuries
sustained that is in dispute. In that regard
it would be useful to rely on the medical reports by a variety of
health care practitioners
that were submitted. However, in this case,
many of the said reports were way out of time, so much so that they
could not provide
proper guidance for the benefit of a determination
of a reasonable compensation in favor of the Plaintiff.
38.
In the absence of medical reports that are
in time and therefore reliable, it is for the Court to exercise its
discretion, taking
the injuries sustained by the Plaintiff as well as
all facts into consideration. The Court also has to consider the
long-term effects
of the accident on the Plaintiff.
39.
Having considered all of the factors stated
above, the Court makes the following order:
ORDER.
40.1.
The Defendant is ordered to pay to the Plaintiff, acting in his
representative capacity on behalf of
Mahlele Paulos Mofokeng
,
born on
[…],
(hereinafter referred
to as “the Plaintiff”), in respect of general damages,
the amount of R 480 000-00 (“the
capital amount”).
Payment of the capital amount shall be paid within 60 (sixty) days of
the date of this order.
40.2.
Payment of the capital amount is to be made
into the following account:-
Account Name
: Edeling Van Niekerk Incorporated
Bank
: Nedbank
Branch
: Business Westrand
Account number
: […]
Branch
code :
128605
40.3.
Should the Defendant fail to effect payment
of the capital amount within 60
(sixty)
days of the date of this order, the Defendant shall become
liable for interest
a tempore morae
on the capital amount at a rate of 10% per annum from 14
(fourteen) days from date of this order to date of final
payment;
39.4.
In order to ensure that the monies awarded
to the Plaintiff are suitably protected, as contemplated by the
relevant experts, the
attorneys for the Plaintiff, Edeling Van
Niekerk Incorporated of Block A, Clearview Office Park, Wilhelmina
Avenue, Constantia
Kloof, Roodepoort are ordered to effect payment of
the Plaintiff’s capital to the Mahlehe Paulos Mofokeng Trust
Duly Registered
Under Number […] on 23 July 2019.
39.5.
The Plaintiff’s attorneys shall be
entitled to payment, from the aforesaid funds held by them for the
benefit of the Plaintiff,
of their fees in accordance with paragraph
39.6 herein below.
39.6.
The Defendant pays the Plaintiff’s
taxed or agreed party and party costs on the High Court Scale which
costs
inter alia
will include the following:
39.6.1.
The
costs of 16 September 2019 and 8 October 2019;
39.6.2.
The Costs of Senior-Junior Counsel;
39.6.3.
The costs of travel and accommodation of
the Plaintiff in attending court for trial;
39.6.4. The costs of
the
curator ad litem
.
39.7.
It is recorded that all and any contingency
fee agreements entered into between the Plaintiff and
Edeling van Niekerk
Inc. where previously declared invalid.
39.8. The attorney of
record is entitled to its taxed or agreed reasonable attorney and own
client fees, in the event of the latter,
the appointed trustee and/or
Master of the High Court may insist on the fees to be taxed.
T.A.
Maumela.
Judge of the High Court of South Africa.
[1]
.
See
subparagraph 9.6.1.1.1 of Dr. H.J Edeling report, page 20.
[2]
See
subparagraph 9.6.1.1.1 of Dr. H.J Edeling report, page 20.
.
[3]
.
ZASCA
2012 (1) SA 58
(SCA) paras 25-27.
[4]
.
2001 (3) SA 1188 (SCA).
[5]
.
(1270/2018)
[2019] ZASCA 103
(22 August 2019).
[6]
.
See subparagraph 9.4.1 of the expert report, page 19.
[7]
.
See Paragraphs 9.7 and 9.8 of Dr. Edeling’s report, on page
24; and paragraph 5, Dr. Angus’ report, on page 59.Plaintiff
they will report.
[8]
.
Unreported case number: CASE NO: 13/30599 handed by the Honourable
INGRID OPPERMAN J at para 42.
[9]
.
2005 (5) SA 457
(SCA).
[10]
.
(367/07) [2010] ZAECPEHC 5 (2 February 2010)
[11]
.
Handed down on 29 June 2018, Case number 19860/2016
[12]
.
The unreported case number: 49332/2017