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[2016] ZAGPPHC 814
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Ghany v Road Accident Fund (72554/2014) [2016] ZAGPPHC 814 (2 September 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
NORTH
GAUTENG DIVISION, PRETORIA
CASE
NO: 72554/2014
DATE:
2 SEPTEMBER 2016
In
the matter between:
DB
GHANY
...................................................................................................................................
Plaintiff
And
THE
ROAD ACCIDENT
FUND
.............................................................................................
Defendant
JUDGMENT
MSIMEKI J,
[1]
INTRODUCTION
The
action concerns damages suffered by the plaintiff for personal
injuries she sustained in a collision on 31 January 2014 when
she was
a driver of a motor vehicle. The plaintiff is alleged to have
sustained, inter alia, a concussive head injury. She, as
a result,
sues the defendant, the RAF, under the Road Accident Fund act 56 of
1996 (“the Act”).
[2]
On
13 April 2015, an order by consent, was made regarding the following
issues:
1.
Liability
was apportioned in favour of the plaintiff for 90% of her proven
damages;
2.
A
post apportionment figure of R385 922 16 was settled for general
damages;
3.
An
undertaking in terms of Section 174 of the Act was given;
4.
Costs.
[3]
The
remaining issue to be determined is loss of income.
BRIEF BACKGROUND
[4]
The
trial which was to run for 3 (three) days, commenced on 2 February
2016 and ran for 8 (eight) days. On 11 February 2016 the
plaintiff
and the defendant closed their cases. The plaintiff handed up a
summary of her closing submissions and the matter was
then adjourned
to enable both Counsel to deliver their Heads of Argument.
[5]
The
plaintiff called 8 witnesses, 6 expert witnesses, the plaintiff and
Ms Brenda Modisane (Brenda). The expert witnesses are:
1.
Dr
Colin Barlin, an Orthopaedic surgeon whose report is dated 13 March
2015.
2.
Dr
Mayaven Naidoo, a Psychiatrist whose report is dated 25 February
2015.
3.
Dr
Riaan Bothma, an industrial Psychologist whose report is dated 5
February 2015.
4.
Dr
Tommy Bingle, a Clinical Neuropsychological surgeon whose report is
dated 20 February 2015.
5.
Mr
Digby S Ormond-Brown, a Clinical Neuropschycholical screening expert
whose report is dated 19 January 2015.
6.
Ms
Rosalind Macnab an Educational and Counselling Psychologist with
special interest in Neuropyschology whose report is dated 23
February
2015. Her expertise was challenged.
Aside from the expertise of Ms Macnab which
was challenged, the
expertise of the other expert witnesses was
never challenged.
[6]
This
Court, as shown above, is to determine the remaining issue which is
the plaintiffs loss of income. The issues for trial therefore,
are:
1.
Whether
or not the plaintiff sustained bodily injuries in the collision
referred to above;
2.
If so, the nature and the extent of such
injuries; and
3.
The quantum of the plaintiffs damages
for such loss of income.
[7]
The parties, at the pre-trial
conference, agreed that all the documents in the trial bundles are
what they purport to be. The documents
are inclusive of the hospital
and ambulance records. The plaintiffs Counsel, Advocate Goodenough
(“Ms Goodeenough”),
at the close of the plaintiffs case,
applied from the bar for an order admitting the documentary hearsay
evidence contained in
the ambulance record and the hospital records
of the Netcare Garden City into the evidence. During the trial,
reference was made
to these records by several expert witnesses that
the plaintiff called. The submission by Ms Goodenough is that the
Court should,
in terms of Section 34 of Civil Proceedings Evidence
Act 25 of 1965 as amended, admit the ambulance and the hospital
records.
[8]
Section 34
provides:
“34.
Admissibility of documentary evidence as to facts in issue
(1)
In any civil proceedings where direct oral evidence of a
fact would be admissible, any statement made by a person in a
document
and tending to establish that fact shall on production of
the original document be admissible as evidence of that fact,
provided
-
(a)
the person who made the statement either -
(i)
had personal knowledge of the matters dealt with in the
statement; or
(ii)
where the document in question is or forms part of a
record purporting to be a continuous record, made the statement (in
so far
as the matters dealt with therein are not within his personal
knowledge) in the performance of a duty to record information
supplied
to him by a person who had or might reasonably have been
supposed to have personal knowledge of those matters; and
(b)
the person who made the statement is called as a witness
in the proceedings unless he is dead or unfit by reason of his bodily
or
mental condition to attend as a witness or is outside the
Republic, and it is not reasonably practicable to secure his
attendance
or all reasonable efforts to find him have been made
without success.
(2)
The person presiding at the proceedings may, if having
regard to all the circumstances of the case he is satisfied that
undue delay
or expense would otherwise be caused, admit such a
statement as is referred to in sub-section (1) as evidence in those
proceedings
-
(a)
notwithstanding that the person who made the statement is
available but is not called as a witness:
(b)
notwithstanding that the original document is not
produced, if in lieu thereof there is produced a copy of the original
document
or of the material part thereof proved to be a true copy,
(my emphasis).
(3)
Nothing in this section shall render admissible as
evidence any statement made by a person interested at a time when
proceedings
were pending or anticipated involving a dispute as to any
fact which the statement might tend to establish.
(4)
A statement in a document shall not for the purposes of
this section be deemed to have been made by a person unless the
document
or the material part thereof was written, made or produced
by him with his own hand, or was signed or initialled by him or
othenvise
recognized by him in writing as one for the accuracy of
which he is responsible.
(5)
For the purpose of deciding whether or not a statement is
admissible as evidence by virtue of the provisions of this section,
any
reasonable inference may be drawn from the form or contents of
the document in which the statement is contained or from any other
circumstances, and a certificate of a registered medical practitioner
may be acted upon in deciding whether or not a person is
fit to
attend as a witness”.
[9]
Ms Goodenough submitted that the
ambulance and hospital records are also admissible under Section 34
(1) (c) (i) to (iv) of the
Law of Evidence Amendment Act 45 of 1988.
This, because the records are already admitted to be what they
purport to be with the
remaining question to determine being how
likely the contents thereof are to be true. The expert witnesses,
according to Ms Goodenough,
were not surprised by the contents of the
records. Only Dr Bingle was puzzled by the reference to “multiple
concussion”.
Ms Rosalind Macnab, in her evidence, explained
that the term “multiple concussion” refers to a situation
where a head
injured patient has previously sustained a concussive
head injury. The plaintiff, in her evidence, confirmed this. Ms
Goodenough
submitted that Dr Bingle could have been puzzled by
“multiple concussion” either because he had not noticed
or had
forgotten that the plaintiff had stated that she had many
years previously sustained a concussive blow to the head. This,
according
to the plaintiff, was the case as she, the plaintiff, was
once injured by the one she had loved.
[10]
I indicated above that Advocate J Roos,
(Mr Roos), on behalf of the defendant, challenged the expertise of Ms
Rosalind Macnab. Ms
Macnab, in her testimony, demonstrated that she,
indeed, is an expert. Digby S Ormond- Brown, in his evidence, when
asked if he
regards Ms Macnab as an expert, he answered “yes,
certainly”. Ms Macnab’s evidence, in its entirety,
coupled
with how she is perceived by fellow experts, satisfied me
that she, indeed, is one of the experts who testified on behalf of
the
plaintiff. Her expertise has successfully been proved. Dr Bingle
testified that a psychiatrist, neurosurgeon and neuropsychologist
were better qualified than an occupational therapist.
[11]
Apart from the reports referred to above
there are further reports by Ms Kelly, the occupational therapist,
dated 13 January 2015,
the radiologist report of Dr Suliman and the
actuarial calculations by Mr Kramer dated 10 February 2016 which were
handed up at
the close of the plaintiffs case.
[12]
Ms Goodenough submitted that the
defendant and the plaintiff had seen the defendant’s
occupational therapist and an industrial
psychologist and that the
defendant, although requested to serve the two reports on the
plaintiffs attorneys, failed to do so.
Ms Goodenough, as a result,
correctly concluded that the defendant had no expert reports to
counter those of the plaintiff. Indeed,
the defendant did not deliver
any expert report.
[13]
The defendant, although requested to
indicate which aspects of the contents of the plaintiff’s
expert reports were admitted
and which in dispute declined to do so
causing the plaintiff to call even the experts who ordinarily would
not have testified.
Every sentence in every expert report expressly
or impliedly remained in issue.
[14]
It is noteworthy that despite the
rigorous cross-examination of the plaintiffs witnesses by Mr Roos, it
was never suggested or put
to any of the plaintiff’s expert
witnesses or to the plaintiffs lay witnesses that their evidence was
not correct or truthful.
The plaintiff, in that event, as correctly
submitted by Ms Goodenough, was entitled to conclude that the
correctness of their evidence
was accepted (See: President of South
Africa v South African Rugby Football Union
2000 (1) SA 1
CC at page
54F).
[15]
Evidence demonstrates that the plaintiff
sustained:
1.
Concussive head injury;
2.
Cervical whiplash injury; and
3.
Right Knee injury.
[16]
The expert witnesses reports and
evidence reveal the following:
1.
Orthopaedic injuries: Dr Barlin
diagnosed as follows:
1.1.1
persistent neck pain and stiffness
1.1.2
frequent migraine headaches
1.2
A
soft tissue injury to the lumbar spine resulting in frequent episodes
of lumbar backaches
1.3
A
blow to the right knee
2.
Neurosurgeon: Dr Bingle
He found a mild concussive brain injury with
significant neurological sequelae. The neurological, neurocognitive
and neuropsychological
problems that were recorded by the
neuropsychologist, according to evidence, were caused by the
accident.
3.
Psychiatric
Diagnosis: Dr Naidoo He found:
1.
Post
Traumatic Stress Disorder;
2.
Major
Depressive Disorder; and
3.
Moderate
analgesic abuse.
4.
Neuropsychological diagnosis: Ms R
Macnab
She diagnosed trauma associated with the
plaintiffs accident and accident related injuries and related
sequelae. Plaintiff, according
to her, experienced changes that have
affected her physical status and her neuro-cognitive and
psycho-emotional profiles. The plaintiff,
according to her, presented
with significant neuro-cognitive and emotional problems and symptoms
of Post-Traumatic Stress Disorder
(PTSD) which will make coping with
stress of working very difficult. She found her work related ability
restricted.
[17]
Regarding
current sequelae of the plaintiff, the expert witnesses observed as
follows:
Dr Barlin
1.
Plaintiff,
according to him, complained of persistent neck pain and stiffness
and frequent migraine-like headaches of cervical origin
which
causally related to a whiplash;
2.
Frequent
lumbar backache episodes; and
3.
Persistent
symptomatic chondromalacia accompanied by episodes of swelling of the
right foot and ankle.
Dr Ormond-Brown noted:
1.
Erratic
concentration and slow work speed and processing;
2.
Severely
impaired response inhibition;
3.
Defective
short term memory;
4.
Well below average performance on
constructional praxis;
5.
Profoundly
abnormal verbal categorisation;
6.
A
poor prognosis as plaintiff was injured later than the critical age
threshold; and
7.
Premorbid
prognosis and hypertension which are negative prognosis indicators.
[18]
Ms R Macnab noted:
1.
Migraine
headaches which occurred 3 times a week;
2.
Nausea
which is associated with headaches;
3.
Neck
pain associated with headaches;
4.
Leg
pain;
5.
Muscle
weakness in her ankle and knee;
6.
Mental
and physical fatigue;
7.
Worsened
hypertension;
8.
Post
accident personality changes such as plaintiff being short tempered;
verbally aggressive “like a mad person”; easily
irritable
and frustrated; often angry; depressed; crying for no apparent
reason;
9.
That
the plaintiff suffers from panic attacks in the car;
10.
She
hates company and prefers to be alone at home;
11.
The
plaintiff is told that she often repeats herself;
12.
She
has impaired memory and orientation. The plaintiff told her that she
once took a taxi without knowing where she was headed to.
[19]
Dr Bingle noted:
1.
Neurocognitive sequelae;
2.
Psychological sequelae;
3.
Chronic
headaches;
4.
Disturbed
sleep;
5.
Panic
attacks;
6.
Neck
pain;
7.
Swelling
in feet and ankles;
8.
Vertigo;
9.
Tinitus;
10.
Social
withdrawal.
Dr Bingle, regarding the plaintiffs
occupational future, deferred to the relevant experts.
[20]
Dr
Naidoo recorded the same sequelae which the other expects record. Dr
Suliman radiological report adds an additional feature namely
“mild
kyphosis of the cervical spine”.
[21]
It
is noteworthy that all the expert witnesses testified about the
plaintiffs poor prognosis. Her condition, according to them will
not
improve. This, according to Ms Goodenough, is indicative of the fact
that the plaintiffs current problems are permanent in
nature. The
recommended treatment, according to her, “is not intended to be
curative but only palliative”.
[22]
The
plaintiff called Brenda Modisane (Brenda), Wesizwe’s
recruitment manager at its Rustenburg Platinum Mine for which the
plaintiff works as her witness. Brenda has vast experience in the
field of Human Resources and holds a Bachelor’s degree
in Law
and also has post-graduate training in her field. Her testimony
reveals that she has extensive knowledge and experience
of her
employer’s recruitment, interviewing and hiring policies and
practice. She participates in job interviews and in the
subsequent
discussions with the hiring managers as to the selection of job
candidates. Brenda, by virtue of her work, has detailed
knowledge of
the respective personal qualities, strengths and abilities of the
respective employees of the employer including the
plaintiff.
[23]
Brenda’s
testimony is that the plaintiff, before the accident, performed
optimally. She was an outstanding worker who was
held up as an
example to others. The plaintiff, according to her, was considered as
the type of employee who deserved a promotion
if the right vacancy
became available.
[24]
The
plaintiff, according to Brenda, ever since the accident, is not
performing her job properly as she makes serious mistakes. She
is
forgetful, cannot follow instructions and behaves badly at times.
Brenda gave examples which clearly demonstrated this. Asked,
during
cross-examination, whether she could give more examples of the
plaintiffs incompetence and verbal aggression, she answered
that she
could not unless if she could go and check her e-mails. She then
could give “many examples” as, according
to her, there
were many other examples. Mr Roos did not pursue this line of cross-
examination in order to get Brenda to produce
the referred to
e-mails. I found this strange.
[25]
Brenda
testified that the plaintiff, after the accident, has become an
altered human being as she now is verbally aggressive, forgets
or
incorrectly carries out instructions and makes severe mistakes in the
important documents that she drafts. She sat in Court
and listened to
the evidence of Ms Macnab for two days ending up more convinced that
the plaintiff, because of her neuro-cognitive
problems, is incapable
of doing any type of job. No person with the plaintiffs handicap
could get a job with her employer or Lonmin.
The plaintiff, according
to her, remains employed because the employer values her past
outstanding work and her devotion thereto
before the accident. She
testified that the employer is helping the plaintiff out of sympathy
adding that this could not go on
for long due to the problems
currently experienced by the Platinum Mining houses.
[26]
Brenda’s
evidence regarding the plaintiffs pre and post- accident levels of
functioning was never challenged. Brenda’s
further unchallenged
evidence is that the plaintiff will lose her job within the next two
years.
[27]
She
is a witness who knew her facts and what she testified about.
Although the plaintiff is based in head office and she in Rustenburg
where the mining is done, she has had a lot to do with the plaintiff
whom she knows very well. The plaintiff, according to her,
out-performed the rest of her team. She was always used as an example
according to Brenda. The plaintiffs performance, after the
accident,
according to Brenda, has taken such an unexpected and dramatic turn
to a point where the company has had to employ Tshepiso
Khoza to
monitor her job.
[28]
Brenda
was an honest and reliable witness whose evidence, in my view,
remains unchallenged. The court has no reason to reject her
evidence
which is of a good quality.
[29]
Ms
Goodenough, after the plaintiffs case was closed, applied from the
Bar that the hearsay evidence of Jason Nokana, the Human Resources
Manager of Wesiwe be admitted into evidence. Dr Bothma’s report
refers to the hearsay evidence which the doctor also testified
about.
[30]
Dr
Bothma, in his report, refers to the telephone interview which he had
with Jason Nokana. He states:
“Workplace feedback: Jason Nokana, HR Manager at Wesizwe
Platinum Ltd was contacted telephonically on 9 March 2015 to obtain
information about Ms Ghany's work performance. He indicated that Ms
Ghany changed dramatically after the accident. Pre-accident,
she was
a very productive and effective worker, and her performance
was
above average. He indicated that her post-accident work
performance is below average. He estimated that she currently
experiences
a productivity loss of more than 45%. She is often ill.
She struggles to cope emotionally. She is very forgetful, makes many
mistakes,
and often has to redo her work. Her mistakes are an
embarrassment to the HR department, as she works with the payroll,
where there
is little tolerance of mistakes. Mr Nokana noted that her
work is in definite danger, as they are planning to demote her*
[31]
The
Dr, in his testimony, confirmed that this is what Nokana told him
over the telephone. Ms Goodenough implored the court to admit
the
hearsay evidence. The admission of such evidence, according to Ms
Goodenough, is covered by Section 3(1 )(c) (i) to (vii) of
the
Law of
Evidence Amendment Act 45 of 1988
which provides:
“3 Hearsay evidence
(1) Subject to the provisions of any other law, hearsay evidence
shall not be admitted as evidence at criminal or civil proceedings,
unles-
(a)
…
(b)
…
(c)
the court, having regard to-
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person
upon whose credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such
evidence might entail; and
(vii)
any other factor which should in the opinion of the court
be taken into account, is of the opinion that such evidence should be
admitted in the interests of justice”,
(my
emphasis).
[32]
It
is Ms Goodenough’s submission that the hearsay evidence ought
to be admitted because it was noted down contemporaneously
by Dr
Bothma, the plaintiffs expert witness who interviewed Nokana
telephonically. It is easy for me to agree because the evidence
is
corroborated by Brenda in her testimony. The evidence, as a result,
is reliable and has probative value.
(Section 3(1)
C)(iv) of Act 45
of 1988). Nokana did not testify. The Court was informed that Nokana
would be the plaintiffs first witness and
that he had not come to
court necessitating his being subpoenaed. The subpoena, erroneously
it appears, was not served on him resulting
in him not testifying. Ms
Goodenough submitted that getting him to testify, at that late stage,
would have been time consuming.
The remaining Court time, according
to her, had been limited. I find the submission plausible
particularly if regard is had to
the fact that the subpoena is
exhibit ‘J’ in the matter. (Section 3(1)(c)(v)).
[33]
Ms
Goodenough submitted that the defendant could demonstrate no
prejudice to be suffered by it if the hearsay evidence were to be
admitted into evidence. Given the fact that Brenda testified and
confirmed the evidence, I must agree. Ms Goodenough submitted
that
the defendant’s Industrial Psychologist (IP), in any event, had
interviewed and assessed the plaintiff during February
2015 and that
the IP could have telephoned Nokana had the defendant or the IP so
wished. There is merit in this. Dr Bothnia's report
which contained
Nokana’s hearsay evidence was served on 4 May 2015. (Section
3(1 )(c)(vi)).
[34]
Ms
Goodenough submitted that Nokana’s hearsay evidence
corroborates the unchallenged viva voce evidence of Brenda and that
it would be safe to admit the hearsay evidence as proof of the truth
of its contents. I agree. It, in any event, would be in the
interests
of justice to admit the hearsay evidence if regard is had to what is
discussed above.
[35]
Regarding
the further examples of the plaintiffs incompetency, Brenda, after
retrieving the e-mails from her computer, furnished
the plaintiffs
attorneys with a bundle thereof. The bundle, according to Ms
Goodenough, was tendered to the defendant and the Court.
The
defendant objected to this but Ms Goodenough placed on record that
the e-mails comprised of 35 pages; that the defendant was
invited to
follow up on any information therein contained; that the defendant
was entitled to tender the e-mails whether or not
they harmed the
plaintiffs case. Mr Roos reserved the defendant’s right to seek
a postponement to allow further investigation
and to obtain further
evidence arising from the e-mails. This did not eventuate because the
defendant, two days later, on 11 February
2015 closed its case
without having done anything about the e-mails and the postponement.
Ms Goodenough, as a result, submitted
that this justified the
conclusion that the e-mails support the plaintiffs case and confirm
Brenda’s oral evidence. There
is merit in this.
[36]
The
plaintiff was present in Court throughout the trial proceedings and
heard the evidence of the witnesses who testified. The witnesses
testified about what she had told them. She confirmed this. Mr Roos’s
submission that the plaintiff did not testify and lay
the basis of
her evidence , therefore, cannot be correct. She, indeed, testified
that she had told the expert witnesses the truth.
The truth, in the
main, is confirmed by Brenda, Nokana and the expert witnesses tests
and conclusions. The fact that the plaintiff
had told the expert
witnesses the truth was, indeed, never challenged.
[37]
The
defendant only challenged the fact that the plaintiff had lost her
consciousness. The rest of her oral evidence was never challenged.
In
any event, Dr Bingle later on, in his evidence, successfully
explained the aspect of the “unconsciousness” of the
plaintiff after the collision. This, according to Ms Goodenough,
entitles the Court to accept the entire factual basis of the opinions
expressed by the plaintiff’s expert witnesses as correct.
[38]
In
clearing up what had initially seemed to be a contradiction or a lie,
Dr Bingle testified that when a person sustains a head
injury and
his/her state of consciousness is altered as a result, “such a
person is in the nature of things incapable of
being aware of being
unconscious or otherwise in that there is, subjectively, a gap in the
memory of the injured person regarding
the flow of events”.
This was never challenged. Dr Bingle further testified that a mild
head injury can even result in a
mere two seconds of an altered state
of consciousness. This too was never challenged. The defendant in the
absence of reports could
not.
[39]
The
nub of the evidence of Dr Bingle, Dr Naidoo, Dr Barlim and Dr
Ormond-Brown is that:
1.
The
plaintiffs current problems are caused by the accident;
2.
But
for the accident, the plaintiff would have been able to continue to
work and earn as before;
3.
The
plaintiffs inability, since the accident, to perform occupationally
is a direct result of the accident and that
4.
The
plaintiff is, as a result, permanently unemployable.
5.
The
totality of information recorded in the ambulance and hospital
records supports the view that the plaintiff sustained a head
injury
in the accident.
This is confirmed by the use of the C
Collar, head blocks and a spine board at the scene of the accident
and the fact that the plaintiff,
thereafter, complained of neck
pains, dizziness and headaches which are consistent with a head
injury.
[40]
The
hospital records reveal that the plaintiff “was hit by another
car at a robot on the side, and car span out hitting the
pavement and
airbags delayed”. Dr Bingle, in detail, explained what happens
to the brain of a person who finds himself in
the position of the
plaintiff at the time of the collision. The brain, according to him,
is subjected to acceleration and deceleration
forces causing the
brain to collide with the inside of the skull. This, because the
brain is soft and floats in cerebrospinal fluid.
The axons of the
neurons in the brain invisible even on a CT scan are injured.
[41]
Dr
Bingle, Dr Naidoo and Mr Ormond-Brown testified that the GCS score of
15/15 did not necessarily mean that the plaintiffs brain
injury is
insignificant. The result of their calculation is that the plaintiff
arrived at the hospital at 9h55 which was an hour
and forty minutes
after the collision which was at 8h15. What the GCS means, according
to Dr Bingle, is that after an hour and
forty minutes or more of the
collision the plaintiffs GCS score was 15/15. There was, according to
evidence, no record of her GCS
score before the noted time.
[42]
Dr
Bingle testified that the fact that the plaintiff was dazed and
confused indicates that her GCS score was, at the time, less
than
15/15 for the period within the first one hour and forty minutes
after the accident. It was Dr Bingle’s further evidence
that
the plaintiffs GCS scale could have fluctuated in the first few hours
after the accident.
[43]
Macnab
got the report that the plaintiff was briefly unconscious at the
scene and was woken up by someone who was asking her questions.
The
plaintiff recalled getting out of the car and shouting at everyone
around like a crazy person dazed and disorientated. Dr Bingle’s
report is that the plaintiff “saw stars and was out for a bit”.
The next memory she has is a bystander asking her “ma’am
are you fine? She got out of the vehicle, screaming and shouting. She
felt dazed, shaky and confused”.
[44]
That
the plaintiff, after her discharge, was moody and suffered from mood
swings, was impulsive and irrational and has, since the
accident,
undergone cognitive behavioural and mood changes point to the
conclusion that she sustained a significant head injury
with
permanent sequelae recorded during the neuropsychological testing
conducted by Ms Macnab and Mr Ormond-Brown has not been
challenged.
[45]
Dr
Bingle and Mr Ormond-Brown, when asked by Mr Roos, testified that the
plaintiff, according to them, had not been malingering.
I do not
agree with Mr Roos that the plaintiffs case should be dismissed.
[46]
It
will be recalled that only loss of income remains for determination.
Income received before and after the accident, according
to Ms
Goodenough, is based on information contained in the plaintiffs pay
slips. Proof of income was furnished to the plaintiffs
industrial
psychologist. The calculations in the plaintiffs various actuarial
reports are also based on the contents of the pay
slips. It has not
been suggested that the pay slips do not come from the plaintiffs
employer. Neither has it been denied that the
pay slips are genuine
and that they relate to the plaintiff.
[47]
The following is noteworthy:
1.
The plaintiff was off work recuperating
for 24 days. She received sick pay while so recuperating.
2.
She
returned to work to do her pre-accident job on 25 February 2014.
3.
Evidence
reveals that a marked degeneration in memory at work as well as
forgetting to perform important tasks at work became apparent
once
she was back at work.
4.
The
plaintiff, according to evidence, is not coping with her job and is
likely to lose it within two years.
5.
According
to Mr Barlin the plaintiff has suffered decreased work efficiency and
could face retirement in a year or two.
6.
Ms
Macnab states that the plaintiffs work ability has been restricted by
her injury and sequelae.
7.
Dr
Bothma, in his report, and in conclusion, says:
“
5.2
The inference
drawn from the newly acquired expert findings at hand, with
particular reference to those reported by Ms Macnab (2015,
p. 46), is
that Ms Ghany’s cognitive difficulties, physical limitations,
and emotional disturbances as a result of her accident-related
injuries have restricted her work-related ability. Ms Macnab reported
that, as a result of Ms Ghany’s brain injury and associated
neuropsychological sequelae, Ms Ghany will inevitably experience
difficulties in the workplace. She will have difficulty working
under
pressure and meeting time demands, as well as focusing on tasks at
hand. These deficits will thwart her ability to function
optimally in
a position that requires mental acuity and cognitive competence.
5.3
In addition, Ms Ghany appears to have been rendered more
vulnerable from a psychiatric/psychological and/or emotional
perspective.
Ms Macnab confirmed that Ms Ghany suffers from severe
depression, and indicated that she also suffers from severe anxiety,
coupled
with symptoms of post- traumatic stress disorder. DrNaidoo
(2015, p. 16) diagnosed Ms Ghany with a severe major depressive
disorder.
Ms Ghany, furthermore, reported experiencing various
psychological difficulties-refer to par. 6.1 of Writer’s
initial report,
as well as par.
7.7
(p. 11). Psychological interventions have been recommended by
Ms Macnab; however, although this may serve to improve her
psychological
adjustment difficulties, it should not be considered
curative in terms of the neuro- cognitive consequences of the
accident.
5.4
Taking the nature of the brain injury into account
(traumatic with an array of cognitive fallouts), as well as the
workplace feedback
obtained (see par. 4.7, p. 6, of Writer’s
initial report), Ms Ghanv’s risk of dismissal is considerable.
No final decision
has been taking regarding Ms Ghany’s future
employability. Should she be dismissed, she would suffer a
considerable loss
of earnings. Should she be retrenched, she would
receive a severance package.
It is
highly unlikely that Ms Ghany will be able to secure and maintain
alternative employment if she loses her job, in light of
the severe
cognitive difficulties and emotional disturbances.”
8.
After
writing his report and addendum, Dr Bothma while in Court, listened
to the oral evidence given by Brenda Modisane and other
plaintiffs
expert witnesses regarding the degree of severity of her
neurocognitive neuropsychological and other disabilities. He,
during
his testimony, expressed a view that the plaintiff is indeed,
unemployable in the open labour market and that once she loses
her
job in a year or two, will probably not get or keep another job
again.
[48]
Mr
Roos criticised the fact that the plaintiff was not the first witness
and that no factual basis upon which the experts would
tender an
opinion was laid. The plaintiff, in my view, testified: She is the
one who provided the expert witnesses with the information
that they
worked on. She testified that she had told them the truth when they
interviewed her. Her evidence was confirmed by the
evidence of Brenda
and the hearsay evidence of Nokana.
[49]
Mr
Roos submitted that this is a trial on the plaintiffs loss of income
and not on the amount of general damages to be determined.
It is Mr
Roos’s view that the plaintiff needed to prove that she earned
an income as well as an amount of income. Mr Roos
further holds the
view that the plaintiff needed salary advises and corroborating
evidence to prove this. In other words, the defendant
feels that pay
slips are not enough to prove the income. The plaintiff produced pay
slips of her employer. It has not been denied
that the pay slips are
indeed those of her employer. Neither has it been denied that the
amounts thereon reflected have been so
reflected by the plaintiffs
employer and that they reflect the amounts that the plaintiff earned.
The payslips, as correctly submitted
by Ms Goodenough, in my view,
are sufficient proof of the plaintiffs income.
[50]
Mr
Roos submitted that a witness cannot corroborate herself. By
implication the submission is that the plaintiff merely corroborated
herself. Having regard to the evidence at the disposal of the court I
am unable to agree with the submission. There is more than
enough
corroboration. The position of the plaintiff is well documented and
testified about. There is more than sufficient evidence
to find for
the plaintiff. Evidence was not challenged. The evidence is
sufficiently supported. The cases that Mr Roos referred
to in support
of his submissions are, in my view, distinguishable. Tests and
interviews were conducted in the plaintiffs case.
The expert
witnesses are backed up by what they observed and noted when they
were with the plaintiff. They corroborate one another.
They are
further supported by evidence that was tendered by Belinda as well as
the hearsay evidence of Nokana. The Court safely
accepts the
evidence. The defendant neither has expert witnesses nor reports. It
is, indeed, so that the defendant testifies where
it is necessary but
this is one case which needed evidence from the side of the
defendant. The plaintiff was seen by two experts
in the presence of
the defendant but no reports, despite demand by the plaintiff, have
been forthcoming. This speaks volumes. If
tests were not conducted,
if Belinda had not testified and if the hearsay evidence was not
noted then, the position, in that event,
would be different.
[51]
That
the plaintiff did not testify, in the face of the evidence at the
disposal of the Court, cannot be correct. That some of the
witnesses
were not called by the plaintiff, in light of the evidence tendered,
is clearly unhelpful. I indicated and I repeat that
there is
sufficient evidence to find for the plaintiff. The plaintiff, in my
view, did not adapt her version of events as Mr Roos
incorrectly
submitted. The evidence tendered supports the findings and opinions
of the expert witnesses who corroborate one another.
[52]
The
available testimony reveal that the expert witnesses had evidence on
matters which require specialised skill and knowledge.
This was
sufficiently demonstrated. The witnesses are qualified experts. The
guidance that the experts offered is sufficiently
relevant to the
matter in issue which the Court has to determine. The opinion
evidence in no way usurps the function of the Court.
The findings of
the expert witnesses are demonstrably accurate.
There is sufficient evidence to corroborate
this. (See: Holtzhauzen v Roodt
1997 (4) SA 766
(W)).
[53]
The
submission that the plaintiff’s case ought to be dismissed
cannot be sustained and is not acceptable.
[54]
Regarding
the plaintiffs loss of income the following should be borne in mind:
1.
The
plaintiff was born on 2 March 1969;
2.
She
worked for Wesizwe Platinum Limited, as a Human Resources and Payroll
Administrator since 2005 and still works in the same position
earning
R451 557. 00 per annum.
[55]
But for the accident she:
1.
Would
have remained in the same position at Wesizwe or equivalent position
working for a different employer;
2.
With
inflationary increases, she would have continued to earn R451 557.00
per annum until retirement at age 62.5 years;
3.
The
capitalised gross prospective value of her income would have been R4
489 294. 00;
4.
After
deducting the appropriate pre-accident contingency deduction of 7.5%
the capitalised gross prospective value of her income
would have been
R4 152. 596. 00.
[56]
The accident considered:
1.
Save
for inflationary increases until 1 August 2017, the plaintiff will
continue in her current job earning the same salary she
now earns;
2.
Following
the evidence, from 2 August 2017 and for the remainder of her life,
she will be unemployed and will receive no income;
3.
The
capitalised gross prospective value of her income will be not more
than R540. 055. 00;
4.
Her
future loss of income is therefore not less than R3 612 541.00;
5.
The
plaintiffs claim, after applying the statutory prescribed cap, is
reduced to R3 066 350. 00;
6.
the
question of liability having been settled on the basis that the
defendant is to pay 90% of the plaintiffs damages, the defendant,
according to Ms Goodenough, should be ordered to pay to the plaintiff
the amount of R2 759 715 which is 90% of the amount of R3
066 350.
00.
The calculations and the amounts have not
been challenged or controverted by the defendant. Initially the
plaintiff had claimed
payment of the sum R 3 920 000.00. The
necessary amendment has been effected and the amount claimed in
respect of past and future
loss of income is, namely, R2 759 715.00
is now in line with the actuarial calculations.
[57]
Ms
Goodenough submitted that the hearsay evidence of Mr Jason Nokana, HR
manager of Wesizwe, referred to by Dr Bothma in his report
and
evidence should be admitted into evidence. In light of the evidence
tendered by Belinda, the hearsay evidence is hereby admitted.
In the
absence of evidence gainsaying it, the truth of the contents of the
hospital records and the contents of the medical report
that forms
part of the RAF1 form, as correctly submitted by Ms Goodenough, is
accepted as reliable documentary hearsay evidence.
[58]
The
plaintiff, in my view, has made out a case to be entitled to the
order that she seeks. My decision has rendered it unnecessary
to
determine whether or not further documents should be accepted.
COSTS
[59]
Ms Goodenough submitted that the
defendant unduly and unnecessarily delayed the finalisation of the
matter which was scheduled to
be disposed of in 3 (three) days. The
case was ultimately disposed of in 8 (eight) days and not the 3
(three) days which had been
envisaged. Ms Goodenough, in
substantiation of her submission asking for a punitive costs order,
highlighted the following:
1.
That
the defendant, unreasonably, placed in issue the expertise of Ms
Rosalind Macnab;
2.
That
the defendant unreasonably refused to admit any portion at all of any
of the plaintiffs expert reports despite having been
requested to do
so which, unnecessarily, resulted in the calling as witnesses by the
plaintiff of several expert witnesses;
3.
That
the evidence of the expert witnesses, despite lengthy
cross-examination, remained unchallenged which, according to Ms
Goodenough,
amounted to abuse of the process of the Court; and
4.
That
the defendant’s conduct of handling the trial resulted in
unnecessary delay in the finalisation of the matter and the
incurring
of unnecessary costs.
[60]
Indeed,
from time to time, during the trial, Ms Goodenough remarked that she
would argue that the conduct of the case by the defendant
had
warranted a punitive costs order against the defendant. The fact that
the evidence of expert witnesses called by the plaintiff
remained
unchallenged is indeed indicative of the fact that the calling of
those expert witnesses could have been obviated. This,
because of the
defendant’s attitude never eventuated. The plaintiffs
application for a punitive costs order, therefore, has
merit and I
agree therewith.
[61]
The
amount that the plaintiff claims as her actual loss of income which
has been arrived at through the assistance of Mr Kramer,
the actuary,
is in my view and in the circumstances of the plaintiffs case,
reasonable and appropriate.
[62]
The following order, in the
result, is made:
1.
Judgment, in favour of the plaintiff,
against the defendant is granted for the payment of the amount of R 2
759 715. 00.
2.
The defendant is ordered to pay the said
amount of R 2 759 715. 00 into the plaintiff’s attorneys trust
account for the benefit
of the plaintiff within 14 (fourteen) days
after the date of this judgment.
3.
The defendant is ordered to pay interest
on the said amount of R 2 759 715. 00 at the rate of 9% per annum
calculated from 14 (fourteen)
days from the date of this judgment to
date of payment.
4.
The defendant is ordered to pay the
plaintiff’s costs of suit including the qualifying fees of Ms
Rosalind Macnab; Dr Barlin;
Mr Digby Ormond-Brown; Dr Tommy Bingle,
Dr Mayaven Naidoo and Dr Riaan Bothma and the costs of obtaining the
reports and addenda
of such expert witnesses on the basis set out
below:
4.1
The defendant is ordered to pay the fees
of plaintiffs Counsel and Attorney of 2 February 2016; 3 February
2016 and 4 February 2016
on the scale as between party and party.
4.2
The defendant is ordered to pay the
reasonable amounts of the fees actually debited by the plaintiff’s
attorney and Counsel
for 5 February 2016; 8 February 2016; 9 February
2016; 10 February 2016 and 11 February 2016.
4.3
the defendant is ordered to pay the
qualifying fees of Ms Rosalind Macnab and Dr Riaan Bothma on the
scale as between party and
party.
4.4
The defendant is ordered to pay the
reasonable amounts of the qualifying fees actually debited by Dr
Colin Barlin, Mr Digby Ormond-Brown;
Dr Tommy Bingle and Dr Mayaven
Naidoo.
5.
The plaintiff’s expert witnesses
who testified are declared necessary witnesses.
6.
The attendance of Dr Riaan Bothma who
was in attendance on 2 February 2016; 3 February 2016; 4 February
2016;9 February 2016 is
declared necessary.
7.
Ms Brenda Modisane is declared a
necessary witness and the Taxing Master is directed to allow on
taxation the loss of income suffered
by her as a result of having to
take 3 (three) days leave from her employment in order to attend the
proceedings on 2 February
2016; 3 February 2016 and 4 February 2016.
M. W MSIM
EKI
JUDGE OF THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION
QF
THE HIGH COURT
PRETORIA