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[2014] ZAGPPHC 414
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G.J.M obo T.M v Road Accident Fund (5617/11) [2014] ZAGPPHC 414 (13 June 2014)
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 5617/11
DATE:
13/6/2014
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
GJ
M[…] obo T[…]
M[…]
............................................................................................................
Plaintiff
And
THE
ROAD ACCIDENT
FUND
................................................................................................
Defendant
CORAM:
STRAUSS,
S, AJ
DATED
HEARD: 20 – 22 MAY 2014
DATE
DELIVERED: 13 JUNE 2014
STRAUSS,
AJ:
INTRODUCTION
1.
The plaintiff in this matter is claiming as
the mother and guardian on behalf of the minor child, T[…]
M[…], born
on […], who was injured in an accident which
occurred on the 1
st
day of December 2007.
2.
I was informed by the counsel that the
merits had previously been settled at 100% in favour of the minor
child, for any proven or
agreed damages.
3.
The heads of damages to be proven are
general damages, as well as future loss of income or earning capacity
of the minor child.
4.
Two joint minutes were handed in by
agreement being joints minutes of Dr BA Okoli on behalf of the
plaintiff and Dr T Bingle, both
neurosurgeons.
5.
The first joint minute was dated 9 May 2014
and a further addendum dated 14 May 2014, marked as annexure “A”.
The experts
were not called to give evidence in regard to their joint
minute. They agreed that the minor child sustained a mild diffuse
concussive
brain injury, there was no evidence to suggest an
associated focal brain injury or secondary cerebral insult, and only
the plaintiff
reported some neuropsychological
sequelae
,
and they deferred this to a neuropsychologist. They agreed that
if any neurocognitive impairment was confirmed by the
neuropsychologist,
it would be detrimental to the minor’s
academic performance.
6.
In the second joint minute dated 14 May
2014, annexure “A” they agreed that major or significant
neurocognitive
sequelae
is not compatible with a mild concussive brain injury, although some
neurocognitive sequelae can be expected and this once again
they
deferred to a neuropsychologist.
7.
A joint minute of Dr D Lekalakala on behalf
of the plaintiff and Dr DA Birrell on behalf of the defendant, both
orthopaedic surgeons,
dated 6 May 2014, was handed in by agreement
and these experts were also not to give evidence. The orthopaedic
surgeons agreed
that the minor child sustained a fracture of the left
tibia, which fracture and the alignment of left tibia had healed well
after
the accident. Regarding pain and suffering Dr Birrell
recorded that the minor child was hospitalised for five days and had
a plaster of Paris cast applied to the leg. Dr Birrell stated that
the minor child endured acute pain for approximately four to
five
days followed by moderate pain for eight weeks. He also said
that the minor child has residual complaints of some pain
when
running, which in his opinion will eventually disappear in response
to a modicum of conservative treatment.
8.
He opinionated that due to the orthopaedic
injuries the minor child will not sustain any loss of work capacity
or the need for early
retirement and that she would not require any
further surgery. They agreed that the fracture had healed completely
and conservative
treatment would suffice as per Dr Birrel, but Dr
Lekalakala made provision for an arthroscopy and debridement of the
left knee.
Dr Lekalakala was of the opinion that should the minor
child do heavy to very heavy jobs she would have an
impairment/incapacity
of 10%.
9.
The plaintiff elected not to testify and
all the facts relayed to the various experts by her, were contained
in the various expert
reports before Court.
10.
The plaintiff called, Dr Kekana, an
educational psychologist Ms Mgomozulu, the neuropsychologist, and Dr
Malaka, an industrial psychologist,
to testify in order to prove the
damages claimed.
11.
Dr Kekana the educational psychologist,
testified and also referred in his evidence, to the joint minute
prepared between him and
Dr Praag for defendant, in which the experts
disagreed on several issues.
12.
Dr Kekana conducted a range of tests on the
minor child and his testing revealed that the minor child is
presently of average intelligence,
and currently did reveal several
cognitive deficits, he also obtained some of the minor child’s
report cards as well as feedback
questionnaires ”G” ”H”
and “I”’ completed by the minor child’s
educators for Grades
1, 2 and 4 as collateral evidence.
13.
The collateral evidence revealed that
pre-accident the minor child had failed Grade 1 in 2007 at D[…]
Primary School and
that she had not achieved (below 34% average) in
home language, English and maths and in life skills she partially
achieved ( 35%
- 49%).
14.
An Appendix “G”, which was a
standard questionnaire in regards to a pupils attention, behaviour,
performance, work speed,
and demeanour in 2007 (grade 1) as viewed
and experienced by the child’s Grade 1 educator, Ms C S Mokate,
only prepared on
27 September 2012, when requested by the expert,
indicated the following:
“
That
the minor child had a concentration problem, performed below
potential, had a low intelligence, was popular with piers, was
not
proud of her work, was slow to complete her work, was not easily
motivated by educators, did not cooperate sufficiently, was
impatient, did not conform easily, a sensitive child, had a poor
self-esteem, an emotional child and she became easily frustrated,
and
placement in a remedial school was recommended by the teacher.”
15.
In the joint minute, he postulated that the
minor child’s poor performance per report card and feedback
pre-accident from
the teacher indicated to him that the minor child
was not school ready as she had not attended a crèche, or a
pre-school.
He testified that most children who are not exposed to
the educational environment because they did not attend a crèche
or pre-school would experience the comments that the educator had
cited in appendix “G”.
16.
He testified that these children cry,
scream, wet themselves, become uncooperative when they come to school
for the first time,
they also lack concentration because they are not
interested, and they will perform below potential, they will also not
be proud
of their work, and will be slow to complete their work and
will not easily motivated by their educators. They will not
cooperate
sufficiently and therefore they will have poor self-esteem.
17.
In cross-examination it was put to him that
the statement was made as a fact about children who did not attend
crèche or
pre-school and was without basis, further that his
statement was a broad and catch-all in nature and not substantiated,
he was
asked what his source was for making these statements, either
by research or otherwise. Dr Kekana could not cite any authority for
his propositions, and refused to concede that his opinion was not
substantiated and that there was no factual basis for these
submissions. He stated that he never had to cite sources in the
past, and that his opinion is based on his experience.
18.
He testified that these difficulties as per
appendix “G” are normally of a temporary nature and when
addressed, the
difficulties will disappear. He also stated that
the lack of concentration could have been addressed and cured by
giving
the minor child, medication such as Concerta or the like, or
to give individual attention to her.
19.
He reiterated that the contents of appendix
“G” completed by the teacher were only indicators of a
temporary nature
and did not reflect a learning disability or an
impediment. He referred to appendix “I” which was
the same questionnaire
completed by the same teacher on 27 September
2012 in regards to the repeat of Grade 1 by the minor, indicating and
testifying
that on appendix “I” most of the indicators,
as indicated in appendix “G”, disappeared except that the
concentration was still an issue, but that the minor child only
concentrated in 2008, when doing something that interested her.
20.
Appendix “I” still indicated
that the minor child
worked too fast,
that her school work was average, that she had an average
intelligence, but that no placement in a remedial school
was
necessary
. He testified that
these indicators became better due to the fact that she was repeating
Grade 1 and she became prepared
for school by repeating Grade 1.
He also criticised the teacher for the recommendation of sending the
minor to a remedial
school after failing Grade 1, as according to him
a child who fails Grade 1, does not justify the recommendation of a
remedial
school. He based this on the fact that she passed when
she had repeated Grade 1 in the following year, i.e. 2008. He
says that the repeat gave her a chance in the second year and if it
then persisted after Grade 1 was repeated, then only the school
should have recommended a form of intervention of remedial schooling.
21.
He indicated that she passed every grade up
to Grade 5 although her performance in Grade 5 was very poor, that
being after the accident.
He postulated that post-accident all
her educators complained that she has concentration problems, poor
attention and poor memory,
but pre-morbidly she only had
concentration problems, which was the only one mentioned by the
educator in appendix “G”.
22.
It must be noted that appendix “G”
was not wholly completed by the educator, as questions as to
attention is poor, memory is poor and
works too fast and is easily distracted or disorganised
were
left blank on the questionnaire, although the questionnaire made
provision for answers in the affirmative or in the negative
or
unsure. On all the other appendices the teachers completed each
of these boxes marking it in the affirmative or the negative
or
unsure except for appendix “G”. When asked about
the blanks left by the educator he stated that the information
noted
on appendix “G” to “I” was completed by the
teacher and he does not know why “yes”, “no”
or “unsure” was not ticked on appendix “G” in
relation to the previously mentioned questions.
23.
He stated that each school is supposed to
have a school base support team, but he did not know if the minor
child’s school
had that, or if the minor child was ever given
the support. He says her performance after the accident was
very poor and
thus her foundation phase was affected by the accident,
and had she not been exposed to the accident he proposed she would
have
done very well and it would have gone smoothly after the
necessary adaption to school. He says he bases this on the fact
that her pre-morbid indicators did not repeat itself in Grade 1 when
she repeated such in 2008.
24.
He testified she did not achieve on average
from grade 3 onwards, and that she was probably condoned from Grade 5
to 6 to 7 due
the fact that none of these grades as per the records
she had achieved a “pass” grade rating. He says the
concentration
problem, if addressed, would not have been a stumbling
block. She would have progressed, had it not been for the
accident,
the minor child could have achieved to pass Grade 12, or a
certificate or college thereafter.
25.
He also testified that after the accident
and in light of her emotional, physical and neuropsychological
problems the prognosis
of her reaching Grade 10 is very poor.
She should now be referred to a remedial school such as Prospective
Novus and if she
reaches Grade 10 she would thereafter enter an FET
College, which cater for vocationally orientated courses.
26.
He denied that the lack of concentration of
the minor child as noted in 2007, is a learning disability or an
indicator thereof,
the addressed, he agreed however that if the
child had a learning disability and there was no intervention the
learning gap
will emerge if not treated.
27.
When confronted with Dr Praag’s
postulations that as per the policy of the department of education
for grade 1 is that in
the first term consolidates the curriculum and
they will be exposed to teaching as for Grade R, and thereafter only
the syllabus
for Grade 1 would be taught, thus to compensate for any
learner who did not attend Grade R or crèche, he stated he
knows
about this, but he does not know if it was the case in the
present circumstance. He conceded that the teacher not marking
all the indicators in appendix “G” could have been an
oversight, but he was not willing to concede that it cannot be
ruled
out due to the fact that it was not marked.
28.
His version is that the results of
pre-accident school performance indicated to him that she was not
school ready and did not indicate
a learning difficulty or learning
impediment, the minor child had prior to the accident.
29.
He was highly critical of the minor child’s
educator in stating in his joint minute that the educator failed to
establish
a rapport with the minor child, that she was not motivated
by the educator and therefore did not cooperate sufficiently.
He stated that the educator did not apply differentiated methods of
teaching and in the minor child’s case the educator failed
to
differentiate and therefore referred to her as being slow to complete
her work.
30.
Confronted, however, with the submission
that he knew nothing about the educator’s education, experience
or competency and
was therefore not in a position to criticise the
conduct of the educator, he refused to make the concession. He
testified that
due to his practical experience as a teacher for 11
years in high schools, he postulates that the child was not school
ready, and
confirmed that all his opinions are based on experience
and not on research or any source he could refer the Court to.
31.
He also stuck to his version that the
teacher could not recommend remedial education after only a year in
Grade 1. His criticism
of the teacher was based on the
deductions he made from appendix “G” and “I’.
32.
On his postulation that the minor child
would reach Grade 12, he was looking at the role that parents play in
a child’s life.
He testified that he “never went to
a proper school, his parents brought him up and look where he is
today”.
He says the minor only developed only
post-accident learning disabilities and the indicators in appendix
“G” were simply
indicators and not a conclusion of
pre-accident learning disabilities.
33.
He says the questionnaire only provides
learning indicators and did not provide a conclusion of a learning
disability. Counsel for
the plaintiff put the proposition to him that
if the teacher did not complete the specific indicators in appendix
“G”
as referred to supra, one must surmise from this that
it was not applicable, he accepted this proposition.
34.
He testified that it is difficult for a
teacher to build a rapport with certain children due to the fact that
there are so many
pupils in a class. He stated that it would not have
been easy to build a rapport with the minor due to the fact that in
her Grade
1 class they apparently were 65 learners.
35.
The next witness called was the clinical
psychologist, one Nonhlanhla Mngomezulu. This witness was vital
to the plaintiffs
case due to the fact that in the joint minute
completed by Drs Okoli and Bingle, the neurosurgeons, deferred to her
for any neuropsychological
sequelae of the minor child due to the
accident.
36.
Ms Mngomezulu testified that she is a
clinical psychologist registered with the Health Professional Council
of SA and that her report
and the purpose of her evidence was to
relate to the Court the neuropsychological assessment she did on the
minor child and the
objective of her assessment was to determine
whether there were any neuropsychological sequelae, resulting from
injuries the minor
child sustained in the accident.
37.
Under cross-examination Ms Mngomezulu
conceded that she is not a certified neuropsychologist and had not
been accredited by the
South African Clinical Neuropsychology
Association (hereafter referred to as the SACNA). She also
confirmed that the board
of psychology under the HPCSA does not
recognise the registration of neuropsychologists and therefore SACNA
exists. She confirmed
that there are different categories of
membership. Full members having undergone a certification
process to establish their
competence in the practice of
neuropsychology by way of examination. She confirmed that she
had been an associated member
for three years and the association is
open to anyone within the field of psychology with an interest in
neuropsychology and that
associated membership does not imply
qualification per se. Her only academic qualification in
neuropsychology comprised of
a module attended during the final year
of her Master’s Degree in clinical psychology.
38.
When asked if she had any formal recognised
training over and above the component of her Master’s Degree
she explained that
she had done two correspondence courses through
SACNA, but could not recall specifics as to what the content was or
when these
courses were undertaken except to say that one was in
anatomy and physiology.
39.
She had gained practical experience in
Chris Hani Hospital in the child psychology department where she did
psychotherapy and learned
the process of conducting
neuropsychological assessments, she also gained experience in the
latter fields mentioned, at Tara Hospital.
40.
She conceded that her own private practice
is not focused or prioritised on neuropsychological assessments and
that she had been
doing medico-legals since approximately 2008.
She conducted her neuropsychological assessment of the minor child on
17 August
2012, five years after the accident when the child was in
Grade 5 at Namakgale Primary School.
41.
She confirmed that at the time of her
assessment and report she was under an incorrect impression that the
minor child had failed
Grade 2 and not Grade 1, as informed by the
plaintiff. She conceded that this had a significant effect on
the formulation
of her opinion and therefore there was a significant
misunderstanding in her report due to the fact that the plaintiff
reported
that the minor child had failed Grade 4. She did not
request the minor child’s school reports from the plaintiff and
she did not go out of her way to confirm the pre-accident position.
42.
Importantly Ms Mngomezulu conceded that in
the absence of any objective collateral information and on the basis
of the facts she
assumed incorrectly, this Court ought to reject her
comments on the minor child’s pre-accident scholastic
functioning, and
that she further conceded that from a
neuropsychological standpoint she could not make any comment on the
minor child’s pre-accident
scholastic functioning.
43.
She postulated that after the accident the
minor’s emotional as well as psychological functioning would
have become worse.
First of all, because there was no
intervention, and also due to the injuries one would expect a
decline, if she never had learning
difficulties before the accident,
but emotional difficulties, and now after the accident it would
become more difficult for her.
She surmised that she would have had
problems, but not so severe, had it not been for the accident.
She said that the trauma
and the pain affected her school performance
and all the emotional issues would also affect her school
performance. She said
that due to the fact that she did not
have the pre-accident scholastic reports and information, she in
hindsight realised that
it was a big misunderstanding on the facts.
44.
The witness testified that her assessment
went to the emotional functioning of the child of her age and not to
the grade.
The grade of the child at that age was for her
irrelevant. She also says that she did not have the correct
collateral information
and she knew that an educational psychologist
would testify and therefore left it to the educational psychologist
to comment on
the pre-accident functioning of the minor child.
She confirmed that post-accident functioning, there are
neurocognitive deficits.
45.
She insisted that some of the minor child’s
cognitive and/or behavioural and/or emotional deficits could have
been from the
accident. She conceded that she could not
pinpoint the cognitive deficits with certainty due to the fact that
she did not
have the information of the pre-accident performance and
the cognitive abilities of the minor child pre-accident. She,
however,
reiterated that the accident would have made it worse, and
noting the improvement of the minor child in 2008 in her school work
post collision, she testified that it is possible that the onset of
the
sequelae
of the brain injury only revealed itself in 2009.
46.
It was put to her that she does not go that
far in her report to state that the deficits are purely and probably
linked with the
accident, she confirmed this.
47.
Dr Louis Moapi Malaka, an industrial
psychologist, also testified on behalf of the plaintiff. He had
been in practice and
completing RAF medico-legal forms since 2008. He
testified that the minor child’s probabilities of entering the
labour market
would be difficult due to the unemployment rate and
also the fact that she would enter the market at a low unskilled
level.
After the accident, even if she does obtain Grade 10 or
matric she will be in a position that she will be competing with able
bodied
persons and her occupation might be compromised by the
condition of her lower limbs and also the head injury. Pre-morbid she
would
probably have obtained matric and would have been able attend a
college.
48.
In cross-examination he conceded that his
opinion is subject to what other experts find, thus the neurosurgeons
or the neuropsychologists
as to the cognitive functioning of the
minor child and also her lower limb injuries. He agreed with
the industrial psychologist
of the defendant when it was put to him
that Mrs Nel will testify that if the minor reached grade 12, and no
further education
was given, she would be the same as someone who
reaches a Grade 10 and attended an FET college afterwards, and thus
up-skilled
herself.
49.
His evidence-in-chief was mostly concerned
with the post-accident situation where the minor child would face
periods of unemployment
and the fact that she would be a low entry in
job hunting and be semi-skilled, and that it would be approximately
more than two
years for her to be employed in the non-corporate
sector.
50.
Having regard to her orthopaedic injuries
he says that she would not be able to conduct heavy to very heavy
jobs and would mostly
be performing light type jobs such as office
work or a tea girl, he confirmed that it is unlikely for a girl would
to be employed
in heavy to very heavy jobs.
51.
The defendant’s called the following
witnesses the educational psychologist, Dr Gita Praag and Cecile Nel,
an industrial psychologist.
52.
The educational psychologist, Dr Gita
Praag, testified that she had examined the minor child on 18 and 19
November 2013, and compiled
a joint minute with her counterpart, Dr
Kekana. The qualifications of Dr Praag are not in dispute
although I pause to mention
together with all her academic
qualifications she has practical experience extensively as a teacher
and school guidance counsellor
and also administering aptitude and
placement tests since 1984. She had also been working in
remedial intervention and employed
by the Education Department in the
capacity responsible for assessments and placements. She
entered private practice in 1992
and she qualified as a remedial
therapist. She practices as both a remedial and educational
psychologist with the focus areas
of her practice being remedial
therapy, i.e. learning challenges, placements and interventions.
53.
She also utilised a multi-faceted approach
in assessing the minor child, taking cognisance of the range of
factors as outlined in
her report. She also conducted all the
tests on the minor child that Dr Kekana conducted and together with
that she did a
Bender Gestalt Visual Integration Test as well as a
reading accuracy and reading comprehension test and an emotional and
perception
assessment.
54.
In summary of the intellectual test results
Dr Praag testified that the minor child has a global IQ within the
average range, as
confirmed by Dr Kekana but identified various
deficits in the minor child’s intellectual ability. She
testified that
the emotional assessment revealed that at the time of
the testing the minor child appeared to have a low self-esteem.
She
interpreted her test findings in her report in conjunction with
the information provided by the minor and her mother as well as
the
school results and educator feedback provided by Dr Kekana which was
contained in his report as appendix “G”,”
I”,
“K” and “N’ only in the joint minute.
55.
Dr Praag testified that the minor child’s
pre-accident scholastic performance as per the collateral information
showed serious
learning challenges. She stated that what was
also significant was the recommendation of remedial therapy already
in Grade
1. In her evidence she said that the retention of the
minor in Grade 1, although the child was school ready, although
assisting
her, the retention did not address her learning
difficulties, which she would face in the years to come that were
already present
pre accident. She testified that the minor
child presented with a profile of a learner whose learning challenges
were not
addressed when identified and that a pattern developed
indicative of how such a learner would perform.
56.
She testified that the indication already
in 2007 pre-accident of the concentration challenges were very
important due to the fact
that concentration problems were noted and
this impacted on other aspects of the minor child’s life due to
the fact that
concentration is a crucial factor for learning.
Concentration problems could impact the learner on a social level as
well as emotionally.
She testified that it was very difficult for an
educator to fail a Grade 1 learner as the educator must have a
justification for
doing so and it is not merely a question of failing
a Grade 1 after the Grade 1 pupil performed badly. A teacher
would not
fail a pupil in Grade 1 as the policy is that a teacher is
only permitted to fail a pupil once in each phase (phase grade 1 –
grade 3) and it is unusual that the minor was failed already in Grade
1. Normally a child is only failed in the third phase,
i.e.
Grade 3.
57.
For a learner to fail at a foundation
phase, Grade 1, while being the correct age for that grade indicates
learning challenges of
a serious nature as it is a concrete learning
phase. As the learner progresses to higher grades higher
degrees of abstract
learning takes place, thus failing at the
foundation stage indicates a condition that is of a serious nature
and if not addressed
appropriately at the appropriate time the
condition intensifies and multiplies.
58.
She testified that most probably the minor
child when she repeated Grade 1 she benefited to a certain extent as
she managed to pass
a few grades thereafter to reach Grade 4.
However, she did not receive any form of intervention as per the
facts and that
this resulted in learning challenges multiplying to
such an extent that the complexity of her challenges seems to have
overwhelmed
her at this stage. If the accident had exacerbated her
condition she would have performed even more poorly and would
probably have
ended up in a special school because she was already
performing very badly.
59.
Responding to the joint minute to which Dr
Praag did not have the opportunity to respond to prior to trial, she
testified that had
the accident impacted on the minor child the minor
child would not have coped in the manner she did in repeating Grade
1, and that
her concentration problem would be a medical condition
and not be temporary in nature. With regard to the child’s
scholastic
progression she postulated that from the post-accident
assessment results the predisposed genetic factors, her scholastic
history
as well as the expert findings, it is clear that pre-accident
the minor child would have benefited from urgent placement in a
full-time
remedial school as indicated by the teacher already in
Grade 1. However, noting her age of 13 years at the time of the
assessment,
and taking cognisance that she did not receive any form
of intervention and remained in a main stream school, it is clear and
important
that urgent placement at full-time remedial school is
sought in order to address and also prevent future learning gaps from
arising.
At a full-time remedial school she would have
benefited from a multi-disciplinary team which will assist her to
address all her
challenges including her learning difficulties.
60.
She testified that had the child been
placed in a remedial school she would have had a better opportunity
of completing Grade 10
and thereafter she would benefit from a course
at an FET college to compete a skills based course that would empower
her to seek
employment. Alternatively, if she remained at the
main stream school without intervention to address her learning
difficulties,
she would probably have failed one or two grades before
completing Grade 10 and thereafter she might have attended an FET
college
to complete a skilled base course. Therefore she
postulated that the minor child’s scholastic ceiling would have
been
Grade 10 both pre- and post-accident.
61.
She testified that the HOD school based
support team is present in every school and if you had followed the
program and the child
still did not perform the child would be
retained in Grade 1, but it would have been very difficult to retain
a Grade 1 pupil,
it had to be justified. There are prescribed
procedures by the government education department to follow if you
want to retain
or promote a scholar.
62.
She says that the questionnaires appendix
“G”, “H” and “I’ are corners
questionnaires and are
used by experts to obtain information in
regard to a child’s scholastic performance. She also
confirmed that there
would have been a schedule and a profile at the
specific school of the minor and the teacher would have been able to
utilise the
file to refresh her memory and to complete the form she
indeed completed as found in appendix “G”, “H”
and “I”. She says, in her experience if she had
looked at the child’s performance in 2007, she would have
also
surmised that there are serious implications and that there were
serious learning difficulties at her foundation phase.
She
would have intervened at an early stage and would have also
recommended remedial school. If the child fared better she
would have then referred her back to the main stream school.
She says that early intervention prevents further gaps proceeding
to
take place throughout the school career.
63.
The fact that the child fared poorly in
Grade 1 is not necessarily an indication that the child did not
attend crèche or
pre-school. She agrees that these
pupils are at a disadvantage, especially with the perceptual skills
but that the Grade
1 syllabus caters for children that did not attend
crèche or pre-school as the Department of Education takes into
account
if a child did not go to pre-school. This is considered
and the syllabus is structured to cater for grade 1 pupils who did
not attend preschool as the preschool work is consolidated, before
the pupils are start with the grade 1 syllabus.
64.
The form previously referred to as the
cornerstone questionnaire is used from the teacher’s
perspective to see the child’s
behaviour and this correlates
with the report card in that year. It does not point to the
behaviour of the teacher or how
a teacher, teaches the children.
When it was put to her that there are 65 children in the class and
whether this could have
affected the minor child, she said that she
cannot comment on that due the fact that she does not know in the
other grades, Grades
2, 3 and 4, if there were also 65 learners in
each class and if in that in 2007 any other children were failed, as
these factors
if considered would impact on the conclusion of the
pre-existing condition of this specific minor child prior to the
accident.
65.
She says that even if there were 65
children in the class and even if she did not get individual
attention she would still have
not performed at the level she
performed at, and the questionnaire completed simply confirmed the
school report card of the minor
failing in Grade 1. She stated
that the questionnaire, referring to “G”, “H”
and “I’,
is valuable to psychologists as it assists to
determine a learner’s academic strength and weaknesses, social
and emotional
challenges as well as the type of intervention a
learner would have benefited from. In addition for the minor child’s
educator
to have pre-accident listed the numerous challenges and not
only the concentration problem, would all have prompted her to
recommend
placement at a remedial school, illustrates the seriousness
of her learning difficulties pre-accident.
66.
Post-accident she passed each grade to date
and she referred to the appendix of Dr Kekana for the improvement
noted in Grade 2.
In addition, she said it is imperative to
note is that one cannot utilise selected reports to determine the
challenges and strengths
of the minor child, as all scholastic
reports, whether school reports, academic profile or tertiary reports
form an integral part
of a learner or a student’s academic
record and reflects the learner or student’s academic
functioning, progress and
behaviour. Her educator’s
response to the questionnaire as well as having to retain her in her
first year of schooling
where she had also assessed other 65 learners
was surely not a mistake. Her academic functioning was of great
concern and
her learning potential indicated the need for attention
and intervention. She said it is important that the learner may
have
a similar academic profile to that of her without being involved
in an accident and simultaneously have his or her early learning
challenging not addressed through intervention.
67.
She confirmed that she had a conversation
with the plaintiff who indicated that the minor at the time of the
report was in Grade
7 at D[…] Primary School, and the reason
for changing her school is that her father is presently working in
Witbank. In
addition the challenges, concentration problems, poor
attention and poor memory have already been in existence pre-morbidly
and
T[…] did not receive any form of intervention. This
has obviously caused her challenges to intensify and multiply and
noting that she also changed schools the degree of the severity of
her challenges should be regarded as even more intense.
She
thus postulated that post-accident the minor child will probably
obtain a Grade 10 and thereafter have to attend a FET college
to
obtain a skills based course that would assist her in seeking
employment.
68.
She also indicated that due the child being
a minor and not having the capacity of managing funds adequately and
appropriately,
should any funds be awarded, these funds need to be
protected.
69.
Cecile Nel, industrial psychologist,
testified that she examined the minor child on 14 June 2013.
Her expertise was not in
dispute. She says that in the case of
a minor, industrial psychologists do not work with children, it is
beyond their scope
of their expertise and thus they rely heavily on
the educational psychologist to give an indication of the pre- and
post-accident
potential.
70.
She testified FET stands for Further
Education and Training and explained that FET courses are technical
qualifications which essentially
amounts to obtaining a grade 12 and
would then afterwards essentially amount to a post-school trade.
71.
When put to her that Dr Kekana had
opinionated that post-accident the minor child would complete Grade
10 and possibly attend a
FET college attaining a level of NQF2 –
4 Mrs Nel explained that for practical purposes that would equate the
minor child
with a matric level education. She said that the
levels of education would certainly be comparable.
72.
Having regard to the postulations of the
educational psychologist, Mrs Nel testified that the educational
psychologist was postulating
the same scenario from an industrial
psychologist’s perspective. Mrs Nel postulated the
scenario of either a Grade
10 with a FET qualification. She
also opinionated in conclusion that the minor child had suffered no
loss of earnings as
a result of the collision.
73.
In cross-examination Mrs Nel explained that
a Grade 10 without FET would be able to enter the semi-skilled labour
market.
Mrs Nel testified that the minor child is not
incapacitated or disabled and therefore she cannot agree to a
scenario whereby the
minor child would require sympathetic employment
or would be unemployable.
74.
With regard to Dr Lekalakala’s
opinion that the minor child would suffer a 10% loss of capacity in
heavy to very heavy work
Mrs Nel express the opinion that the minor
child is unlikely to be employed in heavy to very heavy work and that
it is so unlikely
as to be regarded as a factor.
75.
Both counsel addressed the Court on the
facts and counsel for the defendant also provided this Court with
very detailed heads in
which the counsel set out the law in regard to
expert evidence. Referring to two in particular, it is trite as
stated in
Louwrens v Olwage
2006 (2) SA 161
(SCA)
“that in
applying a scientific criteria or reasoning the expert witness must
satisfy the Court that the conclusions drawn
by the expert in
question are founded on logical reasoning and that these conclusions
are based on facts proved by admissible evidence”,
and also
Matabula v RAF
Case No 5967/2005,
2006 ZAGPHC 2618
November 2006 at paragraph 13,
“an expert is not entitled any more than any other witness to
give hearsay evidence as to any fact and all facts on which
the
expert witness relies must be ordinarily established during the
trial, except those facts which the expert draws as a conclusion
by
reason of his or her expertise from other facts which have been
admitted by the other party or established by admissible evidence”.
76.
Having regard to the case law mentioned
above the evidence before me contained in the joint minute of the
neurosurgeons, Drs Bingle
and Okoli, indicated that the minor child
suffered a mild diffuse concussive brain injury, thus indicating a
concussion with no
clinical or other indications of an actual brain
injury, secondary cerebral or focal. The only basis on which
the joint minute
was compiled to find that there was a concussive
brain injury, was due to the fact that the plaintiff had reported
that the child’s
head was swollen the day after the accident.
No such clinical records were found on any of the hospital records or
any of
the subsequent doctor’s report. Thus, their
opinion of a concussive brain injury was based on hearsay of the
plaintiff.
Both these experts concluded on that basis alone
that there was a possibility of a concussive head injury.
Unfortunately,
both experts elevated it to a brain injury and
therefore the subsequent amendment of the particulars of claim of the
plaintiff
was pleaded, indicating a head injury combined with the
fracture of the left tibia.
77.
I cannot find that the hearsay evidence
became admissible due to the fact that the plaintiff herself did not
testify about the minor’s
injuries, in finding so I can still
not disregard the joint minute of both the experts who clearly left
the door open for the plaintiff
to obtain further admissible evidence
of any
sequelae
for such a concussive brain injury. I therefore find that as
stated in the joint minute there was a concussive brain injury
and
that the plaintiff indeed did not have to prove further that a head
injury was suffered.
78.
Now coming to the nexus between the
concussive brain injury, and any neurocognitive impairment.
Both the neurosurgeons confirmed
that a neuropsychologist had to
determine after an assessment any such impairment in regards to the
brain injury suffered. This
expert would also then assist this Court
and render an opinion in regards to neuropsychological deficits due
to the accident that
was exhibited by the minor child, and if this
led to a detrimental sequelae in her academic performance. The
only person
who testified in regards to this neuropsychological
impairment was Dr Mngomezulu. I have already dealt with the
content of
her evidence but having regards to the fact that her
expertise in the specific field of neuropsychology was attacked I
will deal
with that first.
79.
She conceded that she did not have any
recognised certification for neuropsychology and that her practice
was not focused on neuropsychology
as a whole, but that her practice
was divided between assessments of neuropsychological deficits and
therapy. It is also
unfortunate that when she compiled her
report and her testing on the minor child that she had incorrect
information about the child’s
pre-accident performance or any
neuropsychological impairment.
80.
Further I find that Dr Mngomezulu is not
certified in the practice of neuropsychology by any independent body
and therefore does
not possess sufficient academic qualifications to
be regarded as an expert in neuropsychology on that basis.
Also, her limited
practical experience in neuropsychology and conduct
of a multi-faceted private practice for seven years points to this.
The
accepted incorrect information as fact and further that she
consciously did not go out of her way to obtain or verify the
information,
which proved to be false, brings me to the conclusion
that her report and her evidence must be approached with caution.
81.
She conceded that she could make no finding
on the minor child’s pre-accident scholasticfunctioning due to
the fact that she
had incorrect information and I find that this
concession of hers was in the circumstances apposite. She did
identify several
current post-accident deficits in the minor child’s
functioning and in the absence of an understanding of the minor
child’s
pre-morbid functioning Ms Mngomezulu cannot logically
comment on the origin of these deficits and cannot attribute them to
the
accident.
82.
Nonetheless, she did inform the Court that
the neurocognitive deficits, if any, could be expected with a mild
concussive brain injury.
She, however, did not draw the correlation
of nexus between the current deficit and a mild concussive brain
injury. The deficits
she testified to were mostly of the minor
child’s emotional functioning in enduring pain, her emotional
neediness and her
frustrations due to the pain. This pain
suffered by the minor child was mostly set out to be physical pain
due to the fracture
of the tibia and then headaches she experiences.
She also testified that the behaviour of the minor child probably
masks
the emotional problems. Her evidence, in short, pointed more to
the behaviour and emotional functioning of the child than any
neurocognitive
deficits the child might experience currently.
83.
I conclude then that on her evidence I
cannot find that she on behalf of the plaintiff crossed the hurdle to
link and create a nexus
between the mild concussive brain injury
suffered by the minor child and neurocognitive sequelae experienced
by the child, that
caused her learning difficulties and which
learning difficulties as a result of the accident, will in future
cause a loss of income
or incapacity.
84.
In dealing with the evidence of the two
educational psychologists who testified on behalf of the parties.
I find that the
evidence tendered on behalf of the defendant in
regards to the learning difficulties of the minor child were better
set out in
a logical, chronological and factual basis by Dr Praag.
Her expertise also qualified her to testify as to the factors taken
into
account for remedial therapy and she also assisted the court in
drawing conclusion based on facts, and due to her personal experience
with the educational system, I accept her evidence and postulations
as correct.
85.
Most, if not all, of the evidence of Dr
Kekana was based on the hearsay evidence of the plaintiff and his
conclusion that the minor
child was not school ready and that all the
indicators on appendix “G”, were simply indicators of
school readiness
and not indicators of learning disabilities, was
without a logical basis, and his criticism of either the school
system and or
teachers was unwarranted, and unsubstantiated.
86.
I cannot find that appendix “G”,
which was not wholly completed, is in favour of either the plaintiff
propositions or
that of the defendant, simply due to the fact that
the teacher failed to mark each and every appropriate box on the
front page
of appendix “G”. Due to the fact that I
cannot find that any of these indicators were indeed present or not
in
2007, I find that appendix “G” must be read in
conjunction with the school report of that specific year. The
school report of that specific year indicated that the minor child
failed Grade 1 dismally. In all of the subjects she performed
at a 1 – not achieved – which indicated an average of
below 34% being reached in her home language, English, numeracy
and
maths, and for life skills she received a 2 – partially
achieved with an average of 35 – 49%. This, coupled
with
the feedback indeed noted by the minor child’s Grade 1 teacher,
in appendix “G”, I find, that as postulated
by Dr Praag
the child already had major learning difficulties in Grade 1, pre
accident and thus justified the teacher in recommending
remedial
therapy at the end of Grade 1, and therefore also failing the child
at the end of Grade 1.
87.
I find that the pre accident failing of the
minor indicated the seriousness of her learning difficulties.
As a result of the
nature of the difficulties and that they emanate
pre-accident and that these challenges would also continue to prevail
post-accident,
if no intervention was given, as it was not in dispute
that no intervention was provided to the minor child, the result has
occurred
as postulated by Dr Praag in that the minor child currently
still has learning difficulties and her challenges still prevail. The
plaintiff reported to the experts that she was not even called to the
school in regards to the child failing Grade 1, this I find
is
untenable as surely the parents would have been advised of the minor
child’s poor performance.
88.
Dr Kekana and Mngomezulu I find incorrectly
took the minor child’s performance post-accident in isolation
and disregarded
the fact that she had learning difficulties prior to
the accident, neither of them were even willing to investigate the
possibility
thereof. Dr Praag is the only expert that considered the
pre and post learning difficulties and drew a correlation between the
two.
89.
The fact that she made her report before
having sight of all the appendixes and school reports, and still
postulated the same scenario
pre and post accident, and after having
received the reports and the appendixes her opinion and postulations
stayed the same, point
to a well thought through and thorough process
which was objective and had regards to the specific minor child’s
circumstances
and her deficits. I find therefore that the accident
did not cause the learning difficulties of the minor at all, but I
accept
that they were exacerbated in the emotional sense due to the
fact that she did not perform well, as she already presented with
learning difficulties which were not addressed, and that led to her
further failure in the years to come.
90.
I also find that due to the fact that the
minor child was already not coping in a mainstream school pre
accident as indicated, that
she most probably was unlikely to obtain
a Grade 12 level of education in a mainstream school and she would
have benefited from
attending a full-time remedial school.
91.
In dealing with the other injuries of the
minor child as set out in the joint minute of the orthopaedic
surgeons, it is clear from
their joint minutes that they agree that
although the minor has some discomfort when standing and
walking for long distances
and kneeling, her future treatment would
be conservative although Dr Lekalakala made provision for surgical
treatment in the form
of an arthroscopy and debridement of the left
knee. Dr Lekalakala also opinionated that she will suffer an
incapacity/ impairment
of 10% in a heavy to very heavy type of job.
92.
It was also testified by both the
industrial psychologists that they cannot postulate circumstances in
which the minor would be
involved in performing heavy to very heavy
types of jobs, and I find that this probability is very unlikely. If
one has regards
to the 10% incapacity as postulated by Dr Lekalakala,
I find that it can only be addressed in general damages and not in a
contingency
spread as argued by plaintiff’s counsel, due to the
high probability of it not occurring.
93.
Defendant’s counsel addressed me on
the general damages and suggested regard is had to,
Pasquale
v Shield Insurance Co Ltd
1979
(3) E5 QOD 57C,
where a boy aged 13
sustained a compound fracture of the left tibia, also complete
recovery and still feeling pain, was awarded
an award equivalent to
R41,000.00 in 2014 as a reasonable award, and
Adendorff
v Shield Insurance Co Ltd
1979
(3) E5 QOD 55C,
the same amount was
awarded for a fracture of the left tibia which had united without
complications and which left the plaintiff
with a residual
disability. The defendant counsel suggested that generals damages are
awarded in the amount of R300. 000 00
in light of the 10%
incapacity as suggested by Dr Lekalala.
94.
The plaintiff referred me to
Steris
v The Road Accident Fund
2009 6
QOD B4-26 WCC
where an award was made
in current value of R325,000.00, and
Makapula
v The Road Accident Fund
2010 6
QOD B4-48 ECM
where an award was made
in the amount of R374,000.00, the plaintiff counsel suggested
R375.000 is awarded for general damages.
95.
If I have regard to the industrial
psychologists’ testimony their evidence only becomes applicable
if indeed this Court found
that the
sequelae
of the brain injury did cause the minor child’s learning
difficulties and would therefore impact on her career. They
both postulated a post-accident scenario of her obtaining Grade 10
and then attending a FET college.
96.
But Dr Praag’s postulation which I
accept indicates that the child would not have reached a Grade 10
pre-accident, and this
places the plaintiff on the footing that pre
and post-accident the circumstances remained the same. It
is thus not
necessary for this Court to deal with the quantification
of the loss of income due to the fact that I have accepted that the
pre
and post-accident scenario would be the same. The plaintiff
although some suggestion was made thereto by counsel, have still not
provided this court with a calculation based on the evidence that was
accepted post morbid by the experts, and to provide the court
with a
calculation on a suggested contingency on the loss of income.
97.
I further had regard to the complications
that the plaintiff currently suffers from. I also had regard to
the fact that as
indicated by the experts on behalf of the plaintiff,
she might also have emotional problems post-accident that were
exacerbated
by the fact that she was performing poorly at school, and
I think this must therefore be considered when making an award on
general
damages.
I therefore make the
following order:
1.
Judgment is granted in favour of the
plaintiff against the defendant for payment to the plaintiff in the
sum of R330,000.00 as general
damages.
2.
No award is made in respect of loss of
earnings or work capacity.
3.
The defendant will within 14 days from date
of this order furnish the plaintiff with an Undertaking in terms of
section 17(4)(a)
of the Road Accident Fund Act, Act 56 of 1996, to
pay the costs of future accommodation of the minor child in a
hospital or nursing
home, or treatment of, or rendering of a service,
or supplying of goods to her arising out of the injuries the
plaintiff sustained
in a motor vehicle collision that occurred on 1
December 2007 and the sequelae thereof, after such costs have been
incurred and
upon proof thereof.
4.
The defendant is to pay the plaintiff’s
costs including, the costs of the medico-legal reports and addendum
reports, as well
as the qualifying and preparation fees and
testifying fees of the experts properly reserved being:
a.
Dr D Lekalakala;
b.
Dr BA Okoli;
c.
Dr MSN Mngomezulu;
d.
Dr LT Kekana;
e.
Ms C Motake;
f.
Dr M Malaka.
5.
The defendant is to pay the plaintiff’s
costs of suit, on a party and party scale, including costs of counsel
and attorney
and the costs for 20, 21 and 22 May 2014 and 9 June
2014.
6.
Interest a tempore morae payable on the
amount referred to in paragraph 1, from 13 June 2014.
____________________
S STRAUSS,
ACTING
JUDGE OF THE HIGH COURT, PRETORIA
COUNSEL FOR
PLAINTIFF: ADV TABETHE
ATTORNEYS FOR
PLAINTIFF: CHUEU ATTORNEYS
COUNSEL FOR
DEFENDANT: G EGAN
ATTORNEYS FOR
DEFENDANT: MOTHLE JOOMA SABDIA