About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2012
>>
[2012] ZAKZDHC 45
|
|
Bishundayal v Road Accident Fund (11090/2006) [2012] ZAKZDHC 45 (10 May 2012)
IN THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
Case Number: 11090/2006
In the matter between:-
PRAMESH BISHUNDAYAL
…............................................................
Plaintiff
and
ROAD ACCIDENT FUND
…...............................................................
Defendant
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
VAN ZÿL, J.
:-
The plaintiff claims damages for personal injuries sustained in a
motor collision which occurred on 13 December 2003 in Silverglen
Drive, Chatsworth in the Durban area. At the time the plaintiff was
the passenger occupying the left front seat of a motor vehicle
bearing registration number HGH915GG. This was a Ford Cortina light
delivery vehicle, commonly known as a bakkie, driven by one
Rennie
Naidoo. The other vehicle involved, bearing registration number
ND518213, was a Volkswagen Jetta sedan driven by one Michael
Naidoo.
For purposes of the decision which I am presently called upon to
make, the issues have been considerably narrowed. This arises
from
the unusual circumstances prevailing at the time the matter came to
trial. In order to place the issues in proper perspective
I refer
briefly to the pre-trial history of the matter.
The plaintiff is a young man born on 12 May 1984, so that he was
some 19 years and 7 months of age at the time of the collision
and
27 years and 2 months of age at the time when he gave evidence at
the trial. During the collision the right front portions
of the two
vehicles collided with each other. Both the plaintiff, as well as Mr
Rennie Naidoo, the driver of the Cortina bakkie,
sustained injuries
and were thereafter (the same evening) conveyed to the emergency
section of the R K Khan provincial hospital
by Mr Salayathim Reddy,
at the time a stranger to them. The next day both the plaintiff and
Mr Rennie Naidoo attended at the
Chatsmed Garden Hospital for
treatment. Subsequently on the 15
th
and 18
th
December 2003 the plaintiff was attended to by a Dr Rajesh Nagar, a
general practitioner.
During or about November 2005 the plaintiff submitted a claim to the
defendant which listed the injuries he claimed to have sustained
in
the course of the collision and during October 2006 the present
litigation ensued. The injuries set out in the particulars
of the
plaintiff’s claim included multiple lacerations of the
forehead and nasal bridge, injury to the right eye which
included a
grazed cornea, an injury to the right upper eyelid which became
septic, injury to the right shoulder, a blunt force
injury to the
right chest and an injury to the right knee.
At the commencement of the trial however, what was to be sought by
the parties is a ruling relevant to the causation of certain
cognitive deficiencies suffered by the plaintiff. This was
foreshadowed in the minutes of a pre-trial conference held between
the representatives of the parties, apparently during or about the
beginning of November 2010.
Therein the parties recorded that the defendant had conceded
liability for one hundred percent of the plaintiff’s damages
proven to have resulted from the collision, so that what remained
was a dispute upon the quantum of the plaintiff’s damages.
But
it also appears from these minutes that an additional dispute had
emerged, namely a dispute relating to how and when the
plaintiff
sustained a head injury which left him with a “Y” shaped
depressed scar on the left parietal bone, where
it was determined
that a fracture had occurred and which gave rise to the cognitive
deficiencies aforementioned.
This scar is situated roughly above and behind the plaintiff’s
left ear. According to the evidence of the neurosurgeon
Dr Du
Trevou, who was called by the plaintiff, he estimated the dimensions
of the fracture site itself at approximately 2 cm
wide, by 2 cm in
length and being a depressed fracture, at about 1 cm deep. He
postulated that it had been caused by a focal
impact with a hard
object of about the same size as the fracture itself. Dr Du Trevou
could not, however, say when the injury
was sustained.
By consent at the commencement of the trial the particulars of the
plaintiff’s claim were amended,
inter alia
, by the
addition of the aforementioned skull fracture as an alleged
consequence of the collision, an allegation not conceded
by the
defendant.
The significance of this injury is that the plaintiff has apparently
been found to suffer from certain cognitive deficiencies
which are
consistent with the expected consequences of a brain injury
associated with the fracture site. If, therefore, it were
to be held
that the plaintiff sustained this injury in the course of the
collision, the monetary value of his claims against
the defendant
would be significantly higher than would otherwise be the case.
As a result the hotly disputed issue upon which a ruling is by
consent sought at this stage is concerned with whether the plaintiff
sustained this injury in the course of the collision on 13 December
2003, or on some other occasion, whether before or after
this
collision. It is the plaintiff’s case that the fracture injury
was sustained at the time of the collision, but subsequently
overlooked until its significance was only discovered much later.
The defendant, on the other hand, contents that this injury
was
sustained in circumstances entirely unrelated to the collision and
consequently can form no part of the plaintiff’s
claims
against it in relation to and arising out of the collision.
On behalf of the plaintiff five witnesses were called, including the
plaintiff himself. The first witness was Mr Salayathim Reddy,
a
motor mechanic by trade, but unemployed at the time of giving
evidence. He is also known as Gonseel. At the time of the collision
he was a stranger to the plaintiff and Mr Rennie Naidoo, the driver
of the Cortina bakkie in which the plaintiff was a passenger.
According to him he was driving along when he observed the
approaching Volkswagen Jetta encroaching onto his side of the road.
He took evasive action and missed the Jetta, which then collided
with the Cortina bakkie which was following immediately behind
his
vehicle. As a result he stopped to render assistance and later that
same evening took the plaintiff and the driver Mr Rennie
Naidoo to
the emergency section of the R K Khan provincial hospital where he
left them. He became involved in the present litigation
when he was
contacted by an investigator acting on behalf of the defendant, who
obtained a written statement from him on 28 November
2005. By reason
of such involvement he again met up with the plaintiff, with whom he
was as admittedly on friendly terms by the
time he gave evidence at
the trial.
The significance of his evidence is to be found in his account of
the circumstances under which he rendered assistance at the
scene.
Visibility was not an issue because, according to him, it was a
clear summer’s night and the area was well lit with
street
lights. He described the damage to the Cortina bakkie as being
smashed in at the right frontal area, with that area being
bent and
distorted upwards, but with the bonnet still closed. However, he
recalled that the roof was pushed down and the windscreen
had popped
out. The right door to the cab was jammed, he thought because of the
extensive damage on that side of the vehicle.
People had gathered
and several were apparently trying to render assistance to the
driver.
He himself went to the left side of the vehicle, in order to render
assistance to the passenger, namely the plaintiff. According
to him
the plaintiff managed to open the passenger door and emerged from
the vehicle by himself. He was, however, bleeding heavily
and the
attention of the witness was in particular caught by the plaintiff’s
right eye which he described as “
having about popped out
”
and as “
about hanging out
”. Mr Reddy recounted
how he looked the plaintiff over and asked him whether he was “OK”,
but he said the plaintiff
was unsteady and unresponsive to
questioning and he concluded that the plaintiff was suffering from
shock. He conceded that the
plaintiff may have mumbled a reply, but
if he did then he, the witness, did not hear it.
Mr Reddy further described how he took out his handkerchief and held
it to the plaintiff’s injured eye. At the time he
noticed that
the plaintiff was also bleeding heavily from an area behind his left
ear. He described the area as about halfway
between the plaintiff’s
left ear and the back of his head, but he did not investigate the
source of the bleeding and could
not comment upon the nature of the
injury that gave rise to the flow of blood.
Mr Reddy said that the driver (a reference to Mr Rennie Naidoo) then
emerged from the vehicle and came round to the left side
where the
witness was attending to the plaintiff. The driver of his own accord
took off his T-shirt and used that to try and
stem the flow of blood
from the injury behind the plaintiff’s ear. He said that, upon
instruction, the plaintiff eventually
himself held the handkerchief
in place over his injured eye and the T-shirt over the injury behind
his left ear. He estimated
that he departed for the R K Khan
provincial hospital with the plaintiff and Mr Naidoo within ten to
fifteen minutes.
In the course of cross examination counsel for the defendant pointed
out to the witness that the plaintiff attended at the Chatsmed
Garden Hospital the following day, but that he was not treated for
any injury at the back of the head. He further pointed out
that a
series of photographs subsequently taken at the instance of the
plaintiff (exhibit “B” at pages 24 and 25)
did not
contain any photographic record of the left side of the plaintiff’s
head. In both instances the witness replied
that he found that odd.
Counsel then put it to the witness that the defendant’s
contention was that the plaintiff had not
suffered any injury to the
left side of his head during the course of the collision, to which
the witness replied words to the
effect that “
The man was
bleeding
”. Upon further questioning he stressed that he
had observed the flow of blood, but had not sought to examine the
nature
of the injury giving rise thereto.
The second witness for the plaintiff was the driver of the Cortina
bakkie Mr Rennie Naidoo and who, when he gave evidence, was
a tow
truck operator in the employ of his wife. However, at the time of
the collision he said that he was self employed operating
a scrap
metal business. He explained that he employed the plaintiff as his
supervisor, in charge of a gang of 6 to 7 manual labourers
and had
so employed him at that stage for about one and a half years. Part
of the plaintiff’s duties entailed driving a
truck and
collecting scrap metal from customers. He described the plaintiff as
hard working, well behaved and well liked. Although,
at the time of
the trial he no longer employed the plaintiff, he was still clearly
sympathetic in relation to the plaintiff.
Mr Naidoo’s account of the collision and its aftermath broadly
corresponds with that of Mr Reddy and he confirmed that
after he
managed to alight, with some difficulty, from the damaged Cortina
bakkie, he found Reddy attending to the plaintiff.
According to him
he also observed a flow of blood on the left side of the back of the
plaintiff’s head, somewhere near
the ear and as a result he
removed his own T-shirt, wrapped it around his fist and applied
direct pressure with the T-shirt to
the source of the bleeding,
which he referred to as a wound, in order to stem the flow of blood.
He explained that he did so
because he had attended a first aid
course at the Red Cross in the late 1980’s. Asked about the
nature of the injury he
explained that he did not observe the actual
injury, but merely the area where the bleeding came from before
running behind the
plaintiff’s ear and down his neck. He
confirmed that after a while the plaintiff responded to instructions
and also held
the T-shirt in place over the injury and that Mr Reddy
conveyed the two of them to the R K Khan provincial hospital and
left
them there at the emergency section for treatment.
Mr Naidoo’s evidence of what followed at the R K Khan hospital
has been the subject of criticism by the defendant. This
is because
he claimed not to have received satisfactory treatment with the
result that he eventually he telephoned his wife.
She then arrived
and collected both the witness, as well as the plaintiff who had
also not been treated. The latter was dropped
off at his home and Mr
and Mrs Naidoo then returned to their own home and retired for the
night. The following morning at about
11h00 the Naidoo’s
collected the plaintiff and set off for the Chatsmed Garden
Hospital, a private hospital where they
received treatment for their
injuries.
The defendant has been highly critical of the evidence of Mr Naidoo.
The criticism is directed at his claim to have received
very little
by way of treatment that evening at the R K Khan hospital. Initially
his evidence suggested that he received no treatment,
but later he
admitted to a nurse examining him whilst he was sitting in a
wheelchair and touching the back of his head where
he had been
injured. No witnesses associated with the R K Khan hospital gave
evidence. However, copies of the hospital records
were received by
consent, as well as a copy of the plaintiff’s claim form as
submitted to the defendant and which contained
a medical report
subsequently compiled from such hospital records. The defendant drew
attention to the disparities emerging between
Mr Naidoo’s
account of them receiving no significant treatment at the R K Khan
hospital and the records which indicated
that they had been examined
and assessed.
The records of the Chatsmed Garden Hospital, where he was examined
the following day, recorded that he had been X-rayed at the
R K Khan
hospital the previous night and that no fractures were identified.
According to Dr Shah, the medical practitioner called
by the
defendant and who identified the Chatsmed notes pertaining to Mr
Naidoo as having been made by him, he would have obtained
the
information from the patient (Mr Naidoo) and not, as suggested by Mr
Naidoo, upon enquiry from the R K Khan hospital.
The criticism directed at the evidence of Mr Naidoo suggested that
he was unreliable, not only because of these apparent
contradictions,
but also because he himself still had a pending
claim against the defendant for his own injuries arising from the
collision.
In addition it was submitted that he was on friendly
terms with the plaintiff and would be inclined to tailor his
evidence to
suit the needs of the plaintiff. These criticisms also
need to be evaluated against the background of the other evidence
relevant
to the injuries suffered by the plaintiff and how the
existence of the head fracture came to be introduced as an issue in
the
present litigation.
According to the plaintiff’s version of events, at the time
following the collision, little attention was paid to the injury
behind his left ear. The plaintiff said that he himself was
primarily if not exclusively concerned about the injury to his right
eye and that he feared to prospect of loosing this eye, or the sight
thereof. This fear would probably have been exacerbated
by the
subsequent infection of the eyelid, but the effect of his evidence
was that this fear was present from the outset. To
the plaintiff the
primarily visible injuries he sustained, his eye apart, were to his
face. The injury above and behind his left
ear would have been
visible to him only indirectly by the use of a mirror.
Assuming for the moment that the plaintiff had indeed suffered the
fracture in the collision, then it does not appear unreasonable
that
the focus of his attention would have been on his eye and other
facial injuries and that, by comparison, he would not have
had any
compelling reason to be unduly concerned about an apparently small
area of injury behind the left ear. The position may
have been
different had he realised at the time that a fracture was present.
But that is not his evidence and his witness Dr
Du Trevou, a
neurosurgeon, also confirmed that the fracture site would not have
given rise to a degree of pain and discomfort
which would
necessarily have alerted the plaintiff to the fact of a fracture.
It is also not insignificant that the plaintiff’s facial
injuries and in particular the injured and protruding right eye,
would have been the primary focus for attention, both at the time
immediately following the collision, as well as in the aftermath
thereof. Not only was that the effect of the testimony of both the
lay witnesses Reddy and Naidoo, but also of the plaintiff
himself.
As already indicated, the main dispute in regard to the fracture
injury is whether it was sustained in the course of the collision,
or on some other occasion. The defendant denies that the fracture
resulted from the collision and relies on the fact that no
independent record of its occurrence was recorded at the critical
time following the collision, whether that night at the R K
Khan
hospital, or at the Chatsmed Garden Hospital the next day. In
addition the defendant points to the fact that no reference
was made
to the alleged fracture injury in the plaintiff’s original
claim documents submitted to the defendant, or indeed
in the
original particulars of the plaintiff’s claim, when the
present action was instituted The circumstances are indicative,
so
the defendant asserts, of the fraudulent inclusion of the fracture
claim only at a very late stage of the claim proceedings,
in order
to bolster the plaintiff’s claim for compensation from the
defendant.
Before turning to the defendant’s evidence, it is convenient
to pause for a moment to consider how the claim relating to
the
alleged fracture came to be included, by way of the amendment of the
plaintiff’s particulars of claim at the commencement
of the
trial, as the primary disputed issue presently under consideration.
Following the collision the
plaintiff had been medically examined on a number of occasions over
the years. However, in regard
to the alleged discovery of the
fracture injury, the evidence of the neurosurgeon Dr Du Trevou is of
primary importance. He originally
examined the plaintiff on 23 June
2010 at the request of the plaintiff’s attorneys of record. By
way of background information
made available to him he was supplied
with copies of a report dated 11 June 2010 relevant to the plaintiff
and prepared by Professor
T Lazarus, a neuropsychologist, as well as
a report dated 21 May 2010 following an electroencephalogram (
EEG
)
performed upon the plaintiff by Dr B Bhagwan, a neurologist. Copies
of these reports are contained in the bundle marked as exhibit
“D”
before the court. It is apparent from the report by Prof. Lazarus
that the plaintiff had complained to him of
blackouts and that he
had, as part of his investigations, called for the EEG. In his
report Prof. Lazarus commented upon the
fact that the results of the
EEG indicated some abnormality sited at the plaintiff’s left
temporal region.
As a result and in his initial report Dr Du Trevou called for
further investigation to be undertaken by way of a magnetic
resonance
scan (commonly referred to as a MRI scan) of the
plaintiff’s brain, in order to determine whether there might
be evidence
that the plaintiff had suffered some brain injury. In
evidence Dr Du Trevou explained that at that stage he was unaware of
the
fracture injury, there was no documented history of any brain
injury and the plaintiff’s symptoms were not readily
reconcilable
with the nature of the injuries he was reported to have
sustained in the collision.
On 9 July 2010 Dr D D Royston,
a specialist radiologist subjected the plaintiff to a magnetic
resonance imaging (
MRI
)
scan and
reported evidence of an old united skull fracture of the left
parietal bone with mild depression and distortion of the
overlying
scalp, as well as the presence of a small metallic artifact or
fragment at the fracture site. In a subsequent report
of 20 July
2010 Dr Royston reported on a
computerised
tomography (
CT
)
scan
,
also known as a
CAT
scan
,
performed on the
plaintiff in order to evaluate the fracture site and commented that
the so-called ferromagnetic artifact does
not show up on the skull
X-ray or CT scan, but is only detectable by the sensitivity of the
MRI scan. In evidence Dr Royston
explained that an MRI scan employs
magnetic and radio waves, as opposed to X-rays, resulting in a
blooming effect due to the
artifact’s distortion of the
magnetic field. If the fragment had been anything but miniscule, it
would have shown up on
the CT scan. He placed it in the area of the
fracture, but on the outside of the skull. According to Dr Royston
the size of the
fracture area was 25 mm and the depth of depression
5 mm. He was unable to age the fracture and speculated that the
metal fragment
could have resulted at the time when the injury was
sustained, or from subsequent medical treatment to the site of the
fracture,
such as the tip of a staple separating.
In the light of the findings and reports by Dr
Royston it appears that Dr Du Trevou concluded that the plaintiff
had indeed suffered
a brain injury as a result of the skull
fracture, as expressed in his supplementary report. In evidence Dr
Du Trevou was asked
to comment upon the fact that he, as well as
apparently other medical practitioners, had not picked up on the
skull fracture.
Dr Du Trevou said that when he first examined the
plaintiff there was little to see of the injury at the site of the
fracture
and he failed to notice it because there was no obvious
abnormality and no history of the fracture, so that he did not
expect
to find such an injury.
Questioned upon the situation which would have
prevailed closer to the time of the collision, Dr Du Trevou
expressed the opinion
that there was likely to have been a
laceration at the fracture site and that the presence of the
metallic fragment was supportive
of this conclusion. He was of the
view that the plaintiff should have been X-rayed immediately after
the collision and that it
was unfortunate that he was not. However,
he pointed out that by the following day the bleeding would have
stopped. This suggested
that by then the fracture injury would have
been less obvious. Whilst he had not himself examined the wound
site, Dr Du Trevou
stated that if the wound had been sutured, the
suture marks would be visible upon subsequent examination, but that
he was not
aware of any having been applied to the area of the
fracture. It was not suggested in the course of the trial before me
that
any such marks are to be found.
Under cross examination Dr Du
Trevou confirmed that on the information he was given the plaintiff
had not suffered any loss of
consciousness at the time of the
collision, but he expressed the view that with the type of focal
impact involved in the fracture,
a loss of consciousness would
probably not have followed.
Because there was no
evidence of any blood clot or obvious injury to the brain underlying
the fracture, he considered that the
brain injury which resulted was
of a subtle nature. He contrasted this type of focal impact with a
general blow to the head,
where
the shock is to the brain as a whole and where a loss of
consciousness was far more probable.
Dr Du Trevou was taxed in cross examination to
express his views on the assumption that the plaintiff suffered the
skull fracture
in the course of the collision. He said that the
injury in the area of the left parietal bone may have given rise to
considerable
bleeding, depending upon the nature of the wound
itself, because the scalp was very vascular. He pointed out,
however, that a
wound of this nature, whilst it should have been
detected, investigated and treated, was in practice easily missed,
particularly
when it was obscured by hair and the focus of attention
drawn to the frontal facial injuries, with particular emphasis upon
the
dramatic eye injury. In this regard it was pointed out to him
that Dr Shah, at the trauma unit of the Chatsmed Garden Hospital,
examined and treated the plaintiff during the day following the
collision and had not recorded any scalp injury in the area of
the
plaintiff’s left parietal bone. Dr Du Trevou responded that
medical officers not infrequently fail to detect such injuries.
He
explained however that the reasons for such failures could be many
and would include an incomplete physical examination, or
the fact
that the patient does not alert the practitioner to an injury in
that area. He agreed that he would have expected the
medical
attendants at both the R K Khan hospital, as well as Dr Shah at the
Chatsmed Garden Hospital the next day, to have detected
the injury.
However, in his view no criticism could in this regard be leveled at
Dr Nagar, the general practitioner whom the
plaintiff consulted on
or about 15 and 18 December 2003. This was because in the absence of
a specific complaint Dr Nagar would
not have been expected to do a
detailed scalp examination and in any event, by then the patient
would have been cleaned up, the
injury partly healed and hidden by
hair. But even if the injury had been drawn to his attention, he
would not have expected Dr
Nagar to do anything about it, where the
patient otherwise appeared unaffected.
In the course of cross examination Dr Du
Trevou confirmed that the plaintiff had not reported this head
injury to him in the course
of routine questioning when he first saw
him and that the injury, as well as the underlying fracture, were
discovered only as
a result of the investigations made by reason of
the symptoms which the plaintiff complained about. The sequence of
the events
giving rise to the discovery of the fracture started with
the abnormality detected in the EEG result, which gave rise to the
MRI scan and was then confirmed by the X-rays and CT scan. It
appears that at no stage did the plaintiff complain or himself draw
attention to the injury at the fracture site.
Contrasted with the evidence presented on
behalf of the plaintiff in seeking to explain how he sustained the
fracture in the collision,
but how it then remained undetected until
located by Dr Royston, is the evidence of Dr Shah, an experienced
trauma unit practitioner,
who was called by the defendant. He
confirmed that he was on duty at the Chatsmed Garden Hospital on 14
December 2003 when both
Mr Rennie Naidoo and the plaintiff presented
at the casualty department for treatment. He took issue with the
account of Mr Naidoo
regarding the latter’s alleged lack of
treatment the previous evening at the R K Khan hospital.
With regard to the plaintiff
Dr Shah was adamant that he would have thoroughly examined the
plaintiff and if the plaintiff had
indeed suffered the injury at the
skull fracture site as he claimed, then the witness would have
detected, noted, investigated
and treated this injury. He explained
how he habitually would have subjected the plaintiff to a head to
toe physical examination,
which would have included a detailed scalp
investigation whereby he would have manually palpated the scalp
looking for bleeding,
lacerations, tenderness, indications of spinal
fluid in the nose and signs of bogginess (a soft mass or swelling)
on the scalp.
In the absence of him having recorded such an injury
he asserted that the plaintiff, at the time when he examined him,
was not
suffering from such an injury. He confirmed, despite being
referred to colour photographs of the plaintiff taken about a week
later and appearing in exhibit “B” at pages 24 and 25,
that he had no
independent recollection of having examined the plaintiff and relies
for his evidence entirely upon his clinical
notes,
made at the time.
At the end of the day the
parties therefore presented two conflicting versions of the
condition of the plaintiff following the
collision. On the
plaintiff’s version he had suffered,
inter
alia
, a
focal impact injury to the area of the left parietal bone, causing
either a cut or a laceration of the scalp and unbeknown
to him an
underlying skull fracture. According to the defendant he could not
have suffered such an injury in the collision because
had no such
injury when examined by Dr Shah the next day and did not alert
anyone to such injury thereafter. It follows that
it is the
defendant’s contention is that the injury now under
consideration was suffered by the plaintiff on some unrelated
occasion and is belatedly and dishonestly now claimed by him to be
attributable to the collision in order to bolster his claim
for
compensation against the defendant.
In order to come to a conclusion in this
matter I need to consider the totality of the evidence before me,
including the quality
of the witness testimony, their credibility
and the probabilities that emerge. I have to bear in mind that it is
the plaintiff
who carries the burden of persuading me, on a
preponderance of probabilities, of the truthfulness of his version
and that if,
at the end of the day the scales were evenly balanced,
the plaintiff cannot succeed.
There is no serious attack
upon the credibility of the plaintiff’s medical witnesses Drs
Du Trevou and Royston and deservedly
so.
Both of them gave their
evidence in a forthright manner and it was not suggested to them
that they had erred in any material respects.
The position is
different in respect of the plaintiff himself, as well as his lay
witnesses Messrs Reddy and Naidoo. Plaintiff
himself was questioned
about this particular injury. He explained that his primary concern
was with his facial injuries and that
he feared the loss of his
right eye at the time. He was not challenged on his evidence that he
showered and that his late father
cleaned his wounds when he arrived
home the evening of the collision. Nor was he challenged upon his
evidence that his father
cut his hair prior to the photographs
appearing at pages 24 and 25 of exhibit “B” being taken,
because his hair
interfered with the treatment of his injuries.
Plaintiff is neither well
educated, nor sophisticated. The same observation would apply to
both Mr Reddy,
as
well as Mr Naidoo. I have been urged to disbelieve the evidence of
the plaintiff and these two witnesses because, so counsel
submitted,
Naidoo in particular was dishonest about the alleged lack of
treatment he and the plaintiff experienced at the R K
Khan hospital
the evening of the collision and because both witnesses are on
friendly terms with the plaintiff. In Naidoo’s
case he also
still has a pending claim for damages against the defendant arising
out of the same collision so that it was submitted
he had a motive
for exaggerating and/or falsifying both his own as well as the
plaintiff’s injuries. To plaintiff the motive
of bolstering
his claim against the defendant was suggested as the reason for
dishonesty. Heavy reliance was placed upon the
evidence of Dr Shah
to avoid the conclusion that the plaintiff suffered the skull
fracture in the course of the collision.
I have some difficulty with these submission
made on behalf of the defendant. Whilst Mr Naidoo’s evidence
regarding the
events at the R K Khan may appear less convincing in
the light of the clinical notes made by Dr Shah at the time, the
fact of
the matter is that both he and the plaintiff left the R K
Khan hospital that evening and went to the Chatsmed Garden Hospital,
a private institution, for attention and treatment the next day.
This suggests that they were unhappy with the R K Khan hospital
at
the time.
Despite the entreaties of counsel for the
defendant to the contrary, I did not gain the impression, by virtue
of their demeanor,
that the plaintiff, or Mr Reddy, or indeed even
Mr Naidoo, were unreliable or deceitful witnesses. As already
indicated, they
were unsophisticated but came across as genuine and
honest. Of course, I hasten to add that demeanor is a notoriously
fallible
measure of the reliability of a witness and needs to be
employed with some caution.
Turning then to the
probabilities emerging from the facts before me, the first matter to
consider is whether the skull fracture
injury claimed to have been
suffered by the plaintiff in the course of the collision, could
reasonably have occurred. We have
undisputed evidence that the
plaintiff was a passenger in the Cortina bakkie when it was involved
in a front end collision with
the Jetta, as a result of which the
windscreen popped out and the roof of the cab of the Cortina partly
collapsed. The plaintiff
hit his head in being propelled forwards
and suffered facial injuries. The question is whether it was
possible for him to have
suffered a focal impact injury to the area
of his left upper parietal bone at the same time. The answer, it
seems to me,
is
in the affirmative. The obvious culprit is the safety belt mounting
situated, according to the evidence, at approximately head
height on
the left rear cabin pillar. Mr Naidoo, apart from frontal injuries,
suffered injury to the back of his head, which
lends support for the
conclusion that the occupants inside the Cortina were also thrown
backwards as a result of the impact.
In my view it is not unlikely
that the plaintiff’s head would have collided with some force
with the seat belt mounting
at the left rear pillar, thus causing
the injury and the underlying skull fracture.
This conclusion is supported by various other
aspects of the evidence. These include the metal fragment detected
by Dr Royston
at the fracture site, the absence of any evidence that
the wound was ever sutured or otherwise treated and the evidence of
both
Mr Reddy and Mr Naidoo that immediately after the collision the
plaintiff was bleeding heavily from an injury behind his left ear.
Their respective accounts of this were consistent and plausible,
including that Mr Naidoo removed his T-shirt and used it to
apply
pressure to the injury in order to stem the flow of blood. This
account also finds some support in the evidence of Dr Du
Trevou to
the effect that an injury to the scalp could bleed profusely.
The respective positions of Mr Naidoo and Mr
Reddy should also be considered. Mr Naidoo is an older man and was,
at the time of
the collision, the plaintiff’s employer. As
such he was well disposed to the plaintiff and concerned about his
welfare.
Although he did not say so, as the driver of the vehicle in
which the plaintiff was a passenger when he was injured, he may also
have experienced a feeling of responsibility for the plight of the
plaintiff. But to say that he would, as a result, falsify
his
evidence appears less likely. The position of Mr Reddy is different.
He was at the time the proverbial good Samaritan. He
knew neither
the plaintiff, nor Mr Naidoo, but stopped as a result of the
collision to render assistance and transported the
two of them to
the R K Khan hospital because, as he explained, it was the closest
hospital and he thought they urgently needed
treatment. His
involvement subsequently came to light as a result of investigations
on the instructions of the defendant and
thus he again met up with
the plaintiff and ultimately became the latter’s witness. He
freely conceded that at the time
of giving evidence he was on
friendly terms with the plaintiff, but he denied falsifying his
evidence to assist the plaintiff.
As a motive for dishonesty, the
fact that the witness was on friendly terms with the plaintiff,
appears to me unconvincing.
In contrast to the plaintiff’s evidence
is the evidence of Dr Shah. It was not suggested by counsel for the
plaintiff that
Dr Shah was deliberately misleading or dishonest in
his evidence, but merely that he was mistaken and had erroneously
missed
the skull fracture injury when he examined the plaintiff on
14 December 2003. The fact is that Dr Shah had no independent
recollection
of the examination and that his clinical notes, both in
respect of Mr Naidoo as well as the plaintiff, erred on the side of
brevity.
From the facts already alluded to above we know that when
the plaintiff was examined by Dr Shah the day following the
collision,
he had showered, his late father had cleaned his wounds
and his hair was longer than appears in the photographs contained at
pages 24 and 25 of exhibit “B”. There is also the
evidence of Dr Du Trevou, an experienced neurosurgeon, that it is
not uncommon for such injuries to be missed by medical officers in
casualty units, although this should not happen.
Then here is the manner in which the fracture
injury eventually came to light. Had the plaintiff wished to mislead
the court and
to falsely include in his claim for injuries sustained
in the collision, the skull fracture which he sustained on some
other
unrelated occasion, then in my view it is unlikely that he
would have gone about it in such an oblique way. He complained about
blackouts to Prof. Lazarus, but without any mention of a head injury
or hint at a skull fracture. It was purely fortuitous that
Prof.
Lazarus commissioned the EEG, the abnormal results of which caused
Dr Du Trevou to ask for the MRI scan, the results of
which in turn
gave rise to the X-ray and CT scan, by virtue of which the existence
of the fracture was determined shortly before
the trial and many
years after the collision. Even for a sophisticated fraudster such a
subtle way in which to introduce the
fracture claim would have been
remarkable. For a man with the lack of sophistication of the
plaintiff, as well as his witnesses
Messrs Reddy and Naidoo, that
would, in my view, be quite astonishing.
The only evidence by the defendant which could
seriously cast doubt upon the version of the plaintiff, is that of
Dr Shah. Upon
a consideration of the evidence as a whole I have come
to the conclusion that Dr Shah probably missed the fracture injury
at
the time of examining the plaintiff, but was reluctant to concede
of this possibility when he gave evidence. In saying so I do
not
wish to reflect adversely upon the honesty or integrity of Dr Shah.
He may well honestly have held the view that his examination
at the
time would have been thorough and faultless, but he could be certain
because he had no independent recollection of the
event.
His account of the meticulous examination and
palpation I find less than persuasive, especially in view if the
evidence of Dr
Du Trevou that mistakes of this nature happen not
infrequently. Given the fact that the plaintiff had, by the time he
was examined
by Dr Shah, showered, his wounds had been cleaned and
he was no doubt alarmed and preoccupied with his facial injuries and
in
particular the injuries to his right eye, Dr Shah’s
attention may well have been diverted from the possibility of any
injury
in the region of the left parietal bone. This is all the more
so if the bleeding had stopped and the plaintiff’s hair at
the
time was longer, so that the injury was obscured by hair.
Weighing up all the evidence before me, I have
come to the conclusion that it is probable that the plaintiff
sustained the skull
fracture in the course of the collision and
failed thereafter to alert others to this fact in good time. I find
it improbable
to a considerable degree that the plaintiff hatched a
scheme to falsely claim to have suffered a skull fracture in the
collision,
when in fact he suffered it on some unrelated occasion.
This suggestion simply does not have the ring of truth, despite the
unusual
circumstances accompanying the plaintiff’s account of
how the injury only came to light at such a late stage.
I have been requested, at this stage, only to
make a finding upon the manner in which the plaintiff’s
fracture injury was
sustained. The consequences arising from such
injury will be decided, together with any other issues remaining,
including considerations
of costs, at some future hearing of this
matter.
That being so, the order which I make is therefore that:-
a. The plaintiff succeeds in establishing that the injury to the area
of his left parietal bone and the underlying skull fracture
were
sustained in the course of the collision on 13 December 2003.
b. All issues of costs are reserved.
_____________________
VAN ZÿL, J.
APPEARANCES:
For Plaintiff : Adv R B G CHOUDREE SC
Instructed by Shashi Maharaj & Company of Chatsworth.
For Defendant : Adv I PILLAY
Instructed by s d Moloi & Company of Durban.
Date argued : 13 October 2011
Delivered : 10
May 2012
Page
27
of
27