Ngema v Road Accident Fund (8051/06) [2009] ZAKZPHC 32 (31 July 2009)

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[2009] ZAKZPHC 32
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Ngema v Road Accident Fund (8051/06) [2009] ZAKZPHC 32 (31 July 2009)

IN
THE KWAZULU-NATAL HIGH
COURT, PIETERMARITZBURG
REPUBLIC
OF SOUTH AFRICA
CASE NO : 8051/06
In
the matter between :
THANDEKA
LYDIA NGEMA Plaintiff
and
THE
ROAD ACCIDENT FUND Respondent
­
J U D G M E N T
Delivered
on :
31/7/2009
K
PILLAY J
[1]
Plaintiff
institutes action against the defendant for damages totalling R3
381 037.60 arising out of a motor vehicle collision
that occurred on
1 September 1995 in the Kranskop area. Plaintiff, who was originally
represented by her mother, was born on 12
December 1987. The
damages, claimed under different heads, are set out in detail in the
Particulars of Claim.
[2]
At
the time of the collision, she was 8 years old and had commenced
Grade one.
[3]
The
defendant has already admitted liability for :
3.1
The physical injuries sustained by plaintiff as set out in
paragraph 6 of her particulars of claim, and to this end had admitted

facts, findings and opinions contained in the report of orthopaedic
surgeon, Mr Michael Jelbert.
3.2
Any further injuries proved to have been caused by the collision.
[4] The parties also agreed that
plaintiff’s medical and hospital records correctly reflect what was
recorded at the time they
were recorded and that the said recordings
are a true and correct reflection of what transpired at that time.
[5]
The
following emerged from the said records :
5.1
Plaintiff
was admitted to Umphumulo Hospital on 1 September 1995.
5.2
That
on the same day :
5.2.1
Her
skull was first x-rayed and “NAD” noted (no abnormalities
detected).
Her very swollen left leg was x-rayed showing a
fracture to the tibia and the fibula.
5.2.2
She
was hospitalised for 48 days.
5.2.3
On
27 September 2001 (six years after the accident) plaintiff was taken
to the
Phelophepa
Health Care Train
whereupon
she was referred for an educational assessment by a psychologist for
an appropriate school placement. Her referral letter
states that she
presented with the following symptoms.
“
Slow cognitively, personality problems after an
MVA that occurred in 1995. Traumatised by the death of her brother
in the same
accident.”
[6]
In
the second part of the form a different social worker states the
following :
(
6.1
)
“Query whether the problem is genetic or caused by the
incident….refer to a clinical psychologist.”
Exhibit C 26
(6.2)
On
9 October 2001 it was noted that she was suffering from
PTSD
(post traumatic stress disorder) and was aggressive, with nightmares
and flashbacks. It was also noted that she had a problem
with
transport.
(6.3) On 6 November 2001
fluoxetine
(an antidepressant)
was prescribed.
(6.4)
On
14 January 2002 it was noted that she is on
prozac
(an antidepressant) for her PTSD.
(6.5)
On
26 November 2002 it was noted that she is “apsychotic”.
(6.6)
On
28 May 2003 it was noted that she is in remission.
(6.7)
On
19 January 2004 it was noted that she was improving slowly and that
she was back at school.
(6.8)
On
January 2004 it was noted that plaintiff refuses to bath (this is at
the age of 18).
(6.9)
On
4 November 2005 it was noted that the patient is refusing
haloperidol
(a major tranquiliser which is considered an antidepressant drug).
(6.10)
On
1 October 2005 it was noted that she has behaviour problems and
haloperidol is added to her prozac medication.
(6.11)
On
31 October 2006 it was noted that she suffers from depression.
(6.12)
On
9 February 2006 she was referred to as “a case of mental
retardation”.
(6.13)
On
18 May 2006 she was noted as suffering from mild mental retardation
and dysthymia.
(6.14)
This
was repeated on 3 November 2006 where it was also noted that he
mother reports behaviour problems and problems at school.
(6.15) O
n
1 December 2006 it was again noted that she suffers from mild mental
retardation and dysthymia and that her mother was complaining
that
she was not compliant, often suffered from a low mood and that she
laughed to herself.
(6.16)
On
29 December 2006 it was noted that she completed Grade 11 with poor
results.
(6.17) O
n
24 January 2007 it was again noted that she suffers from mild mental
retardation and depression and that she was refusing to attend
at the
hospital (this had been noted often previously).
(6.18)
A
referral letter dated 24 January 2007 from the psychiatric clinic at
Stanger Hospital stated that she suffers from depression
and is
taking prozac.
SCHOOL RECORDS (EXHIBIT B)
[7]
Her
school reports (
exhibit
B
) indicate that :
7.1
She
repeated grade one at a different school after the accident and did
very well.
7.2
That
when she was in grade four (standard two) in 1999 she was “doing
very badly”.
7.3
That
in grade five her conduct, self confidence, self organisation and
response to health education was weak, and that she was doing
badly.
7.4
In
grade nine she obtained a 30.8% average, indicating that she had not
achieved. The remark was that her work was not satisfactory
and not
good.
7.5 I
n
November 2007 she obtained a matric certificate at the age of 20
(with an average of 36.1%)
[8]
The
issues for determination in this trial are essentially:
Whether the Plaintiff suffered a
head injury at the time of the collision and if so whether that
head injury caused cognitive
deficits justifying any general
damages and/or special damages. What quantum should be awarded for
the head injury if such
is proved.
8.2 What should be the quantum of
the damages occasioned by the orthopaedic injuries.
[9]
The
following evidence was adduced in support of Plaintiff’s case.
[10]
The
Plaintiff’s mother, Jabulisiwe Ngema testified that after the
accident in September 1995, she visited Plaintiff in hospital
and
found her crying. Plaintiff reported to her what had happened and
enquired about her cousin who was 10 years old and who had
died in
the accident.
[11]
She
observed injuries on Plaintiff’s face, more particularly on the
right temporal region and on the leg. Plaintiff was hospitalised
for
about a month. After her return from hospital she did not return to
school for that year as she was on crutches.
[12]
When
she returned to school, in Grade one, she performed very well, until
informed about her cousin’s death, where after her condition

altered. She would not bath or speak to other children and would cry
and laugh, contrary to the way she behaved pre-accident.
[13]
In
2001 she took her to a Health Care Train. Plaintiff was 14 years old
at the time.
[14]
She
testified that the Plaintiff displays aggression. She had flashbacks
and nightmares. This action was only instituted after
her visit to
the Health Care Train. The Plaintiff attempts to kill herself if she
did not take her medication. Plaintiff did
however secure a condoned
pass in matric.
[15]
She
confirmed that her one son was abnormal from birth and that her
sister’s son was mentally ill.
[16]
The
Plaintiff also suffered burns as a result of water being thrown at
her. She was hospitalised a few days following the incident.
[17]
It
became apparent from this witness’s testimony that Plaintiff’s
abnormal behaviour manifested more significantly when Plaintiff
was
in Grade 4, about 4 years after the accident.
[18]
Jane
Bainbridge
, an
occupational therapist assessed the Plaintiff on 19
th
August 2008. According to her summary:
18.1
She
concluded that the Plaintiff sustained a possible head injury and has
developed psychiatric sequelae as a result thereof.
18.2
Plaintiff
demonstrates aberrant behaviour, poor cognitive abilities and
emotional immaturity.
18.3
If
the aetiology thereof is deemed to be related primarily to the Motor
Vehicle Accident, this will have significant implications
on her
future care requirements and her loss of earning capacity.
18.4
She
is ineligible for any realistic gainful employment in the open labour
market for which higher than normal contingencies for
periods of
unemployment must be considered. Her report also confirmed that the
Plaintiff’s mother stated that plaintiff sustained
a “scratch”
on her forehead during the accident.
18.5 Plaintiff appears according to
her to have no insight into her own condition. She does not bath,
wears dirty clothes and
leaves sanitary towels lying around. She is
impulsive, lacks discernment, and is apathetic, resistant and
defiant. She throws
things down and laughs to herself. She demands
food and eats a lot and cannot reach satiety.
18.6 She is easily irritated and
angered by petty issues and is teased by her peers.
18.7
She
is naïve and vulnerable to sexual abuse.
18.8
She
perseverates on scenes of her cousin having died and having been told
by the police that her cousin would be coming home. She
continues to
dream of her cousin.
18.9
She
has a history of running away from home.
18.10
According
to
Bainbridge
the
Plaintiff answers were initially monosyllabic and her behaviour was
passively aggressive and reticent.
18.11
She
demonstrated limited insight, and the assessment finding suggests the
following :
Weak planning on a 2D level.
Impulsivity and difficulty following instructions.
Weak visual moter integrative skills.
Slow work speed.
Weak upper limb speed and exterity.
Weak visual moter control.
Weak global visual perceptual processing ability.
Weak mathematical reasoning.
Error prone and unable to recognise errors
Distract ability.
Executive dysfunction.
Retarded spontaneity.
Flouted test rules.
Poor self monitoring.
Anergia.
[19]
According
to
Bainbridge
these are serious congenital problems. The deficits are consistent
with those reported by
Professor
Schlebusch
in his
report of 18 October 2005 in which he concluded that plaintiff has a
“clinical and
psychometric picture consistent with a diagnosis of learning
disorder, behaviour personality changes, insipient,
oppositional
defiant disorder, variable symptoms of cerebral pathology i.e.
neuropsychological and intellectual fallout consistent
with a
possible cognitive (
concussive
)
disorder….”
[20]
Counsel
for Plaintiff contends that the following comments of
Bainbridge
are of assistance:
20.1 That Plaintiff presented as
someone who has suffered more than just a mild head injury
20.2 She was not malingering, and
that “even on a good day she would be bad”.
20.3 She mentioned that she spent
approximately five hours with plaintiff, in relation to the 40
minutes which Dr Du Trevou spent
with her. This would be an
explanation for her noticing inappropriate conduct, which Du Trevou
may not have noticed during the
short time he spent with plaintiff.
This is in any event according to plaintiff, admitted by Du Trevou.
[21]
However,
Bainbridge
conceded
that plaintiff may have had a psychiatric propensity which was
triggered by the accident.
[22]
Sonia
Hill
is an
Industrial and Counselling Psychologist who was requested to perform
a vocational assessment and to comment on loss of earnings.
She
confirmed what is said by Bainbridge and Schlebusch in their reports
as to the Plaintiff’s present symptoms.
[23]
During
her assessment she used one of Plaintiff’s peers as an interpreter
namely
Pretty Mkhize
who provided some information relating to the Plaintiff’s
scholastic history. According to Pretty Mkhize the Plaintiff would

walk aimlessly during class periods. If anyone laughed at Plaintiff
she would hit them and they regarded the Plaintiff as “very

strange”. It was also noted that during the entire assessment the
Plaintiff did not face the interviewer. She had her fingers
in her
mouth most of the time and could not cope with complex instructions
and gave up easily. Her level of intellectual functioning
was within
the borderline subnormal range and there was a 14 point
differentiation.
[24]
Clinical
Psychologist,
Professor
Schlebush
conducted
an assessment of the Plaintiff on 18 October 2005.
[25] He spent two lengthy periods of
time (three hours each) with Plaintiff and with her mother and did
various psychometric and
clinical assessments.
[26]
In
summary he states that:
26.1
Plaintiff’s
cousin died in the accident which traumatised Plaintiff significantly
and that she is still emotional when this is
discussed.
26.2
Various
reports are in agreement that she has suffered several disabilities.
26.3
She
has allegedly been left with various residual problems including
headaches, pain in her left leg, the need for analgesics to
cope with
her pain, behavioural changes (lethargy, forgetfulness, poor
concentration, being easily upset, fatigue, disciplinary
problems,
aggressiveness) etcetera), post traumatic decline in self esteem and
scholastic functioning, learning difficulties and
related problems
and various other difficulties. He thereafter discusses the
clinical, psychological / neuropsychological and
related sequelae
associated with his own findings which includes variable symptoms of
cerebral pathology (i.e. neuropsychological
and intellectual
fall-out-deficits consistent with a possible
cognitive
(concussive)
disorder.(emphasis provided)
[27]
When
he first saw Plaintiff he states that she presented as cognitively
slow, sullen and often engaged in “give up” responses.
She was
apathetic, easily fatigued and had difficulty to persistently
maintain a sustained attention span. She also had difficulty

confirming some of the events surrounding the MVA because of her age
at the time and reported loss of consciousness. At times
she gave
answers which were characteristic of impaired higher cognitive
function.
[28]
He
states that the mother reported that Plaintiff was psychologically
stable before the accident.
Schlebush
himself confirmed this independently through Plaintiff’s
developmental history checklist responses (which are based on a
structured
developmental history) and by her clinical history.
[29]
The
mother’s concerns were the following:
She will not progress as expected at
school (which was subsequently confirmed by her grade 10, 11 and 12
reports submitted after
she was first seen by
Schlebush
).
That she will be unable to socialise properly.
She will have difficulty to locate her anticipated
employment.
[30]
Her
IQ is consistent with a borderline, below average, intellectual
functioning.
[31]
Schlebush
accordingly
in his first report, and in his evidence paints a clinical picture of
a person with the following problems:
Learning disorder.
Aggressive.
Moodley
Fatigued.
Forgetful.
“
Gives up”
Undisciplined.
Interpersonal problems.
Defiant.
Cerebral pathology (neuropsychological and intellectual
fallout).
Possible concussive disorder.
Psychological distress.
[32]
His
second report delivered on 3 September 2008, by and large confirms
what he states in his first report. He had by then also
been
furnished with the following reports:
Neurosurgeon
De
Trevou
;
Industrial psychologist
Hill
;
Clinical psychologist
Plunkett;
Occupational therapist
Bainbridge
.
[33]
He
states in his second report (submitted three years after the first
report) that she is still quite emotional when she discusses
the
death of her cousin in the accident, and that she still suffers from
the same disabilities which he had mentioned previously.
[34]
He
particularly stresses her oppositional defiant disorder.
[35]
He
repeats that her neuropsychological deficits at the time of his first
assessment are variable and associated with her functional,

psychopathology which could have overlapped with a possible
concussive head injury.
[36]
He
comments that her current adjustment, intellectual level,
neuropsychological deficits and other psychopathology are likely to

continue to impact adversely on her potential occupational and
psychosocial adjustment. He states that there is nothing to suggest

that the adverse psychological profile she continues to present with
existed pre-MVA.
Therefore, a nexus between the sequelae of the accident and his
current findings cannot be axiomatically excluded.
[37]
In
response to a question by Court he confirmed that a skull x-ray would
not be done if there was not some cause for concern in
that region.
[38]
He
conceded that if there was some genetic predisposition the trauma of
the accident might well have “brought it out” (or precipitated
/
exacerbated it) as suggested by Plunkett (exhibit D 110).
[39]
In
cross-examination
Schlebush
stressed that Plaintiff’s picture has become chronic (i.e.
permanent).
[40]
He
performed tests for malingering, and there was no indication
whatsoever that Plaintiff was malingering (in fact Plaintiff herself

insisted that there was nothing wrong with her). When it was
suggested to him that her mental state may be linked to the fact
that
she was burnt with water about six months after the accident, his
spontaneous reply was that this accident was not an issue
with the
mother at all. He in any event did not find that this was a
particularly stressful incident and Plaintiff was not at
all
disfigured by it (as confirmed by
Bainbridge
).
[41]
He
stated that her psychiatric disorder, as described by
Plunkett
is not a mental disorder but a behavioural difficulty.
[42]
According
to her functionality tests she falls within the category of 30% or
less of the public.
[43]
During
cross-examination
Schlebush
stated that:
43.1
Given
the deficits presented by Plaintiff, they would suggest a head injury
rather than a mild one.
43.2
The
fact that she only really began to present with problems in grade 4
is not unusual and is in fact supported in the literature.
43.3 There is nothing in Plaintiff’s
behaviour which suggests or illustrates or is evidence of a genetic
disorder.
43.4
The
mere fact that the x-ray showed that no abnormalities were detected,
does not mean that there were none. This also applies
to magnetic
resonance imaging (an MRI scan).
[44]
Plaintiff
requires the court to infer that there was brain damage caused by
head injury at the time of the collision by virtue of
the following:
44.1 That the Plaintiff presents
certain cognitive deficits which may be consistent with the head
injury.
44.2
According
to the Plaintiff’s mother Plaintiff was fine before the collision
and only started demonstrating the “deficits after
the collision”
44.3 In hospital after the
collision an x-ray of the child’s skull was done and in this
regard
Dr Du Trevou
the defendant’s witness remarked that it was reported to be normal.
[45] It is well-established that the
onus, or burden of proving all the facts relevant to the
establishment of the quantum of her
claim, either in an action for
damages for bodily injury or in an action for damages for loss of
support or services, rests upon
the Plaintiff, which onus is
discharged by proof establishing a balance of probabilities.
[46] Accordingly the Plaintiff must
prove that the collision caused the head injuries complained off and
that those injuries will
cause a future loss of earnings. It is only
thereafter that the issue of quantum arises.
[47]
It
is so that the Plaintiff relies on the following to establish that
there was a head injury at the time of the collision:
T
he
child presents with certain cognitive deficits which
may
be consistent with a head injury.
According to the child’s mother
the child was fine before the collision and only started
demonstrating the
“deficits”
after the collision.
In hospital after the collision an
x-ray of the child’s skull was
done,
even though it was reported to be normal according to
Du
Trevor
.
[48]
Defendant
submits that in assessing whether the onus is discharged the
following evidence of the experts are instructive.
[49]
Schlebush
, in his
reports and evidence, testified that the Plaintiff showed
“variable
symptoms of cerebral pathology … consistent with a
possible
cognitive (concussive) disorder (my underlining)”
Later in his reports he said
“her
neuropsychological deficits were variable and associated with her
functional psychopathology that
could
overlap
with
a possible concussive head injury (had this occurred
)”
.
(Emphasis
provided)
.
[50]
At
no stage does
Schlebush
conclude in his reports that it is
probable
that these deficits were caused by a head injury. In fact he said in
his second report that the fact that the child
“passed
grade 12 … is difficult to understand given that the patient was
not copying well at school when I originally assessed
her and in view
of my earlier and current findings”.
He
said further that
“there
appears to be uncertainty about the possibility or nature / severity
of a head injury sustained by her in the MVA when
I originally
assessed her. This still seems to be the case. Nevertheless she did
present with certain neurocognitive and behavioural
problems. Her
neuropsychological deficits at the time of my first assessment were
variable and associated with her functional
psychopathology that
could
have overlapped with a
possible
concussive head injury.”
(my underlining )
[51]
In
his second report
Schlebush
said the following
“there
is nothing to suggest that the adverse psychological profile she
continues to present with existed pre-MVA. Therefore,
a nexus
between the sequelae of the accident and my current findings cannot
be axiomatically excluded”.
Counsel
for Defendant accordingly submitted that the effect of such a
statement is that it cannot be
“axiomatically”
included either.
[52]
Du
Trevou,
an expert
Neurosurgeon reported, and testified, that the hospital records
“did
not record any other injuries and in particular there is no mention
of the head injury, or of an altered state of consciences”.
He found further that the child showed.
“no
obvious abnormalities of personality, or affect. In particular the
inappropriate behaviour of which her mother complained
was not
evident during my consultation with her”.
[53]
Du
Trevou
also
reported that the child
“has
a good recollection of the accident with no obvious post-traumatic,
or retrograde amnesiac period”
Further,
“she
has no recollection of having suffered any pain on her head.
As
set out above he was of the view that the fact that the GCS score was
not recorded at the Mphumalanga Hospital, would suggest
that there
was no significant brain injury.
[54]
Hill
reported and
testified that:
(a)
The
child had
“no
recall of the events surrounding the accident”
(b)
The
child’s mother claimed that she had seen an injury of the child’s
head when she visited the child in hospital.
(c)
At
a cognitive level the child’s intellectual functioning was well
within
“the
borderline sub-normal level range”.
And that her
“overall
pattern of test performance
may
be consistent with the injury sustained as a result of the accident”.
She was of the
opinion, deferring to Professor Schlebush in this regard, that the
child’s
“functional
psychopathology…could overlap with a possible concussive head
injury (had this occurred). In this view, given the
uncertainty
surrounding the matter of a head injury, further comment is required
from a Neurosurgeon”.
(d)
Her
recommendations were
“with
regard to the uncertainty surrounding the matter of the head injury,
assessment by a neurosurgeon is strongly recommended”.
As set out above, that Neurosurgeon found no evidence of brain
injury.
[55]
Brainbridge
,
the occupational therapist, reported and testified that:
(a)
The
child
“appears to
have sustained a possible head injury”
(b)
The
child
“has patchy
recall of lying in the road and being taken to hospital but does not
recall police or an ambulance being summoned
to the accident”.
(c)
Conceded
that the evidence of
“behavioural
dysfunction and executive dysfunction”
are
not specific to a brain injury
(d)
Because
the Plaintiff’s deficits
“appear
to be consistent with a
possible
brain injury…deference is made to a Neurosurgeon and
Neuropsychologist with regard to the aetiology of the problems”
[56]
Plunkett
,
a clinical psychologist, did not testify because his report was
admitted by consent. It was accordingly submitted that whatever
he
said in his written report must be accepted as it was not challenged
by the Plaintiff. In this regard he said that:
“
There is no objective evidence
that Thandeka sustained a head injury in the accident….”
“
There is some concern that the severe burns she
received subsequent to the accident could not have caused some
psychological effect.
Further information needs to be canvassed in
this regard”.
“
There is a history of psychiatric
problems which is vague and seem to start at least in 2001”
“
She demonstrates certain
cognitive difficulties but these are not specific to mild closed
head injury”.
Schlebush
agreed with this proposition in his testimony.”
“
Her psychiatric difficulties
may have e
merged
anyway (despite the accident)
.
Indeed, some evidence of family dysfunctionality is noted with
various family members suffering from psychiatric disorders
(such as
substance abuse, behaviour problems in the home, antisocial
behaviour etcetera).”
“
The picture is uncertain due to a lack of
information. Knowledge and investigation of pre-accident factors
may provide answers”.
[57]
Plunkett,
more appositely,
reported the following:
“
given the family background, it would appear that
Thandeka has already achieved her likely potential and it is
questionable whether
she would have progressed much further but for
the accident….however, in general, her class position and
comparison with the
grade median certainly indicates that she has the
mental capacity to function in the average range of her grade and
higher”.
[58] The issue of when the cognitive
deficits and behavioural changes
started
to manifest themselves is critically important. In this regard:
(a)
Schlebush
testified, initially, that the Plaitiff’ss mother had said they had
started immediately after the collision. He was of the view
that
that would have been
expected
if there had been a brain injury. He was of the opinion that if
there had been a brain injury the deficits would not only have

manifested themselves years later.
(b)
The
Plaintiff’s mother testified that after the collision the Plaintiff
returned to school and
“did
very well”
.
It was only
sometime later in grade 4 that she started to perform poorly and
behaved badly.
(c) It is common cause that the
Plaintiff’s mother only sought medical assistance for the alleged
behavioural problems when
she attended the
“Health
Care Train”
in
2001. This, it is submitted, is corroboration for the fact that the
alleged
“symptoms”
did not manifest themselves immediately after the collision.
(d)
Very
significantly, when she visited the
“Train”
in 2001 the relevant medical personnel recorded on the
“referral
letter”
“quiry
(sic) whether the problem is
genetic
or caused by the incident
”.
(Emphasis
provided).
[59]
Du
Trevou
reported
that the child’s mother complained that
“her
daughter since the time of the accident has been “not normal”.
This is in
contradiction with the mother’s testimony.
[60] It is unclear from the reports
of the other experts as to when the deficits had allegedly first
manifested themselves, but
in the light of
Schlebush’s
evidence, if they only manifested themselves as late as the mother
testified, then it is unlikely that they were the result of
a brain
injury.
[61]
Defendant
submits that it is also significant that:
61.1
The
Plaintiff was forced to change schools after the collision. As was
conceded by
Schlebush
and the other witnesses, this could very well have affected her
emotionally and behaviourally.
61.2
Her
December 2000 school report reflected marks of varying quality, some,
such as general science, geography and Afrikaans being
very high.
61.3
Her
grade 4 report (for 1999) shows that out of a pupil number of 65 in
the class she was positioned 37
th
.
In other words average.
61.4
Her
marks in 2003 ranged from “excellent” to “poor”.
61.5
In
2005, all of her marks were well above the “grade median”.
61.6
She
passed her matric in 2007 (having failed none of her earlier years).
Her certificate was attached as.
[62]
It
would appear that her reports demonstrate an average pupil within the
context of the class as a whole. In this regard
Schlebush
reported
“she
passed grade 12 (std 10) at school at the end of 2007
.
This is difficult
to understand given that the patient was not copying well at school
when I originally assessed her and in view
of my earlier current
findings”.
[63]
Counsel
for Defendant submits that a determination of whether the evidence
proves on a balance of probabilities that her cognitive
“deficits”
were caused by the collision or not cannot lose sight of the
following facts:
There is evidence of mental
abnormalities and/or aberrations in the family of the Plaintiff.
Accordingly, within the genetic
pool, a gene for mental /
behavioural abnormality existed.
The Plaintiff’s fourteen year old
sibling Sukhulu was reported to have been
“abnormal”
from birth and currently experiencing fits.
63.3 The Plaintiff’s aunt’s son
(Snuthi) did not attend school, despite being twenty six years of
age, because he was described
as being
“mentally
disturbed”.
64.
The
following aunts and/or uncles of the child died because they were
allegedly
“sick”
.
Their precise sickness was not clarified by the Plaintiff.
Ubantu;
Mandlenkosi;
Musa (the above three all
siblings of the child’s mother)
Emerentia;
Simon (the above two being siblings of the child’s
father,
[65]
As
set out above the Phelophepa Health Care Train, Psychology Clinic,
had expressed a view in 2001 that it was necessary to consider
the
possible genetic factors due to this history.
[66]
Very
importantly, when the child was assessed in 2001, the hospital
records, record the following
“2
siblings mentally ill”.
This information could only have been received from the Plaintiff or
her mother.
[67] All the expert witnesses
conceded that genetics can play a part in the acquisition of mental
deficits and Schlebush conceded
the proposition that
“many
years of research have demonstrated that vulnerability to mental
illness – such as schizophrenia, manic depressive illness,
early
onset depression, automatism and attention deficit hyperactivity
disorder – has a genetic component”.
He
conceded further that mental illness is known to run in families.
[68]
In
the context of everything that is set out immediately above, it is so
that no enquiry and/or investigation was ever done into
whether the
“deficits”
being allegedly displayed by the Plaintiff were brought about in
consequence of a genetic component and not the collision.
[69]
No
witness was able to say that there were any facts which suggested it
was not caused by genetics considering the family history
as set out
above.
[70]
The
Plaintiff’s experts focused entirely upon the possibility that the
cognitive deficits were the result of the collision.
They did not
consider the question of the genetic component
at
all
despite having
access to the Clinic’s letter of 2001, the hospital records
relating to the
“two
siblings being mentally ill”
and the information received that members of the family were mentally
ill and/or had died from being
“sick”
in unexplained circumstances.
[71]
It
is also on record that the child was exposed to other trauma
post-accident. For example:
71.
1
In April 1996 she was burnt by water to the extent that she,
according to her mother, had to be taken for medical treatment.
This
is an important incident and was never related to Schlebush and
certain of the other witnesses by the child or her mother.
It was
obviously traumatic to the child and occurred post-accident.
71.2
She lost a brother to a shooting in 2001. Most significantly this
was about the time when she was first taken to the Psychology
Clinic.
There is no doubt that this incident traumatised her also.
[72]
Indeed
there are other traumatic events in the child’s life
(post-accident) which may very well have been the
“trigger”
for cognitive
“deficits”
to emerge more particularly because she is likely to have possessed
the genetic propensity for such deficits through the family
history.
The experts all talked of an
“overlay”
of possible
psychiatric problems.
[73]
If one considers the following:
73.1 There is uncertainty as to when
the
“deficits”
first manifested themselves. Unfortunately the school reports for
grades 1, 2 and 3 at Khomba Primary School are not available.
There
is the evidence of the fact, however, that in her first year at
school after the collision she performed “excellently”.
73.2
There is evidence of a genetic component in relation to mental
illness within the family. This is confirmed by Hill, the hospital

records and the Psychology Clinic Note. Despite that absolutely no
investigation was done in that regard and no evidence placed
before
this court to suggest that that possibility / probability was any
less than the one contended for.
73.3
There
is no evidence or information as to why an x-ray of the head was done
after the collision. In any event, the x-ray was reported
to be
“normal”
The hospital records do not record
a head injury or evidence of brain injury.
No GCS was recorded.
The Plaintiff, on her mother’s evidence, was
conscious after the accident.
[74]
Whilst
it may be so that an x-ray of the head may indicate that whoever
authorised it believed it was necessary because of a suspicion
of a
head injury, and whilst it may be so that that type of x-ray may not
have picked up a brain injury, such possibilities are,
as correctly
submitted, in the context of the matter as a whole and particularly
in the context of the onus, mere speculation.
[75] The Plaintiff has adduced
neither evidence indicating that the “genetic” component did not
result in the “deficits”
nor any evidence that it is less likely
than the collision to have done so.
[76] In the circumstances, I am
unable to find on a balance of probabilities that the cognitive
deficits presently displayed by
the Plaintiff were the result of the
collision.
[77]
I
turn now to the
orthopaedic
injuries.
[78] These are fully set out in the
report of
Jelbert
,
the Orthopaedic Surgeon which was admitted by consent. In summary he
found that:
The
Plaintiff
“sustained
a swelling of the right leg and a fracture of the left leg. The
swelling of the right leg was presumably bleeding
…into the muscles
or under the skin. This seems to have settled and Lydia does not
experience any problems with the right leg.
The left leg was found
to be fractured and was treated in plaster of paris for nearly seven
weeks. The fracture was then noted
to be stable and at the
examination on 19/10/2005, the left tibia seems to have united
completely in excellent position. There
is no shortening of
malrotation or angulation of the facture site, and Lydia walks
normally without a limp. The leg is strong
and she is able to hop on
the left leg without problems. The slight reduction in dorsi-flexion
is due to slight tethering of the
muscles at the fracture site. This
slight reduction in movement will be a minimal inconvenience if she
has to climb up ladders
or stairs, or go up steep hills. There may
be slight reduction in her sprinting as well. However her normal day
to day activities
will not be affected…the bone has joined
completely, but the scar tissue will remain when the bone grows,
there may be stress
on the fracture or on the scar tissue giving rise
to slight pain. The pain will be more prominent after a growth spurt
and often
worse as well in cold weather. Generally this settles down
in time, but it may continue until she is skeletally mature. This
may be at 18 – 21 years of age. Generally the pain is more of a
dull ache with only occasional need for anti-inflamatories or

analgesics.”
[79]
As
regards pain and suffering, and future impairment,
Jelbert
reports as follows:
“
Lydia sustained a fractured leg
which would have been very painful. She would have required narcotic
analgesics to control the
pain, and even in plaster of paris the pain
would have persisted for at least 6-7 days. After that, as the
swelling and bruising
settled, the pain would have become manageable
by oral analgesics and anti-inflammatories, although there may have
been break through
pain, even with the leg in plaster. Plaster can
never hold the fracture totally immobile and therefore twisting in
bed, moving
the leg to a more comfortable position, can all give rise
to stabs of pain which may require increased medication. Lydia was
then
mobilised with crutches and there would have been an increase in
pain as the leg would have been hanging down and there would have

been swelling. When the plaster was removed and she was walking
without support, there may have been an increase in pain again
for a
while. The pain would have gradually have settled over six weeks
after the plaster was removed to a dull ache which is much
the same
as she is experiencing now”.
[80]
The
appreciation of the pain may have been affected by the psychological
stress she was under and should be covered in the psychologists

report as well
FUTURE IMPAIRMENT
[81]
The
fracture seems to have affected only the tibia and fibula without
extension to the joins. The bone has now united completely
and the
knee and hip are normal with no evidence of arthritis. The
examination of the ankle showed only slight restriction of

dorsiflexion which may give slight impairment for sprinting, going up
and down stairs, but this is probably due to scarring within
the
muscles and not direct damage to the ankle itself. It is unlikely
tat she will develop therefore arthritis in the ankle or
foot.”
[82]
In
addition:
82.1
The Industrial psychologist,
Sonia
Hill,
reported that
“the impact of the
orthopaedic injury on her future earning potential requires comment
from an Occupational Therapist”.
82.2
The Occupational Therapist, Jane Bainbridge, noted as regards the
orthopaedic injuries, that
“Thandeka
presents as a girl of medium stature. Mobility for walking was
normal. She did not limp. She was able to assume all
postures on
and off the floor. Balance on either leg was adequate and
demonstrated no left-sided weakness. Joint range and muscle
strength
in either leg was adequate. Her left leg did not demonstrate any
marked residual abnormality.”
[83]
I
have had regard to the following cases as far as the orthopaedic
quantum is concerned as referred to by Defendant’s Counsel.
Gqangeni v Ciskie Motor Vehicle Accident’s Fund
1991(4) C & B E5-1(Ck)
Chikanda v Mukumba 1988 C & H (4) E4-1 (Z)
Fielies v Road Accident Fund 1999 C & B (5)
E4-1 (AFC)
Rossenbrock v British Insurance 1965 (1) C & B
668 (N)
Charlie v President Insurance Company Limited 1993
(4) C & B E5-4(E)
Duduma v Road Accident Fund 1999 (4) C & B
E4-5 (Bisho)
Yende v General Accident Verseekeringsmaatskappy
SK BPK 1994 (4) C & B E5-21 (T)
[84]
I
was referred to the following cases by Plaintiff’s Counsel:
Khomo v S A Mutual Fire and General Insurance 1971 2
C & B 171 D and CLD
Coetzer v AA Onderlinge Assuransie
1981 3 C & B 370 A
Jones v Santam 1964 1 C & B 626 C
Lawson v General Accident Insurance 1990 4 C & B
J 2-1 (C)
Clinton-Parker and Dawkins v Administrator, Transvaal
1996 2 SA 37
(T)
Bester v Commercial Union Versekeringsmaatskappy
1973
1 SA 769
A
[85]
I
have taken cognisance of the awards made in the above cases. I am
also mindful of the rapid deterioration in the value of the
rand. It
is so that the Plaintiff was severely traumatised by the disclosure
that her cousin with whom she had been walking on
the day of the
collision had died, which resulted in nightmares and flashbacks, and
which she still suffers to date.
[86]
Taken
together with the injury to her leg which caused her discomfort, pain
and suffering and hospitalisation for a period of seven
weeks after
the accident, resulting in her having to repeat grade 1, my view is
that an amount of R130 000.00 for general damages
is an equitable
award.
[87]
It
is so, that the medical evidence clearly demonstrates that the
Plaintiff is incapable of managing her own affairs and that the

appointment of a curator bonis is desirable.
I accordingly grant judgment in
favour of the Plaintiff as
follows:
(a)
General
Damages in the sum of R130 000.00. (One Hundred and Thirty Thousand
Rand)
(b) Costs including the qualifying costs of experts,
Schlebusch, Jelbert, Hill and Bainbridge.
(c) In respect of Future Medical
Expenses, limited to the orthopaedic injuries, the Defendant is
directed to furnish the Plaintiff
with undertakings to compensate all
third parties in respect of Plaintiff’s costs after the costs had
been incurred and on proof
thereof, and to pay the amount payable by
it in respect of the said losses.
(d) Costs of the curator to be appointed for the
Plaintiff.
_______________________________
K PILLAY J
Counsel
for Plaintiff : Advocate I STRETCH
Instructed by :
GRAHAM WRIGHT INC
c/o CAJEE SETSUBI CHETTY INC
195
Boshoff Street
PIETERMARITZBURG
Counsel
for Defendants : Advocate B PITMAN
Instructed by
ASKEW
GRINDLAY & PARTNERS INS
c/o
MESSENGER KING
Shop
21, DCC Campus Building
21
Timber Street
PIETERMARITZBURG