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[2019] ZASCA 103
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Road Accident Fund v S M (1270/2018) [2019] ZASCA 103 (22 August 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-Reportable
Case no: 1270/2018
In
the matter between:
ROAD
ACCIDENT
FUND APPELLANT
and
S
M RESPONDENT
Neutral
citation:
Road Accident Fund v S M
(1270/2018)
[2019] ZASCA 103
(22 August
2019)
Coram:
Leach, Wallis, Mathopo and Molemela JJA
and Weiner AJA
Heard:
24 May 2019
Delivered:
22 August 2019
Summary:
Delict – damages – whether the
respondent sustained a mild or moderate traumatic brain injury –
expert evidence
– approach to their evidence restated –
expert opinions must be based upon facts that have been
established by way of admissible evidence.
ORDER
On
appeal from
:
Eastern
Cape Division of the High Court, Mthatha (Nhlangulela ADJP sitting as
court of first instance):
1. The appeal succeeds
with costs, including the costs consequent upon the employment of two
counsel.
2. The order of the court
a quo is substituted with the following:
‘
(a)
The plaintiff’s claim for loss of income is dismissed with
costs, including the costs of the hearing from 21 October 2015
to 18
July 2016.
(b) The defendant shall
furnish the plaintiff with an undertaking in terms of
s 17(4)
of the
Road Accident Fund Act 56 of 1996
, for the costs of the future
accommodation of the plaintiff in a hospital or nursing home for the
treatment or the rendering of
a service or the supplying of goods to
him after each of such costs have been incurred and on proof of
payment thereof.’
JUDGMENT
Weiner
AJA (Leach, Wallis, Mathopo, Molemela JJA concurring)
Introduction
[1]
This
case demonstrates the perils parties face when they rely exclusively
on the opinions of experts without laying any factual
basis for such
opinions. In a trial action
‘
It
is fundamental that the opinion of an expert must be based on facts
that are established by the evidence and the court assesses
the
opinions of experts on the basis of “whether and to what extent
their opinions advanced are founded on logical reasoning”.
It
is for the court and not the witness to determine whether the
judicial standard of proof has been met.’
[1]
[2]
Adapting
the approach taken by this court in
MV
Pasquale
:
‘
[T]he
court must first consider whether the underlying facts relied on by
the witness have been established on a pri333ma facie
basis. If not
then the expert's opinion is worthless because it is purely
hypothetical, based on facts that cannot be demonstrated
even on
a prima facie basis. It can be disregarded. If the relevant
facts are established on a prima facie basis then the
court must
consider whether the expert's view is one that can reasonably be held
on the basis of those facts. In other words, it
examines the
reasoning of the expert and determines whether it is logical in the
light of those facts and any others that are undisputed
or cannot be
disputed. If it concludes that the opinion is one that can reasonably
be held on the basis of the facts and the chain
of reasoning of the
expert the threshold will be satisfied.’
[2]
[3]
In
PriceWaterhouse
Coopers Inc v National Potato Cooperative Limited
[3]
the court said:
‘
The
basic principle is that, while a party may in general call its
witnesses in any order it likes, it is the usual practice for
expert
witnesses to be called after witnesses of fact, where they are to be
called upon to express opinions on the facts dealt
with
by
such witnesses
.’
[4]
Similarly, Wessels JA, in dealing with the nature of an expert’s
opinion, in
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH
[5]
said
‘
.
. . an expert's opinion represents his reasoned conclusion based
on certain facts or data, which are either common cause,
or
established by his own evidence or that of some other competent
witness. Except possibly where it is not controverted, an expert's
bald statement of his opinion is not of any real assistance. Proper
evaluation of the opinion can only be undertaken if the process
of
reasoning which led to the conclusion, including the premises from
which the reasoning proceeds, are disclosed by the expert’.
[4]
An opinion
of an expert must therefore be based on facts which have been proven
before the court. An opinion based on facts not
in evidence has no
value for the court.
[6]
A court
has to ascertain whether the opinions expressed by the experts are
based upon facts proved to it by way of admissible evidence.
It is
with this principle in mind that the facts of the matter, as well as
an analysis of the experts’ evidence, must be
considered.
A
ppealability
and Condonation
[5]
On the day
preceding the hearing of this appeal, the respondent raised the point
that the order was not appealable, because the
quantum of damages had
not yet been determined by agreement or by the court. Therefore it
was submitted that the order was not
final. The order granted by the
court a quo fits the test set out in
Zweni
v Minister of Law and Order
[7]
that
a judgment or order is a decision which ‘has three attributes:
first, the decision must be final in effect and not susceptible
to
alteration by the court that made it; second, it must be definitive
of the rights of the parties; and, third, it must have the
effect of
disposing of at least a substantial portion of the relief claimed in
the main proceedings’.
[8]
The
order was a declaration of rights determining the RAF’s
liability. All that remained was the assessment of the quantum
of
damages. As such, it is clear that the judgment and order were
appealable.
[9]
[6]
The appellant also sought
condonation for the late filing of the record and for the filing of a
supplementary affidavit. The appellant
tendered the costs of such
applications. The granting of condonation is dependent, inter alia,
upon the merits of the appeal. The
appellant has tendered an
explanation as to the difficulties in obtaining the record and has
shown good cause for the condonation
to be granted. Condonation is
therefore granted.
Background
[7]
The respondent, S M (Mr M) was 12 years old when he was a passenger
in a motor vehicle collision on 10 July 2006. The claim
against the
appellant (the RAF) was originally instituted by his mother, P M (Ms
M) in 2009. M attained majority in 2012, and was
substituted as
plaintiff. When summons was issued, it was alleged that, as a
consequence of the collision M suffered ‘a ragged
laceration on
the lateral aspects of the left eye; small cuts on the left parietal
area of the head; tender medial to the lat,
border left scapula; and
a Splenic laceration’( the injuries).
[8]
In the
original particulars of claim, it was alleged that as a result of the
injuries sustained, he experienced shock, pain, discomfort
and
suffering, and underwent a splenectomy. R6 million was claimed as
damages. Initially, the claim was based only upon the injuries
referred to in the particulars of claim. An amendment was later
introduced in terms of which Mr M based his claim for general damages
on three medical legal reports, being that of Dr Repko, a
neurosurgeon (now deceased), Dr Hardy, a neuropsychologist, and Ms
Gowa,
an occupational therapist. Dr Repko in his report
[10]
stated that the only complaint which M reported was abdominal pain. A
full neurological examination found no abnormalities. Dr
Repko
diagnosed the head injury as a concussion, with no neurological signs
and said that Mr M expressed no complaints relating
to a head injury.
Dr Hardy’s report related to the sequelae of a mild to moderate
brain injury, which she opined resulted
in neurocognitive deficits.
However, this was obviously dependant on Dr Repko finding that such
injury had occurred, which he did
not. These reports formed the basis
of Mr M’s amended claim.
[9]
There is no
indication as to when the particulars of claim were amended to
include the reports referred to. It appears that the
complaints and
deficits complained of were not present at the time Dr Repko assessed
M in March 2013. Such complaints were, however,
identified by Dr
Hardy, only a few months later, in June 2013. This date seems to
correlate with when M’s university results
declined. His case
at the hearing was conducted solely on the basis that he had suffered
a mild to moderate traumatic brain injury
(TBI),
[11]
which manifested in deficits many years after the collision and which
appeared to still be present at the time of the trial in
2016, some
ten years later.
[12]
Notwithstanding
the absence of any clinical evidence in regard to the nature and
extent of Mr M’s injury, the case was conducted
on the basis
that the essence of the dispute was whether he had suffered a mild or
a moderate TBI.
[13]
[10]
In terms of
the Road Accident Fund (Transitional Provisions) Act
[14]
(the Transitional Provisions Act), the right of a third party to
claim compensation for non-pecuniary loss is limited to R25 000,
unless the third party submits a serious injury assessment report as
contemplated in regulation 3 of the Road Accident Fund Regulations
2008, indicating a serious injury. In terms of s 17(1) of the Road
Accident Fund Act
[15]
(the
Act), the RAF’s obligation to compensate M for non-pecuniary
loss is limited to compensation for a serious injury as
contemplated
in s 17(1)A. Ms M submitted a serious injury assessment report to the
RAF on behalf of her son. The RAF rejected the
serious injury
assessment report, on the ground that the injuries were incorrectly
assessed as serious. It ruled that he did not
qualify for
compensation, even on the narrative test.
[11]
The RAF accepted that it was liable to compensate
Mr M for any damages he had suffered arising out of the motor
accident and tendered
a certificate in respect of his future medical
expenses
In terms of rule 33(4), an application was made for
separation of the issues relating to quantum. The court made an order
by consent
that:
‘
1 The RAF was
liable to pay to M all such damages as may be proved at the trial on
quantum, or as may be agreed.
2 The issues relating to
quantum of (a) loss of income and past and future medical expenses
and (b) general damages, was (sic) separated.
The matter would
proceed only on the issues of loss of income and past and future
medical expenses.’
[12]
Neither Mr M nor his mother gave evidence. The case was based
purely upon the expert reports and the medical and hospital records,
which served before the court, none of which were proven or agreed
to. The court a quo found that Mr M had suffered a more severe
TBI,
which had resulted in the deficits complained of and ordered that the
RAF pay damages to Mr M, which would be calculated and
agreed by the
parties’ actuaries, based upon the court’s directions.
The appeal to this Court is with the leave of
the court a quo.
Common cause facts
[13]
Mr M was 12 years and 6 months old when he was involved in the
collision. He was a student doing Grade 7. After the accident,
he was
transported to Umtata General Hospital, where he was admitted and
treated, until discharged on 21 July 2006.
[14]
Mr M’s school and university results were as follows:
(a) In 2005, in Grade 6
he obtained a 68% average. Comments on his reports indicated that he
had the potential to do better and
excel. His mathematics mark was
85,2%, a fact which assumed great significance in the evidence of the
experts.
(b) In 2007
[16]
,
in Grade 8, after eleven months of hospitalisation and other medical
treatments, he passed with a 58,4% aggregate. He did very
well in
Mathematics and Accounting and was awarded half-colours for
Mathematics.
(c) His performance
improved when he had more choice over his learning areas. In Grade 9
in 2008, he averaged 60%, with his best
marks being Mathematics and
Technology.
(d) In 2009 he passed
Grade 10 with a 69% aggregate, scoring 84% for Mathematics. He was
once again awarded half-colours for Mathematics.
(e) In 2010, in Grade 11,
he scored a 72% average. He obtained 88% for Mathematics and 89% for
Accounting. He was awarded certificates
for effort in four or more
subjects in terms 2 and 3.
(f) In 2011, in Grade 12,
his June results displayed further improvements in Mathematics and
Accounting, and he was again awarded
certificates in terms 2 and 3
for effort. He passed matric with a 78% aggregate. He obtained 5
distinctions in Mathematics, Life
Sciences, Physical Science,
Accounting and Life Orientation. He also wrote an additional subject:
Mathematics: probability data
handling, for which he achieved 80%.
(g) In 2012 he enrolled
at the University of Pretoria to study for a BSc degree in Actuarial
and Financial Mathematics. His cumulative
average for the first year
was 57,07%. He obtained two distinctions for Academic Literacy. He
passed 14 out of 16 modules.
(h) In 2013 he continued
to second year and passed his two remaining first-year subjects, but
failed all his second-year subjects
but one. His cumulative average
was 52,73%.
(i) In 2014 he passed
only three second-year subjects with a cumulative average of 44,8%.
(j) In 2015, he undertook
a combination of second and third-year subjects, achieving a
cumulative average of 44,18%.
[15]
Although there was no agreement as to the accuracy of the hospital
records, there was no real dispute, after the evidence of
the
neurosurgeons was heard, that on admission, Mr M was fully conscious
and orientated with a Glasgow Coma Score (GCS) of 15/15.
His pupils
were normal and reactive. His blood pressure and pulse were in the
normal range and stable.
[16]
The issue thus boils down to whether Mr M suffered a mild and
uncomplicated brain injury, as submitted by the RAF; or whether it
was a mild to moderate brain injury which resulted in neurocognitive,
intellectual, physical and emotional deficits, as Mr M contends.
The
underlying premise was that based upon his mark in mathematics in
2005, in Grade 6, prior to the collision, he was capable of
qualifying as an actuary. His case was that his academic difficulties
which he experienced when he was studying actuarial science
had to be
ascribed to a more serious injury leaving him with various deficits
that would prevent him from achieving this goal.
His claim for loss
of earnings was based upon this premise.
[17]
Although the neuropsychologist, Dr Hardy testified before Dr
Wilkinson, the neurosurgeon, both her and Dr Loebenstein, her
counterpart, deferred to the neurosurgeons’ opinions. Dr
Wilkinson testified for Mr M, and he, conceded that it appeared
that
Mr M had been fully conscious, orientated and responsive on
admission. Although, no evidence was led by any of the medical
staff
at the hospital, it appeared from the hospital records that later in
the day, Mr M’s GCS had apparently dropped to
11/15, his blood
pressure had dropped, his haemoglobin had been below normal, he had
been very pale and cold, and had scanty urinary
output. The RAF did
not concede that the records in this regard were accurate. Dr
Wilkinson, however, said that this showed that
Mr M fell behind with
IV fluid therapy and he was in hypovolemic shock due to his spleen
injury. This, Dr Wilkinson, stated, was
when a secondary (anoxic)
brain injury, adding to the injury on impact, might have occurred.
This could change the injury from
mild to moderate or severe. He
found a facial palsy and conduction deafness in Mr M’s left ear
which could also indicate
some injury to neurological tissues.
[18]
He referred
to this condition as a ‘silent epidemic brain injury’.
Even after a mild brain injury the patient and doctors
and families
do not recognise the secondary effects. He referred to an article
called ‘Mild TBI: Silent Epidemic in our Practices
[17]
:
‘Survivors of mild TBI are addressed for a range of
psychosocial and psychiatric issues that arise from the neurological
and the social elements of trauma. Research indicates that mental
health issues often arise following a mild TBI with symptoms
of
clinical depression in 15 to 50% of survivors.’
[18]
[19]
Although not proved by any admissible evidence, or admitted by the
RAF, Dr Wilkinson recorded that Mr M complained of frequent
headaches
and poor concentration. He slept a lot during the day, which Dr
Wilkinson referred to as daytime somnolence which he
frequently saw
as a result of brain injuries. Mr M also reported decreased endurance
mentally and physically. Dr Wilkinson was
of the opinion that a
moderate brain injury would lead to the psychological problems that
had been set out in the reports and evidence
of Dr Hardy and Ms Van
Vuuren. If these deficits were manifesting now, they were due to what
had been a moderate, and not a mild,
brain injury. It was Dr
Wilkinson’s view that low self-esteem, depression, anxiety and
other psychological effects would
hamper functioning and Mr M would
not reach his potential as he would be functioning at a lower level.
Dr Wilkinson attributed
Mr M’s academic decline at university
solely to a moderate brain injury.
[20]
It was difficult to ascertain from Dr Wilkinson’s evidence
whether his conclusion was that the injury must have been
moderate
because the alleged problems had manifested so many years later, or
because they were still present so many years later.
If the former,
Dr Wilkinson did not explain how these deficits lay dormant for so
many years. If the latter, he did not explain
how Mr M scholastic
results improved up until 2012.
[22]
Dr Kieck testified for the RAF. He discounted both conclusions of Dr
Wilkinson. He did not detect, nor was he pointed to any
palsy or
conduction deafness experienced by Mr M. Having regard to the school
and university results which Mr M had achieved, he
was of the view
that there were no neurocognitive deficits. The loss of consciousness
(LOC) appeared to be of very short duration
and the post traumatic
amnesia (PTA) was at most two hours. Had these two elements been of a
longer duration, those deficits would
have manifested themselves
within a few weeks or months, and not so many years after the injury.
He based his findings on the medical
records, and also referred to
the American Medical Association Guides on Impairment (AMAG) 6
th
ed,
[19]
in dealing with the
effects of a mild brain injury. Mr M’s difficulties with his
studies could not be attributable to the
head injury he suffered in
2006.
Any
such injury would have manifested itself in symptoms that were
perceived much earlier, not so many years after the injury was
suffered.
He concluded that there were many other explanations for the academic
problems which appeared to now have manifested, but that
the
literature and his experience show that these symptoms would not
manifest so many years after an injury and could not be attributed
to
such injury.
[23]
Based on the hospital records on admission, no neurocognitive
deficits were found post-accident. Dr Kieck’s neurological
examination of Mr M revealed no deficits. He referred to the report
of Dr Repko, who similarly found no neurocognitive deficits
on his
examination. Dr Kieck recorded that Mr M informed him that he was
struggling emotionally and had memory and concentration
problems.
However, Dr Kieck could not attribute these to the injury sustained
nearly 10 years before, more particularly having
regard to his
academic history post the accident. He noted that Dr Wilkinson had
glossed over Mr M’s academic results in
2008 to 2012 and only
commented on the decline in 2013/2014. He could not accept that the
neurocognitive abnormalities found by
Dr Hardy were the result of a
mild TBI. He described the condition of post-concussion syndrome,
which included headaches, poor
concentration, initial lack of memory,
insomnia, and dizziness. These, he stated, would start immediately
after the injury, but
by the end of the first week they would
normally resolve. By the end of three months, the symptoms would
disappear completely.
If symptoms remained, it was usually associated
with other causes, such as previous depression, anxiety or ADHD.
[24]
Dr
Kieck referred to the Diagnostic and Statistical Manual of Mental
Disorders (DSM 5),
[20]
which
he stated is accepted universally. It described both qualitatively
and quantitively the characteristics of the different
traumatic brain
injuries. The first determinant was loss of consciousness which
should be less than 30 minutes. That would satisfy
the first
criteria. The second criteria is the PTA, which in Mr M’s
case probably not exceed one or two hours. This
is confirmed by the
fact that he had a GCS of 15/15 and was fully orientated and able to
lay down memory on admission. According
to DSM 5
[21]
:
‘
8
Overall the natural history of MTBI in children and adults is
characterised by a gradual full recovery and symptoms, cognition
and
general functioning within several days to weeks of injury and the
true incidence of persistent symptoms or impairments that
negatively
affect the patient’s general functioning, is very low.
9 In uncomplicated MTBI
persistent symptoms and poor functional outcome are often associated
with non-injury-related variables including
demographic,
psychosocial, medical, motivational and other situation or factors’.
[25]
Dr Kieck stated that the AMAG is regarded
as the ‘Bible’ in relation to the assessment of
impairment and disabilities
in patients. These guidelines are
developed as a consensus by many highly regarded institutions
involved in this field. The committees
of the American Academy of
Neurology and the American Association of Neurological Surgeons, two
pre-eminent organisations in their
fields, evaluate all the
literature and then come to a consensual decision before they put out
a guide. The AMAG says the
following in relation to mild TBI:
‘
Special
mention should be made of mild TBI which has been the subject of
extensive research in the last ten to twenty years. In
contrast to
the previous belief the symptoms of mild traumatic injury generally
resolve in days to weeks and leave the patient
with no impairment.
Patients with persistent post-concussion symptoms generally have
non-injury-related factors which complicates
the clinical course.
Post-concussion syndrome is rare and may be seen in 1 to 5% of all
patients of mild TBI.’
[22]
[26]
The three main parameters that are used in determining the
seriousness of a TBI are: was there a loss of consciousness, how
long
did the post-traumatic amnesia last and what was the GCS at the end
of the period of unconsciousness. He distinguished between
unconsciousness and PTA. One could have a blow to the head, be dazed
and not remember for twenty minutes or so, but still be conscious.
If
the TBI was moderate, the symptoms and the signs would have been
present as soon as the patient was functioning and back in
society.
This would happen within a week and Mr M was assessed approximately
six weeks later. No deficits were detected. Dr Kieck
could not
reconcile the deficits referred to by Mr M with his scholastic and
first year university results and the long period
of delay before the
deficits apparently manifested.
[27]
Dr Kieck commented on Dr Hardy’s evidence that the reason for
the alleged deficits manifesting so much later was that
prior to this
he was in a protective school and family environment, where he had
all the support systems around him. Dr Kieck stated
that such
deficits do not lie dormant for ten years and suddenly appear. He
commented that it was common knowledge that actuarial
science is a
very difficult course and only the very brightest complete it. He
referred to statistics provided by the University
of Cape Town (and
not disputed) that 45,8% of the initial intake graduated after three
years, 33,66% of the initial intake were
currently registered for a
fourth academic year, 22,5% of the initial intake have not graduated
and are no longer in the system
and only 33,8% of the initial intake
proceeded to an honours degree.
[28]
Dr
Kieck also referred to the article ‘Mild Traumatic Brain Injury
and Post-Concussion Syndrome: The New Evidence-Base for
Diagnosis and
Treatment’
[23]
as well
as the ‘Summary of the WHO Collaborating Centre For Neurotrauma
Task Force on Mild Traumatic Brain Injury
[24]
which listed the same criteria referred to by the AMAG and in
DSM 5.
[29]
Dr Kieck commented on the impairment listed on the RAF 4 form, which
was categorised as Class 2, which is a 20 percent impairment.
Referring to AMAG, Dr Kieck stated that such impairment involved an
alteration in his high mental cognition which would interfere
with
his ability to perform his activities of daily living. Dr Kieck
stated that this relates to someone who is obviously mentally
impaired. However, he found Mr M to be exceptionally bright,
forthcoming, and normal. He described the difference between a mild
traumatic BI, which is a neurometabolic condition of dysfunctional
neurons, and a more severe injury which involves neuron disruption.
[30]
In commenting on Dr Wilkinson’s ‘silent epidemic’,
he testified that with a TBI a certain cascade of events
can occur
that change the condition to something more serious. Low haemoglobin
could mean internal bleeding. Although pale and
cold, with low urine
output and a relatively lowish BP, this would not result in a patient
going into hypovolemic shock. With a
secondary event, such as an
anoxic brain injury, there would be a cerebral perfusion. The blood
pressure would be very low, the
patient would become unconscious and
there would be a noticeable deterioration in neurological status. The
patient would be neurologically
depressed, confused for many days,
and on recovery there would be many neurocognitive deficits.
Throughout his stay in the hospital,
despite this episode, Mr M’s
neurological condition remained stable.
He
commented “there is no way” he could have achieved those
results if he had suffered an anoxic brain injury.
[31]
In reference to the many alleged deficits which Dr Hardy identified
as affecting Mr M, Dr Kieck opined that a
TBI is
not the only cause of major neurocognitive or mental and behavioural
disorders. There are multiple factors and in adolescence
and young
adults there are many other causes. A mild TBI is not the cause of
major neurocognitive dysfunction. Whilst he could
not dispute Dr
Hardy’s test results (although they were contradicted by Dr
Loebenstein), as a neurosurgeon he looked at what
he was presented
with. In drawing from the literature, a mild TBI is distinct from a
moderate and severe one where there would
be significant
neurocognitive
sequelae
.
Thus if Mr M exhibited symptoms of depression, anxiety and lack
of concentration it was more probably as a result of him
undertaking
a very difficult university course. What he may be experiencing now
was most probably due to the difficulties he was
having with his
course, as well as being away from his protective environment.
[32]
Dr Hardy and Dr Loebenstein gave evidence of the psychological
and neurological deficits which can occur with a TBI. Dr Hardy was
of
the opinion that the injury was a mild to moderate brain injury
because of a long period of LOC and resultant PTA. Neither of
these
factors appear from the hospital records. Dr Hardy suggested that the
hospital records were inaccurate. She rather relied
upon what Mr M’s
mother told her about his condition. However, this hearsay evidence
was not confirmed by Mr M or his mother,
or by any member of the
nursing staff and it is flatly contradicted by the available hospital
records. It was accepted that Mr
M was conscious when he reached the
hospital, which was approximately 30 minutes after the collision
occurred. Dr Hardy referred
to the GSC later dropping to 11/15, which
to her indicated that the brain injury was more serious than a mild
post-concussion syndrome.
The neuropsychological test findings,
according to her, demonstrate variable intellectual and executive
functioning and a suboptimal
ability to concentrate for a sustained
period. This psychological fallout was consistent with his
mother’s reported
complaints of his being more sensitive,
anxious, stressed and withdrawn since the accident. These facts were
not confirmed by evidence.
She found inter test scatter, which was of
concern and these difficulties would diminish his educational and
vocational potential.
Although Mr M had an average and, at times, an
above-average set of skills, he lacked the level of excellence
required to be successful
as an actuary. All of these she attributed
to the head injury sustained in the collision.
She
relied extensively on his grade 5 mathematics mark in stating that
prior to the accident, he had the ability to become an actuary.
She
was unwilling to accept that this superficial judgment was incorrect
and that, like many others embarking upon a difficult
course at
university, he found himself out of his depth.
[33]
Dr Loebenstein was of the view that Mr M sustained an uncomplicated
mild TBI (concussion). This was confirmed by the hospital
records. Dr
Loebenstein tested Mr M’s short-term memory functioning which
revealed no deficits. He referred to the opinion
of Ms Van Vuuren,
the educational psychologist who found exceptional intellectual
abilities in the areas of reasoning and integrating
concepts which
were at variance with the findings of Dr Hardy. Dr Loebenstein’s
own assessment revealed competent functioning
in areas considered to
be most vulnerable to the effects of brain injury. The tests and
assessments showed that Mr M had undergone
a complete recovery from a
mild brain injury. His progress at school was indicative of his
pre-accident potential and not influenced
by any neuropsychological
behavioural
sequelae
that could be attributed to the accident.
Mr M’s need to repeat certain subjects at university in one of
the most demanding
degree programmes offered by tertiary institutions
could not possibly be attributed to a mild concussion sustained
nearly a decade
before. This all pointed to a mild TBI. In his view,
Dr Hardy did not give due weight to the complexities involved in
studying
Actuarial Science and the high drop-out rate.
[34]
Ms Van Vuuren, the educational psychologist, based her opinions upon
the tests carried out by Dr Hardy. She did not deal in
her report
with the cause of the brain injury but only with what she considered
to be the
sequelae
thereof. Thus her evidence does not assist
the court.
[35]
As is apparent from what is stated above, the reports given by Mr M
and his mother to Dr Wilkinson and Dr Hardy, of his present
difficulties, are hearsay and no reliance can be placed on them. In
the absence of Mr M giving evidence as to the nature of his
problems,
which evidence could have been tested against other possible reasons
for his academic difficulties, such as the difficulty
of the course;
the transition to university life; the difficulties of living in an
unfamiliar environment away from familial support
structures and the
like, no conclusion could properly be drawn by the medical witnesses
that such problems were attributable to
a moderate TBI.
[36]
The court a quo accepted the evidence of Mr M’s witnesses and
rejected that of the RAF and its witnesses. The judge stated
simply
that ‘[T]he best approach would be to assess the logical
reasoning of the plaintiff’s expert evidence against
the
probabilities emerging from the entire evidence that was adduced. I
do not intend to recount the evidence adduced as that exercise
has
been conducted already. Suffice it to say that the evidence of Dr
Wilkinson is acceptable as compared to that of Dr Kieck’.
[37]
The judge
based this conclusion upon Mr M’s witnesses giving ‘supportive
facts’ that Mr M sustained a mild to
moderate head injury. He
rejected the argument of the RAF that Dr Wilkinson’s opinions
are not supported by medical literature,
on the basis that Dr
Wilkinson’s qualifications and experience were undisputed. He
described Dr Kieck’s examination
of Mr M as ‘superficial,
shallow and unhelpful.’ He rejected the evidence of Dr
Loebenstein because he would not accept
the results of the myriad of
tests conducted by Dr Hardy. That appears to be the only basis upon
which he preferred the evidence
of Mr M’s witnesses, to those
of the RAF. This approach flies in the face of the requisites laid
down in
Louwrens
v Oldwage
[25]
in relation to the approach to be adopted when there is competing
evidence. The court in
Louwrens
,
referring to
Michael
v Linksfield Park Clinic
,
[26]
said the following:
‘
What was required
of the trial Judge was to determine to what extent the opinions
advanced by the experts were founded on logical
reasoning and how the
competing sets of evidence stood in relation to one another, viewed
in the light of the probabilities.’
[27]
[38]
Despite
referring to the required approach as laid down in these two cases,
the judge a quo did not follow this approach. His uncritical
acceptance of the evidence of Dr Wilkinson and Mr M’s other
experts, and the rejection of Dr Kieck and Dr Loebenstein’s
evidence, thus fell short of the requisite standard. The judge a quo
failed to give any logical reason for arriving at such a conclusion,
as is evident from the portion of the judgment referred to above. As
stated in
Michael
v Linksfield Park Clinic
,
'(I)t would be wrong to decide a case by simple preference where
there are conflicting views on either side, both capable of logical
support. Only where expert opinion cannot be logically supported at
all will it fail to provide ''the benchmark by reference to
which the
defendant's conduct falls to be assessed” ’.
[28]
[39]
The hospital records show that on admission, Mr M did not display any
evidence of having suffered anything more than a mild
concussion. The
periods of LOC and PTA were of short duration and thus fitted the
criteria relating to a mild brain injury, from
which full recovery
could be expected within three months. None of the complaints now
referred to seemed to bother Mr M post-accident,
until his academic
results declined in 2013. His exemplary school record showed
improvement, rather than decline, with him achieving
five
distinctions in matric and two distinctions in his first year of
Actuarial Science.
[40]
The evidence tendered by the RAF more than
adequately rebutted the suggestion that such an injury could have
been sustained in 2006,
not been diagnosed, and then manifested
itself in 2013. The considerable improvement in Mr M’s academic
performance in the
years following the accident was an insuperable
stumbling block to the conclusions drawn by Drs Hardy and Wilkinson.
There was
no basis for the judge’s rejection of the evidence of
Drs Kieck and Loebenstein.
[41]
The probabilities weigh heavily in favour of the evidence presented
by the RAF’s witnesses that this was a mild brain
injury from
which he has recovered. There is no basis to find that the symptoms
suddenly appeared some seven to ten years later.
If the brain injury
was more significant, the probability is that any such deficits would
have manifested immediately or within
days or weeks of the injury.
The failure of Mr M or his mother to give evidence in relation to his
present condition leaves a deficit
in Mr M’s case, which cannot
be cured by the opinions of the psychologists.
[42]
Mr M has
failed to prove the causal link between the brain injury sustained in
2006 and the problems that he presently experiences.
[29]
In
the circumstances, the appeal must succeed because there was no
admissible factual evidence to support the conclusions that Mr
M’s
medical witnesses drew. Their opinions lacked the requisite factual
foundation that our courts have consistently demanded
should be the
basis for the expression of opinions by an expert.
Costs
[43]
The
RAF had tendered a certificate in terms of Section 17(4) of the Act
and that order will stand. Mr M’s counsel submitted
that as the
certificate still stands, the RAF should be liable for a portion of
the costs. This cannot be acceded to. The certificate
was tendered on
the first day of the trial. The claim for general damages is standing
over and the trial therefore proceeded only
in respect of the claim
for loss of income. In these circumstances only the costs in respect
of the latter claim need to be considered
at this stage. The normal
rule that costs follow the result must apply. Mr M must
therefore pay the costs associated with
his claim for loss of income
which will include the costs of the hearing in the court a quo from
21 October 2015 to 18 July 2016.
[44]
The
following order is made:
1. The appeal succeeds
with costs, including the costs consequent upon the employment of two
counsel.
2. The order of the court
a quo is substituted with the following:
‘
(a)
The plaintiff’s claim for loss of income is dismissed with
costs, including the costs of the hearing from 21 October 2015
to 18
July 2016.
(b) The defendant shall
furnish the plaintiff with an undertaking in terms of
s 17(4)
of the
Road Accident Fund Act 56
of 1996, for the costs of the future
accommodation of the plaintiff in a hospital or nursing home for the
treatment or the rendering
of a service or the supplying of goods to
him after each of such costs have been incurred and on proof of
payment thereof.’
________________________
S WEINER
Acting Judge of Appeal
APPEARANCES:
For
Appellant: H J Van der Linde SC (with him P T Marais)
Instructed
by:
Mnqandi
Inc, Mthatha
c/o
Maduba Attorneys, Bloemfontein
For
Respondent: A G Jeffrey SC (With him N P Mngandi)
Instructed
by:
SZ
JOJO Incorporated, Mthatha
c/o
Matsepe Attorneys, Bloemfontein
[1]
MV
Pasquale della Gatta; MV Filippo Lembo; Imperial Marine Co v
Deiulemar Compagnia di Navigazione Spa ZASCA
2012
(1) SA 58
(SCA) paras 25-27. See also
Michael
& another v Linksfield Park Clinic (Pty) Ltd & another
2001 (3) SA 1188
(SCA) paras 34-40.
[2]
MV
Pasquale
fn
1 above para 26.
[3]
PriceWaterhouse
Coopers Inc & others v National Potato Cooperative Ltd &
another
[2015]
ZASCA 2
;
[2015] 2 All SA 403
(SCA) para 80.
[4]
PriceWaterhouse
fn
3 para 80.
[5]
Coopers
(South Africa) (Pty) Ltd v Deutsche Gesellschaft für
Schädlingsbekämpfung MBH
1976
(3) SA 352
(A)
at 371F-H.
[6]
PriceWaterhouse
fn 3 above para 99.
[7]
Zweni
v Minister of Law and Order
1993
(1) SA 523
(A) at 532I-533A.
[8]
HMI
Healthcare Corporation (Pty) Limited v Medshield Medical Scheme &
others
[2017]
ZASCA160;
Pitelli
v Everton Gardens Projects
[2010]
ZASCA 35
;
2010
(5) SA 171
(SCA)
para
27.
[9]
SA
Eagle Versekeringsmaatskappy Bpk v Harford
[1992] ZASCA 42
;
1992 (2) SA 786
(A) at 792C-H.
[10]
There was some debate as to the admissibility of Dr Repko’s
report, as he was deceased and therefore could not testify.
However,
it was accepted that Dr Kieck could refer to it as it was one of the
reports, which he considered in compiling his report.
In any event,
the report of Dr Repko was incorporated into M’s particulars
of claim.
[11]
The
description of the injury as ‘traumatic’ indicates only
that it was occasioned by trauma. It says nothing about
the severity
of the injury, the matter that lay at the core of the dispute
between the parties.
[12]
Although some of the experts testified that these deficits only
manifested a decade later, if regard is had to the timing of
Dr
Hardy’s report, it appears therefrom that the deficits
manifested in 2013, some seven years later.
[13]
It appears that although no amendment was made to M’s
pleadings, the reliance on the reports, which were incorporated for
the claim of general damages, extended to his claim for loss of
future earning capacity.
[14]
Road Accident Fund (Transitional Provisions) Act 15 of 2012
.
[15]
Road Accident Fund Act 56 of 1996
as amended by Act 19 of 2005.
[16]
There are no records for 2006, as M was receiving treatment for the
injuries sustained in the collision.
[17]
P
W Buck ‘
Mild
Traumatic Brain Injury: Silent Epidemic in our Practices’
(2011) 36
Health
& Social Work
299
at 299.
[18]
Ibid.
[19]
Robert
D & Rondineli MD
AMA
Guides on Impairment
6
th
ed Published by the American Medical Association (2007).
[20]
Diagnostic
and Statistical Manual of Mental Disorders 5th ed (2013) American
Psychiatric Publishing 2013.
[21]
Ibid.
[22]
Ibid
fn 19.
[23]
M
A McCrea ‘Mild Traumatic Brain Injury and Post-Concussion
Syndrome: The New Evidence Base for Diagnosis and Treatment’
(2011) 39(1)
The
Journal of the American Academy of Psychiatry and the Law
133-134.
[24]
L
Holm et al ‘Summary of the WHO Collaborating Centre For
Neurotrauma Task Force on Mild Traumatic Brain Injury’ (2005)
37
J
Rehabil Med
137
at 137-141.
[25]
Louwrens
v Oldwage
2006
(2) SA 161
SCA;
BEE
v Road Accident Fund
[2018] ZASCA 52
;
2018 (4) SA 366
SCA para 22 - 25.
[26]
Ibid.
[27]
Ibid
at 175H
.
[28]
Michael
v Linksfield Park Clinic
fn 1 above para 39.
[29]
Life
Healthcare Group (Pty) Ltd v Suliman
2019
(2) SA 185 (SCA) para 12.