Mohlaphuli NO obo Mohlaphuli v South African National Road Agency Ltd and Another (8394/08) [2012] ZAWCHC 181 (29 October 2012)

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[2012] ZAWCHC 181
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Mohlaphuli NO obo Mohlaphuli v South African National Road Agency Ltd and Another (8394/08) [2012] ZAWCHC 181 (29 October 2012)

Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO:8394/08
In
the matter between:
ERIC
SELLO MOHLAPHULI NO, obo
EVAN
MOHLAPHULI
........................................................................................
Plaintiff
and
THE
SOUTH AFRICAN NATIONAL ROAD AGENCY
LIMITED
....................................................................................................
FirstDefendant
RAINBOW
RAIL CLEANING SERVICES CC
...............................
Second Defendant
Coram
:
CLOETE, AJ
Heard
:
20,21,22,23,27,28,29,30 August and 13 September 2012.
Delivered
:
29 October 2012
___________________________________________________________________
JUDGMENT
___________________________________________________________________
CLOETE,
AJ
INTRODUCTION
In
this matter the Plaintiff, in his representative capacity on behalf
of his minor son, Evan Jonathan Mohlaphuli (“Evan”),

claims damages arising out of injuries sustained by Evan in a motor
vehicle accident that occurred on 6 August 2005 when
Evan was
10 years old. He was flung from the back of an Isuzu bakkie which
overturned after driving over an uncovered manhole
in the road near
Paarl, causing the driver of the vehicle to lose control. It is
common cause that Evan sustained severe cranio-facial
injuries, very
severe traumatic brain injuries and a fracture of the right radius.
He also lost the vision in his left eye.
The
Plaintiff initially claimed R264 989.17 in respect of past
hospital and medical expenses; R7 132 600.00 in
respect of
future medical and related expenses; R5 241 900.00 in
respect of future loss of earnings; R1 500 000.00
in
respect of general damages; and R1 040 587.00 in respect
of the costs of a
curatorbonis
to administer the capital
award.
The
merits were resolved in terms of a settlement agreement entered into
between the parties on 8 June 2011. The First Defendant
agreed to
pay to the Plaintiff 15% of the proven or agreed damages suffered by
the Plaintiff and Evan, up to a maximum amount
of R300 000.00. The
Second Defendant agreed to pay to the Plaintiff 85% of the proven or
agreed damages suffered by the Plaintiff
and Evan or the balance of
the damages as proven or agreed even if the balance exceeds 85%
after taking into account the First
Defendant’s maximum
contribution of R300 000.00.Subsequent to the settlement
agreement, the parties agreed the
quantum
of the Plaintiff’s
claim for past hospital and medical expenses in the amount of R323
687.37. Of this amount R275 132.99
was paid to the Plaintiff by the
Second Defendant. R300 000.00 was paid by the First Defendant
to the Plaintiff, of which
R48 554.38 was paid in respect of the
balance of the claim for past hospital and medical expenses.
The
Plaintiff therefore does not persist with the claim for past
hospital and medical expenses, this claim having being paid by
the
First and Second Defendants in the manner set out above. The quantum
of the claims for future loss of earnings, future medical
expenses,
general damages and the costs of the
curator bonis
must thus
be determined. The remaining parties (i.e. the Plaintiff and the
Second Defendant) agree that 7.5% of the capital sum
to be awarded
is the appropriate percentage to be allocated for the costs of a
curatorbonis
and that a
curator bonis
will have tobe
appointed to manage Evan’s affairs. From the capital amount of
the award in the Plaintiff’s favour
must be deducted the
amount of R251 445.62, which is the balance remaining from the
amount of R300 000.00 paid by the First Defendant
to the Plaintiff
after deduction of the aforesaid amount of R48 554.37 paid by the
First Defendant for hospital and medical expenses
(i.e. R323 687.37
– R48 554.38 = R251 445.62).
Apart
from the Plaintiff himself the evidence consisted of the expert
testimony of witnesses called by the remaining parties.
For sake of
convenience I will refer to the Second Defendant in this judgment as
“the Defendant”. A number of expert
summaries were filed
by the parties, but not all of these experts were called. The
Plaintiff’s expert witnesses were Dr.
Edeling (neurosurgeon);
Ms Coetzee (clinical psychologist with expertise in the field of
neuropsychology); Dr. Legg (speech and
language therapist); Ms
Bester (occupational therapist); Dr Versfeld (orthopaedic surgeon);
Mr Linde (industrial psychologist);
and Mr Munro (actuary).
The
Defendant’s expert witnesses were Mr Loebenstein (clinical
psychologist with expertise in the field of neuropsychology);
Ms
Andrews (occupational therapist); Dr Liebetrau (orthopaedic
surgeon); Dr Lourens (psychologist and human resources consultant);

and Mr Kambaran (actuary).
Neither
Dr Edeling nor Dr Legg had an expert counterpart but all of the
other experts who testified met with their respective
counterparts
prior to the commencement of the trial and joint minutes were filed
on their behalf. Also filed was the joint minute
of Dr Shevel and Dr
George, the psychiatrists appointed to assess Evan by the Plaintiff
and the Defendant respectively. Reference
was made to their joint
findings by certain of the other experts during their testimony. On
the whole there were areas of agreement
between the parties’
respective experts, save in respect of the two occupational
therapists, Ms Bester and Ms Andrews,
who were completely at odds
with each other. The crux of their dispute - and indeed as the trial
proceeded this became the main
overall issue in dispute - was the
effect of Evan’s frontal lobe brain damage and its
sequelae
on his ability to live and function independently.
Before
turning to define the issues and to consider the evidence it is
useful to first outline the approach of our courts to expert

testimony.
THE
APPROACH OF OUR COURTS TO EXPERT EVIDENCE
The
approach of our courts to the evaluation of expert evidence was
restated in the case of
Michael and Another v Linksfield Clinic
(Pty) and Another
2001 (3) SA 1188
(SCA) at pages 1200 and 1201,
paragraphs [34] to [40]. Although that case concerned whether or not
medical negligence had been
established, the general principles in
evaluating expert evidence are also applicable in the present case.
An extract of the
judgment relating to the court’s approach to
expert evidence reads as follows:
“
[34]
In the course of the evidence counsel often asked the experts whether
they thought this or that conduct was reasonable or unreasonable,
or
even negligent. The learned Judge was not misled by this into
abdicating his decision-making duty. Nor, we are sure, did counsel

intend that that should happen.
However,
it is perhaps as well to re-emphasise that the question of
reasonableness and negligence is one for the Court itself to

determine on the basis of the various, and often conflicting, expert
opinions presented. As a rule that determination will not
involve
considerations of credibility but rather the examination of the
opinions and the analysis of their essential reasoning,
preparatory
to the Court's reaching its own conclusion on the issues raised…
[36]
….
(W)hat is required in the evaluation of such evidence is
to determine whether and to what extent their opinions advanced are
founded
on logical reasoning…
[40]….(I)t
must be borne in mind that expert scientific witnesses do tend to
assess likelihood in terms of scientific certainty.
Some of the
witnesses in this case had to be diverted from doing so and were
invited to express the prospects of an event's occurrence,
as far as
they possibly could, in terms of more practical assistance to the
forensic assessment of probability, for example, as
a greater or
lesser than fifty per cent chance and so on. This essential
difference between the scientific and the judicial measure
of proof
was aptly highlighted by the House of Lords in the Scottish case of
Dingley v The Chief Constable, Strathclyde Police
200 SC (HL) 77 and
the warning given at 89D - E that
'One
cannot entirely discount the risk that by immersing himself in every
detail and by looking deeply into the minds of the experts,
a Judge
may be seduced into a position where he applies to the expert
evidence the standards which the expert himself will apply
to the
question whether a particular thesis has been proved or disproved -
instead of assessing, as a Judge must do, where the balance
of probabilities lies on a review of the whole of the evidence'. …..
”
[
emphasis
supplied]
In
the matter of
Louwrens v Oldwage
2006 (2) SA 161
(SCA) at
paragraph [27] the Court stated:
“
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”.
(see
also
Fulton v Road Accident Fund
Case No 2007/31280 SGHC
(1 February 2012) at paragraphs [22] – [23]).
As
regards the duties of expert witnesses, it was stated in
National
Justice Cia Naciera SA v The Prudential Assurance Co Ltd, The
Ikranian Reefer
[1993] 2 Lloyds Report 68:
“
1.
Expert evidence presented to the Court should be, and should be seen
to be, the independent product of the expert uninfluenced
as to form
or content by the exigencies of litigation
.
2.
An expert witness should provide independent assistance to the
Court by way of objective unbiased opinion in relation to matters

within his expertise.
3.
An expert witness should state the facts or assumptions upon which
his opinion is based. He should not omit to consider material
facts
which could detract from his concluded opinion.
4.
An expert witness should make it clear when a particular question or
issue falls outside his expertise.
”
THE
ISSUES
The
issues which still need to be determined are as follows:
12.1
Whether or not Evan will be capable of living independently in the
long term;
12.2
His loss of earning capacity. This is essentially limited to his
pre-morbid future earning capacity. Although the evidence
of Ms
Andrews was to the effect that Evan meets the general criteria for
employment on the open labour market, this was not even
supported by
the Defendant’s other experts Mr Loebenstein and Dr Lourens;
and the Defendant’s counsel correctly submitted
in argument
that any income that Evan might earn in future should not be taken
into account, whether as a contingency allowance
or otherwise;
12.3
Whether Evan requires medical and related treatment for a condition
referred to by the experts as his “
flat foot”
;
12.4
The net discount rate to be applied to Evan’s future medical
expenses; and
The
amount to be awarded in respect of general damages.
THE
EVIDENCE
The
largely unchallenged evidence of Dr Edeling (neurosurgeon) may be
summarised as follows:
There
is a distinction between injury diagnosis and outcome diagnosis,
the former relating to the injuries sustained as a consequence
of
the accident, and the outcome diagnosis relating to the
complications and
sequelae
of such injuries.
Evan’s
injuries comprised severe cranio-facial injuries with skull-base
fracture, cerebro-spinal fluid leak, nasal fracture
and injury to
the left eye and optic nerve; severe traumatic brain injury with
primary diffuse axonal injury, complicated by
focal(frontal
cerebral laceration - left hemiparesis) and secondary (cerebral
swelling) brain injury; and fracture of the right
radius.
Evan
was an in-patient at the Paarl Medi-Clinic for 42 days. On
admission his Glasgow Coma Scale was recorded as 6 out of 15

points. Based on this criterion alone, the primary diffuse brain
injury was severe. A score below 8 out of 15 points falls
into the
category of severe traumatic brain injury. This injury excludes the
focal and secondary injuries which were not reflected
in the
Glasgow Coma Scale recorded on admission to hospital.
On
14 August 2005 (eight days after the accident) Evan underwent a
decompressive craniotomy because of swelling of the brain
and a
repair of the large brain laceration in the frontal lobes of the
brain. A decompressive craniotomy is an uncommon neurosurgical

operation that is only performed in extreme cases. A large portion
of the skull is surgically removed to allow the brain to
expand and
allow the pressure to reduce. It is a potentially dangerous
procedure, since when the skull is removed the brain
herniates out
at the edges and this may lead to further brain damage.
Since
the craniotomy was only performed some eight days after Evan’s
admission to hospital there must have been severe
progressive brain
swelling over the intervening period, and it was during surgery
that the treating doctors identified the
large brain laceration.
On
22 August 2005 (a further eight days later) a cranioplasty and
repair of the cerebro-spinal fluid leak was carried out. During

thecranioplasty the large piece of skull of the forehead which was
surgically removed for the purposes of the craniotomy was
replaced
after the swelling had settled to reconstitute the contour of the
forehead and the skull. This has left a visible
dent in Evan’s
forehead. In order to repair the cerebro-spinal fluid leak a
membrane was inserted to cover the fracture
so that it sealed the
fracture and prevented the fluid from leaking into the nose or
sinuses.
If
impaired level of consciousness of a person who has suffered
traumatic brain injury persists for longer than seven days it
is
categorised as a severe brain injury. According to the hospital
records Evan suffered from an impaired level of consciousness
for
at least 14 days, putting the brain injury into the category of
very severe.
Evan
also had significant other risk factors for secondary brain injury
apart from those already mentioned, such as fluctuations
in blood
pressure as noted from the hospital records. Epileptic seizures
were also documented on 6, 7 and 19 August 2005, evidenced
by
twitching on the right hand side which is indicative of injuries to
the left side of the brain. Anti-epileptic medication
was
administered.
On
14 August 2005 a subdural haemorrhage (bleeding over the surface of
the brain) as well as considerable contusion and skull
facial
fractures were recorded. On 15 August 2005 a blood transfusion was
given. On 16 August 2005 fluids were leaking out
of Evan’s
nose, and on 17 August 2005 dangerously low levels of
haemoglobin were recorded, which can also cause
further brain
damage.
Evan
suffered from retrograde amnesia of about 25 minutes, which is of
extended duration. Even in cases of severe brain injury
retrograde
amnesia is usually momentary or only of a few seconds duration.
Regarding
the severity of the brain injury Dr Edeling testified as follows:
“
So
it is a semi quantitative annotation primary diffuse axonal injury.
That was complicated by focal brain injury in the form of
frontal
cerebral lacerations so there was actual disruption of frontal lobe
brain tissue with bleeding into that disruption and
secondary brain
injury in the form of cerebral swelling. Now if you were to take only
the first of these, the primary diffuse axonal
injury, that would
fall into the category of severe brain injuries by the criteria we
use for defining mild, moderate and severe
brain injuries. We knew he
has a severe primary diffuse brain injury which is complicated by
cerebral laceration and by cerebral
swelling it is just that much
more severe. So what these words mean M’Lady and as brain
injuries go when one has seen hundreds
or thousands of brain injuries
this falls right toward the minority who have very severe brain
injuries. It doesn’t do it
justice to call it severe because
there are people with far lesser degrees of brain injury who are also
classified as severe, this
is towards the worst end of the spectrum.
”
13.12
Dr Edeling’s outcome diagnosis was that Evan suffers from post-
traumatic organic brain syndrome with neuropsychological-,

communication- and neurobehavioral disorders; blindness in the left
eye; left hemiparesis; neuro-endocrine disorder with hyperpghagia
and
obesity; disfigurement with cranio-facial deformity; and combined
neurological- and psychological mood disorder.
13.13
Dr Edeling explained that neuropsychological functions are broadly
categorised as both cognitive mental functions and executive
mental
functions. In simple terms cognitive mental functions refer to what
an individual knows from learning, understanding and
processing.
Executive mental functions refer to the execution of what an
individual has learned and understood. He testified as
follows:
“
Now
it is important in understanding the effect of brain injury on a
person’s life to understand the distinction between cognitive

and executive functions and when testing experts [do] tests to
understand what their tests mean. The frontal lobes which in
themselves
are the largest volume in the brain are the doing lobes or
the executive lobes and everything that one does whatever it is
follows
an instruction that commenced in the frontal lobes and that
is why on a simple basis the nerves that instruct the foot to move
come from the frontal lobes, the nerves that instruct the hand to
move come from the frontal lobe. The nerves that instruct the
mouth
to make words come from the frontal lobe, that instruct the hand to
write, all of that. So everything we do the instruction
originates in
the frontal lobe. Now the frontal lobe does not necessarily house a
library of knowledge. In order to execute daily
tasks the way it
functions is that a person has in his so-called active memory or
working memory a current awareness of what is
going on right now,
that is not stuff that is stored in real long term memory. So what we
are all aware of, what we are seeing
and hearing and the temperature
we feel that is in our working memory or active memory. If one must
do anything the frontal lobe
has to decide that you have to do
something now. To decide what to do it has to retrieve information
from the cognitive areas from
the brain that is relevant to the
decision it has to make. It has to filter that information in the
context of the current reality.
So whether there is a car coming
across the road in front of me or not and by processing from my
personality, from my character,
from my culture and from my knowledge
and processing that in the light of current reality the frontal lobe
has to do a certain
sequence of functions. It has to decide that
something must be done, it has to make a number of plans of what can
I walk left or
walk right or stop talking or start talking. It has to
then choose between the possible plans which is the most appropriate
plan
to the circumstance. It then has to initiate the action that
follows the plan. Once the action is initiated it has to monitor the

execution of that action so that when it starts drifting left off
course it has to bring it back on course and when the purpose
is
satisfied it has to stop the action. So in broad terms frontal lobe
functions involve decision making, planning, initiating,
monitoring
and in a broad term, execution, and it is like that for the simplest
things we do like walking, it is also like that
for all work related
things we do, for all relationship things we do, whenever we talk to
somebody the things we choose to say
are driven and govern [ed] by
the decisions that the frontal lobes make…
…
.
in an uninjured brain, even in the uninjured brain of a stupid person
those functions are so multiple and so fast and so efficient
that we
don’t even notice or realise that they are happening but they
do happen, they happen seamlessly. So what seems to
be in a blink of
an eye if you had to break down and you only really understand people
with various types of stroke or brain damage
where the functions are
impaired you start to gain an understanding of how much was actually
going on. When a person standing on
the pavement decides to cross the
street for instance there is a tremendous amount of neurological
activity going on. When a person
has to decide how to answer an exam
question it is that much more….
…
..the
neuropsychological disorder of this child’s organic brain
syndrome encompasses both cognitive and executive mental
impairments….
…
He
is unable to use public transport without assistance. One of his
parents has to take him by car or accompany him on public transport

wherever he needs to go. That is a typical example of frontal lobe
executive impairment where physically he has the capacity to
walk to
the taxi station and to get into a taxi, in terms of speech he has
the capacity to say to the taxi driver hello, my name
is Evan but to
put it all together and decide which taxi to get into and to tell the
taxi driver to please alert him to get out
at the right place and to
do it successfully and come home he gets lost. So even though he has
the visible concrete skills the
thing in his brain that must put it
together and organise and make it work which is his frontal lobes are
not working properly
and that is why he needs supervision in terms of
his public transport.”
13.14
Evan suffers from problems with fatigue, memory, concentration,
reading and writing, speech and executive functions. He also
displays
major and sustained changes in personality, mood and behaviour,
having become short-tempered and aggressive with uncontrollable
mood
swings. The mood swings and behavioural difficulties are caused by a
neurological mood disorder of the frontal lobes, which
is permanent
and not amenable to psychological treatment.
13.15Evan,
currently 17 years old,presents as an obese teenage male with
cranio-facial disfigurement as a result of the neurosurgical

procedures. This includes flattening and indentation of his forehead
relating to the sunken cranioplasty bone. There is a visible
scalp
scar extending from the temporal region in front of his left ear over
the top of his head to the temple in front of the right
ear. The
surgery would have entailed cutting from ear to ear across the top of
Evan’s head, flapping the whole of his scalp
down over his
eyebrows and taking out the skull of the forehead. It was then
surgically replaced, leaving a deformity which is
cosmetically
disfiguring.
13.16
Evan has neuro-physical impairments in the form of a blind left eye
with no light perception. He has a visible squint with
deviation of
the left eye. He has a minimal residual left side hemiparesis (loss
of function) with increased reflexes on the left
upper and lower limb
and a mild limp with a broad based gate. He is hardly able to run and
his hemiparesis and unsteadiness are
significant in terms of
locomotion. If he were on uneven terrain he would struggle to
maintain his balance.
Evan
presented with poor attention, sluggish and concrete thought
processes, perceptive and expressive language difficulties,

adynamia (flat and dull affect) and hypokinesia (abnormal
diminished motor activity). These factors are all indicative of
damage to the frontal lobes of the brain. Whilst Evan retains a
fair degree of emotional insight into his situation, his

intellectual insight is deficient. Dr Edeling explained it thus
when referring to Evan’s answers to a questionnaire that
he
was asked to complete as part of his assessment:
“
I
asked his parents not to comment and I gave him a questionnaire and
the questionnaire reads as is stated in paragraph 4.1 ‘Please

list all symptoms, functional impairments, disfigurements and health
problems at this stage whether physical mental and/or psychological’.

Not only was it given to him to read it was also explained to him.
Whether he thinks it is due to the accident or due to anything
else
we want him to write here everything that is a problem with him in
all those spheres and he wrote four things. The first one
‘I
eat a lot and I watch TV a lot and I am lazy to work but I can sit
and play PlayStation all day.’ That is in fact
more than one
thing in a concoction sentence. 2) ‘I am very aggressive and I
lose my temper very quickly and I hit the walls.
3) I lose my mind
and 4) I tend to break things and shout really loud.’ So what
he is telling us here in his own particular
way is that he has
neurobehavioral disorders and a cognitive disorder in his language.
Now that is relevant in terms of that is
what he believes is a
problem. What is also relevant is what he knows about but which he
didn’t answer because when he had
said, written those things I
said to him is there anything else? I read to him what he had
written, he thought and he said there
is nothing, nothing else, that
is all it is ……
That
failure to write something down which is relevant under the
circumstances is a typical example of dysexecutive mental syndrome

because Evan was sent to Johannesburg to see a doctor whose purpose
is to assess the consequences of his injury which his attorneys
are
going to use in formulating a claim for damages. If he had normal
mental function he should understand that that is the time
to come
clean and tell everything. When for instance one assesses people who
are claiming occupational disability for back pain
they go further
and they exaggerate and they fabricate symptoms and disabilities but
brain injured people typically omit to write
complaints of which they
are aware even when they are significant complaints and what that
means M’Lady is that he does not
have the executive mental
function to fill in a form properly, to give a proper account of
himself even in simple terms and there
are many other examples of
this. And if I skim through them the second one goes about his
hemiparesis which has improved but he
still has weakness of his arm
and leg, he stumbles at times, he has a slight limp, his balance is
not good. Now he has got this
large scalp scar and his forehead is
deformed at the site of surgery. That scar is the cause of a serious
psychological mood disorder
because people notice it and they tease
him, it is a big problem in his life yet he didn’t mention it.
He has got this eating
disorder with hypophagia and excessive weight
gain, he is very well aware of that. He has developed flat feet.”
The
brain injury has resulted in a risk of late psychiatric
complication and increased risk of late post-traumatic epilepsy

estimated at 5% to 10% over Evan’s lifetime. Provision should
be made for the cost of treatment should Evan develop epilepsy.
The
head and brain injuries sustained by Evan have resulted in major
degrees of permanent educational disability and permanent

employment disability, as well as permanent losses of amenities,
independence and enjoyment of life. Dr Edeling expressed the

opinion that Evan would not be able to live independently nor would
he be able to manage his own affairs. The awarded funds
should be
suitably protected.
When
asked to explain what he meant by “living independently”
Dr Edeling testified as follows:
“
The
only thing that he can do independently is his personal care so he
can put his clothes on himself, he can wash himself, he can
go to the
toilet himself, if food is put in front of him he can feed himself.
That is personal care activities that most school
children can do. He
cannot be relied upon to lock the doors at night, to buy the
groceries, to pay the electricity bill, to do
anything in terms of
personal home management because his frontal lobe dysexecutive
function means that even though he is physically
capable of locking
the door he won’t get around to doing it, he won’t
realise he’s unlocked the doors and that
applies to every
element of home management which even people who are not greatly
intellectually endowed have got common sense
and they know they must
do it because they have intact frontal lobes, he won’t do it,
he can’t be relied upon to act
on a daily basis in a reliable
rational way in his own interests.”
Any
future capacity to work would be limited by the need for
simplicity, structure, supervision and sympathy. Evan has been

rendered permanently unemployable for gain on the open labour
market.
Dr
Edeling predicts that Evan’s life expectancy should be normal
but this is conditional upon him receiving the requisite
treatment,
supervision and care. He will definitely not have a normal life
expectancy if left to his own devices.
Dr
Edeling was asked to comment on Ms Andrews’ opinion that Evan
should be able to live independently. His view was that
Ms Andrews
had performed a functional occupational therapy assessment of Evan’s
physical functional status without taking
into account the totality
of Evan’s permanent neurological difficulties, despite her
having written in her report that
she deferred to expert opinion in
that regard. He testified that Ms Andrews’ opinion was logical
if applied only to her
physical findings but completely illogical if
applied to the totality of Evan’s problems as a result of his
brain damage.
In
cross-examination the Defendant’s counsel focussed on only one
aspect of Dr Edeling’s testimony, namely what he
meant by Evan
not being able to live independently. Dr Edeling explained that Evan
is capable of attending to the basic activities
of daily living
(such as bathing, brushing his teeth and dressing), but not with the
extended activities of daily living (such
as buying food and
groceries, locking his home, taking any prescribed medication and
travelling on public transport) since all
of these involve executive
mental functioning. Dr Edeling was clear that Evan has a certain
retained intellectual capacity and
that he does not require nursing
care such as would be expected for a vegetative or semi-vegetative
individual; however because
of his frontal lobe damage Evan
requires, and will permanently require, reminding and prompting to
attend even to the basic activities
of daily living; and ongoing
supervision and care for the extended activities of daily living
which non brain damaged individuals,
even if of low intellect, take
in their stride.
Dr
Edeling’s evidence was of considerable assistance. It is
obvious that he had performed a very detailed assessment of
Evan;
and that he had carefully and comprehensively considered the impact
of these most severe injuries on Evan’s functioning
both now
and in the future. His testimony also laid the foundational
background against which the evidence of the other experts
who
testified should be evaluated in order to determine whether their
opinions are based on logical reasoning when viewed against
the
probabilities.
Ms
Coetzee and Mr Loebenstein (the parties’ respective
neuropsychologists) agreed - as was evident from their joint minute

- that behaviourally Evan presents with low drive, apathy, low
frustration tolerance, impulsivity and impaired social judgment.
He
also presents with cognitive difficulties, especially with regard to
attention and concentration as well as poor scholastic
performance.
They also agreed that Evan’s inability to control his
aggression is most likely at least partially related
to the damage
to his frontal lobes but that there are also psychological factors
that exacerbate this behaviour which Ms Coetzee
described in her
testimony as low self esteem, self embarrassment and awareness of
losses. Both experts were of the view that
pre-morbidly Evan was
likely of average intelligence and that post-morbidly he is of low
average intelligence. Both deferred
to the findings and opinions of
Dr Edeling, save for one significant aspect, namely Evan’s
ability to live independently.
In this regard Ms Coetzee was in
agreement with the views of Dr Edeling; Mr Loebenstein was not.
Ms
Coetzee’s testimony on this aspect may be summarised as
follows:
On
neuropsychological assessment Evan presented as co-operative,
albeit somewhat flat in affect and emotionally disconnected.
He
impressed as motivated throughout, but Ms Coetzee found him to be
tangential and prone to derailingthe process.
Ms
Coetzee administered the Wechsler Adult Intelligence Scale III in
order to obtain more detailed information regarding Evan’s

relative cognitive strengths and weaknesses. Evan obtained a full
scale IQ of 89, which is at the 23
rd
percentile and in
the low average range. However, higher scores on individual
sub-tests indicated that as a result of his injuries,
Evan has
sustained a drop in cognitive functioning and in mental efficiency.
Ms Coetzee testified that pre-morbidly Evan would
have had the
intellectual ability to undergo tertiary education.
Ms
Coetzee also found thatneuropsychological testing revealed a more
complex set of deficits that result in what appear to be

difficulties with encoding new learning. Slowed processing of new
information was noted as a major obstacle in his overall
cognitive
functioning with a breakdown at the level of complex attention.
Test
results also indicated frontal lobe involvement which was not
surprising, given the severity of the head injury as well
as the
young age at which it occurred. The collateral evidence of
behavioural and personality changes, marked by significantly

reduced frustration tolerance, poor stress management, mood
dysregulation, low drive, childlike behaviour, aggression,
impulsivity,
poor impulse control and poor social judgment were due
to damage to the frontal lobes of the brain. These are typical
symptoms
of frontal lobe damage.
In
Ms Coetzee’s opinion Evan is at risk of developing a major
psychiatric illness such as a major depressive disorder
or an
anxiety disorder.
She
testified that executive functioning refers to higher-order
cognitive processes such as initiation, planning, cognitive

flexibility, decision making, regulation and feedback
utilisation.Independent living requires good insight, judgment,
planning
and flexible thinking and the drive, for example, to buy
electricity, pay bills, buy food and attend to security such as
locking
doors.In her opinion,if Evan were to live independently he
would not have the volition and executive function that is required

on a practical and social level and there would be a gradual and
progressive disintegration of his life. Given his rigid thinking,

he would be at risk, if left to himself, of creating dangerous
situations and he would exercise poor social judgment and be

vulnerable to exploitation.
Up
until now Evan’s parents have to all intents and purposes
supervised his life on a fulltime basis and have acted, so
to
speak, as his frontal lobes, which has placed a very heavy and
unreasonable burden upon them. Ms Coetzee likened Evan to
a 13 year
old child who has no prospect of maturing and expressed the firm
view that it would be prudent for provision to be
made for Evan to
have a full-time caregiver in the future. In her experience this
was required in all the cases of severe frontal
lobe damage in
which she has been involved.
She
expressed the opinion that a care facility at an institution of
some sort is a possibility, but it is unlikely that this
would be
suitable for Evan since any mood disorder or aggression would not
be tolerated in such an institution. A home based
caregiver would
be the only practical solution.
In
cross-examination the Defendant’s counsel informed Ms Coetzee
that Mr Loebenstein had very few criticisms of her opinion.
The main
criticism was that her findings were “deficit driven”
which I understood to mean that she had focussed on
Evan’s
deficits without giving sufficient consideration to what Mr.
Loebenstein subsequently testified are Evan’s
interests and
his residual capabilities or areas of functioning, as limited as
they might be. Mr Loebenstein’s opinion
was that these should
be exploited since this is appropriate in what he described as a
“
normal rehabilitation process”
. Following on
from this criticism was Mr Loebenstein’s view that although
Evan undoubtedly was incapable of living completely
independently in
the future he did not agree that the level of care and supervision
recommended by Dr Edeling and Ms Coetzee
was necessary.
Ms
Coetzee’s response was to the effect that Evan’s
interests (specifically, motor vehicles) should not be conflated

with his capabilities which are severely impaired. She remained of
the view that the practical implications of Evan’s
difficulties render it impossible for him to have any extended
periods without care and supervision. If he was only cared for
and
supervised some of the time it would lead to a progressive
disintegration on practical, emotional and social levels. She

described Evan as needing someone for his safety, to maintain order
in his life and to keep his person intact; in her words “
someone
who holds the world together for him in a meaningful way and ensures
that he takes the next step in an appropriate manner”
. She
confirmed that the level of almost constant supervision and care
that Evan requires is taking a heavy toll on his parents
and their
marriage. She testified that “
these parents present with
the exhaustion and burnout typical of parents of a disabled child.
To expect them to keep doing this
is unfair. They will always be
involved in his life but they desperately need help.”
In
his testimony Mr Loebenstein accepted that, pre-accident, Evan would
have had the potential to obtain a tertiary education.
He testified
that Evan is incapable of “higher order functioning”
such as making large order purchases. However relying
on Evan’s
scholastic progress (he has managed to move to the next grade each
year since the accident, with considerable
assistance from his
father and by attending a high school for “non-mainstream”
children, although the school reports
show that his marks are poor,
and becoming progressively worse, and Mr Loebenstein was unable to
provide assistance as to what
the pass marks might be); as well as
what he considered to be Evan’s insight into what causes him
to become angry, his
dislike of his school subjects and his school;
Mr Loebenstein was of the view that there is no reason why Evan
cannot “
shop for basics and attend to his personal care”
.
When the Defendant’s counsel asked for his comments on what he
described as Evan “needing a carer 24/7” Mr
Loebenstein
replied “
that proposition would predicate almost an
infantilisation, that he needs someone to hold his hand and direct
him in every aspect
of his life”
.
In
cross-examination Mr Loebenstein accepted that Dr Edeling was in a
better position than he to express an opinion on the severity
of
Evan’s brain injury. He also accepted that with a very severe
brain injury one would expect significant
sequelae
(which in
Evan’s case are permanent); that Evan’s behaviour is
somewhat inappropriate; that he is a large teenager
(according to
the expert reports Evan weighs 129 kg and his father testified that
he is approximately 1.8 metres tall); that
having to care for and
supervise Evan and deal with his temper outbursts could be arduous
and frightening for his parents; that
even in the relatively
protected environment of his school Evan has poor concentration, is
described as “lazy” and
has temper challenges; that Evan
has impaired social judgment and a lack of self-awareness; and that
individuals such as Evan
can be vulnerable to exploitation.
Mr
Loebenstein was asked whether he had investigated the level of care
and supervision that Evan currently requires. His response
was that
this had not been reported to him by Evan’s parents during
their interview with him, but conceded that he had
not specifically
asked them. He also conceded that once Evan leaves school the
probabilities are that “
quantitatively the burden [of
caring for Evan] will be greater; qualitatively the burden will be
the same
”.
Mr
Loebenstein testified that in his view Evan nonetheless requires
only partial supervision. He was asked how this was to be

implemented given that Evan’s difficulties are not episodic
but continuous. Mr Loebenstein’s response was that “
there
should be supervision as to higher order functioning and regular
check-ups”
. He accepted that Evan’s ability to live
independently has not yet been tested, but was of the opinion that
he has enough
residual functioning to execute self-care and the
basic activities of daily living. Life skills training will assist
him in the
long term. Mr Loebenstein did not elaborate on what he
envisaged by “regular check-ups”.
I
have two fundamental difficulties with the opinions expressed by Mr.
Loebenstein. First, he appears to have proceeded from the
premise
that the
sequelae
of Evan’s brain damage are
susceptible to some form of rehabilitation, despite having accepted
the findings of Dr Edeling
as to their permanency and despite Dr
Edeling’s testimony in this regard not being challenged.
Second, he clearly had not
investigated the level of care and
supervision that Evan currently requires,attributing it in passing
to “
over protection”
by Evan’s parents
without even exploring this aspect with them or any other
collateral; nor had he investigated, and was
thus unable to assist
me, on how precisely the “regular check-ups” that he
proposed would address the challenges
of Evan’s daily life
which it is anticipated will endure for many years to come. Simply
put it is my view that the conclusions
that Mr Loebenstein reached
do not appear to be founded on logical reasoning in light of the
probabilities. Certainly, it can
only be in Evan’s interests
to live a more full and meaningful life but that quest, on the
probabilities, is not likely
to be achieved without suitable
safeguards in place. I thus accept the opinions of both Dr Edeling
and Ms Coetzee over that of
Mr Loebenstein.
Dr
Legg ( speech-language therapist) testified
inter alia
as
follows:
Evan’s
parents reported that his communication is inappropriate as he will
talk about unnecessary things to others and
provide too much
information and try to dominate the conversation; he seems to miss
the finer points of a discussion or conversation,
particularly
understanding jokes of others; he struggles with concentration and
shows little empathy for others; he has a tendency
to stand too
close to people during conversation and as a result people become
irritated with him;he often needs terms, expressions
or ideas
explained to him, and he will easily forget instructions,
particularly if they are lengthy.
On
testing Evan’s results varied from the 1
st
percentile
to the 63
rd
percentile for the individual subtests. Dr
Legg found that Evan presented with a degree of both expressive and
receptive language
impairment. He showed word-finding difficulties,
a restricted vocabulary and difficulty with the formulation and
completion
of complex ideas. Receptively, he showed compromised
ability to process extended language and to interpret figurative
language.
Evan’s
communication profile was consistent with the pattern of acquired
brain injury, particularly diffuse axonal injury
and damage to the
front – temporal cerebral areas. Impaired verbal memory,
concrete linguistic processing and pragmatic
disruption were
evident in the context of an interrupted development of the
language system. His communication difficulties
would influence
Evan’s school progress as well as his ability to function in
employment.
Dr
Legg was of the opinion that Evan will struggle to learn new
material, understand complex issues or respond in an appropriate

communicative manner in work situations, which would severely
restrict employment opportunities. In addition, his concrete

understanding of language and his pragmatic disturbances would make
him vulnerable to misunderstanding in both social and work
spheres.
His pragmatic problems would continue to have a marginalising
effect on his social life and on how he impresses himself
on
others. These language difficulties are all confounded by Evan’s
psychological profile.
In
the opinion of Dr Legg taking into account Evan’s language
difficulties, he will require ongoing supervision throughout
his
adult life. His language impairment will have functional
consequences for managing adult relationships, social interaction,

engaging in leisure and community activities, making living
arrangements independently and managing his financial affairs.
In
cross-examination it was put to Dr Legg that none of the other
experts who had filed reports had commented on Evan’s
language
comprehension difficulties. (This is not accurate since Dr Edeling
wrote in his report that he had noted both receptive
and expressive
language difficulties.Ms Coetzee wrote in her report that Evan
impressed as having a limited vocabulary, as well
as expressive
abilities marked by poor verbal fluency - specifically phonemic -
coupled with poor formulation and elaboration).
Dr Legg replied that
she had conducted an in-depth 2½ hour assessment specifically
on the communicative
sequelae
of Evan’s head injury,
not only to test his language abilities but also to test how his
difficulties manifest in his scholastic
progress, social interaction
and ability to function independently.
It
was also put to Dr Legg that Evan’s language and communication
difficulties are more apparent than real (although the
Defendant did
not call its own expert to support this proposition) and that his
limitations will not restrict Evan in his everyday
life. She
responded that Evan’s profile is compatible with the concerns
reported by his parents, his poor scholastic progress,
the
neurocognitive test results and his limited social life (despite
being of an age at which social interaction with peers is
important
and appropriate). She explained that frontal lobe damage does not of
itself necessarily impair speech and vocabulary
although Evan does
display mild apraxia of speech and a limited vocabulary (the latter
being that of a child of 9.1 years of
age). The nature of Evan’s
impairment is at a more complex and abstract level. She testified
that there are seldom instances
of “surface”
communication in adult interaction, which I understand to mean
communications which are lacking in subtleties
such as figurative
language, inferences, humour and the drawing of accurate
conclusions. Dr Legg’s testimony was not challenged
in any
other material respect. I accept her opinions which support those of
Dr Edeling and Ms Coetzee.
Drs
Versfeld and Liebetrau (the orthopaedic surgeons called respectively
by the Plaintiff and the Defendant) were in agreement
- as evidenced
by their joint minute - that Evan sustained a head injury, a broken
nose, a fracture of his right forearm and
an eye injury as a result
of the accident. They deferred to an appropriate expert (namely Dr
Edeling) as to the
sequelae
of these injuries. They also
agreed that as a result of the accident Evan sustained a left
hemiplegia (but differed on the effect
thereof); and that there is a
deficit in supination of his right forearm.
As
regards the effect of the hemiplegia, Dr Versfeld was of the opinion
that this has resulted in the tight tendo-achilles observed
by him
in Evan’s left leg and that the tight tendo-achilles has in
turn resulted in a left flat foot deformity which requires

orthopaedic intervention. A further consequence of the residual
hemiplegia is Evan’s physical inactivity that is likely
to
result in osteoporosis. Dr Liebetrau disagreed. He was of the
opinion that although there is evidence of increased tone (partial

contraction) on Evan’s left side there is no significant
functional deficit requiring orthopaedic intervention.
Dr
Versfeld’s testimony may be summarised as follows:
On
Evan’s physical examination Dr Versfeld noted decreased
sensation over the inner aspect of the left foot and the outer

aspect of the left calf. There was a fixed flexion deformity of the
left hip of 10 degrees and mild ataxia (unsteadiness) of
the left
leg when compared to the right.
Evan’s
ability to stand on tiptoe on the left side was markedly reduced
when compared to the right and there was evidence
of valgus
(displacement of) feet on both sides, with the left worse than the
right. Evan walks with a mild limp. It was more
noticeable when
Evan walks up stairs.
Dr
Versfeld concluded that as a result of the fracture of the right
radius, Evan has residual forearm bowing with reduced range
of
supination (the act of turning the hand so that the palm is
uppermost) on the right side. This is permanent.
Evan
suffers from residual left hemiplegia and a residual loss of
function on the left side, which is manifested by ataxia affecting

his upper and lower limbs on the left side, weakness of
plantiflexion of the left leg despite this being his dominant side

and ataxia affecting his upper and lower limbs. This is also
permanent.
As
a result of the accident Evan has suffered tightening of his left
tendo-achilles which has manifested in the development
of a flat
foot on the left side which is more pronounced than the right. This
should be treated by conservative measures including
the wearing of
orthotics, physiotherapy and visits to an orthopaedic surgeon and
ultimately the surgical repair of the left
foot. This would include
lengthening of the left tendo-achilles and the insertion of a flat
foot implant and subsequent removal
of the implant.
Dr
Versfeld was of the further opinion that as a result of the ataxia
and the fact that Evan will be less active in the future,
he would
be more vulnerable to sustain fractures particularly as he got
older and that it would be reasonable to make provision
for the
future cost of one major and one minor fracture over the remainder
of his lifetime.
Evan’s
residual physical impairment would probably impact adversely on his
opportunities for gainful employment in the
future.
In
cross-examination Dr Versfeld was asked to confirm whether he had
specifically examined Evan’s left foot and he replied
that he
had. It was then put to him that Dr Liebetrau had found no deformity
of Evan’s lower left limb. This was not correct
since Dr
Liebetrau had indeed found a deformity; he was simply of the opinion
that it was not sufficiently significant to require
orthopaedic
intervention.
In
his testimony Dr Liebetrau confirmed that although he had
specifically examined Evan’s left foot he had not observed
any
abnormality, nor had he observed that Evan’s left Achilles
tendon was shortened.
During
cross-examination Dr Liebetrau testified that he had not observed
Evan running or walking up stairs. He confirmed that
if Evan’s
left Achilles tendon was indeed shortened this would be the cause of
a left flat foot. This condition would deteriorate
over time and
surgery would be indicated in the form of a surgical implant.
It
is noted that Evan’s abnormal gait and left flat foot were
observed not only by Dr Versfeld but also by Dr Edeling (who
as I
have said conducted an extremely thorough assessment) and Ms Bester
(occupational therapist). Dr Edeling’s evidence
in this regard
was not challenged and it is my view that the probabilities are that
Evan indeed has a left flat foot, which Dr
Liebetrau himself
confirmed would - if it exists - require treatment and surgical
intervention in due course. It is logical to
assume that this,
coupled with Evan’s hemiplegia, ataxia and obesity will result
in continued inactivity and that the probabilities
are that Evan
will be vulnerable to sustain fractures, particularly as he grows
older. I thus accept Dr Versfeld’s opinions
on these aspects.
Evan’s
father, Eric Mohlaphuli, testified as follows:
He
confirmedthe career history of his own and extended family recorded
by Mr Linde(the industrial psychologist who testified
on behalf of
the Plaintiff) in his report. He enjoys a close relationship with
his siblings and despite living across South
Africathe families try
to spend time together at least once a year.
Before
the accident Evan was an active, bright young boy who excelled at
drama and had no evident problems with his school work.
He had many
friends, was confident and had an enquiring mind. He had a passion
from an early age for motor vehicles, in particular
trucks. He
acquired considerable knowledge of different types of trucks.
Although he was still young, Evan did express an interest
in the
teaching profession and had always admired his uncles and aunts who
were teachers.
It
had always been the Plaintiff’s intention that Evan would
continue to study after completing Grade 12. He hoped that
Evan
would attend university. The funds would have been available as he
would receive a 75% reduction on fees which is one
of the benefits
to which the Plaintiff is entitled by virtue of his employment at
the University of Cape Town.
The
Plaintiff testified about the tragic events that occurred on
6 August 2005 whilst the family were on their way to an

outing. He visited Evan every single day in hospital and kept a
diary of his progress during his 42 day stay at the Paarl
Medi-Clinic.
He
confirmed the difficulties and problems articulated by him and
Evan’s mother to the various expert witnesses (and about

which they testified) concerning Evan’s behaviour and the
changes that they had seen in him since the accident. In

particular, he highlighted Evan’s anger outbursts, which he
testified are uncontrollable and frightening to witness. During

some of these outbursts Evan stands right up against his mother in
a threatening manner and she is scared of him. He had also
thrown
furniture around and kicked the family dogs.
Evan
prefers watching children’s programmes on television and
socialising with young children rather than children of
his own
age.
Evan’s
father recounted what had happened a day or two previously when his
parents were attending the trial and Evan was
at home. When they
arrived home after dark the lights were off, the curtains were
open, the dogs had not been fed, and Evan
had not bathed. This was
typical of his behaviour.
Evan
has to be cared for and supervised constantly. When his parents go
to church on Sunday he is left at home but under the
supervision of
his uncle and grandmother who live on the same property.
He
is transported to and from school and does not travel on public
transport on his own. Evan’s father recounted an incident

when he travelled by bus with Evan but Evan did not get off the bus
behind him and had to be helped off the bus at another
stop. He
does not believe that Evan would cope with public transport on his
own.
Evan’s
father felt that Evan would not be able to live independently
because he will not attend to basic security measures
such as
locking the doors or managing transport or running his own home and
attending to the other activities of daily living
without been
prompted and supervised.
The
plaintiff testified that the past seven years have been very
traumatic. In addition to the burden which he and Evan’s

mother carry at home there have been countless occasions when the
Plaintiff has had to attend at Evan’s school to appeal
to
Evan’s fellow students not to mock him and to respond to
complaints from the school about Evan’s behaviour.
The
Plaintiff testified that “
if it wasn’t for me I
don’t think that he would have made it this far at school -
and he hates it”.
He experiences Evan as having no
motivation; and testified that “
you have to tell him what
to do. You can nag him for over an hour for him to, for example,
run his bathwater, he will not do
any tasks that he is asked to do
immediately”.
When Evan goes out he always covers his
head as he is “
oversensitive”
to others looking
at him.
The
Plaintiff also testified that he and Evan’s mother had been
warned by one of the initial treating doctors, a Dr Liebenberg,
to
expect some changes in Evan’s behaviour. It became apparent
to me during the course of the Plaintiff’s testimony
that he
and Evan’s mother - quite understandably - hadnot anticipated
the extent of those changes, nor have they been
sufficiently
informed of how to cope with them. They have struggled along,
remaining committed and devoted to this child, without
proper
support or advice, and it is a tribute to both of them that Evan
has progressed scholastically and managed daily living
to the
extent that he has. The Plaintiff further testified that it was
only after having listened to the various experts who
gave evidence
during the course of the trial that he and Evan’s mother had
begun to fully understand his difficulties.
The
plaintiff confirmed that the degree of ongoing care and supervision
that Evan requires, coupled with his intimidating outbursts,
have
taken a severe toll on himself and Evan’s mother. The
Plaintiff is 52 years old and Evan’s mother is 57 years
old.
During
cross-examination it was put to the Plaintiff that Evan’s
outbursts are apparently not as severe as they were a few
years
previously. The Plaintiff replied “
not to my knowledge, he
hasn’t changed. The [school] principal has said more than once
that we need to refer Evan to anger
management
”. It was
also put to the Plaintiff that Ms Andrews would testify that Evan
was on Facebook and that she had seen his Facebook
page. Not only
did the Plaintiff respond that he had no knowledge of this, but Ms
Andrew herself made no evident mention of it
in her clinical notes,
wrote in her report that it was Evan who had told her that he was on
Facebook, and she did not testify
about this either. The balance of
the Plaintiff’s evidence was not challenged.
Ms
Bester (occupational therapist) testified as follows:
Her
report was based upon structured interviews with Evan’s
parents; an assessment and her observations of Evan carried
out at
the Centre for Occupational Therapy, Tygerberg Medical Campus; and
a home visit.
Evan’s
parents had reported that his mother is completely drained by
having to look after him; continual academic and
homework support
is required which is provided by Evan’s father; the burden of
looking after Evan has taken its toll
on their marriage; Evan
insists on accompanying his parents everywhere; his free time is
unstructured and sedentary in nature;
he eats compulsively; he
requires constant reminding with regard to self-care; he is not
responsible when handling money; and
he is not aware of safety and
security issues.
Ms
Bester was further advised that after the accident Evan completed
Grades 6 and 7 at primary school with the help and support
of his
parents and thereafter attended Rosemead Private School. His
parents were promised that Evan would receive special attention
at
Rosemead. Evan’s father is constantly called to the school
for meetings to discuss Evan’s aggression.
During
physical examination Ms Bester noted that Evan is left hand
dominant; he has a disfiguring scar over his head; supination
of
the right forearm causes pain; the right forearm is bowed; and
lifting and carrying of even light weights is compromised
as a
result of pain in the right bicep area.
During
the assessment Ms Bester noted that Evan needed a lot of time for
each subtest and the overall testing time was excessive
with Evan
requiring double the usual amount of time. Much repetition was
required and Evan presented with a childlike demeanour.
On
the Gardner Test of Visual – Perceptual Skills, Evan’s
scores varied between the 1
st
percentile to the 95
th
percentile, suggesting severe impairment in certain areas of
visual-perceptual function. On the Rivermead Behavioural Memory

Test, Evan achieved an overall profile score of 1, which indicated
that he has a poor memory.
Although
Evan was able to carry out activities of daily living such as
eating, attending to hygiene, dressing and household
activities, he
required supervision for these activities. He could assist with
meal preparation provided he was supervised.
As
far as transport is concerned, Ms Bester testified that Evan is
totally dependent and will always remain dependent on others
to
transport him anywhere. In Ms Bester’s view Evan should not
drive a motor vehicle. Apart from Evan’s visual
impairment,
he suffers from cognitive difficulties such as poor planning,
attention and memory difficulties, emotional ability
and poor
frustration tolerance, all of which make it strongly inadvisable
that he drives a motor vehicle. Although from a physical
point of
view he would probably be able to use public transport, he will not
be able to do so independently given his problems
with planning,
concentration and memory, and his inability to act independently.
Apart
from Evan’s physical limitations, his psycho-cognitive skills
are particularly impaired. Evan will require regular
care and
supervision in the future. In the opinion of Ms Bester, it cannot
reasonably be expected of Evan’s parents to
continue to care
for him. This obligation has already taken its toll and they should
be allowed to resume their normal roles,
free of the constant
demands of caring for and supervising Evan. Ms Bester testified
that Evan could not be left unsupervised
and would be prone to
exploitation by others and at risk as regards his personal safety;
quite apart from the need for supervision
of his daily activities,
which he would not attend to without being prompted.
As
far as the future is concerned, Ms Bester recommended that a
suitable case manager be appointed who would ordinarily be an

occupational therapist or a social worker who has experience in
working with head injured individuals and their families. Ms
Bester
testified that since every head injured patient has different
needs, the input of a case manager would be required to
assist,
train and supervise Evan’s caregiver and to provide ongoing
advice to his family.
Ms
Bester recommended day and night assistance, 7 days a week, i.e.
someone who is essentially on call 24 hours per day. This
would be
the lowest level of carer and it would not be necessary for the
person to be a qualified nurse. The carer should preferably
be a
male who would be able to develop a rapport with Evan.
As
an alternative, Ms Bester proposed that Evan could be accommodated
in an institution where he would be cared for and supervised.
She
did not however feel that this was a viable alternative since not
only is such an institution expensive, but persons with

interpersonal problems and anger management issues such as Evan are
generally not accommodated at such institutions. In Ms
Bester’s
experience, there are also limited facilities available in Cape
Town and a long waiting list for appropriate
institutions.
Evan
should also be provided with a learner facilitator to assist him
with his studies while still at school.
Since
Evan will not be able to drive himself, it will be necessary for
the caregiver to have a driver’s licence and to
transport
Evan where necessary.
In
Ms Bester’s view Evan is unquestionably unemployable in the
open labour market.
During
cross-examination Ms Bester was asked for her views on why she and
Ms Andrews were poles apart in their opinions. She responded
that it
would appear that Ms Andrews had focussed on Evan’s physical
functioning only without taking into account the totality
of his
impairments. Ms Bester was asked why she had not questioned what
Evan’s parents had reported to her. She replied
that she had
considered and found the reports to be consistent with the input of
other experts and her own, obviously thorough,
assessment. Her
clinical assessment alone was conducted over a period of 2½
hours, excluding a 2 hour interview with Evan’s
parents,
perusal of written information provided by Evan’s father, all
of the other reports provided by the experts and
a 1 hour home visit
assessment.
Ms
Bester was also asked what would happen to Evan if he was to live
alone. She replied that “
It would be akin to leaving a
child of 7 to 9 years old unsupervised and alone to make decisions
etc. He simply doesn’t
have the cognitive skills. They have
been lost. He doesn’t have the skills to cope with
unpredictable situations.”
It
was put to Ms Bester that Ms Andrews would testify that she had not
neglected to consider Evan’s cognitive impairments.
Ms Bester
responded that it was apparent from Ms Andrews’s report that
she had only conducted one out of the twelve required
subtests
during her assessment. She pointed out that the findings of Ms
Andrews differed significantly, not only from her findings,
but also
from the findings of those of Dr Edeling, Dr Versfeld and Ms
Coetzee. It is also noted that Ms Andrews’ findings
differed
from those of Mr Loebenstein regarding Evan being able to live fully
independently, as well as from those of Mr Loebenstein
and Dr
Lourens regarding Evan’s future employability.
Ms
Andrews, the occupational therapist who testified on behalf of the
Defendant, painted a far more optimistic picture of Evan’s

future. Her evidence may be summarised as follows:
42.1
She conducted a 2½ hour interview with Evan’s parents
followed by a 2 hour assessment of Evan and thereafter a
home
assessment. She had available to her all of the expert reports filed
by the parties. Accordingly it would appear that she
had also
conducted a very thorough assessment.
42.2
Ms Andrews testified that Evan’s parents reported a number of
his problems to her. She gave evidence that “
I couldn’t
quite figure out what was the most problematic so I asked them to
rate them in order of severity.”
These were listed in her
report (with the first being reported as the most severe and the last
as the least severe) as (a) Evan
is lazy regarding tasks and becomes
angry if asked to do chores; (b) he can becomevery aggressive when
teased or asked to divert
his attention from his Playstation, eg. to
do chores; (c) he is forgetful; (d) he is blind in his left eye; (e)
he has developed
an eating disorder and does not stop eating; and (f)
his scholastic progress is poor. It is noted that these difficulties
are consistent
with the findings of the other experts on Evan’s
frontal lobe damage.
42.3
Evan reported the following difficulties, namely (a) his facial and
visual deformities; and (b) that he has a temper and lashes
out,
mostly in his home environment, which included kicking the family
dogs, breaking furniture and upturning rubbish bins, although
he
claimed that he no longer does this. No other problems were reported
to her by Evan (which having regard to the unchallenged
evidence of
Dr Edeling concerning Evan’s deficient intellectual insight is
not surprising).
42.4
Ms Andrews found no significant deficiencies on physical examination.
She testified that although Evan’s left side is
thinner than
the right, this was most likely related to the residual effects of
his hemiplegia. Evan demonstrated full range of
movement in his upper
and lower limbs. He performed rapid alternating movements with normal
speed and quality in both left and
right hands. He performed a finger
nose (co-ordination test) with no difficulty, as well as various
dexterity tests requiring gross
and fine co-ordination with no
control difficulties or indication of tremor, although she later
qualified this by testifying that
she had realised that she had
scored Evan incorrectly on the dexterity speed COTNAB subtest; and
that “
Both the left and the right, and both hands together
did not score average. They scored below average.”
However
because of his performance in other tasks she nonetheless concluded
that there was no functional difficulty in him using
his hands. Evan
was able to do push-ups and squats. She found no evidence of ataxia.
She had not formally assessed Evan’s
endurance ability and
testified that “
but I am estimating that it is unimpaired
considering his daily routine.”
42.5
As to the issue of Evan’s cognitive impairments Ms Andrews
testified that
“
I
have read all the expert opinions and I have noted them. In terms of
cognitive assessment the expert cognitive assessors are very

important to me and their findings are relevant. During my
consultation I noted some difficulties regarding his insight and
estimation
of his own abilities, his ability to express himself and
one particular task that I did, which is called visual motor
integration,
indicated average range performance and this also
correlates with his IQ findings.”
42.6
Her evidence was
“
I
just want to say that your functional ability regarding everyday
activities relates not just to physical ability but it relates
to
functioning. How you are able to carry out everyday tasks with all
your abilities and impairments. And how you – because
part of
the occupational therapy approach is to assess ability and one of our
more important functions is to make things possible
for people, so we
want to know what can’t be done but it is very important for us
to cross-check it with things that can
be done. The information I
have is that Evan gets up very early by himself, he uses an alarm,
nobody needs to get him up and he
then watches TV for a while and
once his father is out of the bathroom and getting dressed he goes
into the bathroom. He doesn’t
bath then, he just washes his
face and teeth because he baths at night and he is washed and dressed
by quarter past five already
and gets his own breakfast in the
kitchen …
Can
you to the best of your ability try to explain to Her Ladyship how
the school looks - how it looks there
. ---- No, well I am afraid
I didn’t go there and this was described to me by his father
and Evan and the description matched.
It is like an office block, so
you come in off the street and you go straight into the building. So
there is no place really to
have lunch or to go outside or to
socialise. You either stay in the classroom, and as was explained to
me, kids congregate on the
pavement outside the school. There is a
shop across the road that sells food and snacks and Evan is given
some money every day,
even though sandwiches are given to him they
are rather taken to his father’s place of work so he eats them
at three o’clock
when he is fetched, and during the lunch break
he will go over the road and buy himself snacks and on Fridays
apparently they have
a really large chip dog …
Now
you say he generally travels by private transport and he is
understood to have taught himself to drive and his mother reported

considering getting him a car. But there is testimony from Miss
Bester I think that he should not be driving a car at all
. ---
Well I am not sure why she says that. Physically he is certainly
capable of it. In terms of the Transport Department if you
have one
eye, if you have one arm you can drive. If you have one leg you need
to drive an automatic car. They take you on a test
drive, if you have
passed your licence, your learners and pass your practical test and
have met the visual requirements and you
have no observable
disabilities that is going to impair you from you know using the
pedals you are entitled to a licence. His vision
will prevent him
from getting a code 10 licence, which is the ability to drive a large
truck, because of the distance vision involved
in dealing with the
length of the vehicle.”
It
is not clear from Ms Andrews’ clinical notes, her report or
her testimony whether what had been reported to her had been

conveyed by Evan himself (save where it had clearly been reported by
his parents). There is also no indication whether this reporting
was
ever cross-checked with Evan’s school or any other collateral.
What is odd is that Evan and his parents do not appear
to have
reported any of this to any of the other experts. None of this was
put to Evan’s father during cross-examination
and Evan’s
mother did not testify. Further, Mr Loebenstein had in
cross-examination conceded the importance of treating
reporting by
brain-damaged individuals with circumspection due to the very nature
of their deficits.
Ms
Andrews summarised her findings on Evan’s functional ability
as follows. He is independent regarding personal care. He
should be
able to use public transport or to drive “
with the
appropriate help and instruction”
(she did not elaborate
on what she meant by this). He should be able to live independently
with minimal support and domestic
help. His ability to handle
finances is unclear. He is able to socialise but social
disfigurement contributes to social isolation.
He is better suited
to attend a school of skills, given his interests and adequate
physical functioning. He is likely to benefit
from attendance at a
social skills program, increased responsibilities in the home (she
did not say how this should be practically
implemented given Evan’s
size and behavioural problems), weight reduction and involvement in
physical exercise. In her
opinion Evan will meet the general
criteria of working in the open labour market, although any future
employment is likely to
require some supervision (Ms Andrews did not
explain why Evan would be able to live independently but nonetheless
require some
supervision in the workplace). As already noted none of
the other experts (including those of the defendant) agreed with Ms
Andrews
about Evan’s employment prospects.
Ms
Andrews testified that although she had considered Dr Edeling’s
report she was nonetheless satisfied that the conclusions
that she
had reached were accurate. She however described the function of an
occupational therapist in conducting an assessment
as follows:
“
Well
one has to be aware of impairments. Your main focus, particularly
with somebody who has had an injury so many years ago, you
need to
look at functional ability, what he is able to do.”
Ms
Andrews explained functional ability to mean “
Your ability
to perform tasks that would normally be required in the space of
your day, and of your age group”.
In
Ms Andrews’ opinion the reason why she and Ms Bester were at
odds with each other was that first, Ms Bester had not sufficiently

assessed Evan’s ability to perform practical tasks; and
second, Ms Bester had not sufficiently considered the positive

aspects of her test results.
During
cross-examination Ms Andrews testified that she had also considered
the reports of the two neuropsychologists, namely Ms
Coetzee and Mr
Loebenstein, prior to finalising her report. As to the points of
agreement recorded in their joint minute, Ms
Andrews gave evidence
that it was after considering those points of agreement that she was
open to “
possible care”
for Evan. She conceded
that insofar as the neuropsychological
sequelae
of Evan’s
injuries are concerned she deferred to the opinions of the
neuropsychologists. She appeared to be dismissive
of Dr Edeling’s
findings on the basis that, as a neurosurgeon, he was not qualified
to comment on what she referred to
as a “
behavioural
assessment”.
However
Ms Andrews does not seem to have taken into account that Dr Edeling
had never conducted a behavioural assessment, nor
had he claimed to
have done so. His evidence was to the effect that Evan’s
neuropsychological and behavioural impairments
were consistent with
his neurological injuries and their
sequelae
about which Dr
Edeling was clearly able to testify.
Ms
Andrews conceded that although as an occupational therapist she was
able to assess various aspects of physical and cognitive
ability as
also behavioural and social functioning, she was not able to assess
all of these, and certainly not in the depth that
a
neuropsychologist would be able to. When asked what reliance could
be placed on information provided by Evan Ms Andrews responded
that
“
I think some reliance could be placed on it, I have
indicated that insight may be a problem”.
When asked to
explain, her evidence was confusing, but ultimately I understood her
to mean that she had gained the impression
that Evan thought he was
capable of more than he actually is. She conceded that she had not
explored Evan’s insight or
lack thereof into his anger issues.
Ms
Andrews was cross-examined at length about her findings based on
Evan’s physical assessment. She was not prepared to
make any
concessions other than to correct that aspect of her report to which
I have already referred. She did however confirm
that Evan had only
done “
two or three push-ups”
; that she had not
asked Evan to run; she had not asked Evan to remove his socks and
thus had not noticed whether or not he had
a left flat foot; and
that certain of her observations during physical assessment that
were contained in her report had not been
recorded in her clinical
notes.
When
asked if she had found Evan to have impaired social judgment Ms
Andrews replied that she had not tested specifically for
this and
that she was not quite sure what was meant by it. She had also not
conducted any specific assessment of Evan’s
memory
capabilities. She had not recorded any observations in her clinical
notes on matters pertaining to Evan’s judgment,
insight and
planning. Ms Andrews remained adamant that even taking into account
Evan’s neuro-behavioural and cognitive
impairments about which
Dr Edeling, Ms Coetzee and Mr Loebenstein had testified in detail,
Evan would be perfectly capable of
driving a motor vehicle. She did
not elaborate on how she anticipated that Evan would be able to
study and pass his learner’s
licence as well as manage to
attend driving lessons and acquire the degree of skill necessary to
pass a driver’s licence
test. She insisted that although
Evan’s attention and concentration had been assessed as “
a
problem”
it was not deficient or absent and, in her view,
he has sufficient concentration capabilities. On being questioned
further Ms
Andrews again confirmed that she had not conducted any
tests herself in this regard but, oddly, she had reached this
conclusion
after having considered the reports of Ms Coetzee and Mr
Loebenstein. It is noted that it was the testimony of Dr Edeling, Ms
Coetzee and Mr Loebenstein that Evan should not be permitted to
drive a vehicle. This notwithstanding Ms Andrews remained of the

opinion that “
driving would be a really important activity
for Evan to be able to do”.
When asked how she anticipated
that Evan would be able to deal with provocation while driving, she
replied that this could be
addressed by him attending some skills
programmes and taking prescribed medication.
Similarly,
Ms Andrews remained adamant, in the face of overwhelming expert
testimony to the contrary (including the defendant’s
other
experts) that Evan is capable of gainful employment on the open
labour market.
In
considering her evidence I do not suggest that Ms Andrews did not
honestly believe that her opinions are correct. That however
is not
the test. What is required of me is to determine whether and to what
extent her opinions are founded on logical reasoning
when viewed
against the opinions of the other experts in light of the
probabilities. To my mind the overwhelming evidence of
the experts
to the contrary, coupled with her concession that they were most
qualified to express an opinion on Evan’s
deficits, leads me
to the inescapable conclusion that, objectively, Ms Andrews’
opinions cannot be accepted. I thus find
that Ms Bester’s
evidence is to be preferred.
Mr
Louis Linde, the industrial psychologist called on behalf of the
Plaintiff, testified as follows:
He
had interviewed Evan’s father in person, Evan’s mother
by telephone and Evan personally. Evan’s father
had reported
similar concerns to those conveyed to other expert witnesses.
He
set out the work history of Evan’s father, mother and
extended family in considerable detail. Evan’s father is
52
years old and has a Grade 11 education. He was obliged to leave
school to support his family. He commenced work as a mine
labourer
for Vaal Reefs Exploration and Mining Company Limited in 1983. He
was soon promoted to the position of Assistant Section
Clerk; and
thereafter to Clerical Assistant Grade II, to Clerical Assistant
Grade I and to Personnel Assistant.
In
1996 Evan’s father moved to Cape Town and obtained a position
as Campus Security Officer at the University of Cape
Town. In 1998
he was awarded a certificate in recognition of good work
performance.The University subsequently outsourced its
security
staff and Evan’s father was given the position of Crime
Investigations Detective at the University. He is still
employed in
that position. As a permanent fulltime employee of the University,
Evan’s father qualifies for special tuition
rates for
himself, his wife and his children, which is equivalent to a 75%
discount on tuition fees. (It is noted that Evan’s
father
testified that he would have liked to complete his matric and study
further but that personal circumstances, in particular
financial
constraints, had not allowed this.)
Evan’s
mother has a Grade 10 education and is 57 years old. She has a
history of employment in sales. In 1995 Evan’s
mother
commenced self-employment with other family members buying and
selling furniture and electrical appliances. Following
the
accident, Evan’s mother devoted most of her time and
attention to caring for him and has therefore not been able
to
concentrate on her business as much as she would have liked. Evan’s
mother has a daughter from a previous marriage
who is 40 years old
and employed as the manageress of a retail outlet at Cape Town
International Airport. (It is thus noted
that Evan’s mother
gave birth to her daughter when she was just 17 years old, which no
doubt impacted on her ability
to complete her education.)
Mr
Linde also testified extensively concerning the career history of
the Plaintiff’s extended family. He has a brother
who is
employed as a Team Leader for the Gauteng Department of Finance; a
sister who is a registered nurse; a sister who has
a teaching
diploma and who is also a qualified nurse; another sister who holds
BA and B.Ed. degrees and is employed as a deputy
school principal;
and twin brothers, one of whom has a Bachelor’s degree in
education and is a high school teacher, and
the other who is a
prison warder.
Evan
has cousins, one of whom is employed as an IT Service Desk
Administrator, another is a Personal Assistant to her cousin,
a
fashion designer; another is in her third year of studies in
Industrial Psychology at University; another who is a fashion

designer; and another who owns his own company printing billboards.
In
formulating his views concerning Evan’s pre-accident career
potential, Mr Linde considered the following factors:
The
educational and work history, achievements and work ethic of the
family; in particular that most of Evan’s cousins
have
matriculated, have completed qualifications through tertiary
institutions and are in fixed employment. In his opinion
this was
a more reliable indicator of Evan’s pre-accident potential
than the standard considerations of employment
equity policy and
the principle of upward mobility, although he had also taken these
into account.
Evan’s
pre-accident intellectual ability; in particular that he would
have had the potential to undergo tertiary education;
The
general rule accepted by industrial psychologists that with only a
matriculation certificate a person will progress to
a ceiling of a
midpoint between Paterson Grading Levels B3 and B4; with a
national diploma to a ceiling of the midpoint between
Paterson
Grading Levels C3 to C4; and with a degree up to the Paterson
D-band;
Evan
would probably have completed Grade 12, and thereafter obtained a
university degree or a national diploma, particularly
taking into
account that his father would have qualified for a 75% discount on
fees; and
Due
to Evan’s age at the time of the accident, it was difficult
to determine a specific career path and Mr Linde therefore

suggested the ‘
broad brush approach’
.
Bearing
in mind the aforementioned factors, Mr Linde predicted the
following pre-accident career path for Evan:
After
matriculating Evan would have studied fulltime for three years;
Once
qualified, a period of one to two years should be allowed for
internships or contract work to establish himself in the
open
labour market and during this period he would earn within the
lower quartile of the Paterson A1 level (basic salary,
increasing
annually with inflation); thereafter with a national diploma or a
degree in education, Evan would probably have
entered the formal
labour market within the Paterson B4 level and he would have
progressed steadily in his career path, following
a straight line
approach, to reach the Paterson C3/C4 level by the age of 40 to 45
years; and thereafter he would have received
inflationary
increases until the usual retirement age of 65 years.
Mr
Linde expressed the firm view that post-accident Evan will not be
employable in the open labour market. Any informal or intermittent

work would probably only be therapeutic in nature and cannot be
regarded as a sustainable income considering the combination
of
Evan’s deficits and difficulties.
For
purposes of the calculation of Evan’s future loss of
earnings, Mr Linde relied upon the figures provided by the PE

Corporate Services for the earnings relative to each of the
Paterson grading levels and expressed the view that the median

between the lower and upper quartiles should be used based upon the
annual cost of employment in respect of each grading level.
Mr
Linde criticised the report of Dr Lourens, Defendant’s expert
witness, testifying that Dr Lourens had advocated the
calculation
of the claim for loss of earnings on the basis of the earnings
figures provided in the Quantum Year Book 2012 authored
by Mr
Robert J Koch. Mr Linde pointed out that across the board the
earnings figures set out in the Quantum Year Book for the
various
Paterson grading levels for the year 2010 are substantially lower
than those for the year 2009without logical explanation.

Furthermore, whereas the PE Corporate Services earnings figures are
based upon annual surveys of some 800 000 employees
in South
Africa, no information was available about the source of the
figures provided in the Quantum Year Book or indeed whether
they
were based upon scientific survey.
Mr
Linde also criticised Dr Lourens for proposing that pre-accident
and with a national diploma, Evan would only have progressed
to the
level of Paterson C1, whereas the accepted rule amongst industrial
psychologists is that the ceiling would be the median
between
Paterson C3 and C4. Furthermore, it is accepted amongst industrial
psychologists that a worker would progress up the
ladder at
intervals of between 3 and 5 years, whereas Dr Lourens did not
apply this principle in his model.
During
cross-examination Mr Linde was asked whether all immediate family
career paths carry equal weight as a reliable indicator
of what an
individual’s pre-accident career path might have been. He
replied that the second generation (i.e. cousins)
is possibly more
important. When it was put to him that it is more appropriate to use
as a starting point the career path of
the parents of the
individuals concerned, Mr Linde pointed out – correctly in my
view – that the career paths of
Evan’s parents are not
necessarily a true reflection of what they might have achieved but
for the ravages of apartheid.
In this regard it is noted that Evan’s
father progressed swiftly from being employed as a labourer on the
mines to a senior
security position at the University of Cape Town.
Further there is simply no indication of what Evan’s mother
might have
been able to achieve had it not been for her becoming a
mother herself at the age of 17 years. And it was never disputed by
the
Defendant that Evan’s parents both came from very humble
backgrounds with the attendant severe financial constraints.
The
Defendant’s counsel also took issue with Mr Linde’s
prediction that Evan would have achieved earnings in the median

between Paterson C3 and C4 levels but was unable to obtain any
concessions from Mr Linde that his prediction might be incorrect.
Mr
Linde explained that since it is a general rule that an individual
with only a matric progresses to a ceiling of between Paterson
B3 to
B4 (the semi-skilled level) it was not logical that Evan, with a
tertiary education, would only have progressed to the
next level of
Paterson C1 (which is the lowest skilled level).
The
balance of Mr Linde’s cross-examination focused on the
contention that Evan still has a residual earning capacity. As
I
have said this contention was correctly abandoned by the Defendant’s
counsel in argument and thus requires no further
attention. I will
thus also not refer to it when considering the evidence of the
Defendant’s employment expert, Dr Lourens.
I
have already referred to the points of departure between the two
employment experts when considering the evidence of Mr Linde
and it
is thus not necessary to repeat them. It was difficult to follow Dr
Lourens’ evidence, both in chief and in cross-examination,

since he tended to give responses that were not relevant to the
questions put to him. However the following emerged during

cross-examination :
Applying
the “
principle of upward mobility”
it could be
expected that Evan would have achieved a level in his future career
beyond that of his parents. Dr Lourens did not
explain, either in
chief or in cross-examination, the statistical or other basis for
the aforementioned principle, nor what
it entailed. I was thus left
in the dark as to what factors are to be considered or how they
should be applied to Evan’s
particular circumstances.
Evan
would have matriculatedand completed a tertiary education at a
Technicon in the form of a diploma but not a university
degree.He
based this opinion on Evan’s parents’ actual career
paths without appearing to give consideration to
what they might
have achieved in a different political and social milieu as
outlined by Mr Linde. However for purposes of my
findings I will
accept the more conservative prediction since it also correlates
with that of Mr Linde.
Whereas
he knew that PE Corporate Services basedits survey on 800 000
employees in South Africa, he was not aware of the
basis upon which
Mr Koch compiled his earnings figures for the purpose of the
Quantum Yearbook.This notwithstanding, and although
Dr Lourens
himself also sometimes used the earnings figures given in the PE
Corporate Services Survey, he preferred to rely
on the Quantum
Yearbook as it is used “
throughout the legal profession”.
Dr
Lourens could also not explain the discrepancy between the earnings
figures given in the table in the Quantum Yearbook for
2010 as
compared with 2009, it being incongruous that the levels of
earnings for 2010 were lower than 2009.
As
to Dr Lourens’ somewhat dogged reliance on the Quantum Year
Book, in
P S van Zyl NO on behalf of S B Mitchell v Road Accident
Fund
(23.03.2012) (C) (unreported) Smit A J found as follows:
“
32.
Ms Atkins contended for the remuneration figures reflected in the
Quantum Year Book, despite having agreed in terms of the joint
minute
to the remuneration figures provided by PE Corporate Services. Ms
Atkins tried to explain her “about turn” in
her evidence
on the basis that she had made a mistake, despite the joint minute
having been compiled over a period of three days
and her own
concession that she worked with these figures very regularly, having
carried out hundreds of medico-legal assessments.
33.
Furthermore, Ms Atkins was unable to enlighten the Court as to the
basis of the figures reflected in the Quantum Year Book,
simply
stating that “in her experience the figures produced by PE
Corporate Services were too high”. However, she was
driven to
concede that PE Corporate Services bases its remuneration scales on a
scientific survey of 18% of the entire work force
in South Africa,
but was unable to provide any indication as to the extent of the
sample, if any, used by Mr Koch, the author of
the Quantum Year
Book.
”
In
weighing up the evidence of the two employment experts I am
satisfied that the most credible and reliable testimony is that
of
Mr Linde’s. He was able to advance sound and logical reasons
for his opinions; whereas the impression that I gained
from Dr
Lourens is that he had adopted a standard, conservative stance and
was not prepared to budge even when it shown during

cross-examination that his opinions were not based on sound
reasoning. I thus accept the evidence of Dr Linde above that of Dr

Lourens.
Mr
Munro, the actuary called on behalf of the Plaintiff, gave evidence
only on the two limited issues in dispute between himself
and his
counterpart Mr Kambaran. These were the differences in the
calculation of the claim for loss of earnings and the differences
in
the calculations of the claims for future medical and related
expenses. He testified as follows:
Both
he and Mr Kambaran had used the same net discount rate of 2.5% in
order to calculate the present day value of Evan’s

pre-accident earnings. The difference in the results of their
calculations was based only upon different factual assumptions
(as
provided by the parties’ respective legal teams)
concerningEvan’spre-accident income as well as mortality
assumptions. The mortality assumptions are income based and
therefore differ depending upon the level of income which is

assumed. Accordingly the only real point of departure between the
two actuaries was the net discount rate each had applied in
respect
of future medical expenses.
Mr
Munro had employed a net discount rate 0% per annum to the
discounted future medical expenses whereas Mr Kambaran had applied

a net discount rate of 1%.
Mr
Munro testified that he has had experience relating to the cost of
medical supplies and services since he previously worked
in the
medical scheme industry for three to four years designing medical
aid schemes. He has been practicing as an actuary
for 11 years.
Mr
Munro’s prediction about medical inflation in the future;
i.e. that it would outstrip normal inflation by 2.5%, was
based
upon trends over the past 30 to 40 years during which medical
inflation had outstripped normal consumer price inflation
by
anything between 0% to 4.5%. It is also based upon the trend that
with new developments in medicine, medical accessories,
services
and expenses are becoming increasinglymore expensive.
During
cross-examination Mr Munro confirmed that the debate concerning an
appropriate discount rate for future medical expenses
is one that is
wide spread in the actuarial profession. It was put to him that Mr
Kambaran disagreed with the net discount rate
applied by him since
Mr Kambaran felt that it is unsustainable in the long term for
medical inflation to keep outstripping consumer
inflation. Mr Munro
confirmed that this was where the essential difference between the
two actuaries lay. When asked about his
prediction concerning the
impact of the proposed new national health insurance on long-term
medical price inflation, he replied:
“…
the
government is trying to rationalise how much is spent on medical
because of the problem that there’s a runaway cost. As

technology improves and research and everything improves there’s
better and better ways to treat the same ailment. For example,
even
an amputated leg used to be a walking stick, then a peg leg and now
it could be a bionic or, you know, transplanted leg, for
example. But
that’s an extreme example of how costs could spiral
ridiculously, much higher than inflation. So in the past
with the
government employing medical schemes and prescribed minimum benefits
and everything that they’re putting into medical
schemes and
healthcare in South Africa, they are trying to constrain the costs so
that we can spread the benefits out across the
whole of the country.
So the new national health insurance, it probably will do a decent
job of constraining the costs at the high
end and basically putting
the value back to the lowest income earners. So again, it all depends
effectively how they work that
out. Maybe the higher income earners
are going to self-insure themselves, which means their costs are
going to be much higher relative
to the lowest income earners.
And
then how would that impact on your net discount rate that you’ve
applied?
--- I don’t think it directly has an impact,
because it’s all about costs subsidies between the wealthy and
the poor
or between the middle – you know, the market markers,
the…
So
if I understand you correctly, what you’re saying is that if
you average it all out the net effect is not going to be different?
--- Correct, yes.”
When
he testified Mr Kambaran (who has practiced as an actuary for four
years) confirmed the evidence of Mr Munro in respect of
the claim
for loss of earnings. He also confirmed where the essential
difference lay between the two actuaries. During cross-examination

he testified that the predictions concerning the inflation
applicable to medical expenses necessarily involved many
uncertainties
and that some actuaries applied a -1% discount rate
whereas Mr Munro applied a 0% discount rate and he himself applied a
+1%
discount rate.
In
considering the evidence of the actuaries it is useful to refer to
Singh and Another v Ebrahim
(SCA) (26.11.10: unreported)where
the Court held that a rate of 3.5% above the consumer price
inflation should have been applied
to items that attract medical
inflation. This would in effect amount to a net discount rate of
-1%. Mr Munro’s opinion
is more conservative in opting for a
rate of 2.5% above the consumer price inflation, resulting in a net
discount rate of 0%.
Taking into account the decision in
Singh
,andthe fact that actuaries vary in regard to the
appropriate discount rate for medical expenses from between -1% to
+1%,it is
my view that Mr Munro’s prediction of 0% is a more
than reasonable assumption in the circumstances.
I
turn to consider the various headsof damages claimed by the
Plaintiff.
LOSS
OF EARNINGS
For
the reasons set out above, I find that Evan’s pre-accident
career path would have been as follows:
Evan
would have matriculated in December 2013, and completed his
tertiary qualification in December 2016;
In
January 2017 Evan would have obtained an internship earning
R4 456.00 per month (2012 terms, R4 200.00 in 2011
terms
updated with CPI to
2012, Paterson A1
lower quartile, basic
earnings);
Evan
would have obtained employment at the Paterson B4 level with effect
from 1 July 2018, earning R202 132.00 per annum
(2012 terms,
R190 500.00 per annum in 2011 terms updated with CPI to 2012,
median, total cost of employment);
Evan’s
earnings would have increased steadily in July each year (by
R10 052.00 per annum in 2012 terms) reaching
R393 123.00
per annum on 1 July 2037 (age 42.5) (2012 terms, R370 500.00
in 2011 terms updated with CPI to
2012, Paterson C3/C4
, median,
total annual cost of employment); and
Thereafter
Evan’s earnings would have remained level in real terms until
retirement, only increasing with inflation.
Post-accident
Evan will be unemployable in the future and earn no income.
Based
upon these factual assumptions, the value of Evan’s
“
uninjured
” income is R5 241 900.00.
In
Road Accident Fund v Reynolds
(W) (18.2.2005: unreported) a
Full Bench reviewed the approach of our Courts to the question of
contingency deductions to be made
in order to calculate claims for
loss of income taking into account future uncertainties. The Court
held as follows:
“
Thus,
allowing for contingencies is one of the elements in exercising the
discretion to award damages (Cf Southern Insurance Association
Ltd v
Bailey NO
1984
(1) SA 98
(A)
116 H).
[6]
Contingencies may consist of a wide variety of factors. They include
matters such as the possibility of error in the estimation
of a
person’s life expectancy, the likelihood of illness, accident
or employment which in any event would have occurred and
therefore
affects a person’s earning capacity (Minister of Defence and
Another v Jackson supra at 34 FH; Boberg “Deductions
from Gross
Damages in Actions for Wrongful Death”
(1964) 81 SALJ 194
at
198). Contingencies may be positive or negative. Not all
contingencies are negative involving a reduction of the award. In
Bresatz v Przibilla
[1962]
HCA 54
;
(1962)
36 ALJR 212
(HCA)
at 213 (cited with approval in Minister of Defence and Another v
Jackson supra at 34 H-J and Southern Insurance Association
Ltd v
Bailey NO
1984
(1) SA 98
(
A
)
at 117 B-D) the following was said:
“
It
is a mistake to suppose that it necessarily involves a ‘scaling
down’. What it involves depends, not on considering
what the
future might have held for the particular concerned. He might have
fallen sick from time to time, been away from work
and unpaid. He
might have become unemployed and unable to get work. He might have
been injured in circumstances in which he would
receive no
compensation from any source. He might have met an untimely death.
Allowance must be made for these ‘contingencies’
or
‘vicissitudes of life’ as they are glibly called. But
this ought not to be done by ignoring the individual case
and making
some arbitrary subtraction … Moreover, the generalisation,
that there must be a ‘scaling down’ for
contingencies
seems mistaken. All ‘contingencies’ are not adverse, all
‘vicissitudes’ are not harmful.
A particular plaintiff
might have had prospects or chances of advancement and increasingly
remunerative employment. Why count the
possible buffets, and ignore
the rewards of fortune. Each case depends on its own facts.”
[7]
Although contingencies are generally taken into account when awards
of damages are quantified (SeeNochomowitz v Santam Insurance
Co Ltd
1972
(1) SA 718
(T)
723; Gillbanks v Sigournay
1959
(2) SA 11
(N)
17-8) this is not always done. In Wessels v AA Onderlinge Assuransie
Assosiasie(TPD)referred to in Corbett & Honey The Quantum
of
Damages Vol 4 A3-19 at A3-33, the Court refused to take contingencies
in respect of future medical costs into account where
although the
amount of damages, excluding loss of income, had been agreed upon,
contingencies were neither mentioned nor in issue.
“
It
ismy view that an appropriate contingency deduction to be applied to
the “
uninjured
” earnings would be 10% bearing in
mind the following positive and negative factors:
Evan’s
career path would have reached a ceiling at the level of Paterson
C3/C4 on the basis that he would have obtained
a national diploma,
which is a conservative prediction since it is premised on him
having obtained a national diploma as opposed
to a university
degree;
However,
Evan might have attended university and obtained a degree in which
case he would have reached the Paterson D band with
a commensurate
level of earnings;
All
environmental factors such as the family background, circumstances
of the extended family and work ethic of the family indicate
that
he would have been a motivated and career orientated individual;
It
was the evidence that it would have been within Evan’s
ability to have obtained a tertiary education and embark upon
a
successful career in his chosen field; and
The
ordinary vicissitudes of life such as illness, accident or
unemployment which in any event would have occurred.The Defendant’s

counsel submitted that a contingency deduction of 20% would be
appropriate since because Evan was only 10 years old when he
was
injured it is very difficult to predict what his career plan would
have been; and that because he is currently only 17
years old with
an anticipated normal life expectancy the deduction in respect of
the vicissitudes of life should be larger.
To my mind the first
element of the submission does not hold water since it is clear
from the testimony of the two employment
experts that each felt
confident in their predictions despite it being difficult to
predict an exact career path. The second
element is already taken
into account in applying the contingency deduction of 10% since in
the particular circumstances of
this case, it is really the only
negative factor.
The
deduction of a 10% contingencydeduction from the “
uninjured
”
earnings yields a net loss of R4 717 710.00 in respect of
loss of earnings.
FUTURE
MEDICAL AND RELATED EXPENSES
The
test for evaluating claims for future medical and related expenses
was stated by Kriegler J (as he then was) in the case of
Poov
President Insurance Co Ltd
, Corbett and Honey, Vol. IV page
A3-96 at 105 as follows:
“
Neither
of the two cases referred to, nor any other authority of which I am
aware, serves as authority for the proposition advanced,
namely that
an item of expenditure, in order to be recoverable, has to be
established as
a
necessity
.
The test, as I understand it and which I intend applying in this
case, is whether it has been established on the balance of
probabilities
that the particular item of expenditure is
reasonably
required to remedy a condition or to ameliorate it
.
”
(Emphasis supplied)
In
Dhlamini v Government of the Republic of South Africa
Corbett
and Honey Vol. III p 554 at 582 the Court held as follows concerning
claims for past expenses:
“
Where
… the expenditure was incurred for a different, albeit a
commendable purpose, or is out of proportion to the condition
it was
incurred to eliminate or abate, it will be irrecoverable. It will
then not be regarded as reasonable.”
In
Oberholzer v National Employers General Insurance Co Ltd
Corbett and Honey
supra
Vol. IV p A3-1, it was suggested that
a contingency deduction of 10% should be made against future medical
and related expenses.
In rejecting this argument, the Court held:
“
The
actuaries have, in their calculations, taken into account Plaintiff’s
reduced life expectancy. The only other important
factor could be a
longer period of ill-health than normally expected. There is no
evidence to suggest this and in any event if
it were to happen his
expenditure for additional nursing aids would probably rise
dramatically. In my view no deduction should
be made.
”
In
De Jongh v Du Pisanie NO
Corbett and Honey Vol. V p J2-103 it
was argued on appeal that a 20% contingency deduction should be made
against the Plaintiff’s
claim for future care. The Court held
as follows:
“
Myns
insiens is daar meriete in die verweerder se betoog. Aan die ander
kant is daar gebeurlikheid wat in die eiser se guns in aggeneem
moet
word, naamlik dat die koste verbonde aan sy toekomstige versorging
moontlik tog meer mag wees as wat by aanvaarding van die
verweerder
se model toegelaat word. In al die omstandighede dui oorwegings van
billikheid myns insiens aan dat geen aftrekking
vir gebeurlikheid
gemaak word van die gekapitaliseerde koste wat vir Rabe se versorging
voorsien word nie
.”
The
Defendant conceded that certain of the medical expenses claimed in
respect of Evan were reasonable and should form part of
the award
made in Evan’s favour;
viz
.:
a
cranioplasty (Dr Edeling) R 100 000.00
treatment
for epilepsy, costing R15 000.00 per annum with a 7.5%
probability of this being required (Dr Edeling) R 56 500.00
psychotropic
medication costing R700.00per month for life (Drs Shevel and
George) R 422 100.00
psychiatric
consultations costing R1 000.00 each, required every six
months for life (Drs Shevel and George) R 100 500.00
psychotherapy
costing R2 500.00 per session, 50 sessions over his lifetime,
soon to be five sessions every five years until
age 63 (Drs Shevel
and George) R 111 700.00
parenting
skills sessions for Evan’s parents, required monthly at
R850.00 per session (Mr Mama, the educational psychologist
whose
report was filed) R 20 400.00
surgical
correction of squint, at a cost R20 000.00 required at ages
20, 30, 40 and 50 (Dr Suttle, the ophthalmic surgeon
whose report
was filed) R 80 800.00
It
ismy view that, having regard to the evidence,the following future
expenses are reasonable and necessary (it is noted that
the
Defendant did not seriously take issue with the
quantum
of
the items themselves as claimed by the Plaintiff, but only with
whether such items were reasonable and necessary):
conservative
management of the left flat foot, costing R1 600.00 per annum
(such amount reduced as a result of surgery)
(Dr Versveld) R
86 800.00
surgery
to the left foot, costing R34 000.00 (Dr Versveld) R 36 700.00
removal
of implant from the left foot, costing R14 000.00, required in
two years time (Dr Versveld) R 15 100.00
treatment
for one major and one minor fracture in this lifetime, costing
R64 000.00 and R24 000.00 respectively requiredat
ages 50
and 55, assuming the average of the costs was occurred on each
occasion (Dr Versveld) R 78 600.00
a
case manager/occupational therapist costs, costing R550.00 per
hour, one two hour consultation, twice per annum (Ms Bester)
R
110 600.00
travel
time in respect of case manager consultation costing R550.00 per
annum twice per annum, assuming one half hour of the
consultation
(Ms Bester) R 27 600.00
travel
costs in respect of case manager/occupational therapist assumed to
be 30km per consultation at R5.00/km (Ms Bester) R
8 400.00
training
of caregiver, costing R550.00/hour, one five hour consultation in
the home per caregiver training, required every four
years (Ms
Bester) R 35 600.00
travel
time in respect of training of caregiver costing R550.00/hour
assuming one half hour per consultation (Ms Bester) R 3 600.00
travel
costs in respect of training of caregiver assumed to be 30km per
consultation at R5.00/km (Ms Bester) R 1 100.00
caregiver,
costing R2 854.48 per week (Ms Bester) R4 169 600.00
domestic
help, costing R150.00 per day, once per week, calculated over 59
weeks per annum to allow for an annual bonus and replacement
when
on annual leave, assumed to be required from age 23 (Ms Bester) R
198 700.00
assistance
with gardening/maintenance, costing R150.00 per day, one day per
month, assuming an additional R20.00 per day for
transport, and
required from age 23 (Ms Bester) R 45 700.00
learner
facilitator, costing R75.00 per hour, five hours per day, five days
per week, 40 weeks per annum until December 2013
(Ms Bester) R
117 600.00
transport
by carer, costing R5.00/km, assumed 15km/day, 30 days per month (Ms
Bester) R 755 800.00
As
to the other items claimed by the Plaintiff, my views are as
follows. There was insufficient evidence regarding the cost of

treatment by a dietician for Evan, totalling R32 600. As to the
cost of accessories claimed, namely a shower seat, grab
rail,
trolley and high chair totalling R4 600, as I understood Ms
Bester’s evidence, these had been recommended by
her not
because they were reasonably necessary but because they would merely
make Evan more comfortable. As to the additional
costs of a
caregiver totalling R503 900, this has already been adequately
catered for by having provided for the cost of
a caregiver on a
weekly basis. As to the cost of plastic surgery of R8 000, no
evidence was led by the Plaintiff. I have
accordingly reduced the
Plaintiff’s total claim for future medical and related
expenses of R7 132 600.00 by the
total of the
aforementioned items, being R549 100, leaving an amount due to
the Plaintiff in respect of these expenses of
R6 583 500.00.
GENERAL
DAMAGES
As
a result of the accident Evan sustained severe cranio-facial
injuries with a skull base fracture, cerebro-spinal fluid leak,

nasal fracture and injury to the left eye and optic nerve; a very
severe traumatic brain injury with primary diffuse axonal injury,

complicated by focal and secondary brain injury; and a fracture of
the right radius. Evan suffers from post-traumatic organic
brain
syndrome with neuropsychological- communication- and neuro
behavioural disorders; blindness in the left eye, left hemiparesis;

neuro-endocrine disorder with obesity; and disfigurement with
cranio-facial deformity and combined neurological- and psychological

mood disorder.
For
the purposes of an assessment of the quantum of general damages
guidance is sought from the decisions of our Courts dealing
with
injuries of a similar nature.
The
Plaintiff’s counsel referred me to the following authorities.
In
Monamodi v Road Accident Fund
(23.02.2007) (W)
(unreported) the Plaintiff, a recently qualified advocate at the
time of the collision, sustained severe bodily
injuries in a motor
vehicle collision comprising a severe head injury; fractured ribs;
bilateral fractures of her lower limbs;
scarring; left-sided hemi-
plegia; severe depression; and postal traumatic organic brain
syndrome. In respect of her claim for
general damages the Plaintiff
was awarded R850,000 which in today's monetary terms amounts to R1
170 000.00.
In
Cordeira v Road Accident Fund
(2010) (NGH) Quantum of
Damages, Corbett and Honey Vol. VI page A4-45, the Plaintiff, a
teenage school boy, sustained a severe
primary head injury with
intra-cranial haematomas; secondary brain injury from raised
intra-cranial pressure due to brain oedema
and intra-cerebral
haematoma. There was right-sided hemiparesis making walking
difficult and affecting speech. There were severe
neurocognitive and
neuro-behavioural deficits associated with poor memory, lack of
energy, lack of mental agility and flexibility,
speech difficulties
and inability to live independently. Future employment was limited
to a structured environment. In respect
of his claim for general
damages the Plaintiff was awarded R800 000.00, which in today’s
terms amounts to R890 000.00.
In
Zarrabi v Road Accident Fund
(2006)(T) Corbett and Honey
supra
Vol. V page B4-231, the Plaintiff, a female trainee
medical specialist, sustained a severe diffuse axonal brain injury
with severe
neuro-physical, neuro-cognitive and neuro-psychiatric
consequences; multiple facial lacerations; contusions of the chest;
rapture
of the liver; contusions of the kidneys; Crowes fracture of
the right humerus; fractures of the right radius and ulna;
laceration
of the right elbow; fracture of the right radius;
fracture of the left patella; and multiple contusions and abrasions.
The Plaintiff
suffered from intellectual impairment, personality
change, dysarthria, spasticity on the right side, loss of depth
perception,
loss of vision on the right side and lack of drive.
There were subtle speech, language and communication problems. There
were
difficulties of the executive functions, concentration, memory,
psycho-motor speed, and emotional control. Pre-accident the
Plaintiff
was a high achieving scholar, medical graduate and a
practising doctor. As a result of the cognitive and physical
sequelae the
Plaintiff would not be employed in the medical field
and would at best manage some form of employment in a sympathetic
environment
on a flexible part-time voluntary basis. In respect of
her claim general damages the Plaintiff was awarded R800 000.00,
which
currently amounts to R1 180 000.00.
In
Opperman v Road Accident Fund
(27.08.2009)(SGH)(unreported)
the Plaintiff sustained a moderately severe brain injuryas well as a
range of orthopaedic injuries,
inclusive of fractures to his left
collarbone, his left scapular, a left hip injury, left knee injury
and a neck injury. He was
able to return to work approximately 4 to
5 months after the accident. The Plaintiff suffered from
post-traumatic mental difficulties,
speech difficulties, mental
fatigue, personality change, mood disorder, chronic headaches and
pain in his neck and back. Although
able to continue working, the
Plaintiff was limited to a rudimentary position. In respect of his
claim for general damages the
Plaintiff was awarded R800000.00,
which currently amounts to R925 000.00.
In
Van Zyl NO obo S B Mitchell v Road Accident Fund
(23/03/2012)
(C) (unreported) the Plaintiff, a part-time law student sustained a
severe diffuse axonal brain injury; multiple
lacerations on the head
and face; fractures of the right tibia and fibula; and injuries to
his left arm. Permanent
sequelae
comprised chronic headaches,
fatigue, ataxia, impaired balance, right upper limb weakness,
cognitive and executive mental impairment
and neuro-behavioural
disorder. In respect of his claim for general damages Smit AJ
awarded the Plaintiff the amount of R850 000.00.
The
Defendant’s counsel referred me to the following authorities.
In
Hurter v Road Accident Fund and Another
2010 (6) QOD A4-12
(ECP) the Plaintiff (a 20 year old female student) sustained severe
bodily injuries including extensive facial
fracturing as well as
severe diffuse axonal injury to her brain which included a brain
contusion and fracture of the base of
the skull. She underwent
surgery for an open reduction and internal fixation of numerous
facial bone fractures and later underwent
reconstructive surgery. As
a result of the frontal brain injury the plaintiff was entirely
unemployable. She was awarded general
damages in an amount of
R500 000 which in current terms equates to R554 00.00.
In
Adlem v Road Accident Fund
2003 (5) QOD J2-41 (CA) the
Plaintiff, a 17 year old girl, sustained a head injury causing both
focal and diffuse brain damage
to the temporal and frontal lobes
leading to cognitive impairment, memory difficulties, lack of
concentration and attention,
impaired judgment, insight and
self-control, irritability, language and speech deficits and
impaired verbal reasoning, visio
spatial problems and some loss of
hearing in both ears. She also had significant behavioural and
personality changes as well
as persistent headaches. She was awarded
damages in the amount of R400 000.00 which in today’s
terms is R649 000.00.
In
Torres v Road Accident Fund
2007 (6) QOD A4-1 (GSJ) the
Plaintiff (a 24 year old male) sustained a severe diffuse brain
injury; soft tissue injury to the
neck; and soft injuries to the
face and chin. He had significant neurocognitive and neurobehavioral
deficits associated with
concentration, working memory, impulse
control and abstract reasoning. The Plaintiff furthermore suffered
from depression and
an adjustment disorder and he was furthermore
only limited to sympathetic employment. He was awarded R600 000.00
which equates
to R829 000.00 in today’s terms.
Lastly,
in
Megalane NO v The Road Accident Fund
2006 (5) C&B
A4-10 (W) an 11 year old schoolboy who was 14 years old at the time
of the trial suffered severe brain injury
with diffuse brain damage
in the form of a subdural hematoma resulting in cognitive impairment
characterised by poor verbal and
visual memory; poor concentration
and distractibility; impaired executive functioning characterised by
frontal lobe disinhibition
causing inappropriate behaviour; speech
difficulties characterised by dysarthria and word retrieval
difficulties; bilateral hemiparesis
with severe spasticity of all
four limbs and left facial paralysis as well as aphesis. He was
confined to a wheelchair and had
the intelligence of a young child.
In that case general damages of R1 million were awarded which
currently amounts to R1 479 000.00.
In
all the circumstances, and taking into account the facts of the
present matter, in particular that, as compared with
Van
Zylsupra
, Evan isnot only very severely brain damaged but also
severely disfigured and blind in the left eye, it is my view that an
amount
of R1 000 000.00 would be fair and reasonable
compensation for his claim for general damages.
CALCULATION
OF AWARD
Accordingly
the Plaintiff should receive the amount of R12 953 496.00
for damages sustained by Evan arising out of the
injuries he
suffered in the motor vehicle accident on 6 August 2005, made up as
follows:
future
medical and related expenses R6583500.00
loss
of income R4 717 710.00
general
damages R1 000 000.00
Sub
Total:
R12 301210.00
less
net amount received from First Defendant -R 251 445.62
Sub
Total:
R12 049764.00
costs
of curator
bonis
(7.5% of capital sum) R 903732.00
Total
R12 953 496.00
COSTS
There
is no reason whythe costs of the action should not follow the result
and that the Plaintiff should be awarded costs on a
party and party
scale, including those occasioned by the postponement of the trial
on 7 May 2012, and including the qualifying
expenses of the
Plaintiff’s expert witnesses, save in respect of the expert
dietician and plastic surgeon for reasons already
outlined above.
ORDER
94.
In the result I make the following order:
1.
The Second Defendant shall pay to the Plaintiff the sum of
R12 953 496.00 together with interest thereon at the rate

of 15.5% per annum
a tempore morae
from date of judgment to
date of payment.
2.
The Second Defendant shall pay the Plaintiff’s costs on the
scale as between party and party as taxed or agreed, such costs
to
include the qualifying expenses of the following expert witnesses:
2.1
DrH J Edeling, neurosurgeon;
2.2
Dr D Shevel, psychiatrist;
2.3
Dr C Legg, speech and language therapist;
2.4
Dr G A Versfeld, orthopaedic surgeon;
2.5
Dr J Hack, radiologist;
2.6
Ms E Bester, occupational therapist;
2.7
Ms M Coetzee, clinical psychologist;
2.8
Mr L Linde, industrial psychologist;
2.9
Mr S N Mama, educational psychologist;
2.10
Dr K Suttle, ophthalmic surgeon; and
2.11
Mary Cartwright Consultants CC, which shall include the costs of Mr A
Munro, actuary.
________________
J
I CLOETE