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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURTOF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)     REPORTABLE: NO

(2)     OF INTEREST TO OTHER JUDGES: NO

(3)     REVISED

 

CASE NO: 67627/2014

29/10/2019

 

MATABANE ELIZABETH MALEBESE                                                              PLAINTIFF

 

And

 
THE ROAD ACCIDENT FUND                                                                              DEFENDANT

JUDGEMENT

NV KHUMALO J

[1]          This is an action instituted in terms of s 17 of the Road Accident Act 56 of 1996 ('the Act') as amended, by Matabane Elizabeth Malebese, the Plaintiff, against the Road Accident Fund ("the Fund"), the Defendant, acting on behalf of her minor daughter, M[….] M[….]("MM") born on 18 July 2006, claiming compensation for damages allegedly arising as a result of injuries MM sustained in a motor collision between motor vehicles with registration [….] and [….]. Overwhelmed Swamped

[2]          The collision apparently occurred on 11 May 2013 at about 15h30 along Bloempoort Road, Groblersdal, Limpopo Province. MM, who was 6 years and 9 months old at the time, is alleged to have been a passenger in the vehicle with registration number [….] driven by Frans Mmakola {the insured driver) when it collided with motor vehicle with registration number [….] that was driven by Peter Ramaila. The collision is said to have been caused by the sole and exclusive negligence of the insured driver.

[3]          It is averred in the Plaintiff's particulars of claim as amended that MM sustained minor head and painful neck (soft tissue injury) injuries and was consequently hospitalised and treated at Philadelphia Hospital. She was transported by ambulance to Philadelphia Hospital in Dennilton, where she was admitted on 6 August 2013, (three (3) months after the accident) and received treatment of anti- inflammatory drugs, analgesics and bed-rest. As a result she was temporarily disabled, disfigured and suffered pain, loss of earnings/working capacity and amenities of life. The injuries MM sustained were serious as per s 17 (lA) of the Act and entitles her to a general damages claim which apparently is not this court's concern at the moment and accordingly postponed sine die on application by the parties.

[4]          Plaintiff alleges that as a result of the injuries sustained, MM also suffered severe pain which has abated with the passage of time. However she continues to suffer from symptomatology related to her injuries which had resulted in her dropping out of school and suffering from severe and chronic headaches. As a result she will have to retire earlier than the usual normal retirement age. Plaintiff demanded compensation in an amount R19 811 000.00 for the alleged damages of which R8 777 800.00 is for future loss of earnings.

[5]        The Fund in its Plea denied any knowledge about the accident and any liability, and put the Plaintiff to the proof thereof, pleading in the alternative that if it is found that the accident occurred and it is the negligence of its insured driver that caused the accident, it denies that MM sustained any injuries or that if sustained that such injuries were serious.

[6]        The parties indicated at the beginning of the trial, that the issue of merits has been settled on the basis that the Defendant accepted 100% liability (on the basis that the accident was caused by negligence of the insured driver) for payment of the Plaintiffs proven or agreed damages.

[7]        On the issue of quantum that remained, I was informed that only the aspect of future loss of earnings was to be adjudicated upon, in only as far as it was impacted upon by whether or not MM suffered a conclusive indication of a neuro -cognitive impairment as a result of the collision, if so the extent thereof and its sequelae, the onus being on the Plaintiff and the other aspects of quantum deferred.

[8]        The parties handed over reports of various medical experts they had instructed to consult with and assess MM, confer and report on her post-accident neuro-impairment condition, its nature and extent. The parties had agreed that the experts' reports will form part of the evidence they were to rely upon in their arguments to prove the sequelae of the injuries suffered by MM. They consequently requested that the reports be accepted in evidence without their contents being presented in oral evidence, more so the joint minutes.

[9]        The parties had also agreed that the records that consists of the Accident report, Hospital record, RAF 1 and 4 Forms, MM's school reports will also be admitted in evidence. Neither of the parties would lead oral evidence.

[10]      Plaintiff's cause of action was incomprehensible as the facts upon which the merits were settled were pleaded incoherently in the Particulars of claim and contrary to the supporting documents. It is stated therein that the accident occurred on 11 May 2013 and thereafter MM was taken to Philadelphia Hospital by ambulance where he was admitted on 6 August 2013. However the accident report records the collision to have actually occurred on 5 May 2013 at 5h45 and according to the hospital records MM was seen on 9 May 2013 and 6 August 2013.

[11]      The drivers of both motor vehicles that were involved in the collision indicated in the accident report that the insured driver veered from the right lane into the left lane scratching the left side of the other motor vehicle that was travelling on the left lane. Neither are injuries nor is MM mentioned in the accident report to have been a passenger in any of the vehicles involved as alleged in the particulars of claim. Furthermore, what is noted in the Philadelphia Hospital records that MM was seen on 9 May 2013, 5 days after the accident occurred contradicts the information completed in the RAF 4 and RAF1 Forms that the accident occurred on 9 May 2013 and MM was seen 5 days after the accident, which would have been on 14 May 2013.

[12]      In the particulars of claim the date of accident is stated as 11 May 2013 and MM to have been taken to Philadelphia hospital by ambulance after the accident whereupon she was admitted on 6 August 2013. No documents mentions MM being taken to hospital by ambulance and admitted. 9 May 2013, is according to the hospital records the date MM was supposedly first seen by the hospital. She is said to have suffered a soft tissue injury on the neck.). In both RAF Forms and the hospital record there is no mention of a complaint about the headache. The averments in the particulars of claim are therefore not supported by the documents admitted in evidence.

[13]       If the hospital record is anything to go by, it exacerbates the divergence between the particulars of claim and the contents of the documents. It is noted on the hospital record that when MM visited the hospital on 6 August 2013 she was 8 years of age and complaining of a neck pain mostly in the mornings, her condition said to be clinically stable. Brufen and a Panado was prescribed. Whilst on 9 May 2013 the hospital recorded that when MM was seen at the hospital she was 6 or 7 year old. Brufen and Panado tablets were prescribed for her. Seemingly a complaint about a headache or it occurring mostly during the night was never mentioned at the hospital.

[14]       The discrepancies between the contents of the supporting documents and the pleaded particulars, coupled with the fact that in the accident report neither was MM's presence as a passenger in any of the vehicles nor were any injuries mentioned, necessitated a thorough investigation by the legal representatives entrusted with the matter. Their failure to do so amounts to a dereliction of duty as they seem to have not been alarmed by the inconsistencies. With all the contradictory evidence in the supporting documents, the facts upon which the merits were settled are therefore not definite. The legal representatives settlement of merits under such circumstance was reckless and demonstrates the carelessness in which these matters are handled. Such lack of diligence is what leads to likelihood of bogus claims filtering through the system undetected.

[15]       In another episode of the avalanche of errors and inconsistencies, it is stated in the particulars of claim that MM was temporarily disabled and disfigured. Also that she has as a result of the severity of the injuries dropped out of school. This degree of carelessness is very disconcerting. It is common cause between the parties as is it also evident from the school reports that were admitted in evidence that the 12 year old MM is still at school and her academic performance featured as one of the main aspect to be considered to determine the issue of the impact of neuro- cognitive deficits if any \on her scholastic ability and future employment.

[16]      As indicated the issue that was to be established was twofold, that is whether the alleged sequelae (symptomology} a conclusive indication of a neuro-cognitive impairment, if so, its impact on future loss of earnings, the onus being on the Plaintiff.

 

Evidence to be considered

[17]       In support of their arguments the parties as agreed referred to the expert reports with the main emphasis on what is noted in the joint minutes of the Neurosurgeons Or T P Moja (Moja), instructed by the Plaintiff and Or J A Ntimbane (Ntimbane) instructed by the Defendant, the Clinical Psychologists Dr A Peta instructed by the Plaintiff and Dr MM Katjene by the Defendant, the Educational Psychologist Mr Matume Kumalo instructed by Plaintiff and Sunette Van der Heever by the Defendant, the Occupational Therapists A Phasha instructed by Plaintiff and K Motseto by the Defendant and finally the Industrial Psychologists E Sempane instructed by the Plaintiff and T Kalanko for the Defendant.

 

Neurosurgeons

[18]       Mr Harilal appeared on behalf of the Plaintiff and Mr Sioga on behalf of the Defendant. They presented the sequelae of the injuries by drawing my attention to the contents of the joint minutes of the neurosurgeons, Meja and Ntimbane which indicated that:

[18.1]  they agreed on a probable minor/mild head concussion having been sustained by MM since there was no loss of consciousness at any given time. Taking note that she only complained of a headache on the date of the accident and had no residual/enduring neurophysical deficits which result to a negligible/insignificant risk of developing a post late post-traumatic epilepsy. Her longevity not affected by her injuries. They deferred the opinion on her psychological state and academic ability pre post injury, and a final opinion on MM's premorbid and post morbid cognitive functions and scholastic performance to the Clinical and Educational Psychologists' valuation. Her complaint about chronic, neck pains/injury was deferred to the Orthopaedic Surgeon.

[18.2]  they were agreed that there was evidence of sustained head injury in as per available records, however also noted that there was no diagnosed or confirmed head /brain injury sustained before or after the accident, which was only to be noted if identified in the hospital records.

[18.3]  Dr Moja had assessed MM on 6 December 2014 when she was in Grade 3. The accident happened when MM was in Grade 2. In his 2014 report he referred to MM's injury as an associated mild concussive head injury. MM's mother is reported to have advised Moja that MM was taken to Philadelphia Hospital the same day of the accident complaining of headaches. She was given pain medication and diagnosed with soft tissue injuries. MM's mother also informed Meja that MM's school performance has declined. She passed Grade 2 with poor results. Meja noted that MM was showing progress at school and her longevity has not been affected by her injuries. She was treated for neck pain on 6 August 2013.

[18.4]  According to Dr Ntimbane individual report there was no complaint about the ear or a history of complaints about MM's school performance. His report refers to the claimant being a 27 year old Selina Mamokete Motlokwa who was injured on 6 November 2013 and came to him for her interview unaccompanied. MM was only 11 years old on 3 August 2017, the date of the alleged interview. Ntimbane was obviously reporting on a different person, a continuing comedy of errors. I assume when he conferred with Moja on the joint minute, he was aware that he was reporting on a child.

[18.5]  Ntimbane was of the opinion that there was no expected long term neurocognitive deficits from minor head injury.

[18.6]  They both agree to defer the final opinion on her pre and post- accident neuro cognitive functions and scholastic performance.

 

Clinical Psychologist

[19]       The Clinical Psychologists, Dr Amanda Peta and Katjene agreed that there was evidence of a sustained head injury in the accident in question as per the available records to them and at the same time noting that there was no diagnosed/confirmed head brain injury sustained before or after the accident in question.

[20]       Peta observed that MM indicated neuropsychological assessment findings that demonstrates neurocognitive deficits complicated by pre-existing cognitive difficulties, that is concentration, attention, ability working memory impaired executive function. Its noted that she reports to have done an assessment on MM on 5 March 2018. MM's mother told her that MM was unconscious following the impact and regained consciousness after a few moments on the scene. She was taken home. She experienced pain at night and was taken to Philadelphia hospital where she was treated at casualty. Post- accident complains by MM are that she is forgetful, anxious, experiences headaches, neck pain, decreased concentration span and her academic performance deteriorated.

[21]      Tests Peta conducted showed immediate memory impairment, struggling to learn new information presented to her as seen by her below average scrore, a learning curve making her learning ability over time poor. Her overall impression/clinical finding was that MM suffered a mild concussive head injury even though she had no insight to the neurosurgeon's report. She says Literature state that even mild head Injury may result in changes in neurocognitive functioning (attention, concentration, memory and or somatic symptoms like fatigue and headache and or emotional changes). Conclusion considered unreliable as the hospital records never showed a related injury. This is a literature based conclusion not backed by facts. Recovery also not considered. Effect of pain medication not considered.

[22]      Dr Katjene noted that MM remains cognitively functional but still presents with identified neurocognitive, emotional and psychological challenges/ attributes that are moderate, severe and fluctuating and likely to impact on her academic performance/progress in the long run. Dr Peta indicated that MM will benefit from intervention from an Educational Psychologist for facilitation and adjustments to the scholastic demands.

[22.1]   They both agree that no tangible evidence or pre-accident reports were available to confirm pre-existing neurocognitive challenges. MM has never repeated a grade. She presents with neurocognitive, psychological and emotional challenges/difficulties as a result of the impact of the accident related injuries with consequent physical pains, occipital post concussion headaches and consequent limitations in her post accident functioning.

[22.2]   Katjene in his report took the following conclusions into consideration, the fact that MM has unresolved emotional challenges relating to the death of her father. MM obtained a scale that places her in the superior range which is above expected limits in non- verbal reasoning ability. Working memory test placed her performance in the average range and within expected limits. He noted that MM's mother told him that MM's academic performance has declined. She tends to lose focus and concentration at school, has memory problems. Referred to literature recognizing that it says children experiencing or who are involved in motor vehicle accidents are likely to develop cognitive and behavioural problems in late childhood and adolescence as it is already the case with MM.

 

[23]      She concluded that the residual effects of the accident has affected her academic performance/learning capacity as well as behavioral, emotional and psychological levels of functioning. She has been diagnosed with a mild brain concussion but it should be noted that a minor or less severe type of brain injury can still result in cognitive, social and emotional impairments depending on the severity of the impact to the brain. The injuries have the potential to result in physical limitations with probable likelihood to impact and or limit the future occupational prospects and employability especially those requiring physical exertion.

[24]      They both agreed that the quantification of the potential pre and post-accident earnings as well as future loss of earnings be left for the industrial psychologist. Supporting the recommendation by the Educational Psychologist to work through the neuro - cognitive deficits highlight for her academic progress and post school functioning. IP to check the impact of her injuries on her employability future earning capacity.

 

Educational Psychologists

[25]       Mr Matome Kumalo and Sunette van den Heever the Educational psychologists, have noted in their individual and joint minutes that:

[25.1]   they agreed that MM was in a motor accident on 9 May 2013 according to hospital records, and that according to the RAF1 and their instruction letter, the accident was on 11 May 2013. However this is incorrect. The date of accident is indicated in the RAF4 and 1 Form as 9 May 2013 and in the Hospital record no mention is made of the date of accident.

[25.2]   MM is of average capabilities and presented with learning potential to complete grade 12. She presents with difficulties in all areas of her scholastic functioning. She suffers from recurrent occupational past concussion headaches that have adverse effect on her emotional psychological behavioral and academic functioning.

[25.3]   She also presents with neurocognitive and neuropsychological challenges with probable likelihood to impact or limit her further occupational prospects and employability, specifically those that require physical exertion.

[25.4]   Kumalo had sight of Moja's report and noted Moja's conclusion that MM suffered a mild brain injury. Both noting that Ntimbani found that MM sustained a minor concussion and that the risk of developing post traumatic epilepsy is estimated at the normal value of the population. There was no history of loss of consciousness therefore no long term neurocognitive deficit expected from the minor head injury.

[25.5]   they have noted that Motsetso an Occupational Therapist found from a physical perspective that physically MM had no fractures and displays no impairments. She will be able to engage in occupations that fall in the sedentary, light medium and heavy range.

[25.6]  Kumalo was of the opinion that post accident she had prospects of passing Grade 12 and qualify to study for a degree (NQF7). Both Kumalo and Van den Heever agreed that her post -accident intellectual potential can be estimated to fall in the average range of intellectual functioning. They noted that Peta reported a mild concussive head injury and the father's passing away in the same year in 2013.

[25.7]  They agreed that prior accident MM was of average capabilities coping with her school work prior to the accident and presented with learning potential to complete Grade 12. Considering her father passed grade 12 and was an events coordinator when he passed away in 2013. Her mother also completed Grade 12.

[25.8]   The death of her father, lack of resources and circumstances could have attributed to her under performance. Also acknowledged that post accident, a subtle fluctuation in attention and concentration could possibly have influenced her performance in higher grades as the demands of work increased. Therefore probably she would have managed to complete a diploma course depending on her interests and support.

[26]       Kumalo, had prior the joint minute assessed MM on 5 February 2015. On post scenario he recorded the accident to have happened on 5 March 2013 as informed by MM's mother. According to her mother M M, then in Grade 41 suffered from headaches mostly at night, was forgetful and her school performance deteriorating however she has not failed a grade. He indicated that tests revealed a neurocognitive deficits. Kumalo reported that her school report indicates adequate performance in all learning areas. However strangely, he recommended that she be placed in a remedial school, reporting that post accident MM's difficulty with memory and concentration will affect her scholastic performance, problems most likely caused by the accident. He recommended that MM needs placing in a remedial school so that she can learn basic scholastic skills as she is struggling to cope with her school work being slow and with poor memory and poor concentration, saying educationally she is said to have significant difficulties in all areas of scholastic functioning.

[27]      He has a view that MM was of average intellectual ability at the time of accident. Her mother had passed Grade 12 and was therefore likely that she would have progressed through high school and been eligible for tertiary either at college or university. Post­ accident he recorded that mother reported that MM Is not able to finish tasks at school and she has been called to school. Reports however indicating adequate performance in all learning areas. Level of achievement being above average from a teacher's perspective. However the addendum in 2016 refers to the Grade 4 school report indicating that she passed her grade with a 78 % mark average, showing that she did very well.

[28]      Van den Heever differs with Kumalo's findings. Van den Heever noted that Ntimbani the neurosurgeon has reported that MM sustained a mild concussion from which no significant long term neurocognitive deficits are expected and that she did not sustain serious orthopaedic fractures. Except for the subtle fluctuation in concentration that affected her short term memory her pre and post academic potential remains the same which he agrees with. She concludes that in the absence of a significant traumatic brain injury or neuro cognitive impairment MM's pre and post-accident academic potential remains the same.

[29]      As a result there is no conclusive evidence of a neurocognitive impairment that is of significant effect.

[30]      Van der Heever made her conclusions having considered the information in the medical reports submitted on behalf of MM, including hospital and experts report, supplied by the mother regarding the accident and MM's academic performance and her cognitive symptoms of being absent minded, poor concentration and performance in class. She noted that it is not mentioned in other reports that MM's father did not only study up to Grade 12 but had studied towards an LLB degree that he did not finish. He worked as an event co­ordinator for a brewery. Her mother passed Grade 12 and had enrolled for a diploma that she did not finish. The mother worked for Edgars as a service center operator until she was retrenched in 2014, she works at a day care center now. She concludes that in the absence of a significant traumatic brain injury or serious orthopaedic injuries, MM's pre and post­ accident academic potential remains the same. MM presents with a learning potential to complete Grade 12 as well as a diploma course (NQF6), depending on her environment and support . She said during assessment MM presented with a positive self-esteem and reported positive relationship with family and friends.

[31]      It should be noted that Moja and Ntimbani submitted a supplementary joint minute after being furnished with the clinical and educational psychologists joint minutes. They indicated that after considering the minute they both have no reason to disagree with both experts findings.

[32]      The gist of the Clinical Psychologists was that they agreed that as per the records now made available to them there was evidence of a head injury having been sustained in the accident in question. However also have noted that there was no diagnosed/confirmed head/brain injury sustained before or after the accident in question. They deferred the future career prospects to the Industrial Psychologist.

 

The Occupational Therapists.

[33]       Dr Mogoru for the Plaintiff in 2014 July completed the RAF 4 Form recording a soft tissue injury to the neck. He also indicated that the patient will be requiring Analgesia sometimes. The Hospital record indicate that MM received Brufen and Panado for treatment on 9 May 2013. On 6 August 2013 she went to hospital complaining only of the neck pain especially in the mornings. Only oral analgesia administered. RAF 1 completed by Dr Madula on behalf of patient indicate that she did not receive emergency treatment and that the patient reported to hospital only 8 days after the accident. No wound noted on the head or tenderness on the neck.

[34]       Whilst Phasha recorded that MM suffers from chronic neck pain and that she will benefit from use of assistive devices to facilitate spinal neck hygiene principles. Motseto opined that MM displayed no physical impairments during the evaluation and therefore makes no provision for assistive devices.

[35]       Dr Sibanyoni RAF Orthopaedic Surgeon consulted with MM on 2 March 2018 and reported that injuries sustained were a minor head injury and soft tissue injury on cervical spine. MM reported to Hospital after 5 days and after X rays no fractures were found. Discharged same day on pain medication and later on analgesia when consulted for neck pain. She complained of headaches, neck pain, being forgetful and short tempered. Noted after tests that MM has no serious impairment from injuries sustained and does not qualify under narrative test. She now suffers from chronic headaches.

[37]      Both Phasha and Motseto noted with regard to the effect on employment that when accident happened she was in Grade 2 and now in Grade 7 with good academic performance and without failure. Her mother indicated that MM's overall performance has deteriorated, her work speed affected, MM complaining of a headache at school. MM is now allowed to take her medication and nap. Her ability to compete in an open market has not been affected, she will be able to work in future until her retirement age. This opinion is subject to the Occupational therapists and Industrial Psychologists assessment. He noted that MM's complains of the headache and neck pain has not affected her daily living and has no impairment from injuries sustained.

[38]      Dr Peta neurosurgeon has diagnosed the Plaintiff with a mild concussive head injury which resulted in neurocognitive and psycho-organic changes post- accident and concludes that the Plaintiff will not be able to fully function in the same manner he would have done had the accident not occurred.

[39]      Phasha took note of Kumalo's report that pre-accident MM was probably of average intellectual ability and seemed likely that she would have progressed through high school and be eligible for tertiary education either at College or University. Post-accident, she needs to be placed in a remedial school, to be taught basic scholastic skills whereupon she will probably achieve Grade 11, slightly better scholastic skills and also practical training skills, without which which she will probably achieve Grade 9 level of education. Should she obtain Grade 11 she would qualify for studies at FET College whereupon she would be advised during vocational counselling to be trained within an occupation that requires exertion of mainly sedentary to light physical strength. Even in such environment she would probably continue to suffer loss of efficiency and productivity due to the degree of discomfort experienced in her neck. MM has indicated that she would want to be a doctor but highly unlikely with the envisaged level of education indicated by Kumalo and her performance during assessment that she will achieve grades that will allow her to follow her chosen carrier.

[40       Phasha is of the opinion if she leaves school at Grade 9, she will be able to perform work of an unskilled nature or semi-skilled once she leaves school, which need to be simple and structured. He agrees that the accident in question has had an effect on spheres of her life that is social participation, school and future training and employment prospects due to presenting difficulties.

[42]      Motseto noted that from a physical perspective MM displayed no impairments and in the current state would be able to engage in occupations in the open labour market that fall within the sedentary, light, medium and heavy classification or any occupation she so wishes. He took note that from a psycho- social perspective, the clinical psychologist have indicated that she suffers from emotional, psychological and behavioural challenges that would impact on her functioning in future.

[36]      They both noted that the Clinical Psychologist joint minutes report on MM suffering from emotional. psychological and behavioural challenges post-accident characterized by depressed mood, irritability and emotional insecurity which they agree that the psychological limitations such as social withdrawal can place significant compromise on her ability to complete school and future work ability, not as such to secure occupation, but rather to sustain occupation over a long period of time. Psychological difficulties should therefore be addressed via psychological and psychiatric intervention with expected improvements.

 

Industrial psychologist

[43]      E Sempane and T Kalanko took note of the fact that MM is reported to have experienced normal development milestones and to be of average capabilities with learning potential of Grade 12. Also that Kumalo noted that MM has potential to complete NQF 7 whilst Ms Van de Heever noted that MM had subtle fluctuations in attention and concentration that could have influenced her performance in higher grades as demands of work increased. Based on this she was expected to pass complete a diploma course depending on her interest. The availability of the educational Funds from Nefsas and other government departments considered,

[44]      Both experts agreed that with a Diploma she would have earned within 83/4 with career ceiling at the C4/S ES and C3/C4 (TK). She would have reached her career ceiling at the age of 45 and would have then enjoyed inflationary increase until he retired. Sempane opined that with a degree she could have reached her career ceiling at the 01/2 Level. Most people who have obtained tertiary studies (Diploma) normally study further to enhance their competitiveness and earning prospects. Based on that she is of the view that had she obtained her Diploma she had prospects of studying for a B Tech. With the mentioned qualification she would have reached her career ceiling at the 01/2 level. They agreed that she would have retired at the age of 60.

[45]      They noted that MM was reported to have gone back to school after 2 days of the accident and is doing well. noting her average range of intellect potential post the accident. And not agreed of her post injury cognitive functioning. Kumalo noted neurocognitive deficits particularly in the area of attention, concentration memory and processing speeds. And therefore considered a candidate for remedial school. And only with this intervention expected to pass Grade 12. With endorsement certificate NQFS and without her academic ceiling expected to reach Grade 11. Van den Heever on the other side reported the results of MM's assessment not to have revealed significant cognitive deficits part form fluctuations in concentration that affected her short term memory. Therefore her pre and post academic potential reported to remain the same.

[46]      Dr Katjene and Peta the Clinical Psychologist noted that MM presented with moderate to significant neurocognitive challenges in a number of area related to functioning. She is however reported to remain cognitively functional despite her deficits but these are expected to impact on her learning path in the long run. They further agree that she suffers from emotional psychological and behavioural challenges post-accident characterised by depressed mood, irritability and emotional insecurity. The overall agreement reached being that "with consequent physical pains occipital post concussion headaches and consequent limitations in her post accident functioning." On the other hand noting that the two were in agreement about neurocognitive deficits she presents which are expected to negatively impact on her schooling and functioning in general.

[47]      The Occupational Therapists are not in agreement with Mpho's physical residual work ability post the accident but agreeing on her psychological problems significantly compromising her ability to complete school and future work ability.

[36]      They therefore indicated that taking into account differences in the joint minutes of the Educational Psychologists and the Occupational Therapists, they were not in a position to reach an agreement with regard to MM's expected educational achievements post-accident as well as her future career and employability.

[48]      At the same time they stated that based on information mentioned it is evident that MM will not achieve at the postulated pre-accident academic level and would thus not enter the open labour market as it would have been the case pre injury. Without any agreement between the relevant experts with regard to her education post-accident and her level of physical functioning they both maintain their findings as reflected in their reports.

 

Academic reports

[49]      MM has never repeated a grade as evident from her academic records. However the term results show a fluctuating progress. She had sometimes obtained a low mark in term 1 at the beginning of the year, and at the end of the year in term 4 obtained a higher mark or vice versa, as shown by her Grade 5 results. She obtained an average of 60% in Term 1 and in Term 3 obtained 74% average. In Grade 6 she obtained an average of 62% in Term 3 and obtained 61% in Term 4. In Grade 7 her average mark in Term 1 was 57%. She has also been able to keep her marks in Higher Grades steady. In Grade 5 he got 80% for English in Term 1, Term 2 71% and Term 3 80%. For Maths in Grade 5 67% in Term 1, 84% in Term 2 and 73%, in Term 3. For Natural Sciences and Technology she got 85% in Grade 4. In Grade 5 for Natural Sciences he got 77% in Term 165% in Term 2 and 71% in Term 3.

 

The Actuarial Calculations

[49]      The actuarial report by Munro Forensic Actuaries has estimated the potential loss of income suffered by MM due to the accident based on assumptions postulated on three (3) scenarios. The first on the basis that she is unemployable now that the accident has occurred which is in line with Plaintiff's plea. And then looking at what she could have earned at a qualification of a Certificate (Scenario 1), Diploma {Scenario 2) and Degree {Scenario 3), estimated at the following amounts of RS 374 800.00, R7 702 300 and RS 129 000.00 respectively.

[50]      The actuarial has stated that they have assumed at scenario 1 that MM will have entered the labour market at Patersen level B3/B4 and would have reached a ceiling at age 45, assuming that MM would have progressed in a straight line from B3/B4 to 01/D2 at age 45. Her income it was assumed would have increased with earnings inflation until retirement at age 65. Future injured income postulated on the basis that she will not earn any income in the future with contingencies applied as usual since the RAF Amendment Act cap does not apply on this scenario. On scenario 1 the highest level I on Paterson BS/Cl for the total amount of RS 734 800.00

[51]      On scenario, 2 MM would have completed her Diploma and in 2025 her earnings being on Paterson 83/84 and in January 2050 ending on Paterson C4/CS assuming that the earnings would have increased with inflation until retirement at age 65 to R7 702 300.00. The information provided being that she has not earned an income and will not earn any income in the future. The amount therefore constituting the loss of income. The cap is applicable but regarded as not to have any impact.

[52]      On scenario 3, its calculated on the basis that after completing her matric in 2023 she will have completed a degree in 2026 and start working in 2027 on Paterson 83/B4 and until August 2051 on Paterson D1/D2 earning an income of RS 129 000.00. The RAF to affect this scenario contingencies should be applied before cap as per Sil vs RAF.

 

ANALYSIS

Whether the Plaintiff has proven that MM's chronic headaches a consequence of the injury that was sustained as a result of the accident and the symptomology allegedly caused thereby, that is, concentration, stress, loss of memory neurocognitive functions to impact on her capacity to earn.

[53]       In the decision of Southern Insurance Association v Bailey NO 1984 (1) 98 AD at pp113 to 114C-D. Two approaches were identified that can be used to determine future loss of earnings, by Nicholas JA:

"One is for the Judge to make a round estimate of an amount which seems to him to be fair and reasonable. That is entirely a matter of guess work, a blind plunge into the unknown. The other is to try to make an assessment by way of mathematical calculations, on the assumptions resting on the evidence. The validity of this approach depends of course upon the soundness of the assumptions, and these may vary from the strongly probable to the speculative. It is manifest that either approach involves guesswork to a greater or lesser extent."

 

[54]       Notwithstanding either of the mentioned approaches involving some extent of guess work, the court still has to be persuaded by the evidence presented to it which therefore has to be credible in order to lead to sound assumptions. The facts therefore upon which the expert witness expresses an opinion must be capable of being reconciled with all other evidence in the case. An opinion to be underpinned by proper reasoning, must be based on correct facts. Incorrect facts militates against proper reasoning. An analysis of the correct facts is paramount for proper reasoning, failing which the court will not be able to properly assess the cogency of that opinion. An expert opinion which lacks proper reasoning due to incorrect facts having been relied upon, is not helpful to the court. {See also Jacobs v Transnet Ltd t/a Metrorail [2014) ZASCA 11 113; 2015 (1) SA 139 (SCA) paras 15 and 16; see also Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft Fur Schadlingsbekampfung mbH 1976 (3) SA 352 {A) at 371F.

[55]       The claimed damages are assessed from a context of what is pleaded in the particulars of claim reconciled with the evidence of the experts, the records and any documentation the experts relied upon. Plaintiff had averred that as a result of the injuries sustained, MM suffered, severe pain which has abated with passage of time. She however continues to suffer from symptomatology (clinical evidence) related to her injuries. As a result thereof MM dropped out of school. Plaintiff alleges that as a result of the severe headaches MM wilt also have to retire earlier than usual normal retirement age. Those are the facts upon which Plaintiff's loss of income claim is based and were to proven.

[56]       The averments in the particulars of claim are not reconcilable on their own and also with all the other evidence in the matter. It is also common cause that the allegation that MM dropped out of school is incorrect.

[57]       According to the Plaintiff's particulars MM's pain has abated with time. Notwithstanding the Plaintiff's averment to that effect, it is still averred that MM suffers from severe chronic headaches, such that she will have to retire earlier than the retirement age. The Plaintiff has not declared any other time that MM has sought medical attention or intervention for the alleged ailment. She has been seen at the Philadelphia hospital only on two occasions in 2013 following the accident. It is probably due to the fact that the pain has abated with passage of time.

[58]       All the experts, besides relying on the accident and medical reports of the claimants, depended on the report received from MM's mother on the injuries MM sustained during the accident, the nature and extent thereof and the present state of MM's health. She therefore furnished the experts with key information that was supposedly lacking in the accident and or hospital records which they needed to consider when formulating their opinions. Not only is the evidence hearsay but it is also inconsistent and irreconcilable with the other evidence.

[57]       The neurosurgeons completed their individual and joint reports based inter alia, also on the information they allege was furnished to them by MM's mother. She had reported to some of experts that on the date of the accident MM complained of a headache. She told Dr Meja in 2014 that MM was taken to Philadelphia Hospital on the date of the accident complaining of a headache where she was given pain medication and diagnosed with soft tissue injuries. However in the hospital record there is no mention of MM having visited the hospital on the date of the accident. According to the hospital record MM was seen 5 days after the accident. In the particulars of claim MM is said to have been seen and admitted only on 6 August 2013. In the circumstance where there is no reference to a passenger or injuries in the accident report, any suspicion cast on the credibility of the hearsay evidence of MM's mother is merited. Consequently assumptions made reliant thereto cannot without any substantiation or corroboration be regarded as reliable.

[58]       The neurosurgeons conceded that on the basis of the information, a minor/mild head concussion was probable, however still significantly they cautioned that it was inconclusive, since they could not find a related diagnose or confirmation of a head/brain injury sustained during or after the accident, except for the report by MM's mother that MM complained of a headache on the date of accident which seemingly informed the neurosurgeon's opinion that MM sustained a possible concussion since there was also no loss of consciousness at any given time. Both experts nevertheless agreed that there was evidence of sustained head injury in as per available records, and to the presence of neuro-active and neuro-physiological difficulties in MM's post- accident functioning resultant from impact of accident. The assumptions are clearly based on the incorrect information upon which the opinion is made.

[59]       It is significant that the same two experts concluded that she had no residual /enduring neuro-physical deficits which therefore results to a negligible/insignificant risk of developing a late post-traumatic epilepsy, making it therefore less probable that the neurophysiological deficits will last and if they do, that they will play any significant role in the reduction of MM's capacity to earn.

[60]       On the other hand MM's mother gave Peta, the clinical psychologists, a different report to the one she made to Meja. She told Peta that MM was actually unconscious for a few minutes on the scene, following the impact. She was taken home after she regained consciousness. At night she experienced pain and was taken to Philadelphia hospital where she was treated at casualty. She was never admitted. The alleged MM;s momentary loss of unconsciousness at the scene was not reported or recorded in the accident or hospital record and not mentioned to other experts, nor was the fact that she was brought to hospital on the night of the accident or a day thereafter. The hospital instead recorded her visit to have been only on 9 May 2013 and painkiller tablets prescribed for her. There is no reference to her falling unconscious being involved in an MVA.

[61]       When Peta considered MM's post- accident complains as forgetfulness, anxiety, experiences headaches, neck pain, a decreased concentration span and deterioration in academic performance, she said she observed that MM had indeed concentration problems and showed fatigue. She said the tests conducted showed immediate memory impairment, struggling to learn new information presented to her making her learning ability over time poor and her speech flawed. Showing signs of a depressed mood. Her overall impression/ clinical finding was that MM suffered a mild concussive head injury. Based on literature, she opined that even mild head injury may result in changes in neurocognitive functioning. At the same time reporting that the neuropsychological assessment findings demonstrates neurocognitive deficits complicated by pre-existing cognitive difficulties.

[62]     A conclusion of a mild concussive injury cannot be reliable as the hospital records never showed a related injury and the conclusion that it causes changes in neurocognitive functioning is literature based and not backed by facts. Recovery and effect of pain medication not considered. Peta said Literature states that even mild head injury may result in changes in neurocognitive functioning (attention, concentration, memory and or somatic symptoms like fatigue and headache and or emotional changes). The conclusion is unreliable as the hospital records never showed a related injury. This is a literature based conclusion and not backed by facts. Recovery also not considered, plus the effect of pain medication not considered.

[64]      Katjene considered the fact that MM has unresolved emotional challenges relating to the death of her father which could have contributed to her bad performance in Grade 2. MM's mother's hearsay evidence that overall she was not doing well at school and tends to lose focus and concentration at school, has memory problems was also considered contrary to what the teachers have said about MM. Besides being congratulated for the good work she managed to get very high marks or meticulous achievement in sum of the subject, specifically maths, social sciences and technology and English. Also the fact that she obtained a scale that places her in the superior range which is above expected limits in non- verbal reasoning ability. Working memory test placed her performance in the average range and within expected limits. Both clinical psychologists agreed that she remains cognitive functional however with moderate to severe fluctuating cognitive attributes that may impact her in the long run even though so far she has never failed a grade.

[65]       The possibility of physical limitation as a sequelae of the injuries sustained was not insisted on by the parties. They both agreed that no tangible evidence or pre-accident reports were available to confirm pre-existing neurocognitive challenges. Van den Heever noted that Ntimbani the neurosurgeon has reported that MM sustained a mild concussion from which no significant long term neurocognitive deficits are expected. She thereby concluded that in the absence of a significant traumatic brain injury or neuro cognitive impairment MM's pre and post-accident academic potential remains the same. It will probably deteriorate as the workload increases in high grades. This is supported by the actual report. MM has consistently kept the 70 % average and in one or two instances gone below that mark. Van der Heever further reported that MM during assessment presented with a positive self-esteem and reported positive relationship with family and friends and also presents with a learning potential to complete Grade 12 as well as a diploma course (NQFG), depending on her environment and support. Her father having registered for a law degree that he did not finish, similarly with her mother who did not finish her Diploma. Other causes also considered.

[66]       Kumalo reported that her school report indicates adequate performance in all learning areas. However strangely, he recommended that she be placed in a remedial school, reporting that post accident MM's difficulty with memory and concentration will affect her scholastic performance, problems most likely caused by the accident. It is however not conclusive that MM suffered any brain injury at all and if so, it must not have been of any major concern that it can be a basis on which to expect intellectual or cognitive impairment or anything that would affect her schoolwork or sustain a claim for loss of earning potential.

[67]      Considering Phasha's opinion made after comparing the reports by the other experts was that MM will be able to perform work of an unskilled nature or semi-skilled once she leaves school, which need to be simple and structured. Also that the accident in question has had an effect on spheres of her life, that is, social participation, school and future training and employment prospects due to presented difficulties.

[68]      Motseto noted that from a physical perspective MM displayed no impairments and in the current state would be able to engage in occupations in the open labour market that fall within the sedentary, light, medium and heavy classification or any occupation she so wishes. He took note that from a psycho- social perspective, the clinical psychologist have indicated that she suffers from emotional, psychological and behavioural challenges that would impact on her cognitive functioning in future. The severity of the impact not illustrated.

[69]      The Occupational Therapists are not in agreement with MM's physical residual work ability, post-accident but agreeing on her psychological problems significantly compromising her ability to complete school and future work ability. They therefore indicated that taking into account differences in the joint minutes of the Educational Psychologists and the Occupational Therapists, they were not in a position to reach an agreement with regard to MM's expected educational achievements post-accident as well as her future career and employability.

[71       At the same time they stated that based on information mentioned it is evident that MM will not achieve at the postulated pre-accident academic level and would thus not enter the open labour market as it would have been the case pre injury. Without any agreement between the relevant experts with regard to her education post-accident and her level of physical functioning they both maintain their findings as reflected in their reports.

[72]      I do not agree with the submission on behalf of the plaintiff that the minor child faces a long and unsure future regarding her studies and subsequent employment. I tend to agree with Van den Heever, especially where there is neither conclusive evidence of sustained head injury such being based on hearsay and inconsistent evidence, nor is there conclusive evidence of a neuro-cognitive impairment that is of significance impact, that no significant long term neurocognitive deficits expected even from the probable mild concussion except for the subtle fluctuations in concentration, which may affect MM's short term memory. The pre and post academic potential remains the same.

[73]      As a result where there is no conclusive evidence a much higher post morbid contingency should be applied to allow for just compensation.

[74]      As it became apparent the point is that MM has not dropped out of school and in actual fact she is academically not doing too bad, as she has never repeated or failed a grade. In reading all the reports it is also apparent that it cannot be said that she is of average intellect as a result of the sequelae as from the latest joint minute. The experts have noted that her ability to compete in an open market has not been affected, she will be able to work in future until her retirement age. He noted that MM's complains of the headache and neck pain has not affected her daily living and has no impairment from injuries sustained.

[75]       In Holmes J in Pitt v Economic Insurance Co Ltd 1957 (3) SA 284 (D) at 287E-F that:

"[T]he court must take care to see that its award is fair to both sides - it must give just compensation to the plaintiff, but it must not pour out largesse from the horn of plenty at the defendant's expense."

I am also cognisant of the view expressed in Hulley v Cox 1923 AD 234 at 246: "we cannot allow our sympathy for the claimants in this very distressing case to influence our judgment".

 

[76]       It must be borne in mind that the amount of any discount varies according to the circumstances of each case. It clearly is evident that the rate of discount cannot be assessed on any logical basis because the assessment, in the main, is arbitrary and depends on the trial Judge's impression of the case. (See: Legal Insurance Company Ltd v Botes 1963 (1) SA 608 (A) at 614F and Van der Plaats v South African Mutual Fire and General Insurance Company Ltd 1980 (3) SA 105 (A) at 114-115). Windeyer J, in Bresatz v Przibilla [19621 HCA 54; (1962) 36 AUR 212 (HCA) at 213 stressed that each case depends upon its own facts. According to the Judge "all 'contingencies' are not adverse": All "vicissitudes" are not harmful.

Indeed the circumstances of cases differ and this is a very important consideration."

[77]      Relating to the question of sustaining a head injury on the date of accident, it is apparent that there was no diagnosis of a head injury sustained by MM on or after the date of the accident. The hospital she visited which according to the mother might have been on the same day did not record such an injury therefore remains a speculative conclusion that due to her reporting to hospital a few days thereafter suffering from a headache, which was 5 or 6 days after the alleged accident has occurred, she must have indeed suffered a head injury. It also cannot be classified as a severe head injury if it only manifested days after the accident which logically could only be a mild concussive injury. The poor documentation on hospital records and the absence of adequate medical expert reports, might make this an unreliable conclusion as per Kalanko's opinion.

[78]      The Industrial Psychologist was also of the opinion that MM's future earnings might be diminished however she is expected to continue studying with the possibility of being employable, albeit with physical and or cognitive limitations owing to the injuries sustained. He recommends to minimise the risk that it be dealt with by means of a relevant post-accident contingency percentage..

[78]       Taking all the aforementioned circumstances of the Plaintiff as narrated in the health and medical specialists' reports, the uncertainty about the alleged injury that supposedly have caused a degeneration of her neuro-cognitive functioning and the speculation about the possibility of her not reaching her potential, it would be fair to take the actuarial calculations by Munro on the postulation relating to Scenario 1 of the Certificate qualification level and apply a 70 % post morbid contingency.

[79]       In the result the following order is made:

1.            The Defendant is to pay a sum of R1 360 440 (One Million Three Hundrend and Sixty Thousand and Four Hundrend and Forty Rand) for loss of future earnings;

 

 

 

N V KHUMALO J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

 

 

 

 

On behalf of Plaintiff:

Instructed by:                   MPHELA & ASSOCIATES ATTORNEYS

Tel: 012 7712433

Ref: MMM/G1027/MN

 

On behalf of Defendant:

Instructed by:                         DIALE MOGASHOA ATTORNEYS

REF:                                        NMMUNYANGANE/MRM/RAF/M1653

 

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