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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)      REPORTABLE

(2)      OF INTEREST TO OTHER JUDGES

(3)      REVISED.

CASE NO: 66368/11

19/6/2018

 

In the matter between:

 

VILJOEN ADVOCATE A. N. O.                                                                              PLAINTIFF

In her representative capacity as the

Cutrix ad litem to HEUER; SKYE

 

And

 
THE ROAD ACCIDENT FUND                                                                              DEFENDANT

 

JUDGMENT

NKOSI VRSN AJ

INTRODUCTION

1.          The Plaintiff, an adult woman was injured in a motor vehicle collision on the 26^th of February 2009 at the age of 16 years old (currently aged 24 years old). She was doing grade 11 at the time. The collision is the subject of this action.

2.          The proceedings were mechanically recorded and this judgement is not meant to be a transcript of the proceedings.

3.          The issue of liability became settled on the basis that Defendant is liable to compensate Plaintiff for 85% of her proven damages consequent upon the injuries sustained by the Plaintiff.

4.          Defendant was ordered to make an interim payment of R420 000-00 to the Plaintiff on the 6^th of March 2013.

5.         The action returned to trial on the 13^th of February 2018 being previously postponed to appoint Defendants experts, secure joint minutes and the appointment of a curator ad litem.

 

A.          ISSUE TO BE DECIDED

Whether the Defendant is fully liable to compensate on 85% of the settled level of liability and whether the Plaintiff had pre-existing conditions affecting a total liability of 100%. The court has to determine the quantum resulting from her injuries.

 

B.          WHO BEARS THE ONUS OF PROOF?

Plaintiff had a duty to prove her case on a balance of probabilities and to disprove the issue of pre-existing conditions prior to the collision.

This required the Plaintiff to lead relevant and admissible evidence to discharge her onus.

Such onus came through exchanged documents and joint-minutes served and filed of record and accepted by the parties as part of the court proceedings.

Oral evidence from the various experts formed part of the record.

 

BRIEF BACKGROUND OF THE ACTION

6.         The plaintiff had suffered a brain injury and suffered orthopedic injuries during the collision hence the appointment of Advocate Aliza Viljoen as curatrix and litem for her and the proceedings were further conducted in the name of the advocate.

7.         It is common cause that the Plaintiff was subsequently admitted to St. DOMONIC Hospital in East London and to a Private Hospital shortly thereafter.

8.         On her discharge from hospitalization she continued with her studies and eventually passed her matric and obtained certain distinctions but never progressed in her studies towards and a Bachelor of Laws (LLB) degree which she commenced in the year 2011 at the University of Fort Hare passing only a few subjects.

9.          It was submitted that she commenced an employment in an administrative capacity at Blue Lagoon Hotel in East London.

10.       The point of dispute is centered around the Plaintiff's brain injury in determining her loss of earning capacity. The essence of the dispute is between the various experts relating to the severity of the brain injury suffered by the Plaintiff.

11.        The defendants experts had a different view on the brain injury as a cause of the reported sequelae and raised a point of pre-existing emotional difficulties and liabilities for the Plaintiffs current condition which is disputed by the Plaintiff.

12.       The Plaintiffs submission was that she suffered a severe traumatic organic brain injury and it was at this level whereas determination of Quantum remained unresolved after the settlement of liability. This led to the delineation of issues and both parties agreed that the only issue of dispute relates to the severity or influence of the brain injury on the Plaintiffs functioning and as a resultant cause for loss of earning capacity.

13.        The Plaintiff adduced evidence in respect of quantification of damages and the Defendant did as much as well for the court's consideration thereof.

14.        The present action has been instituted against the Defendant merits being conceded and the parties had to rely on experts reports and joint-minutes thereof:

14.1.    Orthopedic surgeons joint minute dated the 24^th of February 2016;

14.2.    Occupational therapists (joint minute dated the 26^th of February 2016);

14.3.    Neurosurgeons (joint minute dated the 06^th of June 2016);

14.4.    Educational Psychologists (joint minute dated the 17^th of May/ 25^th of July 2016);

14.5.    Clinic Psychologists (joint minute dated the 14^th of December 2016);

14.6.    Industrial Psychologists (joint minute dated the 09th of February 2017).

 

15.       Plaintiffs claim is based on Dr. Edeling's opinion which is already on record and had extensively highlighted his opinion as an expert and subjected to normal cross­ examination.

16.       The evidence of Dr. Edeling is countered by Dr. Moja for the Defendant whose opinion was that:

16.1.     The Plaintiff suffered a mild diffuse brain injury (concussion) with a retrograde amnesia only and that her symptoms were likely due to post traumatic stress and anxiety disorder;

16.2.    That there were no significant residual neurocognitive deficits nor neurophysical; deficits or evidence of structural brain damage;

16.3.     The Plaintiff remains educable and employable in future and that the risks of epilepsy are negligible;

16.4.     There was no contrary view that she could not be educable in future nor employable as she is currently employed;

 

17.       What is vividly clear is that both neurosurgeons could not agree on all aspects and notably agree that Plaintiff presented with a mood disorder after the collision being moderate depression and a social anxiety disorder with irritability, impulsivity, decreased frustration; tolerance and situational anxiety as well as post -traumatic disorder.

18.       The Educational Psychologists on behalf of both parties agreed, in their joint minutes that the pre-collision was at least of average cognitive potential and after the collision, she obtained her matric with distinctions. The Defendant's Educational Psychologist was of the opinion that the sequelae of the collision left the Plaintiff less resilient to cope with her tertiary studies or in the work environment, and opined that Plaintiff required urgent psychiatric treatment and psychotherapy to improve her emotional functioning and psychiatric disorders.

19.       The Industrial Psychologists, for the Plaintiff, opined as follows:

19.1.             Pre-collision the Plaintiff would have been able:

(a.) Progress to LLB degree by the end of the year 2014;

(b.) Join the open labour market at the median of Patterson B4 total package;

(c.) Progressing in real line increases to Patterson D1 median package by the age of 45;

(d.) Increasing subject to inflation up to retirement age of 65.

 

19.2.             Post- collision her actual earnings were as follows:

(a.) Commenced employment in October 2013 and earned R5 000-00 per month until June 2014,

(b.) Between July 2014 to November 2015 the Plaintiff was employed and regained employment in December 2015 earning R7 000-00 per month at the Blue Lagoon Hotel;

(c.)  And between March 2016 to August 2016 she earned R7 250-00 per month which increased to R9 700-00 per month.

 

20.       It was submitted, on Plaintiff's behalf, that she will gradually become unemployable in the open market in accordance with the opinion of Dr. Shevel, one of the experts whose opinion is on record that he made an independent psychiatric sequela which is directly associated with organic brain syndrome suffered by the Plaintiff during the collision with is consistent with frontal lobe dysfunction.

21.       Counsel for the Plaintiff further submitted that Plaintiff's submissions are the description of the brain injury which is of qualification but the presentation and severity/influence of the sequelae of the injury sustained in respect of qualification of damages are permanent and irreversible in accordance with Dr. Shevel's opinion:

21.1.   That the diagnosed frontal lobe dysfunction includes detached attitude decreased insight into her condition, lack of motivation and drive and a lack of goals and direction;

21.2.    That during consultation with the Plaintiff and Samantha reported to him that pre-collision she was a happy and normal individual with a drive for life and an interest in developing her life and future;

21.3.    His findings that the injury is the cause of her conditions and the psychotropic medication administered to her will assist her but not curative.

 

22.        Her evidence could not be taken any further.

23.       Towards the end of the trial the parties agreed that evidence by Dr. Peter Woods would be presented on affidavit as he could not be available on the dates set for the trial:

23.1.   He confirmed to have consulted with Skye Hener, the Plaintiff, on the 16^th of February 2015 at St. Marks Clinic in East London:

23.1  She was diagnosed with social anxiety disorder, generalized anxiety disorder and unspecified depressive disorder and this could not help this matter any further.

 

24.        CONSIDERATION AND WEIGHING OF EVIDENCE AND SUBMISSIONS

24.1      The evidence presented and the submissions made by both counsel and their experts have been systematically considered. I must commend the valuable assistance from both counsel.

24.2     The factual and expert testimony form the basis of the courts consideration of all clinically and/or scientifically proven facts by the experts:

 

FACTUAL EVIDENCE: SAMANTHA HEUER

24.3      Samantha experienced the memory loss of the patient first hand when the patient could not recall a visit at the hospital on the day of the incident interrupted by a mere smoke break. Samantha also noted that the patient acted inappropriately, chatty, giddy and un-assumed by her injuries.

24.4      The evidence of Samantha remained completely factual and objective when she gave clear evidence that she was aware that Devon terminated his university studies, was not aware of the reason for such termination and that Devon simply elected to go to the United Kingdom at the time.

24.5      Devon and the patient were born from their mother's marriage to her second husband whom Samatha has accepted as her true father. Despite the divorce of their mother from her second husband the siblings retained a healthy relationship with their mother and are still a close-knit unit despite residing in different parts of South. I must mention that referral to Devon could not help the hearing in the determination of quantum.

 

THE NEUROSURGEONS

24.6     The Defendant raised criticism of the diagnosis by Dr Edeling in respect of the severity, nature and extent of the brain injury as Dr Edeling diagnosed the patient with a primary diffuse and a secondary focal brain injury in the absence of a CT or MRI scan.

24.7     The obvious clinical pertinence of this methodology of diagnosis in respect the outcome of the brain injury was comprehensively explained by Dr Edeling. He considered the complete medical records, the factual evidence regarding presentation of the patient pre and post collision as well as ante and post collision amnesia and on this body of evidence concluded that the patient suffered a severe brain injury.

24.8     The evidence of Dr. Edeling has a foundation in proven clinical expertise, logical reasoning, objective facts and a proper assessment of the nature and extent of the amnesia and eventual outcome of the brain injury.

His methodology is logical, factually and clinically defendable, founded in basic and obvious reasoning and clinically sound. Plaintiff 'submission was that no criticism can be drawn on the credibility or opinion or Dr Edeling.

This view was objectively considered as well but not in isolation of Dr Moja 's credibility as a specialist.

24.9     On the contrary, Dr Moja's methodology and evidence was confirmed to be based upon a single diagnostic fact, being assessment of the Glassgow Coma score at the time of admission alone.

24.10  Dr Moja disregarded the subsequent notes of a nurse in respect of the neurological status of the patient completely, failed to explore or consider issues in respect of amnesia during assessment, and when confronted with the factual evidence in respect of severe presentation of the amnesia, on cross-examination, his view was that the evidence did not exist.

24.11   Dr Moja had to, but failed, to concede that the brain injury presents as serious as a result of the reported amnesia and his stalwart denial is nothing but flawed and clinically unsound. His attempts to take issue with the factual evidence pertaining to amnesia (correctly put to him during cross examination) confirms his obvious bias and attempts to disguise the stark probability of the diagnostic evidence by Dr Edeling in respect of the nature and extent of injury.

24.12   Dr Moja's approach to diagnosis of the severity of the brain injury (demanding radiological assessment) is not reasonably considerable. .It was submitted that his opinion can safely be dismissed and that the Plaintiff has proven on a balance of probability that the diagnosis by Dr Edeling should be accepted which I agreed with.

 

THE PSYCHIATRISTS

24.13   Criticism levied by the Defendant in respect of Dr Shevel was misplaced, as Dr Shevel made an independent diagnosis of the extent and severity of the impact of the brain injury in the absence of medical reporting from the neurosurgeons at the time.

24.14   Dr Shevel is completely qualified and competent in concluding a diagnosis that the patient suffered an organic brain injury with serious neuro­ psychiatric consequences as a result of the collision.

24.15   His evidence is particularly valuable in respect of the post collision outcome and confirms in all respects that the injury presents as serious in all aspects of the patient life and employment. The neuropsychiatric consequences of the brain injury are most debilitating and are the greatest obstacle in the Patient's future life and employment. The neuropsychiatric consequences of the brain injury are most debilitating and are the greatest obstacle in patient's future life and employment.

24.16   The evidence of Dr Shevel is not only telling in respect of causation and severity of the brain injury, but most particularly important in respect of assessment of the patient's residual capabilities in all spheres of basic living and employment.

24.17   The evidence that the neuropsychiatric deficits are permanent and can only be controlled to be very limited extent confirms that stark reality and undisputed opinions that the patient will require assistance in all spheres of living or the balance of her life.

2.18    The evidence of Dr Shevel is probable and credible in all respects as the sequalae predicted by Dr Shevel have already materialised in the patient's life through psychiatric admission and diagnosis by Dr Woods, lack of insight and inability to accept responsibility for tasks of basic living and employment as confirmed by the other experts.

24.19   The court accepts that Dr Shevel is correct in his opinion that the patient will not be able to sustain her levels of employment beyond ten years.

 

SPEECH AND LANGUAGE PATHOLOGISTS

24.20      The Defendant could not agree much with Ms Hattingh.

24.21      Her evidence was not diagnostic but confirmatory of the expected and anticipated sequalae of the brain injury and also confirmatory of the seriousness of the brain injury in respect of the language profile.

24.22      Her undisputed evidence was that the speech and language profile of the patient confirms the nature and extent of the severity of brain injury as identified by the neurosurgeons and psychiatrist (the diagnosed injury and prognosis).

24.23      As such, her evidence is not only predictive of the speech and language difficulties which the patient will encounter as a result of the collision and the injuries sustained during collision, but also renders credible corroborative evidence in respect of the diagnosis and outcome made by the Neurosurgeon and Psychiatrist.

 

THE CLINICAL PSYCHOLOGISTS

24.24      The particular similarities in respect of neuropsycological testing found by Mr Roper and Mrs Rice on behalf of the Plaintiff were peculiar. In this regard, Mr Roper even found a higher level of neuropsyhcological fallout and sequalae than that assessed by Mrs Rice.

24.25      There were no serious differences in the opinions of the clinical Psycologists pertaining to the identification and presentation of the neuropsychological test results. The primary difference between these psychologists related to the eventual outcome. It is here where Mr Roper moved outside of his sphere of expertise, but Mrs Rice gave evidence which was hugely objective and of great value, as she explained that it is the injury to the brain and more particularly the psychiatric sequalae of the brain injury which left the patient in the position where she finds herself.

24.26      Mrs Rice did not attribute any sequalae to the pre-existing psychological issues pertaining to the parent's divorce and the mother's diagnosis with cancer, while Mr. Roper gave a lot of attention to these two issues.

24.27.    Although the evidence by Mr. Roper identifies psychological issues which existed at the time of collision, he could not attribute, even even on a balance of probabilities, to which extent any psychological issues did would have contributed to the Patient's outcome.

24.28.    Unfortunately, Mr. Roper did not come across as an objective witness as he did not give an opinion which was aimed at assisting the court. Instead, he veered into an un-defendable diatribe attempting to protect a conclusion that the Patient would have been in the very same position despite the collision.

24.29.    It was only after he was cautioned in this regard during cross-examination, that he said that he does not exonerate or exclude the influence of the collision and the injuries from his opinion, but simply remains of the opinion that psychological vulnerabilities would have presented in some way, and that the psychiatric vulnerabilities and sequalae can be treated.

24.30.    It is exactly here where his evidence became unrealistic and improbable as he ventured out of his field of expertise, in respect of the diagnoses of the seriousness of the brain injury and the psychiatric sequalae of the brain injury.

24.31.    Eventually Mr. Roper could simply not explain any causative link between the psychological vulnerabilities and the presentation of the brain injury, and in fact agreed during cross examination that the impact of the brain injury was the causative watershed event and could never be ignored or underestimated.

 

THE EDUCATIONAL PSYCHOLOGISTS

24.32.       The Educational Psychologists agreed in their joint minute and during their evidence that pro-collision, the Patient would have obtained a four-year degree and/or an LLB and that post-collision, the Patient is left with NQF4 qualification. This agreement was already reached during the joint minute.

24.33.       Mrs. Moller gave convincing evidence that any traumatic incidents in the history of the Patient will have an influence on her future performance, but also (realistically and objectively) conceded that the influence, nature and extent of the psychological predipositions/facts are unknown and cannot be quantified.

 

CONCLUSION

24.34       The permanent unfortunate effect of the brain injury (causation)has been proven on a balance of probability. As set out in the Plaintiff's primary heads of argument, causation should be determined on a balance of probabilities.

24.35.       Qualification as opposed to caution is done on the best available evidence and does not carry an onus but requires the court to assess the available evidence and conclude thereon, without accepting the least favourable conclusion· for the Plaintiff.

24.36.       The influence of the parent's divorce and the mother's cancer should be seen and included in any provision for normal contingencies as the Defendant has not been able to show how or where same would have impacted in loss of earnings or earning capacity.

24.37.       As the Defendant's heads of argument do not address any post-collision scenarios of quantification, it is submitted that the post collision scenario predicated by Dr. Shevel, the Educational Psychologist and the Plaintiff's Industrial Psychologist has become undisputed and should be accepted for which court agrees.

24.38.       Pre-collision the Defendant argues that the Plaintiff would have, at best passed matric, plus a diploma. This basis of qualification is unfounded and not based upon any of the expert or factual evidence.

24.39.       The Plaintiff submits that she has shown, on a balance of probabilities that the collision and the injuries sustained during the collision, as well as the sequelae which emanates from the injury, have caused a severe and substantial curtailment and reduction in the Patient's potential, career prospects and earnings.

24.40.       Plaintiff submitted that post collision the Patient is employed in a sympathetic and tolerant environment, where she is not achieving in all of the required outcomes of performance. The evidence confirms that the Patient requires constant management, care and managerial involvement in her day-to-day living and work.

24.41.       The Patient will not be able to sustain her employment in the long term. As a result, the Patient will never progress above her current level and such sustainment of employment remains dependent upon huge contingencies.

24.42.       It was submitted, with respect that the loss is correctly quantified in the calculation by the Plaintiff's Actuary and that an order set out in the primary heads argument, is warranted and reasonable.

 

CONSIDERATION AND WEIGHING OF EVIDENCE AND SUBMISSION

25.        The evidence presented and the submissions made by both counsel and their experts have been systematically considered.

The factual and expert testimony form the basis of the courts consideration of clinically and/or scientifically proven facts by the experts:

Samantha Heuer (Factual Evidence).

25.1.    Samantha experienced the memory loss of the patient first hand when the patient could not recall a visit at the hospital on the day of the incident interrupted by a mere smoke break. Samantha also noted that the patient acted inappropriately, chatty, giddy and un-assumed by her injuries.

25.2.     The evidence of Samantha remained completely factual and objective when she gave clear evidence that she was aware that Devon terminated his university studies, was not aware of the reason for such termination and that Devon simply elected to go to the United Kingdom at the time.

25.3.    Devon and the patient were born from their mother's marriage to her second husband whom Samantha has accepted as her true father. Despite the divorce of their mother from her second husband the siblings retained a healthy relationship with their mother and are still a close-knit unit despite residing in different parts of South Africa.

 

THE NEUROSURGEONS

25.4.    The Defendant raised criticism of the diagnosis-by Dr. Edeling in respect of the severity, nature and extent of the brain injury as Dr. Edeling diagnosed the patient with a primary diffuse and a secondary focal brain injury in the absence of a CT or MRI scan.

25.5.     The obvious clinical pertinence of this methodology of diagnosis in respect the outcome of the brain injury was comprehensively explained by Dr. Edeling. He considered the complete medical records, the factual evidence regarding presentation of the patient pre and post collision as well as ante and post collision amnesia and on this body of evidence concluded that the patient suffered a severe brain injury.

25.6.    The evidence of Dr. Edeling has a foundation in proven clinical expertise, logical reasoning, objective facts and a proper assessment of the nature and extent of the amnesia and eventually outcome of the brain injury. His methodology is logical, factually and clinically defendable, founded in basic and obvious reasoning and clinically sound. No criticism can be drawn on the credibility or opinion of Dr. Edeling.

25.7.    On the contrary, Dr. Moja's methodology and evidence lacks a logical foundation and was based upon a single diagnostic fact, being assessment of the Glasglow Coma score at the time of admission alone.

25.8.      Dr. Moja disregarded the subsequent notes of a nurse in respect of the neurological status of the patient completely, failed to explore or consider

25.9.    issues in respect of amnesia during assessment, and when being confronted with the true factual evidence in respect of severe presentation of the amnesia pretended that the evidence did not exist.

25.10.    Dr. Moja had to, but failed, to concede that the brain injury presents as serious as a result of the reported amnesia and his stalwart denials nothing but flawed and clinically unsound. He attempts to take issue with the factual evidence pertaining to amnesia (correctly put to him during cross examination) confirms his obvious bias and attempts to disguise the stark probability of the diagnostic evidence by Dr. Edeling in respect of the nature and extent of the injury.

25.11.   Dr. Moja's stalwart approach to diagnosis of the severity of the brain injury (demanding radiological assessment) is not only factually unfounded but clinically flawed. It is submitted that his opinion can safely be dismissed and that the Plaintiff has proven on a balance of probability that the diagnosis by Dr. Edeling should be accepted.

 

THE PSYCHIATRISTS

25.12.   Criticism levied by the Defendant in respect of Dr. Shevel is not only unfounded but completely misplaced, as Dr. Shevel made an independent diagnosis of the extent and severity of the impact of the brain injury in the absence of medical reporting from the neurosurgeons at the time.

25.13.   Dr. Shevel is completely qualified and competent including a diagnosis that the Patient suffered an organic brain injury with serious neuro-psychiatric. consequences as a result of the collision.

25.14.   His evidence was particularly valuable in respect of the post collision outcome and confirms in all respects that the injury presents as serious in all aspects of the patient's life and employment. The neuropsychiatric consequences of the brain injury are most debilitating and are the greatest obstacle in the Patient’s future life and employment.

25.15.   The evidence of Dr. Shevel is not only telling in respect of causation and severity of the brain injury, but most particularly important in respect of assessment of the Patient's residual capabilities in all spheres of basic living and employment.

25.16.   The evidence that the neuropsychiatric deficits are permanent and can only be controlled to a very limited extent confirms the stark reality and undisputed opinion that the Patient will require assistance in all spheres of living for the balance of her life.

25.17.   The evidence of Dr. Shevel is probable and credible in all respects as the sequalae predicted by Dr. Shevel have already materialised in the Patient's life through psychiatric admission and diagnosis by Dr. Woods, lack of insight and inability to accept responsibility for tasks of basics living and employment.

25.18.   There can be no doubt that Dr. Shevel is correct in his opinion that the Patient will not be to sustain her levels of employment beyond ten years.

 

SPEECH AND LANGUAGE PATHOLOGISTS

25.19.   The criticism levied by the Defendant in respect of Ms. Hattingh is unfounded.

25.20.   Her evidence is not diagnostic but confirmatory of the expected and anticipated sequalae of the brain injury and also confirmatory of the seriousness of the brain injury in respect of the language profile.

25.21.   Her undisputed evidence was that the speech and language profile of the Patient confirms the nature and extent of the severity of the brain injury as identified by the Neurosurgeon and Psychiatrist (the diagnosed injury and prognosis).

25.22.   As such her evidence is not only predictive of the speech and language difficulties which the Patient will encounter as a result of the collision and the injuries sustained during the collision, but also renders credible corroborative evidence in respect of the diagnosis and outcome made by the Neurosurgeon and Psychiatrist.

 

THE CLINICAL PSYCHOLOGISTS

25.23.   The particular similarities in respect of neuropsychological testing found by Mr. Roper and Mrs. Rice on behalf of the Plaintiff are peculiar. In this regard, Mr. Roper even found a higher level of neuropsychological fallout and sequalae than that assessed by Mrs. Rice.

25.24.   There are no serious differences in the opinions of the Clinical Psychologists pertaining to the identification and presentation of the neuropsychological test results. The primary difference between these psychologists related to the eventual outcome. It is here where Mr. Roper moved outside of his sphere of expertise. But Mrs Rice gave evidence which was hugely objective and of great value, as she explained that it is the injury to the brain, and more particularly the psychiatric sequalae of the brain injury which left the Patient in the position where she finds herself.

25.25.   Mrs Rice did not attribute any sequalae to the pre-existing psychological issues pertaining to the parent's divorce and the mother's diagnosis with cancer, while Mr. Roper gave a lot of attention to these two issues.

25.26.   Although the evidence by Mr. Roper identifies psychological issues which existed at the time of the of the collision, he could not attribute, even on a balance of probabilities, to which extent any psychological issues did or would have contributed to the Patient's outcome.

25.27.   Unfortunately, Mr. Roper did not come across as an objective witness as he did not give an opinion which was aimed at assisting the court. Instead, he veered into an un-defendable diatribe attempting to protect a.

25.28.   Conclusion that the Patient would have been in the very same position despite the collision.

25.29.   It was only after he was cautioned in this regard during cross-examination, that he said that he does not exonerate or exclude the influence of the collision and the injuries from his opinion, but simply remains of the opinion that psychological vulnerabilities would have presented in some way, and that the psychiatric vulnerabilities and sequalae can be treated.

25.30.   It is exactly here where his evidence became unrealistic and improbable as he ventured out of his field of expertise, in respect of the diagnoses of the seriousness of the brain injury and the psychiatric sequalae of the brain injury.

25.31.   Eventually, Mr. Roper could simply not explain any causal link between the psychological vulnerabilities and the presentation of the brain injury, and in fact agreed during cross-examination that the impact of the brain injury was the causative watershed event and could never ignored or underestimated.

 

THE EDUCATIONAL PSYCHOLOGISTS

25.32.   The Educational Psychologists agreed in their joint minute and during their evidence that pre-collision, the Patient would have obtained a four-year degree and/or and LLB and that post-collision, the Patient is left with an NQF4 qualification. This agreement was already reached during the joint minute.

25.33.   Mrs. Moller gave convincing evidence that any traumatic incidents in the history of the Patient will have an influence on her future performance, but also (realistically and objectively) conceded that the influence, nature and extent of the psychological predispositions/facts are unknown and cannot be quantified.

 

CONCLUSION

25.34.   The permanent unfortunate effect of the injury (causation) has been proven on a balance of probability. As set out in the Plaintiffs primary heads of argument, causation should be determined on a balance of probabilities.

25.35.   Quantification as opposed to causation is done on the best available evidence and conclude thereon, without accepting the least favourable conclusion for the Plaintiff.

25.36.   The influence of the parent's divorce and the mother's cancer should be seen and included in any provision for normal contingencies as the Defendant has not been able to show how or where same would have impacted in loss of earnings or earning capacity.

25.37.   As the Defendant's heads of argument do not address any post-collision scenarios of quantification, it is submitted that the post collision scenario predicated by Dr. Stevel, the Educational Psychologist and the Plaintiff's Industrial Psychologist has become undisputed and should be accepted.

25.38.   Pre-collision the Defendant argues that the Plaintiff would have, at best passed matric, plus diploma. This basis of quantification is unfounded and not based upon any of the expert or factual evidence.

25.39.   The Plaintiff submits that she has shown, on a balance of probabilities that the collision and the injuries sustained during the collision, as well as the sequalae which emanates from the injury, have caused a severe and substantial curtailment and reduction in the Patient's potential, career prospects and earnings.

25.40.   The Plaintiff submits that post collision the Patient is employed in a sympathetic and tolerant environment, where he is not achieving in all of

25.41.   the required outcomes of performance. The evidence confirms that the Patient requires constant management, care and managerial involvement in her day-to-day living and work.

25.42.   The Patient will not be able to sustain her employment in the long term. As a result, the Patient will never progress above her current level and such sustainment of employment remains dependent upon huge contingencies.

25.43.   It is submitted, with respect, that the loss is correctly quantified in the calculation by the Plaintiff's Actuary and that an order as set out in the primary heads of argument, is warranted and reasonable.

 

26.         CONCLUSION: LEGAL PRINCIPLE

26.1.       The Plaintiff bears the onus to discharge that she suffered injuries as result of a Motor vehicle collision. This is the common cause:

26.2.       That she suffered an impairment, as result of the collision, of earning capacity and as that she will in fact suffer a loss of income currently and in the future.

26.3.      The latter is a question of assessment which involves the exercise of quantifying best one can for the actual loss occurring.

29.4        The court hear presentation or submissions on a wide range of possibilities presented by evidence. It will reach a conclusion on a reasonable one from all the submissions by the parties.

26.5.      It goes without any saying that damages for loss of earning capacity is naturally speculative, as it involves prediction as to the future. It naturally follows that the trial court is bound by the actuarial calculations.

26.6.       There is a range of factors to be considered but not limited to a chosen few. It has been a standard practice over the years as supported by previously decided cases that the judicial discretion is the making of a discount for "Contingencies" or the "vicissitudes of life". This would entail possibilities that Plaintiff can suffer or experience less than a general expectation in her life due to the accident or after effects at the injuries sustained

26.7.       There is no doubt that Plaintiff suffered brain injuries which has been left medical experts to describe as severe or mild.

26.8.       The court is mindful of the fact that expert evidence should be, or seen to be, the independent product of the expert or experts who testified in the court proceeding and not opposite understanding and biased interpretation of expert analysis of each expert's own opinion vis-a-vis another if there are more than one in a particular situation like this case.

26.9.       One other important aspect, often ignored, is that there is no guaranteed knowledge if a person's future plans will always be accomplished. The court has to keep this in mind when considering suitable qualifications of future damages and possible compensation to be made for loss of earning capacity.

26.10.    The court is satisfied on all the experts submissions about the seriousness of the injury suffered by the Plaintiff as far as the proven scientifically and diagnostically.

26.11    The court could find any scientifically or diagnostically pre-existing predispositions which would be considered to have had any causal influence in the Plaintiff's employment prospects or influence on her frontal lobe dysfunction and/or psychological sequelae after the collision.

 

27.          FACTS FOUND TO HAVE BEEN PROVEN

27.1.        Merits: the parties had an earlier engagement where they settled on the merits at 85% and 15% to be proven. This was followed by a trial where part of the liability on the 15% had to be proven.

27.2.        They can safely accept that the remainder would have been to prove the pre­ existing conditions and its sequelae to Plaintiff's current condition.

27.3.        The pre-existing conditions could not be proven on the normal standard of proof on a preponderance of probabilities and therefore rejected as not existed.

27.4.         Having regard to opinions of all experts who testified either for or against the

27.5.       seriousness of the brain injury and the sequelae and subject to the

27.6.        appropriate contingencies the court is bound to consider the actuarial calculations very carefully: this would entail the pre-morbid and post-morbid scenarios which is already on record and been considered as presented.

27.7.        The court is to weigh and determine a fair and reasonable quantum having reqard to comparable previous courts decisions as guidelines:

There is no evidence that the Plaintiff has lost her job as a result of the sequelae following the collision except for the permutation of possibilities.

By virtue of my acceptance of the conclusions arrived at by the calculation of future loss of earning capacity should be approached on the basis that the Plaintiff is still employable.

 

28.          

CONSIDERATIONS

28.1.       In determining a fair compensation to be awarded the court will exercise a broad discretion having regard to a broad spectrum of facts and circumstances connected to the Plaintiff and the injuries suffered by her including the nature, permanence, severity and impact on her lifestyle.

28.2.       The injuries suffered by the Plaintiff and the sequelae has been set out already a number of previous decisions were referred to which have some similarities between some of them though they differ on facts and the considerations raised. They all had a valuable guidance and I have devoted careful consideration to all submissions. All previous cases and Appellate Division decisions and other authoritative case law referred to in both parties submissions have been considered.

28.3.       The in its general approach had to consider this matter on its own merits without compromising our legal principles of fairness to all parties.

28.4.       These led to my conclusion that the Plaintiff is entitled to be compensated for the loss of earning capacity and the general damages less the part-payment already paid to her.

 

29.       Having regard to all that I set out above, I am satisfied that the Plaintiff has succeeded in proving that she has suffered the following damages:

29.1.       General damages                            R 2 000 000-00

 

29.2.       Loss of Earning Capacity               R 2 500 000-00

 

29.3.       An apportionment of 85.15 should be applied to the total damages taking into account or minus the R420 000-00 already paid to the Plaintiff.

29.4.       That the Plaintiff's award be protected by the curator ad litem.

 

Accordingly, the order I make in favour of the Plaintiff is:

 

30.1.       Payment of R 1580 000-00 general damages

30.2.       Payment of R 2500 000-00 loss of earning capacity

30.3.       Costs of the action.

 

 

Acting Judge VRSN Nkosi

North Gauteng Division of the High Court

 

 

Date:

 

Plaintiffs Counsel: Adv. P. Uys

Briefed by: Yvonne Kruger Incorporated Pretoria

 

Defendants Counsel: Adv. E. Moukangwe

Briefed by: Tsebane Molaba Incorporated Pretoria

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