Ndlovu v Road Accident Fund

• Jurisdiction: South Africa
• Judge: Spilg J
• Judgment Date: 12 August 2013
• Citation: 2014 (1) SA 415 (GSJ)
• Docket Number: 39302/10
• Counsel: B Ancer SC (with TJ Frank) for the plaintiff. Identity of defendant's counsel withheld by court.
• Court: South Gauteng High Court, Johannesburg

Spilg J:

The issues F

[1] The plaintiff was a self-employed truck driver who transported goods between Gauteng and KwaZulu-Natal. He claims over R6 million as a result of injuries sustained in a motor vehicle accident which occurred on 14 July 2006. The main portion of the claim is dependent on the plaintiff G demonstrating that he suffered significant neuropsychological impairment as a result of a head injury which he avers was sustained in the accident. The plaintiff alleges that the extent of the head injury is supported by the length of time he claims to have been unconscious. It is alleged that the plaintiff lost his business as a consequence of the H neuropsychological sequelae attributable to subtle brain damage. The plaintiff allegedly also sustained injuries to the chest, lumbar spine and lower limbs which had the effect of preventing him from continuing to drive a truck, and — if he is found still able to continue operating a trucking business — which would require him to incur the extra cost of I employing a driver.

[2] On 3 June 2010 the defendant accepted that the accident was caused entirely by the negligence of the insured driver.

[3] Four key factual issues determine whether the plaintiff is entitled to a substantial damages award for loss of earnings and earning capacity J (loss of income) as well as for general damages. They are:

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(a)

Whether the plaintiff sustained a head injury and lost consciousness A as a result of the accident;

(b)

if so, then the extent to which any resultant brain damage may have affected his ability to operate his transport business;

(c)

whether the plaintiff sustained the chest, lumbar-spine and lower- limb injuries in the accident; B

(d)

if so, then the extent to which these injuries preclude him from driving a truck.

[4] The orthopaedic surgeons appointed by the respective parties were in agreement that the soft-tissue injuries to the lumbar spine and chest resulted in permanent impairment of the lumbar spine and C sterno-manubrial joint. They were also agreed that these injuries alone were sufficient to prevent him from driving. The key issue, therefore, remains whether the plaintiff sustained the alleged head injury with resultant loss of consciousness and whether this has resulted in neuropsychological impairment rendering him incapable of operating his business. If he can still operate the business the loss of income would be the cost of engaging D a truck driver. If the plaintiff is unable to run a business he will have lost the entire net-income stream his business would have been expected to generate.

[5] Insofar as medical and similar expenses are concerned the Fund has agreed to provide an undertaking under s 17(4) of the Road Accident E Fund Act 5 of 1996 (the Act). I should add that the plaintiff did not claim any past medical, hospital or similar expenses.

[6] Aside from oral testimony the parties agreed that the evidential material before the court comprises:

(a)

The hospital records of the Groote Schuur trauma unit where the F plaintiff was admitted and the Road Accident Fund (RAF) claim form submitted by the plaintiff, including the medical report, but only to the extent that they are what they purported to be, and not as to truth of content.

(b)

Two pages of the plaintiff's bank statement as correctly reflecting G the entries recorded.

(c)

The expert reports of both the plaintiff and the defendant's two orthopaedic surgeons and two clinical psychologists, including the minutes of their respective joint meetings. They were admitted as reflecting both what they had been told and their opinions based on the information they identified. It is the court's function to weigh H them and make a finding should they differ.

[7] The oral testimony consisted of the evidence of the plaintiff, his daughter, Ms Ngobo, the industrial psychologist appointed by the plaintiff and, after the plaintiff closed his case, the defendant's industrial I psychologist. The industrial psychologists' expert reports and joint minute were presented into evidence. In addition the plaintiff called for the notes of the defendant's industrial psychologist, upon which he then cross-examined. This was entered into evidence as an exhibit.

[8] There were a number of other expert medical reports contained in the court bundle. They did not constitute real evidence, but were among J

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A the documents which could be referred as being what they purported to be. Extracts from some were relied upon in the expert medico-legal reports which were admitted into evidence.

[9] I proceed to the factual enquiry concerning the head injury and its alleged effect on the plaintiff's ability to continue operating his own B business.

The head injury

[10] It is appropriate to commence with the contents of the documents which the experts claimed to have considered, and also the contents of C their opinion on whether the plaintiff sustained a head injury and its alleged neuropsychological consequences.

[11] On 2 April 2008 the Fund received the plaintiff's claim form together with the medical report required under ss 17(1) and 24(1) of the Act read with reg 3(1). It will be recalled that the accident had occurred two years earlier.

D [12] The following details were provided regarding both the nature of the claim and its quantification:

(a)

At that time the claim was for just over R2 million made up of general damages of R1,45 million and past and future medical expenses of R894 000.

(b)

E There was no separate claim for loss of earnings. The plaintiff crossed a line through the entire series of questions relating to employment with the notation 'N/A', and did not indicate deriving income from any other source. However, I will assume in the plaintiff's favour that any claim for loss of income could not be F quantified at that time.

[13] These particulars appear to have been completed on 24 July 2007, although the form was submitted later, in April 2008. The reason appears to be that the medical report was only signed at the end of March 2008.

G [14] The person completing the medical report was a Johannesburg doctor, whereas the plaintiff had been treated at the time of the accident by the Groote Schuur Hospital trauma unit in Cape Town. However, a record from the trauma unit where the plaintiff was received after the accident is attached and identified in the bundle as constituting the H 'Hospital records'. It is a four-page document. The first page was completed by the doctor on admission. The second and third pages include anatomical diagrams on which injuries are noted and in addition the condition of the clothing is also noted. The final page deals with the patient's problems, plan of action, any specialist referral, X-rays, interventions and management or medication courses that were directed.

I [15] A comparison between the Johannesburg doctor's report of March 2008 — which I will refer to as the 'RAF medical report' — and the trauma- unit records completed on the night of the accident (14 July 2006) reveals the following discrepancies;

(a)

Firstly, the RAF medical report states that the plaintiff sustained a J head injury and suffered loss of consciousness. The presence of both

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features is highly relevant to support a case relying on the type of A neuropsychological sequelae claimed to have arisen in this case. The report states:

'1.

Head injury — loss of consciousness — wound left-posterior region. Developed memory loss.'

However, the Groote Schuur trauma unit's records indicate that the B plaintiff was conscious, was not in shock and did not require resuscitation. Furthermore, the anatomical diagram prepared by the unit records only two injuries, and none are to the head. It was also recorded that his clothing was normal, without any bloodstains or dampness. It is common cause that the plaintiff was discharged C within the day.

(b)

Secondly, the RAF medical report states in regard to other injuries that the plaintiff sustained four further injuries: to the chest (identified as a pain), lumbar spine (resulting in backache), a twisted right ankle, and a deformed left arm resulting from a fracture. By D contrast the trauma-unit records identify only two injuries, neither requiring an anaesthetic, and both being described as moderate. The first was a closed-tissue injury to the thorax cage and the other a dislocation of the upper arm. On the anatomical diagram there are a number of indistinct notes relating to the left and right sides of the chest and also a note which reads 'deformed', referring to the left E upper arm. The history section of the report notes that the plaintiff suffered chest and left-arm pain. However, no anaesthetic was required for any of the injuries.

[16] I turn to the various experts' comments on these reports and the F information which they obtained from the plaintiff when they consulted with him, or which they gleaned from the reports of other experts. I am satisfied that after hearing evidence, including that of the plaintiff, each recordal of what he had told them is accurate. The statements he made to the experts are materially contradictory in regard to two critical aspects of the case; firstly as to when he was rendered unconscious, and G secondly as to whether and for how long he was able to run his business after the accident. The contradictions are sought to be explained by reference to his apparent memory difficulties. This will be considered later.

[17] Although the defendant disputed in its pleading that the plaintiff H had sustained a head injury, none of the defendant's experts raised the issue, save for Ms Fakir, an industrial psychologist. But she stated quite properly that she would defer to the opinion of a neurosurgeon. While the clinical...