Nhubunga v Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: BA Mashile J
• Judgment Date: 20 June 2022
• Docket Number: 1851/2021
• Hearing Date: 20 June 2022
• Court: Mpumalanga Division, Mbombela
• Citation: 2022 JDR 1714 (MN)

Mashile J:

INTRODUCTION:

[1]

This is a delictual claim emanating from a motor vehicle collision between the Plaintiff and motor vehicle with Registration letters and numbers DTX 3 MP. The collision happened on 23 September 2012 at Dwarsloop in the district of Bushbuckridge in Mpumalanga Province, at about 16h30. When the collision occurred, the Plaintiff was a pedestrian. In consequence of the collision described aforesaid, the Plaintiff sustained multiple injuries.

[2]

Believing that the Defendant was as a result of the negligent driving of the driver of motor vehicle DTX 3 MP liable to compensate him for the resultant injuries, he lodged a motor vehicle accident claim against it. The action was initially defended but the Defendant subsequently withdrew the mandate that it had given to its attorneys causing the matter to become essentially undefended. When the matter served before me on 18 October 2021, I was advised that merits and quantum had been settled on an earlier date on the basis that the Defendant would be liable for 80% of damages that the Plaintiff may subsequently prove against it.

[3]

To this end, the Court was provided with an order of the Gauteng Division dated 8 October 2018, which was evidently prior to the transfer of the matter to this Court. As such, the purpose of these proceedings is to assess and dispose of the quantum part of the claim. Both parties have appointed experts who, following their examination of the Plaintiff or consultation with him, have compiled reports describing their findings.

[4]

I note that of all these experts only the Orthopaedic Surgeons have compiled joint minutes. The action is undefended consequently it did not come as a surprise that majority of the Plaintiff's experts gave evidence in Court while those of the Defendant did not. I cannot take the reports of the Defendant into consideration because they were not presented to Court nor was there a request on behalf of the Defendant that they be

2022 JDR 1714 p3

Mashile J

admitted into evidence. Additionally, I have no pre-trial minutes to guide me on what the status of those reports is.

INJURIES:

[5]

The Mapulaneng Hospital clinical notes record the injuries as fractures of the left tibia and fibular distal 1/3, abrasions on his left foot and the anterior aspect of the tibia and a head injury, which consisted mainly in lacerations to the scalp. Treatment comprised x-ray examination of the left tibia and fibular, suturing of all his scalp lacerations and analgesics. Later, when the Plaintiff received further treatment at OR Tambo Memorial Hospital in Boksburg, doctors operated on his left leg to insert a nail. The fractures are stated to have united without any complications and the nail is to be removed.

[6]

In their joint minute, Drs Preddy and Tladi record the injuries sustained by the Plaintiff as fracture of the left tibia and fibula, scalp laceration, left foot abrasions and left upper limb abrasions. The treatment administered on the Plaintiff while admitted in both hospital is common cause between the doctors. The treatment that he received at Mapulaneng Hospital consisted in the suturing of the scalp laceration, analgesia, dressings, back slap cast to the left power leg and antibiotics. He underwent an intramedullary locking nail procedure as an 'open reduction and internal fixative' ("ORIF") while at OR Tambo Memorial Hospital.

[7]

Drs Preddy and Tladi examined the Plaintiff on 30 September 2015 and 3 October 2018 respectively. Both the Mapulaneng and OR Tambo Memorial Hospitals did not capture the right shoulder injury detected in 2015 by Dr Van Rensberg, a Radiologist, and subsequently reported by Dr Preddy in his medico-legal report. Similarly, when Dr Tladi examined the Plaintiff in 2018, she neither observed or noted the Plaintiff's shoulder injury yet the x-ray report captures it as follows:

2022 JDR 1714 p4

Mashile J

"A fracture is noted of the superior aspect of the body of the scapula. The fracture extends to the glenoid cavity. The radiographic features are suggestive of a non-united fracture with aresidual lucency still demonstrated. The glenoliumeral joint space is otherwise intact. The visualized clavicle and ribs are intact."

PL AINTIFF'S COMPLAI NTS TO THE RESPECTIV E DOCTORS

[8]

On 3 October 2018, the Plaintiff told Dr Tladi that his pain was intermitted in nature. He advised her further that it was exacerbated by prolonged walking, lifting of heavy weights and inclement weather. He was unable to walk for long distances. On 30 September 2015 when he saw Dr Preddy, he complained that he limped on the left leg. He could not run and experienced pain when he walked for long periods. His leg swells if he stands for long and often wakes up at night because of pain coming from the left led. He reiterated to Dr Preddy that inclement weather intensified his pain.

[9]

Both doctors noted that the Plaintiff was experiencing recurring headaches for which they deferred his complaint in that respect to a Neurosurgeon or Neurologist. It is common cause that the Plaintiff sustained a head laceration at the occiput. The magnitude of this injury is not recorded anywhere except by the Neurosurgeon of the Defendant, Dr Mosadi whose report, for reasons described above, I cannot consider because it is not before me. It should suffice to state that it is stated in the medical records that following the collision, the Plaintiff lost consciousness and only woke up in hospital. The GCS registered his level of awareness on admission at the Mapulaneng Hospital at 15/15.

[10]

On the question of injuries sustained by the Plaintiff, all the other experts take their queue from Drs Peddy and (Mosadi, the Neurosurgeon. For reasons that I have already stated above, I reiterate that I cannot take into account the report of Dr Mosadi as his report is essentially hearsay. That leaves me with the report of Dr Preddy as the only one that describes the injuries of the Plaintiff.

EVIDENCE:

2022 JDR 1714 p5

Mashile J

[11]

As could be expected, the evidence levied before Court was not challenged because the matter was not defended. That said, I must emphasise that the weight and pertinence of their testimony and sequelae lean heavily on the accuracy of the injuries described by Dr Preddy in his report. If the injuries are incorrect, so will those captured in the reports of other experts who depended on it for their inferences.

[12]

Under the heading: Assessment Summary, Messrs. Mphuthi and Maye state as follows:

"Neuropsychological test results indicate impaired neurocognitive and psychosocial capacity and function, particularly in the following domains: cognitive flexibility, information-processing speed, executive function, psychomotor speed, motor speed, reaction time and memory.

Mr Nhubunga's EEG results fall within the normal range, and brain connectivity measures suggest problems with erratic cortical processing. This indicates vulnerability to problems with attention/concentration.

As reviewed above, his performances on psychometric testing were likely influenced by premorbid cognitive-intellectual capacity, as well as the disruptive impact of chronic pain and mood-effects on his attention/concentration, motivation and frustration-tolerance.

Conclusion regarding traumatic brain injury

Taking all the foregoing into account, we conclude that Mr Nhubunga sustained a mild concussion at the time of the accident. This is evidenced by the brief period of retrogradeamnesia, the prolonged period of post-traumatic amnesia, the period of irritability, confusion, forgetfulness and restlessness, according to Mr Nhubunga's account of his hospitalization, and the scalp lacerations noted in the hospital records.

We nevertheless defer to the diagnoses of neurosurgeons regarding the severity of braininjury."

[13]

Ms D Mathebula, the Occupational Therapist, was appointed by the Defendant to

2022 JDR 1714 p6

Mashile J

examine the Plaintiff and to furnish her report thereafter. She saw the Plaintiff on 13 November 2015. Her testimony stood unchallenged and I have no reason not to accept it. However, it must be recalled that to the extent that she refers to a sublaxed right shoulder, her evidence is incorrect. I will elaborate later on this aspect of this judgment.

[14]

Ms Mathebula assessed the Plaintiff with the objective of firstly, determining the extent to which the motor vehicle accident has affected his functional abilities to participate in daily activities. Secondly, furnishing a professional opinion on the financial implications of the Plaintiff's injuries. Thirdly, making...