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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NUMBER:  A5075/2015

Not reportable

Not of interest to other judges

Revised.

3 October 2017

In the matter between:

MALEMA MAGWATANE KLEINBOOI                                                             APPELLANT

AND

ROAD ACCIDENT FUND                                                                                DEFENDANT

 

JUDGMENT

 

MOLAHLEHI, J

Introduction

[1] This is an appeal against the decision of the court below in terms of which the appellant’s claim for damages arising from a motor vehicle collision was dismissed.

[2] In his judgment Mashile J found that the alleged loss of earning capacity of the appellant was not causally connected to the injury suffered as a result of the negligent driving of the insured driver.  In essence, the court found that his loss of earnings was due to his voluntary resignation from his employment.

[3] Initially the matter came before Dippenaar AJ on 2 August 2013 when it was postponed sine die, and the respondent ordered to pay in the interim the sum of R150 000 as part of the general damages for the appellant.  The defendant then conceded liability resulting in the parties agreeing to the general damages for R300 000 and a hundred percent future medical expenses for the appellant.

The issue for determination

[4] In light of the above the only issue that remained which was finally determined by the court below was whether the plaintiff caused his loss of earnings or earning capacity or the loss was as a result of the injury sustained in the motor vehicle accident.

[5]  The case of the appellant before the court below was that the loss he suffered was as a consequence of the injuries he sustained in the accident. The case of the defendant, on the other hand, was that the appellant was the cause of his loss of earnings which was consequent to his resignation from his employ with a company known as Condra (Pty) Ltd (Condra).

[6] It is common cause that the appellant was involved in the motor vehicle accident during December 2010, caused by the negligent driving of the insured driver.  At the time of the accident the appellant was employed as a welder by Condra.

Grounds for appeal

[7] The grounds of appeal as summarised in the appellant’s heads of argument are that the court below erred in the following respect:

a. in rejecting the evidence of Dr. Read and accepting that of Prof Scheepers taken together with that of Dr. Morule.

b. in excluding the testimony of Ms. Hovsha.

c. in excluding the report of Dr. Wolberg.

d. in including the report of Ms. Kekana.

f in not drawing an adverse inference against the respondent in failing to call Mr. Ben  Coetzee and Mr. Kleiner as witnesses.

g. in refusing the appellant’s application for leave to amend  his particulars of claim.

h. in failing to have regard to all evidence before him because if he did so, he would have reached a different conclusion.

i. in overlooking the version of the appellant.

[8]  The appellant further contended that the court below erred in considering the appellant’s claim to be concerning a loss of earning capacity rather than to be concerning the past and future loss of earnings.

The appellant’s case.

[9]  The first witness to testify in support of the appellant’s case was the appellant himself. He testified that at the time of the accident he was employed as a welder, and in performing that function, he needed the use of both his hands.  He further testified that he, as a result of the accident, suffered injuries to his forehead, neck, shoulder and knee.

[10] The appellant was, after the accident, hospitalised for one day at Tambo Memorial Hospital.  Because he was still not feeling well the following day, after his discharge he arranged for an ambulance to take him to the Far East Rand Hospital where he was hospitalised for two days.  He was given medication, put a sling to support his arm and bandaged his knee and was then discharged.

[11]  After the second discharge from the hospital, the appellant stayed home for three days and after that went back to work.  He testified that he was still in pain when he went to work, but did so because he was concerned that he would not be paid for the days that he would be absent.  He indicated in this regard that the company he worked for had a policy of “no work no pay,” which made him to return to work even though he was still in pain. He also stated that his hand was wrapped in a sling when he went back to work and as a result had to use one hand to weld.

[12]  He continued working even though he had pains.  He did so because Ms. Kitty told him to keep working.  He approached Mr. Kleiner and informed him about his problem.

[13]  His request for a lighter job was unsuccessful as he was told that there were no lighter tasks in the company.  On pursuing the matter further, he was informed that he would be given someone to assist him.

[14] One of the people that the appellant worked with was Mr. Ben Cortzee, a disabled person who suffered a stroke.  It would appear that the stroke attacked him while in the employment of the same company which had accommodated him as a disabled person after that attack.

[15]  During cross-examination, the appellant admitted to having gone to work after four days after the accident.  He also conceded that the period of four days was a short period to have returned to work in the context of the injuries he claimed to have suffered.  He indicated that he was off duty whenever he had to attend treatment, and this occurred on four occasions before he resigned.  He left his employ because the company failed to give him a lighter job.

[16]  The appellant also testified how he coped with work after the accident.  He continued working in the workshop manufacturing boxes.  He was assisted by other people including Mr. Coetzee whenever he was working on a steel plate.  A person known as Elias helped him to carry the steel and grinding whenever he was not busy. The same applies to having to place the gas bottle on the welding trolley.

[17]  In responding to the question concerning how he managed to perform his duties after the accident, he responded as follows:

“After the accident, I was doing my job well.  But the problem was that I was slow now, I cannot do my work faster than before.”

[18]  And when put to him that Mr. Van Sandt, of the company, would testify that he never observed him being unable to cope with his welding, he responded as follows; “He never saw me failing to do my job.”

[19] The transcript of the proceedings reveals the following exchange between the appellant and Counsel for the respondent during cross examination: 

“So you worked for the whole of 2008 without taking rest breaks and you work through your injuries?... Yes, I was working once I was stable, when I was injured. 

And through this year, no one at Condra complained about your work?.... No one complained about my work.

Anybody said that you were not performing well?... They said I am working very well, but the only problem I am not working faster like before.

But you were able to do the job?... Yes I was able to do my job.

Then you resigned?... Yes.”

[20] He further conceded during cross-examination that he was aware that the company accommodated Mr Coetzee following the stroke that he suffered.

[21]  The second witness of the appellant was Ms Mariana Pretorius, the industrial psychologist whose testimony was largely based on her report which focused on the result and the after effect of the accident on the appellant.  The investigation was conducted telephonically by interviewing Mr Van den Linde, one of the company’s managers.  The purpose of the report was to assess the earning capacity and employability of the appellant.

[22]  She testified that the appellant informed her that he was unable to grip heavy objects with his left hand and was also unable to keep his balance in small spaces or when he was to crouch or lie on his side.  He also informed her that he was aggrieved by the treatment he received from the hospital.

[23]  She found that the difficulty that the appellant had in performing his duties following the accident and his age may also have influenced his resignation.  She concluded that the appellant illustrated a high level of perseverance to keep his employment for more than a year after the accident.  She, however, also stated that she was surprised that the appellant tolerated and coped with the demands of his work for as long as he did.

[24]  The other findings made by Ms Pretorius are that; but for the accident, the appellant would have worked until he was 65 years of age.  And also because of the sequelae, he could not compete on equal terms in the open market; the age also being a contributing factor.  He would in the circumstance be suited to do manual jobs such as cleaning.  However, his employment prospects looked bleak and that he was likely to be unemployed in the future.

[25]  She noted in the joint minutes signed with Christa Du Toit that the appellant suffers depression which may have a debilitating effect on him finding a job and ability to perform. 

[26]  She also noted that the appellant had suffered severe traumatic brain injuries resulting in the limitation on his training ability.  It is further stated in her report that it was unlikely that the appellant could resume work as a welder but that he could do light to medium work.  It was based on these reasons that she concluded that he was not going to be able get any job in the future.

[27]  She agreed during cross-examination with the findings of the orthopaedics that the appellant could perform work in an occupation that does not place excessive stress on his left shoulder, cervical spine and the knee.  She also conceded that there was no conclusive evidence of permanent disability on the part of the appellant as a result of the injuries. 

[28]  The other point to which Ms Pretorius conceded to, was that the medical records did not show loss of consciousness and that the Glasgow Comma Scale (the GCS) was 15 out of 15. She further accepted the following during cross-examination:

a) The Appellant was employed as a welder until his resignation.

b) His orthopaedic injuries are treatable.

c) She was incorrect to have said that the occupational therapist agreed in a joint minute that the accident had effectively terminated any opportunity for the appellant to work in the future.

d) That nowhere in the reports did Ms Brummer, the occupational therapist, and Ms Kekana the orthopaedic, say that the appellant was totally unemployable.

[29] The third witness for the appellant was Dr Read, the orthopaedic surgeon.  His testimony was also based on the report he had prepared concerning this matter.  He, in his testimony emphasized that it was difficult to distinguish between symptoms emanating from the shoulder pains and those from the neck.

[30]  The appellant according to him, had a neck problem at C5/6, but the shoulder appeared to have given him a much bigger problem.  He had a fracture on the left fibula in the leg.  As concerning the x-rays which were ordered by Dr Morule who practices at the same hospital as himself, he stated that the x-rays were done in 2009 and it was reported that the shoulder was normal.  He saw the appellant in 2011 and sent him for x-rays which showed degenerative changes to the left shoulder with sclerosis of both the superior and inferior aspects of the acromion numorol interval with some residual deformity at the end of the cervical spine.  It was for this reason that he ordered treatment of the shoulder

[31]  In relation to the ability of the appellant to perform work, he testified that he was likely to find it difficult to perform work above his head.  He agreed with Prof Scheepers that the appellant could not do any work that placed strain on his neck and shoulder.  He also found that there had been a significant change in his rotator cuff interval between 2009 and 2011.

[32]  He agreed with Prof Scheepers that if  the appellant had received treatment he would be able to do work that does not place excessive stress on his left shoulder, cervical spine and the knee.

[33]  Dr Read conceded during cross-examination that there were no objective facts to support the conclusion that the appellant suffered a cervical spine injury.  He stated that he based this conclusion on what he was told by the appellant.  This relates also to the existence of the problem he (the appellant) might have had prior to the accident.  He concluded that the orthopaedic injuries suffered by the appellant did not render him totally unemployable, but contended that he could not work as a welder.

[34]  Ms Carli Brummer, the occupational therapist, was the fourth witness of the appellant.  She saw him on 20 May 2015 and at that meeting, the appellant reported to her that:

a) He experienced daily headaches.

b) Had shoulder discomfort when doing welding job.

c) Had difficulties in lifting heavy pieces of steel.

d) Had difficulties in welding elevated plates.

e) Spent 50% of his working day crouching.

f) Occasionally works with his arms elevated.

g) Occasionally has to kneel down when working.

[35] She concluded by stating that the appellant’s work can be considered to have physical demands of medium nature.  She also stated that whenever the appellant’s blood pressure elevates, he develops a shoulder fatigue and this is so whenever he is carrying heavy objects.  She accepted that the appellant could perform light duties.

[36]  The other conclusion made by Ms Brummer was that the appellant could not be able to perform work as a welder after the accident.  In other words, he would experience difficulties in performing the task that he performed prior to the accident.  This does not mean that he was totally incapacitated but that he would benefit from occupational therapy.  His work as a welder was considered medium, but that he was unlikely to be able to resume work as a welder because of the significant operation he would need to undergo.

[37]  She conceded during cross-examination that her report was based on what she was told by the appellant and in particular as to the nature of the work he was doing.  She never conducted an inspection at the workplace to determine the nature of the welding work done by the appellant.  She also conceded that the appellant could do welding work as long as it did not put stress on his shoulder and did not involve repetitive hand movement.

[38]  She also conceded that the appellant could work as long as it was work that did not place physical demand on his shoulder.  She was unable to test the appellant’s maximum ability to perform his work because on the day she consulted with him, his blood pressure was too high.

[39]  Ms Hovsha, the neuropsychologist testified about the interview with the appellant concerning the injuries he sustained as a result of the accident.  She explained that his GCS was 15 out of 15.  She found that the appellant suffered a mild concussive traumatic brain injury.

[40]  The appellant complained to her about the pain in his left shoulder and that he was no longer able to do his welding job. The appellant told her that he sustained a traumatic brain injury, the laceration of his forehead and contusion to his chest wall, fracture of his left clavicle and a fracture of the left fibula. This information according to her was in line with the report of Dr Read.

[41] Her role in the process had to do with the general functioning of the brain rather than orthopaedic which was the responsibility of Dr Read.

[42]  In relation to the loss of consciousness, she noted that the appellant’s GCS as being 15 out of 15.  She indicated that the medical record from the hospital recorded that he did not lose consciousness.  The conclusion that the appellant lost consciousness seems to come from what the appellant told her.  The GCS of 15 out of 15 does not according to her mean that he was unconscious, but simply means that he was alert and understood all the questions posed to him at the time he was being examined.  In simple terms, this means that he was conscious.

[43] She explained that patients with GCS of 15 out of 15 may in the long term develop severe neuropsychological cognitive fallouts.  In response to the question posed by the court as to why reliance should be placed on the test when it is so unreliable, she responded by saying that the long-term variances are looked at as it gives an indication as to the severity of the injury suffered regardless of the score at the time of the accident.

[44]  She further confirmed what is stated in her report that the appellant sustained a mild concussive traumatic brain injury.  The relevant part of the report which was read into the record reads as follows:

“Given the period of loss of consciousness, Mr Malema sustained and the fact that on examination some hours later at Tambo Hospital, his GCS was 15 out of 15.  The writer concludes that Mr Malema sustained a mild concussive traumatic brain injury.  The fact that he sustained a laceration to his forehead which required suturing indicates that he sustained trauma to his head”.

[45] In summary she found that the appellant suffered cognitive deficits as a result of the accident.  The cognitive functioning of the appellant which was very low was consequent to the accident.  Both the cognitive and physical deficits suffered due to the accident severely curtailed prospects of future employment of the appellant.

[46] She also testified that she did not find any signs of the appellant’s malingering in relation to the complaints he made during the examination.

[47] As indicated above, the accident occurred during 2007 and the evaluation of the appellant by Ms Hovsha was done two and a half years later, on 4 October 2009.  At the time of writing the report she had Dr Morule’s report, of 2009 which was two years old, the medical record from the time of the accident.  She did not have any medical record prior to the accident neither did she have any record of the appellant losing consciousness as a result of the accident.

[48] She conceded that the conclusion that the appellant lost consciousness was mainly based on what she was told by the appellant.  According to her, the appellant informed her that he recalls being ejected out of the car at the point of the impact.  He has no recollection of what happened after he was ejected out of the motor vehicle.

[49] During cross-examination, Ms Hovsha, conceded that her conclusion was subjective, having regard in particular, to the fact that she spoke to nobody to corroborate the version of the appellant that he lost consciousness at the time of the accident.  And in relation to the findings that the appellant suffered severe traumatic brain injury, she conceded that the symptoms would have manifested themselves, if not immediately then at least within six months from the date of the accident.  She also in this respect conceded that once the symptoms manifested themselves, they would have immediately been noticeable at home as well as at work.

[50] The pre-mobid assessment of the appellant is not supported by any objective facts except for his say so.  This includes the appellant having informed her that he was not able to return to work after the accident.  In light of this, it would seem Ms Hovsha could not express an objective view as to whether the appellant’s injuries both cognitively and physically influenced his work capabilities.  She in this respect testified that because of the severe brain injury, his cognitive deficit would require him to work under supervision and concepts would have to be explained to him.

[51] When asked how the appellant would have managed to work for fourteen months after the accident, she responded as follows:

“I cannot comment on that because I was not informed that he had worked for that period.  I was not told that he was not able to work after the accident.”

[52] She also did not have information that the appellant, in addition to working the ordinary working hours, also worked voluntary overtime.  And when it was put to her that this information was not in keeping with her test result she responded as follows:

“It would be very difficult and just given his complaints of pain and difficulty even from a physical point of view and from his depression it would be difficult.”

 

The case for the defendant

[53] The first witness of the defendant was Ms Van der Linde; the creditors clerk of Condra at the time of the resignation of the appellant.  She testified that the appellant was at the time employed on a full-time basis and was reporting to Mr Jan van Sandt.  She also testified about the benefits that the appellant had, as an employee which included sick leave, annual leave, family responsibility leave and bonuses.  He was entitled to thirty days sick leave in a cycle of three years.

[54] If the period of sick leave was exhausted he was entitled to claim from the Sick Pay Fund, which would be made depending on the recommendation from a medical practitioner.  At the time of the accident the record revealed that the appellant qualified for twenty days annual leave and twenty four sick days leave.

[55]  She further testified that she was not aware that the appellant was involved in an accident until 2011 when she received an email from his attorneys of record.  The only thing she received during that period was a sick note indicating that the appellant was booked off sick for three days from 1 to 4 December 2007.  The medical note simply indicated that the appellant was booked off sick because he had “soft tissue injuries.”  There was no indication from the note that he was involved in a motor vehicle accident.

[56]  In relation to the appellant’s performance she testified that she never received any complaints about his work.

[57]  She testified during cross-examination that the appellant did not, except for saying that he was resigning for personal reasons, mentioned any other reason

[58]  Professor Scheepers, was called as an expert orthopaedic by the defendant.  He reviewed all the medical reports of the appellant including the hospital records and x-rays before formulating his opinion.  He agreed with Dr Morule’s finding that the appellant had a mild post fracture pain on the left lower leg.  He took x-rays on 11 January 2012 which revealed that the collarbone was the same as the previous report.  There was an indication of a little irregularity at the inferior glenoid limb which is at the end of the shoulder. He did not agree with this report because, in his view, the shoulder was normal.

[59] He, in his conclusion found that the appellant’s upper limb showed no muscle wasting and his shoulder showed no area of tenderness.  He also referred to the ultrasound made by Dr Morule, which was normal. There was no indication at the time of the rotated cuff symptoms.

[60]  He further stated in his report that the appellant sustained a fracture of his clavicle which had united.  He could not find any clinical explanation for the complaint of the appellant about his shoulder.  The prognosis according to him was good.  He further stated that from the orthopaedic point of view, the appellant needed to be rehabilitated through medication and physiotherapy.

[61]  As concerning his capacity to work, Prof Scheepers found that there was no reason why the appellant could not continue working as a welder and did not agree with Dr. Read that if he was to do that he would do it with considerable pains.

[62]  As concerning the suggested amendment to the joint minutes by Dr. Read, he confirmed having discussed the matter with him when they met during their jogging.  He made no undertaking about what was proposed but simply indicated that he would look at the matter when he arrives at home.  He also informed him that he would have to phone the defendant’s attorneys because it was more than two years that he had dealt with the matter.

[63]  Ms. Christa du Toit, the industrial psychologist, confirmed in her testimony the contents of her report.  She testified about the telephone interview she had with Mr. Van Standt, who informed her that the appellant left his employment for a better paying job.  She also confirmed the finding in her report that the Appellant should have been able to work until retirement, but decided to retire at the age of fifty-five years instead of sixty-five.

[64]  I now proceed to consider of the grounds of appeal upon which the appellant relies on in challenging the judgment of the lower court.

Rejecting the evidence of Dr. Read and accepting that of Prof Scheepers taken together with that of Dr. Morule.

[65] The first criticism of the judgment of the court below by the appellant relates to rejection of the testimony of Dr Read and accepting that of Prof Scheepers and Dr Morule.

[66]  As already mentioned the hospital records indicate the appellant's GCS was 15 out of 15, which means that the appellant did not lose consciousness at the point of the accident.

[67]  It is common cause that the appellant was treated with a collar and cuff and crepe bandage. The hospital records also indicated that the appellant suffered a fractured clavicle, fractured fibula, laceration to the forehead and chest contusion

[68] In his report dated 28 May 2009 Dr Morule stated that the appellant informed him that he lost consciousness when he was thrown out of the car. And in relation to the injuries sustained by the appellant Dr  Morule stated that the appellant according to the hospital records had a contusion of the chest wall, contusion of the forehead, a fracture of the left clavicle  and a fracture of the left fibula shaft.

[69]  In assessing the appellant Dr. Morule took into account the history given to him by the appellant, the hospital records and the RAF Form 1. He found that the appellant sustained the following injuries :

a. A closed fracture in the middle segment of the left clavicle;

b. A closed fracture of the left fibula head.

c. A severe acute neck sprain or whiplash injury, post-traumatic cervical disc disease at C5- C6 level;

[70] Dr Read made the following critical  concessions during his cross examination, namely:

a. The hospital records and RAF Form 1 do not mention the cervical spine injury.

b. There was no objective evidence which enabled him to conclude that the injury to the cervical spine was sustained in the collision.

[71] The conclusion to draw from the above is that Dr Read's expert opinion was based on facts which could not be objectively sustained. It is therefore as stated by Spilg J in Ndlovu v Road Accident Fund,[1] "of little value." Accordingly, the court below cannot be faulted for rejecting his testimony.

Laceration of the forehead.

[72] The RAF Form 1 as alluded to earlier indicates that the nature of the injury sustained by the appellant was contusion and laceration of the forehead.  The appellant as appears from the discussion under the heading, “Application to amend the pleadings,” sought unsuccessfully to include, head injury, symptomatic of a whiplash type injury into his pleadings.

[73] While the respondent admitted that the appellant sustained chest contusion, a fractured clavicle, a laceration to his forehead and a fracture to his left fibula, it disputed the injuries to the; disease at C5 and C6 level and the minor concussive head injury. The proposition made in the appellant’s heads of argument that the respondent conceded to the latter injuries is in my view incorrect.

[74] In my view, the case of the appellant would still have been unsustainable even if the proposition that the respondent conceded to the assertion made in the heads of argument was to be accepted. The case fails because of the opinion expressed by the experts.

[75]  Although there are some variances as to the extent of the ability of the appellant to work, the experts agreed that he could still be able to work after the accident. Dr Read for instance accepted during evidence in chief that the appellant, "can work provided that he does not put excessive strain on his shoulder."

[76] In the joint minutes the orthopaedic surgeons agreed that the appellant would be able to work in an occupation that does not place excessive stress on his left shoulder, cervical spine and the knee.

[77] The neurologist Dr Wolberg found that the appellant's ability to work was related to his orthopaedic injuries. Dr Morule found that the appellant was able to continue working as a welder until he retired.

[78]  The focus, in seeking to show that the court below erred in its assessment of the evidence is based on the differences between the findings of Dr. Morule and Prof Scheepers about the C5-C6 injury. As indicated earlier the issue of C5 – C6 injury does not appear on the hospital records nor the RAF Form 1. This issue was raised by the appellant two years after the accident when he was making his report to Dr. Morule.

[79]  Dr. Morule and Prof Scheepers are in agreement that in as far as the orthopaedic injuries of the appellant were concerned the prognosis was good. In this respect the appellant was assessed by Dr. Morule on 25 May 2009 and by Dr. Read on 21 October 2011 and by Prof Scheepers on 11 January 2012.

[80]  In his report Dr. Read found that the appellant sustained soft tissue injury to the cervical spine and left knee.  He conceded during cross-examination that the hospital records and the RAF Form 1 did not reflect cervical spine injury.

[81] It is also important to note that Dr. Read did not see any pre-accident record of the appellant in order to  objectively state that the injury to the appellant cervical spine was due to the collision. He also could not differentiate between the symptoms of pain emanating from the left shoulder and the cervical spine. He does not state as to whether the symptoms were from the shoulder and not from the cervical spine. It was for this reason that he indicated that further investigation was required.

[82]  The other concession made by Dr. Read was that without MRI scan he could not diagnose a rotator cuff syndrome.

 

The ultra sound scan

[83]  The ultrasound scan dated 26 May 2009 indicated that the rotator cuff was clinically intact and that there was no thinning calcification or tendinitis which means the appellant's shoulder was normal.

[84] The ultrasound was performed by Dr. Morule two years earlier, and thus it was not possible unless the appellant sustained other injuries later, that there would be a deterioration.

[85]  Dr Read conceded that it was necessary to do the MRI scan, otherwise, he could not diagnose an impingement syndrome.

The credibility of Prof Scheepers

[86]  In contending that the court below ought to have rejected the evidence of Prof Scheepers, the appellant relied on the comments made about him in the case of Fulton v Road Accident Fund,[2] where the court criticised his conduct as an expert witness.

[87]  Before dealing with the principles governing the assessment of credibility of a witness it is important to note that Prof Scheepers was never during the trial confronted with was said about him in that case. He was thus, was not afford an opportunity to respond to the criticism by the court and in particular to give his version as to the context in which it happened.

[88]  It is trite that the Court of Appeal will not readily interfere with findings of credibility made by the trial court. The reason for this approach is set out in Ntelekoa and Another v S,[3] in the following terms:

“[4] Where an appeal is lodged against a trial court’s findings of fact, the court of appeal must take into account that the court a quo was in a more favourable position than itself to form a judgment. When inferences from proven facts are in issue, the court a quo may also be in a more favourable position than the court of appeal, because it is better able to judge what is probable or improbable in the light of its observations of witnesses who have appeared before it. Therefore, where there have been no misdirections on fact a court of appeal assumes that the court a quo’s findings are correct and will accept these findings, unless it is convinced that they are wrong. See R v Dhlumayo and Another 1948 (2) SA 677 (AD) at 705 - 6.

[5] Therefore, in order to interfere with the court a quo’s judgment it has to be established that there were misdirection of fact, either where reasons on their face are unsatisfactory, or where the record shows them to be such. See also S v Monyane and Others 2008 (1) SACR 543 (SCA) at para [15] where the Supreme Court of Appeal stated that it is only in exceptional cases that that Court will be entitled to interfere with the trial court’s evaluation of oral evidence, and I quote: “This court's powers to interfere on appeal with the findings of fact of a trial court are limited. It has not been suggested that the trial court misdirected itself in any respect. In the absence of demonstrable and material misdirection by the trial court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong (S v Hadebe and Others 1997 (2) SACR 641 (SCA) at 645e - f). This, in my view, is certainly not a case in which a thorough reading of the record leaves me in any doubt as to the correctness of the trial court's factual findings. Bearing in mind the advantage that a trial court has of seeing, hearing and appraising a witness, it is only in exceptional cases that this court will be entitled to interfere with a trial court's evaluation of oral testimony (S v Francis 1991 (1) SACR 198 (A) at 204E).”

[89] The court of appeal will however interfere with the decision of the lower court where the findings are plainly wrong or the reasons given for the finding are seriously flawed.[4]

[90] It is apparent from the above authorities that for a court of appeal to interfere with a credibility finding of a lower court, a litigant has to demonstrate a material misdirection by the trial court. In my view, the appellant in the present matter has failed to show any misdirection on the part of the court below in accepting the Prof Scheepers’ version.

The evidence of Ms.Hovsha, Dr Wolberg and Ms Kekana

[91] It is clear from the summary of the evidence set out earlier in this judgment that the court below was correct in rejecting the version of Ms. Hovsha. There was in this respect no objective evidence to support the version that the appellant lost consciousness at the time of the accident or had brain injury. And more importantly the version of Ms Hovsha could not assist the case of the appellant because as will appear later in this judgment it was not pleaded in the particulars of claim.

[92] Although Ms Kekana, did not testify, her report together with the joint minutes with Ms Brummer was accepted by the court below in evidence. The issue of the purpose and the binding effect of joint minutes of experts received attention in Mokwena v South African Rail Commuters.[5] In that case the court, per Kubushi J, held that joint minutes were binding on the parties. The learned judge set out the principles  governing this issue in the following terms: 

“  [44] The principles which pertains to the weight and/or value to be placed on the joint minutes of the expert witnesses or agreements entered into by the parties are enunciated as follows in Thomas v BD Sarens (Pty) Ltd (2007/6636) [2012] ZAGPJHC 161 (12 September 2012  para [10] – [15]:

i. Where the experts called by opposing litigants meet and reach agreements about facts or about opinions, those agreements bind both litigants to the extent of such agreements. No litigant may repudiate an agreement to which its expert is a party, unless it does so clearly and, at the very latest, at the outset of the trial. It is self-evident that to do so at so late a stage is undesirable because it may provoke delay, but that is a practical aspect not touching on any principle. It is conceivable that very exceptional circumstances might exist that allow a litigant to repudiate an opinion later than this moment, such as fraudulent collusion, or some other act of gross misconduct by the expert.

ii. Where experts are asked or are required to supply facts, either from their own investigations, or from their own researches, and an agreement is reached with the other party’s experts about such facts, such an agreement on the facts enjoys the same de facto status as facts that are expressly common cause on the pleadings or facts agreed in a pre-trial conference or in an exchange of admissions.

iii. Where two or more experts meet and agree on an opinion, although the parties are not at liberty to repudiate such an agreement placed before the court, it does not follow that a court is bound to defer to the agreed opinion. In practice, doubtlessly rare, a court may reject an agreed opinion on any of a number of grounds all amounting to the same thing; ie the proffered opinion was unconvincing. (Menday v Protea Assurance Co Ltd  1976 (1) SA 565 (E) at 669B-E.) The rationale for not affording a litigant the same free hand derives purely from the imperative of orderly litigation and the fairness due to every litigant to know, from the beginning of a trial, what the case is that has to be met.

iv. The upshot of these principles is that it is illegitimate to cross-examine an opponent’s witness to undermine an agreed position on fact or on opinion unless, before the trial begins, the opinion of a party’s own expert has been formally repudiated. No litigant shall be required to endure the risk of preparing for trial on a premise that an issue is resolved only to find it is challenged.

v. Furthermore, an opinion may only be admitted into evidence on two bases. The first is that there is an agreement that it may be so admitted. The second is that the rules of court, especially Rule 35, have been complied with or compliance therewith has been excused by the adversary. It is therefore not permissible to refer to a letter or a report of a medical practitioner for the purpose of invoking and relying on an opinion expressed therein, if it was not the subject of proper notice in terms of the Rules. However, it may sometimes be permissible to refer to a fact recorded in such a document and any controversy about so doing falls to be decided in accordance with the rules of evidence as to the reliability of such evidence to establish the particular fact.”

[45] I am in respectful alignment with the abovementioned principles and I find them apposite in this instance.  To my mind the parties were common cause as to the agreement entered into by their expert witnesses in respect of the opinions expressed in the joint minutes.  The defendants’ counsel did not at the outset of the proceedings repudiate the joint minutes to which the defendants’ expert witnesses were party to.  In fact she at the beginning of the trial confirmed that the joint minutes were not contested and should be handed in as part of the record.   The reports were challenged only during cross examination and/or when addressing me at the end of the trial without raising any exceptional or any circumstances at all for doing so. And as already stated no litigant should endure the risk of preparing for trial on a premise that an issue is resolved only to find it is challenged.  Similarly in this instance it is wrong for the defendants’ counsel to challenge issues which were at the outset of the trial common cause between the parties. Even though, as suggested by the defendants’ counsel, it remains the duty of the court not merely to accept the opinion of an expert witness without satisfying itself that such witness is correct, the joint minutes and the agreements remain binding between the parties. The court must weigh the opinion, along with all the other evidence in deciding the case but should as well take into account the facts and/or data which is common cause between the parties and the expert witnesses.  Such facts and any agreement on the facts enjoys the same de facto status as facts that are expressly common cause on the pleadings or facts agreed in a pre-trial conference or in an exchange of admissions. My view is that this challenge by the defendants’ counsel is misplaced and should be rejected.

My above ruling covers the issue raised on the failure by the plaintiff to call the orthopaedic surgeon to give evidence on the requirement for future surgery by the plaintiff.  The two orthopaedic surgeons are agreed in their joint minute that the provision should be made for revision surgery of the hip and knee should such need arise.  There was thus no reason for the plaintiff call the orthopaedic surgeon to come and regurgitate this evidence.

It is also per agreement between the occupational therapists in their joint minute to allow the use of a motor vehicle.  The calculations by Jacobson are sufficient for this purpose.  The undisputed evidence before me is that Jacobson is experienced in such things.  I am thus satisfied that this expense should be allowed.”

[93] There seem to be no doubt, considering the above discussion, that the court below cannot be faulted for accepting the report of Ms Kekana, together with the joint minutes with Ms Brummer.

 

Patrimonial loss

[94] The approach to adopt when dealing with the issue of patrimonial loss was dealt with in Rudman v RAF,[6] in the following terms:

“[11] In my opinion the learned Judge in the court a quo has not misdirected himself in his understanding of these authorities or in his application of the law to the facts. His judgment correctly emphasises that where a person’s earning capacity has been compromised, “that incapacity constitutes a loss, if such loss diminishes the estate” (Rumpff CJ in the above quotation from Dippenaar’s case (supra)) and “he is entitled to be compensated to the extent that his patrimony has been diminished” (Smalberger JA in President Insurance Co Ltd v Mathews). (The underlining is from the trial judge’s judgment.) In his view, Rudman’s disability giving rise to a diminished earning incapacity was proved, but the evidence did not go further and prove that his incapacity constituted a loss which diminished his estate.

I believe that this conclusion is correct. The fallacy in Mr Eksteen’s criticism is that it assumes that Rudman suffers loss once he proves that his physical disabilities bring about a reduction in his earning capacity; thereafter all that remains is to quantify the loss. This assumption cannot be made. A physical disability which impacts upon capacity to earn does not necessarily reduce the estate or patrimony of the person injured. It may in some cases follow quite readily that it does, but not on the facts of this case. There must be proof that the reduction in earning capacity indeed gives rise to pecuniary loss. Thus, in Union and National Insurance Co Ltd v Coetzee, which is referred to in the passage quoted above from Dippenaar’s case (supra)  and which deals with a lump sum award for loss of earning capacity, Jansen JA makes the point  that “’n [b]epaalde liggaamlike gebrek bring egter nie noodwendig ’n vermindering van verdienvermoë mee nie of altyd ’n vermindering van gelyke omvang nie – dit hang oa af van die soort werk waarteen die gebrek beoordeel word”. (My underlining.)  This is what is emphasised by the learned trial Judge in the passages quoted from his judgment which he has underlined.

[95] In the present case the court below found that the injury sustained in the accident did not cause the appellant patrimonial loss in earning capacity. In arriving at this conclusion, it took into account the totality of the facts and the circumstances of the case and in particular the fact that soon after the accident the appellant resumed his duties and, continued working for 14 months after that.  It further found that the nature of his injuries does not render him unemployable, but that it was his action in voluntarily resigning from his employ at an advanced age that rendered him unemployable. In other words, there was no causal connection between the injuries suffered due to the accident and the loss of earnings that the appellant suffered.

[96]  In my view the court was correct in arriving at the conclusion as it did, as there is no conclusive evidence that the injury sustained by the appellant in the accident rendered him unemployable and caused him patrimonial loss.

[97]  It is apparent from the reading of the record that the actuarial calculation including the contingencies applied was done on the premises that the appellant was rendered unemployable due to his injuries arising from the motor vehicle accident.

[98]  The calculation fails to take into account that once the appellant had been treated for injuries suffered he would be able to do work that does not place stress on his left shoulder; cervical spine and the knee. The appellant placed no evidence before the court below that he would suffer a loss of income once he had received treatment and was possibly accommodated in another position that was accommodative of his condition by his employer.

Failure to call Mr Ben Coetzee and Mr Kleiner

[99] It is trite that a court may draw an adverse inference from a party which fails to testify or present evidence of a witness who is willing and available to testify.  This principle carries more weight in particular if that witness would assist in clarifying issues or facts before the court.

[100] In Elgin Fireclays Ltd v Webb,[7] the court said: 

“[I]t is true that if a party fails to place the evidence of a witness, who is available and able to elucidate the facts before the trial court, this failure leads naturally to the inference that he fears that such evidence will expose facts unfavourable to him. But the inference is only a proper one if the evidence is available and would elucidate facts.

[101]  In the case of Mr Cotzee it is clear that he could not be called as a witness because he had passed away during 2013. And in the case of Mr Kleiner, it is apparent from the record that he was not willing to testify on behalf of the respondent.

[102]  I am in agreement, with the contention that in the circumstances of this case, it would have been inappropriate for the court below to have drawn an adverse inference against the respondent for not calling the two witnesses. In other words there was no basis to draw a negative inference against the respondent for not calling the two.

Application to amend the pleadings.

[103]  The application to amend was moved from the bar by Mr Zimmerman, for the appellant.  It would appear from the reading of the transcript that the application was moved immediately after the completion of the evidence of Ms. Hovsha.

[104]  In moving the application, Mr. Zimmerman indicated that he noted that Counsel for the respondent had pointed out that the words “depression” was not set out in the particulars of claim.

[105] He sought to add to paragraph 6.6 of the particulars of claim of the appellant the wording to the effect that the plaintiff suffered “mild concussive head injury, symptomatic of a whiplash type of injury” due to the accident. And to add to paragraph 6.7 the following wording: “severe traumatic brain injury with a diffusion.”

[106] It was contended that the above would be in line with Dr. Wolberg’s report which according to the appellant was not contested by the respondent.  

[107]  As pointed out above the amendment was based on the reports of Dr. Wolber and Ms. Hovsha, which according to Mr. Zimmerman were never disputed by the respondent since they were filed either in 2011 or 2012.  And further that Dr. Wolberg’s report was admitted and this included the fact that it was agreed that he would not be called as a witness.  The additional point which was made was that Ms. Hovsha testified and was cross-examined on this issue.  It was for these reasons that it was contended that the defendant would not be prejudiced by the amendment.

[108]  Mr. Zimmerman argued before this court that the amendment sought was no more than an elaboration of what had already been pleaded. He also equated the proposed amendment to dotting the “I’s” and jotting the “T’s.”

[109] It was further argued that the respondent would suffer no prejudice because the wording which the amendment sought to introduce was already covered in the reports of Dr. Wolberg and Ms. Hovsha.  The argument went further to say any prejudice that the respondent would suffer could have been cured by a postponement and an order for costs.

[110] The principles to apply when dealing with an application to amend are well established in our law. These principles are based on the consideration that pleadings allow for proper ventilation of a dispute between the parties. It for this reason that the courts have adopted a liberal approach in dealing with an application for an amendment of pleadings. The approach has been that an amendment would always be allowed unless it is prejudicial to the other party.

[111] The general principles governing an application for an amendment are well summarised in  Commercial Union Assurance Co Ltd v Waymark NO, [8] in the head note as follows:

“1. The Court has a discretion whether to grant or refuse an amendment.

2. An amendment cannot be granted for the mere asking; some explanation must be offered therefor.

3. The applicant must show that prima facie the amendment has something deserving of consideration, a triable issue'.

4. The modern tendency lies in favour of an amendment if such facilitates the proper ventilation of the dispute between the parties.

5. The party seeking the amendment must not be mala fide.

6. The amendment must not 'cause an injustice to the other side which cannot be compensated by costs'.

7. The amendment should not be refused simply to punish the applicant for neglect.

8. A mere loss of (the opportunity of gaining) time is no reason, in itself, for refusing the application.

9. If the amendment is not sought timeously, some reason must be given for the delay. (At 77F-I.)”

[112]  As concerning the requirement to provide an explanation for an amendment the court in Zarug v Parvathie NO,[9] per Henochsberg J said:

“An amendment cannot however be had for the mere asking. Some explanation must be offered as to why the amendment is required and if the application for amendment is not timeously made, some reasonably satisfactory account must be given for the delay.”

[113] The above approach was followed by Caney J, in Trans-Drakensberg Bank Ltd (under Judicial Management) v Combined Engineering (Pty) Ltd and Another,[10] where the learned Judge said:

“Having already made his case in his pleading, if he wishes to change or add to this, he must explain the reason and show prima facie that he has something deserving of consideration, a triable issue; he cannot be allowed to harass his opponent by an amendment which has no foundation.  He cannot place on the record an issue for which he has no supporting evidence, where evidence is required, or, save perhaps in exceptional circumstances, introduce an amendment which would make the pleading excipiable.”

[114] The basic consideration, in addition to the above, is that access to justice is also a significant factor in the determination of an application for an amendment of pleadings in particular where leave to amend would result in the postponement of the matter.[11]

[115]  Consideration of access of justice as a factor in the determination of an application to amend pleadings has its basis in s 34 of the Constitution which requires speedy resolution of disputes. This approach which is more liberal than the traditional approach should be preferred because it is based on a Constitutional imperative. 

[116]  It seems to me that the principle of speedy resolution of disputes induces a legitimate expectation that once a trial has commenced, as was the case in the present matter, it will not be postponed for the mere purposes of filing an amendment without providing persuasive reasons why the indulgence should be granted. 

[117] The approach based on access to justice and speedy resolution of disputes was adopted in Randa v Radopile Projects CC,[12] where the high court on appeal was faced with a situation similar to that of the present case. At the time when the application to amend the pleadings was made, the trial court, in that case, had already commenced and two expert witnesses of the respondent had already testified and were cross-examined. In refusing to grant leave to amend the pleadings the trial court found that the appellant had from May 2009 until November 2010 to apply for the amendment. It further found that if the application to amend the pleadings was granted it would result in further delays in the matter and that would cause prejudice on the respondent which could not be cured by an order of costs.

[118] The appeal court in upholding the decision of the trial court, per Willis J held that:

“We are now well advanced in a trial action. The amendment, if granted, will necessitate the recalling of witnesses and may also necessitate the need to subpoena witnesses whom it was not previously intended to call the other party. The litigant seeking the amendment ought reasonably to have known, a long time ago, what his case was all about. If the amendment is granted, a postponement will have to follow. A postponement will result in a part-heard trial, bringing about massive inconvenience, not only to the other side but also their witnesses and the Court as well. The registrar’s office will be vexed. Even if the Court makes costs order against the party seeking the amendment, it is far from certain that the other side will succeed in fully recovering costs upon taxation.”

[119] In dismissing the application to amend the court below reasoned that the appellant knew throughout the existence of the case that he was exchanging papers with the defendant that he sustained a head injury otherwise it would be difficult to explain why he sought the assistance of Dr. Wolberg and Ms. Hovsha. It further found that if the amendment was granted at that late stage that would have resulted in a postponement.  The postponement would, according to the trial court have resulted in huge costs to the defendant and delayed the finalisation of the case. 

[120] In my view, the learned Judge in considering the application was alive to the legal principles governing an application to amend the particulars of claim.  He applied his mind fully to the facts and the circumstances of the matter before refusing to grant leave to amend the pleadings.  He, therefore, cannot be criticised for failing to exercise his discretion properly in refusing to grant leave to amend the pleadings.

[121] The reasons proffered for requesting the amendment at that late stage of the proceedings were also not convincing.  The appellant and his attorneys have had the expert reports upon which the amendment was to be based on since 2012.  There is no explanation as to why an application was not made earlier.  I also do not agree that the amendment would have been a mere formality.  It would have necessitated a postponement and a further preparation of the trial. The respondent’s preparation may have had to take a different direction. The respondent would, for instance, have had to obtain witnesses to verify the allegation that the appellant was thrown out of the car upon impact at the time of the accident.

[122] As concerning the postponement with an order of costs for the purposes of addressing prejudice arising from that, it is apparent that the court below fully appreciated that, that would not serve the interest of justice. The postponement would have occasioned an unnecessary delay in the finalisation of the trial.

[123]  It is evidently clear from the facts and the circumstances of this case that failure to plead a mild concussive head injury or a traumatic brain injury had a significant implication for the case of the appellant. This in my view received proper attention from the court below.

[124]  In the present matter as indicated above, the amendment sought was to add at paragraph 6.6 the injury; “mild concussive head injury, symptomatic of whiplash type injury” at paragraph 6.7 to add “severe traumatic brain injury with diffusion.”

[125] It was argued on behalf of the appellant that the amendment sought was no more than an elaboration of what had already been pleaded.  The application was also equated to dotting the “I’s” and the “T’s”. I do, as would appear from the above discussion, agree with this proposition.

 

Weighing evidence of the appellant

[126] It is apparent from the reading of the judgment that the court below properly evaluated the evidence of the appellant and correctly came to the conclusion that it was improbable. In arriving at this conclusion the court took into account the following tested facts:

a. The appellant returned to work four days after the accident and started working without informing anybody about the accident.

b. His sick note from the hospital which was submitted to Ms Kleiner indicated that he had soft tissue injuries and was booked off sick from 1 to 4 December 2007.

c. His evidence that he worked under pain and did so because of the policy of “no work no pay” is highly improbable, in light of the unchallenged version of Mr Van der Linde who testified that he was entitled to be paid sick leave and additional sick leave could be  obtained if necessary.

d. He took two days leave during 2008 and also worked voluntary overtime hours after the accident.

e. The appellant continued to work after the accident with no complaint from management about his performance.

f. He attended work regularly on his own version and there was never a complaint about his work performance except that he alleged that he was slow, but that issue was never apparently picked up by management.

g. He mentioned only once to Mr Van Standen during January 2008 that he had pain on his shoulder.

 

Failure to consider evidence

[127] The court below is criticised by the appellant for the approach it adopted in dealing with the evidence of Ms Van der Linden. The criticism relate to her reaction when the appellant told her that he was resigning. She testified that the appellant told her that he was resigning because he wanted his pension. This version was not contradicted by any other evidence on the part of the appellant. There was thus no evidence that the resignation was due to the injuries suffered by the appellant in the accident.

[128] The same applies to the testimony of Mr Van der Sandt, who testified that the appellant informed him that he was resigning because he had found another job.

[129] The court below correctly found that there was no basis in law to criticise the employer for not enquiring from the appellant as to why he was resigning.

[130] The court also, in accepting the experts’ version that the appellant would have worked until his retirement, found that had he not resigned, he may have been accommodated by his employer. The appellant's own version support the version that the employer may have accommodated him as there was already precedent in accommodating a  person who had suffered a stroke.

Conclusion

[131] In light of the above the court below cannot be faulted for concluding that the appellant failed to establish the direct nexus between the injuries sustained in the motor vehicle collision and his pecuniary loss. Based on the totality of the facts before the court below the probabilities favoured the conclusion that the direct cause of the pecuniary loss suffered by the applicant was his resignation. Accordingly, I find that the applicant’s appeal against the decision of the court below stands to fail.

Order

[132] In the circumstances the following order is proposed:

1. The appellant’s appeal is dismissed with costs.

 

 

E Molahlehi

Judge of the High Court of South Africa; Johannesburg.

 

I agree

 

_pp

R Sutherland

Judge of the High Court of South Africa; Johannesburg

 

I agree

 

_pp

T  Brenner

Acting Judge of the High Court of South Africa; Johannesburg

Representation:

For the Appellant: Adv N Mayet-Beukes

Instructed by: Mayat Nurick Langa Inc

For the Respondent: Mr. Zimmerman of  Taitz and Skikne  Attorneys.

Heared 5 June 2017

Delivered: 3 October 2017

 

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