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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 5803/2017

In the matter between:

NDLOVU MIQUESSEWE ISAIAS                                                       PLAINTIFF

AND

NOZUKO NXUSANI INCORPORATED                                          DEFENDANT

 

 JUDGMENT

 

TWALA J

[1] The defendant, an incorporated firm of attorneys, is an erstwhile firm of attorneys who acted on behalf of the plaintiff in a claim for damages arising out of a motor vehicle accident that occurred on the 9^th of March 2009 in Randburg. The claim of the plaintiff became prescribed in the hands of the defendant – hence this action against the defendant for professional negligence.

[2] It is common cause that the parties have reached settlement of the merits in the matter in that the defendant is liable for 80% of the plaintiff’s proven damages. Further the parties have since settled the general damages in the sum of R1 060 279.68 in final settlement of its claim.  The defendant has, however, disputed the fees of 3 of the experts of the plaintiff in that it was not necessary or reasonable for the plaintiff to engage their services and or that their reports are not opinions as prescribed by the law.

[3] The genesis of this matter is that the plaintiff was involved in a pedestrian/motor vehicle accident on the 9^th of March 2009. From the scene of the accident he was taken by his employer to a private doctor who, on examination, referred the plaintiff to Chris Hani Baragwanath hospital where he was admitted and discharged after 5 days. The hospital record noted on his admission that he is 49 years old and has been involved in a pedestrian/vehicle accident. The complaint was in pain and had swelling of the right elbow. Throughout his stay in hospital he was treated for the orthopaedic injuries.

[4] It is contended by Mr Shepstone for the defendant that it was not necessary for the plaintiff to engage the services of the 3 expert witnesses being, Prof Leggwara, a neurosurgeon, Dr Mokabane, a neurologist and Ms Lindiwe Maseko, a clinical psychologist. The plaintiff only mentioned that he lost consciousness on impact when he consulted these experts. However, so the argument went, these experts failed in their reports to show their reasoning for accepting the plaintiff’s allegation as correct that he lost consciousness on impact. They accepted the say so of the plaintiff and failed to show their reasoning process as to why they accepted the say so of the plaintiff and with no other collateral information – hence their reports are not expert opinion as they are not based on proven facts. It was further submitted that, even if the matter were to proceed to trial, the evidence of these witnesses would not have assisted the Court.

[5] Counsel for the plaintiff, Mr Lufele, contended that it was necessary for the attorneys for the plaintiff to investigate the head injury having been informed by the plaintiff that he lost consciousness on the scene of the accident. In their investigation they rely on the experts and they acted reasonably under the circumstances. It was further contended by Mr Lufele that the quality of the reports is a matter for another day but the reports do expresses an opinion with regard to the head injury and the sequelae thereto. Further, it was submitted that the plaintiff is an unsophisticated person and cannot be blamed for not informing the nurses and doctors at the hospital that he lost consciousness on impact and regained same whilst on the scene of the accident. This was not an issue at the hospital since he was very much conscious throughout his stay. There was no other manner in which the attorneys could have investigated whether the plaintiff sustained a head injury in the accident except to employ the services of these experts.

[6] It has been established in a number of cases that the referral of a litigant for medical legal examination by experts should only be done if it is necessary and reasonable in the circumstances of the case. Further, that an expert opinion should be underpinned by proper reasoning and must be based on correct facts.

[7] In Bee v Road Accident Fund (093/2017) [2018] ZSCA 52 (29 March 2018) the Supreme Court of Appeal per Seriti JA stated the following:

“It is trite that an expert witness is required to assist the court and not to usurp the function of the court. Expert witnesses are required to lay a factual basis for their conclusions and explain their reasoning to the court. The court must satisfy itself as to the correctness of the expert’s reasoning.

The facts on which the expert witness expresses an opinion must be capable of being reconciled with all other evidence in the case. For an opinion to be underpinned by proper reasoning, it must be based on correct facts. Incorrect facts militates against proper reasoning and the correct analysis of the facts is paramount for proper reasoning, failing which the court will not be able to properly assess the cogency of that opinion. An expert opinion which lacks proper reasoning is not helpful to the court.”

[8] I am mindful of the circumstances of this case in that it was handled by another attorney before it was taken over by the current one and the delays that were involved as submitted by counsel for the plaintiff. However, faced with the plaintiff who alleges to have been knocked unconscious at the time of the accident and hospital record which do not show anything or a complaint relating to a head injury, not even showing the recording of the glascow comma scale on admission or any MRI scan results, I am unable to comprehend why the clinical notes of the first treating doctor were not obtained. Further, it is incomprehensible why a statement was not obtained from the plaintiff’s employer as to the state in which he found the plaintiff when he took him to the private doctor on that day. I am of the respectful view that a diligent attorney would have obtained this information to ascertain whether the plaintiff was in fact knocked unconscious on the day of the accident before embarking on a costly exercise to engage the services of experts. The ineluctable conclusion is therefore that the referral of the plaintiff to the experts as part of the investigation of the head injury was unreasonable and unnecessary in the circumstances of this case.

[9] I had the benefit of perusing the reports of the experts which are an integral part of the dispute. I am unable disagree with counsel for the defendant that these reports do not meet the requirements as laid down in the case of Bee referred to above. All these experts saw the plaintiff between March and September 2017, eight years after the accident. There is nothing in these reports that link the headaches the plaintiff is complaining about to the accident nor is there any collateral information to support his allegation that he was knocked unconscious on the day in question.

[10] It is therefore my considered view that these expert reports and opinion are not based on the correct facts and are irreconcilable with all other evidence in this case. There is no process of reasoning upon which the opinions are based. I therefore hold the view that these reports and opinion were not going to be of any assistance to the Court even if these witnesses were called to testify. Therefore, all the fees of the 3 experts are disallowed.

[11] In the circumstances, I make the following order:

1. The draft order annexed hereto marked “X” is made an order of Court.

 

 

__________________

TWALA M L

JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION

 

Date of hearing: 11^th November 2019

Date of Judgment: 15^th November 2019

For the Plaintiff: Adv M Lufele

Instructed by: Nkosi Nkosana Inc

Tel: 011 894 6967

For the Defendant: Adv R Shepstone

Instructed by: Hogan Lovels (SA)

Tel: 011 523 6131

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