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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Appeal Case No: A5060/2012

Court A Quo Case No: 14826/2001

In the matter between:

ROBERTSON, DEIDRE THERESA Appellant

(Plaintiff a quo)

AND

ROAD ACCIDENT FUND Respondent

(Defendant a quo)

JUDGMENT

___________________________________________________________________

MANAMELA AJ

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES/NO

(3) REVISED.

…………………….. ………………………...

DATE SIGNATURE

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Introduction

[1] This is an appeal against a decision of the Honourable Mathopo J of this

division (the trial court) in respect of a claim by the appellant for damages arising out

of injuries sustained in a motor vehicle accident on the 17th of January 1998 on the

Allandale Road, Midrand, Gauteng Province. The trial court made no award in

respect of the appellant’s claim for loss of earnings or loss of earning capacity, as it

concluded that she did not sustain a significant brain injury with any long term or

permanent sequelae entitling her to such damages. However, she was awarded an

amount of R450 000 in respect of her claim for general damages. She is evidently

dissatisfied with both aspects of the trial court’s decision and launched this appeal

with leave of the trial court.

[2] Through the appeal she contends that, the trial court erred in making the

aforesaid findings , as due to her injuries and the sequelae of those injuries, she has

been severely compromised in all spheres of her life with a substantially reduced

earning capacity, as she cannot fulfil her dream of becoming a school teacher. Due

to her injuries or the sequelae of those injuries, she contends it will be difficult for her

to complete the studies for a teachers’ qualification; will take her longer to complete

the studies and even after becoming a teacher she will have difficulties functioning

as a teacher. She submits that an award in an amount of R10 075 499.00 for loss of

earnings /earning capacity should be made. In respect of her claim for general

damages, she contends that, the sequelae of her injuries marked a watershed

change in all spheres of her life with permanent disorders and severe physical

limitations and discomfort, which justified an award in an amount of R1 200 000,

instead of the amount of R450 000 awarded by the trial court.

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[3] On the other hand, the respondent prays for a dismissal of this appeal and

supports the trial court’s findings. As part of its opposition to this appeal, the

respondent adds that, although the trial court dismissed the appellant’s claim for loss

of earnings, only on the basis that she did not suffer a brain injury with adverse effect

on her career, the trial court could have arrived at the same outcome by finding that

the appellant’s career would have been the same without the injuries sustained in

the accident. It is apposite to record my en passant mental note [even at this early

stage] that, the trial court’s decision did not reject the appellant’s claim on the latter

basis, but only on the basis of absence of a significant brain injury. As far as the

respondent is concerned, there are a number of factors unrelated to the accident

which caused the appellant not to study or qualify as a teacher and would have

affected the functioning of the appellant as a teacher. In fact, the respondent holds

the view that, even today the appellant still has the ability to do so and the fact that

she is not a teacher is due to causes unrelated to the accident.

[4] The grounds of this appeal virtually cover almost every possible contour of the

evidential landscape of this matter. Consequently, the heads of argument filed on

behalf of both parties run into hundreds of pages and they refer to almost every

aspect of the matter in a record comprising of over five thousand pages. The

appellant’s explanation in this regard is that, the lack of brevity is precipitated by the

trial court’s findings and conclusions, and the respondent’s persisting opposition to

the appeal. I must say that, I do not necessarily find this explanation adequate and

further lament that, the prolixity was evidently contagious to this judgment, which

although not criss-crossing every issue raised in argument, was required by these

circumstances to go the distance. Therefore, I am employing headings and

subheadings [as a remedy].

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Appellant’s Personal Background and the Accident

[5] The appellant was born in 1971 and was around 27 years old when she was

involved in the accident. She emigrated to Scotland in March 1999 together with her

daughter, Kaitlyn and her husband Kevin Robertson, although they were not yet

married at the time. Her son Kieran was born in Scotland in 2001, the same year she

got married to his father [Kevin Robertson]. The appellant was born in Zimbabwe

although she later lived and schooled - in the environs of Johannesburg and

Durban. She was active in sports and participated in athletics, netball, gymnastics,

tennis and swimming at school. She also captained the second and first teams in

netball whilst in grades 11 and 12. However, her matric results did not match her

high-level athleticism and in 1989 she obtained an aggregate matric symbol of E1

[40 – 49%], which is a matric pass without exemption.

[6] At the time of the accident she was a key accounts consultant in the

marketing department of an entity called International SOS based in Sandton,

Johannesburg. She had started there as a secretary working for two executives.

As key accounts consultant, her job entailed a lot of liaison with key clients,

marketing and advertising on behalf of customers, and other administration duties.

[7] A month after arriving in Scotland, she became a customer service advisor in

the debt recovery department of an entity called Scottish Power. Her work entailed

making telephone calls to customers in arrears on their gas and electricity accounts,

and making arrangements with them for repayment. Although, the appellant

described this as difficult stressful work, she is later described by one of her

superiors from this entity as “a very hardworking, assured and positive member of

my team, with very bubbly personality…”; shows “great initiative and …excellent

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telephone manner...” and “will fit into any environment, or role she may be given.”1

This superior’s accolades continue with a report that “Deidre is very committed to

her job, and at times has turned up for work when clearly she is so unwell she should

be at home.”2

[8] She left Scottish Power and stayed at home for 10 months after the birth of

Kieran. Thereafter, she joined a financial institution called Merchants Limited in

December 2001 and worked there until June 2003. Her work entailed dealing with

customer’s bank accounts, cancelling direct debits and attending to customer

queries or requests. She had never done this kind of work before, but arose to

become an unofficial senior assisting others doing similar work. It is interesting to

note though that, just like it was the case with SOS International and Scottish Power,

here too she dealt with customers and performed other general administrative duties.

[9] She then decided to become a teacher and attended classes at Kilmarnock

College to obtain a Scottish Qualifications Certificate issued by the Scottish

Qualifications Authority (Scottish Highers) in order to gain admission to a university

degree. This was a switch from an earlier expressed career ambition of becoming a

sports physiotherapist. Also it is notable that, a teacher’s qualification would have

been her second attempt at a tertiary qualification after previously studying for a

national diploma in pharmaceutical marketing through Technikon South Africa. She

emigrated before completing the latter course and available evidence suggests that

she did not do well on this course.3 However, she obtained good marks in her

Scottish Highers.

1 Third paragraph of a letter by Mr. Alex Tait, Team Manager, Scottish Power, Glasgow [page 4423]. 2 Ibid at paragraph 4. 3 She passed six courses or modules over a period of about six years [pages 4354-6].

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[10] She was accepted at the University of Paisley (now University of West

Scotland) for a teaching degree and was due to start her studies in September

2004. However, when she applied for childcare assistance or childcare grant, she

was turned down. It is a source of critical contention between the parties whether this

was the sole or one of many reasons the appellant did not continue with her studies.

However, she later enrolled with Open University of Scotland for a degree and

turned in two assignments for which she obtained very excellent marks, but she

again discontinued her studies. This also has a bearing on the issues to be

determined in this appeal and I deal with both these issues later.

[11] In 2005 she applied for a job at the East Ayrshire Council and described

herself in the job application as someone without any medical condition that could

affect her work performance and that she did not have a health problem or disability

which she considered had a substantial or long term adverse effect on her ability to

carry out her activities.4 She also stated her previous duties and responsibilities as a

youth worker, among others, as “plan, participate in and supervise activities for youth

group members, liaise with members of the youth group, encourage and implement

positive behaviour.”5 The statements in the job application were to become a source

of great contention between the parties, as the respondent argued that, this is

indicative or even confirmation of the absence of frontal lobe deficits and the

appellant’s experts stating that, it is rather a confirmation of the appellant’s denial of

her current accident-compromised status.

[12] Be that as it may, her application above was successful and in June 2005 she

became a classroom assistant at Kilmarnock Academy, where she worked until

4 Application for employment for a classroom assistant [page 4392] 5 Ibid [at page 4393].

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August 2009, when she was transferred to Shortlees Primary School, also in

Kilmarnock, due to a reshuffling exercise by the authorities linked to the economic

recession. As Shortlees she was assigned to the arts and social studies

departments. Her work was equally split between administrative work [for the two

departments] and classroom duties, involving lower ability children with learning and

behavioural difficulties in first and second years of school. One of her colleagues, Ms

Joan Dunachie painted a picture, so to speak, of the working environment of a

classroom assistant in her affidavit tendered by agreement at the trial court. She,

among others, stated that, in general, “classroom assistants are the eyes and ears

of the teachers in these classrooms…” and the required traits for an effective

classroom assistant to include patience in the extreme; immense tolerance for and

understanding of the children’s learning and intellectual disabilities; effective

communication skills; ability to control one’s temper; ability to effectively co-operate

with the teachers and to effectively carry out their instructions, and an ability to assist

in the classroom without being disruptive to the teacher.6 There are further traits,

attributes and challenges stated by the teaching staff in affidavits and testimonials on

the appellant, to which I will devote attention a little later. For now, suffice to add

that, the respondent consider the reporting on the appellant to be proof that she is

coping and functioning very well in her job despite , her reported shortcomings or

deficits, which deficits have so far not attracted any formal complaints at the

workplace and disciplinary enquiry by the employer. The trial court agreed with this

submission and naturally, it would enjoy further attention below.7

[13] Against a backdrop of the overall contention that, she wanted to be a teacher

rather than a classroom assistant, the appellant [in terms of experts’ reports and their

6 Affidavit deposed to in June 2008 [pages 4443-7]. 7 Paragraphs 43, 70, 95,105 and 107 of the judgment of the trial court [pages 4995 -5055].

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testimony; her testimony and that of her husband and mother] painted a picture of

serious deterioration in her functioning at home, work and overall, since the accident

due to what is considered a brain injury. In this regard, the appellant complains that

she is not who she used to be before the accident and suffers from a number of

psychological or neuropsychological deficits resulting from the injuries sustained in

the accident, other than physical limitations. On the other hand and primarily through

expert opinion, the respondent disputes the extent or the severity of the brain injury

and the link between such injury and the deficits, alleged by the appellant. In

general, the link between the appellant’s alleged deficits and the accident.

[14] The accident occurred when the motor vehicle driven by the appellant collided

with another vehicle (the insured vehicle) as mentioned above. She sustained

injuries to the head (concussion and deep laceration on the forehead); the pelvis

(bruising of the right anterior iliac crest region); right ankle; left wrist (a fracture and

dislocation) and right elbow (laceration). Her injuries are common cause between the

parties. She was taken to the Carstenhof Clinic (the hospital) after the accident and

was discharged after spending a week there. Whilst in hospital, she underwent

surgery on her left wrist and had an air-cast on the right leg and plaster of Paris on

the left arm when she was discharged. She later reported that she could not

remember much of what happened whilst in hospital, despite the fact that her

hospital records state that there was no loss of consciousness; she had

conversations with the medical and nursing staff, and even reported the events or

activities there to her mother.

[15] After her discharge from hospital she was unable to work for about eight

weeks and was unable to fulfil some of her personal, maternal, and household

obligations or duties. She was scarred; continued to experience pain and had other

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difficulties due to the injuries. I will later deal in more details with the appellant’s

complaints or difficulties relevant to the issues to be determined herein.

Damages for Loss of Earnings/Loss of Earning Capacity

[16] She sued for damages on the basis of the negligence of the insured vehicle.

The respondent conceded full liability and admitted claims in respect of past hospital

and medical expenses.8 The trial court had to determine the issues relating to loss

of earnings/earning capacity and general damages. In preparation and proof of her

claims, she was examined, observed and/or tested by various experts regarding her

injuries and the probable sequelae of those injuries. Naturally, the findings, opinions

and testimony of these experts were extremely critical for the decision of the trial

court and remain critical for this court’s decision on appeal.

[17] Because the appellant’s claim - in the main - is on the basis that the brain

injury [or its sequelae] or the accident adversely affected her career prospects and

therefore her earnings or earning capacity, I deem it necessary to deal with the

injuries from the accident, both physical or orthopaedic injuries, and specifically the

brain injury under separate headings. I do so through an analysis of the expert

opinions as expressed in the reports or testimony before the trial court. I will be very

selective in this regard and will deal with only those views I regard as necessary for

the decision to be made. I have already described the enormous paper-load.

(a) Orthopaedic Injuries

[18] In no chronological order, the appellant was seen by Professor SL Biddulph,

Dr MBE Sweet and Mr C MacLeod, orthopaedic surgeons she employed at different

stages in this matter. Through an instruction of the respondent, Dr AF Pienaar

8 Paragraph 2 of the trial court’s judgment [page 4996].

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examined the appellant. In a joint minute of orthopaedic surgeons, Biddulph and

Pienaar agreed that, she sustained a complex injury to her left wrist and soft tissue

injuries of the cervical spine and right ankle from the accident. They also agreed that,

the appellant’s complaints of pain and loss of function of the left wrist, cervical

symptoms and pain and stiffness of the right ankle, were symptoms compatible with

the sequelae of the injuries sustained. They recommended a variety of medical

treatment and agreed that the appellant would be able to work as a teacher or in a

similar position until age 65 from an orthopaedic point of view. Biddulph also told the

trial court that, the appellant would not have a problem working on a computer

keyboard once her wrist is stiffened in the suggested position of function. He further

said that, despite the failure of the operations on the wrist, suggested measures

[once implemented] would correct the problem with excellent results. He suggested

medical interventions which could bring relief or reduce the pain she is experiencing,

including the headaches.

[19] The orthopaedic surgeons forecasted that there was a risk of future cervical

surgery of not higher than 10% within 10 years from the time of the accident.

Assuming she has surgery, they agree that her recovery period will be 8 weeks.

Regarding her wrist she has had an unsuccessful arthrodesis and shortening of her

ulna by MacLeod.9 The recovery period following the aforesaid procedures was

recorded in the joint minutes of orthopaedic surgeons as 8 weeks. There may be

further attempts at those procedures. However, Biddulph told the trial court that, the

loss of movement after the stiffening of her wrist is permanent, although the

movement will or should become pain free.

9 Dr Macleod performed the arthrodesis in 2008 and later the procedure to shorten the ulna. According to Dr

Biddulph he should have performed both procedures at the same time to be successful, and this has left the

appellant with a bad joint unable to rotate and therefore to do a few activities like picking up things, carrying

plates and trays. Further surgical procedures have to be performed on the wrist.

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[20] Ms C Kirchner, an occupational therapist for the appellant told the trial court

that, she had observed that the appellant limps when she walks and climbs the stairs

in an altered way. Overall, she suggested that, as a result of her ankle injury, the

appellant will need to modify her work format to preclude extensive standing, regular

climbing of stairs, walking long distances and walking for long periods over uneven

terrain. Mr L Linde, an industrial psychologist called as a witness for the appellant,

thinks the wrist [and head] will affect her ability to become a teacher or to function

as a teacher and may even lead to a reduction of her earning potential as a teacher

due to reduction in her working hours or early retirement. According to him there will

be a 15% permanent disability after the arthrodesis of the left wrist has been

conducted.10 His views are at variance with those of Biddulph and other orthopaedic

surgeons stated above and they will be dealt with further below.

(b) Brain Injury: Severity and Sequelae?

[21] Plentiful time was spent at the trial court on whether the appellant sustained a

brain injury and if so, the severity of the brain injury and the sequelae of the brain

injury. Other than the resultant reams and reams of paper making up the record, the

arguments before this court also lasted for an entire day, significantly on this issue.

This is indicative of the nature and extent of the task facing this court in the

determination to be made. Firstly, it has to be determined whether the appellant

suffered a brain injury. Secondly and perhaps intertwined with the first, the severity

of such brain injury. Thirdly, whether the brain injury caused or is causing the

appellant’s complaints or deficits? Finally, the impact, if any, of the deficits on her

ambition to become a teacher and function as a teacher. These are merely my

10 Linde agreed she would be able to work as a teacher until the age of 65 albeit with assistive devices.

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mental guiding notes for purposes of reaching a decision herein and no real

significance should be attached hereto, more than to the ultimate decision made.

[22] As a point of departure on the aspect of brain injury, regard could be had to

the three-legged potjie coined by Mr BR Mallinson, a neuropsychologist for the

respondent. He said that, to arrive at an opinion that a person has a brain injury of

any significance or neuropsychological deficits involves three legs, being, medical

data; collateral data and test data. At least two of the three legs of the potjie have to

be established. Let us look then at the medical data of the neurosurgeons first; the

collateral data and thereafter the neuropsychological test data.

(aa) Neurosurgical and Other Expert Opinions

[23] An ideal scenario in a damages lawsuit is one where medical experts are in

unison or strives towards that end, but unfortunately experts’ opinions are often

divergent on issues and this matter is no exception. Drs HJ Edeling, G Marus and

FD Snyckers delivered reports and extensively testified as neurosurgical experts

before the trial court. Edeling was the appellant’s witness and Snyckers, the

respondent’s. Marus’ situation wasn’t that straightforward. He was initially retained

by the appellant, but ended up being called as a witness for the respondent and this

- correctly so, I must add - caught the attention of the trial court, especially the

embedded connotation thereof.11 Professor VU Fritz, a neurologist delivered a report

for the respondent, but was not called to testify. In the filed joint minutes Marus,

Snyckers and Fritz considered her brain injury to be a mild concussive brain injury

and Edeling, a mild complicated concussion or moderate concussion.

11 The trial court held that, it is not hard to find the reason why Marus was not called as an expert on behalf of

the appellant, as it is “palpably obvious that he did not think she had a significant brain injury with sequelae”

[paragraph 60 of the trial court’s judgment; page 5026].

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[24] Marus was the first of the above neurosurgeons to see the appellant 14

months after the accident. His opinion was that she only had a concussion as she

was fully conscious at the hospital with a reading of 15/15 on the Glasgow Coma

Scale (the GCS) and no sign of significant damage to the brain on the CT scan.

However, he accepted at the trial court that, a diffuse brain injury would not show on

a scan and also that her brain was not working at some stage when she was in

hospital. He attributes this to both posttraumatic amnesia (PTA) and administration

of the drug Pethidine. He accepted that on the reporting she may have had PTA

suggestive of a brain injury that could be classified as moderate and if such finding is

made it is probable that there will be permanent organic sequelae. To me he

appears to be sticking to his guns [so to speak] of a mild concussion and doesn’t

think there is proof for anything else.

[25] Ostensibly unhappy with Marus’ opinion, but only seven years after the

accident, the appellant instructed Edeling after a neuropsychological assessment by

Ms MJ Adan, a counselling psychologist or neuropsychologist. Edeling spent

several days before the trial court and explained to the trial court that, there are two

systems of classifying head injuries. The GCS, which is a tool used to determine the

degree of a person’s consciousness, usually upon admission to hospital, and PTA.

Edeling’s view is that, if one goes according to the convention of PTA, he would

classify the appellant’s brain injury as a moderate concussion, but if he employs

GCS it would be a mild complicated brain injury. In the first hour and a half or two

hours [being a period of more than the required one hour, but less than four hours]

before she got the first Pethidine injection after the accident, there was absolute

amnesia only attributable to the head injury. This he stated is borne by the hospital

records and the appellant’s own reporting. From there onwards, the amnesia could

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be attributed to the head injury and the medication. About the fact that the appellant

was reportedly conscious and well aware of her environment following the accident,

Edeling’s testimony was that, she was in PTA and was not registering her memories,

as PTA originates a moment prior or few moments prior to loss of consciousness.

[26] What makes the head injury complicated, according to Edeling, is the

deteriorating loss of consciousness, which is indicative of the complication. He said

that, the complication was caused by a secondary deterioration. He explained that,

his first diagnosis was mild complicated brain injury, but another way of looking at it

is moderate brain injury using the Bryan Jennett PTA model (Jennett model). His

opinion is partly based on the hospital records and on what he labels compelling

evidence or statements of the appellant and her mother. According to him, even with

the rejection of the evidence or reporting of the mother, the appellant has reported

PTA to all examiners. The trial court was to later make adverse findings around

these and I will turn to that later.12 Suffice to record that, Edeling’s diagnosis is mild

complicated brain injury or tentatively moderate brain injury.

[27] Snyckers’ testimony was also very long. He stated that, she sustained a mild

brain injury as borne by her GCS of 15/15. According to him, there had been a

minor primary diffuse internal injury and a relapse probably on the basis of blood flow

disturbances as a result of the blunt head injury or blunt concussion injury. However,

under cross examination he confirmed his reported opinion of a concussive brain

injury.

[28] Therefore, Marus and Snyckers [and as minuted, Fritz too] considered her

brain injury to be a mild concussive brain injury and Marus is noncommittal on

12 The trial court held that, Edeling’s opinion is wrong because it is based on the unreliable reporting of the

appellant’s mother [paragraphs 86, 87 and 88 of the trial court’s judgment; pages 5034-5],

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moderate and also suggests diffuse brain injury, whereas Edeling remained on a

mild complicated concussion or moderate concussion. When Edeling was told that,

his views seem to be at variance with views of other eight medical doctors that she

did not suffer anything but a minor head injury, he seemed unfazed. He attributed the

visibly [at face value at least] lopsided contest in expert views to his consideration of

contemporaneous literature on the subject, which he said his counterparts have

ignored, despite his invitation for a discussion or consideration.

[29] Other experts like Dr D Shevel, the psychiatrist for the appellant opined that,

she sustained a mild concussion injury, but did not believe that permanent

neuropsychiatric sequelae are usually associated with this type of head injury and

that none were apparent at the time of his observations. Prof M Vorster, a

psychiatrist for the respondent agreed that, she had a mild concussive head injury,

because she had PTA.

[30] However, according to Edeling, there is very little statistical significant

difference between mild complicated brain injuries, moderate brain injuries and

severe brain injuries in relation to long term disability. The likelihood of having

disability is very similar between mild complicated, moderate and severe as

individuals can have the same outcomes although initially classified as moderate or

severe.

[31] My conclusion from the above is that the neurosurgeons [and the other

medical experts] hold the views that, the appellant sustained a brain injury of a mild

or a mild complicated nature and to determine the significance of this injury, one has

to consider the collateral data and thereafter the test data in order to establish the

three legged potjie. Next is the collateral data.

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(bb) The Appellant’s Complaints and Functioning after the Accident

[32] The appellant has a number of complaints regarding her condition and

functioning in life and she attributes these to the accident. These are some of her

complaints. She struggles physically and mentally, particularly with fatigue halfway

through the day. She continuously experiences headaches, sore neck and difficulty

in walking, particularly due to problems with her right ankle, when she is on her feet

a lot. She lost her motivation and was concerned she is going to fail her Scottish

Highers and to perform her duties. She cannot participate in the sporting activities

she did prior to the accident. She continues to experience pain and her memory

hasn’t been good since the accident as she forgets things to do. She is impatient;

becomes very irritable; experiences mood swings; struggles to sleep at night; finds it

very difficult to concentrate and becomes overwhelmed by her problems.

[33] However, it may be apposite to point out that, when she testified, the trial

court was impressed and found her to be lucid, coherent, clear and the trial court did

not get an impression that she has memory problems. The trial court stated that,

there was no impression that there is anything wrong with her.13 This is denied and

reference is made to the fact that appellant actually required a moment or timeout

for her to gather herself when she made her first appearance before the trial court.

On appeal, I do not have the benefit of all these live moments beyond the confines

of the transcript, which obviously doesn’t reveal much in terms of human emotions

and impressions.14

[34] Her husband told the trial court that, her personality has changed completely

since the accident. He confirmed and gave examples in respect of her forgetfulness

13 Paragraphs 115 and 117 of the trial court’s judgment [page 5045-6]. 14 R v Dhlumayo & Another 1948 (2) SA 677 (A) at 705-6 and Ndlovu v AA Mutual Assurance Association Ltd

1991 (3) SA 655 (E).

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about things to do and stated that, she is in denial about this. . She has become

reliant on him and the children, post-accident. They (him and the children) also assist

her with household chores. Her social life and their sexual life have also become

negatively affected. At work she struggles as the work is physically demanding on

her, but she does not let anyone at work know, but when she gets home “the berries

came down”. She runs out of steam quickly, struggled and was stressed during her

studies for the Scottish Highers and he assisted her, especially in preparation for the

examinations.

[35] Mrs Cathleen Francois, the appellant’s mother, was also a witness before the

trial court. According to her the appellant did not remember much from when the

accident occurred and on her stay in hospital. Since the accident she started

becoming aggressive about small things; her personality and outlook on life

changed. She did not concentrate and her memory was very bad. She suffers from

terrible headaches and cannot conduct proper conversations, as she loses herself

through a sentence.15 She confirmed that the appellant spoke about becoming a

teacher.

[36] Further from the expert reports and viva voce evidence before the trial court,

affidavits by the appellant’s former colleagues were handed in as part of the

evidence. I have already dealt with some of the aspects of the one by Dunachie, the

classroom assistant.16 Ms Stephanie Jane Lightbown, a teacher at the Kilmarnock

Academy noted that the appellant struggled physically; fatigues during the day and

walks with a measure of difficulty. She continued that, she easily annoys others at

times; becomes confrontational about small and immaterial things; is unable to apply

15 This is similar to the reporting on which Edeling based some of his opinion, especially for existence of a

moderate brain injury referred to above. 16 Paragraph 12 above.

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adequate temper control under certain circumstances and is forgetful. However she

regards her as an outstanding classroom assistant. The other classroom assistants

and teachers17 echoed most of Lightbown’s statements and added that, the

appellant’s mood is unpredictable; has equally balanced good and bad days;

complains about headaches; has adopted note-taking for her pending work

instructions; fatigues and has problems with those that do not pull their weight. Mrs

Mclean from her current employer Shortlees Primary informed Linde [the industrial

psychologist] that she rates the appellant 9 out of 10 in terms of her work

performance. Ms Pauline Margaret Middleton was appellant’s boss at International

SOS before her emigration to Scotland. She confirmed that she generally got on well

with the appellant and described her , among others, as really good; bright;

vivacious; with high energy; willing to do the work; with good original skills and

worked very hard. Further, she stated that, the appellant had good organising skills

and work ethic.18 However, according to Middleton, the appellant’s fundamental

drawback was the fact that she had no emotional maturity.

[37] Other than part of Dunachie’s affidavit above, I also referred to the testimonial

from Scottish Power and her job application to East Ayrshire Council in which she

described herself as having no medical or health conditions or limitations.19 All these

constitute collateral data regarding whether or not she has had a brain injury of

significance which left her with permanent disabilities or adversely affected her

functioning resulting in loss of earning capacity/loss of earnings. I will defer my

analysis of the aforesaid until I have dealt with other aspects relating to the

17 Mr Alexander Steel Reidford (principal teacher), Ms Annette Ainsworth (classroom assistant), Ms Linda

Crosbie (classroom assistant) and Mr George Kerr (deputy principal) [pages 4448 -4466]. 18 Middleton did not state whether this was before or after the accident. 19 Paragraph 11 above.

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determination of [the severity of] a brain injury. Next is a consideration of the

neuropsychological findings or test data.

(cc) Neuropsychological Findings and Other Expert Opinions

[38] Further from being examined and interviewed by the neurosurgeons and other

experts mentioned above, the appellant saw Ms M Adan (neuropsychologist);

Professor MD Lezak (a neuropsychologist) and Mr L Linde (industrial psychologist),

all of them on behalf of the appellant. Mr BR Mallinson (neuropsychologist); Mr DS

Ormond-Brown (neuropsychologist) and Ms A Jamotte (an industrial psychologist)

on behalf of the respondent.

[39] All of the above experts delivered reports, but only some of them testified

before the trial court. Their findings, comments and opinions will be dealt with below,

to the extent deemed relevant, to the appellant’s complaints and the observations

or views of those around her at work and home, as stated above.

[40] Other than testifying that the degree of severity of a brain injury is not

indicative or conclusive on disabilities, Edeling said that from a mild uncomplicated

brain injury one would not as a matter of probability expect permanent disability,

whereas with a mild complicated brain injury there would be a probability of a greater

than 50% of permanent disability. He explained that, this is the reason why

neuropsychologists measure the degree of disability. On the other hand, his

counterparts Snyckers and Marus, and Fritz, the neurologist opined that, based on

the severity of her brain injury, neuropsychological abnormalities were not expected.

Before I move on, it may be apposite to also reflect Edeling’s explanation about the

apparent anomaly of him a neurosurgeon relying on a neuropsychological study to

find support for his findings on brain injury. He said that, there is reciprocity: the

20

diagnosis of a brain injury is a neurological function and is made by a neurosurgeon

or neurologist, but the measurement of the degree of sequelae falls into the

neuropsychologist’s field and the detection of sequelae falls into everybody’s field. I

understand that to mean that, all expert opinions on possible sequelae to the brain

injury are relevant and perhaps should be seen as adding to the medical data of the

three legged potjie.

[41] I have already mentioned that, the neuropsychologists’ [and other experts’]

opinions and findings are dealt with on the basis of the appellant’s reported

complaints. I present those opinions and findings, to an extent possible, in two

groupings, one for the appellant and the other for the respondent, under a named

alleged deficit or complaint.

Memory problems

[42] Adan confirmed that, the appellant had since their first interview complained

about her memory. She added that, the appellant is forgetful at work; depends on the

teachers reminding her their instructions and had adopted a compensatory technique

of making notes. According to Lezak, her memory problems are related to her

executive functioning, particularly in what she refers to a prospective memory. Lezak

says this is not diagnostic of frontal lobe damage, but a feature of it. Edeling’s

accepted that, memory impairment can be caused by other factors, other than brain

damage.

[43] Therefore, the appellant’s experts’ views are that, she has a prospective

memory problem as she forgets what to do next, which is a feature of brain injury

and other factors, although not diagnostic of it. To deal with this, appellant has

adopted a compensatory technique of making notes.

21

[44] On behalf of the respondent, Snyckers confirmed that she said t she did not

have this problem before the accident, but only from about a year after the accident.

His view is that, because her memory impairment is increasing, it is suggestive of a

progressive illness which may be related to a factor unrelated to the accident,

because the damage to the accident is fixed, whatever damage there is. However,

he conceded that forgetfulness may also result from brain injury if it is serious

enough, bearing in mind his mild brain injury diagnosis. Mallinson said that, he did

not notice the lack of memory when he interviewed or tested her. He opined that,

memory difficulties may be due to pain from her orthopaedic injuries, although

memory difficulties are most common symptoms of brain injury. Just like Snyckers,

he finds the fact that she is getting worse not consistent with brain injury and also

thinks that something else is causing or aggravating the situation.

[45] Therefore, the respondent’s experts regard whatever memory problems the

appellant is experiencing to be either due to pain from orthopaedic injuries or brain

injury or another cause or progressive illness. They think that, the memory problems

should have stabilised or plateaued two years after the accident if it was due to the

accident rather than continuously getting worse.

Headaches

[46] From an orthopaedic point of view, Biddulph for the appellant attributed the

cervical pathology to be the cause of lot of pain and headaches. However he thinks

with regular physiotherapy and adopting a good spinal posture and balanced pain

medication, the pain and the headaches would be reduced, even without surgical

intervention.

22

[47] Snyckers thinks the headaches have nothing to do with brain injury, but are

partly post traumatic headaches and partly due to neck pains. He accepted that a

headache is a very uncomfortable situation and the associated pain can affect

concentration and interpersonal relationships, everything, including sleeping ability.

Mallinson accepted that her headaches may be due to brain damage and would

impact her functioning, provided her reporting is correct. Ormond-Brown expressed

the same view as Snyckers and Mallinson - albeit on memory problems – that, the

headaches shouldn’t be getting worse so many years after the accident unless

something [like medication overuse or psychological stress], other than head injury is

the cause.

[48] Although expressing a purely psychiatrist’s view, Vorster conceded under

cross-examination that, it is possible for the appellant to still be presenting with pain

and consistent headaches from the accident after 12 years. However, Ms S

Arblaster, a rehabilitation case manager and witness for the respondent testified that,

the appellant reported the severity of her headaches to be at 5 on a scale of 1 to 10,

with 1 being mild and 10 severe. It is worth noting that, Arblaster saw the appellant

around 2008 after she had already been seen by most of the experts. In sum, the

respondent’s experts’ view is that the headaches are not caused by the brain injury,

but are partly post traumatic headaches and partly due to neck pains or possibly

medication overuse or psychological stress.

23

Lack of or Inadequate Sleep

[49] The appellant also reports not getting enough sleep, although some of her

reporting suggests she was never a good sleeper20, in the first place, and has a habit

of going to bed late.21

[50] According to Edeling - although he conceded that this is outside his area of

expertise – the four hours of sleep is very little for normal people. Linde, the

appellant’s industrial psychologist agreed with the proposition made to him at the trial

court that, marital problems could contribute to severe stress and probably

depression. You will sleep badly as a result, he said. Adan’s view is that, bad

sleeping habits are not diagnostic of head injury, but it is something head injury

victims complain a lot about and that being tired due to lack of sleep affects cognitive

abilities, concentration and attention. Therefore, the summarised view of the

appellant’s experts on this is that, lack of sleep may be due to marital problems or

brain injury and that sleeping few hours is not normal. I must confess; I foresee a

predicament here. If the appellant’s marital problems cause her lack of sleep; what

caused the marital problems? Aren’t we possibly going to end up going round in

circles, in that, the lack of sleep could be said to have caused the marital problems in

the first place? I will move on.

[51] On the other hand, the respondent’s expert view expressed in the main by

Snyckers is that, headaches or pain associated with headaches can affect sleeping

ability. Arblaster told the trial court that the appellant said she goes to bed around

23h00 or 23h30 daily, which may have something to do with the four hours of sleep

20 See paragraph 51 below. 21 Ibid.

24

regarded by Edeling above as few for normal people.22 I understand the

respondent’s view to be that, the sleeping problems originate from her pain, which I

evidently is accident related, but not necessarily due to brain injury. It may also

possibly be due to her sleeping habits.

Pain

[52] I have already stated Biddulph’s attribution of pain and headaches to the

cervical pathology and suggested regular physiotherapy, good spinal posture and a

balanced pain medication for relief.23 This -in my view - seems to extend beyond

orthopaedic matters.

[53] I have also stated Mallinson’s view that, the chronic pain is due to

orthopaedic injuries [the terrible pain in her arm] and terrible headaches she is

experiencing.24 He referred to these as a pain syndrome congruent with her

difficulties. According to him her pain and depression feed off each other. As stated

above albeit in respect of the headaches, Vorster agrees that it is possible to

experience pain 12 years after the accident and that ongoing pain can cause mood

disorder or mood swings, which is possible even without a brain injury.

Fatigue

[54] From my analysis of the evidence, I think fatigue is factually linked to the other

appellant’s complaints, like lack of sleep and pain discussed above, and depression

still to be discussed below. Therefore, some level of repetition may prove

unavoidable here. Edeling’s view on this is that, fatigue is a common symptom of

depression. A person with a normal functioning brain has a certain amount of

22 Paragraph 50 above. 23 Paragraph 46 above. 24 Paragraph 44 above.

25

mental endurance against fatigue, but one with a brain injury becomes fatigued more

quickly, Edeling testified. He also ventured that, the appellant may be suffering from

burn out, unless there is another disease that can explain her tiredness.

[55] On the respondent’s side Ormond-Brown stated that, fatigue is a non-specific

sign, as it could be due to brain injury, orthopaedic injuries, impaired sleep pattern or

a number of other potential causes. Arblaster testified that, in her experience people

with brain injury will often sleep during the day, due to excessive fatigue and as the

appellant does not sleep during the day it is suggestive of fatigue that is

manageable, and not posing a problem for her at work. Therefore, I understand the

respondent experts’ view to be that, the appellant’s fatigue is not necessarily due to

a brain injury and does not have a negative impact of her functioning at work.

Depression and Lability

[56] There were reports that, the appellant was at some stage depressed,

especially after the birth of her second child and immigration to Scotland.

[57] Starting with a neurosurgical view on this, Edeling testified that her problems

were neurological consequences of brain damage and were probably aggravated to

a certain extent by depression, but not primarily due to depression. He agreed with a

proposition that, despite her depression she is still able to perform her duties

adequately. Lezak’s view is that, she is depressed and emotionally labile. In her view

[which is shared by Adan], the other experts who probed the appellant earlier than

her (i.e. Lezak), only did so about the accident and pain, and this is the reason for

her appearing depressed, but if they had changed the topic, she would have

brightened up. Linde also confirmed that one of his tests revealed severe

26

depression. In sum, the view from the appellant’s experts is that, she is depressed

and emotional labile, although depression was a secondary factor to her problems.

[58] For the respondent, Snyckers confirmed that, brain injury can cause

depression, although he is not the right expert to say whether it has or has not.

Mallinson agreed that depression can be caused by brain damage and so can labile

mood and headaches. Ormond-Brown accepted that, she has a labile mood due to

her unpredictable functioning in daily life. Again from a psychiatrist point of view,

Vorster testified that, when she interviewed the appellant, she did not present with a

labile mood, but intermittent depression, due to a combination of factors, including

her disability and inability to take part in sport, emigration and the birth of her second

child. Further, Vorster agreed that, marital problems would add to depression, but

that the depression will get better with the use of anti-depressants, but may relapse

due to compounding factors. In summary the respondent’s view here is that, she was

depressed at intervals and this may be due to presence of a brain injury or other

causes or a combination of causes, including marital problems. The views on her

labile mood are divergent.

Mood disorder, Impulsivity, Irritability and Loss of Self Control

[59] Adan agreed that, impulsivity is to a degree a personal trait and not diagnostic

of brain injury. She also believes that, there are mood changes or psychosocial

changes in the appellant’s life because of the accident.

[60] On the other hand, Mallinson’s view is that, the fact that she was irritable, her

mood fluctuated and had memory difficulties, as well as, having good days and bad

days, are indicative of the presence of pain, because if it was brain injury it would

have been more consistent. He further reported that he only identified a degree of

27

impulsivity on tests of planning ability. In his opinion impulsivity does lead to poor

planning, but when you have frontal lobe injury, the person lacks the capacity to

plan, so the impulsivity interferes with it, it would just be generally poor. However, he

ultimately agreed that depression [he regards depression as the same as mood

disorder] can be caused by brain damage, like labile mood and headaches.

Snyckers’ opinion is that impulsivity is classically a consequence of frontal lobe

damage. Further, fluctuating mood, temper and irritability can be caused by brain

injury, although it is not the only cause, Snyckers testified before the trial court.

However, he finally deferred to the psychiatrists on whether mood disorders and

mood swings are the typical consequences of brain injury.

[61] Ormond-Brown agreed that, pain and distress caused by her kind of injuries

can certainly lead to a mood disorder. However, even though she demonstrated

changes in mood and personality since the accident, he does not think that the

accident is the exclusive cause and thinks her taxing lifestyle contributes to her

emotional problems. To him it is therefore a matter of degree of contribution.

[62] Vorster told the trial court that, mood disorder can result in neuropsychological

deficits, which are secondary to the mood disorder, and are reversible deficits.

Regarding the fact that, she is said to have good and bad days, Vorster said this

could be generic social stress, tiredness or chronic pain, as she has only been

depressed at intervals, but does not have a mood disorder. Regarding the

appellant’s loss of self-control, Osmond-Brown opines that she has self-control with

her outburst, as it is directed to those not pulling their weight. In his view executive

dysfunction is random loss of control.

28

[63] Therefore, under these complaints, the appellant’s view is that whilst

impulsivity may be a personal trait, the accident has resulted in the appellant

experiencing mood changes or psychosocial changes. The respondent’s views are

on the one hand, that irritability and fluctuating moods are due to pain or distress or

brain injury or other causes, including her very busy lifestyle, but these are reversible

deficits.

Marital Problems

[64] A lot has been said already about this above and it may be apposite to state

here that, according to the appellant and her husband, their marital problems have

disappeared since the intervention of or advice by Lezak.25

[65] However, other experts have expressed views on this and except those

already referred to above the following are further views on the appellant’s marital

problems. Just to confirm before that, Linde agreed that marital problems could

contribute to severe stress and probably depression and that, the affected person

would as a result sleep badly. Adan agreed that marital problems could lead to

depression, but not sure whether this could lead to loss of energy. However,

considering that, Lezak attributes the source of the marital problems to the

appellant’s reported abnormalities, then there is again potentially a never-ending

circle of which came first or which caused what. Was the appellant’s depression and

lack of sleep the cause of her marital problems or were they caused by the marital

problems. I will deal with this generally below.

[66] Vorster agreed that, marital problems would add to depression, but that the

depression will get better with the use of anti-depressants, but may relapse due to

25 This was the evidence of both the appellant and her husband, and confirmed by Lezak.

29

compounding factors. Again here we have the merry-go-round of opinions, so to

respectfully speak , due to the reference to the depression and compounding factors.

Stress, Pressure and Being Overwhelmed

[67] The appellant mentioned being overwhelmed by her problems, and some of

the experts have observed or detected this through their tests on her. She mentioned

this as the other reason for her discontinuation of her degree studies.

[68] Edeling’s testimony on this was that, people with executive dysfunction do not

handle stress or pressure very well, as their ability to handle stress and pressure is

impaired, just like it is the case with their ability to function in an unstructured

situation. As stated above, Linde agreed that marital problems could contribute to

severe stress [and probably depression] and you will sleep badly as a result.

Dizziness

[69] According to Edeling, because her dizziness started from the time of the brain

injury and was not present before the brain injury, then it is caused by brain injury as

the neuropsychologists agreed that there were no psychiatric or psychological

problems before the accident.

Inability to conduct complete conversation

[70] I have referred above to the appellant’s mother saying that, since the

accident the appellant is unable to conduct proper conversation and I added that

this did not escape the attention of the trial court, and was actually rejected this

description of the appellant.26 Mallinson also rejected this and testified that he did

not notice any inability to conduct complete conversation when he interviewed her,

but agreed that if it is there, it is unsuitable for a primary school teacher.

26 Paragraph 35 above and paragraph 117 of the trial court’s judgment [page 5045].

30

Concentration

[71] Adan agreed that concentration and attention can be affected by various

factors such as fatigue, motivation, depression, anxiety, stress or irritation. She

agreed that, the appellant’s display of lack of concentration during testing is partly

due to carelessness and partly due to lack of motivation on her part. However,

Kirchner testified that, there is nothing wrong with her concentration from a functional

point of view. Although I appreciate the sincerity in this, I nevertheless regard this as

contradictory as both experts are for the appellant.

Conclusion: alleged deficits or complaints

[72] The evidence above points the cause of the appellant’s complaints to be

attributable to various causes, either singularly [being one cause] or jointly [being a

combination of causes]. However, even where one expert suggests a single cause

for a particular complaint, there will be a contending view suggesting another cause

or a combination of other causes by another expert or experts. The causes are said

to be either related to the accident in the form of brain and orthopaedic injuries or

unrelated to the accident. In some instances, the available expert opinion seems

wavering and includes words like “suggestive of”;27 “a feature of”28 or “common

symptom of” or “common with”29 and do not even disclose as bases facts or data

upon which the opinions or conclusions are based. The result is bald statements with

less probative value or less persuasiveness for purposes of a determination to be

made herein.30

27 Paragraph 44 above. 28 Paragraph 43 above. 29 Paragraphs 44 and 54. 30 See Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaff fur Schadlingsbekampfung Mbh 1976 3 SA 352

(A) 371F-H.

31

[73] Examples of complaints caused by a combination of factors are the following.

Memory problems are said to be a feature of brain injury or caused by pain from the

orthopaedic injuries; suggestive of a progressive illness from a cause unrelated to

the accident or there is another aggravating factor. Headaches are said to be caused

by pain; something like medicine overuse or psychological stress or they are partly

posttraumatic headaches and partly due to neck-pains. Depression and mood

swings and dizziness are said to be due to a brain injury and other causes like, pain;

her taxing lifestyle; emigration or the fact that she is now unable to partake in sport

and other amenities of life.

[74] There are no complaints or alleged deficits which according to the expert

views expressed above are exclusively due to brain injury or her orthopaedic injuries

from the accident. Therefore, subject to the further expert views below, my

preliminary view is that, the appellant’s complaints or alleged deficits are not due to a

brain injury. I defer - for a moment - my view on whether they are due to the

orthopaedic injuries from the accident.

Other Aspects of the Appellant’s Functioning and Cognitive abilities

[75] As stated above, of real significance in this matter is not whether the appellant

sustained a brain injury, but whether she sustained a brain injury of significance to

warrant any long term or permanent sequelae which adversely affected the

appellant’s dream of becoming a school teacher. I have already expressed [in this

regard] a preliminary view above.31 Together with that, there is also a second basis

of the determination, being whether the appellant’s career would have been the

same without the injuries [be they brain-related or otherwise] sustained in the

accident? I am of the view that, a determination of both bases could be done

31 Paragraph 74 above.

32

through a critical assessment of how the appellant functions in the theatre of life32

[being at home, work and in life generally]. Below are views of the different experts

on how she is functioning under the circumstances. These views are significantly

based on what is stated above regarding the appellant’s complaints or alleged

deficits.

(aaa) Edeling (appellant’s neurosurgeon)

[76] Edeling accepted that neuropsychological sequelae resulting from a

significant brain injury will be noticed in the first year after the accident and then

improve over the next year and then become stable. However, he explained the

reason for the persistence of the appellant’s problems to be that, her

neuropsychological and neuropsychiatric disorders are the result of organic sequelae

of her brain injury aggravated by psychogenic factors. He did not elaborate on the

psychogenic, but relied on Adan’s conclusion that there is at least some organic

component and on Linde’s report of impairment of executive mental function. He

concluded on this aspect by stating that, the presence of subtle deficits [on tests] of

an organic nature is a very important qualitative finding.

[77] On the appellant’s functioning, Edeling agreed that, she is still able to perform

her duties adequately, despite her problems. Regarding what she stated about her

abilities in the letter to the East Ayrshire Council in 2005 that, she did not have any

deficit of cognitive or physical nature that could hamper her employment as a

classroom assistant, he accepted that, if the contents of the letter were true, it would

be contrary to a person who has executive dysfunction. I find this to be critical

regarding the determination on brain injury or the impact of the accident on the

appellant’s functioning. The trial court concluded on this as follows:

32 Reportedly a coinage of Marus. See paragraph 100 and its accompanying footnote 48 below.

33

“In my view I accept the correctness of the letter as properly descriptive of the

plaintiff’s abilities. The letter and together with the description of her work and her

daily functioning suggest that she does not have any frontal lobe injuries.”33

[78] When made aware that five other medical specialists [Marus, Snyckers, Fritz,

Vorster and Shevel] hold a view that, there are no sequelae of any significance after

having regard to her cognitive functioning, he stated that, his views are supported by

Lezak’s and Adan’s. According to him should the five had considered the test

findings of Adan, Lezak and Mallinson, as well as, the affidavits from the Scottish

teachers, they would have come to a different opinion. He added that he probed

deeper than them and got the evidence that her personality completely changed

from the accident. However, he conceded that he came to the conclusion that there

has been watershed event in her life in 2005 already and not on the basis of the

report by Lezak and admitted that his opinion is based on the narrations of the

mother and the appellant. Just like the trial court did, I deem this to be a critical

concession for this matter and the determination to be herein, particularly due to the

value and import of Edeling’s evidence for the appellant.34

(bbb) Lezak (appellant’s neuropsychologist)

[79] According to Lezak, the appellant sustained between a complicated mild and

mild moderate brain injury. She stated that, her conclusions are based on the effects

of the injury; pain experienced; stress due to deficits and her resultant functioning.

Further, Lezak accepted Mallinson’s three-legged potjie for determining

neuropsychological deficits discussed above. in so far as neuropsychological tests

are concerned and stated that, in her opinion the tests by Adan and Mallinson,

33Paragraph 103 of the trial court’s judgment [page 5041].

34Paragraph 94 of the trial court’s judgment [pages 5037-8]

34

although appropriate, were insufficient as they did not test fully for executive

disorder.35 This affected the interpretations and ultimately the opinions expressed by

the two. She stated that, her tests results revealed lack of planning, problem in self-

monitoring and self-correcting, which she regards as indicative of some form of

executive dysfunction. The trial court rejected Lezak’s evidence as unreliable and I

associate myself with this finding. In as much as, she is a well-renowned

neuropsychologist, her conclusion that the appellant would have been a beggar in

the United States of America is a summation of her testimony and indeed

sustainable.36 If this was indeed a probable postulation, her remedial suggestions to

the appellant and her husband about their marital problems would not have been

successful and the appellant wouldn’t have kept any jobs, raised kids and had the

successes she had in life.

(ccc) Adan (appellant’s neuropsychologist)

[80] Adan also subscribes to the three-legged potjie. She regarded the appellant’s

behaviour during testing, like rushing into tasks, poor planning, taking no pride in the

neatness of her work, laughing when making mistakes and showing no interest in

improving the quality of her performance, as an inappropriate behaviour for someone

at her level of intelligence and therefore indicative of her executive difficulties. She

also regards her use of techniques like fingers in calculation or loud reading of words

as indicative of a subtle executive dysfunction. These, among others, and including

her excellent results [from Adan’s tests], are indeed unpersuasive for a finding of

executive deficits, as correctly found by the trial court.37 In fact, the trial court found –

35 This is in direct conflict with the acceptance of Edeling of Mallinson’s findings as stated in paragraph 78

above. 36 Paragraph 98 of the trial court’s judgment [page 5039]. 37 Paragraph 104 of the trial court’s judgment [page 5042].

35

correctly so, I must add - that the results overall suggest her cognitive functioning

was not impaired or that she did not have any frontal lobe deficits.38

(ddd) Snyckers (respondent’s neurosurgeon)

[81] I stated above that, Snyckers regards her increasing memory impairment as

suggestive of a progressive illness, which he said may be related to a factor

unrelated to the accident, because the damage to the accident is fixed, whatever

damage there is. He confirmed - to an extent – Edeling’s view that classification of a

brain injury is not conclusive regarding the probable resultant disability, when he

testified that severe head injured people sometimes completely (100%) recover and

mild head injured people sometimes pose with permanent and ongoing problems. He

deferred to the appropriate experts on this. One of the impressive attributes of the

opinions expressed by [and evidence of] Snyckers is the absence of supererogatory

in the constant deference to other appropriate medical experts. 39

(eee) Mallinson (respondent’s neuropsychologist)

[82] Mallinson’s view that her difficulties could be associated with the symptoms of

concussive brain injury should it be shown that a concussive brain injury of sufficient

severity occurred, is already well known. His further view is that her difficulties are

due to a mood disorder and the presence of pain. Also her steadily decreasing

memory suggests the presence of a psychological overlay.

[83] According to him there was enough medical data confirming mild to possibly

moderate brain injury, although he is aware that the three neurosurgeons say there

is mild and mild complicated or moderate brain injury. He hung on to the original

view by Snyckers et al that, she sustained a concussive brain injury. He attributed

38 Paragraph 109 of the trial court’s judgment [page 5043]. 39 Ruto Flour Mills Ltd v Adelson (1) 1958 4 SA 235 (T).

36

her problems to a mild brain injury or a pain syndrome or depression or a

contribution of all three. The other factors are pain [which he agrees is accident-

related] and depression partly related to the accident, partly to other difficulties like

mental problems and at some stage even immigration. He however conceded that

her problems are accident-related, but stated further that if they are related to the

brain injury the prognosis is very poor; if they are related to the pain, once the pain is

eased the problems would ease; if related to depression, once depression is eased

so would the problems. He does not believe her head injury is severe enough to

warrant the problems she experienced, although the problems may have some

relation to brain injury. According to him, the deficits are not severe enough to

compromise her significantly in life. She is functioning well at work and although he

does not consider her a malingerer, she regards her as catastrophising her

difficulties and thinks that the litigation may have influenced her to perceive her

condition as deteriorating. Regarding the affidavits by the Scottish teachers,

Mallinson’s comments were that, their content suggests to him that the appellant

does not have a specific frontal lobe dysfunction. The trial court’s finding of no frontal

lobe deficits was “fortified” by among others, Mallinson’s results40 and I add to that

Mallinson’s testimony. Mallinson from the beginning held that, he would accepts that

the appellant’s deficits are due to a brain injury if it is shown that she suffered a brain

injury of sufficient severity.

(fff) Ormond-Brown (respondent’s neuropsychologist)

[84] Ormond-Brown also subscribed to Mallinson’s three-legged potjie and

regarding establishment of two legs of the potjie as an absolute minimum

requirement. He did not seem to accept that the appellant succeeded in establishing

40 Paragraph 109 of the trial court’s judgment [page 5043].

37

two legs. He testified that he did not find any sign of significant cognitive problems

with the appellant. She performed well on many of his tests and there was no

indication of organic brain dysfunction. Further, her tenacity made him conclude

that, she does not have significant deficits, as according to him people with

significant executive deficits are typically apathetic and a-dynamic and do not have a

drive. However, he accepted Snyckers’ view that in some instances people with mild

brain injuries have permanent neuropsychological deficits. Therefore, in his opinion

the court need to look at the evidence available and the information on the patient’s

functioning in daily life, which he deems to be of critical importance and the

neuropsychological tests.

[85] Further, Ormond-Brown testified that Lezak’s argument regarding executive

impairments is an overstatement, although he is not questioning anybody’s results,

but the interpretation of the results. The trial court agreed with Ormond-Brown’s

views that, “despite a demanding, draining and straining job, the plaintiff is doing

exceptionally well…”41 Equally, I found no reason to arrive at a different finding from

the aforesaid.

(dd) Conclusion on brain injury, severity and its sequelae

[86] It is trite that, the diagnosis of a brain injury and its sequelae is an issue

beyond the lay expertise of the court. Inherently, the court depends on the views of

the expert witnesses to guide it through the contours of evidential landscape often of

a complicated and scientific nature in which even the contending parties, may just

like it is the case with the court, have no technical ability to navigate. However, the

court’s quest to find its way through analysis of expert opinion and testimony is made

more challenging and perhaps even impossible, where expert witnesses overlook

41 Paragraph 112 of the trial court’s judgment [page 5041].

38

their impartial role and become embedded in their stance to the claims or defences

of the party which secured their place in the matter.42 As a result, the expert view

becomes nothing more than his or her master’s voice and the expression “he who

pays the piper calls the tune” becomes a very sad reality. I dare say that, this is very

unhelpful43 to the role of the court and is the opposite of what expert testimony is

about.

[87] Back to this matter. It is clear from the above that, the views of the notably

eminent medical professionals are very divergent on the issues in hand and there is

little common ground on the issues. The trial court made some adverse findings in

respect of the evidence of some of the witnesses and its credibility, and was [as a

result] accused of discarding expert evidence44, but I think the trial court was within

reason in arriving at its findings as it did.45 Although, I deem as correct the

submission by the respondent’s counsel that, unlike the trial court, this court doesn’t

have the benefit of “…being steeped in the atmosphere of the trial…”46, I

nevertheless regard this court as well equipped to assess and analyse factual

evidence and all stated above for a determination on the severity of the appellant’s

brain injury.

[88] It is common cause that the appellant has sustained a brain injury. The

disagreement is on the degree of severity of the brain injury. The dominant

appellant’s expert view is that it is a mild complicated brain injury and the respondent

says it is a mild brain injury. The appellant was subjected to neuropsychological

testing and observations and still those did not yield unanimity of the severity or the

42 See Stock v Stock 1981 3 SA 1280 (A) 1296E. 43 Ibid. 44 Paragraph 3.6 of the appellant’s heads of argument on appeal. 45 See Motor Vehicle Assurance Fund v Kenny 1984 4 SA 432 E. 46 Paragraphs 3 and 4 of the respondent’s heads of argument on appeal. See further footnote 14 above.

39

sequelae to the brain injury. Edeling says the classifications of brain injury are not

really that material. They do not have the capacity to predict the degree of disability,

only the likelihood of some disability, but also said that, from a mild uncomplicated

brain injury one would not as a matter of probability expect permanent disability,

whereas with a mild complicated brain injury there would be a probability of a greater

than 50% of permanent disability. He says this is why the neuropsychologists

measure the degree of disability.

[89] I have referred above to Drs. Venter, Oosthuizen, Miller and the casualty

doctors, who appear not to have found anything significant with the appellant’s head

injury. The opinions of Dr Marus, Shevel and Fritz, as well as, Prof Vorster were

dealt with. They also did not consider the appellant to have suffered anything, but a

minor head injury.47 I do not accept Edeling’s explanation that his interpretation of

the contemporaneous literature on the subject justifies his solitary stance. Further, in

my opinion he has only adduced enough evidence to confirm a mild brain injury on

the basis of PTA in the first hour and a half or two hours before administration of

Pethidine which he stated is borne by the hospital records and the appellant’s own

reporting. From there onwards, he had stated that, the amnesia could be attributed

to the head injury and the medication. In my opinion, Edeling did not sufficiently

explain his diagnosis of a complicated brain injury and therefore I am left with a

similar diagnosis as most of the experts: mild brain injury. It is therefore my finding

that, the appellant has sustained a mild brain injury.

[90] Ormond-Brown’s view is that, the court needs to look beyond the classification

offered by GCS and PTA, and consider the other evidence available and the

information on the patient’s functioning in daily life, which he regards as critically

47 Paragraphs 29 and 78 above.

40

important and the neuropsychological tests. This - in my opinion - accords with what

Edeling said about the relative immateriality of the classification of brain injuries. The

functioning in life of a person is critical in this regard.

[91] I think the neuropschological tests have already been given sufficient

consideration although they may still be referred to below. Although the appellant’s

functioning has been discussed particularly when dealing with the affidavits by the

Scottish teachers and Middleton above, as well the appellant’s complaints and her

family’s reporting, it may be apposite to look into the opinions specifically regarding

her functioning as a classroom assistant and possible functioning as a teacher. This

will be on the basis of the expert evidence, which in my view, will assist in finally

determining whether the brain injury or the accident [the second basis] resulted in

permanent disability or sequelae. It should be borne in mind that, the second basis

of the appellant’s loss of earnings or loss of earning capacity damages claim was

that, she would have become a teacher, but for the accident.

(c) Qualifying and Functioning as a Teacher?

[92] The appellant initially stated that her ambition was to be a sports therapist, but

later amended her papers and claimed for loss of earnings due to the accident

having prevented her to qualify and become a teacher. Therefore, what has to be

determined is twofold, being firstly, whether the appellant can still qualify or would

have qualified to be a teacher and secondly, whether she can function as a teacher

mindful of my findings above about brain injury.

(aa) Qualifying as a teacher

[93] The appellant’s husband testified that he was discussing their future with her

when she decided on teaching. She needed to improve her grades to get into

41

university and she enrolled and studied for the Scottish Highers. He testified that,

during the studies she would constantly go over her work and he assisted her in

preparation for exams. He knew it was too stressful for her and was worried that she

was going to be disappointed, but she was adamant and to a certain degree, very

stubborn. He said that, the pressure she had during her years of studying was

related to the actual work and exams, but not her family life. The latter was

organised. The kids would go to a child minder and she therefore had time for her

studies. After passing, she applied for child care support and it was not granted, but

according to him that was not a major factor. He thinks they were both relieved as

he knew that she was not going to study further. According to him, she did not try

further to pursue her studies, but it is now established that this was incorrect. He did

not encourage her though because of what she had been through when she did her

Scottish Highers. However, the decision was hers and he would have supported

her. She told him she will not manage another four or five years.

[94] The evidence reflects that, despite her decision above, she later enrolled for a

correspondence course with Open University and excellently passed two

assignments. She notably kept this secret from her husband and this - in my view -

casts doubt on whether he really supported her decision to pursue her studies in the

first place and also whether money wasn’t really the issue. After all she now opted

for a correspondence course which allowed her to study whilst working or whilst

caring for her children or whilst doing both. She explained to the trial court that, she

did not want him to talk her out of it, but this in my view is not congruent with an

always-supportive husband in this regard. Ultimately, she then decided to do the

“next best thing” and became a classroom assistant.

42

[95] Further, the appellant and her husband mentioned that she was overwhelmed

by the studies and the experts gave their analysis or interpretation with those

testifying or opining as her experts concluding that, her cognitive disabilities and not

finances influenced her decision to quit her studies.

[96] Fortunately, there is an agreement amongst all four neuropsychologists that

she had the potential pre-accident to complete her qualification in teaching, but that

is as far as the unanimity goes.

[97] Adan had contradictory views on this. In one view she testified that, the

appellant has the ability to pass her examinations and in another stated that, she

does not think the appellant could cope with the amount of work required of her to

finish the year and she would be overwhelmed thereby. She also thinks the appellant

still has residual cognitive capacity to complete a degree with greater effort in the

consolidation and integration of the course material, with possible failures and delay.

Edeling’s view is that, the findings of Adan and Lezak confirm that, the appellant

cannot attain a teachers’ qualification. Linde said he had expected her not to

complete her degree studies and was therefore not surprised when she stopped and

mentioned being overwhelmed. According to him, this is in line with what was

reported by Lezak and Adan, and which he predicted. According to him the studies

are at a higher level and appellant is better suited to function at the current level [as

a classroom assistant], where she is even getting good reports, and she would run

into problems the moment she tries going higher. However, Linde conceded to the

proposition that, she may have been overwhelmed by juggling studying with work,

kids and housework.

43

[98] Mallinson’s view is that, the fact that she was accepted at university is

indicative of her ability to succeed with university study in education and the only

reason she did not pursue this was due to her inability to finance day care for her

child. This and her passing whilst able to do her house work and care for the children

is not consistent with the presence of significant frontal lobe deficits, he opines.

Ormond-Brown is retrospective in his analysis and testified that, her mediocre

performance in her diploma in pharmaceutical marketing studies, strongly suggests

that, she did not have what it takes to complete a lengthy course of study and

therefore, her failure to become a teacher has nothing to do with the accident.

However, he also said that her Scottish Highers are indicative of a high average

ability and this is indicative of an intact executive functioning. Finally, according to

Arblaster the appellant told her that, the reason why she did not pursue her studies is

because she could not afford child care costs whilst studying because she was

refused a grant and nothing was mentioned about not coping with the required level

of study.

[99] In my view both the refusal of a child care grant [in other words financial

considerations] and the anticipated pressures of the studies played a role in the

appellant deciding not to continue with her studies. I do not deem it necessary at

this stage to decide whether the pressures emanated from the brain injury or the

accident. Suffice it to state that, in my opinion if it wasn’t for the aforesaid factors

she would have studied further and based on her academic performance in the

Scottish Highers, the two Open University assignments and the expert opinions, she

would have obtained a teachers’ qualification. However, there is still a question to be

answered: would she function as a teacher though?

44

(bb) Functioning as a teacher

[100] It seems to be an accepted view amongst the experts in this matter that, the

acid test is how the appellant functions in the theatre of life.48

[101] Edeling [evidently relying on the neuropsychologists Lezak and Adan] thinks

that, the appellant can only work in an environment where there is a sufficient level

of instruction and supervision to accommodate or compensate for her deficits, as she

applies her retained intellectual potential. Her function as a classroom assistant is in

a structured and supportive environment, but as a teacher she would have to

organise and impose her own structure. Her adopted compensatory strategy to deal

with her problems is a typical consequence of frontal lobe brain injury and affected

people can function in a structure imposed and maintained by others, but their ability

to structure and organise their own lives is deficient. He opines that, her Scottish

Highers may be proof that she has the capacity to get good results at a university

level, but do not prove the capacity to do a job, which is the most important factor or

the ability to conduct a marriage or to bring up children. The latter group tests

extensive mental function adequately, than university tests, he adds.

[102] Lezak is of the view that, her impairment is sufficient to prevent her from

becoming a school teacher, but the impairment does not prevent her from taking

care of herself or do routine household work or function in the classroom with the

teacher’s support and guidance and at home. She denies that the appellant’s

deficits are subtle, as according to her they show up at home, work and on

neuropsychological assessment. Her overall view is that, the appellant is probably

performing at her highest level as a classroom assistant and is not capable of

becoming a school teacher functioning independently. Someone has to provide

48 Paragraphs 77,79,83,84 and 85 above.

45

some structure and at home it is provided by her husband and to some extent the

kids. As stated above, Lezak’s view is that, if the appellant was in America, she

would be a beggar, surviving on social welfare.49

[103] Adan’s view is that, even if she completes the degree, she would struggle to

work as a primary school teacher in classes of 20 to 30 kids and would fit into a

home schooling environment with a limited number of kids. I have already referred to

her view that, the appellant is unreliable on multitasking due to subtle frontal lobe

difficulties and uses compensatory techniques or aids to help her cope with her work

and home responsibilities. She thinks the appellant needs continuous support from

the other teachers to continue working as a classroom assistant. She also believes

that, due to her age it may be difficult for her to enter the teaching environment.

[104] On the other hand, Mallinson opines that Lezak may have reached a different

conclusion if she had interviewed the teachers at the appellant’s place of work

instead of only the appellant and her family. According to him the affidavits,

especially the affidavit of Ms Lightbown suggest that, she is coping very well at work.

He asks why the problems have - to date - not proven severe enough to come to the

attention of the authorities in the form of disciplinary proceedings. He also holds the

view that, although she uses compensatory techniques for her problems, she has

proven that she can function as a teacher in primary school by doing Scottish

Highers, working for many years as a classroom assistant and getting good reports

about her performance, despite her difficulties. She has performed her job in real life

and he thinks she can function as both classroom assistant and teacher. Ostensibly

from his knowledge as a former teacher, he confirmed his view in the joint minutes

that, she has a potential to teach despite her ankle, but she will need to avoid

49 Paragraph 79 above.

46

extensive period of standing in the classroom and modify her work format to permit

her to sit from time to time. He believes there are opportunities to sit as a teacher.

[105] Ormond-Brown testified in this regard that, for him a person with executive

impairment will be disorganised in functioning and with a complete inability to take on

a number of activities at the same time: multitasking. For him multitasking cannot be

simply measured by psychometric tests, but the ability to cook a meal, see the kids

do their homework and plan tomorrow’s activities in daily life as an example. In his

opinion, she is able to function as a classroom assistant and works with the most

demanding children with learning difficulties, attention deficits and behavioural

problems. Regarding her adopted strategy of making of notes to augment her

memory problems, he thinks this is indicative of lack of serious executive

impairment, as when one has such impairment you do not adopt a strategy.

[106] The occupational therapists agreed that, the injury to the non-dominant wrist

will not preclude her from pursuing a teaching position in the classroom or work

similar to what she previously has done, or aspired to, having regard to her

educational potential. They also agreed that, she does have the potential to teach

despite the ankle injury, but like as suggested by Mallinson she will need to avoid

extensive periods of standing in the classroom and modify her work format to permit

her to sit from time to time. They concluded in unison that, “no early retirement is

expected as a consequence of the injuries sustained in this accident.”

[107] Further from his doubts about her qualifying as a teacher, Linde’s view is also

that, she will find it difficult to function at the level expected of a teacher, due to

among others, the head and wrist injuries. He also thinks that, this may even lead to

a reduction of her earning potential as a teacher due to reduction in her working

47

hours or early retirement. He ultimately expresses a view that, the combination of her

difficulties will decrease her work capacity to such a degree that, it will not be worth

entering the field of teaching and better for her to qualify for an administrative half a

day position. However, he suggests that, she must not be taken out of her work

environment for therapeutic reasons, which will give her some sense of self-worth.

[108] Arblaster believes that even if the appellant is found to have cognitive

impairments as alleged she would be able to continue to work as a classroom

assistant. According to her, teachers have it better as they sit during lessons and

classroom assistants are often on their feet. Also, the teachers are assisted by

classroom assistant in sport activities or by other teachers with special interest in

sport, just like it is the case with a music teacher for other teachers with no music

abilities. She regards the work of a teacher as sedentary and light in nature and

disagreed with the view that, the appellant is likely to find herself severely

handicapped in the labour market. In her view, the fact that she was able to return to

her work after the accident and change jobs contradict the aforesaid. Further, under

the Disability Discrimination Act any discrimination on the basis of a person’s

disability is outlawed in the United Kingdom. She also dismissed a view that the

appellant has to work 25 hours on the basis that, the appellant has been able to work

fulltime jobs after the accident.

(d) Conclusion: Loss of Earning Capacity

[109] I have already found that, the appellant has suffered a mild brain injury.

However, despite this mild brain injury, she has been able to find new job

opportunities and retain those jobs without being subjected to any form of censure or

discipline for years, and she is actually getting accolades for her contributions and

performance. She was also able to pass her Scottish Highers and Open University

48

assignments with very good marks, whilst playing her part in raising her children

even at their demanding young ages. She is reportedly a good mother and a good

wife, which is indicative of playing her requisite household roles. All of these with no

reported interruptions in the appellant’s work life except for the one week when she

was detained in hospital and eight months thereafter when recuperating after the

accident50; one month after she emigrated to Scotland51 and ten months after the

birth of her son.52 In short , the appellant has managed to function in various roles

since the accident, including as a classroom assistant and based on the expert

testimony referred to above, it is my view that she would be able to qualify and

function as a teacher, if she so chooses. I express those views quite mindful of the

fact t that she has some difficulties from injuries sustained from the accident, notably

her wrist which has already had a number of surgical interventions without much

success. As a teacher she would require the full extent of her wrist and other injured

limbs, and to deal with the persistent headaches and the pain therefrom. Available

evidence though, indicates that these problems are not permanent or that they

benefit from the suggested medical interventions and therefore would not result in

diminished or lost earnings or earning capacity. I therefore find that, the appellant

did not sustain a significant brain injury with any long term or permanent sequelae

entitling her to damages for loss of earnings or earning capacity and even that the

appellant’s career would have been the same without the injuries sustained in the

accident. For greater certainty, I also do not regard the orthopaedic injuries from the

accident as preventing the appellant from qualifying and functioning as a teacher or

continuing to function as a classroom assistant, bearing in mind the findings made in

respect of general damages below.

50 Paragraphs 14 and 15 above. 51 Paragraph 7 above. 52 Paragraph 8 above.

49

General Damages

[110] I agree with the reasons of the trial court regarding its assessment of the fair

and reasonable award in respect of general damages. It is correct that, the

submissions made in this regard are premised upon the conclusion or opinion that,

the appellant has sustained a mild complicated brain injury or even a moderate brain

injury or a brain injury of significance.53 This is even more evident from the

categories of previous awards [made in other judgments] counsel for the appellant

referred to. They range from those involving “Severe diffuse brain injury, soft tissue

injury to neck….significant neurocognitive and neurobehavioral deficits…”54; “Severe

primary head injury and secondary brain injury…”55; “extensive head injury and

multiple orthopaedic injury…”56 to “Severe brain injury, fractured skull, various

fractures…”57. Therefore, once the finding is that there is no brain injury of any

significance or relevance to the appellant’s complaints, we are only left with the

orthopaedic injuries to her left wrist; soft tissue injuries of the cervical spine and right

ankle and their sequelae, mainly in the form of pain and the discomfort arising

therefrom. I have already indicated that, these would benefit or alleviate from

suggested medical interventions or practices.

[111] I therefore deem the award of R450 000.00 made by the trial court to be a fair

and reasonable amount in respect of the general damages and do not deem any

interference warranted against the backdrop of the evidence adduced herein. I

53 Paragraph 130 of the trial court’s judgment [page 5051]. 54 Torres v RAF, Corbett & Honey, The Quantum of Damages, Vol VI, A4-6. 55 Cordera v RAF, Corbett & Honey, The Quantum of Damages, Vol VI, A4-51. 56 In an unreported decision of this division by the Honourable Foulkes-Jones AJ in Garroch, EM versus Road

Accident Fund, Case Number: 2003/2558. 57 In an unreported decision also of this division by the Honourable Ancer AJ in Monamodi, RR versus Road

Accident Fund, Case Number: 2005/11760.

50

associate myself fully with the basis and other considerations by the trial court in

reaching its conclusion in this regard.

[112] Therefore, with no success on both the aforesaid heads of claims, the appeal

must suffer the same fate.

[113] I therefore propose that the following be ordered:

a) The appeal is dismissed with costs.

_____________________________

K MANAMELA

Acting Judge of the High Court of

SA: Gauteng Local Division,

Johannesburg

_____________________________

E J FRANCIS

Judge of the High Court of SA:

Gauteng Local Division, Johannesburg

I agree

____________________________

N P MNGQIBISA-THUSI

Judge of the High Court of SA:

Gauteng Local Division, Johannesburg

I agree and it is so ordered

51

APPEARANCES :

For the Appellant : Adv. GJ Strydom SC

Instructed by : Savage Jooste and Adams Inc,

Johannesburg

For the Respondent : Adv. JJ Wessels SC

Instructed by : Brugmans Incorporated

Johannesburg