THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Non-Reportable
Case no: 1270/2018
In the matter between:

ROAD ACCIDENT FUND
APPELLANT

and

SIHLE MADIKANE
RESPONDENT

Neutral citation: Road Accident Fund v Madikane (1270/2018) [2019] ZASCA 103 (22
August 2019)

Coram:
Leach, Wallis, Mathopo and Molemela JJA and Weiner AJA

Heard:
24 May 2019

Delivered:
22 August 2019

Summary: Delict – damages – whether the respondent sustained a mild or moderate
traumatic brain injury – expert evidence – approach to their evidence restated – expert
opinions must be based upon facts that have been established by way of admissible
evidence.

________________________________________________________________________

ORDER
________________________________________________________________________

On appeal from: Eastern Cape Division of the High Court, Mthatha (Nhlangulela ADJP
sitting as court of first instance):
1.
The appeal succeeds with costs, including the costs consequent upon the
employment of two counsel.
2.
The order of the court a quo is substituted with the following:
‘(a)
The plaintiff’s claim for loss of income is dismissed with costs, including the
costs of the hearing from 21 October 2015 to 18 July 2016.
(b)
The defendant shall furnish the plaintiff with an undertaking in terms of s 17(4)
of the Road Accident Fund Act 56 of 1996, for the costs of the future
accommodation of the plaintiff in a hospital or nursing home for the treatment
or the rendering of a service or the supplying of goods to him after each of
such costs have been incurred and on proof of payment thereof.’
________________________________________________________________________

JUDGMENT
________________________________________________________________________

Weiner AJA (Leach, Wallis, Mathopo, Molemela JJA concurring)
Introduction
[1] This case demonstrates the perils parties face when they rely exclusively on the
opinions of experts without laying any factual basis for such opinions. In a trial action
‘It is fundamental that the opinion of an expert must be based on facts that are established by the
evidence and the court assesses the opinions of experts on the basis of “whether and to what extent

their opinions advanced are founded on logical reasoning”. It is for the court and not the witness to
determine whether the judicial standard of proof has been met.’1
[2] Adapting the approach taken by this court in MV Pasquale:                                    ‘[T]he
court must first consider whether the underlying facts relied on by the witness have been established
on a pri333ma facie basis. If not then the expert's opinion is worthless because it is purely
hypothetical, based on facts that cannot be demonstrated even on a prima facie basis. It can be
disregarded. If the relevant facts are established on a prima facie basis then the court must consider
whether the expert's view is one that can reasonably be held on the basis of those facts. In other
words, it examines the reasoning of the expert and determines whether it is logical in the light of
those facts and any others that are undisputed or cannot be disputed. If it concludes that the opinion
is one that can reasonably be held on the basis of the facts and the chain of reasoning of the expert
the threshold will be satisfied.’2
[3] In PriceWaterhouse Coopers Inc v National Potato Cooperative Limited3 the court
said:                                                                                                                                                        ‘The
basic principle is that, while a party may in general call its witnesses in any order it likes, it is the
usual practice for expert witnesses to be called after witnesses of fact, where they are to be called
upon to express opinions on the facts dealt with by such witnesses.’4                     Similarly,
Wessels JA, in dealing with the nature of an expert’s opinion, in Coopers (South Africa) (Pty)
Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH5 said ‘. . . an expert's opinion
represents his reasoned conclusion based on certain facts or data, which are either common
cause, or established by his own evidence or that of some other competent witness. Except
possibly where it is not controverted, an expert's bald statement of his opinion is not of any
real assistance. Proper evaluation of the opinion can only be undertaken if the process of
reasoning which led to the conclusion, including the premises from which the reasoning
proceeds, are disclosed by the expert’.

1 MV Pasquale della Gatta; MV Filippo Lembo; Imperial Marine Co v Deiulemar Compagnia di Navigazione
Spa ZASCA 2012 (1) SA 58 (SCA) paras 25-27. See also Michael & another v Linksfield Park Clinic (Pty) Ltd
& another 2001 (3) SA 1188 (SCA) paras 34-40.
2 MV Pasquale fn 1 above para 26.
3 PriceWaterhouse Coopers Inc & others v National Potato Cooperative Ltd & another [2015] ZASCA 2; [2015]
2 All SA 403 (SCA) para 80.
4 PriceWaterhouse fn 3 para 80.
5 Coopers (South Africa) (Pty) Ltd v Deutsche Gesellschaft für Schädlingsbekämpfung MBH 1976 (3) SA
352 (A) at 371F-H.

[4] An opinion of an expert must therefore be based on facts which have been proven
before the court. An opinion based on facts not in evidence has no value for the court.6 A
court has to ascertain whether the opinions expressed by the experts are based upon facts
proved to it by way of admissible evidence. It is with this principle in mind that the facts of
the matter, as well as an analysis of the experts’ evidence, must be considered.

Appealability and Condonation
[5] On the day preceding the hearing of this appeal, the respondent raised the point that
the order was not appealable, because the quantum of damages had not yet been
determined by agreement or by the court. Therefore it was submitted that the order was not
final. The order granted by the court a quo fits the test set out in Zweni v Minister of Law
and Order7 that a judgment or order is a decision which ‘has three attributes: first, the
decision must be final in effect and not susceptible to alteration by the court that made it;
second, it must be definitive of the rights of the parties; and, third, it must have the effect of
disposing of at least a substantial portion of the relief claimed in the main proceedings’.8
The order was a declaration of rights determining the RAF’s liability. All that remained was
the assessment of the quantum of damages. As such, it is clear that the judgment and order
were appealable.9

[6] The appellant also sought condonation for the late filing of the record and for the filing
of a supplementary affidavit. The appellant tendered the costs of such applications. The
granting of condonation is dependent, inter alia, upon the merits of the appeal. The appellant
has tendered an explanation as to the difficulties in obtaining the record and has shown
good cause for the condonation to be granted. Condonation is therefore granted.

Background
[7] The respondent, Sihle Madikane (Mr Madikane) was 12 years old when he was a
passenger in a motor vehicle collision on 10 July 2006. The claim against the appellant (the

6 PriceWaterhouse fn 3 above para 99.
7 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532I-533A.
8 HMI Healthcare Corporation (Pty) Limited v Medshield Medical Scheme & others [2017] ZASCA160; Pitelli
v Everton Gardens Projects [2010] ZASCA 35; 2010 (5) SA 171 (SCA) para 27.
9 SA Eagle Versekeringsmaatskappy Bpk v Harford 1992 (2) SA 786 (A) at 792C-H.

RAF) was originally instituted by his mother, Primrose Nomazuli Madikane (Ms Madikane)
in 2009. Madikane attained majority in 2012, and was substituted as plaintiff. When
summons was issued, it was alleged that, as a consequence of the collision Madikane
suffered ‘a ragged laceration on the lateral aspects of the left eye; small cuts on the left
parietal area of the head; tender medial to the lat, border left scapula; and a Splenic
laceration’( the injuries).

[8] In the original particulars of claim, it was alleged that as a result of the injuries
sustained, he experienced shock, pain, discomfort and suffering, and underwent a
splenectomy. R6 million was claimed as damages. Initially, the claim was based only upon
the injuries referred to in the particulars of claim. An amendment was later introduced in
terms of which Mr Madikane based his claim for general damages on three medical legal
reports, being that of Dr Repko, a neurosurgeon (now deceased), Dr Hardy, a
neuropsychologist, and Ms Gowa, an occupational therapist. Dr Repko in his report10 stated
that the only complaint which Madikane reported was abdominal pain. A full neurological
examination found no abnormalities. Dr Repko diagnosed the head injury as a concussion,
with no neurological signs and said that Mr Madikane expressed no complaints relating to a
head injury. Dr Hardy’s report related to the sequelae of a mild to moderate brain injury,
which she opined resulted in neurocognitive deficits. However, this was obviously
dependant on Dr Repko finding that such injury had occurred, which he did not. These
reports formed the basis of Mr Madikane’s amended claim.
[9] There is no indication as to when the particulars of claim were amended to include
the reports referred to. It appears that the complaints and deficits complained of were not
present at the time Dr Repko assessed Madikane in March 2013. Such complaints were,
however, identified by Dr Hardy, only a few months later, in June 2013. This date seems to
correlate with when Madikane’s university results declined. His case at the hearing was
conducted solely on the basis that he had suffered a mild to moderate traumatic brain injury

10 There was some debate as to the admissibility of Dr Repko’s report, as he was deceased and therefore
could not testify. However, it was accepted that Dr Kieck could refer to it as it was one of the reports, which
he considered in compiling his report. In any event, the report of Dr Repko was incorporated into Madikane’s
particulars of claim.

(TBI),11 which manifested in deficits many years after the collision and which appeared to
still be present at the time of the trial in 2016, some ten years later.12 Notwithstanding the
absence of any clinical evidence in regard to the nature and extent of Mr Madikane’s injury,
the case was conducted on the basis that the essence of the dispute was whether he had
suffered a mild or a moderate TBI.13
[10] In terms of the Road Accident Fund (Transitional Provisions) Act14 (the Transitional
Provisions Act), the right of a third party to claim compensation for non-pecuniary loss is
limited to R25 000, unless the third party submits a serious injury assessment report as
contemplated in regulation 3 of the Road Accident Fund Regulations 2008, indicating a
serious injury. In terms of s 17(1) of the Road Accident Fund Act15 (the Act), the RAF’s
obligation to compensate Madikane for non-pecuniary loss is limited to compensation for a
serious injury as contemplated in s 17(1)A. Ms Madikane submitted a serious injury
assessment report to the RAF on behalf of her son. The RAF rejected the serious injury
assessment report, on the ground that the injuries were incorrectly assessed as serious. It
ruled that he did not qualify for compensation, even on the narrative test.
[11] The RAF accepted that it was liable to compensate Mr Madikane for any damages
he had suffered arising out of the motor accident and tendered a certificate in respect of his
future medical expenses In terms of rule 33(4), an application was made for separation of
the issues relating to quantum. The court made an order by consent that:
‘1
The RAF was liable to pay to Madikane all such damages as may be proved at the trial on
quantum, or as may be agreed.
The issues relating to quantum of (a) loss of income and past and future medical expenses
and (b) general damages, was (sic) separated. The matter would proceed only on the issues of loss
of income and past and future medical expenses.’

11 The description of the injury as ‘traumatic’ indicates only that it was occasioned by trauma. It says nothing
about the severity of the injury, the matter that lay at the core of the dispute between the parties.
12 Although some of the experts testified that these deficits only manifested a decade later, if regard is had to
the timing of Dr Hardy’s report, it appears therefrom that the deficits manifested in 2013, some seven years
later.
13 It appears that although no amendment was made to Madikane’s pleadings, the reliance on the reports,
which were incorporated for the claim of general damages, extended to his claim for loss of future earning
capacity.
14 Road Accident Fund (Transitional Provisions) Act 15 of 2012.
15 Road Accident Fund Act 56 of 1996 as amended by Act 19 of 2005.

[12] Neither Mr Madikane nor his mother gave evidence. The case was based purely upon
the expert reports and the medical and hospital records, which served before the court, none
of which were proven or agreed to. The court a quo found that Mr Madikane had suffered a
more severe TBI, which had resulted in the deficits complained of and ordered that the RAF
pay damages to Mr Madikane, which would be calculated and agreed by the parties’
actuaries, based upon the court’s directions. The appeal to this Court is with the leave of
the court a quo.
Common cause facts
[13] Mr Madikane was 12 years and 6 months old when he was involved in the collision.
He was a student doing Grade 7. After the accident, he was transported to Umtata General
Hospital, where he was admitted and treated, until discharged on 21 July 2006.
[14] Mr Madikane’s school and university results were as follows:
(a) In 2005, in Grade 6 he obtained a 68% average. Comments on his reports indicated that
he had the potential to do better and excel. His mathematics mark was 85,2%, a fact which
assumed great significance in the evidence of the experts.
(b) In 200716, in Grade 8, after eleven months of hospitalisation and other medical
treatments, he passed with a 58,4% aggregate. He did very well in Mathematics and
Accounting and was awarded half-colours for Mathematics.
(c) His performance improved when he had more choice over his learning areas. In Grade
9 in 2008, he averaged 60%, with his best marks being Mathematics and Technology.
(d) In 2009 he passed Grade 10 with a 69% aggregate, scoring 84% for Mathematics. He
was once again awarded half-colours for Mathematics.

16 There are no records for 2006, as Madikane was receiving treatment for the injuries sustained in the collision.

(e) In 2010, in Grade 11, he scored a 72% average. He obtained 88% for Mathematics and
89% for Accounting. He was awarded certificates for effort in four or more subjects in terms
2 and 3.
(f) In 2011, in Grade 12, his June results displayed further improvements in Mathematics
and Accounting, and he was again awarded certificates in terms 2 and 3 for effort. He
passed matric with a 78% aggregate. He obtained 5 distinctions in Mathematics, Life
Sciences, Physical Science, Accounting and Life Orientation. He also wrote an additional
subject: Mathematics: probability data handling, for which he achieved 80%.
(g) In 2012 he enrolled at the University of Pretoria to study for a BSc degree in Actuarial
and Financial Mathematics. His cumulative average for the first year was 57,07%. He
obtained two distinctions for Academic Literacy. He passed 14 out of 16 modules.
(h) In 2013 he continued to second year and passed his two remaining first-year subjects,
but failed all his second-year subjects but one. His cumulative average was 52,73%.
(i) In 2014 he passed only three second-year subjects with a cumulative average of 44,8%.
(j) In 2015, he undertook a combination of second and third-year subjects, achieving a
cumulative average of 44,18%.

[15] Although there was no agreement as to the accuracy of the hospital records, there
was no real dispute, after the evidence of the neurosurgeons was heard, that on admission,
Mr Madikane was fully conscious and orientated with a Glasgow Coma Score (GCS) of
15/15. His pupils were normal and reactive. His blood pressure and pulse were in the normal
range and stable.
[16] The issue thus boils down to whether Mr Madikane suffered a mild and
uncomplicated brain injury, as submitted by the RAF; or whether it was a mild to moderate
brain injury which resulted in neurocognitive, intellectual, physical and emotional deficits, as
Mr Madikane contends. The underlying premise was that based upon his mark in
mathematics in 2005, in Grade 6, prior to the collision, he was capable of qualifying as an

actuary. His case was that his academic difficulties which he experienced when he was
studying actuarial science had to be ascribed to a more serious injury leaving him with
various deficits that would prevent him from achieving this goal. His claim for loss of earnings
was based upon this premise.

[17] Although the neuropsychologist, Dr Hardy testified before Dr Wilkinson, the
neurosurgeon, both her and Dr Loebenstein, her counterpart, deferred to the
neurosurgeons’ opinions. Dr Wilkinson testified for Mr Madikane, and he, conceded that it
appeared that Mr Madikane had been fully conscious, orientated and responsive on
admission. Although, no evidence was led by any of the medical staff at the hospital, it
appeared from the hospital records that later in the day, Mr Madikane’s GCS had apparently
dropped to 11/15, his blood pressure had dropped, his haemoglobin had been below normal,
he had been very pale and cold, and had scanty urinary output. The RAF did not concede
that the records in this regard were accurate. Dr Wilkinson, however, said that this showed
that Mr Madikane fell behind with IV fluid therapy and he was in hypovolemic shock due to
his spleen injury. This, Dr Wilkinson, stated, was when a secondary (anoxic) brain injury,
adding to the injury on impact, might have occurred. This could change the injury from mild
to moderate or severe. He found a facial palsy and conduction deafness in Mr Madikane’s
left ear which could also indicate some injury to neurological tissues.
[18] He referred to this condition as a ‘silent epidemic brain injury’. Even after a mild brain
injury the patient and doctors and families do not recognise the secondary effects. He
referred to an article called ‘Mild TBI: Silent Epidemic in our Practices17:            ‘Survivors of
mild TBI are addressed for a range of psychosocial and psychiatric issues that arise from the
neurological and the social elements of trauma. Research indicates that mental health issues often
arise following a mild TBI with symptoms of clinical depression in 15 to 50% of survivors.’18
[19] Although not proved by any admissible evidence, or admitted by the RAF, Dr
Wilkinson recorded that Mr Madikane complained of frequent headaches and poor
concentration. He slept a lot during the day, which Dr Wilkinson referred to as daytime

17 P W Buck ‘Mild Traumatic Brain Injury: Silent Epidemic in our Practices’ (2011) 36 Health & Social Work
299 at 299.
18 Ibid.

somnolence which he frequently saw as a result of brain injuries. Mr Madikane also reported
decreased endurance mentally and physically. Dr Wilkinson was of the opinion that a
moderate brain injury would lead to the psychological problems that had been set out in the
reports and evidence of Dr Hardy and Ms Van Vuuren. If these deficits were manifesting
now, they were due to what had been a moderate, and not a mild, brain injury. It was Dr
Wilkinson’s view that low self-esteem, depression, anxiety and other psychological effects
would hamper functioning and Mr Madikane would not reach his potential as he would be
functioning at a lower level. Dr Wilkinson attributed Mr Madikane’s academic decline at
university solely to a moderate brain injury.
[20] It was difficult to ascertain from Dr Wilkinson’s evidence whether his conclusion was
that the injury must have been moderate because the alleged problems had manifested so
many years later, or because they were still present so many years later. If the former, Dr
Wilkinson did not explain how these deficits lay dormant for so many years. If the latter, he
did not explain how Mr Madikane scholastic results improved up until 2012.
[22] Dr Kieck testified for the RAF. He discounted both conclusions of Dr Wilkinson. He
did not detect, nor was he pointed to any palsy or conduction deafness experienced by Mr
Madikane. Having regard to the school and university results which Mr Madikane had
achieved, he was of the view that there were no neurocognitive deficits. The loss of
consciousness (LOC) appeared to be of very short duration and the post traumatic amnesia
(PTA) was at most two hours. Had these two elements been of a longer duration, those
deficits would have manifested themselves within a few weeks or months, and not so many
years after the injury. He based his findings on the medical records, and also referred to the
American Medical Association Guides on Impairment (AMAG) 6th ed,19 in dealing with the
effects of a mild brain injury. Mr Madikane’s difficulties with his studies could not be
attributable to the head injury he suffered in 2006. Any such injury would have manifested
itself in symptoms that were perceived much earlier, not so many years after the injury was
suffered. He concluded that there were many other explanations for the academic problems
which appeared to now have manifested, but that the literature and his experience show

19 Robert D & Rondineli MD AMA Guides on Impairment 6th ed Published by the American Medical Association
(2007).

that these symptoms would not manifest so many years after an injury and could not be
attributed to such injury.
[23] Based on the hospital records on admission, no neurocognitive deficits were found
post-accident. Dr Kieck’s neurological examination of Mr Madikane revealed no deficits. He
referred to the report of Dr Repko, who similarly found no neurocognitive deficits on his
examination. Dr Kieck recorded that Mr Madikane informed him that he was struggling
emotionally and had memory and concentration problems. However, Dr Kieck could not
attribute these to the injury sustained nearly 10 years before, more particularly having regard
to his academic history post the accident. He noted that Dr Wilkinson had glossed over Mr
Madikane’s academic results in 2008 to 2012 and only commented on the decline in
2013/2014. He could not accept that the neurocognitive abnormalities found by Dr Hardy
were the result of a mild TBI. He described the condition of post-concussion syndrome,
which included headaches, poor concentration, initial lack of memory, insomnia, and
dizziness. These, he stated, would start immediately after the injury, but by the end of the
first week they would normally resolve. By the end of three months, the symptoms would
disappear completely. If symptoms remained, it was usually associated with other causes,
such as previous depression, anxiety or ADHD.
[24] Dr Kieck referred to the Diagnostic and Statistical Manual of Mental Disorders (DSM
5),20 which he stated is accepted universally. It described both qualitatively and quantitively
the characteristics of the different traumatic brain injuries. The first determinant was loss of
consciousness which should be less than 30 minutes. That would satisfy the first criteria.
The second criteria is the PTA, which in Mr Madikane’s case probably not exceed one or
two hours. This is confirmed by the fact that he had a GCS of 15/15 and was fully orientated
and able to lay down memory on admission. According to DSM 521:
‘8 Overall the natural history of MTBI in children and adults is characterised by a gradual full recovery
and symptoms, cognition and general functioning within several days to weeks of injury and the true
incidence of persistent symptoms or impairments that negatively affect the patient’s general
functioning, is very low.

20 Diagnostic and Statistical Manual of Mental Disorders 5th ed (2013) American Psychiatric Publishing 2013.
21 Ibid.

9 In uncomplicated MTBI persistent symptoms and poor functional outcome are often associated
with non-injury-related variables including demographic, psychosocial, medical, motivational and
other situation or factors’.
[25] Dr Kieck stated that the AMAG is regarded as the ‘Bible’ in relation to the assessment
of impairment and disabilities in patients. These guidelines are developed as a consensus
by many highly regarded institutions involved in this field. The committees of the American
Academy of Neurology and the American Association of Neurological Surgeons, two pre-
eminent organisations in their fields, evaluate all the literature and then come to a
consensual decision before they put out a guide.  The AMAG says the following in relation
to mild TBI:
‘Special mention should be made of mild TBI which has been the subject of extensive research in
the last ten to twenty years. In contrast to the previous belief the symptoms of mild traumatic injury
generally resolve in days to weeks and leave the patient with no impairment. Patients with persistent
post-concussion symptoms generally have non-injury-related factors which complicates the clinical
course. Post-concussion syndrome is rare and may be seen in 1 to 5% of all patients of mild TBI.’22
[26] The three main parameters that are used in determining the seriousness of a TBI
are: was there a loss of consciousness, how long did the post-traumatic amnesia last and
what was the GCS at the end of the period of unconsciousness. He distinguished between
unconsciousness and PTA. One could have a blow to the head, be dazed and not remember
for twenty minutes or so, but still be conscious. If the TBI was moderate, the symptoms and
the signs would have been present as soon as the patient was functioning and back in
society. This would happen within a week and Mr Madikane was assessed approximately
six weeks later. No deficits were detected. Dr Kieck could not reconcile the deficits referred
to by Mr Madikane with his scholastic and first year university results and the long period of
delay before the deficits apparently manifested.
[27] Dr Kieck commented on Dr Hardy’s evidence that the reason for the alleged deficits
manifesting so much later was that prior to this he was in a protective school and family
environment, where he had all the support systems around him. Dr Kieck stated that such
deficits do not lie dormant for ten years and suddenly appear. He commented that it was

22 Ibid fn 19.

common knowledge that actuarial science is a very difficult course and only the very
brightest complete it. He referred to statistics provided by the University of Cape Town (and
not disputed) that 45,8% of the initial intake graduated after three years, 33,66% of the initial
intake were currently registered for a fourth academic year, 22,5% of the initial intake have
not graduated and are no longer in the system and only 33,8% of the initial intake proceeded
to an honours degree.
[28] Dr Kieck also referred to the article ‘Mild Traumatic Brain Injury and Post-Concussion
Syndrome: The New Evidence-Base for Diagnosis and Treatment’23 as well as the
‘Summary of the WHO Collaborating Centre For Neurotrauma Task Force on Mild Traumatic
Brain Injury24 which listed the same  criteria referred to by the AMAG and in DSM 5.
[29] Dr Kieck commented on the impairment listed on the RAF 4 form, which was
categorised as Class 2, which is a 20 percent impairment. Referring to AMAG, Dr Kieck
stated that such impairment involved an alteration in his high mental cognition which would
interfere with his ability to perform his activities of daily living. Dr Kieck stated that this relates
to someone who is obviously mentally impaired. However, he found Mr Madikane to be
exceptionally bright, forthcoming, and normal. He described the difference between a mild
traumatic BI, which is a neurometabolic condition of dysfunctional neurons, and a more
severe injury which involves neuron disruption.
[30] In commenting on Dr Wilkinson’s ‘silent epidemic’, he testified that with a TBI a
certain cascade of events can occur that change the condition to something more serious.
Low haemoglobin could mean internal bleeding. Although pale and cold, with low urine
output and a relatively lowish BP, this would not result in a patient going into hypovolemic
shock. With a secondary event, such as an anoxic brain injury, there would be a cerebral
perfusion. The blood pressure would be very low, the patient would become unconscious
and there would be a noticeable deterioration in neurological status. The patient would be
neurologically depressed, confused for many days, and on recovery there would be many

23 M A McCrea ‘Mild Traumatic Brain Injury and Post-Concussion Syndrome: The New Evidence Base for
Diagnosis and Treatment’ (2011) 39(1) The Journal of the American Academy of Psychiatry and the Law 133-
134.
24 L Holm et al ‘Summary of the WHO Collaborating Centre For Neurotrauma Task Force on Mild Traumatic
Brain Injury’ (2005) 37 J Rehabil Med 137 at 137-141.

neurocognitive deficits. Throughout his stay in the hospital, despite this episode, Mr
Madikane’s neurological condition remained stable. He commented “there is no way” he
could have achieved those results if he had suffered an anoxic brain injury.
[31] In reference to the many alleged deficits which Dr Hardy identified as affecting Mr
Madikane, Dr Kieck opined that a TBI is not the only cause of major neurocognitive or mental
and behavioural disorders. There are multiple factors and in adolescence and young adults
there are many other causes. A mild TBI is not the cause of major neurocognitive
dysfunction. Whilst he could not dispute Dr Hardy’s test results (although they were
contradicted by Dr Loebenstein), as a neurosurgeon he looked at what he was presented
with. In drawing from the literature, a mild TBI is distinct from a moderate and severe one
where there would be significant neurocognitive sequelae. Thus if Mr  Madikane exhibited
symptoms of depression, anxiety and lack of concentration it was more probably as a result
of him undertaking a very difficult university course. What he may be experiencing now was
most probably due to the difficulties he was having with his course, as well as being away
from his protective environment.
[32] Dr Hardy and Dr Loebenstein gave evidence of the psychological and neurological
deficits which can occur with a TBI. Dr Hardy was of the opinion that the injury was a mild
to moderate brain injury because of a long period of LOC and resultant PTA. Neither of
these factors appear from the hospital records. Dr Hardy suggested that the hospital records
were inaccurate. She rather relied upon what Mr Madikane’s mother told her about his
condition. However, this hearsay evidence was not confirmed by Mr Madikane or his mother,
or by any member of the nursing staff and it is flatly contradicted by the available hospital
records. It was accepted that Mr Madikane was conscious when he reached the hospital,
which was approximately 30 minutes after the collision occurred. Dr Hardy referred to the
GSC later dropping to 11/15, which to her indicated that the brain injury was more serious
than a mild post-concussion syndrome. The neuropsychological test findings, according to
her, demonstrate variable intellectual and executive functioning and a suboptimal ability to
concentrate for a sustained period.  This psychological fallout was consistent with his
mother’s reported complaints of his being more sensitive, anxious, stressed and withdrawn
since the accident. These facts were not confirmed by evidence. She found inter test scatter,
which was of concern and these difficulties would diminish his educational and vocational

potential. Although Mr Madikane had an average and, at times, an above-average set of
skills, he lacked the level of excellence required to be successful as an actuary. All of these
she attributed to the head injury sustained in the collision. She relied extensively on his
grade 5 mathematics mark in stating that prior to the accident, he had the ability to become
an actuary. She was unwilling to accept that this superficial judgment was incorrect and that,
like many others embarking upon a difficult course at university, he found himself out of his
depth.

[33] Dr Loebenstein was of the view that Mr Madikane sustained an uncomplicated mild
TBI (concussion). This was confirmed by the hospital records. Dr Loebenstein tested Mr
Madikane’s short-term memory functioning which revealed no deficits. He referred to the
opinion of Ms Van Vuuren, the educational psychologist who found exceptional intellectual
abilities in the areas of reasoning and integrating concepts which were at variance with the
findings of Dr Hardy. Dr Loebenstein’s own assessment revealed competent functioning in
areas considered to be most vulnerable to the effects of brain injury. The tests and
assessments showed that Mr Madikane had undergone a complete recovery from a mild
brain injury. His progress at school was indicative of his pre-accident potential and not
influenced by any neuropsychological behavioural sequelae that could be attributed to the
accident. Mr Madikane’s need to repeat certain subjects at university in one of the most
demanding degree programmes offered by tertiary institutions could not possibly be
attributed to a mild concussion sustained nearly a decade before. This all pointed to a mild
TBI. In his view, Dr Hardy did not give due weight to the complexities involved in studying
Actuarial Science and the high drop-out rate.
[34] Ms Van Vuuren, the educational psychologist, based her opinions upon the tests
carried out by Dr Hardy. She did not deal in her report with the cause of the brain injury but
only with what she considered to be the sequelae thereof. Thus her evidence does not assist
the court.
[35] As is apparent from what is stated above, the reports given by Mr Madikane and his
mother to Dr Wilkinson and Dr Hardy, of his present difficulties, are hearsay and no reliance
can be placed on them. In the absence of Mr Madikane giving evidence as to the nature of
his problems, which evidence could have been tested against other possible reasons for his

academic difficulties, such as the difficulty of the course; the transition to university life; the
difficulties of living in an unfamiliar environment away from familial support structures and
the like, no conclusion could properly be drawn by the medical witnesses that such problems
were attributable to a moderate TBI.
[36] The court a quo accepted the evidence of Mr Madikane’s witnesses and rejected that
of the RAF and its witnesses. The judge stated simply that ‘[T]he best approach would be
to assess the logical reasoning of the plaintiff’s expert evidence against the probabilities
emerging from the entire evidence that was adduced. I do not intend to recount the evidence
adduced as that exercise has been conducted already. Suffice it to say that the evidence of
Dr Wilkinson is acceptable as compared to that of Dr Kieck’.
[37] The judge based this conclusion upon Mr Madikane’s witnesses giving ‘supportive
facts’ that Mr Madikane sustained a mild to moderate head injury. He rejected the argument
of the RAF that Dr Wilkinson’s opinions are not supported by medical literature, on the basis
that Dr Wilkinson’s qualifications and experience were undisputed. He described Dr Kieck’s
examination of Mr Madikane as ‘superficial, shallow and unhelpful.’ He rejected the
evidence of Dr Loebenstein because he would not accept the results of the myriad of tests
conducted by Dr Hardy. That appears to be the only basis upon which he preferred the
evidence of Mr Madikane’s witnesses, to those of the RAF. This approach flies in the face
of the requisites laid down in Louwrens v Oldwage25 in relation to the approach to be
adopted when there is competing evidence. The court in Louwrens, referring to Michael v
Linksfield Park Clinic, 26 said the following:
‘What was required of the trial Judge was to determine to what extent the opinions advanced by the
experts were founded on logical reasoning and how the competing sets of evidence stood in relation
to one another, viewed in the light of the probabilities.’27
[38] Despite referring to the required approach as laid down in these two cases, the judge
a quo did not follow this approach. His uncritical acceptance of the evidence of Dr Wilkinson

25 Louwrens v Oldwage 2006 (2) SA 161 SCA; BEE v Road Accident Fund [2018] ZASCA 52; 2018 (4) SA
366 SCA para 22 - 25.
26 Ibid.
27 Ibid at 175H.

and Mr Madikane’s other experts, and the rejection of Dr Kieck and Dr Loebenstein’s
evidence, thus fell short of the requisite standard. The judge a quo failed to give any logical
reason for arriving at such a conclusion, as is evident from the portion of the judgment
referred to above. As stated in Michael v Linksfield Park Clinic, '(I)t would be wrong to decide
a case by simple preference where there are conflicting views on either side, both capable
of logical support. Only where expert opinion cannot be logically supported at all will it fail
to provide ''the benchmark by reference to which the defendant's conduct falls to be
assessed” ’.28
[39] The hospital records show that on admission, Mr Madikane did not display any
evidence of having suffered anything more than a mild concussion. The periods of LOC and
PTA were of short duration and thus fitted the criteria relating to a mild brain injury, from
which full recovery could be expected within three months. None of the complaints now
referred to seemed to bother Mr Madikane post-accident, until his academic results declined
in 2013. His exemplary school record showed improvement, rather than decline, with him
achieving five distinctions in matric and two distinctions in his first year of Actuarial Science.
[40] The evidence tendered by the RAF more than adequately rebutted the suggestion
that such an injury could have been sustained in 2006, not been diagnosed, and then
manifested itself in 2013. The considerable improvement in Mr Madikane’s academic
performance in the years following the accident was an insuperable stumbling block to the
conclusions drawn by Drs Hardy and Wilkinson. There was no basis for the judge’s rejection
of the evidence of Drs Kieck and Loebenstein.

[41] The probabilities weigh heavily in favour of the evidence presented by the RAF’s
witnesses that this was a mild brain injury from which he has recovered. There is no basis
to find that the symptoms suddenly appeared some seven to ten years later. If the brain
injury was more significant, the probability is that any such deficits would have manifested
immediately or within days or weeks of the injury. The failure of Mr Madikane or his mother

28 Michael v Linksfield Park Clinic fn 1 above para 39.

to give evidence in relation to his present condition leaves a deficit in Mr Madikane’s case,
which cannot be cured by the opinions of the psychologists.
[42] Mr Madikane has failed to prove the causal link between the brain injury sustained in
2006 and the problems that he presently experiences.29 In the circumstances, the appeal
must succeed because there was no admissible factual evidence to support the conclusions
that Mr Madikane’s medical witnesses drew. Their opinions lacked the requisite factual
foundation that our courts have consistently demanded should be the basis for the
expression of opinions by an expert.
Costs
[43] The RAF had tendered a certificate in terms of Section 17(4) of the Act and that order
will stand. Mr Madikane’s counsel submitted that as the certificate still stands, the RAF
should be liable for a portion of the costs. This cannot be acceded to. The certificate was
tendered on the first day of the trial. The claim for general damages is standing over and
the trial therefore proceeded only in respect of the claim for loss of income. In these
circumstances only the costs in respect of the latter claim need to be considered at this
stage. The normal rule that costs follow the result must apply. Mr Madikane must therefore
pay the costs associated with his claim for loss of income which will include the costs of the
hearing in the court a quo from 21 October 2015 to 18 July 2016.

[44] The following order is made:
1.
The appeal succeeds with costs, including the costs consequent upon the
employment of two counsel.
2.
The order of the court a quo is substituted with the following:
‘(a)
The plaintiff’s claim for loss of income is dismissed with costs, including the
costs of the hearing from 21 October 2015 to 18 July 2016.
(b)
The defendant shall furnish the plaintiff with an undertaking in terms of s 17(4)
of the Road Accident Fund Act 56 of 1996, for the costs of the future

29 Life Healthcare Group (Pty) Ltd v Suliman 2019 (2) SA 185 (SCA) para 12.

accommodation of the plaintiff in a hospital or nursing home for the treatment
or the rendering of a service or the supplying of goods to him after each of
such costs have been incurred and on proof of payment thereof.’

_________
________
S WEINER
Acting Judge of Appeal

APPEARANCES:

For Appellant:
H J Van der Linde SC (with him P T Marais)

Instructed by:

Mnqandi Inc, Mthatha

c/o Maduba Attorneys, Bloemfontein

For Respondent:
A G Jeffrey SC (With him N P Mngandi)

Instructed by:

SZ JOJO Incorporated, Mthatha

c/o Matsepe Attorneys, Bloemfontein