In dealing with a claim against the Road Accident Fund in which an acting judge questioned the conflicting reports of some medical experts regarding the injuries suffered by the victim, she called on the wisdom of philosophers and said it is the duty of the courts not to simply accept reports on face value.
Acting Judge C Marais, sitting in the Polokwane High Court, in the opening to her judgment, remarked: “As law students, we often questioned the relevance of studying old philosophers' works. To some, philosophy was a difficult topic to grasp or pass on your first attempt.”
“I found myself in the situation before me, seeking the advice of old philosophers on whether the evidence of an expert witness must be simply accepted as true and correct or whether we, as lawyers and jurists, should delve deeper and ask the more difficult question of whether the expert reports or recommendations make logical and reasonable sense.”
Judge Marais added that in claims against the RAF, the courts and the parties involved depend significantly on specialists to assess the fairness and equity of a plaintiff's claim. And, if deemed valid, to ascertain a reasonable and just compensation sum under the circumstances.
“It is crucial for attorneys or trust advocates seeking expert reports to engage specialists who comprehend the fundamental principles of civil procedure legislation, particularly the regulations governing the presentation of evidence in court.”
Judge Marais said neglecting to accomplish this constitutes a tragedy for jurisprudence and reveals a deficiency in the expert's adherence to their own ethical standards and code of conduct.
The case which sparked these comments concerned a 50-year-old woman who was injured after a taxi crashed into her in 2016, after the driver of the taxi lost control due to a burst tyre.
The court earlier concluded that the RAF was liable for the injuries the woman had suffered. The matter was now back in court, for it to deal with how much she should be awarded, based on the medical reports regarding her injuries.
Judge Marais said when she read through the court papers, she noticed discrepancies in some of the signatures on the reports, some reports emanating from as far back as 2018, while others made experts' findings not based on their own evaluations, but on a hearsay basis.
She directed that several experts be subpoenaed to appear before him and provide an explanation for the discrepancy between their signatures on their affidavits and those of the reports, as well as on his other concerns regarding their reports.
One of his concerns was regarding an expert’s assessment of past and prospective earnings of the accident victim, which is excessively inflated.
In criticizing some of these expert reports, the judge commented that expert witnesses are called upon to provide opinions based on their expertise. If their expert reports rely on hearsay rather than substantive evidence to substantiate their opinions, the reports are of little assistance to the court.
“When an expert relied on hearsay evidence in formulating their report, as the industrial psychologist did in this instance, it was the obligation of the plaintiff's counsel to challenge the hearsay evidence to guarantee its admissibility and appropriate evaluation by this court.
The counsel failed to meet this requirement, despite the clear necessity, as the expert reports significantly differ from one another,” the judge said.
“Legal principles and tools for evaluating credibility and dependability stipulate that before any significance can be attributed to an expert's opinion, the underlying facts must be established as existent,” Judge Marais said.
She was of the view that some of these reports did not meet judicial muster.
“Upon examining the philosophical foundations of our legal system, modern jurisprudence, and the specific evidence the plaintiff was required to establish, logic dictates that I treat the expert findings with considerable scepticism,” the judge said.
He accepted some reports and rejected others. The judge also ordered that her judgment must be brought to the attention of the Director for the Limpopo Provincial Council (LPC) for their further investigations into the expert declarations that were not properly commissioned.
Pretoria News