This blog was co-authored by Raees Halim, Candidate Attorney
In NDB obo JWK v Road Accident Fund, evidence was led to assess loss of future earnings of the plaintiff’s minor son, who sustained dire injuries from a motor vehicle collision five years before. Each party’s respective industrial psychologist experts could not agree on the child’s post-injury career prospects. The court noted that this conflict occurred after an assessment of the assumed facts, as well as in analysis of the common cause facts.
The plaintiff’s expert witness testified on the probability of the child finding employment, with reference to his possible future performance at school. The witness provided a specific and sequential take of the child’s future earnings and career prospects as a result of his injuries and condition. The witness concluded that the child would not find employment, due to the improbability of finding work in a difficult market and his diminished capacity to secure any necessary skills.
Conversely, the defendant’s witness concluded that there would be no loss of future earnings. But this industrial psychologist testified on an account of facts that were incorrect and clearly misinterpreted. Some of the factors relied upon were the child’s stable academic performance, his supportive family structure, and the odd misconception that the defendant’s educational psychologist opined the child will ‘probably reach at least grade 12’, whilst the testimony was, in fact, that he ‘may be able to reach grade 12.’ Further, the witness relied on the fact that the child did not suffer a traumatic brain injury. The court noted that, while this was true, it did not mean that the child had not suffered from reduced psychological functioning.
Where a conflict in expert evidence exists, courts must carefully consider the underlying reasoning employed therein. The court considered a set of factors in assessing expert evidence namely:
- The process of reasoning adopted by the experts should be considered. This is important because the effect of the conclusion drawn by an expert may well dictate a particular result in the circumstances.
- How consistent the opinion is with the common cause facts.
- If it occurs that it is difficult to resolve the conflict on the basis that the opposing opinions are ‘sound and reasonable’, the successful party will be the one who does not bear the overall burden of proof, usually in this context the claimant.
The evidence of the plaintiff was accepted by the court.