FORM A FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT

Transcription

1 FORM A FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT PARTIES: ALLAN KLEIN V ROAD ACCIDENT FUND NOT REPORTABLE Case Number: 3050/06 High Court: SOUTH EASTERN CAPE LOCAL DIVISION DATE HEARD: 2-5 DECEMBER 2008 DATE DELIVERED: 10 DECEMBER 2008 JUDGE(S): JANSEN J LEGAL REPRESENTATIVES Appearances: for the Applicant(s): ADV HUISAMEN & ADV NEPGEN for the Respondent(s): ADV FROST Instructing attorneys: Applicant(s): LE ROUX INC Respondent(s): BOQWANA LOON & CONNELLAN CASE INFORMATION - Nature of proceedings: Key Words: Summary:

2 2 IN THE HIGH COURT OF SOUTH AFRICA NOT REPORTABLE (SOUTH EASTEN CAPE LOCAL DIVISION) Case No.: 3050/06 Date delivered: 10 December 2008 In the matter between: ALLAN KLEIN Plaintiff and ROAD ACCIDENT FUND Defendant JUDGMENT JANSEN J: The plaintiff instituted action against the defendant for damages which he suffered as a result of a motor vehicle accident. The accident occurred on 3 June He at the time travelled on his Honda motor cycle. On the double carriage way between Uitenhage and Port Elizabeth a combi taxi executed a U-turn directly in front of the plaintiff and this resulted in the plaintiff crashing into the taxi. This happened at approximately 17h45 on the day in question. The matter originally came before Liebenberg J. He made an order directing the separation of the merits of the case and the quantum of damages. Having listened to evidence, the learned Judge came to the conclusion that the driver of the taxi was solely to blame for the collision. He granted an order declaring the defendant to be liable to pay to the plaintiff all such damages arising from the collision as the plaintiff may be able to prove. The matter came before me on the quantum of damages.

3 3 The parties agreed on the amount of R ,03 as damages for past hospital expenses. As far as future medical and hospital expenses are concerned, the defendant offered an undertaking to the plaintiff in terms of section 17(4) of the Road Accident Fund Act. What was in issue before me was the plaintiff s claim for damages for loss of income as well as general damages. Several witnesses, including the plaintiff, testified before me. Eventually the defendant admitted several medical reports as well as the hospital records of the plaintiff. No evidence was adduced on behalf of the defendant. The plaintiff was born on 19 May He was 45 years old at the time of the collision. The plaintiff grew up in Port Elizabeth and obtained his matric at the Commercial High School in the city. In 1978 he took up employment with the South African Railways and Harbours. During he was doing military service at the South African Defence Force. He obtained the rank of lance corporal. Having completed his military service he in 1981 again got employed by the South African Railways. He worked for Portnet in the staff and labour office. He was involved in the planning of loads for container ships and cartage. He 1989 he was promoted to the position of a senior clerk and 1994 promoted to the position of a chief clerk. In 2002 the plaintiff moved from Portnet to a subsidiary thereof, called Freight Dynamics. His title changed to chief administrator although he was still referring to himself as a chief clerk. At the time of the accident the plaintiff was the chief administrator planning container loads for inter alia Good Year and

4 4 Volkswagen. He was also involved with the road travel side of the business. He supervised a couple of junior clerks and had several drivers under his control. The plaintiff s immediate supervisor was a certain Mr Harry Haroldt. At the time of the collision the plaintiff was in the second highest notch of his position as a chief administrator. The salary he earned at the time was not in dispute. The retirement age of an employee at Freight Dynamics is 63 years. It was accepted that the plaintiff would have continued to work at Freight Dynamics until retirement age. It is common cause that the accident rendered the plaintiff completely incapable of continuing to do his work. He was boarded as medically unfit and is at present receiving a disability income. Although Mr Haroldt, who testified for the plaintiff, expressed the view that the plaintiff would have succeeded him as the operational manager, it is clear that the plaintiff, although a very good worker, did not have the same qualifications as Mr Haroldt had at the time. Mr Haroldt has completed several in-house courses in connection with his work. In Mr Haroldt s absence the plaintiff sometimes acted in his position. That was also the case with two other employees holding the same rank as the plaintiff. The plaintiff also had to do some overtime work. It was accepted that the plaintiff would have reached the top notch on the salary scale attached to the position of chief clerk during It is common cause that the business of Freight Dynamics was reduced to a certain extent. That was blamed on a policy to allow different transport contractors into the harbour area. Mr Haroldt decided that it would be better for his future to leave the services of Freight Dynamics and he obtained a position similar to the one he had at a different transport company.

5 5 The two chief clerks working with the plaintiff in the meantime resigned from Freight Dynamics. Another person had to be trained to do their work but he has in the meantime also resigned. It is common cause that Mr Haroldt s vacant position was never advertised and not filled. I am of the view that the plaintiff has not proved that he would probably have been appointed in the position of operations manager, the position held by Mr Haroldt. His future loss of income has therefore to be determined on the notch which he would have reached in The plaintiff was and apparently is still a motor bike fanatic. He attended rallies all over the place. He made very good friends at these rallies. He developed a love for motor cycles and started his own workshop where he repaired motor cycles and where he made components for motor cycles. It was not disputed that on average the plaintiff earned over the years R2 500,00 per month for his work, which started as a hobby, on motor cycles. It was suggested by Mr Martiny, an industrial psychologist, testifying on behalf of the plaintiff, that the plaintiff would in all probability have continued to earn an income from this hobby until the age of 70. The plaintiff, in evidence, however, conceded that because the work that he was doing on motor cycles has to be done meticulously he would probably not have continued to do that for an additional income beyond the age of 65. Certain actuarial calculations were done by Mr Ennis, which calculations were not in dispute. He took into account the plaintiff s disability income. The only issue that was eventually in dispute was the contingency deductions to be

6 6 made. It was common cause that for past loss of income a contingency deduction of 5% should be made. It was submitted on behalf of the defendant that as far as future loss of income is concerned a 15% contingency should be allowed and it was in particular submitted that there was no reason to depart from the normal percentage. That is now as far as his loss of income at Freight Dynamics is concerned. I am, however, of the view that only a 10% contingency should be deducted. I came to that conclusion in particular because of the fact that the plaintiff was good at his work, that he was a very pleasant person and that he had a good relationship with the persons working under him as well as with clients. He also testified, and that was not disputed, that he never intended to leave the employment of Freight Dynamics until retirement. I also have to take into account the evidence of Mr Haroldt and Mr Martiny who gave their views that the plaintiff would have been promoted to a higher position. Although I found that it was not proved as a probability, the possibility still remained. I therefore decided that a 10% contingency factor should be allowed. As far as the loss of income from the motor cycle activities are concerned, it was submitted on behalf of the defendant that a 50% deduction should be ordered. I do not agree. The plaintiff had a passion for motor bikes and he used to attend rallies where he regularly made contact with other motor bike fanatics. His work on motor bikes was a passion and he would have continued to get some pride out of his work on motor cycles. Fact is that a possibility existed that he could continue to earn some income after reaching the age of 65. In my view, a fair contingency deduction as far as that income is concerned would also be 10%. As said above, the calculations of Mr Ennis was not in dispute. According to his calculations the plaintiff

7 7 suffered a loss of past income, taking his two sources of income together, in an amount of R ,00. From that 5% should be deducted which leaves a total of R ,00. According to Mr Ennis the future loss of income proved by the plaintiff, again with his two sources of income added together, is an amount of R ,00. With a 10% deduction it is R ,00. The plaintiff is therefore entitled to damages for loss of income in a total amount of R ,00. That brings me to general damages. It was not disputed on behalf of the defendant that the plaintiff suffered severe injuries. Dr Keeley, a neurosurgeon, who examined the plaintiff and also studied the hospital records, concluded that the plaintiff was in a critical state when he was admitted to the Greenacres Hospital after he had been conveyed by ambulance from the scene of the collision to the hospital. It was not disputed on behalf of the defendant that the plaintiff sustained the following severe bodily injuries: (a) fractured ribs on the left side with an associated pulmonary effusion; (b) a severe burst unstable fracture of the lumbar spine at L-1; (c) a fracture of the spine at T-12; a fracture of the transverse process of L-5 on the left; (e) a severe fracture of his pelvis with diastasis of his symphysis pubis with subluxation and the widening of the left sacroiliac joint; (f) a rupture of the anterior inferior aspect of his bladder; (g) a open fracture of his right ankle; (h) an injury to his right shoulder; (i) several scars as well as lacerations to his right knee and left hand and (j) a right calf, thigh and shin injury. The plaintiff was immediately on arrival at

8 8 Greenacres Hospital admitted to the intensive care unit where he remained for a period of five weeks. During the period of hospitalisation the plaintiff had four surgical procedures namely (a) surgery to his bladder; (b) a lumbar spinal surgery by way of a fusion between T12 and L-2; (c) a fusion of his left sacroiliac joint and a fusion of his pubic symphysis and (d) surgery on his right ankle. Being discharged from the ICU he remained for another week at Greenacres Hospital whereafter he was on 16 July 2004 transferred to Aurora Hospital for rehabilitation, where he remained for a further five weeks, eventually being discharged towards the end of August The plaintiff appreciated and benefited from the intensive multi disciplinary rehabilitation programme to which he was subjected at the Aurora Hospital. His medical aid only allowed him four weeks of rehabilitation before he had to go home. On discharge his girlfriend took him to her home where she nursed him for about two months. On leaving Aurora he was hardly able to walk and was therefore supplied with a wheelchair and elbow crutches. He was very weak and shaky. Slowly, with continuing effort, he progressed to a point where he could dispense with the crutches. He is still walking with a lot of discomfort and with the support of a walking stick. At this stage, more than four years after the accident, the plaintiff s right ankle pain is the most severe and incapacitating disability. Dr Forges, an orthopaedic surgeon, prescribed a rigid ankle brace. The plaintiff uses a plaster or patch under this brace that helps to relieve the pain. The pain is persistent, ongoing and chronic. The plaintiff has now developed arthritis in the ankle as well. He takes medication to get some symptomatic relief. The

9 9 plaintiff is cautious about the medication as it affects his stomach and his stomach lining. He takes anti-inflammatory suppositories which he finds helpful. The plaintiff is considering surgery to his ankle but because of a belief that he had a heart standstill when he was operated on at Greenacres has a negative effect on his decision whether to undergo surgery or not. The only relief the plaintiff gets from the pain in his ankle is when he lies down and elevates his foot. The ankle remains swollen. According to Dr Keeley the plaintiff sustained a fracture dislocation at the terminal end of the spinal cord. The weakness and neuralgia in the plaintiff s legs, particularly on the right side, is apparent to him more in retrospect than it was at the time. The symptoms were masked because of his pelvic fracture and the terrible pain that he was experiencing in his back and his pelvis and his right ankle. He has some sensory changes in his legs. This is the result of the injury at the level of the spinal fracture. It is not inconceivable that at a later stage dysaesthetic pain and other abnormal pain syndromes could make an appearance. According to Dr Keeley the plaintiff s neurological picture as it is today will not improve. An injury in this region of the back may well be associated with some deterioration in his neurology in future. There is also a distinct possibility of the plaintiff developing an enlarging cyst within the spinal cord at the level of the injury. According to Dr Keeley an operative intervention for a pain syndrome will be very unlikely. He concludes that the plaintiff will suffer this pain for the rest of his life. Dr Keeley described the lower back pain caused by the spinal injury as a multi faceted problem. The plaintiff had a fracture of the L-5 transverse process. The transverse process

10 10 is a lever to which the muscles are attached. Considerable disruption must have taken place in the area to fracture the transverse process as concomitant to the disruption to the left sacroiliac joint. The plaintiff s major pain is felt at the lumbo-dorsal juncture. Radiographs demonstrate correct good instrumentation to fuse and stabilise the spine at this level. Dr Keeley is doubtful whether a bone fusion is complete and stabilising in the plaintiff s case. Because of the plaintiff s abnormal gate caused by the injuries he sustained, excess stress has been taken through the uninvolved motion segments of the lumber spine and the plaintiff is already showing signs of degenerate change. Dr Keeley believes that the plaintiff s pain in his lower back will be ongoing and slowly progressive. It is not going to respond to corsets, physiotherapy and pain pills to any useful extent. According to Dr Keeley the plaintiff has been left with severe pain which will plague him probably for the rest of his life with forced surgery with an unpredictable result at some stage. Regarding the pelvic fracture, Dr Keeley described that weight carried from the body is at the apex of the lumbo-sacral junction from which it is dispersed through the sacroiliac joints along the pelvis to the hip joints and from there down the legs. The plaintiff s pelvic ring has been broken. The sacroiliac joint is notorious for poor fusion and resultant chronic pain because of its important weight transfer situation. The plaintiff s left hemi-pelvis is also unstable and not carrying weight in a normal anatomical configuration. According to Dr Keeley the pain experienced by the plaintiff in his pelvic area, particularly in the sacroiliac joint, will persist and is a significant contributor to the pain

11 11 syndrome that the plaintiff is presently experiencing. Pain and suffering has become a feature of the plaintiff s life, according to Dr Keeley. The plaintiff will continue to live being severely handicapped by pain, probably for the rest of his life. The plaintiff was also examined and observed by Mrs Ansie van Zyl, an occupational therapist. She noticed that movement in the plaintiff s back is restricted in flexion, extension and lateral flexion. Rotation to the left and right is also restricted. His right ankle is stiff with restricted movement in all planes of movement. The plaintiff experiences a patch of altered sensation over the lateral aspect of the left thigh as well as the anterior aspect of the right shin. The plaintiff is able to stand independently without support for 20 to 30 minutes. He is able to stand unsupported on the left leg for a short period of time only, but he is not able to stand unsupported on the right leg at all. He is not able to make quick movements to any side. He is not able to run, to catch a ball thrown off target, or kick a ball. The plaintiff is able to sit for about 20 to 30 minutes before he gets uncomfortable and has to perform some stretches. He is able to stand for 20 to 30 minutes before the pain gets so bad that he is not able to tolerate it. He is not able to bend forward to pick up objects from the floor. The plaintiff is able to walk safely and unaided for short distances and on level surfaces only. He has difficulty to negotiate uneven surfaces safely. There is a distinct limp present when he gets up from sitting and starts to walk. The plaintiff is able to climb stairs up and down by holding on a rail. This is a slow, careful process. Climbing stairs causes discomfort and pain and the plaintiff tries to avoid it. He cannot run, jump or squat.

12 12 During his stay at the ICU at Greenacres Hospital the plaintiff initially experienced euphoric and beautiful images and illusions but it later changed into terrible and horrific images and experiences for him. He became very scared and disturbed by these experiences and recognised them as not being of his usual thought process. He experienced it as satanistic. He was so disturbed by these experiences that he consulted with his Ministers of Religion as well as a Psychologist to diagnose what was occurring. He thought that he was losing his mind. The feedback and assistance he received from them set his mind more at ease. Thereafter, however, panic attacks started. He got hot and cold flushes with his heart rate and pulse very fast and a feeling of acute anxiety and panic. He felt that he was not in control of himself. These attacks lasted between 10 and 15 minutes. He also became very tearful. He experienced feelings of vulnerability. He also picked up sleep disturbances. The plaintiff s sexual functioning was also adversely influenced by the accident. The injuries to his pelvic area caused a sensory nerve deficit. That caused an inability to experience sensation. That adversely affected the plaintiff s sexual function. Dr Ernst Bonnet who examined the plaintiff and also performed surgery on him stated in his report that he believes that the plaintiff s situation is permanent. In his view it was not a temporary injury with expected recovery of the nerve. The plaintiff experienced a permanent nerve damage which will render him free from sensation from the genital area for the rest of his life. It also resulted in a urinary incontinence. The plaintiff cannot

13 13 feel when he urinates. Although the plaintiff can still get an erection, an orgasm during intercourse is seldomly experienced. His sexual activity is also accompanied by pain in his lower back and cramps in his leg. The plaintiff was also interviewed and tested by Mr Mark Eaton, a clinical psychologist. Mr Eaton also had at his disposal medico legal reports as well as other collateral information. Mr Eaton concluded that as a result of the accident the plaintiff experienced a panic disorder (in full remission) an adjustment disorder with depressed mood (initially severe and now mild to moderate severe) an hypoactive sexual desire disorder, acquired type, due to psychological and medical conditions. It was Mr Eaton s view that the plaintiff has a chronic pain disorder as well. Mr Eaton concluded that the plaintiff experienced severe general damages of pain, suffering and shock which was subjectively and consciously experienced for a significant period of time. Although the plaintiff is not overly sensitive about his scars or disfigurement he is severely affected by his disability and by not being able to work as previously. His loss of amenities and enjoyment of life are extensive with him experiencing loss of general health and fitness, reliance on analgesic pain medication, general anguish of having to cope with disability, chronic insomnia and acquired sexual dysfunction. The chance of major depressive episodes resulting from chronic unmanaged pain cannot be excluded. It was properly conceded by Mr Frost on behalf of the defendant that the plaintiff had been involved in a very serious collision with severe sequlae. The plaintiff will never have a normal active life. He is severely handicapped.

14 14 Counsel on behalf of both parties referred me to various awards made by various Courts over a period of time where similar injuries, some less serious and others more serious, were sustained by victims of motor vehicle collisions. It is trite, however, that each case has to be determined on its own facts. I have carefully considered the plaintiff s position as well as the cases referred to by counsel, which I need not refer to in this judgment. Taking everything into account I am of the view that the plaintiff should be awarded an amount of R ,00 for general damages. Two counsel appeared on behalf of the plaintiff. It was submitted on behalf of the plaintiff by Mr Huisamen that I should allow the plaintiff the costs of two counsel. He submitted that a large claim was involved as well as various expert witnesses. The application for a costs order of two counsel was opposed on behalf of the defendant. It is true that the case was of much importance to the plaintiff and it is true that several medical experts were consulted in this matter. I have carefully considered the question of costs of two counsel and compared this matter to the case of Currie v RAF case no. 1471/95 in which I gave judgment on 23 May 2008, referred to by counsel on behalf of the plaintiff. The present case, in my view, was not more complex nor of a wider ambit than Currie s case in which one counsel appeared on behalf of the plaintiff. I had regard to the minutes of pre-trial conferences in terms of Rule 37 held in this matter. The first one was attended on behalf of plaintiff only by his attorney. That was also the situation with the second one. At the third pre-trial conference one counsel got involved. That was at the time when the merits was still in issue. The first pre-trial conference on the

15 15 quantum on 21 October 2008 was on behalf of the plaintiff only attended by his attorney of record. Counsel, Mr Huisamen, became involved on 20 November 2008 and second counsel only at the last pre-trial conference on 1 December I have not been persuaded that this case was so complicated and so extensive that the services of two counsel were justified. In the result, I give judgment in favour of the plaintiff as follows: (a) Payment of the amount of R ,03 for damages. (b) Interest on such damages calculated at the legal rate of interest of 15,5% per annum payable as from 14 days after judgment to date of payment. (c) The defendant is directed to furnish the plaintiff with an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act to cover future hospital and medical expenses which the plaintiff may incur resulting from the collision. (d) Costs of suit together with interest thereon at the legal rate of 15,5% calculated from a date 14 days after the date of taxation to date of payment which costs shall include the qualifying expenses, if any, of the following witnesses:

16 16 Dr G Read, Dr R J Keeley, Mr L Martiny, Dr E Bonnet, Ms A van Zyl, Mr M Eaton, Mr P W Ennis, Dr L le Roux, Dr J S Smith, Dr M Locketz, Dr S Bemath, Dr D Meintjies, Dr H Vawda, Dr C Landman, Dr Steenkamp. J C H JANSEN JUDGE OF THE HIGH COURT