IN THE HIGH COURT OF SOUTH AFRICA (Northern Cape High Court, Kimberley)

Transcription

1 Reportable: YES / NO Circulate to Judges: YES / NO Circulate to Magistrates: YES / NO Circulate to Regional Magistrates: YES / NO IN THE HIGH COURT OF SOUTH AFRICA (Northern Cape High Court, Kimberley) In the matter between: Case No: 963/2009 Heard: 07/09/2009 Delivered: 30/10/2009 MELINDA DANISE SCHRENK Plaintiff and THE ROAD ACCIDENT FUND Defendant JUDGMENT KGOMO JP [1] On 29 June 2002 Ms Marie Kotze the driver of the insured vehicle, visited her friend Ms Melinda Schrenk, the Plaintiff, at her home in Kimberley. On leaving the premises by way of executing a U-turn the plaintiff s dog darted into her path. In order to avoid crashing into the animal she swerved and lost control of the vehicle which unfortunately pinned plaintiff s left lower leg (which dangled from the stoep) against a solid wall, causing a severe injury. [2] This accident gave rise to a damages suit being instituted against the Road Accident Fund, the defendant, in the amounts tabulated as follows (the general damages were amended on 26 July 2009 from R ,00 to R ,00):

2 2 2.1 General damages R , Past medical expenses R , Future medical expenses R , Past loss of income R , Future loss of income R ,00 TOTAL R ,86 [3] The defendant initially defended the entire action but has subsequently conceded the merits. On 19 September 2007 an order was made in terms of which the defendant would be liable for the full proven damages to the plaintiff. The defendant did not adduce any evidence to controvert the plaintiff s case, which incorporated expert evidence relating to the determination or assessment of quantum. On the contrary, much of the evidence has been expressly admitted or, fairly, not placed in dispute. It is consequently unnecessary to canvas the evidence in copious detail. [4] The following facts are common cause between the parties. The plaintiff s left lower leg sustained severe bruising as a result of the accident. The resultant pain (shock may have played a part) was such that plaintiff lost consciousness and regained same at Curomed Hospital where she was rushed to and immediately admitted. She was discharged the following day, but was re-admitted when the injury manifested itself to be more serious than initially diagnosed. Plaintiff was hospitalized for a further three weeks. There were no bone fractures. [5] On the 1 st August 2002 a skin-graft medical intervention was performed on plaintiff s affected leg and she was discharged the following day. The medical aid funding was depleted and

3 3 some of the early releases from the medical facility had to do with this factor. On 21 October 2002 plaintiff was admitted to hospital and diagnosed with deep vein thrombosis (DVT) to her right leg (the uninjured leg) and was discharged the day thereafter. It was also common cause that this blood clotting was a direct sequela to the accident and that plaintiff experienced swelling to her right leg as a result of the DVT. When dealing summarily with the expert evidence of Dr P Repko, a Bloemfontein neuro-surgeon, it will become evident how the right leg DVT was precipitated. [6] The plaintiff continues to experience problems with her injured (left) leg as a result of the scar tissue and the tissue below it becoming infected from time to time. This condition is known as cellulites, the inflammation of cellular tissue. Antibiotics is prescribed as a rule for treatment. Plaintiff requires ample bed-rest and must keep the affected left leg in an elevated position to counter the pain and swelling. I have referred to scar tissue because Dr Repko stated that when the skin has dissipated and a so-called skin graft is performed the dermis and epidermis (which protect the tissue) are irreplaceable. Hence the common occurrence of cellulites. [7] It was further common cause that plaintiff suffered from a pre-accident degenerative back affliction. This causes her to suffer from back ache from time to time. The pain becomes more acute when she sits or stands for extended periods. The parties are agreed that plaintiff experienced pre-accident back pains for which she was treated and booked off from her employment (as a switchboard operator with Oranje Toyota, Kimberley) on two occasions. It was not in dispute that she did not disclose the two episodes to Dr Maqbool, a neurogeon,

4 4 or to Dr Repko. Those minor ailments only surfaced when plaintiff was cross-examined on her own discovered documents. [8] Dr Repko worked on the premises that plaintiff was healthy and had no prior back pain. His opinion was that these episodes were of a short duration and should not have any effect on the quantum to be awarded. Adv Sharon Erasmus, for the defendant, contended that the cumulative effect of the sporadic pre-accident back aches and back pains caused by the transfer of weight from the affected leg to the other exacerbated the pain and called for a reduction of the amount that would otherwise have been awarded. This point is not without merit. However, the amount disallowable for this discrepancy, if any, should not be significant. [9] The plaintiff is 47 years old. She matriculated and has worked regularly since leaving school, except for short spells when she relocated with her husband due to his work commitments. She worked for Oranje Toyota, Kimberley, a vehicle outlet, for 9 years and resigned of her own accord on the 3 rd November 2006 for what she termed health reasons. She maintains that she could no longer endure the pain she experienced, regard being had to her working environment and the nature of her work. [10] Counsel for defendant argued that the plaintiff was not disabled, alternatively was not incapacitated to the degree that she could not have carried on with her work at Oranje Toyota. Counsel argued alternatively that the plaintiff was obliged to mitigate her damages by applying for retirement instead of resigning and claiming all her terminal benefits.

5 5 [11] Dr Repko s uncontested evidence is that plaintiff suffered from a pre-existing degenerative back condition, but it was asymptomatic at the time of the accident. The symptoms of the degenerative back condition were accelerated by the accident, he contended. His opinion was that but for the accident plaintiff would have stayed asymptomatic for approximately ten years. Based on this postulate she would have been able to continue working until the end of 2020 when she would be 59, and not the normal retirement age of 65. The consequence of plaintiff s pre-existing condition on the damages claimable is the limitation of damages in respect of the future loss of earnings to age 59. The transition from the asymptomatic to the symptomatic condition only manifested itself four years after the accident. [12] As regards plaintiff s employability Dr Repko testified that at a practical level she is totally incapacitated. However, theoretically she would be able to continue with her employment as a switchboard operator in that her speech is not impaired. In reality though plaintiff was not able to stand, walk or sit up for long stretches. Both her injured leg and the right leg, affected by the thrombosis, swell easily and should be elevated on numerous occasions during the day to minimize or absolve swelling. For this reason and the perennial back ache she needs to lie down on a couch or bed. It would be awkward and there may not be ample opportunity to do all these at work. He would not encourage it because complications may set in. Dr Repko would not recommend surgery to the back as the prognosis for it is not good.

6 6 [13] The plaintiff testified that her work as switchboard operator required her to be behind her desk almost all the time, except for brief emergencies, when one of the staff would stand in for her. Post the accident her employer relocated her to an inner office, out of sight of the general public, to accommodate her inelegant poses. In light of the unbearable pain, the impracticality of the work situation and the huge demand that she made on her colleagues and her employer she decided to call it quits. Applying for retirement was a complicated affair, so she settled for her terminal benefits. [14] Ms Susan van Jaarsveld, an expert industrial psychologist, corroborated the evidence of the plaintiff and that of Dr Repko pertaining to her field of knowledge and expertise and those parts need not be repeated. She went on to stress that no employer would countenance, for an indeterminate period, an employee having to keep her legs in an elevated position and to work in a stop-start fashion and allow the worker to walk about and stretch her legs and to lie down on her back. Plaintiff initially did frontline work and had to be relocated more or less out of sight. [15] From the evidence of the plaintiff, Ms Van Jaarsveld and Dr Repko it is clear that plaintiff had become a burden at her work and was busy harming her health, both physically and emotionally. I have no doubt, more so in that no gainsaying evidence was produced, that the plaintiff was totally incapacitated and thus not able to continue with her employment. She had no other skills and at 47 years was unemployable elsewhere because of her medical condition.

7 7 [16] On plaintiff s income and the percentile at which she was paid and the rate at which her damages ought to be assessed Ms Van Jaarsveld states that plaintiff was employed on the B3 level with regards to the Patterson grading and that Oranje Toyota is a national company which pays its employees on the 50 th percentile. She says bigger companies which she gave examples of (amongst them De Beers) pay on the 75 th percentile while small companies pay on the 25 th percentile. Ms Erasmus argued for a 25 th percentile and half-heartedly for a 10 th percentile. There is no evidence or basis for a 10 th percentile. On the other hand there would be no justification for me to place the plaintiff s ranking on the 25 th percentile when the only evidence points to the 50 th percentile. [17] On the actuarial certificate prepared by Dr Robert J Koch, an expert, and accepted by both parties, if plaintiff earned a salary on the 50 th percentile and would have worked until the age of 59 years, which she will attain in 2020, she will suffer a loss of future earnings in the amount of R By way of contrast payment on the 25 th percentile amounts to R ; a difference of R I will allow a contingency of 10% on the amount of R which has not been factored in by Dr Koch. The amount payable is therefore R [18] On plaintiff s past loss of income the following facts are relevant. She resigned at the end of October 2006, at which time she earned a gross salary of R Her loss of income calculated on this figure for the period November 2006 up to September 2009, when the matter was tried, Robert J Koch arrived at an amount of R , excluding contingencies, which calculations both parties accept. I will

8 8 allow a deduction of 5% for contingencies, based on the same approach as aforegoing. The amount therefore payable under this subhead is R [19] In respect of the general damages for the pain and suffering, loss of amenities of life, inconvenience and scarring of tissue the plaintiff claims an amount of R , which Mr Botha is pressing for, whereas Ms Erasmus urges for an award of no more than R In my estimation Ms Erasmus is closer to the mark. Dr Repko testified that plaintiff suffered three weeks of intense pain at level 4 on a scale of 1-5. The pain subsided as medical treatment was applied. Lots of tissue was lost and the scar, as depicted in the pictures handed in by consent and accepted by both parties, is unsightly. Plaintiff can no longer indulge in her pastime of social dancing and her part-exercise part-leisure brisk walking. [20] I have had regard to the following cases cited by the parties on what the plaintiffs were paid and what the discounted and extrapolated awards amount to currently: 20.1 In Dicks v Union & National Insurance 1971(2) C&B 211 the plaintiff received R7000,00, the current value is approximately R306000,00, for fractures of the right femur, tibia and fibula and post concussional syndrome, with dangerous complications, infection and thrombosis. Plaintiff suffered severe pain for long periods and her varicose condition was exacerbated. stockings. Plaintiff had to wear elastic 20.2 In Pamuli v Repende & Another 1987(3) C&B 665 a 40 year old female received R4 500,00, the current

9 9 value is approximately R30 000, for a swollen leg with cellulitis, a haematoma and the tivial surface which resulted in permanent lymphatic obstruction, swelling of her leg and a permanent lump. She underwent an operation to incise and drain the haematoma, received a skin graft operation, got an infection and experienced swelling In Swart v Provincial Insurance 1961(1) C&B 499 a male plaintiff received R2 950,00, the current value is approximately R , after a fracture of his right fibula and serious injuries to muscles, nerves and veins of his leg, he underwent skin grafting and other operations, suffered embolism in his lungs, limited movement of ankle and impeded blood circulation as a result of thrombosis In AA Mutual Insurance Association v Maqula 1978 (1) 805 (A) the plaintiff was a 45 year old male who sustained leg fractures in an accident. His right leg became septic and he had to use antibiotics. He underwent various operations. He could not stand for long, could not walk very far, could not crouch and walked with a limp. He was not employable as a chef anymore. He also experienced problems to obtain gainful employment. He was awarded R for general damages in 1978 which is discounted to a present value of R In Solomon and Another v De Waal 1972(1) SA 575 (A) the Plaintiff was a 29 year old female who was bitten on her leg by a horse and was left with serious disfigurement. She underwent skin transplants that did not solve the problem. The skin on the transplanted areas was bleaker than the other areas. She used to do horse riding,

10 10 swimming and played netball. After the accident she suffered from depression. She was awarded R in 1972 which is presently discounted to R In Protea Assurance Company v Lamb 1971 (1) SA 350(A) the Plaintiff was a 29 year male Railway clerk. He suffered serious leg fractures and developed DVT and received various skin transplants as well as other minor operations. He was unable to continue with his sporting career and became very moody. He walked with a limp and was very sensitive about the bad disfigurement. He could barely dance and wore an elastic sock. He was awarded R in 1971, which translates to R at current value. [21] In my view on a conspectus of all the cases and the evidence an amount of R would be reasonable and fair to both parties. [22] The past medical expenses in the amount of R is agreed. The terms of the orders in para 5 8(below) are either agreed or not disputed or not disputable. [23] I accordingly make the following order: The defendant (the Road Accident Fund) is ordered to pay the Plaintiff: 1. The Plaintiff s incurred Medical Expenses in the amount of R General Damages in the amount of R Past Loss of Income in the amount of R

11 11 4. Future Loss of Income in the amount of R The defendant must supply the plaintiff with an Undertaking in terms of the Section17(4)(a) of the Road Accident Fund, Act 56 of 1996, to pay all the plaintiff s expenses pertaining to future treatment and/or her accommodation in a hospital and/or Clinic or like institution and for all expenses pertaining to the medical treatment as well as medical expenses, lodging and services rendered to the plaintiff resulting from the injuries sustained by the plaintiff in the accident on 29 June 2002 as well as the Deep Vein Thrombosis suffered by her in her right leg, and her back problems. The expenses with regards to the back problems will only be payable until 31 December The defendant will pay the plaintiff s taxed or agreed party and party costs on the High Court Scale, which costs shall include: 6.1 The qualifying fees of the following experts of the Plaintiff: Dr Robert J Koch (Did not testify. His certificate was handed in by consent) Dr Pieter Repko Ms Susan Van Jaarsveld Prof J F Jooste (Did not testify) Dr S Maqbool (Did not testify). 6.2 The traveling costs of the plaintiff s legal representatives from Kimberley to Bloemfontein and back to consult with the expert witnesses of the plaintiff.

12 The traveling costs of the plaintiff s expert witnesses from Bloemfontein to Kimberley and back to testify on behalf of the plaintiff. 7. Interest on the above amounts at the rate of 15.5% per annum, calculated with effect from 14 days of the date of this order until date of payment. 8. The above amounts are payable into the following account of the plaintiff s attorneys: ELLIOTT MARIS WILMANS & HAY STANDARD BANK TRUST ACCOUNT ACCOUNT NUMBER: BRANCH CODE: F DIALE KGOMO JUDGE PRESIDENT Northern Cape High Court, Kimberley On behalf of the Applicant: Instructed by: On behalf of the Defendant: Instructed by: Adv. C BOTHA Elliott Maris Wilmans & Hay Attorneys Adv. S ERASMUS Duncan & Rothman Attorneys