PATRICIA JULIANA VAN DER WESTHUIZEN JUDGMENT. [1] The plaintiff was a rear seat passenger in a motor vehicle which was involved

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1 IN THE HIGH COURT OF SOUTH AFRICA EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH Case No.: 1024/2013 Date Heard: 23 October 2014 Date Delivered: 4 November 2014 In the matter between: PATRICIA JULIANA VAN DER WESTHUIZEN Plaintiff and ROAD ACCIDENT FUND Defendant JUDGMENT EKSTEEN J: [1] The plaintiff was a rear seat passenger in a motor vehicle which was involved in a collision with another vehicle (herein referred to as the insured vehicle ) in Circular Drive, Port Elizabeth on 1 October She sustained severe bodily injury, in particular a fracture through the lateral/tibial plateau of the right knee joint. In consequence of her injury she contends that she has suffered damage and that the collision was caused by the negligence of the driver of the insured vehicle. She has accordingly instituted action against the defendant for damages in terms of the Road Accident Fund Act No. 56 of 1996 (herein referred to as the Act ). [2] It is not in dispute that the plaintiff sustained a serious injury as defined in terms of the provisions of the Act. As a result of her injury she was hospitalised and

2 2 has incurred medical and hospital expenses. She will incur further medical expenses in future and she alleges that she will be required to employ an assistant to help her in her daily activities as a consequence of the incapacity which results from her injury. She further alleges that she has suffered loss of earning capacity and general damages. The plaintiff claims an amount of R ,91 which is made up as follows: Past Hospital Expenses R ,20 Past Medical Expenses R ,71 Future Medical Expenses R ,00 Costs of an assistant R ,00 Past Loss of earnings R ,00 Future Loss of earnings and/or Loss of earning capacity R ,00 General damages R ,00 [3] At the commencement of the trial I was advised that the defendant acknowledged and admitted that the driver of the insured vehicle was negligent in causing the collision. [4] The defendant accepted liability for past hospital and medical expenses in the amount of R64 193,00. The plaintiff s claim for past hospital and medical expenses is in the total amount of R ,91. The defendant specifically disputed liability for the costs incurred in respect of a total knee replacement performed at the Life St George s Hospital on 26 April 2013 in the amount of R ,73. This leaves a further amount of R3 990,18 of the plaintiff s claim for past medical and hospital

3 3 expenses unaccounted for. Mr Schubart, on behalf of the plaintiff, advised that the plaintiff abandoned her claim in respect of the latter unaccounted amount. [5] The parties advised that the defendant has agreed to furnish to the plaintiff an undertaking in terms of the provisions of section 17(4)(a) of the Act to compensate the plaintiff in respect of the costs of future accommodation in a hospital or nursing home or treatment of or rendering of a service or supplying goods to her after such costs had been incurred and on proof thereof. In the result the claims in respect of future medical expenses and the cost of an assistant have been settled. [6] The parties were in agreement that the plaintiff is entitled to be awarded an amount of R ,00 as and for general damages. [7] In the circumstances what remains for decision is the plaintiff s claim for payment of the sum of R ,73, as reflected on the invoice of the Life St George s Hospital in respect of the knee replacement to which I have referred earlier and the claim for past and future loss of earnings or earning capacity. [8] There is little dispute relating to the facts. Medico-legal reports of Dr Keeley, a neurosurgeon, Dr Olivier, an orthopaedic surgeon, Ms Ansie van Zyl, an occupational therapist and Ms Wessels, a clinical psychologist have been filed and I was advised at the trial that these reports, including the opinions expressed therein and the factual foundation upon which such opinions are based were admitted. The plaintiff was the only witness to be called.

4 4 [9] The plaintiff is currently 66 years old, she is divorced and she has a son aged 37 who lives with her. She is a qualified nursing sister and was employed as such on a full-time basis until she took early retirement in She was in good health at the time of her retirement and it appears that she retired in order to care for her ailing mother. After her mother passed away she again took up employment as a nursing sister at an old age home. [10] While she was employed at the old age home she says that she was required to climb many steps. Her right knee developed pain which had troubled her for some time. In May 2011 Dr Mike Els, a radiologist, took certain X-rays of the right knee joint. He reported the knee as normal without any abnormality. Dr Olivier reports that thereafter she developed pain in the right knee joint and she resigned from her employment with effect from 31 August On 2 September 2011 an Arthroscopy of the right knee joint was performed by Dr Polderman. Dr Polderman reported in his theatre report that the patella-femoral joint showed a grade 2-3 degeneration condition, the trochlea grade 2, the medial meniscus normal, femoral condyle a grade 2 degeneration, tibial plateau normal. On the lateral side the femoral condyle showed a grade 2 degeneration and the tibial plateau grade 3-4 degeneration. The Arthroscopy accordingly revealed a degree of osteo-arthritis present in the right knee joint. [11] The accident occurred on 1 October 2011 at a time that the plaintiff was still recovering from the Arthroscopy, however, she states that she was already able to walk unassisted at the time.

5 5 [12] When the accident occurred the plaintiff was a left rear seat passenger. She made use of the safety belt but her right knee was thrust against the front seat. She was taken by ambulance to the Greenacres Hospital where Dr Wickens examined her and referred her to Dr Mandaba, an orthopaedic surgeon. The knee was bandaged and stabilised in bed. On 3 October 2011 Dr Mandaba did an open reduction and fixation of the tibial plateau fracture. She then received physiotherapy in hospital and was discharged on 6 October At the time of her discharge she was mobilised on crutches with a knee brace, however, she still complained of a very painful right knee. X-rays taken 8 weeks post-operatively, on 1 December 2011, showed the internal fixation of the lateral tibial plateau fracture with the normal anatomy restored and the fracture lines no longer visible. She still remained dependant on the use of crutches. [13] Dr Olivier reports that the pain produced by a fractured tibial plateau in the right knee is reckoned as severe pain because of the intra joint surface damage of the right knee joint. The pain, he states, was stabilised after the initial fixation on 3 October 2011 and lessened over the next 2-4 weeks. Notwithstanding that a proper internal fixation was done the damage to the joint surface of the tibial plateau in the right knee still caused pain. [14] In June 2012 the plaintiff still remained dependant on the use of crutches and she again consulted Dr Polderman. The screws and plate were removed a week later and she continued with her use of crutches for another three months. On 12 March 2013 a further consultation with Dr Polderman followed and the total knee replacement was done on 26 April 2013 because of the osteo-arthritis and damage

6 6 to the joint surface of the knee. Thereafter she underwent rehabilitation, received physiotherapy and remained on crutches for a further 6 weeks. Dr Olivier reports that the plaintiff has now regained her normal right knee function. [15] As recorded earlier herein Dr Olivier reports that a total knee replacement was done of the knee joint because of osteo-arthritis and the damage to the joint surface of the knee. The Arthroscopy performed in September 2011 revealed a measure of osteo-arthritis. Dr Olivier does not declare the extent, if any, to which the findings of Dr Polderman at the Arthroscopy on 2 September 2011 indicated a possible or probable future knee replacement. Dealing, however, with the causes of the operation which was performed he says: It is difficult to determine the degree of osteo-arthritis of the right knee caused by the fracture of the tibial plateau but taking in consideration the great force of injury mechanism to the right knee and a crush effect onto the lateral plateau with the result of a fracture through the joint surface of the lateral/tibial plateau a 50% worsening of the patient s right knee joint osteo-arthritis can be accepted as caused by the injury. [16] Dr Olivier proceeds to suggest therefore that 50% of the cost of the total knee replacement should be recovered from the defendant. [17] Mr Schubart argues in support of this latter view expressed by Dr Oliiver. He has urged me to award to the plaintiff 50% of the costs associated with the knee replacement. Mr Jooste, on behalf of the defendant, on the other hand, submits that the plaintiff has failed to establish on a balance of probabilities that the knee

7 7 replacement operation would not in any event have been required, but for the accident. [18] Whether expenses are fairly attributable to injuries received in an accident is largely a question of fact to be determined principally on the medical evidence. The plaintiff bears the onus to establish on a balance of probability that the expenses are fairly attributable to the injuries received in the accident. I have recorded earlier that Dr Olivier s report is silent in respect of the possibility or probability that a total knee replacement would have been required in any event at some stage due to the preexisting degeneration of the knee joint. He acknowledges that the knee replacement was required both because of osteo-arthritis and damage to the joint surface of the knee. I am satisfied on the medical evidence presented, and in particular by the report by Dr Olivier, that the osteo-arthritis of the right knee joint which ultimately led to the total knee replacement was caused, in part, by the fracture of the tibial plateau. I am not satisfied however, in the absence of medical evidence relating to the prognosis of the pre-existing degeneration of the knee joint but for the accident, that the operation would not in any event have been required and was therefore fairly attributable to the accident (compare Selikman v London Assurance 1959 (1) SA 523 (T) at 527A-E). The claim for the costs of the operation can therefore not succeed. [19] I turn to consider the claim for past and future loss of earnings. [20] The plaintiff s working history has been set out earlier herein. She testified that during or about 2011 she became somewhat depressed by her working

8 8 circumstances in the old age home. She accordingly resigned her position on 31 August 2011 with the intention of seeking less onerous work, possibility on a half day basis, within the medical field. She postulated a post at a pharmacist clinic, blood transfusion services or as a receptionist at a doctor s surgery. In such a position she would not be required to perform the physical work which a full-time nursing sister is required to perform. She states that it had been her intention to seek such employment in the early part of 2012 and to continue in such less onerous work for approximately 5 years longer, until the age of approximately 70. [21] As a result of the accident and the injury to her knee she was unable to seek such employment and remained incapable of performing such work until after the performance of the total knee replacement. It is common cause that she is now able to perform all those functions associated with such less onerous work as she had envisaged prior to the accident. Dr Olivier expresses the view in his report that the plaintiff had regained full knee movement by the end of During her evidence the plaintiff herself ventured a guestimate that she would have been able to perform all those functions associated with such work as she had intended and still intends to seek after approximately 6 months to 1 year after the total knee replacement was performed. Ms van Zyl, in her report dated 20 August 2014 states, however, that the plaintiff has not been able to work at all since the accident and that this is reasonable. The report of Ms van Zyl, as recorded earlier is admitted. I will accordingly accept, for purposes of this judgment, that the evidence establishes that it is reasonable to accept that the plaintiff was unable to perform such work as she had hoped to obtain from the date of the accident until the end of August 2014.

9 9 [22] The plaintiff, during evidence, suggested that she had been hopeful of obtaining employment of the nature set out earlier herein at a remuneration of approximately R5 000 to R8000 per month. The parties were agreed that I should consider a remuneration of R5 000 per month for purposes of an assessment of the plaintiff s past loss of earning capacity. [23] There does not appear to be any dispute on the evidence that the plaintiff is currently in a position to perform all those functions associated with the employment opportunities which she desires to pursue and which she had envisaged prior to the accident. She states that she has begun to make enquiries but that a suitable position has not yet presented itself. She has not applied for any position yet. She is currently 66 years of age and is able to perform all those functions required for any position which she wishes to pursue. It is true that she is not able to return to fulltime nursing with the more onerous obligations of such employment. She was, however, not in full-time nursing at the time of the accident and had no intention to return to such employment. In these circumstances I do not think that any claim for future loss of earnings has been established. [24] In respect of the past loss of earnings I have accepted herein that the plaintiff was unable to pursue employment as from the date of the accident to the end of August She was, however, unemployed at the time of the collision and had no intention of seeking employment prior to January The duration of her incapacity was accordingly for a period of 32 months for 1 January 2012 to 31 August The loss, would therefore, on a purely arithmetical calculation, amount to R ,00.

10 10 [25] It cannot be gainsaid, however, that a probability exists that the plaintiff would for some period after 1 January 2012 have remained unemployed whilst seeking suitable employment. This is borne out by her own evidence that she has currently not been able to find a suitable position notwithstanding her recovery. On the other hand, the plaintiff is an experienced nursing sister who has worked both in the private sector and the public sector. I consider that her services are likely to be sought after and the possibility exists that if she did secure employment on a part time basis she might have commanded a higher salary than R5 000,00 per month. Both positive and negative contingencies need to be considered. [26] There was some debate at the Bar as to the correction which I should make to the calculated figure to allow for contingencies. Mr Jooste has urged me to reduce the calculated amount by some 25% to make allowance for what he considered to be a probability that the plaintiff would have remained unemployed for several months seeking employment. Mr Schubart on the other hand suggests that a contingency deduction of 5% be applied. In the exercise of my discretion I am constrained to recognise, as set out earlier, that it is probable that the plaintiff would not have obtained employment immediately as from 1 January I do not, however, consider given her qualifications and experience that she would have remained unemployed for an extended period. The claim is calculated over a very brief period of some 32 months. In the circumstances I think that it would be fair to reduce the amount of R ,00 in respect of the past loss of earnings by 7,5%. I accordingly propose to award an amount of R ,00 in respect of past loss of earnings.

11 11 [27] In the result, I make the following order: The defendant is ordered: 1. To pay to the plaintiff the amount of R ,00 as and for damages. 2. To pay interest on the aforestated award calculated at the legal rate from a date 14 days after judgment to the date of payment. 3. To furnish to the plaintiff an undertaking in terms of section 17(4)(a) of the Road Accident Fund Act, 56 of 1996, to pay the costs of the future accommodation of the plaintiff in a hospital or nursing home, or the treatment of or rendering of a service or supplying of goods to her after the costs have been incurred and upon proof thereof. 4. To pay the plaintiff s costs of the action, including, (i) The qualifying expenses, if any, of Dr Johan Olivier, Ms Ansie van Zyl and Ms Ilonka Wessels; and (ii) the costs of the photographs. 5. To pay interest on the plaintiff s taxed costs calculated at the legal rate from a date fourteen (14) days after the taxation to the date of payment. J W EKSTEEN JUDGE OF THE HIGH COURT

12 12 Appearances: For Plaintiff: Adv L Schubart SC instructed by Goldberg de Villiers Inc, Port Elizabeth For Defendant: Adv P Jooste instructed by Friedman Scheckter, Port Elizabeth