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[2013] ZAGPJHC 302
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Smith v Road Accident Fund (33463/2008) [2013] ZAGPJHC 302 (13 February 2013)
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REPUBLIC OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case No. 33463/2008
In
the matter between:
BRIDGETT
MERLE
SMITH
......................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
.....................................................................
Defendant
JUDGMENT
MEYER, J
[1]
The plaintiff is claiming payment of compensation for damages as a
result of bodily injuries caused by a motor vehicle collision
that
occurred on 6 August 2007 (‘the 2007 collision). The
plaintiff was the left front passenger in a car that was
driven by
her husband. They were stationery in heavy traffic when their
car was hit very hard from behind. The
impact caused the
seat on which the plaintiff was seated to break loose from its
secured position. The efforts of members
of the Fire Brigade
were required to free the plaintiff from the car. An ambulance
took her to the Lenmed Hospital where
she was admitted. She
spent about one and a half weeks in hospital. The issue of
liability has been settled.
The defendant is liable to
compensate the plaintiff for 100% of her agreed or proven damages
caused by the 2007 collision.
[2]
The parties agreed that the defendant is liable to pay to the
plaintiff the sum of R400, 000.00 in respect of her general damages,
the sum of R1, 953.00 in respect of her past medical expenses, and
that the defendant will issue the plaintiff with an undertaking
in
terms of s 17(4)(a) of the
Road Accident Fund Act 56 of 1996
for her
future medical expenses, but the percentage of the defendant’s
liability in terms of the undertaking is in issue.
What remains
to be decided is whether the plaintiff suffered any loss of earnings,
both past and future, and if so, the amount
or amounts thereof.
[3] The following
medico-legal reports, hospital records and clinical notes contained
in the plaintiff’s hospital and medico-legal
reports bundles
(exhibits ‘A.1’ and ‘A.2’) were admitted by
the parities: (a) medico-legal
reports by an occupational
therapist, Ms Kim Kaveberg (exhibit ‘A.1’ item 5), by an
anaesthesiologist/pain management
practitioner, Dr Russell P Raath
(exhibit ‘A.2’ item 1) and by a neurologist, Dr AP
Rossouw (exhibit ‘A.2’
item 2); (b) radiologist
reports by Dr Morris Shapiro dated 28 June 2011, by Dr GM Omar Inc
dated 18 June 2007, 11
July 2007, 14 July 2007, 8 August 2007, 21
April 2008 and 26 April 2008, and by Drs Matisonn Scott and Tobias
Inc dated 30 September
2008 (exhibit ‘A.1’ item 9);
(c) clinical notes by a physiotherapist, Ms Brigitte Alexander
(exhibit ‘A.1’
item 10), by Dr Y Cassim of Lenmed Clinic
(exhibit ‘A.1’ item 11), by an orthopaedic surgeon, Dr E
Ismael (exhibit
‘A.1’ item 15), by Dr Zaid Eshak (exhibit
‘A.2’ item 4), and by Dr A Pillay (exhibit ‘A.2’
item 5); (d) a letter from Ms Tiffany Gordon of the
Psychology Department at Helen Joseph Hospital (exhibit ‘A.1’
item 14); and (e) hospital records from Chris Hani
Baragwanath Hospital (exhibit ‘A.1’ item 12) and
from
Helen Joseph Hospital (Chronic Pain Management Unit (exhibit ‘A.1’
item 13). The medico-legal reports of
an orthopaedic surgeon,
Dr PFB von Bormann, and of an occupational therapist, Ms L Toerien,
which are contained in the defendant’s
medico-legal reports
bundle (exhibit ‘A.3, items 1 and 2) are also admitted by the
parties. The parties further agreed
to the truth of the
contents of the joint minutes of the occupational therapists, Ms Kim
Kaveberg and Ms Leazanne Toerien, and
of the industrial
psychologists, Ms Christa du Toit and Ms Sonet Vos (exhibit ‘B’,
items 2 and 3). During the
course of the trial the parties also
agreed to the production into evidence of three actuarial reports,
one which Ivan Kramer CC
prepared for the plaintiff (exhibit ‘A.2
item 6) and one which it prepared for the defendant (exhibit ‘A.3
item 5)
and another one which Independent Actuaries & Consultants
(Pty) Ltd prepared for the defendant (exhibit ‘A.3’ item
6). The parties agreed to the correctness of the method of the
calculations contained in each actuarial report.
[4] The plaintiff
testified. The plaintiff also called a neurosurgeon, Dr J Earle
(exhibit ‘A.1’ item 4), the
clinical psychologist, Dr J
Watts (exhibit ‘A.1’ item 3), and the industrial
psychologist, Ms C du Toit (exhibit ‘A.2’
item 3) as
witness. The defendant called the orthopaedic surgeon, Dr PFB
von Bormann (exhibit ‘A.3’ item 1) as
its only witness.
[5] The defendant, during
the course of the plaintiff’s case, sought leave by way of a
formal application to discover and
produce documents of a previous
claim which the plaintiff had lodged with the defendant when she had
been injured in a collision
on 6 October 2004. The plaintiff
initially resisted the application, but it was then agreed between
the parties that the
relief should be granted and that the plaintiff
and Dr Earle should be permitted to be recalled as witnesses if the
plaintiff considers
it necessary once the plaintiff’s
industrial psychologist, Ms du Toit, and the defendant’s
orthopaedic surgeon, Dr
von Bormann, had testified. I
accordingly granted an order in terms of prayers 1 and 2 of the
defendant’s notice of
motion dated 11 February 2013. The
costs of the application were reserved. The documents forming
the subject-matter
of that application are contained in the bundle
which was received as exhibit ‘D’. An amendment of
the plaintiff’s
particulars of claim which relates to the
plaintiff’s alleged loss of future earnings or earning capacity
was effected by
agreement between the parties at the commencement of
counsel’s closing arguments.
[6] The plaintiff was
born on 17 February 1972. She passed grade 11 at secondary
school in 1989. The plaintiff has no
other qualifications.
She and her husband, who is a machine operator by profession, have
been separated since some time after
the 2007 collision. They
have three children between the ages of 12 and 21 years. The
plaintiff was employed as a receptionist
from August 1990 until
February 2000. She worked in temporary positions from March to
May 2000. She was employed by
McCarthy Motors and later known
as Sandown Motors from June 2000 until 2006. She started as a
receptionist. She was promoted
to service receptionist in 2004 and to
service advisor in 2005. From 2006 until October 2008 she was
employed as a service
advisor at General Motors. She was
thereafter employed by Toyota, The Glen until January 2011 as
assistant to the manager
in the parts department. She resigned
and was unemployed from February 2011 to November 2011. She was
employed as a
service advisor at Toyota Melrose Arch from December
2011 to May 2012. Her claim for loss of past earnings relates
to the
periods February 2011 until November 2011 and June 2012 until
the date of the trial. The plaintiff’s claim for loss
of
future earnings or total loss of earning capacity relates to the
period as from the date of the trial until her postulated retirement
age of 60 – 65 years in the motor industry.
[7] The plaintiff
testified that she was a passenger in a bus that was involved in an
accident with two motor vehicles on 6 October
2004 in Randburg.
The plaintiff was asleep at the time when the bus and motor vehicles
collided. She testified that
she sustained a whiplash injury to
her neck and an injury to her lower back in the 2004 collision.
The hospital records and
clinical notes show that the plaintiff was
treated conservatively with a cervical collar and pain medication for
her neck injury.
The lower back injury caused the
plaintiff to undergo a lumbar spine fusion at L5/S1 during July 2007,
about three weeks before
the 2007 collision. The plaintiff
testified that she was recovering well from the lumbar spine fusion
surgery. She
walked without aid within two weeks after the
operation and she estimated that she was about 90% pain free during
the week that
preceded the 2007 collision.
[8] The plaintiff
sustained a whiplash type injury to her cervical spine and a lower
back injury that was superimposed on her recovering
lumbar spine
fusion as a result of the 2007 collision. The mechanism of how
the plaintiff’s injuries were caused, is,
in the words of Dr
von Bormann ‘[a] sudden movement of the spine column without
direct impact.’
[9] An MRS scan that was
taken of the plaintiff’s cervical spine on 21 April 2008 shows
a ‘significant disc herniation’
at the C5/C6 level.
The plaintiff subsequently received a cervical fusion. She has,
in the opinion of Dr Earle, made
a good recovery from her neck
surgery. Dr Earle examined the plaintiff on 10 December 2012.
He is of the view that
the 2007 collision had a far more violent
impact on the plaintiff’s cervical spine than the 2004 one.
Dr Earle is of
the view that the disc herniation at the C5/C6 level
had a slow onset of about eight months whereafter the plaintiff
underwent
‘a very necessary operation.’ Dr Earle is
of the view that such condition usually takes time to manifest ‘…but
not more than a year and certainly not four years.’ It is
in the opinion of Dr Earle ‘exceptional and unlikely’
that the plaintiff would have ‘lasted’ four years with
such condition had it been the result of the 2004 collision.
She, in his view, ‘… would not have survived such a
threatening disc for four years.’ Dr Earle is of the
view
that the 2004 collision contributed 30% and the 2007 collision 70% to
the plaintiff’s cervical spine
sequelae
.
[10] Dr von Bormann
examined the plaintiff on 4 July 2007. He is of the view that
the plaintiff’s cervical spine was
‘re-injured’ in
the 2007 collision. In the words of Dr von Bormann ‘[t]here
were damaged goods in the neck
and it suffered disproportionate
damage which would not have taken this severe form if there was a
perfectly well cervical spine.’
Dr von Bormann agreed
that a disc herniation would have caused immediate pain requiring
immediate alleviation. He explained
that herniation of a
vertebral disc means the rupture of the fluid bag – ‘vogsakkie’
– when fluid is squeezed
out and the fluid then constitutes an
irritating mechanism of acute pain. He is of the view that the
fluid bag can weaken
slowly over years until it suddenly ruptures.
He accordingly is of the view that it cannot be said that the disc
herniation
was ‘solely’ as a result of the 2007
collision. Dr von Bormann initially expressed the opinion that
50% of the
sequelae
of the plaintiff’s neck injury are
due to the 2004 collision. He, however, made it clear that such
apportionment is
‘an educated guess’ and that he was
‘uncertain’ as to what the apportionment should be.
Dr von Bormann
was also prepared to accept that 60% of the
sequelae
of the plaintiff’s neck injury should be ascribed to the 2007
collision.
[11] The contributions of
the 2004 and 2007 collisions to the plaintiff’s cervical spine
sequelae are only relevant to the
percentage of the defendant’s
liability for the plaintiff’s future medical treatment under
the undertaking which the
plaintiff offered to furnish to the
plaintiff in terms of
s 17(4)(a)
of the
Road Accident Fund Act 56 of
1996
. I consider it fair and just to both parties to take the
mean between the two opinions, which is that the 2004 collision
contributed 35% and the 2007 collision 65% to the plaintiff’s
cervical spine sequelae.
[12] There are two areas
of injury to the plaintiff’s lumbar spine, a compression
wedging of the L1/T12 and the L5/S1 fusion.
I agree with Dr
Earle’s assumption that the compression wedging of the
plaintiff’s L1 and T12 vertebral bodies with
which she
presented a day after the 2007 collision was probably caused by that
collision, particularly since there was no sign
of it on the x-ray
examination of her lumbar spine that was performed prior to the
2007collision on 18 June 2007. There is
no evidence of any
other trauma to the plaintiff’s lumbar spine between 18 June
2007 and the 2007 collision. Dr von
Bormann also did take issue
with the view of Dr Earle on this aspect. It was by the time of
the 2007 collision in the opinion
of Dr Earle ‘far too early to
expect the bones’ involved in the L5/S1 fusion to unite.
The procedure left the
plaintiff virtually pain free. She could
walk unaided. Dr Earle is of the view that the plaintiff was
doing well and
her outlook was good had it not been for the 2007
collision. Dr Earle is of the view that the 2004 collision
contributed 20% and
the 2007 collision 80% to the plaintiff’s
lumbar spine sequelae.
[13] Dr von Bormann is of
the view that at the time of the 2007 collision the plaintiff had a
healing wound involving her lower
back. The 2007 collision in
his view would have ‘… caused disproportiate damage to
that part of her lower spine’
which she would not have incurred
if she did not have the 2007 collision. Dr von Bormann is of
the view that 50% of the plaintiff’s
lower back pain is
attributable to the lower back injury she sustained in the 2007
collision that was superimposed on her recovering
lumbar spine
fusion. Dr von Bormann, however, also said that all the
evidence points to a considerable deterioration of the
plaintiff’s
condition since he had seen her on 4 July 2011 and by the time when
Dr Earle had seen her on 10 December 2012.
He conceded that the
opinion of Dr Earle was more current than his own and that Dr Earle
was in a better position to express an
opinion pertaining to the
plaintiff’s condition since he had insight into other
medico-legal reports, such as the one from
the pain specialist, which
Dr von Bormann had not seen. I accordingly rather accept the
opinion of Dr Earle and I consider
a 20/80 apportionment of the
plaintiff’s lumbar spine sequelae to the 2004 and 2007
collisions respectively as appropriate
in all the circumstances.
[14] The plaintiff’s
claim for loss of income is based on the contention that the 2007
injury to her lumbar spine and the
physiological and psychological
sequelae
thereof have caused her to be totally unemployable.
The plaintiff testified about her debilitating lower back pain.
At present she uses various forms of medication to give her some
relief, notably 40 mg morphine twice daily. The medical experts
seem to be
ad idem
about the extreme nature of the plaintiff’s
lower back pain.
[15] Dr von Bormann
expects the continuous pain emanating from the plaintiff’s
lower back to be ‘24/7’ and to
increase with movement.
He is of the view that the plaintiff is now suffering from a ‘chronic
pain syndrome’,
that a ‘great deal more treatment can be
expected before bringing about some relief’ and he considers
her ‘chronic
low backache’ as a permanent disability.
Dr von Bormann is, however, of the view that the plaintiff is capable
of working
and that ‘[s]he would be able, orthopaedically, to
meet her job functions.’ He, as I have mentioned,
however,
readily conceded that Dr Earle is in a better position to
express an opinion on the plaintiff’s condition.
[16] Dr Raath is of the
opinion that the plaintiff suffers ‘… from Regional
Sympathetic Dystrophy (RSD) also known
as Chronic Regional Pain
Syndrome (CRPS) due to nerve injury following the injury after her
spine surgery.’ Dr Raath
inter alia
states in his
report: ‘As is typical with these patients the pain
becomes totally debilitating and gradually increases
with time in
spite of various medications and in spite of many surgeries.
This patient reached the point now where she can
no longer care for
herself and her daughter needs to wash her, dress her and shave her
and to help with all her bodily functions
because she is no longer
capable of helping herself. So her quality of life has just
about disappeared as can be seen from
reports from other
professionals – there is no need to repeat that all here.’
Dr Raath notes ‘…
that patients that had received the
spinal cord stimulator system for RSD are often able to live normal
lives and even go back
to work, maybe not their original occupation,
but they can become self-supportive and self-caring as well.’
The plaintiff
testified that she has had this therapy and that its
desired effects are short lived. The plaintiff nevertheless at
present
experiences the debilitating effects of the pain emanating
from her lower back. She cannot walk unaided and she still uses
other forms of medication, including morphine.
[17] Dr Earle is of the
view that the plaintiff’s ‘… back has escalated in
symptomatology beyond all else and
is restricting her in all
activities.’ He is of the view that ‘[t]here is no
way at present that she can do work
of any kind’ and that she
‘can probably barely manage any household work and needs help
at every point.’
He is of the view that the plaintiff is
not ‘… capable of working or of earning and that it is
probably permanent.’
He considers her prognosis for
recovery to be ‘poor’.
[18] Dr Watts is of the
view that there is no evidence that the 2004 collision was
psychologically of any consequence to the plaintiff.
The
plaintiff, in the opinion of Dr Watts, falls within a fragile
personality structure. Dr Watts diagnosed the plaintiff
as
suffering from major clinical depression and she, in the opinion of
Dr Watts, is a possible suicidal risk. When Dr Watts
assessed
the plaintiff on 30 November 2012, she, in the opinion of Dr Watts,
manifested all nine criteria of major clinical depression.
Five
or more of the nine criteria are required for a diagnosis of clinical
depression. Dr Watts explained that there is a
correlation
between pain and depression and the plaintiff’s psychological
condition in her view is predicated on pain.
Dr Watts is of the
view that it is not likely that a person can work when all nine
criteria of major clinical depression are present.
It is, in
the opinion of Dr Watts, highly unlikely that the plaintiff will be
able to function in an office environment and she
is presently not
capable of working. Dr Watts is of the view that the
plaintiff’s depression will lift if her pain
lifts. Dr
Watts is of the view that the plaintiff suffers from a serious and
debilitating psychiatric condition. Recovery
from major
depression ‘… is a long, slow journey’. Her
prognosis in the case of the plaintiff is guarded.
[19] Ms Kaveberg is also
of the opinion ‘… that in her present condition and
level of pain, she would not cope with
the demands of any position in
the open labour market.’ The joint minutes of the
occupational therapists, Ms Kaveberg
and Ms Toerine, also record
their agreement ‘… that considering Mrs Smith’s
physical and emotional presentation
at present she would not be able
to meet the demands of her pre-accident position (service advisor)
and the work she had as parts
administrator and assistant parts
manager thereafter, or any position in the open labour market.
She needs urgent intervention
of an intra-disciplinary team …’.
[20] The opinion of Ms du
Toit which is recorded in the joint minutes of the industrial
psychologists is that ‘[c]onsidering
the bigger picture and Ms
Smith’s age of 40 years, experts’ opinions, prognosis and
the combination of physical constraints,
emotional reactions and poor
prognosis in this regard as well as Dr Raath’s opinion about
the debilitating impact of the
condition, Ms Smith’s chances of
securing work in future are projected as extremely slim and she
probably will remain mainly
unemployed and have little chance of
securing any meaningful income for the rest of her career life.’
[21] I am in all the
circumstances of the view that the plaintiff has suffered a complete
loss of earning capacity since June 2012
as a result of the 2007
collision. Improvement of the plaintiff’s physiological
condition or of her psychological condition
in the future is a
possibility, but I am unable to find any such future improvement to
be a probability. The plaintiff claims
compensation from the
defendant for her past loss of earnings during the period February
2011 until November 2011. Dr Watts
is of the view that there
was a progressive deterioration of the plaintiff’s pain
experience and her mood disorder was getting
increasingly worse.
Dr Watts is of the view that the plaintiff probably did not fulfil
all the criteria for major clinical
depression during the time that
she returned to work after the 2007 collision. It was when Dr
Watts interviewed her in November
2012 that she fulfilled all the
criteria. The plaintiff returned to work after the 2007
collision until January 2011.
She was unemployed for the period
February 2011 until November 2011 when she returned to work again
until May 2012. It has
in my view not been proved on a balance
of probabilities that the plaintiff’s unemployment during this
period was related
to the 2007 collision. The plaintiff’s
primary reason for resigning her employment at the time was to
receive her Provident
Fund payment in order for her to settle debts
and particularly the arrear and outstanding amounts that were owed in
respect of
the house in which she and her children continued to
reside after her husband had left her and had stopped paying his
contributions
to the household.
[22] The industrial
psychologists in terms of their joint minutes agreed that the
plaintiff’s pre-morbid ‘career exposure
was mainly in the
motor retail industry’ and ‘that she could have continued
earning on approximately Paterson level
B5/C1 (basic salary)
depending on work policies and commission earned, with increases
mainly inflation-based.’ They
further agreed ‘on a
retirement age of 60 – 65 years depending on preferences and
circumstances.’ It is
recorded that Ms Vos only had sight
of one of the available nine reports and she ‘…
therefore defers to an updated
opinion’.
[23] Ms du Toit has
undertaken an extensive review of the various medico-legal reports.
I accept her opinion that had it not
been for the 2007 collision the
plaintiff probably would have continued working as a service advisor
or assistant manager - which
positions are regarded by Ms du Toit as
being in the same category – in the motor industry until normal
retirement age between
60 to 65 years of age and that it should be
assumed that her future earnings could have fluctuated between R10,
000.00 to R14,
000.00 per month, which income should be regarded as
the plaintiff’s career ceiling, increasing only with inflation
until
retirement age. The assumptions on which the actuarial
calculation of Mr Ivan Kramer (exhibit A.2 item 6) is founded –
but for the accident the plaintiff’s earnings would have been
R12, 000.00 (the mean) with inflationary increases until retirement
at age 62.5 (the mean) and having regard to the accident her earnings
amount to zero – are in my view appropriate in all
the
circumstances. I am also of the view that a 25% contingency,
which is higher than the norm, should be deducted from the
actuarially calculated amount of the plaintiff’s loss of future
earnings in the sum of R2, 081, 730.00. I consider
an award of
R1, 561, 298.00 for the plaintiff’s future loss of income to be
reasonable and just.
[24]
Counsel for both parties agreed that the plaintiff’s total
claim for loss of past earnings represents a period of 17
months and
that the period February 2011 until November 2011 represents a period
of 9 months thereof. Counsel agreed that
should the plaintiff’s
claim for loss of past earnings in respect of the period February
2011 until November 2011 fail and
in respect of the period June 2012
until the date of trial succeed, that I should make the following
calculation in order to arrive
at the amount of the plaintiff’s
loss of past earnings: the appropriate actuarially
calculated amount of the
plaintiff’s past loss of earnings ÷
17 x 8 = gross amount – R6, 000.00 (a settlement amount that
the plaintiff
received from her then employer) - appropriate
contingency = net amount to be awarded to the plaintiff. I
consider it appropriate
if a 15% contingency, which is higher than
the norm, is deducted from the actuarially calculated amount of the
plaintiff’s
loss of past earnings. An amount of R69,
638.35 should accordingly be awarded to the plaintiff in respect of
her claim for
loss of past earnings.
[25] In the result the
following order is made:
1. The defendant shall
pay to the plaintiff the sum of R2, 032, 889.88 within 14 days of
this order.
2. Payment of the amount
referred to in paragraph 1 of this order shall be made into the
account of Levin van Zyl Attorneys at Nedbank
Branch 146905 with
account no […]
3. The defendant shall
pay interest on the balance of the outstanding amount referred to in
paragraph 1 above at the rate of 15,5%
per annum if the payment is
not made timeously.
4. The defendant shall
provide to the plaintiff an undertaking as envisaged
s 17(4)(a)
of
the
Road Accident Fund Act 56 of 1996
, for the costs of the
plaintiff’s future accommodation in a hospital or nursing home
or medical treatment of the plaintiff
or the rendering of a service
or supplying of goods to her arising out of the injuries sustained by
her in the motor vehicle collision
which occurred on 6 August 2007,
after the costs have been incurred and on proof thereof, provided
that the defendant’s liability
under and in terms of this
undertaking shall be limited to 65% in respect of the plaintiff’s
cervical spine and 80% in respect
of her lumbar spine.
5. The defendant shall
pay the plaintiff’s taxed or agreed party and party costs of
the action, which costs shall include
the qualifying and reservation
fees (if any) of the plaintiff’s expert witnesses Drs Earle,
Enslin, Raath, Rossouw Schepers
and Watts and Ms du Toit, Ms
Kaveberg, Ivan Kramer Inc and BSM Consulting, as well as the costs of
the defendant’s application
dated 11 February 2013.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
31
March 2013
Date
of hearing: 06 – 13 February 2013
Plaintiff’s
counsel: Adv Lubbe
Plaintiff’s
attorneys: Levin Van Zyl Inc, Randburg
Defendants’
counsel: Adv C Snoyman
Defendant’s
attorneys: Kekana Hlatshwayo Radebe Inc, Parktown