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[2014] ZAGPJHC 71
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Janse Van Rensburg v Road Accident Fund (11522/2011) [2014] ZAGPJHC 71 (4 April 2014)
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SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case
No: 11522/2011
Date:
4 April 2014
In
the matter between:
JANSE
VAN RENSBURG,
NICOLE
.......................................................................................
Plaintiff
and
ROAD
ACCIDENT FUND
…..............................................................................................
Defendant
JUDGMENT
FRANCIS
J
Introduction
1.
The plaintiff instituted an action for damages against the defendant
arising from a motor vehicle collision on 7 March 2008 in
the
vicinity of Jubilee and Thomas Pringle Streets, Boksburg South
between motor vehicle D[…] in which she was a passenger
there
and then being driven by a certain E J Botha and motor vehicle M[…]
driven by an unknown person.
2.
The defendant has conceded that it is liable to pay the plaintiff
100% of her proven or agreed damages. The plaintiff is
not
claiming past medical expenses. At the commencement of
the proceedings, the defendant undertook to furnish the
plaintiff
with an undertaking for future medical expenses in terms of
section
17(4)(a)
of the
Road Accident Fund Act 56 of 1996
for the injuries
she had sustained in the motor collision.
The
evidence led
3.
The plaintiff testified and called five witnesses in support of her
claim. They were Dr G Read; Ms J Schoeman; Ms M Pretorius;
Ms S
Venter and Dr Mahomedy. The defendant did not call any witnesses in
this matter.
4.
The plaintiff was born on 9 […]. At the time of the
collision on 7 March 2008, she was 17 years old and was in matric
and
was doing home schooling. She was going to write her matric
examinations in May/June 2008. She was a back seat passenger
when another vehicle collided with the vehicle she was in. She
was immediately rendered unconscious for about 20 minutes.
She
sustained injuries to her head, neck, back, ribs and legs and was
transported by ambulance to hospital where she remained as
a patient
for a week. Two procedures were performed on her under
anaesthetic, namely cleaning and suturing of the wounds
above her eye
and on her leg. She now has a laceration on her forehead.
As a result of the collision, the plaintiff
only wrote two subjects
which she failed on 2008. She was unable to study until she completed
her matric examinations in 2011.
5.
The plaintiff testified that in 2006, she had wanted to become a
hairdresser and beautician and had made enquiries at a number
of
colleges about the requirements and costs for becoming a hairdresser
and beautician. Matric was not needed to become a
hairdresser
but she decided to complete her matric first before enrolling for
it. She had decided that she first wanted to
complete her
matric before she would enrol for the hairdresser and beautician
course. The former did not require a matric
certificate.
However after matriculating in 2011, she did not pursue her dream due
to the nature of her injuries and the
costs of becoming a hairdresser
and beautician. She used to do her family, friends and her own
hair and nails. However since
the collision she has not been able to
do any hairdressing or beautician on herself and her friends. She has
tried to do hairstyling
but there is too much strain on her head and
back and bending forward is very painful. This has upset her that she
cannot pursue
her dreams. If she stands long, her head, back
and neck is painful. She cannot do the normal things that she
used to
do. She feels severe pain in her neck most of the
time. She gets headaches quite often and they are severe. She
gets migraine attacks. The pain in her back is severe and she
gets it five times a week. The pain is brought about
by sitting
and standing long and like when she washes dishes, making up the bed
and doing tasks. She is unable to lift up
heavy things.
It is difficult for her to get in and out of bed. She showers
and it is difficult for her to do her own
hair. Over the
passage of time since the collision the pain has gotten worse.
This has affected her memory and she
forgets things which she
normally would have remembered. Before the accident, she used
to go to the gymn, and took part in
athletics and hockey but cannot
do so now. The injuries have had an impact on her social life.
Before the accident
she was a social butterfly but now does not go
out and would only do so once in a blue moon. She is scared to
travel in a
car and is scared of drunk people on the roads. She
cannot socialise with a group of people and feels conscious of her
scars.
She has to cover them with makeup. She acquired a
driver’s licence after the accident and drives. She is a
nervous
driver and prefers to drive then sitting as a passenger.
She gets panic attacks and screams and shouts if she is a passenger.
6.
The plaintiff was before the collision employed as a waitress at
Barney’s Pub and Grill (Barney’s) on a part-time
basis
and was earning approximately R15 000.00 per month made up of
salary and tips. She worked weekends and some days
during the
week. She was earning R200 per shifts and worked four days a
week and four weeks a month. Sometime after
the accident, she
returned to work at Barney’s where as a result of her injuries
she was not able to perform the duties that
she did before the
accident. Her employer allowed her to continue in employment
but on reduced duties. She was no longer
required to serve
tables and she could not carry food trays. She worked mainly in the
bar but could not cope physically and resigned.
Barney’s
closed down a few months later. During the period October 2011
to August 2012 she was employed at First National
Bank (FNB) as a
foreign rates specialist in terms of two contracts, the first of
which was for four months and the second for six
months. Her
contract with FNB was not renewed after the second contract period
due to her high level of absenteeism following
on the injuries
sustained in the collision. Since then she has failed to secure
employment.
7.
The plaintiff said that since the collision and in addition to the
initial treatment whilst hospitalised immediately after the
collision, she has received treatment inclusive of a number of
rhizotomies and one lumbar infiltration. The rhizotomy
procedures
have been repeated every six months. Needles would
be put into her spine and fluids would be injected to deal with the
pain
and to numb it. She went for lumber punctures and for
rhizotomies which is a radio pulse frequency treatment. She had one
lumber puncture after she had a migraine and panic attack and it had
no impact on the migraine headaches. Before the accident,
she
had no problem with her neck and back or had severe headaches.
She is currently not on any medication.
8.
The plaintiff said that the injuries have impacted on her
relationship with her family in that she is now short tempered and
bad tempered, does not have a lot of patience and is irritated by
people quickly. She does not want people around her and
she can
cause a fight. There has been a marked impact on her social
life to the extent that she no longer wants to go out
or see friends
and has lost most of her friends. She does not speak to her friends
anymore. She had many friends before the accident.
She is
unable to take part in sporting activities as she did prior to the
collision. Her general life has been detrimentally
affected.
She is limited and is restricted both physically and mentally and is
unable to wash a bath, make up a bed, wash
dishes etc. She is
in constant pain and experiences migraine headaches approximately 5
times a week. She said that
in 2007 she experienced an episode
of depression which was linked to her having to inform her parents
about her sexual preference.
She was hospitalised and put on
medication but was went into remission in August or September
2007. She was still in remission
at the time of the collision
and was no longer on medication. She knows Susan Venter since
December 2007 who is her lover
and they live together. She
fights a lot with her.
9.
During cross examination the plaintiff did not deviate materially
from her
evidence in chief. It is
not necessary to repeat her evidence in any great detail. She
said that in 2006 she worked
at a business doing decorations for
events in 2006. At Barneys she made R15 000.00 and was 17
years old. She worked
part time doing night shifts and studied
during the day. She was hospitalised in June/July or September 2007
for five days.
What had led to her depression was that she had
struggled to tell her parents that she was involved in a same sex
relationship.
After she had told her father, he was sad for a
week but he eventually accepted it. There were also problems in
her same
sex relationship that also contributed towards her
depression. She agreed that she went for some treatment for her
injuries
and that whilst she was in hospital she did physiotherapy
which was very painful. She had decided not to return to
hospital
for it and has since 2008 not attended physiotherapy.
It was put to her that she had not given it a chance but said that it
was very painful and they could not touch her at all. She told the
physiotherapist that it was painful and did not go back to
physiotherapy but went for other treatment under anaesthetics and did
not feel pain. If the physiotherapy worked, she will
go for
it. It caused more pain which was severe and she could not
handle it. Her pain threshold is very high. She would
get pain
five days a week. When she stands or sits, her neck is in pain.
If she washes the bathroom and do light activities
the pain
increases. It was put to her that if she went back to Barney’s
and worked nothing stopped her from become a hairdresser.
She
said that at Barney’s she was assisted and as a hairdresser she
could get an assistant. She tried to cope but could
not. She is
now 23 years and her pain has not gotten better but worse. She
said that she went for therapy but not for physiotherapy.
The
physiotherapy was the massaging of her back, neck and shoulder and
with ointment and with a machine.
10.
The first witness called by the plaintiff was Dr Read, an orthopaedic
surgeon. He confirmed that he prepared a report
that is at B67
- 78 and that he stands by it. He said that he examined the
plaintiff on 29 August 2012 and has set out her
present condition and
complaints at B68 of his report. She complained of ongoing
pain, stiffness and paraspinal muscle spasm
in the mid and lower
cervical spine area. Associated with the neck pain, she has
frequent and severe headaches. The
pain is aggravated by mild
activity especially when she was sitting for a prolonged period of
time and working on the computer.
She has no radicular symptoms
in either of the upper limbs. She complains of ongoing pain,
stiffness and paraspinal muscle
spasm over the lower lumbar
vertebrae. The pain is aggravated by activity which causes
repeated flexing and straightening
of the lumbar spine. She
occasionally experienced ‘pins and needles’ in both lower
limbs. She also complained
of pain over the anterior aspect of
the right knee, stiffness and limitation of movement. The
plaintiff has symptoms suggestive
of post traumatic chondromalacia in
the knee with no evidence of instability. Her mobility is
somewhat restricted.
She cannot kneel down, as well as having
difficulty when crouching. On examining her
he
noted that she was generally well. She has a 6 cm healed scar
above the right eyebrow which was related to the accident.
This
has healed with some residual, unsightly scarring. He examined
her head and neck and noted that her cranial nerves were
intact.
On inspection there was some loss of the normal cervical lordosis.
The head was held forward of the normal
centre of gravity. It
was uncomfortable and caused discomfort. The plaintiff was not
malingering and could not fain
her entire symptoms. She cannot
fain muscular spasm and the cervical spine was slightly reduced.
On inspection of the
lumbar spine, she was noted to have a normal
lumbar lordosis. She had no difficulty dressing and undressing,
or getting on
an off the examination couch. On palpation of the
lumbar spine, she was tender over the L4/5 and
S1
region. She
has associated paraspinal muscle tenderness bilaterally. When
he pushed her in that region, it caused discomfort.
She has a
good range of movement of the lumbar spine with discomfort at the
extreme ranges of all movements. She can flex
to within 5cm
from the ground. Her straight leg raising is to 70 degrees on
the right with discomfort and normal 89 degrees
on the left. On
the neurological testing of the lower limbs she was noted to
have normal sensation over all the dermatomes
of both lower limbs.
The knee, hamstring, and ankle reflexes were tested. They are
present in both lower limbs.
The plantar reflex is present in
both lower limbs. This was consistent with the finding of the
lumbar spine. On examination
of the knees, there was
effusion/swelling and on the left it was normal. He said that
the plaintiff is young and can twist
normally. He said that the
McMurray on the right knee causes discomfort and the only difference
was between the left and
right knee. There was an obvious bony
abnormality of the tibiae or fibulae. It appeared to be in a
good position and
alignment. There is an area of numbness
measuring 5 x 4 cm over the anteo medial aspect of the right tibia,
probably due
to a deep laceration over that area and it was stitched
up.
11.
Dr Read testified further about the final diagnosis of the
plaintiff. He said that she sustained the following orthopaedic
injuries namely a cervical spine soft tissue injury. He took
x-rays of the cervical spine note disc space narrowing localised
to
the C4/5 level. This type of an appearance is a norm of people
over 40/50/60 years. The disc has a space narrowing
not
expected of the plaintiff. She has a lumbar spine soft tissue
injury and x-rays were taken of the lumbar spine which
was noted to
be normal. She had a right knee soft tissue injury and it
showed normal on the x-ray. She has soft tissue
injury to the
neck and the disc narrower was a secondary effect. Physiotherapy
cannot cure any condition ever. It makes it
easier for a
patient to heal what it can heal and it has no curative effect.
The patients go to a physiotherapy for help
to get better quickly.
All that it can do is to teach a person how best to use what the
person has. Nothing can cure the
space narrowing. They
may do fusion which has side effects. The lumbar spine soft
tissue indicates that the bony outline
is normal. The lumbar
spine is a whole skeleton with the old boat wooden structure with top
of ropes. Ligaments do
not heal well. The bone
heals well to what it was before. The soft
tissue does not ligament and the disc goes. Her bone was normal
and it does
not say anything about soft tissue injury. The
right knee soft tissue injury is more or less similar to what he had
testified
about. However x-rays of the cervical spine showed
disc space narrowing localised to C4/5 level. This was an
unusual
x-ray finding in a 22 year old person and it therefore
suggested that it directly related to the accident in question.
He
said that soft tissue injuries to the axial skeleton can
take up to two years to settle and the plaintiff
belongs to the second group of patients. After two years, she will
have symptoms
emanating from the axial skeleton and those symptoms
are likely to be a chronic, and on going nature and will require
conservative
and/or surgical treatment. He said for the back or
neck they have to wait two years to see her as she had the potential
to
get better. He said that his opponent Dr Kumbirai said the
timeframe was between one and two years. He placed the
plaintiff’s
pain at the intrusive discomfort level and said
that she will not get better. Her plateau is one to two years
and he and
Dr Kumbirai agreed that she will have it forever.
It was not his experience that a young person will lie to him and
said that it does not happen. Rhizotomy is to do a division by
injection or surgical on the nerve producing pain. If
she has a
painful nerve the pain is in the brain and it goes from the knee to
the brain. The brain tells a person what to
do. If they
cut the nerve, it cuts the information and does not deal with the
pain. It cannot cure anything and it
cuts the nerves and is a
pain controller. If you cut the nerve you get relief for some
time. Other nerves are developed
and they can give her an
injection to permanently destroy the nerve. She will get pain
around the other nerves. He
said that pain is protecting.
Rhizotomy is only done by a neurosurgeon.
12.
Dr Read testified that he stands by the contents of pages B76 and B77
of his report. The nature of the work of the plaintiff
when she
was at FNB was 95% sedentary in nature sitting in an office working
on a computer. She coped with her work although
she experienced
some discomfort when sitting or standing for any long period of
time. When sitting at the computer for more
than an hour, she
experienced pain in the neck and back. She had to get up at
frequent intervals in order to stretch the
axial skeleton. In
so doing, she would lose about one hour of productive work in a day.
This equated to a 10% loss
of productivity. He said that the
plaintiff cannot become a hairdresser and beautician. The job
of a hairdresser involves
standing and he does not what is involved
with a beautician. As a hairdresser, she puts her head in
different positions.
She must stand up and the best job is to
move around and it puts stress on the back and knee. He did not
know that she wanted
to become a hairdresser and beautician.
Hairdressing is not good for her and she will not be able to cope.
Her neck
and knee cannot improve. If she had had received the
treatment as recommended in his report, her symptoms would improve.
She will be able to return to an occupation similar to what she was
doing prior to the accident with less disability.
Should
she find suitable occupation in the future, she will require eight to
six weeks to attend to her treatment. Orthopaedic
injuries
sustained in the accident should not preclude her from working until
normal retirement age. The plaintiff has a
one to two year
window period. He said that she must work her life around and
she is not a cripple. She must live her
life with what she is
able to do. She must do a job that is less stressful and that
is sedentary and not sit before a computer.
He confirmed that he and
Dr Kumbirai compiled a joint minute that is bundle F.
They
did not disagree about her. He saw the plaintiff in August 2012
and Dr Kumbirai saw her in September 2013. He said
that the
picture that Dr Kumbirai paints about the plaintiff is much worse
than the picture that he
paints.
She got worse from August 2012 to 2013. He said that Dr
Kumbirai talks of surgery and he scored her with a RAC
narrative.
He believes that in the long term she will be serious. She got
worse then what she was last year.
She did sedentary work as a
foreign note specialist and there is no prospect of her condition
improving to work as a hairdresser
and beautician.
13.
Ms Janine Schoeman, the plaintiff’s second witness testified
that she is an occupational therapist. She assessed
the
plaintiff on two occasions namely on 21 August 2012 and 3 October
2013 and prepared two reports to be found at bundle B36 to
66 and
B234 to 266. She confirmed the contents and
correctness
of both reports. In the first report, she said that she did not
canvass the aspects of hairdressing and beautician
because the
plaintiff did not tell her about it at that time. She dealt
with that in the second report. In the first
report she
commented on the aspects of the administration type job at FNB after
she had left it. In the first report, the
plaintiff complained
about her neck and back. The work place is in a seated
position. There is kneeling and standing and
there was lower back
discomfort. If she was standing she would complain of pain.
If the plaintiff told her at
the first assessment that
she wanted to be a hairdresser or beautician, she would not have
advised her to do it. During the
second assessment, she noticed
changes in her. She did a battery of tests on the plaintiff who
performed worst.
Her neck pain was worse. She
first complained of back pains and the toleration had decreased.
Her ability to meet demands
were less. There was a
deterioration in her performance. Since the tests results on
both occasions were consistent,
she ruled out the possibility of the
plaintiff malingering or exaggerating the
sequelae
of pain and suffering. The
plaintiff cried in two of the tasks she had to do noting pain in her
back. She has looked
at Dr Read and Kumbirai’s reports as
well as the defendant’s occupational therapist report –
Dalene van Wyk and
there was nothing inconsistent with her findings.
There is a limitation on the functions involving her lower back and
neck.
In her view, the plaintiff could not become either a
hairdresser or beautician and her employment was limited to sedentary
work
of a light nature where she is not required to either sit or
stand for lengthy periods at a time. They agreed in their joint
minute that the plaintiff can do sedentary and light physical work,
although she has limitations in positional tolerance, particularly
prolonged sitting, standing, working in elevated plains and forward
flexed positions. They reached the same conclusion although
they had used different tests. They agreed that she should be able to
perform work in a sedentary position although with some reduced
productivity noting the need for increased comfort breaks required to
relieve discomfort associated with prolonged static positioning.
They agreed that at present the plaintiff remains physically, best
suited to work that can be classified as light physical load,
where
prolonged standing or sitting work should include the opportunity for
changes in position or comfort breaks. They agreed
that she
should avoid any work with weight handling exceeding a light load and
any frequent work in elevated plains and forward
flexion, as this
seemed to exacerbate pain in her neck and lower back significantly.
They agreed that the plaintiff’s
hopes to become a hairdresser
and beautician have effectively been compromised by discomfort in her
neck and lower back noting
the frequent work in elevated planes and
forward flexion involved in such work. She said that it is
difficult to classify
what hairdressing and beautician work is.
She can pursue another career.
14.
The plaintiff’s third witness was Mariana Pretorius a qualified
industrial psychologist. She assessed the plaintiff on
two occasions
namely on 25 September 2012 and 24 October 2013 and she prepared the
two reports in bundle B79 to 98 and B281 to
286. The
plaintiff’s complaints are migraines accompanied by nausea and
blackouts; frequent neck pain; continuous
upper and lower back pain;
insomnia; depression; irritation; inability to lift heavy objects;
self consciousness about the cut
in her face; her social life has
changed; feelings of listlessness, low motivation and low energy;
feelings of worthlessness; suicidal
attempts; getting terrible
nightmares for about a year after the accident, but no more; poor
concentration and memory, she is nervous
and even anxious passenger
driver; and she always wanted to build up a motor vehicle as a hobby
but does not anymore. The
plaintiff always wanted to become a
hairdresser and beautician. A matric certificate is not needed
for a hairdressing course
but for a beautician course. A grade 8 is
required for a hairdressing course. The renumeration for a
hairdresser and beautician
course is different. The plaintiff
will not be able to become an owner and manager of a salon. She
needs experience
in the field. If her father buys her a salon,
she will have to employ people to manage it and she can eventually
manage it.
She needs psychotherapy for her depression and she
is not emotionally competent to manage a salon. In her opinion
from the
joint minutes, there is no room for physical improvement.
She will have pain in the upper limbs and she will not be able to
do
it and become a manager. If she is the owner, she may employ
the people that she wants. Many owners work on their
own and
work alone with assistants. If she can do hairdressing and
beautician and is the owner, she can do it alone.
She can
physically do the job if she is the owner. The plaintiff is sad
that she lost all those years and could not pursue
her career
aspirations. She said that the complaints that the plaintiff
has appear at B87. She had an appointment with
the plaintiff
who stills has migraines and depression and she was in a lighter
mood. She still has insomnia and pain if she
lifts up heavy
objects. She has pain if she stands and walks around.
15.
Pretorius testified that the plaintiff could not stand for long and
realised that she would also not be able to handle the requirements
set for a hairdresser. The plaintiff’s job at FNB
entailed administrative tasks, such as filing. She experienced
back pain when lifting and carrying heavy boxes of files. She
was also responsible for electronic transactions. She
was
seated behind a desk most of the time. Sitting for long periods
exacerbated the pain in her lower back and neck.
She did not
really like that job but was thankful for the income. The
plaintiff had the career ambition to become a hairdresser
but at that
stage she was demotivated because she believed that she would not be
able to cope with the demands of standing for
long hours. The
after effects of the accident caused her a major depressive disorder
and post traumatic stress disorder and
caused her to lose momentum in
her studies for grade 12. She has however despite the fact that she
was still struggling with those
emotional and psychological after
effects, completed grade 12 while working at FNB. Her temporary
contract with FNB was not
renewed due to the after effects of the
accident. She needs to decide on another possible career
field. She has already
lost a number of years and is currently
at a loss about how to pursue her preferred career. She will
find it difficult to
find a job to ensure an income during the 12
months of psychotherapy and the period undergoing conservative
treatment to her back
and neck, as she will have to take time off
work. This will require a sympathetic employer.
Sympathetic employers are
hard to come by when the skills the
employees bring to the company are not rare or in high demand.
16.
Pretorius testified about the pre and post morbid scenarios. She said
that with the pre morbid scenario there are two scenarios.
In
the first scenario the plaintiff would have completed grade 12 in
2008. She would have pursued training as hairdresser
and
started to work in a salon after having completed her course
and would have earned on level B3 of the Paterson’s
scale.
She
would have proceeded with her career
and would have retired when she turned 65 years on C1/C2 level.
The beauty industry depends
on where the person works. It is a
general kind of extending. The owner income may differ.
In the second scenario
the plaintiff would have completed grade 12 in
2008 and would have pursued training as a hairdresser. She would have
started to
work in a salon after having completed her course and
would have earned on level B3 of the Patterson scale. She would
have
proceed with her career and become a manager of a salon.
She would have retired at the age of 65 on a level higher than C1/C2
probably at level C3/C4. She said that with scenario two it
means that the plaintiff would have pursued training as a hairdresser
and would have qualified and obtained a certificate. It takes
15 years for a hairdresser to become a manager after qualification
if
she worked herself up in a salon. A person is appointed as a
manager if they have experience and management skills.
She
believed that both scenarios were possible. She said that based
on the plaintiff’s perseverance she has shown by
independently,
making progress with her schooling at a young age of 12/13 indicates
that she could have made scenario two a reality.
Scenario 2 is
the more likely of the two scenarios.
17.
Pretorius testified about the post morbid scenario. She said
that with the first scenario, the plaintiff would have completed
grade 12 in 2011. Her contract with FNB was not renewed in
February 2012 and by October 2012 she was still unemployed. She
would
start with the treatment prescribed by the different medical
experts. Because of the time that it takes to visit the
different medical practitioners for the treatment, she does not find
work in 2013. By the end of 2013, she is fortunate to
find
admin work which is light enough for her to do comfortably. She
earns on level A3 of the Patterson’s scale.
She would
have retired at age of 65 on a B3/B4 level. She said that
according to Goch, somebody in the informal sector with
a grade 12
earns less. In the formal sector i.e. the corporate sector, the
person can go to level B3 which is higher than
in the informal
sector. In the informal sector, it is lower than A1. She said
that in the second scenario, the plaintiff
would complete grade 12 in
2011. Her contract with FNB is not renewed in February 2012.
By October 212 she is still
unemployed. She starts with the
treatment prescribed by the different medical practitioners for the
treatment and does not
find work in 2013. Because of the fact
that she only has a grade 12 qualification and has to be selective
regarding the nature
of the job, she accepts light work and struggles
for more than three years to find work. By the end of 2016, she
is fortunate
to find admin work which is light enough for her to do
comfortably. She earns on level A3 of Paterson’s scale.
She
works in this admin field and at the age of 65 retires on a B3/B4
level. The second scenario is the more likely scenario of
the
two. Work is scarce for matriculants and for people who must go
for treatment due to injuries. It was
more
likely that she would have become a manger due to her passion,
perseverance, and intention to further her career.
18.
Pretorius said that she was of the opinion that the plaintiff would,
with the necessary conditions described by the orthopaedic
surgeon
and psychiatrist, probably have been able to have worked productively
until the retirement age of 65. She would however
not have been
able to achieve her ambitions of following the career of hairdresser
or beautician. She will have to complete
her psychotherapy and
only after 12 months start with another career. In the
meantime, she would very likely not find work.
With no tertiary
education, she will have to compete for a job in the job market with
other people with only a grade 12 qualification.
In this case,
she would likely have struggled for three to five years to find a job
and retired on Paterson level B3/B4. Pretorius
did a
second report. She said that the complaints were still the same and
her mood was not as low as it was previously. She
concluded by
saying that if the accident did not take place, the plaintiff would
have been able to pass the training as hairdresser
or of beautician
and would emotionally have been able to handle the
demands of both those jobs, despite the pre-accident
symptoms of
depression. She may even have owned her own salon, working as
sole proprietor with no hairdressers employed.
Due to the
accident and its aftermath, she would physically not have been able
to handle the demands of the jobs of either hairdresser
or
beautician. She said that exhibit D is the joint minutes that
she and Kgosana signed off and she stands by it. They
agreed
that the job as a hairdresser requires standing for long periods
which the
plaintiff will not be able to
do. Although the job as a beautician does not require the same
amount of standing, it will also
be very strenuous for her to cope
with and they are of the opinion that she will also not be able to
cope with the demands of the
job of beautician, before her symptoms
have not
improved. Her symptoms are
permanent. They agreed that she is emotionally not ready to
manage a salon, but may after completion
of psychotherapy and after
necessary management training be able to cope with the demands of a
management position. It is
financially better to have an owner
salon and not manage it. The plaintiff can act as a beautician
and hairdresser as an
owner. It depends on the size and place
where the salon will be. They believe that the plaintiff
currently has a relative
disadvantage when competing with peers and
would also have a slight disadvantage when competing with peers after
completion of
her treatment. The plaintiff will have to be
selective about where she applies for positions but it will be
difficult to
find work. She does not know if the plaintiff is
disabled. What happens in the industry is that people with
disabilities
or cannot hear properly can be productive. If they
are physically not productive, they do not get employed. The
unemployment
rate is 26% and the rate is higher for people with
disabilities. They agreed that the plaintiff will remain
dependant on
a somewhat sympathetic accommodation for as long as her
symptoms persist. FNB was not a sympathetic employer and if
they
were, she would not have lost her job. Her father had
played a role in her obtaining the job.
19.
During cross examination Pretorius said that the plaintiff had a
passion and
would have pursued it in an
ideal world. Given her age, she could be a candidate for
retraining. She has the potential
to become a manager with in
service training or if she studied for a diploma or degree. The
plaintiff is compromised but
is not disabled. She can do
sedentary work and management is a sedentary work. She
possesses probable challenges to
manage a salon and she would lose
her childhood dream. A person cannot study management and step
into the position but must
work themselves up. She agreed that
the plaintiff needed career counselling and she would benefit from
career counselling.
With a matric certificate there are thousands
alternatives. She must alternate her position and do something
else but only
if she can find such a job. She agreed that there
is ample room for retraining. The plaintiff can identify
another
career and work herself up. The plaintiff had worked
for two contracts at FNB. She said that everything was possible
including another scenario but it must be taken into account that she
is not psychologically strong but has completed her matric
and there
are many things working against her. She must go for career
counselling and work herself up. It is harder
for her and she
must be more selective. She can be anything that she wants to
be. Anything was possible with retraining
but there are limits
on what was possible in relation to her and what was possible or not
probable. She said that she is
standing by what is in her
report about what is probable or recorded in the scenario.
20.
The plaintiff’s fourth witness was Susana Venter. She is
in a same sex relationship with the plaintiff and knows
her since 1
December 2007. She said
that before
the accident, the plaintiff used to be fun to be around with.
She used to make jokes and enjoyed going out with
friends and
family. She used to talk about what her plans were for the
future and what she wanted to
accomplish.
She is now quite different to what she was. She loved doing
hair, nails, makeups and beauty and had looked
at the courses to
study further in hair dressing and beauty. She had made plans
with her father to purchase a salon. She
played doll with her hair
and did her makeup and nails. Her family telephoned her to cut
and do their hair and nails. After
the accident she had
difficulty to do certain tasks. Her back and arms affected
her. She finds it difficult to lift
up her hands for about ten
to 15 minutes to do blow drying. She has a problem with her
knee and cannot stand for long.
She still tries to do their
hair but it is challenging. Before the accident she was
outgoing and due to the scars on her
face, she is withdrawn because
of her appearance. She took the plaintiff to most of the doctors for
treatment. She has received
numerous treatment and Rhizotomy
and lumber puncturing. Her different medication was changed to
try and assist her with the
pain and migraines as well. She
said that when the plaintiff sits she finds it difficult to stand
up. If she stands,
she finds it difficult to sit. She can
clean baths. If she bends over she cannot stand up and needs to
be helped and
must take medication. The plaintiff prefers to drive
and not be a passenger. She does not travel a long distance due
to having
to sit and it is painful in her lower back and is scared
when other people are driving. When the plaintiff sits as a
passenger,
the driver must drive between 30 to 40 km an hour and if
the driver drives faster she would scream at the driver and tell him
or
her to drive slowly. If a car turns in front of the car she
is in, it freaks her out. They cannot go out on joy trips.
Before the accident they used to go out regularly but now it is a
miracle if they went out for more than two hours due to her pain.
Her fear of driving out at night is much worse than driving during
the day. She used to be patient and calm but it now different
to live
under one roof. She gets angry and cries for no reason.
The emotional trauma has had an impact on her life
and she had mental
and physical challenges. It is now five and a half year since
the
accident
and the pain and physical problems with the body has increased.
She has deteriorated. She used to wash the
bath but cannot do
dishes, make up the bed or wash. It got worse since the
accident with all her treatment which does not
always work.
21.
During cross examination nothing in her evidence was put in issue.
22.
The plaintiff’s fifth witness was Dr Subeida Mahomedy. She
is a specialist psychologist in private practice and
consulted the
plaintiff on 7 August 2012. Her report is at bundle B25 to 35
which she confirmed as correct. The plaintiff
who was in matric
in 2008 at the time of the collision could only complete it in June
2011 since as a result of the collision,
she had difficulty to study,
concentrate and had anxiety and black outs. She had always wanted to
become a hairdresser but this
was not possible due to the accident.
She suffered from a major depression and post traumatic stress
disorder. Both
leads to difficulty in concentrating and affects
the memory and cognitive functioning. Whilst the plaintiff was
employed
at FNB, she was constantly
hindered
by her physical problems. She was in pain frequently and had to
always ask her colleagues for help especially in
picking up heavy
objects. She had a psychiatric history before the accident
which was treated adequately and was symptom
free and in remission
when the accident happened. When she
assessed
the, plaintiff there were no signs of on going depression. The
plaintiff told her that she was socially active and enjoyed
full life and was studying. She has recurrent headaches, neck
and back pain, depressed mood, poor concentration, memory
disturbances, social withdrawal, anxiety, no motivation and no drive,
feelings of worthlessness and suicidal ideation. The depressed
mood is related to the injuries sustained and to the physical
sequelae
thereof. She was unable to follow her previous lifestyle and
her level of activity decreased due to her ongoing pain.
As a
result, her weight increased significantly. She weighed 100kg
at the time of the accident and her weight ballooned to
140kg in the
months thereafter. She has been following a strict
dietary programme recently and the weight has
decreased to 115kg. Her general practitioner has commenced her
on various antidepressants
but nothing has helped. Her most
recent medication was paroxetine and urbanol and she stopped this two
weeks prior to their
consultation with her due to it being
ineffective. She has not been referred to a psychiatrist in the
last four years.
The plaintiff’s complaints are related
to her current depressive and post traumatic stress disorder.
The poor concentration,
memory disturbance and poor memory are
symptoms of a major depressive disorder. The rest of her
complaints relate to her
getting anxious into a car and this is post
traumatic disorder and her getting out of the car is a sign of
avoidance. Since
the
accident, the
plaintiff has experienced a depressed mood, insomnia, tiredness and
lack of energy, poor concentration, memory
impairment, social
withdrawal, poor motivation and drive, suicidal ideation, avoidance
of the precipitating stimuli and panic attacks
and anxiety when in a
car. These symptoms relate to both depression orders.
23.
Dr Mahomedy explained the difference between major depression and
post-traumatic stress disorder and said that there are nine
causes
and four symptoms for it. The first is a depressed mood
for two weeks which the plaintiff has had for long time.
The
rest is insomnia, hypersomnia, guilt feelings and decreased
concentration. The plaintiff has had more than the four
symptoms. Post traumatic stress disorder is when a person has
experienced a traumatic event which was life threatening on
that
person or another’s life. She will have observed or
witnessed the event and will have dreams, flashbacks, nightmares
and
be anxious when exposed to it. There will be avoidance, hyper arousal
and irritable mood. She was exposed to a traumatic
event when
her life and that of her friends’ lives were threatened.
The event 2008 event was not a trigger effect for
major depression.
The pain discomfort or medication plays a role in her condition.
The chronic pain leads to massive
depression. The pain
medication starts a vicious cycle and leads to a depressive mood.
The plaintiff must commence
with antidepressant therapy and be
monitored by a psychiatrist and since this is the second episode of
depression, she envisages
that the treatment will be lifelong.
She must also receive psychotherapy to assist her in dealing with the
motor vehicle
accident,
her injuries and
her subsequent inability to function optimally; the anxiety related
to the post-traumatic stress disorder and coping
strategies for the
depressive disorder. The psychotherapy should be at least for a
12 month period but the treatment that
she will get is life long.
The chances of a
recurrent depression is
much higher and the post traumatic stress is for a long time.
There is a prospect of full recovery
but since there is recurrency
she will
have to go for intensive therapy
and will need the treatment for a long period of at least 2 to 5
years. The medical treatment
is lifelong to prevent her from
getting a recurrency of the two episodes of depression and the
chances increase. She will
have poor concentration, poor memory
and the decision making and ability to plan at work will be
affected. The medication
will help. The treatment that
she received was not adequate and the accident had affected her
social life. She is in
a dark space and the motivation and
drive is not there.
If
she does not go for treatment, she will get another depression
episode. She must get the correct medication.
24.
During cross examination Mahomedy confirmed that post-accident
depression experienced by the plaintiff is not a carry over of
the
depression that commenced with the 2007 episode. She explained
the detrimental effects that depression has in the workplace,
how
same is amplified by pain and discomfort. She said that the
plaintiff will require intensive treatment and counselling
over a 3
to 5 year period and thereafter lifelong. There is a high risk
of further episodes of depression, the percentage
risk of further
episodes occurring increasing with each episode. There is
nothing untoward in the plaintiff not being able
to write her matric
exams during the period 2008 and 2011 when she did so. She meets the
criteria for a major depressive disorder
as well as a post-traumatic
stress disorder, which conditions impact severely on one’s
social life and working ability.
The two disorder affect one in
the workplace negatively in that as a result of the person’s
memory, reasoning, ability to
resolve problems, etc. are affected.
The
issues for determination
25.
This court is required to determine:
25.1 whether the plaintiff has
suffered any past or future loss of earnings and if so the amount
thereof; and
25.2
the amount to be awarded in respect of general damages.
Analysis
of the evidence and arguments raised
26.
The defendant did not call any witnesses in this matter. It was
contended on its behalf that the evidence showed that
the plaintiff
could still become a salon manager after receiving the relevant
psychiatric treatment and with the relevant training
although she
would be disadvantaged by lack of background as a hairdresser.
It was further contended that the plaintiff was
malingering and that
she does not have a have a direct loss of earnings as this can and
should be mitigated.
27.
The plaintiff was seventeen years old and was in matric when she was
involved in a motor collision on 7 March 2008. She
sustained a
head injury; a
soft-tissue injury of the
neck of a whiplash type; a soft-tissue injury of the
lower
back; bruises and abrasions of the body; laceration of the forehead;
an injury to the right wrist and an injury to the right
knee.
She was hospitalised for a week and was discharged. She was at
the time doing home schooling and worked on a
part time basis at
Barney’s earning R15 000.00 a month which included tips.
Before the accident she had suffered
from depression that was brought
about by the uncertainty about telling her parents that she was
involved in a same sex relationship
and the problems that she had in
that same sex relationship. She was hospitalised for five days
and was on medication.
However at the time of the accident, she
was symptom free and was in remission. Her ambition was to become a
hairdresser and beautician.
She had made enquiries in 2006 at
various colleges to find out what the requirements were for becoming
a hairdresser and beautician.
For a hairdressing course, matric
was not a requirement but she decided to complete her matric.
Before the accident, she
used to do her own hair, that of her friends
and relatives. She also did their nails. She returned to
Barney’s
a month after the accident but could not do what she
used to do as a result of the injuries she had sustained. Her
duties
were revised and she was assisted when she did her duties.
However as a result of the severe pain that she had endured, she
resigned from Barney’s. Due to the accident she only
wrote two subjects for her matric in 2008 which she failed.
She
wrote and passed her matric examinations in 2011.
28.
In 2011 and 2012, the plaintiff with her father’s assistance
secured
employment at FNB as a forex
specialist. She was employed for two contracts and after the second
contract had come to an end in
2012, it was not renewed. This
was because she had exceeded her sick leave and had taken time off
due to the pain that she
endured. The type of work that she did
at FNB was sedentary in nature. She has since then not been
able to secure any
employment. Before the accident she was a
social butterfly and loved to go out. She was a pleasure to be
around with
and had many friends. She took part in sporting
activities but could no longer do so. She had become irritable,
withdrawn
and depressed due to the scar on her face and the fact that
she was suffering from a lot of pain. She does not like to
travel
and if she does, she wants to be the driver and travels
extremely slowly and would freak out if another driver was to cut in
front
of her.
29.
It is common cause amongst all the experts who examined the plaintiff
including the defendant’s own experts that the plaintiff
is no
longer able to pursue her ambition of becoming a hairdresser or
beautician. This is due to the nature of her injuries,
the fact
that she cannot raise her hands for a long time, she cannot stand or
sit for a long time and if she does so, she suffers
from severe
pain. The fact that she is unable to pursue her dream has made
her sad. All the experts including those
of the defendant
agreed that she will be able to do sedentary work. She will
have to undergo further treatment and once she
has done so she will
be able to do so in 2016. The plaintiff has accepted that she
is able to do sedentary work and that
is the basis of how her claim
for loss of income was computed. In other words her claim is
that but for the accident she
would have become a hairdresser and
beautician but can now only do sedentary work. She is claiming
the difference between
the two.
Loss
of earning and future loss of earnings
30.
The plaintiff did not in her evidence contradict herself or
exaggerate any of the complaints or evidence. It is clear
from
her evidence that she planned or intended to become a hairdresser
which was her passion. She investigated what courses
were
available and the details thereof. She used to perform the
functions of a hairdresser and beautician for herself, family
and
friends and that she is no longer able to do so as a result of the
injuries sustained in the
collision.
She cannot become either a hairdresser or a beautician due to the
collision to the
sequelae
following
on the injuries sustained in the collision.
She
was not able to matriculate in 2008 and that she was only able to do
so in 2011. When she returned from Barney’s,
she did so
on reduced duties and left her employ with Barney’s due to her
inability to cope with her reduced duties.
As a result of
the
sequelae
flowing
from the injuries sustained in the collision she is unable to become
either a hairdresser and/or beautician. The plaintiff
has been
consistent with what she has reported to the various experts and is
supported by their evidence as well as the lay evidence
of Ms S
Venter. There is no basis to reject or question her evidence.
Since the date of the collision, the plaintiff’s
condition has
deteriorated. Her evidence is supported by Dr Read; Ms J
Schoeman; Ms S Venter and Mrs Pretorius. Dr
Read’s
uncontested evidence is to the effect that plaintiff will continue to
suffer the
sequelae
experienced
by her to date as a result of the injuries sustained in the collision
permanently.
31.
Ms Pretorius looked at the pre and post morbid career opportunities
prospects of the plaintiff. In the pre morbid scenarios
she
looked at two scenarios. In scenario 1 she said that the
plaintiff would have completed her grade 12 in 2008. She
would
have pursued training as a hairdresser and started to work in a salon
after completion of her course. She would have
been earning on
level B3 of the Paterson’s scale until she had retired at the
age of 65 on a C1/C2 level. In the second
scenario she also
would have completed her grade 12 in 2008. She would have
pursued training as a hairdresser and started
to work in a salon
after completion of her course and would have earned on level B3 of
Paterson’s scale. She would
have proceeded and have
become a manager of a salon. At the age of 65, she would have
retired on a level higher than C1/C2
probably at least at level
C3/C4. She testified that based on the perseverance the
plaintiff has shown by independently,
making progress with her
schooling at a young age of 12/13 indicates that she could have made
scenario 2 a reality. Her opinion
was that scenario 2 was more
likely than one of the two.
32.
Ms Pretorius then dealt with the post morbid scenarios. She
also considered two scenarios. With scenario 1 she said
that
the plaintiff would have completed grade 12 in 2011. Her
contract with FNB is not renewed in February 2012. By
October
2012 she is still unemployed. She starts with the treatment
prescribed by the different medical experts. Because
of the
time it takes to visit the different medical practitioners for the
treatment, she does not find work in 2013. By the
end of 2013
she is fortunate to find admin work which is light enough for her to
do comfortably. She earns on level A3 of
Paterson’s
scale. She works in this admin field and at the age of 65 she
retires on a B3/B4 level. She said that
in scenario 2, she
completes grade 12 in 2011. Her contract with FNB is not
renewed in February 2012. By October 2012
she is still
unemployed. She starts with the treatment prescribed by the
different medical experts. Because of the
time that it takes to
visit the different medical practitioners for the treatment, she does
not find work in 2013. Because
of the fact that she only has a
Grade 12 qualification and has to be selective regarding the nature
of the job she accepts (light
work) and struggles for more than three
years to find work. By the end of 2016, she is fortunate to
find admin work which
is light enough for her to do comfortably.
She earns on level A3 of Paterson’s scale. She works in
this admin
field and at the age of 65 she retires on a B3/B4 level.
Ms Pretorius was of the view that scenario 2 was more likely one
of
the two.
33.
Ms Pretorius evidence on the different scenarios she concluded would
be applicable to the plaintiff was not challenged.
34.
As a result of the evidence led by the plaintiff and her experts, as
well as the
joint minutes, I am inclined
to accept the uncontested pre-morbid and post-morbid scenarios
recorded by Ms Pretorius in her report
and her opinion in regard to
the pre-morbid scenarios, scenario 2 was the more likely and in
regard to the post-morbid scenario,
scenario 2 is also more likely of
the two.
35.
In my view, there is justification for calculating the plaintiff’s
income having regard to the accident (post-morbid)
as commencing from
the end of 2016 as suggested by Ms Pretorius having regard to the
treatment that plaintiff is to receive and
in particular the
treatment suggested by Dr Mahomedy which will take between 3 and 5
years. This is justified since the plaintiff
is at a
disadvantage of securing suitable employment with a sympathetic
employer especially having regard to the current unemployment
rate.
In my view but for the accident she would either have become a
beautician or hairdresser and would have ended being
a manager of a
salon. She is unable to become that and even if she does, she
will not be able to do her job efficiently because
it involves a lot
of standing and moving and raising or using the hair brush.
Much was made of the plaintiff’s to go
back for physiotherapy.
According to
Dr Read physiotherapy
would not have assisted her. All that it does is to manage the
pain but it does not reduce it.
36.
Mr Jacobson and actuary has in the actuarial assessment, which method
of calculations used by him having been accepted as correct
by the
defendant, calculated the plaintiff’s past and future loss of
income on the basis of the scenarios put forward by
Ms Pretorius.
His calculation based on scenario 2 of both pre - and post-morbid
scenarios as recorded by Ms Pretorius is
set out in his report that
is at Bundle B, page 295, in the total sum of R2 854 884.00.
General
damages
37.
It is common cause that the plaintiff sustained the following
injuries as a result
of the accident that
she was involved in a head injury; a soft-tissue injury of the neck
of whiplash type; a soft-tissue injury
of the lower back; bruises and
abrasions of the body; laceration of the forehead; an injury to the
right wrist and an injury to
the right knee. The injuries are
permanent in nature and physiotherapy will not assist in reducing the
pain. Injuries
sustained by the plaintiff were of a severe
nature with permanent
sequelae
of
pain in the neck, back and knee, all of which the plaintiff
experiences almost continuously; headaches of a migraine nature
which
she experiences approximately five times a week; restricted movement
as well as restricted physical ability; she cannot play
sport any
longer; the changes in her personality; the dramatic effect that the
injuries and the
sequelae
have
had on her social life, working conditions and life in general; that
prior to the collision, she was an intelligent, ambitious
and
motivated person. Since the collision she is no longer
ambitious or motivated and suffers from major depressive disorder
as
well as post-traumatic stress disorder as diagnosed by Dr Mahomedy.
38.
The plaintiff’s long entertained ambition of becoming a
hairdresser and beautician have been shattered. She is not
able
to do menial tasks such as washing of a bath, making beds, washing
dishes, getting in and out of bath etc. She experiences
problems driving as well, as a passenger. From a healthy young
lady pre-accident, she has been reduced to in all effects
an old lady
and a depressed and unmotivated one at that, who is in constant
pain. The injuries she has sustained have affected
her in
almost every walk of life since the tender age of just under 17
years. This will persist for the rest of her life
and in
addition to her having to cope with the normal aging process, she
will have the ever increasing problems, aches, pains,
etc. associated
with the injuries to cope with. She has undergone procedures in
the form of rhizotomies, lumbar infiltrations,
medication,
consultation with doctors, none of which have been of any real help.
Dr Read stated that the aforementioned
are no more than
painkillers.
39.
Since the collision, her condition has got worse which was confirmed
by Dr Read, Ms Schoeman, Ms Pretorius, Mr Kgosana and Ms
Venter.
She requires future treatment with a possibility according to Dr
Kumbirai of operative treatment. According
to Dr Mahomedy, it
will take between 3 and 5 years to treat the plaintiff for depressive
disorder and post traumatic stress disorder
and that notwithstanding
same, she will be on treatment lifelong. With every episode,
her chances of a recurring episode
increase dramatically. The
experts confirmed that she is not malingering or exaggerating her
condition. She will experience
difficulty in securing sedentary
employment as she will need to find an employer who is sympathetic
and will tolerate the frequent
comfort breaks that she will require
as well as her frequent absenteeism. Any employment secured by
her would have to entail
a combination of sitting, standing, moving
etc. All of this combined with the current economic situation and
unemployment rate
as well as the fact that psychological treatment
will take 3 to 5 years, places the plaintiff at an enormous
disadvantage in securing
employment. There are few employers
who would be prepared to employ the plaintiff once advised of her
medical problems.
In this regard, the plaintiff
would
have to disclose to any prospective employer details of her physical
and mental disabilities. Should she not to do so,
she would
then run the risk of being dismissed once it becomes apparent.
She will never be able to achieve job satisfaction
or at least some
sort of job satisfaction that she would have achieved as a
hairdresser and beautician. She will be for the
rest of her
life experience ever-increasing, especially with aging, constant
pain, discomfort, limitations physically, limitations
mentally,
headaches, etc. She is left with a scar on her face and her sex
life has been affected.
40.
It was contended on behalf of the defendant that an award of
R350 000.00 compensation would be appropriate. I do
not
agree. Taking all of the above into account, an award in
respect of general damages for pain, suffering and shock, loss
of
amenities of life and disfigurement an amount of R450 000.00
would be justified.
41.
In the circumstances I make the following order:
41.1
The defendant is ordered to pay the plaintiff:
41.1.1
the sum of R2 854 884.00 in respect of past and future loss
of earnings;
41.1.2
the sum R450 000.00 in respect of general damages;
41.1.3 interest on the amounts
reflected above calculated at the rate of
15.5%
per annum 14 days after the date of this judgment to date of payment.
41.2The
defendant is to furnish the plaintiff with an undertaking in terms of
section 17(4)(a) of the Road Accident Fund
Act 56 of 1999 for 100% of the plaintiff’s costs as provided
for in the said section
of the Act being in respect of injuries
sustained by the plaintiff in the motor collision that occurred on 7
March 2008 in which
the plaintiff was involved.
41.3
Cost of the action, which costs are to include the preparation and
attendance costs of Dr G Read; Ms J Schoeman; Dr Z Mahomedy;
Ms
M Pretorius; Mr G Jacobson and senior counsel.
___________
FRANCIS
J
HIGH
COURT JUDGE
FOR
PLAINTIFF : M BASSLIAN SC INSTRUCTED BY TAITE
&
SKIKNE ATTORNEYS
FOR
DEFENDANT : ATTORNEY MABASO
DATE
OF HEARING : 18 – 21 NOVEMBER 2013
DATE
OF JUDGMENT : 4 APRIL 2014