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[2010] ZAGPJHC 152
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Landzaard v Road Accident Fund (09/14443) [2010] ZAGPJHC 152 (11 November 2010)
NOT
REPORTABLE
IN
THE SOUTH GAUTENG HIGH COURT, JOHANNESBURG
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO :
09/14443
DATE:11/11/2010
In
the matter between:
ELMARIE
LANDZAARD
...............................................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
...........................................................................................................
Defendant
JUDGMENT
BAVA
AJ
:
[1]
The Plaintiff instituted action against the Defendant consequent upon
the Plaintiff sustaining bodily injuries arising from
a motor vehicle
collision which occurred on 22 October 2004.
[2]
Prior to the matter coming before me it had begun before another
Judge in this division. An application for the Judge's recusal
was
brought by the Defendant which was duly granted. The matter then
started before me
de
novo.
[3]
Initially both the merits and the quantum were aspects that required
adjudication. The Plaintiff moved for an amendment of paragraph
5 of
the Particulars of Claim which indicated that the Plaintiff and the
motor vehicle driven by H Labuschagne were travelling
in opposite
directions when the collision occurred. Plaintiff sought the
amendment indicating that the Plaintiff and Labuschagne
were in fact
travelling in the same direction.
[4]
The Defendant's Counsel initially objected to the amendment but
thereafter withdrew her objection and indicated that the Defendant
reserved its rights to argue costs in that regard. The amendment was
accordingly granted.
[5]
The parties indicated that there were two agreements between the
parties which would curtail certain evidence being led. The
two
aspects agreed upon by the parties were:
[5.1]
that the Defendant tendered an undertaking in terms of Section 17(4)
of the Road Accident Fund 56 of 1996;
[5.2]
the second point agreed between the parties was that it was agreed
that the report of Franja Botha, the occupational therapist,
was
admitted into Court as evidence and there was agreement that such
witness need not be called.
[6]
The Plaintiff handed in two bundles into Court, namely Bundle A,
being the expert reports, and Bundle B, being the documents.
The
Defendant did not file any expert reports. Before the first witness
was called by the Plaintiff, the Defendant's Counsel indicated
that
the Defendant conceded the merits subject to Defendant's rights to
argue costs in that regard.
[7]
Accordingly, the issue for determination was only that of quantum and
more particularly the past and future loss of earnings
of the
Plaintiff as well as general damages.
[8]
At the beginning of the trial, Plaintiff's claim in respect of the
estimated past and future loss of earnings was R303 000,00
and the
claim for general damages was R150 000,00.
WITNESSES
Lance
Marais - industrial psychologist
[9]
This witness indicated that he is an industrial psychologist and that
he is registered with the Health Professions Council of
South Africa.
He qualified at Potchefstroom University, now the North West
University, and he obtained an MA in the year 2000.
[10]
From the report, the witness indicated that he assessed the Plaintiff
on 11 November 2009. Mr Marais also indicated that he
has testified
in other matters in the past and his medico-legal report was
contained at pages 31 to 49 of Bundle A.
[11]
He indicated that he conducted a structural interview which was used
to obtain information and to formulate an opinion. He
indicated that
the objective of his assessment was to evaluate the effects of the
accident and its
sequelae
on
the employability and earning capacity of the Plaintiff.
[12]
He had summarised the pre- and post-accident potential of the
Plaintiff which was contained in a table at page 46 of Bundle
A. What
was apparent from his evidence was that the Plaintiff had her own
business and that her income or her earning potential
is not limited.
He calculated the loss of earning capacity at 10% based on Dr Reid's
report and more particularly page 14 of Bundle
A. He stated that
where people such as the Plaintiff run their own business, that they
invoice per the hour.
[13]
When a question was posed by the Court to Mr Marais regarding who, in
his opinion, would be properly qualified to comment on
the loss of
productivity of the Plaintiff, Mr Marais indicated that a time and
motion study specialist would be required to determine
the loss of
productivity of the Plaintiff.
[14]
The pre- and post-career path of the Plaintiff was unaffected by the
accident according to him. Where a person such as the
Plaintiff does
not work then, he said, the Plaintiff is unable to bill and
accordingly there is a loss of the number of hours multiplied
by the
rate charged per hour of such a person. This he indicated is the
method that would be used to establish the loss of the
Plaintiff.
[15]
When Mr Marais was asked to comment regarding the future loss of the
Plaintiff, he answered that he was unable to indicate
to the Court
from what date the Plaintiff would begin suffering the loss.
[16]
In dealing with the post-accident work history, he said that he was
not furnished with any documentary evidence to show income
of the
Plaintiff and accordingly when he compiled pages 9 and 10 of his
report, he did not have any documentary evidence regarding
the proof
of income of the Plaintiff.
[17]
When Mr Marais was asked to assist in dealing with the pre- and
post-accident earning capacity, Plaintiff's counsel indicated
that
that may not be necessary as the Court only has to determine the
future loss of income. Mr Marais testified that the Plaintiff
may
suffer a loss of income and he set down two bases for establishing
future potential loss of income:
[17.1]
The time taken off work where the person is self-employed for medical
treatment, that is the number of hours multiplied by
the hourly rate;
[17.2]
The second basis related to the injuries and their effects on the
mobility, pain, etc, on the Plaintiff as she performs her
functions.
In this regard Mr Marais indicated that one would have to look at the
frequency of the Plaintiff as to when she would
be sitting and when
she would be standing, how this affects her work condition and
indicated that this was outside his field of
expertise. He testified
that this would have an impact but qualified it by stating that he
could not comment when and how this
loss will occur in the case of
the Plaintiff.
[18]
In his report, Mr Marais indicated that the Plaintiff returned to her
business ventures and to her pre-accident employment
after the
occurrence of the reported accident but closed down one business for
reasons unrelated to the reported accident. He said
that the
Plaintiff then resigned from her pre-accident employer for a better
opportunity and has continued to operate her other
businesses to
date. He indicated that one of the Plaintiff's businesses, Exodus 2NZ
operated similarly after the reported accident
to what the business
had operated prior to the reported accident, meaning that her
business had not suffered any loss. He said
that the Plaintiff,
however, started to scale down Exodus 2NZ as the Plaintiff decided to
focus on other goals. The pattern of
people wanting to emigrate to
New Zealand changed and Exodus 2NZ closed down for reasons unrelated
to the accident which was confirmed
by the Plaintiff during the
interview. The Plaintiff, he told the Court, had two other
businesses. The business Passports4U operated
similar to what it did
prior to the accident. Accordingly, in respect of this business the
Plaintiff reported no loss as well.
The other business run by the
Plaintiff, Employ Direct CC, has not yet commenced with operations.
[19]
The Plaintiff, he testified, is currently working as a Response
Handling Specialist in conjunction with the Plaintiff's business
ventures and he testified that the Plaintiff would be able to perform
the same type of work that she did prior to the accident.
The
Plaintiff's work experience and employment history focused on
positions such as emigration specialist and recruitment consultancy.
[20]
Under cross-examination it was put to Mr Marais that the complaints
that he records regarding the Plaintiff at pages 11 and
12 of his
report were not mentioned to the other experts. He testified that
that was the reason he qualified his report on page
12 by stating
"Assuming
the above complaints are valid and/or related to the reported
accident, which may not necessarily be the case, this
could have an
impact on Ms Landzaad's ability to work in the open labour market."
Under
cross-examination it was put to Mr Marais, by the Defendant's
Counsel, that the Plaintiff's complaints to him regarding poor
concentration, becoming short-tempered, becoming irritable, becoming
depressed and experiencing palpitations are not mentioned
in other
reports and Mr Marais indicated that he could not comment as to why
these do not appear in other reports. These complaints
do not appear
in Dr Reid's report.
[21]
Mr Marais recorded at page 11 of his report that the Plaintiff had
commenced employment with OMA Human Capital on 2 September
2009 as a
Response Handling Specialist on a contract basis and earned an hourly
rate. He also indicated that Ms Moosa, from OMA
Human Capital,
verified that Ms Landzaad earned:
[21.1]
R5 800,00 in September 2009;
[21.2]
R6 600,00 in October 2009;
[21.3]
R5 300,00 in November 2009; and [21.4] R2 400,00 in December
2009.
[22]
Under cross-examination, Mr Marais was also referred to page 55 of
Bundle B, being a letter of reference for the Plaintiff
dated 25 June
2008, approximately 4 years after the accident, where nothing is
mentioned about Plaintiff's lack of performance
or any aspect
hindering her ability to work. In fact, the letter praises the
Plaintiff and lauds her work ability and work ethic.
[23]
Mr Marais also stated, at page 15 of his report, that the Plaintiff
would be able to continue working with her current capacities
as well
as the work and the type of positions that she occupied at the time
of the reported accident. Furthermore, the report states
that the
Plaintiff's earnings with regard to her self-employment would depend
upon the sustainability and profitability of the
business as well as
the needs of the clients and economic climate. Under
cross-examination Mr Marais verified this statement in
his report as
being correct.
[24]
The Court found this witness helpful to the Court in that he did not
attempt to enter into areas of expertise that were not
his own. Mr
Marais did not attempt to exaggerate or interpret any aspect save to
deal with those aspects that appeared from his
report. Where
concessions were required, he made such concessions under
cross-examination.
[25]
Further under cross-examination and in dealing with the reading of
CV's, that is the part of work that is carried out by the
Plaintiff,
her mobility, and her loss of productivity were dealt with by Mr
Marais. The Court asked him a question as to whether
the loss of
productivity mentioned by Dr Reid translates into a loss of income.
Mr Marais indicated that he could not say that
this will occur or how
and to what percentage it would occur and he could not say whether
the mobility of the Plaintiff will affect
the income and to what
extent and from when this would occur.
[26]
Under cross-examination certain propositions were put to Mr Marais
regarding Plaintiff's ability to employ people to carry
out certain
tasks such as travelling and doing administrative work. Mr Marais
conceded that the fact that other people may be employed
might not
necessarily be a loss to the Plaintiff.
The
evidence of Dr Reid, the orthopaedic surgeon
[27]
Dr Reid testified that he is an orthopaedic surgeon and that he
examined the Plaintiff on 10 June 2009, following the collision
when
Plaintiff went to the Benoni MediCross Clinic where she was examined
but not admitted. X-rays of the cervical spine were done
at the time
of examination at the MediCross Clinic and were signed by Dr H Mistry
on 25 October 2004 which were noted to be normal.
[28]
According to the MMF1 form signed by Dr le Roux, he said, the
Plaintiff sustained the following injuries:
[28.1]
A soft-tissue injury to the cervical spine;
[28.2]
A soft-tissue injury to the lumbar spine.
[29]
Dr Reid noted that at present the symptoms in the Plaintiff's
cervical spine are more severe than those in the lumbar spine.
[30]
Following the accident, the Plaintiff attended physiotherapy
treatment on 26 October 2004 and she also attended treatment with
a
chiropractor in August 2007 and received five sessions of treatment.
The Plaintiff indicated that the treatment with the chiropractor
relieves the symptoms in the cervical spine. Dr Reid testified that
the Plaintiff informed him that she did not continue having
the
treatment with the chiropractor due to medical aid constraints.
[31]
Following the accident, he states that the Plaintiff told him that
she stayed off work for a period of one day and that she
returned to
her preaccident occupation and continued to work there until
January 2006. He detailed her work history and indicated
that she
currently runs her own recruitment agency and the nature of her work
involves 70% sitting in the office and 30% driving
to consult with
clients. He said that at present the Plaintiff copes with the work
albeit with some difficulty.
[32]
Dr Reid explained the workings of the spine and in dealing with the
osteophytes he indicated that he could not say whether
the
osteophytes were as a result of the accident or not.
[33]
Dr Reid indicated that in terms of the x-ray there was spurring at
the level of C6/7 of the cervical spine and some early scattered
osteophytes in respect of the lumbar spine.
[34]
In respect of the soft-tissue injury to the cervical spine, Dr Reid
indicated that the Plaintiff complained of ongoing symptoms
of pain,
stiffness and paraspinal muscle spasm especially over the right-hand
side in the mid and lower cervical spine area. He
also indicated that
the Plaintiff has indicated an occasional feeling of numbness in the
fingers of both her hands.
[35]
In respect of the soft-tissue injury to the lumbar spine, the
Plaintiff complained of pain, stiffness and paraspinal muscle
spasm
in the lower lumbar spine area but that she has no radicular symptoms
in either of her lower limbs.
[36]
Dr Reid testified that the Plaintiff experienced considerable pain
and suffering as a result of the symptoms emanating especially
from
the cervical spine and to a lesser degree from the lumbar spine and
he said in his evidence that one would now regard the
Plaintiff as a
back pain sufferer.
[37]
In commenting on the effect on employment, Dr Reid stated that the
Plaintiff's self assessment was 15% to 20% and that he thought
that
15% to 20% was reasonable. He testified that the Plaintiff needs to
keep moving and that there is a probability that if she
subjects
herself to treatment that her symptoms can improve.
[38]
Dr Reid said that he saw the 10% loss of productivity as being the
minimum and that he calculated that the Plaintiff would
lose one hour
of productivity per day. This calculation was revised downwards by Dr
Reid under cross-examination.
[39]
Dr Reid also testified that the Plaintiff will develop more
osteophytes in her back and neck which would then become still
and it
may diminish her pain. He indicated, however, that her neck pain will
still continue.
[40]
Under cross-examination Dr Reid was referred to page 14 of the
document bundle, being Bundle B, and to a report of the
diagnostic
radiologist, Dr H T Mistry, where he dealt with the cervical spine
and Dr Reid indicated that the loss of cervical lordosis
meant that
there was muscle spasm. He indicated that this related primarily to a
neck spasm and that this could occur immediately
and go on for
months.
[41]
Dr Reid was then referred under cross-examination to page 15 of
Bundle B and agreed that she was complaining of:
[41.1]
Aching intermittent muscular pain bilaterally in her neck and upper
fibres of trapezius region and that she rated this pain
at an
intensity of 4 out of 10. Dr Reid indicated that 4 out of 10 was not
debilitating.
[41.2]
Page 15 of Bundle B also indicated that she complained to the
physiotherapists, Solomon & Long, that she had complaints
of a
dull aching intermittent headache in the back of her head.
[42]
Under cross-examination Dr Reid was asked to comment on the fact that
the dull aching intermittent headache at the back of
the head was new
since the accident and that meant that the first complaint of aching
intermittent muscular pain bilaterally in
her neck and upper fibre of
trapezius region was not necessarily
"new".
[43]
Despite the fact that this was not a report presented by Dr Reid, it
appeared to the Court that Dr Reid went to great lengths
in
attempting to interpret the physiotherapists' report by using
grammatical constructions rather than sticking to his field of
orthopaedics. Dr Reid tried to justify in the grammatical sense that
because it indicated that the second portion of her injury
was 'new'
since the accident does not mean that the first portion was old or
prior to the accident.
[44]
Dr Reid's evidence in respect of questions posed to him under
cross-examination relating to the fact that the Plaintiff did
not
subject herself to the necessary physiotherapy sessions was also less
than impressive. Under cross-examination Dr Reid was
referred to page
24 of the bundle where the physiotherapist, Kirsty Goodman, indicated
that the Plaintiff only attended one treatment
session, Dr Reid once
again attempted to come to the assistance of the Plaintiff, for no
apparent reason, by beginning to define
what a session meant. This
attempt by Dr Reid to create the impression that sessions meant two
or three or more physiotherapy treatments
was also contradicted in
his report at page 4 of Bundle A where he indicates only one
treatment when the Plaintiff attended physiotherapy
treatment, namely
on 26 October 2004. The impression that the Court gained from Dr
Reid's evidence in this regard was that he went
to great lengths to
create the impression that the Plaintiff had indeed suffered a great
deal and to diminish any negative connotation
to the Plaintiff's
failure to mitigate the pain.
[45]
The report of the chiropractor at page 23 of Bundle B indicates that
the Plaintiff reported no more numbness after three treatments
and
showed remarkable improvement in the cervical range of motion.
[46]
At page 24 of Bundle B which should be read with page 15, it is
indicated that insofar as the physiotherapy treatments were
concerned, the Plaintiff only attended one treatment session and that
she did not attend follow-up appointments.
[47]
Dr Reid was then cross-examined on the aspect relating to the fact
that in his report he said that the Plaintiff used Grand-Pa/Myprodol
tablets, about 30 a month, to relieve her pain symptoms. Initially
the impression given by Dr Reid was that she took these tablets
on
almost a daily basis but eventually this impression gave way to the
fact that she takes medication quite often but she may take
a few
tablets at a time. When the question was posed to Dr Reid that on the
10
th
of June the Plaintiff indicated to him that she took about 30 tablets
of Grandpa/Myprodol per month and three days later on the
13
th
of June 2009, the Plaintiff indicated to Franja Botha, the
occupational therapist, that she tries not to drink any medications
but occasionally drinks a migraine mixture from her local pharmacy or
Grand-Pa headache powders to relieve the headaches, Dr Reid
could not
satisfactorily answer this inconsistency.
[48]
Under cross-examination, Dr Reid also sought to challenge the report
of the occupational therapist indicating that if he saw
an
occupational therapist's report without a doctor's report he would
not accept it.
[49]
Dr Reid accepted that pain was a subjective element and also conceded
that there was no objective test that he had taken in
determining the
pain of the Plaintiff. He could not give a scientific basis for how
he estimated a loss of productivity of about
10% that he indicated is
likely to persist in the future in respect of the Plaintiff. He also
indicated that there was no pain
experiment but indicated that he had
come to his conclusion by consulting with the Plaintiff, writing down
what she said and examining
the Plaintiff. This evidence of Dr Reid
was also unsatisfactory.
[50]
Dr Reid then explained the different grades of pain indicating that
Grade 1 was minimal pain, a Grade 2 required medication,
a Grade 3
required taking of medication which may not help and Grade 4 was pain
at night.
[51]
He dealt with the issue of pain threshold and indicated that night
pain was a particularly bad pain and this was indicated
in evidence
that the Plaintiff experienced pain at night and put a pillow between
her legs to help her with the pain.
[52]
Dr Reid then went on to deal with the relationship between pain and
disability and said that the lack of sleep was a problem
and
disturbed normal sleep patterns also affects the ability of a person.
This evidence was also of a general nature and unrelated
to his field
of expertise. However, Dr Reid conceded that he was not a sleep
expert. He, however, was adamant that the 10% disability
that he
spoke of was minimal. Here once again the Court notes the discrepancy
in Dr Reid's report. He says at page 14 of Bundle
A that the loss of
productivity would be about 10% and that this is likely to persist in
the future.
[53]
Dr Reid then began testifying indicating that 70% of the Plaintiff's
work was sedentary in nature and that the 30% was the
problem. He
indicated that if this 30% was reduced, the disability would be
reduced.
[54]
Dr Reid then indicated that if one took the driving away from the
Plaintiff, this disability will then be reduced by a further
one-third. He indicated that he arrived at 10% by what he thought
would be the appropriate figure from years of experience. This
assessment was not in keeping with his field of expertise as an
orthopaedic surgeon.
[55]
In response to whether devices could assist the Plaintiff, he
indicated that devices would assist the Plaintiff but not cure
her.
[56]
Dr Reid was also then pointed out to page 21 of Bundle A, the report
of Franja Botha, where it indicated that Plaintiff stated
that the
pain intensity is bad but that she managed without taking
painkillers. A further aspect that the occupational therapist
also
indicated was that the pain according to the Owestry Back Pain
Disability Questionnaire indicates that the Plaintiff's disability
was minimal.
[57]
Dr Reid was also referred to the occupational therapist's report at
page 22 of the bundle where it indicated that the Plaintiff
stated
that only after 2 hours of driving did she experience lower back pain
whereas Dr Reid suggested, contrary what the Plaintiff
had indicated,
that one hour sitting was too long. In response to this Dr Reid
stated that the one hour was generally accepted
by orthopaedic
surgeons and that the one hour was his cut-off point. Here, once
again, it appeared that Dr Reid was overstating
the Plaintiff's
disability.
[58]
Dr Reid then testified that the 10% loss of ability was not constant
and that it did not occur every day. He indicated that
the pain is
not continuous and that it is episodic.
The
Plaintiff's evidence
[59]
The Plaintiff testified that she was born on 20
th
September 1970 and that she was involved in a motor vehicle accident
on the 22 of October 2004. She indicated that it was a rear-end
collision and she was not aware of any other rear-end collision in
which she was involved.
[60]
She was driving in a motor vehicle behind that of her husband and
that a lady with a cellphone ramped into her husband's car.
As a
result thereof, she was involved in a rear-end collision when the
motor vehicles hit her car from the back and that she suffered
a
whiplash.
[61]
She testified that she was not hospitalised but that she went to her
doctors and was given a brace to wear. Plaintiff said
that she is
still suffering from pain and that the pain that she suffers from is
severe at times. The pain is a spasm in her neck
and that she uses
Myprodol to treat the pain.
[62]
The Plaintiff said that she had a high pain threshold and when she
gets headaches, these headaches are so severe that she cannot
concentrate.
[63]
She testified that she had spasms in her neck and lower back and that
the status of her headaches are a dull pain behind her
eye which goes
around to her entire head.
[64]
The Plaintiff also indicated that the frequency of suffering these
spasms is about three times a week when she suffers headaches
as
well. She indicates that it affects her when she looks straight and
that on good days she does not have headaches. At times
the headaches
began around the temples.
[65]
The Plaintiff also testified that when she does take tablets, it
takes the pain away for 2 to 3 days. In addition to that,
she
indicated that she also takes for pain medication Sinuforte which she
says is a muscle relaxant and that she takes two capsules
of these at
a time. These, she said, are over-counter drugs which are available
without prescription.
[66]
She said that on better days she works a lot, giving the impression
that she covers up on lost work. Insofar as her work is
concerned,
she says that she works for herself and that she is contracted to OMA
Human Capital and that they pay her on an hourly
rate.
[67]
She said that she used to screen 4,500 CV's per weekend but that she
now has to employ someone. However, evidence was not led
as to when
she used to screen 4,500 CV's and she began working for OMA Human
Capital approximately 5 years after the accident.
She said that she
now goes through between 700 to 800 CV's per weekend. The essence of
this evidence was lost in that the accident
occurred approximately 6
years prior to her leading the evidence and the comparative counting
of CV's was not given a timeframe
in the evidence. She also testified
that it takes her approximately 35 minutes to read through a CV. She
began working for OMA
Human Capital since March 2009. She indicated
that her pre-accident work is contained in the report of Mr Marais
where he sets
out her pre-accident work history from pages 36 to 38.
[68]
In terms of Mr Marais' report, the period between August 2003 and
October 2004, the Plaintiff worked for Objective Personnel
in Benoni
as a recruitment specialist. She earned a basic salary of R5 000,00
per month and R6 000,00 per month commission without
benefits. In
addition to this, she ran her own businesses called Exodus 2NZ as an
emigration specialist and as a director of Passports4U.
In respect of
her own businesses, namely Exodus 2NZ and Passports4U, Mr Marais
indicated that the earnings in respect of her former
own business was
unsure and without benefits. In respect of the latter own business,
namely Passports4U, she did not draw any earnings.
[69]
The Plaintiff indicated the reasons why her business Exodus 2NZ
closed and indicates that she phased the company out as she
could not
justify charging people for merely filling in the forms as she was.
[70]
The Plaintiff was then referred by Plaintiff's Counsel to page 46 of
Bundle B which is a letter dated 28 February 2002 which
indicates
that the
Plaintiff
was previously employed with Network Migration Services from 1 March
1997 until 31 October 2002 with a salary of R15 000,00
per month
excluding commission. This letter indicates that for the period
December 2001 to January 2002 and February 2002, the
Plaintiff earned
R15 800,00, R22 340,00 and R26 100,00 respectively. This letter has
the letterhead from a company called Australian
Business Associates.
Plaintiff indicated that she paid Australian Business Associates an
amount to use their office space but did
not specify exactly how much
this amounted to.
[71]
The Plaintiff was then referred to pages 51 to 56 of Bundle B which
indicates payments made to the Plaintiff between May 2005
and
December 2005 supposedly received by the Plaintiff from Objective
Personnel. Plaintiff did not provide payslips but indicated
that
these constitute amounts that she actually received. The pages from
51 to 56 contain amounts which range from R72 493,12 to
as low as -R2
160,00. In addition to this there is a written formula which seems to
indicate the commission structure of the Plaintiff
and these amounts
range from nil to R6 998,62.
[72]
The Plaintiff was then referred to page 50 of Bundle B which
indicated that she had an average turnover of R47 577,09 over
a
period of 11 months with the company Objective Personnel and this was
dated the 9
th
of February 2006. The Plaintiff indicated that she earned between R6
000,00 to R21 000,00 per month but no documentary proof of
such
payments been received by the Plaintiff were actually furnished to
the Court.
[73]
She indicated that her post-accident work history is set out at pages
39 to 40 of Bundle B contained in Mr Marais' report.
Prior to
contracting with OMA Human Capital, she was working for Adcorp Talent
Resourcing Specialists. She indicated that she left
Adcorp Talent
Resourcing Specialists because she did not want to work for them.
[74]
Her close corporation Employ Direct CC could not indicate any
earnings to Mr Marais and in respect of her other business,
Passports4U, she indicated to Mr Marais that she does not draw any
earnings.
[75]
She indicated that her biggest account was the Government Pension
Fund which followed her when she left Adcorp Talent Resourcing
Specialists.
[76]
She indicates that she needed to take a bit of a break after she left
Adcorp in 2008 and according to the Plaintiff she then
took a break
for a period of six months to one year.
[77]
She indicates that the Government Pension Fund then contacted her and
more particularly Ms Viljoen and Ms le Roux and they
wanted her to
provide them with services as they were not getting services to their
satisfaction with other entities. Plaintiff
discussed this with her
husband and decided to begin doing this work for the Government
Pension Fund.
[78]
Plaintiff indicated that she was well experienced in her field and
set out the procedure of how she would quote for the work
approval,
what screening criteria was used, what the client requirements were
and how she created the individuals.
[79]
Plaintiff also indicated that she went from Benoni to Pretoria and
from Pretoria back to Benoni. She indicated that there is
a screening
for each job vacancy and after the screening, she would go back to
Pretoria and that the turn around time in respect
of producing
results for her clients was 10 working days.
[80]
Plaintiff then indicated how she would conduct the interviews and be
on the panel of persons making up the questionnaire. She
indicated
that after her work on the panel, she would come home and do the
submission and then furnish a submission report to a
client.
[81]
During the evidence of the Plaintiff, the Plaintiff's Counsel moved
for an amendment indicating that from the evidence of Mr
Marais the
Plaintiff had done a revised actuarial calculation which showed
estimated past and future loss of earnings to be R601
098,00.
Plaintiff's Counsel indicated that this was an increase of R15 000,00
per month to R30 000,00 per month indicating the
Plaintiff's earnings
and the calculation was accordingly based on this figure.
[82]
Defendant's Counsel objected, indicating that this amendment should
have been brought at the outset of the hearing as the reports
were
available. Furthermore, Defendant's Counsel indicated that
Plaintiff's Counsel had the opportunity of amending the Plaintiff's
claim when the matter started before me and after the recusal
application and despite this opportunity failed to do so. Defendant's
Counsel indicated that the quantum had now increased threefold and
she required instructions. Defendant indicated that they would
have
cross-examined differently and they would then have made use of the
expert reports of:
[82.1]
C du Toit, the industrial psychologist;
[82.2]
DrLedwaba; and
[82.3]
Dr A F Pienaar, the orthopaedic surgeon.
[83]
Defendant indicated that Plaintiff was examined by Drs Ledwaba and C
du Toit. After hearing argument, the amendment was granted
and
accordingly the Plaintiff's claim of estimated past and future loss
of earnings was amended from R303 000,00 to R601 098,00.
[84]
The Plaintiff continued testifying that the drive from Benoni to
Pretoria to OMA Human Capital was approximately 130 kms and
that her
travelling costs to and back from the Government Pension Fund was
approximately 120 kms. She indicated that her trip would
last
approximately 1 hour 10 minutes to 1 hour 20 minutes. She would go to
Pretoria to fetch the documents.
[85]
The Plaintiff's Counsel put to the Plaintiff that according to Dr
Reid, the Plaintiff spent approximately 30% of her working
time on
driving. The Plaintiff indicated that she could not work out the
percentage. However, Plaintiff indicated that she does
not drive
anymore to Pretoria and has employed the services of a driver and
pays the driver R100,00 per trip. She indicated that
if she did the
trip herself, she would charge R2,80 per kilometre.
[86]
Plaintiff indicates that she now uses the driver to collect the
documents from Pretoria and that accordingly the collecting
of the
documents and going into the Government Employers Pension Fund
building, which was problematic, is no longer a problem.
[87]
Plaintiff, however, indicated that she still drives to Pretoria when
she has to conduct candidate interviews and when she delivers
the
submission report.
[88]
In terms of her current remuneration from OMA Human Capital,
Plaintiff indicated that whatever work she does for OMA Human
Capital
she submits an invoice to the Human Resources Department of OMA Human
Capital. She gives them a breakdown of the fees and
she submits an
account for the driving per kilometre and if the driver drives for
her, she puts in a fee of R100,00 per trip and
the company then pays
her.
[89]
The Plaintiff's Counsel then referred Plaintiff to page 61 of Bundle
B and Plaintiff described page 61 to be her payslip from
OMA Human
Capital. This appears to be a salary slip where there are deductions
for PAYE and UIF together with a portion indicating
the annual leave
due. The nett pay appears to be R23 315,74 and it is dated 30
th
of April 2010. The nett pay amount indicated on this is R23 315,74.
[90]
Plaintiff then referred to page 62 of Bundle B which is the payslip
for the 30
th
of June 2010 and which indicates a nett pay of R29 774,72.
[91]
At this juncture the Court enquired from Plaintiff's Counsel how the
discrepancy could be described and the Plaintiff indicated
that she
charged an hourly rate of the number of hours x R170,00 per hour and
that is how she got her pay from OMA Human Capital.
When the Court
enquired from Plaintiff's Counsel as to whether these invoices, that
Plaintiff submitted to OMA Human Capital, would
be introduced,
Plaintiff's Counsel indicated to the
Court
that they would not be introduced as evidence.
[92]
Plaintiff then also indicated that she experiences symptoms of pain
approximately three times a week but she also indicated
that she does
not work a 9 to 5 job. Plaintiff indicated that when she gets
headaches or when she gets spasms she takes a tablet
and that when
she gets up after the effects of the medication, she continues
working.
[93]
Plaintiff then indicated that she works for about 16 hours a day and
indicated that
"my
mother did not make lazy children".
The
Plaintiff also indicated that she works from Monday to Monday and
that the symptoms do have an effect on her work. The Plaintiff
indicated that she gets such serious cramp that she cannot carry on
doing her work but also indicated that she does not have pain
every
day of her life. Insofar as work breaks are concerned, Plaintiff
indicated that she smokes in her office and that she rarely
takes any
breaks apart from when it is absolutely necessary.
[94]
In terms of the headaches, Plaintiff indicated that if the headache
starts in the morning it starts around her eyes and she
cannot do
anything for about 3 days.
[95]
Plaintiff also stated that if she did not have the debilitating
headaches and spasms, she would be able to claim more money
but she
did not say how much.
[96]
Plaintiff in explaining the situation and the event surrounding the
trial, told the Court that she went to Christa du Toit
who assessed
her as well as to Dr Ledwaba. She said that she spent 2 hours, maybe
more, at the consultations. These experts were
Defendant's experts
and despite this no reports had been presented to Court.
[97]
Plaintiff also indicated that she applied for insurance recently when
she and her husband decided that after one of their friends
had lost
work, the loss of income was particularly devastating. Plaintiff was
sent for an examination and from this examination
they excluded the
Plaintiff's back. The assessment document or the insurance document
was not submitted into Court as evidence.
[98]
Under cross-examination, the Plaintiff conceded that while she
employs people to do her screening of the CV's, she charges
the
company for the screening of those CV's. However, Plaintiff indicated
that whoever she employs to do the screening has to be
paid R500,00
per day. Plaintiff, accordingly, indicated that she had to split her
income with someone else.
[99]
Plaintiff then also indicated that her monthly income is dependant on
two aspects:
[99.1]
whether a position is advertised or not;
[99.2]
the number of candidates that apply for the position.
[100]
She indicated that if there are no positions advertised then there
would not be any work but that this has not happened in
the last 10
years.
[101]
Plaintiff then clarified that the Government Pension Fund is the
client of OMA Human Capital and that she charges OMA and
that she
bills and the driver gets R100,00 per trip or if she is travelling
herself, she gets R2,80 per kilometre travelled.
[102]
Plaintiff conceded that while the driver was delivering and while she
was freed up for a period of possibly 2 hours or longer
that she
would continue working and accordingly that the time that she would
normally spend in travelling she would be able to
do work and charge
for that.
[103]
Plaintiff also indicated that before the accident she used to sit in
the kitchen and do the work at the table but since then
she had
acquired a desk in her office.
[104]
When the Plaintiff was asked how she managed taking a break for six
months to a year, Plaintiff indicated that she experienced
a tragic
incident where a person was shot in front of her and that she was
forced to take a break and that she consulted with a
psychologist and
went for 8 treatments in that regard. She indicated that she took a
break just because she wanted to take a break.
[105]
Defendant's Counsel asked the Plaintiff whether she exercised
regularly and Plaintiff indicated that she did back exercises
every
day. When Defendant's Counsel enquired as to why the Plaintiff did
not tell this to Dr Reid, Plaintiff indicated that she
was not sure
and that she said a lot of things to Dr Reid and the other doctors
but she does not know why this is not recorded.
[106]
In terms of the physiotherapist, Plaintiff indicated that she was
referred to the physiotherapist by Dr le Roux and that she
only
attended one treatment session and the next time she wanted to go and
see them, they did not have the space. Plaintiff stated
that she
seemed to recall that she went for more than one treatment.
[107]
When Defendant's Counsel put it to Plaintiff why she regarded her
pain only 4 out of 10 and why she did not measure it 8 out
of 10 or 9
out of 10, the Plaintiff indicated that
"I
can handle pain".
[108]
Defendant's Counsel then elicited from the Plaintiff that
her headaches begin behind her eyes and move around the
head.
Sometimes the headaches start at the side of her temples and if she
puts pressure on it, it would move. Plaintiff indicated
that the
majority of the pain was behind her eyes. In exposing this
Defendant's Counsel indicated that that pain is not pain related
to
injury of the neck and she referred to Dr Reid's evidence in this
regard. Plaintiff had no response to this but indicated that
she did
receive a collar, that she doesn't remember ever having a complaint
of her neck prior to the accident.
[109]
Defendant's Counsel also pointed out to Plaintiff that her complaint
to the physiotherapist was only regarding pain to the
neck.
To
this the Plaintiff responded that she complained of both her neck and
her back. Defendant's Counsel referred Plaintiff to page
15 of Bundle
B which contradicted what the Plaintiff said.
[110]
Defendant's Counsel also put it to Plaintiff that she did not attend
any physiotherapy sessions after the 26
th
of October 2004 as the report of the physiotherapist clearly
indicates this. Plaintiff struggled to answer this question
satisfactorily.
[111]
Plaintiff simply stated that since the accident it has always been
her neck or lower back that was sore and she also indicated
that she
had got Voltaren injections. Defendant's Counsel enquired why this
information of the
Voltaren
injections was never put to Dr Reid or any of the other experts of
the Plaintiff or the Plaintiff's legal representatives.
Plaintiff's
unsatisfactory answer to this was that she only thought of that
"now".
[112]
Plaintiff also indicated that she went to Dr Roberts as her medical
doctor and she does not normally go to Dr le Roux and
Defendant's
Counsel indicated to Plaintiff that no claim for past hospital and
medical expenses have been in fact claimed. Plaintiff
had no
satisfactory response to this.
[113]
Defendant's Counsel then confronted the Plaintiff with the fact that
she was employing a driver and that none of this information
was
mentioned to the experts. Initially, the Plaintiff was hesitant and
eventually indicated that she had only employed the driver
a month
prior to the trial beginning. Plaintiff indicated that she could not
employ a driver earlier as this is a relationship
building exercise
and accordingly she had to present herself personally with clients.
This, somewhat, contradicts her earlier testimony
that she had a
long-standing relationship with the Government Pension Fund and that
they required her services and called upon
her to provide the
services when they were not getting satisfactory services from other
companies.
[114]
Defendant's Counsel then raised numerous aspects relating to
apparatus that the Plaintiff could have purchased such as getting
a
trolley, Defendant's Counsel referred to a shopping trolley, for the
carrying of the files; purchasing of massage cushion; home
exercises;
headsets for the telephone so that she would not have to strain her
neck.
[115]
Plaintiff indicated that her husband had recently purchased a trolley
for her and as far as the telephones were concerned,
she does speak
on the speaker phone but that she did not purchase any of the other
apparatus. Plaintiff conceded that the treatment
with the
chiropractor was remarkable but had no explanation as to why she did
not continue with that treatment. Defendant's Counsel
put it to
Plaintiff that the reason given, namely financial considerations,
were not the correct reasons for her discontinuing
and Plaintiff had
no satisfactory response to this question. Defendant's Counsel then
put it to Plaintiff that Plaintiff's own
conduct was contributing to
the pain and that had she continued with the proper medical
prescription of attending sessions with
the chiropractor as well as
the physiotherapist, her pain would have been drastically reduced.
Plaintiff's unsatisfactory response
to this was
"I
don't think so".
Defendant's
Counsel also then indicated to Plaintiff that if her pain was
relieved pursuant to the Plaintiff following the correct
medical
advice that she would not lose 2 to 3 days of her work time.
Plaintiff indicated that she could not answer this.
[116]
Defendant's Counsel then also referred to the fact that Plaintiff was
not called as the first witness and that she sat in
the Court
listening to the evidence of Mr Marais as well as Dr Reid and that a
negative inference should be drawn from this in
view of the fact that
the proper sequence was not followed by the Plaintiff in leading the
evidence. Defendant's Counsel indicated
that Plaintiff could adapt
her version after listening to the expert testimony.
[117]
Insofar as the medication, Defendant's Counsel indicated to Plaintiff
that the 30 Grand-Pa or Myprodol referred to by Dr Reid
did not make
sense.
To
this Plaintiff responded by stating that she bought two boxes of
Grand-Pa and one box of Myprodol and this would be approximately
100
tablets per month as well as the migraine mixture from the pharmacy.
Defendant's Counsel then pointed out the contradiction
to Plaintiff
by stating to Plaintiff that this is not what she told the experts
and more particular Ms Franja Botha where she stated
:
"Ms
Landzaard tries not to drink any medications, but occasionally drinks
a migraine mixture from her local pharmacy or Grandpa
Headache powder
to relieve the headaches."
Plaintiff
could not explain this contradiction and indicated that if she did
contradict she did not mean to mislead the Court but
that she takes
approximately 48 tablets in one session.
[118]
Insofar as the payslips were concerned and the reference to Mr Marais
indicating that the Plaintiff earned R5 800,00 in September
2009; R6
600,00 in October 2009; R5 300,00 in November 2009 and R2 400,00 in
December 2009, the Plaintiff had no answer to this.
[119]
Defendant's Counsel then indicated that the two payment amounts from
OMA Human Capital were cherry picked to increase her
earnings whereas
this was not in fact the earnings. Defendant's Counsel requested
Plaintiff whether additional documents or invoices
will be produced
to show all her earnings from OMA Human Capital and Plaintiff did not
have an answer to this.
[120]
In having regard to Defendant's Counsel's cross-examination, Ms
Dockrat who appeared for the Defendant, exposed the inconsistencies
in Plaintiff's evidence regarding her injuries and her earnings. This
expose was of such a nature that it left the Court in no
doubt that
the Plaintiff was not being truthful about her injuries as well as
her income that she was deriving from her employment.
In fact,
despite the Plaintiff being afforded the opportunity of producing
further payslips and invoices as well as any proof of
income from the
other entities that Plaintiff owned, none of this was forthcoming
apart from Plaintiff's Counsel indicating that
"documents"
were
offered to the Defendant and which were contained in the motor
vehicle of Plaintiff's Counsel and that Defendant had not availed
itself to have regard to the documentation.
[121]
This offer of presenting documents, which are unspecified in nature,
does not assist Plaintiff and Plaintiff's Counsel in
his closing
argument conceded that this failure to produce any of the documents
or further invoices or payslips may be a shortcoming
on his part and
the Plaintiff should not be punished for this. The issue is not one
whether the Court should
"punish"
the
Plaintiff
or not but the Court has to weigh on a balance of probabilities
whether the evidence tendered by the Plaintiff in respect
of her
earnings/earning capacity is sufficient to meet the standards
required to prove such loss.
LOSS
OF EARNINGS/EARNING CAPACITY
[122]
Generally the onus of proving all the facts relevant to establishing
the quantum in respect of loss of earnings/loss of earning
capacity
rests on the Plaintiff. In the case of
Goldie
v City Council of Johannesburg
1948
(2) SA913 (W) at 916, the Court indicated that as in all civil
disputes, this onus is discharged by proof established on a
preponderance of probabilities.
[123]
Insofar as the evidence of the Plaintiff is concerned, Plaintiff has
failed to discharge the onus placed upon her to prove
loss of earning
capacity. The evidence of Mr Marais indicated:
[123.1]
that he based the 10% of Plaintiff's loss of productivity on Dr
Reid's report;
[123.2]
that he did not receive the documentary evidence from the
Plaintiff to establish her post-accident work history as contained
on
pages 9 and 10 of his report;
[123.3]
that the Plaintiff earned amounts ranging from R2 400,00 to R6 600,00
for the months of September 2009, October 2009, November
2009 and
December 2009;
[123.4]
that the loss of productivity was an aspect that needed to be
determined by time and motion study specialists and not by
an
orthopaedic surgeon;
[123.5]
that the Plaintiff's earnings in terms of her self-employment would
depend upon the sustainability and profitability of
the business as
well as the needs of the clients and the economic climate;
[123.6]
that the Plaintiff would be able to continue working within the
current capacities as well as the work in the type of position
that
the Plaintiff occupied at the time of the accident;
[123.7]
that the Plaintiff would be able to continue working until normal
retirement age;
[123.8]
that Mr Marais could not say whether the loss of productivity in
respect of the Plaintiff would translate into a loss
of income;
[123.9]
furthermore, Mr Marais could not say whether the loss of activity
would translate into a percentage of income and how much;
[123.10]
Mr Marais could also not tell the Court whether the mobility would
affect the Plaintiff's income and to what extent and
from when this
will occur.
[124]
The evidence of Dr Reid indicates that the Plaintiff had only missed
one day of work when the accident occurred. No evidence
was led by
the Plaintiff to indicate what loss she has suffered to date.
[125]
Dr Reid indicated the nature of the injuries but in making the
assessment of 10% loss of productivity, he could not substantiate
a
medical basis or any objective scientific basis on which he based the
10%. In fact, Dr Reid indicated that the aspect that affected
Plaintiff the most was the driving which constituted 30% of her
productivity and if this was addressed then the loss of productivity
would be reduced substantially. Dr Reid was not told that the
Plaintiff had employed a driver to do her driving. This was not put
before Dr Reid by Plaintiff's Counsel. The sequence in which
Plaintiff's witnesses were called necessitated this evidence being
placed before Dr Reid for his comment. It was only when the Plaintiff
herself testified, as the last witness and having heard the
evidence
of the experts, that she indicated that she had employed a driver.
This information was not made known to either of the
experts and
neither did the Plaintiff's Counsel make them aware in respect of
this during the trial. Accordingly, neither of the
experts could
comment on the employment of a driver.
[126]
The Plaintiff's failure to continue the treatment with the
physiotherapists and the chiropractor is indicative of the
Plaintiff's
attitude in the matter in that she simply failed to make
use of the available medical treatment and comes to Court on the
basis
that she is entitled to payment from the Defendant without
attempting to minimise the effects of the injury. There is no doubt
that the Plaintiff has suffered injury as was confirmed by Dr Reid as
well as the Plaintiff herself but the Plaintiff's failure
to mitigate
the loss was apparent.
[127]
The Plaintiff appeared not to have informed Dr Reid and Plaintiff's
other experts of the proper information relating to medication
that
she was taking and accordingly the evidence of Dr Reid in this regard
seemed to have contradicted what the Plaintiff has said
and
furthermore it was incongruent with what the occupational therapist,
Ms Franja Botha, stated at page 7 of her report.
[128]
The Plaintiff failed to provide the documentation that would be
required in order to assess Plaintiff's loss. Plaintiff produced
two
payment slips from OMA Human Capital and failed to provide the
payment slips in respect of the periods September to December
2009 as
contained in Mr Marais' report. In fact, the Plaintiff's
documentation in respect of her income was so scanty that it would
be
difficult for any Court to assess whether the Plaintiff had a loss of
income. Plaintiff cherry picked two payment slips from
OMA Human
Capital for the months of April and June 2010 despite the fact that
she was working for this company for at least 11
months. Plaintiff
failed to furnish documentation relating to the companies that she is
running as her own business. No balance
sheets were produced, no
income indication was given and no evidence was led on this aspect.
[129]
The general rule, where the courts will do their best with the
material placed before them, was stated by Diemont JA in
Esso
Standard SA (Pty) Ltd v Katz
1981
(1) SA964 (A) as follows:
"Whether
or not a plaintiff should be non-suited depends on whether he has
adduced all the evidence reasonably available to
him at the trial and
is a problem which has engaged the attention of the courts from time
to time. Thus in
Hersman
v Shapiro and Co
1926
TPD 367
at 379 Stratford J is reported as stating:
'Monetary
damage having been suffered, it is necessary for the court to assess
the amount and make the best use it can of the evidence
before it.
There are cases where the assessment by the court is very little more
than an estimate; but even so, if it is certain
that pecuniary damage
has been suffered, the court is bound to award damages. It is not so
bound in the case where evidence is
available to the plaintiff which
he has not produced; in those circumstances the court is justified in
giving, and does give, absolution
from the instance."'
[130]
Van Winsen AJA in
Mkwanazi
v Van der Merwe and Another
1970
(1) SA609 (A) referred to the decision of Tindall J in
Klopper
v Maloko
1930
TPD 860
at 865 where he stated:
"...
When a plaintiff is in a position to lead evidence which will enable
the court to assess the figure he should do so and
not leave the
court to guess."
[131]
Plaintiff's Counsel in closing argument also conceded that the lack
of documentation was a weakness in Plaintiff's case in
respect of
proving her income. Plaintiff's Counsel indicated that the documents
were available in the car but failed to indicate
what the documents
were. Plaintiff's Counsel conceded in closing argument that this
failure to produce the documents was a problematic
aspect and
appealed to the Court to be lenient to the Plaintiff in this regard
as this was not the Plaintiff's fault personally
and it may have been
an oversight by the Plaintiff's legal representative. However, this
is not the basis on which an onus is discharged
and neither can the
Court deal with the lack of evidence by attempting to come to the
rescue of a party for the sake of leniency.
[132]
I am not satisfied that the Plaintiff has discharged her onus in
proving a loss of earnings or earning capacity and accordingly
I make
no award under this heading. While the Plaintiff does continue
suffering from the injuries sustained she failed to prove
that this
affected her income or her earning capacity in the future and I am of
the view that the pain, discomfort and suffering
of the Plaintiff
fall to be determined as a general damage.
GENERAL
DAMAGES
[133]
In
Protea
Assurance Company Limited v Lamb
1971
(1) SA 530
(AD) at 534 H - 535 A, the following was held:
"It
is settled law that the trial judge has a large discretion to award
what he in the circumstances considers to be a fair
and adequate
compensation to the injured party for (the) sequelae of his
injuries."
[134]
The judgment in
Protea
Assurance Company Limited v Lamb
supra
at
535 H - 536 B states:
"...
The trial court or the court of appeal, as the case may be, may pay
regard to comparable cases."
[135]
In
Sandler
v Wholesale Coal Suppliers Limited
1941
AD 194
at 199, Watermeyer JA stated:
"The
amount to be awarded as compensation can only be determined by the
broadest general considerations and the figure arrived
at must
necessarily be uncertain, depending upon the judge's view of what is
fair in all the circumstances of the case."
[136]
In this regard see also the case of
Southern
Insurance Association v Bailie NO
1984
(1) SA98 (AD) and the line of cases quoted by Saldulker J in the case
of
Megalane
v RAF
2007
[JOL] 19483 (W).
[137]
Plaintiff claims an amount of R150 000,00 in respect of general
damages. Plaintiff argued on the basis of the judgment of
Saldulker J
in
Van
Vuuren v RAF
Case
No: 2005/925 (South Gauteng High Court) that the Court should award
the sum of R120 000,00. Defendant argued on the basis of
R60 000,00
being granted to the Plaintiff but was not totally averse to the
amount of the award in the
Van
Vuuren
case.
Defendant's Counsel indicated that she was in possession of some case
authority in this regard but she did not place sufficient
emphasis on
those cases.
[138]
I have considered the soft-tissue injuries to the back and neck and I
have considered the fact that Plaintiff suffers pain
on an ongoing
basis. I have taken into account the evidence led by the Plaintiff as
well as the evidence of the Plaintiff regarding
the injuries suffered
and the pain and suffering of the Plaintiff.
[139]
Although Plaintiff was not hospitalised and that she failed to attend
medical treatments which alleviated and also cured her
symptoms I
have to attempt to compensate the Plaintiff for her pain and
suffering taking the broadest general considerations. I
have also
attempted to arrive at an amount that is fair in the circumstances.
[140]
Plaintiff suffered, in essence, a whiplash injury and suffers pain
and suffering - some of it related to the accident and
some of it
not. The evidence of the Plaintiff as to why she stopped treatment
gave the impression that she simply was too busy
getting on with life
to bother attending treatments that were to her benefit. In the Van
Vuuren case there was a financial constraint
to attending
physiotherapy treatments and in this matter that was not the case. In
a report Plaintiff suggested this but in evidence
Plaintiff did not
persist with this as a basis for her avoiding treatment.
[141]
I have considered the Van Vuuren case
supra
and
I regard the facts of the current case to be comparable insofar as
the nature of the injuries and
the
effects are concerned. In the Van Vuuren case
supra
the
was forced to bear the pain whereas in this case the Plaintiff had
alternatives which she simply refused to take advantage of.
I am,
therefore, of the view that it is fair, having regard to the
circumstances to award the Plaintiff the sum of R100 000,00
in
respect of general damages.
COSTS
[142]
I have been asked to remain silent as to costs and to reserve
granting a costs order and that the parties wish to argue the
issue
of costs after the determination on quantum has been made.
ORDER
[143]
I accordingly order that:
[143.1]
The Ptemtrff having
been
conceded by the Defendant that the Plaintiff is entitled to 100% of
the amount proved.
[143.2]
That the Defendant be ordered to pay to the Plaintiff the sum of R100
000,00 in respect of General Damages.
[143.3]
The Defendant shall pay interest on the aforesaid sum mentioned in
paragraph 143.2 above at the legal rate calculated from
fourteen (14)
days after the date of judgment to date of payment.
[143.4]
The Defendant shall furnish the Plaintiff with an undertaking in
terms of
Section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
for the Plaintiff's costs of future accommodation in a hospital or
nursing home or treatment of or rendering of a service or supplying
of goods to her.
[143.5]
The costs be reserved for determination on argument.
BAVA
AJ