Lawson v Road Accident Fund (1566/2006) [2010] ZAECPEHC 6 (4 March 2010)

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[2010] ZAECPEHC 6
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Lawson v Road Accident Fund (1566/2006) [2010] ZAECPEHC 6 (4 March 2010)

20
FORM A
FILING SHEET FOR EASTERN CAPE, PORT ELIZABETH JUDGMENT
Civil Judgment
Richard Barry Lawson
vs
Road Accident Fund
CASE NUMBER
: 1566/2006
DATE ARGUED:
25 February 2009, 22
February 2010 – 24 February 2010
DATE DELIVERED
: 4 March 2010
JUDGE(S)
: Pickering J,
LEGAL REPRESENTATIVES
:
Appearances
:
for the State/Applicant(s)/Appellant(s):
Adv.
Niekerk
for the Accused/Respondent(s):
Adv. Huisamen
Instructing attorneys
:
Applicant(s)/Appellant(s):
Brown Braude & Vlok
Respondent(s):
Wilkie Weiss van Rooyen
CASE INFORMATION
:
Nature of proceedings
:
Topic
:
Keywords:
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE, PORT
ELIZABETH)
CASE NO:
1566/2006
In the matter between
RICHARD BARRY LAWSON
VS
THE ROAD ACCIDENT
FUND
JUDGMENT
PICKERING J:
On 10 May 2003 plaintiff, an adult male medical
practitioner, was driving his motor vehicle on the road between
Humansdorp and St.
Francis Bay when it was struck from behind by a
motor vehicle driven by a man with the somewhat ironic surname of
Genade, causing
it to roll twice and land in a ditch alongside the
road. Plaintiff sustained a serious injury to his back in
consequence thereof.
He accordingly instituted action against
defendant for recovery of damages. The merits of his case were
conceded by defendant and
the trial before me proceeded on the issue
of the quantum of plaintiff’s damages only.
It was agreed between the parties that defendant
was liable to pay plaintiff’s past medical expenses in the sum of
R70 208,69.
It was further agreed that an order should be made
directing defendant to furnish plaintiff with an undertaking in terms
of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
in
respect of plaintiff’s future medical expenses. It was further
agreed that plaintiff had no claim for past loss of earnings.
The
issues at the trial related therefore to plaintiff’s alleged loss
of earning capacity in respect of which plaintiff claimed
the sum of
R2 818 400,00 and to plaintiff’s claim for general damages in the
sum of R300 000,00.
The dispute between the parties in respect of
plaintiff’s alleged loss of earning capacity resolved itself
largely into a dispute
between the two orthopaedic surgeons who
testified at the trial, namely Dr. Edelstein for plaintiff and Dr.
MacKenzie for defendant
as to the precise nature of plaintiff’s
back injuries and the future consequences thereof, although during
the course of the trial
certain of the evidence relating to those
injuries became common cause.
At the time of the collision plaintiff was
employed as a medical doctor at Humansdorp Hospital where he was
performing his compulsory
community service. After his motor vehicle
had come to a standstill alongside the road plaintiff attempted to
exit the vehicle through
the passenger side window which was now
uppermost but severe pain and spasm in his lower back prevented him
from doing so. An ambulance
eventually arrived and he was extricated
through the back of his vehicle on a solid spine board. An
excruciatingly painful journey
to Humansdorp Hospital ensued. Once
there plaintiff suffered the embarrassment of being stripped naked
and assessed by colleagues
with whom he worked. He was then
transferred to Greenacres Hospital, Port Elizabeth. There it was
found that he had sustained fractures
of the transverse processes of
L2, L3 and L4 on the right side of his lumbo-sacral spine together
with an L4/L5 disc extrusion with
L4 nerve route compression. He was
treated conservatively at first but, after an MRI scan showed the
extrusion of the disc, a decision
to operate on him was taken and he
underwent an L4/L5 discectomy on 21 May 2003, in the course of which
a large loose fragment was
removed.
In his evidence plaintiff stated that during the period 10 May until
the operation on 21 May he suffered constant, unremitting and
excruciating pain which was not relieved by schedule 7 medication.
He was obliged to use a catheter. He was unable to wash himself.
He
was unable to walk. During this period he experienced extreme
anxiety emanating from the realisation that his injury was of
a
significant and possibly life-changing nature.
Once the operation had been performed he experienced almost immediate
pain relief save for residual pain mainly from the fractures
to the
transverse processes and the surgical wound itself.
He was discharged from hospital on 24 May 2003 in
a lumbo-sacral corset. After two weeks spent convalescing at his
holiday home at
St. Francis Bay his condition had improved to the
extent that he was able to return to his home in Johannesburg. He
eventually returned
to work on 1 August 2003. He underwent
rehabilitation and by November 2003 was able to jog lightly and to
exercise on an exercise
bicycle. By the end of 2003 he stopped using
the corset.
It was put to him under cross-examination by Mr.
Huisamen, who appeared for defendant, that his evidence as to his
present physical
condition was at odds with what defendant’s
orthopaedic surgeon, Dr. MacKenzie, had found when he examined
plaintiff on 14 January
2009, a month prior to the commencement of
the trial. Dr. MacKenzie described him as being “
superbly
fit looking, tanned and well muscled
.”
His back posture and gait pattern were normal; he had a full range
of back movement, apart from slight restriction of forward
flexion;
lateral bending, rotation and extension of the back was within normal
limits. According to Dr. MacKenzie plaintiff had
described his
present situation as being one of “
discomfort
with occasional mild periods of true pain, never severe enough to
necessitate the use of analgesic medicine.
”
Plaintiff stated in this regard that Dr. MacKenzie
had to some extent understated his symptoms. At the time that he
consulted with
him on 14 January he was on holiday, well-rested and
trying to get as fit as possible. After that consultation, however,
he had
returned by road to Johannesburg and the trip had been
debilitating. He described the pain experienced by him as being
grade 3 pain,
a pain that made it difficult for him to complete
tasks. He dealt with it by altering position, by resting and by
keeping as fit
as possible rather than by using analgesic medication.
His non-use of such medication was not because he did not experience
pain
such as would justify the use thereof. It was rather in
consequence of a personal decision not to become reliant on
medication.
Plaintiff stated that at the time of the commencement of the trial in
February 2009 he was jogging approximately 5km a day. He stated
that
he had continual discomfort in his lower back which got worse as his
working day progressed. He said, however, that he coped
with the
demands of his 56 hour working week because he had to.
Having closely observed plaintiff during the
course of his testimony I have no hesitation in accepting his
evidence in regard to his
symptoms. There is, in my view, no merit
in Mr. Huisamen’s submission that plaintiff had “
recognised
the necessity to embellish upon the consequences of his injuries for
purposes of establishing his damages
”
and that he was, in effect, malingering.
Apart from plaintiff’s evidence there was the
testimony of Dr. Edelstein who stated that plaintiff’s complaint
that he was in
almost continual discomfort was a very typical
consequence of his injuries and entirely consistent therewith.
Both Dr. Edelstein and Dr. MacKenzie were agreed
that plaintiff will require a fusion at levels L4/5 of his lumbar
spine. In his
medico-legal report Dr. MacKenzie put the situation
thus:
“
[T]here is evidence of early unstability at
the operated level (L4-5) evidenced by anterolysthesis between L4 and
L5 on flexion stress
studies. There is also degenerative
spondylolisthesis at L4/5. This situation is frequently seen after
discectomy for a prolapsed
intervertabral disc and is due to the
altered biomechanics of the articulation. The extent of the
instability and forward slipping
of the more cephalad vertebra on
that below will undoubtedly get worse with the passage of time, and
the need to remedy the situation
surgically will certainly arise. It
is impossible to provide a precise time-frame, however, at present,
because of his youth and
superb physical condition, his spinal
musculature is able to support his lower back satisfactorily, and
prevent severe disabling
pain, but with the passage of time, the
spinal musculature will inevitably weaken and become decompensated,
with a more rapid progression
of the instability between L4 and L5
and increase in pain levels. When this occurs, he will need to
undergo surgery predicted by
Drs. De Jonge and Edelstein, namely
stabilisation of the level by means of a fusion at L4/5 with
instrumentation.
”
According to both surgeons such operation should
be delayed as long as possible and plaintiff’s condition managed
conservatively
with the use of analgesic medication. The time will
come, however, with the inevitable deterioration of the L4/5 level,
that plaintiff’s
pain will increase and become intrusive and
unremitting to the extent that he will be obliged to submit to
surgery. This will be
required after ten to fifteen years. This
operation would probably result in a compromised earning capacity of
approximately 6 months.
It is at this point that the views of the two surgeons diverge.
According to Dr. MacKenzie, there was what he
termed a theoretical possibility that after the fusion operation the
level of the lumbar
spine below L4/5, namely L5/S1, could develop
early onset degenerative changes because of the excessive movement of
the solidly fused
two vertebra above it but the likelihood was remote
enough to be discounted. Dr. MacKenzie was of the view that after
the fusion
plaintiff’s back symptoms would recover and that his
functioning would return virtually to normality. He proffered, in
support
of this view, the anecdotal evidence of the success of a
laminectomy performed to his own thoracic spine.
Dr. Edelstein agreed that the possibility of the
L5/S1 level developing degenerative changes could be discounted. He
strongly disagreed,
however, with the view that plaintiff’s back
would recover as suggested by Dr. MacKenzie. He was of the opinion
that after the
fusion operation plaintiff would in all probability
require at least one further operation. This opinion was based on
both his clinical
assessment of plaintiff as well as certain x-rays
which had been ordered by Dr. MacKenzie. According to Dr. Edelstein
the x-rays
demonstrated that there was traumatic degenerative
spondylolisthesis at the L3/4 level, in other words that the L3
vertebra had shifted
at least 4mm, if not more, back on the L4
vertebra. According to Dr. Edelstein degeneration occurred adjacent
to a fusion in 35%
to 45% of patients, adjacent segment instability
being defined as being more than 3mm of translation. In the present
case therefore
the L3/4 level was already at risk.
Dr. MacKenzie disagreed entirely with Dr.
Edelstein’s interpretation of the x-rays. Whilst agreeing that
according to the x-ray
the postero-inferior angle of the body of L3
appeared to be posteriorly displaced in relation to the
antero-posterior angle of L4,
this was, in his view, in all
probability an illusion.
Under cross-examination t
he
following exchange between Dr. MacKenzie and Mr. Niekerk, who
appeared for plaintiff, occurred:
“
Q Can you fault at all (Dr. Edelstein’s)
opinion that in this particular case where there is already
instability and degeneration
at L3, as is evident from the
radiographs, that (intervention) …
A I do not see that. I do not agree with that.
I see a malalignment there. I do not see degeneration at L3/4.
Q Do you not concede that the malalignment is an indication of
instability and degeneration?
A It is possible, but I, as I have said I think
a few times now that I am not prepared to venture a full cut and
dried opinion on
the status on that particular level unless I have
insight into the full range of the stress views as well as an MRI of
that specific
disc.
”
And further:
“
Q What Dr. Edelstein says is that the more
operations you go for, and this is a general explanation he gave, the
more operations to
your lumbar spine the worse the effects of the
operation are going to be post-operatively.
A Well if it develops that he has, and with the
passage of time that L3/4 is proven with further investigation,
including radiology,
that that disc is degenerated and is unstable,
the necessity will arise then for not just a single fusion between
L4/5, but also
between L4 and L3. That would mean a more extensive
operation.
”
Under further cross-examination Dr.
MacKenzie
stated that should it be found that there was indeed existing
degeneration at the L3/4 level the outcome for plaintiff would,
in
his opinion, be “
less favourable
”.
He reiterated, however, with reference,
inter
alia
, to an article in a medical
journal, Spine, that the level which concerned him most was that at
L5/S1. He stated that his understanding
was that adjacent segment
deterioration was found more frequently in the level below the
fusion. He conceded, however, that the
article did not in fact
support his views and that, on the contrary, in the 29 cases
investigated by the authors the adjacent segment
degeneration
occurred below the fusion level in only three cases and above it in
the remaining twenty six.
I do not intend to burden this judgment with any
further discussion of Dr. MacKenzie’s reliance on the article.
Suffice to say
that by the end of his cross-examination he had been
obliged to make a number of telling concessions which to a great
extent undermined
the conclusions he sought to draw from it. He
finally conceded that if there was “
incontrovertible
”
evidence of problems at the L3/4 level the inference that the
prognosis for plaintiff was “
at best
poor
” was acceptable.
In the light of what transpired during the
cross-examination
of Dr. MacKenzie the
matter stood down at Mr. Huisamen’s request until later in the week
in order to enable him to consult with
the relevant radiologist. It
thereafter proved logistically impossible to continue with the matter
and it was postponed
sine die
on 25 February 2009. The matter was for some reason eventually only
placed on the roll again for 22 February 2010. It is regrettable
that such a delay should have occurred. Be that as it may, when the
matter resumed, I was informed that during the intervening period
a
further set of x-rays with stress views had been taken and a CT scan
and an MRI scan were done. Two radiological reports by Dr.
Meintjies
(Annexure I) and Dr. Msweli (Annexure J) respectively were handed
into Court by consent. In his report Dr. Msweli stated
that there
was, at the L3/4 level, a slight L3 retrolisthesis of approximately
4mm on L4, retrolisthesis being the posterior displacement
to a
degree of one vertebral body with respect to the adjacent vertebral
body. It is this displacement that was at the heart of
the dispute
between the specialists before the postponement of the matter.
According to Dr. Meintjies the retrolisthesis
noted by Dr. Msweli was “
not really
out of normal limits
”, albeit that it
is in excess of the 3mm and therefore falls within the accepted
definition of adjacent segment instability. As
was submitted by Mr.
Niekerk although, on its own, the retrolisthesis might not be so
significant it was nevertheless a sign of adjacent
segment
instability and it certainly put paid to Dr. MacKenzie’s confident
assertion that the appearance of displacement was merely
an illusion
as well as vindicating the opinion of Dr. Edelstein in this regard.
Plaintiff, having obtained leave to reopen his
case, recalled Dr. Edelstein to testify as to the results of the
further examinations.
A written report by Dr. Edelstein was also
handed into Court as Exhibit K. In his report and his evidence Dr.
Edelstein stated
that it was evident from the CAT scan that plaintiff
had sustained direct injury to three levels of his lumbar spine with
an intra-articular
injury at the L3/4 level. The scan showed a
fracture of the facet at L3/4 level which, according to Dr.
Edelstein, was in all probability
a direct result of the injury
sustained by plaintiff in the collision. The facet was fragmented
and broken which would lead to degenerative
arthritis and cause pain,
discomfort and dysfunction at some later stage. There were signs of
degenerative change evident at the
L2/3 facet. Although such change
could be age-related it was improbable given plaintiff’s age and
fitness that such degeneration
was in fact age related in his case.
There was further a fracture of the L5 vertebra which had also not
been noticed on the x-rays
and the facets were degenerating.
In his report, with specific reference to the
damage to the facet at L3/4 level, Dr. Edelstein stated that “
this
puts to rest any speculation or academic discussions as to whether
there is adjacent disease to the L4/5 level.
”
In his evidence he stated that the scan constituted “
hard
evidence
” which “
just
rubber stamps my original opinion.
”
Where before there may have been an element of uncertainty there was
now, so he testified, none whatsoever.
Mr. Huisamen, however, took issue with his
evidence in this regard, pointing out that Dr. Msweli had made no
reference to the facet
fracture at L3/4 and calling into question Dr.
Edelstein’s ability and qualifications to interpret the scan. In
this regard it
is worth recalling, however, that at the first hearing
both Dr. Edelstein and Dr. MacKenzie were asked to advance their
opinions
as to the interpretation of the x-rays, which they did at
some length without their competence to do so in any way being
challenged.
Be that as it may, Dr. Edelstein stated that he, as an
orthopaedic surgeon, was able to interpret the scan at least as well
as a
radiologist. He stated that should the omission be pointed out
to the radiologists they would no doubt be embarrassed thereby.
Mr.
Huisamen submitted, however, that it was telling that the perceived
L3/4 facet fracture had not been noticed or reported on by
any of the
radiologists who had been specifically tasked to investigate and
report on this specific area of plaintiff’s spine.
He submitted
that in the light of those reports and given that Dr. Edelstein was
not a radiologist his evidence could not be accepted.
I disagree. In my view, Dr. Edelstein, as an
orthopaedic surgeon specialising in spinal surgery, was clearly
competent to interpret
the scan. It was open to defendant, if it
took issue with his interpretation thereof, to have called the
relevant radiologist to
rebut it. Defendant did not seek to do so.
In the absence of any such rebuttal Dr. Edelstein’s evidence can in
my view safely
be accepted.
It can therefore be accepted, in my view, given
the presence of adjacent segment degeneration, that on the
probabilities plaintiff
will in future after the fusion of L4/5
require at least a second fusion operation in respect of level L3/4
and, possibly, a third
such operation.
I turn then to consider plaintiff’s claim for loss of earning
capacity based on the facts which I have accepted as set out above.
In his amended particulars of claim plaintiff’s
loss of earning capacity is quantified as being R2 828 400,00. It is
set out as
follows:
“
1. Plaintiff is a qualified medical doctor,
who is currently working as a registrar, and studying to specialise
in anaestheology,
and it is reasonably anticipated that plaintiff
will enter private practice as an anaesthetist with effect from 1
August 2011.
2. The plaintiff suffers from almost continual discomfort and
regular episodes of pain in his back which impacts on his ability to
earn an income and will continue to do so.
3. Plaintiff is, as a result, unable to work the same amount of
billable time as he would have been able to but for the collision
and
has suffered an estimated 10% loss of earning capacity.
4. Plaintiff’s loss has been calculated by actuary Alex Munro,
as set out in his actuarial report.”
Plaintiff’s claim under this heading must be
assessed in the light of the following facts. He is presently
employed by the State
as a medical registrar at the Johannesburg
Circuit of State Hospitals, i.e. at Johannesburg Hospital,
Baragwan
ath Hospital and Helen Joseph
Hospital. There is no accredited training facility in the private
sector in South Africa and plaintiff
is obliged to work for the State
for at least four years in order to qualify as a specialist
anaesthetist. In addition to this clinical
component he must pass
two series of examinations in order to become a Fellow of the College
of Anaesthetists. He has already passed
Part one thereof and, in so
doing, was awarded the medal for the top candidate in South Africa in
the May 2008 examination, a matter
to which I will return when I deal
with his claim for general damages.
In plaintiff’s present capacity as registrar he
is obliged to work 56 hours per week. It is his intention to enter
private practice
in Johannesburg as soon as possible after
qualifying. He has already been approached by an association of
anaesthetists servicing
75 surgeons in Johannesburg with a view to
joining their association following upon his qualification. In this
association the anaesthetists
work between 50 and 60 hours per week.
It is not in dispute that this is the probable career path that
plaintiff will follow.
The uncontested evidence of Ms. Brits, an industrial psychologist,
was to the effect that plaintiff’s probable earnings as a
specialist
anaesthetist would be R2,4 million per annum, being R2,7
million less practice costs of R25 000,00 per month.
Plaintiff stated in his evidence that his main
concern was that worsening pain in his back would in the future
curtail his earning
capacity. He testified that his work as an
anaesthetist had physical demands such as the lifting of patients.
He presently has
grade 3 back pain and if that back pain should
worsen it would interfere with his functioning in the occupational
sphere. Grade
4 pain would not allow him to do his work. He was
also concerned that should he be obliged to take analgesic medication
such medication
might interfere with his work as well.
He stated that although he would be working for an
association of anaesthetists he would be expected to develop and
maintain relationships
with his own surgeons. He would bill for the
work done by him and would receive that income but would be obliged
to share in administrative
and related expenses. To all intents and
purposes therefore he would be self employed. If he was unable to
work as a result of
incapacity due to worsening back pain or due to
having to take time off for surgery or other treatment he would not
receive any income.
Furthermore, his unavailability at any time
might result in surgeons using other anaesthetists instead of him and
this would damage
his working relationships with the surgeons.
Plaintiff’s evidence concerning the probable
curtailment of his functioning is supported by Dr. Edelstein who
stated that there
is a “
100% chance
that he will have curtailment to some extent and it will be longer
than 10 years.
” Although Dr.
Edelstein’s initial opinion was that plaintiff could lose the
equivalent of two years earnings due to sick leave
and/or earlier
retirement and/or a loss of working hours he was of the opinion in
the light of the radiological findings that such
loss would be a
minimum of two years and probably as much as five years. He was of
the view that as an anaesthetist plaintiff would
quite simply not be
able to keep up with his peers. On being re-called he stated that
“
with the hard evidence of multi-level
injury and degeneration now available, my original estimate of a
total loss of earnings of 10%
over his career, spanning 30 years or
more, is conservative to say the least and I estimate a minimum loss
after all contingencies
have been applied, it is probably 20% loss
.”
There can be no doubt in the light of the
acceptable evidence of plaintiff and Dr. Edelstein that plaintiff
will indeed suffer a considerable
loss of earning capacity over the
course of his career as an anaesthetist. Mr. Huisamen submitted that
plaintiff had failed to establish
a loss of 10% earning capacity and
that, accepting that plaintiff would undergo two further spinal
operations, provision should rather
be made for two periods of 6
months each during which plaintiff would be without income. In this
regard he referred to the supplementary
actuarial calculation of Mr.
Munro in which the total loss in such event is calculated as being
R876 600,00. In my view, however,
the evidence of plaintiff and Dr.
Edelstein as to the curtailment of plaintiff’s operational
functionality in future must be accepted.
The figure of 10% put
forward by Dr. Edelstein on which the actuarial computations of Mr.
Munro amounting to R2 818 400,00 are premised
is obviously
speculative to some extent but it is not based on mere guesswork but
rather on assumptions resting on the evidence relating
to the present
condition of plaintiff’s spine. Compare:
Southern
Insurance Association v Bailey
1984 (1)
SA 98
(AD).
Mr. Niekerk submitted that in the event of the
figure of 10% being accepted no contingencies should be applied in
the light of Dr.
Edelstein’s estimation of a 10% loss after the
application of contingencies.
As was stated in
Southern
Insurance Association v
Bailey, supra,
however, the trial Judge is not tied down by inexorable actuarial
calculations but has a large discretion to award
what he or she
considers right. One of the elements in exercising that discretion
is the making of a discount for contingencies.
In doing so it is
erroneous to regard the fortunes of life as always being adverse.
They may be favourable.
I
am of the view that,
in fairness to both sides and bearing in mind that the Court has no
crystal ball to assist it in gazing into
the future, a contingency of
10% should be applied. Such being the case plaintiff’s claim for
loss of earning capacity amounts
to R2 536 560,00, which in my view
should be rounded off to R2, 500 000,00.
I turn then to consider plain
tiff’s
claim for general damages. Plaintiff, who was born on 12 June 1977,
had a glittering sporting and scholastic career at St.
John’s
College where he matriculated in 1994. Whilst there he played
cricket for the first team for two and a half years, commencing
in
his Under fifteen year. In that year he was selected to play for
South Africa at U15 level. He also played rugby for the first
team.
He was awarded honours for both sports. He was a keen athlete and
represented Gauteng in cross-country throughout his school
career.
After matriculating at the age of 17 years he did
a sixth form post-matric year at Canford School in the United Kingdom
where, despite
never having played hockey before, he represented the
school’s first team which progressed to the County Championship
finals.
He was selected for the school’s first team at cricket
which won an international schools’ cricket festival in Barbados.
He
played first team rugby for the school, being made captain.
He commenced studies for his medical degree at
Witwatersrand University during 1996, being awarded his MBbCh in
2001. He was awarded
the University Cricket Club bursaries in 1996,
1998 and 1999 and the University Council Sport Scholarship in 1997.
Whilst at university
he played rugby for four years for the
University U21 team. In 2001 to 2002 he played for Wanderers first
XV. In 2001 he represented
the Golden Lions. He completed his years
internship at Johannesburg Hospital in 2002 and in 2003 was posted to
Humansdorp Provincial
Hospital to perform the then requisite one year
of community service. On being posted to Humansdorp he resolved to
attempt to play
rugby for Eastern Province and to that end he joined
Patensie rugby club during February 2003. It was whilst returning
from a match
at Patensie that the collision occurred.
It is common cause that he can no longer play
cricket or rugby although, surprisingly, he can play golf, which he
does, playing off
a 5 handicap.
Plaintiff also excelled academically at
University. In 1997, for instance, he received a University merit
scholarship in consequence
of having achieved A symbols in all his
subjects during his first year at medicine.
After the collision he returned to work on 1
August 2003. In 2004 he commenced work as a medical officer in the
Department of Orthopaedics
at Johannesburg Hospital. From April 2004
to January 2005 he was employed as a medical officer in the Level 1
Trauma Unit at the
hospital including two months in the Trauma
Intensive Care Unit. Because of his potential he was selected to
work as a flight doctor
in helicopters operated by the Specialist
Trauma Air Rescue Unit during 2004 and 2005. During 2005 – 6 he
worked as a part time
flight doctor on SOS international fixed wing
flights evacuating ill people from other countries to Johannesburg.
The nature of
his work, however, was such that he was unable to cope
with the physical demands thereof. During 2005 – 6 he worked in
the Accident
and Emergency Units of certain London hospitals. During
this period it became clear to him that because of his back injury he
could
not cope with the physical demands of surgery. Indeed, as Dr.
Edelstein remarked, it would have been a waste of taxpayers money
to
train plaintiff any further as a surgeon.
He was therefore obliged, extremely reluctantly,
to abandon the field of surgery. Because of his interest in and
enjoyment of intensive
care medicine he decided to pursue a career as
an anaesthetist. He was accepted as a registrar in the Department of
Anaesthesia
at Johannesburg Hospital in 2007. True to his character
he immediately made his mark in the Department winning a number of
medals
for excellence in 2008 including the medal for the top
candidate in South Africa in the May 2008 examinations.
He stated that although he loved his present work
and found it fascinating it had been devastating for him to have had
to abandon
surgery. He found it extremely difficult to have to watch
surgeons across the operating table performing work which he knew in
many
instances he would have been better equipped to do.
Mr. Huisamen suggested during the course of
argument that plaintiff was somewhat arrogant. I do not agree. In
my view plaintiff
was clearly a gifted individual in both the
sporting and academic fields and was justifiably proud of what he had
achieved. In this
regard he stated as follows:
“
What happened to me on 10 May 2003 was
devastating. You know it was a proud moment for me yesterday to
stand up in front of a Court
and to read out my CV and to look at my
achievements again but on reflection on the way home it was a sad day
for me. The world
was at my feet. I was only 25. I had worked
tirelessly through my medical career at university and excelled. I
had attempted to
put myself in a position on the sporting field that
made me proud.
”
Although there is no doubt that plaintiff will
qualify as a specialist anaesthetist this was not his original chosen
career path.
He clearly had an exceptionally promising career ahead
of him as a surgeon. That door is now closed to him. However
rewarding
the career of a specialist anaesthetist may be the fact
remains that plaintiff has been deprived of the opportunity to follow
the
profession for which it appears he was eminently suited. It is
clear from his evidence that that loss is deeply felt, and
understandably
so. Furthermore, his enjoyment of his profession as
an anaesthetist will be seriously compromised by the pain he will
experience
in future. However difficult it may be to quantify his
damages in this regard he is entitled to be compensated therefor.
In determining the quantum of general damages I am
called upon to exercise a broad discretion to award what I consider
to be fair
and adequate taking into account all the facts and
circumstances connected to plaintiff and the injuries suffered by
him.
Apart from his enforced change of
professions those injuries have had a serious adverse effect upon his
life. He has already undergone
one spinal operation and in all
probability will in future be obliged to undergo at least one if not
two further operations. He
has continuous pain which will become
very much worse over the years. His sporting career was cut short in
its prime. He has in
my view in all the circumstances suffered a
severe loss of amenities of life.
In all the circumstances I am of the view that the
amount of R300 000,00 claimed by him as general damages is entirely
fair and reasonable.
When the matter was postponed on 25 February 2009 the costs were
reserved. Mr. Huisamen, however, fairly conceded that such costs
should be costs in the cause.
To summarise therefore the position is as follows:
1. For past medical expenses R 70 028,69
2. For loss of earning capacity R2 500 000,00
3. For general damages
R
300 000,00
TOTAL
R2 870
028,69
In the result I make the following order:
1. Defendant is liable to pay to plaintiff the sum
of R2 870 028,69 as and for damages.
2. Defendant is ordered to pay interest on the
said sum of R2
870 028,69 at the legal rate
from 14 days after date of judgment to date of final payment.
3. The defendant is directed to furnish plaintiff with an
undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
, to pay to the plaintiff the costs of future
accommodation in a hospital or nursing home, or the treatment of, or
the rendering of
service to, or the supplying of goods to the
plaintiff, as a result of the injuries sustained by him in the motor
vehicle collision
which occurred on 10 May 2003 in the district of
Humansdorp, and the sequelae thereof, after the costs have been
incurred and upon
proof thereof.
4.
The defendant is
ordered to pay the plaintiff’s taxed party and party costs, such
costs to include:
a. The costs occasioned by the postponement on 25 February 2009;
b. The reasonable preparation fees/qualifying
expenses, if any, of the following expert witnesses:
(i) Dr. Charles Edelstein;
(ii) Ms. F. Serfontein;
Ms. S. Brits;
Mr. A. Munro
Dr. T.S. Msweli.
c. The costs, if any, of the transcript of
evidence;
d. Interest on the taxed costs from a date 14 days
after date of taxation to date of payment at the legal rate of 15,5%
per annum.
________________
J.D.
PICKERING
JUDGE
OF THE HIGH COURT
Date of
hearing: 25 February 2009, 22 February 2010 – 24 February 2010
Date of
judgment:
Appearing
for Plaintiff: Adv. Niekerk
Appearing
for Defendant: Adv. Huisamen
Attorneys
for Plaintiff: Brown Braude & Vlok
Attorneys
for Defendant: Wilkie Weiss van Rooyen