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[2012] ZAECPEHC 3
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Adams v Shoprite Checkers (Pty) Ltd (2754/09) [2012] ZAECPEHC 3 (31 January 2012)
11
Reportable/Not
Reportable
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE –
PORT ELIZABETH
Case No: 2754/09
Date Delivered:
31/01/12
In the matter between
DELENE MINNIE ADAMS
…........................................................
Plaintiff
and
SHOPRITE CHECKERS
(PTY) LTD
….......................................
Defendant
JUDGMENT
REVELAS J
[1] On 2 June 2008, the
46 year old plaintiff went shopping in one of the defendant’s
stores in Cleary Park, Port Elizabeth.
There she had the misfortune
of standing near a tower of boxes containing frozen vegetables, the
one box stacked on top of the
other, when it collapsed close to her
and she was struck by one or more the boxes on her neck and right
shoulder, which caused
her injuries which would fall in the category
of whiplash and soft tissue injuries.
[2] The plaintiff
instituted an action for damages against the defendant, based on an
alleged breach of its duty of care in that
its staff allegedly failed
to pack the boxes into the fridges, preventing the stack of boxes of
becoming unstable, or to warn customers
that it might fall over. The
plaintiff claimed the amount of R306 778.86 from the defendant.
[3] The plaintiff
alleged that she sustained the following injuries during the
incident: bruised neck muscles; fibromyalgia; reduced
movement of her
right shoulder; spasms of her neck and shoulder muscles, and pain in
her right shoulder.
[4] The plaintiff’s
claim for damages against the defendant was made up as follows:
Past medical expenses:
R 2 620.01
Future medical
expenses:
Physiotherapy: R
17 964.00
Neurological: R
136 194.00
General damages for
pain, suffering,
discomfort, loss of
amenities.
R 150 000.00
Total:
R 306 778.86
The Evidence
[5] The defendant
conceded the merits of the plaintiff’s claim and I was required
to adjudicate on the question of quantum
only. The parties reached
agreement on the amount of special damages payable by the defendant
in respect of the plaintiff’s
past medical expenses, which was
R14 248.61. The two remaining heads, future medical expenses and
general damages, were to
be determined in this trial.
[6] Only two witnesses
testified during the hearing of the matter. Dr FJ van Aarde, who
examined the plaintiff and prepared a medico
legal report in respect
of her injuries and their sequelae was the first witness to testify.
The plaintiff was the second witness.
Reports from other medical
practitioners and a physiotherapist, Ms Rochelle Mapeling, were also
handed in as evidence.
[7] Dr van Aarde
examined the plaintiff for the last time on 22 February 2011. The
most relevant findings in his report were that
the plaintiff had
vertebral disc protrusions at the C 5/6 and C 6/7 levels of her
spine. He did however explain that these protrusions
may possibly
have been present prior to the accident. Spondylosis, or disc
prolapse, with osteophytes and foramina stenosis were
also noted. Dr
van Aarde attributed the spondylosis to the accident but added that
it develops in 50% of persons over the age of
forty five, at the C
5/6 level of their spines.
[8] The plaintiff also
underwent physiotherapy in 2010, which both Dr van Aarde and Ms
Mapeling (the physiotherapist) agreed was
highly beneficial to her
and had caused a great improvement in her symptoms. Dr van Aarde was
of the opinion that continued physiotherapy
may even dispose the
plaintiff’s neck problems entirely. In the event of
physiotherapy not having the desired result, the
plaintiff would
require a more than one rhizotomy procedure. These are operations
performed on an anaesthetized patient, using
radio frequence
treatment on the affected area. Dr van Aarde stated that the
rhizotomies would have to be repeated annually because
of the
regeneration of the microscopic sinovertebral nerves. If the
rhizotomies proved to be unsuccessful the plaintiff would be
a
candidate for a surgical fusion or a decompression, but this was a
very remote possibility. He however noted in his report that
he would
rather wait another six months to see if the plaintiff required a
rhizotomy.
Special Damages
[9] The plaintiff’s
quantum assessment for future medical expenses, based on the reports
of Dr van Aarde and Ms Mapeling,
was set out as the following:
Physiotherapy (12
sessions per year for 3 years) with Ms Mapeling at R389.20 per
session with an annual increase of 10%:
1.1 2011 R 4 670.40
1.2 2012 R 5 137.44
1.3 2013
R 5 651.84
Total:
R 15 459.68
Medication, being
Myprodol and Mybulin tablets for 24 months: R10 416.00
Rhizotomy Procedures
“
2.1.2.1
Option [1] 2011: R 28 488.00 costs escalated annually by 6 to
7%,
or
Option [2] 2011 reduce anaesthetist and surgeon to R 21 896.00.
2.1.2.2 30% chance of a
second procedure in 2012.01.24.
Option [1] R9144.65
Option [2] R7028.61”.
[10] The majority of
cases of this nature that come before this court are matters where
the Road Accident Fund is cited as the defendant.
Questions relating
to the determination of future medical costs are fortunately, more
often than not, resolved by the presentation
of a certificate and all
that the plaintiff needs to prove in those instances is that he or
she requires an operation on a future
date. In this matter there is
no such certificate. I was required to determine this question by
referring to opinion, and contingencies.
[11] Medical inflation
is clearly more complex than other contingencies. Dr Koch’s
“The Quantum Year Book” is
probably the best authority
one can rely on, given the lack of direct expert evidence on this
aspect. In the 2007 publication of
this work it is stated that
“medical costs project of a long future period should be
capitalized at a real rate of about
2.5 % per year this being the
rate generally used by actuaries in South Africa. This rate was also
allowed (relying on Dr Koch’s
opinion as stated)
in Singh v
Ebrahim
[2010] 3 All SA Law Reports 187. The usual parameters of
a contingency deduction in respect of medical costs vary between 5%
and
20%.
[12] As stated before,
Dr van Aarde mentioned in his report,
that after
six months’ into the plaintiff’s physiotherapy, a
rhizotomy should be considered. However, after an adjournment
during
the trial he reported that he had (during the court adjournment),
examined the plaintiff’s neck and he felt that one
rhizomoty
was already necessary. Dr van Aarde explained that a rhizotomy
procedure was not a cure, but a treatment for symptoms.
However, he
also explained that the plaintiff’s current neck pain was
partially at least, attributable to her not undergoing
physiotherapy.
It was argued by the defendant that the plaintiff did not establish
that her award for special damages (future medical
expenses) should
make provision for any rhizotomies.
[13] A court is obliged
to take into account that the plaintiff is obliged to mitigate her
losses. Where she is able to make use
of two types of treatment
equally good, she is obliged to choose the less expensive. This is in
conformance with the general principle
that the plaintiff is entitled
to a loss suffered, but is not entitled to profit there from.
(
Williams v Oosthuizen
1981
(4) SA 182
(c) at 184 H-185 A;
Dyssel v Shield
Insurance Ltd
1982 (3) SA 1084
(c) at 1086
para [22]. Even though her symptoms will improve substantially if she
regularly attends physiotherapy, that does not
mean that she has no
need for a rhizotomy. The two procedures are not equally good at the
exclusion of one another. She need not
choose between the two
procedures in the aforesaid sense, of mitigating her losses. As I
understood Dr van Aarde, both treatments
would benefit her.
[14] There was also no
expert evidence lead to the effect that the plaintiff’s chances
of ever requiring a rhizotomy procedure
was too remote to justify
inclusion in an award for special damages. There was also the
evidence that the plaintiff, as one can
expect, suffers from the side
effects of the tablets which she takes daily to control her pain. If
she is no longer able to tolerate
these tablets, it would be unfair
to close the door on her benefitting from a rhizotomy indefinitely.
The prospect of side-effects
due to the painkillers, raises the
question of how many tablets should be made provision for in her
award. Clearly, a supply for
twenty four months, if they have side
effects, is excessive, particularly if she is going to attend
physiotherapy and undergo a
rhizotomy procedure. She is entitled to
no more than one year’s supply of tablets, in my view.
[15] In an action for
damages for injuries caused by the negligence of a defendant, when
assessing the damages, the amount to be
allowed by way of a deduction
from contingencies is variable and is closely connected with the
circumstances of the particular
case in which the trial Judge has to
exercise his discretion. (See:
van der Plaats v South African
Mutual Fire and General Insurance Co Ltd
1980 (3) SA 105
at 115
C–D).
[16] Where a plaintiff
does not prove the exact amount to which her or she is entitled, a
nominal amount can be awarded (
Ngubane v SA Transport Services
[1990] ZASCA 148
;
1991 (1) SA 756
(A)).
[17] In
Ngubane v SA
Transport Services
[1990] ZASCA 148
;
1991 (1) SA 756
(A) at 763 I-J the approach
was adopted to rather subject the amount claimed for future medical
expenses to a 20% contingency deduction,
than to award a small
nominal amount, in circumstance where the plaintiff was not able to
prove the exact amount. Reliance was
placed on the
van der Plaats
judgment in this regard
.
[18] In my view, a
reasonable outcome would be to use Dr van Aarde’s estimate for
the costs of a rhizotomy but to make it
subject to a substantial
contingency deduction. An exercise to determine the contingency rate
in respect of this item of the medical
costs with any mathematical
accuracy would be futile. In all the circumstances, and after careful
consideration, I have concluded
that a contingency deduction of 25%
in respect of the future costs of one rhizotomy treatment would be
sufficient. Accordingly
the estimate of Dr van Aarde (R28 488.00)
for a rhizotomy, is to be reduced to R21 366.00.
[19] I appreciate that
this is a matter where considerations of costs precluded a full trial
report from an actuary. However, the
plaintiff could have obtained a
certificate of value from an actuary as advised by Dr Koch in
Koch’s
Quantum Year Book
for 2011 at 544. Ms Mapeling suggested a 10%
escalation in fees for physiotherapy sessions every year. She did not
testify, and
without her testimony, her assessment seems rather
arbitrary and too high. No allowance has been made for the fact that
the compensation
for events 2013 and 2014 are to be received in
advance. I also have to take into account that this judgment will be
handed down
in January 2012 and that the figures for 2012 and 2014
would be applicable.
[20] There is no need
for a substantial contingency deduction for medical costs in respect
of the physiotherapy sessions which will
be for a limited period
only. Based on the nature of the plaintiff’s injuries, there is
no reason to believe that the plaintiff
will discontinue these
sessions much sooner than anticipated. I must also take into account
that she is receiving the money payable
to the physiotherapist in
advance. It must be stressed that one is not looking at payments to
made years hence, but fairly soon.
In my view the plaintiff is
entitled to be compensated for her future medical expenses in respect
of the physiotherapy, allowing
for a 2.5% annual increase in fees.
[21] The costs of
Physiotherapy (36 sessions – R4670.40 per session in 2011) over
three years (annual increase 2.5%) should
be awarded as follows:
2012 – R 4 776.40
2013 – R 4 895.81
2014 –
R 5
018.21
Total:
R14 690.42
General Damages
[22] The plaintiff is
married with three children. She completed standard nine at school.
She is employed by a battery manufacturer
where she makes battery
covers and performs most of her work standing. She is not required to
lift her arms above her head in order
to perform her duties. The
plaintiff’s evidence about the consequences of her injuries as
contained in her pleadings and
oral testimony, was briefly that she
was unable to lie on her right side in the sleeping position for more
than a short while,
causing her to frequently change sleeping
positions. She can no longer carry heavy packages or do handwashing
(laundry) and always
wakes up with pain in her neck and right
shoulder.
[23] For pain relief
she takes analgesics (Mybulin or Myprodol) and applies a heated
compress (“bean bag”) to the painful
areas. According to
her she no longer enjoys going out as before and she has become prone
to mood swings which has had an effect
on her relationship with her
colleagues at work and her marital relationship. At the trial
evidence also was lead that she suffers
from stomach ache, due to the
painkillers.
[24] Insofar as general
damages in this case is concerned, I agree with the submission that
the nature of the plaintiff’s
injuries would fall, for purposes
of seeking guidelines in other awards, in the category of “whiplash”
injuries.
[25] The plaintiff’s
position of employment and the effort required to carry out her
duties at work, have not been affected
by the injury, according to Dr
van Aarde. She suffered no fractures or any damage to nerves or to
her spine which would require
surgical intervention. The plaintiff
proved only negligible, if any, loss of amenities of life
[26] The
representatives of the parties referred me to a few cases where the
plaintiffs also sustained whiplash injuries. In this
judgment the
abbreviation QOD will be used in reference to the work of Corbett and
Buchana, (or Corbett and Honey as they were
referred in the later
volumes), namely
The Quantum of Damages in Bodily and Fatal Injury
Cases.
The Road Accident Fund will be referred to as the RAF.
[27] Particular
reliance was placed by the plaintiff in this matter on the case of
Jeffrey v President Insurance
QOD IV C3-19 where the plaintiff
was awarded (at present value) R66 000.00 as general damages. In
the aforesaid matter, the
67-year-old plaintiff was going to be in
pain for the rest of her life (estimated to be 12 years). She also
suffered a shortening
of her work life. She had pre-existing,
asymptomatic cervical spondylosis which was triggered by the trauma
of her accident. The
court felt that because she did not seek
immediate medical attention, her injuries could not have been as
severe as the experts
attempted to make out. The court did not allow
for the costs of a rhizotomy procedure because the plaintiff failed
to prove nerve
damage which could benefit from the rhizotomy.
[28] In
Dalene Smith
v RAF
2006 QOD V C3-196 SE the plaintiff, a 33-year old police
woman was awarded R55 000.00 in 2006 (R78 000.00 at present
value)
as general damages for whiplash and soft tissue injuries,
which would cause her intermittent headaches and neck pain for an
indefinite
period.
[29] In
van Rensburg
v Port Elizabeth Municipality
1981 QOD III 230 (SE) a 61-year-old
woman who sustained similar whiplash injuries was awarded R75 000.00
(R84 000.00 at
present value). She was awarded the aforesaid
notwithstanding the court’s finding that her symptoms
(headaches and neck pain)
may have been caused by degenerative
changes.
[30] In
Cewu v RAF
2002 QOD V C3-120, the plaintiff’s comparatively more
severe whiplash injuries resulted in daily headaches and neck pain as
well as intermittent shoulder pain. She needed to wear collars,
undergo physiotherapy and daily use anti- inflammatories. She
suffered a 25% loss of mobility to neck with a prognosis of a further
loss of mobility up to 50%. She was awarded R55 000.00 (approximately
R90 000.00 at present value).
[31] In
Mashaba v
Road Accident Fund
2006 QOD V, C3-179 (J) the plaintiff was 26
years old and sustained similar injuries with a 5% chance of future
surgery. Her work
entailed sitting infront of a computer for long
hours and the increased pain in her neck caused her to work longer
hours and she
required higher levels motivation and endurance to
sustain her pre-collision performance. At present day value she was
awarded
R57 000.00 (R45 000.00 in 2006). The plaintiff in
Mashaba
was younger and her employment was affected. In the
present case the plaintiff’s work performance was not affected.
Her neck
injury did not cause her discomfort in performing her
duties, an activity which takes up largest part of her day.
[32] In my view, it
would be appropriate to award the plaintiff an amount of R55 000.00
for general damages. In arriving at
the aforesaid amount I have taken
into account that the plaintiff suffers from chronic headaches and
neck pain, which must have
an impact on her quality of life. I have
also attempted to compare other similar cases with this matter and
tried to do justice
to the facts , particularly that one type of
treatment may diminish the need for another but that both are also
beneficial.
[33] The following
damages are payable to the plaintiff:
Special Damages:
1.1 Past Medical
Expenses as agreed upon: R 14 248.61
2.2 Future Medical
Expenses:
2.2.1 Painkillers
(Mybulin and Myprodol): R 5208.00
(supply for twelve
months)
2.2.2
Physiotherapy
(thirty six sessions over
three years (annual
increase of 2.5%)) R 14 690.42
Rhizotomy
(one session) R 21 366.00
2.
General Damages
:
R 55 000 .00
Total
:
R110 513.03
[36] The defendant is
also liable to pay the plaintiff’s costs of suit which shall
include the qualifying expenses of Dr van
Aarde. Since Ms Mapeling
was not called to testify I do not believe it would be fair to expect
the defendant to pay her qualifying
expenses for furnishing her
physiotherapists report.
[34] The following
order is made:
The defendant is
ordered to pay R110 513.03 to the plaintiff as and for damages,
with interest thereon at the prescribed
rate from 14 days from the
date of judgment to the date of payment.
The defendant is
ordered to pay the plaintiff’s taxed party and party costs,
with interest thereon at the prescribed rate
from a date 14 days
after the taxing master’s
allucatur
to the date of
payment, such costs to include the qualifying costs of Dr van Aarde.
__________________
E REVELAS
Judge of the High Court
Counsel for the
Plaintiff: Adv van Rooyen
Instructed by: Van
Vollenhoven & Associates
Counsel for the
Defendant: Adv Smith
Instructed by: Goldberg
& de Villiers
Date Heard: 13 May 2011
Date Delivered: 31
January 2012