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[2012] ZAECPEHC 14
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Adams v Shoprite Checkers (Pty) Ltd (2754/09) [2012] ZAECPEHC 14 (23 February 2012)
5
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE –
PORT ELIZABETH
Case No: 2754/09
Date Heard: 22/02/2012
Date Delivered:
23/02/12
In the matter between
DELENE MINNIE ADAMS
…....................................................
Appellant
and
SHOPRITE CHECKERS
(PTY) LTD
…....................................
Respondent
JUDGMENT:
APPLICATION FOR LEAVE TO APPEAL
REVELAS J
[1] The applicant seeks
leave to appeal against the award of future medical expenses, general
damages and interest as set out in
the judgment handed down on 31
January2012.
[2] An error was made
with regard to the interest ordered. The order does not accord with
my understanding of sections 2A and 5
of the Prescribed Rate of
Interest Act 55 of 1975 (as amended). The order should have
distinguished between the interest on the
general damages awarded and
the interest on the special damages awarded. In my view, this error
could be dealt with in terms of
Rule 42(1)(b) of the Uniform Rules of
Court by a variation of the interest clause in the order, and I will
do so in this judgment.
Future Medical
Expenses
[3] The consequences of
whiplash injuries and their future treatment, particularly in the
case of older persons, where natural degeneration
of the neck has
already been in progress before the accident (which Dr van Aarde had
found could have been the case) is not capable
of being measured or
predicted with much certainty. There is always a certain degree of
guess work and arbitrariness involved in
the exercise of the wide
discretion to award damages in this type of matter.
[4] In paragraph [32]
of the judgment I stated that my award took into account the fact
that one type of treatment may diminish
the need for another, but
that both (physiotherapy and a rhizotomy) may be beneficial. The
amount awarded for a rhizotomy (after
a 25% contingency deduction) is
in keeping with the amount Dr van Aarde suggested as a second option
in his report. Based on all
the evidence, the applicant might not
have required any further rhizotomies if she attended physiotherapy.
Rhizotomy procedures
are seldom awarded by the court in these
matters, as can be gleaned from past awards made. If I erred in this
regard it was in
favour of the applicant. In these circumstances, the
prospect of another court awarding the costs of a second rhizotomy
and a lesser
contingency deduction than the one that was provided
for, as argued for by the applicant, is not a reasonable one.
[5] Insofar as the
award for physiotherapy sessions is concerned, I reiterate the
reasons therefore as set out in my judgment.
General Damages
[6] It must be borne in
mind that, apart from the fact that damages is a matter of wide
discretion, this matter differs from all
the cases relied upon by the
plaintiff in that she was not injured in a motor vehicle accident.
There was no evidence about how
many boxes of frozen vegetables hit
the plaintiff. The probabilities suggest that it could not have been
more than a few. Perhaps
only one box hit her neck. Her injury seemed
less serious or less traumatic, than one sustained in a motor vehicle
accident. In
addition, there was evidence that the applicant suffered
no loss of amenities, other than that she could no longer perform
household
tasks, yet the injury made no difference to the manner in
which she had always performed her duties as a factory worker. Having
said that, it is indeed so that my award for general damages was
substantially less than most awards in the cases I was referred
to
during argument. On that basis there is a reasonable prospect that
another court might have a different view and raise the award
for
general damages.
[7] In the
circumstances the following order is made:
Prayer 1 of the order
dated 31 January 2012 is amended as follows:
By deletion of the
words “
with interest thereon at the prescribed rate from 14
days from date of judgment to the date of payment”.
and substituting it
with the following:
Interest is payable on
the amount awarded for special damages - future medical expenses
(R41 264.42) at the prescribed rate
from date of
judgment
to date of payment.
Interest is payable on
the amount awarded for general damages (R55 000.00) and past
medical expenses (R14 248.61) (if
not yet paid) at the
prescribed rate from date of
summons
to date of payment.
The application for
leave to appeal against the amount of damages awarded under special
damages, (future medical expenses) is
dismissed.
The applicant is
granted leave to appeal to the Full Bench of the High Court, Eastern
Cape Division, against the amount awarded
for general damages.
Costs are to be cost
in the appeal.
__________________
E REVELAS
Judge of the High Court
Counsel for the
Appellant: Adv van Rooyen
Instructed by: Van
Vollenhoven & Associates
Counsel for the
Respondent: Adv Smith
Instructed by: Goldberg
& de Villiers
Date Heard: 22 February
2012
Date Delivered: 23
February 2012