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[2012] ZAECPEHC 64
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Busakwe v Viking Inshore Fishing (Pty) Ltd (68/2007) [2012] ZAECPEHC 64 (13 September 2012)
IN THE HIGH COURT OF SOUTH AFRICA
EASTERN CAPE, PORT ELIZABETH
CASE NO: 68/2007
In the matter between:
KHAYALETHU BUSAKWE
..........................................................
Plaintiff
and
VIKING INSHORE FISHING (PTY) LIMITED
.
.........................
Defendant
JUDGMENT
SANGONI JP
The Parties
[1] Plaintiff is an adult male born on 10 April 1976, residing at
Kwazakhele, Port Elizabeth.
[2] Defendant is Viking Inshore Fishing (Pty) Ltd, a company with
limited liability duly incorporated according to the Company
Laws of
the Republic of South Africa.
Introduction
[3] This is an action for damages arising from personal injuries
sustained on 19 August 2004 while the plaintiff was in the process
of
rendering his services as a fisherman while in the employ of the
defendant. While the plaintiff was shovelling ice in the
refrigeration
room of the defendant onto a conveyor belt he stepped
onto a partly exposed swarm spiral, unbeknown to him at the time. The
plaintiff
got injured. The forepart of his right foot was crushed,
resulting in a midfoot amputation of his right foot at the level of
the
talus and the cuneiform bones. The defendant conceded liability.
What remains to be determined is the quantification of the damages
suffered.
[4] The total amount claimed is R4, 616, 217.26. The breakdown
thereof is as follows:
Medical expenses : R17, 167.26
Future Medical Expenses : R2, 944, 400.00
Part loss of income : R45, 490.00
Future loss of income : R1, 161, 160.00
General damages : R450, 000.00.
[5] The amount of R16, 800.00 was paid by the Compensation
commissioner in terms of the provisions of the Occupational Injuries
and Diseases Act, 1993. That payment reduced the claim to
R4 601 417.26.
The Background Facts
[6] At the time of the incident the plaintiff was 28 years old. He
was fit and healthy prior to the incident. Following the incident
he
was hospitalised for six days – admitted to hospital on a
Thursday and discharged on the following Tuesday. Prior to the
incident he was working on Chokka boats where one has to try and
catch as many fish as possible. One would be remunerated according
to
the weight of the fish one has caught. If however one is working on
the refrigeration one would be paid extra, i.e. according
to the
tonnage caught by the whole boat. After the injury the plaintiff
continued to work on the boat after a stoppage of about
8 to 10
months. He says it was difficult, but it is a paying job. For a few
months, those months when usually there is a strong
wind blowing at
the sea and fishermen are unable to work, he got involved at Addo in
fruit picking for remuneration which was relatively
much lower than
in the fishing industry. The plaintiff testified that it was not his
intention to continue being a fisherman until
retirement even if he
had not been injured. His intention was to get any other job outside
the fishing industry. He does not like
the job except that it is a
paying job and it is generally difficult to get a job.
Past Medical Expenses
[7] It was pointed out during trial that this claim is no longer
being persisted with. It appears to have been taken care of by
the
payment from the Compensation Commissioner, as pointed out above.
Estimated Future Medical Expenses
[8] Both parties agree that the plaintiff would require a prosthesis
for the injured foot, to support his mobility for the rest
of his
life. The major part of the claim under this heading relates to the
cost of the prosthesis, the attendant costs of maintenance,
management and perhaps replacement thereof. The orthotists
representing the respective parties, being Mr Paul Nel for the
plaintiff
and Mr Jan Brand for the defendant, propose different types
of prostheses. The cost of the one Mr Nel proposes is R2, 766,
600.00.
It comprises two prostheses, the primary prosthesis and the
secondary prosthesis.
[9] Before analysing the prosthetic reports of the respective
orthotists, it is important, in my view, to deal with the evidence
of
Doctor Olivier a specialist in orthopaedics, particularly the
features thereof that may lay a foundation for the assessment
of
prosthetic needs so as to consider which prosthesis may best suit the
condition of the plaintiff. I am mindful of the fact that
the
plaintiff has somewhat expressed his preferences for the kind of
prosthesis he would like to use but his preference is not
the only
factor to consider.
[10]
Dr Oliver
10.1 Dr Olivier filed a medical report which was not admitted by the
defendant. At the trial he also testified. He confirmed that
the only
injury sustained was an amputation of the forefoot, the so-called
chopart amputation
which left only the
calcaneus
and
the
talus
bone in the foot. The only part of the right foot is
the heel part which constitutes a third of the foot. The ankle
movements are
normal with good stability.
10.2 In his testimony Dr Olivier touched on the issue relative to the
type of prosthesis. Understandably he is hardly an expert
in this
area but viewed with an open mind as an orthopaedic surgeon, his
evidence describing the nature and extent of the injuries
impacts on
what kind of prosthesis would be required or suitable. For instance
when he refers to what he calls a ‘carbon
fibre prosthesis’
which incidentally is proposed by Mr Nel, he is of the view that it
would “support his lower leg
as well as his ankle, and will
also support his foot in front of the amputated area that will give
him more stability further on
than the amputated level.” He
concedes that the plaintiff with this kind of prosthesis would not
have ankle movement.
[11]
PJ Nel
11.1 Mr Nel is an Orthotist and has been in private practice since
1998. Two of his prosthetic reports are filed on behalf of the
plaintiff. He has also testified at the hearing, adhering to the
correctness of the two reports. The prosthesis referred to above
as
‘carbon fibre prosthesis’ is proposed by him as the one
the plaintiff requires. Mr Nel in his first report recorded
the
following under the heading ‘Prosthetic requirement”:
“
The forefoot provides a
certain function in the gait cycle, mainly in providing a “spring
in the step” and also to maintain
balance. With the absence of
the forefoot certain activities are curtailed and some others
impossible for example climbing stairs,
walking up and downhill and
standing on tip toe. Shoe selection is also made very difficult. The
residual foot slides forward in
the toe box of the shoe causing the
shoe shape to distort at midfoot level. Sandals cannot be worn at
all. Mr Busakwe was fitted
with his first prosthesis in October 2005.
He related that he preferred not to wear that prosthesis because of
the bulky nature
of it. He requires a prosthesis that will unload
some weight of the residual foot (thus proving better pressure
distribution) while
also providing forefoot toe off function (provide
better balance). It must also be cosmetically acceptable.”
11.2 The criticism levelled against the prosthesis of this kind is
that it allows no ankle movement; if the knee does bend to 90
degrees
then the foot would be able to go flat in a natural position but if
extended to the front the foot would not be flat as
would be in a
driving position; even though the constitution of the prosthesis
would as far as possible be designed to suit an
individual, the
prosthesis would be a bit thicker than the lower part of the leg and
ankle, resulting in a bigger shoe. It was
put to Mr Nel under
cross-examination that the plaintiff does not want a rigid structure
that goes up to his knee and he wants
ankle movement and none of
those he can get from Mr Nel’s prosthesis. Mr Nel conceded
this.
[12]
Jan Brand
12.1 Mr Brand qualified as an orthotist prosthetist since 1989 and
has been in private practice since 1995. He consulted with the
plaintiff who set out what he expects from a suitable prosthesis,
namely-
12.1.1 “Most importantly
he wants to keep his current movement of his ankle, because he wants
to be able to operate the petrol
pedal in a normal way when he wants
to drive a car.
12.1.2 Also when sitting he
wants to be able to put his foot flat in a natural position.
12.1.3 He is very aware that
these small things like the shoe that appears different, and the
unnatural movements would be very
noticeable to others.
12.1.4 He also does not want to
wear bigger shoe due to the bulkiness of the prosthesis, and he does
not want any prosthesis to
extend to the knee. It must also be
light-weight.
12.1.5 The fitting of a custom
silicone sleeve, combined with a prosthetic socket extending to the
knee and aesthetical silicone
cover, will on average each add
approximately 2mm in thickness.
12.1.6 This will add to 6mm on
each side of the residual foot, making it at least 10 to 15mm wider
than his left foot.
12.1.7 It would also eliminate
his ankle movement, which contributes a great deal towards his
natural balance.
12.1.8 This prosthesis would be
very similar to the prosthesis he rejected, with the only difference
that it might feel more comfortable,
because of the silicone sleeve
and has a better foot blade.
12.1.9 Mr Busakwe never
complained about the comfort of the first prosthesis, because he
explained to me that he did not even want
to take it out of the bag
because he did not like it for all the reasons already pointed out.
12.1.10Mr Busakwe must be
supplied with a complete silicone prosthesis as a primary and
secondary prosthesis on a daily basis.
12.1.11Both these prostheses
will be replaced every five years, since they will be used equally.
It would have an aesthetical finish
and will not extend over the
ankle. The 15mm shortening allow for space for pressure relief with
softer silicone under the foot”.
12.2 Indeed in his testimony the plaintiff confirmed most of what is
set out above and expressed a desire to get a prosthesis that
provides what Dr Brand had presented.
[13] In accordance with a minute agreed upon by the parties the
parties agreed that the actuaries employed by the respective parties
should use the average of Life Tables 5 and 6 from Quantum Yearbook
2010 when calculating the claims for future Medical Expenses
and
Equipment and have also agreed that the respective calculations are
correct in as far as it corresponds with instructions received
from
the parties’ respective legal representatives.
[14] As agreed between the parties the resultant effect on the
plaintiff’s claim in regard to future Medical Expenses and
Equipment is as follows:
ITEM
1) Reduction and
fusion
operation.
2)
Primary prosthesis.
3)
Secondary prosthesis.
4)
Prosthetic sheaths.
COST
R 35 000.00
R138 259.28 every
5 years.
R138259.28 every 7.5 years.
6
sheaths every year at R229.42 each.
CAPITAL VALUE
R38100.00
R912 250.00
R632 800.00
R28400.00
5) Skin care kit.
6) Prosthetic services.
7) Prosthetic services.
8) Primary prosthesis refit.
9) Secondary prosthesis
refit.
10) Elbow crutches.
11) Automatic vehicle extra
costs.
12) Pedal conversion of
vehicle.
13)
Hand controls.
1345.22 every 3 months
6 hours at R659.96 per year.
8 hours at R739.42 per year.
R45 766.30 in the first 5
years and once every 5 thereafter.
Same as above.
R895 every 5 years.
R4650.00 per year to age 75.
R4750 every 5 years to age
75.
R8
990.00 every 5 years.
R108900.00
R81 650.00
R122 000.00
R395800.00
R395800.00
R4900.
R91 250.00
R 20 450.00
R38
650.00
[15] The total sum is R2 870,950.00. The amount of R138 259.28
as components for the primary and secondary prosthesis
is made up as
follows:
Prosthetic fitting, for a
Chopart type prosthesis: R 23 036.00
Test socket- diagnostic: R
2639.83
Silicone sleeve, custom made:
R16 604.63
●
Carbon
fibre kit: R3487.30
●
Chopart
foot: R 29 133.48
●
Chopart
bonding kit: R1876.30
●
Partial
foot- silicone aesthetic restoration
R
61 481.74
R 138 259.28
[16] Annexed to the minute of an agreement reached by the parties is
Annexure B which seeks to set out the current value of future
medical
expenses by the defendant inclusive of equipment. The total amount is
R1 697,252.00, subject to the necessity to utilise
the equipment
and whatever contingencies that may apply.
[17] Annexure B is broken down as follows:
Item
Current
value
Primary
prosthesis: R107 537.40 required every 5 years.
Secondary
prosthesis: R107 537.40
required every 5 years.
Accessories
to the prosthesis
Derma
prevent 453H12 at R467.42 required every 3 months.
Derma
clean 453H10 at R410.38 required every 3 months.
Derma
repair 453H14 at R467.42 required every 3 months.
Service
and Repairs
6)
Aesthetic silicone repairs R730.42 per
30 mins, required 8
hours per year.
Orthotic
needs
7)
Elbow crutches with modules handles
at
R1860.94 per pair which is required
once.
8)
Maintenance on elbow crutches at R930.47 per pair which is
required once.
R
677 358.00
R677
358.00
R36
631.00
R32
161.00
R36
631.00
R
234 322.00
R1861.00
R930.00
[18] The prosthetic requirements preferred by the plaintiff appear
reasonable and the cost thereof, in terms of Mr Brand’s
evidence, relatively more affordable.
18.1 From the evidence of Mr Brand one observes, that most of what
the plaintiff seeks as set out in Paragraph 12 above is achievable.
Comparatively speaking the prices are affordable where the experts
agree on the necessity of any particular equipment. Those proposed
by
Mr Brand are relatively more reasonable. Mr Brand, for instance finds
sense in the utilisation of elbow crutches but due to
the low
frequency of use only a pair of these crutches over the lifetime of
the plaintiff. That goes with an allowance of 50% of
the cost of
maintenance.
18.2 The cost of the primary prosthesis is R107 537.40; it is
required every 5 years and has a present day value as calculated
by
Barnard of R677 358.00 according to his actuarial report in support
of the defendant’s version. The cost of the secondary
prosthesis is also R107 537.40; it is also required every 5 years and
has a present day value of R677 358.00.
It should be noted that no refitting of these prosthesis are required
since it only fits on the residual foot. As set out in Mr
Brand’s
report (Annexure B) this translates to a significant saving. The foot
is different to other amputations in that there
are no bulky muscles
that will atrophy and reduce in volume. Therefore replacement every 5
years without refitting is possible.
It should also be noted that no
socks or sheaths are needed since the silicone fits directly to the
skin, providing better grip
to eliminate movement.
[19]
Mobility Costs
Closely related to the question of prosthesis to be considered is
mobility costs. One option is adaptation of an accelerator and
the
pedal of an automatic vehicle to operate them with the left leg. The
second option is the use of a vehicle with hand controls,
be it an
automatic or manual motor car. The costs as calculated by Rademeyer,
a mobility consultant, on an automatic vehicle fitted
with a pedal
conversion featuring a replicated accelerator pedal amount to
R91 250.00 as calculated by Munro Consulting. The
defendant
submits that an amount of R38 650.00 for conversion of a manual
vehicle is reasonable; and if allowed, should be
subjected to a 40%
contingency. Rademeyer does not agree that this is any notification
for the 40% contingency deduction either
on any amount set out in
Annexure B or on R38 650.00 and as conversion costs. Rademeyer
would also find no reason to reduce
the amount of R38 000.00,
accepted as reasonable by the defendant for the reduction and fusion
operation only because the
plaintiff has expressed no certainty at
this stage that he would go for the operation.
In the result I would find under this heading that an amount of
R1 773,902.00 is reasonable. This is broken down as follows:
Prosthesis and related equipment – R1 697,252.00
Motor car conversion – R38 650.00
Reduction and fusion operation – R38 000.00.
Past Loss of Earnings
[20] The amount claimed under this heading is a sum of R45, 490. The
period covered in the original particulars of claim is for
two years
and 10½ months. That covered the period between the date of
the incident which is 19 August 2004 up to the date
of the issue of
summons which is 13 July 2007. The parties however, in the experts’
reports filed and in presenting their
respective cases, went beyond
the date of the issue of summons. By way of an example, Dr Holmes’,
who gave evidence for the
plaintiff, said the following in his report
dated 12 September 2011:
“
Clearly, Mr Busakwe’s
assumed past loss of earnings would have to be considered on the
basis of his likely pre-morbid earnings
as both a fisherman and a
lower/semi-skilled worker (the latter as an employee in the
structured job market) – the recommendation
being that the
information already provided serve as the point of departure on which
the actuarial calculation could be performed.
That is, in the context
of the earnings Mr Busakwe has generated to date, both as a fisherman
and a fruit picker.”
[21] In view of the manner the parties have conducted the case, as
regards the period covered by the claim for past loss of earnings,
I
see it fair to base the calculation of this loss on the period from
the date of the incident up to July 2007. The parties have
agreed
that at the time of the incident the plaintiff was earning a sum of
R1 600 per month as a fisherman. It is not in dispute
that he
did not work for a period of five months in the year 2004, for three
months in 2005 as a consequence of injuries arising
from the
incident. Notwithstanding the amount of R45,490 claimed, the
plaintiff attempts to show that the net loss was in fact
a sum of R66
570, sum R21 080.00 more than the amount claimed.
[22] The formula proposed for calculating the past lost of earnings
of actuarial calculations by Munro Consulting. It is submitted
that
the calculations by Munro Consulting are based on the amount of R227,
040, that being the amount the plaintiff would have
received where he
not injured. This is calculated on a period beyond July 2007. The
amount of R227,040. is the end product of two
combined scenarios
envisaged where the plaintiff would find a job in the structured job
market and if he were to continue working
for the Fisherman Community
Group. To say the least to get to this figure needs a lot of
speculation. It is based on the assumption
that “in the
uninjured state there is a 40% chance that plaintiff would remain a
fisherman for the rest of his life and a
60% chance that he would
have gone into the formal sector”. I agree that this is hardly
an appropriate formula to use in
determining past loss of earnings.
[23] The plaintiff further proposes that to get to the net past loss
the amount of R227,040. which represents the earnings uninjured,
be
reduced by 50% on the basis that the plaintiff testified that he was
able to produce about half the weight of fish than he would
do while
uninjured. The defendant criticises the plaintiff’s method of
calculation of past loss of income alleging there
is no basis to
justify it. There were months when the plaintiff did not work at all
after the incident and sometimes for reasons
unrelated to the
incident or injuries suffered. He did not for five months in 2004,
for eight months in 2005 and for nine months
in 2006 not necessarily
because of disablement. The 50% subtraction therefore from the fish
caught does not appear justified. There
is also the dimension that
the plaintiff is not able to tell the precise remuneration he got
over the years up to December 2011,
whether for fishing or
fruit-picking, off-loading sardines etc. Another relevant feature in
the calculation is that the fishing
season is about 8 months per
annum. The evidence before court does not establish that the
plaintiff was engaged contradictory to
work for a particular boat and
that he did not as a result of the incident.
[24] My concerns are also that the formula brings in more speculation
than necessary. The plaintiff also submits that in the circumstances
of the plaintiff, post-morbid earnings became higher in terms of
figures than the pre-morbid ones. In view of these difficulties
I
have referred to I find that it would be inappropriate to assess and
calculate past loss of earnings for a period beyond the
date of the
issue of summons. The defendant proposes an amount of R12 977 worked
out on income at the time of the injury, being
R1 600 per month,
capitalised over a period of 8 months. This would not include any
incentive bonus based on performance as well
as refrigeration
entitlements as suggested in the plaintiff’s case. It does
appear to me that this is a formula that is precise
in determining
the past loss of earnings informed by the plaintiff not walking after
the incident for a certain period due to the
injuries he sustained.
That period is said to be about 8 months, precisely a period between
August 2004 and April 2005. That means
there would be no confusion as
to whether he received what by way of remuneration after the
incident, and whether he joined the
labour strike or not and some
other factors, for purposes of past loss of remuneration. That would
also mean that whatever amount
he received as a disability grant
would be taken into account when dealing with loss of income in
general. The figure of R12 977.00
proposed by the defendant, as a
figure capitalised over a period of 8 months, based on plaintiff’s
income at the time of
the incident is not unrealistic. For the sake
of fairness, taking into account things like refrigeration fee and
other incentive
benefits during this period I would think an amount
of R18 000.00 is reasonable. It should be remembered however that
this is calculated
for the period up to the issue of summons.
Future Loss of Earnings and/or loss of Earning Capacity
[25] At the time of the incident the plaintiff was 28yrs old, he
having been born on 10 April 1976. He was, then, employed in the
capacity of fisherman by Fisherman Community Group. As a worker on
the boat his remuneration would be determined by the weight
of fish
caught. That was a seasonal occupation for about 8 months a year. The
employment was not continuous. He would be engaged
depending on
whether the opportunity for work at a particular time arose in the
industry. The plaintiff’s case is that he
was able to find
alternative employment elsewhere when the Eastern Cape Industry had
closed. He would also resort to less paying,
jobs like first
collecting and off-loading of sardines.
[26] As at the time the incident occurred, the plaintiff was earning
in the region of R1600 a month and in addition receiving incentive
bonuses for serving in the top five fishermen. He was also receiving
extra money when working on the refrigeration. Even before
the
incident he expressed determination to leave the fishing industry, to
establish himself in an industry that would, amongst
other things,
allow him to spend meaningful time with his family.
[27] Relying on the report of Dr Holmes, the assumption upon which
Munro Consulting based its calculations for earning capacity
is, as
referred to above, the average of scenarios 1 and 2 where, in
scenario 1, it is assumed that the plaintiff would be able
to
continue working uninjured in structured job market until the age of
65 years or in scenario 2, for Fisherman Community Group
until the
same age. After getting injured the assumption upon which Munro
Consulting based its calculation is that the claimant
will be able to
continue working as a seasonal labourer earning wages of R165 per
week, and working 6 months of every year.
The historical background to this employment as a seasonal labourer
is that the plaintiff has not done anything in his life other
than
working as a fisherman save a short stint when he worked as a fruit
picker. He explained in his testimony that he decided
on fruit
picking as a temporary occupation, as people would, because of
weather conditions when there would, for instance, be strong
winds
not conducive to fishing.
[28] On behalf of the defendant it is submitted that it is unfair to
evaluate the loss of future income using the earnings of the
plaintiff received while engaged in jobs like fruit picking as they
were carried out during short periods while the fishing season
was
over or because of the weather conditions at sea. Another point
argued by the defendant was that the plaintiff indicated on
a number
of occasions and for a number of reasons that he intends leaving the
fishing industry. He is currently attempting to improve
his education
and has so far passed matric and has been attending some training
courses. This would in my view project the plaintiff
as a person who
would compete for a job in the open labour market even though he may
be exposed to tense competition in the light
of his disability.
[29] It is submitted on behalf of the plaintiff by Dr. Holmes that
plaintiff would have worked as a fisherman for a period of time
were
he not injured. Only in the medium to longer term that he would have
sought employment on the open labour market. As a working,
committed
and physically fit and able man he would probably have obtained such
work.
In his report Dr Holmes puts it this way:-
“
Prior to his disablement, Mr
Busakwe had only ever worked as a fisherman. As already indicated, he
was well suited to working in
the trade and would have, certainly in
the short-term, continued to apply his skills as an experienced,
competent and competitive
fisherman.
Importantly, Mr Busakwe also had the potential and
ability to seek alternative employment opportunities in the broader
lower/semi-skilled
job market. Indeed, he did indicate that it was
his intention to seek work opportunities that would have afforded him
both a continuous
income and greater stability of tenure”.
[30] This submission may well confirm the plaintiff’s
wish and determination. It remains speculative whether he would
secure
employment within the medium to long term. The approach I
consider fair and reasonable is the calculation of future loss of
income
from the premise that the claimant was able to make X amount
uninjured while working for Fisherman Community Group and then to
consider what he would be capable of after the injury. It is however
the view of the defendant, as Dr. Lourens so testified, that
the
earning capacity before and after the incident remains the same.
[31]
Johan Lourens, a Clinical Psychologist gave
evidence on behalf of the defendant. His opinion is that the
plaintiff suffered very
little loss of future income, if any at all.
He relies on what he said in his evidence relating to what the
plaintiff received
as remuneration in his injured state. His view is
that the plaintiff has ability and motivation to become something
that will earn
him more than a fisherman’s salary. In terms of
earnings he received better earnings in the period immediately post
morbid
and that is based on motivation he always had. Plaintiff
attributes this to inflationary increases not growth of income in
real
terms. The issue to consider is whether the pre-morbid prospects
the plaintiff had were simply wiped out. The parties disagree sharply
on the question of what prospects still remain after the incident.
[32] Munro Consulting estimates a sum of R1 080 200 as an income
while uninjured. Only a sum of R77 500 is its estimate of what
the
plaintiff can realise as income after the injury. This R77 500
estimate is calculated on the basis that Mr. Holmes is of the
opinion
that the plaintiff’s only option post-morbid is to earn a fruit
picker’s salary which would translate to R77
500 for the rest
of his working life. Dr Holmes considered that he made use of the
fruit picker’s occupation as a barometer
of what the plaintiff
abilities are. He ignored in his appraisal, the amount the plaintiff
received after the incident as he had
to move away from the fishing
scenario. It is my view that employment opportunities available would
only be limited, as far as
plaintiff is concerned, to the extent they
relate to work in a “potentially hazardous environment”.
[33] I am alive to the fact that the kind of injury the plaintiff
suffered does reduce mobility and agility and must therefore
limit
his ability to remain standing for long periods and thus to do
strenuous physical work. However I do not believe that the
neuropsychological and emotional feature like diminished
self-confidence and loss of self-esteem, would significantly affect
his
spirit and ability to work. He appears motivated and able. Dr
Holmes gained the impression that “he was making every effort
possible to adjust to his post-accident circumstances”.
[34] Whether the plaintiff was ill-advised or not, it is a fact that
he resumed work on the boat just about a period less than
a year
after the incident. There is no credible evidence from the plaintiff
as regards the amount of remuneration he received during
this period
which would serve as a guideline as to what remuneration he was
capable of, which would also address the allegation
that plaintiff
was earning more, in terms of figures perhaps after the accident than
before. The issue of up to what age could
he continue to avail
himself as a fisherman was not pertinently canvassed. Some doubt was
however expressed that he would continue
with the intermittent work
up to age 65. Indeed, it is questionable, in my view, that he would
keep that kind of job up to that
age.
[35] The post-morbid figures shown by Dr Lourens, especially between
the years 2007 and 2010, are on the average in excess of R1 600
per month. His argument is that while in his injured state the
plaintiff still showed strong earning capability. I agree that it
would be artificial to speak of earnings in the amount of R77 500
over a period of 30 years whereas over a period of about
6 years the
claimant has practically earned much more with disability and without
the prosthesis to make his life easier.
[36] I have looked at the actuarial calculations based on the
expert’s reports provided. The amounts proposed are so far
apart. The critical factor that brings about this as I see it, is
whether the claimant is in such a state that he is virtually
left
with no earning capacity. In defendant’s favour the
remuneration post-morbid is still capable to produce. Both actuarial
calculations take into account that the claimant may get some other
kind of employment even though it may not be that easy. That
some
what becomes a neutral point.
[37] I consider an amount of R500, 000 a reasonable award less R48,
090 as had for disability grant. I have in this award recognised
that
the loss of half of a foot, still leaves the claimant with
significant earning capacity.
General Damages
[38] As and for general damages plaintiff is claiming R450, 000.00.
In determining the quantum of general damages in personal injury
the
trail court essentially exercise a general discretion. As held in
Southern Insurance Association Limited v Bailley N.O. 1984(1)
SA 98
(A) at 119 G-H:
“
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 Judges view of what is fair in all the
circumstances of the case”.
[39] The claimant got injured at the age of 28 years. The forepart of
his right foot got crushed resulting in a midfoot amputation
of his
right foot at the level of the talus and the cuneiform bones, the
so-called chopart amputation duly the head part of the
foot left.
Straight after the amputation he suffered phantom pain which cleared
later on. Apart from that kind of pain he suffered
excruciating pain
as would be expected from that kind of injury. He walks with a limp
and the right foot is painful is painful
at times. Dr Olivier
testified that notwithstanding the injury “he can stand on the
boat he can function but if he has to
work, he is aware of a balance
problem”. Dr Olivier further reports that:
Clinical Examination
“
The patient presented with an
amputation of the forefoot at the level of the talus and the
cuneiform bones, the so-called Chopart
amputation. A plantar’s
skin was stitched onto the antero-dorsal aspect of the foot with a
transverse operation scar of 5
cm. in length. Callus was present on
the lateral side of the calcaneus as well as on the medial dorsal
aspect. A very tender knob
was present on the plantar surface of the
foot. The ankle movements were normal. The neuro-vascular status was
normal. The patient
can walk barefoot but with a definite limp. With
shoes on his walking is slightly improved but still with a limp. He
cannot run
at all. He can swim but with difficulty because of the
loss of the front part of his right foot. This was the only injury he
sustained
on the 19
th
August 2004”.
He was hospitalised for six days and at the time he was discharged he
had already undergone the ‘chopart amputation. He needs
prosthesis for the rest of his life. He was on crutches for some
months.
[40] Further in his report Dr Olivier remarked:
“
General discussion: shock,
pain and suffering: The shock and pain caused by this foot accident
was intensely severe. It was a crush
injury with partial amputation
of the right foot. After the amputation was completed and the surgery
done, the foot was still painful
for at least two to three weeks and
then the patient developed the so-called ‘phantom pains’
where he felt the fore
part of his foot, especially the pain in that
part caused by the injury for several months after the accident”.
[41] My attention has been drawn to some previous court awards to
provide guidance to a reasonable assessment of general damages.
I
consider the facts in Couryer v Rondalia Assurance Corporation of
S.A. LTD 1968 1 QOD 813 (E) closely comparable to the matter
on hand.
I am of the view though that the claimant in the Couryer case was
more seriously injured that the claimant in the current
case. The
facts in that case were as follows:
“
Plaintiff, a 35 year old man,
a keen golfer and scrambler, had as a result of a collision,
sustained a crushed foot with numerous
factures of the metatarsals
and gross soiling from road dirt and gravel. Secondly he had
fractures of the base of the third and
fourth metacarpals of the
right hand. He also had various wounds and abrasions which added
considerably to his pain and discomfort.
A partial amputation of the
right foot was done. A fortnight later a further operation, a
tenotomy of the Achilles tendon, was
performed. The probabilities
were that a further operation involving a complete amputation of the
foot at the ankle joint level,
known as a Symes amputation, would
have to be performed. The Symes amputation can be equated with a
below the knee operation. The
fracture the right hand healed in a
good position. He had a scar on his right knee.”
In the result I make the following order:
1. Defendant to pay plaintiff the following awards:
1.1 Future Medical Expenses R1 773, 902.00
1.2 Past Loss of Earnings 18, 000.00
1.3 Future Loss of Earnings 451, 910.00
1.4 General Damages
300, 000.00
Total R2 543, 812.00
2. Interest is to accrue on the said amount at the legal
rate of 15,5% per annum payable as from date of the Order until date
of
payment
3. Defendant is to pay plaintiff’s costs of suit,
as taxed or agreed, on the party and party scale. Such costs to
include:
3.1 The cost of photographs;
3.2 The qualifying expenses, if any, of the following:
Dr Oliver;
Dr Holmes;
Mr Nel;
Mr Rademeyer;
Ansie van Zyl;
Mr David Williams;
Munro Consulting;
Mr Breed.
These costs should include the costs of the preparation
of written Heads of Argument.
C. T. SANGONI
JUDGE PRESIDENT
EASTERN CAPE HIGH COURT
For Plaintiff: Adv. L. A. Schubart SC
Instructed by: Messrs Goldberg & De Villiers Attorneys
13 Bird Street
Port Elizabeth
Tel: 041 – 501 9800
For Defendant: Adv. H de la Rey
Instructed by: Visagie Vos Attorneys
C/O Messrs McWilliams & Elliot Inc.
83 Parliament Street
Port Elizabeth
041 – 582 1250
HEARD ON 10 APRIL 2012
DELIVERED ON 13 SEPTEMBER 2012