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[2017] ZAECPEHC 52
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N.H v Member of the Executive Council, Department of Health, Eastern Cape and Another (1717/2011) [2017] ZAECPEHC 52 (24 October 2017)
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NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case
No: 1717/2011
Date
Heard: 1/06/17
Date
Delivered: 24/10/17
In
the matter between:
N
H
Plaintiff
and
MEMBER
OF THE EXECUTIVE COUNCIL,
DEPARTMENT
OF HEALTH, EASTERN
CAPE
First
Defendant
THE
MEDICAL SUPERINTENDENT,
LIVINGSTONE HOSPITAL,
PORT ELIZABETH
Second
Defendant
JUDGMENT
MAKAULA
J
A.
Introduction
:
[1]
The plaintiff issued summons against the defendants claiming various
heads of damages. When the trial commenced before
Roberson J,
the parties sought an order separating the issue of liability from
quantum. Roberson J granted the order and
proceeded to hear the
matter on the issue of liability. Having heard the evidence
Roberson J made the following finding:
“
47. I am therefore
satisfied that the plaintiff proved the breach of the defendant’s
obligation or duty of care as alleged,
and that such breach
caused the condition and sequelae from which she now suffers”.
[2]
The court made the following order:
“
49.1 It is
declared that the defendants are liable for 100% of such damages the
plaintiff may prove”
[3]
The matter served before me on quantum.
B.
Plaintiff’s Evidence
:
[4]
The plaintiff is a 48 year old woman, she got married in 1993, they
were blessed with two children, the youngest of whom is
8 years old.
Her marriage relationship developed problems in its infancy. In
1994 her husband started to be physically
and emotionally abusive
towards her.
[5]
In 2009, the plaintiff, whilst at her home slipped and fell while
holding a cup. The cup broke and cut her on her left
hand,
across the breadth of her palm just below the fingers.
Realising the seriousness of her injury, the plaintiff decided
to go
to Livingstone hospital where she was attended to by the hospital
personnel. She was sutured and discharged.
She was given
tablets for pain. Subsequent to that she attended to a local
clinic which referred her back to the hospital.
The pain did
not subside and she was referred to various doctors. Eventually
her wound healed. The events thereafter
led to the current
claim.
[6]
The abuse became unbearable after the injury to her hand. Her
husband accused her of being useless as she could not perform
her
house chores, wash children and do other duties properly. She
had to be assisted in performing her duties. Whenever
there was
a scuffle her husband would grab her by the injured hand, an act
which rendered her powerless. She decided to divorce
her
husband in 2011. Her psychological state improved thereafter.
The stress became less.
[7]
The plaintiff testified that she was employed since 2007 by the
Department of Sports Recreation, Arts and Culture (the Department)
as
a cleaner. She worked with three other workers. She
occupied a level 2 post. Her duties entailed, cleaning,
scrubbing and mopping floors, lifting of file boxes and arch lever
files in the strong room.
[8]
The injury to her hand left her with a dysfunctional hand. The
little and ring fingers cannot flex. They remain
straight and
affect her when she performs her duties. Her work started to
suffer as she struggled with duties which required
the use of both
hands.
[9]
Due to her condition, her supervisors at work decided to accommodate
her to a less physical and demanding work. She was
assigned to
do level 5 work. Level 5 is a higher position than level 2.
The level 5 work entailed answering the phone,
typing and other
administrative related work. It is less physical and does not require
the strength of her left hand. However,
at times she would
require assistance from her level 2 colleagues who were not always
willing to assist her because they became
jealous.
[10]
She stated that the injury affected her home duties as well.
She has to be a mother to her two minor children who are
eight and
twelve years respectively. She has to cook, clean the house, do
their washing and all the related house chores.
She struggles
with the peeling of vegetables because of lack of full grip on the
left hand. She struggles holding pots.
On one occasion,
she nearly burnt her eight year child when a pot slipped off her
hands and fell on the floor as she was removing
it from the stove.
She battles with wearing clothes and doing her and the children’s
hair because the little finger
gets stuck as it cannot bend.
She normally gets help from her brother and sister in her house
chores. They charge her
a fee for any work done. She
finds it difficult to eat out with people because she cannot handle a
fork and knife.
She gets embarrassed. She has since
withdrawn from socialising with friends.
[11]
She testified as follows about the pain and the discomfort she is
experiences on the injured hand:
“
It is the
discomfort of not being able to use both my hands when I have to do
things that require the use of both hands. I
am struggling with
a lot of discomfort with my left hand. I can deal with the
pain, I can take something for the pain, but
it is the discomfort
that is getting to me”.
[12]
She testified that she is planning to retire at 55 years. She
is experiencing a lot of discomfort and is unable to share
it.
The discomfort affects her psychologically and said in this regard:
“
It is
deteriorating. My life does not just revolve around my work.
After work I still have to go home and play the motherly
role for my
children and I have to do household chores, and everything is just
getting to me
”
.
[13]
Despite her condition, and after divorce, she enrolled to do a one
year certificate in law with the University of South Africa.
She had not yet finished it by the time of her testimony.
[14]
The plaintiff testified that she consulted Ms Hopa who is a clinical
phycologist on 10 November 2010 and 12 December 2011.
On the
first occasion she was suicidal. Ms Hopa admitted her to H
hospital. The reason for being suicidal was as a
result of the
combination of the abuse by her husband and the consequences of her
injured hand. Ms Hopa suggested that the
plaintiff should first
deal with her abusive marriage relationship. She was absent
from work on numerous occasions because
of her marital problem and
injured hand. Her absenteeism led to her being summoned by her
supervisors. In that meeting
she was advised that she should be
careful about her being away from work as that would put her work in
jeopardy. The plaintiff
admitted that she took more than 63
days leave during the period from November 2010 to February 2011.
[15]
Mr A K, an assistant manager at the Department. He confirmed
that the plaintiff’s was called to a meeting because
she was
absent from work on numerous occasions. Present in the meeting
was plaintiff’s immediate supervisor, Ms N N.
The meeting
was to warn her that if she continued taking sick leave, she would
get into trouble.
[16]
Mr K testified that the plaintiff does level 5 instead of level 2
work. He confirmed that the plaintiff was still complaining
about her left hand.
[17]
The fact that the plaintiff was accommodated to do level 5 work
generated a friction between her and her peers who are in level
2, so
testified Mr K. They felt that she was being favoured in doing
administrative work. Mr K confirmed that the plaintiff
may
retire at the age of 55 years but she would be penalised 20% of her
retirement fund. Mr K testified that the plaintiff
exceeded her
sick leave credit at some stage. She was put on incapacity
leave. Mr K knew about the marital problems
of the plaintiff
and that she had psychological problems. The plaintiff used to
complain to him that her injured hand gets
lame because of the typing
and the work she was doing. Ms M is the immediately supervisor
of the plaintiff. She confirmed
the evidence of the plaintiff
and Mr Ki regarding her injury and her position at work. Though
doing level 5 work, she was
paid on the scale of level 2. Her
accommodated duties entailed doing administrative work. She
regarded the plaintiff
as a good dedicated worker. She
confidentially stated that the plaintiff has been recommended for the
appointment to level
5. The process merely awaits budget after
which she would start as a level 5 employee. She confirmed that
the other
level 2 employees complained about her doing administrative
work.
[18]
Ansie Van Zyl is an occupational therapist. Her qualifications
and the fact that she is an expert in the field are common
cause
between the parties. She testified that she used to work as an
occupational therapist at Aurora hospital which is a
physical
rehabilitation centre. She resigned her position as a Head
Occupational Therapist at Aurora hospital and she is
now in private
practice.
[19]
She had been attending to hand injuries for a long time. She
testified that she examined the left hand of the plaintiff.
She
found that it has limited flexion movement. The plaintiff
cannot flex her ring and little finger because they are
stiff.
The third finger can close but the tip of the finger is unable to
touch the palm of the hand. Her observation
were that the:
“
(p)incer grip,
between the left thumb; index and middle fingers was intact.
The left 5
th
finger affects her ability to use the left hand functionally as it
gets in the way and due to the fact that she struggles with
in-hand-manipulation due to the lack of movement in the 4
th
and 5
th
fingers. She cannot perform a ball grip or hook grip with the
left hand”.
She
testified that the plaintiff could not move the fingers because the
tendon is not working. She opined that it is difficult
to
separate a nerve pain which she called a Complex Regional Pain
Syndrome (CRPS) from a mechanical pain. She defined a
mechanical pain as a “
joint
”
pain which is caused when the finger cannot bend and gets in the way
like when one unlocks a door.
[20]
She testified as follows:
“
(a) human being is
a closed unit, . . . . we cannot put her finger or her hand separate
from her body and say it functions separately
from her body. It
is impossible, we cannot do that . . . . I really do understand
that it is very difficult to separate
it, but because functionally
she cannot bend the finger, she is knocking it, and that is causing a
nerve pain, so how are we going
to separate the two? I find it
extremely difficult”.
I
may state at this stage that Ian Meyer, a clinical psychologist
agrees with her testimony in this regard. She stated that
the
mechanical pain, which is as a result of tendon damage, comes from
the small joints in the fingers and hand.
[21]
She recommended that the plaintiff be allowed the services of a
domestic worker for at least one day per week at a going pay
rate of
R160.00 per day. She stated that the functional implications of
her inability to use the hand completely are playing
a major role in
her wanting to retire at 55 years. In a nutshell her evidence
is to the effect that the plaintiff would have
difficulties, either
at work or at home, to use her left hand. She further opined
that there is no intervention that can
be done at the moment.
According to her, nothing could be done to bring functionality to the
two fingers. She stated
that a physiotherapist cannot do a
re-adhesion because that is a surgical procedure which was supposed
to have been done immediately
after surgery.
[22]
Mr Ian Meyer is a clinical psychologist and was certified by both
parties as an expert in his field. He prepared a report
in
respect of the effects of the hand injury and the tendon damage
sustained by the plaintiff. He had two sessions with the
plaintiff in 2016 and 20 March 2017. On the first occasion, he
spent seven hours with the plaintiff and her children.
On the
second occasion he took two and a half hours with her.
[23]
As a consequence of the consultations, he found that the plaintiff
had three categories of
sequelae
i.e. pain, functional deficits and psychological problems. He
opined that the effect of the sequelae of the hand injury is
that it
affected her wellbeing. Secondly from the psychological point
of view, there are two diagnoses that the plaintiff
tenders namely
(a) a symptomatic system disorder which was initially referred to as
pain disorder and (b) an adjustment disorder
with anxiety and
intermillent dysphoric or depressed mood.
[24]
Mr Meyer described the hand injury as a watershed event in the life
of the plaintiff. He did not down play the effect
of the
physical and verbal abuse the plaintiff suffered in the hands of her
husband, so he testified. He further testified
that the effects
of the abusive marriage relationship subsided after the plaintiff
divorced her abusive husband.
[25]
He agreed with Ms Van Zyl, that it is not easy to differentiate
between a nerve pain and a mechanical pain. He testified
that
the plaintiff was socially self-conscious and socially withdrawn
because she cannot eat properly with a fork and knife in
the company
of others because she gets embarrassed. The fact that her work or key
performance areas have been adjusted is testimony
to the fact that
she is handicapped, so he said.
[26]
He stated that the plaintiff would in future, ‘
need
15 sessions of individual, relationship, and family therapy
respectfully at a current cost (Heath Man Tariff) of R1030.20 (VAT
inclusive) per session’
.
[27]
Mr Meyer said he could not find evidence of malingering contrary to
the finding of the clinical psychologist, Mr Annandale.
He
testified that he did a cognitive malingering test twice and could
not find that the plaintiff was malingering about the nature
and
extent of the disfunctioning of her hand. In this regard he
made the following comment:
“
(e)ven Mr
Annandale himself does not come to an unequivocal conclusion in that
regard, it is couched in terms of possibilities and
all soughts of
moderating adjectives, but malingerers typically do not improve they
get worse, because they have to impress upon
the court how bad things
are in order to generate My ’Lord’s generosity of award,
so they do not get better . . . they
do not improve at work.
They know that that is the major part of the claim. They have
to get worse. And generally
when you are malingering you do not
do so on a part basis, there is much more generalised approach to
malingering which leaves
me with this contradictory conclusion in Mr
Annandale’s report that on one hand she was a co-operative and
kind of honest
witness. I do not think he quite uses that word
. . .”
[28]
He further testified that the test he conducted and the supporting
evidence, he independently received from the plaintiff’s
claim
even do not support the finding of Mr Annandale on malingering.
He stated that the conduct of the plaintiff post-injury,
of getting a
learner’s licence, and improving her qualifications is
completely different from a malingerer who would deliberately
impress
upon those around and particularly the court that they are so injured
and debilitated that they are suffering. The
plaintiff is the
opposite and quite different, she has inner strength with a resolve
to improve herself than seek pity from others.
He did not find
from the plaintiff what Mr Annandale says in his report that she
potrays a sick and victim attitude.
[29]
Mr Meyer interpreted the report by Dr Reid that the plaintiff is fit
to continue with her employment, and his diagnoses that
the plaintiff
as overly depressed as meaning that she had a psychiatric disorder.
The fact that the plaintiff is currently
struggling with her work and
her mental state of health, justifies that she is likely to want to
retire early, so opined by Mr
Meyer. He, however, deferred the
ability to work until 65 years to an industrial psychologist.
[30]
Mr Meyer was extensively cross-examined on the reports of Mr
Annandale and his findings that:
“
Ms H’s
MMPI – II profile strongly suggests that she appears prone to
over report and enhances her negative emotional
and physical
systems
”.
[31]
The plaintiff had testified that at Dr van Daalens’ rooms, she
was interviewed by a lady. It turned out during
the trial that
the lady she meant and met was Ms Janet Clair Burns who is a
qualified counselling phycologist. Ms Burns testified
that she
was contacted by the receptionist at the rooms of Dr van Daalen
seeking an appointment for her to see the plaintiff.
Indeed, the plaintiff arrived at her office. She conducted an
interview with her based on a standardised questionnaire which
was
prepared by Dr van Daalen. She testified that the questionnaire
is in a structured format. It contains information that
is necessary
for Dr van Daalen to compile a report. It requires factual and
biographical details from the plaintiff.
She completed the
questionnaire and sent it to a typist who typed in the information
and sent it back to her for verification.
She certified it to
be factually correct and sent it to Dr van Daalen. She
testified that she has no influence at all to
the report of Dr van
Daalen.
[32]
Dr Hendrik Johannes van Daalen testified that he is an Industrial
Phycologist. He compiled three reports in respect of
the
plaintiff. When he received instructions, he requested
counselling psychologist, Ms Burns to gather facts from the
plaintiff.
He, because of the inconvenience to his patients and
various other factors, designed a structured interview form which has
to be
followed and filled in when facts are gattered from patients.
He uses three counselling phycologist in this regard.
Ms Burns
is one of them and the one who interviewed the plaintiff based on the
form. Having received the form, he compiled
his report and made
his findings. The reports are done by him based on the facts
gathered through the questionnaire.
[33]
Dr Van Daalen concluded as follows:
“
Having considered
all the information made available to me, my opinion is that
Ms
H’s ability to compete in the open labour market has been
severely compromised and should she lose her current job,
she will
certainly find it very difficult to secure employment in the future
.
Although Ms H is theoretically not totally unemployable in the open
labour market, should she lose her current job,
her
future employment, in my opinion, will rely on a sympathetic approach
from a future employer
.
Indeed, it is evident that her injury has a significant impact on her
current work productivity. Her supervisor, Ms
N, explained that
her job description has been changed in order that Ms H can cope,
considering her physical limitations.
In addition, my view is
that although Ms H is now, after this accident, still employed at her
pre-accident employer, albeit in a
position especially altered to
suit her limitations, she would in all probability not be able to
secure work should she lose her
current employment. And
further, in respect of her current employment, in my view is that a
higher contingency for unemployment
be applied for her future.
Although this is rather difficult to quantify, my view is that a
contingency of between 20% and
30% be accepted for her to become
unemployed in the future. Continuous use of analgesics, chronic
endurance of pain and discomfort,
the various psychological sequelae
as discussed by Mr Meyer, Clinical Psychologist, and the further
psychological effects of continuously
feeling inadequate in the work
context all add up to despondency
and
the eventual possible decision to “call it a day” and to
take an early retirement
”.
(Emphasis added)
[34]
He before compiling the third report, had an opportunity to consult
with the plaintiff. The plaintiff expressed a desire
to go on
early pension at the age of 55 years because of the pain and
discomfort she experiences when performing her duties.
[35]
He conceded under cross-examination, as did Ms van Zyl and Mr Meyer,
that there is no medical opinion which states that the
plaintiff
would have to take an early retirement on medical grounds.
However he testified as follows in this regard:
“
. . . the OT will
for instance tell you what grip strength she has and so on, and what
kind of jobs she can do or not. But
regarding her chances to
find work and this kind of thing and perhaps early retirement, they
would defer to an industrial psychologist
to take everything together
and to contextualise (this person with the challenges of the world of
work)”.
[36]
Mr Willem Johannes Annandale is a registered clinical and counselling
psychologist who testified on behalf of the defendant.
He is
still to register as neuro-psychologist. He consulted the
plaintiff on 9 February 2017 for six hours. He further
had
regard to various expert reports compiled on behalf of the
plaintiff. He was at court when the plaintiff testified.
He also had regard to the transcribed evidence of Mr Meyer.
[37]
Mr Annandale asked an associate of his to conduct an intelligence IQ
test on the plaintiff. He consulted with the plaintiff
thereafter. He found that the plaintiff was prone to
over-react. He determined that the plaintiff was a relatively
intelligent person whose cognitive performance is not significantly
impeded by emotional distress. That is consistent with
the
plaintiff successfully completing her matric and the furthering of
her studies after her injury, so he testified.
[38]
Mr Annandale conducted a test called Minnesota for Multiphasic
Personality Questionnaire (MMP 1-11). He explained the
import
of the test thus:
“
(a)part from
providing a reliable and credible assessment of a spectrum of
emotional aspects. The MMP 1-11 is renowned for
its ability to
control various forms of false reporting, including malingering”.
He
explained how the test is conducted and the reading of the results.
He stated that most of the authors in this form of
test found that it
is able to detect sematic or acting-hurt rather than psychiatric or
malingering. It is useful in patients
claiming personal injury
and has proved more sensinsitive to symptom exaggeration than other
validity scales test. Having
done the test on the plaintiff, he
found that:
“
. . . Ms H’s
MMP 1-11 profile strongly suggests that she appears
prone
to over-report and enhance her negative emotional and physical
symptoms
.
Thus does not imply that her MMP12 profile should be dismissed as
invalid, although some caution is advised when interpreting
it. . .
(a)ccording to the MMP 1-11, Ms H clearly
has
a tendency to maximize negatives and minimise positives
.
One might call her cynical, with
a
natural inclination to lean to the negative side of objectivity
.
This is consistent with her self-proclaimed poor self-image and low
confidence and can be traced back to a life filled with
various
disappointments, disillusionments and hurts”. (emphasis
added)
[39]
Mr Annadale critized Mr Meyer for having used a false choice test
because he claimed that was a memory test, which as I understood
him,
would have been relevant if the plaintiff had sustained a head
injury. He opined that there were different types of
malingering and therefore one has to use a relevant test to diagnose
a kind of malingering sort to be detected. In the instant
matter, as stated before, the tests was relevant to pain and not
memory deficit, so he testified.
[40]
Mr Annandale, having heard a combination of collateral information of
clinical interviews and neuropsychological tests, found
that the
plaintiff suffers from DSM-5 which encompasses somatic symptoms
disorder which is (SSD). He described SSD in a nutshell
as
follows:
“
40.1A. One or more
somatic symptoms that are distressing or result in significant
disruption of daily life.
B. Excessive thoughts,
feelings or behaviours related to the somatic symptoms or associated
health concerns as manifested by at
least one of the following:
1. Disproportionate and
persistent thoughts about the seriousness of one’s symptoms.
2. Persistently high
level of anxiety devoted to these symptoms or health concerns.
3. Excessive time and
energy devoted to these symptoms or health concerns.
C. Although any one
somatic symptom may not be continuously present, the state
of being symptomatic is persistent (six
months)”.
[41]
Mr Annadale concluded that the plaintiff’s pain symptoms seem
to have an element of irrational overreactions, false beliefs,
maladaptive thoughts or misinterpretations. He opined that the
plaintiff was not leading a perfect and a successful life
at the time
of the accident following a cascade of problems, for example, she was
already struggling for about four years or more
with a very unhappy
and increasingly abusive marital relationship. The plaintiff
appeared as somebody who was ready to assume
“a sick roll”
or who was looking for an escape from insurmountable problems.
She came from a dysfunctional childhood
environment and displayed a
spectrum of traits typically associated with SSD, so he concluded.
[42]
Mr Annadale disagreed with Mr Meyer’s diagnoses of Adjustment
Disorder mainly for the following reasons:
“
Criterion A
requires the development of emotional or behavioural symptoms in
response to a stressor occurring within three months
of the onset of
the stressor. It is notable that more than two years after the
injury, no reference to its influence is made
by any Psychologist,
Psychiatrist or the psychiatric clinic involved in the treatment of
her serious anxiety and depression at
the time. Instead, the
traumatic marriage was repeatedly identified as stressor. If an
Adjustment Disorder is diagnosed,
then it appears to be more correct
to regard the abuse and divorce as the cause”.
[43]
Mr Annadale opined as follows:
“
. . .
her
career and earning capacity does not appear to be in jeopardy
.
The severity of her emotional and interpersonal difficulties are
unfortunately in doubt. It is possibly overly emphasised
(as
indicated by the MMPI-II) and also not clearly the result mainly of
the injury. Multiple causes have been identified,
including a
dysfunctional childhood home and a very traumatic and abusive marital
relationship, the onset of which was well before
the injury.
The extent to which the abuse was worsened by the accident’s
sequelae (e.g. impaired ability to perform
household chores) requires
careful consideration, but there is a complete lack of supporting
evidence from treatment records from
her period of deepest emotional
distress”.
[44]
Mr Annadale conceded that in respect of general damages, clearly the
plaintiff sustained significant physical pain and discomfort
including surgery after the accident and is still experiencing pain
and discomfort on a daily basis. He opined that the SSD
diagnosis is consistent with the apparent consensus that she is
probably over-emphasing the intensity of pain and discomfort -
a
trend that needs to be noted when considering financial rewards.
He further stated that it is clear from a psychological
perspective
that there was a loss of social amenities basing that on the fact
that she has become very withdrawn with a market
loss of social
interaction. He concluded that Ms H has little remaining
sources of enjoyment of life but that should be determined
by
striking a balance between the extent the injury is solely to blame
and the ratio attributed by her abusive marriage and divorce.
He further concluded by stating that according to him the applicant’s
relationship with her husband is the major stressor
and contributor
to her distress. In respect of future medical expenses he
concluded that:
·
“
A
psychiatrist is best equipped to assist her psychotropic medication.
Psychiatric consultations are in the region of R1 100.00
each, and
follow-ups would be required every six months. Medication would
probably not exceed R500.00 per month.
·
A protocol
of eighteen consultations of psychotherapy is advised, at a cost of
roughly R1000.00 per hourly consultation. A
unified protocol is
proposed, applicable to the full range of emotional disorders”.
[45]
It is worth mentioning that Mr Annadale testified that he sees no
reason why the plaintiff should retire early due to her mental
state. He testified that she is actually improving and is on an
upward compared to the year 2010. He is of the view
that the
plaintiff has improved and is coping relatively well like how she
handled the death of her father. He disagreed
with the evidence
of Mr Meyer that the plaintiff is actually deteriorating in her
mental state. He disagreed further with
Mr Meyer that the
injury was a “
watershed
event
”
in her life.
[46]
Under cross-examination he agreed with the opinion of Dr van Daalen
when he testified that most people, with injury like the
one
sustained by the plaintiff, normally “
called
it a day
”
on the basis that “
I
could not take it anymore
”.
But he said those are mostly people with head injuries. He did
not agree necessarily that is a reasonable thing
to do.
[47]
Dr Simon Kesler testified as a neurologist on behalf of the
defendant. He confirmed that he consulted with the plaintiff
and compiled a report on 7 March 2017. At the time he testified
he had read through the evidence of the plaintiff as well
as that of
Ms Ansie Van Zyl. He further had regard to the report of Mr
Annadale. He obtained the history of the injury from
the
Livingstone hospital medical records and from the plaintiff at the
time of consultation. He further obtained the history
of the
employment of the applicant from her as well as the abusive marital
relationship she experience in the hands of her husband.
[48]
Dr Kesler examined the plaintiff’s hand and found that she had
immobility of the two fingers i.e. the little left finger
and the
ring finger. He opined that it is likely that the plaintiff
severed the common digital nerve which carries sensation
from the
lateral aspect of the little finger and the medial aspect of the ring
finger in the injury. He further stated that
the numbness in
the area is due to trauma and would not have been salvageable.
He testified that the nerves in a finger are
really small and it
would have been difficult for any surgeon to suture them together.
Having done so, there would have been
no guarantee of restoration of
the sensation of those fingers. He testified that the numbness
in the area is not a significant
disability to the hand function on
its own. However, the flexor tendons to the little finger and
ring fingers where also
damaged or severed in the laceration. A
delay in the specialist exploration and repair has left the plaintiff
with a partial
dysfunctional hand, so he opined. She cannot
flex her little and ring fingers to make a fist and her grip strength
is diminished.
He testified that is a significant disability to
her hand function. He testified that a little touch on the
little and ring
finger provokes an unpleasant sensation in the little
and middle aspect of the ring finger. He confirmed the opinion
of Dr
MacKenzie that the plaintiff will remain approximately 12%
impaired (i.e. whole person) for the remainder of her life.
That
reflects the extent of her compromised capacity to manage
mundane activities of daily living.
[49]
He averred that the CRPS is an idiosyncratic reaction and is not as a
result of negligence. The plaintiff would in any
way have
developed that pain syndrome regardless the delay in the repair of
her tendons. He further testified the CPRS is
a condition which
is sometimes misunderstood because it occurs even after a trivial
injury or surgery. He testified that
it is unpredictable as to
who may suffer from this syndrome but it is predominantly experienced
by women than men. He further
testified that the mechanical
pain referred to by Ms Van Zyl is also part of the syndrome and there
is always a delay in its diagnoses.
It is uncommon for patients
to take a long time to feel the pain. Such a pain can even
result from small cuts. He testified
that the delay in the
diagnosis of such a syndrome results in it being chronic. He
stated that if one were able to separate
the physical disability of
the inactive two fingers and the nerve damage, then he believes that
the disability would not be a major
issue. The plaintiff would
have been able to use her hand albeit not as perfectly as before if
it was diagnosed early hence
he concluded that it was not a major
disability because the left hand is her non-dominant hand. He
ruled out the possibility
of her undergoing occupational therapy and
or psychotherapy because he is of the view that it would be very
painful for her to
undertake such process. Furthermore
painkillers are generally not of any help in such conditions.
[50]
He conceded under cross-examination that the dysfunction on the left
hand would hamper her in doing her hair, household chores,
typing,
cooking etc. In fact, he conceded that it would be difficult
for her to do all the work which requires the use of
both hands.
Despite such concessions, he opined that the significant functional
disturbance would not have been that much if it
was not for the nerve
damage and consequences thereof. He said in respect of the
pain:
“
I believe it is
part of the reflex sympathetic dystrophy because at this late stage a
traumatised tendon would be no longer painful,
there may be
dysfunction and she may not be able to move because the tendon is not
working, but so many years after the event it
is not likely to be
painful at this stage”.
[51]
Mrs Zietsman for the defendants referred at lengths in her heads of
argument and
viva
voce
argument
to the various amendments to the particulars of claim by the
plaintiff. The latest amendment occurred on the first
day of
the trial. The amendments were not objected to and I therefore,
am of the view that, I am not going to refer extensively,
safe to say
that the plaintiff, in a nutshell increased the amounts claimed on
various heads of damages on each occasion of the
amendment.
Furthermore, the plaintiff claimed for CRPS which was related to the
injury sustained by the plaintiff when she
fell on the cup.
[52]
The defendant was allowed to amend its plea especially on the last
occasion. In its amended plea, the defendant denies
the quantum
of the plaintiff’s claim and placed the issue of foreseeability
and causation in depute. Concisely put,
the defendants pleaded
that the CRPS and its sequelae and the alleged psychological
dysfunction were not reasonably foreseeable
and causatively connected
to the negligence of the defendants. Relying on the judgment on
the merits, the defendant argued
that this court would have to decide
whether
“
.
. . the plaintiff proved the breach of the defendant’s
obligation or duty of care as alleged, and that such breach caused
the conditions and sequelae from which she now suffers”
could
ever be interpreted to include the condition and sequelae as in the
plaintiff’s amended particulars of claim.
The defendants
are of the view that the plaintiff failed to establish that
especially in the light of the concession made in the
pre-trial
conference minute dated 24 March 2017 that the CRPS diagnosed by both
neurologists is not related to the negligence of
the defendants.
In sum, the defendants argued that the condition and sequelae that
the plaintiff is allegedly suffering from
was not reasonably
foreseeable and causatively linked to the wrongful conduct of the
defendants.
[53]
What is common cause in this matter is that, the defendant’s,
employees failed to operate and repair the damaged tendons.
All
the experts including the neurologists are
ad
idem
in
that respect. As a result of that failure, the plaintiff
remained with two of her fingers unable to flex. They remain
straight and pointed. The hand as a result thereof is
dysfunctional. It is further common cause amongst all the
specialists
that she cannot use her injured hand in instances where
both hands have to be used especially in lifting objects when cooking
etc.
She cannot dress her hair, children, eat with a fork and
knife properly because the two fingers “
get
in the way
”
as stated by Ms Van Zyl and conceded to by Mr Annadale and Dr
Kesler. The latter admitted further that it would be
difficult
for the plaintiff to do work which requires the use of both hands.
[54]
Reference at length by the defendants, in argument, to CRPS eludes me
especially because the plaintiff has conceded that it
should be
excluded. It relates to the nerve damage. This in turn is
unrelated to the defendant’s negligence.
The repeated
mention of pain by the plaintiff to the various experts for the past
seven years, as contended for by the defendant
should be of no moment
in the light of plaintiff’s concession. As quoted by the
defendant’s in the heads of argument
the plaintiff herself,
stated as follows:
“
I can deal with
the pain, I can take something for the pain,
but
it is the discomfort that is getting to me
”.
(Emphasis added)
[55]
The only neurologist who testified is Dr Kesler on behalf of the
defendant. He testified that the CRPS is as a result
of the
nerve damage consequent upon the “
cut
” caused by
the tea cup. He opined that if the problem was the severed
tendons, the plaintiff would not be suffering
from pain. The
pain should have subsided by now. As stated above he disagrees
with Ms Van Zyl that the mechanical pain
is as a result of the
unattended tendons. I have no reason not to accept his evidence
in this regard. He went to an
extent of stating that the pain
the plaintiff experiences when she tries to bend the two injured
fingers, is as a result of CRPS.
Therefore, it cannot be
ascribed to the negligence of the defendant. He however,
testified that the dysfunction of the injured
hand would hamper her
in her duties both at work and at home especially where the use of
both hands is required. He was of
the opinion that after the
injury the plaintiff would have been in pain for a period of three to
four weeks after which the pain
should have subsided. I
therefore, am of the view that this should be taken into account when
assessing general damages.
Dr Kesler agreed with the estimation
of Dr McKenzie with regard to the plaintiff’s whole person
impairment of approximately
12%.
C.
Future Loss of Income
:
[56]
Evidence in this regard comes from the plaintiff. She testified
that she wants to retire at 55 years because of the dysfunctional
hand “
that
is getting to me”
and as referred to in paragraph 13 above. She in unable to
share the discomfort. Other than those sentiments in her
evidence, she did not state any further reason to want to retire at
55 years.
[57]
Ms Van Zyl stated categorically that it is not easy to separate a
nerve pain from a mechanical pain because the whole body
operates as
a unit. Mr Meyer agreed with Ms Van Zyl. She testified
that her opinion is that it is reasonable for the
plaintiff to retire
at 55 years because she continues to struggle with her work even
though her key performance areas have been
adjusted due to the
various difficulties she experiences daily.
[58]
Dr Van Daalen concluded that the:
“
(c)ontinuous
use of analgesics,
chronic endurance of pain and discomfort, the various psychological
sequelae as discussed by Mr Meyer, Clinical
Psychologist, and the
further psychological effects of continuously feeling inadequate in
the work context all add up to despondency
and the,
eventual
possible decision to “call it a day” and take an easily
(sic) retirement
”.
(Emphasis
added).
[59]
Mr Annandale agreed with the the attitude of “
calling
it a day”
or
“
I
could not take it anymore”
which
is normally from people with head injuries, but he did not agree with
the plaintiff taking early retirement because it is
not a reasonable
thing to do.
[60]
The attitude to “
call
it a day”
is not based on medical grounds. If the plaintiff decides to
retire at 55 years, that would be a decision which is based
on the
discomfort she is experiencing when she uses her left hand. It
would not be based on her inability to do her work,
which is 80%
typing. The discomfort does not mean and has never been found
that it renders her unable to perform her work.
She still has
seven or so years to reach age 55. She has been promoted to a
less demanding job which, apart from typing,
is less demanding and
weight bearing according to Ms M and Mr K testified. Ms M did
not complain about her work nor did Mr
K, bearing in mind that she
was injured in 2009.
[61]
Dr Kesler, testified that the mechanical pain referred to by Ms Van
Zyl is part of CRPS and there is always a delay in its
diagnosis.
His emphasis was that if it was possible to separate the CRPS,
plaintiff would be able, without any pain, to use
her left hand
albeit not perfectly. He testified that a traumatised tendon
(as suffered by the plaintiff) would not present
pain at all after so
many years. The pain is from the syndrome and not the
traumatised tendons.
[62]
I have dealt with the analysis in respect of what the experts agree
and disagree on. The issue of the psychological consequences
of
the dysfunctional hand shall in future be dealt with by psychological
counselling therapy which has been argued and proved would
be an
amount of R9550.00.
[63]
It is further established that the plaintiff has lost the optimal use
of the left hand due to the severed tendons. It
is common cause
between the parties that the plaintiff is able to perform her duties
(which are now less physical and weight bearing)
well. There is
no evidence tendered to the contrary, what is clear is that there is
some measure of discomfort because the
two fingers obstruct her in
performing duties which require the full strength of the left hand.
However, there is no evidence
that because of the injury she does not
perform to the satisfaction of her superiors or her employer for that
matter. There
is no threat to her work that she may lose her
employment due to that. Mr K advised that if she so decides,
she is likely
to lose 20% of her pension for retiring at 55 years.
Dr Van Daalen, though admitting that people with head injuries
normally
decide to “
call
it a day”
did not agree that it is a reasonable thing to do. Dr Kesler
was steadfast that the tendon damage should not present the
plaintiff
with pain after such a long time. The pain comes from the nerve
damage which resulted in the CRPS. He does
not opine that the
effect thereof would lead to the plaintiff retiring at 55 years.
[64]
Furthermore, both Ms Van Zyl and Mr Meyer did not state in their
reports that the plaintiff would have to retire at the age
of 55
years. If the plaintiff was to retire earlier, such a decision
should be on medical grounds. That has been conceded
by both Mr
Meyer and Dr Van Daalen. The plaintiff has been able to work,
albeit with the discomfort from the date of the
injury in 2009.
She is prepared to carry on until the age of 55 years which is 7
years henceforth. On what basis therefore
would, when she
reaches 55 years decide to call it a day. She has been
accommodated at work to a less demanding job as stated
before.
It is therefore, not understandable why at the age of 55 the
plaintiff would simply call it a day. I am not
convinced that
the plaintiff, because of the negligence of the defendants, would
suffer loss of future income. The plaintiff
did not suffer any
past loss of earnings because she received her salary. It is
inconceivable that she should be compensated
for future loss of
income based on a decision to just call it a day. I have
analysed the evidence and the expert reports
filed and have not been
able to find the reason why at age 55, she would suddenly call it a
day. The discomfort has always
been there since 2009. It
eludes me why would that feeling wait until that period. What
is apparent is that any good
employee can retire at age 55 years on
condition that she/he is prepared to take the penalties as Mr K
testified. Both Ms
M and Mr K testified that in the current key
performance areas there is no threat that she may lose her job.
She seems to
be coping well.
D.
Future Loss of a Domestic Worker
:
[65]
Ms Van Zyl’s undisputed evidence is that the plaintiff shall
require the services of a domestic worker due to the dysfunctional
hand at least once a week at a cost of R160.00 per day.
[66]
The defendant concedes this, but submitted that due to the difficulty
in separating the CRPS and the mechanical pain, the award
should be
apportioned by 50%. I disagree with this submission. It
is common cause that such services are not required
due to the pain
the plaintiff is experiencing. She experiences difficulty in
doing the house hold chores because the two
injured fingers “
get
in the way”
. She nearly burnt her child not because
of the pain but because of lack of grip on the injured hand.
There is no evidence
that establishes that she is unable to do her
house chores because of the pain. I find no justification for
the apportionment
thereof.
E.
General Damages
:
[67]
I have been referred by both parties to various decisions which were
on point and were of assistance to me in arriving at a
reasonable
amount. Having regard to those decisions and the circumstances
of the case I am of the view that, a reasonable
award would be an
amount of R350 000.00.
F.
Costs
:
[68]
In awarding costs, I have to have regard to the fact that the
plaintiff employed two counsel. Having regard to the merits
of
the matter especially the thin dividing line between the injuries
sustained by the plaintiff as a result of falling on a tea
cup and
its sequelae and the damages and the sequelae caused by the
negligence of the defendants, the employment of two counsel
is not
unreasonable.
[69]
Consequently, I make the following order:
1. The defendant is to
pay an amount of R516 720.00, made up as follows:
1.1 R9 550.00 in respect
of psychotherapy.
1.2 R157 170.00 for a
domestic worker.
1.3 R350 000.00 in
respect of general damages.
2. The defendant shall
pay interest on the aforesaid amount of R516 720.00 at the prescribed
rate of interest calculated from a
date thirty (30) days after the
date of this order to the date of payment.
3. That the defendant is
ordered to pay the plaintiffs costs of suit and any costs attendant
upon the payment of the amount referred
to in paragraph 1 above as
taxed or argued upon on a party and party scale together with
interests calculated thereon at the prescribed
legal rate as from
thirty (30) days after the date of taxation or agreement until date
of payment, such costs to include the qualifying
and witness fees if
any of:
3.1 Ansie Van Zyl,
occupational therapist.
3.2 Mr I Meyer, Clinical
Psychologist.
3.3 Dr H.J. Van Daalen,
Industrial Psychologist.
3.4 Munro Forensic
Actuaries.
4. The costs shall
include the costs of two counsel.
5. The plaintiff’s
claim of loss of future earnings is dismissed with costs and such
costs to include the qualifying expenses
and witness fees in respect
of:
5.1 Mr W.J Annandale,
Clinical Neuropsychologist.
5.2 Dr S Kesler,
Neurologist.
6. Interest is to be
calculated at the prescribed rate of interest payable as from thirty
(30) days after the date of taxation or
agreement until the date of
payment.
___________________
M
MAKAULA
Judge
of the High Court
For
the Plaintiff: Adv PH Mouton & Adv N Barnard
Port
Elizabeth
Instructed
by: Morne Struwig Attorneys
Port
Elizabeth
For
the Defendant: Adv T Zietsman
Instructed
by: State Attorneys
Port
Elizabeth
Date
heard: 1 June 2017
Date
delivered: 24 October 2017