About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2019
>>
[2019] ZANCHC 8
|
|
Schutte v Road Accident Fund (378/2009) [2019] ZANCHC 8 (8 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO.: 378/2009
Date
heard: 15-03-2018
Date
delivered: 08-03-2019
In
the matter between:
Erasmus Albertus Schutte
Plaintiff
And
The
Road Accident Fund
Defendant
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
The
plaintiff, who at the time was 20 years old, sustained certain bodily
injuries as a result of a motor vehicle accident which
occurred on 6
March 2004. The merits of the plaintiff’s claim were
settled on the basis of a 50% apportionment of liability.
The
only issues left to be determined relate to the quantum of general
damages and the plaintiff’s claim regarding loss of
earnings.
2.
At
the time of the accident, the plaintiff was in his second year as an
apprentice electrician with the Department of Water Affairs
in Jan
Kempdorp, having matriculated in 2002. Before the accident he
had achieved his N1 qualification, but was unsuccessful
thereafter in
achieving either the N2 or N3 qualification. He did however
pass the electrician trade test during 2009 and
obtained his
tradesmanship licence. He thereafter left the Department of
Water Affairs and attempted to do electrical work
for his own
account, but after about a year he took up employment as an
electrician with Olam SA, a factory processing peanuts
and pecan
nuts. After about 3 years at Olam SA, the plaintiff obtained
employment at the Pokwane Municipality (the Municipality),
where he
worked as an electrician for about 3 years – from 2014 until
March 2017, when he resigned from that position.
At the time of
the quantum trial which commenced during August 2017, he was employed
as general foreman, at a much reduced salary,
at a construction
firm. His duties included
inter
alia
,
transporting the workers, placing orders and minor electrical work.
The plaintiff attributes the downward spiral in his
career path to
the injuries he sustained in the motor vehicle accident – more
specifically injuries to his brain and back.
I will revert to
his evidence in this regard in due course.
3.
Whereas
the brain injury and its sequelae are largely common cause, the
plaintiff’s back injury is the major bone of contention
between
the parties as the defendant denies its causal link to the motor
vehicle accident. At this stage I turn to the treatment
of the
plaintiff, as can be gleaned from the hospital records.
4.
After
the accident the plaintiff was admitted to the Jan Kempdorp hospital
with head injuries and lacerations. There he was
stabilised and
transferred to the Kimberley Medi-Clinic. The notes of the
neurosurgeon who assessed him there shows that
he had a Glascow coma
count of 11/15. He was referred for a CAT scan of which the
reported findings were of left hemisphere
swelling and a subarachnoid
haemorrhage. X-rays of the plaintiff’s lumbar spine were
also taken. The plaintiff
was treated in the intensive care
unit of the hospital for four days while he was in a coma. When
he regained consciousness
he was transferred to a general ward after
which he was discharged.
5.
The
following witnesses testified on behalf of the plaintiff: Dr H
Relling, a neurosurgeon; Mr Ben Jannecke, a clinical psychologist;
Ms
Mia Vermaak, an occupational therapist; Dr Everd Jacobs an industrial
psychologist; the plaintiff; and Mr Lucky Domingo.
6.
On
behalf of the defendant the following witnesses testified: Ms Esther
Cloete an occupational therapist; Dr Shafik Parker, a neurosurgeon;
Mr Piet Crous, an industrial psychologist; Prof Alan Bryer, a
neurologist; and Mr Joseph Ndlazi.
7.
I
proceed with the evidence of the plaintiff. At the time of the
trial he was 33 years old and had been married for some 3½
years. He cannot remember anything about the accident or the
time he had spent in hospital. His first memory after
the
accident is when he returned home after his discharge from hospital.
At that stage he experienced pain over his body
generally and had a
headache. He returned to work at the Department of Water
Affairs after about 6 weeks.
8.
T
he
plaintiff states that he was never the same person after the
accident. He had become emotional and aggressive, suffered
from
headaches on an almost daily basis and had also become forgetful.
At present, some 13½ years after the accident
he still becomes
very emotional and experiences aggression, especially while driving
and towards other motorists.
9.
He
had become engaged to a young lady some time after the accident but
she ended the relationship a few years later because she
refused to
put up with his aggression and rudeness. He started dating his
wife during 2009, a relationship which has endured.
10.
The
plaintiff testified that he suffered from backache during the first
year after the accident. The backache dissipated but
returned
during about 2012/2013. Initially he took painkillers to
alleviate the pain but during 2013 his general practitioner
started
giving him a painblock injection between the vertebrae, which lasted
for about 4 to 6 months.
11.
The
plaintiff testified further that he has become forgetful after the
accident and has difficulty in concentrating. He wrote
his N2
test after the accident, during 2004, but failed even upon rewriting
the test. He managed to obtain his tradesmanship
licence during
2009, which consisted of completing five practical tasks.
During 2012/2013 he wrote the N3 test since it was
a requirement for
issuing the electrical certificates of compliance which financial
institutions require for the purposes of home
loans, which was a
field he was interested in. He however did not manage to pass
the N3 test.
12.
During
2010 the plaintiff left the Department of Water Affairs to set out on
his own as an independent electrical contractor.
This endeavour
was unfortunately not successful and in 2011 he joined Olam SA as an
electrician. There he was the only electrician
and his work
entailed climbing up ladders to get to the pecan nut and peanut
holding bins, which were kept on a platform above
ground, to check on
a daily basis that the motors, cables and switchgear were safe and in
order. He testified that he experienced
discomfort and pain in
his right hip when carrying his toolbox and cables up the ladder, but
that he managed to perform his duties
with the help of his
assistants. His salary at Olam SA amounted to R12 000, 00
per month.
13.
Three
years later and after becoming aware that Olam SA was experiencing
financial difficulties, the plaintiff applied to the Municipality
for
employment as an electrician. He was successful and in March
2014 started working at the Municipality. The electrical
team
at the Municipality consisted of a senior electrician, Mr Lucky
Domingo, the plaintiff and 4 or 5 assistants.
14.
The
plaintiff testified that the work at the Municipality was
particularly difficult and stressful for him. He had to
regularly
climb ladders to get to power cables and dynamometers.
The pain he experienced in his lower back and right hip made it
difficult
for him to climb and work on ladders since he had to use
both legs to balance himself, whereas he is more comfortable, with
the
pain in his right hip, to put his weight on his left leg.
The work at the Municipality also entailed climbing down into
trenches
which he found difficult to do. He testified that the
assistants were not keen to help him with the functions that he as an
electrician was paid to perform.
15.
The
plaintiff also testified that his lack of concentration and
forgetfulness not only posed a danger to himself when he had to
work
with high voltage electrical power cables and the like, but also got
him into trouble with Mr Domingo, his superior.
He would forget
to perform allotted tasks and had on occasion forgotten to reconnect
faulty pre-paid electricity meters at households
where he had
affected a temporary bridging mechanism. The result was that
the Municipality lost revenue from those sources
for months before
the problem was detected.
16.
Since
Mr Domingo and the plaintiff were the only qualified electricians at
the Municipality, they took turns being on stand-by every
second
week. So for instance the plaintiff would be working
normal hours one week and in addition be on standby throughout
the
night and weekend. The following week Mr Domingo would have the
same responsibility. This meant that the plaintiff
had to often
travel and work on his own at night to effect electrical repairs.
17.
The
plaintiff testified that he had become so despondent and stressed out
with his work situation at the Municipality, that he had
of his own
accord, without Mr Domingo instituting any disciplinary charges
against him, decided to resign and seek less strenuous
employment.
18.
The
pain and discomfort which he has been experiencing has not only
affected his ability to perform his work properly but has also
spilled over into his private life. So for instance he used to
enjoy repairing tractors in his free time but does not do
so anymore
since he cannot pick up and place parts onto a tractor on his own
anymore. He also enjoyed fishing, but the strain
on his back
had become too much for him. He also cannot sit for very long
before his hip and back starts paining. Long
distance driving
has therefore became unbearable for him.
19.
According
to the plaintiff he had suffered no injuries to his back prior to the
accident in 2004, nor thereafter. He suffers
from asthma and
had never played any strenuous sport like rugby.
20.
Mr
Lucky Domingo, the plaintiff’s supervisor at the Municipality
also testified. Mr Domingo who is still the senior
electrician
at the Municipality testified that the plaintiff’s performance
at work was problematic from the start.
The plaintiff was at
the doctors more than what he was at work. His main complaints
were about pain in the hip and back,
particularly after he performed
work involving climbing up and down ladders. Mr Domingo stated
that he could see the pain
in the plaintiff’s face after
climbing ladders and the plaintiff would offten after doing such
work, visit a doctor.
21.
Mr
Domingo also testified that the plaintiff was forgetful and recalled
an instance when the plaintiff had forgotten to switch off
the main
switch while preparing to connect a high voltage cable. Mr
Domingo who was supervising the job, fortunately had
the foresight to
check whether the main power feeder had been switched off right
before the plaintiff was about to cut the cable.
The plaintiff
was given a written warning for the incident. He also confirmed
the incident relating to the bridging of the
pre-paid electricity
meters as testified to by the plaintiff, and added that about three
more of such mistakes were discovered
after the Plaintiff had left
the Municipality.
22.
Mr
Domingo stated that he had discussed with his unit manager whether
the plaintiff could not rather be transferred to the Municipality’s
water department, but since electricians were hard to come by in such
a small place as Jan Kempdorp they had decided to retain
the
plaintiff in the electricity department and try to cover for
plaintiff by giving his assistant the same instructions as him,
so
that the assistant would be able to remember what needed to be done.
At some stage however, Mr Domingo and the manager
decided to make his
working conditions difficult, by insisting for instance that the
plaintiff climb ladders, despite doctors order
to the contrary, so
that the plaintiff could resign of his own accord.
23.
Mr
Domingo also testified that the plaintiff had been off sick so often
that he had exceeded the 80 sick days allowed within a 3
year period
and had to take a cut in his salary for the sick days additional to
the 80 days allowed.
24.
Before
turning to the expert evidence, I deal briefly with the evidence of
Mr Joseph Ndlazi, the human resources manager at the
Municipality.
Mr Ndlazi was appointed in this position during November 2017, after
the plaintiff had left the employ of the
Municipality. He
testified at the hand of the plaintiff’s personnel file with
the Municipality and the attitude generally
of the Municipality in
accommodating staff health issues.
25.
According to Mr Ndlazi the plaintiff had worked at the Municipality
for exactly 3 years an 1 month and had
during that time been on sick
leave for 89 days. He confirmed that no disciplinary action had
been taken against the plaintiff
during that time. His reason
for leaving the employ of the Municipality was stated in his
resignation letter as having found
more suitable employment
elsewhere.
26.
Mr
Ndlazi furthermore explained that if an employee, due to health
issues, was considered not to be suited for the position appointed
to
him, the Municipality makes provision for transfers to either other
departments within the Municipality or work more suitable,
for
example, clerical or computer related within the same department at
no reduction in salary. In severe cases the process
of being
permanently boarded was also an option.
The
experts
27.
The
experts on both sides are mainly in agreement that the plaintiff
sustained a moderately severe traumatic brain injury during
the
accident. Although Mr B Janecke, the neuropsychologist for the
plaintiff, states in his report that the plaintiff sustained
a
moderate brain injury, he signed a joint minute with his counterpart
Ms C De Villiers, wherein he agrees that the plaintiff suffered
a
severe diffuse brain injury in the accident. Ms De Villiers did
not testify, but Mr Janecke explained during his testimony
that he
agreed with Ms De Villiers on this point since she had examined the
plaintiff some 10 years after his own examination,
and had been in a
position to pick up signs of more serious damage than what he had.
Be that as it may, the other points
of agreement between these two
experts are as follows:
“
2.
We agree that the radiological findings reported in the clinical
notes were of left hemisphere swelling
and a subarachnoid
haemorrhage.
3.
We agree that we both found executive functioning deficits on our
respective examinations of Mr
Schutte, Mr Janecke in 2006, and Ms de
Villiers in 2016. There were impairments of conceptual
reasoning, error monitoring,
abstract reasoning, sustained visual
processing, working memory and cognitive flexibility, and letter
fluency.
4.
We agree that executive dysfunction is primarily dependent on the
integrity of the frontal lobes.
5.
Ms De Villiers also found impairment of semantic fluency consistent
with temporal lobe pathology.
6.
We agree that there were complaints and collateral of behavioural
changes, in that he had episodes
of rage.
7.
We agree that he was unable to complete his National Certificate
post-injury, as a result of his
cognitive deficits.
8.
We agree that he did obtain a Tradesman Licence and that his
employment record has been steady.
9.
We agree that he be offered psychological assistance on a needs
basis.
10.
We agree that he consult a Psychiatrist for psyche-pharmacological
management.”
28.
Mr Janecke
has however in the copy of the joint minute which he had signed,
included under point 8 above the following:
“
He, however,
could not sustain his own business when he started one.
According to his wife he was stressed back at work after
holidays and
he does not like his current job and they were looking for other
employment for him.”
29.
According
to Mr Janecke, he had obtained the information which caused him to
insert the above in the joint minute from Ms De Villiers’
report and considered it important to be included since it
corroborated his own assessment made during 2006 that the plaintiff
would have difficulty maintaining his employment due to his cognitive
deficiencies.
30. I
turn now to the main dispute between the parties - the plaintiff’s
back problems. Drs Relling
and Parker and Prof Bryer gave
evidence in this regard.
31.
Dr
Relling, the neurosurgeon for the plaintiff, performed his
examination of the plaintiff during March 2016. He obtained
the
relevant history from the plaintiff and also had available the
hospital records. The plaintiff complained of headaches
which
he started experiencing immediately after the accident and which have
persisted to the point where it has become chronic.
Dr Relling
describes the headache complaint as a true complaint since it is
compatible with the nature of the head injury sustained
in the motor
vehicle accident. The memory loss, aggression, sleeplessness
and weak concentration ability which the plaintiff
also complained
about and which impacts on his work performance are, according to Dr
Relling all part of the bigger picture of
the head injury.
32.
The
plaintiff has also complained to him of mild back pain which he
started experiencing after the accident. There were however
periods of time where the plaintiff had no back problems, but that he
reported that for the previous four years before the consultation
(i.e. from about 2012), the backache had escalated to such a degree
that it impacted on his physical abilities.
33.
The
plaintiff also complained of pain spreading down his right leg.
With clinical examination Dr Relling was able to ilicit
the pain.
Upon examination Dr Relling found the plaintiff’s right leg to
be slightly weaker than the left leg and visually
the calf area of
the right leg presented thinner than that of the left leg. He
measured the calves and found the plaintiff’s
right calf to be
about 1cm thinner than the left. The thinner calf was an
indication of atrophy of the muscle, suggesting
a weakening in the
nerve supply to that particular muscle. The most probable cause
of this problem would, according to Dr
Relling, be a pinching of the
nerve from where it has its origin in the bone marrow and moves down
through the spine to the lower
limbs.
34.
The
nature and anatomical position of the backache, which Dr Relling had
found isolated to level L4/5, correlates with the pinching
of the
nerve which caused the weakness and pain which the plaintiff
experiences in his right leg.
35.
It
is Dr Relling’s opinion that taking into account the age of the
plaintiff, the fact that he had no history of backache
before the
accident, that there were no reported work inflicted injuries or any
other physical cause for the backache occurring
after the accident,
it is probable that the plaintiff’s current back problems are
as a result of the motor vehicle accident
in 2004.
36.
Dr
Relling explained that what had probably happened was that the
whiplash nature of the accident had caused a small tear to develop
on
the edge of the disc, which caused fluid leakage. This leakage
would cause the cushion between the vertebrae to desiccate
which
would impact on its ability to act as a shock absorber. The
vertebrae on either side of the cushion would then move
closer
together causing a strain on that level of the back. The result
is that the plaintiff is suffering from progressive
lumber
spondylosis with progressive worsening of lower back pain.
37.
Spondylosis
is described as degenerative changes in the spine which everyone
eventually suffers from with the onset of old age,
but is not normal
in a person 30 years old, as the plaintiff was at the time of the
examination. Dr Relling also discounted
a genetic origin for
the degeneration since it would have been more diffuse had it been
genetic and not confined to the L4/5 region.
38.
According
to Dr Relling a tear in the disc or cushion would not have shown up
in the X-ray taken of the plaintiff’s spine
after the accident
since an X-ray does not reflect fluid specifically, which an MRI
would. No MRI was done on the plaintiff
at any stage after the
accident.
39.
Dr
Relling explains that the interval (approximately 8 to 10 years)
before the onset of the plaintiff’s back pain is not all
that
long a period as far as spinal degeneration is concerned and in the
absence of any other known cause, he has to conclude that
the motor
vehicle accident is the probable cause of the plaintiff’s back
problems.
40.
Dr
Parker, the defendant’s neurosurgeon, examined the plaintiff
around the same time as Dr Relling, during 2016. He
agrees with
Dr Relling that the plaintiff suffered a moderately severe brain
injury in the motor vehicle accident and that the
plaintiffs
complaints regarding headaches, loss of memory, aggression, lack of
concentration and so forth are related to the brain
injury.
41.
With
regard to the plaintiff’s back injury Dr Parker testified that
he was in obvious pain on the day of the consultation.
The pain
was mechanical in nature, that is, it was caused by movement.
The plaintiff explained to Dr Parker that he experienced
a pain
shooting down his right leg, to the level of his calf. This
pain is associated with parasthesa (pins and needles)
in his foot.
The plaintiff also mentioned that he started experiencing the
backache 4 to 5 years before the consultation
(between 2011 and 2012)
and that it has become more frequent and persistent in the last 2
years (from 2014).
42.
According
to Dr Parker, the plaintiff’s symptoms are suggestive of a
nerve root compression in the lumbar spine. This
happens when
the disc (the cushion between the vertebral bodies), ruptures close
to where the nerve passes, which then compresses
the nerve root.
A particular nerve root goes to a particular part of the leg.
Therefore, if there is pain going down
the inside of the leg, it is
the L3/L4 nerve root which is compressed.
43.
Dr
Parker agrees with Dr Relling that the plaintiff suffers from spinal
degeneration or spondylosis, the degree of which is not
normal in
someone as young as the plaintiff. He does however not agree
with Dr Relling’s opinion that the spinal degeneration
was
accelerated by the motor vehicle accident.
44.
Dr
Parker explains that given the reported initial backache experienced
by the plaintiff after the accident, with no spinal damage
picked up
on X-ray, the plaintiff must have suffered a soft tissue injury to
the back during the accident. The plaintiff
may have suffered a
tear to the disc, but that such an injury had progressively healed to
the point where he was free of pain.
The fact that the
plaintiff was from thereon painfree and asymptomatic for about 4 to 5
years before the consultation is suggestive
of a new incident which
occurred. Dr Parker’s opinion of a new incident having
occurred some years after the motor
vehicle accident is in his view
bolstered by the fact that the current complaint includes a pain in
the leg, which was not present
after the accident or with the initial
backache.
45.
The
disc herniation, which in the opinion of Dr Parker the plaintiff is
currently suffering from, could be caused by something as
simple as
turning around in bed or something more obvious like picking up a
heavy object.
46.
Whereas
Dr Parker agrees with Dr Relling that an injury could cause an
acceleration of spinal degeration, he disagrees that the
accident in
2004 could have caused accelerated spinal degeneration since such a
theory does not account for the years when the
plaintiff was
asymptomatic.
47.
Prof
Bryer, the defendant’s neurologist, consulted with the
plaintiff on 10 February 2016. He asked the plaintiff to
list
his complaints in order of severity. The plaintiff listed as
his most prominent complaint headaches thereafter lower
back pain and
lastly forgetfulness.
48.
Prof
Bryer administered the Montreal Cognitive Assessment Test to see
whether there were any sequelae that could be attributed to
the head
injury sustained in the accident. He explains the test to be a
“
bedside
test”
used widely to detect different domains of cognitive impairment.
The test covered the areas of
inter
alia
memory,
visio
spatial
perception, language delayed recall and orientation. Prof Bryer
states that the plaintiff had a score of 28 out of 30, which
is
better than the average score of 27 for people with mild traumatic
head injuries. Memory problems were not detected on
what he
called his basic testing. He deferred to the clinical
psychologists who did a more in-depth assessment for the more
subtle
deficits and executive difficulties.
In his opinion the
plaintiff sustained a moderately severe close traumatic injury to the
brain. That without the brain injury,
the plaintiff may very
well have been able to obtain the N3 qualification and that the
injury may limit future work promotions.
49.
As
far as the plaintiff’s back problems are concerned, it is Prof
Bryer’s evidence that the plaintiff reported experiencing
back
pain from about 2 years before their consultation. He tested
the plaintiff’s motor function, muscle tone, muscle
strength,
reflexes, sensory loss and co-ordination. His task as a
neurologist would be to see if there is any motor deficit,
any
evidence of spinal cord injury or any nerve root injury
(radiculopathy). Prof Bryer states that the plaintiff had
normal
muscle strength, muscle tone, he had normal and symmetrical
reflexes, no sensory loss, and that his co-ordination and gait were
above normal. In short his assessment could not show any
objective evidence of either a nerve root entrapment or any spinal
cord injury.
50.
When
confronted with Dr Relling’s evidence that he found slight
weakness of the plaintiff’s right leg and atrophy, Prof
Bryer
conceded that he had not measured the circumference of the
plaintiff’s leg and could therefore not dispute Dr Relling’s
finding of atrophy.
51.
According
to Prof Bryer the only possible cause for atrophy of that particular
muscle in this specific context, is nerve root compression.
Other causes for atrophy would be immobility on that side of the body
or other spinal cord injuries, which causes are both excluded
in this
particular instance.
52.
Prof
Bryer states however that injuries to the disc, which would cause
nerve root compression, happen fairly rapidly and tend to
present
acutely. This means that the pain would present immediately and
be intense. Had the plaintiff therefore incurred
an injury to
the disc in the accident, he would not have expected the plaintiff to
be able to walk out of the hospital 5 days later.
He also
states that many disc injuries resolve spontaneously without the need
for surgical intervention.
53.
Prof
Bryer also testified that spondylosis occurs naturally after the age
of 40 but that he has seen it in younger people.
People who
hyperextend repeatedly such as dancers, rowers and gymnasts, who have
repeated ongoing flexion of the spine, may also
exhibit spondylosis
at an early age.
54.
As
to the possibility that the plaintiff sustained an injury to the back
in the accident, that it cleared up and years later flared
up again,
Prof Bryer was unequivocal that this would only happen in two
scenarios. Firstly, if there had been a significant
injury at
first, such as a little fracture to part of the spinal base which
would render the joint unstable. Therefore, with
repeated
movement symptoms, would reappear. The second scenario is what
would occur in people engaged in certain sports e.g.
contact sports
and the athletes referred to above where an injury is not allowed to
heal and a succession of minor events occur
over a period of time and
they end up with a chronic syndrome.
55.
In
the case of the plaintiff however Proff Bryer is adamant that without
proof of an injury incurred at for instance L4 level in
the accident,
and subsequent repeated reports of pain and progressive worsening of
the problem, it would be speculative to link
the problem experienced
at L4 level years later to the accident.
56.
At
this stage I need to mention that despite Prof Bryer’s evidence
that his assessment of the plaintiff failed to show any
evidence of
nerve root entrapment or spinal cord injury, it is not in dispute
that the plaintiff’s back problem is a true
complaint.
Prof Bryer’s assessment in my view was obviously superficial.
The only issue between the parties relating
to this aspect is whether
or not the accident is the cause of the back injury.
57.
Confronted
with the conflicting opinions of the parties’ experts regarding
this issue, it is useful to have regard to the
approach set out by
the Supreme Court of Appeal in
Michael
and Another Linksfield Park Clinic (Pty) Ltd and Another
2001(3)
SA 1188 (SCA) at paragraph 24 thereof, that
“
As a rule that
determination will not involve considerations of credibility but
rather the examination of the opinions and the analysis
of their
essential reasoning, preparatory to the Court’s reaching its
own conclusion on the issues raised”
;
and at paragraph 26
thereof, that “
. . . what is required in the evaluation of
such evidence is to determine whether and to what extent their
opinions advanced are
founded on logical reasoning.”
58.
The
challenge with which the plaintiff is faced is the lack of
radiographical evidence relating to the back injury. Although
the hospital records show that an X-ray had been taken of the
plaintiff’s lumbar spine, the X-ray did not form part of the
hospital records before court and none of the experts who have
testified have had sight of the X-ray which is presumed to have
gone
missing. In the absence of the X-ray or any further reference
to it in the hospital notes, the assumption by the experts,
that the
X-ray probably showed no abnormalities, is in my view a sound
assumption.
59.
The
fact that the X-ray is assumed to have shown no abnormalities does
however not detract from either of the scenarios propounded
–i.e.
that of Dr Relling, of a small tear to the disc resulting in leakage
of fluid which would not be picked up on an X-ray
and on the other
hand, the view held by Dr Parker and Prof Bryer, that the plaintiff
could have sustained a soft tissue injury
in the accident which would
have resolved itself naturally over time.
60.
What
does favour the one theory regarding the plaintiff’s current
back problems over the other, is the subsequent course of
events.
On the plaintiff’s own evidence his initial back pain cleared
up a year after the accident. There is
no evidence during this
first year after the accident of accompanying pain and discomfort in
the right hip and leg.
61.
After
7 to 8 pain-free years the plaintiff then experiences the onset of
back pain with the additional complaints relating to his
hip and
right leg, which by all accounts point to a nerve root impingement.
62.
If
one tests Dr Relling’s theory of a disc herniation incurred
during the accident, which then caused spondylosis or the
acceleration of spondylosis, the 7 or 8 years during which the
plaintiff was pain free or asymptomatic, stands unexplained and does
not fit the picture of the progressive worsening of spondylosis until
it manifested itself in the current back pain experienced
by the
plaintiff.
63.
I
may just mention at this stage that Dr Relling, during his evidence
in chief and while explaining the history of the back pain
experinced
by the plaintiff, mentioned that the plaintiff had experienced mild
backache after the accident whereafter he experienced
periodic back
pain which did not initially impede his functioning, but that the
pain progressively worsened to the extent he started
to experience
physical impairment.
64.
During
cross-examination however, Dr Relling conceded that his report does
not mention a progressive worsening of the backache over
the years
since the accident and that his reported history of the plaintiff’s
back problems refers only to the onset of back
pain during 2013, nine
years after the accident.
65.
Mr
Abrahams for the defendant contended that when regard is had to
assessing the plaintiff’s condition, due weight should
be given
to the report of Dr P Repko, the plaintiff’s erstwhile and now
deceased neurosurgeon, dated 28 July 2008, wherein
he states the
plaintiffs reported history regarding his back problems as follows:
“
Wat die
rugbesering aanbetref het die pasiënt nadat hy sy volle bewyssyn
herwin het, bewus geword van rugpyn in die lumbale
gebied.
Rontgen fotos van die werwelkolom is na toelating tot die hospitaal
geneem en het geen afwykings getoon nie.
Daar was uitwendig
geen tekens van kneusing of ander tekens van besering, maar nadat die
rugpyn aanvanklik geleidelik verbeter
het, het hy periodiek daarna
steeds las van rugpyn gekry en sy huisdokter, Dr Van Niekerk
geraadpleeg wat medikasie voorgeskryf
het en soms inspuitings gegee
het. Met verloop van tyd het die rugpyn minder en minder
voorgekom en die afgelope jaar (
since
2007
)
verskyn dit nie meer nie. “
(Own insertion)
66.
Dr
Repko’s report was apparently attached to the plaintiff’s
initial particulars of claim but was removed after his
subsequent
passing, by an amendment replacing his report with that of Dr
Relling. With the exception of Dr Relling and Mr
Janecke, all
the experts who testified in the trial somehow were furnished with Dr
Repko’s report and referred to it in their
own reports.
On the basis thereof I allowed limited reference to Dr Repko’s
report during examination of the witnesses,
exclusive of his opinions
and conclusions.
67.
Mr
Abraham’s request that I have regard to Dr Repko’s report
regarding the plaintiffs’ back problems, can in my
view not
prejudice the plaintiff, since it accords to a large extent with the
plaintiff’s own evidence i.e. that he experienced
back pain for
a period after the accident, but that it eventually subsided.
However for this very reason it is not necessary
to take into account
the report of Dr Repko, since the plaintiff’s own version is
that he had not experienced back pain for
a number of years until his
back started bothering him again around the time he started working
for the Municipality.
68.
Dr
Relling’s evidence in court of the plaintiff having
intermittent back pain since the accident, which gradually worsened
to culminate into his current condition is not only undocumented, but
the origin of this information is not explained.
69.
In
Regent Insurance Company t/a Imperial Commercial Insurance v DMJ
Transport CC (A57/06)
[2006] ZAWCHC 31
(28 July 2006), Van Zyl J held
as follows at paragraph 17;
“
Inference must
be carefully distinguished from conjecture or speculation.
There can be no inference unless there are objective
facts from which
to infer the other facts which it is sought to establish. In
some cases the other facts can be inferred
with as much practical
certainty as if they had been actually observed. In other cases
the inference does not go beyond reasonable
probability. But if
there are no positive proved facts from which the inference can be
made, the method of inference fails
and what is left is mere
speculation or conjecture.”
:
(and at paragraph 19
therof);
“
When use is
made of expert evidence, it must be remembered that an expert,
however impressive his expertise and experience may be,
cannot, in
expressing however strong an opinion, elevate conjecture or
speculation to justifiable inference, unless it is borne
out by the
objectively ascertainable facts
.”
70.
In
casu
and
in the absence of radiographical proof (whether X-ray or MRI) of
injury to the plaintiff’s back in the L4/5 lumbar area
after
the accident and the long period of time during which the plaintiff
experienced no back problems, there are no objective
facts justifying
an inference that the accident during 2004 is the cause of the
plaintiff’s current back problems which apparently
emanates
from the L4/5 region.
71.
It
follows thus that I have to reject the evidence of Dr Relling
in this regard and accept the evidence of Dr Parker and Prof
Bryer
that the plaintiff’s current back problems have most likely
been caused by an incident years after the accident and
which could
have been as insignificant as turning around in bed.
72.
Which
now brings me to the evidence of the occupational therapists.
Both Ms Mia Vermaak for the plaintiff and Ms Esther Cloete
for the
defendant, have performed extensive tests on the plaintiff with
regard to his back related problems. Being of the
view that the
plaintiff’s back problems have not been shown to have been
caused by the accident, I do not intend to deal
to any extent with
the back related assessments, save to state that the resultant poor
work attendance and productivity as demonstrated
during his term of
employment with the Municipality, will necessarily impact on the
plaintiff’s future employment and earning
capacity.
73.
With
regard to the assessment of the plaintiff’s cognitive
abilities, Ms Vermaak found slight problems regarding memory,
concentration and insight and that the plaintiff’s “
prospects
of promotions might be affected due to his physical impairments and
behavioural problems (i.e. forgetfulness and tendency
to display
anger).
Ms
Cloete confirms the findings of poor concentration, memory, learning
and behavioural problems and that even if the plaintiff’s
back
and right lower limb symptoms resolve “r
esulting
in improved attendance and productivety, he will still need somewhat
sympathetic employment, to accommodate his residual
cognitive
difficulties. With Mr Schutte not having managed to obtain a
wireman’s license and him now battling to learn
and retain new
skills, any employment he obtains and sustains is expected to be at a
lower level, with an associated lower income,
than would have been
the case, had he been able to improve his qualification and skills.”
74.
As part of
her assessment of the plaintiff, Ms Cloete had consulted with some of
his previous employers and colleagues. Plaintiff’s
manager at Olam SA had informed that although they were aware that
the plaintiff suffered some back and lower limb problems since
he
sometimes limped, it did not impact on his work performance or
attendance. The plaintiff also did not display any untoward
outbursts of anger or irritability and performed his work functions
satisfactorily. In this respect the manager had mentioned
that
Olam SA had very structured and routine procedures which had to be
followed and which according to Ms Cloete may have helped
the
plaintiff in coping with his cognitive related problems. Ms
Cloete was of the view that the plaintiff would perform better
in a
position with regular repetitive work such as what Olam SA offered.
75.
The
industrial psychologists to a large extent agree with Ms Cloete’s
above assessment and in a joint minute have agreed to
the plaintiffs
post-accident earning capacity as follows:
“
(1)
He will probably not progress beyond his present level.
(2)
We take note of the medical opinions and agree that his career is at
risk in terms of deteriorating
performance, safety risks, not being
competitive, losing his current job due to his mental and physical
impairments, and restricted
career progressions.
(3)
Future loss of income be addressed by means of contingencies.”
76.
It
must be noted that at the time the joint minute was signed on 16 May
2017 by Dr G Jacobs for the plaintiff and Mr PC Crous, the
defendants
industrial psychologist, they were not aware of the fact that the
plaintiff had resigned from his job at the Municipality.
77.
With
regard to pre-accident earning capacity the relevant points of
agreement in the joint minute are as follows:
77.1 The job
evaluation of an electrician’s position is at Paterson level
C2;
77.2 The
plaintiff’s career most likely would have followed more or less
the same up to the present (electrician at
the Municipality);
77.3 That he earned
R171 804, 00 during 2016;
77.4 In the case of
the plaintiff remaining with the Municipality he will remain at this
level with CPI increases;
77.5 In the case of
the plaintiff obtaining a position with an employer that remunerates
according to the Corporate Survey
Earnings it is foreseen that during
the following 8 to 10 years he will obtain a position with an
employer that remunerates according
to the Corporate Survey Earnings
Paterson Level C2;
77.5.1
With the necessary experience, skills and aptitude he will progress
to Paterson
C3/C4 (senior electrician/foreman) in 2034;
77.5.2
Remain at this level with CPI increases; and
77.6 The
plaintiff’s likely retirement age is 63.
78.
The
industrial psychologists also agreed that there was no past loss of
income.
79.
As
pointed out by Mr Abrahams, there are only two issues in dispute
between the industrial psychologists and both relate to the
plaintiff’s post-accident earnings i.e.:
79.1 The extent of
the plaintiff’s residual earning capacity; and
79.2 Whether the
plaintiff’s cognitive difficulties are of such a nature that it
disqualifies him from working as an
electrician at the Municipality
or elsewhere.
80.
I
start with the second issue. There can be no doubt that the
plaintiff could not fulfil his duties as an electrician at the
Municipality. Apart from the physical challenges and the
absenteeism as a result of his back problems, the evidence of Mr
Domingo is clear and compelling that the plaintiff was a liability as
far as his cognitive abilities were concerned. The
defendant’s
stance that the plaintiff could have been accommodated by being given
lighter duties, or by serving in an advisory
position with an
assistant doing the heavy work or by being moved to a different
department within the Municipality, is in my view
highly speculative
and hypothetical. The evidence does not bear out any such
option as being suitable for the plaintiff within
the Municipality.
81.
Mr
Domingo’s (as well as the plaintiffs’) evidence as to the
staff composition within the electrical department –
there
being only two qualified electricians who were expected to perform
their duties in the Jan Kempdorp and outlying areas –
the
difficulty experienced in attracting electricians to that specific
municipality, the attitude of the assistants within the
department
and the plaintiff’s cognitive difficulties, are not
circumstances conducive to the plaintiff being given lighter
duties
within the electrical department of the Municipality or serving in an
advisory position. Moreover it is common cause
that the
plaintiff has no other skills and his inability to learn new skills
would no doubt have hampered his transfer to a different
department
within the Municipality.
82.
The
argument that the plaintiff was in no danger of losing his job, that
his resignation was voluntary and that therefore his loss
of income
is self-inflicted, loses sight of the evidence of Mr Domingo that he
and the manager of the department had, once they
had realised that
they could not dismiss the plaintiff because of his disabilities,
decided to put pressure on him by making his
working conditions
difficult in order for him to resign on his own. Dr Jacobs
described this attitude of the Municipality
as being tantamount to
constructive dismissal. I agree with such a sentiment.
83.
The
question in my view should rather be whether the plaintiff can be
employed as an electrician elsewhere than the Municipality.
In
this regard I agree with Mr Abrahams for the defendant, that the
plaintiff’s past employment history should act as a guideline
and inform his possible future career path. There can be no
pussyfooting around the fact that the plaintiff obtained his
qualification as an electrician and his employment experience as such
after the accident. In light hereof the plaintiff’s
current employment as a contractor’s foreman at a salary of ±
R3000, 00 per month
cannot be construed as a reflection of his capabilities and is
unrealistic in assisting in the assessment of
the extent of the
plaintiff’s residual earning capacity.
84.
The
plaintiff successfully sustained employment as an electrician at Olam
SA for 3 years without any complaint about his work performance.
He left Olam SA voluntarily for reasons unrelated to either his
cognitive or physical impairments. An argument that the
plaintiff would be a risk employed as an electrician, can in these
circumstances not be sustained. The statement may apply
to the
work of an electrician at a municipality, which appears to be
particularly hazardous, but not necessarily to the repetitive
and
structured electrical work which the plaintiff engaged in at Olam
SA. I see no reason why the plaintiff would not be
able to take
up repetitive and similarly structured electrical work in the future.
85.
That
being said the experts appear to agree, taking into account the fact
that an electrical qualification is a sought after skill,
the great
number of mines in the local area where electricians are actively
pursued, that the plaintiff would likely pre-accident
have
progressed from working at the Municipality in accordance with the
scenario set out in paragraphs 77.5 to 77.5.2 above.
Having
found that the plaintiff’s back problems have not been shown to
be accident related, a higher contingency must be
applied to the
plaintiff’s pre-accident earning capacity to account not only
for the speculative nature of his pre-accident
earnings but also for
the added risk of him not realising his potential due to his back
problems.
86.
As
far as his post-accident earning capacity is concerned, the experts
agreed that the plaintiff would probably not achieve earnings
exceeding the R171 804, 00 per annum which he received at the
Municipality. The issue between the parties in this regard
relates to the level the projected future earnings should be pegged
at. The plaintiff is of the view, at the hand of the
evidence
of Dr Jacobs, that though the plaintiff can do better than the
position he currently occupies, he will probably not be
able to
obtain anything better than a semi-skilled position in the
non-corporate sector, despite him being a skilled worker.
This contention is rather
vague and Dr Jacobs would not commit to a specific salary. The
position taken by the defendant,
following upon the approach of Mr
Crous, is that the plaintiff’s highest paying job as an
electrician after the accident
be used to determine his earning
capacity. The income of R171 804, 00 per annum earned by
the plaintiff at the Municipality
during 2016 would according to Mr
Crous in any event more or less equate, actuarially calculated, with
the plaintiff’s income
at Olam SA during 2013.
Damages
General
Damages
87.
This brings me to the plaintiff’s claim for general damages.
Initially the plaintiff had claimed
R200 000, 00 for general
damages. Mr Steenkamp, who appeared for the plaintiff, during
argument contended that an amount
of R900 000, 00 be awarded to
the plaintiff in general damages. Mr Abrahams on the other hand
postulated amounts of
R300 000,00 alternatively R500 000,00
depending on whether it is found that the accident also caused the
plaintiff’s
current back problems.
88.
Whilst preparing judgment in this matter, I realised that although
over the course of time certain other amendments
were made to the
particulars of claim, the claim for general damages had remained at
R200 000,00. I alerted the legal
representatives to this
obvious oversight whereafter the plaintiff delivered an amended claim
for general damages in the amount
of R1 million. The defendant
did not object to this amendment.
89.
That being said and having found that the plaintiff’s back
problems were not caused by the accident,
the plaintiff’s claim
for general damages will obviously be negatively affected.
Counsel for both sides have referred
me to previous comparable cases
as is the norm. I do not intend to deal with each case
specifically save to state that they
are mainly distinguishable from
the present because the injuries and consequences in those cases were
either more severe or less
so. So too do the personal
circumstances of the plaintiffs in those cases differ from that of
the plaintiff
in casu
. However they do serve as a
helpful guideline.
As Brand JA said in
De
Jongh v Du Pisanie NO
2005 (5) SA 457
(SCA) at 477 paragraph 64:
“
By
die uitoefening van die hof se diskresie is vergelyking met
toekennings in vorige sake 'n nuttige hulpmiddel omdat dit darem
vir
die hof die breë parameters oftewel 'n patroon aandui waarbinne
sy toekenning tuisgebring moet word. Dit is ook 'n nodige
riglyn
omdat konsekwentheid in toekennings 'n inherente vereiste van
billikheid is. Nietemin bly dit steeds 'n riglyn. Dit vervang
nie die
hof se diskresie met 'n letterknegtige gebondenheid aan die
aangepaste waarde van vorige toekennings nie.”
90. The
plaintiff was 20 years old at the time of the accident – at the
threshold of his adult life and
career. I have set out herein
the nature and sequelae of his brain injury, which no doubt has
limited his quality of life.
He suffers from severe headaches;
his personality has changed in that he has become aggressive and
rude. He suffers from
memory and concentration impairment.
His career prospects have been limited and his ability to learn new
skills have been
compromised. I have given all the above
factors due consideration and have concluded that an award of R350
000, 00 would
reflect a fair compensation for general damages.
Loss
of Earnings
91. I
have not been asked to calculate the plaintiff’s loss of
earnings, but merely to decide the basis
on which such calculati be
made by an actuary. The parties seem to agree that Dr Robert
Koch be tasked with the actuarial
calculation.
92. For
the sake of clarity for calculation purposes I propose that the
amount of R171 804, 00 per annum
be used in calculating
plaintiffs post-accident earning capacity subject to the application
of a contingency allowance necessitated
by the plaintiff’s
cognitive impairments.
93. The
assessment of necessary adjustments to be made for the “
vicissitudes
of life”
or contingencies, is not a matter which can be
accurately calculated, as Nicholas J so aptly stated in De Jongh v
Gunther and Another
1975 (4) 78 (w) at 80F.
“
In the
assessment of a proper allowance for contingencies, arbitrary
considerations must inevitably play a part, for the art of
science of
foretelling the future, so confidently practiced by ancient prophets
and soothsayers, and by modern authors of a certain
type of almanack,
is not numbered among the qualifications for judicial office.”
94.
That being said, on consideration of all the factors and evidence, I
am of the view that a contingency adjustment
of 30% to plaintiff’s
pre-accident earnings and 50% to his post-accident earnings would be
appropriate in the circumstances.
Costs
Having being
substantially successful there is no reason why plaintiff should not
be entitled to his costs, inclusive of the qualifying
costs of his
experts.
The
following order is made:
a)
The
defendant is ordered to pay general damages to the plaintiff in the
amount of R175 000, 00. It is noted that a 50%
reduction
has been effected to the award for general damages in accordance with
the parties agreement relating to the defendant’s
liability for
compensation
b)
The
plaintiff’s loss of earning capacity is to be calculated on the
basis that:
i)
Plaintiffs
pre-morbid earnings be calculated in accordance with the career path
agreed upon by the industrial psychologists Dr Jacobs
and Mr Crous in
points 9 and 10 of their joint minute dated 16 May 2017, subject to a
30% contingency deduction;
ii)
Plaintiffs
post-morbid earnings be calculated based on the amount of R171 804,
00 per annum, subject to a 50% contingency deduction.
c)
The
defendant is ordered to pay 50% of the plaintiff’s loss of
earnings as calculated in terms of paragraph (b) above, in
compliance
with the agreement reached by the parties regarding defendant’s
liability to compensate the plaintiff.
d)
The
defendant is ordered to pay interest on the above mentioned amounts
at the prescribed legal rate from a date 14 days after date
of this
judgment to date of payment.
e)
The
defendant is ordered to pay the plaintiff’s costs, which costs
are to include the qualifying, attendance and travelling
expenses
(where applicable) incurred by the following experts:
Dr H Relling, Mr Ben
Janecke, Ms Mia Vermaak; Dr Everd Jacobs.
CC
WILLIAMS
JUDGE
For
Plaintiff:
Adv MDJ
Steenkamp
Elliot, Maris, Wilmans &
Hay Attorneys
For
Defendant:
Adv R Abrahams
Robbert Charles Attorneys