J v Meyer (51155/2014) [2017] ZAGPPHC 285; [2017] 3 All SA 878 (GP) (6 February 2017)

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[2017] ZAGPPHC 285
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J.J v Meyer (51155/2014) [2017] ZAGPPHC 285; [2017] 3 All SA 878 (GP) (6 February 2017)

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THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER: 51155/2014
DATES
OF HEARING: 31 OCTOBER 2016 & 1 NOVEMBER 2016
DATE
OF JUDGMENT:  6 FEBRUARY 2017
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
J
J
Plaintiff
and
DR
ANDRE
MEYER
Defendant
JUDGMENT
AVVAKOUMIDES.
AJ
INTRODUCTION
(1)
This is a claim by the plaintiff against the defendant
for damages arising from a medical procedure performed by the
defendant on
the plaintiff. The procedure is called an abdominoplasty
also commonly referred to as a "tummy tuck". The language
employed
during the trial was both in English and Afrikaans and I
will utilize both languages herein where appropriate.
(2)
The merits of the case were settled on the basis that the
defendant, without admitting his liability to do so other than on
terms
of the agreement between the parties and undertaking, without
prejudice to his rights, without therefor admitting negligence,
breach
of contract or unprofessional conduct, and in full and final
settlement of the issue of liability in this action instituted by the

plaintiff against the defendant, agrees and undertakes to pay 90% of
the plaintiff's proven or agreed damages arising from the
performance
of an abdominoplasty surgical procedure on 12 July 2011 and the
complications encountered subsequent to the surgery.
(3)
At the commencement of the trial the plaintiff's counsel
indicated that he would lead the evidence of the plaintiff and the
appropriate
stage he would move for an amendment to the pleadings to
include a claim for loss of earnings by the plaintiff. The
defendant's
counsel objected. The plaintiff filed a notice of
intention to amend approximately 41 days prior to the trial date to
which the
defendant objected. Instead of setting the application down
for determination on the proposed amendment, the plaintiff permitted

the time period within which to do so, to expire and then filed two
more notices of intention to amend.
(4)
The plaintiffs argument against the objection was that the
defendant knew of the proposed amendment some time before and had
considered
the amendment. The fact remains no amendment was effected,
albeit for whatever reason. Having heard argument from both counsel I

dismissed the application for the proposed amendment with costs. This
being the case I enquired from the plaintiffs counsel whether
the
plaintiff wished to carry on with the trial or postpone the case in
order to amend her papers. For the second time I adjourned
the court
so that the plaintiff could furnish instructions. After the
adjournment the plaintiff elected to proceed with her action
without
inclusion of the claim for loss of earnings.
GETUIENIS
VAN EISERES
(5)
Die eiseres het as volg getuig: Sy woon in Villieria,
Pretoria en werk by Preform en doen ook deeltydse werk. Sy het in
2009 vir
Dr Andre Meyer gaan sien om vir haar 'n "tummy tuck"
te doen. Tydens die ondersoek het die verweerder haar bloeddruk
gemeet en ges dat haar bloeddruk bietjie hoog is. Die verweerder het
haar gevra oor haar medikasie en hulle het gesels oor haar
toestand
en cholesterol. Dit is ooreengekom dat die eiseres eers haar
bloeddruk onder beheer sou kry en dan terugkom.
(6)
Die eiseres wou 'n "tummy tuck" laat doen omdat die
verweerder verduidelik dat sy 'n "middeltjie" sal he
en
weer mooi sal lyk. Sy het erken dat sy definitief oorgewig was op
daardie stadium. Die verweerder het blykbaar baie jare gelede
die
eiseres se skoonma behandel en dit is hoe sy by die verweerder
uitgekom het.
(7)
Die eiseres het getuig dat die verweerder haar gestuur het vir 'n
sonar omdat hy gedink het hy sal 'n deurbraak maak deur haar

"vetband" te meet hiermee. Sy het die ondersoek laat doen
en daarmee is sy weg. Daar was nie 'n reeling tussen hulle
wanneer
die eiseres moet terugkom nie. Sy het toe vir die operasie gegaan op
12 Julie 2011. Die verweerder het haar ingelig dat
die operasie twee
en 'n half sal duur maar dit het vier en 'n half uur geduur. Die
verweerder het op haar maag "geteken"
voor die operasie. Sy
het ender die ligte wakker geword en gevra hoekom sy wakker gemaak
is. Sy het gedroom van mooi wilgerbome
en green gras. Die narkotiseer
het langs haar gestaan en aan haar genoem dat daar 'n bloedsirkulasie
probleem was en hy bly is
dat sy wakker is. Die verweerder het haar
meegedeel dat hy omtrent 4 kilogram uitgesny het. Hulle het nie veel
gepraat nie en die
verweerder is gou weg.
(8)
In die hospitaalkamer het sy die suster geroep omdat die drein
blykbaar nie veel gedreineer het nie. Die volgende oggend het
die
verweerder haar gesien en die pyp dieper ingedruk om die dreinering
te bespoedig. Hy het die wand oopgemaak en dit weer toegemaak
en vir
haar gese sy kan huis toe gaan. Sy moes oor 8 dae weer terugkeer. Sy
moes elke dag die volume dreinering meet en die resultate
vir die
verweerder stuur. Na die agtste dag het sy teruggekeer en die
verweerder het die wond oopgemaak en versorg. Die wond was
blykbaar
nie mooi nie maar sy het dit aanvaar omrede dat dit 'n nuwe wond is.
Sy het gereeld gegaan om die wond te versorg. Op
die agtiende dag het
hy die steke uitgehaal. Die eiseres het die verweerder gebel en gesli
dat daar is 'n probleem.  Die wond
is nie toe nie.
(9)
Die verweerder het haar gevra om na sy spreekkamers te kom. Hy het
haar ondersoek en 'n "saline drip" binne in die
gat gedruk
sodat dit spoel. Die verweerder het hierdie proses op drie verdere
geleenthede herhaal en by die vierde geleentheid
het die eiseres vir
die verweerder gese dat die wond oop bly. Die verweerder het toe
lokaal blou steke ingesit met 'n naald wat
stomp was. Hy het gesukkel
om die steke in te sit. Dit was ongeveer se tot sewe steke.
(10)
Die snit was ongeveer 68 sentimeter en reg oor haar middellyf. Die
wond het in die middel oopgegaan en kon sy haar vingers
daar indruk.
Die eiseres het getuig dat sy die verweerder se voorskrifte gevolg
het en sy vermoed dat die wond oopgegaan het omdat
die steke te
vinnig uitgehaal is. Sy het in haar bed gele en haar huiswerker het
haar versorg deur haar te bad en aangetrek. Haar
seun Pierre en haar
vriend Helgaard het haar per geleentheid na die verweerder geneem en
tydens die besoeke het die verweerder
die wond behandel en dooie vel
en geel vet uitgesny, veral toe hy die steke ingesit het.
(11)
Die wond is behandel met salf en daar is Augmentum is voorgeskryf. Op
die ·29 Augustus 2011, die vyftigste dag na die
operasie, toe
sy by die verweerder se kamers opdaag vir 'n besoek, is sy ingelig
dat die verweerder aan 'n hartaanval gely het
en dat die verweerder
se dogter, wie 'n dermatoloog is na haar sal omsien.
(12)
Die verweerder se dogter het die wond oopgemaak en gesfl dat haar pa
lankal 'n rekonstruktiewe operasie moes doen. Sy het die
wond
toegemaak en vir Dr Johan van Heerden gaan roep. Dr Van Heerden is 'n
rekonstruktiewe chirurg. Hy het vir haar gese sy moet
haar goed gaan
pak en die volgende dag terugkom. Die wond is weer oopgesny en
skoongemaak en 'n masjien is gehuur om die bloedsirkulasie
te
bevorder. Hierdie masjien is in haar maag geplaas. Haar maag is
oopgesny soos 'n halfmaan.
(13)
Die masjien was blykbaar verkeerd gestel en instede dat dit die bloed
gesirkuleer het is die bloed gedreineer. Omtrent middernag
het sy die
suster versoek om die dokter te bel, maar die suster kon horn nie in
die hande kry nie. Die volgende oggend was Dr Van
Heerden ontsteld
oor die aangeleentheid en is die masjien reggestel. Dr Van Heerden
het vir die eiseres gese dat hy haar gaan toewerk.
Die teater is
bespreek en dit was vir haar baie traumaties. Sy het gevoel dat sy
dit nie gaan oorleef nie. Sy het gevra dat haar
kinders gebel moet
word om te kom.
(14)
Dr Van Heerden het die wond toegewerk en daar was twee gaatjies langs
mekaar wat nie genees het nie. Hierdie twee gaatjies
het een gat
geword soos dit genees het. Sy was bekommerd en het vir Dr Van
Heerden gebel. Sy vrou het geantwoord. Hy was nie beskikbaar
nie. Dr
Van Heerden se vrou het gese dat die wond gesond sal word. Sy bel toe
die verweerder. Hy het haar versoek om in te kom
vir 'n ondersoek.
Die verweerder het tydens die ondersoek 'n stuk vel geneem wat hy by
die Universiteit gekry het en dit op die
oop wond geplaas maar die
vel se vervaldatum het reeds aangebreek en daarom het die behandeling
nie gewerk nie. Die verweerder
het vir haar nog 'n stuk vel gegee
sodat sy stukkie vir stukkie kan opsit wanneer sy die wond skoonmaak.
Hy het gevra dat sy horn
moet herinner om vir sy sekretaresse te vra
om nog 'n stukkie vel te kry by the Universiteit.
(15)
Die nuwe stuk vel se vervaldatum het nog nie aangebreek nei en die
wond is in Desember 2011 heeltemal toe. Vir die eerste vyftig
dae was
sy bedleend. Sy het daarna 'n skildklieroperasie ondergaan en tydens
die geleentheid vir die dokter, Dr van Biljon gevra
om na haar wond
te kyk. Dit was in Julie van 2013. Haar klagte aan Dr van Biljon was
dat
"die snit bly stukkend gaan.
As
ek iets dra met 'n
belt is... dit gaan stukkend."
Die eiseres is toe verwys na
Professor Coetzee wat weer 'n rekonstruktiewe "tummy tuck"
gedoen het om poog om haar maag
"gelyk te maak". Daar was
blykbaar 'n "duik in die maag".
(16)
Die eiseres is verwys na fotos van die snit. Hierdie fotos is nie
fotos van haar huide voorkoms nie en is die fotos nie op
daardie
basis aangebied nie. Die fotos is van die snit op die stadium toe
daar nog 'n gat in die middel van haar maag was en daar
nog steke in
was. Die fotos is geneem oor die tydperk van die eerste operasie en
die behandeling daarna deur Dr Johan van Heerden.
Die wond het oor 'n
tydperk van ses maande genees. Die eiseres het getuig dat sy nie
ingelig is deur die verweerder oor die moontlike
komplikasies wat mag
volg nie.
(17)
lndien sy wel ingelig is, sou sy nooit die operasie ondergaan het
nie. Sy het verder getuig dat indien sy ingelig is dat sy
nie geskik
is vir so 'n operasie as gevolg van haar gewig nie, sou sy ook nie
daartoe toegestem het nie. Sy getuig dat sy verskriklik
pyn gehad het
na die eerste operasie asook die tweede en derde operasie.
(18)
Die eiseres het getuig dat sy het tans gereeld pyn het. Wanneer sy
sit of staan het sy pyn. Die snit raak dood as sy nie staan
nie.
lndien sy sit kan sy nie opstaan nie. Sy staan gereeld op by haar
werk en beweeg rond. Sy voel dat die wond "te styf
is en dat dit
sal oopskeur".
(19)
In kruisondervraging is dit aan die eiseres gestel dat sy nie die
dokter se voorskrifte nagekom het omdat sy self haar motorvoertuig

bestuur het. Sy het erken dat die dokter haar verbied het om self te
bestuur vir vier weke na die operasie. Dit is aan haar gestel
dat ene
Jeanette Van Den Berg gaan getuig dat sy net vir die eerste twee
besoeke opgedaag het met iemand wat haar gebring het,
maar daarna het
sy self bestuur. Dit is verder aan haar gestel dat Mev Van Den Berg
sal getuig dat die eiseres aan haar genoem
het dat sy versigtig
bestuur, kussings om haar sit en dat sy ook 'n BMW bestuur wat "sag
ry". Die eiseres het dit ontken.
Die eiseres het ook ontken dat
sy vir Mev Van den Berg gevra het om nie vir die dokter te se dat sy
self bestuur het nie. Sy het
ook ontken dat dit Mev Van Den Berg was
wat met haar geskakel het om die operasie te reël.
(20)
Die eiseres het erken dat sy in 2013 haar prokureur gaan sien het oor
'n moontlike eis en dat dit Professor Coetzee was wat
vir haar gese
het sy "moet dit nie hier los nie." Die eiseres het erken
dat sy na die operasie gegly en geval by 'n stadium
in Potchefstroom
ongeveer 'n jaar gelede. Sy het 'n rib beseer. Sy is behandel en
X-strale is geneem. Die oorsaak van die val is
omrede sy die trappe
nie duidelik gesien het nie. Sy het ongeveer 60cm na benede geval.
(21)
Die eiseres kon nie verduidel ik waarom Dokter Van Heerden na die
operasie op 31 Augustus 2011 die volgende in sy verslag geskryf
het
nie. Sy het die korrektheid daarvan ook nie ontken nie:
"On
16 May 2014 the patient was requested to follow up with me as I never
had the opportunity to evaluate the final result
after the
reconstructive procedure on the lower abdomen. She gave the history
that she consulted
a
third plastic surgeon to improve the
cosmetic result after the wound healing complications ......she
also complained of an abdominal hernia on the right side which was

not present in 2011".
Die eiseres het ontken dat daar geen
breuk in 2011 was nie en aangedring dat Dr Van Heerden dit gemis het.
Sy het ook getuig dat
Professor Coetzee die breuk gemis het.
(22)
Die eiseres kon nie onthou of sy vir Dokter Van Heerden op 30
Augustus 2011 genoem het dat sy voel asof 'n bult in haar maag
haar
pla.  In Dr Van Heerden se verslag is die volgende
gedokumenteer:
"on examination it was evident that the wound
healing problems with associated scaning occurred in the midline.....
All the
wounds are healed and the patient mentions that she is happy
with the present outcome".
Die eiseres het dit ontken. Sy
het getuig dat sy op daardie dag haar rekords gaan haal het by Dr Van
Heerden. Dr Van Heerden het
geweier om sy kliniese rekords oor te
handig.
(23)
Die eiseres het verder ontken dat Dr Van Heerden die eerste keer in
2011 oor haar breuk in sy verslag geskryf het. Sy dring
aan dat hy
die breuk in 2011 gemis het. Dr Van Heerden se verslag lees verder:
"on examination it was evident the wound healing......, .all
the wounds are healed and the patient mentions that she is happy
with
the present outcome"
Sy het aangedring dat sy nooit
ondersoek is. Die eiseres het ontken dat sy vir Dr Van Heerden gese
dat sy gelukkig is. Sy getuig
dat sy gese het dat Professor Coetzee
haar voorkoms 'n bietjie verbeter het.
(24)
Die eiseres kon nie ontken dat Dokter Van Biljon in sy brief van Mei
2016 verwys na die "tummy tuck" en skryf
"sy het
goed herstel en is tans simptoom vrj'.
Sy kan ook nie onthou of
sy vir Dr Van Biljon vertel het van die verskriklike pyn nie, dat
haar maag dood is, dat sy nie kan nie
regop staan as sy klaar gesit
het nie ensovoorts. Dit is aan die eiseres gestel dat die pyn wat sy
ervaar kon wees van die twee
breuke wat sy het. Haar antwoord is dat
die pyn nie afkomstig is van die breuke nie maar van die snit.
(25)
Sy is verwys na die verslag van Dr Robson, die eiseres se eie
deskundige getuie, wat aantoon dat dit hoogs onwaarskynl ik is
dat
die breuke as gevolg van die operasie ontstaan het. Hy dokumenteer
ten aansien van die breuke:
"to be typical of the behaviour
of an ingenial hernia"
en verder......"Also
at the
time of my examination of the patient I found that there was an
ingenial hernia present on the right side. An lncisional
hernia would
behave differently."
Die eiseres kon nie daarop kommentaar
lewer nie.
(26)
Dit is aan haar gestel dat sy verskeie klagtes gerapporteer het aan
Mev Putter, die Arbeidsterapeut, soos byvoorbeeld dat haar
maag
verskriklik swel, soggens en veral saans. Die verslag van Mev Putter
lees:
"current pain and physical complaints";
en
verder:
"She experiences weakness in her abdominal
muscles."... "she is unable and too weak to tum or change
sides as normal
when lying in the bed."..... "she is unable
to sit up straight without the support of her arms." ......"she

struggles getting up from sitting to standing and has to make use of
arm rests to push herself up with her arms".
(27)
Mev Putter se verslag lees verder:
"post incident functions"
"she experiences feelings of frustration and irritation and she
struggles physically to
do things which were never
a
problem".
Dit is aan haar gestel dat sy tans 'n huishulp het vir slegs een
maal per week in plaas van vyf dae per week soos voorheen. Die
verslag van Mev Putter handel oor die eiseres se beperkinge wat die
eiseres toeskryf aan stywe maagspiere en "die vel wat so
styf is
oor die maag".
(28)
Die eiseres is verwys na die gesamentlike verslag van Dokters Robson
en Jandera waar hulle die volgende dokumenteer:
" Will an
abdominoplasty in this case strengthen or weaken her core? "An
abdominoplasty would in my opinion be essentially
neutral. The
possibility of increasing the strength of the core is therein that
the rectus abdominis muscles are approximated.
However, I would feel
that any increase in this would be negligible. A decrease in the core
strength would be similarly unlikely."
Verder:
"Did
the operation contribute to the patient's difficulty getting up and
sitting down?
Die dokters se:
"I cannot see any logical
mechanism whereby the operation could contribute to her getting up
from
a
sitting position or from the floor. The muscles were
not damaged and
as
noted earlier core strength would be the
same
so
in terms of the operation causing this disability, I
cannot see any reason to blame the operation for it."
Die
eiseres se kommentaar was onder andere dat haar spiere het sag geword
van die baie lê.
(29)
Volgens beide Ors Robson and Jandera is dit medies gesproke
onwaarskynlik dat die eiseres se maagspiere swakker sal wees as

gevolg van die operasie. Dit is aan haar gestel dat haar vel kan rek
soos in die geval van 'n swanger vrou se vel. Dit is verder
aan haar
gestel dat sy nie teenoor Dr Jandera gekla het oor haar vel se rek
probleem nie. Sy het nie die vraag betwis nie. Die
eiseres volhard
dat die operasie veroorsaak het dat sy fisies ingeperk is en dat sy
nie kan doen wat sy voor die operasie gedoen
het nie.
(30)
Mevrou Putter se verslag onder "General Observations" toon
dat:
"However at times needed external motivation to complete
one or more repetitions of
a
task. Her petformance was
therefore influenced by self-limiting behaviour which exceeded the
accepted limit."
En verder
".........she was
cooperative and followed instructions however at times she required
external motivation to complete one or
more repetitions of
a
task
and her petformance was therefore influenced by self-limiting
behaviour which exceeded the accepted limits according to the
Ergo
Science FCE.
.....
The reported reason for her displayed
self-limiting behaviour was due to
a
fear of further injury,
pain as well as not knowing to which extent she can force her body to
assume postures as she reported that
her hernia pops out and
furthermore she indicated that everything skin and muscles over the
abdomen) feel as if it will tear."
(31)
Dit is duidelik uit die terapeut se verslag dat die eiseres se
inperkings deur haar eie gedrag veroorsaak is en dat daar geen

mediese verduideliking is vir haar fisiese inperkings nie. Haar gewig
ten tye van die eerste besoek aan die verweerder was 106
kilogram en
voor die operasie ongeveer 90 kilogram. Sy wou graag die operasie
ondergaan omrede sy oorgewig was en haar voorkoms
en selfbeeld wou
verbeter.
EVIDENCE
OF MS ANNELIES CRAMER
(32)
The plaintiff called Ms Annelies Cramer, a clinical psychologist. She
testified that she examined the plaintiff on 9 September
2016. She
prepared a report dated 23 September 2016. The report deals with the
information obtained from the plaintiff which largely
accords with
the plaintiff's evidence in chief. She conducted several tests on the
plaintiff, namely the Beck's Depression Inventory,
Post Traumatic
Stress and so on. Ms Cramer explained that generally an assessment
like this is called a clinical interview with
the patient which
includes some psychometric tests.
(33)
These tests give a fairly balanced view between a subjective account
and then a slightly more objective reporting of symptoms
based on
standardised questionnaires. However these questionnaires in a case
like this where psychological issues are investigated
are still self
report questionnaires. In other words there are certain structured
questions to which the person has to either say
true or false, yes or
no, or give a rating one to five etc. So it still relies on the
patient's self report but it goes through
certain syndromes and
symptoms in a systematic way and with that, and the clinical
interview, one can correlate and determine whether
there is a fairly
consistent picture.
(34)
The three tests that are selected in this instance were Beck's
Depression Inventory which is just a structured questionnaire
on
symptoms associated with depression a post traumatic stress disorder
checklist, which again just in a structured way looks at
the trauma
and anxiety type symptoms, and the third one a symptom checklist
which evaluates quite an array of psychological syndromes
of a more
severe psychological nature and personality characteristics.
(35)
The aim of the psychological assessment was to determine the nature
and extent of the emotional impairment or behavioural change
that has
occurred as a result of the incident in question. The results of the
assessment are used to predict how such changes may
impact on the
plaintiff's social or occupational functioning. This assessment was
performed just more than five years following
the plaintiff's
surgery. The plaintiff subjectively reported severe symptoms of
depression on psychometric assessment along with
significant symptoms
of post traumatic anxiety and the experience of very significant
psychological distress overall.
(36)
When questioned about her mood, the plaintiff acknowledged she is
depressed and noted that she feels hopeless and lacks interest
and
enjoyment in most activities. She has suffered a severe loss of
libido and no longer feels feminine or enjoys her own sexuality

anymore. Her low mood appears to be largely a reflection of her
ongoing experience of pain and discomfort. Her loss of independence

and inability to participate activities the she previously enjoyed,
such as dancing and going to the gym contribute to her low

self-esteem.
(37)
The sequelae of the plaintiff's surgery has had a further impact on
her social functioning as she noted that she is no longer
interested
in socialising with others and she appears to have become somewhat
withdrawn. Moreover her high levels of irritability
have compromised
her relationships with her family members and as a result she appears
to have become somewhat isolated. With regards
to her symptoms of
post traumatic anxiety the plaintiff reported that she has developed
a fear of medical procedures and is reluctant
to subject herself to
any further medical interventions or procedures.
(38)
The plaintiff's surgery and its resultant complications were clearly
extremely traumatic for her and have had a significant
impact on her
emotional and behavioural functioning along with her social
functioning and self-esteem. Moreover the plaintiff noted
that she
has suffered several traumatic experiences following this incident
with a loss of two of her family members.
(39)
While these events are likely to have further exacerbated symptoms,
her low mood and symptoms of post traumatic anxiety can
largely be
attributed to the surgery in question and its ongoing sequels. From
her subjective account she has clearly had a devastating
reaction to
perhaps moderate complications although the latter must be agreed
upon by the medical specialists. If disproportionate
which it may
well be, this is an indication of the vulnerability of her
personality structure and her pre morbid emotional well-being
and her
lack of resilience to adversity which has led to such a devastating
reaction. The trauma was complicated by emotional losses
in the form
of unexpected deaths of two family members.
(40)
The plaintiff requires psychological intervention in order to address
her symptoms of depression and post traumatic anxiety.
Individual
psychotherapy is recommended. Given the severity of the
laintifs depressive symptomatology referral to a psychiatrist
is
further advised for pharmacological augmentation of her symptoms.
(41)
In cross examination Ms Cramer was asked to explain the scores of the
plaintiff in the Beck's test. Ms Cramer stated that the
plaintiff's
responses were also consistent with her clinical presentation and is
very consistent with the way she presented in
court as well. It is
also consistent with the way the plaintiff describes her social
functioning and behavioural changes. Thus
there are direct
consequences in terms of the way the plaintiff lives her life which
is not something you expect to find with frank
malingering.
(42)
Ms Cramer said she was not in a position to comment on the validity
of the plaintiffs physical complaints. Ms Cramer's opinion
is that
the complaints are the plaintiff's experience and her complaints are
consistent. Something like pain and discomfort is
a subjective
complaint. It is very hard to say you have it or you do not have it
or to what extent one has it. It was also Ms Cramer's
impression at
the time that the plaintiff has become hyper sensitised to the
stomach and the wound area and this is a psychological
interpretation
and not a medical one.
(43)
The plaintiff has become overprotective of the area and to that
extent would probably have refrained from doing many things
like
adjusitng her posture and convincing herself that certain things are
just not possible anymore. People who tend to have a
lot of pain even
when their pain heals to some extent they remain protective of the
area because they fear further injury or they
fear further pain and
her interpretation of the plaintiff's complaints is exactly that.
(44)
It was suggested to Ms Cramer that the plaintiff portrays
characteristics of a person who is malingering. Her response was
that
in order to simulate a psychological disorder there is a lot of
consistency that has to take place if one wants to effectively

simulate a psychological disorder. Secondly, anxiety is not as easy
to simulate neither is it easy to simulate tears, for instance.
Ms
Cramer conceded that it is not impossible to simulate but emphasized
that it is not easy to simulate this kind of distress or
clinical
presentation that comes with anxiety.
(45)
In her interview with the plaintiff, the plaintiff was busy with
papers all the time trying to show her certain things but
she was
completely ineffective in trying to do so. In Ms Cramer's experience,
people who have made a study and are malingering,
have their facts at
their fingertips and reporting symptoms is usually smooth. That is
one example. The plaintiff was quite distressed
more so than she was
at the trial. At no point during the assessment did the plaintiff
appear happy. She was tearful, upset and
got agitated a number of
times with Ms Cramer as well as with the person who administered the
tests on Ms Cramer's behalf.
(46)
There is a decline in functioning of people with chronic depression
and anxiety and in Ms Cramer's opinion that is what is
evident in the
plaintiff's case. In Ms Cramer's opinion this is not a case of frank
malingering. Frank malingering presents slightly
different and there
would probably be more of a scattered score and test results with
some scales being more elevated, others being
less elevated,
conveying a particular clinical picture. It is Ms Cramer's opinion
that the plaintiff' reaction to what happened
to her,  was more
devastating than perhaps someone else's would have been. That is not
proof of malingering as much as it
is proof of the underlying
personality structure subjected to trauma and a resilience or lack
thereof to adversity. Some people
are more resilient than others. For
some it is the end of the world and others will carry on. People will
react differently. Some
people can overcome the same trauma in a
different kind of way and look better at the end of it, others not.
EVIDENCE
OF MS BERNADETTE PUTTER
(47)
The plaintiff called Ms Bernadette Putter, an occupational therapist
who had also examined the plaintiff and prepared a report.
She
examined the plaintiff on 24 May 2016 and prepared her report which
is dated 29 June 2016. She testified that the plaintiff
presented as
an overweight woman of medium stature. She was dressed neatly. She
communicated well in Afrikaans. Emotionally she
presented as a
euthymic affect yet became tearful on several occasions.
(48)
She noted that the plaintiff struggled to relay exact details and
dates and used a paper to make notes on to remember timeframe
of
events. She was cooperative and followed instructions, however, at
times needed external motivation to complete one or more
repetitions
of a task. Her performance was therefore influenced by self-limiting
behaviour which exceeded the accepted limit. Ms
Putter recorded that
when the plaintiff wanted to give up on a task that she was asked to
perform, she formed the view that the
plaintiff could have done more.
(49)
The particular test provides for up to 20 percent variance for self
limiting limitation which is normal behaviour and between
20 or 33
percent whch shows that the patient has exceeded the normal limits. A
score of more than 33 percent shows a significant
deviation from the
normal limits. The plaintiffs results were between 20 and 33 percent
and taking her whole clinical picture into
account Ms Putter is of
the opinion that the result is because of the Plaintiffs fear of
pain.
(50)
After two hours in the interview with Ms Putter, the plaintiff
started to change her position more regularly and reported to
be
uncomfortable due to pain over the scar area and her thoracic spine
area. One of the tests, the General Health Questionnaire
is also a
self-reporting questionnaire. The plaintiff tested positive for
significantly high levels of psychological distress and
therefore Ms
Putter recommended psychological intervention. The Pain Questionnaire
is also a self-reporting test. The Pain Disability
Questionnaire
results show a rating of 81 over 150 which indicates a moderate
disability.
(51)
The plaintiff s perception of herself is that she suffers from a
moderate disability taking all the physical disabilities and
pain in
consideration. The questions specifically rate functional every day
tasks. The Neck Disability Questionnaire was done because
the
plaintiff reported neck and thoracic spine pain on that day. The
plaintiff scored 24 out of 50 which is also seen as being
moderately
disabled in that regard. The conclusion is that the plaintiffs pain
description, her pain ratings, the reported influence
thereof on her
functioning and her non-verbal pain behaviour on that day of
assessment, correlates.
(52)
In general the plaintiff's pain seems sub-optimally, manageable with
basic analgesics, resting and changing of position. Deference
is made
regarding the relation or apportionment of the neck, thoracic and
bilateral knee pain on the incident in question. Deference
is made to
the relevant medical experts' reports regarding management of her
pain. The plaintiff will additionally benefit from
recommendations
made by Ms Putter.
(53)
A physical and function test was performed on the plaintiff.
Observations were made and in addition a standardised test, namely

the Ergo Science FCE was performed. Amongst other reports, the
plaintiff reported sensation loss and numbness over the scar area.

Her gait presented as normal. She did however walk in a slow manner
and her trunk posture tended to be in a more flexed forward
position.
The latter increased the longer she walked and the longer she
participated in physical assessment. When questioned, she
indicated
that she does this as it feels as if her scar area "will rip"
if she stands up straight.
(54)
Just to get to that point, Ms Putter noted that the plaintiff was
making use of a poor biomechanical posture throughout the
day when
she was sitting and standing. She questioned the plaintiff about her
posture in the light of the absence of a medical
or physical reason
causing poor biomechanical posture. The plaintiff's response was that
she is aware of her poor posture and feels
that she needs to assume
such a posture in order to protect her body. This is subjective
reporting.
(55)
Ms Putter's general observations during the Functional Capacity
Evaluation tests were that the plaintiff required external
motivation
to complete one or more repetitions of a task and her performance was
therefore influenced by self-limiting behaviour,
which exceeded the
accepted limits according to the Ergo Science FCE.
(56)
Her self-limiting behaviour is related to her fear of further injury,
pain and not knowing to which extent she can "force
her body to
assume postures". She reported that her hernia "pops out"
and furthermore she indicated that "everything,
the skin and the
muscles across the abdomen feels as if it will tear". She could
not comment on the possibility of the plaintiff
malingering because
she did not see the psychological reports, but confirmed that the
fear or re-injuring is an emotional approach
to the Plaintiff's
injury.
(57)
External motivation on her part is what Ms Putter engaged in, whilst
trying to get the plaintiff to do more of the movements.
The
plaintiff would respond that she can do more but is afraid. On
systemic evaluation Ms Putter commented that the plaintiff's
BMI
indicates that the plaintiff is overweight which influences her
physical functionality. Her blood pressure was also high on
that day
and she was told to seek medical attention.
(58)
The plaintiff reported that she had pain, discomfort and stretching
of the skin when trying to achieve full range of movement.
She
stopped before doing a full range of movement. The plaintiff has
difficulty to get up when she has been lying down without
holding
onto something and from sitting to standing. She uses her arms where
another person can stand up without assistance.
(59)
The mobility of her torso was reduced but is still functional. The
plaintiff is able to assume a full squat considering the
range and
movement of her hips, knees and ankles, however, she has to hold onto
external support like the bed or the chair for
balance of her torso
and abdomen is weak. She could not stand up by herself. She had to
push against or hold onto something to
get up which were indications
of weakness in her torso.
(60)
The remaining evidence of Ms Putter was similar in nature and
highlighted the plaintiff's self-limiting difficulties in performing

various tests. The plaintiff denied cognitive difficulties but
presented with emotional difficulties which Ms Putter noted as the

biggest contributor to her current loss of amenities and decline in
quality of life. Having heard the evidence of Ms Cramer, Ms
Putter
stated that she agreed that the plaintiff's emotional difficulties
caused her functional limitations.
(61)
Consequently it is imperative that the plaintiff seeks psychiatric
and psychological intervention. The plaintiff has an emotional

overlay of not being physically able to do certain things. The
suggested intervention may assist in her regaining her self-esteem

and body image.
(62)
The plaintiff will benefit from physiotherapy as recommended. Ms
Putter suggested various special and adaptive equipment to
assist the
plaintiff. It is unnecessary to deal with this in detail.
(63)
In cross examination Ms Putter stated that if the plaintiff is given
the recommended assistive devices she cannot say that
it will address
all of the plaintiff's problems. These devices will however assist to
improve her posture and experience less pain
and problems, more so if
she gets the necessary physiotherapy to improve her strength and
posture. The variance in test results
is the result of the
plaintiff's self-limiting approach. Ms Putter conceded that the
plaintiff is not struggling from physical
disability but rather
psychological limitation.
(64)
Ms Putter conceded that according to the plaintiff's records she
failed to go for physiotherapy after every surgical procedure.

Consequently, the plaintiff never had the opportunity to
strengthen her muscles after surgery. Ms Putter conceded thus that

this is the reason for the plaintiff's current inabilities. The
absence of therapy after the surgery is the reason why she became

weaker. The weakness is medically not attributable to the surgery.
(65)
Save for what Ms Putter observed in her examination, there is no
indication by any medical expert that the plaintiff's core
muscles
are weakened. Ms Putter conceded that, given that the hernia is not
surgery related, the defendant cannot be blamed for
the pain. She
conceded further that many of the plaintiff's complaints are also not
related to the surgery but rather to her failure
to rehabilitate her
body. Ms Putter agreed that the prescribed assistive devices should
only be awarded if it is found that the
plaintiff s postural
imperfection was caused by the incident.
(66)
It was put to Ms Putter that two doctors (not involved in the
litigation) indicated that, subsequent to Professor Coetzee's

surgery, the plaintiff is happy with the outcome and she does not
have any symptoms. If one compares this to the plaintiffs complaints

to the experts involved in the litigation and quantum an entirely
different picture is portrayed. Ms Putter was asked if this does
not
amount to malingering. Ms Putter could not comment. When asked why
she could not comment she replied that she agreed with the
opinions
of the psychologist and that she is not an expert in identifying
cases of malingering.
(67)
I asked Ms Putter for purposes of clarity whether in her opinion, the
plaintiffs condition would improve if she subjected herself
to
physiotherapy and perhaps therapy by a biokineticist. Ms Putter
agreed that this would help but could not confirm that such
therapy
would resolve all of her problems. There would be an improvement
which can result in either resolving or improving the
quality of the
plaintiff s life and functionally with less pain.
EVIDENCE
OF MS LEA NGUBANE
(68)
Ms Ngubane expressed the desire to testify in Afrikaans despite her
mother tongue being lsiZulu. Ms Ngubane testified that
she is
employed by the plaintiff for several years. During 2011 when the
plaintiff was hospitalised and returned home she took
care of the
plaintiff. She attended to every need of the plaintiff who could not
"fend for herself'. One Qom Koos brought
the plaintiff home
after the operation. After eight days the plaintiffs son took her to
the doctor.
(69)
Subsequently one Helgaard assisted the plaintiff with transport to
the doctor. She denied that the plaintiff drove herself.
She
confirmed having seen the wound which had opened. She confirmed that
the plaintiff was active, would cut the grass and do odd
jobs around
the house before the operation.
(70)
The plaintiff then closed her case.
GETUIENIS
VAN MEV JANET VAN DEN BERGH
(71)
Die verweerder het vir Mev Janet Van den Bergh geroep wie getuig het
dat sy vir die verweerder in sy praktyk werk sedert 16
September
2010. Sy ken die eiseres and onthou haar goed. Sy het verder getuig
dat die eiseres haar gebel het vir 'n afspraak met
die verweerder wat
gemaak is vir 5 Julie 2011, op daardie datum 'n week later.  Die
operasie het plaasgevind op 12 Julie 2011.
(72)
Daar was opvolg besoeke twee weke na die operasie. Sy het gereeld vir
die eiseres koffie aangebied en een oggend het die eiseres
teenoor
Mev Van den Bergh bely dat sy self bestuur het. Sy het vir die
eiseres gese dat dit die rede is waarom haar wonde nie genees
nie, en
die eiseres het vir haar mooi gevra om nie vir die dokter te se nie.
Dit was gedurende die tweede week na die operasie.
(73)
Die eiseres het vir Mev Van den Bergh verseker dat sy kussings om
haar pak, dat sy stadig ry, haar kar sag ry en dat sy sorg
dat sy nie
by rooi verkeersligte hoef te stop nie. Op daardie stadium het die
wond al oopgegaan. By een geleentheid het 'n persoon
die eiseres
vergesel na die besoek wie aan haar voorgestel is as die eiseres se
vriend. Sy was nie by die verweerder se praktyk
betrokke in 2009 nie
en het eers die eiseres in 2011 ontmoet. Sedert haar indiensneming by
die verweerder het sy nog nooit iemand
geskakel en uitgenooi om
chirurgie te ondergaan nie. Die verweerder het haar nog nooit versoek
om so op te tree nie.
(74)
In kruisondervraging het Mev Van den Bergh verduidel ik dat die
eiseres met 'n oop wond by die spreekkamers aangekom het, maar
sy het
gebukkend geloop. Sy het nie vir die verweerder vertel dat die
eiseres self bestuur nie omdat die eiseres belowe het om
dit nie weer
te doen nie, ten spyte van die feit dat die wond nie genees nie. Mev
Van den Bergh het toegegee dat sy 'n plig het
teenoor die verweerder
om horn in te gelig het oor die feit dat die eiseres self bestuur het
asook lojaal teenoor horn is. Sy het
getuig dat die eiseres
verduidelik het dat sy nie iemand gehad om haar te bring nie, en sy
self by dokter moes uitkom.
(75)
Die eiseres het volgens Mev Van den Bergh gebukkend ingeloop soos na
'n normale "tummy tuck", maar sy het nie gekla
van pyn of
enigiets nie. Sy het ten sterkste ontken dat sy die eiseres gebel na
die eerste besoek om in the kom vir 'n operasie.
Sy het die eiseres
wel probeer bel om te sien hoe dit met haar gaan, maar die eiseres
het glad nie haar oproepe beantwoord het
nie. Mev Van den Bergh het
toegegee dat dit haar plig was om die verweerder in te lig dat die
eiseres self bestuur en dat sy die
verweerder se voorskrifte
verontagsaam.
(76)
In herondervraging het Mev Van den Bergh verduidelik dat sy ten alle
tye by was toe die verweerder die eiseres behandel het
en dat die
wond nie heeltemal oop was nie, maar dat dit 'n gaatjie was wat
oopgegaan het ongeveer so groot soos 'n 50 sent muntstuk,
in die
middel van die eiseres se maag. Die verweerder het die wond behandel
en Mev Van den Bergh het geglo die wond sal genees.
EVIDENCE
OF DOCTOR VIVIENNE BLASTA JANDERA
(77)
The defendant then called Doctor Vivienne Blasta Jandera. She
testified that she prepared a medico legal report in this case.
She
examined the plaintiff on 12 July 2016. Her report pertains to the
scarring resultant from abdominoplasty surgery performed
on the
plaintiff on 12 July 2011 and the subsequent post-operative
complications which occurred. Under the heading "Present

Complaints" she noted the following:
(1)  that the patient stated she
is unhappy about the final appearance of the scar. She indicated that
she will never be happy
with the result and feels that Professor
Coetzee did his best to correct the problem as far as possible.
(2)  She complained that she
struggles to get up from the floor or from a chair. She finds it
difficult to turn and she has
no feeling in her lower abdomen. She
claims that she moved from a 240 square metre house to a bachelor
flat as she could not physically
maintain the house. She finds her
loss of physical mobility difficult to deal with. She is upset that
she cannot play with her
grandchildren as it is difficult for her to
get up from the floor.
(3)  She says that she is
depressed and her whole outlook on life has changed. Even though she
has been divorced for 11 years,
she has not been involved in any
relationships. Much of her feelings are directly related to the
physical symptoms indicated above.
She is a bookkeeper and does books
for clients but has passed on a lot of work to her son, as she is too
tired.
(4)  The plaintiff complains of
difficulty getting up from a sitting position as well as turning her
body. She personally witnessed
this when the plaintiff struggled to
get out of her jeans and showed difficulty getting on and off the
examination couch.
(78)
Doctor Jandera explained that the plaintiff s depression is directly
related to her physical symptoms. She explained further
that the
plaintiff felt that her quality of life had changed and that she was
unable to do some of the things which she could do
before the
surgery. She complained that she found some loss of physical mobility
difficult to deal with.
(79)
Doctor Jandera reported at page 49 of her report the following:
"She
was casually but neatly dressed and she answered all questions
helpfully and was polite. She appeared despondent though.
I measured
her height at 1.68 metres and her weight at 96. 7 kilograms. The
following scars were present. She had a 63 centimetre
[indistinct]
lower abdominal scar. There was a central area of scarring which
measured six by seven centimetres. This had healed
and was a little
indented and there was widened scarring around the umbilicus but the
contour of the abdomen was good by which
I mean flat and I took
photographs of the patient's abdomen on that day and enclosed it with
my report."
(80)
Doctor Jandera then referred to the photographs taken by Professor
Coetzee prior to the surgery and she then indicated a definite

contour deformity with excess tissue in the upper abdomen as compared
to the lower abdomen and mentioned that this is a sub optimal

aesthetic result. She explained that although the wound had all
healed, the plaintiff did not have a completely flat contoured

abdomen as one would expect after an abdominoplasty. There was a
central fullness above the umbilicus and it was flat below the

umbilicus.
(81)
Doctor Jandera commented that the result obtained by the revision
surgery of Professor Coetzee is good.  The contour of
the
abdomen is flat. There is scarring present, quite faded, but that it
will not be possible to surgically improve the result
because you
cannot excise any further tissue in that area to improve the scar.
(82)
Doctor Jandera testified with reference to her report that the
plaintiff suffered from delayed or complicated wound healing
post
operatively in all three operations performed by three different
surgeons. She explained this by pointing out that sometimes
there are
difficulties in wound healing with patients and some patients heal
differently and she noted with both the revision surgery
by Doctor
Van Heerden and the follow up surgery by Professor Coetzee (including
the first surgery), that there were some difficulties
in healing.
(83)
Doctor Jandera found it difficult to explain why the plaintiff was
struggling to get out of her jeans and to get on and off
the
examination table. She explained that an abdominoplasty usually
strengthens the patient's core by opposing the rectus muscles

correctly. The hernia complained of by the plaintiff would also give
similar symptoms to that complained of by the plaintiff. When
an
abdominoplasty is performed on women who have borne children, if
often happens that the two rectus muscles separate and there
is an
area which forms and requires to be repaired as part of a tummy tuck.
The relevant literature dictates that it either has
no effect on
stability, or it can actually improve the stability because a circle
of core for the back is created. When this procedure
is performed the
edges of the rectus muscles are sutured together along its length to
restore the circle around the patient but
at no point is the vertical
distance of that muscle shortened.
(84)
Dr Jandera reported that the physical difficulties complained of by
the plaintiff cannot be explained following an abdominoplasty
and it
is therefore recommended that the plaintiff be evaluated by an
occupational therapist. She explained her recommendation
from a
plastic surgeon's point of view and the experience that she has had
with previous patients. She said that she has not had
patients with
similar complaints to those of the Plaintiff. Most of her patients
who have had tummy tucks walk with a slight forward
posture but this
clears up after a week and there is no damage done to the muscles by
such a procedure. The absence of an explanation
for the plaintiffs
physical complaints are concerning to Dr Jandera.
(85)
Doctor Jandera and Doctor Robson (the plaintiffs expert) agreed in a
joint report that the plaintiffs symptoms are not incident
related.
The plaintiff appears to be clinically depressed and has been placed
on medication by a general practitioner. The plaintiff
has not seen a
psychiatrist or psychologist. Dr Jandera opined that the plaintiffs
depression has a debilitatory effect on her
quality of life which
seems out of proportion to the abdominal scarring but might be
related to physical symptoms.
(86)
She explained that she was concerned that the plaintiff had so much
physical pathology she complained of, following her physical

inability to do things, which did not fit in with the operation in
issue. This is why she recommended that she be seen by an expert
in
psychology or psychiatry.
(87)
Dr Jandera commented on the plaintiff's complaint about the tautness
of the skin around her abdomen by stating that during
an
abdominoplasty one opens the skin flap and then brings the skin down
and sutures it. Skin has the capacity to stretch. That
is why for
example tissue expansions are used to reconstruct burn defects.
Pregnancy in women stretches the skin. During normally
activity skin
stretches in relation to the movement of the body. Dr Jandera was of
the opinion thus that the plaintiff's complaints
in this regard could
not be the result of the surgery.
(88)
The cross examination that followed was aimed mainly at the operation
report which went missing and which Dr Jandera had not
seen, together
with the fact that no one performed a sonar or an MRI scan on the
plaintiff. Dr Jandera saw the notes that were
provided to her as well
as the nursing notes which shows no abnormalities. Dr Jandera
confirmed that the sonar examination would
not reveal any muscle
damage although one could see the presence of the muscles and whether
they were opposed to each other.
(89)
Dr Jandera confirmed that a clinical examination would also reveal
whether the repair is intact. She examined the plaintiff
clinically
while the plaintiff lay on her back by placing tension on the rectus
muscles and raising her head from the pillow. These
tests cause the
muscles to tense and one can digitally palpate whether there is a
large gap or not.  Dr Jandera did not feel
such a gap and the
results of her examination were normal.
(90)
In re-examination Dr Jandera confirmed her joint report with Dr
Robson in which they both agreed that the result of an abdominoplasty

on the core muscle would essentially be neutral. The possibility
exists of increasing the strength of the core, but this would
be
negligible. A decrease in the core strength would be similarly
unlikely. She also cannot see any logical reason how the operation

could contribute to the plaintiff's inability to get up from a
sitting position or from the floor. Her abdominal muscles were not

damaged as noted earlier and her core strength would have remained
the same. The operation did not result in her reported symptoms.
This
is also the opinion of the plaintiff's own expert, Doctor Robson.
(91)
The defendant closed his case.
PLAINTIFF'S
CLOSING ARGUMENT
(92)
The plaintiff's counsel presented argument along the following lines.
It was submitted that it is common cause that there were

complications with the healing of the wound. Secondly, the defendant
did not inform the plaintiff of the well-known normally associated

complications with this type of operation. This is what the plaintiff
testified which was undisputed. According to Dr Robson's
and Dr
Jandera's reports, the possible complications are well known.
(93)
The plaintiff testified, and this was not disputed, that she was not
informed about the possible complications, otherwise she
would not
have undergone the operation. As a result of the complications two
further operations were necessary to remedy the now
evident
complications. As a result the plaintiff is physically and
permanently scarred and she suffered extreme pain during the
course
of the operations. The plaintiff's counsel conceded though that
despite the scar being unsightly as a result of the second
and third
operations there would by the very nature of the procedure, have been
a scar of approximately 64 centimetres.
(94)
The plaintiff's counsel submitted that the plaintiff has been
suffering from extreme pain, suffering, loss of amenities of
life,
emotional trauma and emotional distress to date. The plaintiff is
emotionally scarred today. The plaintiff's counsel submitted
that the
emotional sequelae were foreseeable in that the defendant should have
foreseen that if complications arise, they could
lead to emotional
sequelae culminating in psychological block inside her head
preventing her from moving as freely as she previously
could.
(95)
The plaintiff's counsel referred me to the case of Road Accident Fund
v Sauls
2002 (2) SA 55
(SCA) wherein a woman who witnessed her
fiancee being struck by a motor vehicle, on appeal, successfully
claimed damages for emotional
shock and distress. The plaintiff's
counsel submitted that in the case he referred to, foreseeability was
not an issue but negligence
was the key factor. I do not follow the
reasoning of these submissions but will return to this aspect under
the discussion on general
damages hereunder.
(96)
The plaintiffs counsel, despite acknowledging that the experts on
both sides were
ad idem
that the plaintiff is physically
capable of doing the things she testified she cannot do, maintained
that the mere fact that the
defendant agreed that the plaintiff needs
to go for psychological treatment, is an admission that she has a
psychological problem.
The plaintiffs counsel argued further that the
defendant should have informed the plaintiff of the possible
consequences and relied
upon the principle of informed consent. He
also submitted that the defendant should have taken the plaintiffs
BMI (body mass index)
into account and the defendant should further
have foreseen that there would be consequences because the plaintiff
was overweight,
and should not have performed the operation.
(97)
The plaintiffs counsel submitted that the principle of
dolus
eventualis
finds application. The question of liability was
settled between the parties and it is difficult to conceptualise the
concept of
dolus
playing a role in determining causality and
damages, which are issues for determination.
(98)
The plaintiff claimed general damages, past medical expenses and
future medical expenses. This is set out in paragraph 10.1
of the
particulars of claim. The plaintiffs counsel referred me to the case
of De Jongh v Dupisani NO
2005 (5) SA 457
(SCA). At the heading
thereof the following is stated:
(1)
"Skadevergoeding
-
Omvang van vir persoonlike beserings, algemene skade:
Stygende tendens vir toekennings duide/ik waameembaar. Dit
kan
nie toegeskryf word aan die siening dat suinigheid met vergoeding nie
in die samelewing bestaan nie.
Konserwatisme by die toekenning van
algemene skadevergoeding het sy oorsprong in die behoefte dat
billikheid teenoor die verweerder
ook moet geskied.
Vennelde stygende tendens verg nie
'n vennenigvuldiging van vroeëre
toekennings met
voorafbepaalde faktor nie."
(99)
The plaintiff's counsel submitted that as a result of the heading of
the said case he is unable to point the court to any particular

parameter in respect of general damages. However he quoted from the
said case as follows:
"Die tendens, slegs een van
oorwegings wat die hof by die uitoefening van sy diskresie geregtig
is
om
in ag te neem wanneer na vorige toekennings verwys
word."
"Die styginge tendens vir
toekennings vir a/gemene skade in die meer onlangse verfede is in
uitsprake duidelik waameembaar."
"Die effek van voonnelde
waameembare tendens vir toekennings in a/gemene skade is egter
weereens nie met matematiese presiesheid
bepaalbaar nie."
"Die hof
se
antwoord op
die verweerder se gelykluidende beroep op toekennings in vorige
beslissings  was hoofsaaklik dat daar in die jongste
beslissings 'n neiging by party van ons howe te bespeur is om
groter bedrae as algemene skadevergoeding in geval van emstige
beserings
toegeken as wat soms in die verlede die geval was en..."
"...het die verhoorhof
voorgegaan. Hierdie opwaartse neiging in toekennings vir algemene
skadevergoeding in emstige gevalle
is myns insiens te verwelkom.
In emstige gevalle, soos die
onderhawige, is skadevergoeding 'n powere plaasvervanger vir die
menigte genietinge, plesier en vervulling
wat 'n gesonde mense die
lewe aanbied.
Dit betaam nie die beskaafde
samelewing om in verdienstelike gevalle daarmee suinig te wees nie".
(100)
The plaintiff's counsel submitted that the court should use its
discretion to determine the award for general damages with
reference
to the said case and with all the prevailing circumstances in mind.
He submitted that an amount of RSOO 000.00 is an
appropriate award
for general damages. In respect of the balance of the plaintiff's
claim, the figure submitted by the plaintiff's
counsel, regard being
had to the agreement on the merits, is R244 766.00 (less 10%).
DEFENDANT'S
CLOSING ARGUMENT
(101)
The defendant's counsel in her argument submitted that even if there
were no complications, there would have been scarring
by the very
nature of the operation. The only evidence in this regard is that of
Dr Jandera who conceded that the scar is a little
bit higher than it
should or would have been. She submitted that the only evidence was
that the scarring is a little higher that
it would normally have been
but there was no evidence that the scarring is unsightly.
(102)
There is nothing physically wrong with the plaintiff. On the aspect
of malingering, the defendant's counsel submitted that
despite the
evidence of Dr Kramer, who doubted whether the plaintiff was
malingering, there is sufficient evidence before the court
to sustain
a contention that the plaintiff is malingering. Dr Cramer's expert
opinion may not be wrong, from an expert's point
of view, but the
factual assumptions underlying the opinion are wrong.
(103)
Dr Cramer testified that she does not believe that the plaintiff is
malingering because the complaints or the difficulties
were very
consistent throughout. The defendant's counsel relied upon the
reports of the doctors who were not involved in this litigation,
Dr
Van Heerden and Dr Van Biljon, both of whom indicated that after
treatment by Prof Coetzee the plaintiff was satisfied and symptom

free. The reports in support of the plaintiff's case sketch a
different picture.
(104)
The defendant's counsel argued that the only thing wrong with this
plaintiff is the fact that she had two additional surgeries
and she
is now left with a more unsightly scar because it is higher.
Psychologically, what was discovered by the psychologist,
is nothing
but malingering. This is of course an issue of credibility which is
reserved for a court to determine.
(105)
The defendant's counsel argued that the proposed depression is a
phenomenon usually found is cases like this where plaintiffs
actually
feign symptoms of fatigue, not enjoying life anymore, crying when
they have to, and physically not being able to do certain
things. She
argued further that when the psychologist does not diagnose
malingering he/she will look at the symptoms and say the
plaintiff
suffers from depression or post traumatic stress disorder. She
conceded that there is no evidence to support an argument
for
malingering but argued that in the absence of evidence of a physical
limitation on the part of the plaintiff one should bear
in mind that
she may be malingering.
(106)
The defendant's counsel argued further that there is nothing
psychologically wrong with the plaintiff based on the evidence

presented and if the court should find that the plaintiff is
psychologically compromised, then the issue of foreseeabil ity
requires
scrutiny. Firstly, the contention that the defendant should
have proved that Dr Meyer could not have foreseen the complications

of the operation is incorrect. It is the plaintiff who bears the
onus.
(107)
The plaintiff should have proved that Dr Meyer could have foreseen
the complications and that the complications could have
emotionally
scarred the plaintiff to the extent she contends to be. There is no
such evidence before the court. The normal complications
following
surgery, like the sepsis or the opening of the wound, would have been
foreseeable but not the psychological limitations
as contended by the
plaintiff.
(108)
The plaintiff's argument that if the defendant has made provision for
the treatment of the psychological difficulties, it
implies that the
defendant agrees that the plaintiff is indeed so compromised, is
incorrect. The provision made is based on a postulation
that if the
court should find that the plaintiff is psychologically compromised
as contended, and that such damages flow from the
surgery, then the
defendant agrees to the plaintiff undergoing such treatment on the
basis that once she receives such treatment
she can go on with her
life. That is why a figure was calculated with reference to the
relevant reports and actuarial calculation.
(109)
With regard to the assistive items suggested by the occupational
therapist the defendant's counsel argued that the defendant
is
willing to provide these items however if the plaintiff's
psychological issues are not addressed then none of the items
suggested
by the occupational therapist will assist the plaintiff.
The defendant's counsel argued by way of example that in cases where
people
are in so much pain that it leads to depression, one cannot
adopt the approach that by addressing only the depression, the pain

will also subside.
(110)
On this basis therefore the defendant contends that the items
suggested are of no value unless the depression is addressed.
The
defendant's counsel argued that the items suggested are pointless if
the depression is not addressed, but did confirm the therapist's

evidence that the suggested particular mattress and other items would
assist in relieving the plaintiff's pain, assist in the plaintiff's

posture and assist the plaintiff in rolling over in bed.
(111)
The plaintiff's counsel referred to amounts in respect of the
occupational items suggested on page 132 of the relevant bundle
B.
Item 17 thereon relates to vehicle maintenance provision. The
occupational therapist conceded that this item must be deleted.

Therefore an amount of R137 446.00 must come off from the total of
R244 766.00 as well as the amount of R34 000.00 for the psychotherapy

leaving a balance of R73 320.00 before the 10% is deducted in respect
of the settlement of the merits.
(112)
With regard to general damages the defendant's counsel similarly
could not find case law on abdominoplasty in South Africa.
The
defendant's counsel contended that she considered as a basis an
amount of R500 000.00 and then applied thereto the circumstances
and
award in Smith v Road Accident Fund (Arbitration Forum: Case No.
AF001/6/928) dated 31 October 2003, wherein the decision of
RAF v
Marunga
2003 (5) SA 169
(SCA) was considered. The plaintiff was a 5
year old boy with the following injuries as per the headnote:
"An avulsion injury and
traumatic amputation of the entire left ann, severe soft tissue
damage, rendering re-plantation of
limb impracticable. Boy sustaining
severe pain, shock and distress as
a
result of the horrific
injury. Hospitalised initially for 2 weeks, but readmitted to
hospital 6
months later for revision of amputation stump and
removal of most of the residual humeral head. Absence of stump
rendering chances
of functional prosthesis in the future poor, but
a
non-functional prosthesis, resembling
a
human arm, could be
considered purely to improve the appearance and boost the self-image.
Behavioural
problems in the form of aggression and withdrawal.
Psychological
inteNention may be required, etcetera. What we have here is
a
permanent disablement."
The award for general damages was
R250 000.00 per Adv P.A.Corbett acting as an arbitrator. The
defendant's counsel submitted that
in today's values the award is
equal to R500 000.00.
(113)
The defendant's counsel also referred to the decision of Mqutwa v
Road Accident, Eastern Cape High Court, case number 3178/2006,
per
Jones J, date of judgment 7 May 2010 where an 11 year old scholar
sustained the following injuries: An 11 year old scholar
in Grade 3,
damage to the left hand, consisting of serious orthopaedic and
de-gloving injury, involving loss of bone and soft tissue
and skin.
He had a traumatic amputation of the 4th and 5th fingers, followed by
surgical amputation of the 4th and 5th metacarpal
bones through the
level of the joint where the metacarpal joints of the hand meet, the
metacarpal bones of the wrist. In effect
he lost two fingers and half
of the palm of his hand. This injury resulted in serious permanent
functional disability, although
he is right handed. Not only in
respect of normal daily living, which involved bilateral activity of
hands, where disability is
described by slight to moderate, but also
in respect of his enjoyment of amenities of life and his capacity to
earn a living. It
was found that he would suffer significant sporadic
discomfort for the rest of his life. The court awarded R250 000 in
2010 which
is equivalent to today's value of R343 000.00.
(114)
The defendant's counsel lastly referred to the case of Mance v Road
Accident Fund Cape of Good Hope Provincial Division: Case
No 8339/99,
date of judgment 7 June 2001 wherein the plaintiff sustained the
following injuries: A young man in his twenties suffered
a mild
concussion, amputation of the distal phalanges of the middle and ring
fingers of his left hand, dislocation of both left
and right
shoulders, fracture of the left tibia plateau, facture of a number of
ribs as well as injuries to the left arm, right
hand and right foot.
He also suffered a fat embolism as well as compartment syndrome in
the left calf. The important part of this
judgment is that the
treatment including initial hospitalisation from 11 August 1994 to 6
September, followed by intensive therapeutic
rehabilitation, crutches
used for about 1 month, then a calliper to support the left leg for a
further 2 months. At the time of
the trial the plaintiff had already
undergone 11 operations and he was still faced with 2 operations to
improve extensive and unsightly
scarring, plus further operations to
improve and ultimately replace the left knee and right shoulder. The
pain in the right shoulder
would be a significant factor and there
would also be pain in the left knee and back. He was left with
permanent physical impairment,
causing reduced earning capacity. In
this case the court in 2001 awarded general damages in the sum of R85
000.00 and in today's
value is equivalent to R197 000.00.
(115)
The defendant's counsel argued that, based on the cases referred to,
the amount that the plaintiff would be entitled to should
be R150
000.00. She then argued that an amount of R250 000.00 is reasonable
which would include the cost of the psychotherapy and
any other costs
applicable. The R150 000.00 for general damages is submitted as being
reasonable on the basis of the Mqutwa
supra
in which the
injuries were far more serious and the current value of the general
damages in that case is R343 000.00. The plaintiff's
submission of
R800 000.00 is unrealistic under the circumstances and not
proportionate to the injuries in the current matter, regard
being had
to the cases referred to above.
(116)
The plaintiff's counsel in re-address relied on the fact that no
evidence was led on the plaintiff malingering and this was
mere
speculation. Furthermore, the reliance upon the word
"simptoomvry"
used by Dr Van den Heever when he saw the plaintiff in 2016 show
that that there was nothing wrong with the plaintiff's wound and
not
that there was nothing wrong with the plaintiff in total.
(117)
The plaintiff's counsel conceded that the report of Dr Van Heerden
was filed by the plaintiff herself and if there was any
ambiguity
this would be on the plaintiff to explain. Once cannot simply ascribe
an interpretation to a word from the bar without
leading evidence to
support such interpretation. The authenticity of Dr Van Heerden's
report was not contested however if the defendant
wished to ascribe
an interpretation to anything therein contained, she could have
called Dr Van Den Heever to furnish such explanation
in evidence, but
did not do so.
JUDICIAL
REASONING
(118)
The issues to be decided: which of the sequelae complained of arise
from the incident and complications arising therefrom
and what
damages, if any, are to be awarded. During preparation of this
judgment I conducted my own research to establish whether
there are
comparable cases on abdominoplasty to consider. I must at this stage
mention that at the commencement of the trial, I
was advised by both
counsel that only the documents referred to by the parties must be
considered. In being so informed, both counsel
indicated that the
court file is large and voluminous and that as a result, only the
relevant parts thereof were handed to me.
Included in this bundle
were the pleadings.
(119)
In my research I came across two articles on cosmetic surgery, one
bearing the heading
"COSMETIC SURGERY AND RESPONSIBLE PATIENT
SELECTION - DOES A LEGAL DUTY TO SCREEN PATIENTS EXIST?"
by
Hanneke Verwey and Pieter Carstens, both associated with the
University of Pretoria. The second article bears the heading
"MEDICAL
MALPRACTICE AND COMPENSATION IN SOUTH AFRICA"
by LC. Coetzee
and Pieter Carstens, Chicago-Kent Law Review Volume 86 Issue 3 June
2011. My attention was immediately drawn to the
discussion of the two
distinctly different causes of actions against medical practitioners,
namely an action based on contract
as opposed to an action based on
delict (duty of care).
(120)
Having reason to return to the plaintiff's particulars of claim
Iformed an initial view that the plaintiff's claim may very
well be
based on contract and that, if indeed so, the plaintiff may not be
able to claim general damages in a claim based on contract.
See:
Administrator of Natal v Edouard
[1990] ZASCA 60
;
1990 (3) SA 581
(AD). Having
considered the Edouard case, I consider it appropriate, if indeed not
obligatory, given the opportunity and generally
the courts'
constitutional duty to develop the common law, if it should appear
necessary.
(121)
Before dealing with this aspect I addressed a memorandum to both
counsel stating the following:
"I have considered the above
case in detail following two days of trial and am almost ready to
hand down judgment. However,
in re-considering the basis of the
plaintiffs claim as pleaded, I note that the claim is based on breach
of contract. If I am correct
and the particulars of claim in my
possession are indeed the correct particulars (meaning that an
alternative claim on the basis
of delict has not been pleaded) then
the plaintiff may not claim non-pecuniary damages. The purpose of
this communication is to
request the following by way of short heads
of argument:
1.
That the parties
confirm that the plaintiffs claim is indeed based on contract, and if
not, to advise me on what the correct position
is;
2.
Whether the court
is at liberty to mero motu take note of the plaintiffs claim
as
pleaded (neither party argued this question before me) and to
exclude
a
claim for general damages on this basis."
(122)
The plaintiff's particulars of claim are based on an alleged
agreement between the plaintiff and the defendant containing
material
express, implied alternative tacit terms thereof. The plaintiff
alleged that the defendant, by virtue of the agreement
and the
existence of a doctor patient relationship which had come into being,
was under a legal duty to comply with his obligations
terms of the
agreement. The particulars also allege lack of informed consent and
the defendant, in breach of his legal obligations,
was negligent in
one more or more ways culminating in damages arising from the
defendant's negligent breach of his legal duties.
(123)
Generally speaking, a breach of duty occurs when one person has a
duty of care towards another person, but fails to live up
to that
standard. A person may be liable for negligence in a personal injury
case if his breach of duty caused another person's
injuries. When
considering whether a defendant in a delictual case has breached his
duty of care toward the plaintiff, the court
would ask several
questions,
inter alia,
including:
(1)
Did the defendant
have a duty of care toward the plaintiff? If so, was it a duty of
reasonable care, or was it based on professional
liability, or
another type of relationship between the plaintiff and defendant?
(2)
Did the defendant
use the same amount of reasonable care that another person in his
position would have used to prevent harm?
(3)
Did the defendant
foresee the risk of harm to the plaintiff, or should he reasonably
have foreseen it?
(4)
What kinds of
alternatives were available that might have prevented the harm?
(5)
Was the burden of
using safer alternatives considerably heavier than the risk involved
in not using them?
(124)
No single one of these questions is enough to establish that a breach
of duty of care did or did not happen. Rather, in my
view, the courts
consider them together, applying them to the specific facts of a
personal injury or other delictual case in order
to determine whether
a breach of duty occurred. In a standard negligence case, a breach of
duty usually occurs when a person fails
to act with the same
reasonable care an ordinary person would use in the same
circumstances. This standard changes slightly in
certain types of
personal injury cases, however.
(125)
For instance, in a medical malpractice cases, the question is not
whether a medical professional acted as a reasonable ordinary

man-on-the-street would, but whether the medical professional acted
like a reasonable medical professional, with the same training
and
knowledge, would have acted. In the law of delict, a duty of care is
a legal obligation, which is imposed on an individual
requiring
adherence to a standard of reasonable care while performing any acts
that could foreseeably harm others. It is the first
element that must
be established to proceed with an action in negligence.
(126)
The claimant must be able to show a duty of care imposed by law which
the defendant has breached. In turn, breaching a duty
may subject an
individual to liability. The duty of care may be imposed by operation
of law between individuals with no current
direct relationship
(contractual or otherwise), but eventually become related in some
manner, as defined by common law.
(127)
Duty of care may be considered a formalisation of the social
contract, the implicit responsibilities held by individuals towards

others within society. It is not a requirement that a duty of care be
defined by law, though it will often develop through the

jurisprudence of common law.
(128)
I have had regard to the heads of argument furnished by both parties
and considered the question of breach of a legal duty
as opposed to
breach of a duty of care. Although, in my view, the particulars of
claim do not clearly set out a cause of action
based on breach of a
duty of care, but focuses mostly on the contract between the parties,
the defendant admitted in his plea that
a duty of care existed and
denied breach thereof on several grounds.
(129)
The question of lack of infomed consent was not contested by the
defendant and it must consequently be accepted that there
was not
informed consent. Moreover, the parties approached the court and
throughout the trial continued on the basis that the cause
of action
was indeed based on contract and a breach of duty of care. Given
these considerations, I am of the view that I should
exercise my
discretion in favour of the plaintiff is answering the question the
question whether she can claim general damages.
In my view, the
agreement on the merits and the fact that the defendant did not
contest the lack of informed consent disposes of
the necessity to
examine the issues any further.
(130)
I find support for my conclusion in the following: The parties to
litigation are limited to their pleadings. A party pleading
cannot be
allowed to direct the attention of the other party to one issue and
then at the trial attempt to canvass another. See:
Minister of
Agriculture and Land Affairs v De Klerk
2014 (1) SA 212
(SCA).
Pleadings are there for the court and not the court for the
pleadings. It is thus the duty of the court to determine the
real
issues between the parties and provided that no prejudice is caused
to any party, to decide the case on the real issues. See:
lmvula
Quality Protection (Pty) Ltd v Loureiro
2013 (3) SA 407
(SCA) at 423
D-E.
(131)
The court has a wide discretion. See: Robinson v Ransfontein Estates
GM Co Ltd
1925 AD 173
at 198. The court must look at the substantial
issue between thparties and not blindly follow the ipsissima verba of
the pleadings.
See: Shill v Milner
1937 AD 101
at 105. Having said
so, the Appellate Division, as it then was, has warned that parties
should not be encouraged to rely on the
court's readiness to consider
and deal with unpleaded issues. See: Middleton v Carer
1949 (2) SA
374
(A). The cardinal rules pertaining to pleadings remain and shiuld
be prolery oberved and the trial should not be allowed to become
a
"free for all" with complete disregard to pleadings.
(132)
A word of caution ought to go out to practitioners on the potential
risks in pleading a case incorrectly and the consequences
that may
follow in particular circumstances. All that remains to decide is
whether the plaintiff has proven sequelae as a result
of the
procedure and the damages which she has claimed. My enquiry,
mero
motu,
is justifiable under these circumstances. I am of the view
that judges must apply the law and even if the litigants do not raise

legal issues at the  hearing of a case, this does not preclude
the presiding judge from considering and applying the law.
(133)
I now turn to the heads of damages. The first claim which has been
identified and quantified is for psychotherapy. In my view,
given all
the prevailing circumstances, the plaintiff would benefit vastly from
psychotherapy and I have no hesitation is awarding
the amount of R30
600.00 (40 sessions at R850 per session less 10% in respect of the
merits) for this claim. The amount has been
calculated by the actuary
and the figure is common cause between the parties.
(134)
The question of the assistive items suggested by the occupational
therapist presents more of a problem if one adopts the defendant's

stance that no matter what items the plaintiff is supplied with, she
will not benefit from these without the benefit of psychotherapy.
In
my view the two go hand in hand. The plaintiff is compromised and it
would be a futile exercise to determine which part of which
therapy
will benefit most. The occupational therapist testified that in her
view the plaintiff will benefit and I accept her testimony
as such.
In the premises the plaintiff is entitled to an award of R65 988.00
(R210 766.00 less R137 446.00 agreed between the parties,
less 10% in
repect of the merits) for this part of her claim.
(135)
The parties infofmed me on their agreement in respect of past loss of
medcial expenses which was agreed at R114 000.00 (R126
666.67 less
10% in respect of the merits).
(136)
In the light of my finding that the plaintiff's claim is indeed based
on a breach of a duty of care, for reasons advanced,
I now turn to
the general damages. The principles to be applied when assessing
damages for pain, suffering, discomfort and loss
of amenities of life
were dealt with in the case of Smit v Road Accident Fund, reported in
"The Quantum of Damages in Bodily
and Fatal Injury Cases",
Corbett & Honey, Volume VI, page A4-188. Makgoko J said the
following:
"......
.Arriving at an
appropriate award for general damages is never an easy task. The
difficulty in placing monetary value on pain and
suffering, loss of
amenities of life and disability, is described by Gauntlett, the
learned author in Corbett, The Quantum of Damages
Vol. 1, 4ed, at
pages 4-5
as
follows:
'In determining the award of
damages to be made under the heading general damages there are of
course no scales upon which one can
weigh things like pain and
suffering and loss of amenities of life, nor is there
a
relationship
between either of them and money which makes
it possible to express that in
terms of money with any
approach to certainty. The broadest general consideration and the
figure arrived at must necessarily be
uncertain, depending upon the
judge's views of what is fair in all circumstances of the case.
(Sandler v Wholesale Coal Suppliers
Ltd
1941 AD 194
at 199.)'
(137)
And further:
" The purpose of awarding general damages is to
compensate
a
claimant for the pain, suffering, discomfort and
loss of amenities of life to which he or she has been subjected as
a
result of the particular injuries that were sustained. Although
the determination of an appropriate amount in this regard is largely
a
matter of discretion, some guidance can be obtained by
having regard to previous awards made in comparable cases. Past
awards in
comparable cases afford
a
useful guide in
determination of general damages.
Awards in previous cases
can, however, only offer broad and general guidelines in view of the
differences that inevitably arise
in each case. The process of
comparison is not a meticulous examination of awards, and should not
interfere upon the court's general
discretion (Protea Assurance v
Lamb
1971 (1) SA 530
(A) at 535H-536A). The previous awards should
obviously be updated to present day values in order to properly serve
as a
basis for comparison. In making such an adjustment, one
should be mindful of the fact that, whereas it is permissible to have
regard
to the general depreciation in the value of our currency by
utilising the consumer price index (CPI)
a
slavish adherence
thereto may lead to undesirable results."
(138)
The plaintiff testified that the defendant had not informed her of
the possible complications that may occur. This evidence
was not
contested. No documents were presented at the trial to show informed
consent on the part of the plaintiff. The defendant
did not testify
on this issue. Given all the prevailing circumstances, including the
further surgery required and the sequelale
thereof, I am of the view
that an amount of R200 000.00 is an appropriate amount for general
damages.
ORDER
(139)
In the premises I make the following order:
a. The defendant is ordered to pay the
sum of R417 920.00 to the plaintiff.
b. Such amount shall be paid into the
trust account of the plaintiff's attorneys, namely G. P. Venter,
Standard Bank of South Africa,
Hatfieled Branch Code 011545, Account
Number 012 543 519.
c. The defendant is ordered to pay the
plaintiff's taxed or agreed costs of the action, which costs shall
include the costs of the
medico legal reports, combined reports,
consultations, reservation and qualifying fees, if any, of the expert
witnesses Bernadette
Putter, Annelies Cramer, Hendrika Kraehmer, Dr R
Robson and G W Jacobson.
____________________
G.
T. AVVAKOUMIDES
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
DATE:
6 FEBRUARY 2017
Representation
for Plaintiff:
Counsel:
G. C. Botha S. C.
Instructed
by: G. P. Venter Attorneys
Representation
for Defendant:
Counsel:
M. Van Antwerpen
Instructed
by: MacRobert Attorneys