About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 46
|
|
Anstey v Liberthal and Another (583/2012) [2016] ZAGPPHC 46 (3 February 2016)
IN
THE REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,PRETORIA)
3/2/2016
CASE
NO: 583/2012
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
MICHAEL
DAVID
ANSTEY PLAINTIFF
And
DR
W
LIBERTHAL 1
ST
DEFENDANT
MEC
FOR HEALTH,
MPUMALANGA 2
ND
DEFENDANT
JUDGMENT
KHUMALO
J
INTRODUCTION
[1]
The Plaintiff, Mr Michael David Anstey (“Anstey”),
instituted an action against the Defendants, claiming an amount
of R7
785 300.00 for damages he alleges to have suffered as a result of
breach of duty by the 151 Defendant, Dr W Lieberthal (“Lieberthal”),
an orthopaedic surgeon at Witbank Hospital, for failing to treat him
with the skill, care and diligence that was reasonably required
in
the circumstances when performing a spinal surgery (“the failed
surgery”) (also referred to as the “1
st
'
surgery”) on him at the hospital on 5 February 2010
[2]
The 2
nd
Defendant, a Member of the Executive Council for
Health in Mpumalanga is cited in his representative or official
capacity as the
nominal head responsible for all claims arising
against a public hospital and as an employer within whose course and
scope of employment
Lieberthal was acting at the time. The Defendants
have conceded to the merits of the case.
[3]
The trial proceeded against the 2
nd
Defendant only on the
issue of the nature and extent of damages. Anstey claim for damages
was constituted as follows:
[3.1] Future hospital,
medical and related expenses R3
005 400
[3.2] Past and future
loss of earnings (earning capacity)
R3 548 900
[3.3] General Damages
(pain and suffering, past, present,
future loss of amenities
of life & disabilities) R
900 000
[4]
The damages Anstey claimed for past loss of earnings and hospital and
medical expenses in the amount of R213 000 and R100 000
respectively,
were excluded as the former is duplicated whilst no evidence was led
in support of the latter claim.
[5]
The draft order upon which the merits were conceded provide as
follows in respect of the issue of damages:
“
Defendant is
liable for such damages as Plaintiff may prove to have arisen out of
medical treatment administered to him at Witbank
Hospital, Mpumalanga
on 5 February 2010...”
Anstey
therefore carried the onus to prove that the nature of the damages he
is claiming arose as a result of the failed surgery
and the extent of
such proven damages.
[6]
An interim order was obtained for an amount of R752 800 that was paid
to the Plaintiff which should be subtracted from the total
amount
allowed.
Evidence
led
[7]
In the trial Anstey testified on behalf of the Plaintiff and called
three expert witnesses, Dr Edeling (a neurosurgeon), Mr
Vick (an
occupational therapist}, Mr Linde (an industrial psychologist) and Mr
Rademeyer, (a mobility consultant). No evidence
was led on behalf of
the Defendant, however their experts had before trial signed joint
minutes with Anstey's experts. The evidence
upon which the matter was
to be adjudicated upon was that of Anstey and his experts. The
evidence is not compartmentalized in accordance
with the different
heads of damages claimed by the Plaintiff but outlined as closely in
the format in which it was presented by
the witnesses, hence somewhat
lengthy.
[8]
The 48 year old Anstey, born in the United Kingdom in Scotland with a
Grade 11 school qualification began by outlining his medical
history
prior to Lieberthal's failed surgery on 5 February 2010. He said 5
years earlier, in 2005, he was involved in an accident
that resulted
in his left leg being amputated below the knee and him developing a
back or spine injury. He was fitted with a prosthesis
leg and the
intermittent pain he experienced due to the prosthesis continued
while he controlled It with pain-relieving (analgesic)
medication. He
also had a wrist injury.
[9]
Subsequent to those injuries he was under enormous pressure with a
lot of things happening in his marriage at the time and he
left his
overtime work, which impacted on his salary. Both factors had a
bearing on him seeking employment elsewhere. He left Harlequins
Rugby
Club where he was employed as a grounds-man in 2007. He thereafter
got employment as a head gardener at a Kriel Lodge where
his wife was
employed until 2010. Despite the amputation, he managed to work from
5h00 to 19h00 and after 10 months was promoted
to a maintenance
manager. He did suffer from back-ache and myprodol made his pain
manageable and he could do his work without using
crutches. He earned
a monthly salary of R11 000 and stayed with his wife in an
accommodation rented by the employer for the family
at a cost of R4
300.00 per month for the duration of his employment.
[10]
On 30 December 2009, he experienced an excruciating pain on his back
trying to stand up from the bed, he could not move. As
a result he
was admitted at the Witbank Hospital and underwent the spinal surgery
by Lieberthal on 5 February 2010 from which he
has never recovered.
He says his condition became worse than before the operation. He
could not walk. He defecated on the bed and
suffered from constant
panic attacks. He gained a lot of weight due to lying in bed and
could not fit in an MER machine. He considered
that an appalling
time, until he underwent the 2
nd
surgery in May 2011. He
continued in the meantime to receive a salary for a few months after
the operation. He was well post the
2
nd
surgery, there being an improvement and he started to be mobile.
[11]
He however said presently he cannot sit or stand for long and is
in constant pain from the time he wakes up
but again said he can
walk without forcing himself into pain. He regarded the medication to
have been helpful with the pain which
was manageable prior to the
spinal injury, but thinks it is now aggravated by the depressant
morphine. He still felt the pain but
when he is off the depressant he
is in more pain.
[12]
He said after he separated with his wife he could not cope with the
situation so he went to his father in Nelspruit and worked
for his
sister doing her books. He was able to work until midday as he could
not sit or stand the whole day. He was not paid but
working in lieu
of accommodation as a start in life as he was going through a divorce
at the time. He subsequently left Nelspruit
and ended
in a shelter
in Kempton Park living on R12 a day for under a year
. Presently
he stays in a room in the same property as his ex-wife who sends him
a plate of food every day. His ex-wife and his
sons help him with
cleaning and bare minimums like washing dishes and his sons help him
with big stuff. The eldest son stays in
Cape Town.
He has not
drawn a salary for 5 years
(which is not true as he was paid
until October 2011 and receiving a grant during the 2”d
surgery) and has had other relationships.
[13]
According to his evidence under cross examination when he resigned
from his work in 2007 he had marital problems and was suffering
from
depression that manifested after he lost his left leg. He was given 5
years to get over a limp-prothesis which depressed him.
He also in
2007 lost sound
thinking but could not recollect being suicidal
he would have remembered if it had happened. After he lost the
overtime work he
could not pay his children's school fees. His wife
was therefore not happy that he left his job. Also, at the time his
wife was
working at a bar so they did not spend a lot of time
together. Both problems impacted on his marriage.
[14]
His wife left her job at the bar and moved to Kriel where she got a
job at the lodge. A month later he followed her and also
got
employment at the lodge. He stayed with her in an accommodation
provided by the employer, the benefit value of which an erstwhile
H R
manager at the lodge, Jaco Botha, was unable to verify to Linde, who
investigated the claim. Linde then contacted his wife,
who in turn
contacted an estate agent to verify the value of the accommodation
and was told that the value was R4 600 or R4 300.
His wife did not
pay for the accommodation and was not reflected as a benefit in her
salary slip. He could not answer why the first
person he told about
the payment of rental was Dr Ravule.
[15]
He confirmed further that the separation with his wife happened
between the operations when he found out that she had an affair,
then
said a few months after the 2nd operation. He agreed that he was
prone to accidents and that previous incidents resulted in
him
sustaining a back injury, amputation of the left leg, right wrist
injury sustained in the army, in 1987 or 1988 and losing
70 % use of
his hand when his cuff was dislocated and skin removed. His left hand
was sliced through in a clean cut by a glass,
and was not overly
painful but now it is because of the crutches. He also suffered a
fractured skull when he was hit by a baseball
bat in 1988 and had a
sharp gunshot wound on the upper left thigh. He alleged that he did
not retain any residual pain with all
the injuries claiming to be
very resilient.
[16]
He pointed out that the current problem he had which worried him was
a short memory, struggling to remember a lot of things
in the last 4
to 5 years, especially people's names and places which happens
sometimes halfway through the conversation. He said
he thinks that is
the reason he probably could not recount to the specialist all the
important things in great detail. However
for a period of three
months leading to the trial he has not been able to collect repeats
of his prescribed medication but was
able, after travelling for five
hours, without the medication, to attend the court proceedings and
testify without showing any
strain. He then cautioned the court that
last time he attended court he was bedridden in a great deal of pain.
He said he was also
concerned about his lost libido and not sure if
it was because of the medication which was now and then changed by
the hospital,
who were now giving him morphine for sleeping and
anti-depressants.
[17]
About his social environment he said he does not have a garden. He
once owned a vehicle in 2009 registered under his wife's
name but
sold it in 2011.
He has been earning a monthly disability
grant/Workmen Compensation of R1 150 since 2006
since his leg was
amputated. He forgot to tell the therapist about it.
He agreed
that he actually separated from his wife around October 2011
after the 2nd surgery that is when he left Kriel for Nelspruit
because of the breakdown of the marriage. He also was Involved with
someone else. In Kempton Park he stayed with a friend planning to
search for employment and then moved in with his girlfriend in
Alberton. He remained despondent because only his ex-girlfriend was
employed, which led to the breakdown of the relationship.
[18]
In Nelspruit he worked only for 5 minutes per day for his sister
issuing 2 or 3 receipts after that he would be finished, wanting
to
sit down. He worked for only 2 to 3 weeks and left. The work to him
was not strenuous and he wished to find such an administrative
job.
He tried finding employment but both positions that were offered were
not suitable for his condition. One was in shoe sales
with stock kept
upstairs. He was going to be on his feet for 12 hours moving up and
down the stairs. The other was at Pick &
Pay Distributors centre.
He figured that work for him should be where he does not work with
people as mentally he did not enjoy
being with people. He regards
himself as physically and emotionally challenged however he can still
swim and enjoy it immensely.
He smokes tobacco and drinks ciders,
very rarely. He used tick and cat whilst he was in the streets.
[19]
He reckons his condition became worse after the 1'1 surgery,
resulting in severe headaches,
back pain
and loss of right leg
motor function and sensory deficit In the right leg. He was unable to
return to his job as a lodge manager,
bedridden with headaches and
pain. He was diagnosed with leakage of cerebral spine fluid and
damaged nerve roots. He had to undergo
revision lumbar spinal fusion
surgery at Pretoria Academic Hospital in May 2011.
[20]
Dr H Edeling, a neurosurgeon, in his testimomny confirmed that after
consultation with Anstey on 16 May 2014 he prepared a
report based on
information provided by Anstey and on medical reports. He recorded
Anstey's prior medical injury status that is,
the right wrist,
lacerations on his left and right hand up vertebrae, impairment of
both hands and amputation below knee with fitted
prosthesis. He also
recorded that Anstey on 29 December 2009 experienced severe back pain
problems incapacitating him and needed
surgery. Also that the
hospital records state that it was explained to Anstey that a lumbar
spinal fusion would be done. According
to him (Edeling) three things
unfortunately went wrong. The surgeon did not do a necessary step
that is the decompression of his
bug fusion to free the nerves and
ligaments but he was squashing the nerves and were therefore damaged.
Anstey's
condition subsequent to 151 surgery
[21]
The symptoms after the surgery was a nerve that was torn and left out
of the wound. The net effect was that he woke up with
more
problems
, feeling pain where it was not painful before, the
nerves banished back neuropathic pain and he had
low pressure
headaches
that do not respond to pain- killers - depressants.
They instead increase pressure in the head. To moderate pain covering
both
pain and low pressure headache, he was kept in bed for a year
after the surgery. He could function with pain In the absent limp.
Dr
Snycker's successful operation made Anstey to be able to walk more
when he walked lot less before the said operation.
Anstey's
present status as described to him is as follows:
[22]
Anstey, according to Edeling, still constantly suffer from (i) severe
back pain, the degree varying during the day. The post-operative
back
pain that he had suffered until second operation was far more severe,
that he grades as 10/10 whilst his current is graded
5/10 if he takes
his chronic medication. When he stops using medication pain levels
increase to about 7/10. He also has continued
to experience (ii)
headaches that affect both sides of his head. The post-operative
headaches in association with the cerebrospinal
fluid leak were far
more severe, graded at 10/10. His current headaches are graded at
about 4/10 and transiently relieved by Grandpa
Powder. He also
referred to (iii) a weak bladder. (Iv} Unable to sit or stand for
prolonged periods with weakness in legs that
affects arms. The pain
on his back and the prosthesis limits his mobility and ability to
complete manual tasks. He has chronic
depression psychotic condition
as a consequence of physical pain. He is depressed, tired, generally
dissatisfied with his condition
and had suffered disabling levels of
anxiety.
He had not suffered depression or anxiety prior to
operation by 1
st
Defendant.
[23]
In respect of
employment
the impact of all this was
devastating to Anstey and affected him permanently. Due to the
depression headache he could no longer
read, not work and had no
remuneration. He has no enjoyment of life having lost everything and
currently treated for suicidal tendencies,
unable to live with other
people family or friends and lost his wife. He is completely
destitute.
[24]
His clinical findings
were that Plaintiff is disabled with the
leg prosthesis not related to the claim incident of which the use of
crutches is frustrating
him. He looked anxious and clumsy during
consultation. His body language showed that he is In pain. He shifts
or moves to relieve
pain. He recorded that on examination of
Plaintiff's cervical spine he noted normal posture, alignment and
movements, plus some
Involuntary parasplnal muscle spasm and
tenderness to palpitation at the cranio-cervical junction. Movements
of his lumbar spine
moderately restricted.
[25]
In the joint minute Edeling prepared with
Dr Kritzinger the
neurologist who i s the Defendant's expert. they
noted that
Anstey remained fully functional after surgery from previous back
injury and will keep on going to work. They reckon
after 29 December
2009 with the 1'' surgery that if it had gone well Anstey could have
been put back in his same position, with
a 20% risk of requiring
further spinal surgery for adjacent segment disease. Costs of future
spinal surgery would therefore not
be attributable to the failure of
reasonable treatment by Lieberthal since Anstey had reaped the
benefit of successful salvage
spinal surgery by Dr Snycker's
further
surgical intervention i s unlikely to result in any benefit. Toxic
substances can eat at your nerve ending and when the
nerves are
frayed in that way the body's natural process from handling pain
becomes disorgasnised
.
[26]
Edeling noted that when Anstey consulted with
Jansen Van Vuuren
her findings which were based on clinical findings and observations
were that because of Anstey's physical capacity constraint
due to
pain and his psychological state, one can during a long conversation
with him gain a view of his attentive span. He realised
that Anstey
could not apply his mind for a long time for a proper scan to be
done. The exam was therefore done in a clinical way.
His motor
function appeared to be within normal limits to resistance testing,
albeit inhibited to an extent by pain. As a damaged
nerve can lead to
paralysis of the leg. If damage not enough to cause pain, it will
cause partial weakness. Now what weakens nerves
apply to the muscles
on the leg. The legs are fractually weak. It is normal not to feel
any movement it radiates to the legs. Loss
of strength is inhibited
by pain, that is neuro functional. In line with Dr King's finding
that function weakened by pain and not
by paralysis.
[27]
His condition is resultant from a fact that when operation done
fusion not done and pressure not relieved. Lieberthal's problem
was
that when Anstey needed surgery, the spinal canal was so small
compressing nerve roots. Lieberthal tore the membranes metal
fluidity
and did not repair them as he should have done, In addition causing
damage to the nerves – harming the nerves.
[28]
The corrective surgery In May 2011 at Steve Biko Academic Hospital
entailed a decompression to put a cage device from a disk
plate T4f
instrument. The pain that Anstey experienced was as a result of the
nerve that was damaged.
He had back pain before the nerve problem
,
a certain amount of back pain would have been anticipated. He had
only a year before the 2
nd
surgery.
Current pain
syndrome spasmodic back pain postures respond to medication but do
not capacitate
- not 100% in medication, it is only on a balance
of probabilities. If one looks at successfully operated back pains -
80 % will
be happy but 10 to 15 % will not be happy but better. There
is a strong medical probability that 5 % would be worse. What
contributes
to the complications of the 5 % is because of fluid leak
that is well known and complications like Anstey's, of screws that
can
be misplaced,or fusion doses not growing in properly. His
headaches where back developing into chronic headaches because fusion
not done and due to drug depression.
Eventually, the leaks stopped
and he did not have a l ow pressure headache anymore but still have
the pain - chronic pain syndrome,
it will persists even if the cause
has faded. The gathering that tells the brain that there is pain they
keep fuming even after
the cause.
[29]
Regarding Anstev's complain that the medication he is taking
exacerbates the pain. None of the medication he reported to them is
causing pain and not possible that it is causing pain
. It is so
that many medicine may indicate in inserts that they may cause
symptoms or side effects -different tablets like morphene
if one
takes it for back pain for a month or more one exhibits nychotic
withdrawal headaches if one stops, they can cause headaches.
Cupin to
a small number of people can cause headaches. When he saw Anstey the
previous day because of staying at place of destitute
for some time
he has been off medication. He alleged that all of his pains have
been worse than when he was taking it. The headaches
are not due to
medication because of what he reported. Deferred the sexual
dysfunction on his report.
[30]
The moderate EMG exam test performed on muscles done by neurologist
and demonstrated that nerve supply to muscle is damaged.
The tests
contradicts his clinical test because it said nerve (nemular) was
normal, by that meaning muscle power is reduced, damage
of nerves in
the back resulted in muscle function reduction. There was no active
acernall degeneration. With acernall, the whole
nerve of the leg
paraplegia won't be working. A person will suffer from backache due
to problem of muscles at the back that is
mechanical. Neuropathic
backache pain originates from the nerves, the back pain Anstey had
before the operation was mechanical.
After operation the neuropathic
backache super imposed. The medical specialists who did the EMG
operation would be in a better
position to conclude what the cause of
the back pain was.
[31]
It was his opinion that after operation Neuropather Dr Snycker did
the successful spinal fusion, but did not have capacity
to fix the
neuropathic. Mechanical pain, was corrected in the second operation
what remained was the Neuropathic pain and for Anstey
to respond to
medication. With a compound muscle inflation, neuropathic pain does
not respond to that but employing drugs that
can reduce the condition
in the nerves reduce the amount of pain even though it does not take
it away. He saw the prosthesis and
did not examine it to see if it
was a right fit.
The pathology that led to the operation might
have been caused by the prosthesis because the effect of a misfit on
his back accelerates
the degeneration of nerves. It is expected of
prosthesis to continue to influence the nerves in the future.
Future problems unrelated to pathology could be the cause of current
pain which can contribute to degeneration of his muscles.
He will
develop more back pain as time goes on.
[32]
On Anstey's employment capacity his opinion was that it was
likely to stay as it is. It will accelerate the negative effect of
amputated leg process if degeneration sets in faster. If he
had not
had a good operation with treatment, he would have started
experiencing problems earlier which would have affected his
capacity
and which would have progressively worsened the older he got.
[33]
The probable risk of complication in back injury operations can be
predicted in advance, surgeons who do their best would be
able detect
it within reason. The mechanical back pain is separate from the
nerve, it has a special fusion of muscles and it can't
be changed. It
becomes worse as one grows older and explains why it becomes worse in
future. He says Anstey would have had to undergo
surgery anyway not
because of the 1st operation. Certain group of nerves around there
swells after recovery sets in, and after
all potential recovery has
happened. Capacity to heal is seen in the first 6 months after that
it could not start happening longer
than 6 months with short nerve
period to grow. Nerve recovery or healing happens after 2 years
whatever one records after 6 months
with the majority of improvement
happening after 6 months if one records in 2 years it wlll be better.
If Anstey could not walk
in 6 months, he may not recover in 2 years.
His pain remained very bad before the 2
nd
operation. The
decompression was taken away. He worked all this on the information
supplied by Anstey and did not investigate factual
evidence. His life
expectancy normal.
[34]
Mr Louise Linde (“Linde”), the industrial psychologist,
said he assessed Anstey on 2 December 2013 evaluating the
effects of
the incident and its sequelae on his employabillty and earning
capacity. When he valuated Anstey for depression he scored
54
indicating that he is seriously depressed. He noted in his physical
presentation that he gave an impression that his back was
painful
shifting on the chair constantly. The amputation had an influence on
him even though he decided he would be ok. He took
into account that
he was a
human resource manager
staying at the business's
accommodation earning R1000.00 at Paterson Grading Level of 63. The
plaintiff said the
value of the accommodation was R6 500.00
,
which is not indicated in his payslip. The wife said the company
rented the house for them.
He had an annual bonus of R15 000.
[35]
Previous incidents did not have effect on his work ability.
If the
accident did not happen. he reckoned Plaintiff would have probably
have been able to continue in his position as Maintenance
Manager
until retirement.
His career seemed to have stabilised and with a
grade 11school qualification he probably had reached the ceiling. He
would have
been able to secure similar work if he for any reason was
placed in a position where he had to find alternative employment.
He
did not want to include bonus and accommodation value as it was not
in writing. Retirement was at age 60
. His view was that at labour
market people work until the age of 65. He would have lived on a
clear wage packet with no provision
of pension fund there. He would
have had to work as long as possible.
On
post incident scenario -
[36]
Under cross examination he confirmed he has got a limited/cursory
understanding of a clinical cause of the treatment administered.
He
flagged it to clinical for further comment. He stated that Anstey was
suffering from a back pain depression- provides a scale
not a
diagnosis he made but by an instrument. He confirmed that as
indicated from other reports Anstey was suffering from depression
prior to the 1
st
surgery. He had a history
of depression before and for a man that has lost his leg there would
be an amount of depression. He resigned
from Harlequin as a result of
depression.
Mr Giddy from Harlequin Club Anstey's previous
employment confirmed that people were making advances to Anstey's
very attractive
wife and he realised he had to get out of there into
a fresh start. Linde explained the discrepancy on the information
given with
regard to employment to be because he went deeper than Ms
Vlok. Anstey had told him he did not enjoy working at night, which
qualifies
as sedentary work, so he resigned. He was experienced in
sales having worked as a sales representative and driver in 2002 -
2004.
He also had some administrative experience.
[37]
On work history whether or not Anstey would have worked until age 65,
Kojo said 60
. According to Linde the general trend is that
people work longer when they are healthy and fit and Anstey was quite
eager and determined
to work, even though he was already experiencing
problems with his back from September 2009 which required an
operation. Although
unusual for people with amputations,
that
characteristic would have carried him over
. The amputation of
Anstey's leg would accelerate his back problems as he gets older.
He
could not say if he could have worked until the age of 65 years
.
He deferred that question due to his medical problem to Dr Edeling.
His current position would have frustrated him if compared
with his
tenacity to want to work. He had limited administrative work
experience, so not suitable for sedentary work and was not
expected
to work in a position that he worked many years ago. He was a manager
at a lodge. He was also not age appropriate to do
data capturing. He
would have been useful 27 years ago, maybe working on the old data.
[38]
The evidence of Ms Vlok's (“Vlok”) the occupational
therapist was that Anstey presents with chronic pain and discomfort
in the right lower limb and with concurrent backache; diminished
static and dynamic endurance tolerances, exarcebated by exertion,
an
impaired balance and agility and global compromised mobility. He
ambulates with difficulty and supported by a crutch in the
left hand
walking with typical limping antalgic gait pattern compounded by the
prosthetic left leg. He cannot squat, jump or run.
He avoids stairs,
ladders uneven terrain and carrying heavy objects and can only walk a
distance of 100 meters. He utilises a crutch
permanently and keeps a
standby manual wheelchair at home for when the prosthetic left leg is
removed. On the rating of the pain
disability questionnaire Anstey
perceives his pain a severe disability.
[39]
As a complete turnabout (in obvious contradiction of Anstey's and
Linde's evidence)
the joint minute signed by Vlok and Ms Van der
Walt
, who on behalf of the defendant examined Anstey had a
measure of agreement between both experts that the 1
st
surgery had such huge impact on Plaintiff's pain, his emotional state
and his relationship with friends and family. His inability
to work
resulted in heightened stress levels and increased levels of
frustration and Irritability that he took out on his family.
This led
to his wife and his two young sons leaving him and his marriage
dissolved. Following the breakdown of his family he was
homeless and
one time lived at a shelter. Also relying on friends and family. He
suffered from depression and panic attack.
[40]
On medical and related issues
. Vlok figured Anstey requires
on-going therapy and management of his condition to be approached on
the multi·disciplinary
basis which includes physiotherapy and
psychological treatment. The therapists agreed that the Plaintiff
requires a variety of
assistive devices to assist him to be
integrated into the community. His level of pain was unlikely to
improve but may over time
become worse such that it might possible to
modify. He will then need a domestic help at home and if in a place
with a garden,
a gardener as well. He will have to use some form of
assistance for heavy work. The capacity he demonstrates is that he
likes to
perform sedentary work. If pain levels fluctuates he may not
meet its demands. She holds a view that if pain not appear to show
significant improvement, pain unlikely to be improved.
[41]
Under cross examination Vlok said she interviewed Anstey for more
than an hour in 2013, he was in a lot of pain and required
to rest.
She did not suspect him of exaggerating the pain and it was very
difficult to see if he did. Unfortunately his
physical capacity
was not given a full assessment
because of the level of pain. An
objective sign by which he could observe pain included splinting and
squat movements, slow or
altered, movement patterns. Also things like
sweating noted. Due to the period of time, the consistency of what he
exhibited when
asked to do the test, he could not play off.
They
could not put him through all the tests to test the pain and
endurance
. She could not exclude possibility of other injuries
that he had prior to the operation including the deformity of his
hands unrelated
to the problem with his back adding to the problem,
saying It's difficult to exclude them with anybody. She could not
tell if the
medication contributed to the things that Anstey was
experiencing as it is not his field of expertise. However it is well
known
that tablets can affect one's functioning contributing to
symptoms or causing symptoms -
only specialist can comment in
detail
. He was not sure if sexual dysfunction was caused by
medicine. He reports to be significantly depressed.
Plaintiff told
him he resigned from work due to depression. Not explored if he
received treatment for that but he reported level
thought of suicide.
The prothesis not fitting well contributed to his uneven gaiety and
contributed to his level of pain.
[42]
Her evidence was also that when they draw the report they had
additional information. Van der Walt has made certain recommendations
and was of the view that the level of pain is not of the same
severity so he would do sedentary work but she did not conclude that
he would do full sedentary. He acknowledged that with chronic pain
one has good days sometimes bad days. She said she saw Anstey
on his
good day when pain not so severe but still he was not able to finish
a full functional assessment because of his pain level.Van
der Walt
does not agree to domestic assistance so that Is not In the list. It
also depends on the level of pain, they took into
consideration the
opinion of Dr Edeling to come to final conclusion. She persisted that
Anstey would need a domestic as the doctor
confirmed that they will
not be able to control the pain. She however could not find in her
report where she noted the doctor's
comment. Anstey told him there
were times when pain was so severe he would stay in bed. With
degeneration expected to present in
the spine at a later point Anstey
will find himself limited to primary sedentary work with occasional
light activity (third of
the day). It will have an impact to his
ability to perform. He knows his sitting endurance is limited. When
the pain is severe
he may find himself bedridden for a period of time
and during this time he would be fully reliant on the person in the
home. The
level of pain Anstey is experiencing on the daily was
regarded to impact on the ease at which he carried out personal care
tasks
such as dressing, bathing grooming and toileting and home
management.
[43]
Her conclusion was that Plaintiff is likely to remain unsuitable to
work given the chronicity and severity of the symptoms
he
experiences. Unless he gets a viable employer he might not be able to
sustain even the sedentary work.
[41]
Mr Deon Van Rademeyer, a liability consultant in private practice was
the last to testify. According to him he noted that Anstey
is left
with neuro-physical fallout In the right leg, compounding his already
compromised mobility caused by a previous leg amputation.
He
therefore considered physical future revision surgery to remain a
possibility with additional periods of convalescence, saying
in order
for Anstey to function optimally within the limits of his disability
from a mobility perspective, provision needed to
be made for suitable
mobility related assistive devices, as well as allowance for
alternative vehicle permutations.
Domestic
required devices
[44]
He recommended that additional provision be made for a power driven
ride on scooter to be utilised for community mobility
around his
neighbourhood- beyond walking distance. The electrically powered
scooter is used inside malls by elderly people or people
who cannot
walk for a certain distance that is SOOm - km but limited to walk a
shorter distance maybe 100 meters like Anstey, minus
any discomfort.
He suggested that Anstey could use the scooter without tiring or
injuring himself.
[45]
For External Mobility - He said he thought as Anstey was an amputee
and wears prosthesis - he could not operate a vehicle by
paddling.
However he could have started with an automatic one using the right
leg but unfortunately he picked up full some frailty
on the right leg
as well. Anstey then cannot not use any legs - like a double amputee
as both legs were affected. He can in that
instance use an elbow
crutch and keep a standby manual wheelchair for when prosthesis leg
is removed. It should have controls,
the use of the accelerator in
future and a tow bar. The advantage is that the wheelchair could be
transported whilst the scooter
is more bulky, does not fold up quite
easily and quite heavy as well. The tow bar is mounted at the end
into the bracket. Aid would
be needed to transfer scooter. The cost
of the scooter is more than reasonable being R24 000.00.
[46]
He said the scooter is a motorised wheelchair but performs the same
function and as there are different types of disability,
for
quadriplegics there must be a back rest secured in the chair and a
joystick with less use of hands to manipulate the joystick.
It is for
the not so injured- and someone small, the controls are on the
handle. He could use either the auxiliary towbar mounted
wheelchair
carrier device which fits better not only on manual wheelchair and
has a small battery although it will naturally be
impossible to pick
up. She recommended that additional provision be made for a power
driven ride on scooter the cost of which is
maybe at the higher R200
000. It is for a permanent user not an intermittent user like this.
If he was to drive a vehicle with
hard controls he would be compelled
to resubmit for the licence test. He recommended an automatic car now
as an addition which
is to be adapted with hand controls for the
accelerator and brakes. He indicated that he may be required to go
for training again
unless If suspected that an endorsement will be
made. Voluntarily it must be done immediately.
Analysis
of the evidence
In
respect of general damages
[47]
The purpose for which damages are paid is a relevant factor to be
considered when general damages are assessed, which is to
improvise
for the pain and suffering,scarring and disfigurement of the claimant
which is as a result of negligent conduct (which
in this case is the
1'1 surgery). The assessment is therefore subjective, the claimant's
physical and mental make-up providing
the crucial test. The court's
determination of the portion of damages that relate to pain and
suffering is therefore primarily
based on the testimony of the
Plaintiff as it relates to his personal experiences, at least that is
what is suggested in
Sigourney
v
Gillbonks
1960 (2) SA
552
(A). The claimant must be able to recover damages for the full
extent of any pain that he actually suffered.
[48]
Compensation is also for loss of amenities of life, which is an
attempt to place the claimant in the position he would have
been if
the injury had not been inflicted, to recompense for the loss. It is
not intended to restore the lost amenities, but compensate
him for
not being able to enjoy the full use of all of his five senses.
However in this instance the test that is applied is objective;
see
Union Government v Warnecke
1911AD 651 at 665. Since also no
scales exist by which pain and suffering can be measured, the quantum
of compensation to be awarded
can only be determined by the broadest
general considerations. See
Sandler v Wholesale Caal Suppliers Ltd
1941 AD 194
at 199 where in addition to what has already been
stated, the following are also mentioned, that:
[48.1] the court is
entitled to heed the effect its decision may have upon the course of
awards in the future. See
Sigournay v Gil/banks
1960 {2) (A)
at 555H.
[48.2] the fall in the
value of money is a factor which should be taken into account in
terms of purchasing power, “but not
with such an adherence to
mathematics as may lead to an unreasonable result. See Sigourney at
556C.
[48.3] no regard is to be
had to the subjective value of money to the injured person, for the
award of damages for pain and suffering
cannot depend upon, or vary,
according to whether he be a millionaire or a pauper. See
Radebe v
Hough
1949 (1) SA 380
(A) at 386
[48.4] awards must
reflect the state of economic development and current economic
conditions of the country. See
Mair v General Accident Fire and
Life Assurance Corporation Ltd
1970 (1) RLR 124 (A) at 128 F-G.
[49]
What has emerged when assessing Anstey's evidence is clearly that
Anstey had challenges that persisted prior to the surgery
he had in
2010, that is a degree of permanent disability or incapacity and
certain scarring including deficiencies in his personal
circumstances
arising from misfortunes that befell him prior to the incident
in
casu
and led to the 151 surgery being performed on him. It is
important therefore to clearly differentiate between the pain and
suffering,
loss of amenities resultant from the 1st surgery by
Lieberthal and that which was manifest prior thereto and also what
Anstey would
have experienced as a natural progression of the earlier
manifestation whether or not he had the failed surgery. The
distinction
being relevant to establish the exact factual
circumstances from which the nature and extent of the damages are to
be determined.
[50]
During his evidence in chief, Anstey painted a picture of a man that
has immensely suffered as a result of Lieberthal' s negligent
action,
suffering mainly from depression that had led to him losing his job,
his family, and unable to hold any kind of work since
that operation.
Similarly it is what Vlok and Van der Walt established from his
account to them as reflected in their report. However,
he actually
started to display signs or appearance of depression after the
accident when his leg was amputated. Due to the depression
he quit
his overtime job as it turned out that he did not like working at
night, and ended up quitting his work, which amongst
others worsened
the strain in his relationship between him and his wife. By the time
he underwent the 151 surgery he was indeed
an emotional wreck.
[51]
Anstey's complain also about not being able to walk a long distance,
sit or stand for a long time must be taken into account
not
forgetting that he was already ambling with difficulty, his left leg
having been amputated below the knee and a prosthesis
leg fitted
after the 2005 accident. The prosthesis leg did not only slow his
gait but as it was not a proper fit it also made him
amble with a
squint gait. He also at the time suffered a spine injury that
gradually caused pain to his back and worsened by the
misfit. The use
of a crutch as an aid to his prosthesis leg affected the use of his
hands. Therefore when he underwent the 1•t
surgery, his walking,
sitting and standing was already compromised to a certain degree and
that has to be taken into account when
considering the extent to
which he is to be compensated for his pain and suffering.
[52]
Anstey has however alleged that he did not retain any residual pain
with all these injuries as he is very resilient. He also
pointed out
that he managed the continuous backache he suffered by the use of
medication, crediting myprodol tablets to have made
his pain
manageable such that he could function at work without using
crutches. The incapacitating pain he suffered in November
2009 until
surgery in May 2010 however proves otherwise. Edeiing's opinion on
that aspect was also that it is the pain on Anstey's
back and the
prosthesis that limits his mobility and ability to complete manual
tasks. Therefore, although his evidence cannot
be dismissed as
outright insincere, it has got to be treated with some circumspection
as it is not entirely reliable. In some instances
he deliberately
overstated or understated a situation.
[52]
In addition to being not able to sit or stand for long,
he also alleged to be constantly in pain from the time he wakes up,
which
is another overstatement as the court took note of his evidence
that he has not been able to pick up repeats of his prescribed
medication for a period of over three months prior to the trial date
and observed that he however was able to travel sitting in
a taxi/
car for five hours coming to attend the court proceedings, and did
not exhibit any anxiety or discomposure during the proceedings
but
continued to testify for hours even though he professed his condition
to be dire. He also surprisingly testified that he can
swim, an
activity he enjoys immensely but which also requires a lot of
vitality, strong hands and feet.
[53]
On the effect of the 151 surgery on Anstey, the expert's opinion
(based on the personal history Anstey provided, and their
assessment
of his condition) was according to Edeling that: Anstey had no
enjoyment of life, lost everything and
currently was treated for
suicidal tendencies
. He said Anstey was unable to live with other
people, family or friends, lost his wife and completely destitute.
Due to the depression
headache he could no
longer read. work and
had no remuneration
. Edeling's further concluded that Anstey has
a chronic depression psychotic condition as a consequence of physical
pain, being
depressed, tired, generally dissatisfied with his
condition and suffering disabling levels of anxiety.
He
emphatically stated that Anstey had not suffered depression or
anxiety prior to the operation by Lieberthal
. Whilst according to
Vlok, Anstey reported to be significantly depressed. Anstey had told
her he resigned from work due to depression.
Not having explored if
he received treatment for that, she proceeded to report that he had
thought of suicide. The problem posed
by such a conclusion is that
there has not been a diagnosis of the depression he allegedly suffers
from and the exact period of
Its manifestation.
[55]
Anstey on the other hand was very adamant that he was never suicidal
as suggested by the experts. He claimed that if it happened
he would
have remembered. Since the idea of suicide is not verified, it
therefore does not hold. It is also not correct that he
had not
suffered depression or anxiety prior to the 151 surgery. His
depression and general dissatisfaction with his life manifested
for
the first time, as indicated in Anstey's evidence under cross
examination, prior to the 1'1surgery. He had a history of depression
which Vlok recognised to be expected for a man that lost a leg.
Therefore at the time of the 11 surgery he already was suffering
from
depression and anxiety due to the situation with his wife and work.
The surgery only exacerbated his grim situation Increasing
his level
of anxiety and /or depression. The extent of his suffering should be
considered In that context. Clearly the experts
in this respect
showed a little bit of bias in their opinions, deviating from their
duty to assist the court to reach a proper
conclusion as implored in
Stock v Stock
1981 (3 SA 1280
(A) 1296E-F by Diemont JA stating that:
“
An expert must be
made to understand that he is there to assist the court. If he is to
be helpful he must be neutral. The evidence
of such witness is of
little value where she, or he, is partisan and consistently asserts
the cause of the party who calls him.''
[56]
An expert is at all times expected to assist the court, not the party
for whom she or he testifies. Objectivity being the central
prerequisite for his or her opinions. A message that was also
conveyed by Kotze J (as he then was) in
S v Gouws
1967 (4) SA
S27
(EC) at S28D, stating that:
“
the prime function
of an expert seems to me to be to guide the court to a correct
decision on questions found within his specialised
field. His own
decision should not, however displace that of the tribunal which has
to determine the issue of the trial.”
Further,
in
Michael and Another v Linksfield Park Clinic (Pty) Ltd and
Another
2001(3) SA 1188 (SCA) ((2002]
1 All SA 384)
[37]-(39] the
court held that 'what is required in the evaluation of the experts'
evidence is to determine whether and to what
extent their opinions
are founded on logical reasoning.' An opinion expressed without any
logical foundation can be rejected. These
are therefore two cardinal
requirements upon which expert evidence is to be assessed.
[57]
As mentioned that even though the pain and suffering aspect is very
personal the loss of amenities is of an objective nature.
Vlok could
not exclude a possibility of other injuries that Anstey had prior to
the operation including the deformity of his hands
unrelated to the
problem with his back adding to his loss of amenities, saying it's
difficult to exclude them. All of those were
already limiting his
amenities considerably before the 1
st
surgery. Although
the pain on his back and the prosthesis played a major role in the
limitation of his ability to fully function.
The uneven gaiety caused
him uneasiness and the use of crutches affected his hands as well.
The presentation of Anstey's limitations
before the failed surgery by
Lieberthal.
[58]
What Anstey also claimed to have really lost was sound thinking and
short memory, which can appropriately be attributable to
the low
pressure headaches that was the post 1
st
surgery symptoms.
The neurosurgeon regarded the headache as chronic. He also
presented
a residual neuro-physical deficit as a result of the failed surgery
at Witbank Hospital, which in a way also compromised
his mobility, in
addition to the previous left-leg amputation and caused him chronic
and ongoing pain.
[59]
As a result post-1
st
surgery he suffered for nearly a year as he described the situation
bedridden and later wheelchair bound. His condition in those
circumstances worse than before the operation. He suffered from
constant panic attacks, could not walk and had to defecate on the
bed. He also gained a lot of weight due to lying in bed and could not
fit in an MER machine. When he consulted Dr Schmidt as referred
to In
Edeling's report he presented a severe back pain with immobility due
to pain,sensory loss in the Plaintiff's left leg,
restricted
straight leg raising and loss of motor function in the Plaintiff's
right leg. The constraints on the right leg were new
and the
headache, the pain from the damaged nerve causing a degree of
paralysis post the surgerv and the increased pain.
It cannot be
denied that Anstey suffered a measurable extent of personal injury
from the 1
st
surgery however the other was due to existent problems. His overall
morbid state therefore was partly compromised prior to the
1
st
surgery.
[60]
The net effect was that he woke up with
more problems
, a
neuropathic pain and low pressure headache that does not respond to
pain- killers but increase pressure in the head. He with
the previous
amputation could to a limited extent function with pain in the absent
limp. But post 151 surgery the fresh nerve pain
confined him in bed
and the resultant headaches made him unable to return to his job as a
lodge manager. According to Edeling,
Anstey's present status as
described to him is that he still constantly suffers from severe back
pain, the degree varies during
the day. However the post-operation
back pain that Anstey suffered until 2•d operation was far more
severe. He was diagnosed
with leakage of cerebral spine fluid and
damaged nerve roots. He had to undergo revision lumbar spinal fusion
surgery at Pretoria
Academic Hospital In May 2011. He also had a loss
of his leg motor function and sensory deficit in the right leg.
[61]
These are all aspects for which Anstey is to be compensated and that
should influence what is to be regarded as an adequate
and fair
compensation and an amount that is an allowable deduction of
contingencies. The comparable cases provided by the parties
in their
heads of arguments have been considered merely for guidance in a
general way, since none of them are on all fours with
Anstey's case.
In Marine and Trade Insurance Co Ltd v Goliath
1968 (4) SA 329
(A) at
3348: Van Blerk JA remarked that:
“
...(To) ascertain
whether particular cases are similar in material respects, the facts
in regard to the degree of pain suffered
by the claimant in each
particular case and the amenities of life of which he was deprived
must be known before a comparison is
justified. This would entail at
least a study of the full judgment in each case. Mere knowledge of
the nature of the injuries would
not be sufficient”.
[62]
Having taken into account all of the aforementioned circumstances I
agree with the Defendant's proposal that an amount of R350
000 would
be fair and adequate as compensation for Anstey's general damages.
Past
and future loss of earnings earning capacity
[63]
In
Southern Insurance Association Ltd v Bailey N0
(1984) SA 98
(A) at 113G-114B, the court stated that:
“
Any enquiry into
damages for loss of earning capacity is of its nature speculative,
because it involves a prediction as to the future
.... All that the
court can do is to make an estimate, of the present value of the
loss, and
It has open to it two
possible approaches.
(1)
is for the judge to make a round estimate of an
amount which seems to him to be fair and reasonable. This is entirely
a matter of
guesswork, a blind plunge into the unknown; or
(2)
is to try to make an assessment, by way of
mathematical calculations, on the basis of assumptions resting on the
evidence. The validity
of this approach depends of course upon the
soundness of the assumptions, and these may vary from the strongly
probable to the
speculative.
It is manifest that
either approach involves guesswork to a greater or lesser extent,
There are other cases where the assessment
by the court is little
more than estimate; but even so, if it is certain that pecuniary
damage has been suffered, the court is
bound to award damages.”
[64]
In respect of his earning capacity Anstey's yearly income has been
calculated to be equivalent to R132 000 per annum which
is said to be
at the lower quartile of the Paterson Grading Scale Level B3.
Anstey's evidence is that at the time of the incident
he was earning
R11 000 monthly. The amount is not entirely accurate. Having actually
started the job earning R10 000 by 2009 December
and in 2010 whilst
undergoing the 1
st
operation, the amount is shown to have
increased to R11 000 by May 2010. The increase could not be verified,
although accepted
by some of the experts. According to Anstey he
continued to receive that amount until after the 2
nd
operation which would have been in 2011. An increase to R11 000 can
be considered as an increment which could have been applicable
from
February 2010. Therefore the calculation should be from the month
when he stopped to receive the remuneration.
[65]
The bonus amount of R15 000 referred to by Anstey as an annual amount
paid by the employer even though the defendant has conceded
that it
is payable has not been verified. There was no proof during the trial
of such payment. Linde referred to the amount with
no documentary
proof of such payment. When Vlok determined the loss of earning
capacity he did not want to include the bonus and
accommodation value
as it was not in writing which step I agree with. The amount
therefore remains in issue.
[66]
There was also no dependable verification of the conditions under
which the employers are said to have provided accommodation
to his
family. The evidence points more at the accommodation having been
afforded to his ex-wife and he came to live with her.
Vick confirmed
that there was no documentation to that effect nor was it reflected
in Anstey or his wife's salary slip submitted
in proof thereof. Vick
was also advised that the value of the accommodation was R6 500
whilst Anstey alleged to be R4 600. An erstwhile
human resource
manager at the lodge refused to independently verify the information.
Besides lacking verification, the rental amount
was mentioned only at
a very late stage to Ravule. I therefore do not agree that the
alleged accommodation amount should form the
basis of the calculation
of Anstey's earnings.
[67]
Anstey is said not to have been able to secure employment since his
corrective surgery in 2011. He secured two employment that
he could
not take up as it would have meant a lot of movement and standing up.
For that reason a chance of him securing any employment
less exertive
was regarded as far less as he has no experience in administrative
work. Edeling was of the opinion that future problems
unrelated to
pathology could be the cause of current 11ain which can contribute to
the degeneration of Anstey's muscles with him
developing more back
pain as time goes on, which if it happens faster, will accelerate the
negative effect of amputated leg process.
He reckoned as a result his
employment capacity was likely to stay as it is. If he had not had a
good operation and treatment,
he would have started experiencing
problems earlier which would have affected his capacity and
progressively worsened, the older
he got. Now when considering the
possibility of his muscles degenerating, he might later be challenged
to get work that accommodates
that situation.
[68]
Evidence is that with a disability relating to his mobility and the
use of his hands, there is no room for the possibility
of him being
promoted further than what he was, a maintenance manager or project
manager.
Linde's
opinion is that the current employment
environment is pretty bleak for Anstey as a white male who is more
than 40 years old, inexperienced,
unable to do clerical work and
suffers from constant pain. Anstey is therefore according to Linde
not suitable for full sedentary
employment. In his joint minute with
Defendant's expert Linde agreed that Anstey would have stayed in that
position until his retirement.
With a school qualification of Grade
11they believed he would have reached the ceiling. Also they could
not get a guarantee that
there was room for a promotion.
[69]
Actual or true patrimonial loss has got to be proven for damages for
loss of earnings to be granted. So damages for loss of
earnings have
been granted in cases where the Plaintiff had in fact suffered
patrimonial loss in that their employment situation
had manifestly
changed as a result of the incident;
see Rood Accident Fund v
Delport
2005 (1) All SA 468
(SCA) Anstey regarded the door to
have become closed in respect of previous employment and foresaw
himself experiencing difficulties
to secure work in a sedentary
position. At age 49 his residual work capacity was said to be
limited. Linde agreed that Anstey might
be challenged except
according to him it would be as a result of the work environment that
has evolved. However truly, he is going
to be held back by the
chronic pain and partly by his depression since employers have a
problem with an employee with a psychological
problem. A fact he will
have to disclose upfront if he is diagnosed with the problem.
Therefore it is something that will certainly
seriously affect his
chances of being employed. However as it is a fact that Anstey has at
no stage been diagnosed with depression,
besides, Anstey's testimony
suggests the manifestation of the alleged depression before the 1
st
surgery, the degree of its impact to the contingencies that are to be
applied to past or future earning capacity should be very
slight.
[70]
Anstey also said at some point after the 2
nd
surgery he
lived at a shelter in Kempton Park living on R12 a day for under a
year and presently, stays in a room in the same property
as his
ex-wife who sends him a plate of food every day as he has not drawn a
salary for 5 years. These specifics are somewhat misrepresented
as
all this time he has been receiving a monthly disability grant of R1
050.00 together with his salary for until 5 months after
the 2
nd
surgery. He is therefore not all candid when he presents his
situation.
[71]
In respect of the age of retirement, Vlok was not convinced that
Anstey would be able to work until the age of 65 as he was
already
experiencing problems with his back from September 2009 requiring an
operation. She was also of the opinion that the amputation
of his leg
would accelerate his back problems as he got older so he could not
say he could have worked until 65 years if the 1
st
Surgery
did not happen. It therefore seems Anstey's retirement was always
going to be at age 60. The longevity of his capacity
to earn only
slightly upset by the 1
st
surgery. Linde's view was
however that Anstey would have had to live on a clear wage packet
with no provision of pension fund and
would have had to work as long
as possible, hinting that his retirement might have had to be at age
65. But admitting that if it
happens that he becomes eligible for
further surgery, it was unlikely he would be able to return to any
form of employment. Van
der Walt on the other hand was not convinced
that Anstey will be able to work until his expected retirement age,
saying it all
depends on his resilience to pain and eventually by
further degeneration of his back.
[72]
As a result Anstey's Counsel was agreeable to Linde's suggested
compromise that his retirement age be projected at 62.5 which
is the
aggregate between 60 and 65. It seems possible that he could have
stayed in his job for a while because as manager he would
not have
been required to exert himself to exhaustion. However as indicated,
due to the chronic pain and unforeseen future further
spinal
degeneration which might affect his ability to work Edeling and Vlok
should be correct that he would not have worked until
the age of 65.
The compromise is consequently sensible. Edeling also indicated that
not being able to function is not due to paralysis
but due to the
pain. Now since the pain that Anstey suffers from is chronic, it is
unlikely that as it persists he will be able
to continue working
until 65. Furthermore Edeling indicated that the effect of a misfit
prosthesis accelerates the degeneration
of nerves and Anstey would
have as a result continued to experience the back pain and the
existent gaiety. The amputation of his
leg would accelerate the back
problem as he gets older. His working span would have as a result,
notwithstanding the failed surgery,
been cut short in the future. His
earning capacity is as a result affected more by the effect of the
misfit prosthesis than of
the 1
st
surgery.
[73]
In determining the amount upon which the contingency figures can be
applied the calculations by Sauer of Anstey's past loss
of income
R633 411 based on the yearly income of R132 000 from which the amount
of R ll9 071, a disability grant that Anstey received
during that
period is excluded, has been taken into account with a further
deduction of the bonus amount. The amount then arrived
at is R439
340. A 5% contingency fee is regarded to be fair and when applied to
past earnings both pre and past morbid, an amount
of R417 373.00 is
arrived at.
[74]
On future loss of earnings, for the reasons expounded as
aforementioned a contingency reduction of 20% in respect of pre-and
past morbid and past morbid earnings would be reasonable. Taking into
account the amount calculated by Sauer for future loss of
earnings
that is R 1656 532.00 less the total bonus amount added of R250
000.0, applying the contingency deduction of 20 %, the
amount arrived
at for future loss of earnings is R 1 125 223.50.
[75]
Anstey's loss of earnings past and future are therefore totalled to
be R 1 542 596.00
Future
Medical and related expenses
[77]
According to Vlok, Anstey presents with chronic pain and discomfort
in the right lower limb with concurrent backache; diminished
static
and dynamic endurance tolerances exacerbated by exertion, impaired
balance, agility and global compromised mobility. He
ambulates with
difficulty and supported by a crutch in the left hand. He walks with
typical limping antalgic gait pattern compounded
by the prosthetic
left leg.
Edeling
reckons further surgical intervention unlikely to result in any
benefit. He actually is of the opinion that there is the
inherent
risk in the operation/surgery resulting into complications. A
contingency of 20 % on the premorbid future earnings should
be
applicable.
[78]
Anstey is also said not to be able to sit or stand for prolonged
periods due to the weakness in his legs that affects his arms.
His
main complain involving the neuro-physical fall out together with
chronic pain and backache. The pain together with the prosthesis
was
said to limit his mobility and ability to complete manual tasks but
somehow to a certain extent exaggerated. For instance he
was
surprisingly able to endure the protracted proceedings in court even
though he had not had any medication for a long period
before the
trial. He has been moving around for some time staying in different
areas without medication and with no mention of
incapacitating pain
being experienced.
[79]
On the other hand Edeling's weighty opinion is that costs of future
spinal surgery would not be attributable to the failure
of reasonable
treatment by 1
st
Defendant since Anstey had reaped the
benefit of successful salvage spinal surgery by Dr Snycker's further
surgical intervention
which is unlikely not to result in any benefit.
As expected Anstey, as it happened would have continued to experience
pain as a
result of his leg being a misfit and the existent back
problem. A vital point to consider when computing the costs of the
treatment
to be incurred by the Defendant.
[80]
In respect of Anstey's chronic depression psychotic condition, It Is
clear from the evidence that it was not solely as a consequence
of
the physical pain as alleged. He was prior to the 1” surgery
generally dissatisfied with his circumstances and had suffered
disabling levels of anxiety. Counsel for the defendant raised a valid
point that no evidence was led to contextualise his depression
nor
was a comment made on the prognosis. A fact that has to be considered
when determining the nature and extent of the treatment
he is to be
afforded.
[81]
Vlok's opinion was that Anstey would not be able to carry on tasks
and on days when the pain persists he will need domestic
help and
alleged to have relied on the doctor's finding that medication will
not be able to control the pain. She however could
not find it in her
report where she had noted the comment of the doctor. She but
remained committed to the view because of what
Anstey said, that
there were times when the pain was so severe he would stay in bed.
She figured that as his level of pain was
unlikely to improve, over
time he might become worse and not be able to be mobile, he will then
need domestic help at home. Also
suggesting that If he will be
staying in a place with a garden, a gardener as well, whom he might
have to use to assist him with
heavy work. She also figured that
Anstey requires on-going therapy and management of his condition
which is to be approached on
the multi- disciplinary basis and to
include physiotherapy and psychological treatment.
[82]
Therapy would certainly therefore be necessary including the extra
therapy that has been further added in the medical expenses
in case
of further surgery. However due to the huge amount already allocated
for pain control by Dr Townsend, the amounts for additional
visits
for treatment for pain or its management are to be deducted. The
necessity of the extra visits has not been substantiated.
Instead
what is clear is that there is no proof that even with medication,
the pain is unbearable.
[84]
I am also not persuaded that Anstey will require a full time domestic
taking his circumstances into consideration, but agree
that a part
time domestic might be necessary for his living conditions. Van der
Walt was also of the opinion that a full time domestic
not necessary,
however still accommodative that if he happens to leave alone he
would need a domestic worker for those tasks that
he would not be
able to do, recommending the aid of a domestic worker once a week. At
the time he saw him he was coping. He was
open to a full time
domestic, if by chance Anstey's condition deteriorates. A part time
domestic twice a week will be sufficiently
useful to Anstey.
[85]
Taking into account that Anstey's whole medical background, the
Occupational Therapists confirmed that Anstey also required
a variety
of assistive devices and treatment shown to be necessary to help him
with mobility to assist him to be integrated into
the community. It
was said if he was to avoid stairs, ladders, uneven terrain and
carrying heavy objects and could only walk a
distance 100 meters. He
presently utilises a crutch permanently and said to keep a standby
manual wheelchair at home for when the
prosthetic left leg is
removed.
[86]
Rademeyer then recommended that additional prov1s1on be made for a
power driven ride on-scooter to be used for community mobility
around
his neighbourhood beyond walking distance He recommended the
scooter on the basis that Anstey can use it without tiring
or
injuring himself. Estimating the costs thereof to be maybe at the
higher R200 000 and commending it for a permanent not an intermittent
user. Inside a mall an electrically powered wheelchair for people who
cannot walk for a certain distance more than 500m - 1km but
limited
to walk a shorter distance maybe 100 meters minus discomfort. He said
if Anstey was to drive a vehicle with hard controls
he would struggle
and with the suggested scooter he was not compelled to resubmit for
testing licence. He also recommended that
an automatic car could be
an option which now can be adapted with hand controls for accelerator
and the brakes. He would not be
required to go for training again
unless if it is suspected that the endorsement will be made. It must
be done voluntarily and
immediately.
[87]
Sauer then in compiling the Actuary's report considered the joint
minutes of Vlok and Van der Walt taking into account the
agreed and
disagreed Items, the mobility consultant and the neurologist reports
to calculate Anstey's projected future medical
expenses. However
there are amounts that have been repeated that are given as options.
On the basis of my comments as explained
herein before, Iam amenable
after deductions of repeated items to agree to a domestic worker
employed part time however twice a
week instead of weekly. Therefore
from the total amount, the amount for a full time domestic worker is
to be deducted and an amount
for a part time domestic worker twice a
week provided fro, by adding the allocated amount twice. The repeated
amounts of R58 311
and R37 319 for the powered scooter and Its
maintenance and Insurance are also to be deducted. Finally, the pain
management amounts
of R14 111and RS 292 are also to be deducted as a
huge amount is already allocated for Pain Control by Dr Townsend. The
total amount
for medical and related expenses would therefore be R 1
088 704.00.
[88]
The Defendant is therefore ordered to make the following payments to
Anstey, the Plaintiff:
[88.1] For general
damages (loss of pain and
suffering and amenities
of life) R350
000.00
[86.2] For past and
future loss of earnings R1
542 596.50
[86.3] For past and
future medical and related
expenses R1
088 704.40
Total
R2
981300.90
Less interim
payment
(R752
800.00)
To be paid to
Plaintiff R2
228 500.90
[86.4] The Defendant is
ordered to pay Plaintiff's costs to date on a party and party scale,
such costs to include the costs of
the postponed trial on 12 May
2014, the costs four days of trial when the matter stood down on 11
November 2014, including counsel's
fees in respect of these court
appearances, and including the reasonable reservation, travel,
preparation and qualifying expenses
of the following expert
witnesses:
[86.4.1]
Dr E H Edeling;
[86.4.2]
Mr D Rademeyer
[86.4.3]
Mr G Vlok
[86.4.4]
Mr L Linde
[86.4.5]
Mary Cartwell Consultant
[86.4.6]
Dr Townsend, only preparation and qualifying fees payable which
excludes that of the period 14 to 17 April 2015.
_________________________
N
V KHUMALO J
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION: PRETORIA
On
behalf of the Plaintiff: A J JANSE VAN VUUREN
Instructed
by: Malcolm Lyons and Brivik Oosthuizen Attorneys
C/O
Maritz Smith Van Eeden Inc
012)
342 000
On
behalf of the Defendant: H JOUBERT
Instructed
by: State Attorney
PRETORIA
(012)
309-1629