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[2011] ZAKZDHC 59
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Swan v MEC for the Department of Transport, Kwazulu-Natal Province and Another (7000/2001) [2011] ZAKZDHC 59 (29 November 2011)
IN THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
Case Number : 7000/2001
In the matter between:-
MARK BRENDON SWAN
…..................................................................
Plaintiff
and
MEMBER OF THE EXECUTIVE COUNCIL FOR
THE DEPARTMENT OF TRANSPORT FOR THE
PROVINCE OF KWAZULU-NATAL
….......................................
First
Defendant
GARFIELD VAMA MAKHANYA
…........................................
Second
Defendant
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
VAN ZYL, J.:-
During the late evening of 2 November 2000 the plaintiff, who was
born on 20 July 1977 and who was, at the time, a young man
twenty
three years of age, was riding a motorcycle along a provincial road
described as the Freeway between Pinetown and Queensborough.
Unbeknown to him cleaning and maintenance work was in progress along
this stretch of road and piled up rubble and grass cuttings
had been
permitted to spill over onto the driving surface of the freeway.
Plaintiff collided with such rubble and cut grass.
As a result he
was thrown from his motor cycle and suffered certain injuries.
Plaintiff instituted the present action against the first defendant,
as well the second defendant alleged to have been employed
as a
contractor by the first defendant to actually perform the cleaning
and maintenance work concerned on behalf of the latter,
claiming
damages. Liability having been resolved at an earlier hearing, it is
now common cause that the first defendant is liable
for all of the
plaintiff’s proven damages. For convenience the first
defendant is simply referred to below as the defendant.
The plaintiff claimed damages suffered as a result of the collision
under two categories. The lesser claims relate to compensation
for
damaged property made up as to the reasonable repair costs of the
motorcycle in the sum of R2 200-00 and damages to
the
plaintiff’s watch, shoes and clothing in the sum of R1 891-00.
By the time of the trial these were effectively
no longer in
dispute. The second and more important category relates to the
damages plaintiff alleges he has suffered as a result
of personal
injuries sustained in the collision. These are dealt with in greater
detail below.
According to the plaintiff’s particulars of claim he sustained
a crush injury to the small finger of the right hand with
a deep
laceration over the joint, with degloving and comminution of the
proximal and middle phalanges. In addition it is alleged
that the
plaintiff suffered grazes on the dorsum of the right hand, right
ring finger, right shoulder, his back and the right
knee, as well as
a moderately severe whiplash injury to his neck. Following the
collision the plaintiff was admitted to Westville
Hospital and on
the 3
rd
November 2000 the right small finger was
amputated at the base of the proximal phalanx. A revision of the
amputation stump was
later done on the 26
th
February
2001. Given the lapse of time since the injuries were sustained, it
appears common cause that the plaintiff’s
injuries have since
stabilised.
During the course of the trial the plaintiff himself gave evidence
and in addition called Dr R Reddy, an orthopaedic surgeon
and Mr J
Kriek, a medical orthotist and prosthetist. The defendant called
only Dr A A Osman, an orthopaedic surgeon. In addition
both Drs
Reddy and Osman referred
inter alia
to the report by Dr H J
Gildenhuys, an orthopaedic surgeon who initially treated the
plaintiff and who performed the amputation
procedures involving his
little finger. This report is contained in the plaintiff’s
Quatum Bundle, exhibit “A”.
The essential issues remaining in dispute as at the end of the trial
relate to general damages and the costs associated with
the
plaintiff’s future medical expenses. The latter issue relates
to the manner in which the amputation injury to the plaintiff’s
right hand is managed and with which I propose to deal at some
length. However, before doing so I need to consider the less
controversial issues flowing from the less serious consequences of
the collision. These include the alleged injuries to the neck
in the
area of the cervical spine, headaches associated with pain radiating
from the base of the neck into the skull, as well
as neck pain.
Discomfort in relation to the right shoulder manifests itself
according to the plaintiff especially when pressure
is applied
vertically to the shoulder, such as when lying down or sleeping on
his right side, but also with prolonged movement
such as when
swimming.
Headaches and the neck injury:
Given the nature of the collision and the manner in which the
plaintiff sustained injuries, a whiplash type of injury to the
plaintiff’s neck and cervical spine would certainly not be
improbable. The plaintiff alleged that he did not suffer from
headaches and had no neck deficits prior to the collision, but that
subsequent thereto he now suffers headaches and neck pains
three to
four time a week. He usually takes analgesics for the pain and anti
inflammatory medication in the form of Myprodol
tablets two to three
time per week for his neck. In addition he applies rubbing
medication (Deep Heat) to his neck on a daily
basis.
Dr Reddy, who was called by the plaintiff, drew attention to the
radiological report relevant to the plaintiff’s cervical
spine
and which indicated a loss of normal hordosis, as well as some minor
irregularities associated with the facet joint in
the cervical spine
at the level between C2 and C3 and some joint degeneration at the
level between C6 and C7, as well as between
C7 and T1. There is
nevertheless no indication of instability in the cervical spine. He
considered that because the complaints
have persisted so long after
the injuries were sustained, the condition has become chronic.
Dr Osman, who was called by the defendant also referred to the
radiological report but interpreted the results more benignly.
According to him cervical alignment appeared normal, disc spaces
appeared intact and no soft tissue abnormality was observed.
Upon
examination of the plaintiff’s neck he found it to be normal,
the only abnormality being minimal pain experienced
by the plaintiff
at the extreme of rotation to the right side. Whilst recording being
told by the plaintiff that he needed the
“crack” ten to
fifteen times a day to relieve the discomfort, he did not comment
upon this claim.
The plaintiff was not seriously attacked in cross examination on the
issue of his neck pains and headaches because the emphasis
was
placed upon the issue of the future medical treatment of the
amputation associated injury. In my view the plaintiff established
on a balance of probabilities that he suffered a whiplash type of
injury to the neck as a result of the collision and that this
has
given rise to his ongoing complaints of headaches and neck pains.
The right shoulder injury:
Dr Osman indicated that no definite fracture or dislocation of the
right shoulder was recorded. However, whilst the shoulder
joint
space and soft tissues appeared normal, he did record a crepitus, in
the form of “
some clicking
”, associated with the
right shoulder which he suggested might indicate a subacromial
bursitis. He suggested treating this
condition with two steroid
injections together with rotator cuff strengthening exercises, but
it remains unclear what the prognosis
for a full recovery is in this
regard. Again, given the long lapse of time since the injury was
originally sustained, the condition
may well also have become
chronic. Dr Reddy, on the other hand, noted that there were features
of a subluxating biceps tendon
and proposed an arthroscopic
debridement and lateral rectinacula release, in order to stabilize
the biceps tendon at a cost of
some R18 000-00. He was not
seriously challenged in regard to this diagnosis, or the operative
treatment he proposed.
In my view it has been established that the plaintiff suffered a
mild but persistent injury to his right shoulder as a result
of the
collision.
The right knee injury:
Dr Reddy found crepitus present in the right knee by reason of an
audible “click” during the patella excursion and
causing
mild discomfort. However, gait was normal. He ascribed the condition
to patellofemoral joint mal-tracking and post-traumatic
chondromalacia. He postulated that the need for future surgery to
this joint by means of an arthroscopic corrective procedure.
He was
not seriously challenged in regard to this diagnosis, or the
operative treatment he proposed at a cost estimated at R20 000-00.
Dr Osman on the other hand, whilst confirming the presence of
crepitus in the right knee, found the right knee to be normal and
the only positive pathology to be the fact that the hamstrings of
the plaintiff’s right knee were abnormally tight. He
commented
that this condition could be a contributing factor for plaintiff’s
patella-femoral discomfort for which he recommended
rehabilitative
treatment. What remains unclear however is to what extent the such
rehabilitative treatment would necessarily
provide beneficial
results so long after the injury was sustained.
The plaintiff himself asserted that prior to the collision he never
had any difficulty with his right knee and ascribed his subsequent
condition, which appears to have stabilized, to the injuries
sustained as a result of the collision. During the trial one of
the
reports handed in by consent was that of Mr T Kruger, medical
orthotist and prosthetist retained by the defendant. This report
was
received by consent as exhibit “E”. Therein Mr Kruger
states that a knee brace would help to correct the patella
tracking
abnormality of the plaintiff’s right knee, thereby alleviating
the discomfort the plaintiff would otherwise experience.
The amputation injury of the right hand:
The main issue in dispute between the parties during the trial on
quantum relates to the future management of the injury to the
right
hand of the plaintiff and which gave rise to the amputation of the
major portion of the right pinky. In this regard two
different
courses of action have been proposed by the plaintiff and defendant
respectively.
The plaintiff experiences significant difficulties with his right
hand, which is his dominant hand, as a result of the partial
amputation of the small finger. A neuroma has developed which
renders any contact with the area of the amputation or the remaining
stump painful or, at the very least, subjects him to discomfort. As
a result he is unable to use his right hand optimally.
This difficulty is compounded because, at all times material, the
plaintiff has been employed in a sales capacity by a steel
merchant.
Not only does he need to professionally interact with customers, but
social customs dictate that such customers often
be greeted with a
handshake. This presents the plaintiff with a recurring problem
because he finds it both painful and embarrassing
to shake the hand
of another person. Shaking hands with someone who has a partially
amputated finger is also startling to the
uninformed or unwary and
plaintiff says he finds explaining the position to strangers to be
embarrassing. Equally embarrassing
is avoiding the social courtesy
of a handshake, without explaining the reason.
The plaintiff also experiences, so he explained, practical
functional difficulties in managing everyday tasks with his right
hand in its present condition. These relate mainly to his right hand
control, as well as grip strength and accuracy. So, for
instance,
does he experience difficulty in holding on to small objects, such
as loose change and coins, clicking an ordinary
ballpoint pen,
gripping and using a screw driver, or even holding on to soap whilst
washing. The combination of the neuroma,
which is painful upon
touching, the lack of grip strength and accuracy, as well as
embarrassment at the sight of his mutilated
right hand and the
social discomfort that causes combine, according to the plaintiff,
to be significantly disabling and disruptive
of his previous
lifestyle.
The plaintiff contends for two remedial solutions. Firstly the
treatment of the sensitivity in the area of the amputated little
finger of the right hand where a neuroma has developed, should be
treated by surgery to remove the neuroma. Dr Reddy conceded
in
evidence that locating and neutralising or removing a nerve in order
to finally address the neuroma may prove difficult, but
expressed
confidence that this was a viable solution to the pain and
discomfort suffered by the plaintiff in the area of the
amputation.
He also drew attention to the fact that such an operative procedure
was a relatively common occurrence.
Secondly the plaintiff suggests that a prosthesis, made up of a
glove like item which then supports a prosthetic replacement
for the
missing part of his little finger of the right hand is the
preferable and most reasonable long term solution to his
predicament. This, so the plaintiff contends, would provide a number
of advantages. Firstly it would act as a protective barrier
for the
neuroma, shielding it from direct contact with potentially abrasive
or pressure surfaces. Secondly it would improve the
plaintiff’s
grip and utilisation of his right hand in respect of a multitude of
everyday tasks and movements, including
holding a cup or a mug of
tea or coffee, which at present tends to slip from his grasp.
Thirdly it would aesthetically improve
the appearance of his right
hand, thereby reviving his self confidence and enabling him to greet
customers, strangers and friends
alike with a handshake in keeping
with social norms and practices.
Counsel for the defence suggested to Mr Kriek, the plaintiff’s
prosthetist under cross examination that the production
of such a
prosthetic device was impractical. However Mr Kriek confirmed that
the prosthetic device contended for by the plaintiff
is indeed
feasible and could be produced to satisfy the plaintiff’s
needs. Mr Kriek countered criticism of the practical
application of
the prosthetic device in view of the neuroma from which the
plaintiff suffers, by pointing out that he could use
softer latex or
other materials in the manufacture of the prosthetic device, thereby
avoiding undue pressure on the neuroma if
it were not surgically
eliminated.
However, he did point out that the prosthetic device would wear out
and would need replacement from time to time. In this regard
it is
interesting to note that in exhibit “E”, the report by
the defendant’s prosthetist Mr Kruger, he recommended
such a
prosthetic device but suggested that the plaintiff first has the
operative procedure in order to neutralise or remove
the neuroma.
By contrast to the prosthetic approach favoured by the plaintiff,
the defendant suggested a so-called “
ray amputation
”
of the stump of the little finger on the plaintiff’s right
hand. This would involve the removal of the stump of
the offending
little finger, together with a portion of the adjoining skin and
underlying bone and flesh so that the plaintiff’s
right hand
would then appear with only a thumb and three fingers. In the case
of a ray amputation no prosthetic device creating
the illusion of a
restored little finger would be possible.
Dr Osman for the defendant contended that such an amputation would
likely remove, in the process, also the nerve endings constituting
the plaintiff’s neuroma so that, not only would plaintiff be
pain and discomfort free, but the need for and the costs resulting
from repeated prosthetic devices, would be avoided. However, he
found himself unable to give the assurance that such a ray
amputation would inevitably remove the existing neuroma and that it
would not result in a new neuroma developing at the site of
the ray
amputation.
Dr Osman, however, drew attention to the fact that the plaintiff had
remarked to him that the possibility of such a ray amputation
had
been mentioned by Dr Gildenhuys, who had treated the plaintiff
shortly after the collision. Dr Osman was dismissive of the
suggestion that the plaintiff’s right hand would, in such an
eventuality, remain unsightly and continue to be the cause
of
embarrassment and frustration for the plaintiff, even if he were
pain free as a result.
Upon consideration of the circumstances as a whole it would appear
that the suggestion of a ray amputation would not necessarily
resolve the difficulty caused by the neuroma, or eliminate the
possibility of a fresh neuroma developing at the site of the ray
amputation. Nor would it alleviate the disfigurement of the
plaintiff’s dominant right hand, about which he appears
subjectively
to be very sensitive. Whilst the suggestion by counsel
for the plaintiff that a ray amputation would amount to “
further
mutilation
” of the plaintiff’s right hand is
overstating the position, there is nevertheless some cause for
concern. If the
ray amputation were performed, then the plaintiff’s
right hand would merely exchange one form of visual abnormality for
another. A hand with a thumb and only three other fingers would
still appear as a curiosity and certainly more so than a hand
in a
glove supporting a prosthetic replacement for the missing part of
the plaintiff’s little finger.
There is also no guarantee that the functioning of the plaintiff’s
right hand would be improved by a ray amputation. One
of the
advantages postulated in evidence for the prosthesis was that the
shape of the plaintiff’s hand would be restored.
Although the
prosthetic part of the little finger would not provide any grip as
such, it would nevertheless replace the useful
backstop effect of
the little finger whilst holding an item, such as a drinking glass,
which at present tends to slip through.
Then there is the finality of a ray amputation. Once performed and
if found to be unsightly, there is no suggestion that the
appearance
of the plaintiff’s hand can thereafter be improved by any
prosthetic device. Nor is there any practical suggestion
of being
able to shield the hand in the event of another neuroma emerging
post operatively.
In all the circumstances I am driven to the conclusion that the
plaintiff cannot be criticised for his unwillingness to submit
to a
ray amputation in preference to opting for the prosthetic solution.
This is irrespective of whether or not he undergoes
successful
surgery for the elimination of the neuroma.
The two disputed areas relevant to the quantification of the
plaintiff’s damages are, as indicated above, general damages
and the future medical expenses associated with the treatment and
management of the plaintiff’s condition. Because the
treatment
and management of the plaintiff’s deficits will impact also
upon the general damages to be awarded, I will deal
with general
damages later.
It is by no means clear that the prospective future surgical
procedures for the alleviation of the neuroma at the amputation
site
of the small finger of the right hand, the stabilisation of the
biceps tendon in the right shoulder and the arthroscopic
procedure
to correct the mal-tracking of the post traumatic chondromalacia of
the right knee would inevitably successfully resolve
the plaintiff’s
complaints in regard to these abnormalities. Some allowance needs to
be made for the failure of one or
more of these operations.
What is also unclear is to what extent the success or failure of the
arthroscopic procedure to correct the mal-tracking of the
post
traumatic chondromalacia of the right knee will affect the need for
a knee brace to correct the patella tracking abnormality.
Both Mr
Kriek in evidence and the report by Mr Kruger supported the need for
a knee brace, which would need to be replaced every
two years
according to Mr Kriek. It seems to me that it is necessary in the
circumstances to make some allowance for the knee
condition being
sufficiently improved by the operative treatment suggested by Dr
Reddy so that a knee brace is not needed, or
constantly needed.
The plaintiff’s claims for damages relating to the reasonable
and necessary costs of repair to his motor cycle in the sum
of
R2 200-00, as well as for R1 891-00 for his watch, shoes
and clothing are unremarkable and were not disputed at
the time of
the trial, nor was the claim for past medical expenses of
R15 765-19. Likewise and as regards future medical
expenses,
the claims for neuroma surgery at R12 000-00, stabilisation of
the biceps tendon in the right shoulder at R18 000-00
and the
arthroscopic procedure to the right knee at R20 000-00 were not
seriously disputed.
However, the claims for the silicone hand prosthesis and the knee
brace were disputed, not at the level of the cost calculations
relevant thereto, but at the level of the necessity therefor. As
already indicated, I cannot fault the plaintiff’s election
rather to opt for the silicone hand prosthesis in preference to the
ray amputation contended for by the defendant. From the latter’s
point of view the main attraction of the ray amputation is the fact
that it would be less costly in the long run. But that cannot
justify the preference for an amputation in the circumstances.
According to Mr Kriek the costs associated with the production of
the silicone hand prosthesis is R20 014-44. The prosthesis,
like the knee brace referred to below, would need to be replaced
every two years and estimating the plaintiff’s life expectancy
to extend to 75 years, twenty two replacements thereof will be
required giving a claim under this heading of R440 317-68.
There are, however, a number of factors to be considered in this
regard. Apart from the contingency of the earlier demise of
the
plaintiff, the silicone hand prosthesis envisaged is a somewhat
unusual prosthesis. Some allowance needs to be made for factors,
such as the plaintiff finding the prosthesis uncomfortable or
displeasing and subjecting it to less constant wear than
anticipated,
so that wear and tear on the prosthesis is less severe
and the intervals between replacements longer than two years. In the
circumstances
I would allow a twenty percent contingency deduction
in this regard, thus reducing this claim to R352 254-15.
As also indicated above, the knee braces claimed at an estimated
cost of R1 320-68 and with twenty two renewals for the
remaining period of the plaintiff’s life amounting to
R29 054-96, would need to be reduced, particularly to allow
for
the possible success of the of the arthroscopic procedure to correct
the mal-tracking of the post traumatic chondromalacia
of the right
knee. In my view the contingency to be allowed in this regard is
considerably greater than in the case of the prosthesis.
I would
allow a fifty percent contingency, thus reducing the claim under
this heading to R14 527-48.
There remains the issue of general damages. At the time immediately
following the collision the plaintiff, according to Dr Reddy,
suffered acute pain and discomfort, moderating thereafter to severe
for about four weeks and with recurrent pain thereafter.
The
plaintiff himself described the intermittent headaches, neck pains,
right shoulder pains and pains from the neuroma at the
site of the
amputation. There is the constant reminder and frustration that the
use he is able put his right hand to, is limited,
as well as the
constant awareness of the disfiguring effect of the injury to his
right hand. In addition, the crepitus of the
right knee must
likewise be a constant source of irritation. But it is also
necessary to maintain perspective. The plaintiff’s
injuries
could have been far worse and compared to some, the plaintiff is
fortunate indeed.
Whilst previous awards are useful in arriving at a conclusion, no
two cases are alike in all material respects. In the present
matter
the plaintiff’s combination of injuries are so unusual that
none of the host of reported decisions to which counsel
for the
plaintiff directed my attention are exactly in point. It is
therefore not without significance that counsel for the defendant,
in making submissions, did not rely upon any particular prior
awards.
In the final analysis general damages can only be determined along
broad general considerations of fairness and equity and against
the
background of all the peculiar facts and circumstances relevant to
the matter in hand. In the present instance the plaintiff
claims
R300 000-00 for general damages. That, in my view, is overly
optimistic. I consider that the sum of R180 000-00
is more
appropriate, having regard to all the circumstances of the case.
In the result I grant judgement in favour of the plaintiff against
the first defendant, as follows:-
a. for payment in the sum of R566 637-63.
b. Interest thereon at the rate of 15,5% per annum from 23 February
2001 to date of payment.
c. Costs of suit, such costs to include the qualifying fees and
evidence of Dr R Reddy and Mr J Kriek as well as their respective
medico-legal reports and also the medico-legal reports of Dr H J
Gildenhuys and Mrs M Naidoo.
_____________________
VAN ZYL , J.
APPEARANCES:
For Plaintiff : Adv M E Stewart
Instructed by Thorrington-Smith and Silver of Durban
For First Defendant : Adv N G Winfred
Instructed by the State Attorney, KwaZulu-Natal of Durban.
Date written
argument submitted : 31 October 2010
Delivered : 29 November
2011
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