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[2009] ZAGPPHC 153
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Hayman v RMB Properties (Pty) Ltd (36423/07) [2009] ZAGPPHC 153 (11 December 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
PRETORIA
Case
no. 36423/07
11
December 2009
In
the matter between
:
ZURITA
HAYMAN Plaintiff
and
RMB
PROPERTIES (PTY)LTD
Defendant
JUDGMENT
LEGODIJ
I.
This is an action proceedings based on delictual claim, arising from
the alleged negligence of the plaintiff. At the start of
the hearing
of this matter, I was told that the parties had already settled the
matter on merits. The agreement being that the
plaintiff was 20%
negligent, whilst the defendant was 80% negligent. This has the
effect that the plaintiff would be entitled to
80% of her proven
damages.
2.
The matter therefore proceeded before me to assess the damages that
could have been suffered by the plaintiff due to the defendant's
negligence.
3.
Two witnesses testified. These were the plaintiff and her son. On the
24 January 2005 at or near Lynnridge Mall and on a property
owned by
the defendant, the plaintiff tripped on a pavement like-wall which
was on the ground in a parking area. Having tripped
on the pavement,
the plaintiff fell and injured herself.
4.
Her injuries are described in paragraph 4 the particulars of claim as
follows:
"4.1
J ‘
n
ligte hoofbescring met ’n laserasie van die linker wenkbrou,
4.1.2
‘n beseringvan die regter skouer;
4.13
'n
skaafwond
van haar linker handpalm
;
en
4.1.4
'n
besering
van die linker knie met
'n
skaafwond
van die
feme"
5.
Based on the injuries, the plaintiff in paragraphs 8 of her
particulars of claim, claimed damages as follows:
"8.1
gelede
mediese uitgewes
................................
R5
000.00
8.2
toekomstige mediese uitgewes
..................
R40
000.00
83
algemene skade
.............................................
R120
000.00"
6.
The amount of R40 000 for future medical expenses was based on the
medico legal report by Dr Heymans. The report is annexed to
the
plaintiff's particulars of claim. The correctness of the report was
not placed in issue by the defendant.
7.
I must immediately indicate that according to the vouchers or
accounts that formed part of the proceedings, the total amount
for
past medical expenses are calculated as R2425-17 . This did not
appear to be an issue.
8.
Contentious issues revolved around the amount for general damages and
the amount for future medical expenses. For this purpose,
I was asked
to have regard to the evidence of the plaintiff, her son and the
reports by Drs Heymans and Engelbrecht. Both these
doctors did not
testify. However, their reports and findings were not placed in
issue. I may mention that Dr Engelbrecht, Orthopaedic
Surgeon,
prepared the report on the instruction of the defendant. He would
have testified on behalf of the defendant. However,
seeing that the
plaintiff admitted the report, I was informed that his viva voce
evidence was not necessary. By agreement the report
forms part of
these proceedings without oral evidence. The contents and the
correctness of the report were admitted by the plaintiff.
Based on
this agreement, the defendant closed its case without leading any
evidence.
9.
In the report by Dr Engelbrecht, the plaintiff needed to undergo
surgical procedure to deal with the repair of the right shoulder
rotator calf tear as well as decompression of the right shoulder. If
this was to happen, she will incur the costs of the Orthopaedic
Surgeon, assistant as well as I that of the anaesthetist. For this
purpose a total amount of about R58 000 would be needed.
10.
The plaintiff however, in her evidence indicated that she was not
prepared to undergo any such a procedure due to her advanced
age and
due to the fear of undergoing such a procedure. Secondly, that she
could not be given a guarantee that it would be successful
and that
there would be no complications. Based on all of these, I find that
the plaintiff cannot be entitled to future medical
expenses regarding
surgical procedure which she does not intend to undergo.
11.
However, Dr Engelbrecht in her report also deals with a treatment
which she refers to as
"conservative".
This
procedure will entail the costs of about R20 000. According to Dr
Engelbrectht, the plaintiff will benefit from infiltration
of the
sub-acromial space right shoulder with cortisone as well as local
anaesthetic. However, this is said to only provide temporary
relief.
12.
The defendant was not prepared to concede to the plaintiffs
entitlement of R20 000 for future medical expenses based on the
accident that had occurred on the 24 January 2005. The contention as
I understood it, was that, both Drs Heymans and Engelbrecht
in their
respective reports confirmed a "congenital variant".
13.
Dr Heymans' evaluation was on 14 February 2006. Mention is made of
changes indicative of a rotator calf syndrome with calcification.
Also the type of arcomion is indicated as type III. This type of
acromion is hooked shaped and is known to cause rotator calf
impingement syndrome as well as rotator calf tears. This is a
congenital variant i.e. the patient was born with this type of
acromion.
14.
If find it necessary to state in full what is further said by Dr
Engelbrecht in his report dealing with a paragraph titled:
DISCUSSION
IN RESPECT OF PRE-EXISTING DISCUSSION. Continuing from pages 16 to 18
of the report, it is stated as follows:
"I
have
managed to obtain the Radiologist' report (Dr Baker) i.r.o. the
patient's right shoulders; X-rays were performed on 24/01/2005,
Mention is made of degenerative changes, which should be seen as
pre-existing. However, the subacromial space is reported as normal
TheX-ray report of14/02/2006 indicates "The supra-spinatus exit
is significantly narrowed" In my opinion this indicates
accelerated degeneration of the right shoulder and fits in with a
rotator cuff tear at the time of the accident.
For
the purpose of this report the following is stated:
1.
The
patient most probably taking her shape of acromion into account has
some pathology pre-existing to her right shoulder prior
to the
accident, although asymptomatic.
2.
The fall that she had, although minor, most probably caused the
rotator cuff tear due to the shape of her acromion and the impact
on
an already weakened rotator cuff which is more often than not the
case in patients of her age with the shape of acromion that
she has.
3.
Had the accident not happened, it is possible that she would have
gradually
developed
right
shoulder
symptoms,
and not necessarily a tear. It is almost impossible however to put a
time frame to this statement and this should be seen
as a generalised
statement.
4.
Although difficult to apportion, for the purposes of this report it
is recommended that 15% of the above costs be seen as due
to the
accident and 25% as due to the patient's advanced age at the time of
the accident as well as pre-existing pathology at the
time of the
accident, although asymptomatic. This apportionment should be also be
applied to her whole person impairment as already
discussed in this
report.
5.
Lastly, I am of the opinion that the patient will not readily
consent to surgery to her shoulder, due to the risks involved.
15.
This quotation has a bearing, not only with regard to the RIO 000
further medical expenses, but also for general damages. Dealing
with
future medical expenses for now, the suggestion by counsel on behalf
of the defendant was that, future medical expenses for
the plaintiff
should be put at R15 000. This seems to have been based on what was
stated in paragraph 4 of the report stated above.
That is, 75% of the
costs should be seen as due to the accident and 25% as due to the
patient's advanced age at the time of the
accident as well as
pre-existing pathology at the time of the accident.
16.
Remember, Dr Engelbrecht states that the patient, that is, the
plaintiff, indicated that her right shoulder was normal prior
to the
accident. The plaintiff confirmed this during her evidence. She had
no problem with her shoulder prior to the incident.
She had not been
undergoing any treatment for the shoulder prior to the fall. This
evidence should be seen in the light of what
is stated in paragraph 3
of Dr Engelbrecht's report as quoted above. At the risk of repeating
myself it reads as follows:
"3.
Had
the accident not happened, it is possible that she would have
gradually
developed right shoulder symptoms, and not necessarily a tear. It is
almost impossible however to put a timeframe to this
statement and
this should be seen as a generalised statement"
17.
Clear from the statement, it is uncertain whether the plaintiff would
have to undergo conservative treatment had it not been
for the
incident. The fact that the plaintiff is having the type of acromion
before the 24 January 2005 as described by the Doctors,
in my view,
is no proof that she would in any event have incurred the medical
expenses to deal with conservative treatment. As
I said, she
experienced no problem previously, despite her advanced age. Having
been born on the 15 May 1925, she was almost 80
years old at the time
she sustained the injuries on the 24 January 2005. Despite her age,
she had no problem with her shoulder
and she was still active in life
until 24 January 2005. To want to scale down the R20 000 on the basis
of the 25% as suggested
by Dr Engelbrecth, would be speculative.
Speculative in the sense that according to the report no certainty
could be put forward
that the plaintiff was in any event going to
incur some medical expenses to deal with the treatment of the
shoulder even if she
was not injured on the 24 January 2005. This
finding should be seen to have a bearing on the submission which was
made regarding
the assessment of general damages.
18.
During argument the plaintiffs counsel suggested between R80 000 and
R120 000 as a reasonable figures for general damages having
regard to
the evidence tendered by the plaintiff. If I understood the
submission, this was not only for the loss of amenities of
life, but
also for the pain and suffering. On the other hand counsel for
defendant suggested that anything between R60 000 and
R70 000 would
be reasonable assessment of the plaintiff's quantum on general
damages. The contention by the defendant's counsel
in proposing such
an assessment argued that pre-existing acromion condition was not
something to ignore. Again I was urged to have
regard to the 75 % and
25% as recommended by Dr Engelbrecht. I have already dealt with this
aspect. I am not satisfied that for
the purpose of assessment of
general damages, this is an appropriate case to take into account,
something which the plaintiff did
not experience before, even at such
an advanced age.
19.
Scars and disfigurement as described in the medico-legal report as a
pigmented scar left of the eyebrow area. This is reported
as
noticeable. The scar was also displayed by the plaintiff during her
evidence. However, whilst noticeable, I do not think that
it is such
that it would be of a great concern to the plaintiff. She did not say
that she was worried about it. Secondly, the plaintiff
at her
advanced age, would not be greatly perturbed like a young lady having
a scar.
20.
Pain and suffering in the report is itemised in three. That is, acute
pain that is said probably to have been present immediately
after
that accident lasting for one to two days, followed by moderate pain
which would have lasted, for seven to ten days. Just
based on these
facts, it does not look like she suffered serious pain.
21.
She is however, said to be having chronic pain as well as functional
impairment of her right shoulder. This is said to be due
to a right
shoulder rotator cuff tear. The plaintiff, also confirmed this. It is
therefore an aspect to be taken into consideration.
22.
The plaintiff in her evidence and also as argued by her counsel, laid
a great emphasis on the loss of amenities of life. The
report by the
Dr is very brief on this aspect. That is, prior to the accident, the
patient enjoyed taking some walks and. that
this is unchanged.
However, the major part of the plaintiff's evidence revolved around
loss of amenities of life.
23.
As argued by the counsel on her behalf, she could no longer drive
around on her own. She is no longer self supportive. She used
to do
sewing all her life out. She can no longer do sewing as she used to.
She liked cooking and baking not only for herself or
family but also
for other people and friends. She can no longer do all of these. She
can no longer entertain people as she used
to do. She can no longer
use her right hand to comb with ease. She indicated in court how she
struggles to comb herself. She can
no longer easily dress up herself.
She can no longer set up the bed with ease whilst she is presently at
an old age village. If
she wants to go somewhere she must either hire
a taxi or ask someone to drive her around. She used to be an active
old lady till
up to the 24 January 2005. She misses the activities
she used to do.
24.
The plaintiff appeared to be a strong willed old lady. Clearly when
she demonstrated how she struggles to comb herself, it became
clear
that she should be struggling to do things which she used to do on
her own. However, somewhere along the way, age would have
caught up
with her irrespective of the injuries she sustained on the 24 January
2005. For example, because of her old age, her
son testified that he
could no longer allow her and feel safe if she had to drive herself
to busy places. One cannot blame her
son for this. For her own safety
and for the safety of others it was necessary to do so. I do not
think that she would for ever
have been in a position to do
everything which she used to do on her own.
25.
An assessment of general damages is not an easy task. Having
considered all relevant factors, one would have to come up with
an
amount that is fair, and reasonable. You always try to reach a middle
road. Having considered all relevant factors and case
laws I was
referred to regarding assessment of general damages, I am of the view
that R75 000 would be appropriate.
26.
This should then bring me to consider an issue of costs. I have been
told that Dr Engelbrecth was put on stand by until Tuesday
the 1
December 2009. The hearing of evidence in this matter started on the
2 December 2009, and only on this date did the plaintiff
indicate
that she would not go for an operation, that is, surgical procedure
referred to in the report. The report by Dr Engelbrecth
was admitted
before the 1 December 2009. The suggestion during argument was that
it was necessary to put Dr Engelbrecht on stand
by on the 1 December
2009 because she was expected to give an opinion that the plaintiff
will not readily consent to surgery to
her shoulder due to the risk
involved. This in my view, would have been unnecessary as it
eventually appeared to have been so.
The decision on the risk
involved would have been or was only for the plaintiff to make. It
was dependent entirely on the plaintiff.
For example, if she had to
say she wanted to undergo surgical procedure, nothing the doctor
could have done about. Similarly, if
she had decided not to go for
such a procedure, nothing the doctor could have done about. She was
briefed on the risk long before
the 1 December 2009. I am therefore
not satisfied that doctor Engelbrecht should be entitled to the costs
as suggested.
27.
Lastly, an issue was raised that any award falling within the
magistrate's jurisdiction should disentitle the plaintiff to costs
on
the Supreme Court scale. I do not think that this was an easy matter.
Choice of forum by the plaintiff in the circumstances
of the case
cannot be said to have been unreasonable.
28.
Consequently, judgment is hereby granted in favour of the
plaintiff as follows:
(a)
the defendant to pay R2425.17 being for past medical expenses,
(b)
the defendant to pay R20 000 being in respect of future medical
expenses,
(c)
the defendant to pay R75 000 being in respect of general damages,
(d)
payments in (a) to (c) above are subject to the apportionment of 20%
against the plaintiff,
(e)
the defendant to pay costs of the action on the Supreme Court party
and party scale.
MF
LEGODI
JUDGE
OF THE HIGH COURT
MICHCA
I VAN VUUREN ATTORENYS
Attorneys
For the Plaintiff: 186 Beech Street, Lynnwood Ridge, PRETORIA Tel:
012 365 3315 Ref: MH0009
ADAM
PRINSLOO INC
Attorneys
for the defendant
195
Blake Street,
Cnr.
Blake & Malan Streets,
Riviera,
PRETORIA
Tel:
012 329 7126