Schrenk v Road Accident Fund (963/2009) [2009] ZANCHC 53 (30 October 2009)

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[2009] ZANCHC 53
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Schrenk v Road Accident Fund (963/2009) [2009] ZANCHC 53 (30 October 2009)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Case No:
963/2009
Heard:
07/09/2009
Delivered:
30/10/2009
In
the matter between:
MELINDA
DANISE SCHRENK Plaintiff
and
THE
ROAD ACCIDENT FUND Defendant
JUDGMENT
KGOMO
JP
On 29 June 2002 Ms
Marie Kotze the driver of the insured vehicle, visited her friend Ms
Melinda Schrenk, the Plaintiff, at her
home in Kimberley. On
leaving the premises by way of executing a U-turn the plaintiff’s
dog darted into her path. In order
to avoid crashing into the
animal she swerved and lost control of the vehicle which
unfortunately pinned plaintiff’s left lower
leg (which dangled
from the stoep) against a solid wall, causing a severe injury.
This accident gave
rise to a damages suit being instituted against the Road Accident
Fund, the defendant, in the amounts tabulated
as follows (the
general damages were amended on 26 July 2009 from R220 000,00 to
R400 000,00):
2.1 General
damages R 400 000,00
2.2 Past medical
expenses R 90 441,86
2.3 Future medical
expenses R 294 320,00
2.4 Past loss of
income R 155 109,00
2.5 Future loss of
income R1 125 356,00
TOTAL R2 055
226,86
The defendant
initially defended the entire action but has subsequently conceded
the merits. On 19 September 2007 an order was
made in terms of
which the defendant would be liable for the full proven damages to
the plaintiff. The defendant did not adduce
any evidence to
controvert the plaintiff’s case, which incorporated expert
evidence relating to the determination or assessment
of quantum. On
the contrary, much of the evidence has been expressly admitted or,
fairly, not placed in dispute. It is consequently
unnecessary to
canvas the evidence in copious detail.
The following facts
are common cause between the parties. The plaintiff’s left lower
leg sustained severe bruising as a result
of the accident. The
resultant pain (shock may have played a part) was such that
plaintiff lost consciousness and regained same
at Curomed Hospital
where she was rushed to and immediately admitted. She was
discharged the following day, but was re-admitted
when the injury
manifested itself to be more serious than initially diagnosed.
Plaintiff was hospitalized for a further three
weeks. There were no
bone fractures.
On the 1
st
August 2002 a skin-graft medical intervention was performed on
plaintiff’s affected leg and she was discharged the following
day.
The medical aid funding was depleted and some of the early releases
from the medical facility had to do with this factor.
On 21 October
2002 plaintiff was admitted to hospital and diagnosed with deep vein
thrombosis (DVT) to her right leg (the uninjured
leg) and was
discharged the day thereafter. It was also common cause that this
blood clotting was a direct sequela to the accident
and that
plaintiff experienced swelling to her right leg as a result of the
DVT. When dealing summarily with the expert evidence
of Dr P Repko,
a Bloemfontein neuro-surgeon, it will become evident how the right
leg DVT was precipitated.
The plaintiff
continues to experience problems with her injured (left) leg as a
result of the scar tissue and the tissue below
it becoming infected
from time to time. This condition is known as cellulites, the
inflammation of cellular tissue. Antibiotics
is prescribed as a
rule for treatment. Plaintiff requires ample bed-rest and must keep
the affected left leg in an elevated
position to counter the pain
and swelling. I have referred to “scar tissue” because Dr Repko
stated that when the skin has
dissipated and a so-called skin graft
is performed the dermis and epidermis (which protect the tissue) are
irreplaceable. Hence
the common occurrence of cellulites.
It was further common
cause that plaintiff suffered from a pre-accident degenerative back
affliction. This causes her to suffer
from back ache from time to
time. The pain becomes more acute when she sits or stands for
extended periods. The parties are
agreed that plaintiff experienced
pre-accident back pains for which she was treated and booked off
from her employment (as a
switchboard operator with Oranje Toyota,
Kimberley) on two occasions. It was not in dispute that she did not
disclose the two
episodes to Dr Maqbool, a neurogeon, or to Dr
Repko. Those minor ailments only surfaced when plaintiff was
cross-examined on
her own discovered documents.
Dr Repko worked on the
premises that plaintiff was healthy and had no prior back pain. His
opinion was that these episodes were
of a short duration and should
not have any effect on the quantum to be awarded. Adv Sharon
Erasmus, for the defendant, contended
that the cumulative effect of
the sporadic pre-accident back aches and back pains caused by the
transfer of weight from the affected
leg to the other exacerbated
the pain and called for a reduction of the amount that would
otherwise have been awarded. This
point is not without merit.
However, the amount disallowable for this discrepancy, if any,
should not be significant.
The plaintiff is 47
years old. She matriculated and has worked regularly since leaving
school, except for short spells when she
relocated with her husband
due to his work commitments. She worked for Oranje Toyota,
Kimberley, a vehicle outlet, for 9 years
and resigned of her own
accord on the 3
rd
November 2006 for what she termed health reasons. She maintains
that she could no longer endure the pain she experienced, regard

being had to her working environment and the nature of her work.
Counsel for defendant
argued that the plaintiff was not disabled, alternatively was not
incapacitated to the degree that she could
not have carried on with
her work at Oranje Toyota. Counsel argued alternatively that the
plaintiff was obliged to mitigate
her damages by applying for
retirement instead of resigning and claiming all her terminal
benefits.
Dr Repko’s
uncontested evidence is that plaintiff suffered from a pre-existing
degenerative back condition, but it was asymptomatic
at the time of
the accident. The symptoms of the degenerative back condition were
accelerated by the accident, he contended.
His opinion was that but
for the accident plaintiff would have stayed asymptomatic for
approximately ten years. Based on this
postulate she would have been
able to continue working until the end of 2020 when she would be 59,
and not the normal retirement
age of 65. The consequence of
plaintiff’s pre-existing condition on the damages claimable is the
limitation of damages in
respect of the future loss of earnings to
age 59. The transition from the asymptomatic to the symptomatic
condition only manifested
itself four years after the accident.
As regards plaintiff’s
employability Dr Repko testified that at a practical level she is
totally incapacitated. However, theoretically
she would be able to
continue with her employment as a switchboard operator in that her
speech is not impaired. In reality though
plaintiff was not able to
stand, walk or sit up for long stretches. Both her injured leg and
the right leg, affected by the
thrombosis, swell easily and should
be elevated on numerous occasions during the day to minimize or
absolve swelling. For this
reason and the perennial back ache she
needs to lie down on a couch or bed. It would be awkward and there
may not be ample opportunity
to do all these at work. He would not
encourage it because complications may set in. Dr Repko would not
recommend surgery to
the back as the prognosis for it is not good.
The plaintiff
testified that her work as switchboard operator required her to be
behind her desk almost all the time, except for
brief emergencies,
when one of the staff would stand in for her. Post the accident her
employer relocated her to an inner office,
out of sight of the
general public, to accommodate her inelegant poses. In light of the
unbearable pain, the impracticality
of the work situation and the
huge demand that she made on her colleagues and her employer she
decided to call it quits. Applying
for retirement was a complicated
affair, so she settled for her terminal benefits.
Ms Susan van
Jaarsveld, an expert industrial psychologist, corroborated the
evidence of the plaintiff and that of Dr Repko pertaining
to her
field of knowledge and expertise and those parts need not be
repeated. She went on to stress that no employer would countenance,

for an indeterminate period, an employee having to keep her legs in
an elevated position and to work in a stop-start fashion
and allow
the worker to walk about and stretch her legs and to lie down on her
back. Plaintiff initially did frontline work
and had to be
relocated more or less out of sight.
From the evidence of
the plaintiff, Ms Van Jaarsveld and Dr Repko it is clear that
plaintiff had become a burden at her work and
was busy harming her
health, both physically and emotionally. I have no doubt, more so
in that no gainsaying evidence was produced,
that the plaintiff was
totally incapacitated and thus not able to continue with her
employment. She had no other skills and
at 47 years was
unemployable elsewhere because of her medical condition.
On plaintiff’s
income and the percentile at which she was paid and the rate at
which her damages ought to be assessed Ms Van
Jaarsveld states that
plaintiff was employed on the B3 level with regards to the Patterson
grading and that Oranje Toyota is
a national company which pays its
employees on the 50
th
percentile. She says bigger companies which she gave examples of
(amongst them De Beers) pay on the 75
th
percentile while small companies pay on the 25
th
percentile. Ms Erasmus argued for a 25
th
percentile and half-heartedly for a 10
th
percentile. There is no evidence or basis for a 10
th
percentile. On the other hand there would be no justification for
me to place the plaintiff’s ranking on the 25
th
percentile when the only evidence points to the 50
th
percentile.
On the actuarial
certificate prepared by Dr Robert J Koch, an expert, and accepted by
both parties, if plaintiff earned a salary
on the 50
th
percentile and would have worked until the age of 59 years, which
she will attain in 2020, she will suffer a loss of future earnings

in the amount of R956 653.00. By way of contrast payment on the
25
th
percentile amounts to R832 544.00; a difference of R124 109.00. I
will allow a contingency of 10% on the amount of R956 653.00
which
has not been factored in by Dr Koch. The amount payable is
therefore R860 987.70.
On plaintiff’s past
loss of income the following facts are relevant. She resigned at
the end of October 2006, at which time
she earned a gross salary of
R4 203.00. Her loss of income calculated on this figure for the
period November 2006 up to September
2009, when the matter was
tried, Robert J Koch arrived at an amount of R205 944.00, excluding
contingencies, which calculations
both parties accept. I will allow
a deduction of 5% for contingencies, based on the same approach as
aforegoing. The amount
therefore payable under this subhead is R195
646.80.
In respect of the
general damages for the pain and suffering, loss of amenities of
life, inconvenience and scarring of tissue
the plaintiff claims an
amount of R400 000.00, which Mr Botha is pressing for, whereas Ms
Erasmus urges for an award of no more
than R200 000.00. In my
estimation Ms Erasmus is closer to the mark. Dr Repko testified
that plaintiff suffered three weeks
of intense pain at level 4 on a
scale of 1-5. The pain subsided as medical treatment was applied.
Lots of tissue was lost and
the scar, as depicted in the pictures
handed in by consent and accepted by both parties, is unsightly.
Plaintiff can no longer
indulge in her pastime of social dancing and
her part-exercise part-leisure brisk walking.
I have had regard to
the following cases cited by the parties on what the plaintiffs were
paid and what the discounted and extrapolated
awards amount to
currently:
20.1 In
Dicks
v Union & National Insurance
1971(2) C&B 211 the plaintiff received R7000,00, the current
value is approximately R306000,00, for fractures of the right
femur,
tibia and fibula and post concussional syndrome, with dangerous
complications, infection and thrombosis. Plaintiff suffered
severe
pain for long periods and her varicose condition was exacerbated.
Plaintiff had to wear elastic stockings.
20.2 In
Pamuli
v Repende & Another
1987(3) C&B 665 a 40 year old female received R4 500,00, the
current value is approximately R30 000, for a swollen leg with

cellulitis, a haematoma and the tivial surface which resulted in
permanent lymphatic obstruction, swelling of her leg and a permanent

lump. She underwent an operation to incise and drain the haematoma,
received a skin graft operation, got an infection and experienced

swelling.
20.3 In
Swart
v Provincial Insurance
1961(1) C&B 499 a male plaintiff received R2 950,00, the current
value is approximately R175 000, after a fracture of his right
fibula
and serious injuries to muscles, nerves and veins of his leg, he
underwent skin grafting and other operations, suffered
embolism in
his lungs, limited movement of ankle and impeded blood circulation as
a result of thrombosis.
20.4 In
AA
Mutual Insurance Association v Maqula
1978 (1) 805 (A) the plaintiff was a 45 year old male who sustained
leg fractures in an accident. His right leg became septic
and he had
to use antibiotics. He underwent various operations. He could not
stand for long, could not walk very far, could not
crouch and walked
with a limp. He was not employable as a chef anymore. He also
experienced problems to obtain gainful employment.
He was awarded
R11 000.00 for general damages in 1978 which is discounted to a
present value of R228 030.00.
20.5 In
Solomon
and Another v De Waal
1972(1) SA 575 (A) the Plaintiff was a 29 year old female who was
bitten on her leg by a horse and was left with serious disfigurement.

She underwent skin transplants that did not solve the problem. The
skin on the transplanted areas was bleaker than the other
areas. She
used to do horse riding, swimming and played netball. After the
accident she suffered from depression. She was awarded
R7 500.00 in
1972 which is presently discounted to R287 475.00.
20.6 In
Protea
Assurance Company v Lamb
1971 (1) SA 350(A)
the Plaintiff was a 29 year male Railway clerk.
He suffered serious leg fractures and developed DVT and received
various skin
transplants as well as other minor operations. He was
unable to continue with his sporting career and became very moody.
He walked
with a limp and was very sensitive about the bad
disfigurement. He could barely dance and wore an elastic sock. He
was awarded
R20 000.00 in 1971, which translates to R822 400.00
at current value.
In my view on a
conspectus of all the cases and the evidence an amount of R212
000.00 would be reasonable and fair to both parties.
The past medical
expenses in the amount of R90 699.28 is agreed. The terms of the
orders in para 5 – 8(below) are either agreed
or not disputed or
not disputable.
I accordingly make
the following order:
The defendant (the Road Accident Fund) is ordered to pay the
Plaintiff:
1. The Plaintiff’s
incurred Medical Expenses in the amount of R90 699.28.
2. General Damages in
the amount of R 212 000.00.
3. Past Loss of Income
in the amount of R 195 646.80.
4. Future Loss of
Income in the amount of R 860 987.70.
5. The defendant must
supply the plaintiff with an Undertaking in terms of the
Section17(4)(a) of the
Road Accident Fund, Act 56 of 1996
, to pay all
the plaintiff’s expenses pertaining to future treatment and/or her
accommodation in a hospital and/or Clinic or like
institution and for
all expenses pertaining to the medical treatment as well as medical
expenses, lodging and services rendered
to the plaintiff resulting
from the injuries sustained by the plaintiff in the accident on 29
June 2002 as well as the Deep Vein
Thrombosis suffered by her in her
right leg, and her back problems. The expenses with regards to the
back problems will only be
payable until 31 December 2020.
6. The defendant will
pay the plaintiff’s taxed or agreed party and party costs on the
High Court Scale, which costs shall include:
6.1 The qualifying fees
of the following experts of the Plaintiff:
6.1.1 Dr Robert J Koch
(Did not testify. His certificate was handed in by consent).
6.1.2 Dr Pieter
Repko.
6.1.3 Ms Susan Van
Jaarsveld.
6.1.4 Prof J F Jooste
(Did not testify).
6.1.5 Dr S Maqbool
(Did not testify).
6.2 The traveling costs
of the plaintiff’s legal representatives from Kimberley to
Bloemfontein and back to consult with the expert
witnesses of the
plaintiff.
6.3 The traveling
costs of the plaintiff’s expert witnesses from Bloemfontein to
Kimberley and back to testify on behalf of the
plaintiff.
7. Interest on the
above amounts at the rate of 15.5% per annum, calculated with effect
from 14 days of the date of this order until
date of payment.
8. The above amounts
are payable into the following account of the plaintiff’s
attorneys:
ELLIOTT MARIS WILMANS
& HAY
STANDARD BANK TRUST
ACCOUNT
ACCOUNT NUMBER:
040052877
BRANCH CODE: 050002.
_____________________
F
DIALE KGOMO
JUDGE
PRESIDENT
Northern
Cape High Court, Kimberley
On behalf of the Applicant
:
Adv. C BOTHA
Instructed by: Elliott Maris
Wilmans & Hay Attorneys
On behalf of the Defendant
:
Adv. S ERASMUS
Instructed by: Duncan &
Rothman Attorneys