About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2024
>>
[2024] ZAFSHC 229
|
|
E.L.L.H and Another v Metsimaholo Local Municipality (2409/2015) [2024] ZAFSHC 229 (31 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
REPORT
ABLE
:
NO
OF
INTEREST
TO
OTHER
JUDGES:
NO
REVISED
.
NO
Case
Number: 2409/2015
In
the matter between:
E[…]
L[…] L[…] H[…]
1st
Plaintiff
A[…]
E[…] L[…] H[…]
2
nd
Plaintiff
and
METSIMAHOLO
LOCAL MUNICIPALITY
Defendant
HEARD
ON:
01 December
2023
CORAM:
JORDAAN
,
AJ
DELIVERED
ON:
31 May 2024
[1]
On the 20th of July
2014 the 2nd
Plaintiff,
then a 16yr old male person, hit a pothole on the road surface of
Gamsberg Street
,
Vaalpark in
Sasolburg, whilst driving his motorcycle
with registration
number
and letters
,
LX […]
.
[2]
The Plaintiffs, on
the 18th of July 2016, issued summons with two substantive claims
against
the
Defendant.
The
1st
Plaintiff-
the
father
of
the
2nd
Plaintiff,
claimed
payment for past medical and hospital expenses in the amount of R24
567.69
,
while
the 2
nd
Plaintiff- who by
then had reached the age of majority
,
claimed
payment for general damages in the amount of R400 000
.
00,
payment of R900 000.00 for future medical expenses and loss of
earnings in the amount of R2 600 363
.
00.
[3]
The
issue of merits was previously settled. This trial served before me
pursuant an order by Nicholson AJ dated the 16th
of
August 2017
[1]
in the following
terms
:
"
IT
IS ORDERED
THAT:
1.
The defendant is
liable
t
o
compensate the first plaintiff for any medical expenses he may prove
he incurred as
a
consequence
of the incident that is the subject of these proceedings
.
2.
The defendant is
liable to compensate the second plaintiff for all damages he may
prove he suffered as
a
consequence
of the incident which is the subject of these proceedings
.
3.
The
defendant
is
liable
to
compensate
the
2nd
plaintiff
for
all
future
medical expenses
he may prove he will incur as
a
consequence
of the incident which is the subject of these proceedings
.
4.
The defendant pay
the costs
.
5.
The case is
referred back to the trial court to proceed with the determination of
quantum.
"
[4]
The
claim for past medical and hospital expenses
,
wh
i
ch
was instituted
by
the 1st
Plaintiff
,
was
settled and made an Order by Daffue AJP, as he then was, dated the
8th of November 2022
.
[2]
[5]
The only heads
of damages
for determination
by this court is
t
he
issue of the 2nd
Plaintiff
'
s
general damages
,
future medical
and hospital expenses and loss of earning capacity.
[6]
The Defendant
disputed the 2nd Plaintiff
'
s
claim
,
contending
that the 2nd Plaintiff sustained minor/non-serious injuries on the
20
t
h
of July 2014 from
which he had
recovered
and that there is no causal link between the pain the 2nd
Plaintiff now
experiences and the accident.
[7]
In establishing that
as a consequence
of
the accident the 2nd Plaintiff sustained injuries and the sequalae of
same
,
Counsel
for the 2nd
Plaintiff
led the evidence of the 2
nd
Plaintiff, Dr
Ziervogel (orthopeadic surgeon), Ms Enid Kruger (occupational
therapist)
,
Ms
Lariska van Rooyen (industrial psychologist)
and the actuarial
report of
Mr
.
Wim Loots (actuary)
was handed in by way of affidavit.
[8]
The 2
nd
Plaintiff
'
s
evidence in summary was that he was 16years old and in grade 11 in
July 2014 when driving his motorcycle, he hit a pothole in
the road
surface, causing his motorcycle to fall as a result of which he
sustained lacerations to his right knee, an injury on
his
left
ankle
,
abrasions on
his arms
,
hands, legs
and toes of his right foot.
[9]
He testified that he
was hospitalised for five days and the laceration on his right knee
was deep cleaned in the operating theatre
.
It was his
evidence further that he received a moonboot for his
left
ankle in
hospital
,
received
physiotherapy afterwards and that he was in the moonboot and crutches
for approximately three weeks
.
[10]
It was the evidence
of the 2nd Plaintiff that he is currently a solar technician and
installs inverters, batteries and solar panels
,
which involves
working on roofs and inside ceiling spaces. He experiences that when
he spends long hours on his feet or walk long
distances
,
then his left
ankle will pain. It was his testimony that when he crouches in the
roof
inserting
wiring his
right knee pains
,
it
is
not as painful
as his left ankle
,
but it is
uncomfortable
.
The right knee
pain is more in winter
,
but his left
ankle pain is all year round
.
He testified
that climbing a ladder is not a problem, but having to execute tasks
while standing on the ladder, casues pain in his
feet.
[11]
The
2nd
Plaintiff
testified
that
he
participated
in
sport.
He
participated
in
Taikwando
and received a bronze medal in Taiwan in 2011
,
he did
Krav-Magra an lsreali fight style and rugby but did not
seriously
play
rugby.
[12]
He testified that he
is running on approximately 75% of his capacity
.
If a job
should take him about 3 hours
,
it will take
him about an hour longer.
[13]
One of the 2
nd
plaintiffs solar
installations
was
on a two-storey
building.
It took an extra day
to complete the job
.
They had to
hire a cherry picker for an extra day which costs around R15 000
-
00
per day
.
Concentration
is important
,
when in too
much pain
,
he
makes mistakes
,
he drilled
into a water pipe by accident.
[14]
He studied Economics
and Risk Management
for two years
,
but lost
interest. He then went to Vietnam where he taught English for six
months
.
Hereafter he
returned to South Africa and worked as a bartender for approximately
eighteen months
.
Thereafter he
worked on a guest farm in the Clarens region and was employed as a
general worker whose duties included the booking
of the guests
,
feeding
of livestock
,
patrolling
at night
and cleaning
of
the
facility.
This
he did for a period
of nine months
.
[15]
The 2nd
Plaintiff and his
father started a solar company in the year 2022
.
He
i
s
currently
earning
a
salary
of
R9 000-00
to
R10 000-00
per
month
.
He completed a
course at Green Solar Academy where he obtained a qualification for
the installation of solar systems. He is the
installer and also
provides technical advice
.
His father
'
s
duties include finances and general management.
[16]
Before the accident
he had an interest in attending the Royal Marines Commando in the
British Navy
.
He also had an
interest in hydroponics
,
aquapononics
and renewable energy
.
[17]
During
cross-examination the 2nd p
l
aintiff
testified that he suffered no other serious injuries after the
accident. He denied that the injuries on the J88 is what
he sustained
in the accident,
as he later went fo
r
further
medical examinat
i
ons.
[18]
The 2nd Plaintiff was
confronted that h
i
s
payslip
i
ndicates
an income of R7 500- 00 per
month
to which he replied
that he earned
that
salary
in the
year
2022. It
was
his testimony
further
t
hat
during
winter
their
business
increases
which
then
increases his salary to between R9 000
.
00
to R10 000
.
00
per month, but that it is just a rough estimate depending
on the quantity
of work procured.
[19]
Being confronted with
the Mediclinic discharge information, the 2nd
plaintiff conceded
that the information on the discharge form was correct, that he was
indeed not issued with a moonboot and crutches
on discharge from the
hospital. It was his evidence that his grandfather
had a wheelchair and
crutches
.
The
2nd
Plaintiff
stated that he could have borrowed it. The 2nd
Plaintiff could not
recall where he got the moonboot.
[20]
The 2
nd
Plaintiff's response to the question whether the
accident caused a sprain to his ankle was that he had flat feet at a
young age
that his parents treated. After the accident, when his left
foot came out of the moonboot, his left foot was flat again. Both his
feet are flat again. The pain in the left foot is exponential after
the accident. He later testified that he wore the moonboot
after the
accident because his left ankle was injured in the accident.
[21]
Further during
cross-examination he testified that he wanted university acceptance
for engineering studies not economic studies.
He testified that he
lost interest in education and sport after the accident.
[22]
Dr Ziervogel,
the Orthopaedic
Surgeon
testified amongs
others the following
:
He obtained
his MBCHB in 1968 and MMed in Orthopaedics in 1978. He started in
private
practice
in 1980
.
He examined
the plaintiff
on 8 March
2023. A copy of his
report
with
colour photos
as
well as
some
articles were
submitted
.
[23]
On examination of the
right knee he found that there was tenderness when pressing on both
medial and
lateral
borders of the
patella. There was a degeneration at the back of the knee. There is
tenderness when pressing on the joint space on
both sides of
the
knee
.
The
fat
pad test is
positive on the lateral side. The Thessaly test for menisci was
positive. The medial side
is
more of
a
problem
.
[24]
X-rays of the right
knee reveal signs of minor narrowing of the medial joint space. He
explained that the cartilage is wearing
away, there is
degeneration
.
[25]
It was Dr Ziervogel's
evidence that there is torn cartilage in the knee. The cartilage
makes the different bones fit. The bones
does not fit properly
anymore and that is the start of degeneration.
[26]
He explained that
there is a tenderness on the inner side of the knee ligament which
connects the top and the bottom part of the
knee
.
There is torn
menisci. There is furthermore
tenderness on the
ligaments on the medial and lateral side
.
It is a grade
1 injury for the ligaments are stable and there is degeneration at
the back of the knee cap.
[27]
He explained that for
a torn cartilage there are three tests
:
the grinding
test, the McMurray test and the Thessaly test. The McMurray test is
positive 70% of the time and the knee snap if there
is a torn
cartilage. The Thessaly test is 92% accurate in showing a torn
cartilage
.
[28]
The x-rays of the
left ankle shows that there are signs of sharpening of the articular
surface edges of the distal tibia. This is
an
i
ndication
of osteo-arthrosis
.
There is also
vague ossification
in
the joint capsule. An
injury in the capsule of the joint will lead to ossification (bone
forming)
.
[29]
The right knee of the
plaintiff already has signs of osteo-arthrosis (clinically the
Thessaly test for meniscal tear
is
positive and
x-rays reveal slight narrowing of the medial
joint
space). He
explained that the knee must be investigated
,
by doing an
arthroscopic investigation. Once confirmed the torn part of the
meniscus can be excised. It is known that about 55%
of patients will
develop osteo-arthrosis within eight years after the meniscectomy
.
If the torn
part is left
,
they will
develop osteo-arthrosis sooner. Oseo-arthrosis is always progressive
.
In the end the
plaintiff will need a knee replacement.
This will happen
in
twenty to
twenty-five years
'
time
.
[30]
Regarding the
plaintiff
'
s
left ankle
,
Dr
Ziervogel states that the plaintiff already has early clinical and
radiological signs of osteo-arthrosis
.
When the
process becomes
advanced,
an
ankle-arthrodesis
may
become
necessary
.
This involves
the tailbone and is a fusion in the ankle
.
Dr Ziervogel
estimate a period of twenty to thirty years, before the plaintiff
will need an arthrodesis. Otherwise
,
the plaintiff
will be limping and will be serverely symptomatic.
[31]
Dr Ziervogel
confirmed the plaintiff's possible future medical costs. This is set
out in paragraph 17 to 21 of his report
.
[32]
The future treatment
of the plaintiff's left ankle involves the following
:
conservative
treatment
of
osteo-arthrosis
(R9 410-80),
ankle-arthrodesis
(R114 439-20) and removal of instrumentation (R37 124-80).
[33]
He explained that the
plaintiff will have severe challenges in performing his current work
after he had a knee replacement and/or
an ankle-arthrodesis. With a
knee replacement the plaintiff will not have full flexion anymore and
he won
'
t
be able to squat and therefore work in small places. With a stiff
ankle he won
'
t
be able to negotiate uneven terrain or work on sloped roofs.
[34]
Dr Ziervogel in
support of his findings and opinion relied on three articles which
was accepted as Exhibit A
He
explained that the first article he refers to confirms that a
menisectomy is associated with radiological post-traumatic
osteoarthritis.
The incident with modern techniques
is
approximately
55% at eight years
.
The second
article deals with the fact that physiotherapy may have the same
effect as arthroscopic
debridement
(cleaning
out of loose
bodies)
.
The third
article deals with the fact that with an ankle injury there is a high
incidence of osteo-arthritis. In the plaintiff
'
s
case there is already signs of osteo arthritis.
[35]
During
cross-examination Dr
Ziervogel
confirmed
that he had
sight
of the
J88 which recorded
only soft tissue
injuries
.
[36]
He disagreed that
soft tissue injuries are not serious injuries as ligaments are
serious injuries
.
It was his
evidence during cross-examination that the doctors did not look for
ligament injuries.
[37]
In response
to his evidence
that the doctors
did not look for
ligament
injuries,
he was confronted with the stress view x-rays that were done
according to Dr Heyns and no torn ligament
was found
,
to which
Dr Ziervogel
responded
that he also found no
instability
,
but he found
this to be a grade 1 ligament injury which will not be seen on an
x-ray therefore it does not exclude a grade 1 injury
to the ligament.
[38]
He was
confronted
that he saw
the
2nd
plaintiff
9 years
after
the
accident
and Dr Heyns saw him
7 months after the accident, Dr Ziervogel stated a grade 1 ligament
injury will not be picked up on an x-ray
.
When
confronted that a grade
1
injury would heal in 3 months
,
he
replied
that he has seen patients who suffer long term.
[39]
The Dr was confronted
that two of the 2nd plaintiff
'
s
doctors, Dr Heyns and Dr Preddy, as well as the Defendant's
Dr Agbazue
,
do not agree
with him
,
to
which Dr
Ziervogel replied that would it be valid if the examination was done
on the same day
.
[40]
Dr Ziervogel was then
confronted with his own report wherein he stated that the ligaments
are intact what would the need for an
operation be, to which
Ziervogel replied
that
the ligaments
are
intact,
it
is
a grade 1 injury
there
is no instability it remains stable for a long time
.
He did not
indicate an operation
.
He was
confronted
that
the
x-ray
of
the
left
ankle
done
by
him
shows
a
normal
joint space, to which
he replied on
the
x-rays
.
[41]
He was confronted
that he is unable to provide facts
,
his opinion is
based on assumption, to which Dr Ziervogel answered that
is
how doctors in
the world operate
.
[42]
Dr Ziervogel was
asked why he is advocating arthroscopy of the knee when there is a
joint narrowing
,
to which Dr
Ziervogel replied because there is a narrowing
of meniscus based on
the positive Thessaly
test
he performed
.
[43]
It was Dr Ziervogel's
evidence during cross-examination that the 2nd Pla
i
ntiff
'
s
injury was rated by him at 1% whole person impairment and that
although the injury is not serious
,
it may have
serious consequences
.
[44]
Enid Kruger
,
the
Occupational Therapist
,
testified
amongst others the following
:
She obtained
her degree in Occupational Therapy in 1986 at the University
of the Free State
.
She confirmed
the contents of her report
.
[45]
Regarding loss of
earning capacity she states that Mr L[...] H[...]
'
s
work as an installer of solar systems requires him to handle heavy
objects -
some
batteries can weigh up to 60 kilograms
.
Although there
is usually help available
,
it does happen
that he lifts and carries such a battery on his own
.
By performing
these duties, he
could adversely affect his function and speed up the likelihood of
deterioration of the knee function. By persisting
in such a strenuous
job
,
the
likelihood of deterioration of his abilities increases and the need
for surgery could increase
.
[46]
During
cross-examination she testified that she only saw the report of Dr
Ziervogel the previous day
.
She stands by
her recommendations as set out in her report
.
Her
recommendations are based on the injuries to the ankle and the knee.
[47]
Enid Kruger also
confirmed her opinion as set out
i
n
the joint minutes about
t
he
assistive devices that the plaintiff will need and the prices
thereof.
[48]
Lariska van Rooyen
,
the Industrial
Psychologist
,
test
i
fied
that she obtained her Master
'
s
Degree in Industr
i
al
Phsycology
in
2010
.
[49]
She
explained
in
her
report
that
Mr
L[...] H[...]
is
not
currently
receiving
a market related
remuneration. In self-employed capacity
,
Mr L[...]
H[...] can continue to work until the retirement age of 75 years.
[50]
She
is
of
the
view
that
the
accident
and
its
sequelae has
rendered
Mr
L[...] H[...] a
vulnerable employee and a severely disadvantaged competitor against
healthy counterparts in the open labour market
,
even in a
self-employed capacity
.
[51]
She stated that it
seems probable from the expert opinion and record, that Mr L[...]
H[...] would have to retire early at the age
of 58 to 60 years, (as
per Dr Preddy's report) and will then sustain a full loss of income
until retirement age of 75 years
.
She states
that the accident-related sequelae will probably have a negative
impact on his work ability and productivity, which would
lead to a
decrease in actual earnings
.
Mr L[...]
H[...] should therefore be fairly compensated for these
vulnerabilities by way of a considerably higher post accident
contingency award.
[52]
The actuarial report
of Mr
.
Wim
Loots was handed in by affidavit.
[53]
In contesting the 2nd
Plaintiff
'
s
claim
,
the
Defendant led the evidence of Dr Agbazue (orthopaedic surgeon) and Ms
Clara Shivhabu (occupational therapist)
.
[54]
Dr Agbazue testified that he obtained a Bachelor of Medicine
,
Bachelor of
Surgery Degree from the University of Nigeria in 1991
,
he received
his Fellowship of Royal College of Surgeons at Glasgow in the United
Kingdom in 1998, he received Fellowship at the
College of Orthopaedic
Surgeons in 2004 from the University of Witwatersrand and he received
a Fellowsh
i
p
of lnterventional Pain Practice
at Miami
,
USA
[55]
Dr Agbazue consulted
the 2nd
Plaint
i
ff
on the 03rd
of
November 2022 and established
that
the
he
sustained
minor
soft
tissue
injuries
,
skin
lacerations
and sprains during
the accident. The Dr testified that these injuries are non-serious
injuries,
hence the 2
nd
Plaintiff was
discharged from the hospital within five days. Dr Agbazue testified,
there was consensus between himself
,
Dr Heyns and
Dr Preddy
,
who
are the 2
nd
Plaintiff's
Orthopeadic
Surgeons,
that the injuries
sustained were non-serious.
[56]
On examination,
the 2
nd
Plaintiff weighed
110
.
2kg
and his height was 1.81m and had a BMI of 32. Dr Agbazue testified
that
a
BMI above 25
is
obese
,
which makes
the 2
nd
Plaintiff prone to
arthritis
.
Dr
Agbazue testified that the 2nd Plaintiff was actively
participating
in the sports of
Taikwando
and
Krav-Magra
and
he did lifting of weights.
The
2
nd
Plaintiff had
bilateral flat feet as a toddler. As the 2
nd
Plaintiff
grows, the added body
weight causes pain on the deformed feet. This combination of factors
will lead to early onset of knee arthritis.
The ankle had a sprain
which was a grade 1 injury
which
heals within 6 to 8 weeks
.
The accident
did not cause the symptoms that the 2nd Plaintiff experiences
currently.
[57]
Dr Agbazue testified
that the J88 which recorded injuries at the time of the accident
accords with his, Dr Heyns and Dr Preddy
'
s
reports that it was all soft tissue injuries. It is agreed between Dr
Agbazue, Dr Heyns and Dr Preddy that current condition of
the 2nd
Plaintiff is a
progression decease of flat feet that is natural and has nothing to
do with the accident. The stress x-rays of the
ankle which were done
showed no instability
.
[58]
Dr Agbazue strongly
disputed the opinion of Dr Ziervogel
,
which he
testified was not supported by the articles
that
Dr Ziervogel
himself relied upon
,
rather the
second article contradict Dr Ziervogel's opinion of arthroscopic
debridement of the meniscus
.
He also
testified
that
the articles
that
Dr Ziervogel
relied
on are not
scientific. Dr Agbazue testified there is no science or scientific
basis for Dr Ziervogel to say that a Grade 1 injury
can later develop
serious sequelae, credible scientific studies which were
internationally researched with thousands of patients
across all
nations were done, which shows that a grade1 injury has complete
recovery
.
Dr
Agbazue testified that
in
hospital
normal x-rays were
done
which showed no boney injury and stress x-rays were done twisting the
ankle inside and outside, if there is instability found
then it means
there is a ligament injury- there was no instability found.
[59]
Dr Agbazue further
testified that the 2nd
Plaintiff
was seen by Dr Heyns seven months later,
who reported that the
injuries have healed and that the pain the 2
nd
Plaintiff felt in his
left foot was due to flat feet. This he testified, was in line with
Dr Preddy and himself
,
who saw the
2nd
Plaintiff
thereafter
.
He
further testified that Dr Heyns had x-rays of the right ankle and the
left ankle done and found no difference between the two
ankles.
[60]
Dr Agbazue testified
that the meniscus is most difficult to assess clinically through
physical stress, only an MRI can
.
He testified
that Dr Ziervogel's x-rays shows
that both right and
left knees
of
the 2nd
Plaintiff
shows
a narrowing
on the inside knee
,
which is in
accord with Dr Agbazue
'
s
evidence that the biomithology
of
the 2
nd
Plaintiff,
that the load is on
the inside
compartment
of his knees. Dr
Agbazue refered to an article which supports his opinion that
patients with flat feet and being overweight have
a natural
progression to knee arthritis.
[61]
Dr Agbazue further
testified that the sport the 2
nd
Plaintiff
participated
in
is high impact
sport, which on its own can lead to osteo arthritis
.
Persons who
are obese have a 2½
chance
of developing osteoarthritis. Bearing the 2nd Plaintiff
'
s
BMI in mind, he thus have
a
accumulative 35% chance of contracting osteo arthritis
.
It was his
evidence that an article the Association of Bilateral Flat Feet with
Knee Pain & Disability in Patients with Knee
Osteoarthritis
indicates that patients with bilateral flat feet have chances of
worsening knee pain and back pain
.
The 2nd
Plaintiff has both
bilateral flat feet and bilateral knee narrowing, thus he has the
medical risk of osteo arthritis
.
[62]
During x-examination
Dr Agbazue was confronted that Dr Heyns indicated 18 to 24 months for
healing, which Dr Agbazue replied that
the pain reported by a patient
is subjective and examination is subjective
,
while the
tests and x-rays done, are objective and it showed no instability
.
[63]
Dr Agbazue was
confronted by Dr Preddy
'
s
2nd report that indicates pain
in
the 2nd
Plaintiff's left foot
and that he is suffering
from
injury
sequelae,
to which Dr
Agbazue replied that he did
a joint minute with Dr Preddy
,
wherein he
stated that he cannot prove a link between pain and the accident
,
with which Dr
Agbazue agree. When confronted that Dr Preddy later said due to
injury sequelae
,
Dr Agbazue
replied its due to the 2nd
Plaintiff
'
s
biometrics
.
It
was his evidence that the 2
nd
Plaintiff had pain
for two weeks then moderate pain for 5 weeks and that the achilles
tendon is not related to the accident.
[64]
The doctor testified
that the left flat foot and problems with left foot was not caused by
the accident as x-rays and stress x-rays
were done at the time of the
accident and it showed no instability
,
?months later
stress x-rays were done and no instability was found, thus accident
did not cause it it is a natural left flat footed
problems
,
one foot is
always worse that the other in flat footedness.
X-rays done 9years
later show osteo arthritis in knee this is due to overweight, flat
footedness and activity
.
[65]
Ms Shivhabo
,
the
occupational therapist
,
testified that
the 2nd plaintiff walked normally and functioned independently
.
She testified
that
i
f
it was found that the 2nd plaintiff has early onset osteo arthritis
then she would recommend that he does sedentary work
.
She cannot
state an opinion of whether the accident caused the current problems
of the 2nd Paintiff as it does not fall in her field
of expertise.
She agreed with some of the 2nd Paintiff
'
s
occupational therapist
'
recommendations
on assist
i
ve
devices
that
the second plaintiff might need
.
[66]
From the evidence
led
,
it
is clea
r
that
there is no dispute that the 2
nd
Plaintiff sustained
injuries in the accident on the 20th
July 2014
.
The issue for
determination is the extent o
f
the injuries
susta
i
ned
and whether there is a causal connection between the
2
n
d
Plaint
i
ff
'
s
current condition and the injuries sustained in the accident of 20th
of July 2014
,
and if so
,
the quantum to
be awarded. The 2nd Plaintiff bears the onus to proof his case on a
balance of probabilities
.
[67]
Causation
is an element of liability which gives rise to two distinct
inquiries. The first
is
a
factual
inquiry
into
whether
the
negligent
act
or
omission
caused
the
harm
giving rise to the claim
.
If
it did not
,
then
that is the end of the matter. If it did
,
the
second
inquiry
arises.
The
question
is
then
whether
the
negligent
act
or omission is linked to the harm sufficiently
closely
or
directly
for
legal liability to ensue or whether the harm is too remote.
[3]
[68]
The
case of Minister
of
Safety
and
Security
v
van Duivenboden
[4]
is
instructive on the assessment
of
causation
,
it
held
:
"A
plaintiff is not required to establish the causal link with
certainty, but only to establish that the wrongful conduct was
probably a course of the loss
,
which
calls for sensible retrospective analysis of what would probably have
occurred
,
based
on the evidence and what can be expected to occur in
the
ordinary
course of human affairs rather then metaphysics
."
[69]
Once the two tiers of
the causation inquiry have been established by the plaintiff,
then the evaluation
of the amount to be awarded for the plaintiff
'
s
loss can ensue. If
causation is not established the enquiry ends and the plaintiff's
claim must fail.
[70]
The
approach in evaluating expert evidence was laid down
in
Micheal
and Another v Linksfied Park Clinic (Pty) Ltd and Another
[5]
where the court was held:
"
What is
required in the evaluation of such evidence is to determine whether
and to what extent their opinions advanced are founded
on logical
reasoning
.
That is
the thrust of the decision in the medical negligence of Bolitho v
City and Hackney Health Authority {1997} UKHL46 {1998}
AC 232 (HLE)
which states: The court is not bound to absolve a defendant from
liability for allegedly negligent medical treatment
or diagnosis just
because evidence of expert opinion
,
albeit
genuinely held
,
is that
the
treatment
or
diagnosis in
issue
accorded
with sound medical practice
.
The
court must be satisfied
that
such
opinion has a logical basis
,
in
other words that the expert has considered comparative risks and
benefits and has reached
'
a
defensible
conclusion
'
.
"
[71]
Expert evidence must be
weighed
as
a whole and it is the exclusive duty of
the court to make the
final decision on the evaluation of expert opinion. Isolated
statements made by experts should not
too readily be
accepted,' especially when dealing with a field where medical
certainty is virtually impossible'.
[72]
The
determination of the quantum to be awarded is a matter of estimation
and does not involve proof on a balance of probabilities.
In Road
Acccident Fund v Guedes
[6]
it
was stated:
"The
calculation of the quantum of
a future
amount,
such
as
loss of
earning capacity, is not, as I have already
indicated,
a
matter
of exact mathematical calculation
.
By
its nature
,
such an
enquiry
is
speculative
and
a
court can
therefore
only
make
an
estimate
of
the
present
value
of
the
loss that
is
often
a
very rough
estimate
(see,
for
example
,
Southern
Insurance Association Ltd v Bailey NO) Courts have adopted the
approach that
,
in
order to assist in such
a
calculation
,
an
actuarial computation is a useful basis for establishing the quantum
of damages
."
[73]
From the evidence it
is common cause that the 2nd
Plaintiff sustained
injuries
as
a result of the accident on the 20
th
of July 2014
.
Based on the
J88, the evidence of the 2
nd
Plaintiff on
the
injuries he
sustained when asked
in
evidence
in chief
,
this court
finds
of
the
injuries
sustained
were
:
abrasions
to the right forearm
,
abrasions to
the right
hand,
lacerations to
the
right
knee, abrasions
to
both lower legs
,
injury
to the left ankle
,
abrasions
to both feet and
based
on the
J88
and
the evidence
of Dr Agabazue,
the
court find that
theses injuries are soft-tissue injuries
.
[74]
The 2nd Plaintiff's
evidence showed internal contradictions
.
He testified
that on discharge he was in a wheelchair,
with crutches and his
left foot was fitted with a moonboot. When confronted with the
discharge documents
that
no devices were issued, he testified that he could have borrowed it
from his grandfather who had a wheelchair
and crutches at that
time, but he could not recall where he got the moonboot as it was too
long ago.
[75]
2
nd
Plaintiff during
cross examination stated that his salary of R9 000-00 to R1o 000-00
per month which was proffered
as
his salary, was only when they have a lot of business
during winter, but
could not say from which month he earns this salary and that this
salary was just a rough estimate,
this after he
asserted that the R7 500-00 payslip is what he earned in 2022. When
asked if the court can do an estimate
when determining
his loss
of earning
capacity
he replied no
.
[76]
2
nd
Plaintiff testified
his flat footness returned in his left foot after the accident
,
when he
removed his foot from the moonboot,
yet he later
testified both feet are flat but he did not testify of any injury to
the right foot except abrasions to the right foot.
[77]
Dr Ziervogel examined
the 2
nd
Plaintiff and
testified that the 2nd
Plaintiff
suffered
a
ligament
tear
in the left ankle
,
yet on page 8
of his report contrary to his evidence he opines that the ankle
ligaments seem to be intact, when confronted on this
he replied it
means the ligaments are intact. He then stated that It is a grade 1
injury
which
can remain stable for a long time
.
[78]
He opined that there
were signs of onset osteo arthritis which he opined is caused by the
injury sustained in the accident, he confirmed
that it was soft
tissue injuries sustained in accident but denied it was non-serious
as ligament injury is serious, when confronted
that stress x-rays of
ankle was done in hospital when admitted and no instability was
found
,
no
torn ligament was found, how nine years later did he find it,
he replied a grade 1
injury
will
not show on x-rays
.
[79]
When confronted that
Dr Preddy and Dr Heyns both found no instability after stress x-rays
were done ?months later when they saw
him, Dr Agbazue also consulted
him thereafter and found no instability and all agree that is minor
grade
1
injury,
9years
later he finds
a
ligament tear
caused
by
the
accident he replied
that it would be
valid if the tests were done on the same day
.
[80]
Dr Ziervogel during
cross-examination was confronted that the x-rays that he
himself
commissioned
showed
a normal
joint
space of the
ankle, his response was on the x-rays.
[81]
Dr Ziervogel when
confronted that he cannot give fact based answers, replied that is
how doctors operate in the world.
[82]
Dr Agbazue disputed
Dr Ziervogel's evidence and explained that the biometrics
of the 2
nd
Plaintiff caused
the knee narrowing
that can be seen on
the x-rays. Instability is indicative of ligament tears the left
ankle was swollen due to a sprain there is
no instability on any of
the x-rays and stress x-rays
were
done
.
The
best
indication
of ligament
tear and menisci
tear is an MRI.
[83]
The 2
nd
Plaintiff's
evidence
impressed
the
court
as contrived
in regard
to his injuries
sustained, its sequelae and his income. When during cross
examination
this
was exposed,
he deflected
and stated
that his father
drafted
the
payslips,
his
grandfather
had the
supporting
medical
devices and he can
not remember
it
was long ago, when moments
ago
he testified the opposite as facts. Dr Agbazue testified that the 2nd
Plaintiff's left flat
footedness is a deformity not caused by the accident, the 2nd
Plaintiff's own
evidence was that both his feet were flat
,
without
evidence from him on how the right foot was injured.
Dr Ziervogel did not
testify
on
this aspect either
.
[84]
Dr Ziervogel's
evidence was initially detailed in regard to where the menisci is
located
,
where
the sensitivity
was
located
and
what arthroscopic
debridement is and
the treatment needed
.
However,
during cross examination, his answers were stoic that the injuries
caused the sequelae that the 2nd Plaintiff is currently
experiencing.
The articles that he used in support of his opinion of treating the
knee injury, is contra-indicated in his own article
.
All three his
articles were proven to be non scientific,
through the evidence
of Dr Agbazue
.
[85]
His concoclusions and
opinion did not factor in the pre-disposition of the 2nd Plaintiff in
regard to his BMI, his flat footedness
or sport activity in
circumstances
where he himself
agreed that there is no instability.
Dr Ziervogel was
confronted that the flat footedness caused/contributed to the osteo
arthritis
,
which he
dismissed. He responsed that is how doctors in the world operate, to
the statement that he did not give fact based answers
.
When
confronted
that
there
are normal
joint spacing
of the left ankle,
he responded on the
x-rays.
[86]
Dr Agbazue
'
s
evidence was logical
,
chronological
,
based on facts
and he made allowances for the 2
nd
Plaintiff in his
testimony, he was not stoic in his responses, every response had a
logical basis, there were scientific articles
which supported his
opinion based on examination and experience,
objective tests and
even 2
nd
Plaintiff
'
s
expert Dr Preddy and Dr Heyns in their reports corroborate certain
opinions
.
Dr
Agbazue pointed out and explained when articles are indeed scientific
articles, why those of Dr Ziervogel are not and how Dr
Ziervogel
'
s
articles do not support his evidence
.
[87]
In the circumstances,
the court accepts the evidence of the 2nd
Plaintiff in as far
as it does not conflict with the evidence of the Defence
.
The court
finds Dr Agbazue to be an expert
,
who is a
reliable witness
,
and whose
opinions are based on sound logical reasoning
,
objective
scientific tests, experience and in addition scientific articles
,
while the same
cannot be said of Dr Ziervogel
'
s
evidence, who went as far as saying that doctors in the world operate
that way when confronted that he is not fact based, the
court
therefore rejects the evidence of Dr Ziervogel for the reasons
already enumerated herein and
accepts the evidence
of Dr Agbazue.
[88]
Fortified by the
authorities and the law cited herein, the 2
nd
Plaintiff failed to
proof on a balance of probabilities
,
that the soft
tissue
injuries
he sustained
on the 20th of July 2014 caused the sequelae contended for
.
[89]
The 2nd
Plaintiff however
sustained soft tissue injuries in the accident of the 20th
of July
2014,
which
caused
the
2nd
Plaintiff
pain
.
In this
regard
the
court was
refered
to
the
cases
of
Alla
v
RAF
Quantum
of
Damages
Volume
6
on page E8-1 and
Kameni v RAF Quantum of Damages Volume 5 on pages E5-9 as
guides
to
the
quantum
of
damages
awarded
in
similar
cases
.
The
facts
of
theses
cases
are
not
similar
to
the
facts
in
the
instant
cases
,
few
cases
are directly
comparable
.
[90]
Having
regard
to
the
facts
of
.
this
case
and
the
age
of
the
2nd
Plaintiff
,
the amount
of
R350 000.00
is
in
my
view
a
fair
,
just
and
reasonable
award
for general damages
.
[91]
There is
,
in
my view
,
no
reason to depart from the geral rule that costs should follow cause
and that the successful party is awarded costs as between
party and
party
.
[92]
In the circumstances
the follow
i
ng
order is made
:
ORDER
[93]
1
.
The 2nd
Plaintiff's claim in
respect of future medical expenses and payment for loss of earnings
is dismissed
;
2.
The Defendant is
ordered to pay the 2nd
Plaintiff
'
s
general damages in the amount of R350 000.00
;
3.
The Defendant is
orderd to pay interest a
tempore
morae
on
the amount awarded
;
4.
The 2nd
Plaintiff is awarded
costs as between
party and party
M.T.
JORDAAN, J
Counsel
for Plaintiff
:
Adv
.
MDJ Steenkamp
Instructed
by
Symington
DE KOK
Email:
jaucamp@symok.co.za
Counsel
for Defendant:
Adv
M J Ponoane
Instructed
by
Ponoane
Attorneys
Email
:
ponoanemj@telkomsa.net
ponoaneattorneys@qmail.com
[1]
Paginated
Bundle
:
Court
Order pages 120 to
1
2
1
[2]
Paginated
Bundle
:
Court
Order page 183 order number one
[3]
Minister
of Police v Skosana
1977 (1) SA 31
(A)
[4]
2002
(6) SA 431
SCA
[5]
[2001]
ZASCA 12; 2002 (1) All SA 384 (A)
[6]
[2006]
ZASCA
19
;
2006 (5) SA 583
(SCA)