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[2013] ZAWCHC 110
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James v The City of Cape Town (11785/2009) [2013] ZAWCHC 110 (14 August 2013)
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT)
Reportable
Case No: 11785/2009
In the matter between:
ADAM RICHARD JAMES
..................................................................................................
Plaintiff
and
THE CITY OF CAPE TOWN
.........................................................................................
Defendant
___________________________________________________________________
JUDGMENT DELIVERED ON
14 AUGUST 2013
BOQWANA AJ
Introduction
This is a claim for
damages in an action brought by the plaintiff against the defendant
in respect of injuries he allegedly sustained
when he fell through a
broken storm water drain cover on 29 October 2008 at Moray Place,
Oranjezicht in Cape Town.
The plaintiff alleges
that he fell and was injured as a result of the defendant’s
sole negligence and in breach of its duty
of care in that through
its employees the defendant failed to maintain the storm water drain
cover in a proper state of repair,
it failed to put a suitable
barrier in front of the drain cover and it failed to take any and/or
adequate measures to cordon
off the drain cover thereby rendering
the road dangerous to plaintiff and other members of the public.
The plaintiff claims
that he has suffered and will in future suffer shock, pain and
discomfort. He further alleges that he will
incur future hospital
and medical expenses, has suffered in the past and will suffer in
future loss of earnings and has suffered
in the past and will also
suffer in the future loss of amenities of life. The plaintiff
initially claimed from the defendant
an amount of R 1 808 500.00
for damages which was made up of past hospital expenses in the
amount of R10 000.00,
future medical expenses in the amount of
R623 300.00, past and future loss of earnings in the amount of
R825 200.00
and general damages in the amount of R350 000.00.
He has since withdrawn his claim in respect of past hospital
expenses.
In its plea the
defendant admits that it was and is under a duty to exercise
reasonable control of the Moray Place road. It also
admits that it
was and is responsible to take reasonable steps to maintain the road
and to maintain the safety of the public
on the road.
The defendant further admits that it had a duty to take
reasonable steps not to expose members of the public to the risk of
injury.
It however avers that it and/or its employees were not aware
that the cover of the drain had been broken. Furthermore it and/or
its employees are to a large measure reliant on the public to report
broken drains and it and/or its employees were not aware
that prior
to the plaintiff’s fall the drain needed repairs. The
defendant further avers that the placement of a ‘suitable
barrier’ in front of the drain would constitute a hazard to
the public and would expose the public to the risk of injury.
In its
reply to the request for further particulars the defendant alleges
that it does not have a system in place to specifically
investigate
and detect broken drain covers owing to budgetary constraints. The
defendant accordingly denies liability towards
the plaintiff.
In the alternative, the
defendant avers that in the event the Court finds that it was
negligent, the Court should find that the
plaintiff was contributory
negligent in that he failed to exercise reasonable skill and care
prior to approaching a broken drain
cover, he failed to keep a
proper look out, and he failed to observe the broken drain cover
timeously, adequately or at all.
In this regard, the defendant prays
that the plaintiff’s claim for damages be reduced by the Court
having regard to the
degree of negligence of each party in
accordance with the provisions of the Apportionment of Damages Act,
34 of 1956, as amended.
The parties agreed that
both the merits and quantum of the claim be determined together.
Issues to be decided
by the Court
The issues that this
Court must determine are:
5.1 whether the defendant
was negligent in that it breached its duty to take reasonable steps
to maintain the road and/or to take
steps to ensure the safety of the
public members on the road;
5.2 whether the
negligence of the defendant was causally related to the injuries
sustained by the plaintiff; and
5.3 whether the plaintiff
was contributory negligent in the circumstances and if so, the extent
thereof;
5.4 the quantum of
damages suffered by the plaintiff.
The evidence
A total of eight
witnesses were called to testify at the trial. For the plaintiff
five witnesses, namely: Kenneth De Wet (‘De
Wet’);
Lynette Melly (‘Melly’), who testified on the merits of
the claim; Anna James (‘James’),
the plaintiff’s
wife; Dr Shevel, a psychiatrist; and Dr Versfeld, an orthopaedic
surgeon who testified in respect of the
quantum. The defendant
called three witnesses, namely: Kirby King (‘King’);
Barry Wood (‘Wood’), who
testified on the merits; and
Professor Vlok, who testified as an orthopaedic expert for the
defendant.
Inspection in loco
An inspection in loco
was also conducted at Moray Place, Oranjezicht and the minutes of
the inspection in loco were submitted
in Court as an exhibit. The
important features observed are as follows. The Moray Place road
runs more or less east to west and
forms a T-Junction with Upper
Orange Street at its western end. The western end of Moray Place is
known as Upper Moray Place.
On the Northern side of the
cul-de-sac
is a block of flats known as Mandarin Court and on the southern side
of the
cul-de-sac
is a block of flats known as Nederburg. De
Waal Park is situated on the western side of the T-Junction between
Upper Moray and
Upper Orange Street. Moray Place is situated in a
high density residential area where there are blocks of flats and
private homes.
A brick staircase affords access from Upper to Lower
Moray Place and
vice versa.
At the top of the stairs
approaching from Lower Moray Place to Upper Moray Place the storm
water drain and its metal/concrete
covers are partially visible. The
distance from the top of the stairs to the drain cover through which
the plaintiff fell is
4.5 paces. The pavement on the northern corner
of Mandarin Place (a distance of 17 paces) is 2.6 metres wide. The
pavement is
narrower and about 1m wide from that point to the end of
the
cul-de-sac
in the direction of Upper Orange Street and De
Waal Park. There is an electricity pole on the northern side of the
cul-de-sac
about 10 paces from the top of the stairs. The
drain cover in question is adjacent to the kerbstone of the pavement
and 18cm below
the level of the pavement. The original metal cover
has been replaced with a concrete type cover. It was recorded at the
inspection
that the distance from the point marked by the witness,
De Wet, in red pen, in exhibit C185 to the drain cover, is 7.5
paces.
It was observed that from the balcony of the flat occupied by
De Wet there is an unobstructed view of the storm water drain. The
distance from a point opposite De Wet’s flat to the storm
water drain is 29 paces.
Evidence on the merits
Plaintiff’s case
De Wet testified that he
was 73 years old and has been living in 11 Mandarin Court in Upper
Moray Place since 2006. He knew the
plaintiff as he saw him walking
dogs every day. He would see the plaintiff collecting dogs across
the road and also walking down
the steps. He had noticed the broken
drain cover since 2006 when he moved into the flats as he would walk
past it from Pick ‘n
Pay. Council workers came once or twice a
week to clean the stairs due to the vagrants having left the area in
a mess. Council
workers would park their vehicle next to the drain
and it was not difficult to see that the drain was broken.
On the morning of 29
October 2008 De Wet saw the plaintiff standing on the pavement
speaking to a woman across the road. The plaintiff
stepped off the
pavement and fell into the drain. De Wet did not know with which leg
went into the drain. The plaintiff had about
six dogs with him. The
drain had about two to three plates missing. De Wet witnessed the
incident from his balcony. Melly and
other people helped take the
dogs away.
In cross-examination De
Wet stated that he saw the plaintiff walking from the De Waal Park
side to the flats and he crossed over
the road (which was on the
opposite side of the drain with the broken cover). According to De
Wet the plaintiff stepped on to
the pavement and spoke to a woman.
He then stepped off the pavement again. He stepped without looking.
De Wet was not certain
as to what distracted the plaintiff. He
testified that the plaintiff must have had something on his mind or
was distracted by
the dogs or by the woman he was talking to or must
have forgotten about the broken drain. He also testified that the
drain could
easily have been visible to a reasonable person crossing
the road towards the grid. He stated that the plaintiff had often
walked
across that road. De Wet further testified that he never
reported the broken drain to the Council because it did not worry
him
as he never walked on the road but used the pavement. He knew
that there was a procedure to call the Council if something was
broken but it had nothing to do with him. He further testified that
Council workers who cleaned the steps must have seen the broken
drain as they parked their vehicle next to it. He conceded that he
considered the broken drain dangerous and stated that not
a lot of
people walked in that area. .He testified that there was no
vegetation growing around the drain.
Melly testified that she
was 64 and a half years old and lived in a block of flats in Moray
Place, Oranjezicht, flat no. 9. She
testified that she knew the
plaintiff from walking dogs and because he was a friendly person who
talked to everybody. On the
day of the incident she was talking to a
neighbour and she watched the plaintiff come up the stairs. A lady
from across the road
approached her vehicle to put cases in the boot
as if she was going on holiday. This lady greeted the plaintiff. The
plaintiff
wanted to get off the pavement to talk to the lady and he
fell into the broken drain with his left leg. The plaintiff
screamed,
and was in such pain that he could not walk. Melly helped
take the dogs to their owners’ houses.
Melly testified that the
drain had a big hole in the cover that had grass growing around it
and one could not have spotted it
very easily. She noticed the
broken cover immediately when she moved in her flat ten years ago.
She noticed the drain because
her dogs used to sniff around there
and would stop near the pole that was close to the drain. She
testified further that the
City Council used to clean the stairs and
they parked their truck right next to the drain so the cleaning hose
could reach the
stairs. According to her, Council workers had to
walk to the back of the truck to turn the tap on and attach the
hose. Occasionally
they would trim the branches of the hedge that
existed in that area.
In cross-examination
Melly testified that she knew that the defendant had to be contacted
about the broken drain, she however
did not report the drain because
the Council truck came there every week. It was put to Melly that a
number of people across
the City of Cape Town had reported broken
drains and other defects and their complaints were attended to as
recorded in a document
produced by the defendant, therefore her
version that the cover had been broken for five years had been
far-fetched and improbable.
Melly stated that she did not phone the
defendant because she did not have money to make a phone call as she
was unemployed and
dependant on her relatives for her living
expenses. She also testified that 90 percent of the telephone booths
did not have telephone
directories or the books were torn apart. She
did not know that the defendant had a toll-free number that people
could use to
call and report broken drains. When it was put to her
that there was no record of a complaint of this particular broken
cover
whilst there were hundreds of complaints from around the City
of Cape Town, she testified that people living in her neighbourhood
were poor. It was put to her that the defendant sometimes used
independent contractors in different areas of the defendant to
do
the work. She responded by stating that the truck had the Council’s
name written on the doors.
Melly testified that the
plaintiff had emerged from the bottom of Moray Place to Upper Moray
Place on the morning of the incident.
According to her the plaintiff
came up the stairs every morning and proceeded to De Waal Park. She
testified that the plaintiff
had five or six dogs with him on
leashes on that particular day. When it was put to her that her
version differed from De Wet’s
regarding the direction from
which the plaintiff emerged, she testified that De Wet was a sickly
man and was not always clear
in that he would tell a story today and
in two days’ time the story would be different. Melly was
emphatic that the plaintiff
had never walked from the direction
drawn by De Wet, i.e. from the park to the stairs. She stated that
she had known the plaintiff
since 2003 when she moved into the area.
Defendant’s case
on the merits
King testified that he
was employed by the defendant at the Ebenezer depot as the
operational and functional manager. He managed
all complaints
regarding storm water, signs and roads around Cape Town and
surrounding areas. He testified that there was an
electronic system
whereby defects like broken grids were recorded. Teams would be
assigned to attend such defects and would replace
grids if they were
broken. The Council relied on the public to report a broken grid
which reports would be recorded. Council
workers working in a
particular area, especially from the Roads Branch, who picked up a
particular defect, would report it for
King’s department to
attend to. The Western Cape Directory contained telephone numbers
which the public could call to report
defects. He testified that the
defendant became aware of the broken drain in question when the
insurance section sent information
regarding the broken drain cover
to him on 11 November 2008
via
email. The information came to
light on receipt of the public liability claim. On the same day he
went to Moray Place and inspected
the area after which he compiled a
report and instructed his team to go and fix the broken cover. The
drain was repaired on 14
November 2008. He took a photograph
identified as C193 on 11 November 2008. The scribbling at the back
of the photograph represents
the investigations. Complaints from
various areas and in respect of many other defects were reported far
and wide within the
City but there was no record of a complaint from
Moray Place before the plaintiff lodged a claim. King stated that
the defendant
had a good system for the recording of defects and
that while it was not codified, it worked well.
A photograph taken by
King on 11 November of the broken drain 2011 showed that there was
one piece missing together with a piece
that rests on the existing
frame. There was also a yellow mark indicating a fire hydrant. There
was grass around the drain but
it was low. The grid was visible if
one walked from the westerly direction or from the staircase towards
the grid, so was the
yellow painted area. He testified further that
the defendant uses private contractors for some departments such as
cleaning.
In cross-examination
King conceded that it was the duty of the defendant to replace
broken covers. He further confirmed that it
was not costly to
replace such covers and that the procedure was a simple one.
Although there was no written codified system
of reporting defects,
it was expected of all employees to report them. In regard to the
allegation that the storm water drain
cover had been broken for many
years, King mentioned that because the rust was still brown and not
dark and no dirt collected
around the cover, the drain could not
have been broken for a long time. He however conceded that no
examination was carried out
to determine how long the cover had been
broken and therefore could not dispute the evidence given by the
plaintiff’s witnesses.
King did not know whether Council
employees regularly attended the area to do maintenance, or where
they parked their vehicles
when they did so, or whether they parked
next to the drain in question, as he was not from the cleansing
department. He further
conceded that it could not be ascertained
from the documents reflecting complaints whether they were reported
by the employees
or members of the community. According to him, if
Council employees were engaged in work in the vicinity and failed to
report
the defect, the system would have failed in that instance.
Wood testified that he
was currently employed by the defendant as a manager in catchments,
storm water and river management in
the roads and storm water
department and has been working for the defendant for 27 years. He
was responsible for long term planning
of the storm water
infrastructure. He testified that there were 180 000 catchments
which had grids within the City of Cape
Town. The defendant is
spending R70 million a year for the maintenance of its
infrastructure. Maintenance refers to replacement
of items like
missing or damaged covers and the cleaning of storm water pipes.
According to Wood there was a high propensity
of theft of covers
particularly iron grids. The cost of replacing covers and frames was
in the region of R7 million. If inspectors
were to be put in place
every day they would be traversing huge areas which would be quite
costly for the defendant. The defendant
conducts inspections on
average once every five years. In 2009 the cost of conducting
inspections was R2 million and it took
6 months to complete.
According to Wood that kind of inspection is just too infrequent
when one considers the problem of theft
in Cape Town and if the
defendant had to put people on the road every single day it could
cost between R250 and R300 million
to finance an inspection
programme that could particularly detect theft.
In cross-examination
Wood testified that the entire expenditure of the City of Cape Town
was in the region of R30 billion. He
however conceded that no
financial viability study was done for the purposes of putting in
place an inspection programme. He
further conceded that it was the
duty of every employee of the defendant to report faults and defects
picked up during their
regular day-to-day work and employees would
be failing in their duty if they did not do so.
Evidence on quantum
James testified that she
was 65 years old and was married to the plaintiff who was 45 years
old. They lived in Orange Street,
Gardens together with their two
grandsons and niece. She testified that she worked for Mr and Mrs
Solomons as a domestic worker
at Sea Point, six days a week from
Monday to Saturday. In 1983 the plaintiff was involved in a serious
motor accident and suffered
a severe brain injury. He became
epileptic as a result of the injury and has a speech impediment.
Before the fall of 29 October
2008 the plaintiff was very active,
walking all over the City from Sea Point to Camps Bay and to the
mountains. He was always
busy and never used to sit down. He was
also involved in life-saving and would walk daily to the life saving
venues.
She testified that the
plaintiff was a dog-walker who exercised the dogs in return for
remuneration having been inspired to do
this by Mrs Solomons. The
plaintiff walked dogs’ every day of the week from Monday to
Friday. This work was physically
demanding as some of the dogs were
big in size. The plaintiff’s business became successful after
it was reported in the
newspapers. The plaintiff loved dogs and at
some stage he had 17 dogs he looked after and earned income from
this business.
On the day of the
incident, James was in Sea Point when the plaintiff phoned and
informed her that he had broken his leg and was
being treated at
Somerset Hospital. The plaintiff was hospitalised for two days. His
left leg, from his foot up to the thigh,
was in a cast for about six
months. The leg was extremely painful. He had to slide with his
buttocks to get around the house
and had to be pushed on a Pick ‘n
Pay trolley by his nine year old grandson until somebody organised a
wheelchair.
Since the accident the
plaintiff still suffers from a terrible backache, and his knees and
ankle are not strong anymore. His body
is entirely skew with him
leaning to his left side when he walks. After the accident James
tried to help by walking the three
remaining dogs as the owners of
the other dogs made alternative arrangements. After the cast was
removed from the plaintiff’s
foot, James forced the plaintiff
to walk the three remaining dogs again as she could not cope. One
morning as he went to walk
the three dogs, his leg gave in and one
of the dogs got free and was almost knocked down by a vehicle. That
dog was taken by
its owner and only two dogs remained in the care of
the plaintiff. The plaintiff now walks only three dogs. He is not
able to
cope and for the first three months this year James had to
walk the dogs but this presents difficulties as she has to walk the
dogs in the morning before going to work and the homes where she
collects the dogs are far. The plaintiff has to take a taxi
to
collect one dog, which costs him R120 and another that costs R400
per month. According to James, the accident had brought
a financial
set-back to them as a family. At the time of the accident the
plaintiff made R 5 850.00 per month from walking ten
dogs but now he
only makes R 2 080. 00 per month from walking three dogs. Before the
accident the plaintiff worked long hours
walking dogs in Higgovale,
Oranjezicht and Vredehoek and this visibility helped his dog-walking
business grow. His business operated
under the name of ‘
Who
Let the Dogs Out’.
In respect of each dog a contract was
concluded which included an indemnity clause. All payments were made
in cash, which was
spent on the running expenses of the household
and entertainment. This income dramatically improved their quality
of life, especially
helping with school uniforms and books for their
grandchildren.
In cross-examination
James testified that she had been married for seven years to the
plaintiff before the incident happened and
she monitored his
epilepsy. She also testified that the plaintiff had been walking
dogs for eight years before the incident.
She conceded that dogs had
always been coming and going and that contracts that the plaintiff
had with the owners of the dogs
were not fixed. Before 2008 he also
had a dog crèche where people would leave their dogs with him
to keep at De Waal Park
until the afternoon. He would charge R300 or
R350 per dog in this crèche. He opened the crèche
mainly for his love
for animals but there was no fun in sitting all
day. She conceded that the plaintiff was physically fine to run the
crèche.
James mentioned that the plaintiff was in receipt of
a state pension grant. She conceded that the plaintiff has always
had memory
problems and has even before the accident suffered from
depression, anxiety and stress disorders.
Expert evidence
Dr Shevel testified that
he qualified as a psychiatrist in 1984 and had extensive experience
in the assessment of brain damage
for personal injury claims. He
examined the plaintiff on 12 December 2011 and compiled a report
dated 5 January 2012. Clinically
the plaintiff presented with a
marked speech impediment in the form of dysarthria, which is a
difficulty with pronouncing words,
finding the right words in
conversation and understanding conversation adequately. Consequent
to the 1983 accident the plaintiff
sustained injury to the frontal
lobes of the brain which caused him to be very disinhibited over and
above the problems with
his speech. The plaintiff presented with
very childlike and concrete thought patterns with limited conceptual
idiomatic and lateral
thinking abilities. He presented with a few
social boundaries and his answers to questions were tangential and
circumlocutory.
In the opinion of Dr Shevel one would have to be
very cautious about the plaintiff’s ability to testify, he did
not believe
that the plaintiff would fully understand questions and
be able to fully answer questions put to him and was also very
susceptible
to stress and pressure.
Dr Shevel diagnosed the
plaintiff to be suffering from a reactive or secondary depression as
a result of the injuries that he
suffered from the accident.
According to Dr Shevel prior to the accident the plaintiff appears
to have functioned reasonably
well within his limitations. Dr Shevel
was quite surprised that the plaintiff had been able to engage in
the level of work he
did prior to the accident and he seemed to have
coped well because of the structure that was created for him by his
wife. Dr
Shevel did not think that the plaintiff would be able to
rebuild his business from an emotional and a cognitive point of
view.
The plaintiff suffers from secondary reactive depression after
the accident with decreased motivation, drive, sleep disturbances,
fatigue, low energy levels and irritability. Dr Shevel was of the
opinion that the plaintiff was not capable of much intellectual
type
of work. He could do physical work as long as it was structured and
there was very little new learning or initiative required
and he has
a routine to follow and there was sympathy or empathy from the
environment. He recommended that the plaintiff undergoes
treatment
in the form of antidepressant medication psychiatric monitoring and
psychotherapy.
In cross-examination Dr
Shevel testified that he would not be surprised if the plaintiff’s
wife was acting as his surrogate
frontal lobes. When it was put to
him that the plaintiff’s wife testified that there was no
change regarding the plaintiff’s
psychiatric condition after
the 2008 accident, Dr Shevel testified that that he did not speak to
the plaintiff’s wife but
stated that the wife does not have
medical training.
Dr Versveld is an
orthopaedic surgeon in private practise, having qualified in 1978.
Prior to entering private practise he was
the head of department at
the University of the Witwatersrand. He carried out an assessment on
the plaintiff on 09 November 2011
and compiled a report dated 25
February 2012. The plaintiff told him that he had suffered a
compound fracture of the left tibia
and injuries to the left knee,
left ankle and lower back. The plaintiff complained of pains and
needles around the fracture site,
which was on the upper calf of the
left side, and the plaintiff told him that he had a tendency to
fall. Since the accident,
his knee clicks and sometimes it feels
like it will give away. This happens about every month or two. The
left knee bothers the
plaintiff when he does too much walking. He is
skew since the incident and leans to the left hand side. He gets
back pain particularly
from walking and uses Myprodol to reduce the
pain from time to time. Dr Versfeld’s findings were that the
plaintiff’s
left knee measured a half a centimetre more in
circumference than his right, his left ankle measured 1.5 cm more in
circumference
than did the right, his left ankle measured 1cm more
than did his right, and his left leg was in 4 degrees of valgus when
compared
to the right. There was a 15 degree external rotation of
the left tibia, a 5 cm long scar over the anterior aspect of the
left
tibia and evidence of collateral instability of the left knee.
His Lachman test for cruciate instability was mildly positive. The
plaintiff’s range of movement on his knee was for dorsiflexion
10 degrees on the right and 5 degrees on the left and plantarflexion
was 40 degrees on the right and 30 degrees on the left, his range of
subtalar movement was reduced on the left side when compared
to the
right and there was tenderness on the left lateral malleolus. The
left leg was 2 cm shorter than the right. The tibia
was palpably
thickened on the left side when compared to the right and there was
evidence of a 15 degree external rotation deformity
of the left
tibia.
In regard to his low
back there was tenderness over L5/S1 inter space. There was evidence
of marked muscle spasm to the right
of his lumbar spine and the
plaintiff was leaning to the right side. The range of extension on
his lumbar spine was limited by
pain and his left leg was 2 cm
shorter than the right leg. There was evidence of decreased
sensation over the left foot and the
left inner calf. X-rays
conducted by Morton & Partners showed that there was osteophyte
formation along the superior and
inferior aspect of the patella
which was an indication of early degeneration of the knee joint. On
the x-rays there were also
degenerative changes noted between the
tibia/fibula joint space and a joint effusion noticed by the
radiologist which was indicative
of the swelling on the joint. There
were also early osteo-arthritic changes noted in the medial and
lateral tibiotalar joint
space. The healing situation around the
fractured tibia looked quite immature after four years which was
very unusual after so
long.
According to Dr Versfeld
it would be reasonable to make provision for treatment of the
plaintiff’s tibia symptoms at a cost
of approximately R200 per
annum on an ongoing basis for this purpose. In regard to the left
knee Dr Versfeld suggest that provision
be made for treatment which
is likely to include the taking of anti-inflammatory agents,
physiotherapy, the wearing of a knee
support and visits to an
orthopaedic surgeon. For this, he suggested that it would be
reasonable to allow a sum of R 2 800
per annum on an on-going
basis. In a longer term it is probable that the plaintiff’s
left knee will deteriorate and he
will require a total replacement.
Such a procedure is likely to entail a period of hospitalisation of
approximately 10 days at
a cost of R168 000.00 at today’s
prices and a period of disability of approximately 12 weeks.
Following such a procedure
the plaintiff is likely to require
conservative treatment at a cost of approximately R 3 300 per
annum on an ongoing basis.
In relation to the left ankle,
conservative treatment, joint ankle replacement surgery after twenty
years and conservative treatment
thereafter would be required. About
half of the patients with fractured tibia will have knee injury. It
can be reasonably deduced
symptoms emanate from ankle injuries are
from the incident.
In relation to the lower
back it is reasonable to make provision for treatment of the
symptoms. This treatment is likely to include
anti-inflammatory
agents, physiotherapy, the wearing of a lumbar support, the wearing
of a shoe raise, facet blocks and visits
to an orthopaedic surgeon.
In the longer term (approximately 20 years), it is possible that the
plaintiff’s lumbar spinal
symptoms will deteriorate to the
point where surgical intervention becomes necessary. This
intervention is likely to take a form
of a posterior spinal fusion.
In Dr Versfeld’s opinion the plaintiff will not be able to
manage a physical demanding activity
of dog handling as he did
before because of his instability and the fact that he gets tired
very quickly when he does try to
walk very long distances.
In cross-examination it
was put to Dr Versfeld that there was no suggestion of any injury to
his left knee or ankle from the Somerset
Hospital’s attendance
certificate, Dr Versfeld responded that if one considered that the
plaintiff probably arrived and
left in a cast there would have been
no way of knowing whether or not he had a knee or an ankle injury.
When it was put to him
that he failed to consider non-ossifying
fibroma which was above the knee, as an alternative Dr Versfeld
testified that non-ossifying
fibromas had nothing to do with the
accident as they were asymptomatic and so they did not need
treatment. He conceded however
that he did not detect effusion of
the knee and if he did he would have recorded it. He testified that
it was unlikely that one
would have arthritis on the left knee only
and not on both knees. One knee had arthritis whilst the other one
did not have and
that must be due to injury. Dr Versfeld conceded
further that he did not take x-rays done for the lower back but that
his findings
that a fusion might be necessary were not only based on
what he was told by the plaintiff but were also based on his
clinical
findings.
Professor Vlok testified
for the defendant that he is currently in private practise in spinal
surgery and orthopaedics. He had
extensive experience in orthopaedic
surgery having worked as a Registrar in the Department of
Orthopaedic Surgery at Tygerberg
Hospital in South Africa in 1973
and becoming a specialist and following through the ranks until he
became head of department.
He also worked as an academic and
received many accolades and awards. He examined the plaintiff on 14
February 2012 and during
the examination he observed that the
plaintiff spoke with a slur which was as a result of the head injury
he suffered in 1983.
The plaintiff told him that he had suffered
several arm and leg fractures and was in a coma for six months as a
result of the
1983 accident. The plaintiff preferred not to talk
about that accident. He told him that he walked dogs, that he fell
in a drain
and was eight months in a plaster and that it took eleven
months before he could walk again. The plaintiff still complained of
pain in his left tibia down to his ankle and lower back. The lower
back pain however came later on, although he could not remember
when, but it was quite a while later.
Professor Vlok found
that the right leg was 1 cm shorter than the left leg. The left leg
had a scar anterior over the left tibia
where an open fracture had
healed. There was a large scar to the lateral aspect that is
secondary to a previous dog bite. The
left knee and ankle were
clinically normal with normal movements. With examination of the
plaintiff’s back there were normal
movements and he was
neurologically intact. There were clear fresh dog bites on his front
right arm and an old scar over his
left elbow. His left heap is
indicative of a slight shortening of external rotation, but still
within normal bounds. Professor
Vlok took x-rays for the plaintiff’s
pelvis when he noticed the leg discrepancy. From the x-rays the
pubic element was
slightly superiorly placed with exostotic
deformity of the lateral aspect of the right iliac bone. There was
slight degenerative
change of the left patella formal joint. It was
not clear what pain the plaintiff had before this fall. The pain he
suffered
as a result of the fractured tibia that restricted him for
many months needed to only be controlled symptomatically and with
time will disappear. The plaintiff’s knee and ankle had normal
range of movement and were stable. The plaintiff’s back
movements were full and he was neurogically intact. There was a
slight degenerative change in the patella formal joint that
Professor Vlok could not connect to the injury he sustained by
falling in the drain. The spondylitic changes could be expected
from
an adult person and 20 percent of the people had this. According to
Professor Vlok those degenerative changes were most
probably
secondary to the plaintiff’s previous fractures that he
sustained during his accident in 1983. No details pertaining
to this
are available. Professor Vlok did not foresee any need for further
treatment secondary to the left tibia fracture. According
to him the
plaintiff was fit to live a normal social life as he did before the
fall. He could still work as a dog handler as
he did before and the
fresh dog bites attest to the fact that he was still active. The
tibia and fibula fractures had healed.
According to Professor Vlok,
the healing process of the fractured tibia was complete and
virtually hundred percent consolidated.
Professor Vlok testified
that normal people do get osteoarthritis changes due to normal wear
and tear and causes could be due
to genetic factors or trauma.
Analysis
Negligence
The jurisprudence on the
subject of the municipality negligence in South Africa has developed
a great deal. Several cases deal
with the subject and reference is
often made to the decision of the Supreme Court of Appeal in
Cape
Town Municipality v Bakkerud
2000 (3) SA 1049
(SCA).
Marais JA
held that a general legal duty could not be imposed upon all
municipalities to maintain roads and pavements but that
a plaintiff
must place before the Court sufficient evidence to enable the Court
to conclude that a duty to repair existed or
that the public had to
be warned existed and a failure to effect repairs or to warn the
public was blameworthy. In the case of
Judd v Nelson Mandela Bay
Municipality (CA149/2010) [2011] ZAECPEHC 4 (17 February 2011)
the
Court emphasised the point that in such cases, the failure on the
part of the municipality to repair and maintain roads and
pavements
would be held to be unlawful only if the legal convictions of the
community demanded that preventative action had to
be taken on the
facts of the each case.
In casu
, the
defendant has admitted that it had a legal duty to exercise
reasonable control and to take reasonable steps to maintain
the
Moray Place and to take reasonable steps to ensure the safety of the
public. The issue that remains to be determined is whether
the
defendant was negligent in failing to take reasonable steps to
maintain the road, and more specifically to repair the broken
drain
cover or warn the public about it.
In
McIntosh v
Premier, Kwazulu Natal & Another 2008(6) SA 1 (SCA)
the
following was said at paragraph 12:
“
As
is apparent from the much quoted dictum of Holmes, JA in
Kruger
v Coetzee
1966(2)
SA 428 (A) at 430 E – F, the issue of negligence itself
involves a two-fold enquiry. The first is:
was
the harm reasonably foreseeable?
The second is:
would
the
diligens
paterfamilias
take
reasonable steps to guard against such occurrence and did the
defendant fail to take those steps
?
The answer to the second enquiry is frequently expressed in terms of
a duty. The foreseeability requirement is more often than
not assumed
and the enquiry is said to be simply whether the defendant had a duty
to take one or other step, such as drive in a
particular way or
perform some or other positive act, and, if so, whether the failure
on the part of the defendant to do so amounted
to a breach of that
duty.” (Own emphasis)
The defendant has raised
the defence that it or its employees were not aware that the storm
water drain cover was broken as it
was largely reliant upon the
public and its employees who report such defects to it. The
defendant also claimed that it did not
have a budget to assign any
inspectors to identify broken drains.
King went to great
lengths to demonstrate that the defendant had a system in place
where complaints or reports from the members
of the community or
employees of the defendant were recorded. In doing so he sought to
demonstrate that scores of defects were
reported from different
parts of the City, even around the time of the incident, but that
there was no notification about the
broken drain cover from Moray
Place in their records.
King did however make a
number of concessions during his cross-examination. He confirmed
that it was the duty of the defendant
to replace broken drain
covers. He also claimed that replacing broken drain covers were a
simple process and was neither costly
nor time consuming. He
explained that a drain cover was a standard item stocked by the
storage department of the defendant. The
issue in the circumstances
was therefore not whether the defendant could afford the repair of
defective drains. The defence is
based on budgetary constraints and
in the reasonableness and affordability of employing inspectors to
patrol regularly around
the City to check for defective roads,
drains, pavements and the like. The defendant claimed that it had no
resources for such
inspections.
Mr Salie on behalf of
the defendant referred to a number of decisions including that of
October v Nelson Mandela Metropolitan Municipality CA 173/2008,
unreported
. There, the Court found that the documents produced
on behalf of the municipality demonstrated the existence of a
reporting system.
The Court however found that the fact that the
report was made to the municipality gave rise to the duty of care on
the part
of the municipality to ensure that the defective catch pit
did not occasion harm to the residents in the area and members of
the public. It found that the enquiry however did not end there. It
held that the appellant was also required to establish that
the
failure to remedy the defect or to take such other steps as may
avoid potential harm to members of the public in the circumstances
was also blameworthy. The assessment of that question would require
a balancing of competing considerations. The Court stated
further at
paragraph 18:
‘
The
appellant was required not only to establish the existence of a duty
of care but also that the failure to remedy the defect
or to take
such other steps as may avoid potential harm to members of the public
was blameworthy in the circumstances. Culpability
on the basis of a
negligent failure to act or to act timeously necessarily involves an
assessment of the nature of the precautions
that can be taken to
guard against the harm envisaged and whether such precautions are
reasonable having regard to the particular
circumstances of the case.
(see
Cape
Metropolitan Council v Graham
2001
(1) SA 1197
(SCA)
at
par 7) This involves a value judgment which seeks to balance
competing considerations, including
the
degree or extent of the risk created by the actor's conduct
;
the
gravity of the possible consequences if the risk of harm
materialises
;
the
utility of the actor's conduct
;
and
the burden of eliminating the risk of harm
.
(see also
Ngubane
v South African Transport Services
[1990]
ZASCA 148
;
1991
(1) SA 756
(A)
at 776H – J; Pretoria City Council v De Jager
1997
(2) SA 46
(A)
at 55H - 56C.
)’
(Own emphasis)
The Court held further
at paragraph 19:
‘
Although
the Respondent is not “a miniscule local authority” its
ability to address reported defects in its infrastructure
and to take
precautionary measures must of necessity involve an assessment of the
scope of the task, the resources available to
it and the time period
within which it can reasonably be expected to deal with such matters.
In order to effect such an assessment
a court must have placed before
it such evidence as would enable a fair and reasonable evaluation of
the circumstances of the omission
upon which reliance is placed to
found negligence. The Appellant bore a full onus in this regard.
Accordingly she was required
to adduce evidence which founded the
ground of negligence upon which she relied.’
The broken drain cover
in this case was situated a few paces from the staircase connecting
Lower an Upper Moray Place. Pedestrians,
some of whom were elderly
who needed access to the blocks of flats, shops or De Waal Park were
expected to walk up and down the
staircase. The defendant disputed
that Moray Place is situated in a high density area. That may be so,
if compared to the inner
part of the City. The area is however not
an isolated place at all but is in a residential area with blocks of
flats. Pedestrians
walking up the stairs to Upper Moray place would
in all probabilities encounter the broken drain cover in their path.
The broken
drain cover, whether it had only one or two grids
missing, presented a danger to those using the stairs from Lower to
Upper Moray
Place. As appears from the inspection in loco minutes
the drain is partially visible as one approached the top of the
stairs.
I am persuaded that the broken drain cover would indeed
constitute a trap to an unwary pedestrian who sought to cross the
road
by stepping off the pavement, especially if the person was not
familiar with the surroundings and the area.
There was undisputed
evidence presented on behalf of the plaintiff that suggested that
the drain cover had been broken for many
years. The defendant could
not dispute that its employees on a weekly basis attended to clean
the stairs connecting Lower and
Upper Moray Place where they parked
their service vehicle right next to the broken storm water drain.
These employees had a duty
to report the broken drain cover to the
defendant, so that steps could be taken to repair it or warn the
public. King confirmed
that it was incumbent upon all employees of
the defendant to report defects they came across during the course
of their duties
and if they did not do so they would be failing in
their duty.
This failure by the
employees to report the broken drain was indicative of the fact that
the system of reporting did not always
work and defects could go
unreported by the employees of the defendant and the members of the
public.
In regard to the burden
of preventing the risk of harm, the defendant’s case is in
many respects distinguishable from those
matters where prevention
was regarded as burdensome to the miniscule resources of a
municipality. In this matter, King testified
that replacing a drain
would not have been expensive and was a simple process in that the
drain covers were readily available
in the storage department. The
grid had been broken for many years and therefore the defendant had
sufficient time to repair
it. The issue of the budget being
available to appoint inspectors to pick up defects becomes
irrelevant because the defendant’s
employees who visited the
area on a weekly basis must have or ought to have seen the broken
drain and reported it. Their failure
to do so amounted to the
failure of the defendant’s own reporting system. The defendant
could not blame members of the
community for failing to report the
broken drain in the circumstances where its own employees frequented
the area on a weekly
basis. It is reasonable for members of the
community to assume that they need not take any steps to report the
drain when the
defendant’s employees cleaned in that very
vicinity and parked in that area. In my view it is irrelevant that
those workers
may have been private contractors as suggested by the
defendant. The fact remains that the trucks had the defendant’s
name
on and the workers wore Council uniforms. That was not disputed
by the defendant. In fact, no evidence was adduced to show that
the
workers who cleaned in that area were private contractors. Even if
they were, they would be carrying out their duties on
behalf of the
defendant. It would be absurd not to require private contractors to
report defects they come across during the
course of their duties as
that would defeat the whole purpose of the reporting system
especially because they are said to be
deployed in many parts of the
City.
In my view evidence was
adequately adduced on behalf of the plaintiff to show that the
defendant’s conduct was blameworthy.
The plaintiff did not
need to produce evidence showing that the defendant could afford to
hire inspectors as Mr Salie advanced
in order to prove negligence
against the defendant. It is the defendant that raised the issue and
not the plaintiff. In any case,
the plaintiff would not have any
access to the defendant’s financial records. It is the
defendant that had to produce such
evidence to substantiate its
defence. Wood attempted to do so but at the end conceded that an
investigation had not been done
on the financial viability of hiring
inspectors. From Wood’s evidence it appeared that an
inspection is actually conducted
by the defendant, but it is only
once every five years.
I am satisfied that the
plaintiff has been able to show that the defendant had breached its
duty to maintain the road and to have
taken reasonable steps to
protect the public given the fact that the storm water drain cover
had been broken for many years prior
to the plaintiff falling
through it. The employees of the defendant were aware or ought
reasonably to have been aware in the
light of their frequent visits
to and maintenance of the area (which knowledge must be imputed on
the defendant), given the place
and position of the broken drain and
given the fact that replacing the drain was said to be a simple and
an inexpensive process.
No evidence was led as to why placing a
barrier to warn the public would constitute a safety hazard. The
defendant was therefore
negligent and its negligence led to the
plaintiff’s fall into the broken drain cover.
Causal link between
negligence and injuries
It is not disputed that
the plaintiff fell through storm water broken drain cover on 29
October 2008. Melly testified that the
plaintiff fell on his left
leg and could not walk. The plaintiff was treated at the Somerset
Hospital according to James. The
only records from the Somerset
Hospital where the plaintiff was treated are the discharge/ referral
letter showing that the plaintiff
was admitted on 29 October 2008
and discharged on 31 October 2008 and the attendance certificate.
The said letter read with the
attendance certificate record
diagnosis as the compound left tibia fracture and treatment obtained
as nil and wash out and further
treatment as AKPOP. The plaintiff
was assessed by Dr Versfeld only in 2011. The question the Court
must assess is whether defendant’s
negligence caused the
injury to the plaintiff’s left knee, left ankle, his back ache
and the compound fractured left tibia.
There is evidence that
after the fall the plaintiff has not been able to walk the dogs as
before, due to his injured left leg.
There is also evidence that
before the fall he was generally fit, active and strong and could
manage up to 17 dogs since he started
his business eight years
before. There is no evidence that he complained of any pain, and
discomfort on his left knee, ankle
and on his back before the 2008
accident. There is also no evidence that he was involved in any
further accident after the 2008
fall. Dr Versfeld testified that
half of the patients who had a fracture of the tibia would also have
a knee injury. According
to him a reasonable deduction could be made
that a knee injury to a patient who reportedly had a good knee
before the accident
occurred as a result of the accident.
With regard to the ankle
injury Dr Versfeld testified that although there were no good
statistics on the percentage of patients
suffering a fracture of the
tibia also suffering an ankle injury, there were definite forces
affecting the ankles from the actual
fracture and the plaintiff has
had symptoms from the time of the incident which points to the
relationship between this injury
and the accident. According to Dr
Versfeld a reasonable deduction should be made that the symptoms of
the ankle injury emanated
from the incident. In regard to the back
ache, it would have been caused by the cast which was above the knee
and also bent on
the knee, this would have put a lot of stress on
the plaintiff’s back.
In his examination in
chief, on the other hand, Professor Vlok disputed that the left
knee, ankle and back injuries were linked
to the accident. He
suggested that the symptoms were most probably associated with old
injuries that occurred prior to the 2008
incident. The degenerative
change he noted on the patella femoral joint to the left knee had
nothing to do with the tibia fracture
and could be attributed to old
injuries. The lower back pain, according to Professor Vlok, also had
nothing to do with the 2008
incident, it most probably resulted from
old injuries. Professor Vlok also stated that the tibia fracture on
the left leg had
healed and stated that the pain will disappear over
time. Although he was of the view that the right leg was the shorter
leg
and not the left leg, he disputed that the difference in leg
length had anything to do with the accident.
In cross –
examination Professor Vlok conceded that the tibia on the left was
shorter than the right, although he still
maintained the right leg
was the shorter leg, which was the reason why he measured the
pelvis. Professor Vlok also conceded that
there was no radiological
evidence of any other pre-accident fractures. According to him there
was evidence of the osteoarthritis
associated with the patella
joint. Professor Vlok conceded that the osteoarthritic changes were
only in the left knee and ankle
and there were no such signs on the
right knee and ankle. He however maintained that osteoarthritis
could be due to genetic factors
or trauma. In this regard he could
not completely rule out the possibility that arthritic changes in
this instance were due to
the accident. He also could not exclude or
argue with the possibility that osteoarthritis would progressively
get worse over
time, and when it became severe it would require
surgery and after that surgery medication to alleviate symptoms
would be necessary.
Professor Vlok also conceded that one had to be
physically fit to manage the amount of dogs that the plaintiff
handled and to
be able to control unruly dogs. He also conceded that
given the injuries that were claimed to have been suffered by the
plaintiff,
it would be reasonable to expect that he would be unable
to manage a group of dogs like he did before but could only manage
only
two dogs. He also conceded that it was reasonable that the
plaintiff needed to take a taxi to fetch the dogs after the
accident.
He also conceded that in the absence of traumatic events
besides the accident, it could be concluded that the pain and
discomfort
that the plaintiff suffered on his knee, ankle and back
were due to the fall into the drain where he suffered a fracture.
Professor
Vlok mentioned that if the plaintiff did have a 20 percent
chance of requiring back surgery it would not only be due to his
soft
tissue injury but also to spondylolysis.
In the final analysis of
the expert evidence presented by Dr Versfeld and Professor Vlok, I
am of the view that the evidence presented
by Dr Versfeld was the
more convincing and objective and was more logical reasoning and
accorded more with the probabilities.
Professor Vlok’s
concessions were far –reaching, such that at the end not much
of a dispute existed between Dr Versfeld’s
conclusions and
Professor Vlok’s concessions. Dr Versfeld also took the time
to re-examine the plaintiff on the morning
of the trial to make sure
that it was the left leg that was shorter than the right leg.
Professor Vlok declined an invitation
by the plaintiff’s
counsel to re-measure the plaintiff’s legs. In the absence of
any evidence to the contrary, the
Court finds that the compound
fractured left tibia and injuries to the left knee, left ankle and
the back resulted from the plaintiff’s
fall through the drain
cover on 29 October 2008, and were caused by the negligence of the
defendant.
Dr Shevel’s
evidence was also presented in a logical, objective and convincing
manner. It is persuasive in my view that
the plaintiff suffered from
the secondary reactive depression since the accident. Logical and
objective factors have been presented
in this regard. James’
evidence is that of a layperson and the Court cannot attach the same
weight as it would of an expert.
Prior to the accident the plaintiff
had found employment in a niche area of the dog walking market and
it was something he could
enjoy within his limitations. It seems
logical that because he was not active after the accident, could not
walk the dogs anymore,
was dependent on his wife for support
financially, which was not the case before, his drive and motivation
amongst others, would
decrease. I am therefore convinced based on Dr
Shevel’s opinion that the plaintiff has developed a
significant secondary
type depression.
Contributory
negligence
The onus is on the
defendant to prove that the plaintiff was contributory negligent.
The plaintiff did not testify owing to his
mental condition. Mr
Salie argued that no medical evidence was advanced as to why the
plaintiff was unable to testify, and particularly
that no MRI scans
were done to determine his ability to testify and the Court ought to
draw a negative inference in this regard.
According to him, the
plaintiff ought to have testified on issues such as general damages,
on whether he sustained injury on
his knee and ankle and on future
loss of income. In the absence of the plaintiff’s evidence, Mr
Salie submits that the
Court could not make a finding on the issues
pleaded, save for general damages/loss of earning capacity in the
event of a breach
of duty and negligence proven.
In light of Dr Shevel’s
uncontradicted evidence regarding the plaintiff’s mental
condition, I am unable to draw any
adverse inference from the
plaintiff’s failure to testify. I am satisfied that based on
Dr Shevel assessment of the plaintiff’s
condition which I
referred to above, there were good reasons placed before Court on
why the plaintiff was not called to testify.
De Wet and Melly gave
two opposing versions regarding the direction from which the
plaintiff came, the visibility of the broken
drain cover and the
route that the plaintiff normally used to walk the dogs. Save for
those differences their evidence was largely
corroborative in many
other respects. In dealing with the differing versions the Court
would have to evaluate which version was
the more probable and test
the actions of the plaintiff based on the objective standards of a
reasonable person. The Court would
also have to look at other
factors such as the credibility of the witnesses, the impression
they created in Court as well the
Court’s own assessment of
the scene from the inspection in loco.
It seems to be common
cause that the plaintiff walked a group of dogs on leashes at Moray
Place every day. He used the same road
for a number of years. The
drain cover had been broken for many years. It may well be that he
was aware of the drain cover. Mr
Corbett conceded that if Melly and
De Wet had observed the broken drain cover the plaintiff must have
also observed it in the
past, but on that particular day he was not
attentive. It is possible to have knowledge of a hazard but one
could be distracted
and lose concentration. People do not walk
looking down all the time. I accept that a reasonable pedestrian
would not ordinarily
expect to step off the pavement into a broken
drain cover. I also do accept that a person walking dogs may have
his view obscured
by the dogs in front of him. However, a person who
was familiar with the road and who had observed the drain on
previous occasions
would tend to be more careful, not only for his
own safety but also for the safety of the dogs. The fact that the
drain cover
was partially concealed as one approached the top of the
staircase, would pose a bigger risk to a person who had no prior
knowledge
of the broken drain cover. Whilst I, accept that the
plaintiff might have been distracted by the lady who he was having a
conversation
with, he could have been more careful given the fact
that he was walking the dogs for whose safety he was responsible,
and that
of his own. In the circumstances I find that the plaintiff
was also negligent. Having said that, the defendant bears a greater
degree of fault in that it failed to discharge its admitted duty to
maintain the road or warn the public and its actions placed
the
public in danger. In my view the defendant is 80 percent liable for
the damages proved. In this regard all damages awarded
to the
plaintiff are to be reduced by 20 percent.
Quantum
By agreement the parties
decided that it was not necessary for the actuary to be called to
testify as an expert witness. They
further agreed that for the
purposes of the calculation of the claim for loss of earnings and
future expenses the expert report
of Mary Cartwright Consultants CC
was admitted, save for factual assumptions.
Loss of earnings
James testified that the
plaintiff earned an amount of R 5 850.00 per month at the time
of the accident. After the accident
he could only walk about two
dogs and earns R 2 080.00 per month and had to take a taxi to
collect dogs at an amount of R520
per month. According to the
actuarial calculations the plaintiff’s earnings at the time of
the incident were R3500.00,
and would have increased to R4739 per
month on 1 January 2013. According to the actuarial report the
amount of R4739 per month
would have remained the same but for
inflationary increases as depicted in paragraph 4.3 of the actuarial
report. The earnings
recorded in the actuarial report do not accord
with the evidence given by James on loss of income. Loss of income
would accordingly
require recalculation based on the proven
uninjured and injured earnings. The defendant disputes that there
was any loss of income.
It submits that the plaintiff was in a
position to conduct a dog crèche as he had done prior to
2008, as this did not
require any amount of physical exertion. There
is no conclusive expert evidence that the plaintiff was physically
strong to run
a crèche. To address the concern raised by
James regarding premises to run the dog crèche, Mr Salie
suggests that
the crèche could be run for 9 months in the
year at De Waal Park, when there was no rain. This in my view is
based on
pure speculation and is not backed by any medical evidence.
This submission must therefore be rejected.
Mr Corbett, who appeared
for the plaintiff contends that the contingency deduction of 10
percent on the uninjured earnings and
30 percent for the injured
earnings should be applied. In respect of the uninjured earnings he
argues that the plaintiff had
built up a successful business as a
dog walker which had been in existence for some eight years prior to
the accident and there
was a potential to expand the business as he
at some stage had a business partner. Further, by all accounts the
plaintiff’s
services were sought after and he was dedicated to
the dogs. The ordinary vicissitudes of life such as illness,
accident and/or
unemployment which would have in any event occurred
should be taken into account.
Mr Salie on the other
hand submits that the Court should apply a contingency pre-morbid
deduction in the region of 40 percent
and a 20 percent deduction in
the post-morbid. He argues that the contingency must be higher than
10 percent because there were
no fixed contracts with the dog
owners, walking dogs was a luxury and dog owners could terminate
verbal contracts sporadically.
In my assessment of the
factors presented by both parties, I have no doubt that the
plaintiff was a relatively active young man,
whose services were
well sought after and had been built a sustainable business over a
period of eight years. It is likely that
given the demand for his
services and success over a period of eight years, his business
would have grown even further. His epilepsy
was reasonably well
controlled, although it may have been a risk. As long as he had the
support and was monitored by his wife
he did well. There was no
evidence that the epilepsy could worsen in the future as long as it
was monitored. The plaintiff’s
business may well have suffered
from the economic downturn given the fact that ‘dog walking’
was a luxury as Mr Salie
argued. It is also not clear what would
happen if the plaintiff’s wife were to predecease him. The
plaintiff may also struggle
to walk the dogs, if at all, a few years
before he is due to undergo surgery. Having regard to both positive
and negative factors,
I am of the view that a fair balance should be
undertaken. I therefore find that contingency deductions amounting
to 15 percent
should be applied on the calculation of uninjured
earnings and 25 percent on injured earnings.
Future Medical
Expenses
I am not going to repeat
evidence regarding future medical expenses as shown by Dr Versfeld
and Dr Shevel. The capital values
in respect of future medical
expenses appear in the actuarial report, save for the adjustments in
regard to the future surgery
that the plaintiff would need to
undergo. Dr Shevel was of the opinion that the plaintiff would
require anti-depressant medication
for three and a half years
costing R600.00 per month at the total cost of
R26 700.00,
psychiatric monitoring costing R1000.00 every two months over the
period of three and a half years costing
R22 300.00
and
a psychotherapy costing R1800.00 per session for twenty sessions
costing a total of
R38 900.00.
Dr Shevel’s
evidence was not challenged by the defendant save to submit that it
was contradicted by the James evidence
who is not an expert. The
total in respect of the psychiatric and psychotherapy costs
therefore is
R87 900.00.
I have already dealt at
length with Dr Versfeld’s and Professor Vlok’s evidence,
which in my view indicate that the
plaintiff would require treatment
and surgery in regard to his injuries in the future. Dr Versfeld
testified in cross-examination
that there was an 80 percent chance
that the plaintiff would require a left knee replacement operation
in approximately 20 years
time. Similarly there was an 80 percent
chance that he would need a left ankle replacement operation and a
20 percent chance
of a spinal fusion surgery, which means all those
costs had to be adjusted accordingly. The plaintiff’s counsel
has made
those adjustments in his submissions. The following
treatment for the orthopaedic injuries would be required:
conservative management
of the tibia at the cost of R200 per annum,
at a total cost of
R5000;
conservative management of the left
knee costing R2800.00 per annum, until age 64 in the amount of
R
47 900;
an 80 percent chance of a knee replacement
operation, costing R 168 000.00, at the age of 64 at a total
cost of
R86 240.00
(i.e. R 107 800 – 20
percent); conservative management of the knee following surgery
costing R 3 300.00 per annum
at a total cost of
R 26 100.00;
conservative management of the left ankle, costing R 2800.00 per
annum, until age 64 at a total cost of
R 47 900.00
; an
80 percent chance of a left ankle replacement operation, costing
R
116 000.00
at the total cost of
R59 520.00
(i.e.
R74 400 – 20 percent). I note that the figure in Mr
Corbett’s submission is R59 200. This in my view
is
incorrect as the capital value was R74 400 and not R74 000;
conservative management of the left ankle following surgery
costing
R 3000.00 per annum at a total cost of
R 23 700.00
;
conservative management of the back, costing R 4800.00 per annum,
until age 64 at a total cost of
R 82 100.00
; a spinal
fusion surgery costing R 136 000.00 at a cost of
R 17 460.00
(i.e. R87 300 – 80percent) and conservative
management of the back following surgery costing R 4200.00 per annum
at
a total cost of
R 33 200.00.
The total for the future
medical costs is
R517 020.00
. The Court applies no
contingency deductions on this amount.
General Damages
The plaintiff is 46
years old. He was an active, physically fit individual who was
actively involved in sport and relatively young.
He was not only
affected in his left leg but his image of himself has changed. He
worries about his short leg and how others
perceive him. Not only
that, he took considerable pride in his achievements of being a dog
handler given his intellectual limitations
and epileptic challenges.
His quality of life and engagement in physical activities have been
substantially affected. Both parties
have referred to a number of
reported decisions dealing with this issue.
Upon
due consideration thereof, I am of the view that an amount
R
200 000.00
would be a just and
equitable amount to be awarded to the Plaintiff in respect of
general damages.
[70] In the circumstances
I make the following order:
1. The defendant was
negligent and such negligence resulted in the plaintiff’s
injuries;
2. The plaintiff was
contributory negligent by no more than 20 percent of his damages;
3. 80 percent of the
damages is apportioned against the defendant;
4. The plaintiff is
awarded an amount of
R 413 616.00
in respect of future
medical expenses;
5. The plaintiff is
awarded the following amounts in respect of loss of future earnings,
which are to be calculated by the actuary
on the following
assumptions:
5.1. that, but for his
injuries, the plaintiff would have continued to earn R5 850.00
per month as a dog handler in his business
until the retirement age
of 65;
5.2. that the plaintiff
would have received inflationary increases in his earnings;
5.3. that, now that the
plaintiff has been injured, the plaintiff will continue to earn the
net amount of R1 560.00 until the retirement
age of 65 years;
5.4. that the future
increases will be in line with inflation;
5.5. that a contingency
deduction of 15 percent be made against ‘uninjured earnings’;
5.6. that a contingency
deduction of 25 percent be made against ‘injured earnings’;
and
5.7. that all such
amounts be reduced by 20 percent.
6. An amount of
R
160 000.00
is awarded as general damages;
7. The defendant is to
pay costs to the plaintiff , including the qualifying costs of the
expert witnesses being:
7.1. Dr G A Versfeld,
orthopaedic surgeon
7.2. Dr R Visagie,
radiologist
7.3. Dr P Bell,
radiologist
7.4. Dr D Shevel,
psychiatrist
7.5. Mary Cartwright
Consultants CC, actuary
___________________________
N P BOQWANA
Acting Judge of the High
Court
APPEARANCES:
FOR THE PLAINTIFF :
Advocate P A Corbett
INSTRUCTED BY : Malcolm
Lyons &Brivik Inc., Cape Town
FOR THE DEFENDANT:
Advocate M Salie
INSTRUCTED
BY : Adriaans Attorneys, Cape Town
Counsel for the
Applicant
:
Adv. PA
Corbett
Cape
Bar
Instructing
Attorneys
:
Malcolm Lyons & Brivik Inc.
210
Malcolm Lyons & Brivik
Cape
Town
Ref
TB/lp/J57
Counsel
for Respondent
:
Adv. M
Salie
Cape
Bar
Instructing
Attorneys
:
A Adriaans
Suite
204, The Colosseum;
3 St
Georges Mall
Cape
Town
Ref:
AA/aa/C381
Dates
of hearing
:
29 May 2013
Date
of judgment
:
14 August 2013