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[2015] ZAWCHC 119
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Prinsloo v Road Accident Fund (1320/2010) [2015] ZAWCHC 119; 2015 (6) SA 91 (WCC) (4 September 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 1320/2010
DATE:
04 SEPTEMBER 2015
Reportable
In the matter
between:
HUIBRECHT
ELIZABETH
PRINSLOO
.................................................................................
Plaintiff
And
THE ROAD ACCIDENT
FUND
.............................................................................................
Defendant
Court: Justice J
Cloete
Heard: 18 - 21
May 2015; 10, 11, 15 and 18 June 2015 and 29 July 2015
Delivered: 4
September 2015
JUDGMENT
CLOETE J:
Introduction
[1] The only issues to be determined in
this matter are whether the whiplash (soft tissue) injury sustained
by the now 59 year old
plaintiff in a motor vehicle accident on 8
August 2007 resulted in her developing chronic pain syndrome which
forced her into early
retirement and, if so, the quantum of damages
she has suffered as a result thereof.
[2] The plaintiff’s case is that
prior to the 2007 accident her neck was asymptomatic and pain free,
despite two earlier motor
vehicle collisions which occurred years
previously in 1976 and 1979 respectively. A subsequent collision in
May 2009 caused the
2007 symptoms to flare up, but after surgical
intervention they settled back to the same level. The pain resulting
from the 2007
whiplash injury caused the plaintiff to develop chronic
pain syndrome and, after battling to maintain her level of work
functioning
for five years, she realised that she was losing the
battle and took early retirement in August 2012 at age 56. It is
common cause
that the plaintiff would otherwise have retired at age
60 in February 2016.
[3] The plaintiff contends that at the
time of the 2007 collision – although she was not aware of this
at the time –
her psychological makeup was such that she is to
be regarded as a “primary victim” and that the “thin
skull”
rule applies to her. She relies predominantly on the
testimony of various experts to support her claim. She has quantified
her
damages resulting from her early retirement in the sum of R1 995
700.
[4] It is the defendant’s stance
that the plaintiff’s case is not supported by the objective
facts; and that the 2009
collision was a novus actus interveniens
which, together with work stressors (including her poor relationship
with her immediate
superior Ms Ronel Schoeman) caused the plaintiff
to take early retirement. It thus denies liability for her damages.
[5] The merits of the 2007 collision
have been conceded in the plaintiff’s favour; her claim for
past medical, hospital and
related expenses settled in the sum of R13
581.94; her claim for future medical, hospital and related expenses
settled with an
undertaking in terms of
s 17(4)(a)
of the
Road
Accident Fund Act 56 of 1996
; and her general damages settled in the
sum of R200 000.
[6] During the trial the plaintiff
testified and called the following witnesses: Ms Charlotte Hoffman
(clinical psychologist), her
daughter Mrs Liesel Van Wyk, her
financial advisor Mr Kobus Botha, Ms Liza Hofmeyr (counselling
psychologist and human resources
consultant), Dr Gerrit Coetzee (her
treating neurosurgeon); Mr Charl Du Plessis (actuary) and Ms Julia
Buchanan (occupational therapist).
[7] The defendant called Ms Ronel
Schoeman, Mr Stefan Van Huyssteen (industrial psychologist) and Dr
Fred Kieck (neurosurgeon).
[8] For convenience the evidence will
be summarised under the following headings: the plaintiff’s
career path; her personal
background; the sequelae of her 2007
injuries; whether the 2009 collision was a novus actus interveniens;
the diagnosis of chronic
pain syndrome and its consequences; and the
quantum of the plaintiff’s claim.
The plaintiff’s career path
[9] The plaintiff matriculated in 1974
and in 1977 she obtained a BA degree in psychology and sociology from
the University of Stellenbosch.
She commenced employment within three
months of graduating and, due mostly to personal circumstances, moved
around between jobs
until commencing employment as a senior clerk in
the Human Resources Department at the Stellenbosch Municipality in
1984, where
she remained employed for five years.
[10] In 1989 the plaintiff secured a
position as a personnel officer at the erstwhile Western Cape
Regional Services Council (WCRSC).
Within two and a half years she
was promoted to senior personnel officer and thereafter to manager of
personnel recruitment and
selection in the restructured WCRSC, i.e.
the Cape Metropolitan Council, where she was responsible for 7000
posts.
[11] In 2002 the plaintiff appointed
the first City Police Chief as well as Ms Schoeman, who later became
her manager. In 2005 further
restructuring took place, resulting in
the establishment of the Cape Town Unicity. The plaintiff testified
that from 2002 until
2005 she was also involved with staff management
functions at the City Police although her primary responsibility
remained recruitment
and placement of personnel at the Cape
Metropolitan Council.
[12] During the last restructuring
process the plaintiff had to reapply for her position along with many
other employees. She described
this as a very stressful period in her
life. Her application was successful and she was appointed as Human
Resources Manager at
the Cape Town Metropolitan Police on 1 October
2005. Her duties entailed overseeing and managing all human resources
functions
but with a reduced number of posts. The plaintiff retained
this position until her early retirement in August 2012. She reported
to Ms Schoeman (who had been involved in the plaintiff’s
appointment in 2005) and to the City Police Chief.
[13] The plaintiff described her job as
immensely challenging but equally enjoyable. If anything, the demands
of her employment
decreased after her appointment to the Metropolitan
Police in October 2005. It is not in dispute that the plaintiff had
an unblemished
work record and was considered a valuable and highly
competent employee until after the 2007 accident. This was confirmed
by Ms
Schoeman in her testimony, although her recollection is that
the plaintiff’s work performance only started to deteriorate
following the 2009 accident.
The plaintiff’s personal
background
[14] The plaintiff had a stable, loving
and uneventful childhood. During 1976 at the age of 20 she was
injured when a friend’s
bakkie in which she was travelling as a
passenger left the road and overturned. She suffered a knock to the
head, bruising and
what appears to be a dislodged hip but was treated
and discharged from hospital on the same day. She recovered fully
within a short
period. The plaintiff married in 1979 when she was 23
years old.
[15] During the same year she was
involved in another collision when the vehicle in which she was
travelling with her husband was
rear-ended by a vehicle which in turn
had been hit from behind in stationery traffic. She experienced
stiffness to her neck and
on the advice of her treating doctor
sometimes wore a soft neck brace in the evenings for about three
months until her symptoms
cleared up.
[16] The couple’s daughters were
born in 1981 and 1982 (when the plaintiff was aged 25 and 26 years
respectively). The marriage
was a failure because, according to the
plaintiff, her husband was emotionally detached and financially
irresponsible. At the age
of 28 she decided to divorce him and
returned with her two young children from Bloemfontein to her family
in Stellenbosch. The
children’s father has been absent since
the divorce and the plaintiff has been their sole parent and
provider.
[17] The plaintiff underwent a
hysterectomy in 1989 (at age 34) as well as operations to her bladder
and a frozen shoulder in 1998
(at age 42). She recovered fully from
all three operations. She has suffered from MSG induced migraines
throughout her life which
she has been able to successfully manage
for a number of years by adjusting her diet. Her daughter, Mrs Van
Wyk, testified that
she suffers from the same condition and that the
advice which the plaintiff obtained and passed on to her has proven
to be most
beneficial.
[18] During 1995 the plaintiff
remarried but this marriage ended in 2005 as a result of her
husband’s infidelity. The failure
of her second marriage,
coupled with the strain of having to reapply for her position at work
in the same year, caused her considerable
stress. She consulted her
general practitioner who prescribed an initial six-month course of
anti-depressants to see her through
this emotional upheaval.
[19] It was the consistent evidence,
not only of the plaintiff but also that of Mrs Van Wyk, Mr Botha and
Ms Schoeman, that these
considerable personal challenges over the
period of her adult life did not impact on the plaintiff’s
performance at work;
that she is a private, stoic person who does not
complain; that she placed her professionalism and dedication to work
above her
personal difficulties; and that she did not share her
private life with those around her and particularly with her fellow
employees
and subordinates.
The sequelae of the plaintiff’
s
2007
injuries
[20] It was the plaintiff’s
unchallenged testimony that at the time of the 2007 collision she
felt that her life was back
on track. She was feeling positive about
her future although she continued on anti-depressants and the odd
sleeping tablet on the
advice of her medical practitioner.
[21] On 8 August 2007 the plaintiff
left work early to meet a plumber at her home. She was stationery at
an intersection waiting
for the traffic lights to change when a
bakkie with a front bull bar ploughed into the back of her Peugeot
without warning. She
had no chance to brace herself for the impact or
to take any evasive action. She experienced the collision as a huge
shock but
was able to drive her vehicle away despite the damage to
its chassis. She drove home and met with the plumber as arranged
although
her neck was sore and she was still in shock. That night she
was unable to move her neck. She stayed home from work the following
day and consulted a doctor, who administered a voltaren injection and
prescribed anti-inflammatories and ointment, advising her
to keep her
neck as immobile as possible.
[22] However the pain in her neck would
not go away. She described it as debilitating. She again consulted
her medical practitioner
and was referred to neurosurgeon Dr Coetzee,
who saw her on 9 September 2007. His clinical examination revealed
pain on anterior
flexion of the neck as well as extension. Neck
x-rays showed degenerative changes. A MRI scan revealed degeneration
of especially
the C4/5 disc with no nerve root compression. The
plaintiff was treated with pain medication and anti-inflammatories
but did not
improve. Dr Coetzee thus performed a facet denervation
(desensitisation of the facet joint at the C4/5 level by electrically
generated
current under general anaesthetic) on 3 October 2007. It is
common cause that this procedure has no permanent effect, and that,
depending on the patient, initial treatment results in relief for
between 6 and 18 months. It was the evidence of both the plaintiff
and Dr Coetzee that the procedure substantially alleviated the
plaintiff’s pain symptoms until about April 2008, when the
pain
returned. The plaintiff testified that she eventually started using
excessive amounts of anti-inflammatory medication which
in turn
affected her stomach. It was her daughter’s evidence that the
amount of pain medication taken by the plaintiff was
such that she
could not rely on the plaintiff to babysit her child for fear that
she could not react quickly enough.
[23] The plaintiff was also referred by
her medical practitioner to neurologist Dr Peter Haug who she
consulted on 11 June 2008.
He diagnosed migraine with aura;
tension-type headache; analgesic overuse; cervical spondylosis and
depression and reported that:
‘The patient now reports having
neck muscle spasms radiating to the back of her head, described as a
warm burning and sensation.
She also experiences pain radiating to
trapezius muscles bilaterally, and the extensor surface of both upper
arms and forearms.
She has intermittent episodes of paraesthesias in
the 2nd and 3rd finger of her right hand. The symptoms are most
prominent in
the morning when getting up, and in the evening after a
stressful day.’
[24] On examination the plaintiff’s
neck and shoulder muscles were tender. The range of neck movement was
significantly reduced
in all directions. The course of occipital
nerves bilaterally at the back of her neck was ‘exquisitely
tender’, although
there was no evidence of muscle power deficit
or sensory impairment. Dr Haug recommended that the plaintiff’s
symptoms be
managed conservatively and encouraged her to continue
with Pilates exercises and physical therapy. He remarked that should
her
symptoms not improve, a repeat MRI scan of the cervical spine
might have to be considered. He prescribed further medication.
According
to the plaintiff she continued to experience pain. This was
supported by the evidence of Mrs Van Wyk.
Whether the 2009 collision was a novus
actus interveniens
[25] The plaintiff was involved in
another collision in April 2009 although the exact date is unclear.
She was travelling early
one morning in slow moving traffic in the
city centre. As she was about to cross the robot controlled
intersection, out of the
corner of her eye she noticed a large
vehicle approaching from the left. She was able to take evasive
action by slamming on brakes
and swerving away but the vehicle
nonetheless collided with the left front side of her vehicle.
According to the plaintiff she
experienced some stiffness in her neck
and a temporary flare-up of her pre-existing symptoms. Other than
that, the 2009 collision
did not exacerbate the pain she still
experienced from the 2007 collision.
[26] On 5 June 2009 she again consulted
Dr Coetzee and on 17 June 2009 he performed another facet denervation
to the facet joints
at levels C3/4, C4/5 and C5/6. It was the
evidence of both the plaintiff and Dr Coetzee that the procedure
again provided some
relief but that the plaintiff’s symptoms
returned a few months later. According to the plaintiff the symptoms
settled at
the same level that they were prior to the 2009 collision.
In her words: ‘…dit was maar net weer die ou pyn. Dit
het
vir my gevoel soos die ou pyn wat terug is’. She continued
taking anti-inflammatories and anti-depressants. Again, this was
confirmed by Mrs Van Wyk when she testified.
[27] Dr Coetzee’s evidence was
that the 2009 facet denervation was performed at three facet joint
levels because it can be
difficult to isolate the exact source of the
pain. Given that the procedure causes no damage he decided to cover
all of the most
mobile parts of the plaintiff’s neck to
desensitise as wide an area as possible. His experience was also that
the effects
of repeated facet joint denervations weaken over time.
This was confirmed by Dr Kieck when he testified.
[28] It was also Dr Coetzee’s
evidence that the plaintiff’s pain experience started as a
result of the 2007 accident
and that the pain experienced by the
plaintiff will be permanent although it can be managed to a certain
degree.
[29] Drs Coetzee and Kieck agreed that
the 2007 collision was the initial cause of the plaintiff’s
neck pain. Dr Kieck’s
view however was that, based on Dr
Coetzee’s clinical notes and reports, the injury sustained by
the plaintiff in the 2009
collision was more severe than that in the
2007 one. He fairly conceded though that when regard was had to Dr
Haug’s report
the symptoms found by Dr Coetzee in 2009 were
already present in 2008; that he had neither explored with the
plaintiff nor realised
how differently the two collisions had
occurred; and that Dr Coetzee as the plaintiff’s treating
neurosurgeon after both
collisions was better placed to express an
opinion as to which had been more severe to the plaintiff.
[30] It was Dr Coetzee’s opinion
that the 2009 collision was insignificant because there was no
reported change in the pattern
of the plaintiff’s pre-existing
pain experience.
Diagnosis of chronic pain syndrome and
its consequences
[31] The plaintiff described her pain
experience as follows. The pain made her tired and irritable. She
struggled to concentrate
at work where she was required to produce
and meet deadlines. Her inability to concentrate made her anxious and
depressed and over
time she became increasingly unable to cope. She
could not understand why she was not coping, despite the pain, when
she had always
previously been able to do so when confronted with her
considerable personal and professional challenges.
[32] She had hoped that the first facet
denervation would have a more lasting effect but after the pain
returned she became increasingly
despondent. The flare-up of her
symptoms following the 2009 collision caused her to return to Dr
Coetzee. When she consulted him
in June 2009 she had experienced pain
for almost two years (apart from the temporary relief provided by the
first facet denervation
between October 2007 and April 2008). The
second facet denervation provided temporary relief but again the pain
returned.
[33] Because of her increasing
inability to cope at work her relationship with Ms Schoeman
deteriorated. What struck me about the
plaintiff’s testimony in
this regard is that at no stage did she attempt to foist the
responsibility for this onto Ms Schoeman.
Rather, it came through
clearly that the plaintiff has considerable respect for Ms Schoeman
who she described as a good, results-driven
manager, although her
management style is not exactly empathetic (this was supported by
various fellow employees consulted by the
plaintiff’s expert Ms
Hofmeyr during her investigation).
[34] The plaintiff’s evidence
also showed that she did not consider the demands made upon her by Ms
Schoeman in the course
of executing her responsibilities as
inappropriate or unreasonable. On the contrary the plaintiff accepted
that this was required
of her.
[35] As the persistent pain became more
debilitating over time the plaintiff’s ability to cope
deteriorated. She began working
longer hours to meet demands that
previously she was quite capable of fulfilling in a normal working
day. This was borne out, not
only by Mrs Van Wyk’s testimony,
but also by her personnel records which reflect a sharp increase in
overtime worked from
the end of 2009. During that year the
plaintiff’s average overtime was 4.99 hours per month (having
dropped slightly from
2008 when it was 8.25 hours per month). In 2010
it increased to 18.97, in 2011 to 23.04 and for the eight month
period prior to
the plaintiff’s retirement in August 2012, it
was an average of 35.89 hours per month.
[36] On 15 October 2010 the plaintiff
again consulted Dr Coetzee for a medico-legal assessment. He
diagnosed chronic pain syndrome
which in his testimony he explained
as follows:
‘… as jy ʼn
pyn-stimulus vir ʼn lang periode kry, dan ontwikkel jy ʼn
pyn-geheue. Soos wat jy, as jy ʼn
gedig wil opsê, die gedig
oor en oor herhaal om hom te onthou, so wat gebeur met chroniese pyn,
is jy vorm ʼn geheuebaan
vir die pyn. Dit word genoem
sentralisasie van pyn. Sentralisasie van pyn beteken daar vorm ʼn
toegewyde baan in die rugmurg,
die brein en veral die limbiesestelsel
van die brein wat basies te doen het met die kognitiewe funksie, jou
gemoed, jou vermoë
om dryfkrag te hê en so meer. So
chroniese pyn sal wel dan ʼn effek op die gemoed hê en dit
vind plaas op die basies
chemikalieë, breinoordragstowwe, daar
is ʼn hele lys van hulle, daar is omtrent ses van hulle wat
verander. Dan as ʼn
persoon in ʼn stresvolle omgewing is, dan
hipersensitiseer die brein die pyn deur sekere stowwe oor te
produseer, want ongelukkig
is die brein te veel gemaak om op pyn te
focus, so jy moet die regte medikasie met kognitiewe psigoterapie,
met oefeningsterapie
probeer omdraai…’
[37] As far as the plaintiff’s
ability to continue working was concerned, it was Dr Coetzee’s
opinion at the time that
‘…one can with a certain degree
of certainty say that she will not be able to continue working until
normal retirement
age’.
[38] In his testimony Dr Coetzee
explained:
‘Toe het ek gevoel dat die
chroniese pyn die pasiënt sal beperk in haar werk in die opsig
en die redenasie daaragter
is, is dat as ʼn mens ʼn chroniese
nektoestand het en jou veg en vlug sisteem word aangeskakel deur
gewone werkspanning,
gesinspanning, ongelukkigheid, dan aktiveer jy
die pyn, so dit is ʼn sirkel. Die pyn vererger die gemoed, die
gemoed verminder
die vermoë om weerstand te bied teen pyn. Haar
werk is wel spanningsvol gewees, daar was allerhande konflik, dis wat
buite
my veld is, die sielkundige aspekte van haar werk en haar
stres, maar ek moet dit in gedagte hou dat dit haar kan prikkel en ek
het gevoel dat dit is ʼn pasiënt wat ʼn
sweepslagnekbesering gehad het op daardie dag, 8 Augustus. Daar was
ander
insidente en daarom is my opinie 50% plus, dat sy gaan probleme
… of dat die ongeluk verantwoordelik is vir haar probleme
en
dat sy moontlik nie sal kan verder werk nie.’
[39] The plaintiff however continued
working. It is common cause that she consulted clinical psychologist
Ms Elizabeth Oosthuizen
during November 2010 to help her try to cope.
The defendant did not call Ms Oosthuizen to testify but her report
and clinical notes
of two sessions which she had with the plaintiff
on 2 and 9 November 2010 were referred to during the trial by the
defendant with
the plaintiff’s consent.
[40] Ms Oosthuizen reported that the
plaintiff presented with ‘difficult emotions’ and felt
tired and burnt-out. The
plaintiff had identified the causes as being
‘work challenges’ and the terminal illness of a close
friend. According
to Ms Oosthuizen the plaintiff was taught ‘coping
skills and mechanisms’ and ‘at no time discussed any
accident(s)
that she was involved in’. Her clinical notes
reflect that the plaintiff presented with depressed mood and feelings
of hopelessness,
anxiety and an inability to sleep without
medication. It was the plaintiff’s testimony that she had not
disclosed her constant
pain to Ms Oosthuizen:
‘--- No I did not. No…,
M’Lady I did not go and see Elizabeth because of pain. I will
see my doctor about pain.
I will see Elizabeth because I said I’ve
got this work stress that I don’t understand and I cannot cope
and I couldn’t,
I’m trying to get the answer how come I’m
not coping.
COURT: You never mentioned that you
have this constant pain to her? --- I never mentioned pain to her.
I’ve seen her for about
10/11 times and I think at that stage I
didn’t link my constant health issue and maybe admitting that
it’s –
it’s because of me that changed. I started
to change because of – of my health and all these pain killers.
That’s
affecting me really. So I – I tried to – to
as I say, what I’m trying to do, always done in my life, is I
take
a problem and I try to get a beginning and an end to it. So I’ve
always been trying to still continue to cope and investigating
how
come now I work longer and longer hours, I’m not coping.
Because nothing really has changed except for my health’s
deteriorating.’
[41] Ms Buchanan (occupational
therapist) assessed the plaintiff for purposes of a medico-legal
report on 20 March 2012, about five
months before her early
retirement. Her assessment and findings contained in her subsequent
report were (understandably) limited
to the plaintiff’s
physical capabilities at the time. Ms Buchanan explained during her
testimony that she had not at that
stage had insight into the
opinions of Ms Hofmeyr (counselling psychologist and human resources
consultant) or Ms Hoffman (clinical
psychologist). It is common cause
that these two experts produced reports in 2013 and 2014
respectively.
[42] The plaintiff provided Ms Buchanan
with the following description of ongoing symptoms experienced:
sensitivity in her neck;
a painful tingling sensation at the central
base of the neck which at times radiated to the upper part of her
back; occasional
numbness in her right index and middle fingers; and
posterior headaches. Her neck symptoms and headaches worsened with
stress and
prolonged periods of working at a computer or when
performing other activities that necessitated sustained flexion or
extension
of the neck. Ms Buchanan observed the plaintiff as
generally guarding and protective of her neck. She consequently moved
her head
cautiously and her neck impressed as being rather stiff.
Flexion and extension of the neck were restricted below normal range
and
elicited pain.
[43] Ms Buchanan concluded that the
plaintiff’s physical symptoms equated to “mild
disability” according to the
applicable interpretive
guidelines. The plaintiff had reported her stressful work environment
which ‘continues to wear her
down psychologically’, that
her neck pain ‘continues to wear her down to some extent’
but that, thanks to her
sessions with Ms Oosthuizen ‘she is
generally coping quite well and she said that she is now managing to
keep matters in
good perspective’. Although the plaintiff
experienced her work environment as stressful, she reported that she
nevertheless
planned (largely for financial reasons) to continue
working for another few years.
[44] Accepting this information at face
value, Ms Buchanan concluded that:
‘…it is my opinion that
[she] will manage to continue performing her own or a similar job in
the future, even if her
symptoms do persist to a greater or lesser
degree. However, she should manage better at work if she
intermittently rests and stretches
while working on her computer, and
good positioning while she is attending to her various work tasks is
also of paramount importance.
[Her] symptoms at work (and generally)
will also likely improve if she adheres to the treatment/management
suggestions listed below.’
[These involved attending exercise
classes, physiotherapy, application of a heat pack, ongoing use of
pain-relieving medication
and ongoing assistance with heavy household
and gardening tasks.]
[45] In her testimony Ms Buchanan
readily conceded that, had she had insight into the reports of Ms
Hofmeyr and Ms Hoffman at the
time, her conclusions regarding the
plaintiff’s ability to continue working would have been
different.
‘When I look holistically at all
the information that has come in, that the neck pain contributed to
the stress levels, to
her coping mechanisms, and a lady who had
previously coped quite well – and it got to the point where she
said enough is
enough…I don’t think that this is a lady
who would have taken such a decision lightly [i.e. to retire] …She
previously had coped fairly well and I think that, had it not been
for that pain… her coping mechanisms would have been
that much
stronger… The probability is quite high that she would have
managed to work for longer.’
[46] It was the plaintiff’s
evidence that since taking early retirement her symptoms have
lessened considerably and are far
more manageable. It is common cause
that the plaintiff had also reported this to Ms Hofmeyr, Ms Hoffman
and Dr Kieck.
[47] The plaintiff consulted Dr Kieck
on 22 January 2014 for purposes of a medico-legal assessment. His
physical examination revealed
full range of movement of her neck and
the absence of facet or other pain. According to Dr Kieck the patient
did not present as
anxious or depressed, sat comfortably, and walked
normally, although she reported ongoing neck pain which had been
severely aggravated
by stress in her former work environment.
[48] Dr Kieck discounted the first two
collisions in 1976 and 1979 as being contributory causes to her neck
pain. He was of the
view (at that stage) that it could be ascribed to
the 2007 and 2009 collisions. In his view – and this was the
plaintiff’s
own evidence – her symptoms had significantly
subsided since taking early retirement. He concluded that she had
‘certainly
made a significant recovery as one would expect of
97% of patients who will eventually make an excellent recovery’
and that
there was no physical reason why she could not again become
employed.
[49] Although Drs Coetzee and Kieck
differed in their opinions on the statistical recovery rate (and even
whether it is accurate
to apply a statistical rate at all) nothing
turns on this because the diagnosis of chronic pain syndrome is
distinct from any prognosis
concerning the plaintiff’s physical
recovery from the whiplash (soft tissue) injury itself. This much is
borne out by Dr
Kieck’s testimony:
‘…the chronic syndrome is
regarded not as an injury but as a syndrome, a condition with
sensitisation of the patient
because of other symptoms and other
problems present at the time of the injury which has effect to
this…this is a controversial
subject…although some
patients do not recover from a whiplash injury the result of these
injuries [i.e. the plaintiff’s]
one must conclude is mainly
psychological, having developed this psychosocial syndrome…the
acute injury which recovers and
then the chronic condition, the –
which then goes on and becomes chronic and [they] do not completely
recover…a small
number [of patients] will go on to the grade
3, the chronic condition, which today is regarded as a psychosocial
condition rather
than the result of the injury because the theory is
that the injury will recover over 6 months.
All right, okay and the grade 3 you
have also testified, it seems as if we are dealing with a grade 3
situation in this case?---
Yes…We’ve said that she’s
moved into the grade 3 whiplash disorders where the main injury now,
the main condition
at that stage was psychosocial rather than
organic…
And it is also so that the physical,
let me call it pain, feeds the psychological “pain”…and
then vice versa.
It’s just a little circle and the one feeds
off the other one, correct?--- That’s correct.’
[50] Although he expressed the opinion
that it was the plaintiff’s work stress which catapulted her to
the level of grade
3, Dr Kieck correctly deferred to the experts in
clinical psychology about her psychological disposition and sequelae
of the injury.
[51] Ms Schoeman testified that after
2007 the plaintiff on occasion complained of neck pain, headaches and
general tiredness. She
began to pick up problems in the plaintiff’s
work performance during 2010. The plaintiff struggled to meet
deadlines and
‘Ek moet herhalend vir goed vra…ek moes
pertinent oplossings aanbied’. Ms Schoeman was aware that the
plaintiff
consulted Ms Oosthuizen although the plaintiff kept the
content of those consultations to herself. When the plaintiff took
early
retirement two years later: ‘Ek het die skrywe van haar
ontvang en dit was nie vir my verbasend dat sy besluit het om aan
te
beweeg nie…ek het nie vir haar gesê dit is vir my ʼn
verassing nie.’
[52] Regarding the plaintiff’s
performance assessment in 2011, where she scored between 60 to 70%,
it was Ms Schoeman’s
evidence that this score was average,
despite the comment of ‘well done’ that accompanied it.
However she conceded
that with her greatly increased overtime hours
the plaintiff had managed to retain a mostly acceptable level of
performance.
[53] Ms Hoffman assessed the plaintiff
on 20 and 25 August 2014. She reported that she continued to
experience ongoing pain but
since taking early retirement was better
able to manage it and was less depressed.
[54] Psychometric tests revealed the
plaintiff to be an introvert although self-sufficient, with low ego
strength and thus an individual
who is easily affected by her
feelings. She has a high average tendency towards feelings of guilt
and chronic worry and is someone
who demands a great deal of herself.
She scored as severely depressed.
[55] Having regard to the plaintiff’s
personal background combined with her personality traits it was Ms
Hoffman’s opinion
that at the time of the 2007 collision the
plaintiff was in all probability a psychologically vulnerable
individual. The collision
was in itself emotionally traumatic but she
would probably have made a fairly good emotional recovery had it not
been for her lingering
pain experience. It was Ms Hoffman’s
opinion that:
‘It seems that not recovering
from her whiplash injury in what she thought was a reasonable time
increased the trauma and
anxiety with regards to the accident and
associated depression developed. The fact that she had to cope in a
very stressful work
environment wherein she was not able to
successfully manage her pain further increased her stress and anxiety
levels, which in
return probably further increased her pain levels.
Thus [the plaintiff] fell into a cycle of pain and anxiety/depression
which
she seems to have been unable to get out of except for fairly
short periods of time when she…had the facet denervation
treatments.’
[56] Ms Hoffman also explained:
‘…her introversion was
quite strong which means low libidinal levels which would, it can be,
it is often associated
with depression and then she tested high on
anxiety with a low ego strength. In other words…the higher the
stress levels
would be the more difficult she would probably be able
to cope with them and then the last important thing is that she
seemed to
be quite a conscientious…person…so she is the
kind of person that probably the more anxious she gets, the more she
would do. And I think that is quite tricky in her situation in the
sense that you know with the pain disorder you know that doesn’t
work so much anymore. So probably in terms of her general coping
mechanisms…one could probably say that because of her pain
disorder her normal way of coping wouldn’t have worked. So that
would probably also increase her anxiety levels to a bigger
extent.’
[57] When asked how the plaintiff had
managed to survive in her stressful work environment for a
considerable period after the 2007
collision, Ms Hoffman responded as
follows:
‘I think it fits in probably with
a person of a stoic…nature, somebody that is conscientious,
that is hardworking,
precise, does what she needs to do, tries her
best…and kept on going…in spite of suffering to a big
extent given
her pain symptoms and the emotional effects, the anxiety
and depression…at some point…she realised…[that]
couldn’t really cope on her own any more and then she went to
see the psychologist, at that point continued for a period of
time
longer, and then the impression that I got is that it got to a point
where she just felt she couldn’t continue one step
longer and
then she resigned from her job.’
[58] It was also Ms Hoffman’s
opinion that given the length of time since the 2007 collision, the
plaintiff’s symptoms
appear to have become permanent and she
will probably not return to her pre-accident level of functioning.
She is at risk of becoming
significantly more depressed and/or
anxious in circumstances where there is increased stress, a life
crisis or major life change,
or should she find herself in another
traumatic situation.
[59] It was Ms Hofmeyr’s evidence
that she had already been concerned about the plaintiff’s
psychological functioning
when she first assessed her on 27 June
2011. Psychometric tests conducted at the time revealed a sensitive
disposition, significantly
elevated anxiety levels and below average
frustration and stress management skills. Ms Hofmeyr formed the view
that although the
plaintiff would make an effort to meet
expectations, her work environment, coupled with the constant pain
which aggravated her
emotional functioning, would take its toll over
time.
[60] During a follow-up consultation on
11 September 2013 the plaintiff reported her decision to take early
retirement in August
2012 as she could no longer cope with the
cumulative impact of her work pressure, what she described as office
politics, and constant
pain.
[61] Ms Hofmeyr concurred with Ms
Hoffman’s opinion. She testified that:
‘I am of the view that she’s
inherently a serious individual. She takes life seriously as well.
She is self-reliant.
She’s by nature an introvert, but she’s
quite compassionate and sensitive. There’s a strong sense of
duty, but
I am of the view that she is overly self-critical and
inclined to perfectionism. And as a result her inherent anxiety
levels are
actually quite high. I refer to her in my report as an
emotionally vulnerable individual as a result of that perfectionism
and
that critical nature…and concerns about failure. At the
time of my [initial] consultation she also displayed significant
symptoms of depression…and her ego strength was actually low,
her coping was poor. I am of the view that it would probably
have
been better earlier, but that her emotional functioning deteriorated
over a period of time. Individuals with these profiles
are generally
hard workers, who take things seriously, worry about mistakes,
double-check stuff, but considering her profile at
the time, I raised
concern about her emotional functioning and endurance and to which
extent she would be able to remain coping
in her environment. That
was before the resignation…I am of the opinion that she may
disagree, but that inherently she’d
always been emotionally
vulnerable, but made a great effort to cope and to prove to herself
that she could cope with things…I
think that one of the things
that’s changed [is that] her emotional resilience probably
became lower and lower over time
and by the time I saw her in 2011 it
was low…
I think what she’s done is she
had to cope and she had to raise two children as a single mother and
she just forced herself
to deal with issues and as she always managed
to keep things together, it was never an option for her to fail. She
fears failure
so she’ll make it work, but I don’t think
she has insight into the emotional expense or how her emotional
resilience
eroded over time. And she’s also used to doing
things herself. She doesn’t ask for support easily. She’s
inherently
actually a private individual…by the time she saw
Ms Hoffman she was more depressed…’
[62] Regarding the plaintiff’s
failure to inform Ms Oosthuizen of her pain experience, Ms Hofmeyr
testified as follows:
‘I have dealt with many
individuals with chronic pain for medico-legal purposes, but also in
work environments. My experience
is that they don’t always form
the link, they’re unaware of that. So I’m not too
surprised, especially considering
her nature where she “does”
structure…she’s not holistic in her approach to life and
her own function…she
wouldn’t have made the link…it’s
not uncommon that they don’t make the link.’
[63] It was Ms Hofmeyr’s
conclusion that:
‘Considering the report of Ms
Hoffman I remain of the view that there’s a number of factors
that contributed to her
resignation, but I am of the opinion that
chronic pain undermining her coping skills, as well as depression,
which was at the time
formally diagnosed, played a larger role than
one would have assumed…’
[64] It was the evidence of the
plaintiff’s financial advisor, Mr Botha, that he had known the
plaintiff since 2002 and had
assisted her and her second husband in
arriving at a financial settlement during their 2005 divorce. He
experienced the plaintiff
as a strong person who never complained and
always tried to make the best of things until about 2010 when for the
first time she
began complaining about her work stressors and
environment. He tried to convince her to keep working until age 60
for financial
reasons. He was surprised when the plaintiff informed
him of her decision to take early retirement in 2012 without prior
consultation
about the effect that it would have on her retirement
resources.
[65] Ms Van Wyk’s evidence was
that she was equally surprised but also relieved:
‘Sy het ʼn punt bereik wat sy
gesê het sy kan nie meer nie maar sy moet nog werk. Ek was, ek
kon sien my ma het
geweier om te sê sy gaan aftree. Sy het gesê
sy gaan ʼn bietjie uittree want sy gaan nog weer vir haar iets
vind
om te doen want sy, sy sien nie haarself as, aftree is ʼn ou
mens, ekskuus ek stel dit nou so maar my ma het nooit haarself
as ʼn
ou mens gesien nie. So ek dink daardie was vir haar baie moeilik. Ek
dink nie sy sê nou al ooit aftree nie, ek
dink nog steeds sy
praat van uittree, ek weet nie want dit was vir haar moeilik, selfs
ja, dit is vir haar ʼn moeilike ding
om te sê. Dit was ʼn
verassing en tog ʼn verligting toe sy gesê het.’
[66] During his testimony Mr Van
Huyssteen (the industrial psychologist called by the defendant)
agreed that, having regard to Ms
Schoeman’s evidence and the
plaintiff’s overtime records, she could not have continued
working.
[67] He conceded that he had not read
Ms Hoffman’s report (although it had been made available to him
by the defendant’s
attorney); and had simply disregarded the
diagnosis of chronic pain syndrome made by Dr Coetzee in 2010 in
favour of the physical
findings of Dr Kieck and Ms Buchanan. He had
similarly disregarded Ms Hofmeyr’s findings on the plaintiff’s
psychological
vulnerability. He was a most unsatisfactory witness who
did not assist the court apart from the concession he made concerning
the
plaintiff’s inability to continue in her employment by
2012.
[68] Given her inability to cope in her
work environment the plaintiff was asked about the possibility of
redeployment to a less
stressful position within the City Police. She
replied that she had not considered this to be a realistic option
because not only
was it a difficult process, she would also have had
to sacrifice salary and benefits.
[69] Regarding the Employee Assistance
Programme (EAP) offered by the City, her evidence was that it was
designed for employees
with temporary difficulties to assist them in
regaining full job functionality. It was not considered by her as an
option because
her condition had been diagnosed as permanent.
[70] Ms Hofmeyr, who has extensive
experience in the field, agreed:
‘I have a medico-legal practice
and I have a corporate practice in which I deal with organisations of
various sizes. I am
of the opinion that in a smaller business it’s
quite easy to accommodate somebody. Either appoint somebody else or
redistribute
responsibilities on an informal basis. In a large
organisation it’s difficult. There would typically be
procedures and committees
involved. We always guard against creating
a position for a specific person and there would be that objection,
that a position
would need to be created not specifically for her,
but as a result of a need of the organisation and less demanding
would normally
be less well remunerated. So it would not have been an
easy thing to organise, if at all possible. Because once HR starts
accommodating
their own in special jobs, they set a huge precedent
for the rest of the City of Cape Town…
If she asked me whether it would be a
smart thing for her to do to approach the Employee Assistance
Programme, I would say no because
she is going to be the senior
manager liaising with them in future about other employees. So she
could have – she’s
not excluded from making use of the
service, but I would think considering the nature of her role it
wouldn’t be ideal or
smart. I would have recommended her to see
a private practitioner and to involve her employer once the situation
became intolerable.’
[71] It was also the evidence of the
plaintiff and Ms Hofmeyr that medical boarding had been an unlikely
option. Ms Hofmeyr’s
evidence was that:
‘Medically boarded based on
chronic pain syndrome or disorder or depression is not a thing that
happens often. Temporary disability
is more likely. Normally medical
boarding occurs once a person has exhausted sick leave, when it
becomes obvious to everybody in
the department that the person is
unable to cope, once they’ve exhausted their annual leave and
special leave and there is
no solution. For psychological issues in
my experience it’s actually very difficult to get medically
boarded unless you suffer
from severe PTSD and it’s deemed to
be a threat to others or to yourself.’
[72] During her testimony Ms Schoeman
confirmed that the EAP would have been available to the plaintiff but
avoided comment on whether
it would have been a suitable solution.
She confirmed however that the EAP is a voluntary program and that
employees could not
be compelled to attend.
[73] It was also Ms Schoeman’s
evidence that the appointment of additional personnel to assist the
plaintiff (even if it were
possible) was unlikely to have addressed
the problem because the plaintiff would nonetheless have been
required to fulfil certain
critical functions:
‘Hulle kan net vir haar assisteer
tot op ʼn sekere vlak en daarna moet sy dit doen om dit vir u te
gee. --- Dis reg. Hulle
posbeskrywings is bepaalde werksfunksies.
Bepaalde – ja, bepaalde
werkfunksies. En ek bedoel nie een van hulle is op haar vlak gewees
nie. Daar’s sekere goed
wat sy nog steeds self moet doen. ---
Ja, die Stad het ʼn hiërargiese, organisatoriese model, so
jy sal nie mense kry
wat op dieselfde vlak aan mekaar rapporteer
nie.’
[74] The plaintiff confirmed having
informed Dr Kieck in January 2014 that she was considering becoming
an estate agent. It was
something that she had considered because of
her financial constraints. However she has a sister in the industry
who advised her
against it because of the physical challenges. She
had thus given up on that idea.
[75] It was Ms Hofmeyr’s
testimony that it is improbable that the plaintiff would succeed as
an estate agent:
‘I didn’t consider it to be
an alternative option. Considering her personality profile…I
would have said that
she’s not bold enough. She’s not
inherently well suited to cold calling. She’s quite
sensitive…it wouldn’t
be impossible but [she would need]
to slot into an existing structure with an existing client base where
she could focus on service
delivery as opposed to generating
business. She’s not an entrepreneur. I also investigated the
property market at the time
and I did a fair amount of research not
specifically for this matter, but also for four or five matters in
the two-year period
preceding this case for divorces and other
medico-legal matters. Based on such research the scope would have
been limited. Estate
agents capitalised on the boom in the property
industry during 2005 and 2006. Things turned dramatically –
turned in 2008,
2009 and by 2011 many estate agents were not
generating any income. Apparently it’s improved slightly, but
it’s not
near where it used to be. So even existing estate
agents still struggle.’
[76] Regarding the plaintiff’s
general residual earning capacity, Ms Hoffman commented that her
ability to generate income
in future, whilst not impossible, is
highly unlikely, given the plaintiff’s psychological
constraints, her age, lack of experience
outside her specific field
and transformation imperatives.
[77] Mr Botha’s evidence
concerning the plaintiff’s financial resources on retirement
was unchallenged. Mr Du Plessis
(the actuary called by the plaintiff)
testified about his methodology (including the application of
contingencies) and quantification
of the plaintiff’s claim for
loss of earnings of R1 995 700.
[78] The defendant only took issue with
his exclusion of the pension benefits received by the plaintiff after
her early retirement,
contending that these benefits should be
deducted from her total claim. Mr Du Plessis responded as follows:
‘…the pension benefits
that became available upon her early retirement, they are…benefits
that’s been
accrued through her whole working career, and
they…would have been available regardless of whether she
retired early or
not. If she didn’t retire early, they would
have continued to grow inside the pension fund. More contributions
would have
continued to be made, both by herself and by the employer,
as detailed in my paragraph 3 [of his report]. The employer
contributed
18% of her retirement funding income, and the employee
herself contributed 9%. The employee’s own contribution is
essentially
part of her own salary that she sacrifices, and therefore
does not pay tax on that part. The employer contribution is a
physical
contribution by the employer, in addition to her salary. So
that’s essentially a cash benefit that accrues to her. As long
as she’s working, the employer is making those 18%
contributions.
So if she did not retire, the money
that she had available to retire at that point, would have continued
to grow inside the fund,
inside the Cape Retirement Fund, plus the
contributions would have continued to have been made by both herself
and the employer,
and those contributions would also have had growth
on them. So what I’m saying there is that whatever benefits
she’s
been receiving after her decision to retire, however
much…her funds have then grown, or however much pension she’s
been choosing to withdraw annually, is not deductible, because it
wasn’t paid as a result of the accident; it was already
accrued, it was already hers. It’s essentially savings that
she’s had…’
[79] It was also his evidence that had
the plaintiff’s pension benefits been included in the
calculation of both her injured
and uninjured income, the plaintiff’s
loss, calculated actuarially, would have been greater. He drew the
distinction between
a so-called disability pension and the
plaintiff’s retirement benefits and explained:
‘…if an employer has such
a policy [i.e. a disability pension] and such a policy pays out, then
it would be deductible,
because then it’s a causal link between
the payments being made and the accident. In this case, though, the
pension was available
regardless, so the accident did not cause the
pension money to suddenly appear, it just returned to her what was
rightfully hers…’
Discussion
[80] Causation involves two elements,
namely factual and legal and was explained in International Shipping
Co (Pty) Ltd v Bentley
1990 (1) SA 680
(AD) at 700E-701C as follows:
‘The first is a factual one and
relates to the question as to whether the defendant's wrongful act
was a cause of the plaintiff's
loss. This has been referred to as
"factual causation". The enquiry as to factual causation is
generally conducted by
applying the so-called “but-for"
test, which is designed to determine whether a postulated cause can
be identified as
a causa sine qua non of the loss in question. In
order to apply this test one must make a hypothetical enquiry as to
what probably
would have happened but for the wrongful conduct of the
defendant. This enquiry may involve the mental elimination of the
wrongful
conduct and the substitution of a hypothetical course of
lawful conduct and the posing of the question as to whether upon such
an hypothesis plaintiff's loss would have ensued or not. If it would
in any event have ensued, then the wrongful conduct was not
a cause
of the plaintiff's loss ...
On the other hand, demonstration that
the wrongful act was a causa sine qua non of the loss does not
necessarily result in legal
liability. The second enquiry then
arises, viz whether the wrongful act is linked sufficiently closely
or directly to the loss
for legal liability to ensue or whether, as
it is said, the loss is too remote. This is basically a juridical
problem in the solution
of which considerations of policy may play a
part. This is sometimes called "legal causation"...Fleming,
The Law of Torts,
7th ed at 173 sums up this second enquiry as
follows:
"The second problem involves the
question whether, or to what extent, the defendant should have to
answer for the consequences
which his conduct has actually helped to
produce. As a matter of practical politics, some limitation must be
placed upon legal
responsibility, because the consequences of an act
theoretically stretch into infinity. There must be a reasonable
connection between
the harm threatened and the harm done. This
inquiry, unlike the first, presents a much larger area of choice in
which legal policy
and accepted value judgments must be the final
arbiter of what balance to strike between the claim to full
reparation for the loss
suffered by an innocent victim of another's
culpable conduct and the excessive burden that would be imposed on
human activity if
a wrongdoer were held to answer for all the
consequences of his default." ’
[81] I have dealt with the evidence in
some detail because the defendant argued that the plaintiff’s
case is based on pure
speculation and conjecture, and submitted that
there are no objective facts from which an inference can be drawn
that the 2007
collision caused the plaintiff to take early
retirement. It is contended that the objective facts instead show
that work stressors
and/or the 2009 collision were the actual causes
thereof.
[82] I cannot agree. The plaintiff was
a good witness who did not attempt to embellish her evidence and was
patently honest, not
only in her testimony but also in her interviews
with the experts appointed by both parties. It would have been easy
for her to
portray herself to Dr Kieck as being more physically
debilitated than she was at the time of his assessment in 2014 to
bolster
her claim but she did not do so. It came through clearly in
her testimony that she had lacked insight into her psychological
challenges
for a considerable period after the 2007 collision and she
cannot be blamed for seeking professional assistance which proved to
be unhelpful from Ms Oosthuizen.
[83] The plaintiff’s version
concerning the manifestations of her pain experience was corroborated
by Mr Botha, Mrs Van Wyk,
her medical and personnel records, Dr
Coetzee and even the defendant’s witness Ms Schoeman. The
experts who testified on
the plaintiff’s behalf all gave
well-articulated reasons for their findings and their evidence
enabled me to neatly fit the
pieces of the plaintiff’s case
together. It is accepted from the evidence of Ms Hoffman and Ms
Hofmeyr that at the time of
the 2007 collision the plaintiff was
already a psychologically vulnerable individual, and that her
particular psychological make-up
rendered her susceptible to the
chronic pain syndrome which developed over time and which was
diagnosed by Dr Coetzee in 2010.
[84] It is to the plaintiff’s
credit that she tried to keep on working for two and a half years
after that diagnosis was made
by placing herself under even more
pressure until she was on the verge of collapse. Both the plaintiff
and Ms Hofmeyr gave logical
accounts of why it would not have been
realistic for her to be redeployed within the City Police, and Ms
Schoeman confirmed that
providing the plaintiff with assistance in
the form of additional personnel would not have been a suitable
solution even if it
had notionally been possible.
[85] Dr Kieck fairly made a number of
important concessions which do not affect his expertise, and indeed
confirmed that chronic
pain syndrome is a diagnosable psychosocial
condition. The scepticism which he expressed about the condition in
general during
his testimony is neutralised by his own diagnosis in
court that the plaintiff falls into the category of a grade 3
whiplash.
[86] Dr Coetzee explained that chronic
pain syndrome develops over time. This was not disputed by Dr Kieck.
The plaintiff’s
version of the impact and sequelae of the 2009
collision, supported by the evidence of Dr Coetzee and coupled with
the absence
of any objective evidence adduced by the defendant to the
contrary, leads to the conclusion that the 2009 collision was not a
novus
actus interveniens. Indeed, Drs Coetzee and Kieck agreed that
the plaintiff’s pain experience was kick-started by the 2007
collision. The findings of Dr Haug during 2008 showed that the
plaintiff was experiencing severe pain months before the 2009
collision.
The uncontested evidence of the plaintiff, supported by
that of Dr Coetzee, that the 2009 collision caused only a temporary
flare-up
of her physical symptoms must be accepted. Ms Schoeman’s
evidence that it was only during 2010 that she noticed a
deterioration
in the plaintiff’s work performance takes the
matter no further, but is instead consistent with Dr Coetzee’s
diagnosis
of chronic pain syndrome in February 2010.
[87] The defendant’s argument
that the isolated factor of work stressors caused the plaintiff’s
early retirement is
also not accepted. The uncontroverted evidence,
supported by the objective facts, shows that despite considerable
personal and
professional challenges throughout her adult life the
plaintiff progressed tangentially in her 18-year career until the
2007 collision.
She proved herself to be an individual who was hard
working, dedicated and able to cope well under pressure.
[88] The evidence showed that the
persistent pain caused by the 2007 collision directly impacted on the
plaintiff’s psychological
make-up to such an extent that this
was the sole cause of her early retirement. The plaintiff did not
want to retire; she was not
looking for an easy way out. If that had
been the case it is highly unlikely that after Dr Coetzee’s
diagnosis of chronic
pain syndrome in 2010 she would have soldiered
on in that stressful environment and sought professional help from Ms
Oosthuizen.
She could have retired at that stage, and her claim
against the defendant would have been greater. That was the easier
option which
she did not follow. Factual causation has thus been
established.
[89] During argument I was referred by
the plaintiff’s counsel to Gibson v Berkowitz and Another
[1997] 1 All SA 99
(W) where the court was faced with a similar
situation although the facts were different. It is useful to quote
fairly extensively
from the court’s findings at 117-118:
‘…this is merely a case of
a young woman who was incapable of facing the results of her injuries
with “normal”
fortitude and courage. In essence her
vulnerability stemmed from the weakening effect which her
pre-existing personality traits
had on her ability to withstand
trauma. Hers is a “thin skull” case in the emotional and
psychological sense. That
being so, it seems to me that her emotional
over-reaction to the stimuli emanating from these additional
stressors, cannot be regarded
as a supervening cause and the
defendants must be held liable. It must be remembered that her
sequelae stemmed from actual physical
injury to herself. It was not a
case of merely witnessing a traumatic event which induced shock
causing subsequent psychological
sequelae. In cases where
psychological sequelae follow after actual physical injury, there is
less likelihood of “limitless”
liability and therefore
greater scope for a flexible approach to include liability for
psychological sequelae which are further
removed from the original
negligent conduct. [The court referred to Bester v Commercial Union
Versekeringsmaatskappy van SA Bpk
1973 (1) SA 769
(A) at 777F-G.]…
As I have said, the plaintiff falls
into the category of a person who had suffered a physical injury with
resultant psychological
sequelae. Thus, even if it could be said
that there is a lesser connection between the nervous collapse during
August 1995 and
the original injury, the fact that she was physically
injured would be sufficient in these circumstances to hold the
defendants
liable. Because the plaintiff suffered physical injury,
she is to be regarded as a “primary victim”. In Page v
Smith
[1995] UKHL 7
;
[1995] 2 All ER 736
(HL) Lord Keith at 767 in fine held that
the thin skull rule applies where the plaintiff is a primary
victim…he held that
hindsight has no part to play where the
plaintiff is a primary victim and proof of proximity will therefore
present no problem,
i.e. remoteness of damages will not be a problem
where psychological sequelae occur consequent upon a physical injury.
It would seem to me with respect that
the principle expressed by Lord Keith is in line with the…dictum
of Botha JA in Bester’s
case. Applied to the present matter, I
am of the opinion that the clarity and perspective which hindsight
brings in regard to the
respective influences of all the stressors
which played a part leading up to the August 1995 psychological
collapse, is not that
relevant where the defendants’ negligence
caused the plaintiff to suffer a direct physical injury. The thin
skull rule applies.
The defendants therefore found their victim as
she was with all her personality traits which played an important
although unquantifiable
role in causing the collapse.
The defendants also found the plaintiff
with all her built-in stresses and strains arising out of her family
related problems. It
is not possible to quantify the influence of
these stressors. And thus the fact that the collapse occurred later
rather than sooner
is with hindsight of little consequence…’
[90] The court referred to the
principles set out in Masiba and Another v Constantia Insurance Co
and Another
1982 (4) SA 333
(C) at 342D-F and Clinton-Parker v
Administrator, Transvaal
1996 (2) SA 37
(W) at 65H-66F and held that:
‘Applying these principles to the
present case I am of the opinion that the defendants are liable for
all forms of nervous
shock and psychological trauma, the lesser as
well as the more serious following after the injury because it is
irrelevant whether
the precise nature and extent of plaintiff’s
psychological trauma could have been foreseen (Masiba’s case
supra at
342C). It cannot in my view be said that the defendants are
absolved from the more serious psychological collapse that occurred
3
years down the line during August 1995. The hindsight perspective
that such collapse may have been enhanced or even precipitated
by
familial problems and/or excessive drug therapy and/or trial stress
and the other stressors mentioned earlier is irrelevant
where the
plaintiff is a primary victim who suffered direct physical injury. As
I understand the application of the thin skull
rule to circumstances
such as the present, it results in the defendants being liable for
the negative affect on the plaintiff of
all these additional
stressors.’
[91] I agree completely with the
findings and sentiments expressed by the court in the Gibson case. In
the present matter the plaintiff
is a primary victim in respect of
the accident of 8 August 2007 who was incapable of dealing with the
result of that injury with
normal fortitude. Her vulnerability
stemmed from the weakening effect which her pre-existing
psychological make-up and personality
traits had on her ability to
withstand trauma. The plaintiff’s reaction to what would
otherwise have been normal stressors
cannot be regarded as a
supervening cause and the defendant should thus be held liable for
her total loss of income caused by her
early retirement.
[92] In support of its argument that
the plaintiff’s pension benefits must be deducted from her
claim the defendant relies
on Dippenaar v Shield Insurance Co Ltd
1979 (2) SA 904
(A) where it was held at 920H that:
‘The [employment] contract as a
whole [in terms of which compulsory pension deductions from salary
plus an employer contribution
was made] is the basis of proof of
plaintiff’s damages and the trial Judge in his judgment
therefore correctly held that,
if the plaintiff claimed that he lost
his salary and part of a pension receivable under the terms of his
employment with the Government,
he must acknowledge that under the
same contract he is receiving payment of pension benefits.’
[93] The plaintiff however relied on
Standard General Insurance Co Ltd v Dugmore NO
[1996] ZASCA 89
;
[1996] 4 All SA 415
(A) where the insured had been a member of the Syfrets Pension Fund.
Membership was compulsory and a condition of his employment.
In terms
of the provisions of the fund, he would have received a monthly
pension on retirement. Had he been injured or suffered
ill health
prior to normal retirement age resulting in his retrenchment, he
would have received in lieu of his salary and retirement
pension, a
monthly disability pension for the rest of his life. The court
referred to Dippenaar’s case as well as Mutual
and Federal
Insurance Co Ltd v Swanepoel
1988 (2) SA 1
(A) and held at 420:
‘Applying the approach laid down
in those two cases, I am of the view that the amount payable under
the disability clause
in the Syfrets Pension Fund contract was a
benefit provided for and accruing under Richter’s contract of
employment (Dippenaar,
supra, at 920B-H); the plaintiff assessed
Richter’s “gross” loss of earnings on the basis
that, but for his injuries,
he would have continued to earn income in
terms of the existing contract of employment (Swanepoel, supra, at
10C-D), the disability
pension was clearly intended as compensation
for loss of earnings or earning capacity (Swanepoel, supra, at 11B-C,
11G-H, 12D-E);
and did not represent a solatium, gratuitous payment,
benevolence or insurance payment (Swanepoel, supra, at 11A-B).’
[94] Plaintiff’s counsel argued,
persuasively, that based on the uncontested expert evidence of the
actuary Mr Du Plessis,
the plaintiff did not receive a disability
pension in lieu of her salary and retirement pension. The collision
did not cause any
money to be paid to the plaintiff. Upon taking
early retirement she was paid her own money that she had saved,
albeit because of
a compulsory scheme contained in her contract of
employment. Furthermore, bearing in mind the plaintiff’s duty
to mitigate
her damages, it was the unchallenged evidence of Mr Du
Plessis that, were the pension to be added to the calculation of both
the
plaintiff’s injured and uninjured income, her calculated
loss would in fact be greater than the amount which she claims. There
is nothing before the court to gainsay this evidence and there is no
logical or legal basis to reject it.
[95] The defendant also relied on
Burger v President Versekeringsmaatskappy Bpk
1994 (3) SA 68
(T)
where the plaintiff had received a payment from the group life
assurance scheme of which she was obliged to be a member in
terms of
her conditions of service with her employer. The amount had been paid
to her in terms of the group life assurance scheme
because she was
rendered totally unfit for work due to the injuries which she had
sustained in the collision. She had paid the
premiums for her
membership herself. The defendant contended that the sum paid to her
by the group life assurance scheme should
be taken into account and
deducted from her claim. The court found against the defendant,
holding that because the plaintiff had
paid the premiums on the
policy with her own money the amount received by her had not been
paid to her under her service contract
with her employer and did not
have to be taken into account in her claim against the defendant for
loss of future earnings. In
my view the findings in Burger support
the plaintiff’s argument rather than the defendant’s.
[96] The defendant suggested that a
high contingency (as much as 75%) should be deducted from any award
made to the plaintiff. This
suggestion was not helpful because it was
not motivated in any way.
[97] The plaintiff relied on Goodall v
President Insurance Co Ltd
[1978] 1 All SA 101
(W) where the court
applied a contingency of 0.5% per annum to retirement age for a
plaintiff who had been a steady employee, changing
his job only to
improve his prospects, was a responsible and reasonable person, and
had enjoyed good health apart from his injuries
and their sequelae. I
agree that there is no plausible or rational basis to apply any
higher contingency in the particular circumstances
of this case. I
have also taken into account that in making his calculations Mr Du
Plessis applied the standard contingencies relating
to mortality,
anticipated career path and the like. The plaintiff was forced into
retirement three years and six months before
her normal retirement
date. However the plaintiff has asked for the contingency of 0.5% to
be applied over the slightly longer
period of four years resulting in
the amount of R1 895 915, which is entirely reasonable.
Conclusion
[98] In the result the following order
is made:
‘The plaintiff’s claim
succeeds and the defendant shall:
1. Provide an undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund Act 56 of 1996
to
compensate the plaintiff for 100% (one hundred percent) of the costs
relating to the future accommodation of the plaintiff in
a hospital
or nursing home or treatment of or rendering of a service or
supplying of goods to the plaintiff after the costs have
been
incurred and on proof thereof and arising from the collision,
2. Pay to the plaintiff the sum of R2
109 496.94 (the capital amount) made up of R1 896 915 for loss of
income, R200 000 for general
damages and R13 581.94 for past medical,
hospital and related expenses,
3. Effect payment of the capital amount
into the plaintiff’s attorney’s trust account within 14
(fourteen) calendar
days of this order,
4. Pay interest on the capital amount
at the prescribed legal rate of interest after the elapse of the 14
calendar day period referred
to in paragraph 3 above,
5. Effect payment of the plaintiff’s
costs on the scale as between party and party, including any costs
attendant upon securing
payment of the capital amount and the
qualifying costs of the experts Dr G Coetzee, Ms C Hoffman, Ms L
Hofmeyr, Ms J Buchanan and
Mr C Du Plessis and/or Munro Consulting
Actuaries. Such costs shall also include the costs of counsel and the
necessary witnesses
Mrs L Van Wyk and Mr K Botha.
J I CLOETE