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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)      NOT REPORTABLE

(2)      NOT OF INTEREST TO OTHER JUDGES

(3)      REVISED.

CASE NO: 90735/16

25/5/2018

 

In the matter between:

 

M C REYNEKE                                                                                                      PLAINTIFF

 

and

 
THE ROAD ACCIDENT FUND                                                                           DEFENDANT

 
JUDGMENT

THERON, AJ

[1]           This is a quantum trial (Road Accident Fund claim), where the merits in relation to liability have been settled 80% in favour of the Plaintiff. The Plaintiff was injured on the 24th of March 2015, when a vehicle driven by one Sphiwe Sokhulu collided with her (she was a pedestrian). The parties agreed that the Plaintiff suffered loss in relation to past hospital and medical expenses to the value of R 34,668.01. The parties further agreed that the Defendant shall furnish the Plaintiff with an undertaking in terms of section 17(4)(a) of The Road Accident Fund Act, No. 56 of 1996 for payment of all her medical and related expenses, limited to 80% of the cost thereof. The issue of general damages was separated from the remaining issues and postponed sine die. The issue that the Court was asked to adjudicate, was basically two-fold in relation to the loss of income:

 

1.         In the event that the Plaintiff was not injured in the accident (pre morbid scenario) at what age would she have retired or until what age would she have worked?

2.         Was her employment terminated on the 7^th of September 2015 by her employer due to the injuries she suffered in the accident or because she had reached her official retirement age?

 

[2]           The Plaintiff applied for an amendment to the pleadings (paragraph 9.3) in that the amount reflected as "Past Loss of Earnings" should be replaced with an amount of R 289,469.00. The Defendant did not object to the proposed amendment and the Court amended the amount of R 75,000.00 to R 289,469.00. The parties also confirmed that the points of agreement in relation to the injuries of the Plaintiff between the experts on the joint minutes can be accepted as correct. It became clear during the trial that the real issue in contention was the opinion of the two opposing Orthopaedic Surgeons.

 

Plaintiff's case:

[3]           The Plaintiff called four witnesses. The first witness was Dr GA Versfeld. He is a medical doctor who is a qualified Orthopaedic Surgeon with experience in his field and in the compiling of medico legal reports. His expertise was not in dispute. He examined the Plaintiff and compiled a medico legal report, which was confirmed under oath. The report is contained in Bundle "B" (Plaintiff's Expert Reports, page 1 to 31) and as such is accepted as evidence before me. The Court shall not repeat all his evidence. Importantly he said that the Plaintiff reported that prior to the accident, she did not suffer from lower back pain and did not have any problems with her neck and hips. After the accident she was not able to work for 4 weeks, where after she went back to work on crutches. She had difficulty with certain tasks at work and eventually she was asked to retire.

[4]           His clinical findings included that she had tenderness over the right sacro iliac joint and tenderness over the L5/S1 interspace. She had spasm to the right of her lumber spine and this limited her range of movement. She furthermore had pain when flexion and internal rotation of both hips were tested. She also had muscle spasm and tenderness over the back of her neck. Decreased sensation and pins and needles over her fingers were also present.

[5]           As far as his prognosis is concerned the following was said:

 

Re: Cracked pelvic bone.

As a direct result of the accident the Plaintiff sustained a fracture of the left superior pubic ramus. She remained symptomatic in relation to her hips after the accident and she experiences weakness in her hips. He surmised that she sustained a significant hip injury. He then recommended that provision should be made for future treatment of her hip symptoms.

 

Re: Neck injury.

Her neck symptoms accompanied with loss of sensation and pins and needles persisted to the time of his examination. There was a narrowing of the C5/C6 & C6/C7 levels, which he points out was not reported on the X-rays done on the date of accident. When counsel for the Defendant pointed out to him that the RAF1 medical report did not mention a neck injury, he replied that he cannot say why this is, but it is clear that they were concerned about her neck at the time because they requested X-rays to be taken of her neck. He continued to say that any age related degenerative changes that might have occurred was asymptomatic prior to the accident. Furthermore, during cross examination, he pointed out that the later X-ray which showed these degenerative changes, was done some years after the accident. The changes could have become evident in this period. He surmised that she sustained a significant neck injury. He then recommended that provision should be made for future treatment of her neck symptoms.

 

Re: Back injury.

She suffered from muscle spasm and reduced movement with accompanied pins and needles. There was evidence of anterolisthesis of L5 on S1 and narrowing of the L3/L4 & L4/L5 discs. He surmised that she sustained a significant back injury. He then recommended that provision should be made for future treatment of her back symptoms.

 

[6]           During cross examination it was put to him that all the neck and back symptoms were because of age related degenerative changes, which were present at the time of accident. He did not agree. It was further put to him that the Plaintiff will require no further treatment in future and that she could have returned to work as before the accident, was it not for the later knee injury, which was not accident related. This concluded his evidence.

[7]          Ms. Suzette Murcott then proceeded to testify in support of the Plaintiff's claim. She is a qualified Occupational Therapist. Her expertise was not disputed. She confirmed that she consulted with the Plaintiff and compiled a report, which is contained in Bundle "B" (Plaintiffs Expert Reports, page 33 to 50). She confirmed the contents and abide by the information and opinions therein. The report is thus accepted as evidence. She confirmed that the Plaintiff's complaints correlate to the reported injuries she suffered. Ms. Murcott reported that the Plaintiff's residual functional capacity is restricted as a result of the consequences of the accident. Counsel for the Defendant did not have any questions for her in cross examination.

[8]           Mrs. Reyneke (The Plaintiff) then testified. She explained how she was very healthy before the accident and only suffered from high blood pressure, which was managed and controlled for the past 20 years. She reacted to an advert in 2008 for a position at Campos Transport. They advertised a position for mature ladies, presumably for 50 plus year old people. She was interviewed and got the job there and then. At that stage she was 62 years of age. She was mostly responsible for reception, but later asked to do more work as she was bored. They entrusted more work to her, including some sort of data capturing and filing. Her duties included 70% of sitting at her desk, 20% standing and 10% walking. She later had to walk longer distances as they moved to new premises. She earned R 10,000.00 per month before deductions at the time of the collision.

[9]           She was happy at work and felt that she was doing well. Her supervisor (Ms. Van Zyl) also commented that they were happy with her work. They never mentioned a prescribed date for retirement and she also did not sign any contract. At some point before the accident (approximately 6 months before) Ms. Van Zyl asked her when she intended to retire. She answered that she will work until she drops dead. Ms. Van Zyl confirmed that she was not dissatisfied with her work. Plaintiff had the impression they had somebody else for her position. She wanted to work as she did not have any other means of income and enjoyed working. They did not mention to her then that she needed to retire at some stage.

[10]      Then the accident occurred on the 24th of March 2015, whereby she was injured. She returned to work after a period of 4 weeks. She had to return then, as she exhausted her 2 weeks sick leave and 2 weeks normal leave and would go without pay, if she stayed away longer. She had to use crutches and struggled to cope with her daily tasks. She suffered from constant headaches and worked a lot slower. She further stated that it was evident to her supervisor (Ms. Van Zyl) that she was now struggling as Ms. Van Zyl told her that her performance was not as before the accident.

[11]        On the 7^th of September 2015 she was called into the office of Mr. Campos. He asked her when she intended to retire? She said she does not want to retire. He then explained to her that she cannot expect the company to look after her for the rest of her life. She was given a letter that indicated she was placed on retirement with immediate effect and she was further told that she will receive her normal pay for the following six months (in other words 6 months' pay as compensation). Plaintiff is convinced that this decision to place her on retirement was due to her inferior performance after the accident.

[12]        As she was leaving she met one of her colleagues, Mr. Sammy Malone, who was a driver for the company (Heavy vehicle driver) and was 74 years of age then. He was surprised to hear she was retired as he was older than her. She left the employer on that same day. She could not find any other employment as they all said she was too old. Late 2017 she fell on her knee and tore her meniscus. She was in a lot of pain initially, but she feels that she would have been able to continue to work. She experienced pain and stiffness when sitting for an extended period of time, but walking was not a problem (in relation to the knee injury). She then confirmed her appointment with Dr. Versfeld took 1.5 hours, but the appointment with Dr Close only 0.5 hours.

[13]        During cross examination she was referred to an inscription on the hospital records that mentioned "Arthritis" and asked why she did not mention that she suffered from it. She replied that she did not suffer from arthritis and she does not know where they got that from. During re-examination she confirmed that she only used medication for hypertension.

[14]        Ms. A Jamotte then testified and placed her report on record, confirming same. Her report is found on page 51-61 in Bundle "B", which I accept as evidence before me. She is an Industrial Psychologist and her expertise were not placed in dispute. She did not add much to her report and merely felt that Plaintiff could possibly have secured alternative employment, was it not for the accident, even after her post morbid retirement age. The Plaintiff closed her case on the basis that she reserves her right to call her actuary later, should his calculations be disputed by the Defendant.

 

Defendant's Case:

[15]       The Defendant proceeded to call Dr V M Close. She is an Orthopaedic Surgeon. I have no reason to doubt her expertise and she is regarded as an expert witness. Her reports can be found at page 1-27 in Bundle "C", which I accept in evidence. Dr Close explained that her patients for purposes of medico legal reports, would first consult a so called "history taker" who is a qualified Occupational Therapist. This record of the patient's history will then accompany the patient to her rooms, where she would conduct the examination. She first checks the history and then begins with the examination. She also points out a typing error in her report on page 8 where "October2017" should read "November2017".

[16]       She continued by telling the Court that Plaintiff had a very sensitive knee and she could not examine it properly. She saw her entering the consulting room unassisted and feels that she might be exaggerating the injury. She pointed out that all the degenerative changes to the back and neck was age related and was present at the time of the accident. She is of the opinion that all degenerative changes in the spine will be age related at this age. On page 14 of Bundle C she submits that the Plaintiff was a hysterical patient with age related degenerative changes, who "demonstrates a marked pain reaction even before palpation of the affected areas". It is however a pity that this serious allegation (in my view of malingering) was not put to the Plaintiff during cross examination, so that she could respond to it.

[17]       She then referred to the CT scan and X-Ray report on pages 71 and 72 of Bundle "E". She points out the finding of "background degenerative change in the lumber spine" on the CT scan. Dr Versfeld also confirmed this finding in evidence, but pointed out that it was an accidental finding, where the scan was directed at the chest, abdomen and pelvis. Dr Close confirmed that the report on the X-Ray taken of the neck did not mention or report on any degenerative changes to the cervical spine. She is of the opinion that the reason for that is an oversight by the radiologist or the fact that they only report on the injuries they feel are relevant in the particular case.

[18]       She then said she felt that Plaintiff would only need conservative treatment in future and disagreed with the findings of Dr Versfeld in relation to his recommendations for future treatment. She then concluded by saying that Plaintiff should have taken 3 months sick leave, after which she could have returned to her employment, as good as before the accident. She felt that Plaintiff returned to work prematurely after 4 weeks.

[19]       During cross examination the following was testified. She did not question the Plaintiff personally on any of the issues mentioned in her report on pages 1 to 9. This formed part of the history taker's work. She admits that she relied on the correctness of the history taker's document in that regard. It is put to her that all the information in her report from page 1 to 9 is thus hearsay evidence before court. She also admits that she did not have an x-ray report when she completed pages 10 to 16 of her report. She later received an x-ray report which was incorporated in the addendum to her report on page 17 to 18.

[20]       She further confirmed that she did not have any of the Plaintiff's reports when compiling her report. Dr Close further said that she used the Occupational Therapist (OT) to take the history of the Plaintiff because of the OT's expertise. She felt that it gives depth to the report. The history report is quite lengthy as it consists of information on four double sided pages.

[21]        She further explained that she expected age related degenerative changes in the Plaintiff's lumbar spine because this is to be expected from a 70-year-old lady. The limitations and pain she reported on the cervical spine of the Plaintiff was according to her also age related. When asked about the x-ray report she brought to Court on the first trial day, she explained that she asked her staff to look for an x-ray report at hospital shortly before the trial date. When asked why she did not ask for it when she examined the Plaintiff, she explained that she later thought it might assist them at Court. Adv. Chaitowitz (Defendant's counsel) put it to her that her duty as an expert witness is to assist the Court objectively and not to favour a party to the action. He felt that her behaviour in this regard shows her favouritism towards the Defendant.

[22]        Adv. Chaitowitz referred the witness to the cervical spine x-ray on page 71 of Bundle "E". The x-ray doesn't indicate any degenerative changes to the cervical spine. She agreed but said that the x-ray was limited to only one view, which is the practice at casualty. There should be at least three views, as was the case with the x-rays taken after her examination, to properly investigate for degenerative changes. She said that the x-ray on page 71 was only a lateral view. One of the views on the later x-ray that shows the degenerative changes in the cervical spine was the open mouth view.

[23]        When questioned about her comment on page 11 of her report "the patient represents an abnormal pain response even before palpation of the spine" she explained that she thought the Plaintiff suffered from some form of psychological problem or psychosis. She denies having thought that the Plaintiff was malingering. Adv. Chaitowitz commented that it was never put to the Plaintiff in cross examination. She also testified that it is expected that 75% of people older than 50 years, would suffer from degenerative changes to the spine. At the age of 70 it is expected that 90 % of people would suffer from degenerative changes.

[24]        She agreed that it is possible for a person to have degenerative changes but be asymptomatic. When asked whether she would agree then that if Plaintiff was asymptomatic before the accident, but after the accident became symptomatic, that the accident caused the pain and symptoms, she refused to agree, stating that she could not find the paper trail to support that submission. She further confirmed that Plaintiff seemed to have been in good health prior to the accident, because she was fit enough to be in full employment. She confirmed that the Plaintiff was probably still on crutches when her employment was terminated.

[25]        Dr Close felt that the Plaintiff only needs conservative treatment for the pelvis fracture and no other treatment. She confirmed that the Plaintiff might be suffering from neck and back symptoms (as agreed in the joint minute on page 8, bundle "D"), which restricts her ability to work, but felt that it is not accident related. This concluded the case of the Defendant and the Defendant closed its case.

 

Discussion:

[26]        In order to adjudicate the two issues put to Court, the Court needs to consider the evidence of the two opposing experts, i.e. the Orthopaedic Surgeons (Dr Versfeld and Dr Close). In this regard the Court was referred to the dicta of Fabricius Jin the matter of SS and Another v Road Accident Fund 2016(3) All SA 637 GP. The Court commented that one of the important duties of an expert witness is that he or she should provide independent assistance to a Court by way of an objective, unbiased opinion in relation to matters within his expertise. The learned judge also commented that " An expert does not assume the role of an Advocate, nor gives evidence which goes beyond the logic which is dictated by the scientific knowledge which that expert claims to possess." He continued to say that an expert's bold statement of his opinion is not of any real assistance to a Court.

[27]        In Louwrens v Oldwage 2006 (2) SA 161 SCA at 174 H, the following was said:

"What was required of the trial Judge was to determine to what extent the opinions advanced by the experts were founded on logical reasoning and how the competing sets of evidence stood in relation to one another, viewed in the light of probabilities." This Court intends to evaluate the evidence of these two experts by considering their ability to provide the Court with an objective opinion, which is based on a logical conclusion (although based on expert opinion) of facts. The opinion forwarded will then be considered in relation to the question of probabilities.

[28]        Dr Versfeld struck me as an expert who wish to state his opinion as simple and uncomplicated as possible. He made certain concessions in cross examination but defended his opinion by stating the reasons for it. His objectivity was never questioned and I also cannot find any reason to doubt that his evidence is a genuine objective opinion based on the facts.

[29]        He conceded that the Plaintiff might have suffered from some degree of degenerative changes to her cervical- and lumber spine, but according to the Plaintiff she was asymptomatic before the accident.

He also stated that the misconception that older people will necessarily suffer from age related degenerative changes to the spine, is untrue. Dr Close in fact substantiated this comment by saying that in people over 70 it is expected that 90% will suffer from age related degenerative changes. This would inevitably mean that 10% of people would not suffer the same fate. Why should Plaintiff not fall in the 10% group?

[30]        Dr Versfeld had conducted the whole examination and questioning of the Plaintiff in person and considered x-rays taken on the day of his examination, when compiling his report and opinion. He is of the opinion that the Plaintiff had sustained a neck and back injury during the accident as well as certain soft tissue bruising and a fractured pelvis (left superior pubic ramus). I will not go into the full details of his findings, as it is a matter of record, suffice to say that he saw the radiological proof for the symptoms complained about and came to the conclusion that the neck degenerative changes were not present before the accident (with reference to the x-ray taken on the day of the accident) or at least was less pronounced. He admits that there were some degenerative changes to the lumber spine at the time of the accident, but the Plaintiff was asymptomatic. The only reasonable conclusion then is that the accident exacerbated this condition into becoming severely symptomatic. He recommended provision for future treatment for the pelvis, neck and back injuries.

[31]        Dr Close on the other hand vigorously tried to convince the Court that the neck and back injuries were not accident related. She could not find any paper trail to show that the Plaintiff suffered any injury to her neck and back. She furthermore did not concede that soft tissue injury and symptoms of the spine could develop some time after the accident.

I find it much more plausible that soft tissue neck and back injuries and symptoms may develop some time after the accident, as Dr Versfeld had stated. The only reasonable inference I can make is that the symptoms that started after the accident, was caused by the accident.

[32]        When considering the method used by Dr Close to take the history of the patient, I have several concerns. The fact that she used someone else to take information from the patient, which is incorporated into her report as her findings, begs the question as to how sure she can be that the information is accurate. The report is, in a sense, dishonest, as it creates the impression that Dr Close had obtained the history from the patient herself. It opens the door to misinterpretation of information so recorded and also takes away the opportunity for her to personally consider and form an opinion on the information directly obtained from the patient. It must also be seen as hearsay evidence in the sense that the information is not first-hand information obtained from the patient (which could then be confirmed by the Plaintiff at Court) but information provided by a third party who will most probably not testify at all (which was the case here). Dr Close's explanation that the OT's expertise will provide depth to the report, does not make any sense to me. The OT does not provide any opinion at all (as this would cause an even greater dilemma to the validity of the report that purports to be the opinion of Dr Close) and thus the information could just as well have been taken by a secretary or preferably by Dr Close herself.

[33]        Although the crux of the opinion is based on the clinical examination by Dr Close, the problems mentioned above casts doubt over the validity of the report and opinion as a whole.

Dr Close also refused to make simple concessions and her tactic to look for evidence in support of her opinion only after realising she would need to testify in Court, brings me under the impression that she would rather have her opinion accepted in favour of the Defendant, than merely assist the Court to come to a reasonable finding based on her objective and unbiased opinion. One would have expected her to look for supporting evidence at the time of compiling the report.

[34]        In Dr Close's attempt to validate her point, she testified that the initial x-rays taken at the casualty department at hospital, would always be of one view only, as was the case with the Plaintiff. This would then explain why the x-ray report did not indicate any neck pathology. The same x-ray report however mentioned an open mouth view and therefore her statement cannot be true.

[35]        Without elaborating further I find that the opinion, report and evidence by Dr Close falls short in many respects. I further find that her report has serious shortcomings and her evidence that is based on this report, must be considered with great caution. On the other hand, I cannot find fault with the report or opinion of Dr Versfeld. His opinion is much more probable and acceptable having regard to the considerations mentioned supra. His opinion that the Plaintiff suffered substantial injury to her neck, back and pelvis, is thus accepted.

[36]        It is clear from the evidence that Ms Reyneke had no symptoms which would hinder her performance at work prior to the accident. It is also clear that after the accident she suffered from serious symptoms due to the accident, which affected her performance at work. She could not cope with all the demands at work and fell behind.

Her evidence in this regard stands uncontested before me, as the Defendant called no witnesses to rebut this evidence. She also stood firm during cross examination.

[37]        I now turn to the two issues the Court was asked to adjudicate. I shall start with the second issue, namely what the true reasons were for the termination of the Plaintiff's employment on the 7^th of September 2015. Adv Kwale for the Defendant submitted that the Plaintiff was retired, because she reached her official retirement age. Adv. Chaitowitz argued for the Plaintiff that she was supposedly retired because of her poor performance at work and that there was no formal retirement age at Campos Transport. Adv. Chaitowitz further argued that was it not for the accident, the Plaintiff would not have been forced to retire at that stage.

[38]        One should answer the question above with reference to the probabilities based on the facts of the case. Let's turn to the proven facts. Campos Transport did not have an official retirement age. They did not indicate to the Plaintiff prior to the accident that she would be asked to retire at a specific age. They in fact advertised the position of the Plaintiff to mature people and appointed the Plaintiff at a very advanced age. At the time of the accident the Plaintiff was well past the generally accepted age of retirement of between 60 and 65 years of age, to wit 68 years of age. The company retired the Plaintiff on the 7^th of September 2015 at the age of 68 years and 11 months.

[39]        On the other hand the Plaintiff's employer had presumably reported to the Industrial Psychologists that the Plaintiff retired in February 2016 (page 13 of the joint minutes in bundle "D").

Dr AC Strydom and Geraldine Ehlers (Defendant's Industrial Psychologists) commented on page 13 that "based on the employer's feedback, it would seem as if Ms Reyneke decided to retire". They went on to say: "...it would not seem as if the accident in question should be blamed for taking retirement...". The problem with the reports made to the Industrial Psychologists, is the fact that it is hearsay evidence, as the employer was not called as a witness. The employer indicated on the employer's certificate that the Plaintiff retired on the 29t h of February 2016. From the evidence, it is clear that this is not correct.

Ms Reyneke confirmed the authenticity of the letter from Campos Transport (page 22 in bundle "F") that clearly indicates that she was retired on the i h of September 2015 with immediate effect. It is furthermore very clear that she was forced to retire and not by choice. The conclusions arrived at by the Defendant's Industrial Psychologists, thus seems to be based on incorrect information.

[40]        I find it very strange that a company would have an official age for retirement of 68 years and 11 months, or even 69 years of age for that matter. The Plaintiff in any event testified that another employee with Campos Transport was 74 years of age when she left in 2015. The uncontested evidence of the Plaintiff was also that Campos Transport had no problem with her performance at work prior to the accident. I therefore find that on a balance of probabilities the employer (Campos Transport) terminated the employment of the Plaintiff on the 7^th of September 2015 due to her poor performance at work and not due to her reaching the normal or official age of retirement.

[41]        In my view the more difficult question to answer is at what age the Plaintiff would have retired, was it not for the accident.

In this regard the Court needs to make a prediction as to the future without the help of a profit with miraculous abilities. The Court can however come to a conclusion based on logical reasoning and accepted and proven facts. The risk of not being accurate can be mitigated by applying a fitting (in my view a higher than normal) contingency deduction to any calculation based on this finding.

I considered all the facts in this case and in particular the following:

1.         The Plaintiff was fully capable of completing her daily tasks at the time of the collision, without any symptoms holding her back;

2.         She had already worked well past the official retirement age of most other employers/companies at the time of the accident;

3.         The Plaintiff said that she would have worked until she "dropped dead" indicating her desire to continue working as long as she could;

4.         Another employee at Campos Transport was still in their employ at the age of 74;

5.         Both Ms Murcott and Ms Jamotte (who both testified and confirmed their reports under oath) felt that the Plaintiff could have continued to work after the accident in the pre morbid scenario.

 

[42]        The matter of Blacher v RAF, Case No: 29115/05 (Witwatersrand Local Division) which I was referred to, is a case in point that a person could quite possibly continue working well past societies' general perception of the age of retirement. In this case the Court found that the Plaintiff would have continued to work up to the age of 80 years.

In the matter of Walton v RAF, Case No: 40367/13 (Gauteng Local Division. Johannesburg) the Court found that the Plaintiff in that case did not prove that he would have worked past the company's official retirement age of 60 years. This case is however distinguishable from our case, as there was an official age of retirement in place and the Plaintiff in that case tried to convince the Court that he would have landed a consulting contract post his normal retirement.

In the end the Court must decide on the evidence what the position would have been, was it not for the collision

 

Judgment:

The Court finds that:

1.         Was it not for the collision, the Plaintiff would have been employed up to the age of 75 years.

2.         The Plaintiff's employment was terminated on the 7^th of September 2015 by her employer as a result of the injuries she suffered in the accident and not due to her reaching her normal retirement age.

3.          The Defendant shall pay the Plaintiff's costs on a party to party scale.

 

 

Judge:                                    THERON AJ

Heard:                                   9 April 2018 & 13 April 2018

 

 

 

H W THERON

ACTING JUDGE OF THE HIGH COURT

 

DATED: 25/5/2018

 

 

 

 

Counsel for the Plaintiff:              Adv. M Chaitowitz

Instructed by:                                Joseph's Incorporated

 

Counsel for the Defendant:         Adv. M M Kgwale

Instructed by:                               Borman Duma Zitha Attorneys

 

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