Griffiths v Mutual & Federal Insurance Co Ltd

• Jurisdiction: South Africa
• Judge: Botha JA, Vivier JA, Harms AJA
• Judgment Date: 16 September 1993
• Docket Number: 347/92
• Hearing Date: 23 August 1993
• Court: Appellate Division

Vivier JA:

On 16 April 1987 the appellant ('the plaintiff') sustained a D hyper-extension acceleration injury of her neck, commonly known as a whiplash injury, when the motor vehicle in which she was waiting at the entrance to a parking garage in Cape Town was struck from behind by a motor vehicle driven by one Girie. In due course the plaintiff instituted action in the Cape Provincial Division against the respondent ('the defendant') as authorised insurer of Girie's motor vehicle in terms of the E Motor Vehicle Accidents Act 84 of 1986 ('the Act'), claiming compensation in terms of s 8 of the Act for loss and damage suffered and to be suffered by her as a result of her said injury. In her amended particulars of claim the plaintiff claimed an amount of R5,7m, of which the amount of R4,6m was F claimed in respect of loss of earning capacity on the basis that she would, but for the accident, have qualified and practised as an advocate. In the alternative she claimed an amount of R4,2m in respect of loss of earning capacity on the basis that she would have practised as an attorney. In its plea the defendant admitted that Girie's negligence was the sole cause of the collision.

By the time the matter came to trial certain issues had been settled by G agreement between the parties. It had been agreed that the plaintiff's general damages in respect of pain, disability and loss of amenities of life amounted to R45 000 and that she had incurred hospital, medical and related expenses of R70 900,05. Liability for the payment of these amounts remained in issue, however, inter alia on the ground that the plaintiff's H loss and damage were not attributable solely to the collision in question ('the second accident') but in part also to a similar injury which she had sustained in a previous motor vehicle collision on 28 August 1985 ('the first accident').

Allowing for the effects of the first accident, the trial Court (King J) I nevertheless regarded the agreed amount of R45 000 as a reasonable assessment of the general damages caused by the second accident and awarded it accordingly. With the exception of one item (which is presently not in issue) the trial Court further allowed the claim in respect of past hospital, medical and related expenses. The claim for future hospital, medical and related expenses was allowed in part. King J further held that J the plaintiff would suffer a loss of earning capacity only until the middle

Vivier JA

A of 1994 and that an actuarial computation of such loss was inappropriate. The learned Judge accordingly made an award as follows:

1. General damages	R45 000,00
2. Loss of earning capacity	R75 000,00
3. Past hospital, medical and related expenses	R47 481,31
4. Future hospital, medical and related B expenses	R131 869,50
	R299 350,81

In the judgment no order for costs was made. It was subsequently brought to the trial Court's notice that the defendant had on 31 July 1991, ie two Court days before the commencement of the trial, made an offer in terms of Rule 34 to settle the plaintiff's claim in an amount substantially in C excess of the sum awarded. The offer was not accepted by the plaintiff. After hearing argument on costs King J ordered the defendant to pay the plaintiff's costs up to and including 9 August 1991 (thereby allowing the plaintiff a spatium deliberandi of seven Court days) and ordered the plaintiff to pay the defendant's costs subsequent to 9 August 1991. He granted leave to the plaintiff to appeal to this Court against his D judgment and order, including the order as to costs. He also granted leave to the defendant to cross-appeal against part of the order as to costs. The cross-appeal has since been abandoned. In substance the appeal is therefore against the awards in respect of loss of earning capacity and future hospital, medical and related expenses as well as against the trial E Court's costs order against the plaintiff.

At the time of the second accident the plaintiff was a 31-year-old practising attorney. She obtained her LL B degree at the University of Cape Town at the end of 1978 and worked as a prosecutor in the magistrate's court, Cape Town, during 1979, rising to the rank of F magistrate. On 1 December 1979 she commenced articles of clerkship with a Cape Town firm of attorneys, Simon Abel and Son, and was admitted as an attorney on 2 December 1981, and as a notary and conveyancer on 10 November 1982. She became a partner in the said firm on 1 March 1983. She was married and had two children, Duncan who was born on 5 March 1985 and Megan who was born on 18 March 1986. A third child, Christopher, was G subsequently born on 7 May 1988.

The claim in respect of the first accident ('the first claim') had been presented to the third party insurers only two days before the second accident happened and it is quite clear from the plaintiff's letter and affidavit which accompanied the first claim that she was then still suffering severe and disabling headaches and neck pain which were expected H to last for some time. In the letter the plaintiff stated that her condition had 'improved slightly and appears to have stabilised'. The plaintiff was being treated at the time by Dr Coplans, a specialist in physical medicine, who gave evidence at the trial. He first saw the plaintiff in August 1986 and in his report dated 4 April 1987, prepared for purposes of the first claim, he stated that since about March 1986 she I had suffered daily headaches and severe pain over the back of the head, on both sides of her neck and over the muscles of the shoulder girdle. This had had a major effect on her concentration and her working ability. She was expected to require intermittent treatment for at least another two years. In an actuarial report dated 15 April 1987, which had also been J prepared for purposes of the

Vivier JA

A first claim, the plaintiff's future loss of income was expected to extend over a period of about three years.

Summons in respect of the first claim was issued after the second accident and the plaintiff's attitude on the pleadings was that the second accident had not aggravated the effects of the injury sustained in the first B accident. That action was eventually settled in October 1987 when the third party insurers agreed to pay the plaintiff the amount of R26 000 on the basis that she would have fully recovered from her injury by the end of 1987.

The trial Court found that the plaintiff had not established that at the time of the second accident she had fully or even substantially recovered C from the effects of the first accident or the extent of such recovery. That finding was clearly correct. The trial Court further found that the nature, extent and duration of the sequelae of the first accident, more particularly the continued presence of these beyond the time of the second accident, was a matter on which there was so much confusion and ambiguity D that it was impossible to separate the two so as to make a precise apportionment. This finding, which seems to have resulted mainly from the trial Court's rejection of the plaintiff's own evidence on this issue, is difficult to understand, as I shall show. In furthering the first claim the plaintiff adopted the attitude that at the time of the second accident her condition had only improved slightly and had stabilised and that the E second accident had not aggravated the effects of the injury sustained in the first accident. When presenting the claim in respect of the second accident, however, the plaintiff stated in an affidavit deposed to on 27 October 1987 that her condition had improved substantially prior to the second accident. This is also what she told the doctors subsequently F consulted by her. She informed Dr Musikanth, the psychologist, according to the latter's report dated 5 January 1990, that by January 1987 and up to the second accident she was almost pain-free. She told both Dr Coplans and Dr Du Toit, the orthopaedic surgeon, that the recurrence of her neck pain was directly related to the second accident.

Instead of openly admitting that she had deliberately misstated her G condition in order to boost her first claim, the plaintiff tried to explain the various inconsistencies to which I have referred, and thereby made matters much worse for herself. In the end the trial Court found her evidence on this aspect unreliable and unacceptable. The trial Court said that some of her explanations were disingenuous and that her evidence H relating to her condition generally had to be treated with caution so that 'an important aspect of the case, namely what portion of her damages must be attributed to the first accident, was shrouded in uncertainty'.

Fortunately for the plaintiff the medical evidence on this aspect was quite clear. It was to the effect that she would have completely recovered I from the effects of the first accident by the end of 1987 and at the latest by the end of 1988. Both Drs Du Toit and Coplans had the benefit of examining the plaintiff before and after the second accident and both expressed the opinion that, from a clinical point of view, her condition had improved immediately before the second accident. Dr Du Toit said that, although X-rays of her cervical spine as well as a magnetic resonance imaging scan revealed no abnormality after the first accident, she J undoubtedly

Vivier JA

A had sustained a severe injury to her neck which resulted in pain in both the upper and lower regions of her neck. He said that any joint in the body which is exposed to such an abnormal force as happens with a hyper-extension injury of the neck will sustain some permanent damage. The structures in the front of the neck will be overstretched and some might B even tear and the structures in the back of the neck, such...