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[2017] ZAGPJHC 201
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M v Road Accident Fund (08758/16) [2017] ZAGPJHC 201 (14 July 2017)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NUMBER : 08758/16
Not
reportable
Not
of interest to other judges
Revised.
14/7/2017
In
the matter between:
M.
S. PLAINTIFF
and
ROAD ACCIDENT
FUND DEFENDANT
JUDGMENT
DOSIO AJ:
INTRODUCTION
[1]
This is an action for general damages in terms of the Road Accident
Fund, 56 of 1996 (“Act 56 of 1996”). S. M. (“the
plaintiff”) sustained bodily injuries as a result of a motor
vehicle collision which occurred on the 1
st
of March 2014.
[2]
The merits have become settled and the Road Accident Fund (“the
defendant”) has conceded liability for 100 percent
of the
plaintiff’s proved damages. The defendant has settled the
amount of loss of income in the amount of R276 877-65
and has
also provided the plaintiff with an undertaking in terms of section
17 (4) (a) of Act 56 of 1996 for future medical expenses
and
treatment.
[3]
The only issue in dispute and for my determination, is the quantum of
general damages. Advocate Kahn, representing the plaintiff,
has
argued that R900 000-00 is an appropriate amount, whereas
Advocate Kuta, representing the defendant, submits that amount
is too
high.
[4] The defendant produced no medico
legal reports and conceded to the correctness of the plaintiff’s
reports. The matter
was accordingly argued on the conclusions as
expressed in the various medico legal reports provided by the
plaintiff. These reports
include the two reports of Prof John Fleming
(orthopaedic surgeon), dated the 15
th
of September 2014
and the 11
th
of September 2014 respectively, the report of
the occupational therapist, namely, Megan Spavins, and a report of an
industrial
psychologist, namely, David de Vlamingh.
BACKGROUND
[5]
It is common cause that the plaintiff was a labourer born in 1973 and
that he is 44 years old. He was taken by ambulance to
the
Johannesburg Hospital where he was admitted and stayed for
approximately five weeks. He has never returned to work since this
accident. As a result of the aforesaid collision, the plaintiff
sustained severe bodily injuries which include; (i) a head injury
with loss of consciousness; (ii) a dislocation of the left elbow;
(iii) degloving of the cubital fossa; and (iv) a severe laceration
of
the brachial artery resulting in a flaccid left arm.
[6] The plaintiff was admitted to
theatre for debridements on several occasions. An external fixative
was placed on the left elbow
and a vein graft was performed on the
brachial artery. He also had extensive skin grafting, and he received
antibiotics, pain killers
and analgesics.
THE
EXPERT REPORTS
[7]
Professor Fleming states that the prolonged immobilisation has
resulted in a ‘frozen shoulder’ with limited movement,
which makes it difficult for the plaintiff to do bi-manual
activities. The plaintiff’s permanent disability is severe as
he has lost approximately 95% of his power grip in the left arm and
hand. The stiffness and bad positioning of his hand has contributed
to his inability to work. Although the degloving injury was stitched
up and plastic surgery completed, the main vein carrying blood
into
the arm, namely the brachial artery was severed, causing the loss of
much blood and oxygen to his arm. This resulted in the
arm becoming
floppy. His spine is out of balance due to the drooping of the left
arm. The degree of movement of his shoulders has
been severally
impaired. Instead of being 60 degrees it is 30 degrees. His elbows
are very stiff. Normal elbow movement is 0/150
degrees, however, his
movement is -50/70 degrees. The normal values for forearms is 90/90
degrees, yet his movement is -20/40 degrees.
The power pinch meter
results are 110 units to the right hand and 10 units to the left
hand.
[8]
The fact that he is unemployable appears in the industrial
psychologist report, where it is stated that, although he was working
as a demolition worker at the time of the accident, he is now unable
to perform his premorbid tasks which has led to him resigning
as he is no longer ambidextrous.
[9]
Advocate Kahn argued that the plaintiff’s situation is not akin
to a broken arm and should be considered closer to an
amputation.
[10] Advocate Kuta argued that the arm
has been saved and has not been amputated. The brachial artery graft
inserted across the
damaged artery saved the arm and it has healed.
She referred to the expert report of Dr Fleming, where it stated that
the weakness
of the left arm and hand will improve with functional
activity. Advocate Kuta also referred to the report of the
occupational therapist,
where it is stated that “
Mr M. is
able to perform light home maintenance tasks independently but he is
slow and inefficient in tasks requiring medium and
heavy work and
bilateral arm function.”
LEGAL
PRINCIPLES
[11]
In arriving at an appropriate award for general damages, the learned
author JJ Gauntlett SC in
The
Quantum of Damages
[1]
referred to the case of
Sandler
v Wholesale Coal Supplies
1941 AD 194
where the learned Watermeyer JA at page 199 stated;
“…
It
must be recognized that though the law attempts to repair the wrong
done to a sufferer who has received personal injuries in
an accident
by compensating him in money,…there are no scales by which
pain and suffering can be measured, …The amount
to be awarded
as compensation can only be determined by the broadest general
considerations”.
[12] In the case of
Protea
Insurance Company v lamb
1971 (1) SA 530
(A) at 535H-536A, it was
stated that although the determination of an appropriate amount for
general damages is largely a matter
of discretion of the court, some
guidance can be obtained by having regard to previous awards made in
comparable cases, however,
as stated by the learned Potgieter J at
pages 534 to 536B;
"…this
process of comparison does not take the form of meticulous
examination of awards made in other cases in order
to fix the amount
of compensation,…Comparable cases, when available, should
rather be used to afford some guidance,…in
cases where the
injuries and their
sequelae
may have been either more serious or less than those in the case
under consideration. "
[13] In
AA Mutual Insurance
Association Ltd v Maqula
1978 (1) SA 805
(A), the court held;
"It is settled
law that a trial Court has a wide discretion to award what it in the
particular circumstances considers to be
a fair and adequate
compensation to the injured party for his bodily injuries and their
sequelae
.
"
[14]
There is no hard and fast rule in considering past awards, as it is
difficult to find cases on all fours with the one presently
being
considered.
[15] There is a tendency in our courts
towards more generous awards for general damages. See
Marunga v
The Road Accident Fund
2003 (5) SA 164
(SCA) at 170F where the
learned Navsa JA referred to the following passage in
Wright v
Multilateral Motor Vehicle
1997 (4) reported in Corbett and Honey
The Quantum of Damages in Bodily and Fatal Injury Cases
Vol.
IV at E3-31 where the learned Broome DJP stated that the reason for
this is that;
“
[There is]
… a natural reflection of the changes in society, in
recognition of greater individual freedom and opportunity,
rising
standards of living and the recognition that our awards in the past
have been significantly lower than those in most countries.”[My
emphasis]
[16] I now proceed to consider some
comparable cases and awards made previously.
Cases
referred to by the Plaintiff
[17] Various cases were referred to by
Advocate Kahn. The case law referred to can be categorized under the
following headings (1)
minor elbow and shoulder injuries; (2)
limitation of an elbow joint and (3) amputation of an arm.
Cases
pertaining to minor elbow and shoulder injuries
[18]
In the case of
Mulliner
v Bendix
1954 C&B 529, a 68 year old female, sustained an injury to the
shoulder and ribs, an impacted fracture of the left humerus,
fracture
of the left third rib, and lacerations to the forehead. The
sequelae
were
5 percent limitation of the left shoulder joint, and a permanent
nervous condition. The court awarded the plaintiff R3000-00.
The
current value in 2017 would be R305 000-00
[2]
.
[19]
In the case of
Saayman
v Commercial Union
Insurance
Co.
of SA
1972 (2) ECD, a 52 year old railway crane driver, sustained a
compound comminuted fracture of the right humerus, fractures of both
radius & ulna, and an injury to the lumbar spine. The
sequelae
were permanent back ache; a painful shoulder and a future operation
to the wrist. He was still able to do some light employment
on the
Railways. He was awarded R8000-00. The current value in 2017 would be
R478 000-00
[3]
.
Cases
pertaining to limitation of an elbow joint
[20]
In the case of
Laubscher
& Another v Commercial Union Ass
1976 (1) SA 908
ECD, a female sales lady, sustained a severely
comminuted supra-condylar shattered fracture of the right humerus.
The
sequelae
were limitation of movement of the elbow joint of 40 degrees; and
distortion to the arm, (the one being shorter than the other).
She
could not be employed in the career of her choice which was selling
materials, but she could still work as a saleslady
selling linen. The
court awarded her damages in the sum of R4000-00. The current value
in 2017 would be R155 000-00
[4]
.
[21]
In the case of
Bester
v South African Eagle Insurance Ltd
1974 2 QOD 397 (R), a 23 year old female sustained a severe
comminuted fracture of the right arm immediately above the elbow. The
sequelae
were a 63 degree loss of extension and a 10 degree loss of flexion in
the right arm, resulting in a crooked arm with muscular weakness.
It
was not suggested that she would loose anything in the employment
market and was able to cope with her household chores with
assistance. The court awarded her
R4050-00.
The current value in 2017 would be R198 000-00
[5]
.
Cases
pertaining to amputation of an arm
[22]
Advocate Kahn argued that a useless left arm is akin to an
amputation, and even though the plaintiff’s arm was not
amputated,
it is of no use to him. The following cases were referred
to, namely;
De – Felice v South
British Insurance
1962 1 QOD 222 (W) ,
Du Plessis v Sentraboer Bpk
1980
3 QOD 304 (O);
King v Geldenhuys
CPD 1983 3 QOD 379 (C),
Mdunge v
Multilateral Motor Vehicle Accidents Fund
1998 4 QOD J2-145 (N),
Smith v RAF
2003 5 QOD D2-1 (CA), and
Rens v The MEC
for Health: Northern Cape Provincial Department
2009 6 QOD D2-1 (NCK).
[23]
In the case of
De–Felice
(supra)
,
the plaintiff whose brachial nerves of the right arm were wrenched
out of the spinal column, suffered the following
sequelae
,
namely, a paralysis of the right arm which was later amputated and
the shoulder which was immobilized. He also suffered pain to
the
spinal column. An artificial limb was fitted which was only movable
by moving the left shoulder. The court awarded him
R5500-00.
The current value in 2017 would be R470 000-00
[6]
.
[24]
In the case of
Du
Plessis (Supra)
,
a 34 year old female meat packer, had her left forearm amputated 15
cm below the elbow joint. She also suffered a neck injury,
scalp
laceration and a dislocation of the cervical spine in two places. The
sequelae
were; a laceration requiring suturing and a fusion to remove the
increasing neck pain. In addition, the fitting of an elbow prosthesis
would be needed. She was unable to obtain further employment. She was
awarded R20 000-00. The current value in 2017 would
be
R448 000-00
[7]
.
[25]
In the case of
King
(supra),
the plaintiff who was a seasonal piece-worker on farm land, had his
right arm amputated as a result of being bitten by two bulldogs.
The
doctor described his injuries as “virtually terminal” and
that he was lucky to be alive. He was seriously bitten
on both arms,
both legs, his throat and face. He was awarded
R45 000-00.
The current value would be R738 000-00 in 2017
[8]
.
[26]
In the case of
Mdunge
(supra)
,
the plaintiff who was a 28 year old male scholar and part-time
labourer sustained a brachial plexus injury to the left arm, an
extensive ocular injury to the left eye, causing irreparable damage
to the retina. The
sequelae
were permanent loss of all useful vision to the left eye, and a left
arm which was completely flail, useless and equivalent to
an
amputated arm. He was awarded R180 000-00. The current value in
2017 would be R524 000-00
[9]
.
[27]
In the case of
Smith
2013
(supra)
a
5 year old boy sustained a parietal fracture of the right side of his
skull. He also suffered a traumatic amputation of the entire
left
arm. The
sequelae
were
severe pain, shock and distress, resulting in future operations and
behavioural problems in the form of aggression and withdrawal.
The
court awarded the plaintiff R250 000-00. The current value in
2017 would be R538 000-00.
[28]
In the case of
Rens (supra
),
the plaintiff, a 10 year old boy, underwent an
above-elbow amputation of his left arm and subsequent thereto, a
re-amputation through
to the left shoulder. The child was awarded
R600 000-00 for general damages. The current value in 2017 would be
R920 000-00.
Cases
referred to by the defendant
[29]
Advocate Kuta referred to the case of
Lee
v Road Accident Fund
[2010] ZAGPPHC 276
and
Smith v Road Accident Fund
[2011] ZAGPJHC 203. In the
Lee
case
(supra)
,
the plaintiff suffered a fracture of the elbow, an open wound on the
head, multiple bruises, cuts, a left knee injury, back and
neck
injuries, as well as a 3-part fracture of the right knee-cap. The
plaintiff was awarded R250 000-00. The current value
in 2017
would be R367 000-00.
[30]
In the case of
Smith
2011
(supra)
, the plaintiff who
was 52 years old, and employed as a security guard, sustained a scalp
laceration, intermittent pain on the lumber
spine, shoulder and a
right lower leg which had become shortened. He could not lift or
carry heavy objects and could not climb
stairs. The plaintiff’s
left and right arms and his elbows were normal with a full range of
movement. The court awarded him
R300 000-00
for general damages.
[31]
In addition to the cases referred to I found the following cases
equally helpful in my assessment of damages. These are the
cases of
Khumalo v Road Accident Fund
(A5020/05)
[2006] ZAGPHC 26
,
AA Mutual
Insurance Association Ltd v Van Jaarsveldt
1974 (4) SA 729
and
Swanepoel v Road
Accident Fund
2008 5 A3 QOD 40 (NC).
[32]
In the case of
Khumalo (supra)
,
a 41 year old plaintiff sustained a fracture to the left humerus, a
fracture to the left upper tibia, and a fracture to
the neck of
the left tibula. An intra medullary rush nail was inserted surgically
in her fractured humerus, which broke and resulted
in the humerus
bending to form an extra elbow, causing a gross deformity. The
sequelae
in this matter included neurological damage to her left hand,
resulting in her middle finger, ring finger, and small finger
remaining
closed, resembling a claw-like unsightly hand. The
continued disuse of the left hand resulted in loss of muscle bulk,
along her
entire left arm, leaving her no control over her left
wrist, disabling her from bringing her left hand to her mouth. She
was effectively
rendered single-handed by the accident, and was no
different from a person whose left hand had been amputated. The
plaintiff was
an unsophisticated woman, who lived in a rural setting
with little or no support from family, and would be unable to undergo
the
intensive post-operative treatment designed to restore the use of
her left arm. The plaintiff was right-handed. The plaintiff
who
was formerly a healthy whole woman, developed a gross disability and
deformity. She was awarded R400 000-00 in general
damages.
[33]
In the case of
AA
Mutual Insurance (supra)
,
the plaintiff, a 34 year old male, sustained a dislocation of the
cervical spine at C4/5 level with an incomplete tertraplegia.
He was
completely paralysed for a period of 3 and a half months, where after
he was able to walk on crutches. Upon his discharge
from hospital,
the plaintiff experienced a weakness of grip in both hands and a 4/5
recovery of motor power of the legs. He had
spasticity of both legs.
He could no longer control his bladder and bowels and sometimes
soiled himself. He had a spastic haemaplegia
involving his dominant
side and his right arm and hand were so badly affected that they
could be described as a nuisance. At best
his arm could only serve as
a prop. His right leg was also affected by the same spastic
heamaplegia. The court awarded him R22 500-00
in general
damages. The current value in 2017 would be R1 345 000-00
[10]
[34] In the case of
Swanepoel
(supra)
, the plaintiff, a 43 year old adult male had suffered a
frontal head injury, and a spinal chord injury at C5 and C6, and
fractures
of the D6 and D8 vertebraes. He was a quadriplegic from C6
down. Before the accident he was a farmer and professional hunter. He
ploughed his fields, drove the tractor and repaired his cars, and
serviced his machines and windmill. Post the accident he could
no
longer conduct his activities on the farm and could no longer hunt.
He was awarded R800 000-00 in general damages. The
current value
in 2017 would be R1 313 000-00.
[35]
Although these cases have been of some assistance, it is trite that
each case must be determined upon its own merits and no
one case is
factually the same as another.
EVALUATION
[36]
In this present matter, the salient facts which I must consider in
determining an appropriate award for general damages are
that the
plaintiff has a left arm that is useless. He is unable to bend or use
his left elbow and due to the minimal grip of the
left hand he cannot
use it to eat with. Due to the frozen shoulder his left arm is
useless and currently he cannot effectively
function with tasks
requiring medium or heavy work which require bilateral arm function.
He is currently unemployed and has searched
for work as a gardener.
[37]
Although I cannot award separate amounts for the dislocation of the
left arm, the degloving of the cubital fossa and the laceration
of
the brachial artery, collectively I must still consider the impact of
these injuries. Although mention has been made by Professor
Fleming
that the marked weakness of the left arm and hand will only improve
by functional activity, the fact remains that this
plaintiff has to
compete with able-bodied men to find a job. There is no guarantee
that a potential sympathetic employer will give
him a job in his
current condition. A further factor to consider is whether the
plaintiff will be able to undergo the treatment
in the future to
improve the functioning of the left arm and hand. There is a
strong likelihood that he may not find appropriate
work to sustain
him during the remaining 30 years that he could effectively have been
employed, had the accident not occurred.
Although the injuries
sustained by the plaintiff do not equate to an arm amputation, the
limited usage of the left arm and hand
is of serious concern.
[38]
I find the case of
Khumalo (supra)
to be in the broadest terms, close to the facts of the present case.
The injuries sustained by the plaintiff in the
Khumalo
case and the
sequelae
,
appear to be more or less similar to those of the plaintiff in the
present case. Like the plaintiff in the
Khumalo
case
(supra)
,
the present plaintiff is in his fourties, and basically is
single-handed. He too will need further interventions. The injuries
and the
sequelae
sustained by the plaintiffs in the
AA
Mutual Insurance
case
(supra)
and the
Swanepoel
case
(supra)
were more severe than the present case. In the
AA
Mutual Insurance
case
(supra)
,
the plaintiff had haemaplegia to both the right arm, hand and leg. In
the
Swanepoel
case
(supra)
,
the plaintiff was a quadriplegic. In both these latter mentioned
cases there were no prospects that the plaintiffs would improve
by
means of functional activity, which is the case in the present matter
before me. The injuries and
sequelae
in the
Mdunge
case
(supra)
and the
King
(case)
supra
,
were also more severe than the present case. The present plaintiff
does however appear to have more severe injuries as compared
to the
injuries in the
Lee
case
(supra)
and the
Smith
2011 case
(supra).
[39]
I have considered the award made in the case of
Rens
(supra)
,
however, that plaintiff was 10 years old and as stated in the case of
Marunga
(supra)
,
the older the plaintiff, the lower the general damages in comparison
to a young person sustaining a similar injury.
[11]
[40]
The plaintiff’s position is worsened to a substantial degree as
compared to the cases of
Sayman (supra),
Laubscher (supra)
and
Bester
(supra)
, in that in those mentioned
cases the plaintiff was still able to work. In comparison, in the
case of
Du Plessis (supra)
,
where the plaintiff’s arm was amputated, that plaintiff was
unable to obtain further employment. The court only awarded
the
plaintiff in the
Du Plessis
case
(supra)
,
R448 000-00 in current value.
[41] Taking into account all the
relevant factors, namely the loss of amenities, the fact that his
daily life has considerably been
changed as a result of the accident,
his disability, the need for further interventions, the consequences
of inflation and the
reduced value of money, I am of the view that an
amount of R650 000-00 would be fair and equitable compensation
as general
damages.
COSTS
[42]
On the question of costs, Advocate Kahn argued that the defendant
should pay costs on an attorney and client scale for the
15
th
and the 19
th
of June 2017. He based this on the fact that the defendant has been
aware of this claim this 2015, and has done nothing to attempt
to
resolve this matter. In addition, Professor Fleming’s
report, dated the 15
th
of September 2014, was served on the defendant as far back as the 3
rd
of July 2015. The defendant being aware of the plaintiff’s
injuries, did not investigate the matter within the legislated
6
months, and attempted to argue this matter without procuring any
reports of their own. Only when the matter was set down
for
trial on the 15
th
of June 2017, did the defendant concede liability. In addition, it
was only on the Thursday prior to commencing this trial, that
the
defendant settled the loss of earnings.
[43]
Advocate Kuta argued that the defendant and plaintiff attended a
pre-trial conference where they both failed to resolve this
matter.
An offer was made by the defendant, which was later increased, and
which was rejected by the plaintiff. It is the plaintiff
who then
sought an allocation for trial. Accordingly Advocate Kuta argued the
defendant is not liable for attorney and client costs
or for the
costs of the 19
th
of June 2017.
[44]
In evaluating the request of Advocate Kahn, this court has considered
the fact that the defendant accepted the reports handed
in by the
plaintiff, and even though it may argued that the defendant did not
procure its own reports, the fact remains they conceded
the contents
of the reports without wasting further time to obtain additional
reports. I do not find that there was serious misconduct
on the part
of the defendants. There was no attempt on the part of the defendant
to mislead this court or to unnecessarily delay
this matter. In fact
there were two offers made by the defendant which were rejected by
the plaintiff.
[45] Accordingly, in the absence of
frivolous, vexatious, reckless or malicious behaviour evident in the
defendant’s conduct,
I do not believe that this is one of the
cases where an order for costs on the attorney and client scale
should be awarded.
ORDER
[46]
In the result, I make the following order;
1.
The defendant shall pay the plaintiff the
sum of R650 000-00 in respect of the plaintiffs claim for
general damages;
2. The defendant
shall pay to the plaintiff an amount of R 276 877.65 in respect of
the plaintiffs claim for past and future loss
of income.
3. The defendant
shall be liable to pay interest on the aforesaid amount at the rate
of
10.25% p.a. with effect from the 11
th
of March 2016 until date of final payment.
4.The defendant
shall furnish the plaintiff with an undertaking in terms of Section
17 (4)
(a) of Act 56 of
1996 for the costs of the future accommodation of the plaintiff in a
hospital or nursing home, or treatment of, or
rendering of a service to him, or
supplying
of goods to him arising out of the injuries sustained by the said
plaintiff in a
motor vehicle collision on
the 1
st
of March 2014, and the
sequelae
thereof, after such
costs have been
incurred and upon proof thereof.
5.Defendant to pay
the costs of suit.
6. Payment of the
aforesaid capital amount and costs shall be payable into the trust
account of the plaintiff’s Attorneys,
namely:
R A Seedat Trust
Account
Nedbank, Lister
branch,
Account Number
[...],
Code: 197805.
7. The plaintiffs
claim is not subject to the Contingency Fees Agreement Act.
_______________________
D DOSIO
ACTING JUDGE OF THE HIGH COURT
Appearances
:
On behalf of the Plaintiff Adv Z.
Kahn
On
behalf of the Defendant Adv K. Kuta
Date Heard: 19 June 2017
Handed down Judgment 14 July 2017
[1]
Volume 1, Fourth edition, Juta, 1995 page 5
[2]
The Quantum Yearbook by Robert J. Koch 2017 p25
[3]
The Quantum
Yearbook by Robert J. Koch 2017 p36
[4]
The Quantum
Yearbook by Robert J. Koch 2017 p16
[5]
The Quantum
Yearbook by Robert J. Koch 2017 p7
[6]
The Quantum
Yearbook by Robert J. Koch 2017 p10
[7]
The Quantum
Yearbook by Robert J. Koch 2017 p11
[8]
The Quantum
Yearbook by Robert J. Koch 2017 p15
[9]
The Quantum
Yearbook by Robert J. Koch 2017 p19
[10]
The Quantum
Yearbook by Robert J. Koch 2017 p5
[11]
Marunga v
RAF 2003 5 C&B E3 – 1)