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[2010] ZAGPJHC 173
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Matladi v Road Accident Fund (36243/08) [2010] ZAGPJHC 173 (10 June 2010)
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
Case
No. 36243/08
Date:10/06/2010
In
the matter between:
PHILLEMON
KGOROSHI
MATLADI
..................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
.............................................................................
Defendant
MEYER,
J
[1] The
plaintiff in this action claimed the payment of compensation for his
damages as a result of bodily injuries that had been
sustained by him
due to a head on collision that occurred on 30 November 2007 on the
R25 freeway in which the plaintiff was a front
seat passenger.
[2] Only
the quantification of the general damages suffered by the plaintiff
was in issue by the commencement of this trial on 26
November 2009.
The issue of liability had been resolved. The plaintiff was entitled
to 100 percent of his agreed or proven damages.
It was further
agreed that the defendant would pay the plaintiff the sum of R190,
000.00 for his loss of income and that it would
provide the plaintiff
with an undertaking in terms of s 17(4)(a) of the Road Accident Fund
Act
1
to pay for his future medical treatment in respect of the injuries
sustained by him.
[3] No
evidence was led at the trial. The content of exhibit ‘A’,
which comprises medico-legal reports and medical
records,
2
was common cause between the parties. Counsel for each party
addressed me on the issue of the
quantum
of the
plaintiff’s general damages. I considered an award of R210,
000.00 to be fair and just in all the circumstances.
The order which
I made on 26 November 2009 included such award. These are the
reasons.
[4] The
plaintiff was born on 10 September 1968. The plaintiff is married to
Ms. Bonso Tswana and they have two children, namely
Gilvert who was
born in 2003 and Mahlonono who was born in 2004.
3
The plaintiff achieved standard 3 at school. His first employment
position was that of a chef at the Hungry Eye Roadhouse in
Dinwiddie,
Germiston, where he started to work in 1993. This business had
closed down by the time the plaintiff was discharged
from hospital
after the collision and he has been unable to find a job since then.
4
The plaintiff was in general good health prior to the collision and
he was not on any regular medication. There is no previous
history
of an operation and the plaintiff has not previously been involved in
an accident.
5
The plaintiff informed Dr. Marais that he also did not take part
in any sporting or special recreational activities before the
accident.
[5]
The plaintiff suffered a fracture of the maxilla or jaw facial
injuries and a ruptured right globe resulting in the loss of
his
right eye, and a whiplash injury,
6
as a result of the collision.
7
The plaintiff lost consciousness as a result of the accident.
8
It is accepted that the plaintiff was hospitalised for about two
months.
9
Following upon his discharge from hospital the plaintiff did not
consult any medical or paramedical practitioners.
[6]
The
whiplash injury
.
Dr. Marais records in his medico-legal report that the plaintiff
presents with pain in the mid to lower cervical and upper thoracic
spine. In this regard he states:
‘
The neck pain
occurs mainly in the lower part of the neck and the upper thoracic
area. It presents with a frequency of two sometimes
three days a
month. He has noticed that pain tends to be precipitated or
aggravated by inclement weather. The pain is categorised
as usually
being mild, occasionally moderate. There is no reference of symptoms
into the arms. There is reference into the trapezial
areas
particularly on the right side. Mr Matladi denies that the neck pain
is associated with any headache.’
[7] Dr.
Marais examined the cervical spine of the plaintiff. In this regard
he states:
‘
Limited
movements of the cervical spine were pain-free and easily performed.
More extensive movements entailing coupled and cardinal
motion gave
rise to discomfort and, with over pressure, mild to moderate pain.
Tenderness was present mainly in the lower cervical
and trapezial
areas bilaterally.’
[8] Radiographs
of the plaintiff’s spine were done and were reported on by Dr.
G M Calica on 3 August 2009. Dr. Marais expresses
the opinion that
‘[t]he salient features recorded by Dr Calica are those of
degenerative change’ and that ‘[t]he
radiological
findings are commensurate with a person of Mr Matladi’s age and
one often comes across people with such radiological
changes who have
no symptoms.’
[9] Dr.
Marais expresses the following opinions relating to the plaintiff’s
whiplash injury and his prognosis:
‘
From an
orthopaedic point of view Mr Matladi sustained a mild
acceleration-deceleration connective tissue injury of the cervical
spine with minimally intrusive residual symptoms.
Neck pain as well as
reference into the upper thoracic area are of course the hallmark
symptoms of this condition.
Although the examinee’s
current symptoms are of mild intrusiveness it should be remembered
that he has reached the stage of
maximal medical improvement which is
the point after which one anticipates no further spontaneous recovery
and/or restoration of
function based upon reasonable medical
probability.
It should also be noted
that there are no absolute criteria which allow one to predict long
term outcome with certainty and certain
aspects of evaluation
especially imaging modalities are fraught with inadequacies in
specificity, predictive value and accuracy.
Thus, if the examinee
is fortunate, he will probably have mild neck symptoms for the
remainder of his life. If he is unfortunate,
and bearing in mind
that he suffers from a dynamic rather than a static impairment,
symptoms may gradually increase in frequency
and severity with the
passage of time and, if he is very unlucky, they may progress to a
debilitating extent over a lifetime.
There is a small risk
that degenerative disc disease may be precipitated as a direct result
of the accident.’
[10] Dr.
Marais is of the opinion that the plaintiff has sustained ‘minor
hidden as opposed to overt damage’ to the
cervical spine and
that he, with reference to the method of the American Medical
Association, suffers ‘... from a nominal
3 % (three percent)
impairment of whole person function.’ He ‘... would
probably not have required absence from work
for more than 2 or 3
weeks’. There is, in the opinion of Dr Marais, no permanent
work disability in relation to the spine
and he does not envisage
permanent partial disability ‘... ever to exceed 5 percent
(five percent) during Mr Matladi’s
occupational lifespan.’
Dr. Marais expresses the opinion that ‘... one would have
expected the accident to have caused
severe pain at the outset’
and that the plaintiff, ‘... who has had a good cervical
outcome, suffers from mild symptoms
but he is not totally pain free.’
There is, in the opinion of Dr Marais, a ‘slight risk’
of the plaintiff’s
neck symptoms increasing significantly with
the passage of time.
[11] Dr.
Marais expresses the opinion that the ‘[m]anagement of this
type of case is generally of a long term conservative
nature’
and that there is ‘... virtually no likelihood of Mr Matladi
requiring surgical treatment to his neck as a
result of the accident
in question.’
[12] Dr.
Harold König, an opthalmologist,
refers to
the plaintiff’s
eye
injury
. The
eye was eviscerated. The plaintiff, in other words, has lost his
right eye. The plaintiff has lost all vision on the right
and this
has also reduced his binocular field of vision. Patients with
reduced binocular vision, in the opinion of Dr. König,
tend to
have more accidents, which could reduce the plaintiff’s life
expectancy. A secondary orbital implant was done in
June 2008. This
extruded. When Dr. König examined the plaintiff on 4 August
2009, he had a poor fitting ocular prosthesis.
The appearance of the
right orbit, in the opinion of Dr. König, is also cosmetically
unacceptable. There is an empty socket
syndrome on the right, which
needs to be surgically corrected, and will involve an orbital
reconstruction as well as a secondary
intra-orbital implant. There
is, in the opinion of Dr. König, a 50% chance of further tissue
absorption happening and consequently
a repeat of the orbital
reconstruction in about three to four years time. The plaintiff will
need to be fitted with a new ocular
prosthesis at three to four
yearly intervals.
[13] I
should mention that Dr. Marais expressed the opinion that the
plaintiff’s whiplash injury ‘... pales into virtual
insignificance ...’ when inter alia the plaintiff’s total
loss of vision on the right side is considered. Prof. Lurie
also
states in his medico-legal report that ‘[t]he major injury was
loss of the right eye.’
[14] The
occupational therapist, Ms. Helen Hamilton, states in her report
that the plaintiff’s diminished vision through
the loss of his
right eye leads to loss of a visual field; double vision;
diminished visual-perception skills including spatial
relations and
orientation and depth perception; difficulty with fine co-ordination
tasks; fatigue and watering eyes with tasks
requiring acute focus
and concentration of the eyes; and a concern over the cosmetic
appearance of the current ocular prosthesis
and the cost of a new
one. As regards his visual perceptual changes, Ms. Hamilton
recommends that outpatient rehabilitation with
an occupational
therapist may possibly assist the plaintiff in learning to adapt to
his disability.
[15] The
optometrist, Ms. Venessa Niemand, examined the plaintiff and
concluded that his left eye is in perfect health and visual
acuity is
6/6. He does not require spectacles or other visual aids. Her
opinion regarding the
sequelae
of the loss
of his right eye is stated as follows in her medico-legal report:
‘
As a result of
the accident Mr Matladi now does not have any normal binocular
functions and will have problems with judging distances,
climbing
steps and driving. According to Borrish, monocular vs binocular
vision results in a 25 percent decrease in the size
of the visual
field. Monocularity causes the absence of stereopsis from lack of
comparison of retinal disparity, difficulties
with eye hand
coordination, clumsiness, bumping into objects.
He suffers from
decreased VA because of lack of binocular summation as well as
impairment in spatial orientation from lack of kinaesthetic
cues
arising from convergence and accommodation.’
[16] The
plaintiff required maxillo-facial and dental surgery as a result of
the
fracture
of his maxilla or jaw
that he had sustained in the collision. It appears from the
medico-legal reports of Dr. Marais, of Ms. Hamilton and of Dr.
Kellerman
that the plaintiff suffers from residual pain in the jaw.
[17] Both
counsel referred me to past awards compiled by
Corbett and Buchanan
or by
Corbett
& Honey: The Quantum of Damages in Bodily Injury and Fatal
Injury Cases
.
The plaintiff’s counsel referred me to
Southgate
v Road Accident Fund
,
10
Laubscher and
Another v Commercial Union Assurance Co. of S.A. Ltd (1)
(ECD),
11
Prosser NO v
Commercial Union Insurance Company of S.A. Ltd
(WLD)
12
,
Mthembu v
Minister of Law & Order
(DCLD),
13
and to
Mdunge
v Multilateral Motor Vehicle Accidents Fund
(NPD).
14
The defendant’s counsel referred me to
Mabatapasi
v John
(ZHC)
15
and to
Botha
v Santam Beperk
(TPD).
16
[18] It
will serve no useful purpose to discuss each previous award in any
more detail and to elaborate on the differences and similarities
of
each of those cases. They, on the facts and circumstances of this
case, provided a general and useful yardstick that assisted
me in
arriving at an award ‘... not substantially out of general
accord with previous awards in broadly similar cases.’
17
[19] In
arriving at the conclusion that an amount of R210, 000.00 would be a
fair award for the plaintiff’s general damages,
I took into
account all the circumstances of this case, the awards made in the
past, and the decreasing value of money.
P.A.
MEYER
JUDGE
OF THE HIGH COURT
10
June 2010
1
See: Act No 56 of 1996.
2
See: It is entitled
‘Index
C: Expert Notices, Medico-Legal Reports & Expert Minute
relevant hereto and Medical Records’
.
3
See: Medico-legal report of the
industrial psychologist, Dr. AM Kellerman.
4
See: Medico-legal report of the
orthopaedic surgeon, Dr. Louis Marais. It appears that the
plaintiff has given different information
to the experts regarding
his career. See: Medico-legal report of Dr. Kellerman.
5
See: Medico-legal report of Dr. Louis
Marais. Dr. Kishen Dayal, an ear, nose and throat surgeon, also
recorded in his medico-legal
report that the plaintiff did not have
any medical history and has never had any surgery prior to the
accident in question.
6
See: An acceleration-deceleration
connective tissue injury of the cervical spine.
7
It also appears from the medico-legal
reports that the plaintiff complained of poor hearing on the right
following the accident.
Dr Kishen Dayal, an ear, nose and throat
surgeon, confirms that clinically the plaintiff had a right-sided
conductive hearing
loss. He states in his medico-legal report that
an audiogram investigation confirmed that the plaintiff had a mild
conductive
hearing loss on the right. His hearing loss, in the
opinion of Dr. Dayal, is not as a result of the accident, but rather
as
a result of a condition which is unrelated to the accident. This
opinion is not gainsaid.
8
See: Medico-legal report of the
maxillo-facial and oral surgeon, Prof. Russel Lurie.
9
The plaintiff informed the orthopaedic
surgeon, Dr. Louis Marais, that he was hospitalised for about two
months. Dr. Marais states
in his medico-legal report that although
there was no corroboration of the dates ‘there seems to be no
reason to disbelieve
him’.
10
Vol. 5 at p C3.71. An award of R20,
0000.00 was made on 16 August 2001 to an adult married female in
arbitration proceedings
for a whiplash injury of the neck, which was
typified as a mild injury.
11
Vol. 2 at p. 460. An award of R1, 250.00
was made in 1976 for a jaw fracture. A minor had sustained a
fracture of the mandible
in three places with
sequelae
that were much more serious
than those as a result of the plaintiff’s jaw fracture in the
present matter.
12
Vol. 4 at p. A4-130. An award of R100,
000.00 was made on 16 November 1994 to a 33 year old person who was
hospitalised for more
than six months, who underwent five operations
(three of them cranial), and who suffered a severe head injury,
fracture of the
skull, jaw, and nose with
inter
alia
resultant blindness in one
eye; meningitis developing; and typical frontal lobe syndrome with
changed personality, including verbal
aggression, lack of insight,
loss of drive, initiative and ability to plan ahead or to execute
tasks, and loss of concentration.
13
Vol. 4 at p I3-1. An award of R55,
000.00 was made to a 42 year old artisan on 11 September 1991 for
the complete and permanent
loss of vision in the right eye as a
result of a shotgun pellet fired by a police officer.
14
Vol. 4 at p J2 p 145 (an award of R180,
000.00 was made on 23 September 1998 to a 28 year old unmarried
scholar and part-time
farm labourer who suffered multiple injuries
and after-effects including that of a left upper limb which
condition was equivalent
to that of an amputation of the arm and
shoulder joint, extensive intra- and extra-ocular injuries and
irreparable damage to
the retina of the left eye causing permanent
loss of all useful vision in the eye and requiring safety spectacles
at all times
to protect the remaining right eye, and facial
lacerations embracing the left upper lip, left cheek below the eye,
and vertical
wound extending from the left upper eyelid to the brow
with significant scarring.
15
Vol 3 at p 314. An award of Zimbabwean $
6, 000.00 was made on 1 September 1982 for the destruction and loss
of the right eye
as a result of a blow with an axe that had also
caused a deep laceration over the right upper eyelid and eyebrow,
inter alia
resulting
in the plaintiff in that case who was left without binocular vision
and who, prior to the accident was a keen participant
in tennis,
basketball and soccer, to have difficulty in focussing on the ball
being used in these games and was left able only
to play soccer at a
reduced level of skill.
16
Vol 5 at p B4-39. General damages in the
sum of R125, 000.00 were agreed and made an order of the court on 5
February 1997 in
circumstances where a 20 month old baby, who was 8
years at the time of the trial, suffered brain damage, including
damage to
the frontal lobe arising from a depressed fracture of the
skull; fractures of the left eye-socket and maxilla; traumatic
dislocation
of the left eye with resultant total loss of vision in
that eye and requiring a prosthesis; soft-tissue injuries to the
left
eyelid, left forehead, nose bridge and left corner of the
mouth; and injuries to the teeth.
17
See:
Protea
Assurance Co. V Lamb
1971 (1)
SA 530
(A), at p 536A.