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[2010] ZAGPPHC 278
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Mavimbela v Road Accident Fund (43669/2008) [2010] ZAGPPHC 278 (8 June 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG HIGH COURT)
CASE
NO.: 43669/2008
DATE:
08/06/2010
In
the matter between:
M
L MAVIMBELA
…..................................................................................................
PLAINTIFF
vs
ROAD
ACCIDENT
FUND
......................................................................................
DEFENDANT
JUDGMENT
WEBSTER
J
1.
The plaintiff, an adult male, employed as an administrative official
in the Department of Public Works, was injured in a motor
collision
on 23 December 2006. He has instituted an action for damages arising
from the injuries and the consequences arising from
such
injuries,against the defendant in accordance with the provisions of
section 17 of the Road Accident Fund Act no. 56 of 1996
("the
Act").
2.
Various reports by experts were exchanged between the parties. In
consequence of the contents of such reports the parties have
reached
agreement on the following issues, namely (i) that the defendant
admits 100% liability for the plaintiff's proven damages;
(ii)
the defendant will furnish the plaintiff with a certificate in terms
of section 17(4)(a) of the Act for the plaintiff's future
medics:
treatment and intervention; (Hi) the reports of the experts exchanged
by the parties are admitted and the contents thereof
are further
admitted as evidence; (iv) the only issues for determination by this
court are the (a) general damages suffered by
the plaintiff, and (b)
the loss of future earnings by the plaintiff in consequence of early
retirement which the plaintiff, according
to the experts, will have
to go on.
3.
It is common cause that the plaintiff suffered two major injuries in
the collision when the vehicle which he was driving collided
with
another vehicle. These injuries are (i) a soft tissue whiplash injury
to the neck, and (ii) a soft tissue injury to the medial
collateral
ligament of the left knee.
4.
The plaintiff attended a general practitioner for his injuries only
after three weeks of the incident. He was given pain killers
and
referred to an orthopaedic surgeon: he, however, did not attend the
said surgeon, as advised.
5.
Prior to the collision the plaintiff participated in soccer, cricket
and played pool. His leg still worries him and he is no
longer as
active in physical sport as he was before the collision. He
experiences pain in the neck when he turns it and it is worse
when he
turns in the night.
6.
His left knee is still painful on a daily basis. There is also pain
in the right knee at night. This injury, however, is not
relevant for
the purposes of this claim as it was sustained in another collision
which occurred prior to the one which forms the
subject matter of
this case.
7.
There are two main medico-legal reports that were handed in Dy the
parties. One of these was drawn up by Dr Capaert, whose report
is
dated 23 December 2006. He examined the plaintiff on the instruction
of the attorneys representing the plaintiff. The second
report is by
Dr Steyn who examined the plaintiff on the instructions of the
defendant: this report is dated 26 April 2010. It will
be observed
that the latter report was done three years and four months after the
report by Dr Capaert and for that reason it is
more updated than that
of his counterpart. These doctors are agreed on the history of the
matter and they are equally agreed on
the sequelae of the injuries
suffered by the plaintiff. Both concede that the plaintiff will
continue to experience pain on a daily
basis on the site of the soft
tissue injuries. They also agree that with age various complications
are likely to occur. The prognosis
by Dr Steyn is that the
plaintiff's knee will require intervention in the form of a
arthroscopy and examination under anaesthesia
and repair of the
ligaments that are damaged; there is a possibility that the left knee
will require replacement as the plaintiff
gets older and that the
cervical spine will need conservative treatment to relieve the
discomfort and possibiy may require surgery
in the future.
8.
According to the defendant's expert the probabilities of the
aforesaid medical intervention is 50 percent in respect of the
knee
replacement and 20 percent in respect of the cervical surgery. The
aforesaid treatment and the general degeneration in the
plaintiff's
health also have an effect on his possible early retirement. Two
different scenarios have been depicted by the two
specialists. The
percentage of this occurrence according to the plaintiff's expert is
10 percent which translated into time, is
approximately one to two
years before the attainment of the age of 65. According to an
actuarial report which was also handed in
by the parties, the future
loss of income that is likely to be suffered by the plaintiff
retiring at the age of 63 is the sum of
R71 698. This is the figure
that has been agreed upon by the parties as well. A contingency
allowance has to be made in respect
of the future loss of income as a
consequence of the premature retirement by the plaintiff.
9.
It was submitted by Mr. Marx, who appeared for the plaintiff, that
based on the prognosis of a 50 percent probability of the
knee
replacement, the plaintiff would be entitled to half of R71 698. It
was argued on behalf of the defendant that the plaintiff
should be
awarded 10 percent of that figure, the 10 percent having been the
percentage which was the estimate of Dr Capaert,
the plaintiffs
expert. Be that as it may, the court heard further argument with
regard to this point and that is that the plaintiff,
in its
particulars of claim, claimed RIO 000 under this head and did not
amend its claim on the basis of the actuarial report which
plaintiff
counsel referred and relied upon. I snail revert to this issue later
in this judgment.
10.
With regard to the general damages the plaintiff's expert has
indicated that the plaintiff suffered acute pain directly after
sustaining the injuries in the collision. In this regard he states
"dit kan verklaar word in terme van die meganisme sowel
as die
behandeiing wat die pasient ontvang net". He then goes on to say
that that acute pain would have diminished after about
six weeks of
the occurrence and for the next six months the plaintiff would have
suffered sub-acute pain as his injuries were healing.
He then further
states that the plaintiff is left with chronic pain which would have
commenced about six months after sustaining
the injuries. This is tne
pain that still persists to date hereof and will, in all probability,
and in the court's view, continue
into the future.
11.
Dr Steyn deals with the present complaints of the plaintiff. He notes
that under the heading "Pain and Suffering - This
was moderate
initially and then became sightly worse when he went to see his
doctor for the check-up. It was not severe enough
to stop him from
driving or carrying on his activities." It is significant that
Dr Steyn sets out the plaintiff's present
complaints which include
"pain to the neck when he turns it or when he goes to the right;
that the left knee is painful on
a daily basis and is worse when he
has to climb stairs. There is also pain in the knee at night. He
struggles to play soccer now.
The knee is painful when he has to
straighten it after it has been bent for any length of time." It
is significant that the
doctor accepts that the plaintiff uses
different pain medication tablets and traditional healing methods and
perhaps significantly
does not in any way suggest that the
plaintiff's present complaints, many years after the incident, are a
form of malingering or
that they are exaggerated or that they are not
consistent with the injuries that the plaintiff suffered.
12.
In address Doth counsel quoted copiously from the well-known works
Corbett and Buccanan on "Quantum of Damages". It
is not
necessary that the various authorities that both counsel referred the
court to be repeated. The court's approach is that
the evidence of
the plaintiff as well as the various experts has to be viewed in
totality. It was argued that the plaintiff, by
not keeping an
appointment with an orthopaedic surgeon, that his injuries may have
become exacerbated thereby and likewise that
the further pain that he
suffered and still complains of may be as a direct consequence of his
failure to attend the orthopaedic
surgeon that he was referred to.
This, in my view, is a misplaced argument because the specialist that
the plaintiff was referred
to was an orthopaedic surgeon. Nowhere was
it ever suggested that the injuries that the plaintiff suffered in
consequence of the
collision in any way involved a fracture or
injuries which would have necessitated curative treatment. It may
very well be that
the son tissue injuries that the plaintiff
sustained might have been diagnosed by the orthopaedic surgeon but
whatever treatment
would have been prescribed for the plaintiff's
condition would most certainly not have been the conventional type of
immobilization
of appendages. There has been no suggestion from the
defendant and none lends itself, in the court's view, to the
conclusion that
immobilizing any appendage or treatment by an
orthopaedic surgeon, would have averted the residual pain of the soft
tissue that
the plaintiff suffers from. Indeed, the only injuries
which required, in the court's view, intervention by an orthopaedic
surgeon
are those relating to the motor collision which the plaintiff
had suffered years earlier and which are clearly distinct from those
suffered in the collision which is the subject of the present case.
13.
The plaintiffs injuries are, in the court's view, clearly serious and
require, as has been set out by experts, surgical intervention
in the
near future. The plaintiff will still undergo pain in consequence of
such intervention. Not only with that be the position,
neither of the
experts consulted ventured to suggest that pain, inconvenience and
incapacitation that the plaintiff complains of
will be eradicated and
that the plaintiff will recover completely from the maladies he
currently suffers from.
14.
Having regard to ail the circumstances in this matter, it is this
court's considered view that the plaintiff suffered severe
injuries
and will continue to suffer from the effects thereof for some years
to come and that there is no guarantee of the plaintiff
reaching a
stage in his life where he will not be subjected to pain arising from
the injuries and any future intervention. It is
this court's
considered view that the plaintiff is entitled to general damages in
the amount of R175 000.
15.
In the course of preparing the judgment it occurred to the court that
plaintiff's counsel may have had some mental relapse during
his reply
regarding the limit of RIO 000 to the plaintiff's future loss of
income. It appeared quite strange that plaintiff's counsel
wouid have
failed to even attempt to seek an amendment of the plaintiff's
particulars of claim in terms of Rule 28(10) of the Uniform
Rules of
Court. Reference had been made to an actuarial calculation of such
damages in plaintiff's opening address to the court
and Mr Marx had
addressed the court specifically on the figure of R35 849.00 without
the actual report being handed in. It appeared
to the court that this
could have resulted from some mental relapse on the part of both
counsel. This issue was taken up in writing
with both counsel who
were invited to submit written argument on the matter.
16.
On 2 June, 2010, Mr Marx approached the court in chambers with a
notice in terms of Rule 28 amending paragraph 8 of the plaintiff's
particulars of ciaim to read as follows:
"8.
In
die vooropstelling net die Eiser skade gely in die bedrag van
R590
849.00 welke bedrag soos volg saamgestel is:
8.1GERAAMDE MEDIESE
KOSTE
..............................................
R5
000.00
8.2GERAAMDE
TOEKOMSTIGE MEDIESE KOSTE
…............
R300
OOO. 00
8.3ALGEMENE
SKADEVERGOEDING
.......................................
R250
OOO. 00
8.4GERAAMDE
TOEKOMSTIGE VERLIES AAN
INKOMSTE
........................................................................................
R35849.00
TOTAAL
.............................................................................................
R590
849.00"
17.
He assured the Court that he had discussed the amendment with Mr Uys
who had indicated to him that he had no objection to the
amendment
being granted to reflect the plaintiff's future loss of income as R35
849.00, effectively abandoning his submission that
the plaintiff's
claim under this head was limited to RI0 000.
18.
Where parties to a matter expressly agree to an amendment of a
pleading or where an application for such amendment Is made before
judgment is delivered the court will, unless prejudice would result
from such amendment, grant such amendment. In this case the
actuarial
report had been available to the parties before the trial commenced
and, from the court's understanding, was to have
been handed in by
consent. Based on the consensus of both counsel there is clearly no
prejudice to the defendant. The amendment
was accordingly granted.
19.
The court is satisfied that the plaintiff's future loss of income
amount to R35 849.00.
20.
Judgment is accordingly entered for the plaintiff in the sum of R210
849 (Two hundred and ten thousand eight hundred and forty-nine
Rand)
plus costs of the action which will
include
the costs of the experts.
G.
WEBSTER
JUDGE
IN THE HIGH COURT