About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2010
>>
[2010] ZAGPPHC 276
|
|
Lee v Road Accident Fund (24915/2008) [2010] ZAGPPHC 276 (18 June 2010)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 24915/2008
DATE:18/06/2010
In
the matter between:
LEE
Z
...............................................................................................................................
Plaintiff
and
ROAD
ACCIDENT
FUND
............................................................................................
Defendant
JUDGMENT
MAKGOKA,
J
[1]
This is an action for damages in terms of the Road Accident Fund Act,
56 of 1996 ("the Act"). The plaintiff, then
19 years old,
sustained certain bodily injuries as a result of a motor vehicle
collision which occurred on 24 March 2007, when
she was a passenger
in one of the two vehicle involved in the said collision.
[2]
The defendant has conceded that the plaintiff is entitled to 100
percent of her proven damages. The parties have also agreed
that the
defendant will furnished the plaintiff with an undertaking in terms
of section 17 (4) (a) of the Act, for 100 percent
of the costs of the
future accommodation of the plaintiff in a hospital or nursing home
or treatment of or rendering of a service
to her or supply of goods
due to the injuries sustained as a result of the collision.
[3]
Accordingly, the only issue in dispute and for my determination, is
the quantum of general damages for pain, and suffering,
loss of
amenities of life, and disability.
[4]
Following the collision, the plaintiff was taken by ambulance to the
Barberton Medi-Clinic where her wounds were sutured. After
stabilization, she was transferred to the Nelspruit Hospital, were
she was taken to theatre the following morning, where the repair
of
her fractures was performed by Dr. C W Goosen. She remained in
hospital for approximately 6 days after which she was discharged.
At
the time of her discharge she was wearing a brace on the right leg
and using a crutch in her right hand.
[5]
The injuries sustained by the plaintiff are set out in the operation
note of Dr. CW Goosen, who determined that the plaintiff
had suffered
a fracture of the elbow (intra articular fracture between the
captilellum and trochlea with splitting in the coronal
plane of the
capitellum, as well as 3-part fracture of the right knee-cap. She
also suffered an open wound on the head, multiple
bruises and cuts,
left knee injury, back and neck injuries.
[6]
Dr. GA Versfeld, an orthopaedic surgeon, in his report dated 22
January 2010 following his examination of the plaintiff on 3
December
2009, made certain findings with regard to the injuries sustained by
the plaintiff their treatment and consequences.
[7]
Dr. Versfeld reported that the plaintiff sustained a fracture of the
distal end of her left humerus involving the left elbow
joint. The
fracture had healed with evidence of damage to the joint surface of
the distal humerus. Clinically the plaintiff had
a reduced range of
elbow movement with fine crepitations present on moving the left
elbow. Dr. Versfeld was of the opinion that
the future treatment of
the plaintiffs left elbow symtoms was likely to include the taking of
anti - inflammatory agents, physiotherapy,
visits to an orthopaedic
surgeon and the occasional taking X- rays. It was possible, according
to Dr. Versfeld, that the plaintiff
will require a total elbow
replacement in approximately 30 years.
[8]
With regard to the right knee, Dr. Versfeld found that the plaintiff
had sustained a comminuted fracture of her right patella,
which was
treated by internal flexion. She had an effusion present in her right
knee and had wasting of her right calf muscles
when compared to the
left. There was also a fixed flexion deformity of 4 degrees of her
right knee, with evidence of medical collateral
and cruciate laxity
of her right knee. The plaintiff needed removal of internal fixation
present in the right patella. Dr. Versfeld
was of the opinion that in
approximately 20 years, it is probable that the plaintiffs symptoms
would deteriorate to the point where
surgical intervention of a total
knee replacement was likely.
[9]
Dr. Versfeld's prognosis of the plaintiff's left knee is clinical
evidence of retro-patellar crepations. The knee was warm,
with
evidence of an effusion. Future treatment was likely to include the
taking of anti-inflammatory agents, physiotherapy, the
wearing of
patella support and visits to an orthopaedic surgeon. In the longer
term (approximately 25 years it was probable that
the plaintiff's
symptoms will deteriorate to warrant a total knee replacement.
[10]
With regard to the back injury, Dr. Versfeld found tenderness over
the L5/51 area and evidence of muscle spasm to the left
of her lumber
spine, as well as tenderness to the right of her right lumber spine.
She had a reduced range of her lumber spinal
movements with pain on
extension and lateral flexion to the left side. Her ability to stand
on tip toe on the right side was reduced
when compared to the left.
Radiologically there was evidence of narrowing of the L4/5 disc.
Future treatment was likely to include
the taking of
anti-inflammatory agents, physiotherapy, the wearing of a lumber
support, facet blocks and visits to an orthopaedic
surgeon. Posterior
spinal fusion was indicated as a possibility in approximately 30
years.
[10]
Dr. Versfeld found the plaintiff to have had a reduction of rotation
to both sides and pain on movements of her cervical spine,
with
evidence of muscle spasm over the back of her neck and tenderness and
evidence of muscle spasm over the base of her neck on
the right side.
Radiologically there was evidence of an angular disturbance at C 4/5
level. Long term prognosis was that the plaintiff
possibly would
require an anterior cervical infusion, in the next 25 years,
entailing hospitalization for a period of approximately
8 days.
Evidence
[11]
The plaintiff testified on her present complaints, which can be
summarized as follows: inability of the left arm which is also
to
straighten or flex, painful in cloudy or rainy weather, sensitive
fixative, scarring, weakness, pain below the elbow lasting
up to half
an hour subsiding gradually. She also experienced pain negotiating
steps and during inclement weather, swelling and
stiffness of the
right knee during hot weather, inability to walk fast for longer than
10 minutes and slowly or sit longer than
30 minutes, instability
during walking and running, necessity to sleep with a pillow between
knees, inability to do four point
kneeling or sit cross-legged,
grinding sensation in the knee, scarring and pain during kneeling.
From the photos of the knee admitted
in evidence, there is a visible
difference in size between the right calf and the left, and the right
thigh and the left.
[14]
She also complained of painful scarring and abrasions to the right
ankle; recurrent back ache caused by walking, sitting and
sleeping;
constant neck pain, being a burning sensation lasting up to 10-20
minutes, as well as stiffness in the neck when working
on a computer.
[15]
Mr. Uys, counsel for the plaintiff, submitted that an amount between
R300 000- R350 000.00 in respect of general damages, under
the
circumstances, would be appropriate. Mr. Leballo, for the defendant,
submitted that an amount of R 179 000.00 would be sufficient.
[16]
Arriving at an appropriate award for general damages is never an easy
task. The difficulty in placing monetary value on pain
and suffering,
loss of amenities of life and disability, is described by Gauntlett,
the learned author in Corbett, The Quantum
of Damages vol 1, 4ed, at
pages 4-5 as follows:
"In
determining the award of damages to be made under the heading general
damages there are of course no scales upon which
one can weigh things
like pain and suffering and loss of amenities of life, nor is there a
relationship between either of them
and money which makes it possible
to express them in terms of money with any approach to certainty. The
broadest genera] consideration
and the figure arrived at must
necessarily be uncertain, depending upon the judge's views of what is
fair in all the circumstances
of the case. (Sandler v Wholesale Coal
Suppliers Ltd
1941 AD 194
at 199.)"
[17]
The purpose of an award for general damages is to compensate a
claimant for the pain, suffering, discomfort and loss of amenities
of
life to which her or she has been subjected as a result of the
particular injuries that were sustained. Although the determination
of an appropriate amount in this regard is largely a matter of
discretion, some guidance can be obtained by having regard to
previous
awards made in comparable cases. Past awards in comparable
cases afford a useful guide in determination of general damages. The
process of comparison is not a meticulous examination of awards, and
should not interfere upon the court's general discretion (Protea
Assurance v Lamb
1971 (1) SA 530
(A) at 535H-536A).
[18]
The previous awards should obviously be updated to present day values
in order to properly serve as a basis for comparison.
In making such
an adjustment, one should be mindful of the fact that, whereas it is
permissible to have regard to the general depreciation
in the value
of our currency, by utilising the consumer price index (CPI) a
slavish adherence thereto, may lead to undesirable
results.
[19]
In Road Accident Fund v Marunga
2003 (5) SA 164
(SCA) at 170F, the
court held with approval from Wright v Multilateral Motor Vehicle
Accident Fund 1997 (4) C&B E3-3 (N) that
there is a tendency for
awards to be higher than in the past. This, the court held, was a
natural reflection of the changes in
society, the 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 other countries.
[20]
I now proceed to consider some relevant and comparable awards made
previously. The updated amounts are per the Consumer Price
Index
formula adopted by Robert Koch, Quantum Yearbook 2010. All the cases
referred to, (except Marunga), are referred from Corbett
and Honey
The Quantum of Damages in Bodily and Fatal Injuries Cases Vol 5.
[21]
In Walker v SA Eagle 1983 (3) C & B the sum of R6 500.00 as
general damages in 1981, pursuant to fractures to the right
ankle
foot and four ribs, and certain soft tissue injuries, and minor
laceration and abrasions. The plaintiff had been left with
a deformed
right foot which collapsed inwards when bearing weight, as a result
of damage to the ligaments. He too required arthrodesis
and a further
operation to remove certain screws in his foot. He had to give up
soccer and tennis, but could play golf instead.
The value of his
award in today's terms is R96 000.00.
[22]
In SA Eagle Ins Co Ltd v Cilliers 1987 (3) C & B 716 (A), 53 year
old farmer sustained a comminuted fracture of the right
foot in the
vicinity of the ankle joint and disruption of the talus bone. His
foot was immobilized in plaster cast and he was left
with a
malalignment. A triple arthrodesis was performed which left with a
so-called "clunk" or "block' foot. He
walked with a
limp and could no longer engage in heavy physical work, or run or
walk for any length of time. He had also sustained
a soft tissue
injury to the neck which was accompanied persistent headaches, pain,
severe depression and adoliction to analgesics.
He was awarded R15
000.00 in 1987, which, is worth R96 000.00 today.
[23]
In Kerspuy v Road Accident Fund 2002 (5) C & H E 7-1, a 30 year
old general assistant in hair- dressing salon suffered
damages to
articular cartilage of the left knee. X-rays revealing no fracture or
chronic damages to kneecap, but diagnosis of chodromalacia
of left
patella being made. This caused pain when standing or walking too
long, running squatting, climbing etc. She was awarded
R35 000.00 in
general damages in 2002. In today's terms this amounts to R 56
000.00.
[24]
In Houston McMillan v Marine & Trade Insurance Co Ltd &
Another 1980 (3) C & B injuries of the skull check bone,
formur,
ankle and foot. Small fragments of the bones of the check had to be
wired individually in an open operation. The plaintiff
was scarred
and disfigured. The size and position of her right eye was the most
conspicuous. There was good recovery from her orthopaedic
injuries
with no residual disability. In respect of disfigurement alone she
was awarded the of R20 500.00 in 1980, which translates
to an amount
of R349 00.00 today.
[25]
In Webster & Another v Chivhiya 1995 (3) C & B 490, a girl
sustained a swollen head with facial injuries, cuts and
gashes over
the hairline, a badly bruised and perforated eardrum and a fractured
check bone. She also had deep gashes on the left
knee and leg and
severe bruising. She stated that she had been in severe pain for
weeks, unable to sleep on her left side and deaf
for two weeks. Two
years later she still found the ugly scars on her face and leg
embarrassing. In respect of her general damages,
she was awarded
R2000, 00 in 1995, which this amounts to R18 000.00 today.
[26]
In Titus v Road Accident Fund 2003 (5) C & H E 7-9, the plaintiff
(age not stipulated,) suffered an indeterminable internal
damage
behind the knee-joint leading to persistent pain which commenced from
after the accident and at times became so severe as
to cause the
plaintiff to give up remunerative jobs, avoid the physical aspects of
training courses and take excessive sick leave.
He was awarded R80
000.00 for general damages in 2003, which amounts to R120 000.00
today.
[27]
In Duduma v RAF 1999 (4) C & D E4-5 (Bisho), a 38 year old manual
labourer sustained a segmental fracture of the left one
clavicle. His
leg was in plaster cast for some 2 months and he was left with a
bowed deformity. His leg was some 3cm shorter than
the right and he
was unable to walk or stand for any length of time. He had developed
an arthritic condition and would require
an arthrodesis. The fracture
to the clavicle would never heal and precluded him from lifting heavy
objects or being employed as
a heavy labourer. He was awarded R35
000.00 general damages in 1999, which is worth R68 000.00 in today's
terms.
[28]
Although these case have been of some assistance, it is trite that
each case must be adjudicated upon its own merits and no
one case is
factually the same as another. However, I find the Marunga case to be
in broadest terms, close to the facts of the
present case. The
injuries sustained by the plaintiff in Marunga and their sequelae
though, appear to be more severe than those
of the plaintiff in the
present case. On the other hand, the present plaintiff appears to
have more severe injuries as compared
to those in Webster.
[29]
The plaintiff in Marunga, was, like the plaintiff in the present
case, 19 years old at the time of the accident. He sustained
a
fracture of the left fermur, a soft tissue injury to the chest and
sundry bruises on the forehead, left are and left knee. He
was
hospitalized for some 5 months, of which 2 were spent with his leg in
traction and in a plaster cast. After he was eventually
discharged he
was mobilized on crutches for about 5 months. Some 4 years after the
accident he was readmitted to hospital where
the plate and screws in
his leg were removed. For some 4 years after the accident he had to
receive medical treatment at various
hospitals.
[30]
As a result of the injuries he could no longer play soccer or volley
ball. He had difficulty with lifting heavy objects and
could not
stand for any length of time. He experienced pain in the leg when
walking for long distances. His left leg had settled
in on a deformed
position and was some 3,5 cm shorter than the right and the
orthopaedic surgeons testified that he needed to undergo
two further
surgical procedures in the future which would result in him again
suffering a fair amount of pain and loss of mobility
for a number of
months.
[31]
He was awarded R375 000.00 in the High Court for general damages. On
appeal to the Supreme Court of Appeal (SCA) by the Road
Accident
Fund, the award was set aside and substituted with an award of R175
000.00, which is R304 000.00 today. The trial court's
judgment was
delivered on 6 September 2001. The altered award by the SCA must be
adjusted from the trial court's award, i.e. 6
September 2001 because
the appeal court substitutes its finding for the trial court's award
(General Accident Versekerings Mpy
v Bailey
1988 (4) SA 353
(A)) at
360 C-D. With the adjustment the award in Marunga would have been
R219 000.00 in 2001.
[32]
In the final analysis, I must make an award that is just and fair, on
the particular facts of the present case. The plaintiff
has sustained
multiple injuries including a major injury to her right knee, with a
fractured patella, moderate injury to her left
knee; neck and back
injuries; multiple cuts and bruises. She has to, for the rest of her
life, bear residual unsightly scarring,
especially on her left arm,
as well as deformed knee and thigh respectively, which she should
find acutely embarrassing, especially
given her age and gender. She
testified that she does not wear short-pans anymore.
[33]
Prior to the accident, the plaintiff was in good health. She is left
handed. Now she is incapacitated in that very hand. She
may no longer
participate in any sporting activity on any meaningful basis. She
used to be a long distance runner at school, although
she did not
participate in any sporting activity at university.
[34] Like the plaintiff
in Marunga, the plaintiff in the present case is a young adult, who,
over and above the surgical procedures
that she already has been
subjected to, is likely to endure further procedures (although in her
case, only the removal of internal
fixation in the right patella
needed immediate attention).
[35]
The accident occurred in the full bloom of youth. She is presently 21
years of age and is confronted with possible extensive
future surgery
comprising most of her limbs. The symptoms of her multiple injuries
continue to date. Her symptoms have rendered
her restricted to
sedentary type work with the prospect of probably suffering a
truncation of even a sedentary type working career.
[36]
Taking into account all the relevant factors, I am of the view that
an amount of R250 000.00 would be adequate compensation
as general
damages. The defendant has tendered an undertaking in terms of
section 17 (4) (a) of the Act. Costs should follow the
cause. The
costs should include the costs of preparation of Dr. Versveld's
report.
[37]
I therefore make the following order:
1.
The defendant shall pay the capital amount of R 250 000.00 as
compensation for general damages to the plaintiff.
1.1
The amount of R250 000.00 shall be payable directly to Mills &
Groenewald Attorneys with bank account particulars as follows:
Mills
& Groenewald Trust Cheque Account, Absa Bank, Vereeniging,
Account Nr. 4042179809, Brach code: 630 137, Reference: Z LEE.
1.2
The amount of R250 000.00 shall be payable within 14 days from date
of this order. No interest will be applicable but in the
event that
defendant is in default with payment then
mora interest 15,5
percent will be applicable.
2.
The defendant shall furnish the plaintiff with an unlimited
undertaking in terms of Section 17(4)(a) of the Road Accident Fund
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 her or supplying of goods to her arising out of the
injuries sustained by the plaintiff in the motor vehicle collision
on
24 March 2007 and the sequelae thereof, after such costs have been
incurred and upon proof thereof.
3.
The defendant is ordered to pay the costs of the action, which costs
shall include the costs for the preparation of the report
of Dr. G A
Versfeld.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
HEARD : 16 FEBRUARY 2010
JUDGMENT
DELIVERED : 18 JUNE 2010
FOR
THE PLAINTIFF : ADV P UYS
INSTRUCTED
BY:-.MILLS & GROENEWALD, VEREENIGING
AND
WALTER, NIEDINGER & ASSOCIATES, PRETORIA
FOR
THE DEFENDANT : ADV M N LEBALLO
INSTRUCTED
BY : T M CHAUKE ATTORNEYS, PRETORIA