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[2010] ZAGPPHC 625
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Leez v Road Accident Fund (24915/2008) [2010] ZAGPPHC 625 (18 June 2010)
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE NO:
24915/2008
DATE: 18 JUNE
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% 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% 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 plaintiffs 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 plaintiffs 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 general 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. [...],
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 % 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.
T M 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