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[2010] ZAGPPHC 167
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Spinola v Road Accident Fund (29013/2009) [2010] ZAGPPHC 167 (13 October 2010)
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
number: 29013/2009
Date
heard: 12 August 2010
Date
of judgment: 13 October 2010
In
the matter between:
SPINOLA,
L
.....................................................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
............................................................................
DEFENDANT
JUDGMENT
Hiemstra
AJ
[1]
The plaintiff was a front seat passenger in a motor vehicle that was
hit on its left side by the insured vehicle at an intersection
in
Pretoria. She sustained certain injuries as described more fully
below. This judgment concerns only the quantum of the damages
that
she has suffered in the collision.
[2]
The plaintiffs injuries were the following:
1.
Chest
injury
An
undisplaced fracture of the body of her sternum
2.
Facial
injuries
A
puncture wound to the inner aspect of her lower lip on the left and
an abrasion on the left side or her chin.
3.
Blunt
abdominal injury
Bruises
over her right hypochondrium.
4.
Left
hand injury
Bennett's
fracture to the base of the first metacarpal bone on the left and
fracture to the base of the proximal phalanx of her
thumb.
5.
Neck
injury
She
became aware of neck pain after she was discharged from hospital.
6.
Post
traumatic stress disorder
She
becomes very anxious when driving, especially in the dark. She
develops a tremor and severe headache when she enters an
intersection.
[3]
She was taken to the Little Company of Mary Hospital from the scene
of the collision. An intravenous line was placed and she
was
resuscitated and thereafter admitted to a general ward. On the
following morning an orthopaedic surgeon stabilised her hand
fractures by internal fixation with K-wires, followed by external
stabilisation with a Plas-
ter
of Paris cast. The sternum fracture was treated conservatively. She
returned to work after two weeks of convalescence at home.
She
received physiotherapy for a cervical whiplash injury and
mobilisation and stretching exercises for her injured thumb.
[4]
The plaintiff is a 54 year old widow and the owner of a butchery in
Pretoria-West, which she purchased in 1992. Her two sons
assisted her
in the butchery and the youngest son is employed full-time in the
butchery. She has four other employees. Before the
accident, she did
everything in the butchery, including cutting of meat and fish,
making packages of meat and fish, driving to
Garankuwa early in the
mornings to collect fresh meat. In addition to meat, the butchery
sells various other products, such as
dry beans, rice, potato chips,
maize products, etc. She purchases these products in bulk and packs
them in suitably sized packages
herself. Before the accident she
worked from 07:00 to 19:00 on weekdays and fewer hours on weekends.
She had a solid customer base
in the Portuguese community, especially
Portuguese clubs. She provided personal service to them because they
are, according to
her very fussy. As a result of her accident she can
no longer provide same degree of personal service she used to.
[5]
She used to do her own cooking and housework, knitting, needle work
and gardening before the accident. She used to cycle up
to 8 km four
times per week, but because of weakness in her left hand, she lost
her grip and fell, injuring her left leg. She now
rides a stationary
bicycle and walks for exercise. She continues to perform these tasks,
but with considerable discomfort.
[6]
According to a joint minute of a pre-trial discussion between
orthopaedic surgeons, Dr L.P.G. Blignaut and Dr D.A. Birrell on
15
July 2010, her current complaints are the following:
1.
Weakness in the left hand;
2.
Pain
in the left thumb;
3.
Occipital
headaches;
4.
Anxiety
when driving;
5.
Sternal
chest pain at times.
[7]
According to the two surgeons, she has a work restriction of 5%.
[8]
According to a medico-legal report by Dr Birrell, she also suffers
some loss of grip in the left hand. He says she is right
handed, but
uses a knife with her left hand. According to other reports, she is
ambidextrous. Dr Birrell is of the view that the
plaintiff should now
seriously consider a fusion of the MP joint with removal of a small
fragment screw from the base of the proximal
phalanx and within about
five years, a fusion of the base of the first metacarpal.
[9]
The plaintiff claimed the following damages:
1.
Past
hospital expenses:
…..................................
RIO
000
2.
Past
medical expenses:
......................................
RIO
000
3.
Future
medical, hospital and related
expenses:
.................................................................
R100
000
4.
Loss
of earning capacity:
....................................
R100
000
5.
General
damages:
…..........................................
R250
000
…
...................................................................
Total:
..
R470
000
[10]
The parties have agreed on an amount of R30 407.86 in respect of past
hospital and medical expenses. The defendant has further
given an
undertaking in terms of s 17(4)(a) of the Road Accident fund Act, 56
of 1996 in respect of future medical and hospital
expenses.
[11]
In respect of future loss of income, the parties have agreed on the
calculations made by an actuary, Mr G.A. Whittaker of Algorithm
Consultants & Actuaries CC. Mr Whittaker has calculated the
plaintiffs future loss of earnings at R99 108.
[12]
The only issue that remains for this court to decide is the amount of
general damages. I have been referred to a number of
judgments and
arbitration awards where general damages have been considered for
broadly similar injuries and impairments. As it
has repeatedly been
held, such judgments can only serve as a guideline since
circumstances differ so widely between cases. I have
not been
referred to any case in which the injuries and impairments resemble
those of the plaintiff so closely that it can be used
as a precedent.
The only case in this decade involving a hand injury is that of
Newhouse
v Road Accident Fund,
an
arbitration award reported in Corbett & Buchanan, volume V, D5-1.
In that case the plaintiff suffered a more severe hand
injury, which
rendered her incapable of resuming her duties of kitchen manager and
front-of-house manager in a restaurant she owned
with her husband.
Her functional abilities limited her to her residual work duties of a
mere hostess. The plaintiff, by contrast
continues to perform her
duties, albeit with some restriction, necessitating the employment of
an additional assistant.
[13]
I also consider the restriction on her domestic duties and leisure
activities such as cycling. She has also suffered trauma
causing
anxiety when driving. In the Newhouse case the arbitrator awarded
R200 000 for general damages.
[14]
In comparing this case with Newhouse, I consider the following
distinguishing features:
l.
The plaintiffs injury is less severe;
2.Her
injury is generally less restrictive;
3.She
is able to continue her previous duties, albeit with some
limitations necessitating additional staff.
[15]
I also consider the depreciating value of money.
[16]
I therefore award an amount of R200 000 as general damages.
[17]
The total amount of damages is R372 825.86, in addition to the
undertaking in terms of s 17(4)(a) of the Act for future medical,
hospital and related expenses. The amount is made up as follows:
1.
Past
Medical Expenses
..............................
30
407.86
2.
Past
Loss of Income
..................................
43
310.00
3.
Future
Loss of Income
...............................
99
108.00
4.
General
damages
.......................................
200
000.00
…
....................................................................
R372
825.86
Accordingly
I make the following order:
1.
The
Defendant is ordered to pay to the Plaintiff the amount of R372
825.86;
2.
The
Defendant is ordered to furnish the Plaintiff with an undertaking in
terms of
s 17(4)(a)(l)
of the
Road Accident Fund Act, 56 of 1996
in
respect of future medical, hospital and related expenses.
2.
Interest
on the aforesaid amount of R372 825.98 at 15.5% per annum from a date
14 days after judgment to date of final payment;
3.
Costs.
J.
Hiemstra AJ
Acting
Judge of the High Court
Date
of judgment:
2010-10-13
Date
heard:
2010-08-12
Counsel
for the Plaintiff:
Adv
R. Ferguson
Attorney
for the Plaintiff:
Adams
& Adams
Counsel
for the Defendant:
Adv
G. Lubbe
Attorney
for Defendant:
Dyason
Incorporated