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[2011] ZAGPPHC 151
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Howard v Road Accident Fund (19053/2010) [2011] ZAGPPHC 151 (30 May 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
DATE: 30 MAY 2011
CASE NO: 19053/2010
In
the matter between:
LYNETTE
BARBARA
HOWARD
................................................................................
PLAINTIFF
vs.
THE
ROAD ACCIDENT
FUND
..............................................................................
DEFENDANT
JUDGMENT
BOTHA
J:
This
is a so-called third party case arising from a motor car collision
that occurred on 9 December 2007.
The
defendant accepted liability for 100 percent of the plaintiff's
damages.
The
only issue in dispute was the amount to be awarded in respect of
general damages.
No
evidence was led. The parties agreed that the court could refer to a
bundle of experts' reports.
The
plaintiff was born in 1946. She has been a housewife since 1989.
The plaintiff's injuries
were described by Dr Enslin, an orthopaedic surgeon, as follows:
"•
A sever compression fracture of L1.
•
A
fracture of the fourth and fifth metatarsal bones on the right side.
She informed her husband and Dr Barnard of the pain in her
foot after
the accident.
•
A
soft tissue injury to her neck.
•
An
injury to her chest.
•
An
injury to her sacrum.
She
reports no epilepsy or memory loss. She experiences nightmares,
relives the accident, is sometimes anxious and tires easily.
She is
no longer depressed, but her sleep pattern is disturbed." She
spent some 15 days in hospital. A back operation was
performed on
her. She will have to undergo a further operation to correct the
alignment of her right foot.
The
present complaints of the plaintiff are summarized as follows by Dr
Enslin: Lumbar Spine
•
The
pain in her lumbar spine fluctuates. She believes that the operation
was successful. She uses Stilpane, one tablet a week and
Flexadrin
cream daily to relieve her back symptoms. She attends physiotherapy
sometimes. She no longer uses a brace.
•
Stiffness
is occasionally present
•
Her
sleep pattern is disturbed by the pain and discomfort in her back.
•
Pain
radiates to her right buttock and thigh.
•
Sitting,
standing, travelling and cold weather exacerbate her symptoms.
•
The
scars are of no concern.
Cervical Spine
•
Pain is regularly present
She sometimes uses Flexadrin cream to relieve the symptoms in her
neck.
•
Headaches are
present on her temples twice a week. She uses Panado when her
headaches are intense.
•
Neck
stiffness is constantly present
•
Paraesthesias are
intermittently present on the left side.
•
Muscle
spasms are not present
•
Back pain and
shoulder pain on the right side are present
•
Interscapular
pain is not present
•
Travelling
exacerbates her symptoms.
•
The
intensity of her neck symptoms is not improving.
Right
Foot
•
Pain is present
daily. She uses Gold Cross shoes and battles to fit her shoes. Her
foot has a prominence over the fifth metatarsal
head, which makes it
uncomfortable for her to wear shoes.
•
The symptoms in
her foot are more severe after walking for half an hour.
•
Inclement weather,
driving, walking and climbing stairs exacerbate her symptoms.
•
The
intensity of her symptoms in her foot is not improving."
According
to Ms Havenga, a counselling psychologist, the plaintiff suffers from
a low level of depression. She cannot participate
in activities like
playing with grandchildren or looking after them. She cannot maintain
static postures. She has become irritable.
Mr
Dredge, who appeared for the plaintiff, referred to two cases
reported in Volume VI of Corbett & Buchanan, Van Vuuren v Road
Accident Fund C3-1, a less serious case, and Lawson v Road Accident
Fund, C4-1, a more serious case. In Van Vuuren's case the present
day
value of the award for general damages is R133 000.00. In Lawsons'
case it was R318 000.00. He submitted that an award between
R200
000.00 and R250 000.00 would be appropriate.
Ms
Schneider, who appeared for the defendant, referred to two cases in
Corbett & Buchanan: Poo v President Insurance Company
Ltd Volume
IV A3-96 and Marais v Road Accident Fund, Volume VC3-12.
In
Poo's case the present day value of the award is R205 000.00 and in
Marais' case it is R181 000.00.
The
cases of Poo and Marais are comparable as far as the back injuries
are concerned. What makes this case more serious is the dimension
of
injury to the right foot. Having regard to all relevant factors, I am
of the view that the award for general damages should
be R220 000.00.
It
was common cause that the plaintiff should be awarded R352 833.21 in
respect of past medical expenses. That would bring the total
amount
to R572 833.21. It was also common cause that the plaintiff should be
indemnified for against future medical expenses by
means of an
undertaking in terms of Section 17(4)(a) of Act 56 of 1996. Mr Dredge
has prepared a draft order dealing with the issues
of future medical
costs and legal costs. I shall make it an order of court having
inserted the amount of the award.
The following order is
made:
The
draft order marked "X", as completed and initialled by me,
is made an order of court.
C
BOTHA
JUDGE
OF THE HIGH COURT