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[2011] ZAGPPHC 189
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Machuisa v Road Accident Fund (19031/10) [2011] ZAGPPHC 189 (1 September 2011)
NOT
REPORTABLE
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 19031/10
DATE:01/09/2011
In
the matter between:
ESTHER
LESELO
MACHUISA
................................................................................
PLAINTIFF
and
ROAD
ACCIDENT
FUND
.......................................................................................
DEFENDANT
JUDGMENT
[2]
The parties have agreed that the Plaintiff and the driver of the
vehicle had been jointly responsible for the accident and that
whatever damages may be proven should be apportioned between them on
a 50/50 percent basis.
[3]
The Plaintiff suffered the following injuries;
1.
Contusion of the right shoulder;
2.
Laceration of right upper arm;
3.
Abrasions and lacerations on the left side of the face;
4.
A closed supra-condylar fracture of the left femur with displacement.
[4]
She was admitted to the Victoria Private Hospital where and open
reduction and internal fixation was undertaken for the supra-condylar
fracture of the left femur. The fragments were stabilised with
dynamic condylar plate and screws. She was taught to walk with a
walking frame and discharged on 27 December 2006.
[5]
She used a walking frame for approximately eight months after her
discharge and in September 2007 changed to crutches. She discarded
the one crutch after six months and is still walking with the
assistance of a single crutch.
[6]
She has been a housewife for her entire adult life and was unable
until September 2007 to undertake any household chores because
she
had been unable to stand on both legs. She is still limited in her
household work, but has resumed some of her tasks.
[7]
The Plaintiff had never previously been hospitalised and has no
chronic illnesses. She has never before been involved in a motor
accident.
[8]
Her present complaints according to Mr Watson S. Mokgosi, an
occupational therapist, who evaluated her injuries on 19 April
2011
are the following:
1.
Pain in the right shoulder;
2.
Pain in the left leg;
3.
Pain in the left eye;
4.
Her eye-sight has been negatively affected and she currently wears
glasses;
5.
She cannot perform her home chores due to pain;
6.
She cannot walk or stand for more than five minutes.
[10]
Dr R.A. Morule, and orthopaedic surgeon, reported under the heading
General Damages the following:
The
patient experienced excruciating pain following the fracture of a
major limb bone. She also suffered pain from multiple soft
tissue
injuries affecting the face, right shoulder and right elbow. She
suffered further excruciating pain following the open reduction
and
plate fixation of the femoral fracture. Severe pain would have been
suffered for about seven to ten days after the surgical
intervention.
Thereafter she would have suffered moderate pain for three to four
months, and mid pain would have persisted until
the fragments have
consolidated at six to eight months. She continues to suffer post
injury pain to the left thigh bone with post-traumatic
early
osteo-arthritis of the left knee. She continues to suffer pain on the
right shoulder and elbow. She has features of established
post-traumatic cuff disease of the right shoulder with persistent
acromio-clavicular subluxation in the right shoulder. Lastly,
she has
unsightly scars on the left thigh and right elbow. She is also
expected to suffer further pain during the removal of the
fixatives
of the left femur.
[11]
The parties have agreed that the Plaintiff has incurred medical
expenses in the amount of R27 756.94. The Respondent has further
undertaken in terms of s 17(4)(a) of the Road Accident Fund, 56 of
1996, to pay 50 percent of her future medical expenses. The
Plaintiff
has suffered no loss of earnings and will suffer no future loss of
earnings as a result of the accident. The only matter
to be decided
is the quantum of general damages.
[12]
As far as general damages are concerned, counsel referred me to
several judgments concerning comparable injuries. As has been
stressed repeatedly, such judgments could at best serve as a broad
guideline because no two cases are identical. There are also
certain
trends in the allocation of general damages of which the Court must
take account. In Wright v Multilateral Vehicle Accident
Fund, a 1997
decision of the Natal Provincial Division
1
Broome DJP said
"I
consider that when having regard to previous awards one must
recognise that there is a tendency for awards now to be higher
than
they were in the past. I believe this to be a natural reflection of
the changes in society, the recognition of grater 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."
[13]
Both counsel referred me to Road Accident Fund v Marunga
2
,
a judgment by Navsa JA in the Supreme Court of Appeal, decided in
March 2003. The plaintiff (respondent in the appeal) in that
case was
a 19-year old scholar whose main injury had been a fractured femur.
The sequelae of the injury were that the plaintiff
had a plate and
screws inserted, he spent five months in hospital, two of which with
his leg in traction and plaster. Thereafter
he walked on crutches for
five months and had to abandon school for the rest of the year. He
was readmitted to hospital in 1997,
4 years after the accident, to
have the plate and screws removed. He had to visit the hospital
repeatedly for a number of years
for treatment. His leg was some 3.5
cm shorter than the other. Before the accident he had been a keen
soccer and volley ball player
and can no longer participate in these
sports. He is unable to lift heavy objects and cannot remain standing
for long periods.
He was awarded R375 000 general damages by the
Venda High Court. On appeal this amount was reduced to R175 000. This
amount translates
to R315 000 today.
[14]
The injuries of the plaintiff in the Wright case
3
were in broad terms close to the injuries in the Marunga case. The
plaintiff was a 28 year old woman. Her right leg has been shortened
by 3.5 cm, requiring raisers in her footwear. She has a weakness in
the leg and residual pain and suffers recurring infections
and
abscesses. She was awarded R65 000 in 1997, which amounts to R146 000
today.
[15]
I was referred to a number of other cases, but I find that they are
not sufficiently similar to serve as a guideline.
[16]
The main feature that distinguishes the present case from those of
Marunga and Wright is that the plaintiffs in those cases
were young
people, 19 and 28 respectively. In both cases the Courts took into
account that they were in the "full bloom of
their youth"
and will have to endure discomfort for the remainder of their lives.
[17]
The Plaintiff in the present case is 63 years old and was 58 at the
time of the accident. I have considered whether her age
is a factor
that would justify a lesser amount than what she would have received
had she been a young woman. In my view it should
not have that
consequence. Young people are more resilient and can more readily
adapt to their disabilities. For the Plaintiff,
on the other hand,
the rest of her life will be a misery of pain and discomfort.
[18]
In my view, and amount of R200 000 is justified. By agreement between
the parties, this amount must be reduced by 50 percent.
I
accordingly make the following order:
1.
The Defendant is ordered pay to the Defendant the following amounts:
1.1
R13 878.47 in respect of past medical expenses;
1.2
R100 000.00 in respect of general damages.
2.
The Defendant is ordered to issue to the Plaintiff a certificate of
undertaking to cover 50 percent of all related medical and
hospital
costs which may be required in future, in terms of s 17(4) (a) of the
Road Accident Fund, 56 of 1996.
3.
The Defendant is ordered to pay the costs of the Plaintiff including
the qualifying costs of Dr Ramoroa A. Morule, orthopaedic
surgeon,
and Mr Watson S. Mokgosi, occupational therapist.
J.
HIEMSTRA
ACTING
JUDGE OF THE HIGH COURT
Date
heard: 23 August 2011
Date
of judgment: 31 August 2011
Counsel
for the Plaintiff: R. Latib
Attorney
for the Plaintiff: Mothuloe Attorneys
Counsel
for the Defendant: J. Minnaar
Attorneys
for the Defendant: Dyason Inc
1
Corbett
& Honey Vol. IV E3 - 31
2
Corbett
& Honey Vol. V E3 1-10
3
Supra