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[2012] ZAECPEHC 96
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Alla v Road Accident Fund (338/2010) [2012] ZAECPEHC 96 (13 November 2012)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE –
PORT ELIZABETH)
Case No.: 338/2010
Date heard: 19 + 20
April 2012
Date delivered: 13
November 2012
In the matter
between:
VALENCIA
NOMAKHAYA ALLA
Plaintiff
and
THE ROAD ACCIDENT
FUND
Defendant
J U D G M E N T
DAMBUZA, J
:
The plaintiff claims
damages suffered by her as a result of injuries she sustained in a
motor vehicle collision on 21 November
2006, along Cape Road, near
the St Albans Prison in Port Elizabeth.
On that day the
plaintiff was a passenger in a mini bus taxi when a collision
occurred between the insured vehicle and another
vehicle. The other
vehicle then careered off course and collided with the mini bus taxi
in which the plaintiff was a passenger.
Having sustained certain
injuries in that collision, the plaintiff received medical treatment
at Greenacres Hospital, Port Elizabeth,
and also consulted various
other private medical practitioners.
By the time the matter
came before me the defendant had conceded liability for the full
damages suffered by the plaintiff. Defendant
had also specifically
admitted liability for payment of the following amounts in the
plaintiff’s claim:
[i]
Past
hospital expenses
R14,019.09
[ii]
Past
medical expenses
R7,123.54
The defendant further
undertook to furnish to the plaintiff an undertaking in terms of the
provisions of
section 17(4)(a)
of the
Road Accident Fund Act, 56 of
1996
. It was agreed between the parties that the undertaking
furnished would cover payment of the plaintiff’s expenses for
future accommodation in hospitals or nursing homes or treatment or
rendering of a service including employment of a domestic employee,
or supplying of goods to her arising out of the collision, after
such costs have been incurred and upon proof thereof.
The only issues before
me for determination are the plaintiff’s claims for: future
loss of earnings and/or loss of earning
capacity, past costs of a
domestic employee and general damages.
The injuries sustained
by the plaintiff in the collision were a fracture of the left ankle
resulting in displacement of the distal
tibio/fibula joint and soft
tissue injury. On the day of the accident the plaintiff was seen
by Dr S Mentz and later by Dr
Hendrik Juan De Jonge at the Out
Patients Department in Greenacres Hospital. She could not be
admitted to the hospital on that
day because of bed shortage. She
was only immobilised by means of a back slab. On being admitted to
Hospital the following
day an open reduction and internal fixation
of the fracture was performed and the medial malleolus was fixed by
two 50 millimetre
malleola screws with washers. The plaintiff’s
ankle was then immobilised by means of an ultra cast plaster which
was removed
after six weeks whereon the ankle was immobilised in an
air-cast brace and the plaintiff was referred to a physiotherapist.
The plaintiff remained
in hospital until 25 November 2006 whereon she was discharged on a
wheelchair. She was in a wheelchair
for a period of six weeks after
which she started walking with the aid of crutches. She resumed her
duties on 15 January 2007
whilst still walking with the aid of
crutches. The internal fixatives were removed in April 2008.
At the time of the
collision the plaintiff was employed as a correctional officer by
the Department of Correctional Services at
the St Albans Prison.
Her duties in the Maximum Security Section entailed escorting
prisoners all day, e.g. to their meals and
when doing their
exercises. This entailed a considerable amount of standing and long
distance walking. Because she could
not do the same work with
ease after the accident she requested to be transferred to another
department, whereupon she was transferred
to the workshop, to do
mainly clerical work. At some stage she was transferred to the
Visitors Section where she again performed
duties of escorting
prison inmates which, again, entailed a considerable amount of
walking. She continued to experience difficulty
in performing these
duties. In 2011 she was then placed in a sedentary position as a
member of the case management committee.
At the time of trial the
41 year old plaintiff lived at the St Albans Prison together with
her 15 year old daughter. She explained
in evidence that at the
time of the collision she lived on the second floor of the same
staff living quarters at the Prison,
but had to relocate to a flat
on the ground floor of the building due to her ankle injury.
In her evidence the
plaintiff testified that she still experiences pain on her ankle
resulting in difficulty in walking long distances,
standing for
lengthy periods of time, ascending or descending flights of stairs,
walking on uneven surfaces, carrying heavy objects
and getting in
and out of a motor vehicle. She is unable to run, walk fast or play
active sports. Prior to the accident she
used to play netball, she
has not been able to participate in this sport since her injury.
In his medico-legal
report, Dr Basil Mackenzie, an orthopaedic surgeon, opines that in
the future the unresolved ankle injury
will continue to result in
considerable pain associated with walking. Surgical options are,
according to him, limited and generally
unsatisfactory. The
plaintiff stands the risk of suffering degenerative arthritis, the
only remedy for which is an ankle fusion
or a total ankle
replacement. According to Dr Mackenzie, the plaintiff should do
sedentary jobs and cannot do the work that
she did prior to the
collision. Prognosis of full restoration of function through
surgery is, according to Dr Basil Mackenzie,
unlikely to be
successful. However, an arthrodesis of the distal tibio/fibula
joint could be considered, although the results
would be
unpredictable and could even make the plaintiff’s problems
worse. An arthroscopic debridement may also bring
about some pain
relief.
Claim for domestic
worker expenses
No evidence was led on
behalf of the defendant. The plaintiff’s evidence was that,
for a while after the collision her
brother assisted her with
household work. However in 2008 her brother secured employment and
the plaintiff had to employ a part
time domestic assistant for two
days in a week to help with her household work. She had not
required services of a domestic
assistant prior to the accident.
Initially, she paid the domestic assistant R120.00 per week. In
2011 she increased her payment
to R160.00 per week; that was the
amount she was paying the domestic assistant at the time of trial.
The plaintiff claims R23,545.00
as the expense incurred by her in
the past for employment of a domestic assistant. I am satisfied
that, on the evidence, the
plaintiff is entitled to payment of this
expense.
Future loss of
earnings and/or loss of earning capacity
The plaintiff claims an
amount of R750,000.00 in this regard. The basis for this claim is
that the plaintiff struggles to cope
with an entire day of
performing the full spectrum of her pre-morbid duties as a
correctional officer. Her complaint is that,
taking up alternative
duties will result in reduction in her earnings. The plaintiff’s
case is that her pre-morbid duties
are based at the
“centre”
of the prison and in that capacity she is able to earn extra
income, working overtime or additional working hours. A transfer to
a more sedentary position, where she will perform pure
administrative and/or clerical duties, will entail that she loses
the
additional working hours and therefore the additional earnings
of approximately 5 hours per week.
The plaintiff’s
further evidence was that she has, in any event, applied for
“non-centre-based”
positions that have been
advertised from time to time, but has been unsuccessful.
Dr Richard Holmes, a
psychologist and Human Resources specialist consulted with the
plaintiff and prepared a medico-legal report
on her pre and
post-morbid career potential and generally her adjustment to her
current state. He considers the plaintiff to
be a goal directed and
a determined person of high average intellect whose career potential
is affected by ongoing physical pains,
anxiety, moods, depression
and general adjustment disorder from which she now suffers. His
opinion is that the injuries sustained
by the plaintiff will result
in 10 to 15% reduction in her pre-morbid earning capacity as she is
not likely to progress to the
same job level she would have attained
in her pre-morbid state. His further evidence was that he had not
been aware, when making
this assessment, of the possible reduction
in the plaintiff’s earnings resulting from loss of the
centre-based additional
work hours. An additional assessment of
11.23% was then added to the assessed 10% -15% assessment, resulting
in an estimated
income reduction of between 21% and 26% in the
injured state.
I may state however that
although the plaintiff anticipates loss of working hours and
consequent reduction of income, the evidence
was that, from the end
of 2011 the plaintiff was placed on sedentary duties, as a member of
the case management committee within
the prison centre. Presently,
her functions mainly entail sitting in the case management committee
to assess newly sentenced
inmates, allocating duties to them, and
presenting prisoners to the parole board. These
“centre
-
based”
duties and have not resulted in reduction of income for the
plaintiff. This, in my view, mitigates possible reduction of income
as a result of being allocated to sedentary duties.
I am alive to the
opinion by Dr Holmes that the plaintiff will experience difficulty
in securing promotions in the future. And
I accept that, the
plaintiff is limited in the vacancies that she will now be able to
apply for as she is precluded from doing
physical work. However, it
would seem that Dr Holmes did not take into account that the
additional educational qualifications
which the plaintiff has
attained in the recent past will, in all probability enhance her
stature in the job market; particularly
viewed together with her
experience as a correctional officer. The evidence was that in 2010
the plaintiff completed a National
Diploma with the Nelson Mandela
Bay Municipality in Human Resources Management. She is currently
registered for a BTech Degree
in the same discipline and anticipates
that she will complete the degree next year (2013). Further, the
plaintiff is described
as a self-driven, motivated and resilient
person. In his medico-legal report, Dr Holmes highlights the fact
that she was the
first lady to work in the maximum security section
of the prison; a factor which, in my view, will count considerably
in her
favour when opportunity arises for her to be considered for
promotion or other work opportunities.
Although the plaintiff
complains that her seniors at work are unsympathetic to her
condition I cannot ignore the fact that since
December 2011, she has
now been allocated less strenuous duties. It therefore seems to me
that an estimate of 10% in reduction
of the plaintiff’s future
income earning capacity is more appropriate.
An undisputed actuarial
calculation of R3,659,942.00 as the plaintiff’s total
pre-morbid earnings is part of the record.
I find no reason not to
accept the correctness of this figure.
Mr Schubart
submitted, on behalf of the plaintiff, that a normal contingency of
15% pre-morbid should be applied to this amount. The submission
on
behalf of the defendant was that a pre-morbid contingency of 25%
would be more appropriate. I cannot find any reason why the
normal/usual pre-morbid contingency of 15% should not apply in this
case. It does not appear to me that there are any peculiar
factors
warranting a deduction for general contingencies at the higher scale
suggested on behalf of the defendant. On application
of a deduction
of 15% pre-morbid contingency the plaintiff would have earned
R3,110,950.70. The plaintiff’s nett loss
of income is
therefore 10% of the sum of R3,110,950.70; i.e. R311,095.07.
General damages
In addition to the
description of the injuries sustained by the plaintiff and the
sequelae
thereof as set out above, I may also mention that
medical evidence reveals that the plaintiff experienced severe pain
immediately
following the collision, particularly as she could not
be admitted to hospital on the day of the collision. As I have
stated
she remained in hospital for four days following the
collision and was again admitted to hospital for one day for removal
of
internal fixatives. She endured acute pain for about a week to
ten days following the accident and the operation on her ankle.
She
again experienced pain of the same intensity following the removal
of the internal fixatives. She was off work from the day
of the
accident to 15 January 2007 when she returned to work, still walking
on crutches. She still experiences pain on her left
ankle,
especially when walking long distances and climbing or descending
stairs. There is still dislocation in the ankle joint,
accompanied
by associated degenerative changes. Dr Mackenzie opines that this
unresolved displaced joint is a difficult problem
and will
“undoubtedly” continue to cause considerable pain with
associated walking difficulties in the future which
is not likely to
be resolved through surgery. The plaintiff’s problems are
compounded by the fact that although it is imperative
that she loses
weight, she is currently inactive due to the pain she experiences
when doing strenuous physical activity. Her
ankle is partially
unstable and requires support by special footwear. It is anticipated
that she will have to use analgesics
and anti-inflammatories on a
regular basis for the rest of her life. Her enjoyment of physical
activities has been curtailed.
In assessing what would
be fair and adequate compensation as general damages
,
I have taken into consideration, as guidance, the various comparable
cases to which I was referred to by counsel
.
1
I have also taken into consideration the general increase in
awards made by courts in the recent past.
2
My view is that the
injuries suffered by the plaintiff in
Coetzee v Union and
National Insurance Company Limited (supra)
(which an award of
R332,000.00 (present value) was made in 1969)) were more serious
than the injuries sustained by the plaintiff
in this case. The
plaintiff in
Coetzee
had sustained a shoulder injury, over
and above the ankle injury. Similarly in
Davidtz v Conradie N.O.
(supra:
Awarded R236,000.00 (present value) in 1959) the
plaintiff had sustained a fractured pelvis as well as a broken bone
in the ankle.
In
SA Eagle Insurance Co Ltd v Cillier (supra:
Awarded R104,000.00 (present value) in 1987) the plaintiff had
sustained a communited fracture of the right foot near the ankle
joint together with disruption of the talus bone. Like the
plaintiff in this case, he was not immediately hospitalized; he
walked with the aid of crutches for about six months. A triple
fusion of certain bones was performed, but he was left permanently
disabled with a
“flat”
or
“block”
foot and restricted range of movement and consequent reduced
functional use. He had sustained a
“most severe ankle
injury”
. He could no longer engage in hard physical work.
He would have to wear special footwear and undergo a further minor
operation
for removal of a
“spur”
of bone. I
consider the injuries sustained by the plaintiff in this case to be
most comparable with the injuries sustained by
the plaintiff in
SA
Eagle Insurance Co.
My view is that an
amount of R200,000.00 would be fair and reasonable compensation as
general damages in respect of the injuries
suffered by the plaintiff
and the
sequelae
thereto.
The total amount of
damages I award to the plaintiff is calculated as follows:
[i]
Past
hospital expenses
R14,019.09
[ii]
Past
medical expenses
R7,123.54
[iii]
Past
hospital expenses
R23,545.00
[iv]
Future
loss of earnings and/or loss of earning capacity
R311,095.07
[v]
General
Damages
R200,000.00
TOTAL
R555,782.70
Judgment is therefore
granted in favour of the plaintiff as follows
[i] Defendant is ordered
to pay to plaintiff the sum of R555,782.70;
[ii] Interest thereon at
the legal rate with effect from 14 days of this order until payment
thereof.
[iii] Costs of suit,
which costs shall include:
Qualifying expenses, if
any, of the following:
Dr Mackenzie;
Ansie van Zyl;
Dr Holmes;
Mr David Williams;
Arch Actuarial
Consulting.
The costs of preparation
of plaintiff’s heads of argument.
_________________________
N. DAMBUZA
JUDGE OF THE HIGH
COURT
Appearances
:
For
plaintiff:
Adv
L A Schubart (SC)
Instructed
by Heine Ungerer of Port Elizabeth
For
defendant:
Ms
America
Instructed
by Friedman Scheckter of Port Elizabeth
1
Coetzee v Union and National Insurance Company
Limited; The Quantum of Damages in bodily and fatal injury cases C &
B (Vol
II) at 55; Davidtz v Conradie N.O. C & B (Vol I) at 394;
Minister of Justice v Auxilliary Insurance Corporation Limited; C
&
B (Vol I) at 509; Lugodlo v Wolmarans; C & B (Vol II) at 617;
SA Eagle Insurance Co Ltd v Cilliers; C & B (Vol
III) at 716 and
Rudge N.O. and Son v Rondalia Assurance Corporation of S.A. Ltd.; C
& B (Vol I) at 661.
2
RAF v Marunga 2003 All SA (2) 148.