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2022
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[2022] ZAFSHC 268
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Sefuthi v Road Accident Fund (303/2019) [2022] ZAFSHC 268 (14 October 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 303/2019
Reportable:
NO
Of
Interest to other Judges: NO
Circulate
to Magistrates: NO
In
the matter between:
L.A.
SEFUTHI
Plaintiff
and
THE
ROAD ACCIDENT FUND
Defendant
CORAM:
AS
BOONZAAIER AJ
HEARD
ON:
4
OCTOBER 2021
JUDGMENT
BY:
BOONZAAIER
AJ
DELIVERED
ON:
This
judgment was handed down electronically
by circulation to the
parties` legal representatives by e- mail. The date and time for hand
-down is deemed to have been at 9h00
on 14 October 2022.
BACKGROUND:
[1]
This is a claim for damages
suffered as a result of injuries sustained by the Plaintiff,
a 32
years old female, in a motor vehicle accident that occurred on the
4
th
of February 2018, at the Verkeerdevlei tollgate
between Bloemfontein and Senekal. The Plaintiff was a passenger in
the vehicle
with an unknown registration number, driven by Mrs.
Mmoone Montsi and a motor vehicle with an unknown registration number
when
the insured driver of the vehicle overtook another vehicle and
collided head-on with oncoming traffic.
MERITS
[2]
The issue of liability (merits)
has been conceded 100% in favour of Plaintiff.
QUANTUM:
[3]
Quantum for general damages
remains unresolved. The future loss of earnings and future
medical
expenses were resolved by a settlement between the parties.
[4]
Affidavits have been filed by
the plaintiff’s experts. They have confirmed the content
of
their respective reports which have also been filed.
INJURIES
SUSTAINED:
[5]
The plaintiff sustained the following severe injuries:
a.
Right femur fracture;
b.
5cm laceration forehead;
c.
Multiple facial abrasions;
d.
Abrasions of the left arm;
e.
Lung contusion;
f.
Rib fracture;
g.
Right knee fracture.
SEQUELAE
OF INJURIES:
[6]
The Plaintiff:
a)
was admitted to Winburg Hospital where
after she was transferred to Bongani Hospital and from there to
Pelonomi Hospital;
b)
underwent an open reduction and an
internal fixation of the right femur.
c)
was discharged on 16 February 2018.
d)
suffers from chronic pain in her right
hip, upper leg and knee. Instrumentation became septic and
oozes discharge.
e)
experiences
inter
alia
difficulty with standing and
walking for long periods of time.
f)
Ascending and descending stairs,
inclement weather and lifting heavy objects exacerbate symptoms in
her right hip, upper leg and
knee.
g)
has unsightly disfiguring scarring, most
notably on her face and right hip.
[7]
The experts also noted an
antalgic gait (the left leg is 2cm longer than the right) and
that
she would require orthopaedic built-up shoes to address the limb
length discrepancy.
[8]
They also established that there
were signs of post-traumatic osteoarthritis of the knee
joint as
indicated by Dr. Oelofse`s, with a high probability for the
osteoarthritis to progress to end-stage osteoarthritis and
that she
would require a total knee replacement and subsequent revision knee
replacements every 12 to 15 months.
[9]
At the time of the accident, the
plaintiff was training/working as an Electrical Apprentice.
She
resumed her training after approximately 5 months and the period she
was contracted for subsequently ended. She has been unemployed
since
her contract ended to date.
[10]
The plaintiff failed the trade test on three
occasions post-accident as a result of not being able to cope
with
the physical aspects of the trade test due to her accident-related
injuries and the sequelae thereof.
[11]
Dr. Oelofse concludes that should the plaintiff be
accommodated in a light duty/sedentary position, provision
should be
made for 5 years earlier retirement; however, if not accommodated,
she must not be allowed to do physical labour.
[12]
The plaintiff is significantly impaired as a
result of the accident considering her physical limitations
(only
suited for work of a sedentary/light nature), her qualifications,
work experience and a need for extensive accommodations
which may
typically not be of a reasonable nature to the majority of employers.
[13]
It would be difficult for the plaintiff to secure
employment in the open labour market. The
plaintiff is
now an unfair competitor in the open labour market.
[14]
The plaintiff can no longer partake in tennis as
she did pre-morbid.
PAST
HOSPITAL AND MEDICAL EXPENSES:
[15]
The plaintiff was treated at provincial
facilities, there is therefore no claim for past medical and hospital
expenses.
GENERAL
DAMAGES:
[16]
The plaintiff has filed various expert
medico-legal reports namely:
a.
Dr. Oelofse (Orthopaedic Surgeon);
b.
Dr. Hoffmann (Plastic, Reconstructive
and Cosmetic Surgeon);
c.
Rita
van Biljon (Occupational Therapist;
d.
Ben Moodie (Industrial Psychologist
[17]
The defendant has not filed any reports.
[18]
The expert medico-legal reports by the plaintiff’s
experts thus stand uncontested.
[19]
Affidavits have been filed by the plaintiff’s
experts. They have confirmed the content of their respective
reports
which have also been filed.
MEDICO-LEGAL
REPORT: DR OELOFSE ORTHOPEDIC SURGEON:
[20]
Dr. Oelofse gave a report dated 5 December 2019
and stated the following in his report:
“
The patient was
an Electrical Apprentice at the time of the accident”.
“…
she
resumed her training after approximately 5 (five) months and the
period she was contracted for subsequently ended”.
“
The patient is
currently unemployed”.
“…
her
pursuits to secure alternative employment have been futile, due to
the impairments caused by the injury she sustained in the
accident”.
“
She experiences
pain in her right hip, upper leg and knee when performing activities
that require long periods of mobility, as well
as lifting and
carrying heavy-weight objects”.
[21]
He further stated in his report that:
“
In
my opinion the patient qualifies for the narrative test under
paragraph Permanent serious disfigurement in combination of the
scars
on her face, arm and right hip”.
[22]
He also further stated in his report that
:
“
she has no
history of hip, upper leg or knee problems prior to the incident’
“
It
is also my opinion that the patient must be accommodated in a
permanent light duty/sedentary environment within any future
employment…”.
“
She completed
her grade 12 (twelve) and further attained a Diploma in
Financial Management”.
“
I
believe that the injury had a profound impact on the patient’s
amenities of life, productivity and working ability and will
continue
to do so in the future”.
“
With
successful treatment of the right leg, her productivity will improve,
however as the degeneration in her right knee progresses,
her
productivity will decrease again”.
“
Regardless
of successful treatment, she will always have a permanent deficit”.
“
The
injury the patient sustained makes her an unfair competitor in the
labour market”.
“
She
will find it difficult to compete with other healthy individuals to
secure.
MEDICO-LEGAL
REPORT: DR HOFFMANN – PLASTIC, RECONSTRUCTIVE AND COSMETIC
SURGEON:
[23]
Dr. Hoffmann gave a report dated 15 July 2020 and
stated the following in his report:
“
The
patient was employed as an Electrical Apprentice at the time of the
accident”.
“
She
was booked off for approximately 4 (four) months”.
“
She
is currently unemployed”.
“
She
has been unable to continue with her former employment or secure
employment”.
“
It
is, therefore, my opinion that the patient MUST be accommodated in
permanent light duty/sedentary environment…”.
“
It
is my opinion that the patient would have been able to work to the
normal retirement age of 65 (sixty-five) years, if not for
the
accident and injury sustained”.
“
If
accommodated in a permanent light duty/sedentary environment,
provision must be made for 5 (five) years early retirement”.
“
If
not accommodated in the aforesaid position she must not be allowed to
do physical labour”, alternative employment, resulting
in a
total loss of income”.
[24]
He stated further in his report that her “
Her
Glasgow Coma Scale (GCS) was recorded as 14/15”.
[25]
He also stated in his report that:
“…
she
was always healthy prior to the accident”.
“
She
had no visible scarring or other problems”.
“
She
experienced no difficulties at work or at home”.
“
The
patient is a 31 (thirty-one) year old married female. She finds the
multiple scars troublesome as it is very visible and unsightly”.
“
She
still suffers from residual symptoms related to her orthopaedic
injuries”.
[26]
He went further to say that:
“
She
now presents with a 6.0cm long oblique
scar
over the forehead
. The scar
is visible and conspicuous”.
“
She now
presents with a 1.0cm x 5mm wide
scar below the chin
”.
“
She
now presents with an 8.0cm wide area with multiple abrasion scars
over the
left side of the neck
”.
“
She sustained
abrasions of the
left arm
”.
“
She
now presents with an 18.0cm x 7cm wide area with multiple abrasion
scars over the
left forearm
”.
“
She
sustained a fracture of the right femur”.
“
She
now presents with a 9.5cm x 3.0cm wide surgical scar over the right
greater trochanter
”.
“
There
is an area that has not healed completely over the superior aspect”.
“
She
now presents with a 3.0cm x 1.0cm wide actively draining fistula over
the posterior aspect of the
right thigh
”.
“
There
seems to be a neglected osteomyelitis (*infection in the bone) with
chronic scarring”.
“
She
now presents with a 5.0cm x 3.0cm wide scar over the lateral aspect
of the
right knee”.
“
There
are 2 actively draining fistulas present”.
[27]
He stated the following on page 19 of his report:
“
It
is my opinion that the patient’s scarring is amenable to
improvement with treatment but will always be
present”.
“
The
patient’s scarring will always be visible”.
“
It
is therefore permanent”.
MEDICO-LEGAL
REPORT: RITA VAN BILJON – OCCUPATIONAL THERAPIST:
[28]
Rita van Biljon gave a report dated 24 July 2021
and stated the following in her report:
“
Based
on the assessment results, the plaintiff meets the physical
requirements of sedentary demand work”.
“
She
returned to work and was accommodated to a certain degree. She was
unable to successfully complete her trade tests due to the
debilitating nature of her right leg injury and her contract was
therefore not renewed”.
[29]
She stated further in her report:
“
The
plaintiff meets the physical demands of sedentary work that allows
her to stand and walk occasionally. The limitations she presents
within standing walking further restrict her tolerance to perform
forward bending or elevated work as these abilities is interdependent
on her ability to stand for prolonged periods”.
“
The
plaintiff, therefore, presents with the current physical abilities to
perform
sedentary
work safely. Based on the
assessment results she meets the weight handling demands of
sedentary
work of lifting loads occasionally during the day”.
“…
the
plaintiff would most likely rely on frequent rest periods and benefit
from work and ergonomic adaptations. I, therefore, concur
that the
plaintiff will have to be accommodated in a sedentary environment”.
“
Her
search for an appropriate employment is therefore limited…”
MEDICO-LEGAL
REPORT: BEN MOODIE – INDUSTRIAL PSYCHOLOGIST:
[30]
Ben Moodie gave a report dated 27 October 2021 and
stated that:
“
All
of the aforesaid might play a role in her work speed and productivity
as she will try her utmost best not to re-injure herself
and to limit
the pain the she experiences. This means that once she enters the
open labour market, she will already be classified
as slow and this
will have a definite effect on her career and promotional
possibilities when compared to her uninjured peers”.
“…it
can be anticipated that she will progress slower than her peers which
means that she might reach her ultimate
career ceiling 2 to 3 years
later and also plateau 1 to 2 Patterson levels lower”.
“
In
this regard, due to the current unemployment rate, one can accept
that she would have difficulty securing permanent employment
for the
first 1 – 2 years. During this period, she could secure
intermittent piece jobs, earning between R1 000 and R2 500
per month.
Thereafter, she could enter
the
labour market on Paterson level A1Ilower quartile] earning only the
stated basic salaries plus a 13
th
cheque for approximately 4-6 years before she…..”
[31]
The plaintiff qualifies for general damages as
indicated in the reports by Dr Oelofse and Dr Hoffmann.
[32]
The severity of the injuries, the sequelae of
injuries and the devastating effects such injuries have on
the
plaintiff are reiterated as set out above.
[33]
The Respondent however argued that the Orthopaedic
Surgeon per page 8 of his report noted that with regards
to the head
injury is at present no current complaints. He also reports that
plaintiff has no complaints of the bilateral arm injury
or the chest.
[34]
Respondent concedes that at present the main
problem is the right hip, upper leg and the knee.
THE
LAW:
[35]
When considering general damages, a court has a
wide discretion to award what it considers to be a fair
and adequate
compensation for the injured party
[1]
[36]
In considering the amount to be awarded for
general damages it is acceptable to have regard to awards issued
in
comparative cases, although it is immediately recognized that it is
hardly possible to find a case or cases that are on all
fours with a
particular set of facts.
[37]
Ultimately, in determining general damages a broad
discretion is exercised by the court based on what it
considers fair
and adequate compensation. The nature, severity and permanency
of the injuries sustained, together with pain
and suffering,
disfigurement, permanent disability and the effect thereof on the
person’s lifestyle are aspects to be considered.
[38]
It is apparent that there is a dearth of recent
judgments dealing with similar injuries.
[39]
In
Smit v Padongelukkefonds
,
[2]
and
Mgudlwa
v Road Accident Fund,
[3]
R300 000.00
was awarded to a 34-year-old plaintiff which is equal to a
present-day value of
R540
900.00.
That plaintiff suffered from fractures to the femur and tibia causing
the left leg to be 5 cm shorter than the other leg
due to deformity
of the proximal end of the femur. Surgery in the form of a
total knee replacement and realignment of the
femur was anticipated.
[40]
In
Ncama v RAF
2015 (7E3) QOD 7 (ECP
Eksteen J, awarded R500 000.00 to a female cleaner in November
2014. The present-day value of
the award is
R737 500.00
.
The plaintiff sustained a fracture of her right femur causing an open
reduction and internal fixation to be performed where after
she
acquired crutches to ambulate. She also sustained a skull
fracture, a neck injury and soft tissue injuries to her pelvic
ring
and sacroiliac joints. It was predicted that there was a 30%
chance that a fusion at C5/6 will be required.
[41]
In
Abrahams v RAF
2014 (J2-1) QOD 7 (ECP) Eksteen J
awarded R500 000.00 to A 41-year, old spray painter. The
present-day value of the
award is also
R737 5 00.00
.
Although the judgment is found in segment J, it is apparent that the
plaintiff did not really suffer multiple injuries.
The Court found
that the head injury complained of was really minimal and no
cognizance was taken thereof in considering the amount
to be awarded
for general damages. In that case the plaintiff sustained a
badly comminated fracture of the right proximal
femur as well as
fractures of the right distal fibula, patella and medial malleolus.
Open reductions were performed on all three
areas with internal
fixation. The lower right leg was shortened and the plaintiff
had to wear an assistive device. I submit
that the injuries in this
case, as in the case of
Smit
supra
, are not too
dissimilar to that of the plaintiff
in casu
and can be duly
considered in adjudicating the plaintiff’s claim.
[42]
In
Ndaba v RAF
2011 (6E3) QOD 14
(ECB) R300 000.00 was awarded to a female informal hawker who
was 42-years old at the time of the injury.
This is equal to a
present-day value of
R547 500.00
. This plaintiff
sustained\ multiple orthopaedic injuries including a pelvic fracture,
and fractures to the right femur and
tibia as well as a left knee
injury. Open reductions and fixation were performed on the hip
joint, femur and tibia. Injuries
to her shoulder and hip might
require hip and shoulder replacement over time. The plaintiff was
bound to have a knee replacement
in future due to degenerative
changes. The plaintiff also suffered a ruptured bladder. The court
held that she could no longer
trade as a hawker. Although the
injuries differ from those
in casu
, the judgment cannot be
excluded as a yardstick.
[43]
In
RAF
v Marunga
[4]
the
Supreme Court of Appeal reduced the award made by the trial court in
2001 for general damages to R175 000.00. The present-
day value
is
R
466 900.
The plaintiff was 19 years old when he was injured. He
sustained a fractured femur, soft tissue injuries and bruises.
An open reduction and fixation were performed on the femur and he
initially spent five months in hospital recuperating.
Thereafter he ambulated with crutches. He was readmitted four
years later for removal of the plate and screws when it was
discovered that there was a mal-union of the femur. His left
leg was 3,5 cm shorter than the right leg. Corrective surgery
was
required although the left leg would never revert to its
pre-collision length.
The
SCA held in paragraph [29] that the plaintiff spent his life in and
out of hospitals for several years “…
at a time when
he ought to have been in the full bloom of youth
”.
[44]
In the case of
Litseo
v RAF
[5]
(2 May 2019 in the FS High Court) awarded
R700 000
to a 47year old lady who worked as an informal trader-After the
accident she could not work as a hawker anymore. She cannot sit
or
stand for long periods and when she seated needs to elevate her legs
to avoid swelling. Her injuries were to her right upper
leg and knee,
the right lower leg and ankle, and the left knee and lower leg.
(Present- day value for that amount is R763
000 see Quantum yearbook
2022 by Robert Koch)
[45]
In
Hall v Road accident Fund 2013
(6J2) QOD
126 (SGJ) 2013: R700 000 was awarded in 2013. In 2022 it amounts
to present -day value
R1 090 600
. A 39-year-old male
sales manager sustained a fracture of the left humerus, fractured
ribs on the left side, a concussive head
injury of moderate degree, a
left 6th cranial nerve lesion, soft tissue spinal injuries of the
neck and back and various abrasions.
He spent five days in ICU.
Plaintiff was an exceptional world-class cyclist and a highly
motivated, successful business person
pre-accident. Post-accident he
is a substantially changed person with continuous physical
complaints. He lost confidence in himself
to such an extent that any
future employment will most probably be precarious and problematic
although he is not completely unemployable.
He is reliant on a
sympathetic employer and has to be micro-managed at home and at work.
Plaintiff has ongoing symptoms of an organic
brain syndrome (mild)
post-traumatic with features of depressive illness which require
long-term intermittent psychiatric treatment
as well as
psychotherapy.
His
occupational functioning was adversely affected. He lacks the
motivation to perform duties and is unable to deal with any stressful
situation. Several medical procedures on his left shoulder will have
to be performed in the future, including a total shoulder
replacement. Plaintiff would probably be compelled to retire from
even a sedentary occupation within the next ten years.
Obviously,
all these injuries mentioned above are dissimilar to those
in
casu
, but the judgment serves as a good guideline.
[46]
Nevertheless, awards have increased over time, a
fact well recognized in
Wright
v Multilateral Motor Vehicle Accidents Fund
,
[6]
wherein Broom DJP stated that:
“
When
having regard to previous awards one must recognize that there is a
tendency for awards to now be higher than in the past.”
[47]
Additionally, South African courts have emphasized
that comparable cases offer some guidance in assisting
a court to
arrive at its award but should not be viewed as an absolute standard.
This principle was affirmed by Potgieter JA in
Protea
Assurance Co Ltd v Lamb,
[7]
wherein
he stated that a comparison of the plaintiff’s general damages
with that of previous awards need not take the form
of a meticulous
examination of awards made in previous cases in order to fix an
amount of compensation and nor should the process
be allowed to
dominate the enquiry so as to fetter the general discretion of the
court.
[48]
This court, therefore, has a wide discretion in
awarding general damages and while awards similar in law
and fact
provide a guide, the court certainly may award an amount of general
damages that are higher than those given historically.
[49]
Indeed, this court is alive to the dictum in
Road
Accident Fund v Marunga,
supra that
a modern approach
should be infused into the process of assessing damages in a case
such as the instant one. In terms of this approach,
the court is
enjoined to consider individual freedom of opportunity, rising
standards of living, and the recognition that past
awards have been
significantly lower than those made in other countries.
ORDER:
[50]
Therefore, I make the following order:
1.
The Defendant shall pay the sum of R700
000.00 in respect of general damages.
AS
BOONZAAIER AJ
On
behalf of Plaintiff
: Adv CG
Cross
Instructed
by
Du Plooy
Attorneys
BLOEMFONTEIN
On
behalf of Defendant Ms
Mkwanazi
State
Attorneys
BLOEMFONTEIN
1.
RAF v Marunga
2005 (5) SA 164
(SCA) at 169 E-F.
[2]
(2003),
Corbett and
Honey,
Quantum of Damages
(“QOD”),
Vol V at E3 -11
[3]
(2010), QOD,Vol VI at E3 – 1.
[4]
2003
(5) SA 65
(SCA)
[5]
(5637/2016)
[2019] ZAFSHC 52
[6]
1997(4)
QOD e 3-31(N)
[7]
1971
(1) SA 530
(A) at 536.