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[2019] ZAGPPHC 475
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Radebe v Road Accident Fund (14645/17) [2019] ZAGPPHC 475 (8 August 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NO: 14645/17
8/8/2019
In
the matter between:
ROSELYN
RADEBE
Plaintiff
and
THE
ROAD ACCIDENT
FUND
Defendant
JUDGMENT
TEFFO,
J:
Introduction
[1]
On 20 August 2014 the plaintiff, an adult female, who was 26 years
old at the time,
was involved in an accident. She was a passenger in
the motor vehicle. She seeks compensation from the defendant for
damages suffered
by her as a result of the injuries she sustained in
the collision.
[2]
The merits in this matter have been
settled and the defendant is liable to pay 100% of the plaintiff's
agreed or proven damages
The defendant has agreed to furnish the
plaintiff with an undertaking in terms of section 17(4) of Act 56 of
1996 for her future
medical expenses. The claim for loss of earnings
has been postponed for later determination. This court has to
determine the amount
of the plaintiff's claim for general damages.
[3]
The parties have decided not to lead
viva voce
evidence,
but to present their cases on the basis of their respective experts'
medico-legal reports which have been admitted as
evidence. The
parties' experts have not filed any joint minutes.
Background
[4]
According to the hospital records read together with the RAF 4 form.
the plaintiff
sustained a soft tissue Injury to the right leg and
lower back. She was transported by ambulance to Jubilee hospital. The
initial
resuscitation was done. She was given medication for the
right leg pain and discharged on the same day. She started
experiencing
lower back ache. She consulted a general practitioner,
Dr Mathulwe, the next day. She was given pain medication. Or Mathulwe
referred
the plaintiff to a physiotherapist for rehabilitation from
January 2015. She consulted with Dr Khan, the plaintiff's orthopaedic
surgeon, in May 2016. X-rays were taken and an MRI scan was done. On
17 May 2016 she was admitted at Louis Pasteur hospital where
she was
treated with NSAIDS. The MRI scan showed disc changes at L5/ S1. She
continued receiving physiotherapy.
The
injuries
[5]
Dr Khan. the plaintiffs orthopaedic
surgeon, found that the plaintiff sustained a lumbar disc prolapse
with severe lower back pain.
He opined that no future surgical
intervention was anticipated. The pain was more likely due to lumbar
disc injury and degeneration
at LS/ S1.
[6]
According to Dr Mosadi, the plaintiff's
neurosurgeon, the plaintiff suffered a grade 2 concussion as a subset
of a mild head injury
which is evidenced by no history of loss of
consciousness and chronic headache. The above Injury could result in
the plaintiff
suffering prolonged neurocognitive impairments She is
suffering from post-concussion headaches.
[7]
Dr Mokhuane. the plaintiff's psychiatrist, opined that the plaintiff
presents with
somatoform pain disorder, depression and post-traumatic
stress disorder.
[8]
N Mqhayi, the plaintiffs clinical
psychologist's assessment confirmed the post-traumatic stress
disorder, depression and anxiety
symptoms that are severe in nature.
[9]
The defendant's orthopaedic surgeon, Dr
Sibanyoni, found x-rays of the left knee and lumbar spine to be
normal, the plaintiff's
orthopaedic prognosis to be good and no
future surgery was foreseen. According to him and the MRI scan done
by Dr Khan, the plaintiff
does not present with any impairments from
the injuries she sustained.
[10]
Dr Chula, the defendant's neurosurgeon,
found that the plaintiff sustained a mild head injury and a soft
tissue injury to the lower
back which resulted in anxiety, memory
impairment and post-traumatic stress. The injuries have been there
for four years after
the accident without any further deterioration.
She has reached maximum medical improvement and has 3% future risk of
seizures
as a result of the head injury in comparison to the general
population
Pain
and suffering
[11]
Acc9rding to Dr Khan, the plaintiff's
orthopaedic surgeon, the plaintiff suffered from severe lower back
pain at the time of the
injury. Acute pain was treated with NSAIDS.
It never got better and changed to chronic form She is still
suffering from an agonizing
lower back. She is unable to walk, sit or
put shoes on. The pain is most likely due to the lumbar disc injury
and degeneration
at L5/S1 but there is no radiological signs. The
pain radiates to the plaintiff's legs and the right leg is more
affected than
the left leg. Dr Khan could not find any other cause
for the back pain.
[12]
Dr Khan is of the view that future medical treatment may improve the
pain the plaintiff is experiencing.
[13]
It was reported to Dr Khan that the
plaintiff used to play netball and football before the accident. She
is unable to enjoy any
of the sports after the accident Her mobility
has been seriously affected She feels cramps and weakness in both
lower limbs She
is unable to sit or stand for more than 10 minutes
She is unable to perform household chores now due to the pain in her
lower back.
She is unable to fulfil other activities of daily living.
[14]
According to Dr Khan's prognosis, the
plaintiff should get better by proper future non-operative and
surgical treatment. Physiotherapy
should improve her condition. In
the long term, the plaintiff's back will remain painful and will
develop spondylosis
[151
According to Dr Sibanyoni, the defendant's orthopaedic surgeon, the
plaintiff suffered acute pain
as a
result of the accident. Her
pain subsided over a period of two weeks. She only consulted the
general practitioner, Dr Mathulwe,
two years after the accident. She
currently complains of lower back and left knee pain which injuries,
do not interfere with her
daily living. Dr Sibanyoni's view is that
the plaintiff should be able to participate in sporting activities
relevant to her age.
She has not lost any amenities and hobbies as a
result of the accident.
[16]
The plaintiff's neurosurgeon, Dr Mosadi,
is of the view that the plaintiff has suffered acute pains for a week
after the accident.
She has suffered chronic pains to date Normal
amenities of life were lost during the period of hospitalization. It
is not clear
from the records what was the period of her
hospitalization. The plaintiff was only at Jubilee hospital for a
day. The period she
was
at
Louis
Pasteur hospital is not clear.
[17]
Dr Chula, the defendant's neurosurgeon
confirmed that the plaintiff suffered acute pain which was managed
and she currently has
chronic pain. His view is that her life
expectancy has not been affected by the injuries sustained.
[18]
Ms T H Komape, the plaintiff's
physiotherapist's opinion is that physiotherapy and rehabilitation is
likely to improve lumbo-pelvic
signs of dyskinesis and associated
symptoms. Physiotherapy and rehabilitation alone may have limited
effect in improving 1umbosacral
radiculopathy. According to the
physiotherapist who has been treating the plaintiff, Mr Isaac
Shongwe, the plaintiff has been under
his management and care far the
past three years. She has prolapsed discs between Jurnbar vertebrae
number four and five and between
lumbar vertebrae number five and the
first sacrum spine. She wears a lumbar brace to support her spine on
a full time basis. She
attends monthly physical therapy sessions and
has been showing a slow but progressive improvement. The severity of
her pain symptoms
prevents her from being employed since she cannot
stand or sit for long periods of time. He recommended continued
physical therapy
treatments to assist the plaintiff's healing
process. The physiotherapist is of the view that if the
recommendation is not adhered
to,
the
plaintiff will risk future injury
and possible disablement.
The
Law
[19]
It has repeatedly been stated that in
cases in which the question of general damages comprising pain and
suffering, disfigurement,
permanent disability and loss of amenities
of life arises. a trial court in considering all the facts and
circumstances of a case,
has a wide discretion to award what it
considers to be fair and adequate compensation to the injured
party.
[1]
In
Protea Insurance Company v
Lamb
[2]
,
Potgieter JA considered what regard
should be given to awards in previously decided cases. After
considering the
dicta
in
several decisions, Potgieter JA stated that there is no hard and fast
rule of general application requiring a trial court or
court of
appeal to consider past awards. He pointed out that it would be
difficult to find a case on all fours with the one being
heard but
nevertheless concluded that awards in decided cases might be of some
use and guidance
Application
of the law to the facts
[20]
I have Considered earlier awards and I
do not intend to cite all of them. The parties' respective counsel
have referred me to cases
they considered to be comparable to this
case In
Ramolobeng v Lowveld Bus
Services (Pty) Ltd and Another,
[3]
the plaintiff who was 34 years old at the time, was awarded R550
000,00 general damages in 2015 (current day value: R644 000,00).
The
injuries suffered were more severe. The plaintiff was initially
treated conservatively , analgesics physiotherapy and rest.
Much
later he underwent spinal surgery - an artificial disc was inserted
at the levels L3/L4. He was hospitalised for roughly six
months in
total. The plaintiff in the current matter, was discharged on the
same day of the accident after being transported to
Jubilee hospital
after the accident Only pain medication was given to her. She
consulted Dr Khan more than year after the accident.
Both parties·
orthopaedic surgeons agree that no future surgical intervention was
anticipated. The
sequelae
of
some of the plaintiff's injuries were comparable to those suffered by
the plaintiff in the
Ramolobeng
matter although more severe.
[21]
In
Oosthuizen v
Road Accident Fund,
[4]
a 24 year old
male at the time of the accident, was awarded R550 000,00 general
damages in 2016 (current day value R615 000,00)
The injuries suffered
were also more severe compared to those of the plaintiff in the
current matter.
[22]
In
Lawson v
RAF
[5]
,
a 22 year old
medical practitioner was awarded R300 000,00 for general damages
(current day value: R455 000,00). These injuries
are also
distinguishable to those suffered by the plaintiff in the present
matter.
[23]
Other cases referred to were
Rheeder
v RAF
[6]
,
Battle v RAF
[7]
Nhatumbo v RAF
[8]
where general
damages awarded were in the range of between current day values of
R165 000, 00 and R264 000, 00. Although the
sequelae
of some injuries
were comparable to those of the plaintiff in the current matter, I am
of the view that the injuries suffered in
these two matters are less
severe to those suffered by the plaintiff.
[24]
The plaintiffs counsel has proposed that
an amount of R650 000,00 will fairly compensate her general damages
while the defendant's
counsel has proposed an amount of R3000 000,00.
I have considered the injuries sustained by the plaintiff as a result
of the collision,
the fact that both parties' orthopaedic surgeons
agree that no future surgical intervention has been anticipated and
the fact that
the plaintiff is still experiencing chronic pain on her
left knee and lower back. She has been referred to a physiotherapist
for
rehabilitation since January 2015. The physiotherapist, who has
been treating the plaintiff for three years after the accident.
is of
the view is that the severity of her pain symptoms prevents her from
being employed since she cannot stand or sit for a long
period of
time. He has recommended continued physical therapy treatments to
assist the plaintiffs healing process. He indicated
that
physiotherapy and rehabilitation may have limited effect in improving
lumbosacral radiculopathy, The fact that the plaintiff's
condition
will improve through physiotherapy and rehabilitation and that she
will benefit from occupational therapy and biokinetics
for pain
management, does not mean that she will be pain free. According to Dr
Khan! the plaintiff's orthopaedic surgeon. in the
long term the
pli3intiff's back will remain painful and will develop spondylosis.
[25]
There is no evidence from the defendant
to gainsay the plaintiff physiotherapist's opinion. The defendant's
orthopaedic surgeon,
Dr Sibanyoni, agrees that the plaintiff still
complains of chronic pain on the lower back and left knee. I find his
opinion that
the pain will not interfere with plaintiff's daily
living, she should be able to participate in sporting activities
relevant to
her age and that she has not lost any amenities and
hobbies as a result of the accident, not to be realistic. It is not
supported
by any evidence.
[26]
The neurosurgeons agree that the plaintiff has experienced and is
currently still experiencing
chronic pain.
[27]
There are no reports to counter the reports of the plaintiff's
psychiatrist and the clinical
psychologist with regard to the
sequelae
of
the injuries the plaintiff suffered. Dr Chula, the defendant's
neurosurgeon, agrees that the mild head injury and the soft tissue
injury that the plaintiff sustained to the lower back, resulted in
the
sequelae
that
she is experiencing. The plaintiff's clinical psychologist, whose
opinion has not been challenged, is of the view that the
sequelae
suffered by the
plaintiff as a result of the injuries, are severe in nature
[28]
In my view the fair
and reasonable award to compensate the plaintiff's general damages is
the sum of R450 000,00
[29]
In the result I make an order in terms
of the draft order marked "X".
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
For
the plaintiff
Kotlolo Attorneys
Instructed
by
L D
Haskins
For the defendant
Tau Phalane Inc
Instructed
by
RM Phiri
Heard
on
5
March 2019
Handed
down on
8 August 2019
IN THE HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
ON 05 MARCH 2019
BEFORE THE
HONOURABLE JUSTICE TEFFO J
IN COURT4G
Case No.:
14645/17
In
the matter between:
RADEBE
ROSELYN
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
DRAFT ORDER
Having
heard Counsel
,
the following order is made:
1.
1.1.
The
Defendant shall pay the sum of
R
450 000,
00 (FOURT HUNDRED AND FIFTY THOUSAND RAND)
Plaintiff's
attorneys, Kotlolo Attorneys Incorporated, in respect of the
plaintirr s claim for general damages, which amount shall
be payable
by direct transfer into their trust account, details of which are at
paragraph 7 below.
1.2.
The issue of loss of earnings is
postponed
sine die.
2.
The Defendant is ordered to pay
the Plaintiffs party and party costs on the High Court scale, which
costs shall include, but not
be limited to:
2.1.
The costs of the preparation of 6 trial
bundles as per the Gauteng High Court and as agreed upon in the
Pre-Trial Minutes .
2.2.
The reasonable taxable qualifying,
reservation and preparation fees of the Plaintiffs expe1i witnesses,
as well as the costs of
all the reports and/or addendum reports
and/or joint minutes of whom notice was given, or whose reports are
in the possession of
the Defendant and/or the Defendant's attorneys,
including the costs of obtaining the reports of the expert witnesses
served on
the Defendant or in its possession, including any special
investigations 1 traveling fees incurred by and/or on behalf of the
Plaintiff
to obtain the reports concerned, and attendance of any
expert witness's consultation(s) and/or investigation(s), if any.
2.3.
The costs of counsel.
2.4.
The reasonable costs of attorney and
counsel for preparation and attendance at pre-trial, which includes
reasonable travelling costs.
2.5.
The costs of all subpoenaed individuals
as well as the subpoena
duces tecum
costs, if any.
2.6.
The reasonable costs for preparation for
trial.
2.7.
The reasonable costs of attendance at
court for trial of the attorney.
2.8.
The costs in respect of obtaining
documents and lodging or the Plaintiff’s claim; and
2.9
The costs to date of this order, which costs shall further include
the reasonable costs
and expenses of the Plaintiff's attorney,
correspondent attorney and assessors (if any), which costs and shall
also include all
necessary travelling costs and/or expenses, if any,
such costs further to include time spent and kilometers travelled
concerning
attendance to Court and preparation for trial.
3.
Should
the Defendant foil to pay the Plaintiff's party & party costs as
taxed or agreed with J 4 (fourteen) days from the date
of taxation,
alternatively date of settlement of such costs, the Defendant shall
be liable to pay interest at a rate of 10.00%
per annum, such costs
as from and including the date of taxation, alternatively the date of
settlement of such costs up to and
including the date of final
payment thereof.
4.
The Plaintiff shall, in the event
that the parties ar not in agreement as to the costs referred to in
paragraph 4 above, serve the
notice of taxation on the: Defendant's
attorneys and shall allow the Defendant seven court days to make
payment of the taxed costs.
5.
The taxed or
agreed costs, as referred to above, shall be paid into the trust
account of Account Holder: Kotlolo Attorneys, Bank
Name: Absa Bank,
Account Number: [….], Branch Code: 632005,
Ref:
DDK/K707/l 6/ M.
6.
There is a valid contingency fee
agreement.
BY
ORDER
REGISTRAR
On
behalf of the Plaintiff:
Adv. LD Haskins
079 512 3754
On
behalf of the Defendant:
Adv RM PHIRI
079 186 0575
[1]
Road Accident Fund v Marunga
(2003) 2 All SA 148
SCA
[2]
1971 (1) SA 530
(A) at 535A-B and the other cases cited there
[3]
2015
(FC5) QOD 29 GNP
[4]
2016 (FC4) QOD 5 GNP
[5]
2010 (6C4) QOD 1 ECP
[6]
2014 (FCS) QOD 1 GNP
[7]
2015 (FC3 ) QOD 1 wee
[8]
2014 (FC5) OOD 12 GSJ