About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2017
>>
[2017] ZAGPPHC 1202
|
|
Masemola v RAF (53419/2014) [2017] ZAGPPHC 1202 (3 April 2017)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case No:
53419/2014
3/4/2017
In the
matter between:
MABUTI JACOB
MASEMOLA
Plaintiff
And
THE ROAD
ACCIDENT
FUND
Defendant
JUDGMENT
MAKHUBELE
AJ
Introduction
[1] The plaintiff
("Mr. Masimula") instituted action against the Road
Accident Fund
("the RAF") and claimed damages suffered as a
result of the injuries that he sustained when he was knocked down by
an
unknown motor vehicle on 07 September 2013 on the R573 Moloto Road
, KwaMhlanga, Mpumalanga Province.
[2]
When the matter came before me, I was advised by the both Counsel for
the parties
that the RAF has conceded the merits of the claim and has
agreed to compensate him 100% of his proven damages. Furthermore, I
was
advised that the other heads of claims were settled as indicated
in the Draft order that will be attached to this judgment as Annexure
"X".
The
only issue before me was to determine the extent of the General
Damages that Mr. Masimula is entitled to. Counsel assured me
that
they would advance their argument on the basis of the respective
expert reports and joint minutes filed.
I was also advised that there was consensus on the
nature of the injuries that he has suffered as well as the sequelae
thereof.
The only dispute was the amount that should be awarded. The
allocation was for a two (2) hour argument and both Counsel confirmed
this. Contrary to these submissions and confirmation of duration, the
argument lasted almost two days.
The
dispute was on the nature of the injury on his neck; whether it was a
facture of the or just a soft tissue injury. Despite the
absence of
conclusive evidence, counsel for Mr. Masimula , Mr. Lourens, sought
to argue that I should make a finding that there
was a fracture of
the neck because the attorneys for the RAF admitted the contents of a
document entitled "Application to
transfer a patient" which
was completed by the first hospital that admitted him on his transfer
to the next one. This document
refer s to injuries that he has
sustained, amongst which is a query with regard to a neck fracture.
This document does not constitute
what one would refer as “hospital
notes” or a diagnosis by a doctor.
The argument with regard to the nature of the injury on
Mr. Masimula's neck took almost the entire first day and ha lf of the
second
day. Mr. Lourens went as far as to submit a bundle of cases
dealing with the question of the ability of an attorney to bind the
client by making admissions. He abandoned this argument whilst Ms
Mthembu, on behalf of the RAF was on her feet addressing this
issue.
He simply stated that he was prepared to accept that the alleged neck
fracture was an unspecified soft tissue in jury of
the neck. This
concession actually confirms what the Orthopaedics agreed on, as it
will appear hereunder.
I
could write a substantive judgment just on the submissions relating
to the alleged neck fracture that is based on an "admission"
by the RAF attorneys. This issue started as a non-issue because there
is no medical evidence to support it. In fact, the medical
reports
indicated that the neck injury or alleged fracture was not visible in
the x-rays.
This
delay that was caused by argument in this regard has a bearing on the
issue of costs that should be allowed to the successful
party.
Other
than this, the medical history is very simple and the experts are
agreed on the basic details, except for the appropriate
amount that
should be awarded for general damages.
The relevant expert reports
[3] Mr.
Masimula's injuries are of an orthopedic nature and appear from the
joint minutes
of the Orthopaedic Surgeons, Drs E Mennen and AF
Pienaar dated 07 March 2017. They are indicated as follows:
"1. Left compound
tibia fracture.
2.
Closed
injury of the pelvis.
3.
Fracture
of the right acetabulum.
4.
Fracture
of the right pubic rami.
5.
Injury
to the left knee.
6.
Unspecified soft tissue injury of the neck."
[4] The
Orthopaedics agreed that the injuries were of a serious nature and
that Masimu
la has suffered a long-term serious physical impairment.
They also agreed that the instrumentation should be removed from the
left
tibia at his earliest convenience and that at the time of this
surgery, an arthroscopic assessment of his left knee could be
performed
and any internal derangement including a cruciate ligament
injury be repaired. They also established that there were signs of
post-traumatic
osteoarthritis of the right hip and that he would
require a total hip replacement on the right no longer than 5 years
from the
present.
On employability, they both agreed that taking into
account his age, the nature of the pathology and the physical demands
of his
work, he would not be able to perform work in the building
industry.
On
pain and suffering, they noted that he experienced acute pain
following the motor vehicle accident and the subsequent surgery.
He
is symptomatic and suffers from chronic pain but that this has no
bearing on his life expectancy.
Masimula's expert reports.
[5] Masimula's
Urologist, Dr. D. Ligthelm indicated the following in paragraph 7 of
the
report under "Discussion (urologica l"
" -The above patient has no current urological
complaints.
-
This patient suffered
a
closed pelvic fracture (ring fracture).
When
a
patient suffers
a
pelvic
fracture we know that tremendous forces
was
applied to his
pelvis to cause such
a
fracture.
He did bot suffer an associated bladder-or urethral
injury but because of the excessive forces that were applied to his
pelvis,
he will have suffered neurovascular change of his pelvic area
, making him prone for erectile dysfunction at an earlier
age as
expected. Although he currently
does
not suffer from
erectile dysfunction, it can be expected for him to suffer from
erectile dysfunction at an earlier
age
than normally
anticipated in men (5-10 years earlier)"
[6] The
Urologist prescribed certain devices and tablets that were
anticipated he would
need in the next five years when early erectile
dysfunction sets in.
[7] The
Plastic and Reconstructive Surgeon , Dr Pienaar, noted the following
scars from
a plastic surgery point of view.
"
1. Over his chin there is
a
very regular
" W"
shaped scar which measures 21
/2 x
1
cm
which is
very visible
and
unsightly.
-A
large part of his left lower
leg
is covered
by hypo-pigmented abrasions. They are mutilating in nature and
extremely visible and unsightly. Specifically there is
a
scar
over his left knee which measures 5cm. below his left knee there is
a
2x2
cm
hyper-pigmented puncture
scar
with
a
screw palpable underneath and protruding which is palpable and
painful.
-There is
a 2cm
and
a
11
/2 cm
hypo
pigmented
scar over
his left mid tibia there is
a
area of 8-x5
cm
of hypo pigmented scarring. There is
a
clear irregularity over his tibia and there is bony contour
deformity. There is
a
16
x
16
cm
scar that runs
down to his ankle . It is hypo pigmented irregular very visible and
unsightly. On the medial aspect of his c a lf
there are two 11 /2
cm
puncture scars. On the lateral aspect there are two 11
/2 cm
puncture
scars.
These scars are irregular , mutilating in
natures, very visible and extremely unsightly"
[8] On future
treatment, Dr Pienaar indicated that Masimula would need scar
revision surgery
to his chin and selective revision over his left
lower leg.
[9] He also
indicated that other than the severe scarring , the accident has left
him shy, withdrawn,
self-conscious and this has had an effect on his
emotional wellbeing, confidence and self-esteem. It also has a
detrimental effect
on his quality of life.
[10] According to the Clinical
Psychologist , Dr. Truter , he now suffers from depressed mood that
is inspired
by his physic a l limitations , pain and discomfort.
He noted that Mr. Masimula had some accident related
complaints or changes such as difficulty to carry large containers of
water,
walking long distances and painful sexual activity.
He
also still relives the accident and displays features of a "Post
Traumatic Stress Disorder" which is triggered by for
example
passing the scene of accident or being alone.
Certain psychometric tests were performed and they
confirmed , amongst other things, the fact that he has severe
depression.
He
suffer s from an adjustment disorder with depressed mood, and this
requires psychotherapy to prevent the symptoms from becoming
even
more debilitating and chronic.
[11]
The Occupational Therapist, Abida Adroos noted that Masimula
complains of pain in the right pelvic
area and right hip and that
this radiates into his groin. She also noted that he has pain in his
left knee and lower leg, neck
pain and that he is unable to lie on
his right leg.
[12] After a physical
examination , some of the following findings w ere made were that;
- There is
increased muscle spasm in his lower back in the right pelvic area.
- Malignant of
his left lower leg.
- Limited range of
movement in his right hip with flexion and that movements are also
limited
with internal and external rotation. He ha s pain in his
groin with movements.
[13] His functional
ability has been compromised due to pain in his right hip and pelvis
as well as
his left knee. He struggles with prolonged standing due to
bilateral lower limb symptoms.
RAF expert reports
[14] I have already
referred to the joint minute of the Orthopaedic Surgeon’s in
the preceding
paragraphs. Ms Mthembu, on behalf of the RAF
highlighted certain finding s though that were made by Dr. AF Pienaar
in his own expert
rep ort, for instance, under "Treatment",
Dr. Pienaar noted that Mr. Masimula 's left tibia and fibula were
managed by
means of external fixation followed by the intramedullary
nailing on 15 September 2013 and that his other injuries were treated
non-operatively.
[15]
Dr. Pienaar conceded that Mr. Masimula has experienced acute pain and
discomfort
and that he was still symptomatic because of long-term
sequelae . He however, is of the view that provision should be made
for
future medical treatment. This is basically what the joint
minutes has also indicated. Finally, he noted that the sequelae of
the
orthopaedic injuries will not have an effect on his life
expectancy.
Other expert reports filed by the RAF( Occupational The
rapist and Industrial Psychologist) , were not referred to in
argument .
[16] Ms
Mthembu referred to the plaintiff' s rep orts in argument with a
view, I believe,
to minimize the weight of the opinions expressed
therein. For example, she lamented the fact that Dr. Mennen's report
on the basis
that it was compiled over two years ago and at least a
year after the accident. The argument is that current status of the
issue
s raised therein is uncertain.
She
also emphasized the fact that the Urologist has only indicated that
Mr. Masimula would be prone to early erectile dysfunction,
and
provision has been made for treatment.
Legal
principles
on
general
damages
[17]
I deem it necessary to reproduce the following paragraphs in the
judgment of
Navsa JA
In the matter of
Road Accident Fund
v Marungo
2003 (5) SA 165
(SCA) that sums up the principles
in the assessment of claims for general damages and earlier
authorities on the issue. I deem
it necessary to reproduce the
paragraph’s;
"
[23] This Court has
repeatedly 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. This Court will interfere where
there
is
a striking disparity between what the trial
court
awarded and what this Court considers ought to have been awarded:
See Protea Insurance Company
v
Lamb
1971 (1) SA 530
(A) at
535A-B and the other cases cited there.
[24]
At 5358 and
following of the Protea case Potgieter JA considered what regard
should be given to awards in previously decided cases.
After
considering dicta in several decisions of this Court the learned
judge of appeal stated that there was no hard and fast rule
of
general application requiring a trial court
or
a 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.
[25]
In the
Protea case, above , this Court in determining the measure of damages
considered all relevant factors and circumstances and
derived
assistance from the 'general pattern of previous
awards'.
[26] The following
case
(with synopsis) which was included in the list of cases to which
the trial Court was referred
for
purposes of comparison,
demonstrates the difficulty and (paradoxically) the usefulness of
considering awards in previously decided
cases:
Wright
v
Multilateral Vehicle Accident Fund a
1997 decision of the Natal Provincial Division
-
Corbett and
Honey Vol 4 E3-31- The plaintiff, a 28-year old
woman,
sustained
a open comminuted fracture of the right femur with complete division
of the quadriceps muscle and loss of substantial
quantity of bone
which extended
into
the knee joint. There was an initial
surgical procedure to repair the quadriceps mechanism
and
to
apply an external fixator
-
plaintiff hospitalized for two
weeks and discharged on crutches. Readmitted
two
weeks later
for treatment of infection. Later readmitted for a period of one week
for further treatment for infection. At the same
time the external
fixator
was
removed and re placed with a pin. Traction applied
at home for four weeks. The fracture foiled to unite
and
the
plaintiff was again hospitalized for a few weeks during which
an
open reduction was carried out for
an
internal fixation.
The plaintiff
wore
a leg brace with
a
hinge for several
weeks
and
left with
a
limitation of flexion in her
right knee , bad scarring of the right leg, a shortening of the leg
by 3Y2
c m
requiring raisers in footwear. She experienced
weakness of the leg, residual pain
and
recurring infections
and
abscesses , which would in future probably require
antibiotic therapy
and
surgical drainage. Removal of the pin
was expected. Plaintiff experienced a great deal of pain,
particularly during episodes of
infection. She had been
an
outdoors
person
but was
now
permanently unable to
run or play sport, kneel or squat. She experienced difficult y in
negotiating stairs-
awarded R65 000-00
as general damages
[value in 2001 (at time of trial
in
the present case)
-
RB
1 000-00].
[27] In the Wright case (Corbett
and
Honey Vol 4 E3-36)
Broome
DJP stated:
'I consider that when having
regard
to
previous
awards one
must recognize 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
greater
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.'
[28] The Wright case at E3-34 to
E3-37 is instructive. The learned trial judge considered all the
relevant circumstances
and
se t out in detail the reasoning
that motivated the
award."
[18] In the matter of
De
Jongh v Du Pisanie NO
2004 (2) ALL SA 565
(SC A), Brand JA
deal t with issue s such as fairness in the context of previously
decided cases of similar facts. The comparison
is is not a mechanical
process because the court must still exercise its discretion . They
only serve as broad guidelines to indicate
a pattern of previous
awards based on the facts of each case .
[19] On fairness of the
award, Brand JA also cited, with approval the following passage from
the judgment
of Holmes J in the matter of Pitt v Economic Insurance
Co. Ltd
1957 (3) SA 284
(DJ where he stated the following;
"
The courts must take care to see that its
award
is fair to both sides-it must give just compensation to
the plaintiff , but it must not
pour
out largesse from the
horn of plenty at the defendant's
expense."
[20]
The approach and process of comparison of previous awards was
described as follows in the matter of
Protea Insurance Co. Ltd v
Lamb 1971(1) SA 530 (A) 534 to 5368
;
"It should be emphasized,
however,
that
this
process
of comparison
does
not take the form of
meticulous examination of awards
made
in other
cases
in
order to fix the amount of compensation ,·
nor
should
the
process
be allowed
so
to dominate the enquiry
as
to become
a
fetter upon the Court's general discretion in
such matters.
Comparable
cases,
when available , should
rather be used to afford
some
guidance, in
a
general
way, towards assisting the Court in arriving at
an
award which
is not substantially out of general
accord
with previous
awards in broadly similar
cases, regard
being had to all the
factors which are considered to be relevant in the assessment of
general
damages.
At the
same
time it may be permissible
in an appropriate case to test any assessment arrived upon this basis
by reference to general pattern
of
previous awards in cases
where the injuries and their sequelae may have been either more
serious or less than those in the case
under consideration.
"
[21] Counsel for the
both parties referred me to several judgments on the correct approach
for
determining general damages . I am grateful for the assistance.
In
his written heads of argument, Mr. Lourens referred me to cases such
as
Hurter v RAF and Another 20110 (6) quantum of damages A4- 12
(ECP)
at para 20 to advance a contention that in exercising my
discretion, I should take into account a broad spectrum of facts and
circumstances
that include the nature of the injuries, the se verity
thereof and how it impacts on the quality of life of the plaintiff.
Furthermore,
I should also take into account the modern approach
which takes into account the rising standards of living and the fact
that past
awards in our courts were conservative as compared to other
jurisdiction ( RAF v Marungo
2003 (5) SA 164
(SCA a t 170).
[22]
Ms. Mthembu referred me to the matter of
Sandler
v
Wholesale Coal Sup
plies Ltd
1941 AD 194
at
199 where the court stated the following:
"The amount to be awarded
as
compensation
can only be determined by The broadest general considerations and the
figure arrived at
must
necessarily be uncertain, depending
upon
the judge' s view of what is fair in all the
circumstances of the
case"
[22.1] She also referred me to extracts from
"The
Law of Third Porty Compensation",
a book written by HB
Klapper , on factors that may influence an award for general damages.
These include the age of the plaintiff,
sex, culture , resistance to
pain and lifestyle.
Submissions
on
comparable awards
[23]
In his heads of argument that were handed up during the hearing,
Mr.
Lourens referred to several awards that in his view , are comparable
to the circumstances of this case. I counted eleven (11),
but I
believe these are sufficient to mention.
[23.1]
Benade and Benade v The Road Accident
Fund
(Case number 536/2007, Eastern Cape High Court). The
plaintiff had suffered multiple orthopaedic injuries that included,
fracture
of the left clavicle, compound fracture of the radius and
ulna, fracture of the left 4
th
and 5
th
metacarpal shafts of the knuckle joints of the hand , fracture of the
right superior and inferior pubic rami of the pelvis and
fracture of
the right tibia. In 2008, the award for general damages that was made
was the sum of R600 000.00 , which translates
to R9 l 9 543.00 in
2016.
[23.2] In
Schmidt v Road Accident Fund
4834/05
(2006) ZAGPHC 64
(23 June 2006), the plaintiff had
suffered fractures of the left humorous, left proximal radius and
ulna at the elbow, right midshaft
radius and left tibula . She also
had a knee injury that became infected at some stage, thus increasing
a possibility of a bilateral
knee replacement and one revision later
on. She was awarded R600.000 00, which translate to R 1 098.432 in
2016 terms.
[23.3] On appeal, the plaintiff in
Mpondu
v The Road Accident Fund
(case number 283/2011 , Eastern Cape was
awarded general damages of R550 000.00in 2011, which translates to
R718.258.00 in 2016
terms.
The injuries included a fractured ankle and femur. The
plaintiff underwent a hip replacement and suffered facial paralysis.
[23.4]
Roe v RAF
(South Gauteng High
Court, Case No. 16157/ 2009, handed down on 1 April 2010). The
plaintiff had sustained a fractures of the femora
l shaft, tibia,
right patella and left humerus. He also had an injury to the right
foot and fracture on an upper tooth. An award
of R650 000.00 was
made. It equates to R9996.171.60 in present monetary terms.
[23.5]
Ramolobeng v Lowveld Bus Services
(Pty)Ltd & Another
(Quantum of Damages Vol. Vii CS-29 , North
Gauteng Case No. 29836/2009, the judgment of Hassim AJ handed down on
03 February 2015)
an award of RSSO 000 was made for general damages.
This is an equivalent of R577 477.00 in 2016 monetary terms.
The plaintiff sustained injuries to the cervical and
lumber spine as well as some concussions. He underwent spinal surgery
for insertion
of an artificial disc at L3/ L4. He suffered depression
. He has reduced power in left lower limb and reduced sensation over
it
and monoparesis . His enjoyment of amenities of life w a s
reduced. He suffers from severe erectile dysfunction .
[23.6]
Makeke v RAF
(Eastern Cape Case No. 611
/2009. Judgment of Ibrahim J delivered on 23 November 201OJ.
The plaintiff was a 70-year-old male person . He lost an
upper tooth and two in the lower jaw. He also had injuries to his
neck,
shoulder and wrist. He was an active gardener before the
accident, but could no longer use his arms as before. An award of
R380
000.00 was made. This is an equivalent of R530 904 .00 in 2015
monetary terms.
[23.7] The plaintiff in the matter of
Vukubi v
RAF
(Eastern Cape-Bisho, Case No. 1709/2004 , delivered during
2007) sustained a severe dislocation of the right knee joint and
tears
to patella tendons and cruciate ligaments. There was also a
closed fracture of the humerus , radius and ulna. An award of R300
000 , 00 that is equivalent to R512740.00 in 2016 monetary terms was
made.
[23.8] The plaintiff in the matter of
Mofulatse
v RAF
( North Gauteng High court case No. 77/2010), an award of R
l 200.00 was made during 2013. It translates to R1 403.450 in current
monetary terms.
The injuries that the plaintiff sustained included an
open fracture of the skull, left and right sup racondylar, left
colles, left
tibia and fibula. He had surgery on both femurs and left
arm, and was treated in ICU for about 6 days and walked with a
walking
frame thereafter .
[23.9] The plaintiff in the matter of
Zavale v
the RAF
(South Gauteng Case No. 1332/2012, judgment delivered on
20 August 2013).
The p la in tiff was awarded genera l damages of R720
000.00 which is equivalent to R842 070 in 2016 monetary terms.
He sustained fracture of the right humerus, left femur,
left elbow, right clavicle and scapula and raptures and abdominal
trauma
, liver laceration, a tea r of the left colon, dislocation of
the right thumb .
[24] During
argument he handed up a copy of the judgment of Pretorius J in the
matter
of
TM Kgopyane v The Road Accident Fund
(Case number
43235/ 201 4, de livered in 2016). An awarded for general damages of
R600 000.00 was made to a female plaintiff who
was 22 years at the
time of the accident that occurred on 20 January 2013 in which she
suffered a pelvic fracture which caused
damage to her bladder
resulting in permanent chronic incontinence, involuntary bladder
contractions causing the bladder to leak
urine when full. She also
sustained fracture of the right superior rami as well as a left
inferior ramus fracture along the link
of the bone. She also had a
chest contusion, injury to her right foot as well as a soft tissue
injury to her neck and shoulder.
She suffers from moderate depression
and post- trauma tic stress disorder.
[25] In terms
of the Amended Particulars of Claim, Masimula seeks an award of R1
500 00.00.
In
his argument in reply, Mr. Lourens conceded that this amount may be
too exaggerated. He argued for an award of R 1 300 00.00.
The
emphasis in Mr. Lourens's argument was that other than the permanent
nature of the disabilities occasioned by the physical
injuries,
Masimula was totally unemployable, and that this affects how he feels
about himself. He has been deprived of every characteristic
that
defined him. He has also lost his physical strength, for exa mp le,
he can no longer carry heavy containers of water.
[26] Ms. Mthembu did
not have written head s of argument, however she did submit copies of
four
(4) judgments that she referred to during argument to justify
her content ion that the awards thereto are comparable to the
circumstances
of this case. Ms. Mthembu argued that an award of R800
000.00 for general damages would be reasonable and fair under the
circumstances
of this case.
[26.1] In
Hendricks v Road Accident Fund
(Vo l.V, Corbett & Honey F3- 1 ), the plaintiff was awarded R
l 45 000.00 in 2002, which translates to R388 000.00 in present
monetary terms. The injuries included a fracture and dislocation of
the hip, 3 hip replacements 4 years after the accident and
the 41h
one anticipated with a success potential of 50%. He had a shortening
of the leg and walked with a severe limp and used
crutches
permanently. He had broken ribs, amongst other orthopaedic injuries.
[26.2] In
Peter v RAF
(Vol.V Quantum of
Damages, F3-9), an award of R180 000 was made in 2003. It is
equivalent to R387 000.00 in today's monetary terms.
The 40-year-old male plaintiff's injuries were a
displaced intra-articular fracture of acetabulum as a result of
violent compression
of the femur head against it. He also had
considerable damage to ligaments on the femur. A hip replacement was
anticipated in 5
years and a second one after 15 years. He also had
some marked scarring on the right arm for which surgery would achieve
50% improvement
.
[26.3] In
Noble v The Road Accident Fund
( Vol 6 Corbett & Honey, J2-54), a 36-year-old male plaintiff
was awarded general damages of R600 000.00 in 2011. He had brain
injury, fracture of right femur , shortening of right leg, fracture
of right tibia and severe scarring.
[26.4] In
Nonkwali v The Road Accident Fund
(Vol
6 Corbett & Hone y, J2-27) a plaintiff with pelvic injuries was
awarded general damages of R500.000.00 in 2009, which translates
to
R766 000.00 in present day monetary terms.
[27] On the
comparable cases that Mr. Lourens relied on to justify an award of R
1 500 00.00
for genera l damages, M s. Mthembu submitted that;
[27.1] the sequelae in the
Schmidt case
were far more severe that in the present matter. The plaintiff in
that case was admitted in hospital for 6 weeks and multiple
procedures
were performed on her. She had sepsis in the right knee
and contracted MRSA infection which flared up about four times
resulting
in a lung abscess. Her life expectancy was reduced by four
years. She has extensive scarring on her legs that the Judge
described
as resembling over-stuffed sausages. She was wheelchair
bound for 14 months. She developed hypertension. A bilateral knee
replacement
and revision was anticipated.
[27.2] the sequelae in the
Mpondo
case
were also more severe than in the current matter.
[27.3] the sequelae relating to the pelvic
fracture in the
Kgopane
matter were also serious than in the
current matter. The plaintiff developed incontinence.
[28] Ms.
Mthembu submitted further that what is relevant is the sequelae , not
the multiplicity
of injuries. Furthermore, Mr. Masimula has been
compensated for his unemployability in the award for loss of future
income.
[29] I have already stated that Mr. Lourens
conceded in his reply tha t the amount of R 1 500.00 for general
damages
may be exaggerated under the circumstances. He lowered it to
R1 300.00.
He
maintained that the erectile dysfunction was a 100 % probability that
it would set in earlier than normal, not just a possibility.
He
also submitted that cases where medical procedures had failed should
clearly be distinguished because Mr. Masimula has not undergone
one.
Analysis
of the submissions with regard to comparable awards.
[30]
The fact that Mr. Masimula would experience early onset of erectile
dysfunction is one of the
issues that was emphasized during argument.
The plaintiff in the matter of TM Kgopyane v The Road Accident
suffered a pelvic fracture
that caused amongst other sequelae
incontinence and sexual problems. She was a very young woman. The
problems with her incontinence
and bladder leaks caused an
embarrassment for her during sexual intercourse with her husband .
Compared to a possible early erectile
dysfunction for a 50-year-old
ma n, I am of the view that the sequelae of the pelvic trauma is more
severe in the TM Kgopyane case
.Mr. Masimula's early erectile
dysfunction is likely to occur when he is 55 years whereas Ms.
Kgopyane already, in her twenties
is experiencing sexual
frustrations.
[31]
I agree with counsel for the RAF that the sequelae of the orthopaedic
injuries in the matters
of Schmit and Mpondo are far more serious
than in the present matter.
[32]
I have considered the remaining awards that Mr. Lourens relied on as
being comparable
to the current matter. Although not specifically
submitted, it is clear from a reading of the full judgment s, not
just the summary
in the heads of argument that the similarities are
on two levels, namely, the nature of the injuries and loss of
amenities of life.
On
the former level, I have already stated that I agree with counsel for
the RAF that the sequelae in some cases are more severe
than in this
matter. On the second level, the noticeable similarities ore in cases
such as Makeke (where the plaintiff could no
longer perform his
maintenance and gardening work), Roe (where the physical limitations
caused frustration), Ramolobeng and Kgapana
(erectile dysfunction in
the former and sexual frustration due to bladder leaks in the
latter).
[33]
As stated in earlier authorities, it is not always possible, if ever,
to find a case where
the injuries and sequelae are on all fours with
a matter under consideration, and this is in my view can be
attributed to the fact
that each individual react differently to what
may appear to be a similar in jury. As Ms. Mthembu has correctly
submitted, it is
not a multiplicity of injuries that matters, but the
sequelae thereof.
[34]
In accordance with the Du Pisanie case, comparison entails taking
into account the personal circumstances
of a plaintiff before and
after the accident, the nature of the injuries and sequelae , and
weighing these against previously decided
cases. Previous cases
provide a broad guideline that indicates a pattern of awards on
similar facts.
In
some of the cases referred to in the matter before me, it is clear
that one or other factor became decisive. In the Ramolobeng
case for
example, erectile dysfunction, inability to sit for long periods and
constant pain appear to have been the decisive factors.
[35]
Ta king into account all the relevant factors, the pattern of the
awards under similar
circumstances which as I have stated are not
limited to one case , the comparable awards range from the cases of
Kgopana , Makeke
and
Ramolobeng
on loss of amenities of
life to
Benade and Benade
,
Nonkwali
and
Noble
on
the nature of injuries and sequelae thereof. There is therefore a
need to strike a balance and to avoid overemphasizing one aspect
over
another.
[36]
I am of the view that even the reduced amount of R1 300 000.00 prayed
for on behalf of
the plaintiff is also exaggerated. The amount of
R800 000.00 argued for by the defendant is not way off the mark
considering what
I have stated above with regard to the seriousness
of the sequelae in some of cases in the plaintiff's heads of argument
where
there was orthopaedic injuries.
Accordingly,
an award of
R850 000.00
is in my view a reasonable and fair
amount to compensate Mr. Masimula for his General Damages.
[37]
Coming back to the issue of trial costs, and taking into account what
I have stated in
paragraph 2 above with regard to the delay in
finalizing the argument , I am of the view that the plaintiff is not
entitled to
recover trial costs for two days.
Consequently,
the order that I am making with regard to costs is that the plaintiff
is only entitled to recover trial costs for
one day only, namely, 07
March 2017.
[38]
I make an order in terms of the Draft marked "X" , as
amended, and initialled
by me that is incorporated in this paragraph
in its entirety.
MAKHUBELE AJ
ACTING JUDGE OF THE HIGH COUR
03 April 20 l 7
Date
heard: 07 March 2017
APPEARANCES:
PLAINTIFF:
ADVOCATE P. LOURENS
Instructed
by:
SPRRUYT INCORPORATED
Hatfield, Pretoria
DEFENDANT:
ADVOCATE N. MTHEMBU
Instructed
by:
DIALE M OGASHOA ATIORNEYS
Nieuw Muckleneuk, Pretoria