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[2016] ZAGPPHC 872
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Kgopyane v Road Accident Fund (43235/2014) [2016] ZAGPPHC 872 (22 September 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 43235/2014
Date:
22/9/16
In
the matter between:
T
M
KGOPYANE
PLAINTIFF
And
ROAD
ACCIDENT
FUND DEFENDANT
REASONS
FOR JUDGMENT DELIVERED ON 1 AUGUST 2016
PRETORIUS
J
,
(1)
The plaintiff instituted action against the
defendant for damages suffered as
a result of
personal injuries sustained in a motor vehicle collision that
occurred on 20 January 2013 involving a motor vehicle
in which the
plaintiff was a passenger at the time.
(2)
After hearing counsel it was ordered that the defendant shall pay
100% of the plaintiff's proven or agreed damages which was
granted by
ordering the defendant to pay the plaintiff R1 212 988.00 in respect
of loss of income and R600 000 in respect of general
damages, as well
as the relevant cost orders on 1 August 2016.
(3)
Both counsel argued the matter without leading any evidence. I was
informed by both counsel that they only sought a decision
and an
order and if they deemed it necessary they would request me to supply
reasons for my decision. On 5 August 2016 a request
was received from
the defendant's attorneys for the reasons for the decision. The heads
of argument, case law, court order and
court file were finally handed
to my registrar on 5 September 2016 which enables me to supply the
reasons for the decision. The
calculations of contingencies only came
to hand on 21 September 2016.
(4)
The plaintiff sustained severe injuries which were documented by an
orthopaedic surgeon, occupational therapist, clinical psychologist,
gynaecologist and industrial psychologist A report by an actuary on
behalf of the plaintiff was also obtained.
The defendant's counsel informed the court at the outset that
all the reports were admitted by the defendant and was common
cause,
The plaintiff and defendant's counsel only differed as to which
contingencies had to be applied pre and post-morbid.
INJURIES:
(5)
The plaintiff sustained a pelvic fracture, which caused damage to her
bladder and this resulted in permanent chronic incontinence.
According to Dr Swart, the gynaecologist she has involuntary bladder
contractions as when the bladder fills, she leaks urine.
(6)
Furthermore she sustained a fracture of the right superior rami as
well as a left inferior ramus fracture along the link of
the bone.
She 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-traumatic stress disorder.
(7)
She was taken to the Mamelodi Hospital by ambulance where she was
resuscitated in the emergency unit. She remained in hospital
for
three weeks after the accident. She was treated with Tramel and
Panado for pain, antibiotics were prescribed as well. She spent
a
further six weeks at home in bed. She had to make use of
crutches.
(8)
The future medical treatment will be determined by further
gynaecological investigation to determine the influence of the bony
pelvic deformity on her pelvic organs and the effect of the pelvic
fractures on her ability to have further children and also on
marital
relations. Further evaluation of the lower spine is indicated and a
MR investigation will determine whether the lower backache
she is
experiencing is as a result of damage to the SI joint, which may lead
to a SI fusion and possibly to lumbar spinal surgery.
Dr Truter, the
clinical psychologist, is of the opinion that she needs psychotherapy
as a result of the mild depression and post-traumatic
stress.
(9)
Her present complaints are that she experiences chronic pelvic pain,
cannot lift heavy objects, cannot walk for long distances
and cannot
sit for long periods. She feels discomfort and pain on the left side
of her pelvis. She feels a clicking in her left
hip as she walks and
she can feel a bone sticking into the upper part of her inner thigh.
Her present complaints were confirmed
by X-rays of her pelvis which
shows a left inferior ramus fracture with significant displacement.
She walks with a slight limp
due to pain in the left side of the
pelvis.
(10)
She presents with a prominent bulge on the sternum wall. Dr Mennen,
the orthopaedic surgeon, found on examination that the
right SI joint
is unstable and the left inferior pubic ramus is displaced. The bones
of the inferior pubic ramus can be felt as
a prominence on the inner
thigh. This probably caused atrophy in the left leg. She indicated
that her sternum was painful for a
year after the accident. Her right
ankle remained painful for six months and when she walks the ankle
still gets swollen and is
painful.
(11)
Her bladder leaks which causes her to wear a sanitary pad every day.
She feels embarrassed by her incontinence and has mishaps.
She visits
the toilet up to twelve times a day and limits her fluid intake. She
avoids intimacy with her husband due to the fact
that during sexual
intercourse she leaks urine, which causes a strain in the marriage.
This causes her to be more emotional and
irritable. She suffers panic
attacks when travelling in a motor vehicle.
(12)
Her pregnancy after the accident exacerbated her pain. She has
difficulty in sleeping, due to her pain. Dr Mennen is
of the view
that reconstruction of the pelvis will be very difficult.
WORK:
(13)
At the time of the accident the plaintiff was 22 years old and worked
part-time at Wakaberry's and was studying part time.
She had
completed grade 12 and has a certificate in business management. She
has completed part of a marketing diploma. She intends
completing
the three modules necessary to obtain
the marketing diploma.
(14)
She returned to Wakaberry's four to five months after the accident
and it took her three months to start working fulltime once
more. She
received no pay during her absence due to the accident.
(15)
At present the plaintiff is employed at Outsurance as a call centre
operator and is involved in client services. She earns
a basic salary
and commission. She has pain in her pelvis, lower back and left groin
due to her having to sit all day. She is unable
to sit for longer
than two hours at a time and has to alternate between sitting and
standing. She has bladder urgency and to avoid
incontinence she has
to go to the bathroom immediately when she feels the need.
(16)
According to Ms Adroos, the occupational therapist. the plaintiff has
to perform sedentary to light work. The fact that she
has to
intermittently change posture to allow relief for her lower back and
pelvis could interfere with her productivity and could
impact on
future promotions. Ms Adroos' opinion is that the plaintiff is a
disadvantaged employee in the open labour market.
(17)
Mr Prinsloo, the industrial psychologist, is of the opinion that
pre morbid the plaintiff would have attained the
position
of Junior Financial Advisor and would most probably have advanced to
a Senior Financial Advisor position, functioning
on a Patterson C3
job level at the age of 40. She would have functioned at this
level until retirement.
(18)
The post-morbid scenario, according to Mr Prinsloo, was similar to
the pre-morbid scenario, but a higher contingency has to
be applied
post morbid. His opinion is that the plaintiff will experience
diminished personal productivity as she has a 17%
whole person
impairment; 12% orthopedically and 5% psychologically. He is of the
opinion that she "suffers in silence"
at present, due to
pain and suffering and not wanting her disabilities to have an impact
on her ability to work. This, as well
as her bladder dysfunction will
have an impact on her work flow, speed and productivity. She has lost
self-confidence which may
be attributed to her bladder problem and
sexual difficulties as a result of the bladder problem.
(19)
She will have to take sick leave to attend psychotherapy, have
treatment for her incontinence by way of Botox injections or
a neuro
modular implant. She may also be a candidate for a fusion at the
right SI joint and lumbar surgery. She is working
in an environment
which is result-driven and where the amount of her commission depends
on her productivity.
(20)
All this will lead thereto that she will be disadvantaged in the
labour market when competing with healthy applicants.
CONTINGENCIES:
(21)
In
Southern
Insurance
Association
v
Bailey
N.O.
[1]
Nicholas
JA
stated:
"In
a
case
where
a
Court
has
before
it
material
on
which
an actuarial calculation
can usefully be made, I do not think that the first
approach
offers
any
advantage
over
the
second.
On
the contrary,
while the result
of an actuarial
computation
may
be no more than an
"informal
guess",
it has
the
advantage
of an attempt to
ascertain the
value
of
what
was
lost
on
a
logical
basis."
(22)
I have
been
furnished with
several
authorities
but I am
aware that
each
case
has to
be
considered
on
its
own
merits.
In
Protea
Assurance
Co
Ltd v Lamb
[2]
Potgieter
JA found:
"It
should be emphasised, however, that
this process of
comparison
does not
take the form of a 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
to become
a
fetter
upon
the
Court's
general discretion in such matters."
(23)
The amount to be awarded is still in the court's discretion and the
court will use amounts awarded in similar cases only as
a guideline
to exercise its discretion. All the other facts of the matter must
play a roll and I am mindful that no two matters
are the same
regarding facts and circumstances.
(24)
I have not compartmentalised the injuries in respect of the
orthopaedic and other injuries, but deal with them holistically
when
determining the amount
(25)
In
Road
Accident
Fund
v
Marunga
[3]
the
Supreme
Court
of
Appeal
confirmed
the
dictum
of
Broom
DJP
in
Wright
v
Multilateral
Motor
Vehicle Accident
Fund
[4]
where
it
was set out:
"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
the 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."
(26)
In
Road
Accident Fund v
Guedes
[5]
the plaintiff,
a
26 year
old
journalist/editor
at
the
time
of
the
accident
had
sustained
a
whiplash
injury
to
her
cervical
spine,
a
thoracic
sprain and
a
mild
T7
vertebral
compression
fracture. She had
never
injured her back before
the
accident
She
was
worse
affected by
the
whiplash
injury
and
was
frequently
troubled
by
a
stiff
and
painful
neck,
particularly
when
working
at
her
computer
as
she
was
required
to
do.
The
court found
that
the
plaintiff
suffered
pain
on
a
daily
basis,
that
her
future
as
a
journalist
was
precarious
and that
her earning
capacity
had been
severely
compromised
by
her
injuries
and
the
consequences.
A
contingency
deduction
of
30%
in the
"having
regard
to"
scenario
was
awarded.
This
ultimately
translated
into
a
contingency
differential
of
20%.
(27)
The plaintiff submitted that a 20% contingency should be applied both
pre- and post-morbid, whilst the defendant's counsel
submitted that
5% contingency pre-morbid and 35%
post-morbid should apply. came to the
conclusion
that 15% pre-morbid and 30% post-morbid
contingencies should apply.
(28)
The loss of earnings was calculated as follows:
Future
loss of income (uninjured):
R8,086,588
15% (pre- morbid
contingency) (page 7 of the actuarial report)
Future
loss of income (injured):
R8,086,588 30% (post-morbid contingency)
(page 7 of the actuarial report) Contingency differential
I
spread: 15%
When
the aforementioned contingencies are applied a future loss of income
in the amount of R1,212,988 is arrived at.
GENERAL
DAMAGES:
(29)
In
Sandler
v
Wholesale
Coal
Suppliers
Ltd
[6]
Watermeyer
JA
held:
"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
on
the
Judge's
view
of
what
i
s
fair
in
all
the
circumstances
of
the
case."
(30)
In respect of general damages the plaintiff's counsel suggested an
amount of R700 000, whilst the defendant's counsel suggested
that an
amount of R400 000 would be adequate compensation.
(31)
In
the matter
of
Schmidt
v
RAF
[7]
the plaintiff sustained numerous
fractures
to
all
the
upper
and
lower
limbs
involving
the
left
humerus;
the
left
proximal
radius
and
ulna at the elbow; the
right
midshaft
radius and
the
left
tibula
and
fibula.
Finally
she
sustained
an
injury
to
the
right knee
with
rupture of
the anterior
cruciate
ligament
and the
medial
ligament
as
well
as
fractures
to
the
midshaft
of
the
l
eft
foot,
and
the
metatarsal bones.
I
n
2006
the court
awarded the plaintiff general damages
in the
sum
of
R600 000
which
in
2016
terms
translates
into
R1 083 720.
(32)
In the
matter of
TJ
Tobi v
The
Road
Accident
Fund
[8]
the
plaintiff was
a
49
year
old
man with
six
children.
The
plaintiff
s
left
leg
had
l
ots
of scarring
and was
disfigured.
The
plaintiff
s right
l
eg
had
l
ess
scarring.
The plaintiff
experienced
pain
i
n
his
l
egs
and knees.
Plaintiff also experienced
paid when
walking.
The
court
awarded
general
damages
in
the
amount
of
R460 000
in 2013
which
amounts
to
R526 293.82
in
2016 terms.
(33)
In the
matter of
Makeke
v
The
Road
Accident
Fund
[9]
the
plaintiff
lost
three
teeth
and
sustained
an
injury to
his jaw
and
minor
injuries to
his
shoulder
and
neck, the
court
awarded
the
plaintiff
an amount
of
R387 000
in
respect
of
general
damages
in 2010,
which
translates
to
approximately
R530 904 in
2016 terms.
(34)
In
the
matter
of
Roe v
The
Road
Accident
Fund
[10]
the plaintiff
sustained a
fracture of the femoral shaft, fracture of the tibia and fibula.
fracture
of
the
right
patella,
fracture
of
the
left
humerus,
i
njury
to
the right
foot
and
upper
tooth
fractures.
In this
matter
the
court
awarded
the
plaintiff
R650 000
in
respect
of
general
damages,
which
amount
translates
into an
amount of
R995
1
71.60
in 2016 terms.
(35)
In the
matter
of
Benade
and
Benade
v
The
Road
Accident
Fund
[11]
the
plaintiff sustained
multiple
orthopaedic
and
neurological
injuries, which
were
a
whiplash
injury,
fracture
of
the
left
clavicle,
compound
fracture
of
the
radius
and
ulna,
fracture
of
the
left
4th and
5th
metacarpal
shaft
of
the
knuckle
joints
of
the
hand,
intra-articular
fracture of
the right
distal
radius,
fracture of
the right
superior
and
inferior
pubic rami of the pelvis and fracture of the right tibia.
The court
held that a
sum of R600 000 was fair and reasonable,
compensation
to
be
awarded
on
the
claim
for
general
damages
to
the
plaintiff
which
amount in
2016 terms translates
into R919
543.02.
(36)
In the
matter
of
Nonkwali
v
The
Road
Accident
Fund
[12]
the
plaintiff
sustained
a pelvic
ring
disruption,
a closed
fracture
of
the left humerus,
a closed
fracture
of
the
right
tibia, a
subluxation
C2/C3 with
no cord
or
nerve
damage and some fractures of
her
left ribs,
a moderate
to severe head injury with diffuse axonal damage.
The court
awarded the
plaintiff
R500 000
for
general
damages
in May
2009,
which
translates
into R715
339.23 in 2016 terms.
(37)
Two of the
cases the defendant
referred to
were
both
dealt with
before
the
Maruga
judgment
[13]
was
handed
down. The
third
case
did
not
reflect the
principle enunciated
by the
Court
in
Marunga
[14]
,
although
it was
delivered
in 2006.
Once more
it is in my discretion to decide what
amount
would be fair to both parties in the present circumstances.
(38)
It is clear that the plaintiff has suffered considerable pain and
took at least four to five months to heal to such an extent
that she
could once more be employed.
(39)
She is suffering pain every day in her workplace due to the fracture
of her pelvis and her back problems. Her incontinence
is causing her
not only discomfort every day of her life, but also severe
embarrassment, not only in her work environment, but
also in her
marriage. Her incontinence has an impact on her sexual relations with
her husband. which contributes to her psychological
problems.
(40)
Having considered all the evidence,
factors and circumstances relevant
to
the
assessment of
damages and
having
regard
to past
rewards
and
the more
modern
approach
approved by
the
Supreme
Court
of
Appeal in
the
Marunga
case
[15]
I am
of
the
opinion
that
an amount
of
R600 000
(six
hundred
thousand
Rand)
will
be
reasonable
and fair to both
the
plaintiff and the defendant
I
do
not set out
separate
figures
in
respect of pain, disfigurement
and loss of
amenities
or
permanent disability.
(41)
These are then the reasons for having made the following order on 1
August 2016:
1.
The merits are settled on the basis that the defendant shall pay 100%
of the plaintiff's proven
or agreed damages;
2.
The defendant shall pay to the plaintiff the sum of R1 212 988.00 in
respect of loss of income.
3.
The defendant shall pay to the plaintiff the sum of R600 000.00 in
respect of General Damages.
4.
The amounts mentioned in paragraph 2 and 3 in the
sum of R1
812 988.00 is to be paid to the Plaintiff
within 14 days of the date of this Court Order.
5.
In the event of the aforesaid amount not being paid timeously, the
defendant shall be liable
for interest on the amount at the rate of
10.50% per annum, calculated from the 15th calendar day after the
date of this Order
to date of payment
6.
The defendant shall furnish the plaintiff with an undertaking
in terms of Section 17(4)(a) of Act
56 of 1996 for payment of
the future accommodation of the plaintiff in hospital or nursing home
or treatment of or rendering of
a service or supplying of goods to
him resulting to the injuries sustained by the plaintiff in the motor
vehicle accident that
occurred on 20 January 2013, to compensate the
plaintiff in respect of the said costs after the costs have been
incurred and upon
proof thereof.
7.
The defendant shall pay the plaintiffs taxed or agreed party and
party costs on the High Court scale, subject
thereto that:
7.1
In the event that the costs are not agreed;
7.1.1
1 The plaintiff shall serve a notice
of taxation on
the defendant's attorney
of record;
7.1.2
The plaintiff shall allow the defendant 7 (seven) Court days from
date of allocator to make payment
of the taxed costs.
7.1.3
Should payment not be effected timeously, the plaintiff will be
entitled to recover interest at the
rate of 10.50% per annum on the
taxed or agreed costs from date of allocator to date of final
payment.
7.2
Such costs shall include but not be limited to:
7.2.1
The costs incurred in obtaining payment of the amounts mentioned in
paragraphs 4 and 6 above;
7.2.2
The costs of and consequent to the employment of Counsel, including
counsel's charges in respect of
his full day fee for
1 August 2016, as well as
reasonable preparation;
7.2.3
The costs of all medico-legal. radiological, actuarial, accident
reconstruction, pathologist and addendum
reports obtained by the
plaintiff, as well as such reports furnished to the defendant and/or
its attorneys, as well as all reports
in their possession and all
reports contained in the plaintiff's bundles, including, but not
limited to the following·
7.2.3.1
Dr E Mennen, Orthopaedic Surgeon;
7.2.3.2
Ms A Adroos, Occupational Therapist;
7.2.3.3
Dr K Truter, Clinical Psychologist;
7.2.3.4
Mr K Prinsloo, Industrial Psychologist;
7.2.3.5
Mr T Doubell, Actuary (Present at court)
7.2.3.6
Dr P Swart, Gynaecologist
7.2.4
The reasonable and taxable preparation, qualifying and reservation
fees, if any, in such amount as
allowed by the Taxing Master, of the
following experts:
7.2.4.1
Dr E Mennen. Orthopaedic Surgeon;
7.2.4.2
Ms A Adroos, Occupational Therapist;
7.2.4.3
Dr K Truter, Clinical Psychologist;
7.2.4.4
Mr K Prinsloo, Industrial Psychologist;
7.2.4.5
Mr T Doubell, Actuary (Present at court)
7.2.4.6
Dr P Swart, Gynaecologist
7.2.5
The reasonable costs incurred by and on behalf of the plaintiff in,
as well as the costs consequent
to attending the medico-legal
examinations of both parties.
7.2.6
The costs consequent to the plaintiff's trial bundles and witness
bundles, if any;
7.2.7
The cost of holding all pre-trial conferences, as well as round table
meetings between the legal representatives
for both the plaintiff and
the defendant, including counsel's charges in respect thereof:
7.2.8
The cost of and consequent to compiling all minutes in respect of
pre-trial conferences;
7.2.9
The reasonable travelling costs of the plaintiff, who is hereby
declared a necessary witness.
8.
The amounts referred to above will be paid to the plaintiff's
attorneys, Spruyt Incorporated as per Annexure
"A" hereto
(The consent and instruction), by direct transfer into their trust
account, details of which are the following:
Standard
Bank
Account
number: [……]
Branch
code: Hatfield (01 15 45)
REF:
SD 1827
________________________
Judge
C Pretorius
Case
number
: 43235/2012
Matter
heard on
: 1 August 2016
For
the Plaintiff
: Adv SG Maritz
Instructed
by
: Spruyt Incorporated
For
the Defendant
: Adv
Instructed
by
: Diale Mogashoa Attorneys
Date
of Reasons for Judgment
: 22 September 2016
[1]
1984(1) SA 98 AD at p114 C-D
[2]
1971(1)
SA
530
AD
at
p535
H
-
536
A
[3]
2003(5)
SA
164 (SCA) on p170 F - G
[4]
1
997
NPD
-
Corbett
and Honey: The Quantum of Damages in Bodily and Facial
I
njury
Cases. Vol. 4 at E3-31
[5]
2006(5) SA 583 (SCA)
[6]
1941 AD
194
at 199
[7]
WLD,
case
number 2005
1
4834,
judgment
handed
down in 2006
[8]
Unreported under case no 868/2010,
Eastern
Cape. Grahamstown on 9 September
2013
[9]
Eastern Cape High Court. case number 611/2009 delivered 23 November
2010
[10]
Judgment of the South Gauteng High Court case no. 2008/16157, handed
down 3 April 2010
[11]
Eastern Cape High Court, case number 536/2007.
delivered
in 2008
[12]
Eastern Cape High Court, case no. 771/2004
[13]
Supra
[14]
Supra
[15]
Supra