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[2014] ZAGPPHC 27
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Msiza v Road Accident Fund (30118/2011) [2014] ZAGPPHC 27 (19 February 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN THE HIGH COURT OF
SOUTH AFRICA
/ES
(
GAUTENG DIVISION,
PRETORIA
)
CASE NO: 30118/2011
DATE: 19 FEBRUARY 2014
NOT REPORTABLE
NOT OF INTEREST TO OTHER
JUDGES
IN THE MATTER BETWEEN
POPIE SOPHIE
MSIZA
.......................................................................
PLAINTIFF
AND
ROAD ACCIDENT
FUND
..............................................................
DEFENDANT
JUDGMENT
MOGOTSI, AJ
Introduction
[1] This is a claim for general damages arising out of a motor car
collision. The only issue for determination by this court
is
quantum
of damages to be awarded to the plaintiff.
[2] The plaintiff is Popie Sophie Msiza a female born on 4 May
1949 and residing at house no 4[…] W[…] "B",
S[…], M[…].
[3] The defendant is Road Accident Fund a juristic person with
full legal personality created in terms of
section 2(2)
of the
Road
Accident Fund Act 56 of 1996
with its principal place of business at
17
th
Floor, Sanlam Building, 252 Andries Street, Pretoria,
Gauteng.
Background
[4] Ms Msiza was a passenger in the insured bus with registration
letters and numbers T[…] GP which collided with a truck
bearing registration letters and numbers X[…] GP.
The accident occurred on 26 November 2009 at approximately
18:00pm
along Moloto public road near Cullinan. The driver of a bus, in
which plaintiff was a passenger, was trying to avoid
a collision with
another bus which had stopped on the same lane, he swerved into a
lane meant for oncoming vehicles and collided
with the truck coming
from the opposite direction. The bus rolled over and burst into
flames.
[5] As a result of the said accident, the plaintiff sustained
bodily injuries the nature and extent of which are as follows:
5.1 fracture of the right humerus;
5.2 left femur fracture
– later on plaintiff's leg had to be amputated above the knee;
5.3laceration on the scalp (wounds
satured);
5.4 there was an
impression of secondary degenerative changes in the hip and knee
joint which was not probably age related;
5.5 she is unable to
walk because of the amputated limb. She does not have
prosthesis because her stump is short. She uses
a walking frame to
mobilize.
[6] The parties' counsel are in agreement about injuries sustained
by the plaintiff. They, however, differ when it comes to
the
sequelae
of the injuries and the
quantum
.
[7] A further agreement was reached between the parties that
medico-legal reports be handed in as evidence without formal proof
thereof and the court was asked to accept the correctness of such
reports.
Plaintiff's expert reports
[8] • Serious injury assessment
form by Dr Mogaru dated 23 August 2011;
• the medico-legal
report by Dr Johan van der Westhuizen (orthopaedic surgeon)
• physiotherapy
injury assessment report completed by Ms T H Komane on 23 August
2011;
• the medico-legal
report by Prof Henk Steyn (industrial psychologist) dated 8 November
2011;
• the medico-legal
report by Dr Adelaide Pasha (occupational therapist) dated 7 March
2012;
• assessors report
by Assessors Eugene & Associates dated 29 March 2012;
• actuarial report
by Robert J Koch (actuaries) dated 4 0ctober 2013;
• medico-legal
report by Dr Liza Prinsloo (clinical psychologist) dated 31 August
2012.
Defendant's expert
reports
[9] •
Medico-legal report by Dr G J H Swart (orthopaedic surgeon) dated 9
September 2013;
• medico-legal
report by Dr B A 0koli (neuro-surgeon) dated 26 September 2013;
• medico-legal
report by Dr Linda Krause (industrial psychologist) dated 31 0ctober
2013.
[10] The orthopaedic surgeons are agreed that the plaintiff's
right humerus shows a deformity of the mid-shaft region. The elbow
presents with a full range of movement, which is not painful.
Before amputation the left femur had sinus draining which was
suggestive of chronic infection. She had arthritic changes in
the hip and knee which could not be correlated to the injuries
sustained at the time of the accident. They are further agreed that
Ms Msiza will not be capable of engaging in hard physical
work
rendering her possibly permanently disabled, taking into account that
she is probably reaching retirement age in approximately
four years.
Furthermore the plaintiff's life expectancy has not been reduced.
[11] The occupational therapist Dr A Pasha indicated that Ms Msiza
found it difficult to comply fully with most of the demands
of
everyday activities which involve standing, walking as well as
lifting and carrying light to medium objects. Use of an
appropriate fitting prosthesis could have beneficial effect.
The plaintiff is 62 years old, she has never attended school
and
had previously worked as a farm labourer and domestic worker.
No one in her family received any form of formal education.
The plaintiff's level of education and orthopaedic injuries she
suffered brought a significant restriction in capacity for an
occupation post-accident.
[12] The industrial psychologists agree that Ms Msiza finds it
difficult to come to terms with the serious injuries in the accident
and her resultant unemployment. The plaintiff's chances of
obtaining and sustaining formal market employment had always been
an
unlikely scenario because of her illiteracy. She receives a
government pension grant of R1 500,00 per month. Before the
accident plaintiff reportedly did crafting of mats, bracelets and
necklaces and earned an income of R600,00 per month. She has
now lost
the ability to perform any form of work as indicated by the
orthopaedic surgeon.
[13] The clinical psychologist Dr Liza Prinsloo says Ms Msiza's
lack of formal education is likely to have influenced the results
obtained on neuro psychological testing making it very difficult
to interpret any low scores obtained. As a result,
it was
considered not appropriate to complete a battery of
neuro-psychological tests.
Pain and suffering
[14] Dr Johan van der Westhuizen said the plaintiff did not
mention any sport or recreation. She should be able to take
care
of herself although all her daily activities will be limited.
[15] She endured severe and acute pain for approximately 7-14 days
after the accident. Furthermore she experienced quite severe
pain for a long period due to combination of fractures on the left
femur and right humerus which made mobilization very difficult.
She had a prolonged period of sub-acute pain because of her
osteomyelitis and re-operations. She has chronic pain in her
right shoulder and post traumatic headaches.
[16] Her facial scars and her right upper arm are disfiguring, it
also involves underlying supporting skeletal structure and this
is
said to be a 10% WPI. Impairment has been rated using 6
th
edition of AMA guide CW5 MSCHZF. She has difficulties with her
memory and mood but cognitively she is able to assume her
usual roles
and this is a 10% WPI.
[17] Headache is of moderate disability with a 4% WPI.
She has proximal above knee amputation of the left thigh and this
was found to be 100% lower extremity impairment which equates
to 40%
whole person's impairment.
[18] The combined values were found by Dr B A Okoli
(neuro-surgeon) to be 40%, 10%, 10% and 4% which is 53%.
Medical costs
[19] According to Dr John van der Westhuizen the medical costs
already undergone are justified.
Future medical costs
Ms Msiza is going to require a continued conservative treatment
program, which may be outlined as follows:
(a) physiotherapy – R10 000,00
(b) visits to general
practitioners and medication – R3 000,00 per year for
approximately five years
(c) admissions, ......
etc – R100 000,00
Headaches can be
controlled with analgesics at a cost of R5 000,00 per annum.
She needs psychotherapy
for her mood disorder.
[20] Her longevity will not be affected but she will need
assistance to manage her affairs.
General damages
[21] Adv Chimbuzi for the plaintiff argued that Ms Msiza should be
awarded R900 000,00 in general damages. Adv Mashaba
for
the defendant argued that a reasonable amount should be R507 000,00.
The court was referred to the following cases
by counsel for the
plaintiff:
RAF v Marunga
2003 5 SA 164
(SCA) which introduced
a modernized process of thought when determining general damages and
that is updating of values found in
general damages to contemporary
times and present values; case no 2090/07
Bovungana v RAF
where the plaintiff was struck by the insured motor vehicle while
walking on the pavement next to the road. Both legs of
the
plaintiff were amputated above the knees. The court awarded
damages in the amount of R750 000,00, the current value
being
R799 000,00.
[22] Adv Mashaba referred the court to
Gallons v RAF
2009 5
E2-29 and
Van Deventer v Premier of Gauteng
2004 5 QOD E2-1
(T) (Corbett & Buchanan
Quantum of Damages
vol 5) E2-1
77. Adv Mashaba argued that the cases referred to by Adv
Chimbuzi are not relevant because they refer to plaintiffs
who were
much younger than Ms Msiza and they also do refer to double
amputees.
[23] The court also looked at
Ehlers v South African Railway
and Harbours
1959 (QOD250E) where the plaintiff was a girl of 7
years of age and an award of R14 000,00, currently R875 000,00,
was
granted.
[24]
Ndlovu v Swaziland Royal Insurance Co
1989 (4E2) QOB1
(SWI) where the plaintiff was 25 years old and both legs were
amputated above the knee and the court awarded R80 000,00,
currently R395 000,00.
[25] In the case of
August v Guardian National Insurance Co Ltd
1990 (4E2) 13 (C) the plaintiff sustained injuries in a motor
collision and underwent amputation of the leg above the knee.
The knee stump was badly mutilated as a result of the injury and a
skin graft was effected over the stump. The court awarded
R60 000,00 in respect of damages, currently R259 000,00.
[26] In the exercise of its discretion with regard to the
appropriate amount that is to be awarded as general damages the court
has to be fair and reasonable to both parties. Whilst the
plaintiff must be sufficiently and properly compensated for the
injuries he/she has suffered in the accident, the defendant should
not be unnecessarily burdened with an inordinately high award
despite
the recent tendency by the courts to pitch the awards higher than in
the past.
De Jongh v Du Pisanie NO
[2004] All
SA 565
(SCA).
[27] Past awards serve no more than to give some indication as to
what sort of awards are appropriate on the facts of a particular
case. In striving to determine a fair amount for general
damages the court should be guided by the broadest general
considerations
on an amount which is considered to be fair in all
circumstances of the case.
Bay Passenger Transport Ltd v
Franzen
1975 1 SA 269
(A) at 274.
[28] Case no 2894/2013
K K Machomalotsa v RAF
– As is
trite, the court can only make calculated estimation based on
different aspects including the plaintiff's social
economic
background, his or her level of intelligence as seen from his or her
educational achievements and any other relevant factor
that may be of
assistance to come to a just decision.
[29] The case before me is not a dire matter where plaintiff will
rely on others to feed, clothe and nurse. The injuries
sustained
by the plaintiff are comparable but not identical or
similar to those of other plaintiffs in other cases.
[30] The court has a wide discretion to award what it considers to
be fair and adequate compensation to the injured party.
There
is no hard and fast rule of general application requiring a court to
consider past awards.
[31] I do not agree that the amounts suggested by the parties'
counsel are reasonable. My considered view is that a fair and
reasonable sum that can help to ameliorate the plaintiff's
unfortunate position is R700 000,00 and I accordingly make the
following
order:
1. The defendant
shall pay the plaintiff the sum of R700 000,00.
2. Costs granted
on a scale of party and party.
D D MOGOTSI
ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA