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2012
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[2012] ZAGPPHC 24
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Gattoo v Road Accident Fund (61778/2009) [2012] ZAGPPHC 24 (15 February 2012)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NO.: 61778/2009
DATE:15/02/2012
In
the matter between:
SAIDA
GATTOO
.........................................................................................................
PLAINTIFF
AND
ROAD
ACCIDENT
FUND
.......................................................................................
DEFENDANT
JUDGMENT
WEBSTER
J
1.
The plaintiff seeks damages arising from injuries she sustained when
she was a passenger in one of three motor vehicles that
collided on
the Leslie Kinross Road, Leslie in Mpumalanga on 10 February, 2007.
2.
At the commencement of the trial the Court was informed that the
defendant was conceding total liability for whatever damages
the
plaintiff could prove.
3.The
plaintiff's evidence was that she sustained fractured ribs,
contusions and lacerations and soft tissue injuries to her back
and
neck. She was hospitalised and experienced and continues to
experience pain and suffering and has, in consequence thereof,
suffered and will continue to experience difficulties in performing
her employment tasks: she has suffered loss of income and her
future
income earning potential has been reduced virtually to nil.
4.
She testified that she has a thyroid problem which in turn has caused
her weight problems. Her legs and feet swell. She suffers
from severe
head-aches, back ache and loss of smell in consequence of the
injuries she sustained. With regard to her back ache
she testified
that she could not stand for long periods as she experiences numbness
to her legs if she does so.
5.
According to the specialists the plaintiff has suffered the following
problems, viz., headaches on a continuous basis; her right
eye
becomes swollen and deviates medially; complete loss of sense of
smell; continuous pain on right side of chest over the site
where
ribs were fractured; the chest pain is exaggerated if she bends to
her right; she does not have full movement of the left
knee due to
the left knee injury; she is no longer able to adopt the normal
prayer position and now has to pray sitting in a chair;
she can no
longer do gardening and housework; her business as a hawker has been
adversely affected as she can no longer lift or
move large bags or
boxes in which her merchandise is stored. She has had to give up her
business.
6.
The plaintiff was examined and interviewed by the following experts,
viz., Anneke Greef, an occupational therapist, Dr L Grinker,
a
psychiatrist, B Mendelowitz, an industrial psychologist and Michelle
Doran, an occupational therapist. These experts are unanimous
that
the plaintiff will no longer be able to lead a normal life let alone
to move about as a hawker or oversee or perform the duties
of a
caterer.
7.
The plaintiff testified that her source of income was from hawking.
She had also done catering for weddings. Her nett income
prior to the
collision had been R15 000 per month. This had been drastically
reduced because of the pain, discomfort and disablement
resulting
from her injuries. This is confirmed by the orthopaedic surgeon Dr
Geoffrey Read.
8.
An important consideration of Dr Read's report is the one dealt with
under the heading "FINAL DIAGNOSIS" and "PROGNOSIS
AND
FUTURE MANAGEMENT". Under the first heading the doctor has noted
"1. RIGHT-SIDED RIB FRACTURES: The patent has symptoms
of a past
fracture syndrome. Chest X-rays with rib views show fractures of the
5th and 6th ribs on the right. The fractures have
united with slight
overlap and residual deformity. 2. LEFT KNEE INJURY: X-Rays of both
knees done today show degenerative changes
commensurate with the
patient's weight and age. I do not believe that these changes are
accident-related".
9.
Mendelowitz who read Dr Read's report comments as follows on the
post-accident working capacity of the plaintiff: "On X-rays
done
today of both knees there are signs of early osteo-arthritis. This
will most likely progress to the stage where she will require
bilateral knee replacements, I do not believe that this is related to
the accident in question, I believe that in any event she
would only
have been able to work for a further two or three years in her
pre-accident capacity before he knees inevitably caused
her
difficulty".
10.
According to the medico-legal report of the neurosurgeon Prof.
Lekgwara the plaintiff suffered a soft-tissue injury to the
back
which could be the cause of plaintiffs backache. He notes that her
extreme weight also contributes to this. He suggested that
X-rays
should be taken and "MRI to evaluate her spine".
11.
Save for Mendelowitz none of the other experts whose reports were
filed were called to testify.
12.
It is against the above background that the issue of damages should
be considered. At the commencement of the trial the Court
was
informed by both counsel that total liability had been conceded by
the defendant. The damages sought were for (i) past loss
of income;
(ii) past medical expenses; (iii) general damages.
13.
It was agreed between the parties, and correctly so in the light of
the plaintiff's undisputed evidence that the plaintiff had
suffered
past loss of income for three (3) years. Her evidence that her nett
income during this period as dealt with in Dr Read's
report was
R10000 per month. The Court was informed that the parties had agreed
that the past loss of income was R8 000 per month.
The total loss of
income over this period was therefore R8000 multiplied by 12 times 3
which equals R288 000. Having regard for
inflation and other
contingencies the parties agreed that there be a contingency
deduction of 20%. The plaintiff's past loss of
income is therefore
R288 000 less R57 600 which equals R230 400.
14.
The undisputed evidence on the cost of past medical expenses is R15
000.
15.
With regard to general damages it is clear that one of the factors
that have contributed to the plaintiff's complaints is her
reduced
mobility and the pain in her knee joints. As indicated above, this is
not, on probabilities and the medical evidence, attributable
to any
sequelae following upon any injury sustained in the collision. The
factors to be considered under this heading are back
pain, frontal
headaches, pain over right lower chest and the permanent loss of
smell. The complaints regarding the knees and limited
mobility have
been touched on above.
16.
With regard to the enjoyment of amenities of life, the view of the
orthopaedic surgeon is that "The injuries sustained
in this
accident have necessitated these changes two to three years earlier
than would have been inevitable".
17.
It was submitted by Mr Khan that the quantum for general damages
taking into account the whiplash, pain from fractured ribs,
the
headaches and loss of smell should be R100 000. Inasmuch as this
Court is totally sympathetic to the plaintiff and her suffering
it is
my considered view that a fair award under this heading is R75000.
18.
Judgment is accordingly granted in the plaintiff's favour in the sum
of R320 400 plus costs which costs are to include the
costs of the
reports of the experts in terms of Rule 36(9)(a) and (b).
G.
WEBSTER
JUDGE
IN THE HIGH COURT