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[2012] ZAGPPHC 344
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Malela v Road Accident Fund (24142/2011) [2012] ZAGPPHC 344 (11 December 2012)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 24142/2011
DATE:11/12/2012
In
the matter between:
T
P
MALLELA
.........................................................
PLAINTIFF
and
ROAD
ACCIDENT FUND
…...............................
DEFENDANT
JUDGMENT
KUBUSHI,
J
INTRODUCTION
[1]
The plaintiff instituted action against the defendant for damages in
the amount of R800 000 as a result of bodily injuries she
sustained
in a motor vehicle collision on 19 October 2007.
[2]
At the hearing of the case I was informed that the merits have been
settled and that the defendant accepted full liability for
the
damages sustained by the plaintiff and undertook to provide the
plaintiff with a certificate in terms of
section 17
(4) (a) of the
Road Accident Fund Act, 56 of 1996
, as amended, in respect of future
medical costs.
[3]
The parties agreed also that the claim for future loss of
income/earning capacity and the claim for general damages should be
dealt with under one head of damages, namely general damages. The
parties were in agreement that the plaintiff must be awarded
the
general damages but they were not in agreement in regard to the
sequelae of the injuries sustained by the plaintiff. They are
therefore before this court for the quantification of the said
damages.
[4]
It was agreed further that evidence should not be led in respect of
quantum but that the parties’ respective counsel should
address
the court only in regard to the sequelae of the injuries. In order to
assist the court it was agreed that only the plaintiff
would tender
evidence in regard to the sequelae of her injuries. Two medico-legal
reports solicited by the plaintiff, namely the
expert reports by Dr
Birrell, the orthopaedic surgeon and Dr Hele Roos the occupational
therapist, were admitted into the record
as evidence as well. The
defendant’s counsel confirmed that the contents thereof were
not in dispute.
THE
PLAINTIFF’S EVIDENCE
[5]
The plaintiffs evidence was to the effect that at the time of the
collision she was sitting as a passenger at the back of the
motor
vehicle concerned, with no seatbelts. During the collision she hit
her head. She first bumped against the person sitting
next to her and
went forwards and backwards. She as a result suffered neck and
shoulder injuries. Immediately after the collision
she felt pain on
her neck and head. She had a bump (protrusion) on her forehead the
size of a small tin of Zambuk ointment (R5
coin).
[6]
She was taken to the Tshwane Hospital by ambulance. At the hospital
she was treated and discharged. She was given Brufen and
Ponado
tablets. According to her she was not properly examined. She was only
checked for fractures. A soft collar neck brace was
prescribed for
her but she was not given the brace.
[7]
The next day she experienced a terrible pain. She could not carry her
baby who was four months old then. She could also not
bathe her and
had to ask for assistance. She was not able to bend. She could not do
her house chores of fetching water, washing
clothes and cleaning the
house.
[8]
Presently she suffers from constant headache and takes pain
medication regularly. She cannot concentrate on her work because
of
the pain. She still cannot carry heavy things or carry her child for
long periods. She stays in a four roomed house and has
to fetch water
for household needs from a tap outside. She uses a 201 bucket to draw
the water. She cannot cope with that but gets
assistance from her
elder daughter and husband.
[9]
Although she was not properly heeled she returned to work two days
after the collision as she could not stay home without an
income. At
the time of the collision she was employed as a cashier at the
Brooklyn Ster Kinekor and had been so employed for three
years. Her
work then entailed serving popcorn, drinks and tickets to the
clients. She also counted cash for the float to make sure
it
balances. She continued to work as a cashier even after the collision
until 2010 when she was promoted to a controller. She
had applied for
the controller job and even went for an interview. She was the only
candidate for the interview. As a controller
she works with cash and
stock. Her job entails receiving stock and carrying it from the
storeroom to the kiosks. In the morning
she gives the cashiers stock
and at the end of the day she returns the stock to the storeroom. The
stock she has to carry are heavy
things like: 25kg seeds for popcorn,
20I soda syrup, 51 of natural base for slush puppy and sweats. Her
job also entails giving
the cashiers floats, doing spot checks and
cash ups. She works six days for eight hours and rests on the seventh
day. On this day
she normally rests whereas in the past she would
clean the house or visit her home in Dennilton or Polokwane. Now it
takes longer
for her to clean the house. Since the collision she is
forgetful. She used to be a good worker, however, she no longer
considers
herself as such, now she has limitations which she
attributes to the collision. If it were not for the collision she
could now
be a complex manager. She cannot be promoted now because
she can no longer exert herself.
[10]
She no longer takes part in sports. She used to play netball and
soccer. She regularly participated whenever there were matches
between the different cinemas.
[11]
She went to a physiotherapist who checked her for fitness and she
continuously uses pain killers which she buys over the counter
to
minimise the pain. She also went to the clinic though she does not
remember how many times she went, for the pain.
[12]
At the end of the plaintiff’s evidence, her counsel handed in
the two medico-legal reports which were admitted respectively
into
the record as exhibit “A” the report of the
orthopaedic
surgeon, and exhibit “B” the report of the occupational
therapist.
REPORT
OF THE ORTHOPAEDIC SURGEON
[13]
According to the report of the orthopaedic surgeon, the plaintiff
sustained the following injuries: a small haemotoma on the
right of
the forehead and soft tissue injuries of the neck. These injuries
were confirmed by the MMF 1 form and the plaintiff.
She received
Brufen and Panado tablets as analgestics for treatment. She was also
prescribed a soft neck collar, which she was
not given, and received
a voltaren injection.
[14]
At the time the plaintiff went to consult with the orthopaedic
surgeon, approximately two years after the collision, she complained
of pain at the base of her neck posteriorly when she looks up
suddenly. She still could not carry the 20I water container on her
head as before the collision. She used to carry this from an external
tap to her house, a distance of between 300m and 400m. The
neck pain
radiates down to the area between her shoulder blades. She also
experiences frontal headaches since the collision.
[15]
In the opinion of the orthopaedic surgeon, in order for the plaintiff
to alleviate the residual complaint of the chronic neck
pain, she
must in future apply neck-saving measures such as assuming the
correct posture, do the correct isometric exercises, and
not carry
anything heavy on the head. As regards the amenities, hobbies and
sport, there would have been a disruption of the plaintiff’s
normal activities such as doing her usual household chores, for a
period of a few weeks. She also sustained a loss of work capacity
of
3% as a result of the collision. The plaintiff has a 3% to 4% chance
of requiring cervical surgery as a result of the collision.
REPORT
OF THE OCCUPATIONAL THERAPIST
[16]
The report of the occupational therapist confirmed the injuries
sustained and treatment received by the plaintiff.
[17]
At the time the plaintiff consulted with the therapist, which was
almost five years after the collision, she still complained
of
headaches associated with neck pain during the day. She experiences
pain in her neck whenever she works or carries her baby
on her back.
She experiences pain on her shoulders and her back is sore when she
picks up her daughter. She is no longer as effective
and strong as
before and struggles to carry heavy items, especially when carrying
water and wood. She tires very easily now at
work and has to depend
on the medication to keep going. Her concentration level is now very
low. She easily forgets details and
routine work. She has to keep
notes in order to remind herself.
[19]
She previously used to play netball and she can no longer do so. She
does no longer take part in church activities.
[20]
After conducting various tests on the plaintiff, the therapist’s
prognosis is that the neck injury sustained by the plaintiff
during
the collision has apparently been made worse by heavy activities
which have presented itself in symptoms of chronic headaches
and neck
pain. This has impacted on her self-esteem and confidence. Her work
tempo has decreased to such a state that it now impacts
negatively on
her work.
Although
she is able to do her work, she however, has to compensate for work
that requires her to lift heavy objects. The degeneration
of her neck
will also affect her career negatively.
ARGUMENT
BY THE PARTIES’ COUNSEL
[21]
It is the submission by the plaintiffs counsel that the plaintiff has
always been a person who excels in her work and should
therefore not
be disadvantaged as a result of the injuries sustained in the
collision. She now has to exert herself in her work
in order to
perform and should be compensated for that. According to him an
amount of R200 000 should be awarded to the plaintiff.
[22]
He referred me to judgments which I should consider in awarding
damages, namely, VAN VUUREN v RAF 2009 C & H Bundle Vol
6 C3/1,
where a 61 year old female doing home baking and home nursing
suffered soft tissue injury of the back neck and back and
wore a neck
collar for two weeks was awarded an amount of R120 000 which
translates currently to R139 000. According to him the
plaintiff is
much younger, is working and may have to stop working earlier.
DEYSEL
RIANA v ROAD ACCIDENT FUND 2483/2009 where it was stated that in
awarding damages a court should take into account the fact
that a
person has to put extra effort to do his or her job. In this
instance, plaintiffs counsel contended that in order for the
plaintiff to be promoted she has to put extra effort.
[23]
The defendant’s counsel, on the other hand, argued that the
plaintiffs injuries were not debilitating because she only
went once
or twice for medical attention. The x-rays ordered by Dr Birrell did
not show any abnormality. Dr Birrell also examined
her and found the
neck movements within normal limits.
[24]
He conceded that the defendant is prepared to pay for the pain which
Dr Birrell confirmed that she is still experiencing but
contended
that the plaintiff must also alleviate her pain by applying neck
saving measures as recommended by Dr Birrell. According
to him, it
was not necessary for the plaintiff to go for cervical surgery as
conservative treatment
has
been recommended.
[25]
In his view, the injuries and sequelae of the plaintiff are not
apparent and the expert witnesses are of the opinion that the
plaintiffs condition will not deteriorate and if she followed the
recommended treatment she will fully recover. He opined that
it was
not Bizos AJ’s intention in DEYSEL -case above that a claimant
who puts extra effort when performing his oe her work
should be
compensated by a higher award.
[26]
He referred me to the judgment in MEYER v SHIELD 1976 (3) C & M
606 where the plaintiff was a nurse, who three and half
years after
the collision was still suffering pain and was awarded an amount of
R4 000 which translate currently to R32 000. According
to counsel,
nurses spent long hours standing and moving patients around; and
SOUTHGATE v RAF 2001 C & B Vol 5 AFC wherein the
plaintiff
suffered a mild whiplash injury of the neck and was awarded R37 000
at the current rate. He submitted that of the two
cases, MEYERs case
was more severe than the current case and that R100 000 will there be
appropriate if awarded in this instance.
EVALUATION
OF EVIDENCE
[27]
The plaintiff in her particulars of claim claimed a global amount for
pain, suffering, loss of amenities of life and disfigurement
for
general damages.
[28]
It is common cause in this instance that the plaintiff sustained a
small haematoma to the right of the forehead and soft tissue
injuries
of the neck. She received a voltaren injection, Panado and Bruffen
tablets at the hospital. This treatment confirms that
she experienced
pain and headache. It is therefore evident that the plaintiff did
experience pain and suffering at the time of
the accident. She also
continued to experience the pain even after the accident. This is so
because when she visited the experts
for examination she presented
with constant headache, neck and shoulder pain. It is also undisputed
that the plaintiff continues
to suffer constant headaches, neck and
shoulder pain. Dr Roos has confirmed that the pain has manifested
into chronic headache,
neck and shoulder pain.
[29]
It is also undisputed that the plaintiff suffered loss of amenities
of life resulting from the loss of previous leisure pursuits.
The
plaintiff played netball and soccer before the collision she can no
longer do so. Dr Roos has also confirmed as much that there
has been
loss of amenities of life because of the mildly diminished home
management efficiency. She can no longer carry the 251
of water,
clean the house or carry the baby for a long time. Her general
enjoyment of life has as a result diminished.
[30]
The award of general damages is by no means an easy task. There is no
basic formula for the assessment of this kind of damages.
To arrive
at a fair and just amount both objective and subjective factors may
have to be taken into account. The facts of each
particular case must
be looked at as a whole. A court has a wide discretion to award what
it considers to be fair and adequate
compensation to the injured
party. See TOBANI v MINISTER OF CORRECTIONAL SERVICES NO
[2000] 2 All
SA 318
(SE) at 326e and MINISTER OF SAFETY & SECURITY v SEYMOUR
2006 (6) SA 320
(SCA) at para [17].
[31]
I am however satisfied that, in the circumstances of this case, the
plaintiff has been able to prove that she has experienced
pain and
suffering and continues to suffer same. She has also proved the
effect the pain has on her career. In order for her to
keep her work
or to be promoted in future she will have to put in extra effort. She
has also suffered loss of amenities of life.
[32]
I am also mindful of the fact that, as argued by the defendant’s
counsel, the pain suffered by the plaintiff is not debilitating
because she is able to continue with her work and with the assistance
of her family at home she can carry out some of her chores.
I
however, do not agree with his submission that it was not Bizos AJ’s
intention in the DEYSEL-case above, that a higher
amount should be
awarded for the extra effort put by the plaintiff to maintain her
employment. At para 49 the learned judge stated
the following:
“
In
light of this, I believe that the claim for general damages in casu
of R200 000 when not considering the career-related pain
and
suffering that I have identified, would otherwise have been
excessive. However, if one is to accept that the extra amount of
effort required to maintain the plaintiff’s current career
level manifests not as loss of income but instead as pain and
suffering in addition to that already alleged by the plaintiff, then
I find that the plaintiffs claim for general damages is not
excessive.”
[33]
I am thus in respectful agreement with this statement by Bizos AJ.
The plaintiff’s claim for general damages must include
the
career-related pain and suffering and a higher amount must therefore
be awarded. Consequently, I find that an amount of R150
000 is in the
circumstances of this case, a fair, just and reasonable amount for
compensation.
[34]
I make the following order -
The
draft order handed in court marked with an “X” and
initialled by myself, with prayer 1. amended to read as follows:
the defendant is ordered to pay to the
plaintiff the sum of R150 000 which payment is to be effected into
the trust account of Podbielski
Mhlambi (Carletonville) Inc, Nedbank,
Western Gauteng Branch code 187 505, Account number …...5 278.
is made an order of
the court.
E.M.
KUBUSHI
JUDGE
OF THE HIGH COURT
HEARD
ON THE : 30 OCTOBER 2012
DATE
OF JUDGMENT : 11 DECEMBER 2012
PLAINTIFF’S
COUNSEL : ADV L. SCHOLTZ
PLAINTIFF’S
ATTORNEY : KRITZINGER ATTORNEYS
DEFENDANT’S
COUNSEL : ADV I.W. MAKHUBO
DEFENDANT’S
ATTORNEY : MOTHLE JOOMA SABDIA ATTORNEYS
341A
KRITZINGER
PROKUREURS 012 430 4646
“
X”
I
N
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
BEFORE
HIS LORDSHIP THE HONOURABLE JUDGE KUBUSHI ,
CASE
NUMBER: 24142/2011
DATE:11/12/2012
In
the matter between:
THAPELO
PRECILLA
MALLELA
...............................................................
PLAINTIFF
And
ROAD
ACCIDENT
FUND
…........................................................................
DEFENDANT
DRAFT
ORDER
Having
heard counsel on behalf of the parties:
IT IS ORDERED THAT:
1.
The Defendant is ordered to pay to the Plaintiff the sum of
R150
000-00
which payment is to be effected into the trust account of
Podbielski Mhlambi (Carletonville) Inc, Nedbank,Western Gauteng
Branch
code 187 505, Account number ….....5 278;
2.
2.1 The Defendant will not be liable for any interest on this payment
on condition that payment be made timeously.
2.2
In the event of the Defendant not making this payment timeously the
Defendant will pay interest at the rate of 15.5% per annum
on the
amount then outstanding as provided for in
Section 17(3)
(a) of the
Road Accident Fund Act, Act
56 of 1996.
3.
The Defendant furnishes the Plaintiff with an unlimited undertaking
in terms of
Section 17(4)(a)
of the
Road Accident Fund Act, Act
56 of
1996, for the costs of the future accommodation of the Plaintiff in a
hospital or nursing home or treatment of or rendering
of a service to
the Plaintiff or supplying of goods to the Plaintiff arising out of
the injuries sustained by the Plaintiff in
the motor vehicle
collision which is the causa of this action, being 19 October 2007,
after such costs have been incurred and upon
proof thereof.
4.
The Defendant pays the Plaintiff’s taxed or agreed party and
party costs on the High Court scale which costs will include,
but not
be limited to:
4.1
the costs for allowable preparation and reservation,qualifying fees
(if any) and all costs in obtaining the report(s) of the
following
expert witnesses including joint reports;
4.1.1
Dr Tony Birrell
4.1.
Hele Roos
4.1.3
Ben Moodie
4.1.5
Human & Morris Consulting Actuaries
4.2
the fees of senior-junior counsel.
4.3
the reasonable costs of the Pretoria correspondent
5.
In the event that costs are not agreed the Plaintiff agrees as
follows:
5.1
The Plaintiff shall serve the notice of taxation on the Defendant’s
attorneys attorney of record; and
5.2
The Plaintiff shall allow the Defendant 7 (SEVEN) Court to make
payment of the taxed costs.
BY
ORDER REGISTRAR