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[2011] ZAFSHC 36
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Mohloboli v Ralethohlane and Another (1929/2008) [2011] ZAFSHC 36 (24 February 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1929/2008
In the matter between:-
PULENG ANGELINA
MOHLOBOLI
…........................................
Plaintiff
and
MANEMA MERRIAM
RALETHOHLANE
….......................
1
st
Defendant
MAJANA CLEMENT
SITHOLE
….....................................
2
nd
Defendant
_____________________________________________________
HEARD ON:
15 FEBRUARY 2011
_____________________________________________________
JUDGMENT BY:
KRUGER, J
_____________________________________________________
DELIVERED ON:
24 FEBRUARY 2011
_____________________________________________________
[1] This judgment
concerns the quantum of plaintiff’s claim. Plaintiff was
injured in a motor collision on 2 May 2005. Plaintiff
was a passenger
in a taxi driven by the second defendant who was at the time in the
employ of the first defendant. As a passenger,
plaintiff’s
claim against the Road Accident Fund is limited to R25 000,00, and
the parties agree that R25 000,00 must be
subtracted from whatever
award is made by this court.
[2] Merits and quantum of
plaintiff’s claim were separated, and on 26 November 2009
Rampai J granted judgment on the merits
against the defendants
jointly and severally, reserved the costs and directed that quantum
be determined at a later stage.
[3] No evidence was led
before me. The parties agreed on future medical expenses in the
amount of R3 360,00. The parties agreed
that should the award for the
plaintiff (after subtraction of R25 000,00 recoverable from the Road
Accident Fund) exceed R100 000,00
costs on the high court scale
should be granted and if not, costs on the magistrates’ court
scale. The parties handed in
the reports of the plaintiff’s two
experts by consent, and the legal representatives made submissions.
The reports were those
of Dr P. Repko, a neurosurgeon and Dr J. J. de
Wet, an orthopaedic surgeon.
[4] The parties were not
ad idem as to the injuries suffered by the plaintiff in the
collision. Mr Van Aswegen, for plaintiff, contended
that the
following injuries should be considered:
(1) Head injury causing
scarring;
(2) Skull fracture;
(3) Injury to pelvis;
(4) Whiplash.
[5] Mr Steenkamp, for the
defendants, argued that the only two injuries to be considered are
the skull fracture and the injury to
the pelvis, the latter being the
serious injury. He said the scarring on the head and whiplash of the
neck had not been proven.
In support of his argument Mr Steenkamp
referred to plaintiff’s particulars of claim, where the
following allegation is made
in par 6:
“
A direct
result of the aforementioned collision, the plaintiff suffered
serious injuries, being a fracture of her pelvis as well
as a skull
fracture.”
No mention is made of
whiplash or scarring of the head. Dr Repko does mention a neck injury
in paragraph 2 of his report, but does
not deal with it in any
detail. Dr De Wet says there was a possible whiplash injury, which
healed without any complication, and
says the plaintiff only showed
symptoms of mild neck spasma.
[6] In support of alleged
scarring, Mr Van Aswegen in reply referred to:
(1) para 3.3 of Dr
Repko’s report:
“
In this
accident the patient sustained a head injury on the right side of the
head, which included a 3cm laceration, which was stitched.
This
laceration later turned septic and the stitches had to be removed.”
para 10.8 of Dr Repko’s
report:
“
on the right
forehead several scars were present well-healed and not tender to
touch.”
para 1.5 of Dr De Wet’s
report:
“
Met
ondersoek was daar tekens van ‘n laserasie in die frontale
gebied regs. Dit is in die haarlyn en kom goed geheg voor.”
[7] The statement by Dr
De Wet of a possible whiplash, with mild effect, at best for
plaintiff establishes only a minor injury.
As to the scarring, there
appears to have been, apart from the skull fracture, a 3cm laceration
of the right frontal region of
the forehead, and this is also a minor
injury. Dr De Wet describes a laceration in the hairline, well
healed. The injuries to the
neck and forehead were of a minor nature.
Apart from the fact that the alleged injury to the neck and the
scarring were not part
of plaintiff’s particulars of claim, nor
mentioned in further particulars, those alleged injuries have not
been established
on a preponderance of probabilities in the evidence
before me. They will be disregarded.
[8] Plaintiff was
unconscious for a short period. She had regained her consciousness
when she was admitted to hospital. She was
not operated on. The skull
fracture and pelvic fractures healed with conservative treatment. She
was in hospital for 14 days.
The skull fracture
There was a linear
fracture of the skull, not depressed. There was concussion. She
suffers from intermittent mild headaches, but
bed rest with panado
relieves the headache. The injury has healed, and she can remember
normally.
The pelvic injury
There was a fracture of
the inferior pubic ramus and a chip fracture of the left acetabalum.
The injuries were treated conservatively
and no surgery was
contemplated. The symphyse was probably also injured in the
collision. As a result of the injury, movement of
the hip is slightly
limited, and the plaintiff experiences pain where there is extreme
movement. X-rays show a slight asymmetry
due to incorrect joining of
the pubic rami. The rest of the pelvis is normal.
General
Dr Repko states that the
plaintiff, who was born on 24 January 1953, and was 52 at the time of
the collision, will not be able to
perform any remunerative work in
future. Dr De Wet expressed the view that the plaintiff will suffer
no permanent disabilities
as a result of the collision. Mr Van
Aswegen did not contend that the plaintiff is permanently disabled.
[9] Mr Van Aswegen
referred to a number of decided cases. I list the cases together with
a summary of the facts of each case as
appears from the headnote. The
present value of the claim is as stated by counsel with reference to
the appropriate tables. References
are to the Quantum of Damages in
Bodily and Fatal Injury Cases, Volumes I – III by Corbett and
Buchanan, and Volumes IV –
VI by Corbett and Honey. References
to Volume I are contained in the 2
nd
Edition (1964), not
the 3
rd
Edition (1985) nor the Hardcover 4
th
Edition (1995).
A.
Neck Injuries
1.
SOUTHGATE v ROAD
ACCIDENT FUND
(16/08/2001)
Corbett and Honey Vol V
C3-71 to C3-75
Adult married female.
Mild injury of the neck.
Virtually full recovery.
Intermittent pain.
Responded well to
treatment.
Award: R20 000,00
Present value: R36
000,00.
B.
Scars
2.
VAN DER SPUY v
RONDALIA VERSEKERINGSMAATSKAPPY
(22/05/1964)
Corbett and Buchanan Vol
I 324 – 327
Disfigurement resulting
from residuary scars of two cuts on forehead.
Award : R400,00
Present value : R24
000,00.
McLINTOCK v LAYDEN
(1977)
Corbett & Buchanan
Vol II 782 – 784
Facial lacerations and
abrasions with removal of tissue from eyebrows.
Lower lip torn to ribbons
– 150 stitches
Plastic surgery required.
1.600 Zimbabwe dollar
Rand value : R40 000,00.
Head Injury
PALM v ELSLEY
(1974)
Corbett & Buchanan
Vol II 388
Fracture at base of skull
- 14 days in hospital.
Confused and
disorientated for 11 days.
Lost sense of smell
permanently.
Severe headaches
initially.
Now severe headaches once
in six weeks.
Award : R2 500,00
Present value : R89
000,00.
Pelvis
MURPHY v
COMMERCIAL UNION ASSURANCE CO LTD
(1983)
Corbett & Buchanan
Vol III 391 – 393
Boy aged 15 years.
Fracture of pelvis.
Fracture of femur.
Possibility of future
arthritis.
Permanent disability
flowing from femur injury likely.
Award : R8 715,00
Present value : R104
000,00.
NTULI v ROAD
ACCIDENT FUND
(25 February 2009)
Corbett & Honey Vol V
J2 – 207
43 year old woman.
Abdomen and lower leg
injured and openbook fraction of pelvis.
12 days in hospital.
Award : R200 000,00
Present value : R221
000,00.
REDDY v SANTAM LTD
(1997)
Corbett & Buchanan
Vol IV F3 – 24
Hip and pelvis.
Posterior dislocation of
left hip.
Fracture of acetabulum.
Award : R53 000,00
Present value : R119
000,00.
HENEKE v ROYAL
INSURANCE CO LTD
(1954) 1954 (4) SA 606
(A)
Three fractured ribs.
Treatment was very
painful.
Weights attached to
plaintiff.
Partial rupture of
urethra.
Award : R1 000,00
Present value : R150
000,00.
MASTERSON v AA
MUTUAL INSURANCE ASSOCIATION (1)
(1971)
Corbett & Buchanan
Vol II p. 192 – 195
73 year old spinster.
Fracture of pelvis
extending into hip joint.
Ribs possibly fractured.
Severe cut and abrasions.
Temporary loss of memory.
Award : R5 500,00
Present value : R254
000,00.
LUTZKIE v SOUTH
AFRICAN RAILWAYS AND HARBOURS AND ANOTHER
(1974)
Corbett & Buchanan
Vol II 403 – 405
Pelvis fracture.
No permanent disability.
Bed-rest for three weeks.
Discomfort for six
months.
Award : R1 800,00
Present value : R64
000,00.
E.
Multiple
Injuries
11.
FAIVELOWITZ v
AUTO PROTECTION INSURANCE CO
(30/10/1962)
Corbett & Buchanan
Vol I 523
Multiple injuries to
head, pelvis and hipbone.
Multiple fractures of
skull with portion depressed.
One epileptic fit
resulting already.
Fractured pelvis and
twisted hipbone.
Intense pain.
Award : R9 000,00
Present value : R557
000,00.
12.
MULLER v ROAD
ACCIDENT FUND
(30/10/2007)
Corbett & Honey Vol V
F3 - 40
22 year old male.
Severe fracture of pelvis
with dislocation.
Abrasions and bruises.
Injury of leg.
Permanent limp.
Right leg 3 cm shorter
than left leg after surgery.
Award : R200 000,00
Present value : R265
000,00.
[10] Mr Van Aswegen
conceded that the injuries in the above cases were more serious than
the plaintiff’s injuries.
[11] Mr Steenkamp took
the view that the only two relevant injuries were those to the head
and pelvis. He said the serious injury
was the one to the pelvis and
referred to five cases:
SMITH v MINISTER
OF JUSTICE
(1960)
Corbett & Buchanan
Vol I p. 403
Lady of 77 years.
Pelvis fracture.
Slight restriction in
back movement.
Impairment of memory.
Award : £400/R800,00
Present value : R51
000,00.
VAN VUUREN v NEW
ZEALAND INSURANCE CO LTD
(9/12/1954)
Corbett & Buchanan
Vol I p. 402
Young woman.
Fractured pelvis and
injured leg.
In sling for six months
for pelvis.
Discomfort in back and
leg persisting.
Slight disfigurement of
leg.
Severe shock and pain.
Award : £500/R1
000,00
Present value : R74
000,00.
SINGH v PROVINCIAL
INSURANCE CO LTD
(1963)
Corbett & Buchanan
Vol I p. 399
Fractured bones in
pelvis.
Certain distortion
remained.
Fibrosis causing
permanent weakness,
Use of catheter.
Award : R1 400,00
Present value : R86
000,00.
WOODMAN v SA EAGLE
INSURANCE CO LTD
(1983)
Corbett & Buchanan
Vol I p. 440
Widow 69 years old.
Fracture in pelvis area.
Treated in hospital by
traction for a week.
3 weeks in hospital.
Fractures painful but now
healed.
No longer able to
continue active life.
Award : R7 500,00
Present value : R89
000,00.
MASTERSON v AA
MUTUAL INSURANCE CO LTD (2)
(1971)
Corbett & Buchanan
Vol II 217
63 year old spinster.
Fracture of tibia and
fibula extending into knee joint.
Fracture of pelvis.
Left with slight limp due
to shortening of leg – now ¾ inch shorter.
Limited movement of knee.
Inability to stand for
long.
Still numbness in leg.
Award : R2 000,00
Present value : R92
000,00.
[12] As to the pelvic
injury, the case which most closely resembles the facts in this case
is that of
LUTZKIE
(R64 000,00 present value). The
highest award in the cases referred to by Mr Steenkamp was R92 000,00
(present value). Plaintiff
did not undergo any operation, nor was she
in traction. The fractures to her pelvis healed well. Movement of the
hip is slightly
limited, and there is a slight asymmetry in the
pelvis. I am alive to the fact that a court should not follow
previous awards blindly,
and that courts have possibly made more
generous awards in recent years. In my view an award of between R70
000,00 and R80 000,00
for the pelvic injury would be appropriate.
[13] As to the skull
fracture, no surgery was required. The linear fracture was not
depressed and it healed. There was slight concussion
and the
plaintiff has intermittent mild headaches which in the opinion of Dr
Repko may disappear provided the general health of
the plaintiff is
satisfactory. In my view an award of between R20 000,00 and R25
000,00 would be adequate.
[14] The alleged injuries
to the head and neck were not pleaded and have not been proved.
General damages in the amount of R105
000,00 should be allowed from
which the amount of R25 000,00 to be recovered from the Road Accident
Fund must be subtracted.
[15]
ORDER
Defendants are ordered,
jointly and severally the one paying the other to be absolved
accordingly:
1. To pay the plaintiff
―
1.1 General damages of
R80 000,00.
1.2 Future medical
expenses in the amount of R3 360,00.
2. Interest on the
aforesaid amounts at 15,5% pa from date of judgment to date of
payment.
3. To pay the plaintiff’s
costs including the costs of the trial on merits by Rampai J on the
appropriate magistrates’
court scale.
______________
A KRUGER, J
On behalf of the
Plaintiff: Adv. W. Van Aswegen
Instructed by:
McIntyre & Van Der
Post
BLOEMFONTEIN
On behalf of the
1
st
& 2
nd
Defendants: Adv. M.D.J. Steenkamp
Instructed by:
Wessels & Smith
BLOEMFONTEIN
/wm/sp