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[2010] ZAFSHC 139
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Mokoena v Road Accident Fund (2372/2009) [2010] ZAFSHC 139 (4 November 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. 2372/2009
In the matter between:-
BOLAWANE SARAH
MOKOENA
…............................................
Plaintiff
and
ROAD ACCIDENT FUND
…....................................................
Defendant
_____________________________________________________
HEARD ON:
22 OCTOBER 2010
_____________________________________________________
JUDGMENT BY:
RADEBE, AJ
_____________________________________________________
DELIVERED ON:
4 NOVEMBER 2010
_____________________________________________________
JUDGMENT
_____________________________________________________
INTRODUCTION
[1] The plaintiff
instituted action against the defendant on 14 May 2009. The cause of
action arises from a motor vehicle collision
that occurred on 26
August 2006 at Mohapi Street, Phahameng, Bloemfontein. The plaintiff,
whose date of birth is 10 April 1945,
was a pedestrian at the time of
the collision with a motor vehicle, then driven by one Lwaiphi James
Qakoshe (the insured driver).
[2] In her particulars of
claim the plaintiff alleges that the sole cause of the collision was
the negligence of the insured driver.
She then proceeds to allege
various aspects of such negligence. As a result of the said
collision, the plaintiff sustained specific
bodily injuries which
resulted in her suffering special as well as general damages. She
claims those damages under two headings:
Special damages –
R75 000.00
General damages –
R200 000.00
[3] In due course and
prior to the trial date the defendant conceded liability for the
damages suffered by the plaintiff, but the
quantum thereof remained
in dispute. Further, the defendant offered to settle the claim for
special damages through giving the
plaintiff an undertaking in terms
of section 17(4)(a) of the Road Accident Fund, No. 56 of 1996 (“the
Act”).
[4] The matter came for
trial before me on 19 October 2010. In his opening address Mr.
Cilliers, counsel for the plaintiff, recorded
the following aspects
as having been agreed and settled between the parties:
4.1 the issue of
liability is conceded 100% in respect of plaintiff’s proven
damages;
4.2 the defendant is
liable to provide the plaintiff with an undertaking in terms of
section 17(4)(a) of the Act;
4.3 the defendant is to
pay plaintiff’s party and party costs on a High Court scale, as
taxed or agreed; such costs to include
the qualifying and reservation
fees of plaintiff’s one expert, Dr. J.J. Fourie, an orthopaedic
surgeon;
4.4 the defendant admits
Dr. Fourie’s report dated 16 January 2009 which is annexure “A”
to the particulars of
claim;
4.5 the only issue in
dispute is the extent of general damages suffered by the plaintiff
and the amount to be awarded to the plaintiff.
Mr. J.C. Coetzer, counsel
for the defendant, confirmed all the above.
PLAINTIFF’S
EVIDENCE
[5] The plaintiff gave
evidence concerning the injuries she sustained in the aforesaid
collision when she was a pedestrian, namely:
(a) a ligament injury to
the right knee;
(b) a nerve damage in the
right leg;
(c) injury to the right
ankle;
(d) bruises to the left
of her thoracic spine;
(e) injuries to the ribs.
[6] Prior to the accident
she was leading an active life – doing household chores,
walking long distances between Botshabelo
and Thaba Nchu, playing
netball, going to church. All these activities, save for playing of
netball, which she had stopped in 2002,
had been compromised as a
result of the collision. She has to depend on other household members
for assistance with cleaning of
the house, washing and other
activities. She limps and uses a crutch to get around. She was
limping and using a crutch when she
had to attend court for this case
and she attributes this to the aforesaid collision.
[7] According to the
plaintiff, she suffers a lot of pain on the right leg. This results
in her not being able to get a proper and
good sleep - a situation
she finds herself in every night. Her right leg becomes numb at
times, causing her to think it is lifeless.
Prior to the collision
she could walk for a long period of time. After the accident she can
manage only up to five to six minutes
walking.
[8] Immediately after
being discharged from the out-patient, Department of the Pelonomi
Hospital in Bloemfontein, she attended physiotherapy
totalling eight
sessions. She now takes Disprin painkillers, which she barely affords
to buy since it costs her R2,00 a packet.
She cannot afford more
sophisticated painkillers. For the past four years she has been using
a crutch on a daily basis.
[9] Under
cross-examination plaintiff testified that the injuries cause her
pain, so severe that at times she cries. She conceded
that at the age
of 62 years (when she was injured) and now 65 years old there are
age-associated ailments. She further conceded
that the chest pain, as
reported by her own specialist, Dr. J.J. Fourie, is minimal. She
further confirmed that she was not admitted
to hospital as an
in-patient, but was treated and discharged on the same day of the
accident.
[10] The plaintiff’s
notice in terms of Rule 36(9)(a) & (b) introduced the expert’s
report by Dr. J.J. Fourie, which
was admitted into evidence by
consent, summarises the plaintiff’s injuries and treatment as
assessed on 9 October 2008. The
following aspects of the report need
to be taken notice of:
10.1 the source of
information used to compile the report was
(a) interview and
examination of the plaintiff;
(b) statutory medical
report completed by Dr. Pule; and
(c) hospital records.
10.2 the plaintiff, an
adult female, was born on 4 October 1945, is a pensioner,
right-handed, unmarried, no dependants, plays no
sport and has a
Grade 3 education.
10.3 She was a healthy
person, has had no operations and no injuries prior to the collision.
As a result of the collision, the plaintiff
sustained the following
injuries:
“
(a) Ligament
besering van die regter knie. Die besering het bestaan uit ‘n
mediale kollaterale ligament en anterior kruisligament
besering.
(b) Senuwee besering van die regter
been. Die besering word nie in die notas of in die statutêre
verslag aangedui nie, maar
word volledig bespreek.
(c) Moontlike besering van die regter
enkel. Die besering is nie aangeteken nie.
(d) Kneusing links torakaal sonder
hemo- of pneumotoraks. Die besering is nie aangeteken nie.”
Plaintiff attended
physiotherapy sessions in Botshabelo Hospital and when it was
realised that there was no improvement in her
knee, she was
referred back to Pelonomi Hospital for further treatment.
The plaintiff
complained of “neurologiese uitval van die regter onderbeen”.
Although there were no indications thereof,
according to her
description of the discomfort, it presents as what is called “drop
foot” (“’n peroneale
senuwee besering met ‘n
hangvoet”).
Her present complaints
were chest pain (found to be minimal); night pain in right knee;
occasional swelling of the knee; restricted
movements; instability
when she stands; peroneal nerve injury on the right side; and,
swelling of the right foot which suffers
the drop foot syndrome,
although this was found not to be profound.
The complaints can
therefore be classified into three categories, namely,
10.7.1 Chest pains –
no fractured ribs and minimal pain which can be treated with
steroids.
10.7.2 Peroneal nerve
injury on the right hand side, which can be handed through active
physiotherapy over a period of three to
four years.
10.7.3 Right knee injury,
with a 5 – 10% possibility of knee replacement.
10.8 The estimated future
medical expenses would be in excess of R130 000,00 if all procedures
are undertaken, that would involve
future pain and suffering for six
to eight weeks.
10.9 The plaintiff
suffered severe pain during the accident and is now in chronic pain
and suffering as a result of the knee and
the peroneal nerve injury.
There is also no guarantee that the symptoms will be completely
eradicated through the suggested treatment.
The plaintiff closed her
case. The defence also closed its case without calling any witnesses.
ARGUMENT
[11] Counsel for the
plaintiff cited various cases in support of his submission that an
award of between R120 000,00 and R150 000,00
would be fair in respect
of general damages. Counsel for the defendant argued for a lower
award of between R40 000,00 and R60 000,00.
EVALUATION
[12] It is common cause
that the plaintiff has to an extent suffered long-term sequelae from
what initially appeared to be a mild
injury. She has up to the date
of the trial not been able to fully recover from the knee and ankle
injuries sustained in the collision
on 26 August 2006.
[13] When plaintiff was
taken to hospital, immediately after the collision, her injuries were
apparently regarded as mild. She was
treated and discharged. This
court does not lose sight of that fact, but can also no penalise the
plaintiff for the decision taken
by the hospital when diagnosing her
injuries.
[14] The report by Dr.
J.J. Fourie was compiled following his examination of the plaintiff
on 9 October 2008 – more than twee
years after the collision.
In that report Dr. Fourie confirmed the knee and ankle injuries, but
has very little to say about the
chest problems, which plaintiff
pointed to him, except to remark that the origin of the chest
problems cannot be determined. Dr.
Fourie went on to make a point
about the sequelae of the bodily injuries and made observations as
tabulated in his report on page
6 – 7. These have already been
referred to by me in paragraph 10.7 above.
[15] In the case of
ROAD
ACCIDENT FUND v MARUNGA
2003 (5) SA 164
at 165 B it was held
that:
“
in cases in
which the question of general damages arose, a trial Court had a wide
discretion to award what it considered to be fair
and adequate
compensation to the injured party.
There was no hard and fast rule of
general application requiring a trial Court to consider past awards,
although the Court might
derive some assistance from the general
pattern of previous
awards.”
It is very rare that a
court can find cases in respect of which the claimants have suffered
exactly the same bodily injuries as
well as sequelae. One claimant
might have sustained an ankle injury or a knee injury, but be able to
walk normally again, play,
run long distances after a few weeks or
months.
[16] In exercising its
wide discretion, a court should not loose sight of the varying
consequences of injuries caused by negligent
driving of motor
vehicles, when making awards. Such consequences should be approached
objectively and such objectivity should be
apparent irrespective of
the injured person’s socio-economic or educational background.
There should be no discrimination
in terms of race, gender or
economic background.
[17] Further in applying
the objective test when exercising its wide discretion, the court
takes cognisance of the need to avoid
sympathising with the victims
of road accidents, to the extent that the position of the defendant
is compromised. In
SIGOURNAY v GILLBANKS
1960 (2) SA
552
(A) on 572 C it was held that:
“
Nothing
closely linked with the peculiar circumstances of each case, but some
guidance is to be derived from the notion that fairness
to both
parties is likely to be served by a large measure of continuity in
the size of the awards where the circumstances are broadly
similar.”
[18] The awards made in
respect of general damage are as readily quantifiable as awards in
respect of special damages. This fact
should be borne in mind
whenever a court is confronted with a case of quantifying general
damages to avoid moving towards “thumb-sucking”
amounts.
[19] General damages have
a wide range which comprise of,
inter alia
, shock, pain and
suffering, loss of enjoyment of amenities of life, disfigurement,
disability and contumelia. The evidence in this
case, i.e.
plaintiff’s
viva voce
evidence and the expert’s
report compiled by Dr. J.J. Fourie, show that the plaintiff suffered
these aspects of general damages
to varying degrees. There has been
less or no emphasis on the aspect of shock and contumelia.
[20] Plaintiff testified
that:
20.1 She suffers a lot of
pain, causing her sleepless nights. She has difficulty turning her
body and has to sleep on one side of
her body throughout the night.
At times she feels numbness on her ankle and suffers what is regarded
as a “drop foot”.
Dr. Fourie’s report states that
she will continue to suffer pain and future suffering for six to
eight weeks when she undergoes
further surgery and hospitalisation.
20.2 Insofar as loss of
enjoyment of amenities of life, the plaintiff testified that whereas
she used to walk long distances of
± 20 kilometres, she can
now only walk for five minutes. Undoubtedly, in her prime years she
was a physically fit person,
playing netball and having social
matches with her friends. She has lost enjoyment derived from
socialising with friends and of
going to church. She now has to have
the priest and prayer groups coming to her home to give her service.
She has thus lost the
freedom of fully associating with the other
members of her church.
20.3 The plaintiff
further testified that she is now disfigured and walks in a limp,
using a crutch since the date of the accident.
When Dr. J.J. Fourie
consulted with her on 9 October 2008, he made the following
observations – on page 17 of indexed papers
– amongst
other things:
“
Funksionele
inkorting:
Loop:
Mev Mokoena vind dit moeilik om op
ongelyke terrein te loop omdat die knie onstabiel voel en die voet
soms meegee en vashak.
Sy het vir ‘n lang tyd met twee
krukke geloop en help haarself nog met een kruk as sy op ongelyke
terrein loop.
..... sy kan nie swaar voorwerpe
hanteer nie.”
[21] In deciding the
appropriate award for general damages, I have considered all of the
above, which may be summarised as the following
factors:
(a) the nature of the
injuries;
(b) the sequelae thereof;
(c) the various aspects
of general damages;
(d) the degree to which
each aspect of the general damages has been suffered;
(e) the extent to which
such damages are likely to continue to be suffered;
(f) comparative cases and
awards thereof;
(g) the lapse of time
from the date when the injuries were sustained to the date of the
final award. In this respect I make reference
to the Classified
Listing of inflation adjusted awards as published in the Quantum
Yearbook by Robert J. Koch, 2010. In the case
of
PUTUMA v RAF
2008 5E8 QOD 13 (SE) the award of R105 000 in 2008 has escalated to
R120 000 in 2010 figures. Similarly, in
VAN DYK v RAF
2003 5 QOD 519 (W) an award of R90 000 in 2003 has escalated to R135
000 in 2010.
[22] In the result I come
to the conclusion that an award in the sum of R120 000,00 in respect
of general damages will be fair and
equitable.
[23] I therefore make the
following order:
(a) The defendant
concedes liability 100%.
(b) The defendant is
ordered to pay an amount of R120 000,00 to the plaintiff in respect
of general damages.
(c) The defendant is
ordered to furnish the plaintiff with an undertaking as envisaged in
section 17(4)(a) of Act 56 of 1996 covering
100% of the costs for
future medical and hospital or nursing home expenses and of any other
treatment, including physiotherapy
services or goods that the
plaintiff may require as a result of the injuries sustained by her in
the motor vehicle accident on
26 August 2006.
(d) The defendant is
ordered to pay plaintiff’s taxed or agreed party and party
costs on the applicable High Court scale,
which costs shall include
the qualifying and reservation fees of the orthopaedic surgeon, Dr.
J.J. Fourie.
_______________
N.H. RADEBE, AJ
On behalf of the
plaintiff: Adv. H.J. Cilliers
Instructed by:
Honey Attorneys
BLOEMFONTEIN
(REF: A PRINSLOO/cvdm/J02145)
On behalf of the
defendant: Adv. J.C. Coetzer
Instructed by:
Lindsay Keller Attorneys
c/o Matsepes Inc
BLOEMFONTEIN
(REF: C M DU PLOOY/LT/LIN5/0156)
/sp