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IN THE HIGH COURT OF SOUTH AFRICA
(IN THE CISKEI DIVISION)
CASE NO. 449/06
In the matter between:-
ANDISWA MZENDANA
PLAINTIFF
and
ROAD ACCIDENT FUND
DEFENDANT
JUDGMENT
DHLODHLO ADJP:
1. The Plaintiff, an adult unemployed female person, was a passenger
in a motor vehicle on 04 September 2003 near Egerton railway
station in Mdantsane near East London.
The vehicle in which she was a passenger collided with another
vehicle, as a result of which she sustained serious bodily injuries,
2
namely a fracture of the left tibia, a fracture of the right
acetabulum, an ulcer of the left heel, a contusion of the lung, an
injury to the left knee and an injury to the left ankle.
2. The merits were conceded by the Defendant on the basis that the
Defendant is liable to compensate the Plaintiff fully for the damages
which she may prove, or as agreed by the parties.
The
outstanding aspect to be decided upon is quantum, particularly
general damages.
3. The reason why parties are not in agreement as far as general
damages are concerned, is that, although two experts (orthopaedic
surgeons) agree on vast areas, they differ on when the Plaintiff will
require a hip replacement and whether a hip revision will be
necessary.
If performed, these procedures will affect general
damages because of pain and suffering, discomfort and others the
Plaintiff will experience.
4. For general damages in respect of shock, pain and suffering,
disability, disfigurement and loss of amenities of life the Plaintiff
claims R500000.00. Sums of R113382-00 and R814223-00 as and
for past loss of earnings and in respect of future loss of earnings,
3
respectively, have been agreed upon by the parties.
5. The Plaintiff was born 11 November 1978.
completed matric.
She is unemployed.
She went to school and
She told the Court that
she sustained physical injuries when the collision occurred. She was
injured on her left leg and left hip.
shocked.
She had a fright and was
She lost consciousness and regained it in hospital.
Before she was injured she did not experience health problems.
She would walk normally.
While she was in hospital she realized
that her ribs, the right hip, the left leg and the right eye were
painful.
The eye was painful for two weeks. She did not remember
how long pain on the ribs lasted.
6. She
was
immobilized
with
traction
while
the
left
leg
was
After about four weeks she was mobilized with crutches.
She
immobilized in a plaster of paris cast.
was discharged from Cecilia Makiwane hospital on 10 October
2003.
She returned to hospital as an outpatient on 20
November 2003.
7.
According to Dr. Peter Andreas Olivier’s (Orthopaedic surgeon) report dated 08
December 2004 which forms part of what is referred to as “bundle of
4
documents(medical reports) marked “exhibit A”, on 14 January 2004 when the
Plaintiff visited the outpatient department she was still mobilized with crutches and
complained of pain in the right hip. Dr Olivier found that the patient was
experiencing pain in the right hip joint when movements were examined and that
these movements were responsible for the patient’s typical pain in the region of her
right groin.
8. The Plaintiff said that while she was immobilized with traction in
hospital she laid on her back for about two months and, as a result,
she developed bed sores.
She could not get up to a private room
to relieve nature.
A bed pan would be brought to her so that she could relieve
herself.
Hospital staff would lift her up in order for her to
relieve herself.
This would occur about three times per day.
She was embarrassed and ashamed of herself that she could
relieve nature in this manner in the presence of hospital staff.
She felt pain in the right hip and would now and again take pain
killers to alleviate pain.
9. On her discharge from hospital she was given under-arm crutches
which she used for about six months.
She can now walk short
5
distances without crutches.
After walking a distance of about 80 to
100 metres she feels pain in the hip and the ankle and if she stands
for longer than ten minutes her knee pains and the leg gets
swollen.
She experiences pain in her left lower leg which was
fractured. When it is cold she experiences pain in the whole left leg
and in the right hip.
experiences pain.
When she attempts to bend her left knee she
She does not experience pain when she is lying
down but she does when she stands up.
She walks with difficulty.
Since year 2004 there has been no need to see a medical doctor.
10. The Plaintiff said that she uses adcodol tablets to relieve pain.
buys them from a chemist.
per week.
She
She takes two tablets per day twice
She said that she was told not to use tablets everyday
because they might cause ulcers.
She is prepared to endure pains
but when they become unbearable she takes the tablets more than
twice per week.
11. In his first report Dr. Olivier states that the Plaintiff experiences a
slight degree of pain and discomfort that will gradually become
moderate to severe and that the pain will eventually lead to a total
hip replacement after a period of ten (10) years.
She will
experience a severe degree of pain and discomfort for period of
6
twelve (12) weeks after each of the hip replacement procedures.
Dr. Olivier went on and said that the Plaintiff will also feel a slight to
moderate degree of pain and discomfort in the periods prior to the
hip replacement procedures because of aseptic loosening and wear.
She will experience pain and discomfort after certain procedures,
such as plastic surgical procedure, corrective osteotomy and the
removal of the internal fixation.
In
Dr.
Olivier’s
opinion
the
Plaintiff
will
be
relatively
asymptomatic after the second revision procedure and will not
require long term medication.
12.
Concerning loss of amenities of life Dr. Olivier’s opinion is that,
because the patient sustained a serious injury to the right hip
joint, she will not be able to participate in weight bearing
activities such as hiking, jogging and weight bearing sport.
She will be a community walker but will find it difficult to
participate in social activities such as dancing.
13.
According to Dr. Olivier the presence of ulcer over the heel area
of
the
Plaintiff
contributes
to
a
significant
degree
of
7
disfigurement which should be regarded as of a temporary
nature.
There will be numerous surgical scars over the left heel
area after a skin flap procedure which will contribute to a
permanent degree of disfigurement.
The Plaintiff will walk with
an antalgic gait for a large part of her life because she will
undergo several hip operations which will cause pain in the hip.
A surgical scar is anticipated over the midshaft tibia area after
the corrective osteotomy.
This will contribute to a permanent
degree of disfigurement.
14.
Dr, Olivier compiled a supplementary report, hereinafter referred
to as the second report, on 10 April 2006.
The Plaintiff
had been evaluated with a view to determining her current
clinical condition.
15.
The Plaintiff stated that she experienced pain in her right hip.
The pain was present in the groin area and tended to
radiate down the anterior aspect of the right thigh.
The
pain was related to physical activities such as standing,
walking and others.
The walking distance was limited.
She was using analgesics (adcodol) tablets on a fairly
regular basis.
She complained of pain over the medial
8
aspect of the left knee.
osteoarthritis.
She had experienced the pain for the past
twelve (12) months.
left ankle.
This pain was suggestive of
She further experienced pain in the
According to Dr. Olivier the symptoms were
typical of osteoarthritis and were often associated with
swelling.
The Plaintiff told Dr. Olivier that the pain in her
right hip was worse at that stage than it had been a year
earlier.
16.
Dr. Olivier found that the range movement in the right hip joint
was slightly restricted and the Plaintiff experienced “her
typical
symptoms
movements”.
at
the
extremities
of
the
above
There was a slight effusion present of the
left knee joint.
There was a deformity present that resulted from malunion of
the previous midshaft tibial fracture.
Concerning the left ankle
joint the Plaintiff experienced pain at the extremeties of “dorsi
flexion and plantare flexion”.
17.
Dr Olivier studied X-rays that were requested in December 2004
from East Coast Radiology and he compared X-rays of the
9
right hip joint with those which were requested in
December 2004.
The joint space was still well maintained
but signs of early degenerative changes were present.
An
early osteophyte formation was present in the superior
aspect of the head and neck junction.
Also present was
an early degenerative cyst in the region of the acetabulum.
These changes had not been observed on X-rays about two
years earlier.
18.
X-rays of the left knee joint showed signs of medial joint space
narrowing.
Concerning the left tibia, the varus deformity
was still present, as had been noted earlier.
X-rays of the
left ankle joint showed that signs of degenerative changes
were present.
19.
As regards the right hip joint, the Plaintiff experienced more
pain.
Her symptoms were typical of osteoarthritis.
The
pain was precipitated by physical activities.
She had to rest after performing activities at home.
adcodol tablets not on regular basis.
restricted.
She used
Her walking distance was
In Dr. Olivier’s opinion the Plaintiff is not able to
10
perform any physical activities such as standing, walking,
performing manual labour etc.
20.
Both Dr. Olivier and Dr Theo Berkowitz who is also an
orthopaedic surgeon noted in their reports that the Plaintiff
presents with typical hip pain and that the pain is very
suggestive of osteoarthritis.
21.
In his second report Dr. Olivier states that it is still his opinion
that the Plaintiff sustained a serious orthopaedic injury
when she sustained a fracture to the right acetabulum.
The Plaintiff has already developed early degenerative
changes
and
will
require
treatment in the future.
conservative
and
surgical
Dr. Olivier is still of opinion that
the patient presents with a therapeutic dilemma because
she is only 28 years old.
Dr. Olivier is still of opinion that the Plaintiff will require a
resurfacing procedure and at least one revision procedure.
22.
Dr. Berkowitz remarked that the Plaintiff is still very young.
He
felt that “her chances of deterioration in her right hip, left
11
knee and left ankle are reasonably high”.
He also felt that
the estimate of surgery being required to the left knee and
the left ankle by Dr Olivier at 50% is not unreasonable.
23.
In his testimony Dr. Berkowitz said that he was in agreement
with Dr Olivier concerning the Plaintiff’s knee replacement
and the arthordesis of the left ankle.
He confirmed the contents of his report as part of the bundle of
documents marked “Exhibit A”.
24.
Dr. Berkowitz stated that he differed with Dr. Olivier concerning
the injury to the right hip and the interpretation of reports
of X-rays.
He was of opinion that there were no signs of
arthritis.
Dr. Berkowitz remarked that the fact that the Plaintiff had not
seen a medical doctor since year 2004 might suggest that pain is
not severe.
He concurred with Dr. Olivier that X-rays show
arthritis on the hip joint.
25.
Dr Berkowitz said that pain could be associated with scarring.
He accepted the Plaintiff’s statement that she prefers to
12
use tablets only when pain is unbearable.
He said that
the cause of hip replacement would be osteoarthritis.
He
did not think that anyone could say with any degree of
certainty when osteoarthritis will set in.
He said that it is possible that within fifteen years from the date
of injury a knee replacement will be necessary.
He could not
categorically rule out the possibility of a hip replacement in order
to alleviate pain.
pain.
long
The wearing out of the hip joint will cause
Dr. Berkowitz said that arthritis will deteriorate after a
time.
He
could
not
rule
osteoarthritis has already set in.
out
the
possibility
that
Responding to the question
whether hip resurfacing is similar to hip replacement, Dr
Berkowitz said that they were much the same and that some
may last longer but others not.
could be classified as severe.
He denied that a knee injury
He said that the consequences of
an ankle injury could be severe.
26.
Mr Louw for the Plaintiff urged me to award the Plaintiff what she
has claimed (R500 000.00) for pain and suffering, shock,
discomfort and disfigurement.
Mr Wood for the Defendant submitted that a fair amount would
13
be R250 000.00.
27.
The Plaintiff is 28 years old. According to Dr Olivier there is a
0.5% possibility for a fatal post-operative pulmonary embolism
after each of the hip replacement procedures.
Dr Olivier states
further that the same incidence is possible for a fatal operative
pulmonary embolism after the corrective osteotomy of the tibia.
Dr Olivier’s report suggests that the Plaintiff is still going to live
with pain and suffering, disability, discomfort and disfigurement
for many years to come.
28.
In Road Accident Fund v Marunga 2003 (5) SA 164 (SCA)
the respondent had sustained the following injuries:
(i) a fracture of the left femur
(ii) a soft tissue injury in the chest area
(iii)
bruises on the forehead, left arm and left knee.
He received treatment, attended at hospitals and was subjected
to surgical procedures, one of which involved inserting of a plate
and screws in the left leg in order to deal with the fracture of the
left femur.
14
He spent five months in hospital recuperating. Approximately
two months were spent with his leg in traction and in plaster.
After discharge from hospital he was compelled to use crutches
as a walking aid for about five months.
During 1997 he was
readmitted to hospital for the surgical removal of the plate and
screws.
It was found that the plate had moved and caused a
mal-union and angulation of the femur.
This resulted in
shortening of the Plaintiff’s left leg.
He spent two weeks in hospital after the plate and one of the screws
had been removed.
Before the collision the respondent was a keen soccer and
volleyball player.
unable to
After injuries had been sustained he was
participate in these sports.
He experienced difficulty in lifting objects and could not remain
standing for long periods.
He experienced pain in his leg when
he walked long distances.
From the time of the collision until
1995 he experienced pain in his chest area.
Dr. Ledwaba, an orthopaedic surgeon, said, among others, that
there was no evidence that the respondent experienced pain
15
when he walked short distances.
The orthopaedic surgeon said that the fracture itself had healed.
disfigurement was permanent.
His
He suffered 20% loss of power in his left leg.
His mobility was
permanently
to
restricted.
He
would
have
endure
the
discomfort of walking with shortened and less powerful leg for
the rest of his life.
29.
The trial court had awarded
for general damages.
him an amount of R375 000.00
On appeal this amount was substituted
by the amount of R175 000.00 which the court considered an
appropriate award of damages.
30.
In
an unreported judgment of the Ciskei High Court delivered
on 18 August 2003 in the case Peter V Road Accident Fund
case number 356/2002, the Plaintiff had sustained the following
injuries as a result of motor collision: a fracture of the pelvis and
acetabulum, two scalp lacerations, multiple deep abrasions to
the right shoulder and upper arm and over the lumber spine.
After the accident the plaintiff was hospitalized.
the collision the plaintiff was 40 years of age.
pain which worsened when he moved.
At the time of
He experienced
He found it difficult to
16
walk a distance of about 200 metres.
Dr Venter, a plastic and
reconstructive surgeon, foresaw that the plaintiff would develop
osteoarthritis as a result of the fracture of the right acetabulum.
It was foreseen that the Plaintiff would require conservative
treatment in the initial stages and that he would within five
years of the date of the collision have to undergo a complete hip
replacement.
It was further foreseen that a revision procedure
would be necessary in fifteen years’ time.
It was expected that after the revision procedure his hip would be
good for the remainder of his natural life.
No permanent disabilities were expected to result from
lacerations and abrasions.
In determining an award for general damages, Van Zyl J
referred to the Marunga case at 170F wherein Navsa JA quoted
with approval the following passage in
Wright V Multilateral
motor Vehicle Accident Fund a 1977 decision of the Natal
Provincial Division (Corbert and Honey Vol 4E 3 – 36 where
Broome DJP said:“I consider that when having regard to previous awards one
must recognize that there is a tendency for awards now to be
higher than they were in the past. I believe this to be a natural
17
reflection of the changes in society, the recognition of greater
individual freedom and opportunity, rising standards of living
and the recognition that our awards in the past have been
significantly lower than those in most other countries”.
Having considered all factors and circumstances applicable
to the assessment of damages, the medical evidence
placed before him, the past awards made in various cases
and having taken into account the modern approach to the
award of damages adopted in the Wright and Marunga
judgments, Mr Justice Van Zyl was of the view that the
general damages suffered by the plaintiff amounted to
R180 000.00.
31.
In a more recent unreported case of the Eastern Cape Division,
namely Andrew Cunningham Roux and Road Accident Fund
(case number E.L. 397/2002) decided on 15 August 2005,
the
plaintiff
was
a
pedestrian
Voortrekker Street in East London.
standing
on
an
island
in
He was knocked down by a
mini-bus and sustained severe bodily injuries.
Injuries sustained by the plaintiff were:
18
Severe injury to the area of his right ankle, compound
comminuted spiral fracture of the distal tibia with an associated
fracture of the fibula.
The fractures were some 3 to 4 cms above the anklejoint. He also
sustained an intra-articular injury to the right knee joint, probably
involving the attachment of the anterior cruciate ligament in the area
of the tibial spine and a tear of the medial meniscus.
There was also a large open wound over the right leg which left
a clearly visible scar.
The Plaintiff was removed by ambulance to hospital where the
wound was irrigated and debribed in theatre.
Two days later on 08 March 2000 he was again returned to theatre
where, under general anaesthetic, an open reduction and internal
fixation was performed on the right fibula, the fracture being fixed with
an eight-hole plate and screws. The leg was swollen for some days
after the operation. It was not clear how long he was hospitalised but
it seemed to have been for several weeks. After being released from
hospital the plaintiff was able to move around with the assistance of
crutches. In April 2000 he slipped while on crutches and fell.
The strain this mishap placed on the fibula resulted in the fibula
fracturing immediately above the hardware which had been
inserted during the operation on 08 March 2000.
He was
readmitted to hospital and returned to theatre where an
unreamed tibial nail was inserted into the right tibia and secured
with three screws.
He was placed in an above knee plaster of
19
Paris cast and mobilised, partially weight bearing on crutches.
On 26 June 2000 it was established that the plaintiff had developed a
ten degree varus deformity of the lower limb.
By 28 August 2000 the deformity had increased to thirty
degrees.
On 04 October 2000 the fracture had united and the
Plaintiff underwent a further operation to remove the distal
screw.
On 30 October 2002 he underwent a further operation in
which the deformity of his right leg was corrected.
The Plaintiff was left with a shortening of the leg in excess of
3cms.
As a result, he walked with an antalgic gait.
He lost a
great deal of soft tissue, especially over the lateral aspect of the
leg.
He could not spend much time on his feet.
longer squat or run.
He could no
Prior to the accident he enjoyed rock
fishing on a regular basis.
He experienced daily pain as a result
of the injuries to his lower limb.
In some two years the plaintiff would be obliged to undergo surgery to remove
the fixtor used in the operation. He would require conservative treatment for the
remainder of his lifetime for pain and discomfort in the region of the right foot
and ankle.
20
At some stage the plaintiff underwent a skin graft operation.
Skin was taken from the right thigh having been grafted onto an
area immediately above the ankle.
This left a scar of some 14
by 8 cms on the right lower ankle.
In determining quantum, Leach J referred to some case law,
including those which have been referred to in this judgment.
The learned Judge took into account the facts of the case and
principles in regard to the assessment of general damages.
He
also considered the awards in cases he had referred to and that
there is “a continuing erosion in the buying power of money”,
the nature and severity of the plaintiff’s injuries and the
treatment he had had to undergo and would be obliged to
undergo in the future.
was
justified
in
He felt that an award of R185 000.00
respect
of
shock,
pain
and
suffering,
disfigurement, disabilities and loss of amenities of life.
32.
In dealing with the question of general damages a trial court has
a wide discretion to award what it considers to be fair and
adequate compensation to the injured party- See Protea
Assurance CO. LTD v Lamb 1971 (1) SA 530 (A) at 535A –
B and Marunga case supra.
21
33. Having considered the facts of the present case, principles
applicable to the assessment of damages, the awards in past cases
(especially comparable ones), the tendency for awards now to be
higher than they were in the past, the nature and severity of the
Plaintiff’s injuries and the treatment she has had to go through and
that she will be obliged to undergo in the future, I feel that an award
of R350 000.00 is justified in respect of shock, pain and suffering,
discomfort,disfigurement and disability giving rise to loss of amenities
of life.
34. I make the following order:-
34.1.1
The defendant is to pay to plaintiff the following sums:
34.1.2
R113382.00 as and for past loss of earnings;
34.1.3
The sum of R814 223.00 in respect
of future loss of
earnings;
34.1.4
The sum of R350 000.00 in respect of general damages;
34.1.5
Together with interest thereon at the legal rate calculated
from a date fourteen (14) days after the date of this order
to date of payment.
35. The defendant is ordered to issue an undertaking in terms of
section 17 of the Road Accident Fund Act No. 56 of 1996 for the
costs of the future accommodation of the plaintiff in hospital or
nursing home for treatment or of rendering of a service to her or
supplying of goods to her arising out of the injuries sustained by
22
her in the motor collision which occurred on 04 September 2003,
after such costs have been incurred and upon proof thereof.
36. The Defendant is to pay the plaintiff’s taxed costs as between
party and party on the High Court scale together with interest
thereon at the legal rate calculated from a date fourteen (14) days
after allocatur to date of payment.
________________________________
AEB DHLODHLO
JUDGE OF THE HIGH COURT
ACTING DEPUTY JUDGE PRESIDENT
28 AUGUST 2007
HEARD ON
:
17
MAY 2007
Judgment handed down on
:
30 AUGUST 2007
FOR THE PLAINTIFF
:
ADVOCATE SSW LOUW
FOR THE DEFENDANT
:
ADVOCATE CB WOOD
PLAINTIFF’S ATTORNEYS
:
DEFENDANT’S ATTORNEYS
:
NIEHAUS, MCMAHON AND
OOSTHUIZEN
BATE CHUBB & DICKSON INC
EAST LONDON