IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON CIRCUIT LOCAL DIVISION)
CASE NO. EL
In the matter between:
ROAD ACCIDENT FUND
1. On 19 August 2002 at the corner of Dunnon Road and
Ziphunzana bypass in East London a collision occurred.
2. As the merits of this claim (100% negligence) were conceded,
it is unnecessary to give details of the accident.
3. The plaintiff who was born on 05 May 1958 was a passenger
in one of the two motor vehicles which were involved in the
collision and sustained bodily injuries, including:
3.1 posterior dislocation of the left hip join,
3.2 a fracture of the posterior wall of the acetabulum,
3.3 a displacement of the fracture fragments,
3.4 loose bone fragments in an intra-articular position,
3.5 comminution accompanied by significant articular.
4. Certain aspects of quantum are in dispute.
5. The plaintiff’s claim against the defendant is as follows:
5.1 in respect of fair and reasonable
costs of hospitalisation R59 718.74
5.2 in respect of fair and reasonable
costs of medical expenditure R35 897.87
5.3 in respect of pre-estimated cost
as estimated future medical expenses
as set out in the said medico legal
report by Dr P M Olivier marked
“POC1” R83 080.00
5.4 in respect of past loss of earnings as
is particularised in the certificate of
value from Dr Robert J Koch who is
an actuary, a copy of which is marked
“POC3” R912 796.00
5.5 in respect of general damages
suffered as a result of pain, suffering,
discomfort and disability giving rise
to loss of amenities of life R300 000.00
5.6 It is alleged that the plaintiff has suffered damages in
the total sum of R1 515 167.61 in consequence of the
6. As a result of the injury it was necessary to perform an
exploration of the left hip joint – a procedure which was
performed on 21 August 2002.
7.1 The plaintiff experienced a severe degree of pain and
discomfort in her left hip.
7.2 She was unable to stand or walk and was taken to St
Dominic’s hospital on the same day.
7.3 It became worse despite conservative treatment. On the
basis of this it was decided to perform surgery on 19 March 2003.
7.4 The plaintiff mobilized by means of crutches and received
physiotherapy in the post-operative period.
8. The plaintiff’s present complaints include:
8.1 a mild degree of discomfort in the region of her left hip,
8.2 a feeling of subluxation,
8.3 pain in the neck over the posterior cervical region which is
worse when she performs certain activities such as flexion and
8.4 these movements are often accompanied by a painful clicking
9.1 There are signs present of paracervical muscle spasm which is
more pronounced in the left paracervical area.
9.2 The patient is tender in the mid-cervical area, as well as over
the left paracervical muscle group.
9.3 In his supplementary medico-legal report on the plaintiff
dated 03 January 2006, an Orthopaedic Surgeon, Dr Olivier
reports on, inter alia, injuries sustained, disfigurement,
permanent mature of the injuries, pain suffered and life
10. Two issues are to decided by the court, namely:
10.1 general damages
10.2 loss of income – past and future.
11.1 According to minutes of a pre-trial conference held on 19
January 2006, it was agreed, among others, that neither
party required that actuarial evidence be placed before court
and that Dr R J Koch be consulted by both the plaintiff and
the defendant. Dr Koch would be requested to provide
certificates of value on the basis of different factual
circumstances, as required by the parties from time to time.
It was further agreed that the calculations effected by him as
aforesaid shall be accepted as being correct in respect of
factual circumstances to which they relate and that they shall
be admissible as evidence thereof without the need for formal
11.2 In respect of future medical expenses the defendant’s
attorney indicated that the defendant would be issuing an
undertaking in terms of section 17(4)(a) of the Road Accident
Fund Act 56 of 1996.
12. Mr Brian Fritz is the Principal of Parkside Primary School
where the plaintiff was employed as an educator. His
evidence may be summarised as follows:
12.1 He has known the plaintiff as an educator at the school
for twenty years.
12.2 She was a grade four educator at the school.
12.3 As an educator, the plaintiff was excellent and had
interests of her learners at heart.
12.4 She did not return to her work after the accident and
she retired from her work as a result of poor health on
31 December 2003.
2.5 Her activities in class would be to offer all teaching
subjects to her learners from 08h00 to 14h00.
12.6 Mr Fritz said that extra – mural activities where she
would be seated would count about 15% and 85% of
her teaching time she would spend standing moving
from bench to bench writing on the board, and moving
from the classroom to play grounds. He said that it is
against school regulations to sit and teach. He would
not recommend the employment of an educator who
would not do extra – mural activities.
12.7 Retirement age ranges between 60 and 65 years of age.
It is an educator’s choice to retire at 60 years. No
penalty is imposed on an educator who chooses to retire
at 60 years.
12.8 The plaintiff could have remained in employment as an
educator up to 65 years if she so wished.
12.9 According to the plaintiff’s salary advice produced by Mr
Fritz, her gross annual package was R55 737,00.
13. Ms Jennifer Croney works for a company known as Markinor
(Pty) Ltd. She is a branch manager at the East London
branch. Her evidence is briefly as follows:
13.1 The plaintiff has been employed by the company on
temporary basis from 01 September 2004 and on a no-
work- no pay basis.
13.2 The plaintiff does telephonic interviewing when her
health permits her to do it. On some days she finds it
difficult to sit and work.
13.3 The plaintiff is paid hourly and she signs a contract for
every job that she has to do. She is not entitled to a
minimum number of hours per month. If the company
has not been assigned a job to do, employees, including
the plaintiff, are without work.
13.4 The East London branch has been in operation for about
22 years but telephone research is now 5 – 8 years old.
13.5 Whether or not the branch continues to operate
depends on contracts. Ms Croney added that market
research is always uncertain.
13.6 She produced a print out from her head office payment
department which reflects the plaintiff’s earnings
between 30 September 2004 and 31 January 2006
marked Exhibit C.
13.7 Amounts differ from month to month. Ms Croney said
that where figures were higher the plaintiff could have
worked double shifts in order to meet deadlines. She
said that this practice is against company policy. The
maximum is six hours per day.
14. The plaintiff’s evidence is briefly as follows:
14.1 She is divorced and is a single parent with two
children aged 24 and 11, respectively. The 24 –
year – old son is unemployed, receives no income
and is dependent on her.
14.2 After the accident she was at the accident scene
for one hour and hospitalised for eight days.
14.3 She was subsequently operated on her hip while
on a general anaesthetic.
14.4 She could not walk. She was on crutches and on
her back for about four months. Her family
members had to pick her up in order for her to
14.5 After a hip replacement she could not move
normally. The bone crumbled. As a result, she
felt severe pain.
14.6 She is sometimes off balance when he walks.
Sometimes she has to lean against a wall.
14.7 After a hip replacement pain became moderate.
She would take pain killers and pain gradually
lessened. She still feels pain and has learn to live
with it. Cold aggravates the pain. The pain is
mild to moderate. She does not experience it
everyday. It occurs twice or trice per day.
14.8 Because she has no domestic helper, she does her
washing. She cannot do washing continuously.
She does it and stops when she cannot continue.
14.9 Prior to sustaining the injuries she was an
educator for 26 years, 17 years at Parkside
school teaching grade 4.
14.10 She was very happy at the school and enjoyed her
14.11 She would have continued teaching until she was
65 years old because she would need money as
she has no financial resources. She depends on
14.12 After the accident she could not return to her
work because she is now classified as person with
14.13 She stopped working on 31 December 2003 after
14.14 She received an amount of R8 821,40 being
arrear months’ salary after seven months. Her
monthly pension is R1 267,22.
14.15 She holds a teacher’s certificate and a National
Diploma in education. She has no other work
experience or qualification.
14.16 She started working at Markinor (Pty) Ltd on 01
September 2004 as a telephone interviewer. She
is a temporary contract worker. She earns
R21,00 per hour and is not paid if she has not
worked. Her income is not taxable. She
confirmed that amounts reflected on the
document referred to earlier as Exhibit C are what
she earned during the period reflected thereon.
Unemployment insurance fund is deducted from
14.17 She cannot afford to stop working even though
her work at Markinor (Pty) Ltd sometimes causes
14.18 She is unable to stand for an hour or half an hour.
14.19 She said that Dr Olivier advised her that it would
be a risk to continue working after the injuries.
She further said that Dr Olivier warned her to
expect to suffer from arthritis in future. She said
that if arthritis does set in she might have to stop
working at Markinor.
14.20 She still experiences pain from the hip. She said
that even as she was testifying she was feeling
pain. She would now and again sit down and
stand in the witness box.
14.21 The injury changed her life for the worse. She
used to participate in ballroom dancing about
twice per month and enjoyed it.
14.22 She used to enjoy extra – mural activities with
14.23 Her pride is now gone. She has to depend on
assistance by some people.
15.1 Mr Dugmore for the plaintiff submitted that the
plaintiff has gone through agony and she will have
to go through another hip operation when she will
be about 60 years of age. He referred to the
reports of Dr Olivier (exhibit B). Mr Dugmore
argued that the plaintiff was a healthy person
before the accident and that she will feel pain for
the rest of her life. She has been disfigured.
15.2 Concerning the plaintiff’s employability, Mr
Dugmore referred to the evidence of Mr Fritz from
which it is clear that she could not continue to
work as an educator and was subsequently retired
on grounds of poor health.
15.3 The injuries are of a permanent nature.
15.4 The plaintiff has no other skill and there are no
indications that she can do another job with better
15.5 As regards contingencies, Mr Dugmore referred to
the report of Dr Koch – (exhibit D) dated 16
February 2006, especially page five thereof.
15.6 In compiling his report, Dr Koch (actuary)
considered, among others, the following:
15.6.1 report by Dr Olivier (the orthopaedic
surgeon) dated 22/04/2003,
15.6.2 the claimant’s affidavit dated
15.6.3 employer’s certificate (undated),
15.6.4 the plaintiff’s salary payslip dated
15.6.5 the National Treasury letter dated
15.7 Dr Koch’s calculation yielded values as at 30
January 2006 as reflected on page 64 of the
record of this case.
16. Mr Dugmore argued that the plaintiff was an excellent
educator whose employment was secure. She would not
have lost her government funded job, as there were no risks
to her earning capacity. Mr Dugmore submitted that the
actuary had adopted a conservative approach.
17. The plaintiff’s present employment and earnings are
uncertain. Mr Dugmore submitted that the calculation of Dr
Koch is reasonable and sound and should be adopted. In
other words he urged the Court to award R737 470,00.
18. As regards general damages, Mr Dugmore referred to several
relevant case law and suggested an amount of R300 000,00.
19. Concerning general damages Mr Louw for the defendant,
referred to De Jongh v Du Pisane (2004) 2 ALL SA 565
(SCA). He argued that the ward in that case had sustained
injuries which were worse than those sustained by the plaintiff
in the present case. In that case the Supreme Court of
Appeal decided that R250 00,00 for general damages was
more appropriate than the trial court’s award of R400 000,00.
20. 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. 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. After injuries sustained he was unable to 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 when he walked short distances. The orthopaedic
surgeon said that the fracture itself had healed. His
disfigurement was permanent. He suffered 20% loss of
power in his left leg. His mobility was permanently
restricted. He would have to endure the discomfort of
walking with shortened and less powerful leg for the rest of
21. To a certain extent the facts in the Marunga case are similar
those in the present case. In the present case pain
experienced by the plaintiff is permanent and her movements
are more restricted than those of the respondent in the
22. In an unreported judgment of Bisho High Court delivered on
18 August 2003 in the case of 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.
23. After the accident the plaintiff was hospitalised. At the time
of the collision the plaintiff was 40 years of age. The plaintiff
experienced pain which worsened when he moved. He found
it difficult to 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 fracture of the right
24. 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.
25. No permanent disabilities were expected to result from
lacerations and abrasions.
26. 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 Accidents Fund
a 1977 decision of the Natal Provincial Division –
(Corbett and Honey Vol 4E 3 – 36 where Broome DJP
“I consider that when having regard to previous awards one must
recognise that there is a tendency for awards now to be higher than they were in
the past. I believe this to be a natural 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.”
27. 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.
28. In a more recent unreported case of this 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
standing on an island in Voortrekker Street in East
London. He was knocked down by a mini-bus and
sustained severe bodily injuries.
29. Injuries sustained by the plaintiff were:
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
30. The plaintiff was removed by ambulance to hospital
where the wound was irrigated and debrided 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
Paris cast and mobilised, partially weight bearing on
31. 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.
32. 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 cannot spend much
time on his feet. He can no longer squat or run. Prior
to the accident he enjoyed rock fishing on a regular
basis. He experiences 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 will require
conservative treatment for the remainder of his lifetime
for pain and discomfort in the region of the right foot
33. 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 8cms on the right lower
34. 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. He felt that an award of R185
000 was justified in respect of shock, pain and suffering,
disfigurement, disabilities and loss of amenities of life.
35. 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.
36. Mr Louw referred the court to pages 65 and 73 of
exhibit B (Index – Bundle of Documents) and submitted
that an amount of R539,12 in respect of medical
expenses had been duplicated. Mr Dugmore argued
that in terms of paragraph 11 of the pre-trial minute the
defendant admitted that the plaintiff’s hospital expenses
amounted to R59 718,74 and that her medical expenses
amounted to R35 015,15. Mr Dugmore argued further
that no evidence had been adduced to show that the
amounts had been miscalculated. I share the views
expressed by Mr Dugmore and I will not interfere with
37. In terms of paragraph 14 of the pre-trial minute it was
agreed that the Life Expectancy Tables in the
publication of Quantum Year Book by Dr F J Koch 2006
may be used in the calculation of the plaintiff’s life
37. Having considered the evidence of the plaintiff, Mr Fritz
and Ms Croney, I am of the view that Dr Koch properly
considered all relevant facts in effecting calculations
dated 16 February 2006. There is no reason for the
court to interfere with the calculations. The net value
of R737 470.00 should be accepted.
39. Having considered the facts of the present case,
principles applicable to the assessment of damages, the
awards in past cases (especially comparable cases), 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 R200 000,00 is justified in respect
of pain and suffering, discomfort and disability giving
rise to loss of amenities of life.
40. On 30/01/2006 by agreement, this case was postponed
sine die. It was ordered that costs would be reserved.
On 05/05/2006 both parties agreed that costs of the 30
January 2006 be costs in the cause.
41. I make the following order:
(a) The defendant is to pay the plaintiff the sum of
R1 033 086,61 as and for damages.
(b) Interest at the legal rate as from a date fourteen
days after the date of judgment to the date of
(c) The defendant shall provide the plaintiff with an
undertaking in terms of section 17(4)(a) of the
Road Accident Fund Act 56 of 1996 to pay
medical, hospital and related treatment costs the
plaintiff will have to undergo in the future
pursuant to the injuries sustained by her in the
motor vehicle collision which gave rise to her
(d) The defendant is to pay the plaintiff’s costs of suit
together with interest thereon at the legal rate as
from a date from fourteen days after the date of
judgment to the date of payment.
(e) The plaintiff’s costs shall include qualifying
expenses (if any) of the experts whose reports are
included in exhibit B and the plaintiff’s costs of
(f) The plaintiff, Mr Fritz and Ms Croney are declared
to have been necessary witnesses.
(g) Costs of 30 January 2006 are costs in the cause.
A E B DHLODHLO
JUDGE OF THE HIGH COURT
30 JUNE 2006
HEARD ON: 04 AND 05 MAY 2006
FOR THE PLAINTIFF: ADVOCATE A G DUGMORE
FOR THE DEFENDANT: ADVOCATE S S W LOUW
PLAINTIFF’S ATTORNEYS: I C CLARK INC.
DEFENDANT’S ATTORNEYS: NOMPOZOLO & GABELANA INC.