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					IN THE HIGH COURT OF SOUTH AFRICA

(EAST LONDON CIRCUIT LOCAL DIVISION)


                                               CASE      NO.    EL

555/04

                                                      ECD:

1355/04


In the matter between:



COLLEEN SECONDS
PLAINTIFF

and

ROAD ACCIDENT FUND

DEFENDANT




                         JUDGMENT


DHLODHLO ADJP:

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
                                                                   2


      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
                                                                   3


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

            said collision.




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
                                                                 4


      worse when she performs certain activities such as flexion and

      rotational movements.



8.4   these movements are often accompanied by a painful clicking

      sensation.



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

      expectancy.



10.   Two issues are to decided by the court, namely:



      10.1 general damages



      10.2 loss of income – past and future.
                                                                          5


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

      proof.



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.
                                                             6




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
                                                                  7


           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
                                                                        8


             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
                                                       9


       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

       move.



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
                                                            10


        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

        work.



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

        her salary.




14.12   After the accident she could not return to her

        work because she is now classified as person with
                                                           11


        disability.



14.13   She stopped working on 31 December 2003 after

        being boarded.



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

        her salary.
                                                         12


14.17   She cannot afford to stop working even though

        her work at Markinor (Pty) Ltd sometimes causes

        pain.



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

        children.
                                                               13




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

        remuneration.
                                                                  14




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

                   01/07/2003,



       15.6.3      employer’s certificate (undated),



       15.6.4      the    plaintiff’s     salary    payslip     dated

                   09/12/2003 and,



       15.6.5      the National Treasury letter dated

                   17/06/2004.



15.7   Dr Koch’s calculation yielded values as at 30

       January 2006 as reflected on page 64 of the
                                                                   15


                   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.
                                                                   16


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
                                                                     17


      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

      his life.



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

      Marunga case.



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
                                                                            18


       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

       acetabulum.



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

              said:

       “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
                                                                                19

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
                                                              20


      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.


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
                                                               21


      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

      crutches.



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
                                                              22


      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

      and ankle.



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

      ankle.



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.
                                                              23


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

      the figures.



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

      expectancy.
                                                           24




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.
                                                                       25




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

            payment.




      (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

            claim herein.



      (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.
                                                                      26




            (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

                  photographs.



            (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.
                               EAST LONDON

DEFENDANT’S ATTORNEYS: NOMPOZOLO & GABELANA INC.
              27


EAST LONDON

				
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