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FORM A

FILING SHEET FOR EASTERN CAPE HIGH COURT, GRAHAMSTOWN JUDGMENT

ECJ:

PARTIES: NOMA-TSHAYINA MPONDO

AND

THE ROAD ACCIDENT FUND

• Registrar: 2207/2008

• Magistrate:

• High Court: EASTERN CAPE HIGH COURT, GRAHAMSTOWN

DATE HEARD: 27/05/10

DATE DELIVERED: 08/06/10

JUDGE(S): GROGAN AJ

LEGAL REPRESENTATIVES –

Appearances:

for the Plaintiff(s): ADV: Louw

for the Defendant(s): ADV: Wolmarans

Instructing attorneys:

• for the Plaintiff(s): WHITESIDES ATTORNEYS

for the Defendant(s): NN DULLABH & CO.

CASE INFORMATION -

• Nature of proceedings : DAMAGES

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

CASE NO.: 2207/2008

In the matter between:

NOMA-TSHAYINA MPONDO Plaintiff

and

THE ROAD ACCIDENT FUND Defendant

JUDGMENT

GROGAN A J:

[1] The plaintiff, a 43-year-old married woman with three children, sustained injuries in a motor accident which occurred on the national road between Stutterheim and King William’s Town on 2 May 2005. She was at the time a primary school teacher at Dimbaza primary school. It is now common cause that the plaintiff has remained in employment since the accident, but that she will go on early retirement in 2011.

[2] The defendant has conceded liability on the merits and on a number of aspects of her claim for damages. The defendant’s admissions are incorporated by agreement in the order made in this judgment. As also agreed between the parties, the only issue that remains for determination is the quantum of general damages for shock, pain and suffering, disfigurement and loss of amenities of life claimed by the plaintiff.

[3] In terms of the defendant’s admissions, the medico-legal reports of Drs N Holmberg and A Kepler are not in dispute. At the hearing of this matter, expert evidence was led by Dr P A Olivier, an orthopaedic surgeon. The plaintiff also testified.

[4] Dr Holmberg is an ophthalmologist. According to his report dated 18 August 2009, the plaintiff was then suffering from a “very watery right eye” caused by a “small post traumatic margin notch in the medial aspect of her eyelid, as well as a condition known as ptosis, which is a lowering of the normal position of the eyelid relating to injury to the levator muscle or nerves influencing the action of the muscle that controls the eyelid”. Those nerves also activate the muscles controlling facial expression. Injury to them can therefore also result in paralysis of the facial muscles, causing the affected part of the face to “droop”. In the plaintiff’s case, this resulted in what Dr Holmberg described as a “partial facial palsy”.

[5] Dr Kepler is a plastic surgeon. His report dated 7 September 2006 records that the plaintiff had two slightly hypertrophic scars on her right thigh, the anterior part of her left lower leg and four facial scars, two of which can be corrected. Dr Keppler’s prognosis is that the scars on the plaintiff’s legs cannot be effaced, and that two of those on her face can be “bettered by approximately 50%”. As far as pain and suffering is concerned, he refers to the report of the orthopaedic surgeon.

[6] The orthopaedic surgeon, Dr P Olivier, testified in these proceedings. According to his initial report, dated 23 August 2006, which concentrated on the injuries to the plaintiff’s hip and ankle, apart from the facial injuries already adverted to, the plaintiff had a fracture to the femoral neck of the right hip and a fracture of the right ankle. The hip injury has resulted in a shortening of the right leg, which causes her to limp and there is some transferred damage to the right knee. At the time of the examination, the plaintiff was experiencing pain as a result of the hip injury, particularly in the groin area, causing her to take analgesics. Dr Olivier testified that the initial operation to deal with the injuries to the plaintiff’s hip had to be followed by further invasive surgery and the insertion of a new prosthesis to deal with infection. He predicted that two further hip transplants will be necessary. Dr Olivier is also of the opinion that the plaintiff’s ankle injury has caused significant cartilage damage that has resulted in degenerative changes which will require further surgery within about 20 years. With regard to pain and suffering, Dr Olivier opined:

“The injuries would’ve led to a severe degree of pain and discomfort for a period of sixteen (16) weeks. The patient furthermore underwent major surgical procedures when the initial fracture was fixated with a dynamic hip screw. Furthermore a total hip replacement was performed that would’ve led to a severe degree of pain and discomfort for sixteen (16) weeks. After the hip replacement was removed and the patient was left with a Girdlestone type of situation the patient would’ve experienced a moderate degree of pain and discomfort for approximately sixteen (16) weeks. The revision procedure would’ve caused a severe degree of pain and discomfort for a period of sixteen (16) weeks. The patient would furthermore experience a severe degree of pain and discomfort for a period of sixteen (16) weeks after each of the anticipated revision total hip replacement procedures. Furthermore the patient will experience a slight to moderate degree of pain and discomfort in her right ankle, which will gradually increase. This will eventually lead to an ankle arthrodesis after a period of twenty (20) years after the motor vehicle accident. A severe degree of pain and discomfort for a period of sixteen (16) weeks as anticipated after the anticipated ankle arthrodesis. As mentioned before the patient will experience a slight degree of occasional discomfort due to the degenerative changes in the midtarsal join on a permanent basis.”

[7] As to loss of amenities of life, Dr Olivier said:

“The patient will not be able to participate in weightbearing activities such as hiking, jogging, etc. Furthermore she will not be able to stand for long periods of time. The patient will however be a community walker¹ and she will be able to perform her normal everyday activities at home.”

[8] Dr B Mackenzie, an orthopaedic surgeon, who examined the plaintiff at the defendant’s request on 5 June 2009, found that the plaintiff would have suffered very severe pain as a result of her initial injuries, with further pain suffered as a result of the operation to her ankle and each of the two hip operations. He predicted further episodes of pain at ten year intervals when she undergoes further hip operations and when the internal fixatives are removed from her ankle. His general conclusion was that the plaintiff will never again be pain free. Her functional and community living will in Dr McKenzie’s view be 22% impaired.

[9] In a supplementary report dated 5 August 2009, Dr Olivier concurred with Dr McKenzie except in respect of his diagnosis of the condition of the plaintiff’s right knee, on which little turns, and whether the plaintiff will require athrodesis to her right ankle, a view, expressed again in Dr Olivier’s final report, dated 4 March 2010. Dr Olivier again essentially confirmed his prognosis of the effects of her injuries on the plaintiff’s lifestyle.

[10] In short, the medical experts are in agreement that the plaintiff has suffered extremely serious injuries as a result of the accident. She has already undergone surgery to her ankle and undergone two hip operations, which will have to be repeated twice more, with uncertain results, and she will experience the pain and anxiety that naturally accompanies major operations. The plaintiff walks with a limp that will last for the rest of her life, and has suffered disfiguring facial injuries that have resulted in a drooping of the right side of her face and which affect the shape and functioning of her mouth. Her right eye is deformed, and the tear ducts are damaged so that tears constantly flow down her cheek. Her right cheek has developed an involuntary twitch.

[11] Medical experts are able to diagnose the outward signs of physical injuries. While no expert psychiatric evidence was led concerning the effects of these injuries on the plaintiff’s mental condition and emotional state, these became apparent from her own evidence, and that of her husband, Mr C Lafleni, as well as that of a colleague, Ms T Bashman. Mr Lafleni testified that after the accident the plaintiff became withdrawn and irritable, not only with him, but also with her daughters. She no longer involves herself in community affairs, and spends much of the time weeping. This is the result not only of the injury to her eye, but also of the pain and discomfort she suffers in reaction to personal remarks made by people about her features. Ms Bashman, who has known the plaintiff as a friend and colleague for many years, said that before the accident the plaintiff was an ebullient and active woman, and an enthusiastic teacher. After the accident, the plaintiff has withdrawn from normal teaching activities and now performs administrative chores. In short, the plaintiff has undergone a drastic personality change.

[12] The plaintiff gave a pitiful impression in the witness box. The effects of her facial injuries were clearly visible. She repeatedly wiped tears from her right cheek, which was afflicted with a constant tick. She confirmed that she has been in much pain and discomfort since the accident. While the plaintiff was unable to articulate her emotions with the clarity and force that some might have done, she made it abundantly clear that she is acutely distressed by the results of her physical injuries and, in particular, by the facial disfigurement. She said she is often embarrassed by question from friends and strangers about her looks. When she drinks, the liquid often dribbles from the right side of her mouth. She has lost the desire to interact socially, and is afraid that her husband might soon be driven to “look for somebody else”. The pain and discomfort she frequently experiences has made her irritable. She no longer performs the normal support roles of a mother and wife. Most poignantly, the plaintiff said that she was once “beautiful”, but no longer considers herself in that light.

[13] It is clear from the evidence, both expert and direct, that the plaintiff suffered extremely severe injuries in the accident that will have permanent physical, emotional and psychological consequences. As Mr Louw, who appeared for the plaintiff, forcefully contended, these injuries fall on the serious side of those suffered by claimants in proceedings such as this. Pain, suffering and loss of the amenities of life cannot be compensated for or corrected entirely by monetary compensation. But that is the only remedy the courts can grant. Unlike the costs of past and future medical expenses and loss of earnings, all of which have been conceded in this case, “general damages” cannot be quantified mathematically. Mr Louw contends that the plaintiff is entitled to R1m in general damages. Mr Wolmarans, who appeared for the defendant, contends that a “realistic” award would be in the order of R300 000.00. He made no more than faint suggestions that the evidence relating to the plaintiff’s pain and discomfort may have been exaggerated, and that her emotional distress might be cured by counselling.

[14] As is usual in matters such as the present, the Court was referred to a number of earlier awards in cases involving similar injuries. Mr Louw correctly conceded that general damages should not be calculated for each of the separate injuries suffered by the plaintiff and their respective sequelia. When it comes to general damages, a court must in the exercise of its wide discretion (confirmed in Road Accident Fund v Marunga 2003 (5) SA 164 (SCA)) take a holistic approach. Apart from the gravity of the injuries, the financial circumstances and station of the plaintiff are factors to be considered. Non-patrimonial damages are designed to ameliorate, as far as they can, the indignity of emotional and physical suffering, not to enrich the plaintiff. Regard must be had to the manner in which the award of damages can be utilised to ameliorate the claimant’s loss of the amenities of life (Marine & Trade Insurance Co Ltd v Katz NO 1979 (4) SA 961 at 983). When it comes to general damages, courts have in recent times taken a more generous approach (see Marunga supra; De Jongh v Du Pisanie NO 2005 (5) SA 457 (SCA)). This trend must also be taken into account, as well as the rapid depreciation of the value of money. But, difficult as the exercise of determining general damages may be, the Court must strive to set reasonable and consistent limits.

[15] A conspectus of the cases indicates that awards of general damages in excess of R1m are reserved for exceptional cases, insofar as personal injuries can be categorised as such. Road Accident Fund v Delport NO 2006 (3) SA 172 (SCA) provides an illustration of the circumstances in which awards of this magnitude may be granted. The injured person in that case was a 36-year old mother who ran a prosperous business with her husband. She was rendered quadriplegic by the accident, was bedridden and required constant care, and she was barely able to communicate. The Court summed up its assessment of the evidence relating to general damages in this passage (at para. [15]):

“Put simply, the patient is a person with an alert and active mind trapped in a non-responsive body. She is completely unable to engage in the ordinary functions of life. The undisputed evidence is that before the collision she was a happy, dynamic and active person who enjoyed amenities such as cycling, competitive dancing and travelling. She is now clearly unable to participate in any such activities or indeed to lead anything resembling a normal life. A video recording was led in evidence depicting her present condition. Any viewer of that videotape cannot help but be deeply moved by the graphic way in which her plight is depicted thereon. In the words of Dr Holmes:

“'The psychological and emotional trauma experienced by her, on an ongoing basis, is profound - almost defying contemplation and appreciation.’”

In Delport, the claimant was awarded R1 250 000.00, which amounts to about R1, 6m in today’s terms. Serious as the plaintiff’s injuries and their consequences may be, they clearly cannot be remotely compared with that of the claimant in Delport.

[16] Closer to the mark is the unreported judgment of this division in Donne-Lee Strydom v Road Accident Fund (ECD 202/04 per Froneman J, dated 17 May 2004), which was among a number of judgments to which I was referred. In that case, the plaintiff, described as a young and attractive woman, was awarded general damages of R200 000.00 for injuries broadly comparable to those suffered by the plaintiff. I am informed that the current value of that amount is R277 000.00. Other awards to which I was referred by both representatives involving hip replacements and facial disfigurement and combination of orthopaedic injuries and scarring are roughly in the same order. In my view, the award in Strydom is consistent with the modern trend of awards for general damages. Save that the injuries in this case are in my judgement slightly more serious, the facts are also comparable to those in the Strydom matter. I accordingly intend to use that award as a benchmark.

[17] Taking into account the nature of the plaintiff’s injuries and the physical and emotional distress occasioned thereby, as well as all factors relevant to their effects thereof on the plaintiff’s lifestyle and self-perception, I am of the view that in this case an award of general damages in the amount of R350 000.00 would be appropriate. This is the award I make in that regard.

[18] Order:

1. The defendant shall by agreement pay the plaintiff the sum of R320 031.79 in respect of past hospital and past medical expenses.

2. The defendant shall by agreement pay the plaintiff the sum of R1 731 902. 00 in respect of future loss of earnings.

3. The defendant shall pay the plaintiff the sum of R350 000.00 in respect of general damages.

4. The defendant shall in terms of section 17(4) of the Road Accident Fund Act provide the plaintiff with a written undertaking to compensate the plaintiff in respect of the costs of future accommodation in a hospital or nursing home, and in respect of treatment and rendering of services and supplying of goods to her relating to the injuries sustained by the plaintiff in the collision which occurred on 2 May 2005, after the costs in respect thereof have been incurred and upon proof thereof.

5. The defendant shall pay the plaintiff’s costs of the action on the scale as between party and party, which costs shall include:

5.1 the qualifying expenses of all the plaintiff’s experts in respect of whom expert reports have been filed; ²

5.2 one inspection in loco with counsel;

5.3 plaintiff’s photographs.

6. The plaintiff is declared a necessary witness.

7. The defendant is directed to pay interest on the sums set out in paragraphs 1, 2 and 3 above on the legal rate calculated from a date 14 days after judgment to date of payment.

8. The defendant shall pay interest on the plaintiff’s costs at the legal rate calculated from a date 14 days after allocatur to date of payment.

______________________

J G GROGAN

ACTING JUDGE OF THE HIGH COURT

Date heard:

Date issued:

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