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FORM A

FILING SHEET FOR CESKEI DIVISION JUDGMENT

PARTIES:

MZANYWA VICTOR PETER PLAINTIFF

And

ROAD ACCIDENT FUND DEFENDANT

• Case Number: 356/ 2002

• High Court: Bisho

DATE HEARD:

DATE DELIVERED: 18 August 2003

JUDGE(S): VAN ZYL J

LEGAL REPRESENTATIVES –

Appearances:

• For the Plaintiff(s): ADV. G DUGMORE

• for the Defendant(s): ADV. N DUKADA

Instructing attorneys:

• Plaintiff(s): I C CLARK INC.

• Defendant(s): DAMBUZA MNQANDI INC

CASE INFORMATION -

1. Nature of proceedings : Civil Trial

2. Topic: Damages

3. Key Words:

IN THE BISHO HIGH COURT

CASE NO. 356/ 2002

In the matter between:-

MZANYWA VICTOR PETER PLAINTIFF

And

ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

VAN ZYL J: The plaintiff in this matter claims damages from the defendant in terms of the Road Accident Fund Act, No.56 of 1996 for injuries sustained arising out of a motor collision which occurred on 7 May 2000. Liability was conceded by the defendant and what remained in issue before me is the quantum of damages to be awarded. These are general damages in the amount of R250 000,00 for pain and suffering, discomfort, permanent disfigurement, disability and loss of the enjoyment of amenities of life (paragraph 5.9 of the particulars of claim).

According to the particulars of claim the injuries sustained by the plaintiff are a consequence of a collision that occurred on the Fort Beaufort/Alice road in the Eastern Cape, between a vehicle driven by the plaintiff and a truck. The nature and extent of the plaintiff’s injuries, the treatment received by him, the prognosis and sequelae thereof are not disputed. This appears from the medico-legal reports (Exhibits A, B and C) of Dr Olivier, an orthopaedic surgeon, and Dr. Venter, a plastic and reconstructive surgeon. The major injuries sustained by plaintiff were a fracture of the pelvis and acetabulum. He also suffered two scalp lacerations and what are described as multiple deep abrasions to the right shoulder and upper arm and over the lumbar spine.

After the accident the plaintiff was admitted to the Victoria Hospital in Alice. At the request of his family he was transferred the next day to St Dominics Hospital in East London. The scalp lacerations were sutured and the abrasions dressed. It would appear that the two fractures were treated conservatively. The plaintiff was discharged from hospital on 16 May 2000.

With regard to his personal circumstances, the plaintiff was 40 years old at the time of the collision. He is employed as an electrical technician at the Fort Hare University. He is married with four (4) children. Following the collision it was assessed that he would not have been able to do his work for a period of twelve (12) weeks.

According to Dr Venter the plaintiff complained of pain when he examined him on 3 October 2000. He describes it as follows:

“ Die pyn is teenwoordig in die regter lies area. Daar is ook pyn teenwoordig oor die laterale aspek van die regter heup. Dit is erger indien hy gewig neem, en verbeter met rus. Hy sê dat hy dit byvoorbeeld moeilik vind om verder as byvoorbeeld 200 meter te stap, sonder om pyn te ervaar. Die kliënt gee ook die geskiedenis dat hy van ‘n kruk afhanklik is om oor die weg te kom. Hy sê dat dit nog nie vir hom moontlik is om te stap sonder ‘n hulpmiddel nie. Die pyn versprei soms af van die regter bobeen na die knie. Hy het in die verlede Stopayne tablette geneem, maar gebruik dit nie tans nie, aangesien sy tablette op is.”

As a result of fracture of the right acetabulum Dr Venter forsees that the plaintiff would develop osteoarthritis. His reasons for this prognosis are the following:

“ Eerstens is daar ‘n verplaasde intra-artikulêre fraktuur teenwoordig, wat op sigself ‘n swak prognose het, met betrekking tot toekomstige osteoartrose. Tweedens moet daar gekyk word na die meganisme van besering. Die meganisme van besering was waarskynlik ‘n kompressiewe krag wat plaasgevind het tussen die femorale kop en die asetabulum. Die krag van die impak was van so ‘n aard, dat dit ‘n verplaasde fraktuur van die asetabulum veroorsaak het. Dit is dus duidelik dat daar ‘n aansienlike graad van kompressie moes plaasgevind het, tussen die artikulêre oppervlaktes van die femorale kop en die asetabulum. Daar kon ook ‘n aansienlike graad van ‘n skeurkrag plaasgevind het van die artikulêre oppervlaktes.

Die pasiënt sal dus ongetwyfeld osteoartrose ontwikkel, indien daar na die besering gekyk word, weens die redes dat daar ‘n verplaasde intra-artikulêre fraktuur teenwoordig is, en dat daar heelwaarskynlik ook ‘n aansienlike graad van artikulêre kraakbeenskade teenwoordig is.

Indien daar gekyk word na die meganisme van besering, is dit duidelik dat die femorale kop besonder hard gestamp het teen die asetabulum. Daar bestaan ‘n wesenlike kans dat die pasiënt ook osteonekrose van die femorale kop kan ontwikkel. Osteonekrose kan solank as agtien (18) maand na die voorval neem om te ontwikkel. In die pasiënt se spesifieke geval, sal die voorkoms van osteonekrose ‘n totale heupvervanging slegs vervroeg.”

On the basis of the aforegoing it is foreseen that the plaintiff will require conservative treatment in the initial stages, and that he will within five
(5) years of the date of the collision have to undergo a complete hip replacement. As a total hip replacement is a temporary procedure in the plaintiff’s age group it is foreseen that a revision procedure would be necessary in fifteen (15) years time. It is expected that after the revision procedure his hip will be good for the reminder of his natural life.

Turning to the soft tissue injuries and lacerations sustained by the plaintiff, Dr. Venter is of the opinion that there is no disability from the soft tissue injuries whilst the lacerations to the scalp have fully healed with hardly any visible scars. The abrasions and cuts to the right arm are however extensive and left the plaintiff with marked scarring. He also has a minor scar on the left leg. The scars on the right arm can be improved by surgical scar revision by about 50%. No permanent disabilities are expected from these injuries.

In assessing an award for general damages it has been accepted in a long line of cases that the Court, in assessing all the facts and circumstances of a particular case, has a wide discretion to award what it considers to be fair and adequate compensation to the injured party. Although there is no hard and fast rule requiring a court to consider awards in previously decided cases, it is accepted that assistance may be derived from the general pattern of previous awards in cases where the injuries and their sequelae may have been either more serious or less than those under consideration in any particular case (See Protea Assurance Co. Ltd v Lamb 1971 (1) SA 530 (A) at 535A –536B (referred to with approval in Road Accident Fund
v Marunga [2003] 2 All SA 148 (SCA).

During argument Mr Dugmore for the plaintiff urged me to adopt, what he referred to as a “more modern approach” to the determination of general damages. He placed reliance in this regard on a reference to such an approach in a recent judgment of the Supreme Court of Appeal in Road Accident Fund v Marunga (supra) wherein Navsa JA quoted with approval the following passage in Wright v Multilateral Vehicle Motor Accidents Fund, a 1997 decision of the Natal Provincial Division ―Corbett and Honey Volume 4 E3 – 31:

“ 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 that those in most other countries.” (at page E3–36 to 37)

In applying this approach to the determination of general damages on the facts and circumstances of the case, Navsa JA considered the Wright case (supra) to be the closest on the facts and awarded general damages in
the amount of R175 000,00 ( the amount awarded in the Wright case was
R65 000,00 (the value in 2001 at the time it of the trial in RAF v Marunga (supra) was R81 000,00)).

With this in mind I shall then turn to assess the quantum of plaintiff’s general damages in the present matter. Counsel for the respective parties referred me to a number of, what they argued, were comparable cases.
Mr Dugmore relied on two relatively recent cases. The first is the matter of Hendricks v Road Accident Fund ―Corbett and Honey Volume 5 at F3–1
–The plaintiff, a 50 year old driver sustained a fracture and dislocation of the right hip and a fracture of the symphysis pubis. “Three failed total hip replacements already performed during first 4 years after accident, and fourth required (using long stem prosthesis and bonegrafting) but chances of success no higher than 50%, and even if it succeeds, a further revision will probably be required within 10 years, and if it fails again, a Girdlestone Excision Arthroplasty would have to be done which would shorten the leg by a further 10 to 12 centimeters in addition to initial shortening of 2 to 5 centimeters. Previous failures leaving plaintiff reluctant to undergo further surgery, preferring to live with constant pain in the hip and lower back regions, restricted hip movements, severe antalgic limp requiring permanent use of two crutches. Plaintiff unable to work again, but illness unrelated to accident would have provoked symptoms which would have prevented him from continuing with his work anyway. Also multiple fractured ribs which caused flail chest initially, fracture of four metatarsals of right foot, injury to right knee-joint, and lacerations and contusions.” (at page F3–1)

The plaintiff was awarded R145 000,00 as a general damages. Mr Dugmore conceded that in that matter there were clearly complications and sequelae suffered by the plaintiff as a result of the injuries that are not present in the present matter.

The second case Mr Dugmore referred to is that of Hartzenburg v SA Eagle Insurance Co. Ltd ―Corbett & Honey Volume 4 F3–7 ―The plaintiff, who was 8 years old sustained a “Displaced fracture of right acetabulum and fracture through both sacro-iliac joints. Traction applied, followed by open reduction and internal fixation of acetabular fracture with Kirschner wires, followed again by traction for 3 weeks before being mobilised on crutches. Second operation for removal of Kirschner wires. Hospitalised for 6 weeks and remained on crutches thereafter for 10 months after which she remained very crippled with bad limp for some time. Very severe and painful injury. Long disfiguring scar over right hip area. Initial shortening of right leg by two centimetres and restricted hip mobility. Early onset of osteo-arthritis requiring regular annual medical monitoring until osteotomy of the hip is performed at age 25 years, to be followed by surgical removal of internal fixation. Total hip replacements to follow at ages 40 years, 52 years, 62 years and 70 years respectively and possibly even later again. Shortened expectancy of working life.” (at page F3–7)

An award of R100 000,00 was made for general damages. Although the injuries sustained by the plaintiff in this matter are comparable to that of the plaintiff in the present case they are quite clearly more serious and required more drastic and prolonged treatment due to the age of the plaintiff. The result is that the sequelae of the injuries are also in a different category. The age difference between the respective plaintiffs obviously also has a bearing on the extent of the loss of amenities of life.

Mr Dukada, for the defendant, referred me to the awards made by the courts in Reddy v Santam Ltd ―Corbett & Honey Volume 4 F3-24 and O’ Toole v President Insurance Co. Ltd and Ano. ―Corbett and Honey Volume 4 F2-6. In the first mentioned case the plaintiff, a 32 year old married woman, sustained a posterior dislocation of the left hip with a fracture of the posterior lip of the acetabulum and a laceration to her forehead above the left eyebrow. “Dislocation reduced under general anaesthetic and left lower limb treated in traction. Thereafter fracture of acetabulum discovered radiologically, resulting in operation, followed again by traction. Hospitalised for slightly in excess of one month. Sequelae comprising: 1. osteoarthritis likely to develop with consequent probability of one and possibly two hip replacements; 2. continuous pain in lower back and shoulders, though not severe nor debilitating; 3. operation scar over left buttock constituting a substantial disfigurement; 4. significant diminution in amenities of life inasmuch as plaintiff became tired sooner, her walking was restricted, and disfigurement precluded swimming, although aerobics could still be enjoyed in the gymnasium.” (at page F3–24)

The plaintiff was awarded R53 000,00 as compensation.

In the O’ Toole case the plaintiff, a 45 year old motor-car salesman, was awarded R26 000,00 in 1990. He sustained a fracture of the hip requiring an immediate hip replacement, to be followed by second hip replacement some 10 to 15 years later. He was unable to pursue his earlier occupation as a construction supervisor and had to take up less remunerative employment. He was approximately 3 months off work due to such hip replacement.

On a reading of these two judgments, I agree with Mr Dukada’s submission that the injuries and the circumstances in these two cases are in the broadest terms the closest to that of the present case. However, the awards made therein must in my view be reconsidered in the light of the statement in the Wright case (supra) as applied by the Supreme Court of Appeal in Road Accident Fund v Marunga (supra).

From the undisputed facts as they appear from the medical reports placed before me it is clear that the plaintiff, as a consequence of the accident, suffered substantial pain, discomfort, disability and loss of amenities of life. The plaintiff was hospitalised for a period of approximately eleven (11) days. His mobility was impaired as he had to use a crutch to assist him
in walking. It must be accepted that he suffered pain immediately after the accident and continues to suffer pain for which he must take anti-inflammatory medication. Such pain is anticipated to progressively increase due to osteoarthritis in the right hip until such time as a first hip replacement will become necessary. Due to his hospitalisation the plaintiff would not have been able to perform his work during that period.

In future the plaintiff will be subjected to two surgical procedures. The degree of pain and discomfort attendant upon these procedures have been set out in the medical reports of Dr. Olivier. The plaintiff will be rendered immobile when the envisaged surgical procedures are performed in future. This will no doubt cause him discomfort and pain and will be a disruption in his enjoyment of life. A further important feature of the surgical intervention to be taken into account as an important factor is that it is not without risk. Dr Olivier says the following in this regard:

“Mnr Peter sal ‘n matige graad van pyn en ongemak verduur, vir ‘n periode van twaalf weke post-operatief. Nadat ‘n geslaagde totale heupvervanging uitgevoer is, kan daar verwag word dat die pasiënt se pyn sal opklaar, en dat hy ‘n funksionele omvang van beweging sal hê in sy regter heup. Daar moet egter genoem word dat daar sekere komplikasies geassosieerd is met ‘n totale heupvervanging.

Ten eerstens bestaan daar sowat 1% kans op post-operatiewe infeksie. Daar bestaan ook sowat 3% kans op post-operatiewe dislokasie. Indien enige van bogenoemde komplikasies intree, sou dit nodig wees vir ‘n vervroegde hersieningsprosedure. Daar bestaan ook 0,5% kans vir ‘n fatale pulmonale embolisme.

Soos voorheen genoem, sal Mnr Peter se heup waarskynlik vir ‘n periode van vyftien (15) jaar goed wees. Daar word dan voorsien dat die pasiënt ‘n hersieningsprosedure sal benodig. Die omvang van die hersieningsprosedure is van veel groter omvang, indien dit vergelyk word met ‘n primêre totale heupvervanging.

Daar is tegniese faktore aan verbonde, soos byvoorbeeld fibrose en beenverlies. Daar moet dikwels dus van ‘n beenoorplantingsprosedure gebruik gemaak word, en selfs van ‘n aangepaste prostese. Die voorkoms van fibrose en beenverlies verleng die operatiewe tyd, en gevolglik duur die operasie langer, en die behandelende geneeshere se kostes styg proporsioneel. Die pasiënt se post-operatiewe rehabilitasie is langer en gevolglik is hospital onkostes ook hoer.”

As stated earlier, the plaintiff is qualified and employed as an electrical technician. The nature of his work is such that he is required to have a certain degree of mobility. The plaintiff informed Dr. Olivier that his work requires him to move around often, work in confined spaces, and to bend down and squat. After a hip replacement it is foreseen by Dr. Olivier that the plaintiff :

“--- nie geskik is om ‘n tipe werk te verrig, waar daar
van hom verwag word om lank te staan en ver te stap
nie.

Hy is ook nie geskik vir ‘n tipe werk waar hy moet hurk of
buk nie. Die kliënt sal na ‘n totale heupvervanging geskik
wees vir ‘n tipe werk waar hy agter ‘n lessenaar of ‘n
werksbank sit, en ligte takies verrig. Dit geld vir die res
van die pasiënt se natuurlike lewe. Toekomstige chirurgiese maatreëls sal dus nie sy werksvermoë bevoordeel nie.”

Although there is no evidence that the injuries and the anticipated hip replacements will reduce the plaintiff”s working life, what is evident is that the plaintiff’s mobility will be restricted which may cause him to be unable to perform the type of work for which he is qualified. Further, although less serious and significant, as conceded by Mr Dugmore, it must be considered that the plaintiff did experience pain and some scarring as a consequence of the other injuries sustained. It is further anticipated that he will suffer mild pain whom the subsequent scar revision, as suggested by Dr. Venter in his report, is performed.

Having considered all the factors and circumstances relevant to the assessment of damages referred to in this judgment, the medical evidence placed before me, the past awards made in the various cases counsel referred
to, and taking into account the more modern approach to the award
of damages adopted in the Wright and Marunga judgments (supra), I am of the view that the general damages suffered by the Plaintiff amount to R180 000,00

The parties were agreed as to the form of the order to be granted by me once I had reached a conclusion as to the quantum of the general damages to be awarded to the plaintiff.

I accordingly make the following order:

4. The defendant is ordered to pay plaintiff the sum of R180 000,00 for general damages.

5. The defendant is ordered to pay interest on the above amount at the legal rate from a date 14 days after the date of judgment to the date of payment.

6. The defendant is ordered to pay plaintiff’s costs of suit, which costs are to include –

1. The costs of the reports and qualifying expenses, if any, of Dr Olivier, Dr Venter, Dr Van der Spuy, Dr Abubaka and Dr Strydom.

2. The costs of the photographs of the scene of the collision and of plaintiff reflecting the cosmetic sequelae to plaintiff.

3. The costs of the sketch plan of the scene of the collision prepared by Mr Berg.

7. The defendant is ordered to pay interest on the taxed costs as above at the legal rate from the date 14 days after taxation to the date of payment.

8. The defendant is ordered to pay the Plaintiff the sum of R8, 482,50 being in settlement of plaintiff’s claim for past medical and hospital expenditure.

9. The defendant is ordered to provide to the plaintiff a comprehensive certificate as contemplated in Section 17(4)(a) of the Road Accident Fund Act, No.56 of 1996 in settlement of plaintiff’s claim for future medical and related expenditure.

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JUDGE OF THE HIGH COURT

Judgment delivered on : 18 August 2003

Counsel for the Plaintiff : ADV. G DUGMORE

Attorneys for the Plaintiff : I C CLARK INC.

41 Arthur Street

KING WILLIAMS TOWN

Counsel for the Defendant : ADV. N DUKADA

Attorneys for the Defendant : DAMBUZA MNQANDI INC.

116 Cambridge Road

KING WILLIAMS TOWN

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