4.3
The medico legal examination reports prepared by the orthopaedic surgeons who examined the plaintiff including their prognosis, in
our case, in respect of the injuries to the plaintiff’s right ankle joint.
[5]
According to Dr P.A. Olivier, an orthopaedic surgeon, in his medico legal examination report on behalf of the plaintiff he states that the plaintiff presented
with a fracture and dislocation to her right ankle joint. The post – operative period was complicated by the fact that the
patient developed weakness in both legs and sphincter dysfunction. A cauda equine syndrome was diagnosed.
[6]
Dr Olivier further explained that the plaintiff presents with symptoms and signs of osteoarthritis up the right ankle joint. X- rays demonstrate
persistent lateral subluxation of the latus and secondary degenerative changes. He says that in his opinion the generative process
will progress in the future and that the plaintiff will ultimately require an ankle arthrodesis which will be indicated after a period
of ten years after this accident. In this (ten) 10 year period the plaintiff will benefit from conservative treatment. After an arthrodesis
the pain and discomfort should clear up almost completely, but the plaintiff will develop slight discomfort in the midtarsal joint
for the rest of her natural life. He further says that provision should be made for the conservative treatment of degenerative changes
in the midtarsal joints. It is also anticipated that the internal fixation should be removed after a period of two (2) years after
the ankle arthrodesis. The plaintiff should also have experienced a severe decree of pain and discomfort for a period of sixteen
(16) weeks after the accident. However a moderate degree of pain and discomfort will be present for a period of ten (10) years after
the accident. This will gradually increase to a severe degree of pain and discomfort and will eventually lead to an ankle arthrodesis.
The plaintiff will experience a severe degree of pain and discomfort for sixteen (16) weeks after arthrodesis. The plaintiff will
eventually experience a slight degree of discomfort on a permanent basis in the midtarsal joints for the rest of her natural life.
[7]
The plaintiff will not be able to participate in weight bearing activities such as hiking, jogging,
dancing etc due to the serious orthopaedic injury she sustained. It is however anticipated that she will be a community walker. It
is further anticipated that she will be able to walk without a walking stick.
[8]
In so far as disfigurement is concerned there are signs present of a synovitis and a surgical scar.
This, according to the doctor, will contribute to a permanent degree of disfigurement. Further surgical scars are anticipated after
the ankle arthrodesis. The plaintiff will walk with a slight antalgic limp for the rest of her natural life. There is a 0,5% possibility
of a fatal post-operative pulmonary embolism.
[9]
I have also been referred to a medico legal examination report prepared by a different expert an
orthopaedic surgeon Dr Berkowitz. His analysis and opinion is basically be same as that of Dr Olivier except for one aspect. He says that he is of the opinion that after the arthrodesis the plaintiff will be completely pain free, and
that there is a 12 percent likelihood that she will require a revision procedure. This is contrary to Dr Olivier’s opinion that it can be excepted that the plaintiff will experience a slight degree of discomfort in the midtarsal joint for the rest
of her natural life.
[10]
None of the two experts was called by the plaintiff instead the defendant has agreed that both reports
be handed in by consent. However it is clear from the parties’ terms of settlement that the defendant will be responsible for
the 100 percent of the damages and any expenses incurred by the plaintiff which is a sequel to this accident. I am aware that what
I have said does not address the question of general damages in the light of the conflict of the opinions. It is my view that in
the circumstances and in the light of the concession made by the defendant I should assume that the worst would occur and I should
therefore make my award on that basis.
[11]
Both counsel have assisted me with the aid of decided cases dealing with past awards which are almost
similar to the case in question. It is true however that, although awards in previously decided cases are always of assistance to
the court, it is always difficult to find a case which is in all fours with the one being heard. I now wish to deal with a few of
the relevant decided cases.
[12]
In the case of Lugodlo v Vulmarans 1975 (20 C&B 617 a 53 years old mistress suffered a fractured ankle and was walking with difficulty after the accident. She would have to use a stick
and crutches and had to frequently use painkillers. She had to wear shoes with a special sole. She was awarded R83 000 00 in today’s
monetary terms.
[13]
In Mercer v Franke 1953 1 C&B 510 (C) the plaintiff sustained a fracture of her ankle. She was hospitilised for 16 days and underwent a procedure. She was discharged in
plaster of paris and on crutches. She walked with a walking stick for a year and was no longer able to walk long distances. She would
develop osteoarthritis in her ankle. The award for general damages was the sum of R133 000 00 in today’s monetary terms.
[14]
In the case almost similar to the one under discussion in Betisela Jali v Alliance Assurance Co. LTD 1955 (1) C&B 515 (D) the plaintiff sustained a fracture of his ankle, concussion and some lacerations to his legs which healed completely within 14 days.
The plaintiff suffered pain in his ankle and found it difficult to engage in physical activities. It was anticipated that he would
develop osteoarthritis and that it would be necessary to fix the ankle joint. The award for general damages (updated for inflation
to 2008) was the sum of R168 000 00.
[15]
I was also referred to the judgment of Road Accident Fund v Marunga 2003 (2) ALLSA 148 (SCA) where Navsa JA approved the dictum of Broome DJP in Wright v Multilateral Motor Vehicle Accident Fund a decision of the Natal Provincial Division – quoted in Corbett & Honey Volume 4 page 3 - 31 where Broome DJP stated;
“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”
I also agree with the above comment. South African courts are still legging behind in general damages’ awards when compared
with other countries. Our awards are always on the lower end of the scale. The courts should, however, be very cautious of being
overgenerous in trying to meet the standards applied in other jurisdictions. Even in Marunga case the appeal court did not make a higher award as evidenced by it’s reduction of the court a quo’s award by more than half (from R375 000-00 to R175 000-00).
[16]
Coming to the facts of our case the plaintiff is about 50 years old and during the accident she was 44
years and ten months exactly. She passed standard five (5) and was working as a housekeeper at a certain school when she was injured.
She had a fracture and dislocation of the ankle as a result of the accident. She was a pedestrian when she was hit by the insured
vehicle. The ankle was treated by means of elevation and it was anticipated that an open reduction and internal fixation should be
performed on the 18th September 2003. The post operative period was complicated by the development of neurological symptoms. It was considered that she
could have developed an epidural hematoma or an epidural abscess which has resulted in a cauda equina syndrome. Those symptoms, however,
resolved spontaneously and she was asymptomatic after a week. She mobilised with crutches after she was referred to a physiotherapist.
She was discharged on the 18th of September 2003 and was followed up at regular intervals at the Orthopaedic Out Patients Department.
[17]
There is no doubt from what has been said above that the plaintiff suffered severe pain as a result of
this accident. The degree of pain and discomfort attendant upon the surgical procedures that she has already been subjected to and
which she is still to have to endure when further procedures are performed cannot be overstated. This has also been stated clearly
in the analysis of Dr Olivier’s opinion in paragraphs 6 to 8 above. Her mobility was totally and partially impaired for a period of more than two months and will
be impaired and rendered immobile after the envisaged procedures are performed. After a period of ten (10) years the plaintiff will
experience incapacitating pain and will therefore be a candidate for surgical procedure. It is forseen by Dr Olivier that the internal fixation will be removed after a period of two years after arthrodesis which arthrodesis is likely to be performed
ten years after the accident. She had experienced a severe degree of pain and discomfort for 16 weeks after the accident. As a result
of the present signs of synovitis and a surgical scar this will contribute to a permanent disfigurement. Further surgical scars are
anticipated after an ankle arthrodesis. She will walk with a slight antalgic limp for the rest of her natural life.
[18]
Having analysed the plaintiff’s injuries and the pain and suffering resulting from the injuries
she sustained as well as the surgical procedures past and future there is no doubt that the injuries she sustained are serious. The
doctor informs us that it is anticipated that the plaintiff will be a community walker although she would not be able to participate
in weightbearing activities such as hiking, jogging, dancing and related activities. Her life expectancy is affected by a possibility
of a 0,5% for a fatal post –operative pulmonary embolism.
[19]
Although the past awards from decided cases are not consistent they have been able to give me more or
less the range on which I should operate when dealing with the present case. I have also considered that there is a difference in
age between the plaintiffs in the cases I have quoted and the plaintiff’s case.
[20]
Having considered all the factors relevant to the assessment of damages and having considered the more
modern approach to the award of damages as set out in the case of Marunga quoted supra I will award a global amount inclusive of pain, disfigurement loss of ammenties of life and all other related categories.
I consider that a sum of one hundred and five thousand rand will be just in the circumstances.
[21]
When making the inclusive order I will take into consideration that in so far as other aspects of damages
the parties have made an agreement which is now made an order of the court.
[23]
I therefore make the following order:
[24]
The defendant is ordered to pay the following damages to the plaintiff.
25.1.
Payment of the sum of Fifty Five Thousand Six Hundred and Seven rand only (R55 607-00) only in respect of past loss of earnings.
25.2.
Payment of the sum of Ninety Seven Thousand Eight Hundred and Twenty Six Rand (R97 826-00) only in respect of future loss of earnings.
26.3
Payment of a sum of One Hundred and Five Thousand rand only in respect of general damages.
26.3.1
All the above amounts shall be paid to the plaintiff’s attorneys within 14 days from the date of delivery of this
judgment.
26.4
Payment of interest at the legal rate on the amount of Two Hundred and Fifty Eight Thousand Four Hundred and Thirty Three rand (258
433-00) only calculated from 14 days after the date of delivery of this judgment.
26.5
The plaintiff shall issue an undertaking in favour of the plaintiff in terms of section 17 (4) (a) of the Road Accident Fund Act 56 of 1996 for the costs of the future accommodation of the plaintiff in a hospital or nursing home for the treatment of or rendering of a service
to her or supplying goods to her arising out of the injuries sustained by the plaintiff in the motor vehicle collision on the 31st August 2003, after such costs have been incurred and upon proof thereof;
26.6
The defendant is ordered to pay to the plaintiff costs of suit on the scale as between party and party taxed on the High Court tariff
which costs are to include:-
26.6.1
The qualifying expenses, if any, of Dr P.A Olivier, Dr W. Strydom, Dr M. Tarboton and Dr R.J. Koch.
26.6.2
Costs occasioned by the preparation and drawing of the sketch plan of the scene of the accident together with key thereto;
26.6.3
Costs of the photographs of the scene of accident together with the key thereto;
26.6.4
Counsel’s fees including trial fees for the 13th and 14th August 2008.
27.7.
Payment of interest on the costs of suit at the prevailing legal rate calculated from fourteen (14) days after allocatur to the date of payment thereof.
27.8.
The payment of the capital and taxed/agreed party and party costs are to be paid into the trust bank account of the plaintiff’s
attorneys I.C. Clark Inc.
Name of account
:
I.C. Clark Inc.
Bank
:
ABSA Bank
Account number
:
712091878
Branch code
:
632008
Dated at East London on this 21st day of August 2008.
__________________
P.W. TSHIKI
ACTING JUDGE OF THE HIGH COURT
Date argued
:
13th August 2008
Date judgment delivered
:
21st August 2008
For the plaintiff
: Mr Clark instructed by I.C. Clark Inc. in
East London
For the defendant
:
Mr B. Nompozolo of Nompozolo &
Gabelana
Attonerys in East London
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