South Africa: High Courts - Gauteng

         Case No. A5020/05




        

In the matter between

KHUMALO, FLORA PHETHELEPHI                                  Plaintiff

and

ROAD ACCIDENT FUND       Defendant

____________________________________________________________________

         JUDGMENT

____________________________________________________________________

GOLDSTEIN J:

[1]      This is an action for damages resulting from a collision between a motor vehicle and the plaintiff on 27 July 1998. The defendant admits that it is liable for such damages, and the issue for determination is the extent of the quantum.

[2]      The plaintiff gave evidence and her counsel, Mr du Plessis, called Ms Anneke Greeff, an occupational therapist as a witness. The defendant called no witnesses, but the parties were agreed that I should regard as evidence duly led the contents of exhibits A, B, D and E. Attached to Mr du Plessis’s heads of argument as annexures A, B and C are actuarial calculations, accompanied by averments all of which, the parties are agreed, are also to be regarded as evidence duly led.

[3]      The plaintiff has not been able to work since the collision. There is no difficulty about her past loss of earnings. The figure reflected in annexure A in respect thereof is R54418.00 and allowing for a deduction of 5% for contingencies, R51697.00 remains, and the plaintiff is entitled to judgment for such sum.

[4]      Two issues remain: the plaintiff’s future loss of earnings, and her general damages – those resulting from her pain and suffering, and loss of amenities of life.

[5]      As a result of the collision the plaintiff suffered transient concussion, which is of no or little significance. In addition, however, she suffered injuries, described by a surgeon, Mr Michael A Scher, as follows:
         “a. A left humerus mid shaft fracture.

         b. A comminuted left upper tibia fracture which extended into the medial tibia
plateau articular surface.

         c. A fracture to the neck of the left tibula.”

         The plaintiff was hospitalised for 3 months following the collision, and
thereafter readmitted from time to time for follow-up treatment.

[6]      What is described as an intra medullary rush nail was inserted surgically in her fractured humerus, resulting, says Mr Scher, in “non union”. The nail apparently broke at a stage after she was examined by doctors on 5 April 2000, resulting in the humerus bending to form what presents to the layman as an extra elbow, and a gross deformity. The plaintiff has suffered neurological damage to her left hand, resulting in her middle finger, ring finger, and small finger remaining closed, and leaving her index finger and thumb mobile; the result is a claw–like unsightly hand. The immobility of her three fingers results, according to Greeff, from damage to her ulnaris and medianis nerves. No evidence was led to indicate that these can be repaired.

[7]      An operation is envisaged to the fractured humerus. This will involve breaking the plaintiff’s new “elbow”, and although the deformity constituted thereby may decrease, I think it highly improbable that the plaintiff will ever regain the use of her left hand. This view is strengthened by a number of factors. The first is that the continued disuse of the plaintiff’s left arm has resulted in atrophy, or loss of muscle bulk, along her entire left arm, which is entirely unstable. She has no control over her left wrist and cannot bring her left hand to her mouth. She has been effectively rendered single–handed by the accident, and is functionally no different from a person whose left hand has been amputated. Indeed, save for aesthetic or religious reasons, the plaintiff proffers no ground for objecting to its amputation, confirming her lack of use of it. A second factor supporting non-recovery of the use of the left arm is that the plaintiff is clearly a very unsophisticated, unintelligent woman, who lives in a rural setting with little or no support from family, and where, I have little doubt, that practically speaking, she will not be able to undergo the intensive post–operative treatment which may be designed to restore some use to her left arm. The plaintiff is fortunately right–handed.

[8]      The fracture of the left tibia extends to her left knee. Greeff observed that her left leg was rotated internally when she was in a supine position. She found crepitations in her left knee, decreased muscle strength in her left leg, and an inability of the plaintiff to curl the toes of her left foot into the floor; her left big toe was found to be maintained in hyperextension. The injury to the left leg has made it one centimetre shorter than the right leg, resulting in a pronounced limp. The plaintiff will probably have to endure a knee replacement operation in about 12 years time. She suffers from ongoing back and neck pain – complications from the compromise of the normal functions of her lower limbs. Her right upper and lower limbs are strained, and will suffer degenerative changes from her having to use them to attempt to compensate for the weaknesses of her left upper and lower limbs.

[9]      The plaintiff, who was formerly a healthy whole woman, presents now with gross disability and deformities. She suffers emotional trauma as a result of her injuries, and told Greeff that she would rather sleep under a tree than talk about them. The plaintiff testified that people looked at her, and that she felt useless; and, my note reads, “as if (she) should cry”.

[10] I turn to deal with the plaintiff’s future loss of income. She was born on 8 June 1957, and was accordingly 41 at the time of the collision; she is now 48. She obtained limited formal education, apparently attaining standard 1 at a farm school in Natal. She cannot speak English or Afrikaans. She is unmarried. She began working on farms at a very early age. At some stage she came to Johannesburg or its environs to look for work. She testified that for 8 years immediately before the collision she worked for a family of parents and seven children as a domestic servant, making their beds, cleaning their home, and doing their washing. She did this for 6 days a week from 8 am until 4 pm. They paid her R300.00 per month, with an annual bonus of R400.00.

[11]     Two issues arise in regard to the plaintiff’s future loss of earnings. First, the question is where the she would have worked until retirement age, of say 65, or for the rest of her life; her life expectancy is 74.14 years. The second question is the extent of the deduction for contingencies; Mr Pilusa, who appeared for the defendant contended for 30%, and Mr Du Plessis for considerably less.

[12]     As to the first question, the probabilities are that the plaintiff would have worked for as long as she could, and therefore for the rest of her life. Her dire financial circumstances and limited support systems would have dictated that she do so.

[13]     In regard to the second question, Mr Pilusa referred me to A A Mutual Insurance Association Ltd v Magula 1978(1) SA 805 (A) at 945, in which a plaintiff who had an unstable work record had his loss of income reduced by a contingency of 50%. The plaintiff’s evidence as to her employment as a domestic worker was quite unsatisfactory. In his opening address, Mr Du Plessis informed me that she had left her employer during the period December 1997 until June 1998. The plaintiff gave no such evidence, insisting that she worked for 8 years before the collision for the family concerned. Then she informed Dr Wessels, whose report is before me, that she had worked for the family for 14 years. At one stage she testified that she came to the urban areas when she was about 20 years old. If she worked as a domestic for 8 years, that would leave her with about 13 years unaccounted for before the collision. In the light of all this, her record of employment must be regarded as unstable, and the argument for a contingency of 30% must accordingly be acceded to. I am not called upon to consider a contingency greater than that contended for by counsel for the defendant. Cf Road Accident Fund v Reynolds (Unreported WLD Case No A5023/04 18 February 2005 – Full Court). The plaintiff’s future loss of income is given in annexure A as R287, 302.00. If that figure is reduced by 30%, the result is R201,111.40.


[14]     I turn to the plaintiff’s general damages. In Blyth v Van den Heever 1980(1) SA 191(A) the plaintiff of 20 endured much pain, having suffered fractures resulting in her right forearm being described by the trial Judge as a “shrunken claw-like appendage of extremely limited functional value.” (195E-F) She was awarded R20, 000.00, the current equivalent of which, counsel are agreed, is R397000.00. In Goodall v President Insurance Co Ltd 1978(1) SA 389(W) a right–handed 44 year old man whose right elbow has been “destroyed” (394A), was left with “a flail forearm which hangs limply and which is little better than useless.” He did, however, have “limited use of his right hand, with some pinch grip between thumb and forefinger, and, to a lesser degree, between the thumb and middle finger, but no… grip achieved by closing the fingers into a fist”. (394A-B) “He was (f)or all practical purposes .. a one handed person.” (394B) Goodall was awarded R12,500 in general damages, the equivalent of R224,000.00 today. In Rademeyer v Rondalia Assurance Corporation of South Africa Ltd (Corbett & Buchanan: The Quantum of Damages Vol II at 46), a decision of the Eastern Cape Division in 1968, the plaintiff suffered compound fractures to his tibia and fibula, and fractures of his wrist and mandible. The fracture of his wrist had not united and a bone–graft would be necessary in the future, and if that failed, arthrodesis of the wrist. He had had 13 operations, shortening of the legs and partial disability. He was walking with a stick or crutches, and future operations were in prospect. He was awarded R10 000.00, the current value of which is R415 000.00. Apart from the above cases, Mr Du Plessis referred me to a judgment of an arbitrator in Malope v Road Accident Fund quoted in Corbett and Buchanan 2003 5 E4-7. The award concerned cannot, of course, have the authority of a judgment of a Court, but has, I accept, some persuasive authority. There the claimant, who had suffered a midshaft fracture of the right tibia with effusion of the right knee joint and considerable pain and discomfort, but with a prognosis that was fairly good was awarded general damages of R 90, 000.00. Mr Du Plessis contended that, in the light of the aforegoing, I ought to order general damages in the sum of R500, 000.00.

[15]     Mr Pilusa, contending for general damages of R130, 000, referred me to Mutandiro v Mbulawa, reported in Corbett and Buchanan, op. cit., Vol III at 495, a judgment of the Zimbabwe High Court in 1984. in that case the plaintiff, employed as a builder, had sustained fractures of the lateral malleous, left femur, proximal right tibia and head of the right tibia, as well as a fracture of the greater tuberosity of the left humerous. He had been treated in hospital for 3 months, and given crutches and required to remain home for four months. He was to undergo further operations which were advised. He had given up his employment and done contract work instead. His main difficulty was his inability to continue to do active building work. He could not stand or walk for long and there was the prospect that he might suffer arthritis. He was awarded $10, 000,00 which has a current value of R90 000,00. This case seems to me clearly much less severe than that of the plaintiff. The sentence that I have italicised indicates that he was substantially able to function, whilst the present plaintiff is really substantially severely disabled. Furthermore, I have some doubt as to the relevance and cogency, in this field, of foreign judgments with different currencies and economies from our own.

[16]     In regard to the plaintiff’s left arm I have here to do with a case:

[17]     Then plaintiff’s position is further worsened to a substantial degree by the shortening of her left leg, and the injury to her left knee. According to Greeff, having all her injuries on the left makes her position even worse. Furthermore, Greeff deposed that the knee is a vital joint involved in a multitude of everyday activities such as sitting. The plaintiff cannot use crutches because of the condition of her left arm. Her right side functions have been, and will continue to be, detrimentally affected by her left side. The plaintiff in Malope suffered more pain than did the present plaintiff in respect of her left leg, but he was apparently able to use crutches. She has suffered less in respect of her leg than did the plaintiff in Rademeyer.
[18]     The plaintiff presents as a pitiful and wretched human being, whose severe injuries are in no way mitigated or cushioned by the circumstances of obviously dire poverty and deprivation in which she ekes out an existence, supported by her son who owns a spaza shop in Benoni. In all the circumstances, the sum of R400,000.00 for general damages appears to me to be appropriate.

[19]     If follows that the plaintiff is entitled to payment of R51,697.00 in respect of past loss of income, R201,111.40 for future loss of income and R400,000.00 as general damages, giving a total of R652,808.40. The parties have agreed to paragraph 2 of the order below, and the formulation of paragraphs 3 and 4 follow that contained in Mr Du Plessis’s written heads, as amended during argument, and in respect to which Mr Pilusa raised no objections.

[20]     I make the following order:
         1.       The defendant is ordered to pay the plaintiff R652,808.40, together with

                interest on the aforesaid sum at the rate of 15.5% per annum,    calculated from 14 days of the date of this judgment, until payment. 2.        The defendant is ordered to furnish the plaintiff with an        undertaking in terms of section 17(4)(a) of the Road Accident    Fund Act, 56 of 1996.