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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO 225/05

In the matter between:

JULIA MPHO MATHEKGA PLAINTIFF

AND

ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

TLHAPI AJ:

BACKROUND:

This is a matter where the Plaintiff, on behalf of her minor son, is claiming damages suffered as a result of a motor collision with a third party.

The claim is for:

(a) Payment of the sum of R364, 340.49

(b) Interest on the aforesaid amount at the rate of 15.5% per annum from date of service of summons to date of payment; and

(c) Costs of suit;

DEFAULT:

The matter was set down for default judgment against the Defendant. Summons was issued out of this Court on the 23^rd February 2005 and served on the Defendant on the 28^th February 2005 at its offices in Pretoria at 15h00. In particular the Summons and Particulars of Claim were served on an employee of the Defendant, Mrs C Gocane, in terms of the Rules of Court. There was no appearance to Defend.

The Plaintiff called three witnesses and their evidence is summarized below:

1. The first witness was the Plaintiff Julia Mpho Mathekga. She testified that she was the guardian and mother of one minor child, Thato Mathekga. Thato is presently attending school at Letsatsing Science School in Mafikeng and is in Grade 11.

On the 12^th February 2001 certain police officers arrived at her home to report an accident in which her son, Thato, was involved. She accompanied them to Bophelong Hospital in Mafikeng where Thato was admitted. He was unconscious and was later transferred to Victoria Hospital in Mafikeng, where he regained consciousness. He was kept at this Hospital for a week before being transferred to Brenthurst Clinic in Johannesburg.

2. According to her, Thato sustained fractures to his left pelvis and left knee and his right knee was also bruised. He further had bruises on his stomach and legs. At Brenthurst Clinic Thato was operated upon and lay in traction and was bedridden for a month before he was discharged. He remained at Brenthurst for a month after which he was discharged for three weeks. He was referred for physiotherapy and had to make use of crutches. He returned to Brenthurst after three weeks for the removal for screws inserted to his Pelvis.

During the time that he made use of crutches she had to transport him to and from school because he could not move around with ease.

3. After the screws were removed Thato still had to make use of crutches for a while and be attended to by a Physiotherapist. Thato no longer participates in sport and if he does try to do so, his left knee swells and he has to receive treatment, often the fluid from the knee has to be drained. He complains about pain in the right knee and pain if he sleeps on one side for a long time. Painkillers have to be prescribed from time to time.

Although Thato no longer uses crutches he now walks with a limp.

4. Medical expenses were incurred by the Plaintiff in the amount of R46 340.49 and invoices were handed in as proof and marked exhibit “X”. She is also claiming damages for future medical expenses for R68,000.00 as shall appear from the evidence of the expert Dr Morule.

An amount of R250,000.00 is being claimed for general damages for pain, suffering, discomfort and loss of amenities of life, disabilities and scarring. No expert evidence was led in this regard.

5. Thato also testified. He stated that he was involved in a collision on the 12 February 2001. He was from Mafikeng town, walking along Tillard Street in the direction of Golf View. At the same time there was a truck behind him travelling on the tarmac in the same direction.

On arriving at the intersection of Nelson Mandela Road and Tillard Street the robots turned green giving him right of way and as he prepared to cross the intersection he realised that the truck which was coming from behind him was taking a turn to the right, he stepped back for the truck to pass and the steel pipes which were on the trailer pulled by the truck hooked his school bag. He does not remember what happened thereafter.

6. He regained consciousness at Victoria Hospital and was transferred to Brenthurst Clinic. He further confirms the first witnesses’ evidence relating to his injuries. He adds that he suffered severe pain in the pelvic area and the knees. He had a wound which was not healing properly on the right knee and a skin graft had to be performed. The ligaments to his right knee are still sore. He also testified that his stomach and legs were badly scarred.

7. Thato testified that before the accident he actively participated in sport. He was selected as a runner in athletics for the North West Region; he played rugby for the North West Region Rugby Team and played soccer at school. He no longer participates actively in any of these sporting activities, because of the pain and problems with his pelvis and knees, he walks with a limp, he cannot sit or stand for a long time and when he travels he has to take a break at intervals to give him opportunity to stretch.

8. The third witness Dr Andrew Morule an orthopaedic surgeon who has a practice in Mafikeng and Johannesburg was called as the expert witness. He was not the attending doctor of Thato but had subsequently examined him, and on the 15^th June 2004, compiled a report of such examination, which report is attached to the particulars as annexure “C”. According to the report Thato had been seen by Dr Scnaid also an orthopaedic surgeon until August 2001. Dr Morule took the Court through the report of his examination of Thato which gives more detail as to the injuries sustained, and the said report corroborates the description of the injuries to Thato as testified by the first two witnesses.

9. According to Dr Morule provision needs to be made for future medical expenses in the amount of R68 000.00 in the light of recurrent problems with his back and knees as described in his report.

10. No expert witness was called to testify on how the calculations on general damages claimed, were arrived at. However, Mrs Gutta, on behalf of the Plaintiff referred the Court to Robert J Koch’s, The Quantum Yearbook, which includes “tables of general damages awards updated for inflation to 2005.”

She further referred to the case of Ntsiko v President Insurance Co. LTD. 1974 2 C&B 502 (E). The Plaintiff in this case suffered injury to both knees and was awarded general damages in the amount of R4, 500.00. Robert Koch’s book in which this case is mentioned inflates the award to R121, 000.00 for the year 2005.

The Court in this instance had the advantage of reports from two experts, one for the Plaintiff and another for the Defendant. The reports were substantially the same. In awarding general damages the learned judge said “the award for general damages must take into account the comparatively short period of severe pain, the period of discomfort and marked disability, the intermittent pain and discomfort since suffered and to be suffered by the Plaintiff; the restriction of his activities and the loss of amenities he has suffered, including loss of enjoyment of his work.” Dr Morule testified that on his examination of the knees, during 2004, approximately three years after the operation, Thato still experienced pain, the left knee being worse than the right. There was restricted joint movement on the left knee and that a slight limp on the left leg had developed. There is evidence from Thato that any attempt at active participation in sporting activities still causes pain and discomfort to the knees. He was a sports person and will no longer enjoy such activity.

Another case referred to was that of Woodman v S A Eagle Insurance CO. LTD 1983 3 C&B 440 (C). The Plaintiff who was 69 years of age suffered a fracture to her pelvis after a collision. She also had a pre-existing degenerative condition to her lumbar spine and knee-joints which condition flared up after the accident especially in the area of the knees. She was awarded an amount of R7, 500.00 which amount is inflated by Robert Koch to R68, 000.00 for the year 2005. According to Dr Morule, Thato still experienced recurrent pain in the lower back. Thato testified that he cannot sit or stand for a long time and has to take breaks when he travels.

11. An order for costs was applied for inclusive of costs for the expert witness.

CONCLUSION:

Having regard to the above authorities and to all the factors relating to pain and suffering, discomfort, loss of amenities of life, disability and scarring I consider an amount of R180,000.00 to be a reasonable amount of compensation in respect of general damages.

Plaintiff’s damages therefore amount in total to:

Past medical and Hospital expenses R46 340.49

Future Medical Expenses 68 000.00

General Damages 180 000.00

294 340.49

ORDER:

11. The following order is granted:

(a) Defendant is to pay the Plaintiff damages in the sum of R294 340.49;

(b) Defendant is to pay Interest on the aforesaid amount at the rate of 15.5% per annum from date of service of summons to date of payment; and

(c) Defendant is to pay costs of suit inclusive of costs of the Expert.

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V V TLHAPI

ACTING JUDGE OF THE HIGH COURT

Date of Hearing : 9 June 2005

Date of Judgment : 17 June 2005

Appearances:

For the Plaintiff : Adv N Gutta

For the Defendant : No Appearance

Attorneys for the Applicant : Phancy Magano & Partners

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