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IN THE NORTH WEST HIGH COURT

MAFIKENG

CASE NO.: 1012/2010

In the matter between:

GASETLALE VERONICA MOGAPI …............................................PLAINTIFF

and

ROAD ACCIDENT FUND ….......................................................DEFENDANT

DATE OF HEARING : 02 AUGUST 2011

DATE OF JUDGMENT : 25 AUGUST 2011

FOR THE PLAINTIFF : ADV SWART

FOR THE DEFENDANT : NO APPEARANCE

JUDGMENT

LANDMAN J:

[1] The plaintiff is Gasetlale Veronica Mogapi. She instituted action, in her capacity and guardian of her minor son, Keorapetse Mogapi against the Road Accident Fund, for the payment of damages.

[2] On 14 August 2007, in Unit 13, Mmabatho, a motor vehicle with registration number FKM 586 NW driven by one R S Ditseon, collided with Keorapetse who was a pedestrian.

[3] Keorapetse was injured as a result of the collision.

[4] It is alleged that the collision was caused by the sole negligence of the driver of the vehicle, who was negligent in one or more of the following respects:

4.1 he drove too fast under the prevailing traffic conditions;

4.2 he failed to keep a proper lookout;

4.3 he drove his vehicle without due care and attention;

4.4 he failed to apply the brakes of his vehicle timeously or at all;

4.5 he failed to have any consideration for other road users including pedestrians; and

4.6 he failed to exercise proper control of his motor vehicle.

[5] As a result of the collision, Keorapetse sustained a malunited fracture of the right tibia and fibula at the junction of the middle and distal third segments with some valgus and external rotation deformity.

[6] The plaintiff claims:

(a) payment of the amount of R285 000.00;

(b) interest on the aforesaid amount at the prescribed rate to run from 14 days after the date of judgment; and

(c) costs of suit.

[7] The matter was defended. A pre-trial conference was held and a notice of set down was duly served on the RAF’s local attorneys.

[8] There was no appearance on the date of set down by the local attorney for the RAF. Lindsay Keller Attorneys was contacted and an attorney of that firm indicated to the plaintiff’s attorney that he could be at court by 14h00 to discuss the matter. I may mention that a prior settlement offer had been rejected.

[9] As the matter had been enrolled for 10h00 I permitted the plaintiff to move for judgment by default and heard testimony from Dr R A Morule, the plaintiff’s expert.

[10] The history of Keorapetse’s treatment appears from Dr Morule’s report:

(a) Keorapetse and his parents informed Dr Morule that the patient was a pedestrian who was knocked down by a car. Keorapetse did not lose consciousness.

(b) He felt pain on the right lower leg.

(c) He was taken by the car that knocked him down to a local community clinic from where he was transferred by ambulance to Mafikeng Provincial Hospital (Bophelong Hospital).

(d) According to the records presented Keorapetse presented with a displaced closed fracture of the right tibia and fibula at the junction of the middle and distal third segments.

(e) At Bophelong Hospital

• Keorapetse was assessed.

• x-rays were taken.

• a backslab was applied

• he was admitted to the ward.

• he was taken to theatre a few days later at which, under fluoroscopic guidance, the fragments were manipulated to a satisfactory position then stabilised with two K-wires.

• an above knee cast was then applied.

• he remained in hospital for a few days after which he was then discharged. He used crutches.

(f) Keorapetse’s leg remained in the cast for about two months. He returned to hospital sometime during September 2007.

• The cast was removed.

• x-rays were taken.

• the K-wires were also pulled out.

• he continued to use crutches.

• he returned to school just before the September 2007 holidays.

• he has attended school regularly to date albeit with recurrent pain at the injury site.

[11] When Keorapetse presented himself to Dr Morule, Dr Morule noted:

(a) Recurrent pain at the injury site on the right lower leg. The leg is deformed. The pain on the right lower leg is recurrent but non progressive. It is felt with activity only.

(b) He is unable to run as prior to the accident.

(c) A well looking teenager.

(d) Examination of the head and neck:

This was normal with no observable scars and/or deformities. The full range of cervical spine movements was noted without pain.

(e) Examination of the upper limbs:

These were clinically normal, devoid of scars with full range of painless movement at all upper limb joints. No neurological deficit was noted.

(f) Examination of the trunk and spine:

This was also normal with no scars, no deformities, full range of movements and no tenderness. The pelvis was square and stable.

(g) Examination of the lower limbs:

Rotational deformity of the right lower leg was observed. Two rounded scars were noted at the junction of the middle and distal third segments. These are sites of insertion and subsequent removal of K-wires. The distal part of the left lower leg is externally rotated. There is no leg length discrepancy. There is no wasting of the thigh and/or calf muscles on comparing the right to the left.

(h) Examination of the hips:

These were clinically normal with full range of painless movements. No tenderness was elicited. Both knees were clinically stable with normal range of movements.

(i) Examination of the right ankle:

The right ankle is externally rotated: 30 degrees external rotation compared to the left. Clinically, some thickening of the right lower leg at the site of the fracture in keeping with non recent fracture of the distal tibia with malrotation of the distal fragments.

(j) The ankles and sub-talar joints were clinically normal.

Neurological examination of both lower limbs was normal.

(k) Gait

The patient walks with an externally rotated right foot.

(l) X-Rays

The salient features of the report by Drs Mngomezulu & Partners are that a non recent fracture is noted at the junction of the middle and distal third segments of the right tibia. The fragments are solidly united. It is evident that a significant valgus angle is observed at the fracture site with added 10 degrees of external rotation. The position is unacceptable.

[12] Dr Morule concluded:

“1. Pain and suffering

The child sustained severe pain from a fracture of a major limb bone. He suffered further pain during manipulation to stabilise the fragments.

He continues to suffer post fracture pain on the left lower leg.

He does not suffer from chronic pain.

He has suffered major disfigurement as a result of the malunited fracture of the right tibia in the form of a derotation osteotomy to realign the leg properly.

He will suffer further pain during removal of the fixatives once the fragments are consolidated.

2. Medical expenses

The patient was treated as an in – as well as an outpatient at Bophelong Hospital. Although the fragments are out to length, there is an external rotation deformity and slight valgus.

He requires operative correction of the deformity by means of derotation osteotomy.

1. A sum of R60 000.00 to be set aside for derotation osteotomy of the right tibia including post operative care.

2. A further sum of R15 000.00 to be set aside for removal of the fixatives once the osteotomy fragments are consolidated.

3. Loss of social amenities.

The patient was certainly restricted from all social amenities while in hospital and while recuperating from the fracture.

He is still limited due to malrotation deformity. The limitation will extend over a further six month period while attending treatment as outlined in the body of this report.

Education and career prospects

The patient was able to continue with his studies to date.

Future operative procedures can be undertaken during school holidays and will not interfere with the child’s academic career. The child’s sporting career will however be adversely affected due to residual stiffness at the right ankle following multiple procedures.

Longevity of life

This was not materially affected by the accident in question.”

[13] Dr Morule pointed out during his testimony that:

(a) The current costs of the operation to which he referred would be in the region of R70 000 to 85 000.

(b) The removal of the fixative would cost in the region of R25 000 to 30 000.

(c) A total of R100 000 would cover these costs.

(d) Visits to a general practitioner for pain would be necessary. These visits and medication would cost R20 000.

[14] In awarding general damages I start from the following premise:

(a) Keorapetse is a young scholar born on 31 August 1996.

(b) He suffered pain and trauma when he was knocked down and his right tibia and fibula were fractured.

(c) He underwent treatment which included an operation. This caused him pain.

(d) He was hospitalised for a few days.

(e) He used crutches for about 2 months.

(f) The cast was removed as well as the K-wires.

(g) He continued to use crutches.

(h) He attends school and his academic ability has not been impaired.

(i) He suffers recurrent pain at the injury site.

(j) He is unable to run.

(k) He has a rotational deformity of the right lower leg.

(l) He has two scars.

(m) His right lower leg at the site is thicker than it was.

(n) His gait is not normal.

(o) He will be required to undergo a further operation to correct the deformity.

(p) He lost some social amnesties while in hospital and will do so again when the deformity is corrected for at least six months.

(q) He did not play sport and will not be able to do so as a result of his injury.

(r) He will retain residual stiffness at the right ankle.

(s) His pain will recur and he will be required to visit his doctor.

[15] R175 000 was awarded as general damages in Road Accident Fund v Marunga 2003 (5) SA (SCA) 164 for a comparable injury but the injuries, extent of treatment and pain suffered by the accident victim in that case was more severe than that suffered by Keorapetse. Mgudlwa v Road Accident Fund 2011 (6E3) QOD 1 (E) involved a 34 year old teacher who was awarded general damages in the amount of R300 000 on 5 February 2010. The injuries suffered by the teacher were more severe that those suffered by Keorapetse. The teacher’s treatment was more intense and prolonged, and his leg was left shorter. Keorapetse’s deformity can be corrected but I accept and allow for the possibility of it not being entirely successful.

[16] The general damages granted in the Muranga judgment would be R304 000.00 in today’s terms while the value of the award in the Mgudlwa judgment is R300 000. In my view an award of general damages in the sum of R210 000 would be adequate compensation.

[17] In the result I make the following order:

1. The defendant is to pay:

(a) the plaintiff the sum of R330 000 consisting of:

Future medical expenses R120 000.00.

General damages R210 000.00.

(b) the costs of suit including the qualifying expenses of Dr R A Morule.

A A LANDMAN

JUDGE OF THE HIGH COURT

ATTORNEYS:

FOR THE PLAINTIFF : KGOMO MOKHETLE & TLOU

FOR THE RESPONDENT : MOTLHABANI ATTORNEYS

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