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REPUBLIC OF SOUTH AFRICA

THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

CASE NO: 2013/46374

(1)        REPORTABLE: NO

(2)        OF INTEREST TO OTHER JUDGES: NO

(3)        REVISED.

9/6/2015

In the matter between:

 

PRINCE MDUDUZI MAHLANGU                                                          PLAINTIFF

 

AND

 

ROAD ACCIDENT FUND                                                                         DEFENDANT

 

JUDGEMENT

MNGADI AJ:

[1]          Plaintiff is Mduduzi Prince Mahlangu an adult male of Vlakfontein in Lenasia, Johannesburg

[2]          Defendant is the Road Accident Fund, a juristic body with legal personality established in terms of section 2(1) and with section 15 of the Road Accident Fund Act 56 of 1996 with its main object, the .payment of compensation for loss or damage wrongfully caused by the driving of a motor vehicle.

[3]         Plaintiff claims damage suffered by him as a result of injuries he sustained in a motor vehicle collision on 30 March 2013 along a street in Soweto when a vehicle lost control and collided with him as he was standing on the pavement. In the accident plaintiff sustained a compound fracture of the left ankle.

[4]         As a result of the bodily injuries and the sequelae, Plaintiff claims the following damages

 

1.  Future medical expenses          Section 17(4)(a) Undertaking certificate

2.  Future loss of earnings/ earning capacity                     R1 441 676.00

3.  Past loss of earnings                                                     R145 184.00

4.  General damages                                                          R500 000.00

 

THE TOTAL                                                                    R2 086 860.00

 

[5]          At the commencement of the trial the parties settled all the other damages, except the issue of general damages. Apart from the plea on the merits, Defendant raised a special plea. The essence of the special plea was that the court does not have jurisdiction to make a finding as to whether the Plaintiffs injury is a serious injury and does not have the jurisdiction to make a finding regarding whether Plaintiff is entitled to claim non-pecuniary loss against the Defendant. The special plea was heard as a separate issue. It was dismissed with costs and the reasons thereof were furnished as part of the ruling.

[6]        The only issue for determination is now the quantum of general damages. Defendant did not present any evidence neither did he challenge or cross­ examine the witnesses that testified for the Plaintiff.

[7]        Plaintiff testified that in the accident he sustained a fracture in the left ankle. Due to the injury he can't walk, he can't place his left foot on the ground. No weight at all can be put on the left ankle. He has to ambulate by means of two crutches. He uses both his arms to put weight on the crutches which together with his right leg carries his body. He ambulates with great difficulty. The left leg is kept hanging. The left ankle including the foot is heavily swollen. He is constantly in severe pain. He cannot put a shoe or push-ins on the left foot due the swelling. The left ankle is stiff. Even with crutches he can't walk without having to stop and take a break. He can't stand for iong periods of time. He can't run. If seated he has now and again to elevate the left foot to ease pain. He has to literally use his hands to lift up the left lower leg to put it in an upper position. Even with crutches, he easily loses balance. Uneven surfaces and slippery surfaces pose a danger of falling.

[8]        Plaintiff was taken from the scene of the accident by ambulance to Leratong hospital wherein he was admitted. He was in hospital until August 2013 when he was discharged. He was advised to make follow ups to the nearest hospital. The hospital clinical notes indicate that Mr Mahlangu was admitted on the day of the injury; 29 March 2013. The wound was cleaned in casualty and a plaster slab was applied to support the left ankle. Mr Mahlangu had dressings to the left ankle every two days. On 5 April 2013 a debridement of the left ankle was done. On 26 April 2013 he had a split skin graft. On 18 June 2013 he had an open reduction and internal fixation of the fractured left tibula. The left ankle was immobilized in a plaster cast. The plaster cast was removed at the end of July 2013. On discharge Mr Mahlangu was given two crutches to assist him to ambulate

[9]        The injury to the left ankle constituted fractured ankle bones, torn ligaments and soft tissue injury. Mr Mahlangu testified that for extended periods he is in excruciating pain and he remains with chronic pain in the left ankle. He takes Dispirin pain killers twice a day to alleviate pain. On occasions the left ankle loses sensation. He wraps it in a towel and a warm water bottle is placed on it to recover sensation. He has not been able to return to work. He needs to be assisted to take a bath, to dress and he has to be accompanied if travelling. He is unable to cook as he struggles to move about or to stand for more than five minutes. He can't wash his clothes and he cannot carry out any household chores including working in the garden. He has lost all amenities of life. He can't participate in any sport. He used to train in a local club, where he did weight lifting, he did boxing and played rugby. He cannot visit friends. His steady girlfriend left him as she could not accept his situation. He has lost interest in the opposite sex. He is pre-occupied with his situation

[10]     Mr Mahlangu testified that prior to the accident he was in good health. He was active and he enjoyed physical work. He worked as a trainee boiler maker, as a general assistant and at the time of the accident he was working as a carpenter for Profplan Company. He has standard nine level of education. He was twenty seven (27) years old at the date of the accident. He is now thirty (30) years old. He feels physical and emotional pain. He has not reconciled himself with his situation. He has lost self-confidence. He is constantly in pain. He has not received any psychological counseling. He was advised to visit his nearest hospital for physiotherapy. When he arrived at the hospital he was told that the physiotherapist was not available. He did not go back again.

[11]         Millicent Khanyisile Mahlangu testified that she was the mother of the Plaintiff. She was staying with the Plaintiff and her two younger daughters at the time the Plaintiff was involved in the accident and they continued to stay together after his release from the hospital up to now. Plaintiff is not able to move without crutches. He is not able to do anything for himself. She washes for him, cooks for him, cleans for him and assists him when taking a bath and even putting on his trousers. She testified that now after the accident Plaintiff has no social life. He does not participate in any social activities, he does not visit friends and he does not travel, he is always in the house. It causes pain to the family to see plaintiff in this condition. She can see that plaintiff is in physical pain all the time. He takes pain killers and she assists him by wrapping the ankle with a towel and placing a warm water bottle on it. She testified that the she looks after the Plaintiff on a daily basis, he is constantly in pain. He regularly takes pain tablets. Often the left leg is swollen; she would wrap it and place a warm water bottle on it. Plaintiff has not accepted his condition and he feels bad about it.

[12]        Plaintiff calls two expert witnesses, namely; Ms September, an occupational therapist and Dr Laric, an orthopedic surgeon. The Defendant had admitted the skills, qualifications and expertise of the experts as well as the factual basis, clinical findings and opinions expressed in their reports.

[13]     Ms September's report set out that the purpose of the report was to determine and comment on the claimant's residual problems and abilities with regard to, in respect of the Plaintiff:

Ø  The problems arising from the motor vehicle accident.

Ø  Activities of daily living and independent functioning.

Ø  The morbid and post morbid vocational potential.

Ø  Loss of earnings, present and future amenities.

Ø  Present and future management.

Ø  Ms. September assessed Plaintiff on 20 March 2014. She observed that he ambulated with two elbow crutches. There was significant swelling on the left ankle and foot and there was no shoe on the left foot. Plaintiff was unable to bear weight on the left foot and sat with the left ankle carefully elevated on the floor. The left ankle has severely restricted dorsi flexion and a restricted inversion and aversion. Ms. September noted that Plaintiff was impaired in his static balance, standing on one left leg, standing on one right leg, head to toe, walking on toes, walking on heels, kneeling, squatting and climbing.

[14]     Ms September concluded that Plaintiff has immensely poor physical presentation due to the ankylosed left ankle with inertia and poverty of movement, pain on the left ankle, significantly reduced left lower limb weight bearing impaired balance such that he requires maximal external support with dependence on crutches, reduced standing and walking endurance and compromised dynamic postures. Ms September further noted that Plaintiff is dependent on bilateral crutches and he has reduced competence for execution of activities of daily living that required significant lower limb weight bearing, continuous assumption of dynamic posture, liberal left ankle movement and sustained exertion. The physical residual problems are such that he is incompetent for heavy domestic chores and he has had to hire a domestic worker. His leisure pursuits are disrupted.

[15]     Ms September found that plaintiff. presented extreme depression and mild anxiety and there appears to be suggestion of psychological distress to life changes. He showed compromised visional motor integration suggesting physical and psychological problems that arise from the bimalleolar fracture dislocation of the left ankle with debilitating complications and in turn affect the plaintiff's cognitive functioning.

[16]     Dr Laric testified that Plaintiff sustained a significant injury to the left ankle in the form of a bimalleollar fracture dislocation. The aftermath is that he has a fixed plantar flexion deformity of the ankle and foot, a maluntited displaced fractured medial malleolus and a laterally sub fluxed ankle and foot off the tibia He stated that shall have long term consequences and it is classified as a serious injury. Thereby qualifies for narrative interpretation.

[17]      Dr Laric testified thast plaintiff had a fixed plantar flexionof in excess of fifty degrees at the left ankle as he walked. A 4x3 cm medial malleolar scar at the left ankle. He had dark discolouration of the dorsum of the left foot He had a 16 cm lateral malleollar region surgical scar. He had a 7x4 cm donor skin graft scar at the right anterior thigh. Mild thigh circumference was 49 cm on the right and 44 cm on the left . Mid-calf circumference was 37 cm on the right and 32 cm on the left . He found that Plaintiff had normal distal vascular pulses. He had normal sensation at both lower limbs . An X-ray examination on 3 December 2012 noted the non -union of the medial malleolus , lateral! shift of the entire foot relative of the leg, metal plate fixation of the fibula has been achieved but with fibula in a displaced position. The fibula fracture has united. There is diastasis of the distal tibio fibular ligaments. The ankle joint displaced laterally. There is disuse ostepaenia of the foot. The mid tarsal joints do not show degenerative change.

[18]       Dr Laric opined that further surgery might assist plaintiff. The purpose thereof shall be to make the joint stiff in a functional position. The damaged ligaments and soft tissue damage is not reversible and without a healthy bed of tissue the damage is irreversible. A fused ankle shall result in a shorter leg which can be complimented by a special raised shoe. Further surgery will be to perform ankle fusion with Achilles tendon lengthening and soft tissue release. The existing damage shall not make it possible to have a supple stable foot. He explained that although he referred to a functional left ankle, the left ankle is permanently damaged even if the envisaged surgery succeeds. As a result plaintiff shall suffer mild pain for the rest of his life and he shall rely on crutches for the rest of his life.

[19]       The injury resulted in fractured bones, torn ligaments and damaged soft tissue. It has set or healed in a damaged position. It is misaligned and has lost flexibility. In fact the purpose of the surgery shall be to stabilize the left ankle in a damaged position . The mobility of the plaintiff with all its consequences remains permanently compromised. The plaintiff shall continue to suffer acute pain for a period of time which shall settle into chronic mild pain. In time with proper intervention, plaintiff shall recover from psychological pain and accept the reality of the situation.

[20]       The principles relevant to the assessment of damages as the following: what would constitute fair compensation in a particular matter, taking into account, inter alia, the circumstances of the case, amounts previously awarded in broadly comparable cases and the decrease in the value of money since those previous cases were decided However, awards made in previous cases afford broad and general guidelines in view of the differences that inevitably arise in each case See Bonese v Road Accident Fund 2014 (7A3) QOD 1 (ECP) at p19.

[21]       In Alla v Road Accident Fund 2013 (6EB) QOD 1 (ECP) a 41 year old correctional officer sustained sustained fracture of the ankle resulting in displacement of the distal tibio-fibula joint and soft tissue injury. Surgery was in the form of an open reduction and internal fixation of the fracture. She was immobilized in a cast for six weeks and thereafter in an air cast brace. Pain was still being experienced in the ankle resulting in the difficulty in walking long distances. Claimant was awarded general damages in the sum of R200 000-00

[22]       Msiza v Road Accident Fund 2010 (7E2) QOD 1 (GNP) p5 Mogotsi AJ restated that:

1.        In the exercise of its discretion with regard to the appropriate amounts that is to be awarded as general damages the amount has to be fair and reasonable to both parties. Whilst the Plaintiff must be sufficiently and properly compensated for the injuries that he has suffered in the accident, the Defendant should not be unnecessarily burdened with an inordinately high award despite the recent tendency by the courts to pitch the awards higher than in the past. See De Jonger v Du Pisane No (2004) All SA 565 (SCA).

2.       Past awards serve as no more than to give some indication as to what some of awards are appropriate on the facts of a particular case. In striving to determine a fair amount for general damages the court should be guided by the broadest general considerations on an amount which is considered to be fair in all circumstances of the case. Bay Passenger Ltd v_Frazen 1975 (1) SA 269 (A) at 274

[23]       I would add to the above the following that:

1.        The award for general damages remains a compensation, it ameliorates the damage (pain and suffering) resulting from injuries sustained in an accident. It is not intended to be full compensation, if that is possible, and it is not intended to wipe out, if that is possible, the damage.

2.        The statutory compensation scheme is in essence compensation by the public at large through the state therefore it cannot have a punitive element in it.

3.        The statutory compensation scheme is meant to benefit a broad spectrum of the public. Money in a country like South Africa remains a scarce resource with huge demands on the fiscus. Compensation awards must be considered carefully in a responsible manner.

[24]       The following are in my view the main consideration in determining the amount of damages to plaintiff who is thirty (30) years old:

 

1)      Plaintiff has since the accident and shall continue to suffer severe pain.

2)      Plaintiff after the injury has stabilized shall suffer mild pain for the rest of his life.

3)      Plaintiff is permanently disabled in that he shall never be able to use his left ankle

4)      The Plaintiff has suffered severe psychological pain which shall be treated in the near future

5)      Plaintiffs immobility is permanently compromised as a result of the injury which negatively impacts the carrying out of daily activities of life

 

I am of the view that Plaintiff is entitled general damages in the amount of three hundred thousand rand (R300 000-00) as fair and reasonable compensation in respect of the injury suffered by the Plaintiff and the sequelae thereof.

 

[25]       Plaintiff argued for the awarding of punitive costs against the Defendant. It was argued that Defendant is obliged to compensate motor accident victims timeously and fairly. Defendant persisted in a misguided opposition to plaintiffs claim. It failed to cross-examine plaintiff's witnesses. It took two days waiting to receive instructions, namely 21 and 22 May 2015. Further, Defendant failed to properly prepare which resulted in its constant shift of its position relating to plaintiff's entitlement to general damages. The matter was set down to commence on 25 May 2015. It could not start until 27 May 2015. The delay was caused by Defendant raising the special plea. ln relation to the special plea there was no request by plaintiff to award punitive costs. The determination of general damages is the function of the court where the parties have been unable to reach a settlement. I have not noticed any obstructive behavior by Defendant in the process of determining the quantum of damages. In my view, there is no basis to award punitive cost order against Defendant. Defendant is ordered to pay costs of action. Such costs to include qualifying expenses, if any, of the following plaintiff's experts:

 

1.         Dr M.J. Laric (orthopaedic surgeon)

2.         Dr P. Berk (Diagnostic Radiological Services - Radiologist)

3.         Ms N. September (occupational therapist)

4.         Ms P. Ngoako (industrial psychologist)

 

 

 

S B MNGADI AJ
JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

 

 

Counsel for the plaintiff: Ms FF Docrat

Instructed by: Mafate Inc Attormeys

Counsel for defendant: Ms MN Mathebula

Instructed by: Tasneem Moosa Inc

Date of hearing: 25, 26, 27, 28 May 2015

Date of judgment: 09 June 2015

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