Beverley v Mutual & Federal Insurance Co Ltd

• Jurisdiction: South Africa
• Court: Durban and Coast Local Division
• Judge: Broome J
• Judgment Date: 04 March 1987
• Citation: 1988 (2) SA 267 (D)
• Hearing Date: 01 May 1985

Broome J:

This matter was last before me on 1 May 1985 when I gave a ruling to the effect that the defendant was liable to compensate the plaintiff for 100% of whatever damages may be agreed or proved. Today I have to decide what those damages are. It is, however, agreed that the I special damages amount to R2 731,24. I therefore decide only the matter of general damages, that is to say damages for pain, shock, suffering and discomfort, for disability, disfigurement and loss of amenities of life. An amount of R25 000 is claimed under this head.

I have heard the evidence of the plaintiff and of Mr Stanley-Clarke, the orthopaedic surgeon who treated the plaintiff after the accident and J who

Broome J

A has submitted a report in respect of his examination of the plaintiff on 15 May 1985 and who has reassessed the matter in the light of the present position.

There is very little in dispute in this case and it will therefore not be necessary for me to recapitulate all the evidence in any great detail.

B Much of the story is told in the further particulars which the plaintiff delivered and which are to be found at pp 14 - 24 of the pleadings and in the report of Mr Stanley-Clarke, to which I have already referred, which is annexed to those further particulars and which is to be found at pp 28 - 35 of the papers.

C In broad outline the facts material to the present enquiry are that the plaintiff was riding a motor cycle and was involved in a collision on the night of 21 July 1981. The plaintiff was then about 18½ years old. He had left school at the end of the preceding year, that is at the end of 1980 and was at the time working for the post office. In the collision he sustained fractures of the left femur and a fracture of D the right femur. Both legs were put in traction; the left, for some nine weeks and the right for a week longer. These fractures healed, but the right femur was deformed and that necessitated further surgery, which I will mention in a moment. Initially he was in hospital for 12 weeks. The pain that he endured at the time was severe and this spell in hospital of some 12 weeks, 10 of which were in traction, must have been an E extremely unpleasant and demoralising experience. I say this particularly with reference to the fact that for 10 of the weeks he was imprisoned in bed, totally immobilised on his back with his legs in traction, and one does not have to elaborate on all the sordid details that that sort of immobility necessitates.

F The deformity of the right femur resulted in a shortening of the right leg and it was decided that it should be operated on again. This operation was performed on 10 September 1982, when the femur was broken and reset. I ought to have mentioned that the fracture of the left femur was closed, but that of the right was open, in the sense that bone G protruded through the flesh and this had to be cleaned up, under anaesthetic, in the operation described in evidence today by Mr Stanley-Clarke. The second operation, that is to break and reset the right femur, was performed on 10 September 1982, a week later. A third operation was performed, again under general anaesthetic, and that involved the attachment of apparatus described as a Hoffman External Fixater. This, I understand, immobilised the new fracture by means of H pins drilled or inserted into the bone at each side of the fracture. The pins protrude through the skin and on the outside of the leg are attached one to the other by some type of scaffold apparatus and that is how the fracture was immobilised. All in all, he was in hospital for about two weeks then and these procedures must have been associated with moderate to severe pain. He was on crutches when he came out of hospital and on 14 January 1983 he went back to hospital to have this splint I removed, again under general anaesthetic.

The result of all this immobility of the right leg was to cause a stiffening in the knee joint, which reduced its range of movement from 0° to 90° as against the normal of 0° to 130°...