Ndaba v Road Accident Fund
| Jurisdiction | South Africa |
| Judge | Revelas J |
| Judgment Date | 30 June 2011 |
| Docket Number | EL 321/08; ECD 721/08 |
| Court | East London Local Division |
| Hearing Date | 16 March 2011 |
| Citation | 2011 JDR 0809 (ECB) |
Revelas J:
The plaintiff, a 45 year old woman, instituted an action against the defendant for damages arising from a motor vehicle accident that occurred on 7 February 2004. The plaintiff was travelling as a passenger in a taxi when the collision occurred on the national road between East London and Ndantsane. She sustained multiple orthopaedic injuries and a ruptured bladder during the accident and she was admitted to the Frere Hospital where she spent just over four months.
The defendant has conceded liability to fully compensate the plaintiff for such damages as she may prove and the only issue to
2011 JDR 0809 p2
Revelas J
decide in this matter was the quantum of the plaintiff's damages. On certain heads of damages (past and future medical expenses) agreement had been reached prior to the trial and what remained in dispute was the plaintiff's alleged past and future loss of earnings as an informal hawker, and general damages. The plaintiff claimed as follows:
|
Past Loss of Income: |
R175 804.00 |
|
Future Loss of Income: |
R549 861.00 |
|
General Damages: |
R500 000.00 |
|
Total: |
R1 225 665.00 |
The plaintiff testified on her own behalf and called three witnesses. They were her neighbour (Mrs Wosintsi), one of the orthopaedic surgeons who had prepared a medico-legal report in respect of her injuries (Dr PA Olivier) and an industrial psychologist who prepared a report on the plaintiff's past and future loss of earnings (Dr HJ van Daalen). The defendant called no witnesses. Dr Olivier's report and the medico-legal report of Dr Berkowitz (also an orthopaedic surgeon), were handed up by agreement. The actuarial report of Dr RJ Koch, on the plaintiff's past and future loss of income also became part of the evidence.
Dr van Daalen, the plaintiff, and her neighbour, were however taken to task during cross-examination by counsel for the defendant, on the question of the plaintiff's past and future loss of earnings. Dr Koch's actuarial calculations were based on the facts noted in report of Dr van Daalen, who had received the information from the plaintiff. During a pre-trial meeting the parties specifically agreed to dispense with the oral testimonies of actuaries.
2011 JDR 0809 p3
Revelas J
Very little seemed to be in dispute as far as the plaintiff's injuries and her treatment were concerned. The parties were in agreement that the defendant was to be ordered to undertake, in terms of Section 17(4)(a) of the Road Accident Fund Act 56 of 1996, to compensate the plaintiff for future medical treatment. The primary enquiry during the trial was aimed at establishing the approximate income generated from the plaintiff's hawking. The plaintiff kept no record of her earnings and therefore there was no real prospect of establishing an accurate figure. It is convenient to deal with the less contentious issues first.
General Damages
An adequate award for general damages (for pain, suffering disfigurement, disability and loss of amenities) "must be fair to both sides-it must give just compensation to the plaintiff, but not pour out largesse from the horn of plenty at the defendant's expense". [1] The plaintiff, who was 42 years old at the time, was travelling with her youngest child, a mere baby, when the collision occurred. The plaintiff's legs were trapped inside the vehicle and she had to pass her baby through the window to onlookers while waiting to be freed from the mangled vehicle. This caused her much distress. Thereafter she was admitted to the Frere Hospital with very little recollection of the accident. Upon admission the following injuries were noted: A straddled pelvic fracture, a right femural "midshaft" fracture and a bladder injury (rupture) as a result of blunt abdominal trauma. She also sustained an injury to her right shoulder and a dashboard left knee injury. The latter injury she sustained as a result of being trapped between the seats of the taxi she travelled in.
2011 JDR 0809 p4
Revelas J
At the hospital, a Denham pin was inserted in the region of the right proximal tibia. A balanced skeletal traction was performed and the wound on her arm was stitched. A catheter was inserted as a result of the ruptured bladder. The fractured femur was also treated by means of a delayed internal fixation with a plate, screws and a bone-grafting procedure.
When the plaintiff consulted with Dr Olivier in 2010, she presented with multiple complaints. These were a painful right shoulder pain in the pelvic area backache, a painful right hip and right knee. She still suffers from all of the aforementioned. The plaintiff has difficulty in using her right arm. She is unable to lift it above her shoulder. Pain in the pelvic area is increased when she climbs stairs or walks, and during sexual intercourse. The plaintiff walks with a limp and her knee is often painful and swollen. She is unable to bend forward or stand for more than a few minutes without pain. All her orthopaedic complaints are aggravated by inclement weather. She suffers permanently from discomfort and intermittent pains. Given her impairments, she is unfit for any type of employment in the open labour market which requires any physical activity and she can no longer trade as a hawker. This was the conclusion of both orthopaedic surgeons who examined the plaintiff.
A removal of the internal fixation of the right hip joint and shaft of the right femur is predicted. Because of degenerative changes, the plaintiff is bound to have a total knee replacement in the future. Her shoulder and hip might also later require replacement. The plaintiff's injuries are of a serious and permanent nature.
2011 JDR 0809 p5
Revelas J
The plaintiff's evidence was that the injury (the pelvic injury in particular) has had a negative impact on her relationship with her husband as she no longer enjoys sexual intercourse. She is no longer able to participate in dancing at church which she loved and her social life has also become limited. She used to be a community walker, an enjoyable activity which she can no longer participate in. She is also no longer able to cook for her family. Her daughter has taken over this task and this has caused some friction in the home. Clearly, the sequelae of the accident had impaired the plaintiff's quality of life substantially.
Courts have a broad discretion in determining quantum for general damages. It amounts to what is to be fair and adequate compensation based on the facts pertaining to the plaintiff herself and the nature and impact of her injuries. There is a tendency for...
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