Sofute v Road Accident Fund
| Jurisdiction | South Africa |
| Judge | Dhlodhlo ADJP |
| Judgment Date | 13 September 2007 |
| Citation | 2008 JDR 0423 (Ck) |
| Docket Number | 388/2006 |
| Court | Ciskei High Court |
Dhlodhlo ADJP:
On 21 April 1998 in Mdantsane a collision occurred between a motor vehicle with registration letter and number CE 146004 (the insured vehicle which was driven by one Xolani Mbinda) and the Plaintiff who was seated on the side of the road in which the said motor vehicle was being driven.
2008 JDR 0423 p2
Dhlodhlo ADJP
The collision was caused by the sole negligence of the insured driver. As a result of the collision the Plaintiff sustained bodily injuries.
The Plaintiff claims from the Defendant:
|
"Accrued loss of earnings |
R160448.00 |
|
Prospective loss of earnings |
R532254.00 |
|
TOTAL |
R692702.00". |
In respect of shock, pain and suffering, permanent discomfort, inconvenience, permanent disfigurement, permanent disability, permanent loss of amenities of life and contumelia the Plaintiff claims R250 000.00. This brings the total sum claimed to R1059 548.00 together with interest on such damages as may be awarded by the Court a temporae morae and costs of suit and interest thereon calculated at the legal rate of interest from a date fourteen (14) days after judgment to date of payment thereof.
2008 JDR 0423 p3
Dhlodhlo ADJP
On 13 November 2006 this Court made the following order:-
"The Defendant shall pay to the Plaintiff 100% of the Plaintiff's damages as may, in due course, be either agreed upon or determined by the above Honourable Court;
The Defendant shall pay the Plaintiff's costs relating to the merits of the Plaintiff's claim, as between Party and Party, as may be taxed or agreed upon, together with interest thereon calculated at the legal rate, from a date fourteen (14) days after the taxing master's allocatur to date of payment;
Plaintiff is declared a necessary witness;
The matter is postponed to a date to be allocated by the Registrar of the Court for a determination of the quantum of Plaintiff's damages".
2008 JDR 0423 p4
Dhlodhlo ADJP
In terms of paragraph four (4) of the minute in terms of rule 37 (1) (B) (pre-trial conference) held on 03 April 2007 it is the Defendant's intention to tender an undertaking in terms of section 17 (4) (a) in respect of the Plaintiff's claim for future medical treatment. The request to make a formal tender was noted.
In its amended plea the Defendant pleads that at the time of the collision the Plaintiff was an employee entitled to compensation in terms of the Compensation of Occupational Injuries and Diseases Act of 1993 ("COIDA), that he recovered compensation in the sum of R150.14 and that the total of Plaintiff's special damages, alternatively the sum of R150.14, falls to be deducted from the damages payable to the Plaintiff, if any.
The Plaintiff was born on 28 November 1978. He left school at standard seven. At the time of the injury he was employed by TVR Construction as a general labourer earning R11.09 per hour.
2008 JDR 0423 p5
Dhlodhlo ADJP
After the accident the Plaintiff was taken to Cecelia Makiwane hospital where he complained of a painful left leg. The left leg was in splint. He was subsequently seen by Dr Theo Berkowitz who is an orthopaedic surgeon. In his report marked "Exhibit E" Dr Berkowitz refers to notes of Cecilia Makiwane hospital which read:
"…. A piece of bone broken loose, wounds on the left leg, one anteriorly and the other posteriorly bleeding marked. Pressure bandage applied".
Dr Berkowitz noted very deep irregular punctured lacerated wounds on the leg. The report states that on 29 April 1998 under spinal anaesthetic a skin grafting procedure was carried out. Dr Berkowitz noted that the Plaintiff was experiencing pain in the left knee if he walked fairly far. In cold weather he experienced pain in the shin in the region of the scar. He was unable to mix concrete because of pain in the left knee if he did so.
2008 JDR 0423 p6
Dhlodhlo ADJP
Concerning amenities of life, the report states that the Plaintiff used to play soccer but he is no longer able to do so. When he tried to play the game his leg became swollen. On examination Dr Berkowitz noted that the Plaintiff looked fit, was slightly built and walked without any obvious limp. Dr Berkowitz noted that there was wasting of the left thigh. The Plaintiff was unable to hop on the left leg. When he squatted he complained of pain in the left knee.
Summing up his opinion, Dr Berkowitz said that the Plaintiff sustained an extremely severe soft tissue injury of the left leg and that "he would have experienced severe pain for a day or two and moderate pain for about three or four days".
Dr Berkowitz said that "following the skin grafting procedure there would have been a flare up of pain at the donor site for about four or five days. The donor site is often the source of prolonged discomfort".
The Plaintiff sustained a posterior cruciate ligament injury and has residual symptoms in the left knee joint.
2008 JDR 0423 p7
Dhlodhlo ADJP
According to the report, with passage of time, the degenerative changes will occur. Dr Berkowitz feels that the Plaintiff will definitely have to retire ten years prematurely from any labouring occupation and adds that "Even if one were able to rehabilitate him satisfactorily his physical capabilities would be diminished by an arbitrary figure of 30%".
Dr Berkowitz feels that the likelihood of the Plaintiff requiring major reconstruction such as a total knee replacement are in the order of 15%. He concludes his report by stating that the injuries have not influenced the Plaintiff's life expectancy.
On 19 March 2001 Dr Berkowitz examined the Plaintiff and compiled a report marked "Exhibit F". He noted that the Plaintiff walked without a limp. There was obvious wasting of the left thigh. The scarring was unchanged. He had full movement of the knee although he experienced some pain at the extreme of flexion.
2008 JDR 0423 p8
Dhlodhlo ADJP
Summing up his opinion, Dr Berkowitz states that there has been a deterioration in the relatively short period since he had last seen him. There was obvious crepitus on flexion extension movements of the left knee.His ability to perform labouring work entailing crouching had been seriously compromised. He could certainly not be able to compete in the open labour market.
After Dr Berkowitz had seen the Plaintiff in December 2006 he compiled a report marked "Exhibit G". According to this report the Plaintiff said that he could not run and that he could not squat for long. In cold weather he experienced pain in the knee. When he sits down he has to keep his left knee slightly straighter than the right one. He cannot lift a heavy object because he cannot balance properly on his left knee. He was able to hop although less vigorously on the left leg.
He states in this report that his opinion as to the pain and discomfort experienced by the Plaintiff as a result of the accident, was obviously unchanged. Dr Berkowitz felt that the deterioration in the condition of the Plaintiff's left knee is inevitable.
2008 JDR 0423 p9
Dhlodhlo ADJP
The Plaintiff should probably undergo arthroscopic debridement in the near future in order to give him some relief of a relatively short period. Dr Berkowitz felt that in the long term a knee replacement is very likely and that this should be allowed for on a 60 to 70% contingency basis. Following this procedure, the Plaintiff will experience extremely severe pain for two to three days and moderate pain for four to six weeks. The Plaintiff will require crutches for approximately six weeks.
In his testimony Dr Berkowitz stood by his reports which have been referred to earlier in this judgment and said that the Plaintiff's injury to the lower leg was severe. He said that during skin traction a patient is immobilized and confined to bed and that the patient goes through unpleasant experience. Dr Berkowitz said there was 60-70% likelihood of the lining of the joint.
He said that the Plaintiff would be classified as 100% disabled for the open labour market. Concerning the likehood of the Plaintiff's knee replacement, Dr Berkowitz said that 65% would be a reasonable comprise.
2008 JDR 0423 p10
Dhlodhlo ADJP
The Plaintiff said that he left school at standard seven after June 1997 because he was financially unable to continue. He believed that he was permanently employed by TVR Construction which constructed pavements in Mdantsane. He had not worked before. He said that after...
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